Eroding Impunity for International War Crimes: Criminal Tribunals or National Reconciliation Commissions?

Next week, the International Criminal Tribunal for the Former Yugoslavia is hosting a conference to look back at the 17 years of criminal trials they have held since their founding. Looking back and looking forwards at the legacy of the ICTY and truly calculating its impact is a daunting prospect. Since its creation, the ICTY has been charged with prosecuting the most egregious violations of international humanitarian law during armed conflicts in the Balkans in the early 1990s. The UN Security Council established the Tribunal with Resolution 827 in 1993, with the conviction that “the prosecution of those most responsible for the commission of atrocities during the conflicts would contribute to the restoration of peace and security in the former Yugoslavia.”

Almost two decades later, the spectre of armed conflict no longer looms on the horizon for the former Yugoslav republics, but questions of nationalism and identity are still pervasive. Today’s peace in the Balkans is an uneasy one, punctuated by political flareups. The 2008 declaration of independence by Kosovo is but one example of the recent history of contested outcomes; the matter is still before the International Court of Justice.

But perhaps the ICTY has helped to entrench the notion of turning to courts – whether domestic or international – as a recourse for grievances. “Assessing the Legacy” of the ICTY considers exactly these questions. Although the Tribunal has indicted over 160 person, including various heads of state and other political and military figures, critics still charge that the Tribunal has been costly and not effective enough.

With a budget of hundreds of millions of dollars per annum, international justice sure doesn’t come cheap. Some have even suggested too much money is spent on things like overly comfortable accomodations for the accused persons.

Please note, furnished accomodation provided for detainees, not legal interns!

TYPICAL PRISON CELL WITHIN THE ICTY: Nota bene - furnished accomodations in the Hague are gratuitously provided for detainees, not legal interns!

On the one hand, the ICTY represents a remarkable resurgence of international law. Not since the Nuremburg trials which followed the Second World War has an international criminal tribunal been operational. The ICTY offered new binding interpretations of the Geneva Conventions and other instruments of international humanitarian law. It has paved the way for tribunals for the conflicts in Rwanda, Sierra Leone and Cambodia. With a staff of 1,200 lawyers, critics have even charged that the ICTY exists more for the legal community than the Yugoslav people.

What can be done to mend the rocky relationships between the Tribunal and its primary constituency – those affected by the wars?

Perhaps one answer lies in recognizing that criminal tribunals will never fully respond to the need for national reconciliation in a post-conflict setting. Prosecuting and jailing individuals cannot restore a sense of unity or purpose to a divided country, or many divided countries in the case of the Balkans. Nations like South Africa chose instead to bypass assigning criminal liability leftover from the apartheid era, and instead move forward with a “Truth and Reconcliation Commission” wherein parties including the African National Congress and the apartheid-era military provided extensive documentation about their human rights violations. Civilians were killed, tortured and persecuted by multiple state and non-state actors throughout the apartheid era, yet an “Amnesty Commission” was empowered to absolve people from liability, as long as their apartheid-era abuses were politically motivated, proportionate, and there was full disclosure by the person seeking amnesty. Chile, El Salvador, Ghana, Liberia and East Timor are but a few of the nations holding similar commissions and offering amnesty rather than pursuing criminal liability for wrongdoing during armed conflict.

These national reconciliation commissions also have their critics. Victims who have lost family members, or faced torture or abuse sometimes feel as though they have not obtained justice through Truth and Reconciliation Commissions. Yet many victims also claim the ICTY has not delivered justice either.

The ICTY’s successful incarceration of  war criminals is a success story in the eyes of many. Nonetheless, societies entering a post-conflict era would do well to recognize that criminal tribunals alone cannot restore nations, just as criminal liability in domestic crimes cannot restore victims. Hosting a conference on assessing the Tribunal’s legacy is an excellent opportunity to consider other elements of post-conflict rebuilding processes which are critical in restoring the ICTY values of peace and stability.

Alexandra Dodger Alexandra Dodger is in her third year of McGill, pursuing an LL.B./B.C.L. with a focus on international criminal, immigration, and conflict resolution issues. She has profound affections for French poetry, British accents and old David Bowie records.

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2 Responses to “Eroding Impunity for International War Crimes: Criminal Tribunals or National Reconciliation Commissions?”

  1. Philip Duguay says:

    If international law is to continue as a concept there have to be international venues in which it can be exercised. Otherwise it’s just global diplomacy/power politics. How can you have a body of law without a court to ‘try’ it in?

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