Transitional Justice and Injustice in Transition

Assessing the Penalisation of Wartime Violence in Light of the ICTY Legacy

Axelle Reiter

STANDARDS OF EFFECTIVENESS: MANDATE AND AIMS OF THE ICTY

International law relies on the principles of criminal law to deal with wartime violence and past human rights abuses in postconflict societies. The appropriateness of this approach is presumed, rather than grounded in any actual assessment of its benefits, and alternative means of conflict management are sidelined. The need to test this uncritical assumption calls for an examination of the effectiveness of international criminal justice in meeting the aspirations of the international community (i.e., the international political community that has presided over the creation of international criminal tribunals) and generating the outcomes it is meant to bring about; here, focusing on the penalisation of violence in the Socialist Federal Republic of Yugoslavia (SFRY) before the International Criminal Tribunal for the former Yugoslavia (ICTY). Criminal law aims at determining the individual accountability of the accused for past offences. It is punitive and, although it also aspires to reach preventive and expressive or symbolic goals, its main object is retributive. Besides, the ICTY, which has just been closed having 'fulfilled' its stated mission, purported to fulfil various functions, some of which were associated with transitional justice mechanisms and human rights law, namely rehabilitation, deterrence, the protection of society, public reprobation and stigmatisation, the fight against impunity, redress for the victims, reconciliation and contribution to the peace process. The questionable methods adopted in order to achieve these objectives have resulted in severe violations of the rights of the accused and denial of victims' claims, as well as in undermining reconciliation in the region. These consequences can be traced back to the hybrid nature of international criminal justice and a lack of insights into the causes of wartime criminality. Whereas penal law traditionally rejects collective responsibility, criminological studies demonstrate that international crimes are group offences and manifest systemic violence.

This chapter analyses the causes of wartime criminality, the specificities of this form of violence, the adverse consequences of penalisation of violence by the ICTY, and the social reactions to international trials in the SFRY successor states and entities. It is divided into four sections. The first clarifies the ambitions of the ICTY and discusses the question of how they can be realistically circumscribed in order to provide standards against which to judge its usefulness and determine an operational benchmark for its success. It argues that the mandate and functions of the ICTY should have been cut down to the fulfilment of three main purposes: retribution, redress for the victims, and the restoration and maintenance of peace in the region. The second section examines the roots and distinctiveness of wartime criminality, the challenges posed by the penalisation of acts of systemic violence and the inadequacy of ordinary criminal law mechanisms to establish responsibility for mass atrocities. The remaining sections gauge the ICTY's effectiveness in delivering its three core aims and investigate the reasons for its failure to attain any of these objectives, a failure echoed in the local population's scepticism towards the institution. Finally, this chapter scrutinizes alternative options and advocates a switch of emphasis from penal responses to transitional justice mechanisms like truth commissions and compensatory solutions.

An assessment of the success of international criminal justice calls for an inquiry into its aims. One must then investigate what the prosecution of individuals in supranational fora effectively achieves, in order to determine whether they fulfil (or, as it turns out, do not fulfil) their explicit mandate and the broader expectations that the international community bestows upon them.

The famed statement by the International Military Tribunal at Nuremberg, that 'crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced,' lies at the core of international criminal law. Hence, international criminal law basically regulates the international responsibility of individual actors. Security Council Resolution 827 purported to establish the ICTY 'for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia' (§ 2). This allegedly unique function of the tribunal could not be divorced from underlying strategic goals. The Security Council adopted Resolution 827 in the frame of its 'primary responsibility for the maintenance of international peace and security' under Article 24 § 1 and Chapter VII of the UN Charter. After determining that the situation in the former Yugoslavia constituted 'a threat to international peace and security,' it put it forward that the prosecution of international crimes committed on its territory 'would contribute to the restoration and maintenance of peace' (Article 24, Preamble). Accordingly, the main criterion to appraise its adequacy from a teleological perspective was its effectiveness in contributing to the restoration of peace, deterrence of additional violence and the cessation of military hostilities, on the one hand, and the maintenance and consolidation of peace and security in the postconflict era, on the other (Futamura, 2008: 3–4; Kerr, 2000: 17). Thus ICTY aimed to support a lasting peace and long-term stability in the region through the reconciliation of erstwhile enemies. Yet, penalisation tends to be counterproductive on both counts: the indictment and prosecution of civil and military leaders reduce the realistic prospects of a negotiated ceasefire and prompt settlement of the conflict (D'Amato, 1994: 500–501), while the adversarial nature of criminal trials undermines the...