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ICTY and the Question of Justice

by Goran Šimić

It is strange how people think that criminal law is at its best when the perpetrator is discovered and sent to jail. Unfortunately, every time that happens, criminal law has actually “suffered one more defeat” in the face of what would be the ideal solution: not to have criminal offences, perpetrators, or victims at all. This is best illustrated in mass atrocities committed during conflicts (or “war crimes”). By influencing (and mostly destroying) human lives on a large-scale, war crimes raise questions that are not so easily observed in “ordinary” criminal law cases. Like “ordinary” criminal offences, just on a larger scale, war crimes (as mass crimes) raise the question of the purpose and the role of criminal law (and international criminal law) in our society. Furthermore, there is a question of the societies we have created, the invention (and failure) of criminal law to as a means of prevention, and the reality of acting post facto, when crimes have already been committed and lives and property have already been destroyed; not of some imaginary “ones”, but living human beings, who hope that criminal law will help them overcome that suffering and carry on living; help them to find justice.

Or, maybe the best way to describe would be with the words of one of the victims of war crimes:

Life was once so beautiful.
Carefree and joyful.
Playful in the never-ending flowery fields of my childhood.
Illuminated by the love and care of my parents.
It was about the beautiful, carefree life in your own home.
And then one day.
It all disappeared.

International Criminal Law

Looking back on the history of our world, it is more than obvious that mass crimes and its victims have always existed. The fact that historians tend to describe past generals as leaders and generally portray them in positive light (particularly those they consider “their own”) cannot change fact that, from the perspective of our present-day understanding of values of the life, freedom and other human rights, they would be considered war criminals, and their acts would probably be nothing more than armed aggression, pillage and evil violence.

So, what has changed in the meantime? First of all, our understanding of values such as life and freedom has dramatically changed. Our societies have come a long way from the insignificance of “ordinary” people in the past to the point of valuing each and every individual human life (and hopefully other living creatures as well). Second, wars and conflicts, those ever present “flavors” of our existence, have been always connected with crimes, violence and destruction. World War II, in particular, showed us the destructive power of humans, created to be able to do the best and worst, as did the wars of the 1990s in the former Yugoslavia region and Rwanda. And even today, conflicts that are happening all around the world shape our idea of what the response to those “events” should be. In the 1990s, the only clear precedent of international justice was the international courts established after the World War II. International criminal law lacked theoretical development, and was, in practice, weak.

International Criminal Tribunal for the former Yugoslavia (ICTY)

So, what was the response of the international community to the atrocities in the former Yugoslavia that flooded the media of 1990’s? Creating a court—a court that would, in accordance with the UN statement in its founding resolution, deter future crimes by bringing perpetrators before it and render justice to victims and their families, contributing to a lasting peace in the former Yugoslavia. All of these are honest and honorable tasks, but difficult as well.

More than twenty years, hundreds of millions of US dollars and some 90 sentenced persons later, was it worth to have the ICTY?

Looking back at its achievements, the ICTY bravely stood up to its difficulties. It does not mean that all was flawless and without doubts; however, having in mind the starting point, obstructions and goals, the ICTY has more than justified its existence. Here are some of the most important individual achievements of the ICTY:

• Probably the biggest challenge was holding leaders accountable. The century’s long “custom” of avoiding responsibility by the most powerful political and social leaders in conflict countries was ended by the work of the ICTY. By processing some of the most powerful persons from the most recent war in former Yugoslavia, the tribunal (although with difficulty and to the disapproval of their supporters) showed that fighting against impunity of the most responsible persons can be done effectively with a lot of effort and courage. Hopefully, this will set a path for the future and will influence future leaders to think twice before engaging in mass crimes. From a local point of view, there is no doubt that countries (at least in the former Yugoslavia) would never prosecute their “beloved” leaders, giving them the opportunity to continue ruling after the conflict and holding the most important social positions. The glorification of adjudicated war criminals in all countries of the former Yugoslavia left not even a small doubt about this.

• Perhaps the most important task of the tribunal was to establish the facts. For example, the facts about the events that took place in the period of 1992-1995 would otherwise have never been established for Bosnia and Herzegovina, the country with the most cases at the tribunal. Even 22 years after the war, Bosnian society didn’t lift a finger to establish not only facts as a whole, but also simpler things like the number and list of the killed and missing citizens. Without facts established by the ICTY (and to some extent by local courts), there would practically no comprehensive source about these events, which leaves room for every kind of manipulation. Undoubtedly, this is the most important achievement of the ICTY.

• Strengthening the rule of law and developing international law–in particular, fighting against impunity for war crimes around the world–was one of the strongest points of the work of the ICTY. After World War II, international criminal law lacked proper development and there is no doubt that the ICTY and other ad hoc tribunals set that development in the right direction. This also means that their work revealed many bad sides of contemporary praxis, which is something that will also contribute to future development.

• Bringing justice to the victims and giving them a voice was the most honorable but also the most difficult task of the tribunal. By hearing testimonies of more than 5,000 victims and with more than one million pages of transcripts and tens of thousands of video recordings remaining in its legacy, the tribunal undoubtedly gave the voice (and platform) to the victims for their stories to be heard. When it comes to justice, the question is whether that justice (or what kind of justice) was delivered to the victims.

With all of this achieved, then why are the victims still dissatisfied? The answer might be more straightforward than it seems. The courts and victims have different perceptions of justice. On one hand, the courts have a strict and limited understanding of what justice is supposed to look like. There are rules and procedures, rights and obligations– mostly strict ones. In the end, it is about determining individual criminal responsibility of persons brought in front of the court and establishing the facts about events, so the court could decide about the culpability or innocence of the accused person. Furthermore, the entire process is designed to be about the accused person. Victims will “just” have the forum to tell their stories, not freely and without restrictions, but in a highly restricted and stressful way. This is how far criminal justice will get. No monuments, no pensions, no reparations.

On the other hand, the expectations of the victims were almost completely different and went beyond the courtroom. They expected justice. Often being the only justice that will ever be given to the victims of mass atrocities, they hoped that criminal justice would help them move on and rebuild their lives. That doesn’t mean that they are dissatisfied that the facts have been established and perpetrators sent to jail, but it has less effect on their everyday life than is perceived by the courts. Being somehow “abstract”, this justice lacks a “human face”; it neglects that the victims are humans with everyday needs–simple ones like food, clothes, shelter, medicine, and toys for children. The formal justice approach forgets that after the period of violence, victims are survivors suffering both physically and mentally, and in some cases, living in extreme poverty directly or indirectly caused by past violent crimes. Nothing changes when the perpetrator is sent to jail and “justice has been done”. It only gets worse if returnees to the places which were ethnically cleansed testify before the court and send local heroes to jail.

The intention is not to say that criminal courts like the ICTY are not necessary. It’s quite the opposite. They are an essential tool for fighting mass atrocities that, unfortunately, will, it seems, continue to exist in our world. But this court has raised a number of questions that need to be addressed in the future regarding the role and position of international criminal law in our world.

Instead of Conclusion

“New wars”, that this world has been witnessing recently, are characterized by worrying high levels of brutality and suffering among civilians (and all others included in conflicts). Apart from killings, ethnic cleansing, enforced disappearances, torture, sexual and other forms of violence and plundering of property are all “warning” signs for the humanity. Finding a proper response to these atrocities is not only a matter of law (or not just the law), but is principally a matter of humanity. Legalistic responses lack such “humanity”.

Bearing in mind that criminal justice is often the only justice that victims of mass crimes ever get; international criminal law has an even bigger responsibility. Furthermore, it is impossible to overlook the impression that the modern criminal procedure focuses on the perpetrator and not the victim (the word “victim” is mentioned five times in 250 articles of the Criminal Code of Bosnia and Herzegovina, and only twice in 450 articles of Criminal Procedure Code). Glancing through the rules of the ICTY is more than enough to see that it is premised upon the principle of fairness in judicial proceedings rather than justice per se. Consequently, the perpetrator has all the prerequisites to balance powers with prosecutors (presumption of innocence, professional support etc.). On the other hand, the position of the victim and their rights are marginal when treated in this way (the Statute of the ICTY mentions the word “victim” seven times). Is it, then, surprising when the ICTY refused to include the evidence found in a mass grave of 700 people, explaining that the interest of justice is that “process must not be delayed”? Probably not.

This doesn’t mean that the process is supposed to be unfair for the accused, but it doesn’t have to be unfair for the victim either. The victims are not supposed to have lesser rights than the perpetrator since they suffer direct consequences of the crimes. It is unclear how justice, as a proud achievement of criminal proceedings, can be reached in a proceeding that is perpetrator-oriented, instead of focused on the victim and society. What is more, this continues even after the verdict for the perpetrators of war crimes (including the work of the ICTY). War criminals are sent to “fancy” prisons all around Europe (some of them look more like hotels), with excellent food and swimming pools, where they serve two-thirds of their sentences and return to their homes (some of them even by state-owned airplanes). Does anyone raise a question about where their victims are and the conditions that they live in? If nothing else, this clearly shows that the attitude toward war crimes needs to be changed and shifted and that the interests of the victims and society, not the perpetrator, should be given priority. Without that, a fair trial will always overcome the search for justice of victims and society. The notion of “abstract” justice for “abstract” victims–not recognizing the basic fact that victims are human beings whose lives have been destroyed and who have specific needs that cannot be repaired with “abstract” justice and statements in the verdicts–all are things that must be changed when “dealing” with war crimes and their victims.

In order to establish (and, ultimately, eliminate) the causes of this situation, it is necessary to carry out a thorough analysis of their emergence, their development, and the process by which they can be eliminated. Such a comprehensive and a demanding task will certainly be a multiannual pursuit for experts from various disciplines. However, only through such an approach will there be a possibility to break through all the complexities of the work of the ICTY (and international criminal law in general).

That analysis must focus on a number of important and difficult questions:

What is the purpose of war crimes trials in international criminal law (ICL)? Keeping in mind the above stated facts, there are two possible answers. First, the ICL will provide “abstract” justice for “abstract” victims. If so, it would be at least fair toward victims to clearly state what the limitations of that kind of criminal justice are. Second, ICL will change its approach from “perpetrator-oriented” to “victim- and society oriented” and change the proceeding rules in such a way that victims will have, at least, the same rights as perpetrators, instead of just being an “evidence” nicely described as “giving voice to the victims” (having no right to representation or participation and little compensation).

Finally, there is question of individual responsibility. Although the position of contemporary criminal law is clear on the issue of individual criminal responsibility, mass atrocities are seriously complicating that position. It doesn’t mean that individual criminal responsibility needs to be changed to collective responsibility, but there is also a question of whether mass atrocities (such as the perpetration of genocide by an army and bureaucracy numbering in the thousands) can be reduced to the individual criminal responsibility of few individual perpetrators. Furthermore, it is questionable whether such perpetrators (particularly the executors) committed those crimes for their own “individual goals” or for much wider goals and were merely part of the “machinery” necessary to accomplish those goals. Simplifying mass atrocities to individual criminal responsibility distorts an obvious truth that those crimes don’t arise from disputes between individuals, so the social response cannot be so simplified. This is particularly clear with respect to reparation for the damage done to victims’ lives. It is more than obvious that this cannot be the task of a few individual perpetrators, revealing serious problems with the subsequent application of individual criminal responsibility. Finally, some practical experiences (like in Bosnia and Herzegovina) suggest that the vast majority of crimes were committed by state officials (military, police etc.), so we can conclude that individual perpetrators didn’t work for they “own” interests but were executing orders and plans of wider scope (which doesn’t release them from responsibility).

Regardless of these open questions and the need for clarity and improvement, it is more than obvious that a lot has been done in international criminal law in the last two decades. Not only because theoreticians and practitioners of ICL have been more productive, but also because of the sheer necessity of the world in constant conflict full of atrocities. Although it is not a magic wand that can solve all problems in post-conflict societies, ICL (with courts as its instrument), demonstrated its important place in the response to atrocities. Regardless of any further improvements in international criminal law (or its instruments) that can be expected, it is also important to understand that “criminal justice” is just a part of justice, and as such needs to be accompanied in post-conflict societies with other important social activities. All of them, together, will have a common goal of rebuilding the lives of victims and rebuilding societies torn apart with violent past.

The best way to end may be with the words of one of the victims of war crimes:

I wonder … Is it this story of worth to anyone, anything?
This story about us.
Our ordinary, minuscule life.
A life about ordinary, everyday people whose lives are forever destroyed because they had been entangled in circumstances which they had no way of changing.

Innocent people, who were totally powerless to get out of vicious cycle that they found themselves in.


Goran Šimić is an Assistant Professor of Law at the International University of Sarajevo.