Assessing the ICTY’s legacy

Last week (22-24 June 2017), Sarajevo hosted the ICTY Legacy Dialogues Conference, organized by the International Criminal Tribunal for the former Yugoslavia (ICTY), in order to discuss what it had accomplished before it closes its doors this December. After two decades, 161 accused, a number of complex trials finished, and with zero fugitives remaining, over 200 people gathered in the once-besieged city to talk about this important institution. The ICTY is, indeed, important, as it signaled a dramatic change in how the actors often vaguely called ‘the international community’, respond to mass atrocity. It was a reaction to the carnage in the former Yugoslavia, at a moment when it was politically possible in the UN Security Council, and it was the first time since Nuremberg that numerous states came together to support pursuing justice. Some of the first ICTY employees spoke at the conference, describing how in the early days they had nothing – almost no colleagues, no budget, no rules of procedure and evidence, no judges, no roadmap as to how to investigate and prosecute cases, no indictments, and no defendants. This post is a reflection on what the court has achieved.

Perceptions of Justice

The justice the ICTY rendered was imperfect. Some of the factors leading to unfortunate outcomes are now, with the benefit of hindsight, easy to spot. A good example is the never-completed Milosevic trial. Goran Hadzic died too, before judgment, leaving us speculating over how the trial would have ended. Others died before they were apprehended and transferred to The Hague. Of course, there were also controversial acquittals. Acquittals are to be expected and they happen domestically, and there is something to worry about if the tribunal sentences every single defendant, almost automatically. However, some of those acquittals seemed to stand on weak ground, thereby opening themselves up to accusations of being unfair.

Sentencing was another issue that created frustration in the victim communities. As we know, the public rarely has the time or the energy to follow proceedings in detail – trials go on for years, several times a week, multiple hours a day. It’s a full time job, following the evidence being presented. The public reacts to the decision, guilty or innocent, and the sentence, much else is lost in the noise. The journalists covering the trials are often on patriotic missions, and not professional ones. These trials are complicated, dealing with complex legal questions, and expecting the public to follow them daily is unrealistic. That is why outreach is vital, providing facts about the crimes, and the trials, to the local communities, through events, and documentary films. Transcripts and live streaming, these incredible resources, were mostly used by those with a particular interest in trials, such as historians, and not the general public.

That is why specialized reporting was, and remains, incredibly important. The work of the Sense News Agency that produced thousands of daily reports, hundreds of weekly TV reports, and several documentaries on the trials is crucial. They produced those reports for the public to consume free of charge, and those reports were accurate. Sense brought stories and experiences from survivors, and hundreds of them told us about what were the worst days of their lives. As hard as it is to select one testimony that touched me personally, Witness O, a survivor of the mass killing campaign after the fall of Srebrenica testifying in the Krstic trial, feels like a punch in the stomach every time I hear it. Sense brought us testimony from insiders, unveiling how structures that implement violent campaigns work: political structures, parties, armies, police and paramilitaries. Had it not been for the Tribunal, those stories would largely have been left untold.

Those testimonies, and the judgments the ICTY renders do not necessarily contribute to reconciliation, as we have seen, but they do ‘shrink the space for denial’ as Diane Orentlicher observed some years ago. Jennifer Trahan made the point at the conference, that proceedings do not achieve reconciliation on their own, but provide a building block for reconciliation in the long-term, and support the establishment of the rule of law. To expect a court to reconcile is simply unrealistic, and the ICTY now seems to realize that its early ambitions were overly optimistic.

As stated by ICTY President Agius, ICTY’s first achievement was to counter impunity, and with that we must agree. Many cases still remain to be prosecuted in the future, locally, but without the ICTY – there would have probably been nothing, apart from maybe prosecutions done by local authorities with the purpose of scoring political points. Much has been said elsewhere about ICTY contributions in jurisprudence, so I won’t go into it in detail. The conference heard about how the Office of the Prosecutor approached investigations and building cases; about contributions in dealing with sexual violence in court; about the practices in witness protection and support; and the challenges the defense faced.

Legacies

The importance of the ICTY is visible in a number of its contributions. For a historian such as myself, one stands out, and that is the vast, incredibly rich archive that this tribunal leaves behind. Today, the ICTY archives are the single most important repository of the horrors that ripped Yugoslavia apart. For a former Yugoslav such as myself, it holds the some of the answer to the question: what happened to us? Without the ICTY’s trials, we would not know so well what happened in Vukovar, Dubrovnik, Prijedor, Sarajevo, Srebrenica, Foca, Visegrad, Zvornik, Bijeljina, Mostar, Ahmici, Celebici, Podujevo, Suva Reka, and many other places. For the people that suffered there, we have an obligation to know.

The ICTY archives, and the trials they were created through, create an opportunity for us to learn. The fact that these records are put online, in the ICTY Court Records Database , has to be commended as other courts are reluctant to grant such access. Looking back, and thinking of the legacy of the ICTY, it seems that, for a historian, the process, i.e. the trials mattered almost as much as the outcome. Historians are not burdened by the ‘beyond a reasonable doubt’ standard, and can write, using the archives, for decades to come.

Much focus has been placed on genocide, when discussions turn to ICTY judgments, while forgetting that crimes against humanity are just as horrible, and that the victims that died as a result of them are just as dead, and their families suffered just as much. It seems to be unhelpful to focus exclusively on legal qualifications, while forgetting that some justice, imperfect justice, has been achieved: someone is going to prison, and some facts have been established.

The Tribunal has contributed greatly in establishing facts, and even helping to determine individual destinies of victims by searching for mass graves, and contributing to the efforts to establish their identities. Not directly tied to the ICTY, but visible during the conference, was the large number of individuals speaking both on the podium, and from the audience, showing just what kind of thriving civil society has been built in the past twenty years across the region. NGOs support traumatized survivors; preserve and share documentation concerning mass atrocities and ethnic cleansing; lobby, advocate and legally represent survivors and families of victims; and fight for the rights of camp detainees, victims of rape, sexual abuse and torture. People spoke eloquently and passionately about the work they do, and the cooperation they have with other associations across state borders and ethnic divides.

The future

As much as the closure of the ICTY seems like an end, in fact – much remains to be done. At the end of this year, we should see the first instance judgment in the case of Ratko Mladic. Furthermore, The ICTY has to finalize the mammoth Prlic et al. trial. The Mechanism for International Criminal Tribunals (MICT), the ICTY’s residual institution, has much on its plate: few cases, but complex ones – Stanisic and Simatovic, Serbia’s State Security chiefs are currently on retrial, and the appeal in Karadzic and Seselj remain, all complex cases. The MICT will also be doing the Mladic appeal. For that, the Outreach department, with the ability to communicate effectively with the peoples in the region, in the languages they understand, must remain as a constituent part of the institution. The public must be appropriately informed about the process and outcomes of these important proceedings, to counter destructive nationalist narratives. Stanisic and Simatovic, Seselj, Mladic and Karadzic are not something minor, which we can now just forget about.

For the future, special attention must be paid to local prosecutions, across the region. Those efforts still suffer from numerous problems: political pressures, underfunding, lack of capacity in some cases, and lack of will in others. I worked at the State Court in Sarajevo, for the Special War Crimes Department, a decade ago. What I heard during this conference is that the problems the local prosecutions face now are pretty much the same ones we faced ten years ago. Only now, there seems to be less political pressure, and support, from abroad. Much time has passed since the war, and the international actors are (understandably) moving their attention elsewhere. However, after what the international community has invested, it would be a shame to see all that potential not being carried through. Realistically, we have a decade or so left, before many of the potential defendants are dead. Local prosecutors must prosecute complex cases, against everyone, irrespective of ethnicity, and without political agendas, decisively and – this is key – go up the chain of command.

Saranda Bogujevci, a survivor of a horrendous crime in Kosovo, spoke eloquently in Sarajevo about the need to support witnesses. That must be a constituent part of local efforts in the future. Furthermore, robust support must be ensured for the defense in war crimes trials, so that counsel have the ability to defend, and that fair trial rights are observed. If these trials are unfair, then the entire project of prosecuting alleged war criminals is tainted.

Now, as we see the ICTY close, it is important to think about ways in which others can learn from this experience, in places like Syria. Sense News special projects, like the online narrative on Srebrenica, must continue, to bring the work of the ICTY closer to the public. The Humanitarian Law Fund from Belgrade, and others, should continue their efforts to unmask the role of structures and individuals in the massive victimization people in the former Yugoslavia suffered. For that, the archives are key: they must be made as accessible as possible. Maybe harmony and shared histories are impossible to reach between different communities in the region, but what we can and should expect is a fact-based discussion about the past, and trying to hear each other with an intent to understand, and not to blame.

Iva Vukusic

Iva Vukusic is an Associate Member of the War Crimes Research Group and a PhD Candidate at Utrecht University. Her research focuses on the former Yugoslavia during the 1990s. From 2009, Iva worked for the Sense News Agency in The Hague, covering trials at the International Criminal Tribunal for the former Yugoslavia (ICTY). Before that, she was an analyst and researcher at the Special War Crimes Department of the State Prosecutor’s office in Sarajevo.  She attended the ICTY Legacy Conference and presented in a panel on the Tribunal’s historical legacy:’Narratives of violence in and out of the courtroom’.

 

The Mobilisation of South African Civil Society in the Al Bashir matter

Professor Mia Swart

5 June 2017, 1700-1830

K-1.56, King’s Building, King’s College London

Registration here: http://bit.ly/2rvBJF

Since the start of the controversial Al-Bashir saga in South Africa, South African civil society mobilisation played a vital role in alerting the South African government to its duties as a state party to the Rome Statute. Swart’s paper will situate the civil society activism around the Al Bashir matter in the broader context of civil society activity in South Africa as well as the broader context of civil society activity before the ICC, specifically in Kenya and the Central African Republic. The history of the Al Bashir case, the history of civil society involvement in the case and the strategies employed by NGO’s will then be discussed. The speaker will look at ways in which NGO’s are continuing to play a role in the Al Bashir matter. The possible impact of the South African NGO activism on other jurisdictions (particularly in Africa) where visiting senior state officials accused of international crimes were similarly not arrested will also briefly be considered.

Mia Swart is professor of International Law at the University of Johannesburg where she teaches the LLM course in international law. She focuses her research on the fields of transitional justice, international criminal law, and comparative constitutional law. The main focus of her research has been on judicial law-making in international law, reparations for human rights violations as well as international courts, the international judiciary and the regional promotion of the rule of law. She consulted for the United Nations Development Programme in Palestine in 2014 and 2015 and for Amnesty International in 2015 and 2015. Mia’s work has been cited by the International Criminal Court. She regularly contributes to local and international media.

The event will be followed by a drinks reception in the Staff Common Room.

This event is co-hosted with the Transnational Law Institute and the War Crimes Research Group.

Context matters! TJ ‘mosaics’ not blueprints

The ICTJ have published a new volume discussing the importance of context in Transitional Justice implementation: Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies.

JM_Book_Cover

The book is wide-ranging and is the culmination of a multi-year project, including a series of workshops in New York in 2014.  The book stresses the importance of understanding context and argues that, rather than conceiving of TJ as a set of tools, it should be understood as a series of mosaics, or processes arranged according to the circumstances in play.  You can explore the book and associated resources here.
In my chapter on ‘Opportunities and Challenges’ I take what I think is a fairly pragmatic (and moderately pessimistic) approach, that ‘not only important to consider opportunities and challenges in context; it is also important to recognize that both
transitional justice and peace-building are processes of highly contingent and
imperfect transition. Just as there is no one-size-fits-all solution, there is also
no perfect solution to the problem of how to deal with a legacy of abuses, how-
ever context specific.
Dealing with past abuses in a delicate post-conflict setting can be at best complicated and at worst calamitous. The task is to ensure that we err on the side of the former, not the latter. Above all, we need to be realistic about what transitional justice can achieve, and honest about what it cannot.’

CfP: Reconciliation After War (Crimes): Historical Perspectives

Interdisciplinary workshop, King’s College London, 30 November – 1 December 2017.

Reconciliation is often cited as a key objective in the aftermath of violent conflict, where goals of peace, justice and reconciliation are seen as not only complementary but mutually reinforcing. But it is often unclear what, precisely, is meant by reconciliation, how, exactly, different activities and processes might foster reconciliation, and at what level (individual, community, group, state, inter-state). Moreover, whilst there has been attention to reconciliation internationally in the contemporary era and much discussion about the relationship between processes of transitional justice and reconciliation in contemporary contexts, little is known or written about how reconciliation has been practised (or not) in the past. Has reconciliation ever truly been achieved, or is reconciliation better understood as a trajectory to which there is no ‘end-state’? This workshop will bring together historians and others from different disciplines to explore the concept and practice of reconciliation in different periods in the past and in different cultural, geographical and historical contexts to explore, inter alia, these questions:

 

  • How has reconciliation been conceptualised and practised across time and space – in different regions of the world and throughout history?
  • What factors have affected the success or failure of attempts to achieve post-conflict reconciliation?
  • How have parties addressed issues of accountability, reparation, punishment, forgiveness, mercy, repentance and grace?
  • How has reconciliation been resisted? Where and by whom?

 

We invite contributions that address these themes from a wide variety of perspectives, and historical eras – ranging from the English and American Civil Wars to more contemporary histories drawing on twentieth century experience around the globe. We welcome submissions from artists, practitioners, PhD students, early career researchers and established scholars. We anticipate publishing those papers selected for the workshop in an edited volume/journal special edition.

 

Please send your paper proposal to Henry Redwood (henry.redwood@kcl.ac.uk) by 31 May 2017, including:

  • Name, affiliation and contact email.
  • Title and 250-word abstract
  • A brief biographical note

 

This workshop is part of an AHRC-funded project, Art and Reconciliation: Conflict, Culture and Community, a major collaborative initiative involving an inter-disciplinary team of investigators at King’s College London, the London School of Economics and The University of the Arts in London. The research is funded under the Conflict Theme of the Partnership for Conflict Crime and Security Research (PaCCS), an initiative of Research Councils UK, and the Global Challenges Research Fund (GCRF). For more information, contact Rachel.kerr@kcl.ac.uk or see www.artreconciliation.org.uk

Three Weddings and 8,000 funerals

Command and Responsibility at Srebrenica revisited: The Mladić and Karadžić Trials and the Legacy of the Yugoslavia Tribunal.

Professor James Gow, King’s College London

Location
War Studies Meeting Room (K. 6.07)
Category
Lecture
When
21/03/2017 (18:00-19:30)

Registration URL

http://bit.ly/2mjlDOF

In 2013, Professor James Gow was awarded a 3-year Leverhulme Major Research Fellowship to examine the defining trial of the ICTY, that of Ratko Mladić, and its impact on the evolution of international criminal justice.  Here, he will discuss the trial and reflect on the Tribunal’s historical legacy, particularly the significant wealth of evidence regarding the genocide at Srebrenica in July 1995 presented in both the Mladić trial, and that of Bosnian Serb political leader, Radovan Karadžić. Does this evidence finally answer the question of who, ultimately, was responsible?  Contrary to widespread assumptions and the verdict in the Karadžić case, can it be that Mladić holds sole responsibility, and Karadžić was not directly involved?

James Gow is Professor of International Peace and Security and Director of the International Peace and Security Programme at King’s College London. He has been a close observer of the International Criminal Tribunal for the former Yugoslavia since its inception, twenty-four years ago, and also a direct participant in its proceedings.  Professor Gow served four years as an expert advisor to the Office of the Prosecutor, was the first witness to be called at the ICTY and testified in several cases subsequently.  He has published widely on issues to do with the Yugoslav War, war crimes and visual representations of conflict (books include: War and War Crimes (2013), Prosecuting War Crimes: Lessons and Legacies of the ICTY (2013); War, Image and Legitimacy (2007), The Serbian Project and its Adversaries: A Strategy of War Crimes (2003) and Triumph of the Lack of Will: International Diplomacy and the Yugoslav War (1997).

Art & Reconciliation: Conflict, Culture and Community

Our latest project, ‘Art and Reconciliation: Conflict, Culture and Community’ is an innovative collaboration between King’s College London, the London School of Economics and the University of the Arts in London that aims to improve our understanding of a major current and future global security challenge.

This inter-disciplinary project combines history, conflict resolution methodologies, art and creative practice, and both qualitative and quantitative social sciences. The expert team of investigators include Dr Rachel Kerr and Professor James Gow of the Department of War Studies at King’s College London, Dr Denisa Kostovicova of the Department of Government, London School of Economics, and Dr Paul Lowe of the London College of Communication, University of the Arts in London. In addition, the project has its own Artist-in-residence, Dr Milena Michalski, and will work closely with NGO project partners in the Western Balkans to shape its design, production and delivery.

The research is funded through the Large Grant scheme of the Arts and Humanities Research Council (AHRC) under the Conflict Theme of the Partnership for Conflict, Crime and Security Research (PaCCS) and through the Global Challenges Research Fund (GCRF).

For more information, contact: Rachel.kerr@kcl.ac.uk @rachelclarekerr

Whither Transitional Justice? US policy, past experience and future prospects

Zachary Kaufman in conversation with Rachel Kerr

Monday 9 May, 1200-1330

War Studies Meeting Room, K6.07

King’s Building, Strand Campus

King’s College London

Zachary D. Kaufman, JD, Ph.D., is a Fellow (starting July 1, Senior Fellow) at Harvard University’s John F. Kennedy School of Government as well as a Visiting Fellow at both Yale Law School and Yale University’s Genocide Studies Program. From 2014 to 2015, he served as a Fellow at the U.S. Supreme Court. Prior to academia, he worked on transitional justice issues while serving at the U.S. Departments of State and Justice, the UN International Criminal Tribunals for Rwanda and for the Former Yugoslavia, and the International Criminal Court. He is the author or editor of three books: United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics (2016); Social Entrepreneurship in the Age of Atrocities: Changing Our World (2012); and After Genocide: Transitional Justice, Post-Conflict Reconstruction, and Reconciliation in Rwanda and Beyond (2009).

 

The Visual Jurisprudence of Transition: Art at the Constitutional Court in South Africa

Tuesday 1 November, 1300-1400

War Studies Meeting Room, K6.07, King’s Building, Strand Campus, King’s College London

Speaker: Eliza Garnsey, University of Cambridge

Chair: Dr Rachel Kerr, King’s College London

The Constitutional Court of South Africa stands on the site of several former notorious prisons where ‘virtually every important political leader in South African history from Mahatma Gandhi to Nelson Mandela as well as scores of ordinary South Africans caught in the web of colonial and apartheid repression’ (Segal, 2006) were once imprisoned. The Court is symbolically significant—representing South Africa’s transition—and physically significant—establishing a spatial precedent for how to address the past in building the future. The building is a unique space by international comparison, not only because it has transformed the penal site, but because it integrates artworks into the fabric of the architecture and houses a large visual art collection developed by and for the Court. These artworks draw attention to individual, collective, and time-based narratives which play a role in a shaping the larger ‘unity in diversity’ narrative at the Court, understood as a new kind of ‘visual jurisprudence’ which, in such close proximity to the Court, inhabits a unique position where the assumptions of justice and what it means to uphold the Constitution in a ‘new’ South Africa can be probed.

Eliza Garnsay is a PhD candidate in International Relations at the University of Cambridge, where her research focuses on transitional justice and art in ‘post-apartheid’ South Africa.

To register: https://docs.google.com/forms/d/1uQ_Yb_mDiTq6Xn2mkTY9M2KmpeECxZA58YJ_oolmhDc/viewform?edit_requested=true