(Image: Julian Hibbard)

Is international criminal justice worth spying on? Do states invest in penetrating the halls of international criminal tribunals with their intelligence officers? While these aren’t exactly questions that one typically encounters, a recent article by Julian Borger sheds light on how one intelligence agency, Russia’s Federal Security Bureau (FSB), infiltrated the International Criminal Tribunal for the former Yugoslavia (ICTY) in order to protect Ratko Mladić, a Bosnian Serb general accused of genocide and war crimes who was a fugitive of the ICTY for a remarkable fourteen years.

According to Borger, Russia viewed Mladić as a former ally unjustly hunted by Western states seeking to expand their influence in Serbia, a historically close ally of Moscow’s. At the same time, Russia feared that Mladić’s arrest or surrender would lead to embarrassing revelations about Moscow’s support for the Republika Srpska during Mladić’s campaign of ethnic cleansing. Borger describes how Miodrag Rakić, the lead investigator in the hunt for Mladić, was consistently frustrated in his efforts. Anyone who could potentially cooperate in the search for the former Bosnian Serb general was intimidated by FSB agents. And then this bombshell:

Rakić also felt the unmistakable presence of the FSB looking over his shoulder. In 2008, he and a colleague made a clandestine trip to the Hague tribunal to discuss the Mladić case. They flew a roundabout route and Dutch protection officers drove them straight into the tribunal’s underground car park. On his return, however, Rakić received a visit from one of Mladić’s supporters in the security services, warning him that his family would be in peril if he continued to cooperate with the court. Lest there be any doubt over the seriousness of the threat, he recited details of Rakić’s young son’s daily routine.

Shocked at the threat, Rakić angrily denied he was collaborating with the court, insisting he had never even been to The Hague. Without a word, the visitor took a piece of paper and drew a diagram of a conference table. Then he wrote out the name of every person who had attended his meeting in The Hague, indicating precisely where each of them had been sitting. Rakić described it as the most chilling moment of his life. From that moment on, until his death from cancer in 2014, he travelled with a two-man protection team.

There was little doubt in his mind that only the FSB had the sophistication to penetrate the Hague Tribunal so thoroughly.

This raises the question: if spies could infiltrate the ICTY, what about the International Criminal Court (ICC)?

The issue of spying has been raised on a handful occasions at the ICC. In Darfur, where no ICC official has ever stepped foot, the Court’s intervention into the alleged genocide has been met with regular accusations by the Sudanese government that civil society organizations and human rights advocates are “spying” for the Court. More recently, during the 2011 Libyan civil war, the ICC indicted Abdullah al-Senussi, Colonel Muammar Gaddafi’s notorious “spy chief”. Months later, four members of the Court’s staff were detained and accused of espionage after attempting to meet and consult with Gaddafi’s son and Senussi’s fellow ICC-indictee, Saif al-Islam Gaddafi. According to Benjamin Dürr, there have also been allegations that some states, including Germany, have spied on the ICC.
On some level, it should be unsurprising that states seek to infiltrate tribunals. After all, states regularly spy on other international institutions. Spying on the United Nations, for example, seems to be a well-crafted practice, so common-place that it has its own Wikipedia entry.

At the ICC, many of the alleged perpetrators who find themselves in front of judges, especially those who formerly enjoyed political power, have allies and protectors. More generally, states want to keep tabs on investigations and prosecutions that they think are either relevant or a potential threat to them. Paradoxically, then, it would be somehow insulting and an indication of irrelevancy if states didn’t consider spying as the ICC.

If the FSB could conduct espionage games at the ICTY, why not at the ICC? After all, Russia is now under the ICC’s microscope for its conduct during the 2008 war in Georgia. Would the US not have an interest in gathering intelligence on the ongoing preliminary examination into its use of ‘enhanced interrogation techniques’ in Afghanistan? Ditto for the British government which seems increasingly nervous about the Court’s examination into alleged abuses by British troops in Iraq. In short, states that can spy on the ICC would seem a clear incentive to do so. In terms of intelligence sharing that may not always be a bad thing. But what remains unclear is whether and how the Court could counter such surveillance and whether it has ever considered doing so.

In today’s age of precarious surveillance and security, our starting assumption should be that states will spy on anything that they feel the need to gather more information on. As such, it should come as no surprise that the ICTY came under FSB surveillance and it should shock no one that other tribunals, like the ICC, have been penetrated by intelligence networks.

A version of this article was originally posted for CourtSide Justice, my ongoing column at Justice Hub.