Reflecting on the Legacy of the ICTY: The Past (24 Years) and the Future

picture of ICTY SE

Last week at the ASP, a side event that I attended alongside other fellow delegates from the Canadian Partnership for International Justice (CPIJ), reflected on the International Criminal Tribunal for the Former Yugoslavia’s (ICTY) 24-year long fight to end impunity and hold accountable those most responsible for serious violations of international humanitarian law. The CPIJ delegates and I were also honoured to meet with former ICTY Judge, Mr. O-Gon Kwon, who was recently elected President of the ASP until 2019. Mr. O-Gon Kwon offered his expertise on a number of topics, including the ICTY. For instance, he was asked about the most important lesson the ICC could learn from the ICTY, in his experience as a judge. In his response, Mr. O-Gon Kwon highlighted the component of greater victim participation and protection as a significant improvement of the ICC as compared with the ICTY.

Reflecting on the legacy of the ICTY over the past 24 years is crucial. We must take the time to look at the past and quantify what seemed to work well, and, perhaps more importantly, what the Tribunal has been unable to address or has underdelivered on, in part, as a result of its ambitious mandate, budgetary factors and other logistics. By recognizing the limitations and/or constraints of the Tribunal, the international community will only then be in a better position to offer recommendations for future advancements in the field of international criminal law and justice.

The ICTY side-event featured five panelists: Migel de Serpa Soares (opening remarks); Stephen Mathias, Assistant Secretary-General for Legal Affairs; Judge Carmel Agius, ICTY President; Serge Brammertz ICTY/MICT Prosecutor and John Hocking, ICTY Registrar. Mr. Elbio Rosselli presented the closing remarks.

In his speech, Miguel de Serpa Soares distinguished two particular areas of the Tribunal that could be improved in order to increase the future effectiveness of international legal institutions. First, he underscored the financial realities of the Tribunal. Both the length of trials and the associated costs have raised questions about efficacy. Second, he listed the treatment and protection of victims as something that must be accounted for. The fact that it may be a victim’s first time being involved in a legal proceeding can be a very overwhelming experience. This must be considered throughout the justice process to ensure victim protection – especially protection from their offenders.

Serge Brammertz honed in on the Tribunal’s success by recognizing the institution for being an effective information gathering tool. Such information collected over the years has contributed to facilitating the truth and educating societies on the crimes that were committed as well as the brutal reality that transpired in the siege of Sarajevo and the Srebrenica genocide, for instance. Mr. Brammertz also highlighted the ICTY’s jurisprudence on command responsibility as something that will prove useful for current and future criminal justice institutions, since holding commanders responsible for their involvement in crimes can, in turn, increase the likelihood of fostering a deterrence effect.

The final two speakers, Mr. John Hocking and Mr. Elbio Rosselli, offered a very – perhaps overly –  positive assessment of the ICTY. For instance, Mr. Hocking stated that the ICTY treated every person with humanity and dignity and, further, claimed that “when we respect human rights and when we respect human dignity, it is there that we advance the protection of human rights for all”. Consequently, he expressed his opinion that the ICTY’s success was in prosecuting, with due process, those considered most responsible for the crimes committed in Former Yugoslavia and, further went on to say that, thanks to its contribution, “criminal justice is not anymore a question of ‘if’ but a question of ‘when and how’.” In a similar vein, Mr. Rosselli indicated that the decision to create the Tribunal demonstrated profound commitment to ensuring that egregious violations of international law do not go unpunished.

The voices missing from the panel included those of victims and civil society actors on the ground in Bosnia-Herzegovina. They would have provided a more objective and holistic analysis of the work of the ICTY.

To date, the ICTY has indicted 161 individuals. To some, especially those directly involved in the investigation and prosecution phases and the inner workings of the Tribunal, this number may be hailed as a success. While it is no question that the ICTY has made important advancements in the field of international criminal law, it is, however, also essential to consider the legacy of the ICTY within the countries of the Former Yugoslavia, and for the victims and survivors. Domestic hostility towards holding war criminals to account is still very much a reality in Bosnia-Herzegovina, Serbia and Croatia. Given this, though, has the fact that the ICTY has not been able to counter such domestic hostility dampened the Tribunal’s legitimacy? These types of considerations should continue to guide our discussions on future reflections on the ICTY.

o-gon kwonMr. O-Gon Kwon with the 2017 Canadian Partnership Delegates

This blog post and Nicole Tuczynski’s attendance at the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

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