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Challenges, Triumphs, and Failures ______ THE ROLE OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA IN INTERNATIONAL JUSTICE: CHALLENGES, TRIUMPHS, AND FAILURES ____________________________________ A Thesis Presented to the Faculty of California State University, Fullerton ____________________________________ In Partial Fulfillment of the Requirements for the Degree Master of Arts in History ____________________________________ By Stephanie Coughtry Thesis Committee Approval: Nancy Fitch, Department of History, Chair Cora Granata, Department of History Aitana Guia, Department of History Spring, 2017 ii ABSTRACT This is an analysis of the impact of the International Criminal Tribunal for the former Yugoslavia on the development of international criminal law. It begins with a review of the difficulties faced when trying to enforce the tribunal's authority including making arrests and protecting witnesses. This portion of the thesis considers how court officials adjusted their approach to become more effective, and how future iterations of international criminal justice were adjusted as a result. In the second section the difficulty of establishing legitimacy with the local populations is discussed. This section begins with a study of the perception of the courts by former Yugoslavs. This is followed by a discussion of the difficulties faced by the court in managing belligerent defendants, who sometimes conducted their own defence and were thus afforded a substantial amount of time on the floor. Last, the necessity of media presence in the courtroom and difficulties that it resulted in particularly in the high-profile cases, will be discussed. This thesis concludes that the challenges faced by the tribunal were not always satisfactorily resolved, but nevertheless, it constitutes a success by virtue of its ground-breaking developments in the area of international law and its successful imposition of justice on at least some of war’s perpetrators. ii iii TABLE OF CONTENTS ABSTRACT ................................................................................................................... i ACKNOWLEDGMENTS ............................................................................................. iv Chapter 1. INTRODUCTION ................................................................................................ 1 2. PERFORMING JUSTICE: THE PRIMARY CHALLENGES ............................ 14 Suspect at Large: The Difficulty of Making Arrests ............................................ 14 Witness Tampering ............................................................................................... 24 Other Challenges................................................................................................... 29 3. CREATING LEGITIMACY WITH LOCAL POPULATIONS .......................... 31 Public Opinion of the ICTY.................................................................................. 31 ICTY as an Extension of War .............................................................................. 35 How the Media Helped . Or Not ...................................................................... 41 4. CONCLUSION ..................................................................................................... 48 WORKS CITED ............................................................................................................ 53 iii iv ACKNOWLEDGMENTS I would like to thank the faculty of the California State University, Fullerton Department of History. So many of you have had a profound effect on my development as a scholar and as a person. A number of you have gone above and beyond in supporting me throughout my time there. I want to give a special thanks to Dr. Steve Jobbitt, whose guidance and courses led me to the course I have chosen in life. I would also like to thank Dr. Nancy Fitch, who cultivated my knowledge of theory and style. She has been a source of constant support to me during my time at CSU, Fullerton and her career is an inspiration. iv 1 CHAPTER 1 INTRODUCTION In May 1993, the United Nations made its first attempt at exacting legal justice for war crimes and crimes against humanity since the Nuremburg Trials when it established the International Criminal Tribunal for the former Yugoslavia (ICTY). The tribunal was established to call the civil and military leaders of the former Yugoslavia to account for the crimes committed by their constituent militaries and militias against civilians of differing ethnic groups. Each of the primary ethnicities involved took part in ethnic cleansing, carried out through processes of terror, rape, internment, torture, and the destruction of cultural monuments. These crimes claimed the attention of the United Nations and prompted a multifaceted approach, including judicial recourse, to address the abuses. Despite the momentousness of the events leading to the creation of the tribunal, there has been a surprising lacuna in the field of history relating to the ICTY. There has been considerable analysis on the ICTY in the fields of legal studies, including legal analyses of the governing rules of the tribunal, interpretations of various statutes, and exhaustive evaluations of judgements made by the tribunal. In international studies there are many treatises on the ICTY and how it relates to international politics and policy. In historical studies, there are mentions of the ICTY as it relates to political, diplomatic and 2 military history. What is lacking in the field of history is an analysis of the ICTY in and of itself. Not only was the tribunal the first of its kind since the Post WWII Nuremberg Trials, it was also the first attempt to shape an unbiased set of precedents that could be used beyond the tribunal’s own lifetime. The primary objective of the ICTY was to hold individuals, rather than entire communities, responsible for war crimes and crimes against humanity. It was thought that this would aid in peace and reconciliation processes, but would also act as a deterrent for future war crimes. Major political and military leaders would no longer be held unaccountable for the crimes of their forces. The key to establishing peace and promoting reconciliation was in documenting the atrocities that occurred. The media in the former Yugoslavia was controlled by governments and was used for propaganda. High profile cases were broadcast on television and lower profile cases were broadcast by radio throughout the former Yugoslavia for all to watch and bear. This was extremely important, particularly in Serbia where most people had no idea what really happened. The tribunal “contributed to an indisputable historical record, combating denial and helping communities come to terms with their recent history.”1 Many people prior to the televised hearings believed that “their” troops conducted themselves honorably, but the evidence and testimonies seen there often showed otherwise. While the Tribunal met the objective of documenting evidence of atrocities to some degree, it also highlighted some of the complications that must be overcome for 1 “About the ICTY, International Criminal Tribunal for the Former Yugoslavia,” ICTY, accessed April 7, 2016, http://www.icty.org/en/about. 3 international justice to be effective. First, the ICTY had difficulty executing the authority that the United Nations granted it. It was unable to apprehend key players that it indicted and found it difficult to protect witnesses. Second, was the difficulty of winning widespread backing for and recognition of the court’s necessity, authority, and integrity. Third, is the complication of providing former Yugoslavs with essential information that came out of the trials without providing defendants with a soapbox from which to sustain their rhetoric. These three key challenges will be examined in the chapters to follow. Through this examination, I will attempt to determine the impediments to the goals of establishing peace, promoting reconciliation, and deterring future war crimes that the ICTY faced, as well as how those obstacles were overcome. First, one must understand the context of the conflict that led to the establishment of the ICTY. The Balkan region, and particularly the area that was formerly known as Yugoslavia, has been a linchpin in the development of modern European history. The region’s pagan tribal culture was initially settled by the Greeks, then the Latins, creating the first significant empirical division. Later, the Roman Catholic, Eastern Orthodox and Islamic religions created further divisions, along with the ebb and flow of empires within those religious worlds. By the early modern period, the northwestern Latin region belonged to the Holy Roman Empire, the northeaster portion to the Byzantine empire and Orthodoxy, and the southern portion to the Ottoman empire and Islam. In the eastern area of the Yugoslav region, the native population of Serbs had maintained some level of independence as a vassal state of the Byzantine empire, though it was an independence that was constantly under assault by its neighbors. The entire Balkan region was marked 4 by conflicts between these major powers and the native populations largely converted to the religion of the occupying powers, creating the three populations discussed herein. The Serb people, as noted, were able to maintain some level of independence under the Byzantines. Modern Serbs claim that Croats and Bosnian Muslims are Serbs whose ancestors had converted to Roman Catholicism and Islam respectively, which later played a major
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