When Radovan Karadži faces judgment in The Hague today for the mass murders of the Bosnian war, it will be the most important war crimes ruling in Europe since Nuremberg.
It will also be a moment of truth for the international criminal tribunal for Yugoslavia (ICTY), 23 years after its creation as an ad-hoc experiment in enforcing international humanitarian law and holding war criminals to account. How the tribunal is ultimately judged will profoundly affect how the world responds to today’s mass atrocities and those yet to come.
A guilty verdict is hardly in doubt. Karadži led a breakaway Bosnian-Serb “republic”that became infamous for “ethnic cleansing”- that euphemism for mass killing and terror. The uncertainties are over the degrees of guilt, in particular the question of whether the crimes amounted to genocide.
Compared to the rock-bottom expectations at its birth, the ICTY has been a triumph
Whatever the outcome, it will cause anguish and bitterness in the region. Whatever grim satisfaction that might have been felt in Bosnia, where 100,000 people died between 1992 and 1995, has been attenuated by the passage of time. As seen from Sarajevo, justice delayed by two decades represents justice denied.
Meanwhile, in the half of Bosnia known as Republika Srpska, and in Serbia itself, a guilty verdict will be seen as further proof that the tribunal is inherently anti-Serb, notwithstanding its earlier convictions of Croats, Bosniaks (Bosnian Muslims) and Kosovans; and the fact that the crimes committed in the name of Serb nationalism were on a greater scale.
Fog and fury
On all sides the fixation on the “genocide”issue is likely to cloud any dispassionate assessment of the verdict, as if crimes against humanity were not horrific enough. It will take time for the fog and fury to clear, before a proper reckoning of the tribunal’s contribution will be feasible, but even then any assessment will be coloured by expectations of what the tribunal - and international justice - can achieve.
Considering the rock-bottom expectations at its birth, the ICTY has been a triumph. The tribunal and its twin for Rwanda, the ICTR, were the first international war crimes courts since Nuremberg, and came into being as an exercise in guilt. The mass atrocities would not be prevented, but those responsible could at least face judgment.
Few of the nations who brought the ICTY into life in 1993 had any expectation it would ever function properly. The UK and France in particular tried to starve it of funds in its infancy. In its early days, it could not afford to lease a court building or pay for interpreters. The prosecutors and judges who were hired to fill its ranks, however, were not content to play walk-on roles in a theatre of justice. They forced western capitals to take it seriously and bring defendants to The Hague voluntarily or otherwise.
Dangerous criminals removed
In the end, all 161 indictees on the ICTY list faced justice one way or another, many of them tracked down in an unprecedented international manhunt by the west’s combined intelligence agencies and special forces.
The tribunal fulfilled one of the purposes of justice by simply removing dangerous criminals from the region where they had occupied positions of leadership, and their removal helped stabilise the 1995 Dayton peace accord. Despite the scale of the killings that had gone before, and the fears of Nato peacekeepers, scarcely a shot was fired after the deal was signed.
Furthermore, the tribunal has created an essential historical record of the crimes committed that runs to millions of pages, with extensive eye-witness testimony and forensic evidence. That archive will become more important with every passing year, in the face of nationalist denial and state-sponsored amnesia.
Justice is also meant to provide a measure of solace for the survivors and victims, a sense that their suffering has been heard and understood, with penal consequences for their persecutors. From that point of view, the justice on offer at The Hague was destined to be incomplete. More than 130,000 people were killed in the course of Yugoslavia’s disintegration, most of them civilian victims of war crimes in Croatia, Bosnia and Kosovo. In the face of murder on this scale, The Hague indictment list of 161 suspects was illustrative rather than comprehensive. It is not justice’s fault that it appears so paltry in face of such atrocious crimes.
Lower-ranking defendants were supposed to be judged at state courts in the region, and that process is continuing, albeit partially and painfully slowly.
No real reconciliation
The greatest disappointment of the ICTY was that all the testimony, scrutiny and judgment in the courtroom failed to bring any real reconciliation to the Balkans. Croatia and Serbia have a grudging understanding based on necessity, but Bosnia and Kosovo are more divided than ever.
Children in the different ethnic silos grow up with radically divergent narratives of what happened in their home towns and villages. Just this week, Karadži’s successor as president of the Republika Srpska, Milorad Dodik, honoured Karadži by opening a student dormitory named after him .
Mending those rifts was too great a burden to put on a mere judicial process, but the tribunal did not help itself. Its outreach to the region was belated and underfunded, and the whole process just took too long. Almost everyone in the court - prosecution, defence, the bench and administration - had their legal meters ticking, and little reason to expedite proceedings, at an average cost of more than US$200m a year .
It is an expensive and often wasteful endeavour, but the price of impunity is immeasurably greater. It includes the hundred of billions spent in the face of a terrorist threat that can trace its origins and its ferocity to war crimes and crimes against humanity committed in Syria, Iraq, Libya and elsewhere.
For all its flaws, the ICTY has been the high point in the centuries-long effort to rein in humanity’s most brutal excesses. It has set a benchmark against which all future efforts will be judged.