The Bosnian war started 25 years ago this week.
Although bombs ceased falling in 1995, in many ways the people of Bosnia and Herzegovina (BiH) are as divided as ever. The past two decades have repeatedly shown that divisions exacerbated by the war continue to permeate politics.
In fact, according to a 2013 public opinion poll, just one in six residents of BiH feels that the three ethnic groups that live there – the Bosniaks, Serbs and Croats – have reached reconciliation.
It would be easy to pass this sentiment off as what one former U.S. secretary of state called “ancient tribal, ethnic and religious rivalries.” But I believe it raises profound doubts about the ability of international justice to bring about a more peaceful world.
As I demonstrate in my book, “The Costs of Justice,” transitional justice – the process of dealing with human rights abuses committed by a previous regime – is an inherently political process made even more contentious by taking it out of the country. The fallout is not just a lack of reconciliation, but also the constant threat of violence.
In BiH, more than 30 percent believe a renewal of armed conflict could be right around the corner.
The G word
Ongoing resentment in BiH was highlighted by two recent events.
First was the fall election of a Serbian genocide denier, Mladen Grujicic, as mayor of Srebrenica – a town where more than 8,000 Bosniaks, or Bosnian Muslims, were systematically killed in 1995.
Next came the Bosniak response: a February request for the International Court of Justice (ICJ) to review its 2007 ruling that cleared the neighboring state of Serbia of complicity in genocide during the war.
The war may be long over, but wounds are still oozing.
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Lack of reconciliation in BiH comes despite – or perhaps because of – a major international effort to ensure justice in the region. BiH, like other states of the former Yugoslavia, was under the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (ICTY) at The Hague for more than two decades.
The ICTY’s establishment in 1993 was greeted by human rights advocates as the harbinger of a new era of justice. At the time, transitional justice scholars preached its numerous benefits. These included deterring future rights violations, strengthening rule of law, increasing the legitimacy of a new regime and, perhaps most importantly, encouraging reconciliation within broader society.
There are many ways to address past rights abuses – from issuing apologies and providing victim compensation to holding truth commissions and launching criminal trials. The international community has historically focused on the latter – whether at Nuremberg, Tokyo or The Hague.
Criminal prosecutions are largely symbolic, but they are nonetheless important. They signal the end of impunity, or the ability to escape punishment, and the start of a more just order. The fact that post-conflict countries frequently lack institutions strong or independent enough to pursue criminal prosecutions on their own makes international mechanisms indispensable. Indeed, BiH’s inability to carry out its own criminal trials for a decade and a half points to a real need for international courts.
But the very process of taking criminal prosecutions out of the domestic purview can ultimately be a blow to justice. Most locals, for instance, lose interest in trials that play out in faraway courtrooms, meaning trials fail to bring about the sorts of dialogue that might lead to mutual understanding.
Formidable challenges of international prosecutions, from learning the intricacies of a foreign culture and political regime to collecting evidence essential for a successful prosecution, mean that international trials also take a long time to complete. And, of course, they are expensive. The ICTY cost more than US$1 billion, or between $10 million and $15 million for each person accused. Various countries, including the United States, footed the bill.
And yet, rather than improve relations in the region, the ICTY may have incited tensions. Each of the parties claimed they were unfairly targeted. Serbs were infuriated by their overrepresentation on the court’s docket. Croats couldn’t believe that any of their heroes were facing judgment.
Little surprise then that only 8 percent of those polled in BiH in 2013 felt the ICTY had done a good job facilitating reconciliation.
While international courts did little for reconciliation, they fundamentally sabotaged more organic forms of justice than could otherwise have happened at the local level. In the former Yugoslavia, political leaders who were struggling to balance international pressure for – and domestic opposition to – ICTY cooperation opted for half-baked local initiatives designed to satisfy both. The result was a watered-down truth commission here, an apology of questionable sincerity there.
These half-measures ultimately replaced what might have been more earnest mechanisms had they not been established in the context of ongoing international trials. The recent Bosniak appeal to the ICJ, just like the key political victory of a Serb genocide denier, highlights the degree to which justice and historical memory remain politicized in BiH a quarter-century after the war began.
The ICTY’s long shadow
The ICTY and subsequent tribunals demonstrated that international prosecutions can play an important role in ending impunity. But they must carefully balance the need of the international community to ensure accountability with the needs of a local populace to deal with past rights abuses on their own terms.
Limiting international prosecutions to the most serious perpetrators is one way to reach this balance. Few in Serbia shed tears for the arrest of Slobodan Milosevic, a corrupt dictator.
Even then, the recent experience of the International Criminal Court (ICC), established in 2002 as a permanent and global version of the ICTY, demonstrates this can be a tough sell. Numerous African states have accused the ICC of the same bias Yugoslavs attributed to the ICTY. They are threatening to withdraw as a result.
Back in Bosnia, the ICJ last month rejected the Bosniak request on the grounds it did not come from all three members of the country’s tripartite presidency. In other words, the very lack of reconciliation between Bosniaks, Serbs and Croats that prompted the initial appeal now makes that appeal impossible. It is ironic that Bosniaks still feel the need to turn to international justice mechanisms for redress. After all, international justice may bear some blame for the predicament they’re in today.