The law and the Bosnian break-up
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This month marks the 20th anniversary of the start of the Bosnian civil war, when Bosnian Serb nationalists fired on demonstrators in downtown Sarajevo and sparked the bloodiest three years in Europe since World War II.
In response, the United Nations established a special tribunal to investigate, arrest and try the political and military leaders responsible for a war that dragged on until 1995. But Mark Osiel, a University of Iowa law professor who has followed the International Criminal Tribunal for the former Yugoslavia in The Hague, Netherlands, says the ICTY has been only partially successful.
The fact that the tribunal brought 161 indicted suspects to trial for war crimes or crimes against humanity—the vast majority of whom were convicted and imprisoned—is one area where the tribunal met expectations, Osiel says.
But he says the suspicion with which Bosnians, Serbs and Croats living in the former Yugoslavia still view each other shows the tribunal has failed to heal ethnic wounds.
The war began April 5, 1992, shortly after Bosnia-Herzegovina declared independence from Yugoslavia. The country’s three main ethnic groups—Serbs, Croats and Bosnian Muslims—then began a campaign of bloody ethnic cleansing. The level of violence was shocking, culminating with the Bosnian Serb slaughter of more than 8,000 Muslim men and boys in the village of Srebernica in 1995. The violence finally ended with the Dayton peace accords later that year.
The United Nations established the ICTY in 1993 as a response to the violence. Osiel says the tribunal struggled at first, even after the war ended, primarily because Balkan governments did not cooperate in handing over indicted war crimes suspects.
“For the first years, it didn’t look like it was going to be successful because the major figures in the war went untouched,” he says. But that changed when the European Union made a precondition for Serbia to cooperate with the ICTY before talks could begin that would bring it into the EU. The Serbs, anxious to join the wider European community post-war, began to hand over indicted suspects.
— Mark Osiel
Among the major figures who eventually were brought to The Hague and put on trial were Slobodan Milosevic, the former Yugoslavia/Serbia president; Radovan Karadzic, the political leader of the short-lived Serbian state within Bosnia; and Ratko Mladic, the Bosnian Serb military leader who allegedly ordered the Srebernica massacre.
Milosevic’s trial for crimes that occurred in Kosovo began in 2002 and ended four years later without a verdict following his death. Karadzic and Mladic, the last two major figures to be brought to The Hague, are currently on trial. Osiel says the tribunal will wrap up its work when their trials are completed in the next two years.
Osiel, an expert in atrocities and war crimes, recently reviewed the tribunal’s lessons at a conference last month in Leipzig, Germany. He has also lectured to the court and its prosecutors, and co-headed a think tank in The Hague devoted to international criminal and the workings of the ICTY and International Criminal Court.
He says that one of the tribunal’s successes has been the collection of an enormous amount of jurisprudence relating to war crimes and crimes against humanity because so many people were put on trial for such a wide array of crimes. The judges’ decisions in those cases now provide volumes of precedent for future trials.
“For instance, we know now what sexual enslavement means as it relates to war crimes, so it refined our understanding of rape as a crime,” he says.
But he said the tribunal has also failed to live up to expectations in some ways. The trials have been an exercise in Victor’s Justice, where he says “the winners prosecute the losers for crimes they’ve committed themselves.” For instance, he says that while the ICTY has indicted Serbs, Croats and Bosnians for crimes against civilians, it hasn’t indicted any NATO leaders for civilian deaths caused by NATO attacks in Serbia during the Kosovo war in 1999.
In part because of that, he says the tribunal has failed to bring together members of the various ethnic groups in the former Yugoslavian states. One of the hopes for the tribunal was that, by bringing individuals to account for war crimes instead of blaming groups, it would help the Balkans heal from centuries-old ethnic grievances.
“When people who have been convicted of war crimes come home after their release from prison, they’re greeted as heroes,” he says. “In that way, it’s just reinforced a sense of victimization.”