/ 8 January 2018

Yugoslavia tribunal left an invaluable legacy

Fadila Efendic touches the gravestones of her son and husband at the Potocari genocide memorial centre near Srebrenica
Fadila Efendic touches the gravestones of her son and husband at the Potocari genocide memorial centre near Srebrenica


December 21 marked the end of an era for international criminal justice. On this day the International Tribunal for the former Yugoslavia (ICTY) closed its doors. Established by the United Nations Security Council in 1993 to try those most responsible for violations of humanitarian law during the conflict in the Balkans, the tribunal started its work in The Hague when the war in Bosnia was still raging. As the first war crimes tribunal since Nuremberg, the tribunal gripped the public imagination.

When the first instance of post World War II ethnic cleansing broke out in Europe, the international community decided to a create a court by means of UN Security Council fiat to try the perpetrators. The hundreds of concentration camps created by Serbia evoked the worst memories of World War II and shocked the collective conscience of the international community.

South Africa was not removed from these developments. Justice Richard Goldstone was approached by Nelson Mandela to serve as the first chief prosecutor. It was a daunting and unprecedented task.It was Goldstone who signed the tribunal’s first indictments, including those against Radovan Karadžić and Ratko Mladić for the Srebrenica genocide. Both Karadžić and Mladić, two of the most senior Bosnian Serb leaders were only extradited to The Hague in 2011, indicating the ongoing difficulties the tribunal had in obtaining state co-operation.

In light of the fact that the South African government’s intention to withdraw from the International Criminal Court, it is worth remembering that Mandela strongly supported the international effort to prosecute international crimes of crimes against humanity, genocide and war crimes. He further saw an important role for South Africa within this effort. When the Rwanda tribunal was established two years later, Goldstone initially acted as prosecutor of both tribunals.

The tribunal was not without its share of drama. I interned at the Yugoslavia tribunal in 2001 and remember the excitement when Slobodan Miloševićwas transferred to The Hague in the summer of that year. Journalists from major news outlets camped out on the grass outside the tribunal building. Christiana Amanpour reported daily. The Miloševićcase came to an abrupt end in 2006 when he was found dead in his cell after suffering a heart attack. Conspiracy theories abounded in the aftermath of his death.

And in November 2017, just a month before the closure of the tribunal, the Bosnian Croat commander Slobodan Praljak shocked the world by drinking poison in court while protesting his conviction for war crimes. A Dutch hospital confirmed that he died of heart failure after ingesting potassium cyanide.

What effect has the ICTY had on communities in the former Yugoslavia? This question has become increasingly interesting to tribunal observers and commentators.

Academics have argued that when the interests of the national and international communities conflict, the tribunal gives priority to the interest of its international stakeholders over local ones. They contend that the tribunal was not designed primarily to affect local stakeholders in Yugoslavia.

But the tribunal’s legacy in the region matters. Its physical removal from the scene of the conflict substantially limited its visibility and relationship with stakeholders. Public opinion regarding the work of the tribunal often depended on the ethnic identity of the accused. Within the Balkans the tribunal was consistently accused of having an anti-Serb bias. But not all Serbs reject the tribunal’s contribution. When asked about the legacy of the tribunal in the Balkans, a Serbian student said it managed to place Srebrenica-denial on a par with Holocaust-denial.

When the tribunal finally closed, it was more with a bang than a whimper. The tribunal has made an immense contribution to the discipline of law called international criminal law. It can be argued that the tribunal, to a large extent, helped create this body of law. Its judgments have further contributed to creating a historical record and provided the basis for future transitional justice initiatives in the region.

The tribunal was not only controversial but a legitimate target of criticism. It was tremendously expensive and was often criticised for its slow pace. What is clear, however, is that the tribunal paved the way for the establishment of the International Criminal Court and numerous other ad hoc tribunals and special war crimes courts.

The victims of the ethnic cleansing in the Balkans would largely have been forgotten but for the tribunal. For all its shortcomings, it was a worthy successor to the epoch-making Nuremberg tribunal. In terms of the question of whether the tribunal has contributed to long-term reconciliation in the Balkans, one has to resort to that old cliché: only time will tell.

Mia Swart is a research director at the Human Sciences Research Council’s democracy and governance unit and is a visiting fellow at the Brookings Centre in Doha