Has Balkan Justice Assisted Reconciliation?

When the International Criminal Court for the Former Yugoslavia, ICTY, was set up in 1993, as wars raged in the Balkans, no-one expected it to immediately start building bridges in the region, one of its stated goals.

But fifteen years - and dozens of trials - on, it seems it has not advanced the cause of reconciliation as much as its founders hoped it would.

Yet puzzlingly, with two years left before it closes its doors, the ICTY has seemingly gone a long way to delivering justice to the region, crucial for restoring ties between once bitter enemies.

Since the court’s creation, 161 individuals have been indicted; trial and appeal proceedings against 111 accused have been completed; and 50 other suspects are either on trial, awaiting trial or an appeal decision. And only four suspects remain at large.

Among those processed by this court are former presidents, ministers, army chiefs, generals and influential politicians. Whole regimes and ideologies were put on trial along with these individuals; important historical facts have been established, such as that the crimes committed in Bosnia in 1995 amounted to genocide; former heroes were stripped of their glory as their true role in crimes has been exposed.

But sadly, unlike the figures and facts showing the tribunal’s concrete achievements, its ability to help heal the region’s wounds is not impressive at all.

This could be partly due to the fact that the man whose trial was expected to set the historic record for the Balkans straight - former Yugoslav president Slobodan Milosevic - died before the verdict in his case was handed down.

Or, it could be because two of the four remaining fugitives are persons believed to be most responsible for the atrocities committed during the Bosnian war - ex-Bosnian Serb political leader Radovan Karadzic and his army chief Ratko Mladic. They are both still considered heroes, not just among the Serbs of Republika Srpska, RS, but in neighbouring Serbia as well.

However, in trials successfully completed over the last 15 years, the tribunal provided abundant evidence that crimes committed by Serb forces in Croatia and Bosnia were organised and part of a plan to unite "all Serbian lands" in a homogeneous Serbian state. This “Greater Serbia” was to include Serbia, Montenegro, Macedonia and considerable parts of Croatia and Bosnia.

Although it became evident through the trials held at the ICTY that serious crimes - such as ethnic cleansing and genocide - were committed in order to achieve this plan, the idea of Greater Serbia has never been completely abandoned by the Serbs.

Last month, when Kosovo proclaimed independence, Serbia lost a big chunk of its territory. But Bosnian Serbs saw in this new development a chance to finally fulfill their own dream - to secede from Bosnia and join Serbia.

Even though it is clear the RS will not have the international support that Kosovo had, its politicians will not give up secession so easily. The RS prime minister Milorad Dodik has repeatedly said he would never agree to any changes to the Bosnian constitution that would jeopardise the survival of the entity.

Observers say that most Bosnian Serbs simply turn the blind eye to the fact that RS is now predominantly Serb because of the ethnic cleansing of the early Nineties. This is an inconvenient truth for many of them and that is one of the main reasons why war crimes trials - held either in The Hague or in local courts - are not a favourite talking point in RS.

On the other hand, Bosnian Muslims, or Bosniaks, who were the main victims of the 1992-95 Bosnian war, have mixed feeling about the tribunal.

They praise the court for establishing historical and indisputable facts - that Bosniaks were victims of genocide and ethnic cleansing and that these crimes were part of a bigger plan conceived by Serbian and Bosnian Serb leadership to carve out a big part of Bosnia and join it to Serbia.

However, Bosniaks also say the tribunal’s indictments policy leaves them feeling betrayed by a court they saw as the main instrument for setting a historical record of the conflict.

Although members of the Bosnian army have been accused of a very limited number of crimes committed against Serbs and Croats, its two highest-ranking commanders had to answer war crimes charges before the tribunal.

Former Bosnian army chief Sefer Halilovic stood trial in 2005 for crimes committed by troops allegedly under his control, but he was acquitted of all charges in November the same year.

His successor, General Rasim Delic, is currently on trial for crimes committed by the foreign Muslim fighters in Bosnia in 1993 and 1994, but some charges from his indictment were dropped before the defence even began presenting their case.

Critics of the tribunal’s work say that it’s not surprising that Bosnian army officers are either acquitted or receiving very mild sentences. They say prosecutors were too eager to prove that the tribunal was not anti-Serb, and that such a policy led to some very weak indictments, particularly those against former Bosnian military leaders.

As a result, this policy created growing resentment among the Bosniak population, who believe that the court’s political considerations outweighed its responsibility to apply the letter of the law in deciding whether to indict someone. It also generated, they argue, the wrong impression that all sides in the Bosnian conflict have equal responsibility for the crimes committed.

As for Serbia, it seems that war crimes trials held at the ICTY have not really changed the mindset of its people. Although there have been some small steps forward, the widespread opinion in Serbia is still that the tribunal is anti-Serb and a political institution.

Recent presidential elections in Serbia showed that the trials in The Hague have very little influence on politics. The fact that the ultra-nationalist leader of the Serbian Radical Party, SRS, Vojislav Seselj, is on trial for war crimes did little to dent the party’s presidential candidate’s prospects. Tomislav Nikolic won a huge number of votes and lost the elections only by narrow margin.

Many observers think that Seselj’s trial and the speeches he made during the proceedings have actually helped Nikolic gain such support from Serbian voters.

It is still too early to speak about the impact, or the lack of it, of the ICTY trials on Croatia, because the case they see as “the trial of the century” hasn’t started yet. The case of three Croatian army generals - Ante Gotovina, Ivan Cermak and Mladen Markac - is due to open on March 11. They are charged with crimes allegedly committed by Croatian forces in the 1995 Operation Storm.

However, the prevailing opinion in Croatia is that the generals have been wrongly accused, and it will be interesting to see whether the evidence that will be presented during the proceedings will convince Croatians otherwise.

Judging from the first case referred from the ICTY to Croatia, it seems the hard facts are the best cure for denial. The trial of two Croatian army generals, Mirko Norac and Rahim Ademi, which began in Zagreb few months ago, has so far heard chilling accounts of atrocities allegedly committed by Croat forces against Serb civilians in Medak Pocket in 1993 - evidence that has horrified the Croatian public. Before this trial started, the prevailing opinion in Croatia was that they were the only victims of the 1991-95 war in this country, but that has started to change.

So what more could the tribunal have done to get more people in the region to face up to their past, and thus assist the process of reconciliation.

It is obvious that the court alone has limited influence unless accompanied by other transitional justice mechanisms, which would ensure that the truth about the wars in the former Yugoslavia, established by the tribunal, is truly accepted by those concerned.

In order to communicate the findings and significance of trials to people in the region, the tribunal established its outreach service in late 1999, which didn’t begin its work until 2000, seven years after the ICTY was first set up.

Many observers say this was too late. Even Richard Goldstone, who was chief prosecutor at the tribunal in the early years, admitted that the ICTY’s work “could have been publicised in the former Yugoslavia to a far greater extent”.

Although once they started, the ICTY’s outreach activities proved to be quite successful, they still seemed inadequate. Occasional conferences the court’s outreach staff held with local NGOs at various war crimes sites had encouraging results, but with relatively small numbers of people.

There was talk of establishing truth and reconciliation commissions at state level in both Bosnia and Serbia. However, nothing came of the suggestions.

Some observers say a series of smaller commissions should be organised on a local level throughout the former Yugoslavia, so that more people would be encouraged to confront the past. They argue such commissions would exceed the impact any trial at the tribunal ever had.

But as long as there is no real support from local politicians for such initiatives, it is unlikely that people in the Balkans will accept the truth established by the Hague tribunal as their own.

Merdijana Sadovic is IWPR’s Tribunal Programme Manager.

The views expressed in this article are not necessarily the views of IWPR.