Interview with the doyen of international criminal law, Judge Theodor Meron: Thanks to the ICTY, the expectation of accountability has become much more real than it has ever been

Jan Lhotský

For years Professor Meron served as a judge and the President of the International Criminal Tribunal for the former Yugoslavia. Nowadays, he presides over the tribunal that took its residual functions. What are the cases the new tribunal deals with? And how does he feel about the development of international criminal justice?

Professor Theodor Meron was born in 1930 in Poland, grew up in Israel and later moved to the US. He studied law in Jerusalem, Oxford and Harvard, and become one of the most respected scholars in international law. After the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), he served as a judge and the President of ICTY. When these tribunals were about to close, he became the President of the International Residual Mechanism for Criminal Tribunals (IRMCT or Mechanism) that took over the residual functions of both the former tribunals.

The interview with Judge Meron took place in The Hague office of the Mechanism on Friday before the appeal hearing in the case of Radovan Karadžić, which took place at the beginning of the following week.[1] Judge Meron discontinued his preparations for thirty minutes in which he devoted time to the interview. He was very kind, substantial and efficient.

President Meron, thank you for accepting our invitation for an interview. I would like to start with the recent history. After the Nuremberg and Tokyo trials, there was a long forty years without any international criminal justice mechanisms. Could you describe the change of the situation in the 1990s when the ICTY, the ICTR and later also the International Criminal Court (ICC) were established?

One of the major differences was in the role of the civil society and media which ensured that the events in the former Yugoslavia will be in the very centre of public opinion. The so-called ‘CNN factor‘ which highlighted what was happening, all the cruelties and the bloodshed, was an essential factor in persuading the United Nations to proceed to the establishment of the ad hoc tribunals.

In addition, the period was suitable because of much better relations between the East and West after the end of the Cold War. Had such attempts to establish ad hoc tribunals been made at the height of the Cold War, it is likely that it would have been vetoed by one country or more.

 

The most important ICTY cases

You served for long years as a judge on the Appeals Chamber that was common to the ICTY and the ICTR. Do you remember your first case?

Yes, my first appeals case was the famous Kunarać et al., which was a fundamental case with regards to rape and sexual enslavement. We established a clear definition of what rape constitutes and developed norms pertaining to how you prove rape. We also dismissed arguments raised by the accused, such as that to establish rape, you have to prove resistance on the part of the victim. We developed norms on the prohibition of sexual enslavement and also violations other than rape which pertain to sexual assaults.

So the Kunarać case was fundamental for developing the law which treated violence against women as extremely important offences that had to be dealt with as seriously as the other offences against international humanitarian law, which was not the case before.

As a judge of the Appeals Chamber of the ICTY and the ICTR, what were the most common shortcomings or reasons which led to annulments of judgments rendered in the first instance?   


In the cases when we reversed judgments rendered in the first instance, it could be done either because of an error of law or of fact, such as insufficient evidence. In other words, the crime would not have been established beyond the reasonable doubt. The rules on that are quite clear. 

Which case that you participated in would you consider the most important?

A number of cases, including the already mentioned Kunarać case. I presided over two of the perhaps most important ICTY genocide cases - Krstić case and Tolimir case. If you take both of these cases into account, you see that we have developed the skeletal norms on crime of genocide which were articulated in the Genocide Convention and which are repeated verbatim in our Statute.

For example, how do you define severe mental and physical pain; or the fact, which was elaborated in the Krstić case and supported in the Tolimir case, that you can also have the act of genocide committed in a limited geographical area; or how do you define a part of the population. In both of these cases, we go into great detail in order to explain why the Muslim population of Srebrenica could be considered a substantial enough part of the targeted population.

One of the very interesting findings of the Tolimir case was that the pain and trauma that the people felt on the way to places of likely execution amount to a separate actus reus of genocide, even if those people happen not to have been killed in the end. These are extremely important findings, so these two cases taken together really give us a much more elaborated, nuanced and sophisticated view of the crime of genocide than the one we had from the Convention.

Did you also travel a lot to Western Balkans or to Rwanda? To what extent is it important for a judge to familiarize himself or herself with a local culture on the ground?

We are applying international law, not the local law. Nevertheless, to have some understanding of the local traditions, the local law is very useful. I went a number of times to Bosnia and Herzegovina, I also went to Croatia, Serbia and to Rwanda as well, although not as many times as I went to the Balkans. It is important, but it is not our main portfolio. Our main obligation is to apply international law.

What cases does the Mechanism deal with?

The purpose of the Mechanism, created in 2010, was to take over the functions of the ICTY and the ICTR and exercise the residual functions after they are closed. The ICTY was closed at the end of 2017, the ICTR even earlier. Therefore, now all the remaining work is on the Mechanism. Can you tell us what cases the Mechanism is currently working on?[2]

On 11 April we rendered a very important appeal judgment in the Šešelj case, where we reversed the initial acquitting judgment rendered by the Trial Chamber, convicted him of crimes against humanity and sentenced him for ten years. However, in reality he will not be imprisoned, as he already spent longer time in the ICTY detention centre.

Now, the appeal of General Mladić, who was allegedly involved in the events in Srebrenica, is in the early stages. The briefing on that case has not yet been completed. But the case of Karadžić is well advanced, we have been working on it very hard and we are going to have hearings here in the Hague at the Appeals Chamber on his appeal and the appeal of the Prosecutor on Monday and Tuesday this week. So we are making good progress.

In addition to appeal cases, we also have one major retrial case on remand which was sent by the ICTY Appeals Chamber to the Trial Chamber of the Mechanism to start from the beginning - this is the famous case of Stanišić and Simatović who were heads of the Serbian security service. The case is now still at the prosecution stage, but it is quite advanced.

Then we already rendered one appeal judgment in the case of Ngirabatware who was convicted by the ICTR. In that case, however, Mr Ngirabatware requested the case to be reviewed. Review means that new facts can be invoked, which were not known and could not have been found with due dilligence during the trial proceedings and which, if established, could destabilise the conviction. In this case the appeals decision was rendered by the Mechanism and now, the convicted person is asking for a review. We did grant the review in the sense that it appears there is a new fact, but the case will be argued in a detailed way in the autumn when we meet to discuss it in the Arusha Branch of the Mechanism in Tanzania.

In addition to all those cases which have a name and high profile, the Mechanism issues hundreds of judicial decisions every year, mostly on requests from national prosecutions – for example, pertaining to access to information which we possess or when we are asked to modify protective measures. Those cases are typically referred for decision to a single judge by the President of the Mechanism, myself. So one of the new elements of the Mechanism is that we can refer work to a single judge, not only to a panel of judges, which of course makes the system much more economical and rapid.

Are there still any fugitives?

Yes, not from the ICTY, but there are eight fugitives from the ICTR. Five of these have been referred for trial to Rwanda. Should they be arrested, they would be tried by the court in Kigali. Three of the fugitives are of very senior rank and are reserved for a trial by the Mechanism. This being Rwandan cases, if and when those people are arrested, they would be tried in the Arusha Branch of the Mechanism and not in The Hague.


The contribution of the ICTY to justice

Some argue that international or hybrid tribunals are very costly in relation to their results. How do you perceive the success of the ICTY?

I think it has been extremely successful. When it was established, there was no certainty that people would be arrested and brought to trial or that we will find enough evidence and that the system will be able to function well, according to the principles of due process of law and fairness. And we have done more than that. The ICTY indicted 161 persons and we have shown that trials – even of very senior people such as President Karadžić – can be conducted, bearing in mind the entire panoply of human rights and due process. The judges have rendered serious, credible judgments based on the law and the evidence.

In addition to applying the law of genocide, the law on crimes against humanity and the law on war crimes, we have for the first time developed very detailed procedural law. Procedural law hardly existed in Nuremberg or in Tokyo. We have also revived and created a renaissance of customary humanitarian law. So I think that on the balance, the success of the ICTY was beyond expectations.

How do you see the future of international criminal justice? Do you believe that the ICC will slowly take over, or should the Security Council create another ad hoc tribunal, like the one you connected your professional life with?

The ICC and Mechanism are different creatures in a sense that the ICC is a very important permanent court, but a court which was established by a treaty. We are a tribunal which was, like the ICTY and the ICTR, established by the UN Security Council under Chapter VII. Therefore, we for example have the authority to issue binding orders to governments. Not always are those complied with, but at least we have the authority to do so.

It is very difficult to predict how things will delevop. Nevertheless, I do not believe that the Security Council, given that three permanent members are not members to the ICC, would be particularly interested in entrusting every relevant matter to the ICC.

If you compare the time before modern international criminal justice mechanisms, the 1980s, and today, would you say that humankind has made good progress regarding how to deal with mass atrocities or you would be rather critical?

On the whole, I would be quite positive. Things can always be done better, but we developed procedures and techniques for dealing effectively with cases of mass atrocities. We also developed, in detail, doctrines dealing with leadership responsibility through concepts such as command responsibility or the so-called joint criminal enterprise. We have developed models which enabled the international community to establish the ICC in Rome in 1998.

Furthermore, we established procedures which could be followed for instance in some respects by the Special Court for Sierra Leone (SCSL) or by the Extraordinary Chambers in the Court of Cambodia (ECCC). We are operating in quite a new universe of international criminal justice in which the expectation of accountability has become much more real than it has ever been.


Legacy of the ad hoc tribunals

What do you see as the main points of the legacy of the ICTY and the ICTR in relation to the development of international criminal justice?

After the years of functioning of the ad hoc tribunals, we are leaving behind an extremely rich body of principles of both substantive humanitarian law and substantive international criminal law and procedural jurisprudence.

In addition, we identified a very rich body of customary law in order to avoid the criticism which has been raised in Nuremberg of ex post facto legislation.  We make sure that with regards to crimes which are being charged in our tribunal, we check that the norms used, in fact, represent customary international law. The reason for that is that if you show that something was customary law at the moment of the commission of the offence, you do not face claims of ex post facto legislation. That is to say, the principle of legality has been very strictly and successfully observed.

And how would you assess the contribution of the tribunals to post-conflict reconciliation in the countries of the former Yugoslavia and in Rwanda?

There is no doubt that the judgments that we have rendered illustrate to the victims that people who are resposible for those crimes could be prosecuted and convicted – showing that justice was done in this sense. This enables dialogue between the communities.

However, reconciliation is not the main mandate of the international criminal tribunals. Their mandate is to decide whether according to the law and to the facts, somebody can be found guilty beyond reasonable doubt. That is the entire mandate.

The function of post-conflict reconciliation is a mission for national leadership - religious leaders, intellectual leaders or media. For example in post-war Germany, the enlightened leadership played a tremendous role in the reconciliation between the Germans and the Jews, which exemplifies the fact that reconciliation is a mission for a national leadership. International criminal tribunals play an important role in paving through their judgments a preparatory ground for reconciliation, but this is not their mission.

At the end of 2017, after 25 years of functioning, the ICTY formally closed its business. Do you feel nostalgic about that?

I do not know whether the word ‘nostalgic‘ is the right way to describe it. I am aware of the fact that the period in which there was a blossoming of international criminal tribunals has probably come to an end, with the political situation which now prevails and the tensions between the permanent members of the Security Council. It is unlikely that we will see additional tribunals established in the near future. Therefore, as a person very much committed to international criminal justice, I am worried about the future.

I am grateful  for all the years since 2001, which I spent at the ICTY, working on developing the norms of international humanitarian law. Of course the closing of any institution and saying goodbye‘ to colleagues is always a sad moment, but we must make sure that it will not negatively impact the future of international criminal justice.

 

Notes

[1] The appeal hearing in the case of Radovan Karadžić took place on 23 and 24 April 2018.

[2] The interview took place on 20 April 2018 and the text was approved for publishing in September 2018. The interview was conducted by Jan Lhotský.

Photograph

President of the IRMCT Theodor Meron, Photo courtesy of UN IRMCT