1. Introduction
In 2013, Judge Theodor Meron, President of the International Criminal Tribunal for the former Yugoslavia (ICTY), stated that criminal justice cannot be a synonym for convictions, and acquittals are its integral part. ‘When you have acquittals’, he posited, ‘it shows the health of the system’.Footnote 1 Persons acquitted by international criminal tribunals (ICTs) have, however, also been referred to as a ‘forgotten party’.Footnote 2 An acquittal can be defined as a finding by a judge or a jury that a defendant is not guilty. As such, an acquittal is a legal technicality, which ‘signifies that a prosecutor failed to prove his or her case beyond a reasonable doubt, not that a defendant is innocent’.Footnote 3 When Presiding Judge Cotte of the International Criminal Court (ICC) read out a public summary of the judgment acquitting Matthieu Ngudjolo Chui of war crimes and crimes against humanity, he defined an acquittal in similar terms:
finding an accused person not guilty does not necessarily mean that the Chamber considers him . . . to be innocent . . . [It] merely demonstrates that the evidence presented in support of the accused's guilt has not satisfied the Chamber “beyond reasonable doubt”.Footnote 4
However, in practice acquittals by ICTs often prove to be much more than a legal technicality and come with many challenges related to the special character of international crimes and the international criminal justice system. This article outlines the challenges that could follow an acquittal at the ICTs. First, we shall discuss how quite a number of acquitted individuals have reintegrated into society without any problems; some of them even benefitted from their status as ‘acquitted war heroes’. In the subsequent paragraphs, emphasis will be given to the problematic aspects of an ‘international acquittal’. We describe how many Rwandan acquitted persons consider that their status as a former accused person turned them into ‘international pariahs’. Next, we explain why and how a surprisingly high number of acquitted individuals see themselves confronted with subsequent criminal prosecutions. Finally, we address how a relatively large number of acquitted individuals have – so far in vain – demanded compensation for the, often excessively long, periods of time spent in detention. We conclude that the unique context in which international criminal trials take place, as well as the unique nature of international crimes, complicate life after acquittal at the ICTs and reflect on the possibilities of improving the current system.
Instead of developing an in-depth legal analysis, the aim of this article is to provide an explorative empirical overview of what happens to acquitted persons, identify the most pertinent challenges they face and discuss possible ways to solutions. The overview presented in the article can serve as the basis for further legal doctrinal or theoretical research on the effects of ICTs’ acquittals. We, however, intentionally abstain from taking any normative stance and from evaluating fairness of the presented challenges or their compatibility with applicable legal standards.
The article is based on an analysis of publicly available sources, such as case law, academic publications, policy papers, reports, and journalistic articles. This information is complemented with data from interviews with acquitted individuals themselves and officials of the International Criminal Tribunal for Rwanda (ICTR).Footnote 5 We focus on persons fully acquitted by the ICTY, ICTR,Footnote 6 and ICC after a trial.Footnote 7 Until April 2016 final judgments had been rendered against 173 individuals at the ICTY, ICTR, and ICC. Out of these, 33 persons (19.07 per cent) – 18 at the ICTY, 14 at the ICTR, and one at the ICC – were acquitted of all charges.Footnote 8
2. Life after acquittal
Persons acquitted by ICTs usually spend a long time in detention, often during a period in which their country of origin is massively changing. Arguably, anyone who has been detained abroad for a long time encounters some difficulties after returning to their home society, for example in finding a house or a job and reuniting with family members. Our exploratory research nonetheless demonstrates that a smooth transition to post-trial life for acquitted ICTs defendants is certainly possible, in particular for those individuals acquitted by the ICTY, who could return to the successor countries of the former Yugoslavia. In this region, acquittals are often perceived as evidence of ‘collective vindication’, which counters the general feeling of ‘collective stigmatization’.Footnote 9 Because of these perceptions some more prominent acquitted persons have even benefitted from their trials and subsequent acquittals. Take the example of the response to the acquittal of the Croatian General Ante Gotovina: Many Croats regarded his trial as an attempt to discredit their newly minted homelandFootnote 10 and Croatia spent millions of euros paying for his defence.Footnote 11 After his trial about 100,000 people greeted him upon his return home.Footnote 12 His acquittal signalled, in their eyes, the rebuttal of the ‘Stigma Hrvatska’ (Croatian stigma).Footnote 13 Mladen Markač, who was tried and acquitted together with Gotovina, suggested that their acquittal indicated that every Croat abroad could now say that their homeland had been liberated, ‘without the smallest stain on our reputation’.Footnote 14 Gotovina's hero's welcome went further than popular acclaim: He has been awarded two honorary citizenships, appears regularly on national media and his tuna farming business is in receipt of a credit of over €1,000,000 from the Croatian Bank for Reconstruction and Development. Footnote 15
Gotovina's positive reception and smooth integration is not exceptional. Ivan Čermak, the former advisor to Croatian President Franjo Tuđman and commander of the Knin Company, was a wealthy oil entrepreneur before the war. After his acquittal in 2011, he resumed his business and his assets are estimated at around €1,000,000.Footnote 16 In fact, virtually all other republics of the former Yugoslavia have their own acquitted heroes, who after a warm welcome – at least initially – reintegrated without many challenges. These include Macedonian Ljube Boškoski,Footnote 17 Bosnian Sefer Halilović,Footnote 18 and Kosovar Ramush Haradinaj.Footnote 19 Although high-profile Serbian acquitted persons have, to a much lesser extent, been celebrated as heroes, they too have been taken good care of by their government. After a sober arrival in Serbia,Footnote 20 former Serbian President Milan Milutinović allegedly accepted the benefits of his rights as the former president, which entitle him to 80 per cent of his former salary including an office, advisor, secretary, and an official car.Footnote 21 Former Chief of Staff Momčilo Perišić returned home in a government plane and was received by politicians, friends, and family. Arguing that his trial and acquittal removed the ‘curse of the Serbian people’, he said he planned to spend time with his family.Footnote 22
There are also examples of Rwandan acquitted persons who do not seem to have faced major reintegration issues. However, with the acquitted Rwandans the situation is incomparable, as they do not want to return to their home country, which is now ruled by their former adversary. They seek residence elsewhere. As will be discussed below, countries in general are not very eager to welcome those tried for genocide, even if acquitted. Nonetheless, the reintegration of Father Hormisdas Nsengimana, for example, who after trial continued his clerical life in an Italian monastery, illustrates that a relatively smooth transition to a post-trial life is also possible for some Rwandans.Footnote 23
By contrast, lower-level ICTY acquitted persons typically face some challenges in post-trial life, although it is not always obvious that these stem from the trial and subsequent acquittal. Dragan Papić, for example, used to be a forest ranger before he joined the Croatian Defence Council (HVO).Footnote 24 In 2010, ten years after his acquittal, he informed a journalist that he was unemployed and together with his wife and three children was living on the edge of existence.Footnote 25 This situation is not unusual since many more former soldiers not indicted by the ICTY are facing similar problems in finding a place in the relatively poor and corrupt post-war context of the former Yugoslavia.Footnote 26 At the same time, there are also acquitted persons who encountered problems which directly relate to their trials. Zejnil Delalić, for instance, claims that the almost two years he spent in detention at the ICTY resulted in the collapse of his business.Footnote 27 A recurring issue is the stigma, which stems from having been prosecuted for war crimes. Former HVO member Mirjan Kupreškić, for example, returned to his Bosnian hometown, Vitez, where some townspeople still view him as a war criminal.Footnote 28 A former Captain in the Serb-dominated Yugoslav People's Army (JNA), Miroslav Radić, voiced similar complaints. Acquitted in 2007, he complained in a 2008 article that the world still saw him as a member of the notorious ‘Vukovar Three’, and that his two children continued to carry this burden.Footnote 29 The earlier mentioned Bosnian politician Sefer Halilović filed a lawsuit against a political opponent for calling him a ‘war criminal’ in 2013.Footnote 30 Although the stigma in the above cases may have affected the acquitted persons’ wellbeing, it has not become apparent that this has seriously hampered their reintegration.
Finally, there are acquitted persons who have encountered challenges which directly relate to the unique nature of international crimes and the unique context in which international criminal trials take place. In particular, Rwandan acquitted persons can be considered ‘international pariahs’. From the very first day after their ‘not guilty’ verdicts, they have been confronted with serious challenges in finding a country to reside in. The second problem that acquitted persons from all ICTs face is that they have been, or may in the future be, confronted with new indictments by domestic prosecutors. Finally, a number of acquitted persons have – so far in vain – requested compensation for the excessively long periods of time they spent in detention. In the remainder of the article, we will more elaborately discuss these three challenges.
3. International pariahs
The above section shows that the persons acquitted by the ICTY often face no major problems in returning to their country of origin and residing there in relative safety. Ever since the first ICTR acquittal, however, the ICTR Registrar has been heavily occupied with the task of relocating the acquitted individuals. The acquitted persons themselves do not want to return to Rwanda due to fears for their personal safety, and only a few countries have stepped forward to accept them.Footnote 31 Most illustrative in this regard is the fate of André Ntagerura, the former Rwandan Minister for Transport, who has been living in a safe house paid for by the UN in Arusha, Tanzania, since his acquittal in 2004. He claims that returning to Rwanda is impossible, while relocation to other, suitable countries is blocked because of legal or political obstacles.Footnote 32
The relocation of the first individual acquitted at the ICTR in 2001, Ignace Bagilishema, has led to problems. The Registry had approached a number of countries to temporarily host him during his appeal, but to no avail. France finally agreed to do so by stating that ‘this decision was taken in the spirit of cooperation, which France has always had towards the Tribunal, also in the superior interests of international criminal justice and its fundamental principles, which includes the presumption of innocence’.Footnote 33 Only a few countries – France included – seem to have deemed these interests and principles important enough to assist the Registry in hosting any of the 13 ICTR acquitted persons who were still to come. As of November 2015, eight acquitted persons were still living in a safe house in Tanzania because they had not been able to find a suitable country willing to host them.Footnote 34 Most of them wished to be reunited with their families, who often resided in Europe or in North America.Footnote 35 Therefore, it comes as no surprise that in his Final Report to the UN Security Council, the ICTR President noted that ‘the Registrar's function of relocating [those acquitted and released] presented one of the most significant challenges’.Footnote 36
In practice, the acquitted persons themselves are responsible for finding a host country. Although the ICTR/MICTFootnote 37 and the UN provide logistical and diplomatic support whenever possible,Footnote 38 they cannot force countries to host acquitted individualsFootnote 39 or – the other way around – force the acquitted persons to go to certain countries. Past invitations from African countries have been turned down by the acquitted persons themselves. Seventy-five-year old Justin Mugenzi, a former Minister of Trade and Industry, considered going to an African country to be akin to a deportation or a form of imprisonment: ‘How do you expect me to start life? Are you going to give me a hoe and a machete and send me to the forest of Ivory Coast?’Footnote 40 Since the acquitted individuals lack travel documents, they cannot move around freely. Only a few states accept asylum requests via their embassies.Footnote 41 Even those countries can exclude them from refugee protection on the basis of Article 1(f) of the Refugee Convention when there are ‘serious reasons for considering’ that someone has committed serious crimes, war crimes, crimes against humanity and genocide.Footnote 42 The ‘serious reasons’ threshold in refugee law is much lower than the ‘beyond reasonable doubt’ threshold in criminal law, which explains why acquitted individuals may still be excluded from refugee protection even after acquittal by an ICT.Footnote 43
The acquitted persons sometimes request family reunification instead. This strategy, however, has not always proven to be effective.Footnote 44 The French Embassy in Tanzania, for example, refused to grant a visa to Gratien Kabiligi when he wanted to visit his family in 2010. The French Minister of Foreign Affairs denied him a visa since, ‘M. Kabiligi's presence in France would reinforce Rwandan authorities’ concern that France hosts “alleged génocidaires” and “Hutu power” members’, which would affect diplomatic relations with Rwanda and threaten the public order.Footnote 45 An ICTR official noted that another reason for France's reluctance was that it felt it had already done its ‘duty’ by accepting one of the acquitted Rwandans.Footnote 46 In more diplomatic language, this was confirmed during a 2013 UN Security Council meeting, where the French representative pointed out that his country ‘had been one of the first to accept acquitted persons’ and that he hoped ‘other States would follow suit’.Footnote 47 The acquitted persons who eventually manage to find a host country will often have spent years in the safe house before reuniting with family members because of lengthy legal procedures or diplomatic negotiations.Footnote 48
The ICTR had a duty to ensure the welfare of acquitted persons until their relocationFootnote 49 – a job which the Registry was taking seriously.Footnote 50 It rented a villa-like, two-storey building just outside Arusha, which the acquitted persons shared with ICTR convicts who could not – much for the same reasons as the acquitted persons – find a host country after having served their sentence.Footnote 51 The house is fenced and two armed guards patrol the place.Footnote 52 According to a representative of the Registry, the ICTR also provided the safe house residents with everything that is ‘needed and considered reasonable’.Footnote 53
In practice this means that the acquitted persons are provided with food, medical care, housing, and two staff members who act as cooks and cleaners. The safe house residents have Internet access, phones and phone credit, a television, access to language classes and the ICTR library. There is one driver and a car available for all of them. On occasion, the ICTR subsidized travel costs to Dar Es Salaam to visit embassies for visa applications.Footnote 54
At the same time, the acquitted men are also subject to many limitations. They have no right to work and cannot undertake studies.Footnote 55 As the Rwandan government has confiscated all their assets, they cannot afford legal representation to assist them in obtaining residence permits.Footnote 56 These men have no official status in Tanzania and consequently their freedom of movement is limited. As an ICTR official pointed out: ‘Their legal status is that they have no legal status.’Footnote 57 The only way in which the safe house residents can identify themselves is by showing their plastic ICTR identification cards, which they use for entering the ICTR library.
The question arises: why has Tanzania never attempted to deport the illegally residing acquitted persons to Rwanda? In their ‘SOS’ call to the UN, the acquitted persons themselves claim that the country is not safe to return to. Referring to street protests in reaction to their acquittals, criminal proceedings against political opponents, and plots to kill critics of the current regime, they fear mock trials or being targeted by victims or the Rwandan government.Footnote 58 At the same time, in 2011 the European Court of Human Rights (ECtHR) ruled that Sweden could extradite an alleged Rwandan génocidaire to be prosecuted in Rwanda. The Court held that there was no reason to fear persecution or ‘a flagrant denial of justice’.Footnote 59 Over recent years, Canada and a number of European countries have extradited alleged génocidaires to Rwanda and the ICTR also transferred a number of cases to Rwandan authorities.Footnote 60
Given these extraditions and case referrals of suspected génocidaires to Rwanda, it might be difficult for acquitted persons to uphold the claim that returning to Rwanda is not safe. Arguably, European states require more safeguards before extraditing Rwandan suspects to stand trial in Rwanda than would the Tanzanian government if it were to decide to deport the acquitted Rwandans. While European states can only deport or extradite an individual if this does not violate Article 3 of the European Convention for Human Rights (ECHR) (prohibition of torture, inhumane or degrading treatment) and, in exceptional circumstances, Article 6 of the ECHR (in case of a flagrant denial of a fair trial),Footnote 61 Tanzania would be less constrained. Coupled with the fact that in April 2014 the Rwandan Minister of Justice invited the acquitted individuals to come back in the framework of the ‘come and see’ program, it may become even more difficult for the acquitted to claim that they are unable to return.Footnote 62
While Tanzania has, so far, not publicly shared any plans to deport the ICTR acquitted to their country of origin, the Netherlands – the host state of the ICC – has taken a more proactive approach in dealing with the individuals acquitted by the ICC. In December 2012, the ICC for the first time acquitted a defendant, the former militia leader Mathieu Ngudjolo Chui.Footnote 63 Immediately after his release, Ngudjolo requested asylum in the Netherlands.Footnote 64 Because he had made compromising statements about the President of the Democratic Republic of Congo (DRC), Joseph Kabila, he feared persecution upon return to the country. After Ngudjolo spent more than four months in an immigration detention centre, a Dutch court ruled that he was to be released and awarded him €2,160 in compensation for unlawful immigration detention.Footnote 65 However, in July 2013 the Dutch immigration authorities (Immigratie- en naturalisatiedienst, IND) excluded Ngudjolo from refugee protection on the basis of Article 1(f) of the Refugee Convention. In October 2014 the Council of State upheld this decision and held that Ngudjolo's deportation to the DRC would not violate Articles 3 and 6 of the ECHR.Footnote 66 During his appeal proceedings at the ICC, Ngudjolo stayed in a hotel in The Hague, where, according to his lawyer, he spent ‘his days reading, praying, watching TV and following the news’.Footnote 67 In February 2015, the ICC Appeals Chamber confirmed the acquittal.Footnote 68 Thereafter, Ngudjolo unsuccessfully asked for a humanitarian visa to Switzerland and was expelled to the DRC in May 2015, where he has reportedly been living since in the capital Kinshasa.Footnote 69
The above discussion illustrates how the unique institutional context in which international criminal trials take place, as well as the unique nature of the alleged crimes and related political challenges can seriously complicate the reintegration process for acquitted persons. The vast majority of individuals tried by ICTs are detained during trial in a country in which the respective court is located. After an acquittal, returning to the country of origin may not be an option as long as it is ruled by their former adversaries with a questionable human rights track record. The serious nature of the alleged crimes allows third countries’ governments to exclude them from refugee protection on the basis of Article 1(f) of the Refugee Convention. In addition, having been accused of committing international crimes in itself carries a stigma. The widely publicized international trials and at times the continuous negative propagandaFootnote 70 make the acquitted persons notorious individuals (allegedly) involved in gross human rights violations. Governments of third countries are hesitant to openly host such individuals. This would arguably not win votes from their electorates and could potentially worsen the relationship with the country of origin of the acquitted persons and cause negative reactions from the locally-based victims’ groups. Although not found guilty, many persons acquitted by the ICTs can, as a consequence, be considered as ‘international pariahs’.
4. Subsequent prosecutions
The impossibility of finding a country of residence is not the only challenge that the acquitted individuals may face. They may also experience, or be threatened with, subsequent prosecution for offences allegedly committed in the same period and territory over which the ICTs have jurisdiction. For example, after his acquittal by the ICTR, in 2007 the Court of First Instance of Rusizi tried in absentia the Rwandan former préfecte Emmanuel Bagambiki and convicted him of rape during the genocide.Footnote 71 Similarly, the persons acquitted by the ICTY have been indicted in the former adversary countries. For example, Croatia issued a request to extradite Miroslav Radić from Serbia,Footnote 72 while Serbia asked Bosnia to extradite Naser Orić,Footnote 73 which also led to his recent arrest by Switzerland.Footnote 74 Orić was, in the end, extradited to Bosnia, where in September 2015 the State Court confirmed an indictment against him for war crimes against prisoners of war allegedly committed in the Srebrenica area in 1992.Footnote 75 Although the criminal investigation against Fatmir Limaj publicly announced by Serbia's War Crimes ProsecutorFootnote 76 never resulted in an extradition request, he was arrested pursuant to an order by the District Court of Pristina, operating under the European Union Rule of Law (EULEX) Mission in 2011.Footnote 77 Similarly, Kosovar Ramush Haradinaj, who had been tried, acquitted, retried, and again acquitted by the ICTY,Footnote 78 was in June 2015 arrested by Slovenian authorities acting upon a Serbian arrest warrant issued for war crimes during the 1998–99 Kosovo conflict. A few days after his arrest, Haradinaj was released because, according to the Slovenian Minister of Foreign Affairs, ‘all the charges in the arrest warrant have been addressed by the Hague Tribunal’.Footnote 79 With the recent establishment of a specialized court to prosecute Kosovar war criminals, however, it is not excluded that Haradinaj and possibly also other Kosovars acquitted at the ICTY will face subsequent prosecutions.Footnote 80 Finally, Ngudjolo Chui, who was acquitted by the ICC, also has reasons to fear new prosecution in the DRC. He claimed that a Congolese non-governmental organization had asked the DRC prosecutor to start a case against him.Footnote 81 His fears are even more understandable if one takes into account that before he was transferred to The Hague, Ngudjolo had already been prosecuted by a Congolese court in 2004 for murder allegedly committed during the Congolese conflict.Footnote 82 In addition, his former co-accused, Germain Katanga, who was convicted by the ICC and meanwhile completed his sentence, was ultimately not released from prison in Congo, where he was serving his ICC sentence. The Congolese authorities charged him with a number of offences, not adjudicated at the ICC, allegedly committed between 2002 and 2006.Footnote 83
Given all the above, it is not surprising that the Arusha safe house residents have expressed fears of facing future prosecutions in Rwanda. Former Rwandan businessman Protais Zigiranyirazo must remember the statement by Rwanda's Prosecutor General in reaction to his acquittal: ‘Whatever procedural mistakes were made, the verdict is deeply disappointing. If “Monsieur Z” could be found innocent, how is anyone going to be found guilty? This decision attacks the very roots of trying to find justice for the genocide’.Footnote 84 Similarly, in reaction to the acquittal of Bagambiki and Ntagerura, Rwandan Prosecutor General Jean de Dieu Mucyo made clear that he still believed them to be guilty: ‘There was clear evidence that the two were among the leaders of the genocide and that many people are dead because of their actions.’Footnote 85
This demonstrates that an ICT acquittal does not free someone from (the fear of) further prosecution. From a strictly legal perspective, such follow-up prosecutions often do not violate the ‘double jeopardy’ or ne bis in idem principle, which holds that no one shall be tried or punished again for an offence for which they have already been convicted or acquitted.Footnote 86 Ne bis in idem is a concept based on fairness to the accused and a desire for finality in criminal cases.Footnote 87 In the international criminal justice system, where international and domestic criminal courts are working side by side prosecuting international crimes, the so-called ‘downward vertical effects’ of the principle, i.e., the possibility for domestic prosecution to take place after a final decision by an ICT, are of particular interest.Footnote 88 According to Carter, domestic prosecution for the same crime and the same underlying conduct is possible only and exclusively on the basis of new evidence.Footnote 89 In practice, it is not inconceivable that domestic prosecutors can identify new evidence related to the same conduct. Compared to their international counterparts, they are usually better equipped, in terms of institutional capacity, to obtain co-operation from their own state authorities and to gain access to potential new incriminating evidence. In addition, subsequent domestic prosecutions may relate to other incidents of international crimes committed during the same conflict or persecutory campaign than those prosecuted at the ICTs. Limited jurisdiction, limited resources, and the sheer scale of atrocities often do not allow ICT prosecutors to charge the entirety of the possible criminal behaviour. For that reason, and in order to secure ‘successful’ prosecutions, they often purposefully limit the temporal and spatial scope of their investigations. Ngudjolo's case, in particular, is illustrative in this regard. The prosecutor charged him with crimes committed during a single incident on a single day: the attack on the village of Bogoro on 24 February 2003.Footnote 90 During his trial, no interest was taken in any other instances on which Ngudjolo may have committed crimes in the course of the extremely brutal and long civil war in the DRC. Taking this into account, it is quite understandable if a domestic prosecutor starts a criminal case based on relevant information about Ngudjolo's alleged involvement in atrocities taking place days, weeks, months, or years before or after 24 February 2003.Footnote 91 This is exactly what happened in the case of Naser Orić. Following his acquittal at the ICTY, which was based on a limited number of incidents charged in the ICTY indictment, his lawyers attempted to halt the prosecution of their client at the State Court in Sarajevo. They asked the MICT to order the Bosnian authorities to permanently discontinue the proceedings for being in breach of the ne bis in idem principle.Footnote 92 The MICT president dismissed the motion arguing that ‘the murder charges in the BiH Indictment fundamentally differ from the murder charges contained in the ICTY Indictment with respect to the alleged victims and the nature, time, and location of Orić’s alleged criminal conduct’.Footnote 93 The defence argued for a broader interpretation of the ne bis in idem principle so that the principle be expanded to, ‘situations where the acts alleged form part of the same alleged course of conduct’, or the ‘same military activities’.Footnote 94 The broader interpretation of the ne bis in idem principle was rejected and the subsequent domestic prosecutions were given a green light.
Following a strictly legal line of reasoning, one could argue that as long as fundamental legal principles relating to fairness, presumption of innocence, and ne bis in idem are taken into account, successive prosecutions of suspected war criminals or génocidaires are not problematic and even desirable. Given the heinous nature of the crimes committed and the importance of fighting against impunity, the international community and domestic states should try to take every necessary step to hold alleged perpetrators accountable. At the same time, however, the situation raises some thorny political and normative issues. Under the current system of international criminal justice, it is perfectly possible that every ICT acquittal (or conviction, for that matter) is directly followed by an investigation and/or an extradition request from a domestic prosecutor who fervently wishes to ‘complement’ the job of an ICT prosecutor. This is, in particular, problematic if domestic war crimes prosecutors use their position and resources for politically motivated prosecutions of individuals who have already been acquitted by ICTs, as a means to ‘settle accounts’ with their former adversaries. It is certainly very difficult to ascertain whether the issuance of an indictment is politically motivated. The fact of the matter, however, remains that war crimes indictments, prosecutions, trials and verdicts are regularly discussed and often knowingly misinterpreted by local politicians to serve their political agendas. For example, when Bosnian war hero Naser Orić was acquitted by the ICTY, thousands of fans received him at Sarajevo Airport.Footnote 95 However, Serbia's National Council for Cooperation with the ICTY issued a statement that the verdict ‘cannot contribute to either achieving justice and truth or to regional reconciliation’.Footnote 96 Serbia's War Prosecutor's arrest warrant, which followed in 2014, caused significant tension in the already-uneasy relationship between Serbia and Bosnia. While Orić argued that the Serbs, ‘hope to find a way to balance the crimes committed in 1992–1995’, Bosnian President Izetbegović added that Serbia, ‘should reconsider its actions towards Bosnian citizens’ if it, ‘hopes to become an EU member’.Footnote 97 The fact that Serbia and Bosnia did not have an extradition agreement for international crimesFootnote 98 may only strengthen the perception of the arrest warrant as a politically motivated move by the Serbian prosecutor to ‘make things even’ among the former warring parties, in particular considering that the population in Serbia typically sees the ICTY as a court biased against Serbs.Footnote 99 The fact that the recent indictment against Orić, confirmed at the State Court in Sarajevo, ignited opposing emotions from among the former warring parties is further evidence of the problematic context in which war crimes prosecutions by domestic courts take place.Footnote 100 The large-scale character of international crimes, combined with an often very restricted focus of international prosecutors on a limited number of incidents, might theoretically result in a never-ending cycle of prosecutions. Given the volatile, politically and emotionally charged environment in many post-conflict societies, such prosecutions in the name of fighting impunity and achieving justice might, in practice, serve as a cloak to pursue other, less noble, aims. If politically motivated, the subsequent prosecutions might arguably bring more harm than good and further fuel the already existing tensions among the former adversaries.
5. Compensation
Individuals acquitted by the ICTs often spend extremely long periods in detention during the pre-trial and trial stages. The average time spent in detention at the ICTs (i.e., time between the transfer to a Tribunal and the release of a defendant from Tribunal custody) is six and a half years (78 months).Footnote 101 During this period, the defendants are subject to the stress of criminal proceedings, cannot work, and have limited contact with their family members. As Sznadjer argues, ‘those defendants that are not ultimately convicted pay a high price for the Tribunal's detention policy during trial’.Footnote 102 For these reasons, some of the acquitted persons feel that they deserve some form of compensation. As one of the Rwandan acquitted persons living in the Arusha safe house stated:
How much do you compensate a person you deprived of his freedom for fourteen years, you cut off from his family life, you prevented to educate his children? How much do you compensate for personality assassination when you call me a génocidaire without any ground, how much do you compensate for making me bear the responsibility of organizing genocide by convicting me wrongly to a heavy punishment of . . . years in jail?Footnote 103
A number of scholars have already examined the implications of the right to compensation at the ad hoc tribunals.Footnote 104 They all conclude that while many countries accept that acquitted individuals should generally be compensated for the deprivation of liberty and economic loss suffered as a direct result of the proceedings against them, no such right is provided for in the ICTs’ Statutes or Rules of Procedure and Evidence (RPE).Footnote 105 The only exception is Article 85(3) of the Rome Statute, which is unprecedented in international criminal law and international human rights law,Footnote 106 in that it provides for a right to compensation for the acquitted accused. According to the ICC Statute, however, the compensation award still remains a discretionary decision, insofar as Article 85(3) does not stipulate an enforceable right for compensation for an acquitted individual. The language of the provision suggests that under normal circumstances no compensation will be paid to acquitted persons. It is only in exceptional circumstances, where there has been ‘a grave and manifest’ miscarriage of justice, that the ICC judges might decide to award compensation. The rejection of Ngudjolo's compensation request based on Article 85(3) points to the likelihood that the ICC judges will use a very high threshold as part of the ‘grave and manifest miscarriage of justice’ test for awarding compensation.Footnote 107
The lack of formal compensation schemes at the ICTY and ICTR has not prevented acquitted persons from trying to obtain compensation at the tribunals or elsewhere. In 2001, the former Bosnian army commander Zejnil Delalić requested that the ICTY compensate him for the defence expenses he incurred, while Zoran and Mirjan Kupreškić unsuccessfully demanded compensation for the mental and physical harm they suffered while in detention, financial losses (specifically, loss of earnings, reduced possibility of career advancement, and costs associated with travel by their family to The Hague), and for the damage to their reputations as a result of detention.Footnote 108 In 2012, the ICTR turned down a compensation claim by Protais Zigiranyirazo.Footnote 109 Despite the fact that the Trial Chamber acknowledged that the trial judgement contained grave errors of fact and law, the compensation was to be granted only in cases of grave and manifest miscarriage of justice. In making this conclusion, the Trial Chamber referred to Article 85(3) of the Rome Statute as reflecting customary international law. As grave miscarriage of justice was not demonstrated in Zigiranyirazo's case, the Chamber decided not to award him compensation, since this might ‘open the floodgates to an unmanageable host of compensation claims’.Footnote 110
With the ICTs providing no compensation at all, some ICTY acquitted persons submitted compensation claims to their own governments. In essence, their argument was that the compensation should be borne by their respective governments since trials at the ICTY had been enabled by their co-operation with the Tribunal. For example, Delalić claimed in 2004 to have sued the state of Bosnia and Herzegovina.Footnote 111 We were unable to find out whether this has led to any results. In 2010, a former Croatian Defence Council (HVO) member, Dragan Papić, who stayed for over two years in the ICTY detention after he voluntarily surrendered in 1997, publicly complained that ten years after the trial, he had not received any form of compensation from the Croatian government.Footnote 112 He explained how, in the interest of the new Croatian state, he voluntarily surrendered to the ICTY after an advisor of President Tuđman told him that Croatian co-operation with the ICTY would generate two loans of hundreds of millions of US dollars for Croatia. He was promised that the Croatian government would take care of him and his family members and he felt cheated that the government had not kept its word. His complaints, however, generated some action. A local politician organized a charity concert in the Split Arena of which the revenues of 10,000 Kunas (€1,250) went to Papić.Footnote 113 Similarly, former Serbian army officer Miroslav Radić, who voluntarily surrendered to the ICTY in 2002 and spent more than four years in detention before being acquitted, has even more fervently tried to obtain compensation. In 2011 the Belgrade High Court rejected his 50 million Dinars (€400,000) claim.Footnote 114
A convicted individual is, in a way, ‘compensated’ for the time spent in pre-trial and trial detention by reducing the sentence to be served by the period he/she has already spent in detention during trial,Footnote 115 but the acquitted individuals do not have access to any sort of financial compensation. Similar to the challenges identified above, the fact that persons acquitted by ICTs are detained for such lengthy periods and not compensated afterwards can be explained to a large extent by the special nature of the crimes and the context in which the trials take place. The complexity of the cases causes lengthy trials. In practice, a vast majority of defendants remain in detention during trial. Since ICTs have no police force of their own, they have no direct means to re-arrest individuals in case they are granted provisional release and do not want to voluntarily return to attend their trials.Footnote 116 The reluctance of the ICTs to provide compensation might be explained not only by their inability to do so given the lack of any legal basis for compensation in their statutes, but also by other factors such as budgetary constraints and the criticism that the Tribunals are already too costly. The idea that, in the case of the ICTY and ICTR, the UN would have to ask its member states for additional funds to cater for any compensation claims is not realistic. In addition, lack of oversight by a human rights body, making the ICTs the ultimate arbiters on these matters, is arguably also one of the peculiarities of the international criminal justice system that explains the absence of any meaningful compensation schemes at the ad hoc Tribunals.
6. No easy solutions
It has been argued that the international community, by creating institutions with the power to interfere with the human rights of individuals, has a positive obligation to help acquitted individuals in some respect.Footnote 117 There are, however, no easy solutions to overcome the above-described challenges. When it comes to compensation, Michels shared a specific proposal in 2010 on how to compensate the individuals acquitted by the ICTY for the time spent in detention.Footnote 118 Under this scheme, compensation would be awarded, in the interests of justice, to a person who has been released from detention following a final acquittal by the ICTY. In determining the amount of compensation, judges may consider the actions of the acquitted person that causally contributed to the length of detention, provided that it was reasonably foreseeable that their actions could lead to or prolong detention. In line with the amount awarded in the Netherlands in similar circumstances, Michels suggested compensation of €70 a day.Footnote 119 He argued that the costs would be relatively low. A retroactively implemented scheme to compensate all individuals acquitted by the ICTY before 2010 would cost approximately 0.34 per cent of the ICTY's 2008–2009 budget.Footnote 120 That said, however, it should be taken into account that the individuals acquitted by the ICTR (and also by the ICC) typically spent much longer periods in detention. Granting compensation of €70 per day spent in detention would mean that persons who spent ten years in detention, which was not exceptional at the ICTR, would have to receive €255,000. Given the current concerns about the costs of international criminal trials, this is a very substantial amount. In addition, victim interest groups would most likely criticize such an amount as being disproportionately high. In order to come up with a just compensation scheme, the interests of the acquitted person, the interests of justice, as well as the pragmatic considerations of what is realistically possible and desirable should be taken into account.
In any case, it will be much more difficult to think of a system which promotes the relocation of non-returnable acquitted individuals. Translating political will into the provision of financial means for a compensation scheme is arguably much easier than opening one's border to acquitted defendants, who might be still regarded as war criminals or génocidaires, irrespective of the acquittals. In particular, providing the right of residence or asylum to former government officials or high-ranking generals cleared of international crimes charges, who may still be viewed as most responsible for the past atrocities in their country of origin, could damage diplomatic relations between that state and receiving countries. Minor improvements to the system might, however, improve the position of such individuals.
For example, ICTs could continue offering legal aid to the acquitted persons who face problems finding a host country, for the purpose of facilitating their efforts to obtain visa or residence permits. Secondly, similarly to sentence-enforcement agreements, states could be asked to sign ‘acquittal agreements’ expressing their commitment to hosting non-returnable acquitted individuals. In 2009 Xavier-Jean Keïta, Principal Counsel of the ICC's Office of Public Counsel for Defence, warned that the ICC should not be faced with the ‘Rwandan syndrome’.Footnote 121 At the most recent Assembly of States Parties in November 2015, the ICC Registry reported that it had drafted a framework agreement (similar to framework agreements governing the enforcement of sentences) that will be applicable to the relocation of individuals fully acquitted by the ICC, who are unable to return to their home country. The Registry invited states to consider the agreement and contact the ICC, if interested.Footnote 122
The problem of subsequent domestic prosecution could, theoretically, be alleviated if ICT prosecutors investigated and charged all of the possible crimes the accused may have committed. From a practical point of view, however, such an approach would hardly be feasible. The courts are already criticized for being too expensive and slow. Given the problematic political context, in which subsequent domestic prosecutions take place, it is even questionable whether such an approach would result in workable solutions in practice. The recent developments in the Katanga case illustrate that the issue of subsequent prosecutions is not limited to acquittals.Footnote 123 The possibility of endless prosecutions, or the threat thereof, may simply be inherent to any system of international criminal justice.
7. Conclusion
Whereas a conviction by an ICT confirms that atrocities have been committed and that a defendant is responsible, an acquittal sends a much more ambivalent message. It means that the court has not established beyond reasonable doubt that the accused is responsible for the crimes he has been charged with. However, this means neither that no crimes have been committed, nor that the acquitted person is necessarily innocent. While ICTY President Meron stated that acquittals show the health of the international criminal justice system, this article argues that the way in which the international community deals with, or rather neglects, acquitted individuals shows the chronic ailment of that very system.
Approximately one out of five accused before the ICTY, ICTR and the ICC has been found not guilty on all charges and has been set free. Whereas acquittals by national courts often bring some sort of closure and compensation schemes put in place serve to assist the acquitted defendants in resuming a normal life, defendants acquitted by the ICTs regularly encounter serious reintegration challenges. Some of the persons acquitted by the ICTY may benefit from their status as former defendants, but for a considerable number of persons acquitted by the ICTY and the ICTR the opposite is true. They continue to carry the stigma of having been tried by an ICT and often face problems with relocation after trial because of that. Given the large-scale character of international crimes and the typically limited focus of international prosecutions, they can, in principle, be confronted with new prosecutions anytime and anywhere, which may be instituted by regular or specialized domestic war crimes prosecutors. Due to the complexity of their cases and the gravity of crimes alleged, defendants have often spent very lengthy periods in detention with no way to acquire compensation for their economic and personal losses. In contrast to the ad hoc tribunals, the ICC Statute contains a provision on compensation in cases involving grave and manifest miscarriage of justice. However, given the narrow scope and the intended exceptionality of this provision, it remains to be seen how it will be applied in practice.
Consequently, taking all these challenges together, for many individuals being acquitted by an international criminal tribunal means winning a Pyrrhic victory. Individuals acquitted in domestic systems, who are prosecuted for crimes other than international crimes, may face similar problems. For example, in the case of organized crime prosecutions, acquitted individuals are often also confronted with subsequent investigations and trials. Individuals tried, and acquitted of, paedo-sexual acts typically also carry a stigma, which complicates reintegration. Likewise, many countries detain suspects for years before and during trials without providing them any compensation. However, this article suggests that the unique nature of international crimes, and the institutional context in which international criminal trials take place, make acquitted persons particularly susceptible to such predicaments. By definition, ICT acquittals mark the end of complex, often very lengthy, widely-broadcasted, and politically sensitive trials, in which defendants stand accused of committing the most heinous crimes known to mankind. The verdicts of not guilty issued by a remote court with little legitimacy among the local community are bound to be heavily criticized by victim groups. One could argue that the post-acquittal challenges for the individuals concerned are not problematic in legal terms. As long as they operate in line with their national legislation and international legal standards, states are free to deny entry to the acquitted international defendants. Similarly, as long as this does not violate the ne bis in idem principle and other human rights standards and is in accordance with the applicable criminal law, domestic prosecutors are free to start subsequent prosecutions against them. In the absence of oversight by any human rights body, the ICTs are free to decide that long periods of pre-trial detention are acceptable without granting any compensation. That said, the combined effects of the actions of these different actors could lead to very questionable outcomes. In theory, it is possible that an accused who has never been convicted spends 20 or more years in detention without having been compensated, as a result of consecutive international and domestic prosecutions, after which (s)he ends up in a safe house for another ten years or more, without being able to work, enjoy family life or be politically active. It is another reminder that what is legally possible may not necessarily be just, fair, or even reasonable.
