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.
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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
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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 role in Serbian aims of creating a “greater Serbia” and their views of non-
Serb Slavs, which will be discussed in greater detail below.2 The oppression and occupation of Serbs and their native lands was a primary factor in the ignition of World
War I, when a Serbian assassin killed Archduke Franz Ferdinand, the presumptive heir to the Austro-Hungarian Empire. Following World War I the Kingdom of Yugoslavia was established, though tensions between Serbian and Croatian politicians over the amount of power held by each, left the parliamentary monarchy unstable.
In World War II the region’s delicate arrangement was destroyed by German forces, with Croatia’s Fascist Ustaše turning on its neighbors, creating concentration camps, and committing genocide against Serbs.3 Serbian forces were divided between
Chetniks, who supported the established (but overthrown) government, and the Partisans,
Yugoslav socialists who took advantage of the chaos to establish a foothold.4 The
2 The discourse of radical nationalists often carried an undertone that Croats and Muslim Bosnians had abandoned their faith, or at least descendants of those that had.
3 The Ustaše implemented genocidal policies with a dismal level of enthusiasm that elicited comment from both Nazi and Italian soldiers, with many photos of Serbian victims that had been beheaded, de-limbed, and otherwise abused. These crimes were carried out against the elderly, children and women, as well as against men of fighting age. Others were imprisoned in concentration camps.
4 The Chetniks were exclusively Serbian and often persecuted their ethnic others.
5
Chetniks and Partisans fought each other as often as they did the Ustaše. At the conclusion of the war the Yugoslav region was pieced back together under the Partisan’s military leader, Josip Broz Tito, with six republics and two autonomous provinces.
Under Tito’s strict rule, social unrest and nationalist parties were quickly subdued with the apprehension, trial, and imprisonment or execution, of bourgeoisie and political dissidents of any group. However, the uprisings of ethnic groups were not always suppressed. The 1974 constitutional revision granted greater autonomy and political influence to non-Serb minorities. This created a disconnect among elite Serbs who felt that their power was being encroached on, and nationalist sentiments that had marinated among some of the population since the unification of the region in 1918 became more problematic.5 While the common citizen embraced the Yugoslav identity, the political elite of each ethnic group chaffed under the constraints that equality necessitated. Tito died in 1980 and without his unifying leadership, nationalism intensified. The economy that had slowly lost its viability in the last decade of Tito’s life declined even further and could no longer sustain its people.
At this important juncture, government functionaries took the place of Tito’s leadership made up of military officers that served under Tito in the Second World War.
Serbian politician Slobodan Milošević, for example, demonstrated an excellent grasp of the mechanisms of the government, which he was, in turn, able to manipulate to further his own political aspirations. The government was set up to allow each republic their own representation within the government, but without Tito to ensure cooperation, the more power hungry politicians used the deficit to gain power and the control of resources.
5 Noel Malcolm, Bosnia: A short history (NYU Press, 1996), 204.
6
After a decade of economic recession, escalating tensions between ethnic groups, and the destabilizing collapse of the Soviet Union in 1989, the Yugoslav republic quickly deteriorated. Unresolved historical conflicts beginning with the great empires of the early modern period were used by politicians to garner support in the elections that followed.
The historical contest for territory by those empires is made evident by the ethnic mix of populations where those empires’ frontiers met. Though those people had no enmity leading up to the wars, some politicians took advantage of the chaos and uncertainty to manipulate their way into power using national myths. The Battle of Kosovo, for example, was used to rally Serbs to the nationalist ethos and to invigorate troops throughout the conflict.
In his Field Speech of 1989 commemorating the 600th anniversary of the Battle of
Kosovo, Milosevic characterized that battle as marking the beginning of Serbian
“enslavement” under the Ottoman Empire. Not only that, the outnumbered, yet courageous,
Serbian army held the Ottomans at bay, until the near mutual destruction of both armies.
Despite the heroic efforts of the Serbs, the destruction of the Serbian contingent allowed for Ottoman reinforcements to return and claim their prize. This battle, Milosevic implied, was symbolic of the struggle for liberty that Serbs were constantly working toward.
They liberated themselves and when they could they also helped others to liberate themselves. The fact that in this region they are a major nation is not a Serbian sin or shame; this is an advantage which they have not used against others, but I must say that here, in this big, legendary field of Kosovo, the Serbs have not used the advantage of being great for their own benefit either.6
6 http://www.slobodan-milosevic.org/spch-kosovo1989.htm
7
Ironically, Milošević, strategically applied pressure to weaker aspects of the republic to inflame discontent in Vojvodina and Montenegro among factory workers, leading to the resignation of each republic’s Politburo, allowing Milošević to place hand- picked representatives and gain votes in the eight-person presidency.7 Additionally, after the secession of Slovenia, Croatia, and Bosnia, small fragments of Croatia were being chipped away by Serbian forces on the grounds that Serbian populations were supposedly at risk of attack from the Ustaše in Croatia, or from Muslims in Bosnia.8 Though
Slovenia was allowed its freedom after a brief period of negotiation, the mixed communities near the boundaries between Serbia, Croatia, and Bosnia were hotly contested.
In several interviews with the international press, Milošević expressed an interest in preserving Yugoslavia in its original state, as a confederation of southern Slavs. Of course, he did not mention that Serbia’s rightful place in the arrangement was to be the preeminent cultural hegemon, or that he considered other ethnic Slavs to have originally been Serbian. As such, some nationalist propagandists like Vojislav Šešelj regarded non-
Serbs as traitors to their people. Nationalist perspectives and convoluted interpretations of murder Serbs presented as ethnic crimes, inundated the tightly controlled television airwaves.9
7 Malcolm, 211-212.
8 Ibid, 217.
9 Dubravka Žarkov, The Body of War: Media, Ethnicity, and Gender in the Break-up of Yugoslavia (Duke University Press, 2007), 69.
8
Similar campaigns expressed from the Croatian perspective painted Serbians as dominating and hateful towards others as a historically established pattern. The history of
Serbian domination in politics was seen by some as proof that bullying was inherent in the character of Serbs as a whole. Serbs living in areas dominated by Croats were subsequently segregated at the community level, denied access to water and food while they were generally terrorized. This happened all across Croatia and Bosnia-Herzegovina.
Each ethnic group had some nationalists who took exception to the other ethnic groups.
In Croatia, Serbian and Muslim minorities were persecuted. In Bosnia Herzegovina,
Serbians and Croats were the unwanted. In areas where Serbs were the majority, Croats and Muslims were set apart. At the same time, the political situation led to the withdrawal of Croatia and Bosnia from the union, leaving only Serbian politicians to claim the namesake of Yugoslavia. The “Yugoslav” leadership declared war. Most leaders of the war, particularly political leaders, insisted on their innocence in the murders in the context of extreme human rights violations, before and throughout their trials in
International courts.
The ICTY was established in 1993 by UN resolution 827 with the express intent of helping to end and redress the egregious human rights violations occurring.10 The UN concurrently imposed economic sanctions, exerted diplomatic pressure, sent military observers, established safe havens, and eventually, applied military force in the form of the strategic bombing of Serbia, which had remained virtually untouched in the conflict.
Each of these tactics failed with soldiers, often territorial defence troops and
10 “S/RES/827(1993) - E,” accessed May 17, 2017, http://undocs.org/S/RES/827 (1993).
9 paramilitaries with a confused chain of command, breaking ceasefires and over-running safe zones. With the establishment of the courts, men and women came forward to report abuses. After such accusations, the prosecutor investigated, gathered evidence, and brought charges on some important figures. The transcripts from court proceedings and admissions of guilt from some, are available to the public online. Many of the trials were also televised or broadcast on the radio, which was an important step in bringing awareness to the populations, whose sources of information on the war were often controlled by the state and functioned as an outlet for propaganda.
The media presented a particular difficulty. It was essential for the population to have access to watching or listening to the trials, but many of those on trial were practiced at using the media to further spread their ideologies. One such personality was that of Vojislav Šešelj. He was a prominent nationalist who was known for his rabble- rousing rhetoric. In the lead up to the war he proclaimed on television that Serbs would gouge out the eyes and cut the throats of Croats with rusty spoons.11 He had no difficulty in admitting the hateful reality of his views, stating in 1997, “We're not fascists. We're just chauvinists who hate Croats."12 Following his indictment in 2003, Šešelj announced that he would surrender himself and held a farewell rally attended by some ten-thousand supporters where his purpose in surrendering was clearly stated and will be discussed in
11 Ian Traynor, “War Crime Suspects Go for Win in Serb Poll,” The Guardian, December 27, 2003, World edition, Accessed July 7, 2016, http://www.guardian.co.uk/world/2003/dec/27/balkans.warcrimes.
12 “Vojislav Seselj in His Own Words,” BBC, November 7, 2007, sec. Accessed July 7, 2016, http://news.bbc.co.uk/2/hi/europe/2793899.stm.
10 more depth later in this thesis. The importance of Šešelj at this point is the strength of his personality.
Šešelj was perhaps the most rabid nationalist in the region. There was an enormous economic strain in the decade leading up to and following Tito’s death, which led to the leaders of Yugoslavia’s constituent nations blaming the other ethnic groups.
The lack of a solid unifying leader created fertile ground for the ideas of Šešelj and other demagogues to take hold among any Serbians in search of a modified identity, reflective of their post-communist state. While a nationalist ideology was relatively common among intellectuals and politicians, as previously noted, many citizens considered themselves true Yugoslavs. The communist regime did not allow for nationalism, nor competing ideologies. People who were unaccustomed to deliberating and deciding for themselves what their political values were suddenly had to fill that void.
As witness VS-037 noted of a rally held by Šešelj, “a politician who criticized the government at the time was coming. Because, you know, after all we lived in communism for a long time, where you didn’t dare say anything against the powers that be. So for young people this was an interesting thing to go and hear what this was all about.”13 (Sic) Šešelj had a captive audience that was hungry for new ideas and was certainly unused to sifting through the authoritative opinions of highly educated individuals. As a historian and legal scholar, Šešelj would seem an eminently qualified authority on both the current and historical situation in that region. It is not surprising that some people took his views as historical fact, though many can and do disagree with his
13 Witness VS-037’s Testimony in Prosecutor v. Vojislav Šešelj, Case No. IT-03-67 ICTY (Jan. 12, 2010), 14875.
11 interpretation. And this goes for each of the ethnicities involved. There are a number of examples of Croats and Muslim Bosnians who made unflattering generalizations about their others as well.
The result, as is often the case when a war is based entirely on the concept of the enemy as “other,” was horrific. Civilians who did not belong to whichever force held a territory were often gathered together in clusters of apartments or houses where their food and water were restricted. Serbs living in an enclave in the city of Goražda under Muslim forces had to provide for their own food, though they were not allowed to leave their assigned homes. Usually, food had to be bartered for cigarettes and had to be brought in by Muslim friends, who themselves risked distinguishing themselves as sympathetic to
Serbs.14 Conditions were similar in the enclaves of each disfavoured ethnic group, but those who suffered most were usually those sent to prison camps.
In many prison camps, beatings occurred every night, though not always to the same people. Some prisoners reported beatings only at night and while walking down hallways, while prisoners from other camps reported soldiers coming into their room and beating the nearest detainees at will. On Nedeljko Radic’s first night at the Srebrenica police station, he was beaten with wooden boards, fracturing multiple bones and knocking several of his teeth out. The next night the same soldier pulled out remaining bits of teeth with pliers, and rinsed Nedeljko’s mouth with urine to disinfect it.15 Prisoners would be
14 Savo Heleta, Not my Turn to Die: Memoirs of a Broken Childhood in Bosnia (New York: Amacon, 2008), 86-88.
15 Nadeljko Radić’s Testimony in Prosecutor v. Naser Orić, Case No. IT-03-68 ICTY (Jan. 13, 2005), 3525.
12 beat for half to one full hour, and were dumped back into their dorms with broken bones sometimes visibly apparent.16 Medical care was minimal, and with supplies in short order, prisoners had to make do with having wounds treated by other detainees without the benefit of anesthetics, and were stitched together with a regular sewing needle and thread.17, 18
These are just some brief generalizations about experiences in enclaves or prison camps.
The specifics for any given location may vary, but the overall experience of any victim, regardless of their ethnicity and that of their abusers, was one created by hatred, which was intentionally promoted and even manufactured by political and military leadership.
It is extremely important to note that this analysis is in no way meant to condemn or single out one ethnicity over any other. The simple fact is that much more evidence has been assembled against Serbian defendants and there were many more Serbs indicted than other groups. As a result, much of this thesis centers on them. Additionally, the fighting and abuses took place mostly along the areas surrounding republic borders and the north-eastern portion of Bosnia-Herzegovina where the population was more ethnically diverse. These are the same areas fought over by occupying empires and were the most ethnically diverse areas. Proponents for a ‘Greater Serbia’ claimed those same territories as traditionally Serb, since they were also home to significant Serbian populations. Lastly, we must consider that, as the last remaining power in the Republic of
16 Rezak Hukanović, The tenth circle of hell: A memoir of life in the death camps of Bosnia. Basic Books, 1996, 39.
17 Dr. Idriz Merdzanic’s Testimony in Prosecutor v. Milomir Stakic, Case No. IT-97-24 ICTY, (Sept. 10, 2002), 7724.
18 Witness FWS-198’s testimony in Prosecutor v. Krnojelec, Case No. IT-97-25 ICTY, Nov. 9, 2000), 1010.
13
Yugoslavia, Serbia was the primary beneficiary of Yugoslavia’s death and inherited the arms and military organization of the Yugoslav People’s Army (JNA). This is not to say that Muslim Bosnians or Croats started from scratch, but there were certain benefits to receiving the majority of JNA resources, and a well-organized and mostly complete officer corps. The unfortunate fact is that civilians from all sides were treated horribly and the uneven focus towards Serbs reflects the fact that they were the primary aggressors in the conflict, that they had greater resources, and that they wanted territories that were traditionally a part of other republics.
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CHAPTER 2
PERFORMING JUSTICE: THE PRIMARY CHALLENGES
The idea to create an international justice system is common sense, but following the establishment of the ICTY by the UN Security Council, the reality of day to day implementation of justice calls attention to the many challenges of actually accomplishing all that that entails. There were two particularly difficult barriers that the
ICTY faced. One is how to arrest an indicted individual, particularly when a conflict is ongoing or that person is a high ranking official. The other is the necessity of protecting witnesses from persecution so that they feel safe in testifying. In both situations, the central problem is the lack of a military or police force that holds jurisdiction to arrest the suspect while also having a reasonable guarantee of safety.
Suspect at Large: The Difficulty of Making Arrests
There are several instances of an indictment made of a person still actively involved in the government or military. One of the ICTY’s most notable indictments was of Serbian President Slobodan Milošević, the first ever sitting head of state to be indicted.19 Milošević’s indictment was announced and a warrant for his arrest was issued on May 27, 1999. He was indicted on charges involving the ethnic cleansing of Muslim’s
19 Ian Black and Chris Bird, “Making Milošević Pay: Indictment: A landmark decision has been made but what happens next remains unclear,” The Guardian, May 28 1999.
15 in Kosovo.20 Police finally arrested Milošević on April 2, 2001 after a two-day siege of his home. In that two days, the special police forces exchanged fire with body guards and army personnel. They also had to repel a large gathering of Milošević’s civilian supporters who were there to protest his arrest and show support for Milošević.21
In this, the larger issue is made evident, which is the reluctance of states to acknowledge outside jurisdiction within their sovereign territory. The arrest warrant for
Milošević was made two years prior to his arrest, and in that time Milošević was able to continue his normal routines, speaking at very public military officer training graduation ceremonies and campaigning in the lead up to elections in the fall of 1999.22 Milošević was declared the winner in those elections, though the disputed results and subsequent popular demonstrations did lead to his resignation as president.
However, his arrest was not made with the purpose of extradition to the ICTY; he was arrested for the purpose of prosecution within Serbia on charges of corruption and
20 “President Milosevic and Four Other Senior Fry Officials Indicted for Murder, Persecution and Deportation in Kosovo.,” International Criminal Tribunal for the Former Yugoslavia: Press, May 27, 1999, accessed 21 April, 2016 http://www.icty.org/en/sid/7765.
21 Jerrold M. Post and Lara K. Panis, “Tyranny on Trial: Personality and Courtroom Conduct of Defendants Slobodan Milosevic and Saddam Hussein,” Cornell International Law Journal 38 (2005): 823.
22 “Milošević: Defiance on Parade,” BBC News. October 1, 2000, accessed April 21 2016. http://news.bbc.co.uk/2/hi/not_in_website/syndication/monitoring/media_reports/950436. stm
16 embezzlement among other things.23 It was only after the prosecutor failed to present adequate evidence for those proceedings that Milošević was transferred to the ICTY.
Doran Djindjic, the Serbian Prime Minister at the time, covertly arranged for the transfer and, after the deed was accomplished, claimed that he wanted to secure international good will and financial backing that was contingent upon Milošević’s transfer. He stated that President Vojislav Kostunica, who assumed the role of president following
Milošević’s resignation, knew of the transfer, though Kostunica denied that fact and reasserted his opposition to such extraditions.24
Several other high ranking officials were able to evade arrest for many years. In
November 1995, General Ratko Mladić, the commander of the Bosnian-Serb Army, and
Radovan Karadžić, the president of the Bosnian-Serb administration, were indicted for charges of crimes against humanity, genocide, and violations of the laws or customs of war.25 Almost thirteen years later Karadžić was finally arrested in July 2008 and was found working as a new age healer in Belgrade.26 Mladić remained free for nearly sixteen
23 Alessio Vinci, “Slobodan Milosevic to Stand Trial in Serbia,” CNN, March 31, 2001, transcript, http://transcripts.cnn.com/TRANSCRIPTS/0103/31/bn.03.html
24 Carlotta Gall, “Serbian Tells of Spiriting Milošević Away,” New York Times: World, July 1 2001, accessed April 21, 2016, http://www.nytimes.com/2001/07/01/world/serbian-tells-of-spiriting-milosevic- away.html accesses.
25 “Press: International Criminal Tribunal for the Former Yugoslavia,” accessed April 13, 2016, http://www.icty.org/sid/7221.
26 International Criminal Tribunal for the Former Yugoslavia, “Case Information Sheet: Radovan Karadžić (Case No. IT-95-5/18),” http://www.icty.org/x/cases/karadzic/cis/en/cis_karadzic_en.pdf (accessed 13 April 2016).
17 years and was arrested in May 2011.27 The pair were indicted together due in particular to their involvement in the massacre at Srebrenica.
Srebrenica was declared a UN Safe Zone in an attempt to cull the number of shellings and sniper fire rained down upon the population there by Serbian forces, who besieged the city for forty-four months. Four-hundred Dutch soldiers were deployed as peacekeepers and an area was fenced off for refugees to safely retreat to. Frustrated with the ongoing difficulty of expelling the population there, Karadžić, as president of the
Republika Srpska (the Bosnian-Serb government), issued what was commonly referred to as Directive 7. The document ordered the mobilization of the army “with the objective of crushing and defeating the enemy.”28
Mladić’s interpretation and execution of the orders resulted in the massacre of over eight thousand Muslim men, boys, women and children, all making an attempt to escape the region. Some were expected to be loaded on buses and transferred to Muslim held territories, but the prisoners on these buses were subsequently unloaded at a nearby farm, lined up, and summarily executed. Those who tried to enter the safe zone were not allowed in; in fact, many Muslim families were made to leave when it was demanded by
Mladić.29 Those who attempted to flee to safety through the forest were hunted down and
27 International Criminal Tribunal for the Former Yugoslavia, “Case Information Sheet: Ratko Mladić, (Case No. IT-09-92),” http://www.icty.org/x/cases/mladic/cis/en/cis_mladic_en.pdf (accessed 13 April 2016).
28 Supreme Command of the Armed Forces of Republika Srpska, Directive for Further Operations OP. NO. 7, Ref. no: 2/2-11, signed by Dr. Radovan Karadžić (8 March 1995).
29 Lauren Comiteau, "Court says the Dutch are to blame for Srebrenica deaths," Time World, July 06, 2011, accessed February 2, 2017, http://content.time.com/time/world/article/0,8599,2081634,00.html.
18 also executed. Women and girls were commonly raped as well.30 Mladić and Karadžić were the most wanted officials from the war, and yet both remained free for over a decade following their indictment.
The massacre at Srebrenica opened the eyes of the international community. If safe zones were to be implemented, then they needed to have considerable military resources and backing. In the past (that is, up until the point that the Soviet Union collapsed), the contribution of peacekeepers was as military observers in situations where the parties at war had agreed to a ceasefire or where contributing parties to peacekeeping were willing to use military force to ensure compliance.31 The Srebrenica safe zones were implemented in a hurried attempt at protecting civilians from the shelling by
Serbian forces, but they were not supposed to engage with the combatants and did not have the necessary supplies and forces to do so.32 Though the UN Security Council was consistently meeting to discuss the situation, without cooperation from the Bosnian Serb leadership or the willingness to resort to military enforcement, the Bosnian Serb military took their resolutions as mere suggestions, which they chose not to abide by.
Following the disaster at Srebrenica, as well as another in Somalia, the UN altered its approach. The aforementioned interventions highlight that those responsible for war
30 “Radovan Karadzic: Former Bosnian Serb Leader,” BBC News, March 24, 2016, accessed April 28, 2016, http://www.bbc.com/news/world-europe-19960285.
31 United Nations Peacekeeping, “History of Peacekeeping: The Early Years. United Nations Peacekeeping,” United Nations, accessed May 12, 2016, http://www.un.org/en/peacekeeping/operations/early.shtml.
32 UN General Assembly, Fifty-fourth Session, Agenda Item 42, The Situation in Bosnia and Herzegovina, The Fall of Srebrenica, Report of the Secretary-General pursuant to General Assembly Resolution 53/35, (November 15, 1999), 20.
19 crimes, unsurprisingly, would not voluntarily surrender, or do anything else for that matter, simply because the UN demanded it. The UN would have to back its mandates up with action, particularly in regards to methods of apprehending individuals indicted by international courts.
In November of 2005, the UN adopted Resolution 1638 which mandated UN
Peacekeepers to apprehend Charles Taylor, previously the president of Liberia, on an indictment made by the Special Court for Sierra Leone. It is the first such instance in which an international court mandated a duty for peacekeeping soldiers to apprehend a person indicted for war crimes.33 Taylor was apprehended in March 2006 by Nigerian customs agents, but it took several months and an impending visit of the Nigerian president to meet with United States president, George W. Bush, for Nigeria to agree to his extradition.34 Nevertheless, this marked an important transition in how the UN operated to support the ad hoc tribunals it set up.
Han-Ru Zhou notes the centrality of the permissive wording of the ICTY Statute which allowed the judges to interpret the charter in a way that would best enable them to complete their mission.35 Zhou observes that international forces were obliged to make arrests if told to do so by the court. The ICTY was theoretically able to not only compel
33 Micaela Frulli, “A Turning Point in International Efforts to Apprehend War Criminals: The UN Mandates Taylor’s Arrest in Liberia,” Journal of International Criminal Justice 4, no. 2 (April 21, 2006): 358.
34 “Charles Taylor Caught in Nigeria,” BBC: Africa, March 29, 2006, accessed April 12, 2016, http://news.bbc.co.uk/2/hi/africa/4856120.stm.
35 Han-Ru Zhou, "The Enforcement of Arrest Warrants by International Forces from the ICTY to the ICC," Journal of International Criminal Justice 4, no. 2 (2006): 206.
20 an already present international force to make arrests, but also require an international body to insert the forces necessary for those arrests.36 While this was not necessary, it is a rather engaging proposition to consider hypothetically and perhaps had considerable effect on the ICC’s governing rules.
The wording in the ICC charter is considerably more restrictive. The ICC is allowed to ask an international body for assistance, but they are in no way obligated to provide that assistance.37 Zhou believes that such a fact is “a novelty resulting from the balance struck between states’ will to not entrust Judges with overreaching ‘legislative powers’ over certain issues of substantive importance . . . ”38 Additionally, ICTY and
ICTR are more robust than the ICC because they have the full authority of the UN behind them. The ICC, on the other hand, has its authority via treaty and, while it was established under the supervision of the UN, does not have a direct connection or oversight from it.39 Only the nations who signed onto the ICC Convention would be obligated to carry out its orders. Other ways of requiring nations’ and IGOs’ cooperation and assistance can be made, however.
36 Zhou, 207.
37 Ibid, 212-213.
38 Ibid, 213. From an American perspective, it is not particularly surprising as the United States has displayed a marked discomfort with international justice. The nation features a distinctive and formal system of checks and balances in its own constitution that limits the powers of each branch of government (judicial, executive, legislative). As a preeminent member of NATO and various other international organizations, their concerns would certainly have been taken into account during the preliminary research conducted for establishing a permanent international court.
39 Louise Arbour, "Status of the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Goals and Results," Hofstra L. & Pol'y Symp., no 3 (1999): 43.
21
In 2010 Goran Sluiter, a preeminent authority on International Criminal Law, wrote an article noting the use of the Genocide Convention to leverage the cooperation of states in apprehending individuals indicted for crimes of Genocide, as well as other crimes.40 In July 2010 the prosecutor for the ICC added six charges of genocide to the original indictment of the Sudanese president Omar al-Bashir, who was originally indicted for other, non-genocidal war crimes in July 2008. Sluiter argued that any state who signed on to the UN charter, was by default, party to the Genocide Convention.
Since the genocide convention called for perpetrators of genocide to be prosecuted and indirectly called for the establishment of a permanent court, he believes that any UN member state should, as a result, be responsible for upholding the mandates of the ICC and other international courts.41 While such legal arguments can be made, in reality, organizations of any sort are much more likely to act in their own interests.
Christopher Lamont notes a turning point in post-conflict arrests as indicative of a shift in the tension between a model of post-conflict state building and a more recent and innovative attempt at international justice, in which the arrest of local authority figures did not necessarily interfere with the establishment of new political institutions. Within the paradigm of post-conflict state building, prominent public figures had historically been considered an important part of re-establishing peace and order, no matter their role in the previous conflict or how repugnant their values. He points to the differences in
40 Göran Sluiter, “Using the Genocide Convention to Strengthen Cooperation with the ICC in the Al Bashir Case,” Journal of International Criminal Justice 8, no. 2 (May 1, 2010): 2.
41 Sluiter, 7.
22
NATO’s transitional administration with Bosnia-Herzegovina, which allowed Karadžić and Mladić to remain free for some time, and NATO’s administration of Kosovo, which played a key role in arresting indicted figures as an important transition in these two perspectives.42
In Bosnia-Herzegovina, NATO began its mission of enforcing peace as established by the Dayton Accords on December 14, 1995 under the name
Implementation Force (IFOR), and was transitioned to the Stabilization Force (SFOR) one year later, following successful democratic elections.43 It was not until 1997 that
NATO began arresting the close allies of Karadžić and, it seems that through this, realized the potential for using International Justice as a tool for peace building, rather than as an obstruction. The SFOR arrested twenty-seven persons indicted for war crimes
(PIFWC’s) and killed three others while attempting to make their arrests.44 It is important to note that NATO only began making those arrests, however, when it suited their purposes and not solely as a result of the ICTY issuing such a request.
As with most bureaucratic transitions, the adoption or realization of such facts is usually a gradual process. While NATO seemed to realize the utility of executing arrest warrants of PIFWC’s, the United Nation Interim Administration Mission in Kosovo
(UNMIK), did not make arrests and its highest ranking official, Søren Jessen-Petersen,
42 Christopher K. Lamont, International criminal justice and the politics of compliance (New York: Routledge, 2016), 367-368.
43 “SFOR Stabilisation Force in Bosnia and Herzegovina,” NATO, accessed May 19, 2016, http://www.nato.int/sfor/docu/d981116a.htm.
44 “SFOR Stabilisation Force in Bosnia and Herzegovina.”
23 even lamented the voluntary surrender of an Albanian leader, Ramush Haradinaj.45
Louise Arbour, a prosecutor with the ICTY and ICTR, suggests that arrests in the name of justice were sometimes seen as an impediment to peacebuilding; that is, the holding of elections and establishment of democracy. She acknowledges that the arrest of key figures is often inconvenient to these processes, but she notes that it is a “long term investment, to achieve a peaceful society.”46
It can be easy to generalize about the convictions of the international community, and this situation highlights the importance of the individual perspective of leadership when evaluating the relationship between International administrations and International
Courts. If a person believes that arrests in the course of international justice disrupt peace building, then they are less likely to be open to its benefits, particularly when those international administrators work closely with local administrators and where personal relationships are sure to occur.47
The perspective of key leaders is also important to consider when they do decide to make arrests. For example, NATO went after Karadžić’s close associates, using their indictments as a political tool to clear the way for establishing a new government in
Bosnia-Herzegovina. One must consider, however, the possibility that international courts could thus be used to influence local politics by simply eliminating particular
45 Lamont, 368
46 Arbour, 40.
47 Majbritt Lyck, Peace Operations and International Criminal Justice: building peace after mass atrocities, (Routledge, 2008), 207.
24 unwanted candidates from the possibility of election. This gives the UN, and particularly
Western states, the potential for considerable influence in local affairs, as well as calling into question the legitimacy of the democratization project. After all, in democracy it is assumed that the majority’s will should be carried out through elections. With the international community culling particular candidates from elections, it would essentially be providing state governments with an ‘internationally approved’ list of prospective officials. Not only would this undermine state sovereignty, but it could potentially mar the purported global perspective of international justice.
Court objectivity is essential to both the legitimacy of the court, as well as the legitimacy of a new government. Its arrest warrants must be carried out regardless of the utility of such actions in establishing new and stable governments post-conflict. The role of interim administrations does impose a question of biases, in that it is more likely to execute warrants for arrests that also facilitate its mission. It is certainly a step in the right direction that the courts have recourse to military and police forces in the execution of their missions, however, a separate force, perhaps attached to but not directly answerable to, temporary international administrations should be considered in order to remove the possibility of biased executions of the courts’ arrest warrants.
Witness Tampering
The ability to protect witnesses and their loved ones from persecution was and is central to the ICTY’s ability to uncover the truth and administer justice. This was an area of particular difficulty, especially in the cases of certain defendants. There were at least seventeen contempt cases held for interfering with witnesses, though there were almost certainly more instances that were not discovered or prosecuted. Those seventeen
25 contempt proceedings were associated with the trials of just eight men. The contempt charges were filed for interfering, bribing, or intimidating witnesses, as well as for disclosing information that could identify a witness and their location. Most of the contempt cases resulted in conviction on at least some of the charges. The penalty for such offenses ranged from three month to two-year imprisonment terms, and from seven thousand to twenty thousand Euros.
The most notable case in which witness protection was of issue was against
Vojislav Šešelj, who had three contempt cases brought against him related to protected witnesses from his case. Šešelj’s reputation for bullying was established in the lead up to the war, not only for the horrible things he threatened to do to Croats on television, but with the arrest and inhumane treatment of political rivals and their spouses.48 Šešelj presented a unique difficulty for the ICTY in that he publicly stated in the courtroom that his goal was to discredit and embarrass the ICTY, a goal that he pursued with great vigor and undecided results. The details of his “work” in the ICTY will be discussed in greater detail later in this analysis. First we must investigate the implications of the contempt proceedings for witness tampering.
The first contempt charges were brought by the chamber against Šešelj after the court ruled to provide protective measures for several witnesses. The measures to be taken included that neither party could disclose any information that might identify any of the protected witnesses, nor any written statements made by the protected witnesses.
48 Linnet Myers, “Strongman’s Foes Vanish as He Moves to the Forefront In Serbia,” Seattle Times:Business, June 9, 1993, accessed Feb. 2, 2015, http://community.seattletimes.nwsource.com/archive/?date=19930609&slug=1705589.
26
Following that ruling, Šešelj published a book that provided the names, jobs and living places of three of those witnesses. He also published the written statement of one witness that contained identifying factors. The court sentenced him to 15 months of imprisonment and ordered that the information and book be removed from his website.49
The second contempt case took place nearly two years later and called to account the disclosure of ten protected witnesses, again, in a book that he published online. The court took exception to Šešelj’s wilful announcement that he intended to continue disclosing information. Šešelj stated that, “Once one proceeding is completed, I’m going to create conditions for the next one. As soon as we finish the next one I’m going to prepare myself for the next one and the next one, up to ten. That’s what I decided.”50 In its ruling the court noted “that public confidence in the effectiveness of orders and decisions on protective measures was absolutely vital to the success of that work.”
Despite that statement and the transparency of Šešelj’s aims, the court convicted Šešelj and sentenced him to eighteen months of imprisonment, to be served concurrently with the previous 15-month conviction of contempt.51
The third contempt proceedings were brought against Seselj due to his failure to remove information regarding the names and whereabouts of protected witnesses from
49 Communication Service of the ICTY, “Contempt of Court Proceedings: IT-03-67- R77.2: Vojislav Šešelj,” ICTY, accessed July 21, 2016, http://www.icty.org/x/cases/contempt_seselj/cis/en/cis_seselj_contempt_en.pdf.
50 Communication Service of the ICTY, “Contempt of Court Proceedings: IT-03-67- R77.3: Vojislav Seselj” ICTY, accessed July 21, 2016, http://www.icty.org/x/cases/contempt_seselj2/cis/en/cis_seselj_contempt_second_en.pdf.
51 “Contempt of Court Proceedings: IT-03-67-R77.3: Vojislav Šešelj.”
27 his website after being ordered to do so. The court noted several occurrences of Šešelj publishing books online and disclosing sensitive information about protected witnesses, as well as his refusal to remove them. When asked to stand for the court’s ruling, Šešelj replied, “Me to get up for you? You’re not normal. You are the scum of this world. Why would I stand up for you? I’m a duke, after all.”52 Ignoring this, the presiding judge,
Treschel, delivered a sentence of two years, but noted his dissenting opinion that he considered the punishment too severe, despite Šešelj’s stated intention to commit the act repeatedly and lack of compliance when ordered to remove the information.53
In the case of Ramush Haradinaj, the commander of the Kosovo Liberation Army, three different people were indicted for interfering with a witness or witnesses and another was charged with contempt because he refused to answer a question. In one instance, one of the defendants’ defence team, also the Minister for Culture, Youth and
Sport in Kosovo, sent an employee to another country to persuade a witness not to testify.
The minister was acquitted on appeal, but the employee was convicted and sentenced to three months of imprisonment.54 In another, the identity of a protected witness was given to a Kosovar newspaper editor who wrote and published an article with that information.
52 Contempt of Court Proceedings: IT-03-67-R77.4: Vojislav Šešelj, ICTY, 28 June 2012, 90, transcript, http://www.icty.org/x/cases/contempt_seselj3/trans/en/120628IT.htm.
53 Contempt of Court Proceedings: IT-03-67-R77.4: Vojislav Šešelj, 91.
54 Communication Service of the ICTY, “Contempt of Court Proceedings: IT-04-84- R77.4: Haraqija & Morina,” ICTY, accessed July 21, 2016, http://www.icty.org/x/cases/contempt_haraqija_morina/cis/en/cis_haraqija_morina_en.pd f
28
He was found guilty and charged seven-thousand Euros.55 One witness from these cases said, “So when I knew that I had been identified as a witness, I understood the danger.
This is why it is difficult to get witnesses from Kosovo. People are reluctant to risk their lives.”56 In the judgement, both the OTP and trial chamber noted the difficulty of finding witnesses that were willing to testify in the Haradinaj case.57
The problem of protecting witnesses was never satisfactorily solved and remains a problem in the ICC as well. The ICC recently took a new approach, vacating the charges so that defendants Ruto and Sang of Kenya could be tried at a later date. Vacating a charge effectively withdraws charges as if they had never occurred. By doing so, the court can bring charges at a later time without double jeopardy applying. In situations where witnesses refuse to testify due to intimidation, the suspect can be charged and tried at a later time. Similar to the Haradinaj case, the intimidations in the Ruto and Sang cases were seemingly conducted by the state without any knowledge or solicitation by the defendants. 58 The court emphasized the need to send the message that extra judicial
55Communication Service of the ICTY, “Contempt of Court Proceedings: IT-04-84- R77.5: Baton Haxhiu,” ICTY, accessed July 25, 2016, http://www.icty.org/x/cases/contempt_haxhiu/cis/en/cis_haxhiu_en.pdf.
56 Judgement on Allegations of Contempt in Prosecutor v. Astrit Haraqua and Bajrush Morina, Case No. IT-04-84-R77.4 ICTY (Dec. 17, 2008): 19.
57 Judgement on Allegations of Contempt in Prosecutor v. Astrit Haraqua and Bajrush Morina, 31.
58 Mark Kersten, “Intimidated Witnesses, ICC Judges, and ‘Justice’ – Mission Creep or a Revolution Long Overdue?” Justice in Conflict, June 2, 2016, accessed Feb. 27, 2017, https://justiceinconflict.org/2016/06/02/intimidated-witnesses-icc-judges-and-justice- mission-creep-or-a-revolution-long-overdue/.
29 interventions would not influence the decisions of the court, either for or against those accused. This decision will allow the pair to be retried if the prosecution is able to find enough evidence in the future.59 Though this may allow for justice at a later time, which is an improvement on outright acquittal or a conviction made on insufficient evidence, it does not have a direct impact on actually improving the atmosphere of intimidation that often occurs in situations of mass violence.
Other Challenges
The challenges discussed above are commonplace in some societies and every court must deal with similar difficulties, regardless of their location. The international courts discussed here, however, face a much more difficult situation simply because they are attempting to carry out justice in regions that cannot perform those duties on their own. Whatever prevents those regions from providing their own justice, whether it be politics, ongoing prejudice, a determination to deny wrongs, or corruption inherent in a states’ infrastructure, the international courts must deal with those same issues when attempting to impose that justice from without. In addition, they must also contend with the practical challenges of isolation from the area of immediate effect, the necessity to gather information from a region that has already proven reluctant to administer justice.
The volume of information that must be gathered for both contextual understanding and for the prosecution of the crimes is enormous and prosecutors most often start with reports from individuals of crimes having occurred, but without any
59 Kersten.
30 significant evidence to use in trial.60 Prosecutors must then find enough evidence to bring charges and then support their case. In addition, these challenges present an additional financial burden. It is and has been difficult to extract the necessary funding and commitment from the international community, even when most nations are categorically behind the idea of using a court or tribunal to intervene in a conflict.61
When wealthy nations did intervene in the former Yugoslavia, their motives were questionable. The potential for NATO nations to capitalize on oil exports, for example, may have had a role in how involved NATO was in the conflict. There was and is a significant division between political parties in Serbia that are either pro-western or anti- western. Most of the defendants discussed here were anti-Western nationalists, which strongly influenced their perceptions about the ICTY. Those who supported them, and even those who did not, would of course notice the influence that NATO and other western nations had in the establishment of the court. The success, or lack of success, of the tribunal was largely tied up in the local populations’ perceptions of the ICTY.
60 Richard J. Goldstone, "International Tribunal for the Former Yugoslavia: A Case Study in Security Council Action, The." Duke J. Comp. & Int'l L. 6 (1995), 8.
61 Arbour, 41.
31
CHAPTER 3
CREATING LEGITIMACY WITH LOCAL POPULATIONS
While the ICTY was scurrying to erect an entire justice system in a very short period of time, it cannot be forgotten what the ICTY officials were working for. The court was intended to help establish peace, to hold individuals responsible for their crimes in order to circumvent cycles of reciprocity against entire ethnic peoples, and to make an example that persons in positions of authority would be held accountable for their crimes and the crimes of those under their command. It was also important to give a voice to the victims and their families, so that stories of events could not later be co-opted to elevate tensions between the groups or be denied entirely.
In order to achieve these purposes, the ICTY needed to be seen as legitimate, competent, and unbiased. However, the ICTY faced considerable challenges in regards to its public image among the very people it was meant to help. With this in mind, I will establish the evolution of public opinion using public surveys. Next, we will examine the role of the media in establishing a historical record and in combatting common conceptions about the war and the role of Serbian soldiers therein.
Public Opinion of the ICTY
Perhaps the most important element of the ICTY was that it be seen as legitimate and unbiased. Without that, any decisions it rendered would be irrelevant, but former
Yugoslavs had serious doubts about the objectivity of the courts. This was especially true
32 in Serbia where Milošević’s regime constantly attacked the tribunal through the media and framed its existence in terms of western domination and a New World Order. The result was that though only 6% of those polled believed that they were fully informed about the ICTY, a high percentage of them had very strong opinions about the tribunal.62
The involvement of NATO in the fighting along with the United States’ influence in establishing the court was potentially a conflict of interest. Add to that the role of NATO forces in the apprehension of indicted persons, which had a set of specific targets rather than a concern for apprehending any accused criminals, as previously discussed, one can see a foundation for such concern.
Ivković and Hagan’s surveys conducted in Sarajevo in 2000 and 2003 measured the perceptions of the ICTY by the public. It is very important to acknowledge that the surveys by Ivković and Hagan were strategically conducted to coincide with the arrest
(2000) and sentencing (2003) of General Stanislav Galic, the Serbian General who oversaw the siege of Sarajevo. Galic received 20 years in prison. In 2000 78% of all respondents believed the ICTY was the right place for the trials, as opposed to local courts or courts in the accused’s own country. In 2003 that percentage had fallen to 45%.
Notably, among Serbian respondents, of which there were 13 in 2000 and 54 in 2003, the percentage that believed the ICTY should hold jurisdiction over the crimes that took place in the Siege of Sarajevo fell markedly from 92% to 37%.63 These surveys were
62 Igor Bandovic, "The International Role in the Reconciliation Process: A View from Serbia," Belgrade Centre for Human Rights (2004): 220-221.
63 Sanja Ivković and John Hagan, “Politics of Punishment and the Siege of Sarajevo: Toward a Conflict Theory of Perceived International (In)Justice,” Law & Society Review
33 taken from people of each of the ethnicities involved in the war, and the majority of them reported being directly affected by the violence; that is violence experienced by themselves or close family members. 95% reported that their neighbors had been victimized. One must consider that the sentence of twenty years was deemed too lenient given the gravity of his crimes.
A different study done by Ivkovic and Hagan examines how each ethnic group in various locations (Sarajevo, Belgrade, and Vukovar) felt about where the defendants should be tried. This study showed that there was overall a slight preference for the ICTY
(49.9%) with the next largest percentage believing that cases should be heard in the courts where the crimes were committed (28.3%) Interestingly, Serbs from Belgrade supported local jurisdiction in the offenders’ country, regardless of the person’s nationality, that is, for both Serbs and Croats.64 In fact, they favored the defendant’s national courts even more than the person’s own countrymen.65 Hagan and Ivković concluded that there needs to be a greater focus on transferring cases to local courts when hostilities subsided.
40, no. 2 (2006): 386. Croat and Muslim respondents were well represented by the average.
64 John Hagan, “War Crimes, Democracy, and the Rule of Law in Belgrade, the Former Yugoslavia, and Beyond,” The Annals of the American Academy of Political and Social Science 605, no. 1 (May 1, 2006): 144.
65 One must wonder whether this reflects political, religious, or historical influences, or some combination thereof. Serbs certainly have a strong and distinct world view that colors their perception of events surrounding the war, which will be discussed in further detail below, though this view was unique to Serbs in Belgrade.
34
It must also be considered that the former Yugoslavs who were interviewed were simply disillusioned with the entire process. Perhaps they did not believe the ICTY could competently impart truth and justice any more than their local courts could. While the timing of the survey to coincide with Galic’s arrest and sentence offers a unique insight, it confuses the results. It is unclear whether the overall opinion of the ICTY is represented, or the emotional response to the rather lenient 20-year sentence Galić received for his responsibility in the massacre of a huge number of people.
The year before the Ivković and Hagan articles were published, Katie Zoglin, a human rights legal specialist and noted scholar, observed that local courts throughout the former Yugoslavia were not yet prepared to take on those cases. She cited the inexperience of both prosecutors and judges, along with the fact that several hundred judges had quit their jobs due to low wages. Organized crime was an ongoing problem and minorities were under-represented or not represented at all in the courts.66 Police corruption was pervasive and forces were still staffed by those who participated in war crimes. In addition, the relatively small number of war crimes trials that were held were not to international standards and were held mostly for minority defendants. Lastly, and most importantly, the local populace did not trust their own justice system.
This last concern is somewhat puzzling taken along with Ivkovic and Hagan’s study, which demonstrated that in 2003 almost half of former Yugoslavs had enough confidence in local courts to believe that war criminals, including those most responsible for the crimes, should be tried in them. It may be that this demonstrates the strong
66 Katie Zoglin, “Future of War Crimes Prosecutions in the Former Yugoslavia: Accountability or Junk Justice?” Human Rights Quarterly 27, no. 1 (2005): 45-46.
35 preference for addressing their problems themselves, but why then do most people prefer the ICTY over local courts in 2000? Hagan and Ivković postulate that since the Yugoslav wars did not have a decisive victor, the ICTY then became a proxy for battle, with each verdict signifying victory or defeat of warring parties.67 Under this hypothesis, each acquittal or plea bargain would also be of great importance to interested parties. The assumption here though is that the political and military leaders were carrying out the will of the people.
One shortcoming with all of this research is that it does not adequately take into account the very personal feelings that individuals had about the events, the culpability of leaders in whom they entrusted their safety and wellbeing, about their own culpability in supporting those leaders, and the inability or unwillingness to consider their own ignorance that allowed for violence such as that seen in the wars of secession. The trials would have the role of forcing people to consider such things. People must first be presented with the evidence of crimes in order for this to occur.
ICTY as Extension of War
There were two areas that were routinely discussed among the populations it served when considering whether the ICTY was legitimate. First were potential biases.
As discussed some believed that any court cases associated with holding war criminals accountable should be held by and in the former Yugoslavia and that there were potential political biases that could result from the push by particular nations for the court to be established. Racism was another concern of the detractors of the ICTY and was expressed
67 Ivković and Hagan, Politics of Punishment, 374.
36 by all ethnic sides of the war, especially Serbs. Those arguments were often made by accused war criminals in court or their followers.
The idea of the ICTY as an extension of the war may justify and explain some perceptions that the court was a tactic of the west in the persecution of Serbian people. In
Seselj’s words, “the war in which we Serbs have been routed, is not a war against the
Croats and the Muslims that we wage, or the Albanian's for that matter but against their bosses, the Vatican, Germany, America, the North Atlantic pact and so on and so forth."68 The root of the anti-Serb conspiracy Šešelj perceives follows his belief of conflict between Yugoslav ethnicities as proponents of the Roman Catholic and Orthodox
Churches. This idea was not one he co-opted to gather more power or popularity, but one that he had been writing about since before the fall of communism. In fact, he was imprisoned in 1984 for writing a book that called for a Yugoslavia ruled by Serbs.69
Šešelj often pointed to the fact that the United Nations Security Council established the ICTY, but overlooked the fact that the Security Council has permanent seats for China and Russia, both of whom have veto power. Nationalists like Šešelj were often proponents of alignment with Russia. Seselj explains the importance of this in his view saying that the West is against Serbia because, “We are originally Russians, actually, we are originally eastern Slavs, and we are not ashamed of that origin of ours, as opposed to the Catholic Slavs who renounced their origin and even agreed to go against
68 Opening Statement of Accused in Vojislav Šešelj, Case No. IT-03-67-T ICTY (8 Nov. 2007), 1865.
69 “Profile: Vojislav Seselj,” BBC, November 7, 2007, sec. Europe, http://news.bbc.co.uk/2/hi/europe/2317765.stm.
37 the Russians, to become the enemies of the Russians . . . we are small-scale Russians in the Balkans, that is why the Americans hate us and that is why they're trying to destroy us.”70
Later in 2012 he stated, “This Tribunal replaces the American Cavalry, the
American Sixth Fleet. Instead of sending their Sixth Fleet to catch us all in Serbia and take us all to Guantanamo and try us before their military commission,” and so on.71
Šešelj argued that the purpose of the court was to establish “the Pax Americana.” He was not explicit about what he means, however, given other references to the primacy of
America in the UN and NATO, one might suppose he sees these international bodies of the UN and NATO as tools of the US and that the “Pax” was to be imposed in order to secure and consolidate the US hold on its so-called empire. His arguments, in their essence, depict the ICTY as a body intended to oppress Serbs, as an Oriental culture, in the Western bid for cultural primacy.
While Šešelj’s behavior in the public sphere, particularly his rancorous hate speech, can make it difficult to take these claims seriously, they do warrant further consideration. Several scholars have questioned the impartiality of the ICTY due to various political factors. The ICTY acknowledges that the preponderance of cases were brought against Serbs and Bosnian Serbs, but states that it, “takes no side in the conflict and does not attempt to create an artificial balance between different groups.”72 James
70 Opening Statement of Accused in Vojislav Šešelj, 1865.
71 Closing Statement of Accused in Vojislav Šešelj, Case No. IT-03-67-T ICTY (March 14, 2012), 17330.
72 “About,” ICTY, http://www.icty.org/en/about (accessed February 28, 2017).
38
Meernik makes the point that there would only be an equal number of each ethnicity tried if an equal number of people from each ethnicity had committed crimes of significant gravity to be tried at the tribunal. He chose to conduct a statistical analysis on the treatment of those indicted, specifically the rate of conviction and the length of sentences compared to the crimes they were convicted of, reaching the conclusion that among those indicted, each ethnic group was treated similarly by the judges.73 In another study,
Meernik and two other researchers found that there were considerable biases for the type of crime committed, however.
Convictions for crimes against humanity and genocide, for example, received an average of 158 months more than those convicted of war crimes. They also demonstrated that those with greater command authority and convicted of a higher number of crimes also received much longer sentences.74 The differences in convictions and sentencing due to national attributes, such as method of law (civil, customary, or Islamic) and the amount of power and independence the judges home nations gave to the judiciary, had some impact, with those from more liberal systems giving a heavier sentence, though the variation was very minor to statistically insignificant.75 Nevertheless, the motivation of western, and particularly NATO member nations, must be investigated as well.
73 James Meernik, “Victor’s Justice or the Law? Judging and Punishing At The International Criminal Tribunal For The Former Yugoslavia,” Journal of Conflict Resolution 47, no. 2 (April 1, 2003).
74 James Meernik, Kimi Lynn King, and Geoffrey Dancy, “Judicial Decision Making and International Tribunals: Assessing the Impact of Individual, National, and International Factors*,” Social Science Quarterly 86, no. 3 (September 1, 2005): 697.
75 Meernik et al., 698.
39
Marjorie Cohn, a notable legal scholar and professor from California, claims that events like the so called Račak Massacre, were distorted to provide an impetus for immediate military action.76 She contends that the NATO intervention in the former
Yugoslavia was the result of an interest in maintaining access to oil resources from the
Caspian Sea, which the US has been competing for with Russia since the fall of the
Soviet Union. She quotes US President Bill Clinton’s energy secretary, Bill Richardson as saying, “We’re trying to move these newly independent countries toward the west. We would like to see them reliant on western commercial and political interests rather than going the other way.”77 Furthermore, she claims that the bombings targeted infrastructure that was essential to the oil directly entering Europe via the Danube River, rather than through a pipeline through Turkey, which would benefit the US. Throughout the article,
Cohn cites a number of official US sources that support her claims, and Šešelj’s assessment that the ICTY was a creation of western nations, particularly of the US and other leading NATO countries certainly has merit. This theory is widely supported by journalists as well, and though their focus tended more towards Central Asia and the
Caucasus, the Balkan region was one legitimate path for the oil to travel through and would be of greater benefit to non-Western parties.
76 Marjorie Cohn, “Nato Bombing of Kosovo: Humanitarian Intervention or Crime against Humanity?” International Journal for the Semiotics of Law 15, no. 1 (March 1, 2002): 82. The Račak Massacre was claimed to be a mass killing of civilians by pro- intervention UN members, but which the Serbian government claimed were Kosovo Liberation Front combatants. Two forensic reports were conducted and the more reliable (non-Serbian) version was inconclusive as to whether the dead were civilians or soldiers.
77 Bill Richardson as quoted by Cohn, 89.
40
In Lutz Kleveman’s book, The New Great Game: Blood and Oil in Central Asia, he presents compelling journalistic evidence that much of the conflict and chaos in
Central Asia was a competition for control of oil resources, mostly between the United
States, Russia, China and Iran.78 Just as there was some debate within the former
Yugoslavia, and particularly in Serbia, between Westernization and alignment with
Russia, the conflicts in Central Asia were similar. Given the eastern orientation of
Serbian nationalists who rose to prominence in Serbia, the argument over economic interests as a source of western involvement is fitting. In the end, none of these arguments negate the fact that these crimes were committed, and the evidence proffered in the ICTY proved that.
Of course, the perspective of people from a region that had historically been colonized and fought over by world powers, would be sensitive to the attempts of contemporary neo-colonialist powers to influence and control the development, interests, and outcomes of their region. This may explain why more people preferred that court cases be heard in the Balkans, rather than in the court that had been created by outside powers. It was perceived by some that the court was created for the special purpose of prosecuting Serbs, with non-Serb’s being indicted only to cover for that fact.
Nevertheless, given the evidence that the former Yugoslav nations were unable or unwilling to prosecute war criminals on their own without bias, it was necessary for an international court to do so in their stead.
78 Lutz Kleveman, The New Great Game: Blood and Oil in Central Asia (Grove Press, 2004).
41
How the Media Helped . . . Or Not
The ability to air major trials on television was extremely important in challenging this perspective, but it also provided opportunities for the defendants as well.
The court was dealing with some very flamboyant personalities who had won the affection and trust of the masses and who did their best to make a circus of the ICTY. In doing so, they diverted attention away from evidence of atrocities and supplanted it with spectacle, making it difficult for the ICTY to be taken seriously by those it was supposed to serve.
Milošević’s televised trial began in February 2002 and he did not let the opportunity to speak directly to the Serbian audience go by without seizing the opportunity. Prosecutors had been careful to specify that they were trying Milosevic as an individual and not the whole of the Serbian people, in their opening statement. In
Milošević’s opening statement, which he first verified could not be interrupted, he appealed to the peoples’ sentiments by calling on the same Battle of Kosovo that was initially used to incite their sense of nationalism and raise support for the war. “They are accusing St. Vidovdan and the battle of Kosovo Polje.”79 He went on to say, “(w)e just agree on one point here, that my conduct was the expression of the will of the people.”80
Similarly, Karadžić opened his defence saying, “I stand here not to defend the mere mortal I am but to defend the greatness of a small nation in Bosnia-Herzegovina which, for 500 years, has had to suffer and has demonstrated a great deal of modesty and
79 Opening Statement of Accused in Slobodan Milošević, Case No. IT-02-54-T ICTY (Feb. 14, 2002), 247.
80 Opening Statement of Accused in Slobodan Milošević, 248.
42 perseverance to survive in freedom.”81 There was some variation due to the region he lived in, with Karadžić referencing the oppression of Bosnian Serbs by the Ottomans, a theme that remained constant throughout his trial, and Milošević noting the fight of Serbs in Serbia to remain independent from both the Ottoman and the Austro-Hungarian empires. In both cases, they are trying to establish a bond with their people, conflating the verdict of them as individuals with a broader judgement of the Serbian people as a whole.
Šešelj was more explicit in this, stating in his farewell rally speech (which was attended by approximately ten thousand people): “I don’t know when I’ll be back but I won’t be wasting time in The Hague; I will unmask the anti-Serb plot that is going on there."82 In his opening statements he proclaimed that, “what was done in a premeditated manner was to brand the Serb people as a genocidal people.”83 Šešelj took every opportunity he could to support the theory of Serbian persecution. “Every Serb, who in any way whatsoever took part in the Serb war effort, can quite simply be proclaimed a participant in the joint criminal enterprise.”84 This statement is entirely fair, though it is perhaps a bit misleading.
The prosecution did indeed start with lower ranking individuals involved in a crime to trace the event up the chain of command. Anyone declared a suspect was required to give a statement and the prosecution proclaimed people as suspects as a way
81 Opening Statement of Accused in Radovan Karadžić, Case No. IT-95-5/18-T ICTY (March 1, 2010), 808.
82 “Vojislav Seselj in His Own Words,” BBC, November 7, 2007, sec. Europe, http://news.bbc.co.uk/2/hi/europe/2793899.stm.
83 Opening Statement of Accused in Vojislav Šešelj, 1858.
84 Opening Statement of Accused in Vojislav Šešelj, 1867.
43 of gathering evidence and testimony, regardless of their intent to prosecute that individual. There was a conspiracy of silence among those involved in the conflict, especially in regards to the treatment of civilians, which was strengthened by the fear of retribution that kept many witnesses silent. Declaring someone a suspect was one of few tools that prosecutors had to help them find evidence. Lower ranking individuals may or may not have been prosecuted for their crimes, depending on the severity of their complicity, but this process forced individuals to give a statement that would not have been given otherwise.
This fact was used by Šešelj to undermine public trust in the OTP and the tribunal, alongside the narrative that he told through his cross examination of prosecution witnesses and opening and closing statements. For example, in his cross-examination of protected witness VS-037, Šešelj asked, “So far we were speaking only about the Serb side. Let’s see what things were like on the Muslim side so as to get a complete picture of the situation, so as to prevent the Serbs from being the culprits all the time,” which led to
Šešelj’s description of the suspected sabotage of Serbian water sources.85 He also stated,
“When the Prosecutors . . . and others were questioning you, they tried to talk to you only about others fleeing from Zvornik but not Serbs.” Witness VS-037 responded, “Well I did notice that and I tried to explain the background . . . ”12 Since Šešelj conducted his own defence he was able use much of his allotted time to perpetuate the story of a historical and ongoing persecution of Serbs.
85 Accused Cross Examination of VS-037 in Vojislav Šešelj, Case No. IT-03-67-T ICTY (Jan. 13, 2010), 14973.
44
It appears that he was at least somewhat successful. In 2016 Šešelj was acquitted by the majority (two of three judges) on the basis that the prosecution did not provide adequate evidence for its arguments. The judgement implies that the prosecution’s lack of organization in approaching its arguments was the primary reason that he was acquitted, however, the judges made several references to Šešelj’s arguments about the intent Serbs and seem to have sympathized to some extent. One specific example is that the majority judges believed Šešelj’s claims that the use of buses to transfer ethnic others were given on a humanitarian basis.86 The dissenting judge, Lattanzi, believed that the criteria had been met, however, and that the other judges had not given adequate consideration to the atmosphere of intimidation, and stated that the logic given by the majority did not align with humanitarian law precedent.87
Seselj’s primary goal while he was at court was to show the ICTY in the terms in which he viewed it: as an instrument of the west whose intent it was to subjugate and criminalize the Serbs. It was his stated intent to make a mockery of the court, portraying it as ineffectual, unjust, and a proxy for the war of prejudice brought against the Serbs for centuries. In an administrative hearing prior to the start of the trial, he stated,
What is in my interest is for this thing to become as intricate, as complicated, as untangled [sic] as possible. That is why I’ve decided to institute at least ten, ten, to be the object of at least ten contempt of court proceedings, so that this Court could get mired in a quagmire and that the total sum of my punishments for contempt of court would be much higher, much longer, than the one you planned to mete out to me, of course, I’m speculating, for all my grave crimes. That is my objective. I want to dismantle, I want to tear apart, the Tribunal at The Hague to
86 Judgement Summary in Prosecutor v. Vojislav Šešelj, Case No. IT-03-67 ICTY (March 31, 2016), Page 7.
87 Judge Flavi Lattanzi: Summary of the Partially Dissenting Opinion in Prosecutor v. Vojislav Šešelj, Case No. IT-03-67 ICTY (March 31, 2016), Page 3.
45
its very constituent elements to smithereens. I will show that it can kill me, it can sentence me to life, but it cannot emerge victorious in my regards. I’m the Viktor here. I have won the main proceedings and all the ancillary proceedings for contempt of court already.88
Though Šešelj’s approach was somewhat unique, it still fit into the Serbian leadership’s argument that Serbs were being persecuted by Western powers, not only in the courts, but throughout history, and that their history was purposefully being falsified in court. In his opening statement he said that the ICTY “has a pronounced anti-Serb orientation . . . The task of this court has been carried out through many of its judgements, and that task is to falsify modern Serb history,”89 This is similar to Milošević’s opening statement, in which he said, “This is just an atom, even smaller than an atom, of the truth, even less than an atom of the truth and ocean of lies and the product of propaganda and the abuse of global media as a means of war against my country.”90
The irony of his claims of propaganda is of course that Milosevic used propaganda and his control of the media to give false representations of events leading up to the trial and to keep his own people ignorant of Serbian crimes throughout the war.
Dubravka Žarkov, an eminent scholar of the Balkans, noted that, “the media war was about production of ethnicity, with notions of femininity and masculinity and norms of
88 Administrative Hearing in Prosecutor v. Vojislav Šešelj, Case No. IT-03-67 ICTY (Aug. 23, 2011), 17031.
89 Opening Statement of Accused in Vojislav Šešelj, 1857-8.
90 Opening Statement of Accused in Slobodan Milošević, 245.
46 sexuality as its essential ingredients.”91 She notes that the media is not to blame per se, but that notions of gender and ethnicity acted as a medium between words and deeds.
These manifested themselves in the many abuses that took place, and theoretically, with both soldiers and civilians from each ethnic group abusing their neighbors of other ethnic backgrounds in gross violations of body, which represent the nation as a whole.92
We can see how instrumental the media was in the wars. Most Serbs had no idea that “their” soldiers were committing horrible atrocities. This state of ignorance continued through the trials, with most evidence presented by the prosecution being dismissed by Serbs as a part of the aforementioned conspiracy against Serbs. According to Ivan Zveržhanovski, an important piece of evidence that helped turn the tide of Serbian public opinion was the video footage of Serbian soldiers killing a group of Muslim men and boys with their arms zip tied behind their backs during the Srebrenica massacre.93
The video was broadcast in June 2005.
Serbian politicians of all ideologies and the public initially responded with a flurry of condemnations of the crimes. A week later conservative nationalist politicians backpedaled claiming that the video was either recorded prior to the massacre or that the unit being filmed was not under the control of Belgrade. Up to one third of the public
91 Dubravka Žarkov, The Body of War: Media, Ethnicity, and Gender in the Break-up of Yugoslavia (Durham, NC: Duke University Press, 2007), 3.
92 Conclusion of the author’s previous, unpublished research.
93 Ivan Zveržhanovski, “Watching War Crimes: The Srebrenica Video and the Serbian Attitudes to the 1995 Srebrenica Massacre,” Southeast European and Black Sea Studies 7, no. 3 (September 2007): 417–30.
47 believed the video was fake.94 The video had already had a profound effect though. The airing of the video footage resulted in the capture, indictment, and conviction of the men in the video and there were rumors that the Serbian government was working to facilitate the capture of General Mladić (though as previously discussed, this did not occur until
2011).95 Though it did not change the beliefs of the entire population, Zveržhanovski argues that these factors indicated “an improved sense of responsibility as well as a capacity to deal with the war crimes legacy locally.”96 More importantly, the effect of the video had a stronger effect on the public than all of the evidence presented in court before it.
This demonstrates the importance of the media covering and broadcasting the proceedings. While the suspected war criminals continued their worn and tired narratives of an international conspiracy designed to oppress Serbs, their credibility and honesty was directly undermined by the powerful imagery that was being introduced by the prosecution. The video and the photographic evidence that accompanied the testimonies of victims eventually penetrated into the awareness and acceptance of a significant portion of the public. It must be understood that even today, many Serbian nationalists continue to believe in the narrative that Šešelj, Karadžić, Milošević and others still tell, however, more and more Serbs have come to realize the extent of the crimes committed in their name.
94 Zveržhanovski, 427.
95 Ibid, 428.
96 Ibid, 428.
48
CHAPTER 4
CONCLUSION
The ICTY was and is of monumental importance in the historical study of international relations, the creation and evolution of international criminal justice, and in understanding the history of the region of the former Yugoslavia. This region was pivotal in early modern world history, and despite today’s world with less geographical constraints, this tradition was carried over through the wars of secession and the ICTY.
Whether the involvement of western nations in the conflict was motivated by genuine concern for human life or economic interests, their intervention does highlight a number of landmark changes in international relations. First, it marks a shift towards international attempts to secure and protect people from state sponsored mass violence, even if it is only an excuse for outsiders to secure some sort of influence. Second, it is the first attempt to establish an international criminal court to address the lack of justice available within a given region and inspired the establishment of a permanent international criminal court. Third, the ICTY was given unprecedented authority to establish and interpret international laws that serve to create a foundation of precedence for future courts. Fourth, the ICTY marks a shift in the role of the United Nations in the world, which up to the fall of the Soviet Union, had little power and, as a result, a limited impact on securing basic human rights.
49
While it was created for the purpose of ending the conflict in the former
Yugoslavia and bringing those people some amount of justice, the lasting impact has a considerably larger scope. Oppressive regimes can now be called to account in a court of law. The international community has some recourse beyond covert military operations, the support of rebel groups with questionable leadership and ethics, and imposing economic sanctions. Though the courts have not yet become as effective as would be ideal in stopping broad human rights violations for the reasons discussed herein, it can be seen through this study that there is movement in the right direction.
While the interests of specific nations and organizations, namely the United States and NATO, brought the impartiality of the tribunal into question, it also enabled the
ICTY to carry out justice. It presented a way to arrest individuals who would not have been arrested otherwise, which had the dual effect of eliminating opponents to transitional governance, as well as bringing such criminals to justice. This marks a departure from the belief that, while not ideal, unsavory and criminal administrators were necessary to establish democracy in the aftermath of war. The fallacy of that approach has led to a huge number of abusive and despotic governments. While it cannot be said that the region can be labeled as a success in state building, due to the many ongoing difficulties there, it is certainly better than an immediate transition to corrupt leadership.
Certain traditions are difficult to break. The former Yugoslav nations experienced many of the same challenges that post-Soviet states have experienced, such as corruption in the government, nepotism and an embedded system resistant to change. At a recent conference in The Hague, educators from the region came together with NGOs to discuss how the Yugoslav wars should be addressed in education, both in the former Yugoslavia
50 and in the Netherlands.97 It was found that, while educational programs established by
NGOs were effective in teaching students from the region about the history of the wars, they reached a very limited number of students. The wars were not discussed at all or in a very limited fashion in public schools in that region.98
Educators from the region stated that the reluctance to discuss the wars as a result of the infrastructure. Principals for schools are politically appointed and they are pressured to present an approved narrative. Teachers have no guarantee of a job and there is a high rate of unemployment in the region, so they were unwilling to take a stand since they could and would be easily replaced. Most of what students know was learned from their parents, who are not always entirely sure what to say and often avoid the topic.99
When reading news sources online, such as Balkan Insight, or watching videos related to the wars or the ICTY, the comments section is filled with racist and violent statements reminiscent of wartime slurs. The Serbian Radical Party (SRS), founded and now represented yet again by Vojislav Šešelj, recently re-entered the Serbian legislature with
97 The Netherlands sent military forces to help establish peace and provide a “safe zone” for civilians. Commonly referred to as DutchBat, the troops were unable to provide safety for civilians and even sent some outside of their area of control to be butchered. Furthermore, Dutchbat troops helped load civilians onto buses in Srebrenica, with the belief they were being sent to areas under the control of Bosnian Muslim troops as a part of a peaceful population exchange, but were instead offloaded nearby and executed. There is considerable discomfort and guilt among the Dutch and the role that this story should have in education is disputed.
98 ICTY Legacy Dialogues: From the Tribunal to the Classroom, The Hague, January 30, 2017.
99 ICTY Legacy Dialogues.
51
8 per cent of the vote.100 While this is a drastic improvement over the 23% he received in
2002, it does show that he, now active in politics following his 2016 acquittal, inspired many more votes for the SRS than in other recent elections.101 Though reconciliation was one primary objective for the ICTY, the court functioned mostly as just that; a court.
They did not have the appropriate resources to wage a publicity campaign and trials were only broadcast on local media networks when and how it suited them.
The region continues to struggle economically and in the area of reconciliation.
The same divide between ethnic groups was spread to the masses through the propaganda of political elites. There is substantial evidence that this was not the case prior to the fall of Tito and, nearly a decade later, the Soviet Union. Serbia is still deeply divided between westernization and a more eastern orientation in international politics. The atmosphere of denial and the lack of education about the wars has led to the propagation of an unsophisticated understanding of the events and inter-ethnic relations. The tu quoque defence strategy, which simply points out the accuser’s own faults and hypocrisy, do not negate the accused person’s crimes, though it certainly does highlight a need for those nations to reflect on their own actions, but this is not occurring. The reality is that, while the motives for particular nations and international organizations may be less than
100 Guy Delauney, “Serbia Elections: Radical Seselj Back in Parliament,” BBC News: Europe, April 25, 2016, accessed March 2, 2017, http://www.bbc.com/news/world- europe-36128489.
101 Alix Kroeger, “Serbia Election Drama Heads into Farce,” BBC: Europe, October 14, 2002, accessed Jan. 26, 2015, http://news.bbc.co.uk/2/hi/europe/2312333.stm.
52 altruistic, there was a serious need for an intervention to protect the rights of civilians in the Balkan region.
It must be remembered that there was no historical acceptance of the UN in this role and that the ICTY had to establish many of its practices and procedures as needs arose. They did not have the benefit of centuries of precedence, but created their rules and procedures from various legal traditions in an effort to make the courts truly international, and that fact needs to be considered in determining whether the tribunal should be deemed a success. Though the ICTY had an acutely limited impact in the area of reconciliation and former Yugoslavs continue to avoid confronting the past, the ICTY still had a number of successes. First, they established procedural precedents and a creative approach to the practical limitations they faced, which were passed on and further adapted by the ICC. Second, the arrests of several key figures enabled an earlier cessation of violence and made it clear that even leaders still in office can be held responsible for mass atrocities that occur with their knowledge, consent, and encouragement. Third, the historical record established by the ICTY will be invaluable to future scholars, both from within and outside of the former Yugoslavia. The occurrence of those crimes recorded cannot be denied. The international community has a much broader range of resources in dealing with human rights abuses and war criminals, which is a lasting legacy of the ICTY. There was a lot of room for improvement, but those lessons can be taken and used in the future.
53
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