Rosemary Byrne
Prosecutions will not bring reconciliation – but the EU can help bring the Balkans in from cold
THE wheels of justice turn slowly at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. Last week, former Bosnian Serb General Ratko Mladic (below) was convicted of genocide, crimes against humanity, and war crimes 22 years after he was indicted by the ICTY in 1995.
While several appeals are still pending at the tribunal, this is the last trial judgment of ICTY, closing what has been the great pilot project of international criminal justice.
The Mladic judgment is the culmination of a quarter of a century of delayed and at times only partial justice from ICTY for victims and survivors in the Balkans. For Europeans outside the region, this judgment is another in a chain of verdicts that serve as a discomforting reminder that some of the worst atrocities in the post-World War II era have been committed in Europe, against and by Europeans, in the name of ethnic nationalism.
This conflict, arguably more than any other, has shaped our modern expectation that the appropriate response to atrocity is justice. The continued presence of ethnic tensions is never far from the surface in the Balkans, and makes it clear that the ambition to bring reconciliation to a deeply divided society seems unlikely to be delivered by prosecutions alone.
In hindsight, one of the most striking features of the 1990s movement for international criminal justice was the hopes regarding what justice could deliver, and the extent to which the momentum to create international criminal courts gained traction.
In 1994, the year following the establishment of ICTY, the Rwandan genocide had claimed the lives of over 800,000 people within three months. The Security Council relied on the model of ICTY to create a sister tribunal, International Criminal Tribunal for Rwanda (ICTR).
In 1998, the Rome Statute was adopted to create a permanent International Criminal Court (ICC), for what the president of the court, Philippe Kirsch, declared to be “the future of humanity in many ways”. Humanity seems little changed since the creation of the ad hoc tribunals and the ICC. However, there have been some significant advances, be it the symbolism of holding leaders to account for atrocity, or the legal recognition of the different forms of criminality of sexual violence that was historically seen as an unfortunate collateral effect of conf lict.
In the hype about international criminal justice that followed the creation of ICTY and ICTR, the Nuremberg trials assumed a prominent role in the popular imagination. Yet if Germany is seen as a model for a successful transformation from totalitarianism to democracy, our focus should be on the Marshall Plan that helped rebuild a destroyed state, promoted economic growth and prosperity, and supported democratic institutions advancing constitutional values and human rights. The impact of law can seldom be divorced from the social and economic realities that surround its delivery.
As we saw in Northern Ireland,
It is in the accession process that Europe can meet the deficits of international justice
and as Brexit is reminding us, the EU has played an important role in facilitating peace and transition.
Emerging from the wars of secession from the former Yugoslavia, Croatia became the 28th member state of the European Union in 2013. Both Serbia and Montenegro are ‘candidate countries’ and have begun the long process of transposing EU law into domestic legislation. Bosniaand Herzogovina submitted its application for membership in 2016, but along with Kosovo is designated as a ‘potential candidate country’ as it is deemed not yet to fulfil the requirements for EU membership.
The encouragement from Brussels has been strong, albeit conditional on ambitious domestic reforms.
Federica Mogherini, the high representative of the EU for foreign affairs and security policy, observed that “the European Union will never be complete without the Western Balkans. The region is at the heart of Europe. The peoples of the Western Balkans share and contribute to European culture, history and economy. This region is part of Europe, and it will also be part of the European Union – no doubt about that”.
The Brexit negotiations must not distract from the need for a more effective response to the erosion of rule-of-law values within the EU, and for an effective accession process for the Balkan states. If it is to still promote successful postconflict transitions, the EU has to robustly respond to the challenges to the rule of law in Hungary and Poland, and provide alternative social policies that can counter populism in the old and new member states. EU membership can reinforce the values of pluralism and human rights, alongside the benefits of economic integration and free movement.
In the long term, the jury is still out on the impact of the prosecutions of war criminals. It is in the accession process, however, that Europe can exercise its responsibility to meet the shortterm deficits of international criminal justice. Rosemary Byrne is associate professor in international law at the School of Law, Trinity. She has spent two years observing the trials at the International Criminal Tribunal for Rwanda, and been a consultant for the International Criminal Court.