Home / Europe / Some justice is better than no justice at all? The ICTY and its legacy

Some justice is better than no justice at all? The ICTY and its legacy

21 January, 2018

By Irena Baboi – Junior Fellow

On 21 December 2017, after 24 years of investigations and prosecutions, 161 high-profile indictments, and the sentencing of 90 individuals for criminal acts including genocide and crimes against humanity, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was formally dissolved. In an unexpected turn of events, the Tribunal’s final verdict was followed by a moment worthy of media history, when Slobodan Praljak, a former Bosnian Croat military commander, swallowed a vial of poison and died shortly afterwards. Praljak’s reaction to the 20-year sentencing accurately sums up the post-war reconciliation and justice-related challenges experienced by the Western Balkans in the past more than two decades. More often than not, it was the ICTY’s more dramatic side that made the headlines – and more often than not, justice has been incomplete at best for the victims and survivors of the Balkan wars.

Established in 1993 by the United Nations, the ICTY was the first tribunal of its kind since the Nuremberg and Tokyo trials, and had as its main goal the provision of accountability for war crimes committed during the brutal disintegration of Yugoslavia during the first half of the 1990s. Initially considered unrealistic and even detrimental to a ceasefire, the ICTY gained international respect in 2001, when it succeeded in securing the arrest and extradition of former Serbian president and Yugoslav leader Slobodan Milosevic. Although Milosevic died before a verdict was reached, it was with his trial that the world started paying attention, and general opinion on the chances of success for post-war justice institutions slowly began to change.

Milosevic’s ground-breaking prosecution was followed by two more high-profile arrests and extraditions, this time coupled with convictions. Bosnian Serb military commanders Radovan Karadzic and Ratko Mladic were sentenced to 40 years and life in prison, respectively, and the latter received his final verdict only days before Praljak’s extreme escape from justice. Karadzic’s and Mladic’s convictions also served as a powerful statement on the Srebenica massacre – both were found guilty of genocide and crimes against humanity for their direct responsibility for the killing of over 8,000 Bosniak men and boys in 1995.

The shortcomings and failures that the ICTY has been accused of partly stem from the difficulties and challenges the Tribunal has been faced with over the years. Particularly in the beginning, governments were reluctant to release evidence, and what the ICTY received was often a watered-down version of the material requested. Moreover, because it lacked police powers, it had to rely on foreign governments’ cooperation, and it was not until the 1997 Arrest Now campaign set up by Human Rights Watch and other similar groups that progress was made.

As a result of this, the ICTY is leaving behind an archive of evidence that is invaluable to historians, prosecutors and legal experts, and that would have most likely not existed without the work conducted by them over the course of almost a quarter of a century. The Tribunal also pioneered the legal doctrine of “joint criminal enterprise” (JCE) to prosecute political and military leaders for mass crimes, including genocide and crimes against humanity. JCE considers each member of an organised group individually responsible for crimes committed by the group within a common plan or purpose – a historic shift in war-related legal thinking and practice.

Among its more serious criticism, the ICTY has been accused of allowing itself to be influenced by political pressure, with questions over its transparency being raised. Croatian General Ante Gotovina and Serbian General Momcilo Perisic, for instance, were initially sentenced to over 20 years in prison each, only to be later acquitted and released. Similarly, Serbian nationalist Vojislav Seselj, accused of inciting ethnic hatred and murder during the wars, was acquitted in one of the Tribunal’s most controversial decisions, and reports of witness intimidation surfaced in the aftermath of his verdict.

Despite the wealth of evidence ultimately gathered, the ICTY was also accused of bias against the Serbians, to which the Tribunal responded by quoting said evidence on numbers and level of severity of the crimes committed by each ethnic group. Regardless, the acquittal of Bosnian military commander Nasen Oric only confirmed this in the eyes of Belgrade, who used this as fuel for their ongoing attempts to deny guilt and defend their own participants in the wars.

Lengthy trials, the withholding of evidence, and political pressure are only some of the challenges faced by the ICTY over the course of nearly a quarter of a century. Many of the high-level officials targeted remained in or regained power after the wars, but it was also not in the interest of other politicians and leaders for their countries to achieve reconciliation. Having built their political campaigns and strategies on ethnic animosities and a need to protect one group against another, bridging the ethnic divides would only have been detrimental to their future aspirations. In line with the ‘one man’s terrorist is another man’s freedom fighter’ saying, from the point of view of the political elites at least, one Western Balkan country’s murderer will always be another one’s protector.

More than two decades after the war, military commanders and officers continue to not only be portrayed as heroes by governments in the Western Balkans, but also treated as such. A good example of this is the case of Serbian General Vladimir Lazarevic. The former commander of the Pristina Corps of the Yugoslav Army was convicted in 2009 of the forced deportation of more than 700,000 ethnic Albanians during the 1998-99 Kosovo war. Lazarevic was released at the end of last year and immediately joined the teaching staff at Serbia’s state military academy, confirming that Belgrade has no intention of looking on its past critically and objectively.

On the other side of the border, Kosovo’s post-war justice is facing similar challenges. As seen with the recent decision by its government to oppose the country’s War Court, Ramush Haradinaj’s return to power as prime minister, coupled with Hashim Thaci’s ongoing presidency and the position of parliamentary chairman being currently occupied by Kadri Veseli, will only complicate matters for Kosovo’s coming to terms with its past. With all three being former KLA leaders, it stands to reason that they see the Court as a threat – it is, however, naïve at best for them to think that these actions will reverse a process began and implemented by the international community.

Despite its shortcomings and failures, the ICTY showed the world that even high-ranking officials cannot get away with murder. As it was never its goal to prosecute all perpetrators, and as it operated under a limited time frame, the ICTY’s priority were those considered most responsible for the war crimes committed. From this point of view, one of its biggest achievements was that it changed opinion on criminal behaviour in war – “all is fair in love and war” no longer applies, and individuals can be held responsible for their actions, even when these occurred during wartime.

Furthermore, with the ICTY, post-war tribunals and the investigation of war crimes became commonplace. Regardless of its difficulties and challenges, its biggest lesson is that similar institutions are worth supporting. The Tribunal became a blueprint for subsequent international justice bodies – and future courts can only benefit from its experiences and lessons.

More than anything, the ICTY gave the victims and survivors a voice, and an opportunity to tell their stories – which is something they may not have had otherwise. As such, the ICTY’s efforts deserve more praise than dismissal. As its outgoing chief prosecutor Serge Brammertz noted, however, the true legacy of the ICTY will ultimately be measured by how subsequent institutions will continue working, and whether the justice systems and rule of law become stronger in the former Yugoslav countries. Moreover, for reconciliation to have a fighting chance, justice must be accompanied by reform and education. Initiatives such as the bringing together of ethnic Macedonian and ethnic Albanian elementary schools for joint creative activities go a long way towards shaping the views of one ethnic group of another – and bring the Western Balkans one step further from taking the competing histories they learn at face value.

It is now the responsibility of the Mechanism for International Criminal Tribunals (MICT) to continue the legacy, but also that of domestic and specialist courts to contribute to it. Recent war crimes cases, however, show that justice in domestic courts is so far either difficult to attain, or unlikely to last. In the first trial of its kind in Serbia, charges against eight former police officers accused of killing Bosniaks from Srebenica in the village of Kravica were dismissed six months after the trial started, with the defence arguing that these charges had not been filed by the authorised prosecutor. Similarly, Kosovar President Hashim Thaci signed a decree to pardon three former KLA fighters accused of murdering a Serb family in 2001, his main justification being that the father of the family had been a police officer under Slobodan Milosevic’s rule.

As seen in the case of Milosevic, however, the European Union has the power to help and ensure changes are made in the justice systems of the Western Balkans. The declaration that the region will have to make judicial reform a priority in 2018, coupled with warnings over decisions that can be detrimental and even damaging to their road to Europe, need to be accompanied by a firm conditioning of closer ties on progress in this field. Moreover, it is becoming increasingly clear that the West needs to start supporting political elites that choose justice and reconciliation over discord and disagreement – or at the very least, persuade the current ones to change their nationalistic tune.

In its 24 years of existence, the ICTY was defined by successes and failures, shortcomings and ground-breaks, promise and limits, and criticism and praise. The publicity received by Praljak’s suicide, however, highlights the fact that attention has been given more to the perpetrators than to the victims and survivors – like in any similar case, the media made sure that the public knows the names of the criminals, but very little talk has related to their victims and survivors. Similarly, every high-profile conviction and acquittal sparked debates and arguments within the region, but brought about little dialogue that would contribute towards reconciliation. The road towards justice in the Western Balkans is still long, but it is not an impossible one – and if reconciliation is to be achieved, the ICTY needs to start being seen as merely the beginning of this road.

Image: former Bosnia Serb leader Radovan Karadžić awaits the verdict at his trail (source: ICTY/Wikimedia)

About Irena Baboi

Irena Baboi is a PhD candidate at the University of Glasgow, researching the future of European Union involvement in the Western Balkans. She also obtained both of her previous degrees from the same university, having completed an MA in Politics and Central and East European Studies and an MSc in Russian, East European and Eurasian Studies. Irena’s previous work experience includes internships with AKE Intelligence Group in London, as well as the Ministry of Foreign Affairs and United Nations Information Centre in her hometown of Bucharest, Romania, fundraising for Macmillan Cancer Support, freelance writing and editing for Oxford University Press. She has also been a volunteer with the British Red Cross since 2013. Irena’s research interests include human rights, peacebuilding and statebuilding, conflict prevention, management and resolution, transitional justice, and post-conflict development.