by Rachel Kerr
On May 25, 2013, the International Criminal Tribunal for the Former Yugoslavia celebrated its twentieth anniversary. After 20 years and $2.2 billion, what has this extraordinary experiment in international criminal justice achieved? In The Hague, an exhibition commemorating the Tribunal’s 20 years of existence highlighted its ‘significant moments’: the apprehension of all fugitives, the Tribunal’s role in establishing the facts, and the outreach efforts towards the communities of the former Yugoslavia. These are, doubtless, significant aspects of the Tribunal’s work, but they mask a more ambivalent conclusion about the Tribunal’s contribution—as a necessary but nonetheless woefully inadequate tool of peace-building. Recognizing this, and the reasons for it, is important for both the legacy of the Tribunal as it nears the completion of its work, and for the institutions of international criminal justice it helped give rise to.
This is the key failing of the ICTY: that its work has somehow been ‘lost in translation’, mediated by a hostile media and ethno-nationalist discourses.
When the Tribunal was established in May 1993, it was with the expectation that it would contribute to the restoration and maintenance of peace. Its mandate was ‘to prosecute persons responsible for serious violations of international humanitarian law in the former Yugoslavia since 1991’. In so doing, the Tribunal was expected both to ‘put an end to such crimes’ and, by bringing those responsible to justice, to ‘contribute to the restoration and maintenance of peace’ (Resolution 827). The assumption that justice would lead inexorably to peace was based on largely untested assumptions about the power of international criminal justice to afford both deterrence and reconciliation by establishing a record that would ensure individual accountability and provide retribution. It also rested on a romanticised notion of the Nuremberg legacy. That the Tribunal has failed to live up to these lofty expectations is hardly surprising, but that does not prevent us seeking a more sober and reflective assessment of its legacy. The terms on which we do so, moreover, must be linked to its mandate as an instrument of international peace and security, and not only as an instrument of justice narrowly defined.
In terms of its judicial mandate, the Tribunal boasts significant achievements. In spite of early faltering steps, and doubts even among its most vehement supporters as to whether it would achieve anything, the Tribunal evolved into a fully-functioning international court capable of prosecuting some of those at the highest levels of political and military responsibility. By the end of its first 10 years of operation, the Tribunal had fought and won what Mirko Klarin termed its ‘battles for survival and for respect’. In August 2011, the Tribunal reached its high point when Julian Borger of The Guardian declared ‘Mission Accomplished’ following the arrest of the final accused still at large. As of last month, the Tribunal had completed proceedings for 136 of a total of 161 persons accused, and proceedings were ongoing for the remaining twenty-five. The Tribunal’s infographic issued to celebrate the 20-year anniversary boasts of 4,000 witnesses having been heard, 7,000 trial days and 1.5 million pages of transcripts.
And yet, a recurring criticism is that all of this has taken too long and cost too much (a rough calculation yields a figure of $2.2 billion to date), while ultimately delivering too little (only 136 cases completed). However, compare this with the ICC, which in its first 10 years of operation secured just one conviction and cost $900 million. In both these examples, calculating the cost of individual trials is a largely futile exercise, however, since it doesn’t take into account set up and running costs. In terms of ‘value for money’, what is far more important is the question of what the qualitative impact of this exercise has been.
In some respects it may be too early to judge, as the Tribunal’s ‘battle for hearts and minds’ is ongoing and its legacy contested. However, after reaching its high point with the arrest of the last accused in 2011, the past couple of years have been particularly inauspicious. Analysis of various opinion polls, public statements and media coverage of war crimes issues shows that attitudes toward the Tribunal remain largely negative among the people of the former Yugoslavia (the Tribunal’s primary constituents),albeit in different ways and for different reasons. The responses in Croatia and Serbia to the recent acquittals of Generals Gotovina and Markac and General Perisic, respectively, confirmed that attitudes toward the Tribunal remained polarised along ethnic lines and that the Tribunal’s judgments were interpreted according to entrenched narratives of victimhood and denial. As one commentator (a lawyer in Zagreb) noted, “those that claimed the Hague Tribunal was in charge of distorting historical truths and that, for years, spoke of the political motivation of The Hague court will now take the verdict of that same court and accept it as a historical truth”.
This is the key failing of the ICTY: that its work has somehow been ‘lost in translation’, mediated by a hostile media and ethno-nationalist discourses. Analysis of how and why this has happened yields useful lessons for other institutions. Most importantly, efforts to foster real engagement with the process must be made in a more concerted way, and much earlier on. Although set up in opposition to one another in a recent online debate on the ICTY’s contribution, Refik Hodzic and Janine Clark were in agreement on one point: the Tribunal had woefully neglected its core constituents by starting outreach efforts too late. However, Hodzic was rather more optimistic about the prospects of utilising the ‘monumentally important’ work of the Tribunal as a tool through which to foster other efforts to come to terms with the past and one another.
Looking to the future, the challenge will be to find ways of leveraging the ICTY’s legacy in order to achieve this goal. After all, while reconciliation was never explicitly part of the Tribunal’s mandate, it was always implicitly understood to be inherent to its contribution to peace.