Authors: Assoc. Prof. Barbora Holá, Mr. Mirza Buljubašić

On 21 December 2017 the International Criminal Tribunal for the Former Yugoslavia (ICTY) held its final closing ceremony, which symbolically, and maybe somehow counter-intuitively, took place in the historical Hall of Knights in the Binnenhof in The Hague, the Netherlands, the venue, which annually hosts the throne speech of the Dutch King delivered for the official opening of Parliament. The high-level event was attended by many officials, diplomatic corps and UN high representatives, including the UN Secretary General (SG) and the Dutch Royal Family. During the closing, the ICTY was celebrated as “a ground breaking moment”, not only dispensing accountability to those responsible but also contributing to “the healing process” of victims, documenting “undeniable truth and facts of past tragedies” and leaving records, which will “ensure that the world will not forget, that history cannot be re-written [and] victims’ voices will continue to resound down the decades.”[1] The final festivities constituted the peak in a series of “the legacy events” organized by the ICTY, and on its behalf, during 2017 to celebrate and emphasise, over and over again, achievements of this pioneering international criminal justice institution. Indeed, in 2017 one can confidently state that the ICTY has proven wrong many sceptics, who after its establishment back in 1993 considered the then struggling institution to soon fade away and be forgotten. Over the following 24 years, the ICTY indicted 161 individuals for their involvement in genocide, crimes against humanity and war crimes committed during the wars of Yugoslav secession. Ninety were convicted and nineteen acquitted. It held over 10.500 trial days and heard over 4600 witnesses. It collected a significant amount of archival material. It sparked and assisted in war crimes prosecutions before domestic courts in the successor countries of the Former Yugoslavia. It indisputably contributed to the revival and consolidation of international criminal law and its doctrine. It also inspired a significant amount of interest in this field of law and contributed to the development of “the international criminal justice industry” with many NGOs, IGOs, lawyers and academics now fervently “fighting impunity” of those responsible for mass atrocity crimes committed around the globe.

In the international diplomatic and political circles the ICTY is hailed for all these achievements and largely considered a success. Its legacies are, however, much more mixed and controversial when we zoom in on those ‘spaces and places’, where the actual crimes were committed. There, where people were most affected by the crimes. There, where victims, perpetrators, bystanders or those in between these categories, have been trying to come to terms with the violent past. In Bosnia, Croatia, Serbia and Kosovo, the images and imageries of the Tribunal are different from the international halo. The Tribunal’s image as a success story is contested, politicized and largely divided along ethnic lines. For those closely following the ICTY developments this is certainly not surprising. Think only of the widely reported reactions to the final ‘drama’ of the last ICTY judgment delivered in November 2017, less than one month before the December closing ceremony. During the reading of the verdict, one of the defendants, Croatian General Praljak, theatrically drank a cyanide poison in the courtroom in contestation of his conviction and the label of war criminal. The reactions shared on social media were swift, critical and largely divided along ethnic lines. The Croatian Prime Minister Andrej Plenkovic used Praljak’s suicide as confirming the “deep moral injustice” of the whole verdict, which, according to him, stands against “the historical truth”, while many Bosniak victims’ representatives welcomed the verdict as “just” and  “an end to a dark part of history.”[2]

In this short exposé, we touch upon the ways in which media and political elites in Bosnia and Herzegovina[3] have been ‘colouring’ the images of the ICTY in Bosnia (and beyond) and how these evolved over time. The media reporting seems to have evolved from the initial indifference towards the ICTY and scepticism towards its judicial capabilities, largely shared among all ethnic groups, to its increased relevance in public space. This relevance, however, has been expressed by an increasing criticism of the Tribunal’s activities, largely divided along ethnic lines, and seemingly ‘schizophrenic’ portrayals of the ICTY fluctuating over time, on an ad-hoc basis. The portrayals were framed around a ‘us versus them’ logic depending on ‘whose’ defendant was at the moment being convicted and/or acquitted, and for what.

After its establishment in May 1993, when the war was still on-going and atrocities were being regularly committed, the ICTY Prosecutor’s Office did not immediately have access to crime scenes in Bosnia. All sides to the conflict, Bosniaks, Serbs and Croats, were mainly indifferent to the new institution, primarily due to its initial struggles to establish itself and a lack of judicial action. In fact, the international community was perceived as a clear interference in internal affairs of (newly established) republics. Especially Bosniaks watched the first years of the ICTY with distrust, largely due to the arms embargo imposed by the international community.[4] Serbs seemed to have also been largely unconcerned, though alert, to the new Tribunal.[5] In 1995, Radovan Karadžić, the Bosnian Serb political leader during the war, famously stated “The Hague does not concern us [Serbs]!”[6] After the Bosnian Serb DuškoTadić was arrested in Germany in 1994 and extradited to the ICTY in 1995, and after indictments were officially announced against 21 Serbs, the image of the ICTY in Bosnia and Herzegovina slowly began to shape.[7] Following the Srebrenica genocide in July 1995, which was committed in the presence of Dutch UN peacekeepers, perceptions of the entire international community in Bosnia, and especially among the Bosniaks, was further shaken.[8] Concerns were expressed whether the ICTY, asyet another representative of the international community, was actually up to the task of delivering justice at all, and if so, for whom.[9] During the war period the ICTY largely focused on building up its credibility at the international level and obtaining cooperation of states, while being obstructed and largely dismissed by powerful individuals in the region. The image of the ICTY painted from 1993 until the mid-1996, which was relatively uniform across the ethnic groups, can be described as a strong scepticism towards the institution and questioning of its possibilities to function effectively.

In 1996,DraženErdemović, a Bosnian Croat and a member of the 10^thsabotage detachment of the Army of Republic of Srpska, came forward and pleaded guilty for his involvement in killings during the Srebrenica massacre. He was the first suspect to surrender and his guilty verdict was the first issued by the ICTY. Erdemovic’ willingness to testify and cooperate with the Tribunal (also beyond his own case) clearly marked a turn in the development of the Tribunal’s activities. The judicial impasse was broken. In the following two years, the ICTY apprehended and tried low level individuals from all sides to the conflict: Bosnian (e.g. Mucić et al.), Croatian (e.g. AntoFurundžija), and Serbian (e.g. DuškoTadić). The media and public reacted relatively positively to these first trials[10] as representatives of all parties to the conflict were facing justice and the veil of impunity regarding hands-on perpetrators was slowly being pierced. During 1997, however, opinions and fears were being expressedthat prosecution of high-ranking individuals and those in positions of power would slow down the implementation of the Dayton Peace Accords.[11]There were concerns that justice, in case it reaches beyond the small fish and extends to the conflict entrepreneurs and higher ranking individuals, would obstruct the peace efforts. At the end of the 1990s this relatively positive image of the ICTY was not disturbed. Even after the Tribunal was actually starting to reach to the more higher-ups and arrested a couple of more powerful individuals such as Croatian General TihomirBlaškić in 1996, Serbian General RadislavKrstić in 1998, or Bosnian EnverHadžihasanović in 2001.[12]

However, these arrests and trials also marked the beginnings of ethnically divided discourses regarding the ICTY. Although a relatively uniform perception of the ICTY existed by the end of the 20^th century, indictments and trials of more and more powerful individuals split the image of the ICTY among ethnic groups. These different portrayals were dynamic and in a way schizophrenic. They largely fluctuated on an ad-hoc, case by case basis, andwere becoming increasingly more critical. Every ethnic group seemed to have supported the ICTY only if member(s) from the other ethnic groups was/were on trial.[13] Politicians, divided across the ethnic lines, were on and off praising and/or criticising the Tribunal, depending on which group’s representative was at the moment sitting in the dock facing judges in The Hague. The image of the ICTY thus became largely pluralistic and divided.[14]Every individual, ethnic and regional group(s) had a different judgment about the court.

In 2005 Bosnian General SeferHalilović was acquitted and Bosniaks saw it as victory.[15] The sense of victory was further reinforced in 2008 when the ICTY Appeals Chamber reversed the conviction of Naser Orić and acquitted him. In contrast, when in 2008 Bosnian General RasimDelić was convicted for war crimes, Bosniaks fiercely criticized the judgment as “equalizing the (roles of) aggressor and defender.”[16] That same public perception of injustice, whenever a Bosniak faced a conviction,[17] has remained to date.

Although unsatisfied with the outcome of the Halilović case, Croats did not deny the crimes committed during the war in Bosnia.[18] They, however, criticized the ICTY for prosecuting high-ranking Croats. The crimes were, according to Croat politicians, committed by rogue soldiers and other low-level individuals without any preconceived plan or policy.[19] Any reference to high level planning, ordering or joint criminal enterprise involving the State, political or military authorities from the Croatian side, was largely disputed and dismissed. This culminated after general TihomirBlaškić was convicted for committing, planning, ordering and failing to prevent crimes committed in Lašva valley and sentenced to 45 years imprisonment in 2000. His convictions were largely reversed on appeal, using evidence newly disclosed by the Croatian state, and his sentence reduced to 9 years imprisonment. Relatedly, Croatian authorities fiercely opposed to the classification of Bosnian war as an international armed conflict (established by the ICTY in the Blaškić case, but also in Naletilić and Martinović). That would imply participation of the Croatian state in the war.[20] Whenever this issue came to the fore, the ICTY was labelled as an unjust and political institution.[21] The acquittals of Croatian generals Ante Gotovina and MladenMarkač in 2012 led to large scale celebrations. The verdicts were conceived as the sign of collective vindication of the Croatian State and removal of collective stigma of Croatian people.[22] However, these imageries now stand in stark contrast to what followed. In the final judgment against Croatian military officials in Prlić et al. in November 2017, when the final verdict was largely overshadowed by Praljak’s suicide, the ICTY confirmed convictions of all defendants for their participation in a joint criminal enterprise confirming the link between the then Croatian government to crimes on the ground. Following this misrepresentation of “facts and historical truth” by the ICTY, the court was dismissed by Croat representatives as a political institution that established unjust practice towards them.[23]

As of 2001, the trial judgment against Serbian general RadislavKrstić for genocide in Srebrenica started shaping (a negative) image of the ICTY among (Bosnian) Serbs. As a majority of Bosniaks was acquitted or convicted to relatively lenient sentences by the ICTY, and only a small number of Croats was convicted (relative to Serbs), the Tribunal was portrayed by the Serbian media and politicians as a biased court that “was designed to try only Serbs.“[24] “[T]here is no human being that we [Serbs] can convince that the Hague Tribunal is not a political but a legal court.”[25] When MomčiloKrajišnik was convicted in 2006, MiloradDodik (a former prime minister and current president of the Republika of Srpska) stated: “It is embarrassing that Naser Orić received a ridiculously low, almost acquittal verdict, while Krajišnik received 27 years in prison, which shows that the criteria of the ICTY are not identical to all.”[26] Indeed, in 2007 only 7% of Serbian citizens thought that the ICTY was unbiased.[27] This image of the Tribunal was further reinforced after the above mentioned acquittals of high-ranking Croatian generals Gotovina and Markač. In reaction, the Serb representatives firmly stated that the ICTY lost all credibility”.[28] In 2013 after the ICTY Appeals Chamber acquitted General MomčiloPerišić for crimes that occurred in Bosnia and Croatia, there were ad-hoc reports of some restored “faith in the tribunal’s neutrality“ amongthe Serbs.[29] For large part, however, the ICTY image remained bleak. In Serbian imagination, the ICTY was generally anti-Serb and a political court. This imagery of “Serbian victimhood” was further reinforcedafter the convictions of Radovan Karadžić in 2016 and that of Ratko Mladić in 2017, and was not shaken by, yet another controversial, acquittal of Vojislav Šešelj in 2016. The reaction to Šešelj’s acquittal among Serbs was largely framed around his own personal legal capabilities and skills in “defeating” the Tribunal and being able to remove any guilt from his shoulders.[30] For Serbs the ICTY remained an unjust and political court and those convicted were largely considered martyrs and heroes.

Also representatives of the other two ethnic groupsdid not seem to uncritically celebrate the guilty verdicts against the leaders of their wartime enemies as undisputed victories. The discourse of Bosniak and Croat victim representatives over time became much more multifaceted and also more and more critical. It was not enough that the enemy war-time power holders were convicted and sent to prison. The legal narrative and framing of the crimes constructed in the ICTY judgments was contested and criticized. According to some, the ICTY misrepresented the character of crimes committed during the war in Bosnia. Bosniaks (and in some way Croats) saw the judgments only as a partial justice, because only one temporal (1995) and spatial element (area of Srebrenica) of atrocities was labelled as genocide. All the other practices of ethnic cleansing and crimes committed in Bosnian municipalities were considered ‘merely’ crimes against humanity and war crimes. In addition, Šešelj’s acquittal was seen as a mockery of justice by victims in both Bosnia and Croatia.[31] The ICTY in the eyes of the Bosniaks was not consistent in its practices.[32] Early releases of those convicted caused additional outrage as, it was reported in the media, “there is no justice, criminals are on the loose“ and for that Theodor Meron and the ICTY was considered responsible.[33]

Representatives of all three ethnic sides involved in the 1990’s conflict agree that the ICTY was a ride on a roller coaster. They also agree that the Tribunal did not contribute to societal, inter-ethnic reconciliation.[34] The Tribunal indisputably has had a significant impact beyond the legal realm, be it on a political and societal level. As very briefly discussed above, the Court’s judgments were over time increasingly more often than not followed by politics of contestation and the ICTY served as an elixir to nationalist politicians. The image(s) and imageries of the ICTY were designed and shaped on the basis of (ethno)nationalistic and other ideological interests of politicians and media. What these images and imageries say about the ICTY’s (alternative?) legacies beyond its courtroom, beyond the legal realm and beyond the international sphere, remains to be determined.

First published at the Newsletter: Criminology & International Crimes 12(1): 2-6.

[1]The UN Secretary-General’s remarks at Closing Ceremony for the International Criminal Tribunal for the Former Yugoslavia [as delivered], 21 December 2017, available here:https://www.un.org/sg/en/content/sg/statement/2017-12-21/secretary-generals-remarks-closing-ceremony-international-criminal.

[2] See Balkan Insight reporting available here http://www.balkaninsight.com/en/article/croatia-rejects-party-of-bosnian-croats-verdict-11-29-2017

[3]Some of the media reporting referred to in this contribution also stems from Croatia and Serbia.

[4]Oslobođenje, Genocidnabandanadjelu, 24 December 1994 available here: http://www.infobiro.ba/article/668437.

[5]Oslobođenje, Dometioptužnice, 26 July 1995 available here: http://www.infobiro.ba/article/440796. 

[6] Ibid.

[7]Oslobođenje, Pravda sustižezločince, 14 February 1995, available here: http://www.infobiro.ba/article/510464.

[8]Oslobođenje, Posljednjaopomena, 13 July 1995 available here: http://www.infobiro.ba/article/449933; Oslobođenje, Međunarodnazajednicaodobrila genocide, 28 July 1995.

[9]Oslobođenje, Političkispletkaroši, 16 July 1995, available here: http://www.infobiro.ba/article/446882; Oslobođenje, Sakupljačipodataka, 21 October 1994 available here: http://www.infobiro.ba/article/688952.

[10]Feral Tribune, Uznička Republika, 24 August 1998 availablehere: http://www.infobiro.ba/article/602553; Feral Tribune, Rodna gruda, 3 March 2001; Onasa, Haški tribunal: D. Tadić nije kriv za ubistva, 7 May 1997 availablehere: http://www.infobiro.ba/article/174440. Onasa, Haški tribunal: Oslobođen Z. Delalić, osuđeni Z. Mucić, H. Delić i E. Landžoavailablehere: http://www.infobiro.ba/article/209194; Onasa, M. Hajrić pozdravio presudu Haškog tribunala u slučaju Čelebići, 16 November 1998 availablehere: http://www.infobiro.ba/article/209180; Onasa, Ministri srpskog entiteta u BiH najavili posjetu Haškom tribunalu, 25 July 1996, availablehere: http://www.infobiro.ba/article/161444; Onasa, IFOR: H. Delić i E. Landžo danas transportovani u Hag, 13 June 1996, availablehere: http://www.infobiro.ba/article/160072; Onasa, H. Solana pozdravio saradnju vlasti RS u ”akciji Žigić”, 17 April 1998, availablehere: http://www.infobiro.ba/article/200128.

[11]Onasa, PredajadesetoriceHrvataHaškomsuduusporićeDejtonskisporazum, 7 October 1997, available here: http://www.infobiro.ba/article/181103.

[12]Nezavisne novine, Odgovorni za ratni zločin u Ahmićima moraju pred sud, 5 August 2004 availablehere: http://www.infobiro.ba/article/24444; Dani, Gospodin Krajišnik je proglašen manje-više krivim, 29 September 2006, availablehere: http://www.infobiro.ba/article/272710; Nezavisne novine, Nastavak suđenja oficirima bivše Armije RBiH, 10 January 2005, availablehere: http://www.infobiro.ba/article/17026.

[13]Onasa, M. Kovačević juče doživio moždani udar, 18 July 1997, availablehere: http://www.infobiro.ba/article/177312; Onasa, J. Divjak: Armija BiH nije organizovala genocide, availablehere: http://www.infobiro.ba/article/181412; Feral tribune, Zborno mjesto Scheveningen, 10 November 2001 availablehere: http://www.infobiro.ba/article/181412.

[14] Nezavisne novine, Preispitati saradnju sa Hagom, 19 October 2007.

[15] Slobodna Bosna, Spektakularna proslava oslobađanja SeferaHalilovića trajala do zore, 24 November 2005, availablehere: http://www.infobiro.ba/article/191165.

[16]http://www.infobiro.ba/article/26499.

[17]According to Mirko Klarin, Serbs comprised 68% of ICTY indictees, with 21% being Croat, 4% Bosniak, 4% Albanians, 1% Macedonian and 2% unknown. See Mirko Klarin, ‘The Impact of the ICTY trials on public opinion in the former Yugoslavia’, 7(1) Journal of International Criminal Justice 89-96, at p. 92 (2009).

[18]Nezavisnenovine, OsudilipresuduHaliloviću, 19 October 2007, available here: http://www.infobiro.ba/article/382241.

[19]Telegram.hr, Koliko sam ga poznavao, Praljak nije bio ratni zločinac, ali hrvatska strana u Bosni jest činila teške zločine, 30 November 2017, available here: http://www.telegram.hr/price/koliko-sam-ga-poznavao-praljak-nije-bio-ratni-zlocinac-ali-hrvatska-strana-u-bosni-jest-cinila-teske-zlocine/; Vecernji.hr, ‘Beograd nije podržavao zločine u BiH, Zagreb jest’, 1 December 2017, availablehere: https://www.vecernji.hr/vijesti/franjo-tudjman-slobodan-praljak-jadranko-prlic-bih-haaski-sud-1211235;Faktor, Grabar-Kitarović: Neki naši sunarodnjaci su činili zločine, ali Hrvatska nije bila agresor, i dalje ćemo biti prijatelj BiH, 30 November 2017, availablehere: https://www.faktor.ba/vijest/grabar-kitarovic-neki-nasi-sunarodnjaci-su-cinili-zlocine-ali-hrvatska-nije-bila-agresor-i-dalje-cemo-biti-prijatelj-bih-274635.

[20] Feral Tribune, Grobnagruda, 3 March 2001, available here: http://www.infobiro.ba/article/606804; Slobodna Bosna, Sud u Haagupoprvi put uvažioTuđmanovetranskripte, 3 April 2003, available here: http://www.infobiro.ba/article/281086..

[21]Nezavisne novine, Sud u Hagu politički, 2 December 2005, availablehere: http://www.infobiro.ba/article/137993.

[22]Balkaninsight, Hrvatska se nada odbacivanju navoda o učešću u ratu u BiH, 17 March 2017, availablehere: http://www.balkaninsight.com/rs/article/hrvatska-se-nada-odbacivanju-navoda-o-u%C4%8De%C5%A1%C4%87u-u-ratu-u-bih-03-17-2017; Vesti.rs, Reagovanja na presudu Gotovini i Markaču, availablehere: https://www.vesti.rs/Hag/Reagovanja-na-presudu-Gotovini-i-Markacu-4.html, 16 November 2012.

[23]Balkaninsight, Croatia rejects party of Bosnian-Croats verdict, 29 November 2017, available here: http://www.balkaninsight.com/en/article/croatia-rejects-party-of-bosnian-croats-verdict-11-29-2017.

[24]Dnevniavaz, Haški tribunal nazvalipolitičkimsudom, 17 December 2008, available here: http://www.infobiro.ba/article/522697; Nezavisnenovine, Haškisudkaonagrada, 27 November 2007, available here: http://www.infobiro.ba/article/393382.

[25] This argument is supported by the alleged public opinion polls where allegedly 76 percent of Serbs argued that ICTY is a political court. Oslobođenje, GrađaniSrbije ne vjerujuHaškomtribunalu, 6 July 2007, available here: http://www.infobiro.ba/article/471304.

[26]Nezavisne novine, Oprečne reakcije u RS i FBiH, 27 September 2006, available here: http://www.nezavisne.com/novosti/bih/Oprecne-reakcije-u-RS-i-FBiH/499.

[27]See Klarin, supra note 17.

[28] See Vesti. Vesti.rs, supra note 22.

[29] BBC, MomciloPerisic, Yugoslav army chief conviction overturned, 28 February 2013 available here: http://www.bbc.com/news/world-europe-21621242.

[30]Nezavisnenovine, Dnevniksrpskihizbora, 8 April 2016, available here: http://www.infobiro.ba/article/935194; Dnevniavaz, Glasnogovornikzločina, 2 April 2016, available here: http://www.infobiro.ba/article/933076. 

[31]Dnevni avaz,, Obrukao Hag, 1 April 2016, availablehere: http://www.infobiro.ba/article/933063.

[32]Ibid..

[33]Dnevniavaz, Krikžrtava: zanasnemapravde, 13 November 2014, available here: http://www.infobiro.ba/article/903786.

[34]Nezavisnenovine, Haška (ne)Pravda, 4 April 2016, available here: http://www.infobiro.ba/article/935159.