In the article “Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda,” Victor Peskin says that he is concerned with the perpetuation by the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) of the “victor’s justice” problem that plagued the Nuremberg and Tokyo tribunals. Although the ICTY and the ICTR are undoubtedly more fair than the Nuremberg and Tokyo tribunals were, insofar as they attempt to prosecute both the “winning” and the “losing” sides of the conflict, Peskin argues that the ICTY and the ICTR’s lack of enforcement powers makes it easy for victorious states to withhold evidence and the general assistance these tribunals need to investigate and prosecute suspects. As a result, Peskin argues that, over the years, few Tutsi-led Rwandan Patriotic Front army (RPF) and Croatian suspected war criminals have been indicted by the ICTY and the ICTR.
In my opinion, while in practice states cannot be compelled to cooperate with war crimes investigations, it is in their best interest to comply with the tribunals’ orders and to refrain from obstructing the investigations. Firstly, as Payam Akhavan has argued in his article “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?” and as I previously argued on this blog, it is no longer profitable for political parties to be associated “with the wartime leadership responsible for the criminal policy of ethnic cleansing.” This is one of the factors than can explain the defeat of the nationalist Croatian Democratic Union (HDZ) party in the January and February 2000 national elections in Croatia following the death of its ultranationalist leader Franjo Tudjman. Indeed, the late Croatian President was posthumously found by the ICTY in the Gotovina et al. case to have participated in a joint criminal enterprise of ethnic cleansing in 1995 in the Krajina region. Secondly, it is also profitable from an economic and geopolitical standpoint for states to refrain from obstructing the criminal investigations. For example, in the case of Croatia, full and unequivocal cooperation with the ICTY is seen as essential in its bid to join the European Union. In short, from both a political and an economic point of view victorious states have an interest in cooperating with the tribunals’ investigations.
Unfortunately, these incentives often seem insufficient to ensure cooperation with the tribunals, especially in the case of the ICTR. As argued by Peskin, the Rwandan government has been successful in its attempt to “put the tribunal and its poor administrative performance and slow progress on genocide cases on ‘trial’ in the court of international opinion in an effort to deflect attention from the government’s refusal to cooperate.” Furthermore, the alleged involvement of international actors such as the United States and the United Kingdom in maintaining the Kagame regime – which is suspected of withholding evidence that could be used in the prosecution of Tutsi suspected war criminals – has contributed to the perception of a “victor’s justice” problem. The situation is hardly better in the former Yugoslavia, where it took more than four years for Croatian convicted war criminal Ante Gotovina to be arrested and extradited to The Hague, even though his capture was considered to be conditio sine qua non for the accession of Croatia to the European Union.
In the end, the various attempts to block the tribunals from delivering justice in an “even-handed manner” illustrate that international criminal law, and international law in general, cannot be analyzed without reference to the wider geopolitical context and the strategic and diplomatic calculations based on realpolitik. Nonetheless, the fact remains that in order to avoid being perceived as “victor’s justice” courts and to avoid sending a contradictory message of accountability, both the ICTY and the ICTR should do more to prosecute alleged war criminals, irrespective of which side they were on. As Peskin rightly pointed out, “[i]nstead of promoting accountability, the tribunals’ failure to prosecute the winners may actually promote impunity by teaching the lesson that atrocities will not be punished as long as one prevails in the battle.”