7/26/2019 Accepting the Difficult Truth on the ICTY-Refik
Hodzic
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BALI AN
TRANSITIONAL JUSTICE
l t
1,.
(Jr 1ut I.
.
Accepting a Difficult Truth
I TY
is ot Our Court
The impact of Yugoslav general Momcilo Perisic s acquit tal
illustrates the insurmountable distance between the Hague
Tribunal nd people in the Balkans, who must take responsibility
for dealing with their past .
After the International Criminal Tribunal
for
the
Former
Yugoslavia (ICTY) issued its appeal judgment of acquittal in the
case against tvbmcilo
Perisic last week, I received the usual flurry of questions
about how the decision
was
going to affect reconciliation in the 'region. I
must
admit to
being utterly tired of this question.
What
reconciliation? I felt compelled to quote Bosnian
Serb
President
Mlorad
Dodik on Markale or Serbian
President Tomislav Nikolic on Srebrenica as a response. and
ask
a counter-question : "
Is
this the process
of
reconciliation you're referring to?"
The Perisic verdict marks the time to pose a far
more
serious question than the redundant dilemma about the ICTY and
reconciliation: has the
Tribunal fulfilled its broader mandate
of
"contributing to a restoration and maintenance of peace"? I am
not ready to offer a definitive judgment on
this ,
as
I am not certain about the methods of measuring
such
a contribution, but I have significant doubts tha t the ICTY
ever had the tools, or the
full
commi
tment, to do so.
In
describing the Tribunal's mandate, its first president, late
Antonio Cassese , wrote
in
its first annual report to the UN Security Council: "The
role
of
the Tribunal cannot
be
overemphasised.
Far
from being a vehicle
for
revenge, it is a tool
for
promoting reconciliation and restoring true peace.
If
responsibility for the appalling crimes perpetrated in the
former Yugoslavia is not attributed to individuals , then whole e
thnic and religious groups wi I
be held accountable for these crimes and branded
as
cr iminal. .. The history of the region clearly
shows
that clinging to feelings of collective
responsibility' easily degenerates into resentment, hatred and
frustration and inevitably leads to further violence and
new cri1
,~s."
However, neither
Cassese
nor any of his
successors
ever clearly outlined how
was
this court to
do
so other than
by
conducting lengthy,
complicated trials in an insulated legal bubble, completely
removed from the realities of a region ravaged
by
vicious fratricide, with
most
of the
underlying causes of violence left unaddressed and without
anything resembling a comprehensive transitional justice
framework.
Tribunal's ' ivory tower syndrome'
The ICTY has never truly
made
a
commitment
to the people
of
the former Yugoslavia to chart the
course
to fulfilling this broader mandate. because,
s imply, it has never seen them
as
its primary constituency. Instead, to the vast
major
ity
of
udges and lawyers
who
shaped its development and
jurisprudence, they remained merely the ob jects
of
Tribunal's cases, while the only people they
saw
themselves accountable to were the
policymakers in New York, Washington, Berlin and other key
capitals .
While they led courtroom battles aimed at refining international
law, thousands
of kilometres from the dreary Hague, in Bosnia and
Herzegovina,
Serbia, Croatia, Kosovo, and Macedonia, poisonous storms raged
in the public discourse about the impli cations of their work.
Eager to stay out of politics' and to 'let judgments speak
for
themselves', the Tribunal's decision-makers never
saw
the need
to
properly report to
their true constituents on critical questions being raised in
Sarajevo, Zagreb. Belgrade: Why were certain people indicted and
others not?
What was
the philosophy of Tribunal's so-called sentencing policy?
How was
it possible to quash 1,300-page trial judgments with sevf, -
pages of an appeal
judgment?
Why
were defendants allowed to get rich
by
splitting Tribunal-provided fees with their lawyers? The
list
of such
unanswered questions
(often posed even
by
friends of the Tribunal'
in
the Balkans) is inexcusably long.
The recent appeal judgments in Gotovina and Perisic cases
beacon
as
examples
of
this 'ivory tower syndrome'.
They
both include seemingly
technical but significant shifts in Tribunal's
jurisprudence.
The
reasoning
of
their legal logic
can
be traced only by those
most
determined to mine for
the elusive meaning in the footnotes, and willing
to
make a leap
of
faith
to
ignore what appear to
be
obvious political motives. Many in the
international justice community were left baffled by the new,
reductionist legal criteria applied in the two verdicts, which ran
counter to many of the
Tribunal's previous findings.
At the
same
time, these judgments had tectonic reverberations in the region,
with real and destructive implications
on
the 'process of
reconciliation'. And while the resulting virulent debates about
'victorious nations and
just
causes', 'historic injustices' , 'political conspiracies and
trade-offs' rage
on
between Serbs. Croats and Bosnians as they
try
to make
sense
of these verdicts,
one
voice remains thunderously silent: that of
the ICTY.
'Outreach'
as a
substitute
for cr
edibility
www.ball
7/26/2019 Accepting the Difficult Truth on the ICTY-Refik
Hodzic
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outreach program to 'sell' their decisions to the affected
communities.
However, outreach cannot compensate
for
the unwillingness to conside r
how
udges' work impacts Tribunal's ability to fulfill its broader
mandate.
Especially outreach
as
understood
by
the
ICTYs
principals: a loose
mix
of public relations, decontextualised dissemination of
nformation and
endless series of conferences.
And this for one simple reason: everything a court with
such
a mandate does is in fact outreach, whether active o r passive.
Decisions
on
indictments, convictions, acquittals, witness support and
protection, the behaviour of investigators and field staff, public
statements and their
absence, stunts that judges let defendants, lawyers and
prosecutors get away with in the courtroom, the length
of
trials , the
way
all tribunal staf f,
from judges to security guards, conduct themselves at work and
outside it, and even administrative edicts - everything plays a
role in how
Tribunal's work is perceived.
No amount
of
outreach' will ever be able to improve the Tribunal's image in
the eyes
of
Srebrenica mothers after the
dec
ision
of
the Office
of
the
Prosecutor to destroy artifacts exhumed together with the
bodies
of
their loved ones. No
number
of
conferences about the Tribunal's legacy will be
able to explain to Bosnians
why
its judges have kept transcripts
of
Yugoslavia's Supreme Defense Council confidential. No
information sheet
posted
on
Tribunal's website will ever
be
able to justify Drazen Erdemovic gelling five years after adm
itting to the killing
of
at least 75 people. No
public relations effort can help 'sell' the Gotovina and Perisic
judgments in Serbia and Bosnia and Herzegovina.
Just
another
UN
body
n
response to the Perisic judgment, Eric Gordy has written
how
the emerging third generation
of
ICTY urisprudence will have profound
implications for the legacy
of
the Tribunal.
By
revaluing earlier assessments that were
made
regarding the legitimacy
of
the [Bosnian Serb Army's)
war
aims, it calls into question the theory behind the prosecution
in the ongoing cases against Radovan Karadzic and Ralko Madie.
Indeed,
as
Karadzic and Madie trials unfold amid a waning public interest
in the region, it
seems as
if they
were
dealing with things that happened
to somebody else.
Mer
Gotovina and Perisic,
no
outcome has the capacity to surprise.
And all this unfolds in the reality where
most
war criminals convicted
by
the ICTY have already been released and largely rehabilitated,
their deeds
celebrated
as
acts of heroism, and their ideologies vindicated
as
nation-building martyrdom.
For
those working to bring about a reckoning with the
past, it has become increasingly difficult to look to the
Tribunal for hope.
I still concur with
Mrko
Klarin,
who
once
said that the ICTY
was
the best thing that happened to the people
of
the former Yugoslavia since 1991 . But
in a sobering realisation, I have
come
to accept that ICTY is, unfortunately, not our court,
but ust
another UN body. Its mandate
of
contributing to a
lasting peace in the region is seen through a very different
lens from ours
by
those
who
shape its course and decisions.
For
better or worse, the lasting peace is not
up
to the ICTY: it is up to us, and it has always been. We
must
face
what we
did to each other, deal
with it courageously and comprehensively, and bring justice to
the victims. The Gotovina and Perisic judgments have
made
that crystal clear: the
ICTY will not
do
it for us; our own institutions
must
get to the truth and punish the perpetrators.
Now
more
than ever
we must
insist that state
institutions here take responsibility for dealing with the
past.
And in doing this ,
we
will have to look for the
ICTYs
legacy beyond its trials. We will have to
see
its
work
through, thankful
for
the good things it has
done and hoping it will not irreparably undermine its
credibility. Then we'll have to sift through its record
for
pieces
of
truth that
can
help us as we
continue
to
struggle for a
common
narrative about the traumatic past. But this will have to be
done with cold, objective, and comprehensive
acceptance of the distance between the ICTY and
us
the people it was supposed to serve. We simply aren't, and
possibly never have been, its
primary constituents.
Refik
Hodzic is justice activist
from
Prijedor and former I TY
spokesman
3>
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