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In its 20 years, has the court furthered reconciliation? Was it even supposed to?by Tihomir Loza 24 May 2013
When in May 1993 the UN Security Council passed a resolution to establish a tribunal to prosecute those responsible for serious breaches of international humanitarian law in the former Yugoslavia, Balkans watchers commonly saw it as a fig leaf for the unwillingness or inability of the West’s three permanent members to stop the carnage in Bosnia.
The Security Council, in fact, followed the advice of a commission it had set up six months earlier, it was thought, out of desperation to be seen to be doing something. That skepticism wasn’t surprising, considering that the resolution creating the International Criminal Tribunal for the Former Yugoslavia (ICTY) was born at the same time and, presumably, out of the same mood music that gave birth to the concept of “safe areas” in Bosnia. Like the ICTY, “safe areas” were hatched under a part of the UN charter that allows the Security Council to use any means to maintain or restore peace. They were then recklessly applied to places such as Srebrenica, giving people there an expectation of international protection, while the Security Council resolutions establishing the safe areas were really written to avoid legal commitment to providing such protection, with UN troops deployed in these places mandated to use force only in self-defense.
The view of the tribunal as another irrelevance was soon reinforced, when its existence failed to deter combatants from committing further crimes. Yet, while the tribunal spent its first years pretty much on the margins, it was also easy to see from the outset that that could change. This was, after all, an ad hoc court established by the world's highest source of legitimacy, not an ad hoc committee of the general assembly that no one would remember in a few months. As such, the tribunal could, under the right circumstances, assume something of a life of its own, irrespective of what its creators may have had in mind.
That such circumstances may one day be in place was first apparent in the autumn of 1995, when the indictments a few months earlier of Bosnian Serb leaders Radovan Karadzic and Ratko Mladic allowed U.S. mediators to exclude the men from key negotiations to end the war in Bosnia, a development that happily coincided with the desire of then-Serbian strongman Slobodan Milosevic to sideline the two.
Yet, to truly matter, the ICTY needed suspects in the dock. It could have them only if key governments happened to be willing at the same time to take active measures to see this happen. Such a constellation of political wills first appeared in 1997 with the advent of the second Clinton administration, complete with the interventionist Madeleine Albright in the State Department, and the change of government in London. The Americans were suddenly prepared to do whatever it took to secure the arrest and transfer of suspects to The Hague as long as it didn’t require their own troops to get out of armored vehicles, while after only two months in office, the Blair government first showed in Bosnia what would later be seen as its trademark trigger-happiness. Its first arrest operation, though, went wrong, with one of the two suspects killed. But subsequent arrests, now also involving troops from other countries, followed, as did a number of surrenders.
The tribunal was now undeniably open for business. Still, as only a few suspects in its custody could be described as significant players, that business impressed few. By this time, quite a few top leaders, though by no means all, had been indicted, yet there were few signs either that the NATO troops in Bosnia were seriously looking to arrest them or that the key Western governments were ready to put pressure on the regimes of Milosevic or Croatia’s Franjo Tudjman to hand over top suspects in their countries.
Then halfway through the 1999 NATO bombing campaign against Serbia, the tribunal’s prosecutors indicted Milosevic. The timing of the move, coupled with its initial focus on Kosovo – and not on Bosnia and Croatia, where crimes committed by forces under Milosevic’s influence or direct control were far more serious and numerous – was bound to raise eyebrows. In terms of the tribunal’s weight in Balkan affairs, this was a game-changer: The court was obviously escalating its approach with support from major governments. When later that year it emerged that prosecutors were also preparing an indictment against Tudjman, who conveniently died shortly afterward, it was impossible to see how this policy of going after the very top brass could ever be reversed. Indeed, by the early 2000s, and coinciding with the installation of democratic governments in Zagreb and Belgrade, the tribunal became the most potent and most frequently used instrument in both the EU and U.S. policy toward the region. New indictments against top officials were issued. Leader upon leader faced the choice of delivering a suspect or suspects to The Hague or being denied access to aid or investment, or progress in Euro-Atlantic integration. All complied eventually, with more or less drama or prevarication. What’s more, ever since the then-Serbian Prime Minister Zoran Djindjic handed over Milosevic in June 2001, there was a sense of inevitability about it all.
Judged on this front alone, the court has been nothing less than a spectacular success. It actually tried scores of presidents, prime ministers, generals, and top security officials. Nor can the ICTY’s contribution to the development of international humanitarian law be denied, for example, in laying the ground for ending impunity for perpetrators of sexual violence in war or the definition of the crime of genocide. The tribunal’s existence and experiences informed the establishment of similar courts for Rwanda and Sierra Leone.
But what of the court’s overall credibility and the impact of its trials? ICTY procedures, time-management, witness protection provisions, prosecution policies and priorities, as well as the profiles of some of its senior personnel have all been criticized, often persuasively. Yet, until recent acquittals of a number of very high-profile suspects, the ICTY’s credibility had rarely been questioned in fundamental ways and rarely by independent observers. While it was assumed and occasionally evidenced that the governments providing most of the ICTY’s funding also exercised direct influence on the ICTY, the overall fairness of what went on in the courtroom was never seriously in doubt.
In contrast, the tribunal has often stood accused – today perhaps more than ever – of failing to generate, or even of halting, a process of meaningful “dealing” with the past in the region, a process that would then lead to what is commonly referred to as reconciliation. While this has never explicitly been part of the ICTY mandate, it has widely been seen as the tribunal’s primary purpose. In fact, a scenario that would see the region first take on board facts established by the ICTY and then move to reconciliation to get ready for a brighter Euro-Atlantic future was the currency of choice in dealing with the Western Balkans throughout the 2000s, invoked by ICTY officials and major Western governments as well as academics and human rights activists.
In many ways the tribunal’s failure, if it was its failure, to kick-start such a scenario is self-evident. The region has so obviously dealt with the past only sporadically and mainly at the level of civil society, with dominant takes on wartime events hardly changed. If anything, the views of rights and wrongs of the 1990s may have been cemented, even if sentiments have abated. If by reconciliation one means a situation in which former foes – whether societies or individuals – have achieved a friendly and open relationship, the countries that came out of the former Yugoslavia, their ethnic groups, and individual citizens give plenty of evidence of unwavering distance, mutual prejudice, and open hatred. And, yes, that is generally more in evidence on days when things like interethnic football matches or ICTY verdicts feature prominently in the news.
Yet, one can find as much evidence to the contrary. With the Kosovo-Serbia relationship a partial exception until very recently, the region’s governments do cooperate on a number of fronts. Sometimes they even have cordial relationships. When and where they don’t cooperate enough, the reason is more likely to do with things other than their different takes on the recent past. Levels of interaction among businesses, cultural and social institutions, as well as private citizens often match those before the 1990s wars.
Attitudes to war crimes have even changed. Outright denial has for years been an exception rather than the norm. Facts and verdicts related to individual crimes are rarely denied. Instead, nationalists nowadays prefer to put a spin on them. The Serb ones, for example, now regularly refer to the Srebrenica massacre as a terrible crime but often deny it constituted genocide, a piece of progress for which at least some credit must go to the ICTY.
While this hardly amounts to meaningful dealing with the past, the fact that there has been both civil society and government activity on this front, let alone cooperation with an international court, is something of an unappreciated societal miracle. Consider that none of the political and military structures that took part in the 1990s conflicts was completely defeated. None of the ethnic groups they presided over broke with the wartime past like Eastern Europe rejected communism. The Western Balkan societies of today are, in fact, constituted on aspirations for which their dominant ethnic groups went to war with one another, with individuals who defined these aspirations still playing prominent roles in public life. These aspirations survived the wars more or less intact, whether they were fully or partly achieved and subsequently written into constitutions, or whether they failed, such as in the case of Serbia’s desire to keep Kosovo, with the former province’s status as part of Serbian territory surviving as popular constitutional fiction. The crimes that the ICTY is interested in were committed in the name of these aspirations, none of which was in itself illegal or even illegitimate, and in truth are inseparable from them.
So to pretend that mass crimes committed in the name of aspirations still supported by masses never happened is hardly a viable option. These crimes are the proverbial elephant in the room exactly because they were mass crimes, not isolated incidents. You can pretend to ignore them as long as you please, but at some level you know that they are essentially undeniable. Which is why few people now deny them and fewer still acknowledge them in a meaningful way. This is also one reason why all Western Balkan governments were able to sooner or later start cooperating with the ICTY, albeit grudgingly. The other reason being, of course, the EU’s policy of linking cooperation with the tribunal to closer ties with the union.
In other words, the Balkan dealing with the grim past unfolds largely in shades of gray, which inevitably complicates the relationship between the ICTY and the societies the court’s justice is primarily intended for. Unlike the Rwanda or Nuremberg tribunals, the ICTY has prosecuted crimes from a past that morphed into the present in which the court is addressing the Balkan societies. Correctly sensing that this limits the impact of ICTY justice, some tribunal officials have defensively insisted that the court was never mandated to deliver anything beyond justice for the sake of justice, which is technically true but substantially false, for the expectations of the human rights community in the region and internationally so obviously went much further. Yet, the ICTY needn’t apologize for its own limitations in this domain, as they are by and large not of its own making. And even here, we are looking at the ICTY’s limitations in contributing to the region’s dealing with the past rather than a complete failure to do so.
The tribunal and its backers may have a bit more to answer for when it comes to the view of the ICTY as a political court primarily concerned with apportioning blame for the 1990s conflicts among the former Yugoslavia’s ethnic groups and successor entities, rather than individuals, and imposing on that basis a narrative of the decade on the region. This view of the tribunal is held by substantial sections of local political classes and populations and is obvious in the type of ICTY-related developments that manage to grab the region’s attention. While the facts established in the courtroom typically receive only sporadic attention, individual arrests, convictions or acquittals of well-known suspects in particular have always been multiday prime-time topics revolving around a single question: whether they bolstered or weakened our version of the 1990s.
In a way, the view of the ICTY as a political court was inevitable given the nature of its dealing with the region. With no enforcement means of its own, the ICTY could get what it wanted only through political means. To an ordinary member of the public, the endless bargaining over suspect handovers or access to state archives between the tribunal’s prosecutors and local governments, complete with full view arm-twisting by powerful governments, could not possibly look like activity aimed merely at achieving something as intangible as justice. Those sent to The Hague were widely portrayed as martyrs doing something dangerous for the common good. Government aircraft often carried them in both directions between The Hague and the region. What’s more, governments often arranged and paid for their defense and provided for their families. This was all OK with the ICTY as long as suspects and evidence were delivered.
What should, for example, the Serb Joe Public think when, working closely with The Hague and after much undignified moaning, Serbia’s prime minister arranges a series of surrenders greased with generous monetary incentives and other benefits for the families of the accused, or when a justice minister leads a government delegation that on the same day holds meetings with tribunal officials and then spends hours in the tribunal detention center with Serb suspects in an atmosphere that the media describe as cordial and jokey? Or what should an ordinary Croat make of the fact that the country’s progress toward EU membership was halted for years because of the government’s failure to hand over a single document the prosecutors wanted as evidence? Unless you are an enthusiastic believer in international justice well-versed in international affairs, you are highly unlikely to conclude that this whole Hague thing is about establishing individual criminal responsibility. You are, in fact, more likely to think that your government’s wrangling with The Hague and its most powerful backers is a political game with national interests at stake and many frogs to be swallowed for the sake of those interests.
While it is certainly debatable to what extent it is the ICTY’s own fault that it is seen as a political court by those who should see it as a court of justice, the result is that individual crimes established in its courtrooms are at best seen as own goals. They are regrettable and our own idiots were stupid to have committed them because clearly they weaken our case, but our case remains our case. This, of course, is preferable to outright denial, yet does little to help Balkan societies grasp the gravity of the crimes committed in their names, nor does it do much for the families of the victims.
The view of the ICTY as a political court also adds to the already skewed picture of the world and its own place in it that the region has developed in recent years. It is a picture of desolate passivity in which things are only ever demanded of or done to, never successfully initiated or carried out by, people from the Balkans. Incidentally, this image is almost the exact opposite of the self-portrait that the Yugoslavs painted during the Cold War, of a country that effortlessly played in the same league as the United States and the Soviet Union. While neither picture would pass a reality check, no points for guessing correctly which one puts you in a worse frame of mind when you need to deal with little matters such as rampant corruption, organized crime, institutional neglect, or recession.
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