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Abstract
This article offers an empirically grounded assessment of whether the ICTY has achieved its goals of delivering justice and of contributing to the restoration and maintenance of peace in the former Yugoslavia. This analysis is conducted both from the perspective of Tribunal staff and of 65 victims from Bosnia and Herzegovina (BiH). It is argued that while the ICTY has not realized these two objectives, it is necessary to ask whether any court could do so. It is further contended that the ICTY’s work highlights the limitations of criminal trials. While retributive justice has an important role to play in post‐conflict societies, it is limited and is most effective when combined with restorative justice.
Notes
1. According to Zehr, ‘Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible’ (Citation2002, 37).
2. The opinions expressed by the interviewees are their own personal opinions and do not represent the official views of the ICTY or the United Nations.
3. All 65 interviewees fell into one or more of these categories. For example, three interviewees had been maimed in landmine explosions, 20 had been detained in concentration camps such as Omarska and Trnopolje, six were victims of rape/sexual abuse, and almost all of them had been internally displaced, either temporarily or permanently.
4. General Ratko Mladić was the commander of the Bosnian Serb Army and has been indicted by the ICTY for crimes against humanity, violations of the laws or customs of war, grave breaches of the Geneva Convention, and genocide. He stands accused of leading Bosnian Serb forces in the killing of an estimated 7000 Bosnian Muslim men and boys – mainly unarmed civilians – in Srebrenica in July 1995. Of the 161 individuals indicted by the ICTY, only Mladić and Goran Hadžić – the former president of the Republika Srpska Krajina in Croatia – remain at large. On 16 April 1993, the Croatian Defence Council (HVO) and a special unit of the military police, known as ‘the Jokers’, launched a surprise assault on the central Bosnian village of Ahmići, in which 116 people – including 32 women and 11 children – were killed. In 1992, in and around Prijedor and the nearby town of Kozarac in north‐western BiH, Bosnian Serbs set up the concentration camps of Keraterm, Trnopolje, Omarska and Manjača,. In the Keraterm camp, a former ceramics factory on the outskirts of Prijedor, the daily physical and psychological abuse ‘created an atmosphere of terror, and the [predominantly Bosnian Muslim] detainees [an average of 1,200 at any one time] lived in constant fear of selection for mistreatment’ (Prosecutor v. Duško Sikirica, Damir Došen and Dragan Kolundžija, Sentencing Judgement, 13 November 2001, para 86).
5. Minow observes that ‘Individuals who commit atrocities on the scale of genocide are unlikely to behave as “rational actors”, deterred by the risk of punishment. Even if they were, it is not irrational to ignore the risk of probable punishment given the track record of international law thus far’ (Citation1998, 50).
6. In the words of Volf, ‘All accounts of what is “just” are to some extent relative to a particular person or group and are invariably contested by that person’s or group’s rivals’ (Citation2000, 870).
8. This move to written testimony was seen by the ICTY judges as a way to improve efficiency, to expedite proceedings, and to overcome some of the problems created by lengthy trials. According to Judge O‐Gon Kwon, for example, ‘I believed then, as I do now, that the admission of written statements in lieu of oral evidence has enhanced and will continue to enhance the ability of chambers to manage trials of a vast scale’ (Kwon Citation2007, 6). It has been observed, however, that there is a ‘lack of unanimity amongst the [ICTY] judiciary regarding the issue of written statements’ (Fairlie 200, 80). This point is similarly highlighted by Kay (Citation2004).
9. The VWS will make a ‘comprehensive assessment’ of the situation and of the level of risk to the witness. However, it emphasizes that relocation is an ‘extreme measure’ (ICTY Citation2007a, 22). The relocation of witnesses is not mentioned in the ICTY’s Rules of Procedure and Evidence. Rules 69 and 75 deal with the protection of victims and witnesses, but only during the actual trial process and not after.
10. Historically, victims have been marginalized in international criminal law. To cite Garkawe, ‘Examining the history of international criminal courts, until the last few decades little attention has been provided to the role and rights of the victims and survivors of international crimes in the formation of accountability mechanisms dealing with perpetrators’ (Citation2003, 346).
11. Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, and Vladimir Santić, IT‐95‐16.
12. Since the ICTY has given no official reason why the Appeal Chamber’s decision in the Kupreškić case was never explained to the Muslims of Ahmići, one can only speculate. It is interesting to note that in October Citation1998, a scheduled visit to Ahmići by Judges Cassese, May and Mumba was cancelled after Stabilization Force (SFOR) troops informed them that they would not be able to go around the village on foot, due to the danger of unexploded ordinance (ICTY Citation1998). However, perhaps the most likely explanation for the fact that nobody from the Tribunal went to Ahmići in 2001, following the quashing of the Kupreškić convictions, is simply that the Tribunal’s Outreach Unit is insufficiently staffed and funded to be able to visit all the areas that it needs to. As part of its ‘Bridging the Gap’ series, between May and June 2005 the Outreach Unit organized conferences in five areas of in BiH – namely Brčko District, Foča, Konjic, Prijedor and Srebrenica – with the aim of providing local people with comprehensive information, in layman’s terms, about the Tribunal’s investigations, prosecutions and judgements regarding the crimes committed in these five areas. It is unfortunate that Ahmići was not included in the ‘Bridging the Gap’ series, and it is regrettable that there have been no further conferences since 2005. The Tribunal’s Outreach Unit has itself acknowledged ‘the need for further ICTY engagement on the community level’ to disseminate information to affected local communities (ICTY Outreach Unit Citation2007).
13. The interviewees were also extremely dissatisfied with the sentences – which they viewed as unduly lenient – given to those defendants, in particular Tihomir Blaškić and Anto Furundžija, who were found guilty for involvement in the attack on Ahmići. Blaškić was a commander of the Croatian Defence Council (HVO) in central BiH. On 3 March 2000, he was sentenced by the ICTY to 45 years’ imprisonment for grave breaches of the 1949 Geneva Convention, violations of the laws or customs of war, and crimes against humanity. On 29 July 2004, the Appeals Chamber reduced his sentence to just nine years, and on 2 August 2004 he was granted early release, thus becoming a free man (The Prosecutor v. Tihomir Blaškić, IT‐95‐14). Furundžija was a local commander of the ‘Jokers’, a unit of the HVO in the municipality of Vitez. On 10 December 1998, the Trial Chamber sentenced him to 10 years’ imprisonment for violations of the laws or customs of war (torture and outrages upon personal dignity, including rape). On 21 July 2000, the Appeals Chamber upheld the decision of the Trial Chamber. However, on 29 July 2004, Furundžija was granted early release (The Prosecutor v. Anto Furundžija, IT‐95‐17/1).
14. Upon his release from prison, Vlatko Kupreškić returned to Ahmići. He lives in the centre of the village and is the owner of its only grocery store, ‘Modus’. Drago Josipović, a former member of the HVO who was sentenced by the ICTY on 14 January 2000 to 15 years’ imprisonment (reduced on appeal to 12 years) for his role in the attack on Ahmići, has also returned to live in the village. He was granted early release in February 2006. The fact that victims and perpetrators (actual or presumed) are living alongside each other in Ahmići is significant in light of the Tribunal’s claim that its work is aiding reconciliation. At present, there is co‐existence in the village. Bosnian Muslims and Bosnian Croats live side by side, rather than together, and they simply tolerate each other rather than reach out to each other. All six Bosnian Muslim interviewees in Ahmići explained that they have no contact with Josipović and that they only have contact with Kupreškić if they need to buy something from his shop. The example of Ahmići is thus an interesting case study for exploring the relationship between co‐existence and reconciliation, and in particular whether and how the former can develop into the latter.
15. According to Vlatko Kupreškić himself, however, ‘In Ahmići, Muslims and Croats are working together. There are no problems here. Muslims come to my shop to buy things. I have non‐stop contact with Muslims’ (Author interview, Ahmići, 9 July 2008). Kupreškić does not fall into the category of ‘victim’ as defined in this article. However, the quotation from Kupreškić is included here because his description of his relationship with Muslims in Ahmići fundamentally differed from how the six Bosnian Muslim interviewees characterized their relationship with him (see note 14 above). In addition to interviewing 65 victims during fieldwork in BiH in the summer of 2008, the author also conducted a further 100 interviews (involving 106 interviewees) with, inter alia, religious figures, NGO leaders and four proven, alleged or formerly alleged perpetrators of war crimes (including Kupreškić). The data from these remaining 100 interviews will be used in subsequent work
16. How victims of human rights violations are psychologically affected by the trial process is an under‐researched area (O’Connell Citation2005, 298). Furthermore, ‘little attention has been paid to the fate of ICTY witnesses once they leave the stand and return home to their postwar communities’ (Stover Citation2007, 2). Stover’s research, in which he interviewed 87 victims or witnesses who had testified at the ICTY, is thus extremely important. His interviews, which were conducted in 2001, not only give a much‐needed voice to victims and witnesses, but they also provide critical insight into how such individuals are affected by the experience of testifying at The Hague. Hence, as Stover’s work is a valuable resource for helping to assess the Tribunal’s claim that it is delivering justice to victims, it is very relevant for the purposes of this article.
18. The interviewee was referring here to the ICTY’s sentencing of Dragan Kolundžija and Damir Došen, respectively. The former, a shift commander at the Keraterm camp, was sentenced on 13 November 2001 to just three years’ imprisonment and the latter, a shift leader at the Keraterm camp, received a five‐year prison sentence (The Prosecutor v. Duško Sikirica, Damir Došen and Dragan Kolundžija, IT‐95‐8).
19. In 2003, Darko Mrđda, a former member of the ‘intervention squad’, a special Bosnian Serb police unit in Prijedor, pleaded guilty to murder and inhumane acts. On 31 March 2004, he was sentenced to 17 years’ imprisonment (The Prosecutor v. Darko Mrđda, IT‐02‐59).
20. The Appeals Chamber emphasized that ‘de jure authority is not synonymous with effective control. Whereas the possession of de jure powers may certainly suggest a material ability to prevent or punish criminal acts of subordinates, it may be neither necessary nor sufficient to prove such ability. If de jure power always results in a presumption of effective control, then the Prosecution would be exempted from its burden to prove effective control beyond reasonable doubt’ (Prosecutor v. Naser Orić, IT‐03‐68, Appeal Judgement, para 91).
21. See note 13.
22. Mile Mrksić, Miroslav Radić and Veselin Šljivančanin were all tried for war crimes committed in Vukovar, a city in Croatia that was under siege from the Yugoslav People’s Army (JNA) from late August 1991 until 18 November 1991. On 27 September 2007, Mrksić was found guilty of violations of the laws or customs of war, and sentenced to 20 years’ imprisonment; Radić was found not guilty; and Šljivančanin was found guilty of violations of the law and customs of war, and sentenced to five years’ imprisonment. Both Mrksić and Šljivančanin have appealed against their sentences, and their cases are now pending before the Appeals Chamber (Prosecutor v. Mile Mrksić, Miroslav Radić and Veselin Šljivančanin, IT‐95‐13/1).
23. The term ‘peace‐building’ is used here to mean ‘a dynamic process with the twin objectives of consolidating peace (building positive peace) and averting a relapse into conflict (preserving negative peace), which must be balanced’ (Mani Citation2007, 15). More specifically, it is ‘a social and associative process that rebuilds fractured relationships between people and is “survivor”‐focused’ (Mani Citation2007, 15).
24. While there is no one universally agreed definition of reconciliation, this author sees reconciliation as ‘focused on the restoration of relationships’. As such, ‘reconciliation can embrace both initiatives intended to bring about socio‐economic and political institutional changes that might facilitate the restoration of new relationships, and initiatives aimed at changing people’s perceptions of themselves and former enemies such that new constructive relationships might be created’ (Rigby Citation2006, 47).
25. Meernik sought to discover what effect the ICTY has had on what he terms ‘societal peace’ in BiH, that is, ‘the degree of conflict/cooperation, short of war, among groups – defined by their ethnic, religious, or other characteristics – within nations’ (Citation2005, 272). To do this he used a quantitative approach, relying on machine‐coded data of news stories from the Kansas Event Data System (KEDS).
26. Some interviewees rejected the idea of reconciliation. According to a female interviewee in Srebrenica, ‘I am not interested in reconciliation. My two sons are dead, so how can I reconcile?’ (Author interview, Srebrenica, 24 June 2008). Others opposed the very term ‘reconciliation’. To cite a female widow in Prijedor, ‘I don’t like the word “reconciliation” because what happened here was not a war. It was Serbian aggression. So for me it is not possible to talk about “reconciliation”. It is only possible to talk about the passing of time for people to heal’ (Author interview, Prijedor, 26 July 2008).
27. The Kunarac case, for example, was the first time in which the crime of rape was successfully prosecuted as a crime against humanity (Prosecutor v. Kunarac, Kovać and Vuković, IT‐96‐23 and 23/1).
28. Under the ‘Rules of the Road’ process, in order to prevent arbitrary arrests, national courts in BiH were not permitted to issue an arrest warrant for a war crimes suspect until the case file had been reviewed and approved by the Prosecution. Between 1996 and 2004, the ICTY reviewed 1419 cases and gave its approval for 848 persons to be arrested on war crimes charges (http://www.un.org/icty/cases-e/factsheets/partnership-e.htm).
