No CrossRef data available.
Article contents
Some Kind of Justice: The ICTY's Impact in Bosnia and Serbia. By Diane Orentlicher. New York, NY: Oxford University Press, 2018. Pp. xviii, 476. Index.
Published online by Cambridge University Press: 14 January 2019
Abstract
An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
- Type
- Book Reviews
- Information
- Copyright
- Copyright © 2019 by The American Society of International Law
Footnotes
*
The views expressed herein are my own and are not necessarily those of the U.S. Government.
References
1 This Journal recently devoted an entire issue to the ICTY and its sister court, the International Criminal Tribunal for Rwanda, as both tribunals wrapped up their work: Symposium on the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 110 AJIL (2016), which contains an article specifically on the ICTY's impact in the region, Milanović, Marko, The Impact of the ICTY on the Former Yugoslavia, 110 AJIL 233 (2016)Google Scholar. See also, e.g., Assessing the Legacy of the ICTY (Richard H. Steinberg ed., 2011); John Hagan, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (2003); Kandić, Nataša, The ICTY Trials and Transitional Justice in Former Yugoslavia, 38 Cornell Int'l L.J. 789 (2005)Google Scholar; The Legacy of the International Criminal Tribunal for the Former Yugoslavia (Bert Swart, Alexander Zahar & Göran Sluiter eds., 2011).
2 See Diane F. Orentlicher, Open Society Justice Initiative, Shrinking the Space for Denial: The Impact of the ICTY in Serbia (2008); Diane F. Orentlicher, Open Society Justice Initiative & International Center for Transitional Justice, That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia (2010); Orentlicher, Diane, From Viability to Impact: Evolving Metrics for Assessing the International Criminal Tribunal for the Former Yugoslavia, 7 Int'l J. Transit'l Just. 536 (2013)Google Scholar.
3 Throughout this review, the terms Bosnian and Serbian denote individuals from Bosnia and Herzegovina and from Serbia, respectively. When referring to ethnicity, I use the term Serb for both Serbs from Serbia and Bosnian Serbs.
4 Prosecutor v. Šešilj, Case No. IT-03-67, Judgment, para. 193 (Int'l Crim. Trib. for the Former Yugoslavia Mar. 31, 2016). The Šešilj judgment, which was partially overturned on appeal, generated significant criticism—perhaps none so strong as from the partially dissenting judge, whose opinion opened with a section titled “The General Climate of Intimidation,” which began: “I regret that I have to begin my partially dissenting opinion by specifying that the adverb ‘partially’ here is more of a euphemism. In fact, unusually for a dissenting opinion, I disagree with the majority of the Chamber on almost everything: the description of the context, the use of the evidence, the flawed or, at best, cursory analysis of the evidence, the disregard for the jurisprudence, and the conclusions.” Id., Partially Dissenting Opinion of Judge Lattanzi, para. 1.
5 For the quantitative perspective, Milanović, supra note 1, includes Belgrade Center for Human Rights and United Nations Development Program survey data (which Orentlicher also cites) covering attitudes on the ICTY in Bosnia and Herzegovina, Serbia, Croatia, and Kosovo.
6 Any such individuals certainly would not be alone. Many scholars, including supporters of the ICTY, and international criminal justice more broadly, have criticized the ICTY's reasoning in some or all of the cases dealing with the genocide in Srebrenica. See infra n. 8.
7 Both Bosnia and Herzegovina and Serbia score as only “partly free” in terms of freedom of the press, with journalists regularly facing threats and political actors controlling some media. See Freedom in the World 2018: Bosnia and Herzegovina, Freedom House, at https://freedomhouse.org/report/freedom-world/2018/bosnia-and-herzegovina; Freedom in the World 2018: Serbia, Freedom House, at https://freedomhouse.org/report/freedom-world/2018/serbia.
8 See, e.g., Rome Statute of the International Criminal Court, pmbl., UN Doc. A/CONF.183/9 (1998) (noting that states parties “Affirm[] that the most serious crimes of concern to the international community as a whole must not go unpunished” and including war crimes, genocide, and crimes against humanity, along with the crime of aggression, as crimes within the Court's jurisdiction).
9 See, e.g., id. Arts. 6–8; Statute of the International Criminal Tribunal for the Former Yugoslavia, Arts. 3–5, SC Res. 827, UN SCOR, 48th Sess., 3217th mtg., UN Doc. S/RES/827 (1993), amended by SC Res. 1166, UN SCOR, 53rd Sess., 3878th mtg., UN Doc. S/RES/1166 (1998); Statute of the International Criminal Tribunal for Rwanda, Arts. 2–4, SC Res. 955, UN SCOR, 49th Sess., 3453th mtg., UN Doc. S/RES/955 (1994); see also Margaret M. deGuzman, Gravity and the Legitimacy of the International Criminal Court, 32 Fordham Int'l L.J. 1400, 1407–08 (2008) (noting that “the contextual aspects of the definitions [of genocide and crimes against humanity] seek to distinguish these crimes from ‘ordinary’ crimes at least in part through elements suggesting gravity” while the contextual elements of war crimes require only that the acts be committed during armed conflict).
10 See, e.g., Nahal Toosi, Leaked Pompeo Statement Shows Debate Over “Genocide” Label for Myanmar, Politico (Aug. 13, 2018), at https://www.politico.com/story/2018/08/13/mike-pompeo-state-department-genocide-myanmar-775270 (stating, incorrectly, that describing atrocities committed against Rohingya Muslims in Myanmar as “ethnic cleansing,” has little weight in international law); Adam Taylor, It Wasn't Just the Armenians: The Other 20th Century Massacres We Ignore, Wash. Post (Apr. 24, 2015) (identifying massacres as potential genocide through reference to numbers killed).
11 See, e.g., Sterio, Milena, The Karadžić Genocide Conviction: Inferences, Intent, and the Necessity to Redefine Genocide, 31 Emory Int'l L. Rev. 271, 298 (2017)Google Scholar (questioning the ICTY's “somewhat convoluted judicial reasoning” in the Karadžić conviction and arguing that “specific intent” may be impossible to prove in the modern era and proposing broadening the standard for genocide); Marko Milanović, ICTY Convicts Radovan Karadžić, EJIL: Talk! (Mar. 25, 2016), at https://www.ejiltalk.org/icty-convicts-radovan-karadzic (“I see no moral difference between labelling any given crime as genocide or as a ‘mere’ crime against humanity… . [The] victims are no less dead, and their perpetrators no less culpable.”); Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity (2016) (providing an exceptional account of the intellectual division between the ideas of Hersch Lauterpacht, the architect of the law of crimes against humanity, and those of Raphael Lemkin, who developed the law of genocide).
12 Toosi, supra note 10.
13 Jasenovac, Holocaust Encyclopedia, at https://encyclopedia.ushmm.org/content/en/article/jasenovac.
14 See, e.g., Sterio, supra note 11 (discussing the difficulty of proving genocidal intent with concrete evidence).
15 Taking survey data on acceptance of the facts found in the ICTY's judgments as a starting point, Marko Milanović argues that the “causes of the ICTY's ineffectiveness are complex, turning on an interplay between subjective and objective limitations on individuals’ processing of information about war crimes, limitations that are largely independent of the quality of the Tribunal's own work,” and which overlap substantially with the psychosocial theories and the filters through which average citizens receive information that Orentlicher discusses. Milanović, Marko, Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences, 47 Geo. J. Int'l L. 1321, 1321 (2016)Google Scholar. See also, e.g., Čehajić-Clancy, Sabina, Effron, Daniel, Halperin, Eran & Liberman, Varda, Affirmation, Acknowledgment of In-Group Responsibility, Group-Based Guilt, and Support for Reparative Measures, 101 J. Personality & Soc. Psychol. 256 (2011)CrossRefGoogle ScholarPubMed (discussing how psychological factors related to individual and collective identity impact acknowledgment of in-group responsibility and out-group victimization).
16 See, e.g., Maja Zuvela & Daria Sito-Sucic, Nationalists Win in Bosnia, Including Serb Who Opposes “Impossible State,” Reuters (Oct. 8, 2018), at https://www.reuters.com/article/us-bosnia-election/nationalist-parties-win-bosnias-parliamentary-vote-preliminary-results-show-idUSKCN1MI1C3; Emily Tamkin, Bosnia Is Teetering on the Precipice of a Political Crisis: Should the United States Be Trying to Stop It?, For. Pol'y (Mar. 21, 2018), at https://foreignpolicy.com/2018/03/21/bosnia-is-teetering-on-the-precipice-of-a-political-crisis-balkans-election-law-dodik.
17 The Dayton Peace Agreement, reflecting the causes and results of the war, divided Bosnia and Herzegovina into two entities: Republika Srpska and the Federation of Bosnia and Herzegovina. In the years since the war, Bosnia's population has become highly segregated, with the 2013 census confirming that 92.11% of Bosnian Serbs live in Republika Srpska, and 91.39% of Bosnian Croats and 88.23% Bosniaks live in the Federation. Rodolfo Toe, Census Reveals Bosnia's Changed Demography, Balkan Insight (June 30, 2016), at http://www.balkaninsight.com/en/article/new-demographic-picture-of-bosnia-finally-revealed-06-30-2016. Divisions are not only between entities, but also within the Federation, where in many places, Bosniak and Croat students attend separate schools, or attend the same schools but are kept separate from each other and learn from different textbooks—known as “two schools under one roof.” Mladen Lakić, Bosnian Schoolchildren Win Award for Fighting Segregation, Balkan Insight (July 20, 2018), at http://www.balkaninsight.com/en/article/pupils-from-bosnia-win-max-van-der-stoel-award-07-19-2018. See also Andrew Higgins, In Bosnia, Entrenched Ethnic Divisions Are a Warning to the World, N.Y. Times (Nov. 19, 2018), at https://www.nytimes.com/2018/11/19/world/europe/mostar-bosnia-ethnic-divisions-nationalism.html.
18 See, e.g., Rodolfo Toe & Srećko Latal, Bosnian Serb Chief Plays Nationalist Card in Elections, Balkan Insight (Mar. 21, 2016), at http://www.balkaninsight.com/en/article/bosnian-serb-chief-plays-nationalist-card-in-elections-03-21-2016 (discussing Bosnian Serb political leader's decision to name student dormitory after Radovan Karadžić before election to drum up political support).
19 See, e.g., ICC-OTP, Informal Expert Paper: The Principle of Complementarity in Practice (2003), available at https://www.icc-cpi.int/NR/rdonlyres/20BB4494-70F9-4698-8E30-907F631453ED/281984/complementarity.pdf. For a recent example of engagement, see International Criminal Court, ICC Office of the Prosecutor Participates in Training Initiative in Uganda: Collaboration is Key to Closing the Impunity Gap (Mar. 13, 2018), available at https://www.icc-cpi.int/Pages/item.aspx?name=pr1368.