No sooner than an international(ized) criminal tribunal or court is established, it begins thinking of its legacy: what sort of bragging rights it can hope to claim as its contribution to the development of international criminal law and justice. This term is rarely heard in domestic settings, unless discussing some dark past in a State’s judicial affairs, such as the Inquisition or Star Chamber, or when the US Supreme Court ruled that it was constitutional for the US government to intern a segment of its citizens based on race, or imprison indefinitely so-called enemy combatants on an offshore military base. The negative connotation of legacy in these situations is seen as the aberrations in the life span of a nation’s history – something to remember and learn from, and to avoid.
At the international(ized) criminal tribunals and courts, however, legacy seems to mean something else – at least to the Presidents, Prosecutors, and Registrars. To them, legacy seems to be something that reflects only the positive, the achievements, the favorable statistics: how many trials were conducted, how many convictions resulted, what positive jurisprudence was generated, and of course, why other courts should be so lucky as to have such a successful track-record.
Every international(ized) criminal tribunal and court that was established for a limited life-span and has come to or is coming to its conclusion, has taken a victory lap, and some, such as the ICTY, have taken more than one. Elaborate conferences with panel discussions on just about every imaginable topic are held. Outsiders who participate in such conferences as presenters range from sycophantic cheerleaders to immoderate skeptics. Insiders, particularly those coming from the Chambers (especially the Presidents), Prosecution, and Registry exhibit an intolerance to any unflattering or critical remarks, and often seem to go to great lengths to stifle any discussions on any shortcomings and deficiencies that threaten to tarnish what is, in their eyes, an unblemished success story. It is as if they are a collective of ostriches with their heads buried in the sand: if they ignore or suppress any negative aspects of the tribunal or court at their legacy conferences, no one will be any the wiser. Controlling the message, obfuscating the failures, and perpetuating the myth of unmitigated successes, turns into an irrational, obsessional, delusional con game in which those doing the conning succumb to their con.
Is the legacy of a court that important? If it is, would it not be better if those who are bequeathing it were just as keen in highlighting the flaws and failures as they are in flaunting the achievements?
The ICTY has been particularly obsessive in promoting its legacy. It has much to be proud of. There have been many successes. The ICTY Registry is in many ways the unsung hero, passing down a model court administration framework for future ad hoc courts. The adopted procedure at the ICTY, despite it being constantly tinkered with, is perhaps the best procedure of all existing international(ized) criminal tribunals and courts. Much of its jurisprudence was groundbreaking, often serving as the first port-of-call when researching or grounding legal issues, especially issues of first impression in other courts. Even at the ICC, which tends to be dismissive of anything from the ICTY, looks to ICTY jurisprudence, citing it copiously.
The ICTY has also produced some whopper size errors, such as the mode of liability known as joint criminal enterprise, commonly referred to as JCE. There are many other examples where the ICTY got it wrong, sometimes seriously wrong. But why bother, for instance, to dwell on questionable legal holdings, when the world over, there is not a single national or international court that gets everything right every time. So perhaps it would be unfair to be overfly critical of the ICTY for occasionally falling short.
But what else is part of the ICTY’s legacy that deserves our close scrutiny and attention? How about the quality of the judges it employed, or the way certain cases were tried – especially in comparison to other cases? How about the deaths by suicide of the accused or convicted persons under the ICTY’s care and supervision at the UN Detention Unit in The Hague? In all likelihood they were disturbed, depressed, desperate; how is it that this went unnoticed and why were these inmates not better protected?
But the death that stands out and will or should haunt the ICTY, is that of General Slobodan Praljak. It happened in court during the ICTY’s final hearing. What happened and why is an indelible stain on the ICTY legacy.
Security measures have been put in place to avoid further embarrassment. I say embarrassment because I seriously doubt that any of the judges who sat on the trial and appeal in General Praljak’s case have in the least bit been disturbed. What the ICTY seems more interested in is solving the mystery of how the poison came to be in General Praljak’s hands, as if this were an Agatha Cristy whodunnit.
If embarrassment must be felt, and it must, it should be for what drove General Praljak to take his life. Questions should be raised on why this case was tried in such a shoddy manner? What can be learned from the way this case was handled? Should the selecting and screening of judges be done better? Should a near octogenarian neophyte with no practical skills or experience in any court in his national jurisdiction, let alone in an international court on a case of such complexity and magnitude as the one in which General Praljak was an accused, be sitting on such a case? And can it be seriously said that such a person, learned as he may have been, is capable for the task at hand? Should there not be a uniform process in how cases are tried, or is it preferable to have disparate approaches based on the serendipity of the judges selected? And so on.
Legacy is not just about the good. It is also about the bad and the ugly. It must all come out – paraded, discussed, and analyzed with zeal and intellectual honesty. Maybe General Praljak’s death will force a discussion that tackles these hard questions that deserve to be asked. Not that General Praljak’s fellow accused in the case (my client, Dr. Jadranko Prlić being one of them) will benefit from whatever answers may emerge, but so future courts can learn from these avoidable errors.
Identifying and promoting a court’s legacy should not be a game with winners and losers.