blog posts from GYC's participants, alumni, & staff
By Pinar Cil
Reflections on the role of the ICTY, now nearing the end of its mandate
“The dead cannot cry out for justice. It is a duty of the living to do so for them.” — Lois McMaster Bujold
During the 1990s, Sarajevo, and indeed, all of Bosnia and Herzegovina (BiH), was on the brink of destruction. The conflicts that took place in the former Yugoslavia resulted in some of the most heinous crimes in modern history. From ethnic cleansing to sexual violence, this richly diverse land was consumed by death and despair almost overnight. As shells bombarded Sarajevo, wearing away the vestiges of its imperial past, or as mothers cried for their sons in Srebrenica, the world silently watched. The West’s reaction, in turn, was confused, erratic, and anti-climatic. Soon after, the country became the site of collective memory. Of political meaning. Of pain. But it also became the living reminder of human neglect.
In essence, this is a story about the human capacity to hurt one another. It is also, however, about the human capacity to heal.
So in what form does this healing occur? How much of the truth is needed to ensure justice?
There is no simple answer to these questions, however, one player in particular has been key to BiH’s collective healing – The International Criminal Tribunal for the Former Yugoslavia (ICTY).
Since its establishment in 1993, the ICTY has transformed the landscape of international law, making senior leaders accountable for the crimes that took place in the former Yugoslavia. Thanks to courts like the ICTY, the question today is no longer whether leaders should be held accountable, but rather when they will be called to account for their past actions. Moreover, the ICTY was the first international criminal tribunal to enter convictions for rape as a form of torture and for sexual enslavement as a crime against humanity, as well as the first international tribunal based in Europe to pass convictions for systematic rape as a crime against humanity. Considering that the total estimated number of women raped during the war ranges from 12,000 to 50,000, this is no small feat by any means, and is regarded as a major legal precedent in international justice.
This is not to say that the Tribunal has not faced its fair share of criticism over the years either.
Many observers note that the war in Bosnia during the 1990s created a “hierarchy of trauma” in which crimes like sexual violence were ‘put on the backburner’ so to speak, in comparison to crimes like ethnic cleansing or torture. While the Tribunal recognized sexual violence as a crime against humanity, many victims still face immense challenges when it comes to the prioritization of their files. Cases involving women raped by rank-and-file soldiers, for example, are often passed to lower-level regional courts, where victims may be asked to give testimony in front of the perpetrators themselves, with no witness protection programs available.
The ICTY’s sentencing and plea bargain practices have also been subject to scrutiny. To date, the Tribunal has issued 161 indictments for serious violations of international humanitarian law, yet has only issued five life sentences – Ljubiša Beara, Stanislav Galić, Milan Lukić, Vujadin Popović, and Zdravko Tolimir. As such, some sentences have been considered too mild. For instance, in 2010, Veselin Šljivančanin’s sentence for his involvement in the Vukovar massacre was cut from 17 to 10 years, causing outrage in Croatia. Moreover, such sentences are often the product of plea bargains, whereby defendants may exchange vital information for a lighter sentence, for example.
Another criticism pertains to the Tribunal’s slow conviction rate and efficiency. In the twenty-two years of its existence, countless victims and their families have waited for some form of closure, whether it was to discover the location of a mass grave that might contain the remains of a loved one, or to finally see perpetrators serve their sentences. However, like in any domestic court, the administration of justice in international criminal law is prone to procedural delays. Indeed, justice was denied when Slobodan Milošević (President of Serbia from 1989 to 1997 and then President of the Federal Republic of Yugoslavia from 1997 to 2000) died in detention only a few months before his four-year trial verdict was delivered.
Regardless, the Tribunal’s days are numbered. Since the ICTY was established as a temporary institution, with an expected expiry date of 2017, appeals are now on the clock. In the meantime, the Tribunal has been preparing its final handover and coordination of files to the domestic courts in the former Yugoslavia.
But the real question is: does an ad hoc international tribunal ever really shut down? What will be the ICTY’s lasting legacy?
Despite its criticisms, the ICTY remains to be an essential institution that has been instrumental to strengthening the national legal systems of the former Yugoslavia. If nothing else, it has played a major role in ending impunity in the Balkans, and beyond.
 Hughes, Stuart. “Bosnia’s Wartime Rape Survivors Losing Hope of Justice.” BBC News. 1 Apr. 2014. Web.
Pinar Cil (GYC Bosnia ’15) is a JD/MA candidate at the University of Ottawa’s Faculty of Law and the Norman Paterson School of International Affairs (NPSIA) at Carleton University in Canada. Hailing from Windsor, Ontario, Pinar has travelled extensively through Europe, and is thrilled to have gotten the chance to explore Bosnia & Herzegovina with GYC, and learn more about this region’s turbulent past.