On the 25th of March 2016, while waiting for an international flight in the United States, we picked up a copy of The New York Times (NY Times) . The front-page image was striking: the Srebrenica memorial with a grieving woman covering her face. The headline triumphantly stated, āJustice for Genocide Victims in Bosniaā. Reading the associated article, that appeared eight pages later, it was evident that the conviction for genocide , committed by probably the highest-ranking figure convicted at the International Criminal Tribunal for the Former Yugoslavia (the Tribunal), war-time president of Republika Srpska, Radovan Karadzic , was viewed as a crucial moment. This was a moment not only for victims but the broader aspirations of an international justice system. The article also hinted that Karadzicās conviction might aid reconciliation and bring closure to āthe bloodiest European conflict since WWIIā (Simons 2016, p. A8). It was further suggested in the article that the conviction would act as a deterrent: preventing alternative versions of history from fuelling future atrocities in the region. Despite these high hopes for what due process and a guilty verdict could achieve, expectations of victims had been disappointed. According to victims quoted in the article, the 40-year sentence was viewed as lenient. The article flagged Karadzicās role in the deaths of 8,000 Muslim men and boys in Srebrenica to underscore the victims ā sense of injustice . While the author of the article hoped the judgment would propel reconciliation , the victims expressed discontent, and it was reported that there was at least one protest in Serbia against the sentence.
The NY Times coverage of the conviction revealed a deeper conundrum for transitional justice : an expectation dilemma that exists between anticipated benefits and likely outcomes of transitional justice trials . This echoed what we found in wide-ranging interviews with people involved with the Tribunal and the Extraordinary Chambers in the Courts of Cambodia (the Chambers): that various groups, from local stakeholders to international jurists and diplomats, hold a diversity of expectations for transitional justice . These expectations frequently did not align with the likely contributions a given transitional justice mechanism may make. In transitional justice endeavours, expectations of speedy reconciliation , that court determinations regarding recent history will be accepted, or that prosecutions will symbolically satisfy victims , are laudable intentions but often reflect almost impossible expectations to achieve. Yet beyond an immediate determination of guilt or innocence, trials do hold wider significance. They can aid in documenting history, compelling social action, or encouraging societal self-reflection. It is not unreasonable to hold high expectations for international criminal trials , particularly in the context of transitional justice .
This book is a story about expectations , but it did not start out that way. Initially, the focus of our study was the construction of historical records in international criminal trials and their role in collective memory. Once in the field, participants consistently raised concerns about the need to manage the expectations people held of the Tribunal and Chambers. It was remarkable how frequently this concern was expressed. Nearly half of participants directly stated that unrealistic expectations were a problem for transitional justice , with eight participants using the term āmanaging expectations ā in initial interviews. A greater number discussed managing expectations in other terms. It was something that we had not encountered before fieldwork and by the time we reached Cambodia , our final fieldwork site, it was clearly a significant issue for the majority of participants. An expectation dilemma was such a dominant concern for participants that it would have been difficult for the research not to respond. Participants constantly lamented that their work at either the Tribunal or Chambers was saddled with expectations they could never reasonably be expected to fulfil. This was not merely a problem of unrealistic expectations held by members of affected communitiesāthe international communities that fund (and often champion) the courts also attached lofty expectations to the institutions . Participants recognized these layers of expectations and several speculated that one factor that impacted in expectations was the media . Despite many participants observing problems concerning expectations and transitional justice , there was no consensus as to what appropriate expectations would be. Participants did agree, however, that expectations needed to be managed. This raised innumerable questions. What were these expectations? How did they impact on transitional justice ? How could they be managed? And was managing them the best or only response?
An Expectation Gap
The significance of transitional justice āthe process that seeks to address the abuses and crimes of prior regimes or conflicts in transitions to more democratic politiesāspans national and international spheres. At a national level, transitional justice may be of fundamental importance for communities in the wake of violence. It is one way that can serve to address their particular needs as survivors, victims , perpetrators, and as a society. Internationally, transitional justice plays an important role as well. Localised conflicts frequently have a destabilising effect well outside the immediate zone of hostilities. For instance, other states are often required to accept refugees fleeing the violence that engulfs their homelands. Conflict zones may help to fuel extremism around the world. In a time when nations are increasingly concerned with the threat of terrorism, external states may be eager to end hostilities and seek remedial steps to address their causes and consequences.
Transitional justice has blossomed as a field of study in a relatively short period (Bell 2009; Posner and Vermeule 2004). Indeed, the last 30 years has seen a proliferation of transitional justice activities. The end of the Cold War provided numerous opportunities to perform transitional justice activities in former Eastern Bloc nations as they transitioned to democracy . Majority rule in South Africa and the end of apartheid is perhaps the most well-known African example of transitional justice . Yet conflicts in other parts of AfricaāRwanda, Sierra Leone, Liberia, Uganda, Sudanāhave seen transitional justice processes (frequently judicial and prosecutorial). Older conflicts have also been examined in contemporary transitional justice enterprisesāmost obviously the trials of Khmer Rouge leaders in Cambodia that form the second case of this study. Elsewhere in Asia, judicial and non-judicial forms of transitional justice have been employed to address the wounds of conflict in Indonesia and many other countries (Braithwaite et al. 2010; Braithwaite et al. 2012).
Despite a burgeoning literature on transitional justice , little has been written about the expectation issue. Nettlefield (2010) has made one of the more direct acknowledgments of the problem, noting that the Tribunal had often been assessed unfavourably. In these assessments the Tribunal had been examined in light of its stated goals , which Nettlefield (2010, p. 10) claims, āare primarily the policy pronouncements of architects of the court, used in times of crisis to justify its creation at a point when not all of those supporting it had honorable intentions.ā The pessimistic view of the Tribunal is the consequence of judging the Tribunal against inappropriate (essentially unrealistic) standards. These standards were premised upon the contributions the Tribunal was expected to make in the former Yugoslavia . For Nettlefield (2010, p. 6), the expectation problem cuts deep: ā[a] gulf exists between the often unrealistic expectations ā¦ and the output of the court on any given day.ā This is unsurprising, given that the Tribunal was the most high-profile response that directly sought to address the crimes committed during the Balkan conflicts. As the work of the Tribunal and Chambers has progressed, it became clear that most expectations were channelled and focused primarily on these single official institutions . Participants recognized that the responsibility to perform all the task of transitional justice largely rested on the courts . This led to discussions about the possible need for more tran...