Reconciliation Via the War Crimes Tribunal?

Aleksandar Fatic

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429816345
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

First published in 2000, this volume is an examination of the issues of reconciliation after civil wars and the role international war crimes tribunals play in facilitating that reconciliation, apart from enforcing justice against perpetrators of war crimes. It argues that a war crime tribunal is partial and operates with no regard for the policy purpose of reconciliation, is likely to install all opposites of confidence and security in regions infested by civil warfare, and that their results will thus be counterproductive and will result in further loss of life and destruction.

1 The Background and Diplomatic Significance of the ICTY

The international diplomatic landscape that was shaped by the massacres of the Bosnian and Croatian wars contained dramatic novelties compared to the realm of traditional European diplomacy before the violent disintegration of the former Yugoslavia. The era of international relations that had started after the end of the Cold War had been marked by contradictory trends: an increasing integration, and a violent political, territorial, and cultural fragmentation and disintegration; an increasing insistence on multilateralism and the peaceful settlement of disputes by diplomatic means on the one hand, and the use of violence to promote the goals and interests of the newly established hierarchies of global dominance, on the other.

There are convincing examples of both. While the European Union has by now achieved an unprecedented degree of coherence in the histoiy of European integration, countries such as the former Yugoslavia and the former Soviet Union have entered a viciously violent inferno of disintegration and murderous quest for national statehood. While the large international organizations, first of all the system of the United Nations with its subsystems, have assumed a leading role in international affairs and imposed the demands of multilateral diplomatic legitimization on all of its members, motivated by the principles of non-violence and respect for the equal rights of others, the great powers of the newly created world of international relations have used exceeding violence against third countries. This has been done ostensibly to impose the principles of peace and international cooperation, but in reality it has mostly been motivated by their desire to secure various types of hegemony on a global level.

The Security Council of the United Nations has become the most important global diplomatic decision-making body that decides the matters of war and peace throughout the world. At the same time, the United States of America and its allies have conducted military attacks, legitimized by the political decisions taken in the UN Security Council during the 1990s, against Iraq and the military positions of Bosnian Serbs. The amount of aggression that has been applied in the name of multilateralism in international relations and global peace has, so to say, reached a level that is a major threat to countries that do not have a place at the multilateral decision-making table within the large international organizations.

Diplomacy has been, and is, the major tool whereby countries, great and small alike, have fought for a place at that table. Some have been more successful than others. Those countries that do not appropriately participate in the work of the UN system, the OSCE, the EU, SECI and other global and regional organizations, face the unattractive prospect of being the object of policy of international organizations without at the same time being able to influence their work.

Despite these developments, the institutional structure of new international relations had been rather loose and embryonic until the starkest violent images flew from Bosnia to the western capitals and prompted the international political fora to establish formal vessels whereby international law and the values of the "international community" would be directly imposed upon the countries that were at odds with those values. The massacre in Srebrenica in August 1995, when Bosnian Serbian troops attacked a UN-proclaimed Muslim "safe haven", guarded by Dutch UN peacekeepers, and murdered thousands of people in an "ethnic cleansing" policy of conquering a maximum slice of Bosnia-Herzegovina, triggered the final establishment of a firm rule of international law — it so seemed until March 1999, when the illusion was finally shattered. The ICTY, which was established by UN Security Council resolution no. 808 of 22 February 1993, initially served no apparent deterrent purpose. After the Srebrenica massacre, however, the President of ICTY, Judge Antonio Casseze, and the Cheef Prosecutor, Richard Goldstone, started an active policy of prosecutions by raising criminal indictments against the top political and militaiy brass of the Bosnian Serbian Republic and Army, most notably Radovan Karadzic, the President of the Serbian Republic, and Ratko Mladic, chief general of the Bosnian Serbian Army, along with a number of other members of the Bosnian Serbian state establishment.¹

The Tribunal was established with the purpose of deterring further aggression and transgressions of human rights, the international humanitarian law, and particularly the 1948 Geneva Convention on Genocide. Its goal was to represent the ultimate instrument of international law in meting out and enforcing international justice, as well as the ultimate instrument of the "international community's" diplomacy aimed at preventing the uncontrolled use of violence in the settlement of regional disputes.

The factual background of this latter intention was to be found in the fact that the security constellation in Europe in the post-Cold War era had been marked by security threats predominantly emanating from protracted low intensity ethnic, religious and territorial disputes. These were closely connected with the trend of state disintegration and political fragmentation in eastern Europe. The disintegration of institutions and control mechanisms in the region that arose from decreasing powers of the states after the fall of communism, caused the regional rivalries to be addressed by violent, rather than institutional and diplomatic means. This violence was marked by a low availability of resources (resulting in the predominant use of small weapons) and a relative equality in strength between the warring parties, resulting in the protraction of conflicts and sustained institutional, infrastructural and political devastation of the afflicted countries. The international organizations, that is, their most influential members, faced threats to their regional interests that they could seek to address in two possible ways:

(1) By using bare military force, which was an extremely economically expensive, and both politically and strategically risky option, or

(2) By using diplomatic techniques, which was an ideal, low-cost and clear, but often frustrating and time-consuming method.

Until NATO's military intervention over Kosovo in 1999, at least in Europe, the "international community" had chosen a combination of the two, where the insistence on the application of international law and responsibility to it had been seen as the main pillar of international diplomacy. After the Kosovo conflict, these principles appear somewhat more diluted, because for the first time in Europe since the Second World War a military alliance has conducted cross-boundary bombings without a broad international mandate conveyed by the UN Security Council.

While force has been applied to enforce some of the indictments raised before the Tribunal, so far the ICTY has primarily been seen as a judicial and — no less — diplomatic tool that has been aimed both to enforce justice, and convey a message containing the values of the new world order that was created after the Cold War. The image of ICTY, in important respects, has been the image of the great powers that have led the "international community". An impartiality, consistency and courage in prosecuting all violations of international humanitarian law in the territories of the former Yugoslavia since 1991 are the qualities capable of lending sufficient credibility to both the ICTY and those countries that principally stand behind it, in order for the ICTY's mission to be fully feasible.

In some cases, obviously, diplomacy alone cannot achieve extraditions and effect a sufficient degree of cooperation by the countries concerned, and in such situations force must be applied. However, the application of force in situations where diplomacy has not been given a proper chance, or the application of excessive force, or the use of force in other areas and contexts of international relations, contrary to international law and the established rules of contemporary international relations, may damage the esteem of the ICTY in the region. This may also reduce the degree of compliance with ICTY acts. An example of this danger is the strong national homogenization that has started in Serbia after the NATO bombings, which might mean that the state could become even more closed for cooperation with the ICTY in the future.

Multilateralism in the operation of the Tribunal

One of the main principles of the post-Cold War international relations has been multilateralism in decision-making. Bilateral relations are increasingly giving way to multilateral negotiations under the legitimization umbrella of large international organizations. The principle of multilateralism was upheld in the act of establishment of the ICTY. However, this has not been sufficient. For multilateralism to be thoroughly upheld, multilateral decision-making must be present throughout the operation of the ICTY. A consultative process needs to continually unfold under the Tribunal's roof, where all members of the United Nations would have a place at the table to voice their concerns and suggestions. All UN members, not just the most powerful ones, would have to be able to comment on the prosecution, trial procedure and execution of sanctions in whichever way they might deem appropriate.

While the general principle that countries should abide by the Tribunal's decisions has hardly been in doubt, the transparency of the Tribunal's work and the multilateral nature of its mechanisms and decisions has not been particularly clear. Only a few countries have maintained an active role in supporting the Tribunal and managing the control of its work, while those most concerned, namely the states of the former Yugoslavia, have appeared marginalized and absent from decision-making in The Hague. This has generated the impression that these countries were in effect being subjected to trial, rather than the suspected war criminals in them. The dominant and aggressive role of the US with its own, easily discernible agenda, has not helped the impression of multilateral democracy driving the Tribunal's role in these critical times.

The Tribunal's ability to mobilize international cooperation

One of the key roles of the ICTY has been to help create conditions whereby national reconciliation would be possible and likely, and maximize the potential for the establishment of cooperative links between the countries of the former Yugoslavia and leading members of the international community. Some functional cooperation has, of course, been an unavoidable result of the cessation of hostilities and normalization of production and trade in the region. Yet, war traumas are bound to remain extremely vivid in the consciousness of the population and an impartial, fair meting out of international justice is a key instrument for the facilitation of a faster healing process.

The Tribunal could have facilitated the catharsis of vengeful feelings and grief among the wounded nations of the former Yugoslavia if it had acted as a filter of messages between the communities formerly at war with each other. The theoretically imagined "field" of communication between the communities that had participated in mutual warfare was full of destructive messages or "waves" of distrust, animosity, insecurity and fear. This communication field was hardly an appropriate conduit for the achievement of stability and lasting reconciliation. It was polluted by an enormous amount of negative energy. This negative energy, theoretically, constituted regional instability.

The Tribunal's potential reconciliatory role here could be conceived as a filter between the communities inflicted by mutual warfare, ethnic and territorial conflicts. To be effective, the filter would have had to be of high absorption capacity and have a proper discriminative texture, so that it took out only the right messages or pollutants, and all or most of those pollutants. The Tribunal's substantive correctness and its efficiency in the execution of its mission were inseparable criteria for the evaluation of its work. Failures in either aspect have compromised the Tribunal's credibility and its effectiveness as both a judicial and a diplomatic tool in its reconciliation-building capacity.

One of the major setbacks in the history of the ICTY has been its lack of power to enforce arrest warrants and its subdued position to the political considerations of the great powers. This was the same setback that applied to any international organization when its proclaimed goals and methods of operation differed greatly from the real circumstances and priorities of its work. The ICTY was widely seen as a foreign policy instrument of the great powers for exerting pressure on Balkan countries, in line with their Balkan policy goals, rather than as a diplomatic instrument of the international community as a whole, whose purpose was to deflect destruction and/or perpetuation of violence in the region. The ICTY was thus not seen as being designed to provide an impartial judicial judgement of deeds, rather than persons and nations, which is the key role for any court. It was not seen as an international instrument for the re-establishment of values and the encouragement of mutual trust. This prevented the ICTY from playing an effective and credible role in international relations in the region. The filter appeared to have a wrong texture, the messages and particles that were stopped in it did not seem to be the right and only the right ones, and the filter seemed to be a low-absorption one, because political concerns of the great powers caused many who should clearly have been on the list of the ICTY to get away with their crimes. Political leaders responsible for violations of international humanitarian law remained largely uncharged, or at large. As long as this remained the case, the ICTY could not play a meaningful role in facilitating regional reconciliation, and it had to lag back in relation to the Realpolitik of the great powers.

A perspective on the future development of international war crimes tribunals

At the end of the 20th century, many would argue that the ICTY stands largely as a failure, but also as an important landmark. Many failures in history have played a navigating role in the subsequent development of institutions, practices and cultures that have eventually helped address burning issues of human relations. So it has been in politics, just like in any other area of human relations.

For the prospects of creation of a proper international war crimes court, or a reform of the ICTY, several prerequisites are essential. First, this includes the creation of a particular criminology for international war crimes tribunals, including the conceptual and procedural specifications necessary for the effective operation of such courts. Secondly, the building of an appropriate codex of international relations that would set a feasible context for such courts in their diplomatic and reconciliation-building mission is required. Finally, for international criminal tribunals for war crimes to be feasible, the shortcomings of the ICTY, the objections and answers to those objections regarding the legitimacy and impartiality of it, would need to be explored and translated into a set of specific policy recommendations for the future.

It could be argued that international war crimes tribunals have a future that is inextricably linked with their capacity to serve as effective diplomatic tools. Conversely, once they fail to abide by the principles of diplomacy, they are doomed. In this, they are unlike the national criminal courts. I hope that the forthcoming chapters will elucidate this point sufficiently.

Note

1  Notably enough, the initial indictments were brought forward almost exclusively against Serbs, which has harmed the Tribunal's credibility — see Fati6, A., "The need for a politically balanced work of The Hague International War Crimes Tribunal", Review of International Affairs, vol. XLVII, no. 1044, 1996, pp. 8-11.

2 The Nature of the Peace in the Former Yugoslavia: Heroes and Criminals — How to Distinguish Them?

Many people who have taken active part in the Yugoslav civil wars are perceived as national heroes, and an equal many are seen as villains by the international public. For sure, those who have committed gross violations of international humanitarian law should be taken to court. Yet, the criminals need to be identified and prosecuted consistently and on an equal footing, independently of what nation and what part of the world they come from.

The UN Security Council Resolution no. 808 established the jurisdiction of ICTY to try all those accused of violations of international humanitarian law in the territories of the former Yugoslavia as of 1 January 1993. This meant that all those actors present in the former Yugoslav territories since 1993 onwards were potentially liable under this provision, not only the local Yugoslav actors by origin.¹

The crimes in Bosnia were recently rather well documented and, provided that a proper degree of impartiality and procedural efficiency by the Tribunal could be secured, it could be expected that all or most of those accused would eventually be tried. It was far less clear whether the Tribunal was going to institute any kind of responsibility for those from the ranks of the "international community", whose actions, willful and unwillful, have precipitated humanitarian disasters and war crimes. It was also totally unclear, and it remains unclear, whether the political leaders of the western powers would be brought to answer for their actions that had resulted in bloodshed and murder. People who, by their action or inaction, had contributed to the killings in Vukovar, Srebrenica, Skelane, Serbian Krajina, during the Croatian "Storm" operation, and elsewhere in the region actually taking place, were still at large in 1999. High UN officials whose action or ina...