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THE FORA FOR JUSTICE
Americans particularly insisted on clarifying circumstances in which the crimes
were committed. Ihose who have not yet watched it, should see a brilliant Istvan
Sabos movie Taking Sides, based on the actual interrogation in the US occupation
zone of Wilhelm Furtwangler, then-conductor of the Berlin Philharmonic charged
with serving the Nazi regime, as it includes fascinating scenes of the fact-finding
during the interrogation.
Now, it is often perceived that the ICTY had a similar mission and that
reconciliation in the region of the former Yugoslavia could not be possible without
setting a clear historical record. Note that the ICTY founding document was
silent on reconciliation, but it was soon recognized in the ICTY annual report
of 1994: “Far from being a vehicle for revenge, it [ICTY] is a tool for promoting
reconciliation and restoring true peace.”” Reconciliation later prominently figured
in the ICTY practice, as well.
Despite difficulties in measuring, one cannot but to conclude that the ICTY
failed to facilitate reconciliation among divided nations in the region of the
former Yugoslavia partly because it failed to establish historical facts beyond
those necessary to determine the defenders’ guilt. A lack of clear victor in the
ex-Yugoslav case, which made the ICTY completely dependable of conflicting
parties in providing evidence of any kind, was a major source of frustration. On
each occasion when the prosecution introduced evidence to establish historical
facts beyond those proving the charges against the defendant, the trial went on a
wrong track. This was the case, for example, when the Milosevic trial commenced
by the testimony of Mahmud Bakali, a politician from Kosovo that came from
the same ex-Yugoslav communist milieu as MiloSevi¢. At the trial, Bakali (like
Miloëevié) used the opportunity to build a political case, which damaged the
ICTY’s credibility in Serbia by all accounts. Unlike Bakali’s testimony (which
anyhow had little to add to MiloSevi¢’s potential guilt for the crimes committed
in Kosovo), a videotape, used in the course of a prosecutor’s cross-examination
of a witness, showing the members of paramilitary formation Scorpions killing 6
Muslims from Srebrenica, chilled Serbia.?* Although for procedural reasons it was
not formally admitted into the evidence in the MiloSevic¢ trial, in Serbia, the wall
of denial began to crack with this videotape. What I want to say is that legalist
approach to truth-establishing had broader impact on the conflicting parties than
other truth-establishing strategies in building the case against Milosevic.
2 See the first ICTY Annual Report, A/49/342 S/1994/1007, para.16.
°3° See Coalition for International Justice, Chilling Video Footage Shown of Purported
Execution of Srebrenica Muslims By ‘Scorpions’ Paramilitary Unit — Allegedly Under
Serbian MUP Command, Institute for War & Peace Reporting (31 May 2005), https://iwpr.
net/global-voices/chilling-video-footage-shown-purported-execution-srebrenica-muslims¬
scorpions.
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