Srebrenica and the ICTY

Last week was the 25th anniversary of one of the worst atrocities in the world, and the first in Europe, since the Second World War. From July 11th through the 22nd, over 8,000 men and boys were rounded up and massacred in and around the town of Srebrenica, in present day Bosnia-Herzegovina. The victims were targeted Serbian paramilitary forces for being Bosniaks, a predominantly Muslim ethnic group that were among the peoples vying for an independent state following the collapse of Yugoslavia.

The crimes in Srebrenica were part of the broader Yugoslav Wars that broke out almost as soon as Yugoslavia began to unravel in the early 1990s. Over the span of a decade, several different conflicts broke out, most characterised by indiscriminate slaughter, the targeting of civilians, war rape, and other crimes against humanity. Many concepts and principles in international law, particularly with respect to criminal and human rights law, were refined or developed in relation to wars; the term “ethnic cleansing” originated as a euphemism among the perpetrators of crimes like Srebrenica.

Having studied genocide and political violence in undergrad, and international criminal and human rights law in law school, Srebrenica is deeply seared into my mind. As my time and willpower are both short in short supply, I’ll focus on the sole bit of justice and redemption for humanity that emerged from this decade-long horror show: the International Criminal Tribunal for the former Yugoslavia (ICTY), established by the United Nations specifically to address crimes like Srebrenica perpetrated during the conflict.

ICTY logo.svg
Official logo of the ICTY
The Tribunal’s headquarters in The Hague, Netherlands

The Yugoslav War had just started when the Tribunal was created, and the massacre at Srebrenica would not occur for another two years. The idea of prosecuting crimes committed, or yet to be committed, in the former Yugoslavia had been proposed by Germany—the last country to be subjected to a war crimes tribunal, at Nuremberg after WWII, up until that point. Remarkably, all fifteen members of the UN Security Council agreed to set up a special court that would try perpetrators of war crimes and crimes against humanity. It is hard to imagine such unanimity today.

Of course, there is something deeply grim about the UN—and even its most powerful members—failing to prevent or stop these horrific crimes, yet setting up a court to address them in the meantime. But as any student of international relations knows, such as the power of state sovereignty, the principle that no country should interfere in the affairs of others accept in the most extreme circumstances (i.e., a world war). Among other reasons, the horrors in the former Yugoslavia were probably just too contained in these small, newly-minted countries for any country to be willing to risk the money and troops (a problem we’re all too familiar with years later, given the continuing bloodletting in Syria).

But, as The Economist and others have pointed out, the ICTY, though too little and too late in its prosecutions, did bring justice to virtually all those who planned, led, aided, or were involved in the atrocities at Srebrenica and elsewhere. It’s difficult to overstate how remarkable it was the such an institution was every established, let alone allowed to do its work, even by the most powerful global interests.

As the Bosnian war ground on and Serb forces besieged Sarajevo, the Bosnian capital, foreign powers could not agree how to respond. No one wanted to send troops to separate the parties. But they all approved the prosecution of war criminals, so backed the establishment of the tribunal. At first the court, based in The Hague, had little money. It also had no police of its own to arrest anyone indicted. But over the years its influence increased. It demanded that the Balkan states and others carry out arrests, and also got help from NATO-led peacekeepers in Bosnia. It succeeded in making the handing over of those indicted a political issue, with sanctions slapped on Serbia and Croatia when they dragged their feet.

Some of its achievements were legal and some political. Several of the most evil of the wartime actors were imprisoned. The tribunal gave victims and civilians a voice, and often justice, in a way that would not otherwise have been possible. It created new legal precedents. Sexual violence is now considered a war crime. It established the groundwork for other courts, including those that looked into horrors committed in Rwanda and Sierra Leone, and the International Criminal Court (ICC). Its 2.5m pages of transcripts provide an extraordinary archive. It established that genocide had taken place when some 8,000 Bosniaks (Muslims) were murdered as Srebrenica fell. To weigh against all this there must be the acknowledgment that many believe that justice was not always done. The hopes that many had for the tribunal have at times been disappointed. It did not accelerate the process of reconciliation. Many believe there was interference, from America and elsewhere, in its work. In cases related to Kosovar Albanians, in particular, prosecutors alleged witness-tampering.

According to Eric Gordy, a sociologist at University College London’s School of Slavonic and East European Studies, the court tried to end impunity for war crimes and in this “it was partially successful”. It was founded at a time when there was still some consensus about the need for this. Now, sadly, that is no longer the case. There is no international tribunal indicting anyone for war crimes in Syria. Russia and America are among those countries that have either withdrawn from the jurisdiction of the ICC or never ratified its statute. It remains to be seen whether the Yugoslav tribunal will become a relic from a more hopeful time or a trailblazer in a cause that was always bound to suffer setbacks.

For my part—and I say this as a privileged Westerner who is not even remotely impacted by these events—I believe the ICTY was a success. It indicted 161 individuals, from common soldiers all the way to prime ministers. Ninety defendants were convicted and sentenced, including the main perpetrators of the Srebrenica massacre.

On a broader level, the Tribunal developed international law and justice more substantively than any body since Nuremberg. , until very recently, it was the only court judging crimes committed as part of the Yugoslav conflict. Its lengthy and highly detailed proceedings helped gather and establish extensive facts about the horrors committed. Thousands of victims gained justice and a voice, including a myriad of eye witnesses, survivors, and the loved ones of victims. Several concepts in international criminal and human rights law were fleshed out or adjudicated for the first time. Many of the Tribunal’s decisions and findings would go on to influence national and international courts worldwide, including the tribunal established in the aftermath of the Rwandan Genocide.

Justice delayed is still justice served, for whatever that is worth. The Tribunal has not been without its criticism and shortcomings. It does not make up for the overall indifference and cynicism of the international community, which has hardly improved. And it certainly does not restore the hundreds of thousands of lives destroyed or traumatized in the former Yugoslavia, with survivors still shattered and wounded. But for much of human history, the very concept of a war crime—let alone prosecuting one—was alien. Indiscriminate looting, rape, and slaughter were acceptable against enemies or conquered peoples, broadly construed. The arc of progress, of human morality and fairness, is long, slow, and rarely linear. So many people have suffered and died along the way, and I shudder to think how many more will until crimes like Srebrenica are no more.

Bosnian Serb leader denies genocide in Srebrenica massacre
How much longer until this becomes a thing of the past?

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