New Article on Deterring Wartime Atrocities

Civilians typically bear the brunt of suffering in contemporary conflicts.  Long after liberated Nazi concentration camp survivors held up the first sign declaring, ‘Never Again!’ civilians have faced genocide in Bangladesh, Burundi, Guatemala, Cambodia, the former Yugoslavia, Rwanda, and Darfur.  Sexual violence, torture, and forced disappearances also count among the innumerable horrors that civilians continue to endure.

In the 1990s, international officials sought to respond to such suffering by establishing a new generation of wartime international criminal tribunals (ICTs or war crimes tribunals).  In particular, in 1993 the United Nations Security Council created the International Criminal Tribunal for the former Yugoslavia (ICTY, or Yugoslav Tribunal).  The ICTY paved the way for the establishment of the permanent International Criminal Court (ICC) five years later.  Unlike earlier ICTs in Nuremberg and Tokyo—as well as recent war crimes tribunals in Rwanda, Sierra Leone, Cambodia, East Timor, Lebanon, Bosnia, and Kosovo—both the ICTY and ICC are mandated to prosecute international criminal law (ICL) violations committed in the context of active armed conflicts.  In so doing, the ICTY’s and ICC’s founders hoped that they might, among other things, deter combatants in those conflicts from perpetrating violence against civilians.

Over 25 years after the establishment of the first wartime ICT, there are still more questions than answers regarding these institutions’ role in deterring atrocities.  Skeptics contend that, in the heat of battle, combatants are unlikely to perceive a substantial risk of international legal punishment.[i]  Moreover, ICTs face formidable political obstacles that impair their ability to secure arrests and convictions, and thereby enforce the law.  Pessimists argue that if an ICT were in a position to arrest weak combatants (including rebels), doing so might motivate encourage them to escalate attacks on civilians to gain leverage that would help them to evade international criminal prosecution.[ii]  In contrast, optimists argue that ICTs can deter violence against civilians so long as their officials secure the prosecutorial support necessary to punish war criminals.[iii]

In a new article—”Deterring Wartime Atrocities: Hard Lessons from the Yugoslav Tribunal” appearing in International Security (edited at Harvard University’s Belfer Center for Science and International Affairs)—Dr. Jacqueline R. McAllister argues that none of the aforementioned views fully captures how and when wartime ICTs might deter atrocities against civilians.  Insights from criminology, as well as research on civil conflicts and international legal compliance, suggest that ICTs are most likely to deter government and rebel forces from committing atrocities against civilians when all three of the following conditions are present: (1) ICT officials have secured sufficient  prosecutorial support, (2) combatant groups rely on support from liberal constituencies, and (3) combatant groups have  centralized structures. Case studies of the ICTY’s impact on fourteen combatant groups from the Yugoslav conflicts—combined with hundreds of field interviews with war veterans and others involved in hostilities (whose perspectives have been missing in existing studies on international criminal deterrence)—confirm these predictions.  The ICTY’s record thus sheds important sight into how and when contemporary wartime ICTs—including the International Criminal Court—might succeed in deterring combatant atrocities against civilians.

To learn more about Dr. McAllister’s work, follow her on Twitter @j_r_mcallister.

[i]. Tom J. Farer, “Restraining the Barbarians: Can International Criminal Law Help?” Human Rights Quarterly, Vol. 22, No. 1 (February 2000), pp. 90–117, doi.org/10.1353/hrq.2000.0006; James F. Alexander, “The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact,” Villanova Law Review, Vol. 54, No. 1 (2009), pp. 1–55, http://digitalcommons.law.villanova.edu/vlr/vol54/iss1/1; Kate Cronin-Furman, “Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity,” International Journal of Transitional Justice, Vol. 7, No. 3 (2013), pp. 434–454, doi.org/10.1093/ijtj/ijt016; Susanne D. Mueller, “Kenya and the International Criminal Court (ICC): Politics, the Election, and the Law,” Journal of Eastern African Studies, Vol. 8, No. 1 (2013), pp. 25–42, doi.org/10.1080/17531055.2013.874142; and David Mendeloff, “Punish or Persuade? The Compellence Logic of International Criminal Court Intervention in Cases of Ongoing Civilian Violence,” International Studies Review, Vol. 20, No. 3 (September 2017), pp. 395–421, doi.org/10.1093/isr/vix042.

[ii]. Jack Snyder and Leslie Vinjamuri, “Trials and Errors: Principle and Pragmatism in Strategies of International Justice,” International Security, Vol. 28, No. 3 (Winter 2003/04), pp. 5–44, doi.org/10.1162/016228803773100066; Jack Goldsmith, “The Self-Defeating International Criminal Court,” University of Chicago Law Review, Vol. 70, No. 1 (2003), pp. 89–104, https://chicagounbound.uchicago.edu/uclrev/vol70/iss1/7; Jack Goldsmith and Stephen D. Krasner, “The Limits of Idealism,” Daedalus, Vol. 132, No. 1 (Winter 2003), pp. 47–63, https://www.jstor.org/stable/20027822; Daniel Krcmaric, “The Justice Dilemma: International Criminal Accountability, Mass Atrocities, and Civil Conflict,” Ph.D. dissertation, Duke University, 2015; Monika Nalepa and Emilia Justnya Powell, “The Role of Domestic Opposition and International Justice Regimes in Peaceful Transitions of Power,” Journal of Conflict Resolution, Vol. 60, No. 7 (October 2016), pp. 1191–1218, doi.org/10.1177%2F0022002714567946; Alyssa K. Prorok, “The (In)compatibility of Peace and Justice? The International Criminal Court and Civil Conflict Termination,” International Organization, Vol. 71, No. 2 (Spring 2017), pp. 213–243, doi.org/10.1017/S0020818317000078; Michael Broache, “Irrelevance, Instigation, and Prevention: The Mixed Effects of International Criminal Court Prosecutions in Atrocities in the CNDP/M23 Case,” International Journal of Transitional Justice, Vol. 10, No. 3 (November 2016), pp. 388–409, doi.org/10.1093/ijtj/ijw020; Julian Ku and Jide Nzelibe, “Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?” Washington University Law Quarterly, Vol. 84, No. 4 (2006), pp. 777–834; and William A. Schabas, “Victor’s Justice: Selecting “Situations” at the International Criminal Court,” John Marshall Law Review, Vol. 43, No. 3 (Spring 2010), pp. 535–552, https://repository.jmls.edu/lawreview/vol43/iss3/3.

[iii]. Hyeran Jo and Beth A. Simmons, “Can the International Criminal Court Deter Atrocity?,” International Organization, Vol. 70, No. 3 (Summer 2016), pp. 443–475, doi.org/10.1017/S0020818316000114; Hyren Jo and Beth A. Simmons, “Can the International Criminal Court Deter Atrocity?—CORRIGENDUM,” International Organization, Vol. 71, No. 2 (Spring 2017), pp. 419–421, doi.org/10.1017/S0020818317000042; Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York: W.W. Norton, 2011); and Courtney Hillebrecht, “The Deterrent Effects of the International Criminal Court: Evidence from Libya,” International Interactions, Vol. 42, No. 4 (2016), pp. 616–643, doi.org/10.1080/03050629.2016.1185713.

Final Judgments in The Hague: Reflections on the Yugoslav Tribunal’s Legacy

ICTY_Final_Judgment_Pic

At the end of 2017, the International Criminal Tribunal for the former Yugoslavia (ICTY) closed with a bang. Within weeks of shutting down, the Trial Chamber found former Bosnian Serb General Ratko Mladić—the Butcher of Bosnia—guilty of genocide and crimes against humanity. Shortly thereafter, the Appeals Chamber affirmed almost all of the convictions of six former Croatian officials in Prosecutor v. Jadranko Prlić et al.  As Presiding Judge Carmel Agius rendered the verdict, one of the six defendants—Slobodan Praljak—drank a vial of poison and subsequently died. This blog post will explore key aspects of the ICTY’s history that shed insight into why these events were both so momentous and controversial.  In so doing, it offers a reflection on what the ICTY’s final months might mean for Southeast Europe moving forward.  Ultimately, the debates the ICTY has helped fuel constitute one of its most important legacies.

The UN Security Council established the ICTY almost 25 years ago to prosecute persons responsible for serious IHL violations committed in the territory of the former Yugoslavia. At the time, the Croatian and Bosnian Wars were ravaging the former Yugoslavia.  Hostilities broke out just after citizens in Croatia and then Bosnia voted for independence.  Ethnic Serbs rebelled, preferring to remain within Yugoslavia where they had enjoyed substantial privileges.  The fighting in Bosnia—which the ICTY’s final judgments addressed—proved especially deadly.  Bosnian Serb forces, with support from Serbia, quickly secured control of 60 percent of the country.  Bosnian Croat forces, with support from the Croatian government, also rebelled.  Civilians of all ethnicities were caught in the middle, suffering horrific violence.

The ICTY indicted Ratko Mladić just months before the Bosnian War ended. Following hostilities, Mladić fled to Belgrade. Serb authorities subsequently shielded him from prosecution for almost 16 years.  Mladić proved even more adept at evading arrest than Serbian President Slobodan Milošević, who landed in the dock a decade earlier.  The fact that the ICTY eventually succeeded in apprehending high-level leaders like Mladić was a real accomplishment that not even the most avid supporters of the Tribunal thought would happen.

Once in The Hague, Mladić faced a long list of 11 charges, including two counts of genocide, five counts of crimes against humanity, and four counts of violations of the laws or customs of war. In 2017, Mladić was convicted of almost all charges, receiving a life sentence. Among other things, the ICTY’s judgment established that Mladić played a key role in the Srebrenica genocide, as well as in the Siege of Sarajevo, which left more than 10,000 people dead.

Reactions to Mladić’s conviction were mixed, particularly in Bosnia and Herzegovina (BiH) and Serbia. Many victims, relatives, and regional activists welcomed the judgment.  However, some victims’ groups, including the Mothers of Srebrenica, called for a harsher sentence.  Serb nationalists rejected the conviction, continuing to recognize Mladić as a hero.

After the Mladić judgment, the ICTY handed down its appeal judgment in Prlić et al. In May 2013, the ICTY Trial Chamber convicted Jadranko Prlić and five co-defendants of crimes against humanity, violations of the laws or customs of war, and grave breaches of the Geneva Conventions, committed in the context of the Bosnian War. Each of the six defendants occupied a high-level position among the predominately Bosnian Croat forces that fought in the Bosnian War.  Crucially, the judgment established that they, along with top Croatian government officials (including President Franjo Tudjman), formed a part of a joint criminal enterprise that pursued the establishment of a Croat-only part of BiH, which they hoped to join with Croatia.  In its final judgment, the Appeals Chamber upheld this and many other earlier convictions.  Praljak’s dramatic suicide occurred halfway through the reading of the appeals judgment.

Reactions to the judgments in Prlić et al were also mixed. In Croatia, Prime Minister Andrej Plenković portrayed the judgment as a “deep moral injustice.”  President Kolinda Grabar-Kitarović also vehemently rejected the Tribunal’s findings on Croatia’s role in the Bosnian War. However, MPs from the opposition Civil Liberal Alliance argued that the judgments rightfully condemned those who carried out bad policies towards Bosnia in the 1990s.  Meanwhile, while many Bosnian Muslim victims were “disgusted” that Praljak was able to commit suicide, some also welcomed the evidence that came to light as a result of the verdict.

What is again clear from this brief survey of regional reactions is that, at the very least, the ICTY’s judgments have intensified debate about the Yugoslav Wars. The ICTY’s judgments have also provided concrete evidence for survivors and advocates to use in their efforts to challenge ongoing denial surrounding the atrocities that occurred.  In particular, beyond victim testimonies, the Tribunal secured numerous wartime records.  Notable among them is a direct order from Praljak to his subordinates “to sort out the situation in Vares showing no mercy to anyone,” using men who were “up to the tasks”.

War crimes tribunals are not silver bullets for addressing legacies of mass violence. They face significant challenges, ranging from a reliance on states to apprehend suspects to complicated sentencing procedures that will inevitably fall short of satisfying many survivors.  Post-conflict societies also face challenges in overcoming denial.  While the ICTY remains a highly controversial institution, it has nonetheless succeeded in passing judgment on over 100 individuals, including top leaders.  The Tribunal has also amassed a tremendous trove of documents and testimonies, which are publicly available.  Both the ICTY’s judgments and legal library constitute one of its most important legacies. In the words of Justice Robert Jackson, the ICTY has provided “undeniable proofs of incredible events.”  It is now up to those who remain to continue the debates that the ICTY’s final judgments helped to intensify.