Hague Tribunal's Legacy Questioned

Wednesday, 25 June, 2014

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IWPR staff

Two decades after the Hague tribunal was created, unrealistic expectations of the impact it might have on the ground have left many Bosnians disillusioned, speakers at IWPR panel debates held in Sarajevo and London said last week.

The two events were based around IWPR’s recent report Hague Tribunal: Truth, Justice – and Reconciliation Too? which looked at the legacy the court leaves behind as it prepares to wind up its work – above all its impact on communities affected by the 1992-95 war in Bosnia.

Founded in 1993 when the war was still going on, the International Criminal Tribunal for the former Yugoslavia (ICTY) was assigned the task of “bringing justice to those responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991, and thus contribute to the restoration and maintenance of peace in the region”.

Since then, the tribunal’s website says, ICTY judgements have “contributed to creating a historical record, combating denial and preventing attempts at revisionism and provided the basis for future transitional justice initiatives in the region”.

Panellists in both IWPR discussions drew a distinction between these two somewhat disparate aims, saying that while the ICTY had secured all its suspects and put them on trial, the wider aim of contributing to lasting peace and reconciliation was perhaps never realistic.

“I do believe that the ICTY was necessary, both as an academic and as a practitioner,” Kevin Heller, professor of criminal law at London’s School of African and Oriental Studies, said at the June 19 event held at IWPR’s London offices. “The problem is that international criminal law, and the ICTY in particular, is freighted with so many goals and hopes that we were bound to be disappointed.“

The court’s primary purpose – “to convict the guilty people of crimes and take them out of the situation” – had been achieved, Heller said,

At the debate in Sarajevo on June 12, panellist Almir Alic, the ICTY’s outreach liaison officer in Sarajevo, said the IWPR article “puts the perception of this institution by local communities into the wider context of reconciliation and transitional justice in Bosnia and Herzegovina”.

He added that it was obvious that in the years following the war, Bosnians had “very unrealistic expectations” of the ICTY and were subsequently disillusioned by the limits of its mandate.

“What people expected the ICTY to do went far beyond the mandate of this institution, which was to prosecute individuals responsible for serious violations of international humanitarian law in the former Yugoslavia,” Alic said.

Noting that the ICTY was often seen as having an obligation to foster reconciliation, Alic said this view blurred the need for responsibility for this to lie primarily with local communities; it could not be imposed from the outside.

Alic went on to discuss the different historical narratives that still exist in Bosnia despite the facts laid out in ICTY verdicts.

“Questions of truth, historical facts, reparations for the victims, memorialisation – all touched upon in IWPR’s special report – are part of the bigger picture of transitional justice and reconciliation, whereas war crimes trials at the ICTY only deal with judicial justice,” he said. “The big problem here is that Bosnian society is characterised by completely contradictory historical narratives, all of which are pretending to possess an exclusive right to the truth. There is a widespread culture of denial for crimes which happened to the ‘other’, and a constructed need to provide exclusive status as victims only for members of one’s own community.

Velma Saric, one of the report’s authors, spoke at the Sarajevo debate to give her impressions from several Bosnian towns and villages which she visited with co-author Rachel Irwin when they were researching the article.

Saric said she was stunned by the “denial of war crimes that is still present in all these places and the fact that people are so reluctant to accept the facts about the Bosnian war established by the Hague tribunal”.

Speaking in London, Rachel Irwin said that while the ICTY had a “specific mandate of bringing people to justice”, it had always been about “more than just creating a record”.

In Bosnia, though, “each group still clings to its own version of events”, she added.

Eric Gordy, senior lecturer at University College London, said that expecting consensus from former combatants was unrealistic.

“Developing a shared narrative is a goal that cannot be achieved and hasn’t been achieved anywhere,” he said, noting that many fundamental parts of Bosnian war’s narrative remained in dispute. “There is no agreement of the date the conflict began, of the number of victims – basic facts need to be established.”

Communication problems dogged the ICTY’s proceedings, as did what Gordy sees as a “very weak” level of local involvement in its works. “If people from the region appeared, it was as either the indictee or a witness,” he said.

IWPR Africa editor Simon Jennings said these issues were among the many lessons that needed to be learnt from the ICTY experience to improve international justice. He noted that the International Criminal Court (ICC), also in The Hague, has faced numerous challenges.

One of these is the principle of “complementarity” – the idea that national judiciaries should try lower-level suspects when the ICC deals with high-level cases. This has had limited success.

“The ICC has charged leaders in Kenya, Uganda and DRC [Democratic Republic of Congo], but there have been very limited mechanisms set up to try the bulk of perpetrators more locally,” Jennings said. “In Uganda, the War Crimes Division of the High Court exists, but only has a mandate to prosecute rebel troops, with government forces excluded.”

As for communicating its message, he said, the ICC “needs to reach out to people in remote parts of countries; it needs to get out there and explain its case. The ICC started off quite badly in parts of DRC and northern Uganda but has got better. It’s doing more in Kenya, and in Chad for Darfur, because the ICC can’t get into [Sudanese] Darfur.”

Ultimately, there was agreement that the ICTY process had been necessary, if imperfect.

“I am disappointed with the effect the ICTY has had on the ground,” said Merdijana Sadovic, IWPR’s regional director for the Western Balkans, who joined the London debate via video link. “The only thing that gives me hope is young people in Bosnia and Serbia and other parts of the Balkans. They are more open to different narratives, as we have learned from our experience.”

However, she added, “There is no alternative to the ICTY. It’s true that not everyone in Bosnia accepts its judgements, but its work is extremely important and I hope that one day the facts established by the court will be accepted and children will learn them in schools – maybe in a decade or two.”

Sarajevo panellist Lejla Mamut, human rights coordinator with the Track Impunity Always (TRIAL) group, also focused on the importance of young people to longer-term societal change.

“Transitional justice is a process that directly affects our future, and therefore it is very important to analyse its contact points with youth and the younger generation in Bosnia and beyond,” she said during the Sarajevo debate. “I am very glad that the report points out difficult challenges faced by younger generations living in these post-conflict times.”

Alic said that transitional justice was not currently being addressed in Bosnia’s education system, something he said “makes it exceedingly difficult, if not impossible, for younger generations to learn how to deal with their own past”.

Gordy said the tribunal proceedings amounted to an invaluable body of work for future generations to examine.

“The ICTY’s eventual value depends not so much on what has been done by the court but on what other people do with what has been done,” he said. “There is an immense historical record.”