Course Participant: Maruša Rosulnik (Ljubljana, August 2008)
Introduction
An end of a conflict is a beginning of a new path leading to peace and reconciliation. One of the means employed on the road to reconciling a post-conflict society is justice. Can a judicial mechanism indeed bring peace and reconciliation? According to the United Nations Resolution on Impunity[1], a judicial body's goal of ending impunity aspires to bring justice, find truth, promote accountability and deter the commission of crimes, obtain remedy and restore dignity of victims, establish historical record, promote reconciliation and establish peace and stability in a society. Based upon this conceptual link between justice and peace, in 1993 the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY or Tribunal) aiming to restore and maintain peace by persecuting perpetrators. Even though not explicitly stated in the ICTY Statue, the task of maintaining peace entailed the aim of promoting reconciliation in Bosnia and Herzegovina (BiH). Has the Tribunal succeeded in fostering reconciliation in the post-conflict BiH?
Exposition
On a personal level, the concept of reconciliation refers to a relationship between a victim and perpetrator, to acts of apology and forgiveness. In a broad socio-political understanding, reconciliation implies interethnic and political tolerance, the legitimacy of the new democratic system and the respect of human rights (Nalepa 2006: 6-7). Hence, reconciliation can be measured as a level of societal peace, defined as the level of conflict and/or cooperation in a post-conflict society (Meernik 2005: 271). Thus, the ICTY's impact on Bosnia's reconciliation amounts to the extent to which ethnic groups are able to live in peace or suffer violence in regard to Tribunal's work.
Meernik (2005: 287) found out that the effect of the ICTY on societal peace was inconsequential and negative in period from January 1996 to July 2003. After an arrest or judgement, which are the phases of the adjudicatory process most likely to impact the citizens, the ethnic groups frequently responded with hostility. As they did when Radovan Karadzic, the brain of ethnic cleansing, was arrested. The arrest sparked different reactions in Republika Srpska (RS) and the Federation of Bosnia and Herzegovina (FBiH). While many Bosnians did not react, several citizens of FBiH celebrated and a number of protests against Karadzic's capture were organized in RS. President of Serbian Democratic Party Bosic marked the peaceful march in Banja Luka as a "Christian prayer for Radovan Karadzic and all the victims of an incredible human hunting" (Sikanjic 2008). Bosic said that the main problem lies in general disbelieve in the Tribunal which makes political and not judicial decisions (Mondo 2008). Support of Karadzic manifested itself with the erection of road signs saying ‚Street of Radovan Karadzic' and ‚Street of Ratko Mladic' along one of Banja Luka streets. An ethnically marked statement was also delivered by RS Prime Minister Milorad Dodik who said that the arrest of Karadzic meant disburdening of RS in international relations and strengthening of its role in BiH. The collective guilt could not apply to the Serb ethnic group or to the entire RS (Seebiz 2008). In addition to an overall present feeling of indifference, RS focused on Karadzic as a hero and a victim while trying to strengthen the position of RS. FBiH on the other hand put emphasis on the victims of the war and brining justice through Karadzic's arrest. In line, Haris Silajdzic of Party for BiH saw the arrest as "at least some satisfaction for the families of victims. /... It/ will have a positive effect on Bosnia. We need this catharsis, we need people to know there is justice. Justice may be slow but eventually arrives" (Reuters 2008). Zeljko Komsic the Croat member of BiH's presidency marked the arrest as "a great day for BiH and a great day for justice" (Mondo 2008). Accordingly the President of the Mothers of the Enclaves of Srebrenica and Zepa Association Munira Subasic said that she had been "visiting mass graves for 13 years and expecting to hear the news that Radovan Karadzic and Ratko Mladic are in The Hague" (B92 2008a). While Sulejman Tihic of Party of Democratic Action welcomed the arrest of Karadzic he added that RS was his work (Mondo 2008). Indeed several Bosniak politicians saw the arrest as an opportunity to abolish RS (BBC News 2008a). Representing the voice of the international community the High Representative for BiH Miroslav Lajcak said that the arrest "would help the citizens /of BiH/ to turn away from the past and look into the future" (Ramadanovic 2008).
The Tribunal's inflaming of tensions and consequent negative impact on the reconciliation can be explained by arguing that Bosnians generally view the ICTY as biased on ethnic grounds, as an anti-Serb agent of Muslims. According to this perception, the South East Europe Public Agenda Survey in 2002 (Wilson 2005: 941) found the trust ratings of the ICTY to be relatively high in the FBiH (51%), while being very low in Serbia (8%) and in RS (4%). These results reflect the public perception of the ICTY as upholding a version of past events in which one's ethnic group is the victim and innocent of atrocities against other ethnic groups. Furthermore, politicians may misuse the historical record developed by the ICTY to solidify a sense that their ethnic group is an unacknowledged victim of the conflict and to set ethnic groups against each other (Fletcher/Weinstein in Meernik 2005: 277). Since ethnic affiliation remains the predominant element of identification in BiH and numerous politicians portray the ICTY as biased on ethnic grounds many Bosnians do not recognize the Tribunal nor accept its historical record. This is also a consequence of the ICTY's delay in establishing an outreach service which would make the ICTY's work relevant to Bosnians and would raise their awareness and interest in the legal process. In the six-year-long absence of reliable background information on the ICTY, political parties and the media had been the primary source of information. The political elite provided insufficient or selective information while media reporting was politically manipulated and ethnically biased (Basic 2006: 371). Therefore, Charles L. English the United States Ambassador to BiH urged: "Political leaders in BiH should admit that crimes were committed and should stop manipulating them for their own interest. The leaders must cooperate, build confidence instead of inciting nationalist feelings" (Krsman 2008).
A question arises whether the civil society on one hand and the political elite on the other are willing to constructively deal with the legacy of war crimes. While there are numerous smaller civil initiatives, often internationally stimulated, the majority of Bosnians remains passive and refuses to engage in an open and truthful dialogue, especially when the accountability of one's ethnic group is discussed. Neither do the politicians demonstrate the will to efficiently overcome the past atrocities so as to reconcile the society. A comprehensive agenda to deal with the past, to promote reconciliation, to bring about social transformation has not been designed yet.
Along with the aforementioned reasons for the ICTY's negative impact on the reconciliation, its detrimental perception among Bosnians also results from a number of factors, e.g. the remoteness of the proceedings from the population, the lack of involvement of local actors, the complex and extremely lengthy trials (Kerr 2005: 324), its rather short sentences, the guilty pleas, the focus on the perpetrator and not the victim, the selective nature of prosecuting and the failure to obtain custody of Mladic. The Tribunal is thus often perceived as a foreign institution which has a minor impact on the lives of Bosnians, except when arrests or judgements awake ethnic hatred.
The Tribunal's primarily importance to Bosnians indeed lies in the process of acceding to the Euro-Atlantic institutions. The international community treats Bosnia's proceeding with the legacy of war crimes as a symbol of its progress. Therefore, dealing with the war crimes generally and cooperation with the ICTY specifically is a key condition for BiH's accession to the Euro-Atlantic institutions. It was believed that in the short term, dealing with the war crimes legacy would promote BiH's integration in international organizations, while in the long-term, it would reconcile the society and establish lasting peace (Kerr 2005: 326). Indeed, the European Union (EU) and its accession conditionality play a prominent role in the entire region. As regards the condition of state's cooperation with the Tribunal Serbia remains in the spotlight.
The significance of the EU manifested itself with the victory of pro-European party of Boris Tadic at the 2008 parliamentary election which the EU secured with the signing of the Stabilization and Association Agreement (SAA) even though Serbia had not yet arrested Karadzic or Mladic. The signing of SAA played a decisive role in Tadic's victory while the importance of the pro-European party in power was revealed with the arrest of Radovan Karadzic. While there had been an organization of friends and adherents of Radovan Karadzic, his last book being published in 2003 and he being regarded as a hero and a true Serb, he was arrested just 13 days after the formation of a pro-European Serbian government. Nenad Canak leader of the League of Social Democrats of Vojvodina said that "the arrest was a result of the pro-European government's readiness to fulfil all international obligations" (Jovanovic 2008). While the politicians of the Balkan region, especially pro-European, highlight the importance of the ICTY, they do it with a view to accessing the EU, for instance the statement of the Defense Minister Dragan Sutanovac: "With the arrest of Karadzic, we have jumped over a big hurdle on the pathway toward European integration" (B92 2008b). Foreign politicians are the ones who also focus on victims, justice and reconciliation, e.g. White House Press Secretary Dana Perino: "... as there is no better way to pay hommage to the victims of war crimes than to bring their perpetrators to justice" (B92 2008c), ICTY Chief Prosecutor Serge Brammertz: "This is a very important day for all the victims that have waited for this arrest for more than a decade" (BBC News 2008b). The Balkan politicians see the Tribunal rather as a means for the EU and NATO accession than a judicial mechanism which brings justice, establishes historical record and could promote reconciliation.
Conclusion
During its fifteen years of existence the Tribunal has, to a certain extent, successfully accomplished its main aims, namely to try those responsible for war crimes, establish accountability, deter further crimes as well as to create a historical record. While the ICTY has narrowed the scope of permissible lies, these lies persist in a society marked by ethnic affiliation in which the Tribunal does not have a respectable position. The ICTY's negative impact on societal peace can be explained through the lack of a comprehensive state action plan for reconciliation, a questionable preparedness of civil society and political elite to engage in a truthful dealing with the past as well as the broad distrust in the ICTY - based on its remoteness and estrangement, selectivity of the accused, inattention to the victims and stipulated by the media and politicians' abuse of ethnic affiliation. Above all the Tribunal represents a means for accessing international organizations and not for truth, peace and reconciliation.
The role of justice in reconciling Bosnian society could be strengthened through the War Crimes Chamber with which BiH is gaining responsibility for building a democratic state based on the rule of law. Additional truth projects such as the foreseen Regional Commission for Establishing Facts about the War Crimes in Former Yugoslavia could represent a complementary force to judicial mechanisms on the path to truth and reconciliation. Such instruments could engage civil society in a process of sharing individual, experiential truths, facing them and finding acknowledgement. The ICTY's work demonstrates that knowledge, trust and involvement of civil society, media and politicians are necessary for a judicial mechanism to impact a society, especially when also aiming to promote reconciliation.
Literature
Primary sources:
B92 (2008a) OHR: Arrest good for Serbia, region. 22 July 2008. http://www.b92.net/eng/news/region-article.php?yyyy=2008&mm=07&dd=22&nav_id=52106 (10 August 2008).
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[1] Text of the Resolution on Impunity adopted by the UN Commission on Human Rights at its 61st session. E/CN.4/2005/L.10/Add.17. 21 April 2005. http://www.derechos.org/nizkor/impu/impuresol.html (10 August 2008).
