Global Policy Forum

By Gabriel Partos

When the United Nations decided 12 years ago to set up the International Criminal Tribunal for the Former Yugoslavia, the move was widely seen as an admission of failure. Sceptics argued it was no more than a fig leaf to cover up the international community's failure to take action to prevent war crimes and genocide in the Balkans.

The war in Bosnia-Hercegovina - the bloodiest in Europe since World War II - was still raging seemingly without an end, but the major powers remained divided over the issue of military intervention. In the face of public pressure for some kind of action, the UN's decision to set up a tribunal appeared to be a salve for guilty consciences. Cynics added that it was hardly likely to work since there was, at the time, no outside force prepared to apprehend those who were to be charged with war crimes.

Dayton success

That view was shared by the warring sides. The tribunal's establishment had little - if any - deterrent effect. Some of the worst crimes, most notably the Srebrenica massacre of more than 7,500 Bosnian Muslims, were committed in 1995 - after the tribunal had opened for business. Yet with the Dayton accords which ended the war in Bosnia in December 1995, the tribunal began to come into its own. Dayton itself disproved one of the arguments directed against the tribunal - that if it indicted some of the leaders, they would have a strong personal interest in prolonging the war, lest they should be handed over to the tribunal afterwards.

But the indictment of the Bosnian Serb leader, Radovan Karadzic, and his military commander General Ratko Mladic did not prove an obstacle to a deal - they were simply replaced by other leaders at the peace talks. Initially, the tribunal was able to secure the surrender of only minor figures: the prominent leaders were still being sheltered by their associates.

'Real change'

But gradually, as the Nato-led peacekeepers tightened their hold on Bosnia, more important indictees began to be arrested, while others gave themselves up. The real change came with the death of Croatia's nationalist President Franjo Tudjman in 1999, which led to the emergence of a more co-operative administration in Zagreb; and even more significantly, with the fall of the authoritarian Yugoslav President, Slobodan Milosevic, in 2000, which made it possible to put him on trial as well as some of his closest associates.

By the beginning of the decade, the tribunal had been transformed from an unpromising experiment into a fully-fledged institution of international justice. It was able to perform several functions, most notably, in meting out justice, regardless of however powerful the defendants may once have been. As a result, it was also beginning to develop perhaps something of a deterrent effect - not in Kosovo in 1999, but more perceptible in the behaviour of combatants in Macedonia in 2001. Besides, it was giving a practical demonstration of the principle that guilt should be attached to individuals, not collectively to nations or ethnic groups.

Political armoury

However, that principle has yet to gain wide acceptance in the Balkans; and the expectation that the tribunal would serve inter-ethnic reconciliation also remains in large part unfulfilled. More recently, the tribunal's role has expanded considerably in another area - it has become a powerful weapon of conditionality in the political armoury of the major foreign partners of the former Yugoslav republics.

Wednesday's decision by EU foreign ministers to postpone the start of Croatia's EU accession talks was based on the assessment of the tribunal's chief prosecutor Carla Del Ponte, who argued that Zagreb was failing to co-operate in tracking down the Croatian General Ante Gotovina who was indicted for war crimes four years ago. The EU is due to complete a feasibility study by the end of this month on whether it should launch talks with Serbia and Montenegro leading to the conclusion of a Stabilisation and Association Agreement, or SAA.

Final indictment

Although Belgrade is several steps behind Zagreb in terms of European integration, it, too, faces conditionality in relation to its compliance with the tribunal's requests. And the EU is putting pressure on the Serb authorities to ensure that the remaining 16 fugitives from justice - several of whom are in Serbia - are handed over to the tribunal. Conditionality in relation to the tribunal has been used by the US administration for several years - most notably in cutting of financial assistance to the Belgrade government.

One reason it has now been adopted by the EU is that as the prospect of closer links with the EU, or even membership, becomes more realistic, the former Yugoslav republics become more amenable to pressures of this kind. For its part, the tribunal doesn't want to be portrayed as a political instrument. Its purpose is the administration of justice which it carries out in the manner of an independent judiciary. This week, it has issued its final indictment, involving former Macedonian interior minister Ljube Boskovski - making a grand total of 160 indictments for war crimes. But however independently it may function as a judicial institution, the tribunal - as a body set up by the UN - cannot avoid being used for political purposes by some of the UN's member-states.