On 4 February, the Hague Tribunal for the Former Yugoslavia [ICTY], transformed into the ominously sounding “Residual Mechanism,” in disregard of its established practice, declined to grant early release to Serbian prisoner Milan Martić. In the final phase of the conflict in the former Yugoslavia, Martić was the leader of the Serbian minority in the Krajina region of Croatia. Having completed two-thirds of his thirty-five-year sentence, Martić was under the impression that his petition for early release was opportune and would be granted. He had been accused of a variety of offences, most of them standard fare in Tribunal proceedings: murder, persecution on political, racial and religious grounds, imprisonment, deportations, the plunder, etc. But what stands out in Martić’s indictment is the charge that after the start of the Croatian offensive against Krajina Serbs in the summer of 1995 he ordered his forces to fire missiles at the Croatian capital of Zagreb, allegedly killing and injuring a number of civilians.

That is essentially the same kind of violation of international humanitarian law for which Ante Gotovina, Martić’s opponent who commanded the attacking forces on the Croatian side, was put on trial by the same Hague Tribunal. Gotovina however, unlike his Serbian counterpart Martić, was never in the situation of petitioning the Tribunal for early release. The reason for that is that he was acquitted, notwithstanding that the military operation he directed resulted in the expulsion of a quarter million Serb residents, the strafing of their refugee columns by his military aircraft, and the cold-blooded slaughter of 2,000 Serb civilians as they were fleeing desperately from Gotovina’s advancing columns.

This marks the Tribunal’s second refusal in the last several months to grant an early release petition, after rejecting a similar request filed by Gen. Radislav Krstić. Coincidentally, both prisoners whose petitions were denied just happen to be Serbs. And notably, never before that in the Tribunal’s three-decade history had an early release petition submitted by any prisoner who had served two-thirds of his sentence been denied. During the aforementioned period the Tribunal released routinely nearly a hundred convicted ICTY prisoners of diverse ethnic backgrounds, once they had satisfied the two-thirds criterion.

What makes the cases of Milan Martić and Radislav Krstić so different as to justify such a radical departure from established Tribunal (or “Mechanism,” if you prefer) practice?

Setting forth her reasons for rejecting Martić’s petition, presiding judge Graciela Gatti Santana stated that in her opinion the prisoner Martić has failed to convincingly demonstrate a degree of “rehabilitation” sufficient to justify release before the completion of his full prison term. The “general good behaviour” acknowledged by the authorities in Estonia, where Martić has been serving his sentence, in the judge’s view “cannot on its own demonstrate rehabilitation of a person convicted for some of the most heinous international crimes.” She stressed that a circumstance particularly aggravating for the petitioner was the fact that “the Estonian authorities reported that Martic ‘considers himself a political prisoner’ and, “[g]enerally speaking, does not want to talk about his crimes, believing that the sentence imposed on him was politically motivated.”

Can anyone blame Martić for holding such opinions?

Judge Santana’s rationale is highly indicative of the legal culture, or perhaps exactly the mentality, of the Hague Tribunal. She claims that proof of “rehabilitation” is a criterion for early release, but neither in Martić’s case, nor when denying the petition of Gen. Krstić on virtually identical grounds, has she indicated what in her personal view or in light of ICTY’s practice constitutes evidence of rehabilitation. Further , and this is the key point, the judge disenfranchises the petitioner for the act of refusing to internalise the allegations contained in the Prosecution’s charge sheet and rejection of the verdict brought against him. The prisoner is penalised for the outrage of refusing to accept the imputation of guilt, which he must have done from the commencement of the proceedings, otherwise there would have been no need to even hold a trial.

In juridical terms, what right could the court possibly have to require a prisoner to assent to a verdict with which he strongly disagrees, and to make such involuntary assent a condition for receiving a benefit, in this case a shortened prison term? That question is particularly apt since post-trial acceptance of guilt was not a necessary condition for the early release of any other ICTY prisoner before Martić and Krstić filed their petitions.

It should be acknowledged that early release after the completion of two-thirds of the sentence is not normatively prescribed in the Statute of the Hague Tribunal. In all previous cases however it was a customary practice and was being granted routinely. Even in the absence of a formal prescription, the disruption of that practice after numerous precedents had been set presents at least two significant problems of a legal nature.

The first is the violation of the principle of equal treatment, in these instances technically not before the law but certainly in light of established institutional practice. Consistent legal practice gives rise to reasonably entertained expectations. The second issue is the ethnically discriminatory nature of the application of the abrogated principle, targeting members of only one community within a diverse prisoner pool. Ironically, ethnically based discrimination is one of the most frequent themes in Hague Tribunal indictments.

The expectation that in similar circumstances judicial organs will act similarly is fundamental to the proper operation of justice. The guarantee of legal security and predictability in the application of even informal norms is a basic value of civilised law. The alternative is descent into arbitrariness, or anomie as Emile Durkheim has called it.

Judge Graciela Gatti Santana and her colleagues on the ICTY bench apparently do not give a fig for any of those considerations. They are not in the business of administering justice in any recognisable or meaningful from but of advancing the political agenda of the institution from which pays their salaries and benefits.

There appears to be little doubt what that agenda is. Notwithstanding the uncritical and massive political and media support enjoyed by the Hague Tribunal since its inception in the mid-1990s its legacy is questionable and its reputation is tarnished. It is not widely perceived as a place where justice is not only done but also seen to be done. Its rules of evidence and procedure have deviated widely from the Western legal tradition. Under those rules, a multitude of cases stemming from the conflict in the former Yugoslavia have been adjudicated, but few serious legal scholars and observers are convinced that the verdicts reached and sentences imposed pass muster.

The oppressively burdensome standards that the Hague Tribunal is coming up with for what should be routine early release of its prisoners who meet the time served criterion has little to do with concern for the prisoners’ rehabilitation. It has much to do with the pathetic effort of a disgraced Tribunal to if possible secure its own rehabilitation. The method it uses is a cruel cat and mouse game which it plays with its helpless captives. In contemptuous disregard for the ethos of the Western legal tradition, the Hague Tribunal blackmails its prisoners, dangling before them, long after the conclusion of their trials, an uncertain prospect of early freedom in exchange for grovelling enough and violating their moral convictions with sufficient vehemence to retroactively lend credibility to the Tribunal’s defective verdicts by involuntarily altering their non-guilty pleas.

Has a better contextual explanation been written of the functioning of this evil system from the dark ages, to which the Hague Tribunal fully subscribes, than that offered by Michel Foucault in his classical study “Discipline and Punish,” pp. 37-38?

“Confession,” says Foucault, speaking of the primitive practice of what in the Middle Ages passed for “justice,” “constituted so strong a proof 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.”

“It is not enough,” Foucault continues, quoting medieval torturer Ayrault, “that wrong-doers be justly punished. They must if possible judge and condemn themselves.” For all the stated 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 scarcely is any need to point out the degree to which judicial practice in what is commonly known as the dark ages coincides with the contemporary modus operandi of the Hague Tribunal, the pilot programme that was set up to blaze the trail for the global reengineering of jurisprudence. The ignominious International Criminal Court is one of its offshoots, with undoubtedly to come.