International Trials and Reconciliation

Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia

Janine Clark

• Publisher: Taylor & Francis
• Year: 2014
• eBook ISBN: 9781317974741
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Transitional justice is a burgeoning field of scholarly inquiry. Yet while the transitional justice literature is replete with claims about the benefits of criminal trials, too often these claims lack an empirical basis and hence remain unproven. While there has been much discussion about whether criminal trials can aid reconciliation, the extent to which they actually do so in practice remains under-explored. This book investigates the relationship between criminal trials and reconciliation, through a particular focus on the International Criminal Tribunal for the former Yugoslavia (ICTY).

Using detailed empirical data – in the form of qualitative interviews and observations from five years of fieldwork – to assess and analyze the ICTY's impact on reconciliation in Bosnia-Hercegovina, Croatia and Kosovo, International Trials and Reconciliation: Assessing the Impact of the International Criminal Tribunal for the former Yugoslavia argues that reconciliation is not a realistic aim for a criminal court. They are, Janine Clark argues, only one part of a rich tapestry of justice, which must also include non-retributive transitional justice processes and mechanisms.

Challenging many of the common yet untested assumptions about the benefits of criminal trials, this innovative and extremely timely monograph will be invaluable for those with interests in the theory and practice of transitional justice.

Chapter 1

The Violent Death of Yugoslavia and the Rebirth of International Criminal Justice

Every year, thousands of tourists would flock to Yugoslavia. A desirable destination for holiday-makers, it similarly offered its citizens a good standard of living and socio-economic security. Due to the turbulent history of the South Slavs, the legacy of the internecine civil war that took place in Yugoslavia during World War Two (WWII) and the fact that not all republics were equally committed to the Yugoslav state, President Tito ruled the country with a strong fist and was instrumental to the successful functioning of the Socialist Federal Republic of Yugoslavia. Doder reflects that, following Tito’s death in May 1980, ‘The glue that held the federation together was gone’ (1993: 14). While this is partly true, it is arguable that the disintegration of Yugoslavia was already inevitable – with or without Tito at the helm. In the post-Cold War world, in which the triumph of liberal democracy was declared as ‘the end of history’ (Fukuyama 1992), Yugoslavia was an anachronism – an unwieldy socialist edifice with bloated bureaucracies and outmoded structures of governance. Furthermore, following the end of the Cold War, when Yugoslavia fundamentally lost its geopolitical and strategic importance in the eyes of the West (Doder 1993: 4; Zimmermann 1995: 2), there was little international interest in countering the various centrifugal forces that ultimately tore the Federation apart.

Yugoslavia unravels

During the 1980s, serious problems were already developing in Yugoslavia. Firstly, it was experiencing a growing economic crisis and falling further into crippling international debt. By 1986, it owed $21 billion (Stephen 2004: 36–37); and four years later, ‘things were so desperate that state banks had “frozen” all hard currency…’ (Stewart 2007: 116–117). The country’s financial difficulties became a source of contention among the six republics, by accelerating unequal economic development. In particular, the wealthier republics, Slovenia and Croatia, did not wish to be dragged into the country’s mounting economic problems and grew ever more resentful of having to subsidize the least developed republics, BiH and Macedonia (LeBor 2002: 130).

Secondly, Tito’s death in 1980 created a power vacuum in Yugoslavia which paved the way for a destructive resurgence of ethnic nationalisms. At the epicentre of this nationalist revival was Slobodan Milošević, whose notoriety began in April 1987 when he visited Kosovo – at that time an autonomous province of Serbia. Relations between Kosovo’s Albanians and Serbs had become increasingly tense, and Milošević – then the head of the Communist Party of Serbia – openly took up the cause of the Kosovo Serbs by pledging to defend and protect them. This marked the start of Milošević’s meteoric rise to power, and two years later he was President of Serbia. Yet, it was not only determination that enabled his success. It was also his sheer ruthlessness. During the Eighth Session of the Serbian Communist Party Central Committee on 22 September 1987, he carefully engineered the ousting of Dragiša Pavlović, the head of the Belgrade Communist Party, and thereby indirectly attacked his former mentor, Serbian President Ivan Stambolić. Although Stambolić was not the primary target of Milošević’s manoeuvrings during the Eighth Session, ‘his [Stambolić’s] reputation suffered a big blow as it became apparent the power balance had tipped toward his former protégé’ (Vladisavljević 2008: 69). With Stambolić critically weakened, Milošević’ could now concentrate on carving out his own path to power. Unleashing his so-called ‘anti-bureaucratic revolution’, he replaced the leaderships of Vojvodina (also an autonomous province of Serbia), Kosovo and Montenegro with Milošević’ loyalists. This meant that, ‘Milošević now controlled Montenegro and Serbia, and could pick four of the Yugoslav presidency members, one short of having total power’ (Stephen 2004: 51). These developments generated significant unease in other Yugoslav republics, ultimately leading the Slovene delegation to walk out of the Fourteenth Congress of the Yugoslav Communist Party on 23 January 1990. The Congress was never to reconvene. While Milošević always professed his commitment to Yugoslavia, his actions and the disquiet they created in other republics were a fundamental cause of its disintegration.

Thirdly, the fact that Yugoslavia’s past remained unresolved crucially facilitated the rise of competing ethnic nationalisms. Under Tito’s leadership, the legacy of the numerous atrocities committed on Yugoslav soil during WWII, most notably at the hands of the fascist Ustaše, was never discussed or addressed. People were simply expected to draw a line under the war in the name of Tito’s ‘brotherhood and unity’. However, the past cannot be buried so easily; ‘It makes intuitive sense that people’s memories of traumatic events…will continue to affect the social fabric in some perhaps intangible but nevertheless important way’ (Sorabji 2006: 1). So it was in Yugoslavia. Embedded into the social fabric was a repository of suppressed memories, anger and bitterness which leaders such as Milošević’ and his Croatian counterpart, President Franjo Tuđman, manipulated for their own ends. It was not ‘ancient hatreds’ that destroyed Yugoslavia. To cite Oberschall, ‘The emotion that poisons ethnic relations is fear…’ (2000: 990); and the fear that insidiously poisoned Yugoslavia was inextricably linked to the latter’s past. Hence, it is almost impossible to envisage how Yugoslavia, particularly in view of its complex ethnic make-up, could have disintegrated peacefully.

Bloodshed and war crimes in the former Yugoslavia

The wars in Slovenia and Croatia

On 25 June 1991, Slovenia declared independence. It had legitimate political and economic reasons for wanting to leave Yugoslavia and its population was largely ethnically homogeneous; but it seceded without any regard for the rest of Yugoslavia. According to Warren Zimmermann, the last US ambassador to Yugoslavia, the Slovenes thus ‘bear considerable responsibility for the bloodbath that followed their secession’ (1995: 7) – a bloodbath which they themselves did not have to experience. The war in Slovenia, fought between the Yugoslav National Army (JNA)¹ and the Slovene territorial defence forces, was a ‘clean’ combat which did not give rise to the brutality and war crimes that were later seen elsewhere in the former Yugoslavia. The absence of a strong ethnic component also facilitated a speedy resolution of the conflict. After ten days of fighting, the parties came together – under the auspices of the European Economic Community (EEC) and the Conference on Security and Co-operation in Europe – to sign the Brioni Accord on 7 July 1991. Shortly thereafter, the JNA withdrew from Slovenia.

Croatia also declared independence on 25 June 1991. Unlike Slovenia, however, Croatia had a significant Serb minority, totalling approximately 12 per cent of its population. This crucial ethnic factor meant that Croatia would pay a far higher price for its independence. Inter-ethnic relations between Croats and the Serb minority seriously deteriorated following the election victory of the right-wing Croatian Democratic Union (HDZ) in April 1990 and the election of its leader, Franjo Tuđman, as the new President of Croatia. For Serbs, the prospect of the nationalist HDZ winning the elections generated deep concern; and once in power, Tuđman and the HDZ merely fuelled Serbs’ legitimate fears. In December 1990, the Croatian parliament adopted a new constitution which downgraded Serbs from the status of a constituent people to a national minority – and thereby eroded many of their rights. In January 1992, the Badinter Commission² thus opined that it would be premature for the EEC to recognize Croatia’s independence at that time, on the grounds that the new Croatian constitution did not include sufficient guarantees for minorities (an opinion which the EEC nevertheless chose to ignore). Large numbers of Serbs, for example, lost their jobs, particularly those working in the police (Glenny 1996: 13). Compounding matters, Milošević and Serbian nationalists cynically exploited the situation to reinforce a sense of impending threat among Croatia’s Serbs. Relentless Serbian propaganda disseminated the terrifying message that if Croatia were to leave Yugoslavia, history would repeat itself and Serbs would find themselves living in another Independent State of Croatia (NDZ), only this time with Tuđman rather than Ante Pavelić at the helm (Bass 2000: 209).³

In Croatia, the centre of resistance to the idea of Croatian independence was Knin. In early 1990, the psychiatrist Jovan Rašković and a group of Serb nationalists founded the Serbian Democratic Party. The latter grew in strength following the HDZ’s victory in the April elections, and in July 1990 Rašković announced that a referendum would be held at the end of August regarding the future of Croatia’s Serbs. This growing unrest in Knin was a major concern to Tuđman. Not only was the situation likely to escalate and spread, but Knin was enormously important economically; ‘Whoever controlled Knin controlled the roads and railways linking Zagreb to the coast’ (LeBor 2002: 142). Tuđman thus needed to gain control of the situation and on 17 August 1990, he sent two helicopters to Knin containing members of his newly-created special unit of the police. While the plan was for the police to secure the town hall and police station in Knin, the JNA intercepted the helicopter and it had to turn back. According to Tanner, ‘Although no one died, the bungled assault on Knin marked the beginning of the Yugoslav wars’ (2010: 233). The local mayor immediately declared a war situation and barricades were erected; this was the start of the Serbs’ ‘log revolution’. Despite Tuđman’s appeals, Serbs went ahead with their referendum and on 25 August 1990, the head of the recently-created Serb National Council, Milan Babić’, pronounced the establishment of the Serb Autonomous Republic of Krajina. A year later, the Serb leadership in Croatia would declare the formation of a new state, the Republic of Serbian Krajina (RSK).

If the war in Croatia began in Knin, the most intense fighting occurred in eastern Slavonia, most notably in the town of Vukovar. Inter-ethnic relations in Vukovar began to change in 1990; tensions mounted, Serb homes and businesses were attacked and Serbs began to disappear (Dabić and Lukić 1997: 21–23). Serb interviewees claimed that they were increasingly victimized in a bid to force them to flee. In the spring of 1991, this volatile situation dangerously escalated. Serbian paramilitary groups began to arrive in Vukovar; Josip Reichl-Kir, the head of the Croatian police in Osijek and a man who had tirelessly sought to calm the situation, was killed by a Croat extremist in the village of New Tenja; and events in Borovo Selo, a Serb village close to Vukovar, ‘were to herald the beginning of armed clashes in the area’ (Prosecutor v. Mrkšić, Radić and Šljivanćanin 2007: §26). On 1 May 1991, Serb irregulars in Borovo Selo shot at and apprehended two Croat policemen in a patrol car. The next day, the head of the police in nearby Vinkovci sent 20 of his men into Borovo Selo to investigate the incident; ‘But they were unable to fight their way through and it was left to the army to divide the two warring sides’ (Glenny 1996: 76). Twelve Croat policemen and three Serb civilians were killed in Borovo Selo that day. As a result of these bloody developments, the Federal Presidency authorized the JNA to intervene to stop the fighting between local Serbs and Croats. Far from acting as a neutral force, however, the JNA quickly took the side of the Serbs.

The JNA massively outnumbered the Croatian combatants and hence should have easily defeated them. However, the latter were highly motivated, while the JNA was ‘an uninspired force’ with an ever-increasing daily desertion rate (Stewart 2007: 158). Struggling to break the Croat defence, the JNA’s siege of Vukovar dragged on for three long months, while the town’s inhabitants – Croats and Serbs alike – huddled in their freezing basements waiting for the relentless shelling to stop. When the siege finally ended on 18 November 1991, ‘Vukovar looked like Stalingrad in 1943’ (Thompson 1992: 297). Serb paramilitaries prowled the streets, all of the town’s Croats were expelled, many were interned in camps (see Rehak 2008) and at least 200 people were taken from the local hospital to nearby Ovčara and killed (Prosecutor v. Mrkšić, Radić and Šljivančanin 2007: §494).

Following the fall of Vukovar, the Croatian government formally called upon the UN to establish a war crimes tribunal. Peskin argues that, ‘from the vantage point of November 1991, the Croatian government viewed a tribunal as providing leverage in its dual goals of gaining recognition [as an independent state] and isolating Serbia’ (2008: 99). Croatia’s request, however, garnered little international support at this time. The termination of hostilities was already in sight, and on 3 January 1992 the UN Special Envoy, Cyrus Vance, successfully negotiated a ceasefire between the two sides. The fact that Serbs still held a quarter of Croatia’s territory inevitably meant that the final phase of the war was yet to come, but in the meantime the world’s attention shifted to neighbouring BiH.

The war in BiH

When Slovenia and Croatia seceded from Yugoslavia, this left BiH in an extremely difficult position. If it remained within a rump Yugoslavia, it would be dominated by Milošević’s Serbia; but if it declared its own independence, Bosnian Serbs – who wished to remain part of Yugoslavia – would never accept this.⁴ Independence, in short, meant war. If the Bosniak leadership was thus caught between a rock and a hard place, Glenny maintains that, ‘The death sentence for Bosnia-Hercegovina was passed in the middle of December 1991 when Germany announced that it would recognize Slovenia and Croatia unconditionally on 15 January 1992’ (1996: 163). Partly for historical reasons dating back to WWII, Germany strongly supported Croatia’s declaration of independence. Its enthusiasm, however, was not universally shared. During a meeting of the EEC’s foreign ministers in Brussels in December 1991, Germany found itself in a minority; but as the discussions continued, positions changed. According to the BBC’s former war correspondent, Martin Bell,

Late at night Germany’s long-serving Foreign Minister, Hans-Dietrich Genscher, reminded his British counterpart, Douglas Hurd, of the German helpfulness over Maastricht.⁵ Seeking instructions, Hurd passed on this politically freighted reminder to Downing Street. In the early hours of the morning of 17 December 1991, the British agreed to the recognition of Croatia and all twelve countries swung into line (2012: 3).

Those who had previously questioned the wisdom of recognizing Croatia’s independence now seemingly set aside their qualms for the sake of European unity (Gallagher 2003: 73). In fact, the EEC’s decision to recognize Croatia’s independence not only undermined the work of the aforementioned Badinter Commission, but also backed BiH into a corner. In December 1991, BiH sought recognition from EEC states, a request that was denied. The following month, the Badinter Commission found that BiH did not meet all of the necessary criteria for recognition. It nevertheless left the door open, opining that this decision could be reassessed if BiH were to hold a referendum on independence under international supervision. It is questionable whether the Badinter Commission was right to suggest a referendum at this time (Burg and Shoup 1999: 126), but BiH duly held a referendum on 29 February and 1 March 1992. The turnout was 63.4 per cent and 92.68 per cent voted for independence (Gallagher 2003: 85). On 21 December 1991, however, the Bosnian Serb assembly had announced the creation of the Serb Republic of BiH (the precursor to the RS), which declared its independence from BiH on 9 January 1992. Bosnian Serbs therefore boycotted the referendum, and ‘within hours of the result, barricades manned by armed Serbs went up in the capital and elsewhere, provoking the first demonstrations by unarmed civilians’ (Vulliamy 1994: 75). Undeterred, BiH declared independence on 6 April 1992. For the next three years, this erstwhile microcosm of Yugoslavia would be a bloody battleground and the scene of violence and brutality on a scale not seen in Europe since WWII.

There were three main, overlapping stages in the Bosnian war. In the first stage, from 1992 until 1993, the ABiH and the HVO jointly fought against the Bosnian Serb Army (VRS). During this period of the conflict, the VRS, under the command of Ratko Mladić, made enormous military gains, while the UN arms embargo imposed on the former Yugoslavia in September 1991 prevented a level playing field and severely disadvantaged the Bosnian Muslims. It was also during this first stage of the conflict that Serb-run camps in the municipality of Prijedor were discovered (Vulliamy 1994: 102). Shocking images from these camps made it increasingly difficult for the international community to simply stand on the sidelines and do nothing.

During the second stage of the war, from late 1992 to 1994, the military alliance between the ABiH and the HVO broke down and the two armies turned on each other. In November 1991, the Bosnian Croat leadership had announced the creation of the Croatian Community of Herceg-Bosna (HZHB), which subsequently became the HRHB. Although Herceg-Bosna was never internationally recognized, the ICTY has found that it was established with the purpose of ultimately seceding from BiH and uniting with neighbouring Croatia (Prosecutor v. Kordić and Čerkez 2001: §491).⁶ Hence, its very existence, under the leadership of Mate Boban, necessarily placed a heavy strain on the alliance between Bosnian Muslims and Bosnian Croats, exposing the fact that the two sides were fighting for different objectives. Ironically, the Vance-Owen plan in 1993, negotiated by the UN Special Envoy to BiH, Cyrus Vance, and Lord David Owen, the European Community representative, further increased the strain. The Vance-Owen plan proposed to divide BiH into ten cantons, each of which would have a Serb, Croat or Bosniak majority. While this was never accepted, due to opposition from the Bosnian Serb leadership, the HVO quickly sought to gain control of those areas which the plan had designated as Croat (Vulliamy 1994: 261). It was thus a tragic irony that, ‘the maps delineating the cantons triggered a fresh outbreak of fighting in central Bosnia as the Bosnian Croats attempted to grab the lands marked as Croat cantons’ (LeBor 2002: 232). The most intense fighting occurred in central BiH and in the Lašva Valley area, culminating in the massacre of 116 Bosnian Muslims in the village of Ahmići on 16 April 1993 (see Clark 2012b).

During the third phase of the war, from 1994 to 1995, the situation on the ground fundamentally changed again. Fighting between Bosnian Muslims and Bosnian Croats ended, and under the Washington Agreement signed in March 1994 the two sides restored their military alliance against the VRS. This would eventually pay enormous dividends. Before that could happen, however, thousands more people would die while the international community stood by. In 1992, the UN had declared Bihać, Goražde, Sarajevo, Srebrenica, Tuzla and Žepa as ‘safe areas’. In reality, they were anything but safe; while the then UN Secretary-General, Boutros Boutros-Ghali, had requested 34,000 troops to protect these areas, ‘the United States and other countries balked at sending their own troops. A second proposal, sarcastically referred to as “safe areas lite” by UN officials, was adopted and only 7,600 peacekeepers were sen...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Dedication
• Contents
• List of figures
• Acknowledgements
• Abbreviations
• Introduction
• 1 The Violent Death of Yugoslavia and the Rebirth of International Criminal Justice
• 2 Reconciliation, the ICTY and the Issue of Impact: Critical Challenges and Foundations
• 3 Part One of a Tripartite Case Study of Bosnia-Hercegovina: Justice
• 4 Bosnia-Hercegovina Part Two: Truth
• 5 Bosnia-Hercegovina Part Three: Inter-Ethnic Relations
• 6 A Case Study of Croatia
• 7 A Case Study of Kosovo
• 8 Beyond the ICTY, Beyond Courts, Beyond Transitional Justice
• Conclusion
• Bibliography
• Index