Spandau Revisited: The Question of Detention for International War Crimes

Abstract

Drazen Erdemovic. The name may be unfamiliar to many outside the former Yugoslavia. The name will surely be unknown by most people outside the international community and those committed to the universal protection of human rights through criminal prosecution. Drazen Erdemovic is a confessed killer. Drazen Erdemovic has confessed to killing somewhere between seventy and one hundred unarmed Muslims in a mass execution as a member of the Bosnian Serb army in July 1995. In this regard, he is the first convicted defendant to stem from the International Criminal Tribunal for the former Yugoslavia (ICTY) established by the United Nations in 1993. He is also the first ICTY defendant to have appealed his conviction and to have received a final judgment and sentence from the Tribunal.

Beyond his gruesome biography developed at Srebrenicia, Mr. Erdemovic will also be remembered for his role as a catalyst. On March 5, 1998, the ICTY sentenced Drazen Erdemovic to five years in prison for committing war crimes in the former Yugoslavia. This judgment was truly monumental as the ICTY would have to consider for the first time since its inception precisely where it would send a prisoner to serve his final sentence. Such decision had not been contemplated by an international tribunal since the vanquished defendants of World War II were housed in the Spandau and Sugamo prison facilities located in the home countries of each of the World War II defendants. In fact, at the time Drazen Erdemovic was sentenced, only two countries (Italy and Finland) had reached agreement with the Tribunal enabling ICTY prisoners to be incarcerated outside the detention facilities of the Hague. Thereafter, Norway and Sweden, in April 1998, and February 1999, respectively, joined Italy and Finland as possible hosts for ICTY prisoners.

In the pages that follow, the question of detention as it relates to the ICTY, the International Criminal Tribunal for Rwanda ("ICTR") and the forthcoming International Criminal Court ("ICC") will be addressed. As these tribunals continue to hand down guilty verdicts and accompanying sentences, the issue of detention can no longer be avoided or delayed. To date, the ICTY has issued twenty-five public indictments implicating sixty-six individual defendants, supervised the arrest and detention of forty individuals, and convicted seven men with potential sentences ranging from two and one half to forty years. Likewise, twenty-eight public indictments have been issued by the ICTR against forty-eight individuals. As of December, 1999, thirty-eight individuals remain in ICTR custody at the temporary United Nations detention facility in the Arusha prison. 20 And, the ICTR has issued guilty verdicts against five separate defendants with pronounced sentences ranging from fifteen years to life imprisonment.

Through sheer necessity - the impetus having been provided by Erdemovic: the international community that has maintained and supported these war crimes Tribunals must now come together to determine where these individuals will serve their respective sentences once convicted. The legitimacy of the ICTY and ICTR requires that the issue of detention be as fully considered and as fairly implemented as every other procedural and evidentiary issue previously addressed by these Tribunals. Their much-anticipated successor institution, the ICC, will be waiting, watching and looking for guidance. Their predecessors, the Nuremberg and Tokyo Trials are but a distant memory - still plaguing the international community with claims of "victors' justice," imperfect sentencing and partisan politics.

The time has come for detention decisions in international criminal law. We are on the verge of a new millennium. Finally, the world community has concrete plans for a permanent international criminal court. And yet, we have no idea, no plans and certainly no existing blueprint for precisely where we intend to incarcerate the individuals that we, as an international community, convict. Drazen Erdemovic, a name unfortunately relegated to historic significance, has forced the issue.

Keywords: international law, ICTY, ICTR, International Criminal Court

JEL Classification: K14, K33, N40