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THE FORA FOR JUSTICE
DOING JUSTICE OUTSIDE THE ORTHODOXY:
WHAT GOOD THE ICTY DID?
As was initially noted, the establishment of the ICTY, besides legal, also had non¬
legal aspirations — the restoration of peace and reconciliation — being the two
most important. While the restoration of peace is often seen to be achieved by
the tribunal’s adherence to the rule of law, justice, and human rights promotion,
it is not well-defined what the tribunals should do to impact reconciliation. The
term reconciliation has been exploited in many ways as it means a different thing
for different people. Most often, reconciliation in the context of international
criminal justice is reduced to the belief that the truth-seeking and promotion of
individual rather than collective guilt will end an intense polarization between
the parties in the war.”
Aspirations like peacebuilding and reconciliation were notably missing in
the IMT mandate. Thus, there is no record of the IMT contribution to peace
for an apparent reason — World War II ended, and the peace was established
before the trial commenced in Nuremberg. Regrettably, the unprecedented
emphasis on peacebuilding in the ICTY’s mission did not add much to further
clarification of international criminal justice raison d’étre. Here I am not alluding
to ineffectiveness of the different peacebuilding strategies to address massive
injustice, but to the failure to prevent the massive atrocities and stop the war,
in the first place. Immediately in the founding document, the 827 UN Security
Council Resolution, the Tribunal was closely connected with the restoration of
peace — the link served as a legal justification for the UN intervention." At that
time, it was perceived that the ICTY would contribute to the peace process by
creating conditions for a less difficult return to normality. It is well known that it
did not happen: the ICTY failed to achieve this objective on any account. Recall
here that in Bosnia and Herzegovina, the war’s worst massacre at Srebrenica, the
genocide, took place at the time when the ICTY Trial Chamber confirmed its
initial indictment against Radovan Karadzi¢ and Ratko Mladic.” Furthermore,
although the ICTY was fully operational by 1999, it was equally incapable of
preventing armed conflict in Kosovo that exploded that year.
V For more see, e.g., David Mendeloff, Truth-Seeking, Truth-Telling, and Postconflict
Peacebuilding: Curb the Enthusiasm?, International Studies Review 6 (2004), 355-380.
18 See the Preamble of the Resolution, http://www.ohr.int/other-doc/un-res-bih/pdf/827e.pdf.
The initial indictment was announced on July 24, 1995. In the ICTY Karadzic judgment,
it is established that “the Prosecution characterizes the killing of Bosnian Muslims from
Srebrenica during July and August 1995 as an underlying act of genocide under Count
2.” The judgment is available at https://www.icty.org/x/cases/karadzic/tjug/en/160324_
judgement.pdf.
+59 s