Shrinking the Space for Denial: The Impact of the ICTY in Serbia

By:  Prof. Diane F. Orentlicher

This abstract is part of an article that was originally published by Open Society Justice Initiative and is republished here with the permission of its author and Open Society Justice Initiative.  The full 137 page report can be downloaded here: Download Impact of the ICTY in Serbia.pdf .

Fifteen years ago the United Nations Security Council launched the contemporary era of war crimes tribunals by establishing the International Criminal Tribunal for the former Yugoslavia (ICTY). At the time, ethnic violence was in full rage in Bosnia-Herzegovina and the daily media were broadcasting real-time images of what were commonly called “the worst atrocities in Europe since World War II.” In this setting, the Security Council’s action struck many as desperate, ad hoc and inadequate: Unwilling to take more assertive action to stop ethnic violence in its tracks, it seemed, the Security Council salved its conscience by creating a court.  Yet despite its inauspicious origin, the ICTY inspired widespread hope and commitment among those who believed it could partially redeem the world’s failure to prevent ethnic carnage in Europe’s heart. If the circumstances leading to the ICTY’s creation induced some measure of skepticism, the Tribunal nonetheless seemed importantly worthwhile in its own right: Its work could answer the vicious violence euphemistically known as “ethnic cleansing” with an authoritative legal reckoning. Authors of mass atrocities would be held to account after all, the ICTY might even deter further crimes in the Balkans, and its operation would send a message to the future that if such crimes occurred again, those responsible would be brought before the bar of justice.

Internationally, the commitment the ICTY inspired proved to be both wide and deep: What had long seemed implausible—a revival of Nuremberg-type tribunals—soon became a normal though hardly routine response to atrocious crimes. Since 1994 the United Nations has created or jointly established international courts to address crimes committed in Rwanda, Sierra Leone, East Timor, Kosovo, Cambodia and Lebanon. In 2002, a permanent International Criminal Court (ICC) began operating; by March 2008, 105 States had become parties to its governing statute.

If these developments signify a deepening commitment to international criminal tribunals, there is also growing debate about their effectiveness. Some wonder whether international tribunals have achieved the goals their supporters thought they would achieve; others question their costs. Yet with few exceptions, there has been scant effort to assess their actual impact beyond their widely-acknowledged and considerable contribution in clarifying the contours of international criminal law. Too often, public debate about the accomplishments of international tribunals has been driven by untested assumptions.

In this setting, the Open Society Justice Initiative believes it important that those involved in the work of international tribunals—whether as practitioners, donors, policy-makers or in other capacities—develop a greater understanding of the impact contemporary war crimes tribunals have had in the regions directly affected by their work. We hope that this report contributes useful insights in this regard and helps stimulate further inquiries into the impact of international tribunals in the countries most affected by their work.

We decided to focus initially on the ICTY for two principal reasons. First, it has operated longer than any other international criminal court and thus has a comparatively rich record of experience. The second reason follows from our awareness that the impact of any international court is highly context-specific, making it perilous to draw broad conclusions about the impact of international criminal tribunals from the experience of any one court. In light of this and of the fact that the ICTY has jurisdiction over crimes committed in several countries (those formerly Yugoslav republics), examining the ICTY’s impact would enable us to avoid the potentially distorting effect of studying a single-country court, such as the International Criminal Tribunal for Rwanda or the Special Court for Sierra Leone.

This report sets forth our findings about the ICTY’s impact in Serbia; later reports will address its impact in Bosnia-Herzegovina and Croatia.

The Open Society Justice Initiative is an operational program of the Open Society Institute (OSI) and pursues law reform activities grounded in the protection of human rights, and contributes to the development of legal capacity for open societies worldwide. 

Professor Diane Orentlicher serves as special counsel for the Open Justice League as well as being a Professor of Law at American University Washington College of Law.