The history of the International Criminal Tribunal for the former Yugoslavia (ICTY) seems a bit like fiction, with its tales of political pressure, witness intimidation, controversial judgments and the assassination of a Serb Prime Minister for collaborating with international justice. But the ICTY’s story also involves high stakes for international relations and a complex legacy for the societies of the former Yugoslavia.
The ICTY has made more headlines in recent days than it had for a long time, sentencing former Bosnian Serb leader Radovan Karadzic to 40 years in jail for his role in ethnic cleansing; imposing an absurd 6-day sentence on French journalist Florence Hartmann for revealing documents; and handing down a surprise acquittal of ultra-nationalist Serb Vojislav Seselj. Once again, the ICTY’s decisions have disappointed some people and delighted others.
Is this NATO’s justice, a judicial circus or a vital tool to restore peace and build reconciliation? Twenty-three years after its creation and 20 months before its planned closure, the ICTY is hated by some whilst others hail it as a major step in the fight against impunity.
Three controversial acquittals
The March 31 acquittal of Vojislav Seselj will no doubt remain among the three most frustrating ICTY trials for victims, along with the trials of Kosovo ex-Prime Minister Ramush Haradinaj and Croat general Ante Gotovina.
Let us recall that in 1991, 200 injured Croat prisoners of war were murdered in cold blood by Serb soldiers and paramilitaries, volunteers from Seselj’s Serb Radical Party. The ICTY kept Seselj in prison for 12 years but its judges deemed in the end that whilst Seselj strove for the idea of a “Greater Serbia” and participated in the “war effort”, he did not bear direct responsibility for crimes committed in Croatia and Bosnia between 1991 and 1995.
Seselj nevertheless created a notorious militia, the White Eagles, and he declared that if necessary he would finish the Croats off himself with a “rusty fork”. Curiously, the ICTY did not deem such words to be hate speech.
This judgment – which could be revised on appeal – is among three controversial acquittals by the ICTY. First, there was Ramush Haradinaj, who was accused of war crimes against Serbs and Roms, and in whose trial witnesses disappeared, died in suspicious circumstances or withdrew their statements. Then there was Croat general Ante Gotovina, whom the trial court sentenced to 24 years in jail for war crimes and crimes against humanity before the Appeals Chamber acquitted him.
Gotovina was head of Operation Storm which aimed in 1995 to reconquer Serb-occupied Krajina. The operation forced some 200,000 Serbs to flee, although the families of some had been there for centuries.
A judicial revolution
Going beyond these three judgments that somewhat undermine the Court’s credibility, how should we assess more than two decades of the ICTY’s work, now that it has completed 149 cases (19 ending in acquittals)? No doubt we should respond like Zhou Enlai who when asked to assess the French Revolution two centuries after it happened, said it was still too soon to answer.
We must nevertheless admit that the ICTY has sparked a judicial revolution with highly political effects. Who would have thought national sovereignty could be so thoroughly questioned? Who could have imagined 25 years ago that sitting presidents could one day be accused of crimes against humanity? Yet this is what has been done by the International Criminal Court, set up in the ICTY’s wake.
ICTY judgments provide key jurisprudence on war crimes, crimes against humanity and genocide. Unprecedented attention has been paid to rape, since almost half the individuals convicted by the ICTY were found guilty of sexual violence. It is also the first tribunal to consider that rape as torture or sexual slavery is a crime against humanity.
Justice in wartime
The ICTY, a post-Cold War institution, even introduced international justice in time of war. This was risky, and has had mixed results. In reality, the quest for peace became more important than the quest for justice. Thus Radovan Karadzic and Ratko Mladic, the two main Bosnian Serb leaders responsible for ethnic cleansing, were only indicted after the July 1995 Srebenica massacres because, up to then, they were considered indispensable partners in a peace accord.
Since then, there have been many efforts to defuse the tension between peace and justice, but it still remains, as we can see from the Western powers’ wavering and switching positions on Syrian President Bashar al-Assad. Justice in wartime may be morally attractive, but is it efficient?
The ICTY’s actions have in fact been conditioned by the political environment, notwithstanding the quality of the judges. That became clear once again when the big Western powers that are the main backers of the ICTY found themselves in a military confrontation with Serbia and the NATO spokesperson warned the Tribunal not to “bite the hand that feeds”. Independence is difficult for a tribunal that relies on the goodwill of States to access crime sites, gather evidence, build indictments and arrest suspects.
Then comes the most sensitive question: what has been the impact of this first international criminal court on the societies of the former Yugoslavia? Although it may be too early to make an overall pronouncement on this, the results to date have been mixed. Despite its controversial judgments, the ICTY has written the history of the ex-Yugoslav wars of the 1990s. It has amply documented the crimes committed by all the protagonists. Twenty accused persons, and by no means the least significant, pleaded guilty. That is something.
However, it must be said that most people in the former Yugoslavia have never supported the Tribunal’s work and there is still a strong tendency to deny the crimes of the past. Nationalist propaganda is at least partly responsible for this failure. At the end of the day, the experience of the ICTY seems to suggest mainly that an international tribunal can only be an efficient tool for reconciliation if it is part of a much wider process of political rapprochement between former enemies.
This article was co published by The Conversation and Justiceinfo.net