Photo credit: UN International Criminal Tribunal for former Yugoslavia/Flickr, CC BY 2.0
As we already pointed out in the previous essay, the Dayton Peace Agreement (DPA) did not provide for a comprehensive framework to deal with post-war justice. This could be interpreted as if the negotiators somehow envisioned a separation between a peace agreement, as a political settlement, and post-war justice needs. The reason for this separation might be the existence of the international mechanism established to deal with the war crimes in the territory of the former Socialist Federative Republic of Yugoslavia committed during the wars in 1990s, namely the International Criminal Tribunal for former Yugoslavia (ICTY). The ICTY was established in 1993, before the negotiations of the DPA even started and whatsmore, it seems, it provided cover for the DPA not to focus on international criminal justice.
Given the existence of the ICTY, the main public discourse at the time was that it would be sufficient to deal with the past through criminal prosecutions, and that the international arena was most adequate for that, as supposedly a neutral terrain. This neutrality was apparently considered to be a sufficient guarantor that the perpetrators of war crimes, crimes against humanity, and genocide would be held accountable, and that the war crime prosecutions would not be prejudiced, contested, or used for reprisals.
Without doubt, the ICTY was an important mechanism for delivering justice to people in Bosnia and Herzegovina (BiH). It provided facts about committed genocide, crimes against humanity and war crimes and sentenced almost all of the most responsible for mass atrocities committed during the war in BiH. One major and important case remained unfinished however, as Slobodan Milošević died during the trial. It is really doubtful that without the existence of the ICTY victims would see this level of criminal justice and commitment to prosecutions happen after the war, especially given the manner how the DPA was negotiated.
Nevertheless, as the courtrooms were divided from the public with a bullet proof glass, so has the ICTY’s exclusive focus on criminal justice distanced it from social impact. The narrow understanding of the ICTY’s influence on the post-war dynamic, as only relevant for the adjudication of crimes and not the overall social dynamic, was limiting the full scope of justice that could have been delivered to the people of BiH. This lack of ICTY’s comprehensive understanding of post-war justice was complementary with the DPA’s unreflective approach to post-war recovery.
Looking at the DPA, it is noticeable that the DPA did not dedicate a specific annex or section to the ICTY, but only refers to it in order to assert the ICTY’s role as the main criminal justice mechanism. Perhaps this omission occurred because the ICTY’s mandate was already established, or because the ICTY provided the negotiators’ with the perfect excuse not to address war violence through the agreement in any greater detail.
When the DPA does reference the ICTY, it is to determine an obligation of the institutions and parties to the agreement to cooperate with the ICTY. Furthermore, the DPA finds those who were indicted but failed to comply with an order to appear before the ICTY, or those who were sentenced for war crimes, not eligible to run for elections or be considered for various commissions formed by the DPA. So, when it comes to war criminals and their participation in post-war public political life, or in mechanisms established to facilitate peacebuilding, the DPA drew a line at sentenced war criminals.
However, without thorough and systematic vetting and lustration mechanisms in place, the DPA provisions did not prevent war criminals from participating in public political (or economic) life in post-war BiH prior to their indictments (which sometimes took years), or after serving their sentences. Many who participated and were elected to (key) public positions in the first post-war elections in 1997 ended up later being sentenced for war crimes. And many of those that served their sentences returned to BiH and entered the public political spotlight.
This was a logical consequence of the peace negotiation process based on making compromises with those most responsible for the war and war crimes.
This was a logical consequence of the peace negotiation process based on making compromises with those most responsible for the war and war crimes. After being legitimised through the DPA negotiations, participation in the elections of those in key political (and ideological) power positions was just a continuation of the whitewashing of ethno-nationalist ideology’s role during the war.
After the fall of the Berlin Wall and subsequent proclamation that the world has reached the end of history—i.e. that we had started living the post-ideological era—the space for the use of international criminal justice in situations of mass atrocities reopened. The idea of living in a post-ideological era allowed a new, invigorated focus on international legal mechanisms, and specifically on international criminal justice mechanisms. Two opposing ideological blocs that could compete and use the international arena against each other seemingly no longer existed. It is in this context that the ICTY came about.
Still, the prelude to establishment of the ICTY were strong demands articulated by victims, activists, and even some power holders that there needed to be accountability for war crimes. This was coupled with the global outrage about the documented and widely televised crimes taking place in BiH. While war crimes prosecutions were happening in BiH even during the war, they were marred with fair trial and reprisal concerns. At that time, there was no agreed international mechanism for prosecution of war crimes, and international pressure was built for the formation of an international ad hoc war crime tribunal as some form of guarantor of both neutrality and ending impunity.
The ICTY was established in 1993 by the UN Security Council Resolution 827. It was given a mandate to prosecute persons for serious violations of international humanitarian law committed on the territory of the former Yugoslavia, starting from 1 January 1991. However, the formation of the ICTY was not immediately followed by political, financial and logistical commitment of the international community, which was not certain how to handle an international accountability mechanism for international crimes. The ICTY started receiving proper funding only after the DPA was signed.
During its mandate, which lasted from 1993 to 2017, the ICTY indicted 161 individuals. Out of these, 90 have been sentenced and 18 were aquitted; some died during their trial or while serving their sentence, including one of the key negotiators of the DPA, Slobodan Milošević. The majority of the cases dealt with crimes committed during the war in BiH. Notably, by May 2021 when the information on the ICTY key figures was last updated, 59 of those sentenced have already served their sentence and have been released—free to again engage in public life and even run for public office. At the same time, BiH and the region have barely started dealing with the past.
When it came to ending impunity, the ICTY made an important contribution. It established facts about mass crimes that occurred in BiH and individual criminal responsibility for such crimes.
When it came to ending impunity, the ICTY made an important contribution. It established facts about mass crimes that occurred in BiH and individual criminal responsibility for such crimes. It also established that war time rape and sexual violence are prosecutable international crimes. The ICTY also advanced procedural standards for prosecutions and further developed the elements of already recognised international crimes. It also established international standards for support and protection of victim-witnesses.
However, the ICTY lacked both the determination to properly deal with ideologies that caused the war and incited war crimes and an understanding of its role in the process of dealing with the past. This role exceeds the mere establishment of individual criminal responsibility. It requires holding the very structures, which enabled and supported war crimes, accountable. Thus, the ICTY never stood a chance to become a real player in building peace in BiH. Instead, it became a mechanism that, in a perfunctory way, accepted the narrative about the ethnic character of the war that was confirmed in the DPA, but also used by the war criminals in their defence, allowing it to be manipulated by the ethno-nationalist elites as a tool for further mobilisation.
The ICTY had a solid legal precedent developed at the Nüremberg trials, which were held in the wake of World War II. During these trials, prominent members of the political, military, judicial and economic leadership of Nazi Germany were prosecuted under the concept of “system criminality”. This concept refers to collective entities that “order or encourage international crimes to be committed, or permit or tolerate the committing of international crimes.”
Despite the existence of this precedent, the ICTY dogmatically insisted on individual criminal responsibility. The structures that supported and enabled the commissioning of the crimes in BiH, unlike the Nazi Germany, were never put on trial.
Despite the existence of this precedent, the ICTY dogmatically insisted on individual criminal responsibility. The structures that supported and enabled the commissioning of the crimes in BiH, unlike the Nazi Germany, were never put on trial. The work of the ICTY, set up in this way, was inadequate to support the process of dealing with the past. In BiH, mass war crimes were carefully planned and implemented to serve the higher goals of ethno-nationalist elites and the criminal structures they created or appropriated—goals that were later carved into the maps and documents produced in Dayton. The ethno-nationalist elites created new structures (e.g. concentration camps) and appropriated existing ones (e.g. police, army, judiciary) and intentionally used them for the commission of war crimes under their ideological banner. In other words, war crimes were not simply a result of individual behaviour, but were committed because they contributed to fulfilling goals set forth by an ideology
Prosecution of system criminality in the ICTY was made impossible by its insistence on interpreting the war in BiH as an exclusively ethnic war. Thus, any attempt at establishing system criminality was interpreted as blaming an ethnic group, no matter the fact that the prosecution of system criminality and criminalisation of structures could never result in blaming an ethnic group. Structures do not have an ethnicity, nor is ethnicity a concept which in itself has structures. Comparatively speaking, while Nazi and fascist structures and organisations were condemned and remain criminalised in most countries, blame cannot be placed on all Germans, Italians, or Japanese.
The ICTY repeatedly insisted on individual responsibility even though it was obvious that the mass crimes could not have been committed in a vacuum, without support of ideology and structures. To some extent, the initial indictments against Karadžić, Mladić, Plavšić, and Krajišnik recognised this, but the set of circumstances—such as the plea agreement with Plavišić, the late arrests of Karadžić and Mladić, the understanding of the war and its aftermath through the DPA’s prism of ethno-nationalist division of power, the fact that entire Europe rests on ethno-nationalist projects, etc.—turned the ICTY’s deliberations completely away from system criminality.
The ICTY repeatedly insisted on individual responsibility even though it was obvious that the mass crimes could not have been committed in a vacuum, without support of ideology and structures.
A partial attempt to condemn the structures was made by the ICTY through a doctrine of criminal liability called joint criminal enterprise. The outcome of the judgments, however, still ended up being about individual responsibility for war crimes committed by a group of individuals, again failing to condemn the ideologies and systems and structures that enabled the group of individuals to commit crimes (see “Feminist Critiques of International Criminal Law in the Age of Identity Politics,” in Indira Rosenthal, Valerie Oosterveld, Susana SáCouto (eds) Gender and International Criminal Law (Oxford: Oxford University Press, forthcoming 2022).
This approach by the ICTY created several problems in the fulfillment of its mandate of contributing to the restoration and maintenance of peace in BiH.
This approach by the ICTY created several problems in the fulfillment of its mandate of contributing to the restoration and maintenance of peace in BiH. It also helped set the stage for how things played out in the post-war period. Failing to condemn the ethno-nationalist ideology, coupled with the similar approach in the DPA, allowed the ethno-nationalist ideology to thrive after the war. The claim that system criminality would condemn entire ethnic groups and that individual responsibility was an appropriate strategy further strengthened the ethno-nationalist elites in their power struggles. But more than anything else, it provided the ethno-nationalist parties with space to thrive and to continue, undisturbed, to build their violent ethno-nationalist projects that brought them to power in the first place.
Furthermore, by not criminalising the structures that were key enablers and implementers of war crimes (e.g armies, police, judiciary, political parties, religious institutions, industry) the ICTY failed to recognise and condemn methods of mobilisation and lines of responsibility of the structures for commission of mass war crimes. Had they done so, they would have been able to adequately address them by: abolishing the structures that were militarised and infused with ethno-nationalist ideology; transforming the structures that could be transformed; and building new structures needed for sustainable peace. For example, for the commission of the genocide in Srebrenica, the transport industry was mobilised for the deportation of women and children from the area and for the transportation of men to the execution areas. Furthermore, heavy construction machinery was mobilised from the industrial sector and deployed for digging mass graves and later for hiding the crimes by digging up and transporting the bodies to secondary and tertiary mass graves. All of this required massive mobilisation of structures that engaged workers and machinery. This was, however, never addressed. Rather, these industries continued operating without any consequences. If not already in private ownership, they were privatised post-war—many times bought by the very persons who participated in the crimes—and carried on making profits without ever being held responsible for their role in the genocide.
There are other examples. In the city of Mostar under the political and military leadership of the Croat ethno-nationalist elites, slave-labour was used in some factories during the war. Men, held in concentration camps in and around Mostar, were brought to factories to conduct various types of forced labour. This also remained unaddressed and unredressed.
The bottom line is that the political parties, which were the main vehicles for spreading ethno-nationalist ideology and violent projects, and for instigating the war and war crimes, were never criminalised. Rather, their representatives participated in the peace negotiations and the DPA, which consequently allowed them to uninterruptedly remain in power in various forms until today. Imagine if the Nazi Party was invited to participate in peace negotiations and was later allowed to continue ruling Germany for 25+ years!
As a side note, even though the ICTY failed to address criminality of the structures, some reforms of some of the state structures were carried out – e.g. judiciary, police, the intelligence and security agencies, and the military. However, the reforms of some of these institutions were more oriented towards adjusting the structures to fit the liberal ideas of how they could best function within a capitalist system, rather than transforming them from structures that enabled and committed war crimes to structures that support and build peace. Furthermore, both the police and the judiciary went through some limited forms of vetting, which was introduced hastily, was poorly planned and terribly executed. It too followed the ICTY logic of individual responsibility. The vetting process seemed to have been planned by people with little experience, and unsurprisingly, resulted in removal of only some of the individuals that were connected to the commission of war crimes and human rights violations (and some that were not!), while leaving many more war criminals in place. Furthermore, the structures themselves remained intact and have been carrying on their bidding for ethno-nationalist elites ever since.
However, by missing the chance to address system criminality along with individual criminal responsibility, the ICTY failed to recognise that wars and mass atrocities are not acts of isolated individuals or groups of individuals, but are enabled by structures mobilised around certain ideologies.
To be clear, the ICTY made a significant contribution to fight against impunity by finding and sentencing some individuals responsible for war crimes. It also helped establish important facts surrounding the commission of the most egregious crimes committed during the war in BiH. However, by missing the chance to address system criminality along with individual criminal responsibility, the ICTY failed to recognise that wars and mass atrocities are not acts of isolated individuals or groups of individuals, but are enabled by structures mobilised around certain ideologies.
The ICTY insisted on functioning exclusively within the framework of punitive justice. By doing so, it refused to accept its social responsibility towards the affected societies. The ICTY insisted that it could only deal with the facts presented by the prosecutors and in relation to the charged crimes. However, at the same time, for the court to establish that war crimes, crimes against humanity, and genocide were committed, certain conditions had to be met—including the existence of a protected group and/or armed conflict. To establish this, the judges deliberated on the contextual background that, among other things, included historical reflections. Seeing themselves as exclusively dealing with the law and crimes, the ICTY approached this part of the judgment by inertia, many times going through short-cuts that involved uncritically retelling the historical narratives created by the ethno-nationalist elites. This led judges to randomly engage in analysing the context in which the crimes were committed, lacking proper understanding and thus reinforcing the narrative of ethnic conflict. At the same time the ICTY refused to accept any responsibility for how the contextualisation was phrased. By doing so, the ICTY failed miserably when it came to the restoration of the social fabric.
Seeing themselves as exclusively dealing with the law and crimes, the ICTY approached this part of the judgment by inertia, many times going through short-cuts that involved uncritically retelling the historical narratives created by the ethno-nationalist elites.
Many will say that its mandate was primarily to prosecute the individuals responsible for international crimes, but these prosecutions were never supposed to be prosecutions for the sake of the prosecutions. The UN Security Council explicitly stated in its Resolution 808 that the establishment of the ICTY and consequent prosecutions were to contribute to “the restoration and maintenance of peace”. Maybe this was put in the resolution lightly and without much thought, but restoration and maintenance of peace requires acknowledging responsibility towards the affected societies.
Due to the ICTY’s specific focus on individual criminal responsibility, many facts about the war have been established anew for each case (as per ICTY’s interpretation of the requirement of fair trial). Consequently, lacking a systematic approach to establishing facts about the whole war, including both its causes and consequences, the ICTY made the established facts in individual cases prone to ethno-nationalist manipulation.
The ICTY fell into the trap of ethno-nationalist elites’ narratives and even contributed to the framing of the war as an ethnic war. The condition for prosecuting a war crime was for the crime to have been committed by “an enemy,” which in the case of BiH was always defined through ethnicity. Thus, victims were always described through their ethnicity in relation to the ethnicity of the accused. Through this strategy, rapes or killings committed by a perpetrator with the same ethnicity as the victim remained invisible. In this way, the ICTY prosecutions further entrenched the ethnic identities of the victims imposed by those committing crimes.
When the ICTY established facts in a way that suited the ethno-nationalist elites, they would praise the decisions; but when the established facts did not suit them, the ethno-nationalist elites looked for ways to ignore or attack the institution.
When the ICTY established facts in a way that suited the ethno-nationalist elites, they would praise the decisions; but when the established facts did not suit them, the ethno-nationalist elites looked for ways to ignore or attack the institution. Sometimes the ethno-nationalist elites engaged in counting how many of those accused of war crimes came from “their” ethnic group, seeking balance in numbers and responsibility and claiming that the ICTY was targeting “their” group. Sometimes, if it suited their goals better, the ethno-nationalist elites even denounced individual war criminals—because at the end it all came down to individual responsibility. The most pronounced relativisation of the ICTY’s decisions was by using the individuals found guilty for war crimes as martyrs of the ethno-nationalist cause and proclaiming them as heroes of the ethnic group. This support also translated into enormous financial aid for those indicted and sentenced by the ICTY, both for their defence but also as support for their families and their comfortable lifestyles.
The courtroom and the international legal system were framed within the rigid patriarchal order. The underlying assumption during war crime prosecutions was that the war was an exclusively militarised, male business.
The legacy of the ICTY stretches beyond its failure to prosecute system criminality or its ability to uphold ethno-nationalist narratives. The courtroom and the international legal system were framed within the rigid patriarchal order. The underlying assumption during war crime prosecutions was that the war was an exclusively militarised, male business. This led to sidelining crimes committed against women during the war, as well as of their experiences of the war. The courtroom was populated with “important” men—male judges, prosecutors, defence teams, and witnesses—in far greater numbers and far more often than women. Women were usually given auxiliary roles, if that. Only 13 per cent of the witnesses who testified before the ICTY were women. This indicates that women were not considered reliable witnesses, nor that their experiences were relevant for highly male endeavours such as war and even international criminal law.
The main courtroom actors were more interested in discussing military tactics and discussing crimes committed against men, and less interested in looking into gendered experiences of war and war crimes. Being far outnumbered, feminists could only scratch the surface of women’s experiences of war. Only upon insistence of few very dedicated feminists who succeeded in struggles to take some of those important courtroom roles, and the international pressure feminists applied on the court, crimes of rape and sexual violence were given some thought.
The recognition of crime of wartime sexual violence did not mean that the ICTY was actually interested in fully examining how the war affected women, or to condemn and dismantle the patriarchal system that led to and supported the war.
The recognition of crime of wartime sexual violence did not mean that the ICTY was actually interested in fully examining how the war affected women, or to condemn and dismantle the patriarchal system that led to and supported the war. True, the understanding of wartime rape in international criminal law was “upgraded” from the exclusive interpteration of rape as an attack on men’s honour. But nothing else than that. While seemingly recognising some feminist demands, the courtroom only used such prosecutions to preserve its patriarchal nature. It insisted on portraying women through a highly sexist and heteronormative discourse of ethno-nationalist ideology where women were only seen as passive, rapable victims, and biological reproducers of ethnicity. The framing of the crime of rape was thus put within the realm of attack on an ethnic group and male protectors of that group, and not on women.
This allowed sexual violence and rape cases to be addressed only if they supported the main patriarchal interpretation of the war as being framed within the ethno-nationalist conflict. Consequently, the heteronormativity of the courtroom was highlighted. Sexual violence and rape were recognised as such in the cases of crimes against women, but were given other meanings (namely torture) if they were committed against men. The selection of witnesses and the prosecuted crimes of sexual violence tell only the story that supports the ethno-nationalist discourse. Rapes against women were recognised only if committed against women of ethnicities other than the perpetrator’s and especially so if understood within the framework of their ability to reproduce the ethnic group. Wartime rape was primarily recognised in the courtroom if the witness stated that the perpetrator used ethnic slurs while raping her, or made claims that he was making babies of his ethnicity.
The ICTY accepted ethno-nationalist discourse that women are passive bearers of children because of their biological reproductive characteristics, while the cultural and social meanings of ethnic belonging are ascribed through fathers. According to ethno-nationalist discourse, a child’s ethnic identity is determined via the father’s ethnic belonging. In accepting this narrative, through which the rape becomes a tool for destruction of an ethnic group, the ICTY allowed for the erasure of the fact that women experienced these crimes primarily because they were women (and not always, and only, as a tool for reproduction of ethnic group).
On the other hand, sexual violence against men was allowed to appear in the courtroom mainly if it could be interpreted within the framework of torture of inmates who were forced to engage in fellatio with each other. These types of crimes were enacted as part of the homophobic ethno-nationalist framework of humiliation of men belonging to different ethnic groups. Forced fellatio was seen as the final act of humiliation before persons were killed, and the forced act of “homosexual intercourse” as the signifier of the other ethnic group’s weakness.
The only crime that was seemingly recognised as crime committed against women (namely rape) ended up being portrayed as crime against an attacked ethnic group. And this was just additional material for the ethno-nationalist elites’ manipulation of public narratives which they used for mobilisation and consolidation of ethnic groups, and for strengthening their power.
In addition to experiences of rape, the exception to the absence of women’s war experiences was in Krstić case, in which it was clearly established that the killings of men, in combination with expulsion of women and children, proved the intent to destroy Bosnian Muslims, which resulted in genocide. However, even this case remained within the realms of the patriarchal system framed by orientalist imagination of “traditional Muslim” society.
Justice claims could simply not be reduced to internationally-adjudicated justice and the recognition of suffering could not be restrained to a courtroom—especially not to a courtroom far away.
Even though the war crimes, crimes against humanity, and genocide, as international crimes, deserve international level protection (i.e. if they cannot be prosecuted nationally they should be prosecuted internationally to prevent impunity), our post-war reality showed that it was not sufficient just to bring them into the international arena. Justice claims could simply not be reduced to internationally-adjudicated justice and the recognition of suffering could not be restrained to a courtroom—especially not to a courtroom far away.
As regards the ICTY relationship with the broader BiH society, the results were not fantastic here either, for numerous reasons. The ICTY was displaced from BiH, making justice seem far away. For victims, families of the victims, and other interested parties, participation in proceedings was both physically and financially constraining. In addition, the proceedings were conducted through the mediation of interpretation; the publicly accessible decisions, judgments, transcripts, and all of the accompanying documentation were primarily in English and in a virtual form. Some of the proceedings were televised but never managed to evoke more interest than sports and TV shows being broadcast at the same time, as the distance of the court was not only physical, but also metaphorical.
It took more than 15 years to apprehend, prosecute, and adjudicate those most responsible. Once the accused were finally brought before the ICTY, the society was not interested in the proceedings taking place somewhere far away.
Furthermore, for a crime to be prosecuted it required, among other things, access to territories under the investigation, witnesses, material evidence, and at the end, also access to the perpetrator. Substantial financial resources were also needed to conduct the investigations. It took more than 15 years to apprehend, prosecute, and adjudicate those most responsible. Once the accused were finally brought before the ICTY, the society was not interested in the proceedings taking place somewhere far away. By that time, the society was also incapacitated—it could not absorb the full potential of the judgements, e.g. understand and accept all the established facts about the crime that led to the actual verdict. The DPA’s failure to imagine and put in place structures that would enable active strategies for dealing with the past, as well as its ethno-nationalist power-sharing solutions, facilitated this societal powerlessness.
At the beginning of the ICTY prosecutions, the proceedings were also extremely lengthy, resulting in Slobodan Milošević dying before even the first instance judgment was reached. Instead of finding balance between the length of procedures and the need of the BiH society and the victims for establishing facts and truth within reasonable time, in order to comply with its Completion Strategy, the ICTY made the proceedings shorter. This was done through, among other things, reducing “the victims to their forensic usefulness,” calling them only if they had instrumental value for the proceedings. So, towards the end, the proceedings at ICTY started being more about practicalities than about establishing the facts about all committed crimes. The time was up for the victims to tell their entire story!
For many survivors, testifying in court was both empowering and re-traumatising.
Furthermore, the society had the perception that the war criminals were being rewarded by being prosecuted in the Hague. The standards of fair trial and prison conditions were high, and the proceedings placed the accused at the centre of the trials. When discussions about their rights and comfort in the prison cells were put forth either in the courtrooms or in public, the victims ended up feeling exploited and forgotten. In the courtrooms, the victims were only treated as witnesses, or more precisely, as evidence, whose credibility and reliability was on trial (rather than the accused). For many survivors, testifying in court was both empowering and re-traumatising. The only satisfaction for the victim-witnesses was the pronunciation of guilt, as the sentences were not proportionate to the crimes committed, especially if considering the ICTY’s practice of releasing convicted war criminals after serving two-thirds of their sentences and enabling them to return to life as nothing happened. Media reports of “castle-like conditions” for those serving out sentences were in stark contrast to the everyday struggles for economic and social rights that victims were facing in BiH, creating the feeling of utter humiliation among the victims. All this strengthened the narratives of the ethno-nationalist elites in power, as not only could they manipulate images of war criminals, turning them into heroes, but they could also manipulate and mobilise dissatisfied and frustrated victims.
The ICTY eventually detected the growing dissatisfaction and frustration among the victims and tried to correct the errors. But this occurred a little bit too late and a little bit too awkwardly. First, the ICTY made an attempt to address dissatisfaction with its way of work by forming an Outreach programme. Formed too late and limited in its scope, the Outreach programme could not overtake the ethno-nationalist elites’ narratives, which were already firmly established in public discourse in BiH.
The second attempt by the ICTY to course correct included examining the possibilities to tackle previously ignored demands for awarding reparations during trial procedures. The ICTY Rules of Procedure and Evidence actually had provisions regarding restitution and compensation. The restitution of property could be directly awarded as part of criminal proceedings, while compensation for injuries had to be requested through national courts. However, during the proceedings the ICTY never awarded property restitution, or advised victim-witnesses of possibilities for requesting compensations. Subsequently, the ICTY Office of Prosecutors made some attempts to expand the scope of victim compensation, but the judges at the ICTY reported to the UN Security Council that this would extend already long proceedings. The recommendation by the judges was to establish an international claims commission. This recommendation was never followed up.
In the political economy of the peace industry that developed in BiH, reparations became just another commodity.
Instead, the research on reparations was outsourced to the International Organization for Migrations (IOM). The ICTY tasked the IOM with developing a report on reparations, as an attempt to “facilitate discussions and political decision making about reparations for victims” of international crimes committed in the countries of former Yugoslavia. The report was commissioned within the framework of the ICTY’s Legacy. This outsourcing was particularly difficult to understand considering the complete lack of the IOM’s capacities and knowledge about the region and reparations. The selection of the IOM to develop the research report and hence influence the discussion was justified by the IOM’s previous “experience” with reparations, mainly its tracking down of beneficiaries for the German compensation payment process (Holocoast survivors and heirs of Holocaust victims). Needless to say, this report, as is usually the case with outsourced projects, never led to any political discussions or processes that would improve the lives of the victims. With this report, the ICTY seems to have completed its chapter with respect to reparations, and we ended up with multi-million dollar projects on reparations, implemented mainly by the United Nations Development Programme and the IOM. In the political economy of the peace industry that developed in BiH, reparations became just another commodity. While these projects ensured salaries for employees of these agencies for several years, their impact on the lives of the victims has been minimal.
The establishment of the ICTY as the primary mechanism for the delivery of justice, coupled with the societal belief that punitive justice is the only adequate justice, contributed to raised expectations among the victims, and eventually led to their disappointment.
Reducing the dealing with the past to a process of criminal justice led to expectations that all those responsible for crimes would be criminally prosecuted. But addressing mass atrocities meant prosecuting a large number of perpetrators, something that was never going to be feasible. It could have been anticipated from the very beginning that not all those accountable were going to be prosecuted, convicted, and given an appropriate sentence. The failure to communicate this to the victims, as well as to provide a complementary, holistic and comprehensive mechanism for dealing with the past (through the DPA), cost the ICTY its legitimacy within BiH society. Furthermore, this failure also impaired the ICTY’s impact on the peacebuilding process. The insistence on punitive justice as the only relevant justice, and on the individual criminal responsibility as the only form of responsibility, played into the ethno-nationalist elites’ work against the ICTY and its prosecutions—and consequently reaffirmed the dominant ethno-nationalist ideologies.
The space that was created by the DPA for ethno-nationalist elites to manipulate public discourse could not be disrupted only by criminal justice, nor through the ICTY.
As with everything else we’ve discussed in these essays, the ICTY prosecutions and its (in)ability to deal with mass violations did not take place in a vacuum. The space that was created by the DPA for ethno-nationalist elites to manipulate public discourse could not be disrupted only by criminal justice, nor through the ICTY. This did not improve even with the increase in domestic prosecutions. The prosecutions of war crimes were transferred to domestic courts once it became clear that the ICTY would not be able to handle the huge number of cases on its own. However, the narrative about the ethnic conflict and the dogmatic approach to prosecution of exclusively individual responsibility, as firmly established by the ICTY, were also transferred to the domestic courts.
By insisting exclusively on individual criminal responsibility and not addressing the ideology and structures that led to and supported the violence, the neoliberal matrix of identity belonging has become the perfect tool for furthering ethno-nationalist mobilisation, and for impeding an effective and meaningful process of dealing with the past.
The individualisation of criminal responsibility and victims’ experiences was in opposition to the realities of the war, as it was marked with mass atrocities. Both victims and perpetrators were numerous. Addressing harms and violations, and ensuring accountability, could never be reduced only to individuals. The neoliberal framework through which groups are exclusively understood through an identity framework fit perfectly into the ethno-nationalist narrative of mutually excluding ethnic groups in conflict with each other. By insisting exclusively on individual criminal responsibility and not addressing the ideology and structures that led to and supported the violence, the neoliberal matrix of identity belonging has become the perfect tool for furthering ethno-nationalist mobilisation, and for impeding an effective and meaningful process of dealing with the past. Here we need to stress that this is not to argue against criminal prosecutions, as they can be an important justice mechanism for dealing with the past. Rather, these are identifications of the problems that occurred in the context of BiH, intended to improve current practices so that the structures and ideologies responsible for war and crimes are also held responsible and removed from power.
International Criminal Tribunal for former Yugoslavia, Hague, Netherlands.