MANDATE INTERRUPTED: THE PROBLEMATIC LEGACY OF THE UNITED NATIONS INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA. (Memories of Judgment: Constructing the ICTY'S Legacies)

• Published date: 22 September 2020
• Author: Pettigrew, David
• Date: 22 September 2020

I. Losing Faith 384
                II. Short Sentences and Early Releases 388
                III. An Anxiety of Influence: The ICTY, the Media, and the
                International Community 391
                IV. Unintended Consequences: Genocide Denial, the
                Glorificatiion of War Criminals, and the Suppression of
                Memorials for the Victims 394
                V. Restorative Justice and the Possibility of a Future 399
                

I. LOSING FAITH

There was a reasonable expectation, at the beginning of the work of the ICTY, that those who played leadership roles in provoking and implementing the atrocities designed to achieve ethnic homogeneity in Bosnian Serb-claimed territory of Republika Srpska, would be brought to justice. Leaders such as Radovan Karadzic and Vojislav Seselj orchestrated the war crimes and relished their respective roles in doing so. However, it has been precisely the proceedings and outcomes of the Karadzic and Seselj prosecutions that have cast a pall over the legacy of the ICTY, and raised questions about the ability of the ICTY to bring the perpetrators to justice. (9) In October 2009, eight municipalities were eliminated from the indictment of Radovan Karadzic to expedite the proceedings in "the interest of justice." (10) The excluded municipalities were simply "struck through" in the marked-up indictment." The removal of the municipalities from the indictment may well have led to the failure to achieve a genocide conviction for Count 1. The Trial Chamber indeed found that "in light of the systematic and organised manner in which crimes were committed in each of the Municipalities... there existed a common plan to permanently remove Bosnian Muslims and Bosnian Croats from Bosnian Serb claimed territory..." (12) The Chamber asserted moreover that "the Accused and the Bosnian Serb leadership agreed on ...the measures they would take to create their own ethnically homogeneous state." (13) However, in spite of this finding, Karadzic was acquitted of genocide under Count 1, including on Appeal. (14) This was a

Judgement that may well have been affected by the removal of the eight municipalities from the indictment. The Chamber found that there was an "organized and systematic pattern of crimes committed" against non-Serbs in the municipalities, that there was eliticide, unlawful detention in approximately 50 detention facilities in which living conditions were deplorably inhumane, including "torture, beatings, and psychological and physical abuse," and that there was the murder of non-Serbs in the villages and the concentration camps on a "mass scale". (15) However, in spite of these findings regarding crimes committed as part of the common plan in the seven municipalities remaining in the indictment, the Chamber was "not convinced that the evidence demonstrated that this amounted to conditions of life calculated to bring about the physical destruction of the Bosnian Muslims or Bosnian Croats in these municipalities"...and was not satisfied "that the acts... were carried out with genocidal intent." (16 ) Moreover, the agreement to remove eight municipalities from the indictment meant more specifically that there would no genocide conviction for the crimes committed in Visegrad, since it was one of the excluded municipalities. (17) But the Trial Chamber in the Lukic case had found in 2009 that the atrocities committed in Visegrad, at Pionirska Street house, and in the Bikavac neighborhood, stood out as the most heinous crimes of the 20th century in terms of the "viciousness"... and "sheer callousness, monstrosity and brutality of herding, trapping and locking the victims in the two houses," and setting them on fire and burning them alive:

The Pionirska street fire and the Bikavac fire exemplify the worst acts
                of inhumanity that a person may inflict upon others. In the all too
                long, sad and wretched history of man's inhumanity to man, the
                Pionirska street and Bikavac fires must rank high. At the close of the
                twentieth century, a century marked by war and bloodshed on a colossal
                scale, these horrific events stand out for the viciousness of the
                incendiary attack, for the obvious premeditation and calculation that
                defined it, for the sheer callousness and brutality of herding
                trapping and locking the victims in the two houses, thereby rendering
                them helpless in the ensuing inferno, and for the degree of pain and
                suffering inflicted on the victims as they were burnt alive. There is a
                unique cruelty in expunging all traces of the individual victims which
                must heighten the gravity ascribed to these crimes. (18)
                

Again, one must wonder if, had the crimes committed in Visegrad not been excluded from the indictment, whether the weight of the gravity of the atrocities against the innocent women, children, and elderly, murdered as part of the widely recognized common plan, would have caused the Chamber to arrive at a Judgement of Genocide for Count 1. Another troubling development involved the release from imprisonment, on December 13, 2014, of Vojislav Seselj, a chief hate-speech ideologue, for health reasons, only to have him return to Serbia where he experienced a "miraculous recovery". (19) He was subsequently elected to parliament in Serbia, where he continues to promote the idea of "Greater Serbia." (20) In the Chamber's Judgement--in Seselj's absence-it was determined that Seselj was indeed Serbia's leading hate ideologue who spewed hate speech, recruited soldiers, and incited troops to eliminate non-Serbs. But in a surprising verdict, the Chamber concluded that the prosecution had not demonstrated a close enough "causal relation" between the hate speech and the atrocities committed, atrocities that have also been extensively documented. Seselj was acquitted since the significance of his hate speech was minimized, and his role was reduced or diminished by the Chamber to that of being a political functionary, with no direct military role. (21) Moreover, the Chamber described the "conflict" as a "civil war" in which there were three equally prepared warring sides, rather than as an international conflict with eliminationist dimensions. (22) This Judgement introduced a certain schizophrenia in the Tribunal's work, in the sense that in the course of the Tribunal's other Judgements, the "conflict" had been found to be an international armed conflict steered by Joint Criminal Enterprises including either Serb or Croatian nationals, and crimes had been judged to be genocide rather than simply part of a civil war. In other words, according to those Judgements, it was not a civil war. For example, in the case of the Prosecutor v. Jadranko Prlic et. al., we read:

The Chamber found by a majority, with the Presiding Judge dissenting
                that the conflict between the HVO and the ABiH during this period was
                of an international character. Evidence has shown that troops of the
                Croatian Army fought alongside the HVO against the ABiH and that the
                Republic of Croatia had overall control over the armed forces and the
                civilian authorities of the Croatian Community (and later Republic) of
                Herzeg-Bosna. (23)
                

The Chamber found that the criminal enterprise in the Prlic case involved Croatian nationals, including Franjo Tudman and Gojko Susak, "whose goal was to permanently remove the Muslim population from Herceg-Bosna." (24)

The acquittal of Seselj contradicted, moreover, part of the Karadzic Judgement in which the Chamber had found that Seselj was part of the overarching Joint Criminal Enterprise, and in which his inflammatory speeches and the atrocities of his men are detailed. (25) The first instance verdict in the Karadzic case found that:

...Seselj advocated for a homogeneous Greater Serbia which involved the
                unification of all Serb lands and the removal of the non-Serb
                population; as such he clearly shared the common plan. He sent large
                groups of SRS volunteer fighters to assist the Bosnian Serbs in BiH in
                the implementation of the common plan... (26)
                

Diane Orentlicher asserts in her book, Some Kind of Justice, that Seselj's acquittal "on all counts by a 2-1 decision was stunning" and quotes the reaction in the Economist--one among many--that the Trial Chamber's reasoning was '"so far-fetched'" that it '"defies belief". (27) In her partially dissenting opinion in the initial Seselj verdict, Judge Flavia Lattanzi found "insufficient reasoning, or no reasoning at all" in the majority's findings and concluded with the following remarkable reflection:

On reading the majority's Judgement, I felt I was thrown back in time
                to a period in human history, centuries ago, when one said--and it was
                the Romans who used to say this to justify their bloody conquests and
                murders of their political opponents in civil wars: "silent enim leges
                inter arma". ["In time of war the laws fall silent" (Cicero Oratio pro
                Milone, 52 BCE)]28
                

Indeed, with the initial Seselj verdict, one can surmise that the truth had been silenced as well. Eventually, however, upon appeal, Seselj was convicted of an isolated instance of incitement and the Chamber affirmed that a widespread and systematic attack against the non-Serb population had taken place. (29) At that point, however, it was not clear that public trust could be restored.

II. SHORT SENTENCES AND EARLY RELEASES

It has also been problematic that there are a number of cases in which perpetrators were convicted and sentenced, but then released early. The case of Momcilo Krajsnik, a high ranking official in Republika Srpska who served in various capacities, can be mentioned briefly: "...the Trial Chamber found Krajisnik responsible for persecution, extermination, deportation, and inhumane acts, all crimes against humanity under Article 5 of the Statute. The Trial Chamber imposed a single sentence of 27 years of imprisonment." (30) On Appeal, however, his sentence was reduced to 20 years. (31) Subsequently, Krajisnik received an early release in 2013, after serving two-thirds of his sentence, and returned to his former war headquarters in the city of Pale in Republika Srpska where he...