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The ICTY - Controversies, Successes, Failures, Lessons

Article  in  Southeastern Europe. L'Europe du Sud-Est · January 2012

DOI: 10.1163/187633312X616959

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 Southeastern Europe 36 (2012) 1–9 brill.nl/seeu

The ICTY – Controversies, Successes,

Failures, Lessons

Sabrina P. Ramet
Professor of Political Science at the Norwegian University of Science and
Technology (NTNU), Senior Associate of the Centre for the Study of Civil War,
International Peace Research Institute in Oslo (PRIO)

The International Criminal Tribunal for the former Yugoslavia (ICTY) was
established on 25 May 1993, at the initiative of the United Nations Security
Council. As stated in the Council’s Resolution 827, the objectives of the
tribunal are to deter future war crimes, to bring about justice, and to make a
contribution to the restoration and maintenance of peace (Clark 2009: 123).
The tribunal indicted a total of 161 persons. Of this number 72 were Bosnian
Serbs; 25 were Serbs from Serbia, Croatia, or Kosovo; there were also
25 Bosnian Croats, five Croats from Croatia, nine Bosniaks, eight Kosovar
Albanians (including one officer in the Croatian Army), and the remainder
members of other nationalities or not reported. Of the 161 indictments handed
down, 18 were later withdrawn and 13 indictees were eventually acquitted;
those acquitted included one Croat (General Ivan Čermak), three Bosniaks
(among them, General Sefer Halilović), two Serbs (among them, former
Serbian president Milan Milutinović), four Bosnian Croats, two Kosovar
Albanians, and one Macedonian (Ljube Boškovski, the former Macedonian
Minister of the interior). Thirty-five trials are still ongoing (as of 8 October
2011). Of the remaining 95 cases, most resulted in prison sentences, with
some cases being transferred to national courts and some indictees (including
former Serbian President and Yugoslav President Slobodan Milošević) dying
before their trials could be concluded. This set of articles brings together anal-
yses of the trials of the aforementioned Slobodan Milošević (by Judith
Armatta), former Bosnian Serb President Biljana Plavšić (by Jelena Subotić),
and Croatian General Tihomir Blaškić (by Eric Gordy).

© Koninklijke Brill NV, Leiden, 2012 DOI 10.1163/187633312X616959

2 S.P. Ramet / Southeastern Europe 36 (2012) 1–9

The ICTY has provoked a number of controversies since its birth nearly
twenty years ago, with some observers tallying up its successes, others tallying
up its shortcomings and failures, and still others endeavoring to draw lessons
from its experience. In the remainder of this short introduction, I will endeavor
to summarize the sundry assessments made of the ICTY and its work.

II

Controversies. One of the controversies has to do with whether war crimes tri-
als are worthwhile. No one disputes that punishment is, in moral and legal
terms, the appropriate response to serious crimes. However, even before the
birth of the ICTY, Samuel P. Huntington argued that, in new democracies or
in states in transition, putting people on trial for egregious violations of human
rights could complicate their transition to democratic rule and even destroy
the prospects for democracy altogether (Huntington as cited in Sikkink and
Booth Walling 2007: 428). In a similar spirit, Michael Scharf argued that
granting amnesties to persons suspected of war crimes might be more
conducive to social peace than prosecution and trials. In his view, prosecuting
indicted war criminals “can prolong […] conflict, resulting in more deaths,
destruction, and human suffering” (Scharf as cited in Goldsmith and Krasner
2003: 51). These arguments were advanced in the spirit of philosophical
realism, which holds that interests, not moral imperatives, should guide
policymakers, and, accordingly, that consequentialism (judging utility by con-
sequences) rather than universalism (judging appropriateness by conformity
to moral and/or legal principle) should serve as the ultimate criterion in assess-
ing the anticipated or actual success of policy choices. Along similar lines,
Goldsmith and Krasner have urged that stability be given a high priority and
that “[t]he best strategy for stability often depends on context and contingent
political factors that are not reducible to a rule of law […]. Political prudence
demands that foreign policy actions be judged in terms of their consequences,
not their intentions” (Goldsmith and Krasner 2003: 55, 59).
Against this “realist” point of view, Theodor Meron has defended what
we might call the “idealist” position. As he put it in 1993, “The credibility of
international humanitarian law demands a war crimes tribunal to hold
accountable those responsible for gross violations in the former Yugoslavia.”
(Meron 1993:122). While realists want decisions about whether to put sus-
pected war criminals on trial or not to be decided on the basis of interest, and
argue that granting amnesties to perpetrators of war crimes may be more likely
 S.P. Ramet / Southeastern Europe 36 (2012) 1–9 3

to lead to reconciliation and stability than conducting war crimes trials would
be, idealists point to the anger and resentment among victims at those perpe-
trators who have escaped justice (Clark 2009: 130-131). Empirical research
has shown that anger (or rage) and resentment are conducive to ethnic vio-
lence (Petersen 2002). Advocates of war crimes trials may thus respond that
not only does justice demand that serious crimes be punished but, in fact,
failure to do so and even handing down amnesties to the worst perpetrators
may produce results entirely opposite to what “realists” hope for – which is to
say instability and renewed internecine warfare, rather than the imagined
reconciliation.
A second controversy has to do with the ethnic distribution among the
indictees. Some Serbs have charged that the ICTY unfairly singled out Serbs
for prosecution and, in a poll conducted in July 2003, 59% of the 1,545 Serbs
polled felt that Serbia should not cooperate with the tribunal (Arzt 2006:
232). The ICTY also aroused distrust among Croats, 52% of whom felt, in an
August 2000 poll, that “[t]he Hague wants to criminalize the Homeland War.”
(Ibidem: 233). Croatian ire was especially aroused by the arrest of General
Mirko Norac in 2004 (for war crimes in Gospić in 1991) and by the arrest of
General Ante Gotovina in 2005 (for war crimes in the Krajina region in
1995).1 Following the pattern, Bosniaks have resented the indictment of fel-
low Bosniaks and have considered the sentences imposed on Serbs and Croats
“unacceptably lenient in many cases.” (Clark 2009: 130). Indeed, in a survey
conducted in 2002, only 51% of Bosnians (meaning members of all three
groups in Bosnia-Herzegovina) expressed trust in the ICTY, compared with
21% of citizens of Croatia, 8% of Serbs, and only 4% of residents of Republika
Srpska (Meernik 2005: 274).
A third controversy has to do with the sources used by the ICTY. Among
controversial matters we may mention the reliance of the tribunal on materials
provided by the Veritas organization headed by Savo Štrbac. Citing a report in
Novi list, Vjeran Pavlaković has claimed that this organization “was set up by
the Serbian intelligence services to spread anti-Croat propaganda, while Štrbac
himself was on the payroll of the Serbian Interior Ministry” (Pavlaković in
Ramet, Clewing and Lukic 2008: 465). Allegedly, some of those persons who,
according to Veritas, had been “killed by Croatian troops turned out to be
alive or had died of natural causes” (Pavlakovic 2008: 465).

1)
Concerning the case of Ante Gotovina, see Vjeran Pavlaković (Ramet, Clewing and Lukic
(eds) 2008: 447-477, especially 461–464).
4 S.P. Ramet / Southeastern Europe 36 (2012) 1–9

A fourth controversy revolves around the claim, registered by some (such as

Stjepan Mesić, President of Croatia 2000–2010), that, by prosecuting indi-
viduals held responsible for atrocities, one can avoid the trap of collective
guilt. Theodor Meron, for example, has written that “[…] it is important to
try individuals responsible for crimes if there is to be any real hope of defusing
ethnic tensions in the region. Blame should not rest on an entire nation but
should be assigned to individual perpetrators of crimes and the responsible
leaders” (Meron 1993: 134). Against this claim, however, one may note that
the 161 indictments brought forward by the ICTY do not, by any means,
hold all those responsible for atrocities to account. Indeed, can anyone seri-
ously believe that the atrocities committed by all sides in the Bosnian conflict
can be blamed on just 72 Bosnian Serbs (mostly in minor positions), 24 Serbs
from Serbia and Croatia, one Kosovar Serb, 30 Croats from Croatia and
Bosnia, and only nine Bosniaks, three of whom were eventually acquitted?!?
“By allowing many of the guilty to go unpunished,” as Janine Clark has
wisely pointed out, “what the trial process actually does is to collectivize,
rather than individualize, guilt. If only a small number of people are prose-
cuted, the broader extent of guilt that exists within a society remains unknown”
(Clark 2008: 336). The trials, thus, focus attention on the atrocities, cause the
victims to dwell on the past even more than they might otherwise have
done, stir up fresh details, and encourage each group to view one or both of
the other nationality groups as collectively guilty. This, in turn, does not foster
reconciliation.
And finally, we may mention that there has been impatience at the long life
of the ICTY, with some critics remembering that the Nuremberg Trials, which
figured as a kind of precedent for the ICTY, finished its work within five years,
and others complaining about the high costs of the proceedings at The Hague.
David Wippman, for example, has noted that the ICTY, which started
with an annual budget of $276,000, has expanded to an apparatus consisting
of 16 permanent judges and nine ad litem judges, supported by a staff of more
than 1,000 persons; the biennial budget to support this body was estimated at
$276,474,100 for the period 2006–2007 (Wippman 2006: 861).

III

Successes vs. Shortcomings. Judged by its own stated objectives, the ICTY
has a mixed record. To begin with, one may give the court credit for having
 S.P. Ramet / Southeastern Europe 36 (2012) 1–9 5

apprehended almost all of the indictees, albeit over a much longer period
than had been anticipated by many. The exception was Simo Drljača, who
was shot dead while resisting arrest; nine others died before they could be
transferred to The Hague for trial. Insofar as the delays in the apprehension
of Generals Gotovina and Ratko Mladić were holding back EU accession on
the part of Croatia and Serbia respectively, their arrests may be seen as useful
to these states in their quest for membership in the European Union. More-
over, although some major players escaped being indicted, a number of high-
ranking figures were arrested. In addition to those mentioned above, one
may also mention General Nebojša Pavković, Chief of the General Staff of
the Yugoslav Army, who was sentenced to 22 years’ imprisonment on
26 February 2009, and Radovan Karadžić, the Bosnian Serb President during
the war years, who was arrested in July 2008 and whose trial is currently
underway.
On the other hand, a number of key players in the organization and plan-
ning of the war have escaped arrest and, indeed, were never indicted in the
first place. These include: Borisav Jović, President of the state Presidency of
Yugoslavia from May 1990 to May 1991; General Blagoje Adžić, Chief of the
General Staff of the Yugoslav Army from September 1989 to February 1992;
General Života Panić, Chief of the General Staff of the Yugoslav Army from
February to May 1992, who died in Belgrade in November 2003 at the age of
70; Branko Kostić, acting President of the (rump) state Presidency from
December 1991 to June 1992; Admiral Stane Brovet, deputy defense Minister
at the start of the war, who died in Belgrade in 2007 at the age of 77; and
General Veljko Kadijević, Yugoslav Minister of defense from 1988 to 1992,
who fled to Russia where he acquired citizenship in 2008 and where he con-
tinues to live. Marko Hoare, a British historian based at Kingston University,
London, has revealed that, as a member of an ICTY investigating team,
he and his colleagues were preparing cases against the foregoing persons. The
preparation of these cases was terminated at the order of Carla del Ponte, then
Chief Prosecutor at the ICTY for reasons still not divulged to the public
(Hoare 2005: 2). The decision not to indict Borisav Jović is, among other
things, deeply ironic, since, in his memoirs, he implicated himself in the
planning and preparation for the war (Jović 1996).
Hoare also questions the competence and judgment of the tribunal in pre-
paring indictments of Croatian General Bobetko and Bosnian General
Halilović; Halilović, as already noted, was later acquitted. Moreover, although
the number of Bosnian Serbs indicted and brought to The Hague looks
6 S.P. Ramet / Southeastern Europe 36 (2012) 1–9

impressive on the face of it, relative to the number of Croats and Bosniaks
indicted, these were, according to Hoare, “small fry –figures scarcely worthy of
mention in a history of the Bosnian war– while the aforementioned big fish
have escaped justice” (Hoare 2005: 3). As for Franjo Tuđman, President of
Croatia 1990–1999, and Alija Izetbegović, President of Bosnia-Herzegovina
1990–1996 – indictments against them were being prepared when the two
men died (Tuđman in 1999, Izetbegović in 2003). Without judging their
guilt or innocence here, it is striking that the ICTY teams could not prepare
cases or –alternatively– decide that there was no case to be made against these
figures even, in the latter’s case, eight years after the end of the war.
The shortcomings of the ICTY may also be measured against its stated
objectives. To begin with, the stated aim of deterrence scarcely seems a realistic
one. The indictments of both Mladić and Karadžić for war crimes in 1995 did
not deter Milošević from the violent response against Albanian civilians which
he ordered in 1998, in response to the insurgency being launched by the
Kosovo Liberation Army. One may respond, however, that the 1948 Genocide
Convention and the 1949 Geneva Conventions codified war crimes and man-
dated that such crimes be punished. Moral idealism and realist consequential-
ism may find a point of consensus in agreeing that international law is valuable
for world society and that it needs to be upheld and enforced. Deterrence,
however, is not an objective in seeking punishment for those who commit
grave crimes against humanity.
Justice –the second stated objective of the ICTY– is even more elusive,
although for different reasons. Quite apart from the discontent expressed
by the families of victims among all three nationality groups, there is the dis-
tinction between retributive justice and restorative justice. Retribution may
serve the needs of bringing perpetrators to justice, but it is not necessarily
sufficient to bring peace of mind to the victims. Gilbert and Settles offer the
following explanation of the difference between retributive and restorative
justice:

Restorative justice views crime as a harm to individuals, their neighborhoods, the sur-
rounding community, and even the offender. Crimes produce injuries that must be
repaired by those who caused the injury. In this sense, crimes are more than a violation
of law, and justice is more than punishment of the guilty. Restorative justice strives
to promote healing through structured communication processes among victims,
offenders, community representatives, and government officials. It also strives to
accomplish these goals in a manner that promotes peace and order for the community,
vindication for the victim, and recompense for the offender. Under this restorative
perspective, justice is not based on punishment inflicted but the extent to which
harms have been repaired and future harms prevented. The goal of traditional justice
is punishment of those who violate the law, and the legal status of victims and
 S.P. Ramet / Southeastern Europe 36 (2012) 1–9 7

witnesses is reduced to serving as material witnesses. The conflict is not between the
offender and victim but between the offender’s lawyer and the prosecutor, with
the judge as referee. In this context, the government owns the conflict. Under a restor-
ative justice perspective, the conflict was created by harms imposed on the victim by
the offender who incurred an obligation to repair the harm. Consequently, the
conflict is not owned by the government but is owned by the victim and the offender
(Gilbert and Settles 2007: 7).

What is immediately clear from this explanation is that the ICTY is not
designed or equipped to promote restorative justice, even though it is precisely
restorative justice which is considered to be the most effective in promoting
gradual reconciliation. Here it is NGOs, such as the Victimology Society of
Serbia, which have proven to be helpful. Restoring communication is crucial
and, as the work of the Nansen Dialogue center in Lillehammer, Norway, has
shown, when people of different ethnicities are brought together in a situation
in which they will, as a matter of course, talk to each other, each side gradually
comes to understand that members of the other group also suffered, friend-
ships develop, and –in short– they come to see each other as individuals, not
as symbols of an “enemy nation” (Bryn in Listhaug, Ramet and Dulić (eds)
2011: 369-397).
We turn, finally, to the restoration of peace, the third stated goal of the
ICTY. This third goal presumes reconciliation, and various central figures in
the ICTY, including Antonio Cassese, the tribunal’s first President, and Carla
del Ponte, then Chief Prosecutor, have declared that their intention was to
promote reconciliation. In fact, there is some support for the proposition that
“while international justice may be a useful or necessary component to societal
reconstruction, it is not sufficient to cause people to live in peace” (Meernik
2005: 278; Fletcher and Weinstein 2002: 573–639). Empirical research has
shown that there is little, if any, connection between the work of the ICTY
and processes of reconciliation – and, indeed, that the people of Bosnia-
Herzegovina have a long way to go before one can begin to speak of reconcili-
ation (Clark 2009: 135; Meernik 2005: 277-278).
In sum, the ICTY has not realised and has had no prospect of realising its
objectives to promote deterrence, to bring restorative justice to the region, and
to foster reconciliation between the members of the three nationality groups.
Moreover, even in terms of retributive justice, its actual achievements, while
tangible, have been limited – above all because of the failure to indict key play-
ers. It has not even established the principle that no one is above the law. What
the ICTY has accomplished is to have arrested and punished some of those
who have been found guilty in its court, and to have provided some satisfaction
to locals and to those who care about the region.
8 S.P. Ramet / Southeastern Europe 36 (2012) 1–9

IV

Lessons. Perhaps the first lesson to be drawn from the ICTY experience is that
those who may participate in formulating the objectives of future interna-
tional tribunals may wish to keep in mind the distinction between modest but
realizable goals and goals which look more ambitious, but are, for practical
reasons, unattainable. While the ICTY would most certainly have been criti-
cized bitterly if it had stated its objective as seeking to arrest and incarcerate
some of the perpetrators, it might have done better simply to state that war
crimes needed to be punished and that breaches of humanitarian law had to
be judged in an international court of law. This would have dispensed with the
unrealistic notions that a court of law could effectively promote deterrence
and reconciliation.
A second lesson is that, in the absence of energetic enforcement (which is to
say an international police force with a clear mission to arrest those indicted),
the apprehension of suspects is likely to be a long and drawn-out process.
A third lesson, as Judith Armatta notes in her article for this issue, is that
the record of testimony has either confirmed what was either already known
or suspected from other sources or offered additional information and insight
into what happened in the region known until 1991 as the Socialist Federated
Republic of Yugoslavia in the years since 1989 (See also Ramet 2004: 112-
138). In addition to first-hand witnesses and, in some cases, high-ranking
participants in the events themselves, the trial of Slobodan Milošević also
brought to light a number of documents.
Jelena Subotić offers a fourth lesson. As she points out, the early release and
hero’s welcome given to Biljana Plavšić could suggest that Bosnian Serb lead-
ers were “supporting the war crimes she had committed.” Subotić quotes
Mirsad Tokača, Director of the Sarajevo-based Research and Documentation
Centre as warning that the decision of the RS Prime minister to go to Belgrade
to welcome Plavšić back “[…] can only slow down the process of reconcilia-
tion.” She also argues that the inconsistencies in procedure and sentencing in
the Plavšić case, including the unprecedented withdrawal of the charge of
genocide as part of a plea bargain, can have “important ramifications for other
international justice cases.”
Finally, Eric Gordy, in his examination of the trial of the Croatian general,
Tihomir Blaškić, draws several lessons. Among other things, he argues that
“[w]hat may constitute exculpatory evidence for a defendant can easily be
damaging to a state, and the interests of the public and of victims might not
be identical to the interest of either of those other two parties.”
 S.P. Ramet / Southeastern Europe 36 (2012) 1–9 9

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