Back in 2009 I wrote two hefty pieces here about ICTY and its role in bringing to justice Balkans war crimes suspects.

This one, on the occasion of the viewing of a film Storm:

I said that in this sense the film had done a good job, bringing out a number of basic legal and procedural themes which were not always obvious to the general public.

Nonetheless, as an account of the way things work in real life, it looked, ahem, unconvincing. The driving force behind the betrayal seemed to be a jovial but sly senior EU official, keen to move the Balkans countries towards EU membership for the Wider Good. The real-life problem was not that the EU did cynical deals. Rather that it was unable to do any deals …

A lawyer in the audience pointed out firmly that the main victim in the film was Justice; there had been obviously improper (and obviously unrealistic) collusion between the prosecutors and judges, for no good reason.

Another woman from Amnesty in the audience remonstrated with what she saw as my ‘dismaying’ attitude to war crimes trials in Serbia and elsewhere, which she said had done fine work. London had been quite right to respond to the request from Belgrade to arrest Ganić on war crimes charges – other Belgrade war crimes arrest warrants issued against eg senior Kosovar leaders had been ignored by other European partners, undermining the credibility of local war crimes trials. (Note: time ran out and I had no chance to reply.)

All in all, a fascinating evening. Two powerful lines from the film stand out:

“What are these trials for?”

“This (ie ICTY) is not therapy…”

And this one on the wider principles involved:

Key point: ICTY focuses only on ‘bringing to justice’ individuals charged with specific war crimes or crimes against humanity. It is not there to give victims of such crimes any special satisfaction (‘therapy’). In fact they may well be very dissatisfied at seeing the elaborate efforts made to ensure that people accused by ICTY get a fair trial. And the cost of the whole business.

Since it was set up in 1993, the cost of ICTY has soared beyond anything the UN (and the nations who foot the ICTY bill) expected.

The early years were cheap – very few defendants. But then it started to get expensive, jumping from $25m per year in 1995 to $96m in 2001, then steadily up and up towards the $150m or so for 2010.

That’s $3 million a week, going to heavy legal fees, registry work, translation work, witness protection, judges and the rest. Accused persons (ie their lawyers) get legal aid…

… The core problem with these trials is that they appear to proceed in a sort of local moral and political limbo. Each community concerned likes to see a conviction of someone from another community who brutalised their fellow ethnic cousins. But they hate it when ‘their’ court is expected to put on trial one of ‘their’ people, and hate it even more when a court elsewhere in the region looks to go lightly on someone from ‘its’ community.

And above all they suspect that local courts pull their punches in looking at ‘their’ war crimes suspects? Why, cry Serbs, has the Bosnian legal system for nearly 20 years done next to nothing about the 1992 Dobrovoljacka St killings?

In short, the outcomes you like are obviously fair, those you dislike are blatantly and appallingly unfair – and show that (unlike you) the ‘others’ can’t be trusted to look objectively at these sensitive issues.

The harsh reality is that every community in former Yugoslavia sees itself as a Victim of something or other. And a central part of being a Victim is that you never get Justice.

* * * * *

The ICTY is a sprawling attempt to bring Justice to the former Yugoslav space. It was set up to be the moral and procedural opposite of the ‘Nuremberg’ trials after Word War two when the victorious Allies dispensed quick and maybe dirty justice to droves of former Nazis.

But these days process and morality are very expensive. The sheer cost of bringing Balkans war crimes indictees to trial and then painstakingly establishing what they did or didn’t know/do is startling. After a while the process takes on a life of its own, keeping hordes of lawyers and interpreters in plump reliable fees years and years. Would the world in general and eg Bosnia in particular be a better place if a good slab of that money had been spent on helping the families of war crimes victims or explicitly promoting ‘reconciliation’?

What’s noteworthy about all these currently fashionable international criminal legal proceedings is that they may or may not bring some sense of formal ‘justice’ but they certainly do not bring ‘closure’. That requires something like the South African Truth and Reconciliation process, where amnesty was given in return for frank admission of responsibility for crimes during the apartheid period. But is that fair either? If so, to whom? Should honest confession be enough to avoid ‘punishment’?

It all boils down to the timeless conundrum. You don’t get substantive peace without substantive justice. But you don’t get much justice without peace. There is a vast inconclusive literature on the subject. See eg this blog.

In the former Yugoslavia case, no-one agrees on what the ‘fairness’ baseline even is. Is it ‘fair’ for (say) Serbs (and Albanians and Bulgarians and Croats) to prefer to live in one state just as (say) Slovenes do? If it is fair in principle for them to want that, what means to accomplish that goal are reasonable? How far do any international precedents established for the former Yugo space apply elsewhere to (say) Kurds or Russian-speakers in Crimea? What happens when one community has a strong ‘historical’ claim to territory but a different community now occupies it?

See the nutty incoherent approach taken at Dayton where the Americans rammed through Peace for their own domestic purposes:

There were in principle three ‘balanced’ ways to end the war in Bosnia:

  • One Country, Three Peoples, One Political Space:  no subdivisions on an ethnic basis, one person one vote, strong institutionalised arrangements to protect equality and minority rights
  • One Country, Three Peoples, Three Entities:  give each of the three rival ethnic communities (Bosniac/Muslim, Serb, Croat) some sort of territorial reassurance within an overall single confederal framework.
  • One Country, Three Peoples, Many Entities:  a Swiss-style canton system comprising a single polity, aiming to diffuse ethnic conflict.

The solution which made no philosophical sense was chosen at the Dayton Peace Conference in 1995: One Country, Three Peoples, Two Entities.  It emerged from a previous phase of the 1990s’ conflict when the Americans and Germans brought great pressure to bear on the Bosniacs/Muslims and Croats to stop fighting each other and join forces against the Serbs.

Under this settlement the Bosniacs and Croats dominating one Entity (the Federation) got too little and typically disagree, creating unaffordable bureaucracy at all levels. The Serbs dominating the other Entity (Republika Srpska) got too much…

Once these existential conflicting demands are out there in the public consciousness, inter-community trust erodes and people vote for ethnic fire insurance.

Result?

Not much positive.  We see the morally dismal spectacle of Republika Srpska leader Milorad Dodik openly siding with the Karadžić cause:

“We dedicated this dormitory to a man who is without doubt one of the founders of the Republika Srpska, to Mr Radovan Karadzic,” said Milorad Dodik, the Serb Republic nationalist president, while opening the dormitory in Karadzic’s wartime stronghold of Pale along with Karadzic’s wife and daughter.

Dodik said the moment was “strongly symbolic” and chosen ahead of the Karadzic verdict after a five-year trial that he said was “humiliating for the Serb Republic”.

“We see that this is selective justice, that it’s not the justice for all parties, that it is directed against one people and its representatives…”

And a full twenty years after Dayton the IMF and World Bank are still lugubriously calling for ‘urgent’ reforms in Bosnia.

Urgent?

How to have Peace or Justice if Hatred is what it’s really all about? And Hatred does not do urgent.

But what I have seen in Bosnia – that is something different. It is hatred but not limited just to a moment in the course of social change, or an inevitable part of the historical process; rather, it is hatred acting as an independent force, as an independent force as an end in itself.

Hatred which sets man against man and casts both alike into misery and misfortune, on drives both opponents to the grave; hatred like a cancer in an organism, consuming and eating up everything around it, only to die itself at the last; because this kind of hatred, like a flame, has neither one constant form, nor a life of its own: it is simply the agent of the instinct of destruction or self destruction. It exists only in this form, and only until its task of total destruction has been completed…