Over the last eight months, a series of surprise rulings at the international war crimes tribunal for the former Yugoslavia has exposed a widening divide in the once staid world of international law.
Critics say the decisions weakened World War II-era precedents that hold commanders responsible for war crimes. Supporters say they stopped dangerous overreach by international war crimes tribunals.
In interviews, two former tribunal officials said the decisions reversed years of progress in the field and endangered the recent war crimes convictions of former Liberian President Charles Taylor. And they said they feared that the United States and Israel pressured judges to reverse precedents that could limit both countries’ counter-terrorism operations.
“We are taking steps back,” said a former official at the U.N. court.
The epicenter of the controversy is Judge Theodor Meron, the 83-year-old president of the U.N. tribunal. An American judicial conservative who briefly worked in the administration of President George W. Bush, Meron wrote recent appeals court decisions that overturned the convictions of two top Croatians and a senior Serbian general for aiding and abetting war crimes.
After Meron’s rulings, judges acquitted two top Serbian secret police officials, Jovica Stanisic and Franko Simatovic, of aiding and abetting war crimes as well.
This surprise decision found that the two Serbian secret police commanders had trained, paid and supervised Serb paramilitary combat units that for years carried out widely-publicized war crimes across Bosnia and Croatia. Yet, in a ruling that one analyst called “completely irrational,” the judges said a conviction required evidence that the commanders specifically instructed their subordinates to commit war crimes.
Critics accuse Meron, who was born in Poland and worked as an Israeli diplomat before immigrating to the U.S. in 1977, of creating legal precedents that make it impossible to convict senior commanders for human rights abuses. A spokesperson for the tribunal said that Meron, like all judges at the tribunal, declined to comment on specific decisions.
In an extraordinary breach of protocol, a Danish judge who serves at the tribunal emailed a scathing letter criticizing Meron to 56 lawyers, friends and associates. In the letter, which was leaked to the Danish press, Judge Frederik Harhoff accused the American judge of putting “tenacious pressure” on judges to acquit commanders and speculated that U.S. and Israeli military leaders could now “breathe a sigh of relief.”
“Have any American or Israeli officials ever exerted pressure on the American presiding judge (the presiding judge for the court that is) to ensure a change of direction?” Harhoff wrote. “We will probably never know.”
Before the acquittals were issued, the CIA and some former American military officials submitted letters of support for some of the defendants, citing their close work with the United States during or after the conflict. But U.S. officials denied pressuring Meron to make the rulings.
Two former tribunal officials who are critics of Meron said there was no evidence that he acted at the behest of American or Israeli officials. Instead, they argue, the judge is implementing his deeply conservative view of international humanitarian law.
“It’s about ego,” one of the former tribunal officials said. “Leaving his mark on how the law will be interpreted for generations to come.”
Kenneth Roth, the executive director of Human Rights Watch, and Diane Orentlicher, a war crimes expert who teaches at American University, also argue that Meron is following his own beliefs. But they criticized the recent rulings, which Orentlicher said provided “a road map for how to provide indispensable assistance to mass murderers and still beat the rap.”
Eric Gordy, the analyst who called the June acquittal “completely irrational,” said the visceral reaction reflected deep disagreement in the international legal community.
“People in international law are divided,” said Gordy, a professor of politics and sociology at University College London. “Divided over how much oversight international law ought to have over military activity.”
International war crimes prosecutions expanded throughout the 1990s, but the Sept. 11, 2001 attacks vastly altered the debate. In a 2001 essay, an American military lawyer, Charles J. Dunlap Jr. coined the term “lawfare” – a practice where militarily weak opponents use “law as a weapon of war” against superior military power.
Former Bush administration official John Bolton and other American conservatives say Palestinians and their allies use “lawfare” to falsely accuse Israeli forces of war crimes. They warn that international courts could target American military and intelligence officers and eventually limit the U.S.’s ability to use military force.
Bolton and other conservatives are wrong. The recent decisions are major setbacks that set unrealistic standards of command responsibility. Meron and his allies are weakening a system of international law that should be strengthened.
This past Thursday, thousands of mourners gathered in eastern Bosnia to mark the 18th anniversary of the Srebrenica massacre, where 8,000 Bosnian Muslim men and boys were slaughtered. Families buried the remains of 409 victims which had been exhumed from mass graves and recently identified through DNA analysis. The dead included 44 boys between the ages of 14 and 18 and a baby girl who perished after being brought to a U.N. compound for safety.
In neighboring Serbia, meanwhile, the two secret police commanders, Stanisic and Simatovic, enjoyed their new freedom. They had trained, funded and supervised the paramilitary units involved in the brutal killings around Srebrenica — but judges ruled that they had no responsibility for the executions.
The legal battle is not over. Meron’s term as tribunal president ends this fall. This summer, he must be re-elected by the court’s 18 judges. Unseating Meron and having other judges reverse the destructive precedents he has established would further the cause of international justice and honor Srebrenica’s victims.
Maine native David Rohde is a columnist for Reuters, a two-time winner of the Pulitzer Prize, and a former reporter for The New York Times and Christian Science Monitor.