Establishing criminal liability for human rights violations and atrocity crimes in post-conflict societies has invariably been justified as essential not just because it provides victims with justice, but also because these proceedings as portrayed as catalysts for societal transformation (Subotić
2009b, xii). In this sense, international criminal tribunals and courts are viewed as part of a ‘range of measures’ employed within transitional justice processes, and they are thus supported on the grounds that they will achieve broader transformative goals beyond determining individual guilt and issuing punitive redress (Murphy
2017, 1; see also, Annan
2004, 4).
4 Indeed, so pervasive is the view that international criminal courts and tribunals initiated in post-conflict societies contribute to transitional justice, it is effectively impossible to identify any that have
not been explicitly supported on the basis that their proceedings will have transformative effects beyond just the determination of guilt (Bachmann and Fatić
2015, 12–20).
There is no shortage of literature detailing both
why transitional justice is necessary, and
how to best maximise its efficacy; indeed, according to Jelena Subotić, there now exists, ‘a veritable international transitional justice industry’ (
2009b, 4; see also, Dancy and Wiebelhaus-Brahm
2015; McEvoy
2018; Millar
2011). There are, of course, also many critical perspectives (Ainley
2017; Kerr
2017; Paris
2010; Turner
2017; Bachmann and Fatić
2015), but there is no doubt that in recent years, the arguments in favour of transitional justice have been increasingly accepted by international organisations such as the EU and the UN.
Why Transitional Justice?
At the core of the argument that transitional justice is necessary is the conviction that victims have a right to justice; additionally, however, there is a less purely justice-orientated rationale, namely, that in the absence of transitional justice conflict will
reoccur (Subotić
2009b, 3–5). The logic underpinning this claim was succinctly articulated by Antonio Cassese, first president of the ICTY, when he argued that without justice, ‘feelings of hatred and resentment seething below the surface will, sooner or later, erupt and lead to renewed violence’ (Leebaw
2008, 113).
This point, which by definition presents the proceedings as future-orientated and transformative, has been central to the EU and UN’s support for transitional justice. Accordingly, the EU’s stated, ‘[we] firmly believe in the principle that there cannot be lasting peace without justice’, and noted that transitional justice mechanisms including criminal courts and tribunals, ‘significantly contribute to initiating post-conflict recovery and in preventing the emergence of new cycles of violence’ (EU
2015, 12 & 10). The UN’s widely cited 2004 report on transitional justice likewise asserted that peace ‘cannot be achieved’ if criminal liability for past crimes—and justice for the victims of these crimes—is not achieved (Annan
2004, 3), a view echoed in later UN reports (Ki-moon
2010; Ki-moon
2011). Given this belief in the causal relationship between transitional justice and long-term peace, it is not surprising that the UN identified transitional justice as ‘a critical component’ in its rule of law framework (Ki-moon
2010, 2), whilst the EU has variously described transitional justice as, ‘a key priority’ (Council of the EU
2015, 2) and, ‘an integral part of state- and peace-building [that] should also be embedded in the wider crisis response, conflict prevention, security and development efforts of the EU’ (EU
2015, 1).
These views are shared by organisations working on transitional justice in the former Yugoslavia; according to Jelena Krstic of the Humanitarian Law Centre Belgrade,
Transitional justice is necessary so that we don’t make the same mistakes again. If people don’t know what happened in the past they will not be able to learn from it and so avoid engaging in the same way again. In Yugoslavia we did not address the legacy of World War II. People who were born after the war were told stories about what the “others” did to their group and many believed this because there was no alternative source (Krstic
2018).
Likewise, Bekim Blakaj, Executive Director of the Humanitarian Law Center in Pristina, suggested that in the absence of a transitional justice process comprising both criminal proceedings and some form of truth and reconciliation initiative, it was ‘easy’ for each community in the former Yugoslavia to create myths about what happened in the 1990s and that these myths had ‘a damaging effect on society and stability in the region’ (Blakaj
2018).
How?
It is beyond the scope of this article to discuss the full spectrum of prescriptions advanced by those who seek to bolster the efficacy of international courts and tribunals associated with transitional justice. Rather, I will focus on one particular aspect which is of particular relevance to the KSC, namely the need to ensure there is local ownership so as to maximise the perceived legitimacy of the particular mechanism in operation amongst the subject population (Clark
2014, 71).
Whilst there are a range of views as to the nature of the key positives effective transitional justice mechanisms can produce, there is a widespread acceptance in the literature that transitional justice mechanisms—especially courts and tribunals that determine innocence and guilt—
cannot be effective in the absence of popular legitimacy, understood as when the subject population accept the mandate of the court and have ‘trust’ in both its procedures and enforcement mechanisms (Murphy
2017, 122–123). Of course, by definition, a court established by a government has some legitimacy; yet, there is a distinction between what Hobbs describes as legitimacy derived from the exercising of recognised authority and adherence to legal procedure, and ‘sociological legitimacy’, namely the acceptance by the subject population that the court is necessary (
2016, 494). As such, the normative basis upon which transitional justice advocacy rests is the maintenance of public support for the particular mechanism in operation (Dancy and Wiebelhaus-Brahm
2015; Millar
2011). This legitimacy is itself predicated on coordination between both the local populace and national authorities to ensure that the process develops from, and is embedded in, ‘the local community level’ (Hoogenboom
2009, 184).
This view stems in large part from the experiences of previous courts and tribunals, particularly the tribunals established for both Rwanda and the former Yugoslavia. Previous mechanisms which were
not derived from local/national initiatives, but were rather established by external actors and administered remotely by foreigners, have been unable to connect with those they are presiding over, and thus, local perceptions of their legitimacy have suffered. As Dustin Sharp notes, ‘justice initiatives felt to be illegitimate by those who have to live with them – because they have been imposed from the outside or are seen as culturally alien – are unlikely to be successful in the long term’ (
2017, 412). The fate of the ICTY is regularly highlighted in this respect, and it naturally has a particular salience for the KSC (Subotić
2014).
The ICTY’s judgements were on the whole
not accepted as legitimate by the majority of people in the former Yugoslavia as the court was ‘removed physically, culturally, and politically from those who would live most intimately with its success or failure’; the lack of both public involvement in the ICTY and negligible local judicial participation ultimately, ‘contributed to a feeling among Bosnian Croats and Bosnian Serbs that the work of the tribunal did not reflect their concerns, and therefore they could not claim ownership in the judicial process’ (Fletcher and Weinstein
2004, 32–33). As a result of the lack of a direct connection between the general public and the ICTY, ‘…the tribunal’s public image has suffered and its legitimacy has been compromised’ (Ibid, 30). Subotić likewise notes that whilst the ICTY was presented as part of a broader transformative project of transitional justice for Yugoslavia’s successor states, its proceedings failed to resonate with the general public across the region, whilst the various governments invariably dismissed any unfavourable judgements; as a result, she argues, the ICTY ‘only brought new layers of denial’ (
2009b, xii). Echoing this, Milan Antonijević—Executive Director of the Open Society Foundation in Serbia—noted that Serbs have generally proved willing to accept judgements sanctioning Serbian soldiers and commanders for crimes committed during the course of the wars in the former Yugoslavia only if they are issued by their own national courts as, ‘they have close links with the people, as opposed to something that’s coming from The Hague’ (Antonijević
2018).
This physical distance between the people on the ground and the judgements issued by the ICTY in The Hague was compounded by a lack of engagement by the ICTY with the general public in Yugoslavia’s successor states. In outlining why the ICTY ‘very successfully failed’, Marijana Toma of the Humanitarian Lawn Centre in Belgrade noted;
I think that what failed was the
message from the ICTY. The outreach was a disaster. Especially in the last six or seven years they looked like their purpose was to exist for themselves, not for the region or the people here. Another thing that was wrong was the vanity of the judges and the presidents of the ICTY…It was clear that they didn’t care about the opinions of victim’s communities, from the region (Toma
2018).
She criticised the ICTY’s engagement with local NGOs and activists as well as the general public; noting that her organisation sought to support the work of the ICTY, she reflected, ‘we didn’t get much support. We felt abandoned’. Likewise, Jovana Radosavljevic of the Youth Initiative for Human Rights in Serbia noted, ‘the ICTY failed to engage with people from here. There was no outreach’ (Radosavljevic
2018).
The lack of domestic support for the ICTY and the failings in its own public engagement strategy—and the detrimental effect this in turn had on perceptions of its legitimacy—has had, many have argued, not just an adverse effect on the pursuit of justice but also an
ongoing detrimental impact on peace and stability in the former Yugoslavia. The ICTY, though focused on the forensic investigation of events and the publication of binding judgements designed to prove that myriad injustices occurred and that particular protagonists were culpable, was invariably perceived as ‘biased’ or ‘alien’ as it could not—by virtue of its composition and design—engage with public and thus counter the fundamentally ‘irrational’ beliefs they continue to hold (Milanovic
2016). Sonja Biserko—president of the Helsinki Committee for Human Rights in Serbia—points to the ‘extreme ethnification of states’ which has occurred throughout the former Yugoslavia since the end of the conflicts in the 1990s, one which is characterised by ‘new identities built on invented histories and mythology’ which the ICTY’s judgements have failed to counter (Biserko
2018).
The legacy of the 1990s thus remains a potent factor in the everyday lives of people throughout the former Yugoslavia; indeed, according to Radosavljevic, this legacy is ‘killing our societies slowly because it is effecting us all’ (Radosavljevic
2018). In fact, throughout the former Yugoslavia, a backlash against the ICTY has ‘strengthened the political fortunes of the nationalists’ who have paradoxically
benefited from being sanctioned by the ICTY (Peskin and Boduszyn’ski
2011, 53; see also, Subotić
2014, 172). Indicatively, a 2017 public opinion survey in Serbia, evaluating the legacy of the ICTY, points to it having a limited, if not in fact
negative, impact on the ground; the results of the survey ‘confirms that there is overwhelming public distrust in the ICTY and its findings’ (Kostić
2018). Likewise, the survey found ‘those convicted by the “anti-Serb” ICTY are not guilty in the public’s view’, and this has facilitated ‘revisionism in Serbia which has in recent years been accompanied by the glorification of war criminals and their return to public office’ (Ibid). The survey also confirmed that despite the ICTY being presented as a means by which wounds can be healed and reconciliation achieved, ‘the people in the former Yugoslavia are in fact further away from each other than ever’ (Ibid).
The prescriptions based on the lessons learned from past experiences of international courts and tribunals that lacked public legitimacy—especially the ICTY—is not confined to academia; it has become a key refrain in both the UN and EU’s prescriptions. The UN’s 2004 report warned against ‘[the use of] foreign experts, foreign models and foreign-conceived solutions to the detriment of durable improvements and sustainable capacity’ (Annan
2004, 6); noted that success is conditional on ‘the quantity and quality of public and victim consultation carried out’ (Ibid, 7); and highlighted the need for ‘an effective communications strategy’ that ensures the public are informed of all developments related to the working of the transitional justice mechanism in operation (Ibid, 15–16). Indeed, the framework concluded, ‘Ultimately, no rule of law reform, justice reconstruction, or transitional justice initiative imposed from the outside can hope to be successful or sustainable’ (Ibid, 7). This view has also been reaffirmed in later UN strategy documents (Ki-moon
2011, 6–9).
The EU has also endorsed this idea, stressing the need to ensure that transitional justice mechanisms, especially courts and tribunals, are both derived from, and embedded in, the local society and political institutions (Council of the European Union
2015: 2). Indicatively, the EU’s most recent framework states, ‘Transitional justice can only reach its goals if the process of its design and implementation is nationally and locally-owned…It is essential that the process is initiated and driven by government authorities and local civil society (EU
2015, 8).
Yet, despite the widespread consensus regarding the failings of the ICTY, and the myriad-related prescriptions from academic experts and the EU and the UN, on the need for local ownership and engagement, the manner in which the KSC has been established, and the nature of its public engagement to date, runs counter to these normative prescriptions; this is dealt with in the following sections.