*Originally written December 10, 2012. Christopher Stampar. Transitional Justice in the Conflict in Bosnia and Herzegovina
The war in Bosnia and Herzegovina, a clash of several ethnic communities fighting largely over territory, was so brutal and horrific that it prompted the International Criminal Court to launch the International Criminal Tribunal for Yugoslavia, before the conflict had even ended. Eleven years after the court was created, they issued a publication entitled “The Tribunal’s Accomplishments in Justice and Law,” which outlined the achievements the court believed it had made since its inception. The purpose of this paper is to analyze four of the six claims made by the Tribunal to see whether their arguments were true and accurate, and what the effects of those purported claims were for transitional justice in Yugoslavia.
First, however, it is important to establish a substantial background to the war so there is context for the analysis of the Tribunal. This area of the Balkans is constituted by three main ethnic groups: Serbians, Croatians, and Muslims. The war resulted from the dissolution of Yugoslavia, when in “June 1991, both Croatia and Slovenia proclaimed their independence from Yugoslavia”(1). Simultaneously, the “Socialist Republic of Bosnia and Herzegovina, which was inhabited by Muslim Bosniaks (44%), Orthodox Serbs (31%), and Catholic Croats (17%), passed a referendum for independence on February 1992”(2). Following the landslide vote for independence in Bosnia, European Community negotiators tried to “promote a new division of Bosnia into ethnic ‘cantons’ during February and March of 1992”(3), which failed entirely, and significantly fueled the ethnic aspect to the conflict. This vote for independence in Bosnia, however, was boycotted by the Bosnian Serb population. With the assistance of Slobodan Milosevic, the head of the Serbian Government and their Yugoslav People’s Army, Bosnian Serbs “mobilized forces inside the Republic of Bosnia and Herzegovina in order to secure Serbian territory, then war soon broke out across the country, accompanied by the ethnic cleansing of the Bosniak population, especially in Eastern Bosnia”(2). This mobilization of forces was largely due to the international recognition, including by the United States, of Bosnia. Bosnian Serbs began to fear control by Bosnian Muslims, and quickly began blockading entire cities. Most significantly, this prompted the Siege of Sarajevo which began on “April 6, 1992 when Serb Militants opened fire on thousands of peace demonstrators”(4). The Serbs blockaded access to the entire city, shut down the airport, and waged a mass genocide of Muslims within Sarajevo. The attack lasted for nearly three and half years, “the longest siege of a capital city in the history of modern warfare”(5). The siege resulted in the deaths of nearly 1993 in response to reports of the mass atrocities that were being committed in Croatia and Bosnia, including Crimes Against Humanity such as murder, torture, sexual abuse, and forced migration.
The Tribunal was the first to be established by the United Nations, and was the first court on war crimes to be created since Nuremberg and Tokyo(6). It is also one of the only trial to be established while the conflict was still in progress. The court, since its inception, has indicted 162 individuals, and as of 2005 this included 56 in custody, 37 with final sentences, 17 currently serving, and 10 still at large(7) . As of today, there are only 3 individuals, Ratko Mladic, Radovan Karadzic, and Goran Hadzic, who have yet to be tried. The court decided to focus its attention on the most high-level “senior leaders while referring other cases involving intermediate and lower-rank accused to national courts”(8). This, however, has only resulted in the transfer of 8 cases, including 13 individuals, to national courts since 1993 (8). Ultimately, the court has been ordered to finish their mandate by the end of 2012, with the exception of the three remaining individuals mentioned above, who’s cases are expected to end in 2014, with the entire Tribunal come to a close by 2015 (7).
Leading The Shift From Impunity to Accountability
The first main claim of the Tribunals Accomplishments in Justice and Law is that they were “Leading The Shift From Impunity to Accountability”(9). The strongest support that the ICTY has for this claim, is that they have indeed indicted and prosecuted a high number of senior officials that were involved in the conflict, as we saw in the statistics above. In fact, when the court issued an indictment for Slobodan Milosevic, the President of Yugoslavia, in 1999, it was the “first in the history of this Tribunal [or any tribunal] to charge a Head of State during an on-going armed conflict with the commission of serious violations of international humanitarian law”(10). The court also claims that they were the first to indict “prime ministers, army chiefs-of-staff, interior ministers and many other high and mid-level political, military and police leaders from all sides of the conflict”(9). Another example they provide, is that the former Vice-President of Bosnia and Herzegovina is currently serving a sentence. The fact that the court has indicted many high ranking officials, I think, is indisputable, and certainly validates the courts claim that “by holding individuals accountable regardless of their position, the ICTY’s work has dismantled the tradition of impunity for war crimes and other serious violations of international law”(9). I do believe that this is a solid argument from the court, as these indictments and successful prosecutions certainly set a significant historical and legal precedent for an international tribunal to successfully convict such senior officials. This precedent will undoubtedly have an affect on future tribunals and the actions of such officials, as it has been clearly established that they can be held accountable on the international stage for their actions. The significance of these actions from the court can be well demonstrated in the context of transitional justice, as the example of the ICTY is largely antithetical to the theoretical framework of transitional justice which Kai Ambos laid out in his text entitled “The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC.” One of Ambos’ key arguments is that “transitional justice aims at ensuring justice and peace at the same time, but refraining from criminal prosecution...”(11). Moreover, Ambos’s text is largely dedicated to developing “alternatives to criminal prosecution” wherein transitional justice encompasses “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past 11 abuses, in order to ensure accountability, serve justice, and achieve reconciliation”.
This is a fascinating comparison to make, as the strategy of the ICTY appears to directly contradict the framework which Ambos developed. That is to say that the ICTY took criminal prosecution as its fundamental mandate, and unlike Ambos’ vision, largely ignored the other processes often associated with transitional justice. Nonetheless, the ICTY has still been clearly successful in terms of indictments and successful prosecutions. I think this contrast is also essential to justifying the courts claims about their role in improving accountability, because despite the scholastic calls for holistic methods of transitional justice, the courts took a very different and direct approach which has indeed been successful, at minimum in the context of accountability via criminal prosecution. Overall, this first claim from the court is accurate.
Individualizing Guilt
The courts second claim is that their actions have led to “Individualizing Guilt”(9). They say that this is done “by trying individuals on the basis of their personal responsibility”(9), where “leaders and other individuals can no longer hide behind the nation’ or any other group,”(9) and “have to take responsibility and answer for their own actions”(9). To begin with these claims, there is certainly validity in the concept that trying individuals, especially the very high level officials prosecuted under the Tribunal, publicly recognizes the few individuals who are most directly responsible for the mass atrocities that occurred. I believe that this is in fact crucial for ensuring that, and especially in this case, individual groups, particularly ethnic, are not the ones viewed as responsible for the conflict, when it was indeed carried out by a small group of elite officials. Moreover, as Anne Leebaw in an article entitled “The Irreconcilable Goals of Transitional Justice”(12) relevantly quotes from Payam Akhavan, “by telling the truth of what transpired in the former Yugoslavia and ascribing individual guilt to those responsible for manipulating ethic tensions, the ICTY can counter the campaign of collective demonization instigated by political elites”. But why is this important? It means that often the high level officials may try and shift blame away from themselves and onto larger, collective groups, such as the ethnic ones prevalent in this case, which not only gets them off the hook, but may facilitate further conflict. I think that this justifies the Tribunals point that individualizing guilt “can greatly contribute to preventing mutual hatred and promoting the reconciliation process within the war-torn societies of the former Yugoslavia”(9). In this sense, it is well argued that individualizing guilt is key to preventing further conflict between groups who may still largely view one another as responsible. The process of identifying the individuals most significantly responsible for these crimes seeks to reduce this potential perception and conflict.
Leebaw does however offer a very interesting counterargument to this debate, stating, “The question as to why large numbers of people became involved in systemic violence is deemphasized in this formulation. If criminal trials aimed to demonstrate how a large segment of society had participated in mass atrocities, writes Osiel, ‘then victims and the public at large would no longer be content to vent their rage on a small handful of now powerless individuals.’ Thus, the goal of ‘individualizing guilt’ is also in direct tension with the goal of countering denial regarding widespread complicity in systematic political violence. Fletcher and Weinstein take this point further, arguing that where ‘individualizing guilt’ is successful, it offers individuals ‘the opportunity to rationalize or deny their own responsibility for crimes committed in their name’.” Here, Leebaw raises several key concerns to the notion of individualizing guilt. This particular conflict is difficult because not only were their a few key individuals who were responsible for many of the large scale crimes, but there is also no question that they were readily supported by the communities of ethnic groups that resided in the area. The question then becomes, when there is a case, such as in Bosnia, where systemic political violence has occurred, that is to say with popular support and involvement, who should be held responsible? Should the Tribunal have recognized this complicit participation in systemic violence by large ethnic groups, and try to prosecute many individuals cases in national courts? Or, should they have taken the approach they did, which is to only prosecute the high level officials? Inherently, these two pathways stand in opposition to one another, as recognizing the role of the individual may indeed deemphasize the undoubted role that systemic participation played, while trying to prosecute communities, or rather larger groups of individuals as having played a significant role in the violence, which may indeed downplay the fundamental role that a few select high ranking officials had in the decision making for crimes against humanity. Reconciling this paradox is beyond the scope of this paper, but although Leebaw offers some very substantial arguments, I do believe, overall, that the approach of individualizing guilt taken by the Tribunal was the correct choice. I think the court intentionally made this decision because prosecuting a smaller number of high ranking officials is logistically, far easier than attempting to prosecute a potentially endless list of systemic contributors. The court had the best chances of success, in terms of final decisions, sentences, and impact on the conflict, by pursuing the high ranking officials. It may have well been nearly impossible, definitely impractical, for the Tribunal to try and tackle the systemic aspect of this conflict. Unfortunately, this appears to be a fundamental contradiction in transitional justice that needs to be resolved through further research. Overall, this claim was valid.
Establishing The Facts
Fundamental to any process of reconciliation is having a firm understanding of precisely what took place, particularly in Bosnia. As Leebaw corroborates, “establishing the truth about what happened in Bosnia is essential to - not an obstacle to - national reconciliation”(12). As the Tribunal states, “as the work of the the ICTY progresses, important elements of a historical record of the conflicts in the former Yugoslavia in the 1990s have emerged”(9). What is particularly interesting, and substantive, about the Tribunals claim here, is that the process of trying an individual in court in and of itself helps to shed light on events. For instance, “in addition to the evidence presented at trials, admissions of guilt from a number of accused have also greatly contributed to the establishment of the facts. The statements that usually accompany such admissions of guilt corroborate the evidence collected by the Tribunal's investigators to contribute to an irrefutable account of some of the events that occurred in the wars of the 1990s”(9). So while the investigators may not initially be able to provide all of the necessary information to the court via their own research to fully prosecute a case, the actual process of the court yields additional information that can then provide a complete picture of past events and lead to successful prosecutions. The Tribunal’s document actually cites extensively the testimonies of several individuals, too long to quote here, that irrefutably illustrate and justify their claim. One concise, poignant example though is the notion that, for example, only the highest level officials who actually planned and executed certain crimes, can be the ones to reveal the exact locations of mass graves so families can finally locate and properly bury their dead. This is unquestionably a major benefit to this process of establishing facts through judicial channels, at it clearly contributes directly to the personal reconciliation and recovery process for countless individuals within the society. Without this opportunity for closure, tensions could certainly remain high, and conflict likely to continue.
I believe that the Tribunal has a very solid argument with this particular claim, one that is rather difficult to repudiate. Establishing the truth behind past events is key to personal and societal reconciliation, and the judicial process undertaken by the court has definitively contributed to this.
Bringing Justice to Thousands of Victims and Giving Them A Voice
Here the Tribunal claims that their judicial proceedings have provided a sense of justice to the victims of the conflict, stating that “by holding senior individuals responsible for the crimes committed in the former Yugoslavia, the Tribunal is bringing a sense of justice to the many thousands of victims across the region”(9) . To an extent, I certainly believe that it is helpful for victims to see individuals responsible for their crimes being held accountable on an international stage. This, I think, would undoubtedly provide a sense of closure and reconciliation for the victims. However, the biggest issue with this claim is the role of the media. I should clarify, however, that by media I am not just referring to television, radio, or periodical reporting, but also the communication of the successes of the court to the victims, which is where this Tribunal had particular trouble. According to Refik Hadzic, in an article on “Bosnia and Herzegovina - Legitimacy in Transition” (13), “the ICTY did not invest a great deal of effort in communicating with its constituents in the former Yugoslavia during the first six years of its existence. It had no capacity to address them in the languages spoken in the region, leaving the information about the Tribunal reaching the audiences to be filtered by the media. The media largely controlled by the same regimes which saw the Tribunal as a great threat”(13) . While the continued control of traditional media outlets by the succeeding leaders in the area was certainly a key issue, this is outside the control of the court, and not something the Tribunal should be held responsible for. However, I do believe that the Tribunal has a responsibility to effectively communicate their successes to the victims, because if the victims are not aware of the actions being taken by the court, then they are virtually useless in the context of reconciliation. While this document may be one example of the court trying to publicize its efforts and success, what good does it do if it is not produced and made available in local languages? While the court may be able to argue that they had a direct impact on the 3,500 witnesses who participated in the hearings, there are surely far more victims in the region that never had such an opportunity, and relying on this strategy would be ineffective for providing reconciliation to a population of victims in its entirety.
I believe that this is the claim where the Tribunal most significantly faltered. Again, the extreme bias of the traditional media outlets is completely outside the control of the court, but they should have definitely gone to greater, yet reasonable, lengths like providing updates about their work in the local languages, to ensure that the victims are aware of the proceedings and can benefit from them. Without a defined mechanism of providing this information directly from the court to the victims, the work done by the Tribunal is practically non-existent to the victims, and the information is left to the whims of the state-controlled media to be manipulated.
Through analyzing several of the key claims made by the Tribunal in their document entitled “The Tribunals Accomplishments in Justice and Law,” I have shown that overall the court did make accurate and justifiable claims about their successes. However, my analysis also showed that there is almost always an alternative perspective in viewing the potential effects of a particular action taken by the court, especially in the still developing scholarly field of transitional justice. Regardless of whether the court was successful in their own eyes, or even according to this analysis, the true test is whether the victims of the conflict are satisfied with the results of the Tribunal. Some studies have been conducted about public opinion on the matter, but it will be interesting to see how these perceptions turn out in the next few years as the Tribunal comes to its end. Assessing the impacts, both positive and negative, of the Tribunal is no easy feat, and simply tallying these claims is certainly not a conclusive decision on its success. Nonetheless, this document shed important light on the guiding philosophy and strategy of the courts, illustrating their intentions, and providing criteria which can be used to examine its successes and failures, as well as post-conflict progress. I believe, that in the larger context of transitional justice, this analysis also shows that criminal prosecution and tribunals can certainly be one effective tool, of many, for establishing post-conflict peace and reconciliation. It is important that scholars dissect these processes, and learn from past and continuing events to guide our theoretical developments in the field, as well as potential real-world applications in conflict areas. The International Criminal Tribunal of Yugoslavia, regardless of outcome, can unquestionably be a tremendous source of knowledge, information, and insight into the real practical challenges of transitional justice.
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