Oversell but Underperform? The Increasingly Troubled Legacy of the ICTY

Once again, transitional justice-watchers are enthralled with the International Criminal Tribunal for the Former Yugoslavia (ICTY). After dishing out one controversial acquittal after another for months, the tribunal is now embroiled in a bona fide scandal.  It involves a major transgression of protocol and norms that guide institutional behaviour, public condemnations of the discrepancy between words and deeds, and, according to The New York Times, a “mini-rebellion” against the institution’s current hierarchy. It all began with a leaked email message in which the Danish judge, Frederik Harhoff, ranted to four dozen colleagues and associates about the tribunal’s misdirection.  This email is now on the website of Berlingske, a Danish newspaper.

ICTY officials never claimed to institutionalize, encompass, or represent all facets of transitional justice, but they did capitalize on the fact that “reconciliation” is an easier sell than “punishment.”   Whether this legitimation strategy actually worked with all those apprehensive, sceptical and outright hostile ex-Yugoslav constituents is debatable.

In criticizing the ICTY’s “latest judgments,” Harhoff specifically refers to the appeals chamber rulings that acquitted three senior generals, Croatia’s Gotovina and Markač, plus Serbia’s Perišić, as well a dismissal of a case against two secret police men, Serbia’s Stanišić and Simatović (the recent and equally controversial acquittal of three members of the Kosovo Liberation Army goes unaddressed). Harhoff also laments the dilution, as he sees it, of the concept of “joint criminal enterprise,” a legal doctrine with roots in the Nuremburg and Tokyo trials of war criminals that allows the prosecution of those involved in conspiracies to exterminate and/or expel entire communities of people.  This is hardly dynamite: many legal experts have already argued that these rulings raised the bar for proving so-called command responsibility for war crimes (absent evidence that they “specifically directed” the crime, the accused are now likely to walk even if it is proven beyond reasonable doubt that they were in command of and/or logistically and financially supported those committing the killings). What is dynamite, however, is Harhoff’s (wholly unproven) insinuation that there is a principal-agent link between, on the one hand, U.S. and Israeli militaries and, on other hand, the American judge Theodor Meron, current president of the ICTY (who happens to be a former Israeli diplomat).

So far, the political fallout has been predictable.  Court officials held a press conference to limit the damage; an association of ICTY defence counsel declared that this email “undermines years of effort by judges and lawyers alike to create a fair and just institution of international justice”; and a couple of defence teams are seeking review based on Harhoff’s bias, and long-time critics of the court are outraged.  One must also not forget all those gleeful conspiracy theorists, who are reading Harhoff’s email as proof that they had been right about the tribunal’s supposed hidden agenda all along (one of them is Šešelj, the Serbian ultra-nationalist politician who has been in custody of the ICTY since 2003: “I’ve been telling you that the court is an American-Israeli tool for years!”).

The scandal is overblown, but it has already tarnished the tribunal’s twenty year anniversary.  What I offer here is my own interim score sheet, based on the objectives the ICTY sets for itself on its website.   Has the tribunal “protected communities from being labelled as ‘collectively responsible’.”  Yes. This legacy of post-World War II justice holds.  Has the ICTY demonstrated that senior officials are no longer immune from prosecution?  Yes, within well-known limits. ICTY rulings continue to have a direct bearing on many international justice developments (for an overview, see this much-shared Leitner Center document and note that the power of the legal precedent is precisely what motivated Harhoff to blow the whistle on the alleged political pressure).  Has it shown that “efficient and transparent international justice is possible”?  Overall, yes, but it would help to investigate the Danish judge’s claims – as well as similar claims made by chatty court insiders who spoke out before him. Has the tribunal demonstrated “fairness and impartiality”?  Not to everybody, unsurprisingly. Most Serbs see the court as hopelessly anti-Serb, and so will most Bosnian Croats if the appeals chamber fails to overturn the Prlić et al conviction.

There are, however, tougher questions to answer: has the ICTY “contributed to an indisputable historical record, combating denial and helping communities come to terms with their recent history,” and has it “helped pave the way for reconciliation”?  The polite answer is “not yet,” but the problem here is not temporal.  As Jelena Subotić has shown, the international provision of transitional justice is all too easily hijacked locally for political ends.  Further, while fewer and fewer ex-Yugoslav politicians are able to deny that war crimes took place, many nevertheless are still all too quick to equate each individual ICTY acquittal with state-level exculpation.  The rulings cited above have thus been touted as “decisive proof” that the Bosnian conflict was “pure” civil war or that Croatia’s 1995 offensives were “strictly” self-defence.

One issue here is the failure to reach out to core constituencies, as Rachel Kerr discussed in a recent post here at the CIPS Blog  (and in this 2012 policy brief).  More fundamentally, however, the problem is overpromise. Was the talk of reconciliation (to say nothing of healing or closure) so pervasive at Nuremberg and Tokyo, too?  I don’t know, but I can see how this discourse could entrap an international legal venue, both rhetorically and politically.  At one level, the very idea is fanciful; even the most balanced mix of perfectly executed international and domestic trials, official apologies, truth commissions, reparations, and lustrations would not necessarily restore trust as well as promote mutual understanding and coexistence.  And yet, the idea of reconciliation has been articulated in just about every mission statement issued by the tribunal since 1993.  ICTY officials never claimed to institutionalize, encompass, or represent all facets of transitional justice, but they did capitalize on the fact that “reconciliation” is an easier sell than “punishment.”  Whether this legitimation strategy actually worked with all those apprehensive, sceptical and outright hostile ex-Yugoslav constituents is debatable, but what seems certain to me is that it created a high-stakes test that the tribunal simply cannot pass.

Cross-posted at The Holland Bureau.

 

 

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