Today, on April 10, the UN General Assembly (UN GA) is holding a thematic debate on the role of international justice in reconciliation processes. The debate was called by UN GA President Vuk Jeremic, of Serbia, in the wake of the recent acquittal of Croatian General Ante Gotovina by the International Criminal Tribunal for the Former Yugoslavia (ICTY). Unfortunately, it has become clear that the real purpose of this debate is directed at undermining the ICTY, rather than to discuss an important issue, not only in the Balkans, but in a growing number of countries.
Experience shows that by holding to account those who have committed serious crimes, criminal justice processes demonstrate that no one is above the law and mark a break with a past of abuse and horrendous crimes. Through prosecutions, a number of societies have shown that human rights are to be taken seriously and victims can feel genuinely protected.
However, the relationship between criminal justice mechanisms, like the ICTY, and reconciliation has been blurred by loose discussion by court officials and others. Claims that these judicial institutions can contribute in some ill-defined way to reconciliation are not always anchored in a clear understanding of criminal justice, nor do they have a normative basis.
While the UN Security Council did mandate the ICTY to “contribute to the establishment and maintenance of a lasting peace” in the former Yugoslavia, it never defined – how? How was a court that was established as a deadly inter-ethnic conflict raged on (and was yet to see its worst atrocities, including the Srebrenica genocide) to act as a tool for reconciliation? And just as importantly, what conception of reconciliation did the Security Council have in mind? These questions deserve serious examination, as we have seen similar expectations set for other international courts, including the International Criminal Court (ICC).
Reconciliation means different things to different people. In Latin America, attempts to ensure accountability for massive human rights abuses committed by right-wing military dictatorships in the 1970s and 1980s gave rise to a strong view among many civil society organisations that reconciliation was a code word for impunity and amnesia, placing a burden of forgiveness on victims, while letting torturers and killers escape justice.
A different approach was to be taken in South Africa in the early 1990s. There, the Truth and Reconciliation Commission, under the Chairmanship of Desmond Tutu, promoted the virtues of forgiveness and reconciliation, not only on a pragmatic basis, but on the basis that it reflected values of particular importance in Africa.
We should be clear that not only is reconciliation understood differently by different people, but it makes little sense to think reconciliation can mean the same thing in the context of a war between states and in the intimate violence between communities driven apart by civil war or repression.
The most powerful example we have today of inter-state reconciliation is almost certainly that of France and Germany. It is easy to forget that they were the bitterest of enemies and that France, in particular, had suffered humiliation in three wars over three quarters of a century. How did this reconciliation come about?
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At least partly, it was possible because the German leadership, which was able to accept its fault and enter into a commitment to radically reform Germany’s relationship with the French state. It was about a genuine acceptance of responsibility. France, however much pain and bitterness it still felt, also saw that a new path had to be found.
Despite some nominal apologies by former heads of state, such process never unfolded in the former Yugoslavia. In fact, many leading Serb politicians, including the current Serbia President Tomislav Nikolic, are well known for their refusal to acknowledge that genocide was indeed committed by Bosnian Serbs in Srebrenica. The ICTY did establish facts about the Srebrenica genocide, and the International Court of Justice ruled on it, but this was clearly insufficient to catalyse an acknowledgement of the kind Germany offered to France.
This example may not even be entirely relevant to the Yugoslav situation, in which a formerly unified country was divided up into independent states. After conflicts that we think of as civil wars and repressive regimes, our understanding of reconciliation needs to be more realistic. Repression and internal strife tear apart the social contract.
Trust has to be earned
What citizens had believed they could legitimately expect of each other and their state institutions is rendered worthless, as abuse and atrocity rips the heart out of the basis of trust. In these circumstances, so familiar to what used to be close knit communities of Bosnia and Herzegovina, for example, reconciliation should focus on what it takes to restore the trust of citizens in each other and, perhaps more importantly, in the state itself.
That trust has to be earned. It cannot be built on denial, and it cannot be built on relationships of power. It has to take seriously the dignity of the parties involved. Recognising the truth of what happened is essential, but so is some degree of justice. We cannot reasonably expect people, and victims in particular, to trust that their rights will be protected under a new regime when no effort has been made to vindicate them in the aftermath of the most egregious abuses.
Can impartial national courts help restore this trust by demonstrating that the state will take seriously the crimes of the past? Possibly. Can international courts be expected to do the same on their own, by conducting lengthy, complicated trials, often removed from the realities of their constituents, who are likely still struggling with the underlying causes of violence? Much less likely.
Criminal justice processes are important, but their principal objective is to conduct fair trials of often extremely complex factual situations and command structures. We should be careful about assigning them objectives tied to complex and contested notions like reconciliation, expecting that a limited number of trials in The Hague will somehow solve all ills in a post-conflict society. In this sense, the UN GA debate is entirely miscast.
The ICTY’s record can be regarded as impressive when it comes to the numbers of indicted persons, as compared to other international courts; the fact that all fugitives have been captured and brought to trial; and that it has brought to justice some of those most responsible for atrocities committed in the former Yugoslavia.
On the other hand, its contribution to the process of reconciliation in the region has been severely limited. In searching for the reasons why this is so, we may need to recognise that international courts may not be equipped to fulfill such expectations – and that, as in the case of the ICTY, there is sometimes simply no existing process of reconciliation for them to contribute to.
David Tolbert is president of the International Center for Transitional Justice. Previously he served as deputy chief prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), registrar of the Special Tribunal for Lebanon and assistant secretary-general and special expert to the United Nations secretary-general on United Nations Assistance to the Khmer Rouge Trials.