Some Kind of Justice : The ICTY's Impact in Bosnia and Serbia

An internationally-renowned scholar in the fields of international and transitional justice, Diane Orentlicher provides an unparalleled account of an international tribunal's impact in societies that have the greatest stake in its work. In Some Kind of Justice: The ICTY's Impact in Bosnia and Serbia , Orentlicher explores the evolving domestic impact of the International Criminal Tribunal for the former Yugoslavia (ICTY), which operated longer than any other international war crimes court. Drawing on hundreds of research interviews and a rich body of inter-disciplinary scholarship, Orentlicher provides a path-breaking account of how the Tribunal influenced domestic political developments, victims' experience of justice, acknowledgement of wartime atrocities, and domestic war crimes prosecutions, as well as the dynamic factors behind its evolving influence in each of these spheres. Highlighting the perspectives of Bosnians and Serbians, Some Kind of Justice offers important and practical lessons about how international criminal courts can improve the delivery of justice. Western justice/democracy = Drang nach Osten. Contents Preface And Acknowledgments Abbreviations 1. Introduction Taking Its Shape From The Shore It Meets Benchmarks For Assessing Impact Assessing Impact: Recurring Questions Satisfying And Disappointing The Expectations Of Victims Social Transformation: Dispelling Denial And Fostering Acknowledgment Catalyzing Domestic Prosecutions PART ONE The Landscape of Justice 2. Forged in War: Bosnia’s Relationship with the ICTY I. Creating A Court In The Crucible Of War A. Reactions To The Council’s Action B. The Wartime Court: Early Indictments Of LowLevel Perpetrators C. Justice And Peace: Preventing Amnesty At Dayton Ii. The Aftermath Of War A. Ifor’s Policy Of Avoidance B. The Otp Forces Nato’s Hand Iii. Postwar Political Context: Dayton’s Legacy A. Architecture Of Division And Dysfunction Iv. Concluding Observations 3. Coerced Cooperation: Serbia’s Relationship with the ICTY I. Defiance During The Miloševic ́ Years Ii. Conflicted Cooperation: The Koštunicaðinðic ́ Government (2000– 2003) Iii. The Aftermath Of The ðinðic ́ Assassination Iv. The Carrot Of European Integration V. Concluding Observations PART TWO Measuring ICTY Success: Local Perspectives 4. Some Kind of Justice: Bosnian Expectations of the ICTY I. “justice Is Important For Its Own Sake” Ii. “we Are Here To Say It’s Not Good To Do That” Iii. Establishing The Truth And Dispelling Denial A. Dispelling Serb Denial B. Fostering Acknowledgment By Each Ethnic Group Iv. Reconciliation V. Bearing Witness Vi. Preventing Future Crimes Vii. Removing War Criminals Viii. Catalyzing Justice At Home Ix. Concluding Observations 5. Dealing with the Past: Serbian Perspectives on ICTY Success I. Ensuring Prosecution Of Atrocious Crimes; Dispelling Impunity Ii. Removing War Criminals Iii. Dealing With The Past Iv. Reconciliation V. Strengthening The Rule Of Law By Catalyzing Domestic War Crimes Prosecutions PART THREE The Quality of Victims’ Justice 6. The Quality of Justice: Bosnian Assessments I. Broad Patterns In Bosnian Assessments Of The Icty A. Overall Decline in Positive Assessments B. Ethnic Divisions In Overall Assessments Of The Tribunal Ii. The Quality Of Justice A. Sentencing Practices B. Length And Complexity Of Icty Proceedings C. The Collateral Damage Of SelfRepresentation D. The Unindicted E. Removing Dangerous Individuals F. Symbolically Resonant Judgments G. Beyond Individual Judgments H. Bearing Witness I. “this Is A Political Court” Iii. Concluding Observations PART FOUR Impact on Acknowledgment 7. Denial and Acknowledgment in Serbia I. Serbian Citizens’ Awareness And Acknowledgment Of Crimes Committed By Serbs And The Role Of Serbian Institutions A. What Might We Expect Serbian Citizens to Know and Acknowledge? B. Awareness Of War Crimes As Reflected In Surveys C. Resistance To Reports Of Serb Atrocities Ii. Accounting For Persistently High Levels Of Denial A. Serbian Perspectives B. Social Science Perspectives Iii. Is There Less Denial And Greater Acknowledgment Than There Would Have Been Without The Icty? A. Growing Acceptance Of Facts Concerning Serb Atrocities B. Regression . . . ? Iv. Official Acknowledgment A. Early PostMiloševic Years B. Apologies By Subsequent Serbian Governments C. The Parliamentary Declaration On Srebrenica D. Acknowledgment By “reformed” Nationalists V. A Foundation For Future Acknowledgment? 8. Living in Compulsory Denial (Bosnia) I. Bosnian Citizens’ Acceptance Of Fundamental Facts Of Wartime Atrocities A. What Should Bosnians Know, Say They Know, and Condemn? B. Awareness Of War Crimes As Reflected In Surveys C. Encounters With Denial And Acknowledgment Ii. Accounting For Denialism A. Motivated Reasoning, Social Identity, And Historical Memory B. Belief Perseverance: Confirmation Biases C. Community Pressure And Fear Of Speaking Out D. Elite Discourses, The Incentives That Shape Their Content, And Their Impact On Acknowledgment E. A “hostile Environment” For Acknowledgment F. The Distinct Effects Of Ethnic Division G. Absence Of Local Truth Commissions? Iii. Icty Impact On Official Acknowledgment A. Acknowledgment by Serb Leaders and Institutions B. Acknowledgment By Leaders Of Other Ethnic Groups Iv. Communicating With Regional Communities A. A Remote Court B. Bridging The Gap C. Reaching Youth D. Communicate What? V. A Foundation For Future Acknowledgment? PART FIVE Catalyzing Domestic Prosecutions 9. War Crimes Prosecutions in Bosnia- Herzegovina I. The Icty’s Evolving Relationship With Bosnian Courts A. Primacy B. Supervision And Restraint C. Creating A Partner Ii. The Icty’s Imprint On Bosnia’s War Crimes Institutions A. Impact On The Bwcc’s Independence, Impartiality, And Adherence To Fair Process B. Impact On Prosecutions: Transfer Of Evidence C. Processing Category Ii Cases: Renewed Oversight By The Otp D. CapacityBuilding Initiatives E. Impact Through Case Law Iii. Strengthening Domestic Partners: The Question Of Timing A. Launching StateLevel Institutions B. Completing The Completion Strategy Iv. Concluding Observations 10. War Crimes Prosecutions in Serbia I. War Crimes Prosecutions In Serbia Before 2003 A. The Milošević Era B. Early PostMiloševic Era Prosecutions Ii. Serbia’s War Crimes Institutions A. The Icty’s Role In The Establishment Of Serbia’s War Crimes Institutions B. From International To Transitional Justice . . . ? C. The Icty’s Impact On The Operation Of The Swcc And Owcp Iii. Progress And Constraints A. Professionalism Of Judges B. Prosecution Rates C. Ranks Of Indictees; Political Pressure On The Owcp D. Judicialization Of Denial: Obscuring Links Between Crimes And The State E. Regional Reverberations Iv. Concluding Observations PART SIX Concluding Observations: Looking Ahead 11. The Afterlife of a Tribunal I. Postwar Germany: Transitional Denial Ii. Delayed Norm Diffusion? Bibliography Index Through an in-depth case study, Some Kind of Justice offers fresh insights about two questions now the subject of robust debate: What goals can we plausibly assign to international criminal tribunals? What factors determine the impact of distant courts on societies that have seen vicious violence? The book offers a timely and original account of how an international war crimes tribunal affects local communities and the factors that shape its changing impact over time. It explores the influence of the International Criminal Tribunal for the former Yugoslavia (ICTY), launched in 1993 by the UN Security Council at the height of ethnic conflict accompanying the breakup of Yugoslavia, in two countries directly affected by its work. One, Bosnia-Herzegovina, experienced soaring levels of ethnic violence, culminating in the 1995 genocide in Srebrenica. The wartime government of the other country, Serbia, plunged the region into conflict. Operating until the end of 2017, the ICTY is the longest-running war crimes tribunal in history. Its record thus offers an incomparably rich case study of how a Nuremberg-inspired tribunal influences societies emerging from ruinous violence. Book jacket Through an in-depth case study, Some Kind of Justice offers fresh insights about two questions now the subject of robust debate: What goals can we plausibly assign to international criminal tribunals? What factors determine the impact of distant courts on societies that have seen vicious violence? The book offers a timely and original account of how an international war crimes tribunal affects local communities, and the factors that shape its changing impact over time. It explores the influence of the International Criminal Tribunal for the former Yugoslavia (ICTY), launched in 1993 by the UN Security Council at the height of ethnic conflict accompanying the breakup of Yugoslavia, in two countries directly affected by its work. One, Bosnia-Herzegovina, experienced soaring levels of ethnic violence, culminating in the 1995 genocide in Srebrenica. The wartime government of the other country, Serbia, plunged the region into conflict. Scheduled to close at the end of 2017, the ICTY is the longest-running war crimes tribunal in history, and thus offers an incomparably rich case study of how a Nuremberg-inspired tribunal influences societies emerging from ruinous violence Most assessments of the ICTY’s performance derive benchmarks for assessment from claims set forth in official instruments or made by Tribunal officials and scholars. This chapter instead derives such benchmarks from the expectations of Bosnians who embraced the Tribunal, exploring the kind of justice they expected it to provide. For many victims, retributive justice is fundamental. Many Bosnians also highly value what scholars call the expressive function of international criminal tribunals. Other goals Bosnians hoped the Tribunal would advance include: preventing future atrocities, dispelling denial and fostering acknowledgment about wartime atrocities, and removing war criminals from their midst.