The Broken Path to Reconciliation in Bosnia and Herzegovina

The International Criminal Tribunal for the former Yugoslavia (ICTY) has delivered judgments adjudicating some of the most heinous crimes committed in the Balkans. As the Tribunal’s work comes to an end, judges leave behind a ‘memorial of words’ providing a vivid description of events and sites of atrocities. However, today local authorities in Bosnia and Herzegovina (BiH) use the same places where crimes were committed as a political tool of denial and battleground of ethnic divisions. This chapter assesses the tensions between the truth recounted by the ICTY and the construction of the local collective memory through an analysis of how the sites of atrocities are being used. This chapter argues that, while international justice offers some resolution to a post-war divided society, a full reconciliation is only possible when the communities acknowledge the occurrence of atrocities and the right of victims to visit these places to mourn and remember.

The (Lack of) Impact of the ICTY on the Public Memory of the War in Bosnia and Herzegovina

This chapter tackles relations between facts established at the Tribunal and acknowledgement of these in the public domain of post-war Bosnia and Herzegovina (BiH), where three ethnically defined and mutually contesting interpretations dominate the public forum. Examining how this problem unfolds, this chapter follows the development of the public memory about the war. It intersects with the relevant International Criminal Tribunal for the former Yugoslavia (ICTY) jurisprudence, aiming to detect potential changes in the dominant narrative. It analyses public debates whether the war was a product of Serbian aggression or a civil war within Bosnia; whether ‘ethnic cleansing’ was pre-planned by the Serbian side or an inevitable consequence of the war (examined through the Prijedor case); whether genocide was the overall aim of the Serbian side or whether it took place only in Srebrenica; and whether the Croatian side was a defender of, or aggressor in BiH (examined through the Ahmići case).

Translating and Interpreting at the ICTY

Procedures developed at the International Criminal Tribunal for the former Yugoslavia (ICTY) in response to issues concerning evidence translation and testimony interpretation have provided international criminal courts and tribunals with expertise and insight. These will shape the profession for decades to come. As to the impact on jurisprudence, the Conference and Language Service Section (CLSS), being part of Registry, played a key—often underestimated—role in ensuring the equality of arms between the parties. In a larger sense, the provisional nature of translated texts and interpreted testimony encourages challenges and disputes, and these discussions move the proceedings to a greater understanding; precisely because the obstacles presented by dealing with other languages and cultures force everyone in the courtroom to pay more attention to communication and meaning. It is this constant querying of what everyone thought they did or did not understand that takes these complex trials to completion and comprehension.

Defence Investigative Ethics

The investigation of war crimes has proved to be a challenging task for the Defence at the International Criminal Tribunal for the former Yugoslavia (ICTY). At the Court’s infancy, civil trained defence counsel with no experience in adversarial party-driven procedures were unfamiliar with aspects of case preparation and trial advocacy, such as gathering evidence by conducting their own investigation, or cross-examination through leading questions based on a coherent theory of the case. These adversarial modalities also came with specific ethical duties. This chapter offers some practical advice and best practices relevant to Defence Counsel practising in national jurisdictions of the former Yugoslavia region and elsewhere, where adversarial modalities similar to those found in the ICTY procedure have been adopted in reforming their criminal procedures—transitioning them from civil law to a more hybrid system.

Meandering Jurisprudence and Unanticipated Legacies

Assessments of the International Criminal Tribunal for the former Yugoslavia’s (ICTY) jurisprudential legacy tend to focus on the ICTY’s relationships with domestic criminal law. This chapter turns a new corner by examining the ICTY’s unexpected footprints in domestic civil litigation, specifically private tort claims brought in the US under the Alien Tort Statute (ATS, or Alien Tort Claims Act). Incorporation of international (including ICTY) materials in US ATS litigation remains a contested matter in which individual judges (both trial judges and appellate judges) demonstrate idiosyncratic behaviour. Some are ‘international law ignorers’, some are ‘international law enforcers’, some are ‘international law translators’, and some are ‘international law creators’. On this note, the ICTY’s legacy also touches upon broader questions of public international law and transnational legal migrations.

The ICTY is Dead! Long Live the ICTY!

The chapter sets the International Criminal Tribunal for the former Yugoslavia (ICTY) legacies into a broader context of international criminal justice. It presents different approaches towards the many legacies of the ICTY. The chapter engages with the several phases that the Tribunal has passed, discussing their positive and negative points. It then examines the normative legacy of the ICTY, arguing that, although some gaps exist, the overall record of the ICTY is marked with several normative innovations. The chapter then visits the procedural legacy of the ICTY, in the sense of how the Tribunal made justice heard and seen. Lastly, the chapter discusses the institutional culture of the ICTY and its legacy to other international criminal tribunals. With this analysis, the chapter claims that the ICTY legacies are living beings, which will continue to be transformed throughout the history of international criminal justice.

The Last Testament of the ICTY

This chapter presents reflections of Judge Agius, the last president of the International Criminal Tribunal for the former Yugoslavia (ICTY), on the experiences of the tribunal and its legacies. It discusses the emergence and unique nature of the tribunal, including its impact on other international criminal institutions. This contribution discusses the specific areas of legacy of the Tribunal, the role of different agents (judges, prosecutors, defence counsels, legal officers, and staff) and the ICTY’s larger contribution to a new era of accountability. The chapter weighs the successes and challenges of the ICTY, such as bringing perpetrators of sexual violence during conflict to justice; the protection of witnesses and victims before the ICTY; the importance of Outreach; and gender parity inside the Tribunal work. The chapter argues that the ICTY overall legacy is positive. However, much remains to be done, within and beyond the IRMCT, to encourage cooperation and genuine investigations and prosecutions at the domestic level.

Muzzling the Press

Chapter 16 deals with contempt cases against journalists. Restrictions on freedom of the press have been striking at international criminal tribunals, where violations of protective measures granted to, for example, witnesses have led to several landmark yet controversial prosecutions of journalists for contempt of court. This chapter examines these practices from a human rights law perspective, as part of the recognized exceptions to the principle of public trials. In doing so, it reviews the law and jurisprudence of international and hybrid tribunals, including the International Criminal Tribunal for the former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL), and the International Criminal Court (ICC). In addition, it surveys contempt of court, offences against the administration of justice, and the law on reporting restrictions in a number of common law and civil law domestic jurisdictions. It concludes that the right to freedom of the press in the context of international criminal trials is not absolute, and that limits ordered by international tribunals, despite the polemics they may cause, are actually fully in line with both human rights law and domestic legal trends.

Narratives of Justice and War in Croatia

This chapter examines the relationship between war and justice narratives in Croatia, based on focus groups, dyads, and interviews conducted in 2014 and 2015. The war narrative is based on a pervasive conception of self-defence against a larger Serbian aggressor. It contrasts with a justice narrative that is focused on the norms of transitional justice and the expressivist effects of trials. The two narratives exist in the same space and interact with each other. This chapter outlines these narratives and analyses their reproduction. It argues that the emotional war narrative’s strength makes it difficult for the justice narrative to take hold and, consequently, for the trickle-down expressivist effects of the International Criminal Tribunal for the former Yugoslavia (ICTY) and human rights norms to occur. This tolerance for deviance was based on notions of legality that were defined differently in relation to Croats and Serbs.

Punishing for Humanity

In determining sentences, the ICTY chose to develop global norms rather than adhere to, or even be strongly guided by, the sentencing norms of the former Yugoslavia. Although the ICTY Statute required the judges to consult national practices in determining sentences, they interpreted this requirement loosely, reserving to themselves a wide discretion that enabled them to identify a range of global sentencing objectives and factors to apply in pursuit of those objectives. The global norms the ICTY developed included norms rejecting harsh punishment, applying consequentialist punishment rationales, privileging gravity as the central sentencing factor, and endorsing broad judicial sentencing discretion. In developing these norms, the ICTY helped to build a foundation that other international courts, and perhaps some national courts, are likely to rely on for the foreseeable future.