OPINION - Without justice, there is no reconciliation

LONDON

Since its establishment in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) has indicted and tried some of the most wanted war criminals of the former Yugoslav wars on charges of war crimes and genocide.

Most notable amongst them are the convicted war criminal and former psychiatrist and politician Radovan Karadzic, who is now serving his 40-year prison term for crimes against humanity, and the arrest and subsequent trial of the wartime Gen. Ratko Mladic, also known as the "Butcher of Bosnia", whose verdict is expected on Nov. 22. This will be followed by the disbanding the ICTY on Dec. 31.

To find out more, on behalf of Anadolu Agency, I spoke to Chief Prosecutor Serge Brammertz about what the legacy of the ICTY will be. “There definitely is the legacy in relation to how the international community is addressing atrocity crimes in different parts of the world,” he said.

He explained that the Tribunal was set up for a specific purpose, “which is to make sure that there is accountability for the crimes committed in the former Yugoslavia in the 1990s. Today, we work very intensively with prosecutions offices in the region and I don’t think that this level of cooperation and this level of prosecution, which is taking place today, would have been possible without the establishment of the ICTY in 1993.”

Sexual violence stands out

In its 24 years of existence, the ICTY can be credited for many important changes to how war crimes were tried and this will be its greatest legacy. But one that stood out the most was Conflict-Related Sexual Violence, which has seen over 80,000 Bosnian Muslim women and young girls raped during the war in Bosnia-Herzegovina and which brought the attention of the UN Security Council, which, on Dec.18, 1992, declared "massive, organized and systematic detention and rape of women, in particular, Muslim women, in Bosnia and Herzegovina" an international crime that must be addressed.

Srebrenica

Other important legacies are Commander Responsibility, whereby military commanders are prosecuted for crimes committed by their soldiers, whom they did not prevent from committing war crimes, as well as the Law on Genocide particularly in relation to the genocide in Srebrenica, which took place in July 1995, where over 8,500 Muslim men and young boys were systematically murdered. The UN would eventually rule that what happened in Srebrenica was genocide.

As Brammertz said, it is not a question about how many people were killed but about the intent behind the crimes. But in the early days of the ICTY, its legitimacy was questioned. It had to prove the legality of the Tribunal and whether the Security Council had exceeded its authority within Chapter VII of the UN Charter when it created the Tribunal. The appeals court would go on to rule that it did have legal authority.

Brammertz’ legacy

Brammertz has been the chief prosecutor since 2008, taking over from Carla Del Ponte, a prosecutor who was often not a favorable figure in Bosnia largely due to the anger of the Bosnian victims and victims' families over the former Yugoslav President Slobodan Milosevic's death during her term as prosecutor before the conclusion of his case. Brammertz, on the other hand, will be credited for the capture of Karadzic and Mladic, which most people, including those at the UN Security Council, believed would never have happened.

“When I started in 2008, people were very pessimistic about any chance of getting Mladic and Karadzic, hiding already for more than 10 years," Brammertz said. "The first years as fugitives they were even not hiding but getting standing ovations in football stadiums and they were very much supported by their respective communities. Time has played in our favor; persons who played very important political roles in the 1990s, making arrests difficult, could be arrested later.”

Karadzic, Mladic long aided & abetted by Serbia

However, the international community as well as the Serbian government knew these war criminals were not hiding in the “first years”, but not hiding at all. Karadzic was receiving state pension from the Serbian government, so they were aware of his whereabouts. As for Mladic, leaked army files showed that he continued to receive payments from both the Serbian and Bosnian Serb militaries for years after his indictment. But as Mladic arrived in The Hague in 2011, Serbian nationalists attacked police in Belgrade at a rally, where 10,000 football hooligans demanded that the then President Boris Tadic resign along with his government over the arrest of Mladic, who was indicted for genocide in relation to the 1,425-day siege of Sarajevo -- the longest siege of a capital city in the history of modern warfare -- and to the genocide of over 8,500 Bosnian Muslims in Srebrenica during Bosnia’s 1992-95 war.

Glorified war criminals

For his crimes, the prosecutors at the ICTY called for a life sentence to be handed down to Mladic, but justice would have been done if he had been given more than 8,500 life sentences for every soul buried in the Potocari Memorial Centre, the victims of the Srebrenica genocide. Mladic will probably walk free after two thirds of his sentence is served, and that will be a great injustice to the victims of the war in Bosnia, capping the list of other injustices Bosnian Muslims have so far faced. Even if Mladic dies halfway through his sentence, that would mean an easy way out for him. But to make matters worse, when Karadzic was found guilty of war crimes, the Serbian politician Vojislav Seselj, who was later cleared of all charges and whose acquittal was described by The Economist as “a victory for advocates of ethnic cleansing”, led a thousand-strong ultra-nationalist protest in Belgrade, condemning the ruling. This was the evidence of how much most people in Serbia glorified their war criminals, and do so to this day. But it was an incentive the European Union threw at Serbia, which ended in the arrests of Karadzic and Mladic.

Brammertz noted that the ICTY worked with the EU to pressure former Yugoslavian countries to cooperate with the Tribunal to fulfil a number of criteria, including full cooperation with the ICTY in exchange for the commencement of EU enlargement talks. And while the Tribunal did not stop the conflict in the former Yugoslavia, nor did it seek to, as it had not been created for such purposes, it did not contribute towards reconciliation either, as much as it did try.

Obstacles in cooperation

Croatia, an EU-member state, on the other hand, is continuing to obstruct Bosnia’s War Crimes chamber from doing its work by blocking the extradition of the Croats responsible for the killing fields in Bosnia, and for this Brammertz said he would mention this obstacle in cooperation in his report to the UN Security Council. Serbia is no different either regarding its own suspects, holders of Serbian passports. Due to the absence of an extradition treaty between the three former republics, those suspects may never face justice.

“This leads to de-facto impunity for the crimes even if the person is physically only a few kilometers away. I am personally absolutely convinced that as long as there has not been accountability prosecution for the important number of crimes, it will be almost impossible to think about reconciliation amongst different groups,” said Brammertz.

Unjust early releases

However, the Tribunal itself has been lacking in this sense, specifically given that it failed to prevent the early release of those who had been found guilty of war crimes. The Bosnian Serb politician Dusko Tadic, for instance, was released in early 2008 after serving two thirds of his sentence and now lives in Serbia with his family. So was the former president of Republika Srpska (RS), Biljana Plavsic, a convicted war criminal. Justifying her early release, Patrick Robinson, the president of the ICTY, said she "appears to have demonstrated substantial evidence of rehabilitation" and had accepted responsibility for her crimes. She was released on Oct. 27, 2009, and the current president of the RS, Milorad Dodik, considered giving Plavsic a seat in his government. Brammertz had once remarked that he would prefer if the victims were consulted prior to war criminals getting early releases: “I expressed several times my preference that those who are released early should have conditions imposed on them to avoid coming out and then making the exact same hate speeches they were doing prior to being arrested and convicted.”

So, while the war criminals released after serving two-thirds of their sentences enjoy life with their families, that opportunity was not afforded to their victims, who ended up being buried in mass graves, to women who were raped and had to live with that memory for the rest of their lives, to men who were tortured in death camps, even those that survived the genocide, and even to the Mothers of Srebrenica. They faced unimaginable horror and are still suffering.

Yet it is the political climate that decides when those early releases should take place, a kind of climate that would never show the same favor to the victims of the Bosnian war. But Brammertz has been gracious in his approach to the victims’ organizations with whom, he said he has met many times, especially with the Mothers of Srebrenica, who had even backed his 2013 nomination for a Nobel Peace Prize.

Real heroes

Brammertz said: “When I see these days how convicted war criminals are treated like heroes and how they are glorified and how they are invited to political events, I am quite shocked and find it disgraceful that this is happening. Because for me it is crystal clear that the only heroes in this entire conflict are those who are still fighting for justice, heroes are the survivors, heroes are those 4,000 individuals who came to testify at our Tribunal to make us understand the gravity of crimes and what was done to them. But it is obvious that over the last years the contact has been most intense with victims’ organizations in Sarajevo and they are so important for us because they remind me every time I am meeting with them why this Tribunal was put in place and why we have to continue the job that we are doing.”

A number of academics have argued that the member states in the UNSC found the Tribunal very appealing as it turned out a cheaper way to respond to genocide and war crimes. And as Brammertz pointed out, it was a necessary decision to set up the Tribunal because if it was not for the ICTY, “it would not have been impossible to imagine that the courts in the former Yugoslavia would prosecute individuals, and definitely not individuals of their own ethnicity.”

More victims of war crimes

However, the international community has been criticized for not doing more in Bosnia during the war, just like it is being criticized now for not doing more for the Yazidi victims who have been tortured, murdered and raped by Daesh fighters. The West has also failed the Rohingya Muslims, prompting Nigerian President Muhammadu Buhari, in an address to the UN General Assembly last month, to compare the war crimes against the Rohingya Muslims to the war crimes in Bosnia. And we should not forget to mention the appalling war crimes committed against the civilians in Yemen, where children are starving to death.

Brammertz said: “If we look at the world today, of course, we don’t see the international community speaking with one voice as it was the case with the creation of the ICTY or the Rwanda Tribunal. We see today the political landscape is very different and that opinions within the Security Council are also very different on those different issues.”

But as the ICTY closes its doors on Dec. 31, it will be replaced by its already established successor, Mechanism for International Criminal Tribunal (MICT), which will handle Karadzic’s appeal, and others, among them the retrial of Jovica Stanisic, the former head of Serbia’s state security, and Franko Simatovic, his deputy.

Brammertz will remain at MICT and will continue the work on Yugoslavia and Rwanda war crimes, and the War Crimes Chambers of Bosnia, Serbia and Croatia will continue to have access to his 10-million-page database to try the remaining suspects as the arrests continue.

At the conclusion of the interview, the chief prosecutor noted that this would be but the end of one chapter and the “next chapter”, as he put it, would place even greater responsibility on the shoulders of national prosecutors.

“I very much hope that politicians from the former Yugoslavia will be responsible and in the interest of their communities, support war crimes cases. I very much hope that the international community will still be very present in Bosnia-Herzegovina but also very much in contact with Croatia and Serbia, and will continue pushing national governments to keep war crimes prosecutions high on the agenda.”

[ Nadina Ronc is a London-based journalist and analyst who covers politics and economics in the U.K. ]

* Opinions expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Anadolu Agency.