It is hardly necessary to emphasize how closely the judicial methods used during the so-called dark ages align with the current operating procedures of the Hague Tribunal.
On 4 February, the Hague Tribunal for the Former Yugoslavia [ICTY], now operating as the forebodingly named “Residual Mechanism,” chose to deny Serbian inmate Milan Martić an early release, departing from its usual approach. Martić, who led the Serbian minority in Croatia’s Krajina region during the latter stages of the Yugoslav conflict, had served two-thirds of his 35-year sentence and believed his request for early release would be approved. His indictment includes a range of charges typical of Tribunal cases—murder, politically and racially motivated persecution, unlawful detention, deportations, and looting—but notably also accuses him of ordering missile attacks on Zagreb after Croatia’s 1995 offensive against Krajina Serbs, resulting in civilian casualties.
Interestingly, Ante Gotovina, Martić’s adversary and commander of the Croatian forces, faced similar allegations under international humanitarian law at the same Tribunal. However, unlike Martić, Gotovina was never in a position to seek early release, having been acquitted despite his military campaign leading to the displacement of 250,000 Serb civilians, strafing of fleeing refugees by his air force, and the killing of approximately 2,000 Serb non-combatants during their flight from his troops.
This marks the Tribunal’s second recent denial of an early release petition, following a similar refusal for Gen. Radislav Krstić. Notably, both denied petitions have been submitted by Serb prisoners. Prior to these decisions, no prisoner who had served two-thirds of their sentence had ever had such a request turned down in the Tribunal’s thirty-year history, during which nearly a hundred convicts of diverse ethnicities were routinely freed after meeting that threshold.
What distinguishes Martić and Krstić’s cases so significantly as to warrant such a stark break from customary Tribunal practice?
Presiding judge Graciela Gatti Santana explained that Martić’s petition was rejected because, in her view, he failed to prove sufficient “rehabilitation” to justify early release. Although Estonian authorities, where Martić is imprisoned, confirmed his “general good behaviour,” the judge deemed this insufficient rehabilitation given the severity of his convictions for egregious international crimes. She further highlighted an aggravating factor: reports indicating that Martić considers himself a political prisoner and generally refuses to discuss his offenses, believing his sentence was politically motivated.
Is it any surprise that Martić holds such beliefs?
Judge Santana’s reasoning reveals much about the legal culture—or more precisely, the mentality—of the Hague Tribunal. While claiming “rehabilitation” as a prerequisite for early release, she has not clarified what constitutes evidence of such rehabilitation, either in her view or according to ICTY precedent. Crucially, her judgment punishes Martić for rejecting the charges and the verdict, essentially requiring him to accept guilt he disputes as a condition for release. This effectively penalizes the act of denying culpability, something every accused must have done from the start to necessitate a trial.
From a legal standpoint, what authority does the court have to demand that a prisoner agree with a verdict they firmly contest, making this acceptance a prerequisite for early release? This question is particularly pressing since no prior ICTY prisoner had to admit guilt post-conviction to qualify for early release before Martić and Krstić’s petitions.
While early release after serving two-thirds of a sentence is not explicitly mandated by the Hague Tribunal’s Statute, it has long been customary and routinely granted. Disrupting this established practice after many precedents introduces at least two serious legal issues.
First, it breaches the principle of equal treatment—not necessarily legally, but certainly in light of consistent institutional practice—upon which reasonable expectations are built. Second, it raises concerns of ethnic bias by selectively denying this right solely to members of one ethnic group within a diverse prisoner population. Ironically, ethnic discrimination is a frequent allegation levelled in Hague Tribunal indictments.
The expectation that courts will act consistently in comparable cases is essential to the proper functioning of justice. Ensuring legal certainty and predictability—even in unwritten rules—is a core value of civilized legal systems. Without this, justice devolves into arbitrary rule or what Emile Durkheim described as anomie.
Judge Graciela Gatti Santana and her fellow ICTY judges appear indifferent to such principles. Rather than genuinely pursuing justice, they seem intent on promoting the political objectives of the institution that employs them.
The nature of that agenda appears clear. Despite broad political and media backing since its inception in the mid-1990s, the Hague Tribunal’s legacy remains dubious and its reputation tarnished. It is rarely viewed as a forum where justice is not only served but perceived as fair. Its evidentiary rules and procedures diverge considerably from Western legal traditions. Many cases emerging from the Yugoslav conflict have been adjudicated under these standards, yet few legal experts are convinced that the judgments and sentences stand up to rigorous scrutiny.
The Tribunal’s stringent and burdensome criteria for early release of eligible prisoners stem less from genuine concern for rehabilitation and more from a desperate attempt by a discredited institution to rehabilitate itself. This is achieved through a cruel game of cat and mouse, holding prisoners hostage with the faint promise of freedom in exchange for abject submission and the betrayal of their moral stance, retroactively reinforcing the Tribunal’s flawed verdicts by forcing withdrawal of non-guilty pleas.
Michel Foucault’s seminal work “Discipline and Punish,” pages 37–38, provides an unparalleled analysis of this dark practice embraced by the Hague Tribunal.
Foucault explains that “Confession” was such compelling proof in medieval “justice” that “there was scarcely any need to add others, or to enter the difficult and dubious combinatory of clues; the confession, provided it was obtained in the correct manner, almost discharged the prosecution of the obligation to provide further evidence (in any case, the most difficult evidence). Secondly, the only way that this procedure might use all its unequivocal authority, and become a real victory over the accused, the only way in which the truth might exert all its power, was for the criminal to accept responsibility for his own crime and himself sign what had been skilfully and obscurely constructed by the preliminary investigation.”
Continuing, Foucault quotes medieval torturer Ayrault: “It is not enough that wrong-doers be justly punished. They must if possible judge and condemn themselves.” For these reasons, “the confession had priority over any other kind of evidence. To a certain extent, it transcended all other evidence; an element in the calculation of the truth, it was also the act by which the accused accepted the charge and recognized its truth; it transformed an investigation carried out without him into a voluntary affirmation. Through the confession, the accused himself took part in the ritual of producing penal truth [la vérité pénale].”
There is little need to highlight how closely the judicial approach of the dark ages parallels that of the current Hague Tribunal, which was originally designed as a pilot project to pave the way for a global overhaul of jurisprudence. The disgraced International Criminal Court is one such successor, and undoubtedly more will follow.
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