Post-Yugoslavia

New Cultural and Political Perspectives

D. Abazovic, M. Velikonja, D. Abazovic, M. Velikonja

• Publisher: Palgrave Macmillan
• Year: 2014
• Print ISBN:
  9781137346131
• eBook ISBN:
  9781137346148
• Topic: Politics & International Relations
• Subtopic: Eastern European History
• Index: Politics & International Relations

This interdisciplinary examination of present-day identities and histories of the former Yugoslavia explores relationships with the social, political, cultural and historical 'facts and fictions' that have marked the different parts of the region. It shows that while nationalism remains important other social dynamics also exert a strong influence.

1

The Yugoslavia Tribunal: The Moving Targets of a Legal Theatre

Marlies Glasius and Francesco Colona

In this chapter, we discuss the trajectory of the Yugoslavia Tribunal, not in terms of its legal output or even its political context, but primarily in terms of the perceptions and expectations people within or close to it, as well as academic observers, have had of it. We aim to describe what, according to different observers and participants, it was supposed to produce in terms of socio-political outcomes.

The factual story of precisely how the International Criminal Tribunal for the former Yugoslavia came to be established, and how it functioned in its first decade, has been described in great detail elsewhere (Scharf, 1997; Morris and Scharf, 1995; Bass, 2000; Hagan, 2003). For the purposes of this chapter we will focus on just a few elements of this story which we believe to be pertinent to our inquiry concerning expectations of the Tribunal.

In the first section, we discuss the conjunction of circumstances that enabled this novel institution to come into existence. We emphasize this point because twenty years on, in an international legal world populated with three ad hoc international criminal Tribunals (for Yugoslavia, Rwanda and Lebanon), two hybrid courts (Sierra Leone and Cambodia), and a permanent International Criminal Court (ICC) currently investigating in eight counties, the international criminal tribunal has come to appear as a commonplace institution, part of the international community’s security toolkit.

But in 1993, with only the Nuremberg and Tokyo experiences and negotiations on a permanent court languishing in the UN for forty years, it was by no means an obvious response to war. This section attempts to reconstruct the legal-political imaginary that led the various actors to reach for an international criminal tribunal as a response to the atrocities being committed in the wars of the former Yugoslavia. The next session will discuss some of the founding expectations that people within and close to the institution had of it. The third and fourth parts will chart how these expectations began to move over time, first becoming more limited and focused on international effects, then to become broader again as well as more focused on the local situation. The fifth part will discuss the “benchmarks” by which the success of the Tribunal is nowadays commonly “measured,” and its self-assessment and the assessments of academic authors in these respects. At the same time, it will begin to problematize the use of straightforward benchmarks of success.

Building on this, the conclusion will propose that the Tribunal was an uncontrolled experiment; its operational development was largely unforeseeable by the people most closely involved, and its effects even now only vaguely discernible, not measurable. In so far as the metaphor of “experiment,” which runs throughout the text, holds, its inventors must be conceived as sorcerers’ apprentices who did not know precisely what they were doing even in legal, let alone in socio-political, terms. It will end by proposing another metaphor, that of the theatre, to help us, with hindsight, conceptualize how an international criminal court relates to its socio-political environment.

What allowed the Tribunal to happen

The first call for a “Yugoslavia Tribunal” actually predates the wars. It came not from an international lawyer, but from a local journalist. On May 16, 1991, Mirko Klarin wrote an article in a local newspaper entitled “Nuremberg Now,” in which he proposed that:

Things being the way they are, would it not be better if our big and small leaders were made to sit in the dock instead of at the negotiating table? And if, with the help of world-famous experts in international laws of war, we had a Nuremberg Trial of our own, no matter how small and modest? Not when “this is all over” but instead of whatever might soon befall us. (Klarin, 1991)

This “preventive hybrid court” was not to be. But as soon as the war and its attendant atrocities got under way, the idea of a “Nuremberg-like” Tribunal was being widely circulated as an appropriate response. Three interrelated circumstances facilitated this mind-shift.

First, certain elements of the type of violence that occurred invited comparison to World War II and deployment of the concept of genocide. Previous post-war episodes of gross atrocities had either been perpetrated by white people against non-white people in the context of decolonization struggles (for instance in Algeria, Indonesia, Vietnam) or by and against non-white people (Cambodia, East Timor, Uganda). They took place in Asia and Africa, and often fit into Cold War schemata of communist/anticommunist struggles. The brutalities of the former Yugoslavia, perpetrated by and against white people in Europe, yet on the basis of ethnicity, more readily invited the “remedy of World War II,” a Nuremberg-style Tribunal.

Second, the end of the Cold War facilitated the revival of the idea of a permanent International Criminal Court, after it had languished in the United Nations for more than four decades. In 1989, the International Law Commission had been authorized by the UN General Assembly to begin drafting a Statute. The motion had been proposed by Trinidadian Prime Minister Arthur Robinson (initially under the guise of a means to pursue drug traffickers), but drafted with the help of former Nuremberg prosecutor Ben Ferencz and Egyptian law professor Cherif Bassiouni (Glasius, 2006, 10–11).

Third, the wars of Yugoslavia coincided with revolutionary changes in the global media landscape and in the cost and availability of visual recording devices (Cushman and Mestrovic, 1996). Forced expulsion, destruction of religious sites, and mass rape in Bosnia all became known to the world very rapidly, often with graphic images attached. Both the ubiquitous availability of images of brutality and the association of a few of those images with the Holocaust contributed to a public outcry in Western Europe and the United States. As Chuter points out, while the most lethal Nazi extermination camps such as Belzec, Sobibor and Treblinka have not left us with acute visual images, “the iconography of the camp, with its photographs of skeletal survivors, is overwhelmingly from the Auschwitz model ... So when the Serbs began to collect Croats and Muslims in 1992 and put them into camps a historical nerve was suddenly touched” (Chuter, 2003, 106).

In August 1992, days after footage of Omarska camp had been televised, the London Conference on Yugoslavia adopted a proposal by the French and German foreign ministers to consider the creation of an ad hoc criminal court (Specific Decisions, 1992). In October 1992, a Security Council resolution authorized the establishment of a commission of inquiry. However, this Commission was left with very few funds or cooperation from states, allegedly because both UN officials and the British and French governments felt that an overly zealous response to war crimes would scupper chances of a peace settlement. The first chairman resigned in protest, and the Commission was taken over by the energetic Cherif Bassiouni, who quickly found 50 volunteers and $800,000 from the Soros and the MacArthur foundations, and set up a database on violations at DePaul University in Chicago. The Commission also held on-site investigations and exhumations, and one of its members assembled a 40 strong all-female team of lawyers, mental health specialists and interpreters to interview more than 200 victims and witnesses of rape (Scharf, 1997, 44–48; Bassiouni, 1996, 61–122). Meanwhile, the Security Council adopted a resolution in February 1993 authorizing the establishment of an ad hoc Tribunal. Once authorized by the Security Council, Bassiouni’s effort morphed into the evidence and the personnel base for the new Tribunal – although he was not allowed to be its prosecutor.

Diverse founding expectations

The Security Council Resolution bringing the ICTY into existence expressed the following expectations of the Tribunal:

Determined to put an end to such crimes and to take effective measures to bring to justice the persons responsible for them; Convinced that in the particular circumstance of the former Yugoslavia the establishment of an international Tribunal would enable this aim to be achieved and would contribute to the restoration and maintenance of peace ... decides that an international Tribunal shall be established. (UN Security Council Resolution 808, 1993)

In other words, the Security Council deemed the Tribunal to be good for arrest and trial in itself, for particular and perhaps also “semi-general” deterrence (i.e., beyond existing perpetrators, but within the region) of war crimes, and for the advent and maintenance of peace. It could be questioned, of course, how serious and sincere the drafters of the Resolution were about these aims. On the one hand, a link with the restoration of peace (after having identified a threat to it) is more or less necessary to give the UNSC authority to take measures, on the other hand the Tribunal has been widely seen as a concession to the call to “do something” when states were not willing to engage in peace enforcement. Nonetheless, these particular aims were articulated rather than others, and should be considered as giving some guidance as to what the official founders had in mind.

With others, the establishment of the Tribunal evoked very different expectations. The Bassiouni report sought in its final report to “emphasize the high expectations of justice conveyed by the parties to the conflict, as well as by victims, intergovernmental organizations, nongovernmental organizations, the media and world public opinion” (Final Report, 320, reproduced in Bassiouni, 1996, 122). This assessment probably does reflect the expectations of NGOs, certain media, and at least some victims; although it must clearly be taken with a large grain of salt for the warring parties and intergovernmental organizations.

Judging precisely from the latter perspective, Bass concludes that the establishment of the Tribunal was “an act of tokenism by the world community, which was largely unwilling to intervene in ex-Yugoslavia but did not mind creating an institution that would give the appearance of moral concern ... The Tribunal was built to flounder” (2000, 207).

From within, the perspective was yet different. The first President of the Tribunal, Antonio Cassese, acknowledged with a sense of understatement that “We faced quite a few problems. The most obvious were that we had no budget, and little support from states,” but he “strongly opposed giving up. I argued that we could not kill what Claude Jorda from France and I often called ‘une magnifique aventure morale et juridique’” (Verrijn Stuart and Simons, 2009b, 47).

While debates on the Tribunal in the US administration have been minutely registered, academic authors writing in English on the establishment of the Yugoslavia Tribunal in the 1990s pay little or no attention to its initial reception in the region. A rare exception is Dušan Cotič, a “Yugoslav” lawyer invited to provide a “local” perspective to an early edited volume (Clark and Sann, 1996). He already concludes that regional media bias as well as the early framing of the Tribunal in international media in terms of “Serb crimes” “undoubtedly rallied Serbian public opinion against the proposed court” (Cotič, 1996, 10–12).

So, on inception, the Tribunal was a magnificent adventure, officially supposed to contribute to the restoration and maintenance of peace, believed by its supporters to raise high expectations of justice, believed by others to be built to flounder, and opposed by Serbian public opinion.

Adjustment: lowering and internationalizing criteria

In the early years, the people who signed up for the legal experiment that was the Yugoslavia Tribunal (prosecutors, judges, registry) found themselves in an empty laboratory, understaffed, tinkering with basic equipment, carrying out pilot tests with the trials of some low-level thugs. They waited in vain for their vital ingredient: high-level defendants. The experiment looked set to fail. Gary Bass follows up his above-quoted opinion that the Tribunal was built to flounder as follows:

At first, it did not disappoint. It staggered from one crisis to another: lack of funding; lack of intelligence cooperation from the great powers; lack of staff; threats of amnesties; inability to do investigations; inability to deter war criminals. (2000, 207)

The lack of any effort on the part of major western powers to deliver either a working budget or defendants has been well-documented (Forsythe, 1996; Bass, 2000, 206–275; Maogoto, 2004, 143–178). What has been less emphasized is how the Tribunal was kept alive by the dogged persistence of a handful of lawyers, exemplified for instance by Graham Blewitt, the acting deputy prosecutor who kept working when he failed to get paid – or supervised – for many months (Hagan, 2003, 59).

Two influential volumes of the mid-1990s (Morris and Scharf, 1995; Clark and Sann, 1996) demonstrate how after the Tribunal’s shaky start, the measure of its success was largely reduced to one single question: can any big fish be caught? Peter Burns saw this as depending on political and financial support, and held that “the signs are not encouraging” (Burns, 1996, 158). David Forsythe hoped that a few convictions could be secured with procedural fairness, but the “equivalents of Goering and Eichmann, much less Hitler, will not be tried” (Forsythe, 1996, 203). Christian Tomuschat even imagined how the Tribunal might “founder, without being able to conclude proceedings in even a single case” (Tomuschat, 1996, 26). Forsythe concluded that “perhaps in an armed conflict around 2050, there might be an international war crimes tribunal that functioned better than this one” (Forsythe, 1996, 203).

With hindsight, these reflections have turned out to be too pessimistic. The Tribunal’s low point was the “hear no evil, see no evil” attitude that marked both the Dayton agreement itself and the troop deployment in its aftermath. As has been described elsewhere, the tide began to turn in mid-1997 and both the Tribunal’s budget and its access to suspects gradually began to improve (Bass, 2000; Maogoto, 2004). The Tribunal’s “teeth” became undeniable with the transfer of Slobodan Milošević. Those of the big fish that did not cheat the Tribunal by death (see below) were eventually all brought to The Hague.

But what is more striking than the pessimism of the pronouncements cited above, is what they held to be at stake with the successful catching of Yugoslav suspects. Morris and Scharf, both intimately involved in the foundation of the Tribunal from within the United Nations and the US State Department respectively, argued in 1995 that its success ought to be measured in terms of three questions: Will it be procedurally fair? Will it be effective in bringing perpetrators to justice? And finally, will it pave the way for other tribunals, or impede them? (1995, 331). They concluded by discussing seven other situations in the world to which, if the Yugoslavia Tribunal were to become at least a qualified success, the “Tribunal solution” could be applied. Tomuschat also cast his fear of the failure of the Tribunal in the light of the negotiations for a permanent court: “a most unfortunate precedent may be set. In particular, it would become almost impossible, and in any event useless, to pursue further the efforts ... toward creating a treaty-based international criminal court” (Tomuschat, 1996, 26). Burns did believe at the time of writing that the Tribunal might become a “prototype” for a permanent court (Burns, 1996, 164); Forsythe on the contrary held that such a court was impossible for the same reason the Yugoslavia Tribunal was failing: lack of political will (Forsythe, 1996, 203). But they all used the same benchmark for success: furthering the development of international law in the form of more tribunals. On the judges’ bench, the view of the ultimate purpose of the Yugoslavia Tribunal appears to have been the same. Judge Cassese articulated his refusal to give up his legal and moral adventure by explaining “I said if we go home now, then we will never establish this precedent, and we will never know if we can apply international criminal justice ... we could not fail, because through us, the whole international community would fail. I strongly felt that our failure would also mark the end of any international criminal justice.” (Verrijn Stuart and Simons, 2009b, 47–48).

The effects of the Tribunal on and in the region, including in the terms of the Security Council resolution, deterrence and restoration and maintenance of peace, faded into the background at this point. The manifest failure of deterrence receives cursory attention in some of th...

Table of contents

• Cover
• Title
• Introduction
• 1 The Yugoslavia Tribunal: The Moving Targets of a Legal Theatre
• 2 Reconciliation, Ethnopolitics and Religion in Bosnia-Herzegovina
• 3 New Yugoslavism in Contemporary Popular Music in Slovenia
• 4 Heroes of a New Kind: Commemorations and Appropriations of Yugoslavia’s Sporting and Pop-Cultural Heritage
• 5 Diasporas and Contextualized Transnationalism
• 6 Cinematic Representations of the Bosnian War: De Enclave and the Ontologies of Un-Recognizability
• Conclusions: Building on Regional Trends to Develop New Mechanisms for Political Change
• Index