The International Criminal Tribunal for the Former Yugoslavia (ICTY) will close its doors after 24 years, leaving behind a heritage that the countries in the region have to find a way to deal with.
The Tribunal was the first international court after Nürnberg and Tokyo, which processed war crimes. During more than two decades of its work, 161 persons were indicted. These persons included presidents of countries, prime ministers, high-ranking military and police officials. They all were indicted or arrested (some after having fled the justice for almost two decades) or they turned themselves in voluntarily, or they died before or during the arrest.
Out of these 161 accused persons, 90 were prosecuted and found guilty. 19 were acquitted. Among those that were tried was also a woman, which is a situation that does not happen frequently before courts that prosecute war crimes.
In these 24 years, the Tribunal heard testimonials of 4,650 persons that spoke about the crimes that were committed, whether from the perspective of victims, perpetrators or witnesses. More than 2.5 million pages of transcripts from the courtroom are left behind. They are unfortunately not easy to search in the online database, but they do constitute a valuable archive.
These transcripts, like many other things in the Tribunal, were made in a strange way. Witnesses that came from the former Yugoslavia spoke in their mother tongue, and then these testimonials were translated, and transcripts were made based on the translations and then translated to the languages of persons that used to live in the former Yugoslavia. An absurd process that says a lot about the Tribunal itself.
There are also numerous artefacts that are currently still hidden in the boxes of the unmanageable archive of the Tribunal, and will stay there. These artefacts are currently not available to anyone, not even to the researchers, and it is still unclear how they will be treated in future.
We will probably never know how many artefacts were destroyed, and even in cases that are known, we will not know who was responsible for such destruction. Just as in case of more than 1000 artefacts from Srebrenica, which were destroyed after years of inaccurate storage. These artefacts are a true treasure for family members, destroyed as a result of the negligence of employees of the Tribunal. We have already learned that only the UN and their employees stay untouchable and that there is no court that can try them.
In many cases, the Tribunal passed judgments that were precedents in international law. Maybe one of the most important ones relates to the judgment according to which war-related rape and sexual abuse was recognised as a war crime and crime against humanity, whereas the testimonials and sentences imposed encouraged the survivors to talk about this crime, too, not only in the region, but worldwide.
On the other hand, the Tribunal failed to seize the opportunity to prosecute persons responsible for the war-mongering propaganda. So that those that incited to war and impacted the creation of the hate speech, persons that are still alive, remained unpunished. However, in quite a number of judgments, the role of the media and those that created the propaganda is being mentioned, which is part of the heritage, and it is up to us to find a way to use this.
In one of the interviews this year, the President of the Tribunal, Carmel Agius, said that the ICTY was also leaving behind an enormous collection of established facts. ”We are giving you the truth about what happened. We are not offering reconciliation, because that is not the mandate of this tribunal”, he said.
The mandate of the tribunal has never been reconciliation, it could never have been reconciliation. However, on many occasions, the tribunal failed to find a way to stop manipulation with established facts or at least to publicly condemn such attempts and offer an accurate interpretation. There was no limitation regarding this, but there was also no willingness or interest.
Politicians from the region, their lackeys in the media, NGOs, even in the academic community, thus used the lack of interest to interpret established facts the way it suits them. By frequently using the same rhetoric as immediately before or during the war, they kept the hate speech alive. We therefore learned that those that interpret established facts are those that determine the direction of the whole process of facing the past, and the potential reconciliation process. And this fact is terrifying, given the fact that the persons in power are either the very same persons, who were actively involved in the war, or persons close to them, i.e. persons who are still supporting the same ideas. What is even worse is the fact that they interpret facts based on their personal interests instead of the public good, and the very idea of healthy facing the past is not beneficial for them, because it might potentially end their reign.
However, there is no doubt about the fact that the heritage from The Hague can be an important signpost on the way of facing the past. In some countries of the region, this process was mostly initiated by NGOs or groups of citizens, the responsible media and artists. There are many such examples in Bosnia and Herzegovina, quite a lot of them in Serbia and Kosovo, but considerably fewer in Croatia, which is also obvious based on reactions to the judgment in case of leaders of Herzeg-Bosna.
Maybe the best example of how it is possible to achieve progress based on facts established in The Hague and create an environment in which facing the past and a potential reconciliation are discussed is the one in Prijedor. In this town, citizens started discussing issues on their own, without any formal organisation, and finding ways to talk about things that happened during the war. When it comes to their activities, they largely rely on facts established in The Hague. And the atmosphere in this town is changing, maybe slower than those participating in the process would like, but the change is obvious.
The civil society sector, the media, educational institutions, researchers, artists, etc. have the task to find ways to extract lessons from the heritage of the tribunal and interpret them. Responsibly and conscientiously. And far away from politicians. Another possibility is the model from Prijedor, in which citizens, tired of other persons’ interpretations and manipulations, started creating their own model for facing the past based on established facts. Of course, there is always a great danger of manipulation. For this reason, educational institutions play an important role, which is currently mostly negative, because the existing educational system itself is based on manipulation and lack of professionalism and poisoned by the domestic politics.
Only a process of facing the past that is not tainted by the propaganda and manipulation has a chance to create a space for discussions about reconciliation and to make it possible to define that term within our social framework. Because reconciliation is not the same in all societies. According to advocates of the transitional justice model, the process of reconciliation is a result of a series of mechanisms that are being applied, which also include consultations with the media, civil society sector, but also political moves.
However, the concept of transitional justice itself has become questionable a long time ago, so that it is necessary to continuously search for new approaches and models. The essence lies in finding a way for parties, which until recently fought a war, to start discussing the past in a way that will not cause new problems and will not include hate speech. And the search for reconciliation or facing the past is always painful. It brings back some old wounds, and it has also been scientifically proven that it causes a psychological trauma in participants. However, there are cases in which it ultimately improved the relations within the community.
Facts are now available and what awaits us is the process of building a responsible society that will know how to interpret them in such a manner that they contribute to a collective healing.