The inevitability of the UN Security Council-mandated International Criminal Tribunal for the former Yugoslavia (ICTY) is now all but taken for granted. Yet back in 1993, with war raging across much of Bosnia & Herzegovina and Croatia, its establishment was greeted with considerable scepticism, especially given the international community’s well-documented passivity.
The Hague Tribunal, as it is more commonly known, has tried some of the worst crimes committed on European soil since the World War II. It has become an important forerunner of other international criminal courts, such as the International Criminal Court. Yet though it has ensured there would be no impunity for war crimes, there remains much scepticism about its contribution to reconciliation.
For many, the recent verdict in the case of Radovan Karadzic, the leader of the Bosnian Serbs, was momentous. Found guilty of 10 of 11 counts, including genocide and crimes against humanity, Karadzic was sentenced to 50 years in prison. For others, however, the failure to impose a life sentence and uphold the indictment for genocide in seven other municipalities in Bosnia (including Prijedor, Vlasenica and Zvornik) was a serious blow to the ICTY’s reputation. Having lost its genocide case against Serbia at the International Court of Justice back in 2008, Bosnia had hoped that the Karadzic verdict would provide renewed momentum for an appeal (the deadline for which is 2017).
Several days later, Vojislav Seselj, president of the ultra-nationalist Serbian Radical Party (SRS), was surprisingly acquitted of all charges, including eight counts of crimes against humanity, for his role in Serbia, Croatia and Bosnia during the Balkan wars.
The staggering thing about the verdict was its reasoning, which contradicted many previous ICTY verdicts. The project for a ‘Greater Serbia’ was deemed political, not criminal. Coaches to transport Croats were justified on ‘humanitarian’ grounds, whilst speeches calling for ethnic cleansing were considered ‘motivational’.
Seselj was released in November 2014 on compassionate grounds, having been diagnosed with cancer, and is expected to return to the Serbian parliament following April’s elections.
The Seselj verdict was the latest to astound commentators and set back the cause of reconciliation in the former Yugoslavia. As with the case of former Serbian president Slobodan Milosevic, the other remaining trials – of General Ratko Mladic, the Bosnian Serb’s military leader, and Goran Hadzic, former president of the Republic of Serbian Krajina – are unlikely to be completed due to health reasons.
Not well acquitted
High-profile acquittals, especially on appeal, have also dented trust in the ICTY’s neutrality and objectivity. Having originally been sentenced to 24 years for crimes against humanity committed against Croatian Serbs during Operation Storm (a military operation to regain the predominantly Serb-populated Krajina), Ante Gotovina, a retired lieutenant general, was acquitted on appeal in November 2012. The 2006 conviction of Naser Orić, a former Bosnian military officer active in Srebrenica, was overturned in 2008; only for him to face war crimes charges in Sarajevo for the alleged killing of three Serb captives.
The execution of sentences and rapturous reception of war criminals by their respective governments has fuelled further tensions. Arrested in 2000 and sentenced to 27 years in 2006 (reduced to 20 upon appeal), Momcilo Krajisnik, a former member of the Republika Srpska presidency, was granted early release in September 2013 and welcomed home as a national hero. Biljana Plavsic, another Bosnian Serb political leader and the ICTY’s only female indictee, was collected by a Republika Srpska jet after serving two-thirds of her 11-year war crimes sentence.
Despite these criticisms, the ICTY has made a formidable contribution to war crimes prosecutions throughout the former Yugoslavia. Whilst limiting itself to the most serious and contentious cases (a source of controversy in and of itself), its work has been supplemented by newly-founded domestic courts.
The War Crimes Chamber in Bosnia was a groundbreaking step to help dilute the ICTY’s backlog of cases, whilst less severe cases continue to be tried in local courts. Justice is now being delivered closer to the very communities affected by war. The process has, however, not gone without hitches. Ten war crimes convicts (including individuals sentenced for genocide) were released in early 2015 and retrials ordered after being tried under the wrong criminal code.
Not much truth, little reconciliation
Many expected that the ICTY would not only administer justice, but help catalyse reconciliation throughout the region. Several decades on, however, the picture remains bleak. An initiative to establish a region-wide truth commission, REKOM, has stalled. Revisionist histories continue to be disseminated by politicians and taught in classrooms (Bosnia, for instance, has five different curricula). A culture of denial pervades much of the region (though denial is often deemed too soft a word by the victims and their relatives). Whilst the cultural realm continues to provide alternative narratives, it has marginal influence.
And as one court draws to a close, another is being established. The Specialist Chamber, which will also sit in The Hague, will try war crime and organised crime allegations against the Kosovo Liberation Army (KLA). Rumours suggest that Kosovo’s newly-anointed president, Hashim Thaci, could be among the list of high-profile indictees.
One key distinction is that it was Kosovo’s Assembly that adopted legislation governing the Chamber’s establishment, not the UN Security Council (as in the ICTY’s case), under considerable pressure from the international community. The chamber is the culmination of a special investigative process sparked by a 2010 Council of Europe report by Dirk Marty, which contained allegations of organ trafficking.
The ICTY has been profoundly important not only for the former Yugoslavia, but the fight against impunity more broadly. Though expensive (it has cost over $1bn) and often cumbersome, it has indicted and tried a long and diverse list of suspects. Whilst many of its verdicts remain vigorously debated by legalists and conspiracy theorists alike, justice is served not only by verdicts, but by the very process itself. Victims have been given an opportunity to have their testimonies heard, either first-hand or through witnesses.
Yet whilst the ICTY has brought justice, it has to date contributed little in the way of reconciliation. The persistence of cultures of denial bode ill for the region. Yet the judgements themselves and millions of pages of archives underpinning them will hopefully help educate future generations to one day pose questions to their parents about why such crimes were perpetrated. In this sense, therefore, it may be too soon to truly judge the overall legacy of the ICTY. Without it, impunity would have reigned supreme.
This article is part of a series bne IntelliNews is running to mark the 25th anniversary of the split of Yugoslavia on June 25.