The calmer future awaiting the International Criminal Tribunal for the Former Yugoslavia

October 5, 2011

By Iva Vukusic (The Hague) 

Now that the last of the fugitives has been arrested, the International Criminal Tribunal for the Former Yugoslavia (ICTY) faces a calmer future. Two trials, those of the two most recent suspects to arrive to The Hague have yet to begin and several judgments will be rendered both in the first instance and on appeal. Then, maybe in five years or so – when all the trials are completed – the ICTY will go down in history as one of the most successful international institutions dealing with war crimes. 

Eighteen years ago, images of attacks on civilians in Sarajevo, camp detainees in western Bosnia and ethnic cleansing on a massive scale caused a shift in public opinion and political will resulting in a new institution being born – one like no other before. Back then no one knew how successful it might be.

If you asked those involved in the early stages of the Tribunal’s work if all its suspects will one day be arrested, few would have probably answered affirmatively. Yet, all of them have been arrested. No other judicial institution can claim the same success.

The fact that no fugitives remain does not however mean that the legacy of the ICTY cannot still be jeopardized. Karadzic’s trial is ongoing, the Mladic proceedings are yet to begin and there are concerns over his health and ability to survive a long lasting trial. Yet the legacy of Tribunal today looks far more positive than ever before.

Challenges

The ICTY had several significant challenges to overcome. It was the first international court of its kind, lacking leverage on the international stage as well as funds; no police force to make the arrests, entirely dependent on government cooperation.  The cooperation was especially inadequate in the countries of the region because no government had a genuine desire to collaborate when it came to prosecuting members of its own political elites, armies or police. They were only interested in the ICTY prosecuting ‘the enemy’.

As the first of its kind, the ICTY had little to go on. Rules of procedure and evidence were developed; detention facilities and courtrooms set up, long-term funding secured. All this was happening while the war was still raging and many governments openly resisted the Tribunal because they believed it hampered the peace process or was an infringement on national sovereignty.

Some governments were involved directly because the arrests took place on their soil, others, and especially the European Union, through political pressure that was to result in more suspects on trial. Several arrests were long overdue – many of the fugitives had support within state security agencies in the region.

Shortcomings

The Tribunal has been criticized from the beginning for various reasons but some of the problems the ICTY faces are inherent to the judicial system. The trials are long and extremely complex, public then has difficulty following the proceedings and understanding fully how they are conducted. As a result, many are easy pray for nationalist rhetoric.

The political climate in the region within which the Tribunal operates is one of political manipulation with insufficient honest debate about the past.  All the communities still perpetuate some kind of discourse of victimhood. In the fragile political environment of the former Yugoslavia, there are still many (such as associations of veterans, several political parties, youth movements etc.) that consider it ethnically biased.

Being distant from the communities it is there to serve was one of the most commonly heard critiques coming from academics as well as many practitioners, saying that the physical distance has only made the existing gap between the Tribunal and the victims wider. Sentencing has also been a source of contention with no sentencing guidelines and a lack of unified policy by the judges.

The lack of a clear and consistent prosecution strategy, especially in the early years, has also been a problem. When established, the Tribunal had little impact in international politics and had to settle for suspects that were not responsible for planning the crimes on a massive scale but merely with committing them. High-ranking generals and political leaders remained outside of the Tribunals’ courtrooms for the first few years.

Successes

Holding some of those most responsible accountable for the crimes committed in the former Yugoslavia in the 1990’s represents one of the most important successes of the Tribunal.

Other successes include ‘removing’ politicians who committed crimes from the political arena; creating a vast collection of sources that can be used for further research; presenting the victims with an opportunity to tell their story and providing them with some (albeit imperfect) justice; identifying missing persons and bringing some closure to their families as well as significantly supporting the trials in national institutions in the region.

Establishing facts through impartial proceedings is also positive, but what needs to be stressed is that the criminal procedure focuses on the defendant and that, whatever the judgments say, further research is required to establish a broader narrative of what happened during the wars in Croatia, Bosnia, Kosovo and Macedonia. The archives, the documents and about four thousand testimonies will represent an invaluable source in the future.

Many excavations of mass graves were directly related to criminal investigations resulting in many thousands being identified. This is especially true for those killed after the fall of Srebrenica. This has assisted many families in finding at least some closure after their loss. The trials also provide the opportunity for victims to be heard, to speak about their suffering. A wider positive influence has also been in developing jurisprudence and advancing international criminal law as well as the trickle-down effect it had in the region with prosecutions at national level.

It is quite safe to say that none of the trials that are currently being held in Bosnia and Herzegovina, Croatia or Serbia would have existed if there were no Tribunal. It also contributed significantly to the establishment of the International Criminal Court that now has 117 member states.

The ICTY has been, even with all its shortcomings, quite a success story and EU conditionality proved to be a powerful tool in addressing the need for war crimes prosecution. Respect for the rule of law simply must be part of the EU accession process as well as legal reform, especially in Bosnia. It has proven that war crimes prosecution is difficult and politically sensitive but ultimately the most reasonable policy in a post-conflict setting like the former Yugoslavia.  Many of those most responsible for crimes have been or are being held accountable, political leaders that were involved in planning the crimes have been ‘removed’ from public space and the region is stable even though the relations between the post-Yugoslav successor states are far from ideal.

The last arrest and the upcoming trials do not, however, mark an end to war crimes prosecution for the crimes committed in the Former Yugoslavia. The work is especially challenging in Bosnia where the number of potential suspects, as well as victims, is highest. This process needs to be supported if all that was accomplished so far is to remain.

 

Iva Vukusic currently works for Sense News Agency in The Hague  and as a consultant on a research project for King’s College London, War Studies Department.    


 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: