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© Diane Orentlicher 2018
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Library of Congress Cataloging-in-Publication Data
Names: Orentlicher, Diane, author.
Title: Some kind of justice : the ICTY’s impact in Bosnia and Serbia / Diane Orentlicher.
Description: New York : Oxford University Press, 2018. | Includes bibliographical references and index.
Identifiers: LCCN 2017048647 | ISBN 9780190882273 ((hardback) : alk. paper)
Subjects: LCSH: International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. | War crime trials—Yugoslavia. | War crime trials—Serbia. | War crime trials—Bosnia and Herzegovina.
Classification: LCC KZ1203.A12 O74 2018 | DDC 341.6/90268—dc23 LC record available at https://lccn.loc.gov/2017048647
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For Mort
CONTENTS
Preface and Acknowledgments xiii
Abbreviations xvii
1. Introduction 1
Taking Its Shape from the Shore It Meets 3
Benchmarks for Assessing Impact 4
Assessing Impact: Recurring Questions 6
Satisfying and Disappointing the Expectations of Victims 8
Social Transformation: Dispelling Denial and Fostering Acknowledgment 9
Catalyzing Domestic Prosecutions 10
PART ONE The Landscape of Justice: Overview of the ICTY’s Relationship with Bosnia and Serbia
2. Forged in War: Bosnia’s Relationship with the ICTY 15
I. Creating a Court in the Crucible of War 16
A. Reactions to the Council’s Action 20
B. The Wartime Court: Early Indictments of Low-Level Perpetrators 27
C. Justice and Peace: Preventing Amnesty at Dayton 31
II. The Aftermath of War 34
A. IFOR’s Policy of Avoidance 34
B. The OTP Forces NATO’s Hand 41
III. Postwar Political Context: Dayton’s Legacy 45
A. Architecture of Division and Dysfunction 45
1. Ethnic Entities 47
2. Entity Voting and Minority Veto 48
3. The High Representative 49
IV. Concluding Observations 56
3. Coerced Cooperation: Serbia’s Relationship with the ICTY 59
I. Defiance during the Milošević Years 61
II. Conflicted Cooperation: The Koštunica-Đinđić Government (2000–2003) 63
III. The Aftermath of the Đinđić Assassination 71
IV. The Carrot of European Integration 75
V. Concluding Observations 86
PART TWO Measuring ICTY Success: Local Perspectives
4. Some Kind of Justice: Bosnian Expectations of the ICTY 91
I. “Justice Is Important for Its Own Sake” 94
II. “We Are Here to Say It’s Not Good to Do That” 97
III. Establishing the Truth and Dispelling Denial 99
A. Dispelling Serb Denial 99
B. Fostering Acknowledgment by Each Ethnic Group 102
IV. Reconciliation 103
V. Bearing Witness 107
VI. Preventing Future Crimes 107
VII. Removing War Criminals 110
VIII. Catalyzing Justice at Home 110
IX. Concluding Observations 110
5. Dealing with the Past: Serbian Perspectives on ICTY Success 113
I. Ensuring Prosecution of Atrocious Crimes; Dispelling Impunity 114
II. Removing War Criminals 116
III. Dealing with the Past 118
IV. Reconciliation 121
V. Strengthening the Rule of Law by Catalyzing Domestic War Crimes Prosecutions 123
PART THREE The Quality of Victims’ Justice
6. The Quality of Justice: Bosnian Assessments 127
I. Broad Patterns in Bosnian Assessments of the ICTY 129
A. Overall Decline in Positive Assessments 129
B. Ethnic Divisions in Overall Assessments of the Tribunal 130
II. The Quality of Justice 134
A. Sentencing Practices 134
1. Sentence Lengths 134
2. Apparent Inconsistency in Sentencing 141
3. Plea Agreements/Confessions 142
a. Dražen Erdemović 143
b. Biljana Plavšić 145
c. Other Confessions 149
B. Length and Complexity of ICTY Proceedings 153
1. The Trial without End: Slobodan Milošević 154
2. The Heavy Weight of Lengthening Time 157
C. The Collateral Damage of Self-Representation 159
D. The Unindicted 163
E. Removing Dangerous Individuals 164
F. Symbolically Resonant Judgments 165
1. Calling a Massacre by Its Proper Name 165
2. Absence of Genocide Convictions outside the Context of Srebrenica 167
3. Gender Jurisprudence 170
G. Beyond Individual Judgments 172
H. Bearing Witness 173
I. “This Is a Political Court” 175
1. Nondisclosure of Evidence in the Milošević Case 175
2. Controversial Acquittals 178
a. Gotovina and Haradinaj Acquittals 179
b. “Specific Direction” 182
c. Trial Chamber’s Acquittal of Vojislav Šešelj 188
III. Concluding Observations 189
PART FOUR Impact on Acknowledgment
7. Denial and Acknowledgment in Serbia 193
I. Serbian Citizens’ Awareness and Acknowledgment of Crimes Committed by Serbs and the Role of Serbian Institutions 195
A. What Might We Expect Serbian Citizens to Know and Acknowledge? 195
B. Awareness of War Crimes as Reflected in Surveys 198
C. Resistance to Reports of Serb Atrocities 207
II. Accounting for Persistently High Levels of Denial 208
A. Serbian Perspectives 208
1. Knowing/Not Knowing 208
2. Time, Memory, and Context 210
3. Sources of Information about Wartime Conduct: Official and Elite Discourses 216
4. Vilifying the Hague Tribunal 220
5. Other Sources of Information about War Crimes 225
B. Social Science Perspectives 226
1. Impact of Official Narratives: Heuristics and Framing 227
2. Motivated Reasoning and Social Identity 229
3. Dissonance 231
4. Belief Perseverance/Confirmation Biases 233
5. A Tipping Point: When Does New Information Change Minds? 235
III. Is There Less Denial and Greater Acknowledgment than There Would Have Been without the ICTY? 236
A. Growing Acceptance of Facts concerning Serb Atrocities 237
B. Regression . . . ? 239
IV. Official Acknowledgment 244
A. Early Post-Milošević Years 245
B. Apologies by Subsequent Serbian Governments 246
C. The Parliamentary Declaration on Srebrenica 250
D. Acknowledgment by “Reformed” Nationalists 251
V. A Foundation for Future Acknowledgment? 256
8. Living in Compulsory Denial (Bosnia) 259
I. Bosnian Citizens’ Acceptance of Fundamental Facts of Wartime Atrocities 260
A. What Should Bosnians Know, Say They Know, and Condemn? 260
B. Awareness of War Crimes as Reflected in Surveys 263
1. Overview of Survey Results: Ethnic Cleavages 264
C. Encounters with Denial and Acknowledgment 270
1. Serb Citizens 270
2. Bosniak Citizens 274
3. Croat Citizens 276
II. Accounting for Denialism 279
A. Motivated Reasoning, Social Identity, and Historical Memory 279
B. Belief Perseverance: Confirmation Biases 281
C. Community Pressure and Fear of Speaking Out 282
D. Elite Discourses, the Incentives that Shape Their Content, and Their Impact on Acknowledgment 284
1. Key Themes of Dominant Discourses and Their Resonance for Target Audiences 286
2. Elite Motivations 290
E. A “Hostile Environment” for Acknowledgment 291
F. The Distinct Effects of Ethnic Division 293
G. Absence of Local Truth Commissions? 296
III. ICTY Impact on Official Acknowledgment 297
A. Acknowledgment by Serb Leaders and Institutions 297
B. Acknowledgment by Leaders of Other Ethnic Groups 306
IV. Communicating with Regional Communities 308
A. A Remote Court 308
B. Bridging the Gap 311
C. Reaching Youth 314
D. Communicate What? 315
V. A Foundation for Future Acknowledgment? 316
PART FIVE Catalyzing Domestic Prosecutions
9. War Crimes Prosecutions in Bosnia-Herzegovina 323
I. The ICTY’s Evolving Relationship with Bosnian Courts 324
A. Primacy 324
B. Supervision and Restraint 328
C. Creating a Partner 334
1. Impetus for Change: The ICTY’s Exit Strategy 334
2. Joint Planning for the Future War Crimes Chamber 336
3. Bosnian Engagement in Launching the War Crimes Institutions; Local Reactions 341
II. The ICTY’s Imprint on Bosnia’s War Crimes Institutions 344
A. Impact on the BWCC’s Independence, Impartiality, and Adherence to Fair Process 344
1. Monitoring Cases Transferred from the ICTY to the BWCC 344
2. Enhancing Judicial Independence and Perceptions of Impartiality through Hybridity 347
B. Impact on Prosecutions: Transfer of Evidence 353
1. 11bis Cases 354
2. Evidence-Sharing in Category II and Other Cases 355
3. Expanding Access to ICTY Archives and Witnesses 356
C. Processing Category II Cases: Renewed Oversight by the OTP 359
D. Capacity-Building Initiatives 365
1. Visiting Young Professionals 366
2. Capacity-Building through the Participation of International Judges 367
3. Capacity-Building through the Participation of International Prosecutors 369
E. Impact through Case Law 370
1. Prosecuting Sexual Violence Crimes 370
2. Maktouf-Damjanović: A Cautionary Tale 373
III. Strengthening Domestic Partners: The Question of Timing 376
A. Launching State-Level Institutions 377
B. Completing the Completion Strategy 380
IV. Concluding Observations 381
10. War Crimes Prosecutions in Serbia 383
I. War Crimes Prosecutions in Serbia before 2003 384
A. The Milošević Era 384
B. Early Post-Milošević Era Prosecutions 386
II. Serbia’s War Crimes Institutions 387
A. The ICTY’s Role in the Establishment of Serbia’s War Crimes Institutions 388
B. From International to Transitional Justice ? 393
C. The ICTY’s Impact on the Operation of the SWCC and OWCP 395
1. Hague Evidence in Serbian Cases 395
a. 11bis and Category II Transfers 395
b. Remote Access to OTP Databases and Requests for Assistance 398
c. Liaison Prosecutors Program 400
2. Sharing “Know How” 401
a. Modeling Procedures 402
b. Capacity-Building: Training and Exchange Programs 404
c. Capacity-Building: Visiting Young Professionals 405
III. Progress and Constraints 406
A. Professionalism of Judges 407
B. Prosecution Rates 409
C. Ranks of Indictees; Political Pressure on the OWCP 412
D. Judicialization of Denial: Obscuring Links between Crimes and the State 418
E. Regional Reverberations 419
IV. Concluding Observations 424
PART SIX Concluding Observations: Looking Ahead
11. The Afterlife of a Tribunal 429
I. Postwar Germany: Transitional Denial 432
II. Delayed Norm Diffusion? 439
Bibliography 443 Index 461
PREFACE AND ACKNOWLEDGMENTS
In periodic trips to the former Yugoslavia during and after the 1990s conflicts accompanying its implosion, I saw how urgently victims of wartime atrocities yearned for justice, investing soaring hopes in the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. Across the first dozen years of the Tribunal’s working life, I was in frequent contact with Bosnian and Serbian advocates who sought to bolster its work by, for example, ensuring the ICTY gained custody of those it had indicted. Thus I had ample grounds to believe global efforts to support the Tribunal were in line with the aspirations of survivors and of local citizens who championed their calls for justice. Even so, once the ICTY successfully addressed early, fundamental challenges to its work, it seemed crucially important to take a deeper look at how citizens of the former Yugoslavia were experiencing Hague justice.
I approached Aryeh Neier, then president of the Open Society Institute (OSI), with an idea I hoped OSI would support: researching and reporting on the Tribunal’s impact in Bosnia, where the vast majority of atrocities prosecuted before the ICTY occurred, and Serbia, whose wartime leader plunged the region into calamitous conflict. Aryeh readily agreed, and convened a meeting of leading human rights experts to advise me on the project’s design. Other members of what is now known as the Open Society Foundations (OSF), including Beka Vučo, Laura Silber, Kelly Askin, and Jim Goldston, provided invaluable suggestions and guidance.
This was the beginning of myriad forms of support by OSI/OSF for the larger project culminating in Some Kind of Justice. OSI funded research visits to BosniaHerzegovina and Serbia in 2006, 2007, and 2009; the Open Society Justice Initiative published the reports resulting from this fieldwork in 2008 (Serbia) and 2010 (Bosnia), the latter in collaboration with the International Center for Transitional Justice. When I returned to this inquiry several years later, Emily Martinez, director of OSF’s Human Rights Initiative, agreed to fund research visits to Bosnia and Serbia in 2012 and in 2014.
The Open Society Fund Serbia (OSF Serbia) and Open Society Fund Bosnia and Herzegovina (OSF BiH) provided indispensable guidance and assistance in organizing hundreds of interviews in Serbia and Bosnia. Despite pressing claims on their attention (both organizations are centrally involved in addressing a raft of consequential challenges in their countries), their leaders and staff could not have been more generous with their time, expertise, insights, and wisdom. I owe a special debt to Jadranka Jelinčić, executive director of OSF Serbia, and Dobrila Govedarica,
Preface and Acknowledgments
executive director of OSF BiH, both of whom marshaled the resources of their offices and staff to support my work while offering wise counsel and insights about their countries’ experience of Hague justice. Mervan Miraščija, OSF BiH’s Law Program Coordinator, and Mihajlo Čolak of OSF Serbia, provided countless forms of support during all of my research visits. During my 2014 research visit to Bosnia, I was ably assisted as well by Nermina Mujčić, then a Project Assistant at OSF BiH. Irfan Hatić drove me across the lengths and breadths of Bosnia, logging long days as well as miles in good cheer. Haris Imamović provided compassionate companionship as well as able translation services.
This book draws upon a rich body of cross-disciplinary research to illuminate the impact of the ICTY in Bosnia and Serbia and explain dynamics behind the Tribunal’s changing impact across more than two decades. But if its assessment is informed by myriad sources and perspectives, whenever possible I have structured its account with the words of those I interviewed in Bosnia and Serbia. Although I am acutely aware I cannot speak for any Bosnian or Serbian citizens, I wanted to let those I interviewed speak for themselves to the extent possible in a book they did not write.
During research visits, I sought interviews with sources with diverse perspectives, ranging from survivors of wartime atrocities to individuals who have played key roles in developments this book explores, such as judges and prosecutors in Bosnian and Serbian war crimes institutions. Some whom I interviewed generously shared additional source materials, such as the results of public opinion surveys they administered, along with invaluable insights into their significance. The contributions of many Bosnian and Serbian citizens whom I interviewed are “acknowledged” throughout Some Kind of Justice. Yet three individuals merit special thanks here: along with Mervan Miraščija, whom I have already mentioned, Ivan Jovanović and Bogdan Ivanišević have been endlessly generous with their time and insights, not only during research visits but whenever I had a question. I am also grateful to Refik Hodžić and Nina Bang-Jensen for invaluable suggestions and contacts in advance of several research visits.
I am most grateful, as well, to judges, prosecutors, outreach officers, and other ICTY personnel who shared their time and insights during interviews in The Hague, Bosnia, and Serbia. Like the contributions of Bosnians and Serbians whom I interviewed, theirs are recognized in relevant portions of this book. Here, I wish to add a special thanks to Kevin Hughes for helping me arrange interviews at the ICTY in May 2015, patiently answering follow-up questions for the next two years, and providing invaluable perspectives on developments chronicled in this book.
As any full-time academic knows, a project like this cannot be undertaken without the support of her institution. The dean of the Washington College of Law of American University, Camille Nelson, and former dean Claudio Grossman generously supported this effort through summer research grants, funding for a research visit to The Hague, research assistants, course releases and, mercifully arriving in the final stages of this project, a sabbatical leave. Bill Ryan, International Law Librarian at the Pence Law Library, provided outstanding assistance at every phase of this project.
An extraordinary group of students at the Washington College of Law provided able research assistance across the years of this project, helping me prepare for each field trip; remain abreast of developments in the practice of the ICTY and the literature about it, as well as developments in Bosnia and Serbia; and finalize
Preface and Acknowledgments xv
the manuscript. Some have, in the time since I began this work, emerged as noted experts in their own right. I am indebted to Mona Adabi, Stephanie Alves, Neha Baht, Sonja Balić, Kaitlin Bruno, Peter Chapman, Chris Davis, Christian de Vos, Chase Dunn, Lyndsay Gorton, Rahma Hussein, Kimi Johnson, Alanna Kennedy, Manuela Londoño, Andrew Maki, Katherine Marshall, Natasha Mikha, Elizabeth Raulston, Steven Everett Simpson, Christopher Tansey, and Chang Zhou.
I am also more grateful than I can say to colleagues who devoted precious time to reviewing draft chapters and answering a multitude of questions that came into focus as I finalized Some Kind of Justice. Special thanks are owed to Nina Bang-Jensen, Kurt Bassuener, Belinda Cooper, Shireen Fisher, Howard Goldman, Matias Hellman, Mort Halperin, Edin Hodzić, Kevin Hughes, Bogdan Ivanisević, Ivan Jovanović, Sandra Orlović, Ivana Nizich, Bill Stuebner, Alex Whiting, Clint Williamson, Timothy William Waters, and Eric Witte. While comments on earlier drafts helped avert a number of mistakes, any that remain are, of course, my own.
The person to whom I owe the largest debt of gratitude is my husband, Mort Halperin, who has taken this journey with me, literally and in every other meaningful sense. Mort did not need to be convinced of the importance of this endeavor: as a senior official in the Clinton administration, he made singular contributions to alleviating the suffering of victims of ethnic violence in Bosnia and Kosovo. But his support was nonetheless extraordinary. Mort accompanied me to Bosnia during one of my research visits despite looming deadlines on two of his own books (he completed both in our hotel room in Sarajevo while I traveled across Bosnia for interviews). Other members of my family, including David Orentlicher, John Orentlicher, Mark Halperin, Karen Avrich, and David Halperin, provided sage advice and support. Peter Hartmann, then traveling in Europe after graduating college, enthusiastically embraced this project when he visited Sarajevo during one of my research visits. Gary Halperin; Roseanne McCabe; and Madelyn, Megan and Hannah Halperin were endlessly understanding when book deadlines intruded on family visits, and provided welcome cheer when I emerged from long stretches at my computer. James Halperin, born in January 2017, brought indescribable joy during the final months of writing.
ABBREVIATIONS
AFBiH Armed Forces of Bosnia and Herzegovina
BCS Bosnian/Croatian/Serbian
BIA Security Information Agency (Serbia)
BiH Bosnia and Herzegovina
BIRN Balkan Investigative Reporting Network
BWCC Bosnian War Crimes Chamber
DOS Democratic Opposition of Serbia
DPA Dayton Peace Agreement
EU European Union
FRY Federal Republic of Yugoslavia
HLC Humanitarian Law Center
HVO Hrvatsko Vijeće Obrane (Croat Defense Council)
ICC International Criminal Court
ICJ International Court of Justice
ICT international criminal tribunal
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
IFOR Implementation Force (NATO)
IMT International Military Tribunal
IWPR Institute for War and Peace Reporting
JNA Jugoslovenska Narodna Armija (Yugoslav National Army)
KLA Kosovo Liberation Army
MICT Mechanism for International Criminal Tribunals
MUP Ministarstvo Unutrašnjih Poslova (Ministry of the Interior, Serbia)
NATO North Atlantic Treaty Organization
NGO Nongovernmental Organization
OHR Office of the High Representative
OSCE Organization for Security and Co-operation in Europe
OTP Office of the Prosecutor (ICTY)
OWCP Office of the War Crimes Prosecutor (Serbia)
PIC Peace Implementation Council
POBiH Prosecutor’s Office of Bosnia and Herzegovina
RFL/RL Radio Free Europe/Radio Liberty
RS Republika Srpska
SAA Stabilisation and Association Agreement
SaM Serbia and Montenegro
SDA Stranka Demokratske Akcije (Party for Democratic Action)
SDS Srpska Demokratska Stranka (Serb Democratic Party)
SDWC Special Department for War Crimes (Bosnia)
SFOR Stabilization Force (NATO)
SFRY Socialist Federal Republic of Yugoslavia
SNS Srpska Napredna Stranka (Serb Progressive Party)
SNSD Alliance of Independent Social Democrats
SPS Socijalistička Partija Srbija (Socialist Party of Serbia)
SRS Srpska Radikalna Stranka (Serbian Radical Party)
SWCC Serbian War Crimes Chamber
UNDP United Nations Development Programme
VJ Vojska Jugoslavije (Army of Yugoslavia)
VRS Vojska Republike Srpske (Army of Republika Srpska)
YIHR Youth Initiative for Human Rights
WCIS War Crimes Investigation Service (Serbia)
1 Introduction
As Yugoslav states endured lacerating horrors in the early 1990s, the UN Security Council answered urgent pleas for rescue with plainly inadequate measures, at grievous cost to communities in crisis. In this setting, it was easy to dismiss its decision to create a court in the mold of Nuremberg as another futile gesture; indeed, many did.
Yet it was arresting to see Council members reach for higher ground, summoning the conscience of humanity to justify what was, quite literally, an exceptional measure. As the Council prepared to create the International Criminal Tribunal for the former Yugoslavia (ICTY), Madeleine Albright, then U.S. ambassador to the United Nations, evoked a hallowed symbol: “There is an echo in this Chamber today. The Nuremberg Principles have been reaffirmed.” Of the ethnic violence then claiming countless lives, Albright said:
We cannot ignore the human toll. Bold tyrants and fearful minorities are watching to see whether ethnic cleansing is a policy the world will tolerate. [O]ur answers must be a resounding “no”.1
In that moment, no one could foresee the Tribunal’s impact on the near horizon (though Council members assuredly knew it would do nothing to stop the carnage
1 Provisional Verbatim Record, U.N. SCOR, 3,175th mtg. at 12–13, U.N. Doc. S/PV.3175 (Feb. 22, 1993). The indented language is that of then U.S. secretary of state Warren Christopher, whom Ambassador Albright quoted in her intervention.
Some Kind of Justice. Diane Orentlicher.
© Diane Orentlicher 2018. Published 2018 by Oxford University Press.
underway), much less its reverberations across an unexpectedly long lifetime. Within a few years, the ICTY’s global influence had become clear enough: Unexpectedly, the Tribunal was the leading edge in a new era of global justice. Its very existence inspired governments to create war crimes tribunals in other countries and an International Criminal Court (ICC) with wider remit, and catalyzed national efforts to prosecute atrocities committed beyond states’ borders. Before long, moreover, ICTY judges were recasting the laws of war, whose core tenets had remained largely settled for half a century.
Of these developments, much has been written. Yet for over a decade after the ICTY was launched, scholars paid scant attention to its impact on those most affected by its work: citizens of former Yugoslav states.2 In this setting, about a dozen years after the Tribunal began operating I undertook field research in Bosnia and Herzegovina (“Bosnia”), whose citizens suffered the highest levels of wartime atrocities, and Serbia, whose former leader, Slobodan Milošević, brought the region to ruinous conflict, to see how local communities were experiencing Hague justice. Even as I wrote the studies reporting my findings,3 I knew there was much more to say about the Tribunal’s local impact4 than the study format allowed, and planned to delve deeper straight away. But circumstances intervened. I was invited to serve in the Obama administration, where I worked on international and transitional justice issues and atrocity prevention. The resulting delay in starting this book profoundly transformed its nature and conclusions.
The Tribunal’s impact in Bosnia and Serbia had changed markedly since my earlier studies, often in the direction of setbacks where I had previously charted progress, and continued to evolve as I wrote this book. The intervening years also brought a welcome development—a burgeoning scholarly interest in the local effects of international criminal tribunals (ICTs).5 While the latter has enriched this book, it
2 One of the earliest accounts of local perspectives was by a journalist, who explored victims’ perceptions of the ICTY and a tribunal created by the Security Council in November 1994, the International Criminal Tribunal for Rwanda (ICTR). Elizabeth Neuffer, The Key to My Neighbor’s House: Seeking Justice in Bosnia and Rwanda (2001). An important 2004 publication includes several chapters that address perceptions of the ICTY and ICTR by local communities. My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Eric Stover & Harvey M. Weinstein eds., 2004). Other comparatively early efforts to explore discrete aspects of the ICTY’s local impact include James Meernik, Justice and Peace? How the International Criminal Tribunal Affects Societal Peace in Bosnia, 42 J. Peace Res. 271 (2005); Rachel Kerr, The Road from Dayton to Brussels? The International Criminal Tribunal for the Former Yugoslavia and the Politics of War Crimes in Bosnia, 14 Eur. Security 319 (2005).
3 Diane F. Orentlicher, Open Society Justice Initiative, Shrinking the Space for Denial: The Impact of the ICTY in Serbia (2008); Diane F. Orentlicher, Open Society Justice Initiative & International Center for Transitional Justice, That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia (2010).
4 Throughout this book I use the phrase “local impact” as shorthand for the effects of an international tribunal in a country directly affected by its work. More commonly, when scholars of international and transitional justice focus on “local” communities, they use the term in its ordinary sense and for an important reason—to emphasize that justice interventions are experienced differently at local and national levels. See, e.g., Laura J. Arriaza & Naomi Roht-Arriaza, Weaving a Braid of Histories: Local Post-Armed Conflict Initiatives in Guatemala, in Localizing Transitional Justice: Interventions and Priorities After Mass Violence 205 (Rosalind Shaw et al. eds., 2010).
5 See, e.g., Lara J. Nettelfield, Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State (2010); Janine Natalya Clark, International
would be an understatement to say the first made it challenging to complete Some Kind of Justice. Writing it was like riding a wave in a churning sea as I tried to paint the ocean beneath me. Chapters I thought I had completed had to be massively rewritten—repeatedly to reflect far-reaching changes in Bosnia, Serbia, and The Hague. However challenging, this was deeply instructive, throwing into high relief the dynamic nature of an ICT’s impact, key factors underlying shifts in its local influence, and the interplay among them.
The ICTY’s longevity made for an exceptionally rich case study of these dynamics: Where the trial of major Nazi war criminals in Nuremberg lasted only a year, the ICTY’s formal life ran nearly a quarter century.6
TAKING ITS SHAPE FROM THE SHORE IT MEETS
A theme running through Some Kind of Justice is that, while the ICTY has had a palpable impact in Bosnia and Serbia, the nature of its influence has been shaped in no small part by each country’s political, social, and economic landscape. (To write about how local conditions shape a tribunal’s “local impact” makes for awkward prose, but highlights a fundamental point.) As Zora Neale Hurston wrote of love, the Hague Tribunal is not like a stone that does the same thing to everything it touches. Like the sea, “it’s a moving thing,” taking “its shape from the shore it meets, and it’s different with every shore.”7 While illuminating, Hurston’s metaphor takes us only so far here: another leitmotif of this book is that, to a heightened degree in post-conflict countries like Bosnia and Serbia, the shores themselves are “moving things” during decades of volatile transition.
As both the Bosnian and Serbian experiences demonstrate, the context that matters here is wider and more complex than the balance of power constellations long seen as crucial in shaping countries’ homegrown approaches to retrospective justice.8 Situational factors ranging from elite discourses to daily struggles to make ends meet have shaped and reshaped citizens’ cognitive landscapes, 9 a phrase I use here to capture the interlocking ways political developments in a country and region;
Trials and Reconciliation: Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia (2014); Sanja Kutnjak Ivković & John Hagan, Reclaiming Justice: The International Tribunal for the Former Yugoslavia and Local Courts (2011); Marko Milanović, The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Postmortem, 110 Am. J. Int’l L. 233 (2016).
6 The ICTY will close at the end of 2017. But its remaining functions will be transferred to the Mechanism for International Criminal Tribunals (MICT), which has already assumed many of them.
7 More precisely, Hurston wrote in dialect: “Love is lak de sea. It’s uh movin’ thing, but still and all, it takes its shape from de shore it meets, and it’s different with every shore.” Zora Neale Hurston, Their Eyes Were Watching God 191 (Modern Classics 2013 ed., Harper Perennial) (1937).
8 See, e.g., Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century 215–18 (1991) (noting there is greater scope for trials of human rights violations committed by a recent regime following its wholesale defeat than after a transition entailing significant continuity with that regime).
9 I borrow this phrase from Sanja Kutnjak Ivković and John Hagan, who used it to connote how “the structural landscape of [a] country’s current national circumstance determines its localized attitudes toward the ICTY.” Kutnak Ivković & Hagan, supra note 5, at 53. These authors, in turn, were influenced by the work of Robert Sampson and Dawn Bartusch. See id
everyday conditions, including economic circumstances; dominant elite discourses and local community perspectives; as well as the local reverberations of citizens’ initiatives, shape a society’s engagement with an ICT.
Adding another layer of complexity, the actions of third parties—in particular, states that have backed the ICTY and inter-governmental organizations such as the European Union and North Atlantic Treaty Organization (NATO)—have at times significantly influenced developments in Bosnia and Serbia. On occasion, the Hague Tribunal and the governments that back it have altered domestic politics in ways that profoundly influence local experiences of Hague justice. For example, a wave of arrests of ICTY fugitives by NATO forces in Bosnia beginning in July 1997 encouraged many who had fled murderous violence to return to their homes—an outcome widely considered a dividend of international justice.10
Reflecting the crucial importance of context to this book’s inquiry, the chapters in Part One (Chapters 2 and 3) explore contextual conditions that have loomed large in Bosnian and Serbian citizens’ cognitive landscapes. Both chapters pay close attention to the role of external actors in shaping those conditions, as well as the downstream impact of their actions and policies on citizens’ experience of Hague justice.
BENCHMARKS FOR ASSESSING IMPACT
At the threshold of this book’s inquiry is a question of metrics: By what criteria should the domestic impact of an ICT be evaluated? In the literature of impact assessment it has been common to derive relevant benchmarks from claims about an ICT’s goals and functions put forth (1) in instruments formally creating a tribunal, such as Security Council resolutions launching the ICTY; (2) by tribunal leaders; and (3) by scholars who have developed arguments in support of international justice.11 In keeping with the aim of this inquiry—to illuminate Bosnian and Serbian citizens’ experience of Hague justice—this book takes a different approach, deriving benchmarks from the expectations of Bosnians and Serbians. During interviews in Bosnia and Serbia I asked individuals who had welcomed the creation of the ICTY, why did you support it—what did you expect it to achieve? Particularly at a time of robust debate about the goals of ICTs,12 it seemed important to understand the priorities of those who have the deepest investment in their work.
The chapters in Part Two describe the richly layered answers these questions elicited. Chapter 4 explores the expectations of Bosnians, whose country experienced the highest levels of wartime atrocities committed in the 1990s’ Yugoslav wars. For reasons that follow from the nature of the conflict in Bosnia, this chapter focuses in particular, though not exclusively, on Bosniak (Muslim) victims’ expectations:13
10 See Chapter 2.
11 See, e.g., Leslie Vinjamuri, Deterrence, Democracy, and the Pursuit of International Justice, 24 Ethics & Int’l Aff. 191, 192 (2010).
12 See infra notes 19-22 and accompanying text.
13 The nature of the conflict in Bosnia was such that few Bosniaks were spared grave harm. Many Bosnians nonetheless recognize meaningful distinctions among survivors. For example, Sarajevans often referred in interviews to Bosnians who were detained in concentration camps and/or sexually enslaved, or whose relatives were murdered in acts of ethnic cleansing, as “the victims” of wartime atrocities. Yet those who lived in Sarajevo during the war were also
Although all three of Bosnia’s major ethnic groups—Bosniaks, Croats, and Serbs— committed and were victimized by vicious crimes, Bosniaks endured the vast majority, culminating in the 1995 genocide in Srebrenica.14 For that reason, Bosniaks have long supported the ICTY’s work at significantly higher levels than members of other ethnic groups.15
The kind of justice survivors sought is multilayered, but at its heart is what some of my interlocutors called “justice for its own sake,” a phrase they used to distinguish the inherent value of prosecutions from their presumed social effects. For many who survived haunting crimes, retributive justice is elemental: victims interviewed for this study emphatically believe those responsible for wartime atrocities deserve to be prosecuted and punished in just proportion to the gravity of their crimes. Many Bosnians also embrace what scholars call the expressive function of criminal trials and punishment: they crave a clarion affirmation, by a court representing the conscience of humanity and enforcing its basic code, that what happened to them was profoundly wrong.16 For some, the moral satisfaction derived from Hague justice answers a deeply personal need. For others, the Tribunal’s expressive function serves a wider aim. Tarik Jusić evoked the latter when he praised a then-recent judgment convicting Stanislav Galić for his role commanding Serbs who laid siege to Sarajevo, saying the judgment “re-established the basic preconditions for society as such. It cannot be that someone bombs you for four years and it’s fine. . . . It’s a re-establishing of basic, underlying values of civilization and society.”17
Another bundle of expectations was of paramount importance to Serbians who embraced the ICTY: as elucidated in Chapter 5, many hoped and believed that, by judicially authenticating the core facts of wartime atrocities, the ICTY would dispel widespread denial about the nature and scope of violence instigated by Serbia’s wartime government, forge a shared understanding of the region’s immediate past, foster acknowledgment and unequivocal condemnation of wartime atrocities by government leaders and citizens alike, and thereby lay a necessary foundation for reconstituting shattered bonds of civic community across the region’s major ethnic groups. In short, they hoped that, if it took a distant court to expose the malevolence of the Milošević regime, its work would catalyze a far-reaching process of targets of war crimes: for three-and-one-half years they were besieged by Serb snipers in violation of international humanitarian law.
14 According to the most reliable source of information about wartime casualties, the Research and Documentation Center (Sarajevo), approximately 83 percent of Bosnian civilians killed and missing during the 1990s conflict were Bosniak. As explained later, this does not necessarily mean all were victims of war crimes, but nonetheless provides a rough proxy for victimization. See Chapter 7.
15 In Chapter 6, I describe fluctuating patterns of support for the ICTY among Bosnia’s three major ethnic groups.
16 In some iterations retributivism “closely resembles” expressive justifications of punishment, as retribution is seen “as an expressive defeat that reasserts moral truth against the wrongdoer’s devaluation of the victim.” David Luban, Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law, in The Philosophy of International Law 569, 576–77 (Samantha Besson & John Tasioulas eds., 2010). More commonly, retributivism and expressivism are seen as distinct justifications. See, e.g., Mark A. Drumbl, Atrocity, Punishment, and International Law 173 (2007). I address these conceptions in Chapter 4.
17 Interview with Tarik Jusić, then Program Director, Mediacentar Sarajevo, in Sarajevo, Bosn. & Herz. (Dec. 6, 2006).
national reckoning and repair. In the meantime, some saw Serbian cooperation with the ICTY, particularly by arresting fugitives and dispatching them to The Hague, as a litmus test of moral leadership during the country’s political transition. Many Bosnians had similar expectations, as explained in Chapter 4.
Claims put forth in Security Council resolutions and by Tribunal officials shaped many citizens’ expectations in Bosnia and Serbia. Inspired in part by far-reaching claims of diplomats and ICTY leaders, many “attributed all these amazing powers to the court, like ‘it will establish the whole truth about [the] conflict’ ”18 and foster reconciliation. Inevitably, many would be gravely disappointed in the reality of Hague justice. Some Kind of Justice thus offers a cautionary tale about the perils of raising unrealistic expectations of international justice.
If the claims of diplomats and court officials influenced early expectations, Bosnians and Serbians later developed a new benchmark of ICTY “success” in the light of experience. Many now count as one of the Tribunal’s signal achievements its role in catalyzing domestic war crimes prosecutions, a function no one anticipated when the ICTY was launched.
ASSESSING IMPACT: RECURRING QUESTIONS
Building from the benchmarks for “success” set forth in Part Two, Parts Three to Five (Chapters 6 through 10) assess the ICTY’s evolving impact in three spheres: (1) Bosnians’ experience of ICTY trials, focusing in particular on the extent to which the Tribunal satisfied victims’ desire for justice (Chapter 6); (2) acknowledgment of and remorse for crimes committed in the 1990s on the part of citizens and political leaders in Serbia and Bosnia (Chapters 7 and 8); and (3) domestic war crimes prosecutions (Chapters 9 and 10). Inevitably, a great deal of the analysis in these chapters reflects idiosyncratic aspects of two countries’ engagement with the ICTY. Even so, the Bosnian and Serbian experiences have wider relevance for two overlapping issues.
One set of questions concerns the writ of ICTs: What goals should be assigned to them, and how should we prioritize among them? The proliferation since 1993 of Nuremberg-styled tribunals, each of which has faced and failed a raft of challenges, has invited attention to the “goal-related problems” of ICTs.19 Putting the case starkly, Mirjan Damaška argued in 2008 “that current views on the objectives of [ICTs] are in disarray,” generating “curable weaknesses” in their work.20 A foundational problem, Damaška averred, is the overabundance and ambitious sweep of goals ascribed to ICTs, whose fulfillment in whole would be a “truly gargantuan” feat.21 Damaška’s diagnosis is now widely shared, yet we remain far from consensus about appropriate
18 Interview with Marijana Toma, then Deputy Director, Humanitarian Law Center, in Belgrade, Serb. (June 10, 2014).
19 Mirjan Damaška, What Is the Point of International Criminal Justice?, 83 Chi.-Kent L. Rev. 330, 330 (2008).
20 Id.
21 Id. at 331. Damaška cites nine examples of goals ICTs have assigned to themselves, ranging from objectives commonly attributed to criminal punishment in national settings to aims, such as producing a “reliable historical record” and ending an ongoing conflict, that are “far removed from the normal concerns of national criminal justice.” Id
aims of global justice.22 Though it is not the task of this book to prescribe an agenda for all ICTs, Some Kind of Justice illuminates goals the Hague Tribunal was inherently well-suited to advance, as well as those for which it was not.
The experiences explored here raise an overlapping but distinct set of questions: Under what circumstances and in what ways can a tribunal created outside the social and political will of a nation advance the aims of transitional justice? While it has not been defined consistently, transitional justice is widely used to connote measures a society undertakes to address its own legacy of wholesale violations of fundamental rights, including domestic trials, truth commissions, reparations programs, and institutional reforms.23 Yet a recurring theme in interviews with Bosnians and Serbians was that the ICTY would serve as an “instrument of transitional justice,”24 or at least help advance domestic processes of retrospective justice.
To note this begs the question, what did these individuals believe the nature and goals of transitional justice to be? While they expressed a range of views, several core assumptions loomed large in interviews: transitional justice measures address a legacy of human rights failures with a view to (1) acknowledging and discharging a country’s moral debt, (2) advancing its transformation toward a state whose government and society are firmly committed to moral precepts previously breached wholesale,25 (3) establishing robust protections against future depredations, while
22 For example some scholars endorse the expressive function of ICTs as a paramount justification for their labors or as a guiding principle for specific aspects of their work, such as case selection, see, e.g., Robert D. Sloane, The Expressive Capacity of Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law, 43 Stan. J. Int’l L. 39 (2007); Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265 (2012), while others hold that prevention of international crimes should be the primary aim of an ICT. See, e.g., Stuart Ford, A Hierarchy of the Goals of International Criminal Courts, 27 Minn. J. Int’l L. _ (forthcoming 2017).
23 See, e.g., U.N. Secretary-General, The Rule of Law and Transitional Justice in Conflict and PostConflict Societies, ¶ 8 U.N. Doc. S/2004/616 (Aug. 23, 2004) (defining transitional justice as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”); Jemima García-Godos & Chandra Lekha Sriram, Introduction to Transitional Justice and Peacebuilding on the Ground: Victims and Combatants 1, 2 (Chandra Lekha Sriram et al. eds., 2013) (defining transitional justice as “a broad set of practices that emerged from efforts by countries in transition from authoritarianism and conflict to address past abuses”).
24 While the quoted phrase succinctly captures this theme as it arose in interviews, the direct source is David Tolbert & Aleksandar Kontić, The International Criminal Tribunal for the Former Yugoslavia: Transitional Justice, the Transfer of Cases to National Courts, and Lessons for the ICC, in The Emerging Practice of the International Criminal Court 135, 135 (Carsten Stahn & Gőran Sluiter eds., 2009). Like many whom I interviewed in Bosnia and Serbia, scholars and other commentators have often implicitly treated ICTs as transitional justice measures. See, e.g., Kim C. Priemel & Alexa Stiller, Introduction to Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography 1, 3–4 (Kim C. Priemel & Alexa Stiller eds., 2014); Matias Hellman, Challenges and Limitations of Outreach: From the ICTY to the ICC, in Contested Justice: The Politics and Practice of International Criminal Court Interventions 251, 254 (Christian de Vos et al. eds., 2015). Some have explicitly defined transitional justice to include trials before ICTs. For example Ruti Teitel has defined transitional justice as “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes,” and has identified postwar prosecutions by Allied countries as the first historical phase of transitional justice. Ruti G. Teitel, Transitional Justice Genealogy, 16 Harv. Hum. Rts. J. 69, 69–70 (2003).
25 In line with the views of a number of Serbians and Bosnians interviewed for this study, Ruti Teitel has emphasized the transformative aims of transitional justice measures, which transcend while
