This podcast looks at international justice and the case of Serbia.
Recently, the debate around international tribunals received renewed attention. The question arose whether Gaddafi’s son, Saif al-Islam, should be tried internationally or in his own country. In December, Ivory Coast’s former president, Laurent Gbagbo, was the first former head of state to been brought to the International Criminal Court. But there are concerns over the effects of his trial on stability and reconciliation in Ivory Coast in the short run. Peace and political foundations of the new regime are still fragile. And Gbagbo’s supporters insist that some former rebels committed crimes and should also be brought to justice.
What can be the impact of international justice on post-conflict states that are undergoing a political transition? Are international tribunals a threat to stability in targeted countries? Do justice and truth, or justice and peace, always go hand-in-hand?
Those are the questions that we will tackle today, by looking at a specific case, which is Serbia. In 1993, following the outbreak of the conflict in former Yugoslavia, the international community decided to establish an ad-hoc tribunal, which was called the ICTY, the International Criminal Tribunal for the former Yugoslavia; it was prior to the now permanent International Criminal Court. Our guest is Dr. Mladen Ostojic, who carried out his research at Queen Mary, University in London. In his Ph.D he explores the repercussions of international justice on truth-telling and political transition in Serbia.
Isabelle Cornaz: Could you explain us first what was the aim of your research? How did it all start?
Mladen Ostojic: Well, I started this research because I wanted to understand what was going on in Serbia during the last ten years. After the overthrow of Milošević in October 2000, everybody in Serbia believed that the country would quickly integrate the international community and that it would make fast progress towards EU accession. But international community and the EU states conditioned financial aid and EU accession upon the transfer of indictees, of war crime suspects to the ICTY. And the failure of the Serbian authorities to cooperate with the ICTY basically resulted in the country being in a form of semi-isolation as a result of which Serbia has not yet become an EU candidate ten years after the overthrow of Milošević. So I wanted to understand why the international community attached such an importance to prosecuting war crime suspects, and especially why the Serbian authorities failed to cooperate at the cost of isolation. My research particularly focused on the reformist, pro-democratic elites, which were on power during the last decade. The nationalist politicians in Serbia had obvious reasons to obstruct or oppose cooperation. But what is really important to understand is why the reformist, pro-democratic elites failed to cooperate with the tribunal.
IC: Before talking in more depth about your findings, I think it would be useful for us to know a bit more about the tribunal, the ICTY. Could you tell us how it was established and for what reasons?
MO: The ICTY was established in 1993 by the UN Security Council. And its primary goal was to prosecute individuals who were responsible for violation of international humanitarian law in the former Yugoslavia. But its mission was also to contribute towards peace and reconciliation on the long term in the former Yugoslav countries. So this was the first international tribunal established since Nuremberg and Tokyo, which were in fact military tribunals established after the Second World War. But as for the ICTY, it was established by the international community in order to prosecute war crimes in the name of humanity. Now it is important to know that the motives, the real motives for the creation of the tribunal are contested. Some academics consider that the tribunal was a fig leaf for inaction by the international community, which was reluctant to intervene in the conflict. But the rationale for the creation of the Tribunal was that justice and truth constituted a pre-condition for peace and reconciliation.
IC: Is that the case for international justice in general? Do international tribunals have several objectives as well or do they seek mainly to redress the victims?
MO: There are several claims associated with international justice. The objective of international tribunals is primarily to punish perpetrators and redress victims, which is seen as a moral imperative by most human rights activists. But on top of this, tribunals also have certain political objectives, the most important of which certainly is to contribute to peace and reconciliation in the affected country. War crimes trials seek to individualise responsibility and remove blame from ethnic groups or renegade states. The objective is effectively to attribute responsibility to individuals, not communities. In theory, that should contribute to reconciling the communities. But trials also seek to produce a historical record that can serve as a basis for a shared history for the affected communities. So this component, the goal of establishing facts, of establishing the truth and promoting acknowledgement of crimes is key to the work of international tribunals. The idea is that in the long run international justice will educate the political elites and masses around the world to respect the rule of law and human rights.
IC: In the case of the former Yugoslavia, the tribunal was set up while conflict was still going on. More recently, in Libya, the ICC issued a warrant for the arrest of Gaddafi while he was still in power. So, I am wondering whether the aim can also be to deter perpetrators who are still powerful from committing further crimes? To stop the atrocities, in a way?
MO: Yes, it’s true, there was a belief that the establishment of the tribunal would discourage or deter the offenders from committing crimes on the ground. But in the case of former Yugoslavia, these expectations proved to be wrong. Many crimes, and I would say the most important crimes were committed after the tribunal was established. I am thinking of course about the Srebrenica massacre or the Storm operation in Croatia, but also of the entire Kosovo conflict, which occurred only in 1999, when the tribunal was already established and running.
IC: In your thesis, you argue that the ICTY jeopardised political stability in Serbia. Could you tell us why?
MO: What happened is that cooperation with the ICTY was made a condition for financial assistance only a few months after Milošević was overthrown, before the new authorities had time to consolidate their power and stabilize the political situation. So, these foreign pressures destabilised the democratic authorities for two reasons. The first is that the new authorities were divided on this issue. On the one hand, there was Prime Minister Djindjic, who wanted to cooperate with the tribunal in order to obtain financial assistance, which he badly needed for conducting and implementing reforms that he had planned. And on the other hand, the president Kostunica saw the tribunal as a threat to national interests and state sovereignty, so he effectively opposed the arrest and extradition of indictees. So the disagreements over this issue, and in particular with regards to the extradition of Milošević, which was effectively carried out by Prime Minister Djindjic allegedly without the consent of Kostunica, so these disagreements generated a split among the ruling coalition which greatly reduced the ability of the government not only to arrest and extradite war crime suspects but also to conduct democratic reforms.
IC: So, you are saying that the ICTY issue in a way fomented polarisation among the political elites?
MO: Yes, it did fomented instability and polarization. But there was also another issue. The democratic authorities could not establish control over the armed forces. And the army and the state security fiercely opposed and obstructed the arrest and extradition of indictees, because they feared that they could themselves one day be send to The Hague. So for example, in November 2001, the Serbian government faced a mutiny from the Special Operations Unit, which requested a suspension of cooperation with the ICTY. Two years later, the Serbian Prime Minister Djindjic was assassinated by members of this unit. Now of course, this was not the only reason why he was assassinated. I mean, his assassination is also related to the organised crime activities conducted by members of this unite. But the fear within the armed forced that they could be extradited to The Hague provided a background for the assassination of Djindjic. So, in other words, there was a constant threat of coup by the remnants of the former regime, which could revert the process of democratisation.
IC: Given the risk of destabilisation, what was the reaction of authorities? Did they decide to reduce or even to stop cooperation with the tribunal?
MO: No, they didn’t stop cooperating. What happened is that as they saw that this increased polarisation and instability, they increasingly sought to convince war crime suspects to surrender instead of arresting them. And this was done through the provision of financial and legal aid to the indictees by the Serbian states. This practice culminated with the policy of ‘voluntary surrender’, which was implemented by the Kostunica government that was the second government after the overthrow of Milošević. This policy consisted in raising the public profile of indictees who were portrayed as heroes going to the ICTY in order to fulfil their patriotic duty and defend the honour of their state. So, with this policy, the state effectively stood behind the indictees. And this was not only the case in Serbia, the same happened in Bosnia and Croatia, where similar policies were implemented beforehand.
IC: What was the impact of such a policy?
MO: The effect of this policy is that the flow of transfers of war crime suspects to The Hague increased substantially. But on the other hand, this policy also further delegitimized the tribunal in the eyes of the population, which saw cooperation with the ICTY as a trade between Serbia and the international community. The war crimes suspects were largely seen by the population as martyrs who were sent to The Hague in order to avoid sanctions or enable Serbia’s integration in the EU. And public opinion polls carried out throughout the last decade show that only 15 per cent of the Serbian public supported cooperation for the sake of justice. This policy of voluntary surrender further undermined international justice by detaching the transfer of indictees from any notion of justice and truth.
IC: So, here you speak about the moment of arrest and transfer to The Hague and how it was perceived by the political elites and the population. What about the impact of the trials? You said earlier that one of the aims of international trials was to establish the facts, to establish a narrative that would be the basis of a shared history for the different communities involved in the conflict. Can we say that this goal was achieved? How did the Serbians perceive the trials that took place at the ICTY?
MO: well, I think that the most important trial in terms of public impact in Serbia certainly is the Milošević trial. Milošević was the most important, the highest ranking indictee at the ICTY. He was the only one who was indicted for all the conflicts that took place in the former Yugoslavia and his trial is the only one that was broadcast live in Serbia. And the rationale behind this was that the broadcasting at the trial would allow the Serbian public and the Serbian society to face, to confront the crimes committed in the name of the Serbian nation. But in fact, the trial had quite the opposite effects. During the first weeks of the trial Milošević’s popularity increased substantially. The trial not only reinforced negative perceptions of the tribunal among the population, but it also discredited the tribunal in the eyes of the reformist elites, who imputed this outcome to the way the trial was conducted.
IC: Why did the trial have the opposite effects? You say it’s because of the way it was conducted? Could you give us an example?
MO: There are several reasons for which the Serbian elites were disappointed with the trial. The first one is that they expected the prosecution to come up with evidence of war crimes in the beginning of the trial, so that the Serbian public would see what had been done in the name of the Serbian nation. But in fact what happened is that in its opening statement the prosecution developed a historical narrative in which it argued that over the past 200 years Serbian political elites have attempted to create a greater Serbia and that Milošević’s attempt to carry out this project led to the violent break-up of Yugoslavia. This was problematic because it shifted the whole focus of the trial on political questions. And since Milošević didn’t recognise the tribunal and he defended himself, he primarily defended his political project. The whole beginning of the trial revolved around the political idea instead of specific crimes. The second reason is that the trial started with Kosovo, instead of chronogically starting with Croatia, Bosnia and ending with Kosovo. So, this allowed Milošević to develop a counter-narrative in which every time the prosecution pointed to the crimes committed by the Serbian forces, Milošević would point to the crimes committed by NATO during the bombing of Serbia. And the third reason is that the prosecution initially brought irrelevant witnesses who were easily challenged and discredited by Milošević in court. But the real problem is that the Serbian political elites realised that if Milošević was convicted for genocide, then the Serbian state could be held responsible of genocide as well.
IC: In your thesis, you emphasise that this is one of most problematic aspect of Milošević trial … the Serbian authorities being afraid that not only Milošević, but the Serbian state itself could be held accountable for genocide. However, you said earlier that one of the aims of international justice was to individualize responsibility. So why did the state think it could be convicted of genocide?
MO: Primarily because the Bosnian state had instigated a lawsuit against Serbia for genocide before the International Court of Justice, which is another tribunal which deals with litigations between states. Now this means that if Milošević were found guilty of genocide at the ICTY, this would have increased the probability, the likelihood that the Serbian state would have been found responsible for genocide at the International Court of Justice. Although this was rarely voiced in public, these concerns for the state responsibility substantially informed the attitude of the Serbian authorities towards the ICTY. The Serbian state provided tacit support for the defence of Milošević and it also requested protective measures for sensitive documentation used at the trial of Milošević at the ICTY.
IC: Is that because the Serbian authorities fear that if these documents were made public at the ICTY, the other tribunal, the international court of justice, could know about them and use them against the Serbian state in the parallel lawsuit?
MO: Yes, exactly. The protective measures involved using this documentation in closed session at the ICTY, so that it wouldn’t be divulged in public and that the International Court of Justice could not access them. But what I want to emphasise here is that the trial of Milošević paradoxically reduced the room for truth-telling in Serbia.
IC: What about the other trials and the overall ability of the ICTY to raise awareness about war crimes? To what extent the facts established at the tribunal have been acknowledged in Serbia?
MO: Well, the record is mixed, really. I mentioned earlier that the trial of Milošević was quite a failure in terms of public relations. But on the other hand, the facts established at the ICTY did have some resonance in Serbia. The best example of this is the example of the Srebrenica genocide, which has for a long time been denied in Serbia. The evidence shown at the ICTY and the verdicts of these trials have substantially contributed to the official acknowledgement of Srebrenica in Serbia. And, in March 2010, the Serbian parliament adopted a resolution condemning Srebrenica.
IC: So, on the basis of your research, what would you recommend to policy-makers dealing with international justice? How could justice be administered differently n order to alleviate the negative effects produced in Serbia?
MO: Well, I am not arguing against justice or in favour of giving blank amnesties. What I am saying is that we need a much more flexible approach to justice that will take into account the political situation on the ground. This means that international law cannot be applied in a systematic and undiscriminating manner. There is a need for sequencing justice with political developments in target countries. We have seen, in the case of Serbia and the former Yugoslavia, and this also applies to Rwanda, that international tribunals cannot act on their own. They depend on the cooperation of national governments. So this idea that international tribunals could isolate the search for justice from domestic politics proved to be wrong. And what the Serbian example shows is that you need stable and robust democratic institutions in order to carry out justice. So what I am arguing here is that justice is the consequence rather than the cause of democracy.
IC: So do you think that in the case of Serbia, justice was maybe carried out too early after the regime changed?
MO: I think that the timing of justice is important. In the case of Serbia, we saw that the early demands for justice destabilised the democratic authorities, which were not able to meet these demands. But it is not only about timing. It is also about the extent and the lengths of trials. The ICTY adopted a maximalist and uncompromising approach to justice. It indicted 161 individuals, including the almost entire Serbian military and political leadership, as well as a lot of small fry, really. And in fact, the mid-ranking perpetrators were a much bigger problem for the authorities because they benefited from institutional support. The high-ranking representatives of the Milošević regime were in most cases easily dispatched to the ICTY because they were just political figures that had been discredited with the change of regime. Many mid-ranking perpetrators were still within the state structures as members of the army or the police, so their arrests generated much more resistance and turmoil.
This podcast was presented and produced for Pod Academy by Isabelle Cornaz.
Tags: Djindjic, Gaddafi, Genocide, International Criminal Court, International Criminal Tribunal for the former Yugoslavia, Isabelle Cornaz, Mladen Ostojic, Politics, Rwanda, Saif al-Islam, Serbia, Srebrenica massacre, The Hague, Yugoslavia