Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (34 page)

Accountability for War Crimes: Justice as Prosecution

Most of the population in BiH was affected by the conflict, which left both a trail of human rights violations and a high level of social destruction and distortion of community life. Segregated communities continue to be affected by nationalist rhetoric today. In addition, there is a very low level of social trust and trust in public institutions.
³⁸

From the very beginning of the international response to the conflict, justice for the atrocities committed played a central role. Victims of all sides wanted justice for what happened to them and their relatives and there was a high domestic and international demand for fighting impunity.
³⁹
Both victims and the international community identified justice with criminal prosecutions, as will be discussed in more detail below.

Justice in the Hague

The ICTY was created in 1993 whilst the conflict was still ongoing. It was established to put an end to the serious international humanitarian law violations in the territory of the former Yugoslavia and bring to justice those responsible.
⁴⁰
Since its establishment the ICTY has indicted 161 persons and concluded proceedings for 126 accused; there are ongoing proceedings for 35 accused.

The international community placed high expectations on the international prosecution of war crimes, which was envisioned as contributing more widely to the restoration and maintenance of peace.
⁴¹
Supporters expected the ICTY to contribute to the stable development of the rule of law by serving as deterrence and sending a powerful message that impunity would not be tolerated.
⁴²
Even if not explicit in its mandate, it was expected also to contribute to social reconstruction or reconciliation.
⁴³
The assumption of the advocates of the ICTY, including its first President, was that judicial processes facilitate peace and stability in the region by individualizing guilt, addressing the needs of victims and establishing the facts concerning the conflict.
⁴⁴
It was hoped that criminal prosecutions would promote the restoration of social relations in peacebuilding processes by releasing communities from general guilt. Equally, the recognition of truth through testimony would address the needs of the victims and act as a catharsis, and allow victims to be recognized as such, independently of their ethnic origin.
⁴⁵

It is true that prosecutions in The Hague have helped remove the most notorious political leaders from positions of institutional power and marginalize some of the more radical nationalistic groups.
⁴⁶
This had an important effect on the consolidation of peace and stability in the region. An example is the positive effect on refugee return (despite the problems explored above), with people feeling safer to return to their pre-war municipalities as the court developed its work.
⁴⁷
A further example is the fact that, as the Court winds down its activities, protests have been less visible and had much less impact on national and local politics. The recent detentions and transfers to The Hague of the last two remaining fugitives, Ratko Mladi
ć
and Goran Hadži
ć
, brought several thousand radical followers out onto the streets but did not have a particularly destabilizing effect in Bosnia.

With regards to reconciliation, the impact of the ICTY is far more difficult to assess. If anything, the experience of the ICTY (and the ICTR) has contributed to understanding of the limitations of criminal trials to facilitate social reconstruction and reconciliation, leading to policymakers tempering some of their grand statements over the capabilities of international criminal justice in societies after conflict. The assumptions regarding the expected impact of the ICTY have now been challenged, and more nuanced research work demonstrates the limitations.
⁴⁸
Several studies have attempted to measure the impact of the ICTY on public opinion and in particular on reconciliation or social repair, including through population surveys.
⁴⁹
The conclusions, as is often the case with this kind of research, are varied, and on occasion contradictory; therefore they have to be taken with caution. A key lesson from the ICTY for other courts has been the importance of the relationship with people affected by the prosecutions.
⁵⁰
The legitimacy of the ICTY was greatly affected in the early years by the fact that it was physically and linguistically removed from the region,
⁵¹
as well as by the constant political attacks suffered from nationalistic political leaders.
⁵²
The ICTY has since worked to restore such damage through its Outreach Programme, created in 1998. In the years of engagement with local civil society, the population’s attitudes towards the international court have changed for the better.
⁵³
Most of the population, even in Republika Srpska, now accept that the establishment of the international tribunal was important, even if they question the quality of its work.
⁵⁴

An overall conclusion regarding the impact of 20 years of the ICTY on peacebuilding and transitional justice in Bosnia can only be positive. As Nettelfield’s work demonstrates, the international court has played an important role in the cementing of the country’s nascent democracy. She finds that the work of the international court has contributed to the process of democratization by “facilitating social mobilization, political participation and the internationalization of human rights norms” as well as having challenged “extreme versions of dominant nationalistic narratives and assisted with the development of democratic institutions to bolster the rule of law.”
⁵⁵
The ICTY enabled Bosnia to address some of the “ghosts of its war time era” by pushing the painful question of “what to do with the past.”
⁵⁶
In this regard, the ICTY has contributed to the development of
national accountability processes. It has been instrumental in overseeing national prosecutions, building the capacity of national judicial staff, and the creation of the War Crimes Chambers in Sarajevo, which is now continuing its prosecutorial work. ICTY rulings have made it more difficult for nationalist politicians to manipulate the facts of the conflict and deny the abuses.
⁵⁷
The progressive advancement in accountability has opened the door for further transitional justice processes, which only years ago seemed nearly impossible in such a divided society, as analyzed below. The deficiencies evidenced by the work of the court have made it clearer that complementary transitional justice mechanisms are needed and have even contributed to an internal demand for such mechanisms.
⁵⁸

Impunity at Home and the Creation of the War Crimes Chamber

The DPA established specific obligations to cooperate with the ICTY (article IX), but was silent on domestic prosecutions. However, once the war was over, the international community discouraged domestic prosecutions. This was mainly because, during and immediately after the war, all sides used civilian and military courts to try the war crimes committed by “the other side.” Destruction caused by the war and the lack of qualified personnel contributed to the inability of courts to administer justice efficiently but, most worryingly, the appointment of new judges on ethnic and political grounds in each entity resulted in ethically motivated trials and lack of impartiality.
⁵⁹
Police forces also played a role in such dubious prosecutions. The ongoing failure to address impunity undermined the rule of law and negatively impacted public confidence in the police and legal system. The complex legal framework brought about by the DPA’s territorial and administrative divisions made it more difficult to coordinate procedures between entities and at federal level.

It was only after the international community seriously committed to rule of law reform that prosecutions compliant with international standards at national level were possible. A UN Judicial System Assessment Programme was created in 1998 and in 2002 the HR presented his strategy for the reform of the justice sector.
⁶⁰
The most important reforms included vetting and reappointment of judicial staff, the reduction of the number of judges and prosecutors, ensuring ethnic representation, the establishment of an independent body for the appointment and review of judges and prosecutors, the passing of new Criminal and Criminal Procedure Codes at state level, the passing of a law on witness protection, and the establishment of the State Court, with jurisdiction for the whole of BiH. Many of the new institutions were created as mixed or hybrid, that is, involving national and international staff and were in great part paid for by the international community.
⁶¹
These reforms had a beneficial impact on the functioning of the judicial system and the general trust over the system, which, even if improved, remains low.
⁶²

Section I of the State Court is the War Crimes Chamber (WCC), with jurisdiction over war crimes, crimes against humanity, and genocide. It is accompanied by a Special Department for War Crimes at the Office of the Prosecutor
(SDWC). Both bodies were established as the result of an agreement reached in January 2003 between the Office of the High Representative (OHR) and the ICTY
⁶³
to provide the justice system with the tools and capacity to prosecute and carry out war crimes trials according to international standards.
⁶⁴
They were created as national institutions assisted by international judges, prosecutors, and other staff. But, unlike other hybrid tribunals for the prosecution of international crimes, these institutions were envisaged to become fully national after five years. The WCC was officially inaugurated on 9 May 2005 and opened its first trial in September that year. The mandate of international judges and prosecutors, originally due to finish in 2010, was later extended until December 2012.
⁶⁵
The SDWC and the WCC have been especially successful in prosecuting war crimes, with over 40 verdicts pronounced in appeal and a similar number of cases in first instance.
⁶⁶

Underlying the creation of the WCC was the fact that prosecutions at national level, with an increased sense of ownership by the local population, would contribute to the achievement of some of the goals that the ICTY left incomplete: particularly the prosecution of war criminals and aiding national reconciliation.
⁶⁷
The WCC faced two substantial obstacles for this: an initial suspicion from the general population due to the general lack of satisfaction towards the judicial system
⁶⁸
and the manipulative discourse of the nationalistic camps, which portrayed it, as they did with the ICTY, as a biased and corrupt institution. Bosnian Serb political leaders have been very vocal in their rejection of the WCC, arguing that it has focused more strongly on the prosecution of Serbs.
⁶⁹
Serb victim associations, mostly those of veterans of war and former camp inmates, have protested over the lack of prosecutions of Bosnian Muslims and held demonstrations against the State Court.
⁷⁰

Lessons learnt from the initial failure of the ICTY to engage with the public led to the establishment of a Public Information and Outreach Section of the State Court (PIOS) from the outset, as well as to initiatives to engage with civil society and local communities, through a Court Support Network. However, funding problems and lack of staff have meant that outreach of the WCC has not been as effective as it should have been.
⁷¹
The shift from the initial efforts to partner with civil society and reach key groups has had, according to Barbour, a measurable effect in terms of failing to increase trust in domestic war crimes prosecutions and undermining civil society support.
⁷²
Also, in its six years’ practice the WCC shows a poor balance in the protection of witnesses and a failure to explain the prosecutorial processes. It has been particularly problematic for victims and the wider population to understand (in a similar way to the experience of the ICTY)
⁷³
the use of plea agreements, which raise claims of impunity and leniency.
⁷⁴

The WCC does not have exclusive jurisdiction; other local courts can also prosecute war crimes, and have been doing so. Trials have been held in both Republika Srpska and the Federation, at district court and cantonal level, respectively. These trials at local level are crucial: the WCC will only deal with higher-level perpetrators, but victims need to see justice served in respect of the
lower-level perpetrators, those who actually perpetrated the offence against them, the ones walking free in their community and living next door to their victims.
⁷⁵
These prosecutions are progressing slowly. Some of the obstacles are technical, such as limited prosecutorial resources and lack of specialization among prosecutors and defense counsels, and deficient witness protection or support systems.
⁷⁶
But important political obstacles still persist in certain areas where police and authorities are unwilling to investigate certain crimes and where prosecutors, court staff, and witnesses are at risk.
⁷⁷

Overall, any assessment of national prosecutions has to be positive, since the WCC is doing very important work and local courts are slowly progressing, despite the problems highlighted. However, there are thousands of violations to investigate, thousands of victims without redress, and potentially thousands of perpetrators who may not be able to be brought to trial.
⁷⁸
Only through the development of complementary transitional justice mechanisms would it be possible to reach some of these victims and wider civil society.
⁷⁹
These will be examined in the next section.