The ICTY closed its doors at the end of last month – what has it achieved?

Photo credits: The Guardian. A woman prays for the dead in a war memorial near Sbrenica, in Bosnia, where around 8,000 Bosnian muslims were massacred in 1995.

You may have heard of Slobodan Praljak, who was once a Croat military commander, and was later sentenced to 20 years in prison because of war crimes and crimes against humanity. He launched an appeal against his 2004 sentence only for it to be upheld by the UN tribunal in The Hague two months ago. Moments later, however, he drunk poison out of a small brown bottle and died with the words “I am not a war criminal. I oppose this conviction.” He thus became the best-known face of a 14-year old process. But he was not the only one to find  punishment. In total, 161 people were indicted and 90 of them have been found guilty. Some were accused of war crimes, some of crimes against humanity. It was all to do with a horrifying campaign of ethnic cleansing in the 1990’s as Croatia, Slovenia, Macedonia, Montenegro, Serbia, Bosnia and Herzegovina and (more controversially) Kosovo, broke away from the Federal Socialist Republic of Yugoslavia.

PPE Journal - Photo - ICTY II
Photo credits: icty.org

Most of us are too young to remember the war in the former Yugoslavia. We were born in the longest ever period of peace in Europe. We know little of the horrors of ethnic cleansing, genocide, mass murder, torture and gang rape. The International Criminal Tribunal for the former Yugoslavia, which has tried such crimes since 1993, closed its doors at the end of the end of 2017. It did so quietly. But the work of this tribunal has been extremely consequential both politically and legally – it is worth a few minutes of reflection. What, exactly, has it achieved?

First of all, it has proved that war crimes and crimes against humanity do not always go unpunished. This is almost too hard to believe now. Just think of the many atrocities committed by all parties in the Middle East over the last 16 years, and how unlikely it is that their perpetrators will ever be brought to justice.

There will be no international tribunal for war crimes in Syria, in Iraq or Afghanistan. But the ICTY did manage to give war time victims and civilians  in the former yugoslavia a voice, and often even justice.

It did so with the help of an expanding European Union, which wanted to re-establish peace along its borders. General Ante Gotovina, was AWOL for years- the Croatian government had a change of heart, however, when the EU declared it would damage the country’s bid to enter the European Union. He was promptly found by Spanish police in Tenerife following a tip-off from Croatia.

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Photo Credits: Time Magazine . Cover of 1992 edition, depicting muslim prisoners in Serbia.

This, by no means, justifies the court’s existence in the eyes of all Croats – or all Serbs, and Bosnians. Many of these criminals are heroes at home. Slobodan Praljak was a successful businessman and author (of 25 works) in Zagreb until he handed himself in to the ICTY in 2004. After his death by suicide in 2017, most major parties in the Croatian Parliament praised him and declared the ICTY’s verdict did not respect the “historical truths, facts and evidence”, and that it was “unjust and unacceptable”. The Prime Minister of Croatia declared in a conference that Praljak’s suicide illustrates the “deep moral injustice towards the six Croats from Bosnia and Herzegovina and the Croatian people”. Even Serbian President Aleksandar Vučić, himself not the greatest champion of the ICTY or of human rights more generally, notes it was unacceptable for fellow heads of states to praise a convicted war criminal as a hero.

As the Adenauer administration’s refusal to request Eichmann’s extradition in 1962, and their inability to locate him and other criminals in the 17 years before that, prove – it is hard for countries to come to terms with a shared criminal past.

It is difficult, in part, because so many of those who are officially innocent shared the criminals’ ideals, they cannot condemn them without admitting a degree of complicity. It is even more difficult when justice is imposed, in the first instance, from abroad.

ICTY VIII.jpg
Image creidts: The Guardian. A Bosnian prays between the graves of victims of the 1995 Sbrenica massacre. Serbian troops later slaughtered 8,000 Muslim boys and men in the area. Bosnian troops were responsible for 2,500 deaths of Serbian soldiers and civilians. Blame has touched Muslims, Serbs, and Dutch soldiers who were there as UN Peacekeepers.

Many Serbs felt the Western media and governments completely misunderstood a centuries-old ethnic conflict. Ethnic Serbs were the greatest sufferers under Nazi occupation. When Yugoslavia was divided up, the Serbs – a majority and formerly the rulers of the country – had their territories split between Germany, Hungary and

ICTY IX
Photo credits: dw.com. Naser Orić was sentenced, then absolved by the ICTY. He was arrested in Switzerland on behalf of a Serbian court in 2015, but found innocent again upon extradition to Bosnia.

Romania. They were treated as enemies; while the Croat minority was given its own national government under Italian protection. Later, during the War of 1991-2001, the media would portray Serbian and Bosnian muslims as the only victims, ignoring many of the atrocities they committed against ethnic Serbs during the war and in the years before that. In fact, whatever the media may have done, the ICTY indicted officials on all sides of the conflict. Naser Orić, a Bosnian muslim who led the defence of Sbrenica, for example, was handed a two-year sentence for failing to prevent the murder of Bosnian-Serb prisoners of war. But many felt the veredict was extremely lenient. And this helps explain why many war criminals were able to find refuge in Serbia for years while on the run.

PPE Journal - Photo - ICTY V
Photo credits: The Guardian. Radovan Karadžić, a Croatian Serb military leader, was a fugitive for 13 years. He was found in 2016, in Sarajevo, where he had been working as a priest and running a successful online retail business. In 2016 he was found guilty of genocide, war crimes and crimes against humanity.

Muslim victims, too, complained that justice was slow and the sentences sometimes too lenient. It is possible that the ICTY made no one perfectly happy. But this should not detract from its achievements. Apart from setting the ground for other international courts – including that for the Rwandan genocide and the International Criminal Court -, it established new legal precedents. An example is the definition and place of rape amongst war crimes and its trial. Rape was used in this conflict as a weapon of war – to terrorise opponents – and also as part of a widespread systematic attack on Muslim civilians. Rape convictions had always required proof of bodily harm and physical pain, problematic because such proof is difficult to come across 5 or 6 years after the fact. Furthermore, a more fundamental problem is that, what is really at issue in such cases is not physical pain but the victim’s right to sexual self-determination.

The court found several people guilty crimes against humanity for breaching this right, and of war crimes for using rape as a weapon of war.

This is especially important in a war where rape was ordered by officials as part of ethnic cleansing, and to humiliate and terrorise the opposite side. Human Rights Watch reported in 2000 that virtually all the rapes perpetrated by Serbian and Yugoslav forces in Kosovo were gang rapes. Dr Debra Bergoffen, Emerita Professor of Philosophy at George Mason University, has written in more detail about the the sort of degradation inflicted on muslim girls and women in the Kosovar municipality of Foča here.

Meanwhile, victims’ testimonies were given more weight in the legal process than ever before. Some victims were never found or identified – having been sold away into slavery, murdered, or forced to flee. But for many there was justice, however flawed the process may have been. And, since then, there has been peace and growing cooperation in the Balkans.

 

By Elvira Colomer Fatjo

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