The Multilateralist

Are tribunal judges protecting the big powers?

I’ve noted here the striking number of acquittals at international criminal tribunals. Recent refusals to convict senior Serbian officials at the International Tribunal for the former Yugoslavia (ICTY), based in The Hague, have been particularly controversial. Given the damning evidence of Serbia’s role in the Bosnia conflict, and considering the money and expertise poured into ...

I’ve noted here the striking number of acquittals at international criminal tribunals. Recent refusals to convict senior Serbian officials at the International Tribunal for the former Yugoslavia (ICTY), based in The Hague, have been particularly controversial. Given the damning evidence of Serbia’s role in the Bosnia conflict, and considering the money and expertise poured into the tribunal’s work, it’s fair to ask what gives.

A few weeks ago, the scholar Eric Gordy advanced a theory. He suggested that the tribunal judges and, in particular, American judge Theodor Meron have been interpreting the law in order to protect Western leaders from possible future international prosecutions:

Probably we will not know completely the reasons the judges decided to reverse course for the tribunal’s final stretch until it has closed its doors and key personalities release their memoirs. One possibility is that while the establishment of legal standards looked fine for small and marginal states like the ones involved in the Yugoslav conflict, it threatened the flexibility of more powerful states likely to be involved in conflicts in the future.

The rejected bases of responsibility in the three major acquittals in the last year included targeting civilian objects and arming and financing forces that committed crimes. It does not take a large stretch to see the implications that precedents in cases like this would have for the activity of powerful states in countries like Syria and Afghanistan.

Some of this reasoning might look like an invitation to conspiracy theorists to look for sinister influences on the tribunal’s decision-making. But no conspiracy is needed to explain that judges represent the states that nominated them to the tribunal, and that law is a conservative profession. To an outside observer it looks as though the International Criminal Tribunal for the Former Yugoslavia was on its way to establishing groundbreaking precedent, saw what this implied, and jumped backward.

That interpretation has now drawn a thoughtful rebuttal from Bogdan Ivanisevic (h/t Kevin Jon Heller):

[I]f the recent jurisprudence of the ICTY cannot be reasonably explained by a theory of an American judge imposing unjust legal standards on indolent or politicised ICTY judges, how can it be explained?

I believe that judges – Meron included – were driven by legal considerations. Such trivial explanation surely lacks the drama the conspiracy theory offers, but it has the advantage of not sounding silly.…

Contrary to what the critics allege, in the recent ICTY decisions, the law was applied consistently with the court’s precedents. The conclusion the court ultimately reached, that the evidence did not support a finding of guilty, reflects the peculiar nature of the two cases, rather than a change in the court’s approach.

The question of whether judges on international courts rule in ways compatible with the interests of their home states has been examined by legal scholars and political scientists. And there’s some evidence that political considerations do in fact influence their behavior. Eric Posner examined the decisions of judges at the International Court of Justice and found "judges are significantly biased in favor of their home states when that state appears as a party." Erik Voeten reviewed the performance of judges on the European Court of Human Rights and reached a more nuanced conclusion. "Judges are politically motivated actors in the sense that they have policy preferences on how to best apply abstract human rights in concrete cases," he wrote, "not in the sense that they are using their judicial power to settle geopolitical scores." Given these findings, it’s important to take seriously the question of whether political considerations impact international judges (and prosecutors).

But it’s quite a leap from these strands of research to the suggestion that Gordy is making. After all, major powers and their nationals are not directly implicated in the Yugoslav tribunal cases. Leading Western countries — and the United States, in particular — are undoubtedly concerned about the possibility of international justice turning on them, but they continue to promote in various ways the principle of accountability for senior leaders. In 2011, for example, the U.N. Security Council unanimously referred the situation in Libya to the International Criminal Court — a move council members had to know would lead to high-level prosecutions.

Given this complex reality, Gordy’s suggestion that Meron and other tribunal judges are somehow channeling Western angst about the hypothetical political implications of these criminal accountability principles is a stretch. Even more problematic for Gordy’s version of the political-influence thesis, Meron has been a consistent and outspoken advocate of the tribunal and its work in holding senior officials in the Balkans accountable. (In his voluminous writings, Meron has had a few words to say on the importance of judicial independence in the international context.)

I suspect the reality behind the acquittals at the ICTY and other international courts is much more mundane: Prosecutions against senior political officials are extremely difficult. Even when the political guilt of these figures is beyond question, it’s awfully tough for prosecutors to link them directly to crimes in ways that will stand up in court.

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