Peace through Justice? The International Criminal Tribunal for the Former Yugoslavia

Abstract

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993 with an explicit mandate to contribute to the restoration and maintenance of international peace and security through the administration of justice. In spite of early difficulties and widespread scepticism, the Tribunal evolved into a fully functioning international criminal court, operating in real‐time over Kosovo in 1998–1999. From the point when the first arrests were carried out by international forces, in summer 1997, the ICTY was seen to be a key element of transition from war to peace in the former Yugoslavia. Critical to its success or failure, however, was the attitude of states in the region. This operated on two levels: first, without its own enforcement capability, the ICTY is wholly reliant on state cooperation in order to fulfil its judicial mandate; and second, the effective communication of its work is dependent on the attitude of the government and media in the states concerned. There is a symbiotic relationship between peace and justice, exemplified most clearly in the attitude of the European Union, which has made cooperation with the ICTY a sine qua non in accession negotiations. Dealing with the war crimes legacy is therefore recognised as important pragmatically in the short‐term in order to reap the benefits of membership in Euro‐Atlantic institutions. Behind this pragmatic approach lies the longer‐term and deeper impact that dealing with the war crimes legacy will have on future peace and security in the region.

Acknowledgements

This article, in part, draws on research on Peace and Justice funded by the British Academy and published by Polity Press (Rachel Kerr and Eirin Mobekk, Peace and Justice: Seeking Accountability After War. Cambridge: Polity, 2007). In this context, I am grateful to my co‐author, Eirin Mobekk. I am also grateful to colleagues at King’s College London, especially James Gow, Ivan Zveržhanovski and the War Crimes Research Group.

Notes

[1] For discussion of the Yugoslav War and the response of the international community, see Gow (1997).

[2] Dragan Nikolić was charged with ‘grave breaches’, violations of the laws and customs of war, and crimes against humanity for acts allegedly committed at the Susica Camp in eastern Bosnia.

[3] Some of these early indictments were later withdrawn.

[4] A committee was established to look into allegations of war crimes committed by NATO forces during Operation Allied Force, but it was not pursued because of a lack of evidence.

[5] For full discussion of the jurisprudential impact of the tribunals, see the collection of articles commemorating ten years of the ICTY in the Journal of International Criminal Justice 2, no. 2 (2004).

[6] Plavšić was sentenced to 11 years’ imprisonment in February 2003.

[7] Initially convicted of conspiracy to commit genocide and sentenced to 46 years, his sentence was reduced on appeal to 35 years to reflect the finding that he was not guilty of conspiracy, but of ‘aiding and abetting’ genocide.

[8] This may indeed have been a blessing in disguise in light of the serious flaws in the prosecution’s case (see Gow & Zverzhanovski 2004).

[9] In January 1996, President Cassese obtained the agreement of the Belgrade authorities for the Prosecutor to open a field office there. In addition, the Belgrade authorities suggested that they might be willing to arrest and transfer non‐nationals to the tribunal, although they maintained that transfer of nationals was precluded by extradition laws.

[10] ‘Yugoslav Rails against UN Prosecutor’, The Boston Globe, 25 May 2000.

[11] CC/PIO/030‐E, 6 February 1996.

[12] ‘Croat President Invites Serb Return’, BBC News Online, 10 February 2000.

[13] ‘The Fugitive Who Stands in the Way of Croatia’s EU Entry’, The Guardian, 18 March 2005; see Peskin & Boduszynski (2003).

[14] There was however a spate of voluntary surrenders when the SNSD were in the ascendant during Milorad Dodik’s tenure as prime minister in 1998.

[15] Defence and Security Committee Report, 20–22 September 2004.

[16] The Commission was established by the RS National Assembly on 25 December 2003 following the Human Rights Chamber ruling on Srebrenica, which lambasted the failure of the RS authorities to inform people about the fate and whereabouts of their missing loved ones and called on the RS to conduct meaningful and effective investigations into the events at Srebrenica between 10 and 19 July 1995. In its final report, handed to the RS government on 14 October 2004, the Commission acknowledged that at least 7,000 were killed by Bosnian Serb forces in Srebrenica, citing a provisional figure of 7,800 (‘Bosnian Serbs Admit 7,000 Killed in Srebrenica Massacre’, RFE/RL Newsline 8/196, 15 October 2004. Available online at: http://www.rferl.org/newsline/2004/10/151004.asp; see Kerr 2005).

[17] Oslobodjenje, 5 February 2005 [OHR media monitoring].