Christoph Flügge, 61, a judge on the International Criminal Tribunal for the former Yugoslavia, discusses the trial of former Bosnian Serb leader Radovan Karadzic, a new global judicial order that could make life a lot harder for despots and his trouble with the use of the word "genocide."
SPIEGEL: Mr. Flügge, the former Bosnian Serb leader Radovan Karadzic pleaded not guilty in your court last week. Will your tribunal now spend more than four years trying the case, as it did with former Serbian President Slobodan Milosevic?
Flügge: It will certainly be one of the most extensive cases. Karadzic is charged with 11 crimes, behind which there are thousands of individual offenses. In the case of commanders like him, we need direct evidence of the murders, including witnesses who saw them being committed, as well as evidence demonstrating the chain of command. We expect the proceedings to last about 30 months.
SPIEGEL: Until now, it was said that the trial would be completed by 2010.
Flügge: That's completely unrealistic. Karadzic can file an appeal against a sentence, so perhaps 2013 is more realistic. We will likely have completed the last dozen cases by then. However, political representatives in New York believe that we ought to be finished sooner.
Flügge: The UN appointed us as an ad-hoc court in 1993, so that the senior political leaders and military commanders in the Balkan wars could quickly be brought to justice. This has already taken close to 20 years. During that time, 161 individuals have been indicted and 60 sentenced to prison terms. Meanwhile, special courts for war crimes in the Balkans have begun their work. They are dealing with all other offenders, which may include the fugitive former General Ratko Mladic, if he is not captured soon.
SPIEGEL: And this works? Serbian and Croatian judges have long been considered to be lax when it comes to the war crimes committed by their countrymen. They have allowed torturers and rapists to get off with minor sentences.
Flügge: I think that's changed. Here's an example: A few weeks ago, four members of a Serbian paramilitary group were sentenced in Belgrade to a total of 75 years in prison, for having shot women and children in Podujevo in northern Kosovo in 1999, when hundreds of thousands of Kosovo Albanians were being driven out of the country.
SPIEGEL: Are the punishments even adequate? The philosopher Hannah Arendt once said that crimes of the Nazis exceeded anything a sentence could do justice to.
Flügge: That's undoubtedly true here, as well. But how do you propose to solve this dilemma? If the global community wants to prosecute war criminals, it has to live with sentences that sometimes seem inappropriate. What would the alternative be? Should we let criminals go, simply because we don't have suitable sentences on hand?
SPIEGEL: In other words, it's already an achievement that presidential warmongers like Radovan Karadzic and Slobodan Milosevic are being indicted today?
Flügge: The generals, heads of state and minister are in pretrial detention here. They have to appear in court every day, and they have to spend two or three years listening to what happened in the villages when they issued their commands. That alone is a victory for justice.
SPIEGEL: Is there such a thing as the right timing for such trials?
Flügge: Yes, the earlier, the better. Our court hears cases in which men are on trial for the massacres of Kosovo Albanians in 1999. Can you imagine that we are working with testimony given by witnesses four weeks after the massacres? The investigators for the prosecution went to the refugee camps right after the massacres happened to talk to people. Once facts can stand up in a court of law, it becomes impossible for anyone to simply abdicate responsibility. Besides, Serbs, Croats, Bosnian Muslims and Kosovars will be able to use this information to come to terms with their wars for decades into the future.
SPIEGEL: Are you saying that the authorities can take their time arresting the suspects?
Flügge: No. If the judiciary can become involved during a war, perhaps it can even influence the war. Of course, courts cannot prevent massacres, but perhaps we can contribute in a small way to steering conflicts in a different direction. Naturally, politicians bear the responsibility to ensure that wars don't occur in the first place.
SPIEGEL: Can the judiciary take political interests into account?
Flügge: If you take criminal justice seriously, you have to give it its own scope of operation. One cannot make the actions of the courts dependent upon the vetoes of politicians.
SPIEGEL: But there are risks. For example, Sudanese President Omar al-Bashir responded to the arrest warrant from The Hague by expelling international organizations from his country.
Flügge: Anyone who spends time thinking about such consequences shouldn't be involved in international criminal law to begin with. Such considerations have no place in the minds of public prosecutors and judges. The judiciary cannot replace politics and diplomacy, but perhaps the mere existence of international criminal courts could make an impression on some politicians. The African potentate Jean-Bedel Bokassa, who committed countless crimes, was able to spend many years living peacefully in a French chateau after he was ousted. This would not happen today. The turning point was undoubtedly the 1998 arrest of (Chilean dictator) Augusto Pinochet in England. Since then, dictators know that their immunity no longer automatically protects them from prosecution.
SPIEGEL: Pinochet had been in retirement for a long time by then. But what happens when international authorities arrest a man with whom the political world still wants to negotiate?
Flügge: Of course, it's a giant step for us to be able to arrest sitting heads of state today. And yes, the consequences of such a step are not always easy. But what is the alternative? Should we simply look on as leaders of nations commit crimes? I find that argument unconvincing, particularly in light of German history.
SPIEGEL: Karadzic claims that the only reason he relinquished his leadership of the Bosnian Serbs is that the United States and the UN guaranteed him immunity from prosecution at the time.
Flügge: We have to live with the possibility that the proceedings of the criminal justice system will spark new unrest. It's an unavoidable risk. Perhaps, for this reason, one shouldn't set up a separate court for each conflict. Judges on international criminal courts cannot sign peace treaties. All they can do is tell people that they cannot abuse or even kill their civilian population. That's the extent of it.
SPIEGEL: Are you considered, in the Balkans, as the judge of the victors or the avenger of the oppressed?
Flügge: That depends on the point of view. Of course, the extreme nationalists, who still see Milosevic and Karadzic as heroes today, don't consider us to be nonpartisan.
SPIEGEL: Do you believe that the victims are satisfied with the sentences?
Flügge: Many victims seem to get a sense of satisfaction from being able to give their testimony here, even if that means spending two days being cross-examined by the defense. You might see a woman sitting there, someone whose entire family was wiped out in front of her eyes, and she'll say: "Thank you for listening to me. I am so happy to have been able to tell the whole story."
SPIEGEL: Some victims will feel passed over when time constraints compel you to reduce indictments to their key elements.
Flügge: The victims want the massacres to be discussed. That's understandable. On the other hand, the defendant is entitled to an expeditious trial.
SPIEGEL: Some defendants don't want a quick sentence at all. Milosevic protracted his trial for so long that he died in detention in 2006. And Karadzic has already filed more than a dozen motions and has rejected one judge. He has three attorneys who are paid by the tribunal, as well as supporters around the world who are busy turning out commentary.
Flügge: He has every right to seek assistance. In this trial, we are working with several hundred thousand pages of material, including many witness statements.
SPIEGEL: The Karadzic case deals with the issue of responsibility for mass killings, which are being referred to as genocide. However, international law experts are divided over whether the Srebrenica massacre can be defined as genocide.
Flügge: I don't want to discuss this specific case. More generally, however, I do ask myself whether we even need the term genocide to characterize such crimes. Why do we have to draw this distinction in the first place? Does it make it more or less unjust when a group of people is killed, not for national, ethnic, racist or religious reasons, as regulated in our statute, but merely because these people all happened to be in a certain location? This was often the case during Stalin's battle against the so-called Kulaks in Ukraine.
SPIEGEL: That wouldn't have fallen under the elements of the offense of genocide.
Flügge: Which is why I believe that we should consider devising a new definition of the crime. Perhaps the term mass murder would eliminate some of the difficulties we face in arriving at legal definitions. It would also work in Cambodia, where Cambodians killed large numbers of Cambodians. What do you call that? Suicidal genocide? Sociocide? Strictly speaking, the term genocide only fits to the Holocaust.
SPIEGEL: Conflicts like the wars in Yugoslavia happen again and again. Is the tribunal a model for the future?
Flügge: I don't believe that we need a separate tribunal for every war. For the future, we have the International Criminal Court. One hundred forty-nine countries have already signed its statute, and 109 have ratified it. With Chile's ratification, as the last country in South America to do so, the Rome Statute has now come into effect. Okay, the United States is not a signatory, but I believe that they will join. China is under pressure, and so is Russia. They have to answer to many questions as to why they are not participating. It's an incredible development that has become unstoppable.
Interview conducted by Thomas Darnstädt and Caroline Schmidt.
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