MEMORIES OF JUDGMENT: CONSTRUCTING THE ICTY'S LEGACIES. (The Role of the International Criminal Tribunal for the former Yugoslavia in Understanding the War and Genocide in Bosnia-Herzegovina)

• Published date: 22 September 2020
• Author: Orentlicher, Diane
• Date: 22 September 2020

I. Introduction 316
                II. Aspirations of the Tribunal's Regional Supporters
                Dispelling Denial and Fostering Acknowledgment 317
                III. Honoring Memory in Polarized Societies 322
                IV. Conclusion 326
                

I. INTRODUCTION

As the title of this symposium reflects, a critically important dimension of the Tribunal's legacy is its role in understanding the war and genocide in Bosnia. In my remarks, I want to drill down on the word "understanding," one of the most complex facets of the ICTY's legacy.

In brief, I will make four points. The first is that the ICTY's expected contribution to understanding the 1990s conflict in Bosnia and the atrocities associated with that conflict was deeply important to many individuals whom I have interviewed in Bosnia-Herzegovina, as well as in Serbia, about the ICTY's impact in their countries.

Second, the hard facts and legal conclusions established through court procedures, however impartial and rigorous, do not automatically translate into general knowledge or understanding, particularly in polarized societies. On the contrary, despite the work of the ICTY, denialism about wartime atrocities has been on the rise in the former Yugoslavia.

Third, the rise in denialism in Bosnia and its neighbors despite the ICTY's work highlights a significant challenge for human rights champions everywhere, as well as for citizens of Bosnia, Serbia, and other Western Balkan countries.

Finally, I will conclude with several thoughts about how we can honor the sacred duty of remembrance in a way that enriches our understanding of the past in the challenging context of polarized societies.

II. ASPIRATIONS OF THE TRIBUNAL'S REGIONAL SUPPORTERS: DISPELLING DENIAL AND FOSTERING ACKNOWLEDGMENT

My book Some Kind of Justice, (3) as well as my earlier research on the ICTY's impact, (4) began with a question: What did the ICTY, which was launched by diplomats in New York and based in The Hague, (5) mean in the daily lives of Bosnians, who had endured unspeakable horrors during the 1990s conflict in their country, and to Serbians, whose wartime leader had plunged the former Yugoslavia into calamitous violence?

Through field research in Bosnia and Serbia, I quickly learned that citizens of both countries--more precisely, those citizens who supported the ICTY (6)--had more than a few expectations about what the Tribunal would deliver. While armed conflict was still underway, some hoped its very creation would send a powerful signal to those committing brutal crimes that the international community would no longer tolerate their depredations; (7) many Bosniaks (Bosnian Muslims) in particular thought the Tribunal would deliver the justice they desperately needed. (8)

Many believed and hoped the ICTY's work would have a wider, and lasting, social impact. Of particular relevance to the subject of this symposium, many of the Tribunal's supporters in both Serbia and Bosnia believed its work would bring an end to pernicious forms of denialism about wartime atrocities, which had been pervasive during the 1990s conflict itself (9) and have persisted long after the conflict ended. (10)

Throughout the three-and-a-half-year conflict, Serbian propaganda had portrayed Bosnian Muslims as a mortal threat (11) and routinely inverted reality to bolster this narrative. (12) For example, Serbian media justified brutal Serb attacks against innocent civilians by claiming Bosnian Muslims attacked themselves. Similarly, when Bosnian Serb forces executed some 8,000 Bosniaks in Srebrenica in mid-July 19995, journalists working for Serbian media dutifully reported the claim of Bosnian Serb military leader Ratko Mladic that civilians in Srebrenica were safe and Bosniak soldiers who had been captured were "being treated in compliance with the Geneva Convention[s]." (13)

For those who had survived horrific crimes, of whom the overwhelming majority were Bosniak, (14) this brand of denialism was a further torment on top of the shattering losses they had already experienced. For these individuals, the end of denialism and, more affirmatively, acknowledgment of terrible wrongs would be a precious form of repair.

In a meaningful sense, then, survivors of wartime atrocities anticipated that Hague justice would be a justice of memory. The Tribunal would, they reckoned, authoritatively refute the falsehoods through which perpetrators of wartime atrocities had sought to justify their actions. In doing so, it would construct an accurate and just collective memory of what happened in the 1990s conflict.

As for citizens whose country or ethnic community had been associated with atrocities, whether by organizing, committing, or silently condoning them, those who welcomed the ICTY believed acknowledgment of their country's or ethnic community's grievous wrongs was a necessary step toward atonement and, many hoped, ultimately toward reconciliation."

But these hopes were not realized--not, at least, in the transformative way many expected. To be sure, the Tribunal did its part admirably: its investigative work is impressive, and the results of its efforts will be crucial to any responsible history of the 1990s conflicts. The ICTY's judgments have, moreover, set forth in meticulous and compelling detail key facts about wartime atrocities, including responsibility for them.

Unfortunately, however, credibly establishing crucial facts did not translate into a shared understanding among major ethnic groups in the former Yugoslavia of what took place during the 1990s conflicts. Far from it. In the words of Serbian civil society activist Marijana Toma, despite the ICTY's work, throughout the former Yugoslavia, "What we are seeing now, there are. . . conflicts of memory. We have wars of memory, like ... Serbian version of the past or this Croatian version of the past, in conflict with each other. And you have ... wars for memory. And that is what we are waging here. (16)

Now I want to be clear: none of this is to suggest the ICTY failed to influence beliefs. In fact, I believe it influenced the beliefs and understanding of many citizens in the former Yugoslavia. (17) But this is a far cry...