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Legacies of the International Criminal Tribunal for the Former YugoslaviaA Multidisciplinary Approach$

Carsten Stahn, Carmel Agius, Serge Brammertz, and Colleen Rohan

Print publication date: 2020

Print ISBN-13: 9780198862956

Published to Oxford Scholarship Online: July 2020

DOI: 10.1093/oso/9780198862956.001.0001

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Introduction

Introduction

Legacy as Dialogue—Reflecting on the ICTY Experience

Chapter:
(p.1) Introduction
Source:
Legacies of the International Criminal Tribunal for the Former Yugoslavia
Author(s):

Carsten Stahn

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198862956.003.0001

Abstract and Keywords

The ICTY is usually viewed as a relatively successful example of investigation and prosecution of international crimes. It was born in what many see now as a ‘heroic’ phase of international criminal justice. Throughout its almost two and half decades of existence, it faced many of the existential challenges of international criminal justice, such as selectivity, distance from crimes and victims, uncertainties regarding identity, efficiency and impact, and a complex interrelation with politics. The tribunal has addressed these challenges through constant transformation. It gradually portrayed its own legacy through the lens of dialogue. This contribution introduces main sites and themes of legacy. It shows that legacies derive not only from successes, but also from setbacks and failures.

Keywords:   ICTY, legacy, law, history, outreach, punishment, sentencing, impact

I.1 The Journey of the ICTY

‘Borrowed robes, no seat, no courtroom, no prison, no budget, no computers, no staff and no rules. Widespread scepticism about the viability of the institution.’1 This is how it started. The journey of the International Criminal Tribunal for the former Yugoslavia (ICTY) has been compared to a ship that has set sail and marked new frontiers. Unlike the International Criminal Court (ICC), the ICTY could not count on global civil society support to lobby for its emergence. It rather emerged as a result of the dedicated efforts of specific individuals, certain feelings of shame, and a unique geopolitical environment. It was an instrument to counter ‘an erasing’ of ‘the past’.2 At the beginning, there was a strong fear that the ship would never leave the dock. It has undertaken a remarkable journey, with both unexpected successes and challenges. It lasted for almost a quarter of a century—much longer than many had expected.

Throughout its almost two and half decades of existence, the Tribunal has undergone many changes. It was born in what many see now as a ‘heroic’ phase of international criminal justice. It faced many of the existential challenges of international criminal justice: selectivity; distance from crimes; victims and local communities; queries about identity, efficiency, and impact; and a complex interrelation with different types of politics. Despite its setbacks and imperfections, it is usually viewed as a relatively successful example of investigation and prosecution of international crimes. The ICTY can look back to strong record on arrest. It showed that powerful leaders, such as former Heads of State, Ministers, or Generals may face accountability for international crimes. It has contributed greatly to the clarification of facts and the establishment of the responsibility of individuals. As historians note:

Without the ICTY’s trials, we would not know so well what happened in Vukovar, Dubrovnik, Prijedor, Sarajevo, Srebrenica, Foča, Visegrad, Zvornik, Bijeljina, Mostar, Ahmići, Čelebići, Podujevo, Suva Reka, and many other places.3

(p.2) Some of the initial ambitions were over-enthusiastic. Even today, it cannot be taken for granted that principal perpetrators of international crimes will be held accountable. The ambition to ensure equality before the law and provide some sense of justice to victims is a monumental task. It arises anew in each atrocity context. The ICTY has shown that international criminal justice is possible. As former Registrar John Hocking has noted, this experience marks to some extent a point of no return: ‘From here there is no turning back [ … ] accountability is not just an ideal … or a one-off.’4

The ICTY managed to stay its course due to different factors: focus, time, and institutional adjustment. The mandate allowed the Tribunal to focus in depth on the conflict in the former Yugoslavia. This distinguishes it from courts like the ICC, which has to move from one political context to another. The timeframe enabled the ICTY to benefit from changing geo-political conditions in the region and to gradually develop a pool of cases that build on each other in terms of law, narratives, and evidence.

The Tribunal itself was able to complete its mandate because it adjusted its own course during the journey. Institutionally, it has constantly re-invented itself, with different Prosecutors and prosecutorial strategies, changing jurisprudence, adjustments of rules and procedures, and developing outreach and Completion Strategies. A crucial factor for its success as a judicial institution was the support by EU and NATO in relation to arrest and compliance. Institutional factors, internal strategies and contributions of individuals are also part of the story.

I.2 The Need for Multi-disciplinary Perspectives

The ICTY is an institution with many faces. It is a court, an organization, and a social entity. It leaves a rich legal, institutional, and non-judicial legacy. Many of the classical juridical footprints of the work of the ICTY are covered in legal treatises or reflective volumes.5 For example, the ICTY Manual on Developed Practices, which was developed as a part of the early legacy initiatives, contains a useful overview of experiences and practices.6 However, the impact of the ICTY cannot be reduced to judgments, that is, convictions and acquittals, procedural experiences, or manuals. It needs to be regarded in a more holistic way. Many of its contributions are more subtle and complex. They are reflected in legal and societal discourse, testimonies, or institutional approaches.

Legacies are created through individual and collective narratives. They are constantly constructed and re-shaped. The notion of ‘legacy’ is often associated with a positive record or heritage, formed in the memory of others. But legacy can also be a form of power or control over the past or a technique to alter memory.7 The ICTY has thus rightly itself looked at legacy through the lens of dialogue.8 It has distinguished differentiated layers: broader (p.3) normative contributions; operational legacies, including fair trial issues; participatory aspects; gender justice; and outreach from non-judicial legacies, such as historical legacy and impact on society.

Broadly speaking, legacies can be grouped around different sites of debate: (i) historic legacy, that is, the contribution of the ICTY to the framing of facts and events, including the value of the records in combating denial of crimes; (ii) investigative and experiential legacy, including approaches towards identifying evidence, experiences related to the delivery of testimony and access to justice; (iii) procedural legacies, including lessons learned from the management of proceedings, the treatment of parties and outreach; (iv) retribution and punishment; (v) normative legacies, that is, the impact of the work of the Tribunal on domestic legal systems; and (vi) ongoing debates over impact and societal reception. These discussions require insights from multiple disciplines and further empirical research.

I.3 Focus

This book addresses legacies from different observational standpoints. It encompasses voices from inside the Tribunal and external perspectives.

I.3.1 Challenges and Achievements—Internal Perspectives

The book starts at Part I with a set of reflections on legacy from ‘inside’, namely UN officials and practitioners. They trace achievements, challenges, and critiques from the perspective of different agents: Presidency, Prosecution, the Defence, and the UN Secretariat. These contributions set debates on legacy and ICTY performance into context in relation to other courts and tribunals, and the functioning of international criminal justice more generally.

Carmel Agius, the last President of the ICTY, revisits major contributions of the ICTY over twenty-four years. He argues that the Tribunal contributed to an ‘ethos of accountability’ while cautioning that adjudication alone is ‘unlikely’ to achieve ‘reconciliation and resurrection of the rule of law’.

Serge Brammertz, the last Prosecutor of the Tribunal, examines the experiences of the ICTY and the International Residual Mechanism for Criminal Tribunals. He illustrates how the ICTY moved gradually from primacy to complementarity. He argues that the ‘support to national justice sectors’ in the former Yugoslavia counts among the most important legacies of the Tribunal.

Colleen Rohan explores the often-forgotten perspective of the Defence in relation to legacy. She traces the story of the naissance of the Association of Defence counsel. She argues that the role of the Association in relation to effective assistance to counsel and the efficient administration of justice paved the way for greater sensibility to structural challenges of the Defence function in international criminal justice.

UN Legal Counsel Miguel de Serpa Soares views the ICTY as an embodiment of a broader morality and responsibility and as a cornerstone of a broader UN system regarding accountability. He argues that in an ‘ideal future’, institutions such as the ICTY may ‘not be (p.4) necessary’ and ‘domestic jurisdiction will assume the main responsibility’ for the prosecution of international crimes.

I.3.2 Theorizing Legal Legacies

Part II of the book moves from ‘internal’ to external perspectives. It engages with the broader way in which legacy is portrayed and theorized in international criminal justice. It analyses different legacy concepts, articulations and practices, use of narratives and metaphors as well as some unexpected effects of ICTY practice. It sheds a novel light on the complex identity of the ICTY, and the constant tension between normative aspiration, legal limitation, and societal expectation.

The opening chapter examines the transformation of the ICTY, its performative function, and the tension between core mandate and auxiliary functions. It traces different stages in the development of the Tribunal. It shows that the ICTY took an active role in shaping legal discourse, but was more reluctant to become engaged in societal discourse. Procedures were a means for the Tribunal to make itself heard and seen. However, the Tribunal lacked control over its own perception. The most visible legacy is the legal legacy, and the facts, stories, and narratives conveyed through proceedings. This may be explained partly by the nature of the Tribunal as a juridical institution.

Viviane E. Dittrich engages with ICTY legacy from an institutional perspective. She examines how the Tribunal developed a vision of legacy, how it professionalized this vision, and how it designed and implemented legacy projects in different phases of its institutional history, leading up to the International Residual Mechanism for Criminal Tribunals. She shows how legacy navigates between an institutional urge for self-preservation and self-redemption. According to her, legacies should be conceived as a cycle which involves legacy creation, consolidation, and contestation. The ICTY is thus a legacy leaver, while legacies are created, consolidated, and contested through diverse forms of social interaction.

Simone Gigliotti and Amber Pierce show how Prosecutors built legacies through narrative and rhetoric strategies, starting from post-Second World War practice to the ICTY. They trace the work and statements of three prosecutors: Telford Taylor (Nuremberg), Benjamin Ferencz (the Einsatzgruppen Trial of 1947–1948), and Serge Brammertz (Radovan Karadžić). They argue that legacy construction is tied to the idea of the Prosecutor as peace builder.

Mark Drumbl demonstrates some of the ICTY’s unexpected footprints in domestic civil litigation, specifically private tort claims brought in the US under the Alien Tort Statute (ATS). He traces cases in which US federal judges adjudicating ATS disputes have relied upon ICTY cases and materials, and discusses how and for which purposes these materials—along with those of other international institutions—have been used. He identifies a fundamental dilemma in judicial legacy discourse. International jurisprudence—no different than any sources of law or precedent—may be misapplied, or wishfully applied, in national contexts. Debates within the domestic civil level inspired by the international migration tend not to percolate into the international realm.

(p.5) I.3.3 Symbolic Meaning, Law, and History

Part III of the book explores virtues of symbolic expression used at the ICTY, as well as the controversial relationship between judicial record, history, and truth. The opening chapter by Marina Aksenova examines to what extent the ICTY produced normative change through expressivist and symbolic practices. Aksenova compares trials to quasi ritualistic events, drawing on Maurice Bloch’s anthropological research on initiation rituals. She then analyses how judicial practices relied on expressivism and symbolism in relation to the definition of crimes, condemnation and stigmatization, and justification of punishment. She suggests that symbolic expression is necessary to convey authority beyond the mere formalism and rationality of criminal trials.

Luigi Prosperi and Aldo Zammit Borda examine the relationship of the ICTY to historical clarification, and risks arising from the use of judgments as historical record. ICTY Chambers haven taken different approaches. For instance, in Krstić, the Trial Chamber acknowledged that its task was to decide on the guilt or innocence of the accused within the boundaries of the indictment and it had to leave it ‘to historians and social psychologists to plumb the depths of this episode of the Balkan conflict and to probe for deep-seated causes’. In other cases, however, judgments have been treated as authoritative historical record. The chapter argues that the identification of judicial truth has been one of the legacies of the ICTY. It claims that findings on distant or contextual historical events should be characterized as ‘discursive beginnings for victims, local communities and future generations to engage with and debate the past beyond the courtroom’. It concludes that international tribunals should be open to admit alternative historical narratives when they establish historical facts or the contextual background of the crimes.

Andy Aydın-Aitchison explores the potential historical value of the evidence gathered, presented, and scrutinized in international criminal courts. He argues that trials have played an important, if not always unproblematic part in Holocaust historiography. He identifies how criminologists and others have started to make use of resources generated or collected by the ICTY and the International Criminal Tribunal for Rwanda (ICTR) to describe and analyse international crimes. The chapter argues that evidence and transcripts from international criminal courts do have great potential as a source of data for historical and social science analyses. But they need to be handled with care and with due attention to their limitations.

I.3.4 Experimental Legacies

Evidence and testimony are an important part of the experiential legacies of international criminal courts and tribunals. Part IV of the book addresses some of the lessons learned from ICTY practice, including remaining gaps and challenges.

Kweku Vanderpuye and Christopher Mitchell discuss legal issues associated with the collection, storage, and use of DNA evidence in international and national criminal trials, drawing on their experience in the Srebrenica cases. They show how DNA evidence was used to identify the number of victims in a mass grave, and links and patterns between a victim and one or more crime sites. They argue that the probative value of DNA evidence is maximized when it is used in conjunction with other forensic sciences (e.g. archaeology, (p.6) pathology, and anthropology), and that reliance on all forensic sciences, not just DNA, is the most likely way of establishing a complete picture of the victim’s identity, as well as the cause, manner, and circumstances of the victim’s death.

Kimi Lynn King and James Meernik examine micro-level components shaping the witness experience. They develop a model of procedural justice to examine witness perceptions about the search for truth and justice, based on data from empirical study of witness experiences.9 They show that fair treatment of defendants and witnesses by Prosecutors enhances the witness perceptions that their testimony has contributed to both truth and justice. They argue that testimonial challenges, such as delays in testifying, may undermine positive contributions. The chapter also demonstrates the critical importance of gender and ethnic identity. It claims that there are significant differences between male and female perceptions about testifying.

I.3.5 Judicial Practices and Outreach

Part V of the book turns to criminal procedure, court management, and outreach. In existing studies, much has been written on legal and procedural innovations of the ICTY. This book takes a slightly different angle. It examines lessons drawn from Court and Defence practices. It covers some areas that are rarely covered, such as Defence investigative ethics, judgment drafting, contempt cases against journalists, interpretation and translation, outreach and youth outreach.

The contribution by Michael G. Karnavas provides an insider perspective on Defence challenges in relation to international criminal litigation. Karnavas shows that the adversarial and hybrid procedural features of ICTY required Defence counsel to take a step back from their own system and adjust to new structures. He argues that the procedure devised by the Tribunal requires not only a certain set of litigation skills, but also imposes specific ethical duties on counsel. One of the novelties for counsel from inquisitorial systems is the ability to conduct an independent Defence investigation. The chapter examines particular lessons to be drawn from case preparation, witness interviewing, and Defence investigations. It concludes that many of these practices may also be of use for investigation and prosecution of crimes.

One of the lasting legacies of the ICTY are the many trial and appeal judgments that the tribunal rendered. The public pronouncements of the judgments are accompanied in each case by a statutorily-required ‘reasoned opinion in writing’. Its length has varied from less than 100 pages to over 2,000 pages. Thomas Wayde Pittman and Marko Divac Öberg, who have served in Chambers, take a look at judgment drafting. They explain the structure of judicial production at the ICTY, as well as the requirements, different stages and methods of drafting trial and appeal judgments. They show that this process was a learning exercise. The interplay of different legal cultures at the ICTY complicated the drafting process and led to critiques relating to the readability and accessibility of judgments. Some judgments included detailed factual analysis of evidence in relation to crimes even in case of acquittals in order to mitigate frustrations by victims.

(p.7) International criminal courts and tribunals enjoy a high degree of visibility and publicity. This may enhance their communication to a wide range of audiences, but also create vulnerabilities. Audrey Fino and Sandra Sahyouni deal with particular types of cases that are rarely discussed as part of legacy debates, namely contempt cases against journalists. International criminal tribunals are bound by human rights standards, including freedom of expression and freedom of the press. But the violation of protective measures for witnesses and victims or the disclosure of confidential information by journalists or media may constitute an offence against the administration of justice. It is contested to what extent such cases should be investigated or prosecuted by international tribunals themselves or domestic courts. The Statutes of the ad hoc tribunals did not contain an express power to deal with contempt cases. The chapter argues that such investigations and prosecutions may be necessary to uphold the integrity of proceedings. It shows that investigating and prosecuting journalists or media for contempt has caused criticism. It defends the view that the freedom of the press is not absolute and that the imposition of certain limits to reporting may be in line with domestic trends and human rights law.

Throughout its history, the ICTY held more than 10,000 days of trial. Ellen Elias-Bursać looks at a key aspect of ICTY proceedings that is often at the periphery, namely translating and interpreting. She tells the story of the set-up and conduct of language services at the ICTY. Language staff from the region initially faced suspicion inside the Tribunal and pressures in their home jurisdictions. The Tribunal adopted a Code of Ethics to deal with potential conflicts. The Code has framed standards for neutrality and accuracy which were crucial for Court practice. The chapter shows that language communication was ensured through a close relationship between Chambers, the Conferences and Language Section, and the Defence. Quality control of interpretation and translation was partially secured through members of Defence teams, rather than trial monitors used in Nuremberg or Tokyo. Particular problems arose in relation to defendants who decided to defend themselves and used interpretation and translation issues as part of their Defence strategy. For instance, Vojislav Šešelj sought to receive all court-related documents in Serbian and requested translation of the many books that he authored. Radovan Karadžić often read out documentary evidence to witnesses in Court, without securing translation first. This practice required witnesses to rely on in-Court-interpretation, based on the emphases favoured by Karadžić.

The following two contributions discuss outreach challenges. Petar Finci re-visits the merits and shortcomings of the ICTY’s Outreach Programme. At the ICTY, outreach and a common approach to communication was only developed in 2010. Outreach was to some extent a reflection of the societal divisions that the ICTY encountered. In its early days, the Outreach Programme operated by trial and error, receiving mixed degrees of reception across countries in the region. The chapter argues that outreach may have been more successful if it had sent more realistic messages about the ICTY’s goals and aspirations from the start, and if it had received greater support in institutional strategy (e.g. funding, field presence). The production of films and screening by the ICTY itself became an important instrument to reach comparatively large audiences.

Adrian Plevin examines strategies of youth outreach. Youth outreach has a strong link to transitional justice goals that are difficult to reach through trials alone (e.g. education, peaceful transformation). It was deliberately used in the last years of the ICTY in order to have a transformative effect for the future, namely to bring about ‘positive change’ in (p.8) affected communities. It went beyond classical legacy strategies. It involved initiatives to stimulate an interest in justice, encourage reflection on the benefits and limits of punitive justice, challenge existing perception, and counter a culture of denial and intolerance. The chapter shows how the youth Outreach Programme went beyond public relations, targeted sensitive issues, and cooperated with educational institutions to promote ‘fact-based education’. It argues that critical perspectives are important in order to promote history education reform and facilitate engagement with the ICTY’s legacy.

I.3.6 Punishment and Sentencing

Punishment and sentencing in international criminal justice continue to divide opinion. International criminal courts and tribunals have been criticized for lack of sentencing coherence. Part VI examines merits and contradictions in ICTY sentencing practice. It also engages with dilemmas of post-conviction practice that are often overlooked in existing discourse.

Margaret M deGuzman discusses the sentencing practices of the ICTY. She shows that sentencing has in general been orientated towards global norms, rather than sentencing norms of the former Yugoslavia. The Statute obliged the ICTY to ‘have recourse’ to national practices. The Tribunal found that it was required to ‘consult’ national sentences, but was not bound to apply them. It developed its own sentencing methodology. In jurisprudence, retribution and deterrence became main sentencing rationales. Judges developed a principle of gradation, based on the criterion of gravity. The contribution argues that the ICTY’s sentencing legacy lies in the fact that it promoted a process of building global sentencing norms that are reproduced in other contexts (e.g. the ICC). It claims that the ‘relative lenience’ of sentences may be defended by this objective.

The following contribution by Barbora Holá investigates to what extent ICTY sentencing differs from the practice of domestic courts in Bosnia and Herzegovina. It is often assumed that sentencing at the ICTY is inconsistent with domestic court practice. ICTY sentencing has been criticized for its leniency. The chapter challenges this claim. It shows that, contrary to public opinion, sentences given by the ICTY have been comparable to, or even more severe than, sentences in Bosnian domestic courts, including the State Court in Sarajevo. It derives this finding from empirical study of sentencing practice at the ICTY, the State Court, and Entity Courts. It explains this difference by the different nature of defendants (e.g. foot soldiers, lower-ranking individuals) prosecuted domestically and partly different sentencing goals.

The ICTY was one of the first international tribunals which had to establish sentencing agreements with States in order to enforce these sentences and to develop early release procedures. Joris van Wijk and Barbora Holá analyse post-conviction practices, namely what happened to ICTY defendants after conviction or acquittal. They argue that international practices are marked by contradictions. Sentences are enforced domestically. Defendants are spread out across jurisdictions. Enforcement practices pay limited attention to the sociology and specificities of atrocity crime. ICTY convicts are often treated as ‘worst’ categories of criminals in domestic enforcement practices, although they hardly pose any ongoing danger to society after imprisonment and removal from context. Rehabilitation is often cited as a factor for early release, but rarely verified and adjusted to the particularities (p.9) of macro-criminality. The equal ‘treatment of similarly situated prisoners’ became in practice the main reason by the ICTY to allow early release. After return, some defendants were welcomed as war heroes in their home communities. Some acquitted defendants have faced risks of re-trial by domestic prosecutors. Existing problems suggest that post-conviction practices need refinement.

I.3.7 Impact on Domestic Legal Systems

The transformation of domestic legal systems was not one of the primary reasons for the establishment of the ICTY. But it has gradually grown into an important aspect of legacy. The ICTY recognized that domestic prosecutors and courts play a key role in shaping legal legacy. As John Hocking has noted:

With the ICTY’s voyage coming to an end, it is these courts, and significantly the courts in the region, that will continue to charter these new waters and push beyond the frontiers of the possible.10

However, this process is highly context-dependent. Legacy is not something that can be simply passed on. Part VII deals with key aspects and problems of the legal impact of the ICTY in the region. It shows that the success of rule of law reform and norm internalization is closely linked to justice narratives, institutional structures, and perceptions.

Ivor Sokolić examines the relationship between war narratives and legal reception in Croatia, based on fieldwork conducted in 2014 and 2015. He argues that the justice narrative sent through the ICTY proceedings conflicted with predominant war narratives in Croatia which sought to justify Croatian operations as self-defence against a larger Serbian aggressor. The chapter argues that the war narrative made it difficult for the justice narrative to gain ground. The ICTY was partly seen to be biased because it was attempting to equalize guilt. Acceptance and internalization of justice narratives is a long-term process.

Jennifer Trahan and Iva Vukušić demonstrate that adjudication in Bosnia and Herzegovina involved three interrelated levels: an international court (i.e. the ICTY); a hybrid court (i.e. the War Crimes Chamber of the State Court of Bosnia and Herzegovina in Sarajevo); and local cantonal and district courts. They argue that this model might deserve consideration in other contexts. The War Crimes Chamber enabled the Completion Strategy of the ICTY. One of its innovative features was its changing design. It started with a high degree of internationalization, but gradually ‘localized’ its own structures. Its activity was guided by criteria for prioritization of cases, in order to avoid backlog and focus on higher level and complex cases.

Tatjana Dawson and Ljiljana Hellman discuss the relationship between Serbia and the ICTY. The relationship to Serbia was marked by ‘ups and downs’. The chapter argues that members of the legal profession in Serbia were generally open to cooperate with the ICTY, irrespective of the shifting political environment. It argues that the Completion Strategy modified the relationship. The drafting of the Law on Organisation and Competence of (p.10) Government Authorities in War Crimes Proceedings introduced specialized structures for investigation and prosecution in Serbia. This facilitated a growing number of domestic cases. Serbia included the concept of command responsibility in its domestic penal code, in order to remedy internal gaps.

Kei Hannah Brodersen analyses the ICTY’s Impact on the Rights of Defendants in the Former Yugoslavia, based on two case studies: Bosnia and Herzegovina, and Serbia. She argues that the ICTY had only scarce effects on fairness of national war crimes proceedings or national criminal proceedings in general. The chapter shows that the ICTY was more successful in triggering normative change through socialization and persuasion in Bosnia based on a number of factors: the higher involvement of the Tribunal in the rebuilding of the Bosnian justice system, and lower rates of legitimacy in Serbia, not only amongst the Serbian population, but also amongst the country’s political elite.

I.3.8 Societal Impact and Reception

The final part of the book, Part VIII, deals with some of the societal impacts of the ICTY, ongoing struggles over narratives, and domestic reception. It contrasts international ambitions with local experiences.

Jacqueline R. McAllister examines the impact of the ICTY on the peace process, including the way in which it influenced bargaining. She argues that the ICTY played a key role in facilitating negotiated settlements. It provided mediators with leverage to pressure Serb forces to speak with one voice. The Rules of the Road programme helped prevent a major post-Dayton crisis. The initial caution in indicting top leaders may have facilitated peace efforts.

Victor Peskin analyses to what extent the ICTY managed to transcend critiques of victor’s justice, based on the Tribunal’s battles with the Croatian government. He shows that the ICTY sought to distinguish itself from its predecessors through a principled commitment to investigate suspects from all sides. However, in practice, the Tribunal faced distinct challenges on prosecuting the ‘winners of the Balkan wars’. The chapter claims that the ICTY Prosecution may have lost the battles in the Courtroom in relation to Croatian cases, but ‘won the larger war over victor’s justice’.

Jovana Mihajlović Trbovc explores to what extent ICTY trials have changed narratives about key elements of the 1992–95 war in public life in Bosnia and Herzegovina, such as Serbian responsibility, ethnic cleansing, and genocide based on newspaper articles on commemorative events. Her research challenges the assumption that there is direct nexus between establishment of facts and transformation of collective memory. The chapter argues that engagement with the past relates to societal attitudes rather than knowledge. ICTY judgments provided a frame around which public debates evolve. However, many of the ethnic and national divides that fuelled the conflict continue to be reflected in practices of memorialization.

Rosa Aloisi assesses the tensions between the truth recounted by the ICTY and the construction of the local collective memory through analysis of contemporary uses of sites of atrocities. The chapter argues that, while international justice offers some resolution to a post-war divided society, a full reconciliation is only possible when the communities come back together in acknowledging the occurrence of atrocities and the right of victims and (p.11) survivors to places where they can mourn and remember. Criminal proceedings do not achieve reconciliation on their own, but provide at best a building block for reconciliation in the long term.

The closing chapter by Janine Natalya Clark sheds a new light on approaches towards reconciliation. She shows that ICTY trials had limited impact on inter-ethnic reconciliation, because they lacked the ability to transform the affective contexts related to commonly held beliefs. She questions whether facts alone provide a basis for reconciliation. According to her, greater emphasis should be placed on higher-level truths conveyed through judicial proceedings, which are easier to process. Such ‘meta-truths’ include insights about human suffering and immorality of behaviour. The chapter demonstrates that ICTY proceedings reflected such meta-truths in specific passages of judgments or guilty pleas by defendants. They mark a starting point for shared discursive spaces.

I.4 Continuing Dialogue

The book, as whole, suggests that the history of the ICTY is richer than imagined and continues to be written. Its story emerges not only through studies of the judicial record, archives, witness testimony, or reports by ICTY officials, but rather through ongoing discourse about legacy.

The value of the ICTY lies not only in its legal output and arrest record, or its impact or influence on other judicial entities (e.g. the ICC or domestic courts), but in its nature as an experiment of justice. The ICTY experience illustrates both the potential, as well as the inherent limitations and constraints of international criminal justice. It contributed to the shaping of international criminal justice as a juridical field and triggered new ways and methods to study and understand international justice. Lawyers tend to focus on prosecutorial or judicial practices. However, the main contribution is much larger. The ICTY generated critical discourse about some of the foundations and assumptions of the field and introduced novel ways of thinking about international justice as a normative project and its constituencies (e.g. the role of victims and affected communities). Legacy derives not only from its successes but also from its shortcomings or failures.

The ICTY will likely remain an object of study across fields in the future (e.g. politics, history, organizational theory, law, or sociology). It is important to engage not only with its visible record and performance, but to refine the ways, lenses, and methods through which it is studied. This may shed a differentiated light on its legacies. This book is a part of this journey. It traces some of its less obvious legacies and opens broader frames for discussion. (p.12)

Notes:

(1) J Hocking, Opening Remarks, Legacy Conference, Sarajevo, Bosnia, and Herzegovina, 22 June 2017, available at <https://www.icty.org/x/file/Press/Statements%20and%20Speeches/Registrar/20170622-john-hocking-opening-remarks-sarajevo_en.pdf> accessed 21 October 2019.

(2) Secretary-General’s remarks at Closing Ceremony for the International Criminal Tribunal for the Former Yugoslavia, 21 December 2017, available at <https://www.un.org/sg/en/content/sg/statement/2017-12-21/secretary-generals-remarks-closing-ceremony-international-criminal> accessed 21 October 2019.

(3) I Vukušić, ‘Assessing the ICTY’s Legacy’ (Justice Hub, 26 July 2017) <https://justicehub.org/article/assessing-the-ictys-legacy//> accessed 21 October 2019.

(4) See Hocking (n 1).

(5) See e.g. B Swart, A Zahar, and G Sluiter (eds), The Legacy of the International Criminal Tribunal for the Former Yugoslavia (OUP 2011); M Sterio and M Scharf (eds), The Legacy of Ad Hoc Tribunals in International Criminal Law (CUP 2019), R H Steinberg, Assessing the Legacy of the ICTY (Martinus Nijhoff 2011).

(6) See ICTY Manual on Developed Practices, Prepared in conjunction with UNICRI as part of a project to preserve the legacy of the ICTY (UNICRI Publisher 2009).

(7) As George Orwell has warned: ‘Who controls the past controls the future. Who controls the present controls the past’ in G Orwell, 1984 (Houghton Mifflin Harcourt 2017) 37.

(8) The ICTY Legacies Dialogue Conference framed a set of general recommendations. See Report of the International Tribunal for the Former Yugoslavia (1 August 2017) UN Doc A/72/266–S/2017/662, Annex (Outcome document of the Legacy Dialogues Conference of the International Tribunal for the Former Yugoslavia: Conclusions and recommendations).

(9) See ICTY, Echoes of Testimony; A Pilot Study into the Long-term Impact of Bearing Witness Before the ICTY (ICTY 2016).

(10) See Hocking (n 1).