Prosecuting war crimes is only one of the prerequisites for transitional justice; the lack of other effective mechanisms at the national and regional level explains, in part, the shortcomings of transitional justice in the former Yugoslavia.
By Danijela Dobrota
Transitional justice is one of the terms most frequently used by politicians (particularly when elections approach), the media and relevant stakeholders in the region. It is often reiterated that the Balkans ought to make an attempt to ensure transitional justice, leading to reconciliation and a better future; with the Hague Tribunal widely perceived as the main instrument for transitional justice.
The International Criminal Tribunal for the former Yugoslavia (hereinafter the ICTY or Tribunal) was established with the aim of prosecuting persons responsible for serious violations of international humanitarian law committed in the region as of January 1st 1991. The term ‘transitional justice’ is frequently mentioned and yet, interestingly enough, not really explained to the public. For Sottas, ”transitional justice aims to restore victims’ dignity, build confidence between previously warring groups and foster the institutional changes needed to bring about a new relationship within the population, in order to usher in the rule of law without endorsing practices that amount to total or partial impunity.” (1)
There are numerous definitions which vary on different points. All of them agree, however, that the proper criminal prosecution of war crimes is only one of the prerequisites for transitional justice. Moreover, the existence of more than one effective transitional justice mechanism on the national level is crucial. And this is exactly where the problem with the ICTY and Balkans lies.
From the very definitions and examples, it becomes clear that the ICTY is just one of the elements of transitional policy; one that is far from sufficient to ensure transitional justice. Though there have been attempts to establish other transitional justice instruments within the region, such as Truth Commissions, these have never become fully-functional. Whilst there are many national and regional NGOs dealing with issues of reconciliation, confronting the past and war crimes trials, most are perceived as highly-partial; hence their legitimacy and ability to make a real difference remains questionable.
Being the only more or less efficient transitional justice instrument, one can easily conclude that the Tribunal took on more than it could contend with and that, from one point of view, was doomed to fail with respect to its overly ambitious goals. For instance, “Professor Bassiouni notes that one of the primary purposes of an accountability regime like the ICTY is to ‘establish a record of truth. The ICTY sought to emulate the Nuremberg experience in creating a lasting and truthful historical record of the atrocities and not follow the footsteps of countless ‘forgotten atrocities’.” (2)
Leaving aside the fact that there was little to emulate from the Nuremberg Trials, one can easily argue, especially taking into account the complexity of Balkans conflicts, that there is not one single truth, but a multitude of competing versions. To believe that a court – which should be a strictly legal organ – can determine the truth is, therefore, highly ambitious. The nature of a very complicated international criminal trial very often limits the discovery of truth. This is especially true with respect to the ICTY, which represents a highly compelling experiment and mixture of common and civil law systems. More importantly, newly-appointed judges may not be willing to hand down decisions that are too politically controversial. (3)
In this regard, the Tribunal has been more successful in determining the truth regarding crimes committed by one of the three conflicting parties, whilst the crimes committed by other conflicting parties remain rather underexplored. One can wonder, therefore, if the Hague Tribunal – like the Nuremberg Tribunal sixty years ago – also applies victors’ justice. Nonetheless, as my criminal law professor once emphasized, it is not possible for any criminal system – let alone a young and fragile international court, such as the ICTY – to prosecute all perpetrators.
More importantly, one needs to look at the bigger picture and imagine what the situation would be like if there was no Hague Tribunal; particularly given that national judiciaries were not – and still are not – fully able to deal with war crimes trials. Whilst the Tribunal has plenty of flaws, it gently pushed the region to talk about what happened during the nineties, meaning that the region cannot simply turn a blind eye as happened after World War Two. After all, it all comes down to a basic question – is it better to have some justice or no justice at all?
The problem is that there are not enough effective transitional justice mechanisms, meaning that that region continues to rely upon external factors to help solve its lingering problems, particularly where reconciliation is concerned. In order to successfully confront the troublesome legacy of the nineties – and in order not to keep repeating the mistakes of the past – internally-driven initiatives on the national and regional levels are essential.
Finally, and as Harvard professor, Michael Ignatieff, stated, ‘what seems apparent in the former Yugoslavia is that the past continues to torment because it is not the past. These places are…living in a time in which the past and present are continuous, agglutinated mass of fantasies, distortions, myths, and lies. Reporters in the Balkans wars often observed that when they were told stories about atrocities they were occasionally uncertain whether these stories had occurred yesterday or in 1941, or 1841, or 1441.’
Danijela Dobrota is a lawyer from Belgrade.
1. E. Sottas, ‘Transitional Justice and Sanctions’, International Review of the Red Cross, Volume 90, Number 870, June 2008, Page 371
2. A.A. Schvey, ‘Striving for Accountability in the Former Yugoslavia’, ‘Accountability for Atrocities: National and International Responses’, Edited by J. E. Stromseth, page 56
3. J. Sarkin, ‘Comparing and Contrasting the Approach to Transitional Justice in South Africa and Rwanda: Choosing Between Truth, Reconciliation and Justice’, Page 330