The problem of outreach: A note from the ICTY
The trial of Bosnian Serb army commander Ratko Mladic at the International Criminal Tribunal for the former Yugoslavia (ICTY) recently heard what is likely its last witness, Russian colonel Andrei Demurenko, invited by the defense to testify in relation to one mortar attack that killed around 40 and wounded over 70 people in a crowded Sarajevo market in August 1995. His testimony went on for hours, discussing projectiles, trajectories, meters and degrees, with the witness frequently evading giving clear, short answers.
His testimony is based on an investigation he claims he conducted while working for the UN protection force UNPROFOR in Sarajevo. That investigation showed, according to the witness, that the Bosnian Serb army could not have been responsible for the massacre. The testimony ended abruptly when Demurenko checked out of his hotel and never showed up to answer the final questions. The Russian colonel may have left suddenly because he did not like the questions of the prosecution, or because the presiding judge rejected his request to shake hands with Mladic in court. The unusual ending made me reflect on outreach and how it can be successful when what goes on in the courtroom is dull, or simply bizarre.
The word outreach is often spoken in international justice circles, among practitioners, academics and activists. It has become something institutions are expected to do – to bridge the gap (to use the name of an earlier ICTY outreach project), and approach communities the institution in supposed to be serving. The funds to do so were never secured within the core budget of the institution and if one lesson can be drawn for the future – it’s that one. Money has to be set aside for outreach. If the court exists to serve a certain population and its need for justice, then that institution must communicate with those people, in a language they understand. The outreach program must be developed simultaneously, as an institution is set up. It cannot be an afterthought.
The length of proceedings is frequently emphasized as a shortcoming of war crimes trials. At the ICTY, one needs only to consider the Prlic et al. case, now languishing on appeal following a seven-year trial that ended in 2013, the trial of Serb ultra-nationalist Vojislav Seselj [IJT-191] which took ten years to complete, and the case of Stanisic and Simatovic. Those former leaders of the Serbian State Security Service, currently await re-trial which will start at the Mechanism for International Criminal Tribunals (MICT), the successor to the ICTY, sometime in 2017. The two men were transferred to The Hague in 2003.
Bosnian Serb leader Radovan Karadzic [IJT-192] and Mladic [IJT-185] are more positive examples: these are two massive trials where charges encompass large territories, long time periods and include numerous incidents. They have, however, been managed efficiently and Karadzic is now on appeal while Mladic will have closing arguments in the coming months. Both took only a few years.
Complex cases make for difficult outreach
The intricacies of both substantive and procedural law, the amount of evidence material, the number of witnesses, the legitimate requests of the defense for additional time to prepare, the health problems of the accused – they all contribute to the length of proceedings. Cases are often complex, and judges need time to analyze evidence, assess the law and apply it. Judges are also often engaged in more than one trial and defendants occasionally state that illness prevents them from sitting in court for extended periods.
It is not unusual for war crimes trials to hear dozens and even hundreds of witnesses and analyze thousands of pages of documents. Experts testifying about the military, police and political structures, as well as on demography, weaponry or mass graves bring important insights, helping the public to know more about past events. Victims, insider witnesses and observers like journalists or UN staff contribute immensely to the ability of the court to reach a judgment. However, watching Andrei Demurenko in court, one cannot but wonder, can something be done to shorten the proceedings without damaging the integrity of the process? Currently, following a trial is almost like a full time job, something most citizens in the former Yugoslavia have neither the time nor the energy to do. If that is the case, what does that mean for our expectations of outreach?
War crimes trials have become money-swallowing monstrosities but it is unlikely they will be significantly reformed as that would run the risk of damaging the opportunity parties have to present evidence. This could potentially also undermine fair trial rights. Even if the will was there to do something about it, it is unclear how such deep reforms would be implemented. However, we cannot expect the public to follow proceedings for years, particularly as the language used is often too technical for a regular citizen to follow. Outreach is there to try to ‘package’ endless hours of courtroom sessions into something accurate and understandable for the public.
The ICTY did, overall, incredibly well with its outreach and its example should be followed by other, and especially future tribunals. Through the years, it went into communities and schools, produced and showed films (most recently on crimes in Visegrad, in eastern Bosnia), organized debates and presented to law students. Outreach efforts must be done close to the communities, by local outreach offices. The ICTY has done a lot to make information available: indictments, judgements, transcripts and even a database that includes evidence material are online. These are not necessarily designed for the average citizen, but information is available: one can reasonably claim a lack of access only if one has no internet connection. The trials are streamed online so anyone can follow them.
Translation remains a problem as many of the key documents such as judgements are written on thousands of pages –for example the Karadzic judgment is 2,600 pages long. Summaries are available, but those probably go largely unread by the local populations. In that respect, the media are key actors, those that capture the most relevant aspects of indictments, proceedings and judgments and present the information to the public. The coverage of the trials is influenced by the media in the former Yugoslavia still being dominated by simplistic, nationalist narratives. Local media tend to report on trials infrequently, and often with an agenda. The tribunal has been open to journalists, but competence in reporting about complex proceedings and unbiased approaches have been in short supply. There have been positive examples in regular reporting in the local languages by the Sense News Agency, BIRN, RFE and Balkan Insight. Sense has recently produced an excellent website dedicated to Srebrenica, and it includes key evidence, video, documents and maps in a user-friendly format. Those efforts are key in order to inform the public about ICTY proceedings.
There is a need to rethink expectations of outreach and answer some fundamental questions going forward. What is a court required to do in order to be considered successful? What constitutes failure? Do populations need to know facts that have been established, or accept them, or both? Do they need to follow proceedings and read judgments? There are numerous examples of people being unimpressed by facts when forming their opinions, climate change is an example – so what does that mean for tribunals? Is a tribunal legitimate and successful even when large segments of the groups it speaks to do not accept its rulings? Maybe more discussion within the justice community would be beneficial, to define what we want out of outreach, how to address challenges of length and complexity of proceedings and how to use the limited resources.
Iva Vukusic is a PhD candidate at Utrecht University where she focuses on paramilitarism during the war of the 1990s in the former Yugoslavia. Vukusic is a former journalist and editor and she spent the last eight years working in the field of human rights and war crimes prosecution.