ICTJ in the News

January 12, 2008

Justice, reconciliation and EU integration in the Western Balkans: the legacy of the ICTY

European Policy Centre

Western Balkan countries' hopes of joining the EU depend partly on their cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY), by dealing seriously with war criminals and signalling that they cannot operate with impunity, as this is crucial to build reconciliation, speakers told a Policy Dialogue. The ICTY is due to be wound up by 2010, and is working to strengthen local courts' ability to try some of the remaining cases and transferring archives to the region.

Fausto Pocar, Judge of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), speaking at an EPC Policy Dialogue organised in cooperation with the International Centre for Transitional Justice (ICTJ), with support from the King Baudouin Foundation and the Compagnia di San Paolo, said bringing individuals in the region to justice was an important way to build reconciliation.

This Tribunal was established as one of several pillars to achieve this, but sadly the international community has forgotten about former Yugoslavia, handing the entire responsibility for this to the Tribunal.

At the beginning of this decade, it was agreed that the Tribunal should wind up its work by 2010, and it is now bringing it to "completion" by ensuring that the judicial process continues in the region itself.

While it is always more fruitful to work at the local level close to the people and the victims, the Tribunal was established to carry out this work until domestic local institutions in the Western Balkans are strong enough to assume this task, said Professor Pocar.

The Tribunal is now building mutual partnerships with local courts, drafting in international judges to support them when necessary, in order to hand over most of the cases to local jurisdiction. However, the worst perpetrators will be tried in The Hague.

The Tribunal was the first United Nations' court set up to indict individuals for war crimes and genocide, using the Geneva Convention and international law. Its legacy will be to strengthen the region's judicial system by building links with the local judiciary, preparing guidelines and best-practice cases, and drawing up memoranda of understanding with the Organization for Security and Co-operation in Europe's (OSCE) Human Rights Office.

Jan Truszczynski, Deputy Director-General, Directorate-General for Enlargement, European Commission, said the West Balkan countries' prospects of joining the EU depend partly on their cooperation with the ICTY. They need to demonstrate that they are living up to the principles enshrined in the EU Treaties, including dealing seriously with war crimes, persecution and reconciliation in former Yugoslavia.

According to the Commission's Progress Report published each November, most countries in the region are making progress:

Croatia: the last stumbling block is its reticence to provide the Tribunal with documents relating to the shelling of towns in Krajina and carrying out full investigations into the thousands who went missing in the 1995 ‘Operation Storm'. The government must remove all ethnic bias in handling war crimes' cases and set up a strong witness protection programme. Provided it makes progress in these areas and, of course, fulfils all the necessary criteria in the negotiations, it is highly probable that it will reach the final EU accession stage before the end of 2009.

Serbia: the priority is to "fully cooperate" with the ICTY, including delivering up Ratko Mladić and Goran Hadžić. The Interim Trade Agreement in the EU Stabilisation and Association Agreement signed last April will come into operation once Serbia demonstrates its cooperation, and the delivery of Radovan Karadzic to the Tribunal is a positive sign this is beginning.

Bosnia-Herzegovina: cooperation with the Tribunal is satisfactory, but the country must rid itself of the networks that protect indicted war criminals. The state courts are performing well, but thousands of people are still awaiting trial.

Montenegro, Kosovo and Macedonia: all three have cooperated satisfactorily with the ICTY, but must increase democratisation, and national judiciaries must show greater willingness to prosecute war criminals.

The European Commission is financing an ICTY project to raise the capacity and efficiency of prosecutors in the Western Balkans and improve cooperation between the Tribunal and the local judiciary, including financing internships and organising regional conferences.

However, this work is hampered by the lack of extradition treaties between countries in the region, which makes it impossible to transfer cases between countries, allowing war criminals to escape across borders.

Juan Méndez, President of the International Centre for Transitional Justice (ICTJ), said the ICTY demonstrated that the cycle of impunity can be broken and had led to the birth of similar courts, such as in Rwanda. He praised the ICTY's "impressive effect" in the region, which he believed would be incorporated into its political culture.

Joining the EU is partly conditional on cooperating with the ICTY and establishing the rule of law. The duty of domestic courts is to prosecute war criminals and show they do not have impunity. As long as people such as Mladić and Hadžić are not brought to justice, there can be no proper regional reconciliation.

The ICTJ is hosting a meeting in New York to look at how it can complete its work, as its legacy will affect the whole region. More must be done to protect witnesses and set mechanisms in place to reopen trials if new evidence comes to light. An important question is where the ICTY's archives should be located and how to ensure that they are accessible to all.

Mr Méndez stressed that while the worst criminals must be prosecuted, this is not enough to ensure justice for all the victims. Non-judicial efforts are also important, such as truth-seeking and -telling, helping victims and introducing local reforms -- a process that must take place across borders, cultures and religions.

Nastaša Kandić, Founder and Executive Director, Humanitarian Law Centre, Belgrade, stressed that while the people of former Yugoslavia see the ICTY as an important institution, there are some important outstanding trials to complete, and unfortunately many of its most highly-skilled judges have moved on to new jobs, slowing down the process.

The ICTY's legacy is important for future justice, and civil society needs to be brought into the reconciliation process.

While people were "genuinely and positively surprised" that Serbia has begun to cooperate with the ICTY with the arrest of Karadzic, there needs to be a clear reconciliation strategy, which can only be done through building a collective memory of the past, said Ms Kandić.

To carry this through, human rights organisations from Bosnia-Herzegovina, Croatia and Serbia are proposing a Regional Commission to broaden consultation in the region and house the ICTY's archives. It would focus on victims and perpetrators and ‘map' war crimes, collecting facts from the archives and organising further investigations and public hearings.

These proposals, which are already supported by a million-signature petition, are being presented to national parliaments.

ICTY Prosecutor Serge Brammertz has proposed a project to bring together prosecutors to discuss human rights' issues in the region and debate the past. However, stressed Ms Kandić, the end of the ICTY does not signal the end of the reconciliation process, as future generations need to have access to the facts to prevent such crimes ever happening again.

"Justice, reconciliation and EU integration in the Western Balkans: the legacy of the ICTY" originally appeared on the website of the European Policy Centre.