After Reconciliation. On the Closure of the ICTY in The Hague

The court house of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague – Photo: Julian Nitzsche [CC BY-SA 4.0-3.0-2.5-2.0-1.0], via Wikimedia Commons

With the conviction of Ratko Mladić and sentence of life imprisonment imposed in November 2017 by the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, one of the main people responsible for the crimes in Bosnia and Herzegovina has been called to account. The former Bosnian Serb general was found guilty beyond reasonable doubt for the genocide in Srebrenica, the siege of Sarajevo and further crimes against humanity.

The extent of the sentence will give some satisfaction to many of the victims. Mladić, however, has not accepted his guilt. He insulted the judges, disrupted trial proceedings and showed himself recalcitrant in confronting reality. This unites him with other defendants indicted by the UN Tribunal. The former Bosnian Croat general, Slobodan Praljak, dramatically staged his rejection of the court in an absolute act of defiance. As the appeal judgment was delivered he declared, „Slobodan Praljak is not a war criminal“. Then, in full view of the astonished judges and the world public, he drank poison and subsequently died. The Serbian warmonger, Vojislav Šešelj, praised the act of suicide as ’heroic’. He knew the Croatian defendant from his own internment in The Hague. This blogpost reflects on the closure of the ICTY, its achievements, and its legacy.

Overshadowed by scandals of this kind, the international Tribunal comes to a close after more than 20 years of operation.1 Journalists then pose the question to researchers like me, concerned with remembering the wars in Yugoslavia, as to why ’reconciliation on the Balkans is proving so difficult’.

Social anthropologist Stef Jansen has expressed misgivings: if reconciliation is the answer, are we asking the right question?2 Here, Jansen was not directly referring to the legacy of the ICTY, but rather to the repeated ’calls for reconciliation in Bosnia and Herzegovina’. In my view, asking about reconciliation is not only the wrong question, but moreover, misleading. The question of reconciliation obstructs a realistic assessment of the possibilities for dialogue. What is it aimed at?

We can identify three possible forms of reconciliation: as coexistence, as collaboration and as taking mutual responsibility. These different degrees in the intensity of relationships are realized by individuals and not societies. In my opinion, coexistence is working ’on the Balkans’, while collaboration is in the process of developing. The assumption of responsibility for common well-being, however, remains unrealistic some 20 years after the wars as the effects of the experience of violence continue to be felt. Was this the answer the question was aiming at?

Let us take into account that the people and societies on the territory of the former Yugoslavia are not only coping with the aftermath of war, but also with the consequences of several radical changes that occurred at almost the same time. People have not only to master the transition from war to peace, but also from socialism to democracy and capitalism, as well as the establishment of small sovereign countries after the disintegration of a joint state. Peace, democratization, a market economy and the process of state-building contribute to make the post-Yugoslav space a special case of transition.3 Hence, the question of reconciliation achieved by a court is simply the wrong question because it narrows the focus on the post-Yugoslav space to a post-conflict situation, whereas many other ’posts’ are at stake.

Naturally, this does not mean that the question of responsibility for violence and war cannot be posed.

When instead we are asked about reconciliation, we can say that the International Criminal Tribunal for the former Yugoslavia in The Hague has most likely contributed to reconcile the perpetrators. In their rejection of the international court, war criminals feel a joint transnational connection. Large parts of the public in the countries concerned also regard the work of the UN Tribunal as an intolerable interference in internal affairs, as the continuation of prolonged political paternalism on the part of the West, in short, as a popular and useful image of the enemy.

When asking about reconciliation, we thus receive answers that reveal contests for victim status and resistance to guilt. Or to put it differently, inquiry about reconciliation is rarely neutral, but perceived as a call to reconcile. This normative approach, however, provokes resistance and may reinforce nationalist ideologies.4

I propose to seize the imminent closure of the Hague Criminal Tribunal for the former Yugoslavia as an opportunity to shift perspectives.

The ICTY is a court, and it has administered justice. Without the ICTY, the main people responsible for the crimes in Srebrenica, Sarajevo and Knin – Karadžic, Mladić and Gotovina – would not have been brought to trial. The spectacular acquittal of Ante Gotovina in the appeal proceedings, or of the incumbent Kosovo Prime Minister Ramush Haradinaj, indicate that even international law defers to politics.

What remains beyond the verdicts of the ICTY and alongside its juridical achievements such as the recognition of sexual violence as a war crime, is the detailed reconstruction of criminal events. Scientific investigation into the UN Tribunal’s records will offer the opportunity for comprehensive research into the wars that accompanied the disintegration of Yugoslavia.

A change of perspective following the shutdown of the ICTY could lie in disengagement from the victim-perpetrator scheme and a shift towards viewing the former Yugoslavia in other categories. A court of justice judges on individual guilt and innocence according to an exact set of rules. Beyond that, however, the polarizing separation into victims and perpetrators blurs the complexity of conflict situations and their scarcely binary effects.

The dogma of reconciliation above all attests to a counterproductive moralization of history. A realistic view on ambivalent circumstances and the real possibility of collaboration on post-Yugoslav territory could prove more productive than insisting on reconciliation.

  1. Pending appeal proceedings will be dealt with by the so called ‘Mechanism’, for example in the case of Ratko Mladić. http://www.unmict.org/en. []
  2. Stef Jansen, If Reconciliation Is the Answer, Are We Asking the Right Questions?, in: Studies in Social Justice Vol. 7 (2013) 2, pp. 229–243. []
  3. Srećko Horvat; Igor Štiks, Welcome to the desert of post-socialism. Radical politics after Yugoslavia. 2015 Brooklyn, NY. []
  4. Lea David, Against Standardization of Memory. In: Human Rights Quarterly, 39 2017, pp. 296–318. []

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