International Criminal Tribunals and Truth and Reconciliation Commissions tend to be viewed as separate entities with separate goals, one to bring the wrongdoer to justice through international criminal prosecutions the other to bring the facts of human rights violations to justice but lacking any authority to bring the wrongdoer to justice.
The case of the genocide in the former Yugoslavia is an interesting study in that both a truth and Reconciliation Commissions and International Criminal Tribunal were utilized to bring wrongdoers to justice. In the case of Yugoslavia an International Criminal Tribunal was utilized to prosecute perpetrators of war crimes during the Yugoslavian civil war. This tribunal had little impact on the feelings of victimized parties, namely the Bosnian Muslim population. In an attempt to ensure that all parties felt that truth was coming to light and concerns on both sides had been addressed a truth and reconciliation commission had been established to work in tandem with the International Criminal Tribunal. Both of these bodies were designed to end hostilities in the region.
This is an interesting case in point as it indicates that establishment of an International Criminal Tribunal or a Truth and Reconsolidation Commission are not either or concepts. Both can work in tandem with each other and share the same goal of establishing the truth of a given situation and brining the wrongdoer to justice.
The columniation of eight weeks of work in IRLS 405 has demonstrated that there is an interaction between politics, international and domestic criminal justice and the creation of criminal tribunals. While in an ideal world, a transitional government would be responsible for bringing a wrongdoer to justice; this may not always be possible as the transitional government may be unwilling or unable to bring said wrongdoers to justice. An example of this would be the International Criminal Tribunal for the Former Yugoslavia which was an “ad hoc body created by the United Nations. The Yugoslavia Tribunal, have had difficulty gaining custody of most of those they have directed, particularly the most senior of the accused war criminals.”(Hayner 2002, p 18) Difficulties may arise due to the fact that an outside criminal justice system, in this case the International Criminal Court(ICC) and International Criminal Tribunal for the former Yugoslavia(ICTY) overstepped international boundaries and took over prosecution of war crimes perpetrated in the former Yugoslavia.
The following will be an overview of the impact of the ICTY.
International Criminal Tribunals
Overall, an international criminal tribunal and truth commissions can be used in place of trials and tribunals or can be used in conjunction with trials and tribunals “Truth and Reconciliation Commissions are sometimes used in lieu of or in conjunction with courts and tribunals.” (International Criminal Justice | GlobalSolutions.org) In an attempt to bring a wrongdoer to justice, the decision to form a truth commission or to utilize an international criminal tribunal is not an either or decision, both types of justice can work in conjunction with one another in an attempt to right a wrong and/or bring a wrongdoer to justice. Whereas an international criminal tribunal will have the legal authority to investigate a wrongdoing(such as genocide) and at the conclusion of a trial will have legal authority to sentence wrongdoers for their crimes “truth commissions,” which investigate situations and submit reports of their findings but have no power to impose criminal fines or sentences.”(Scharf) Stated differently the purpose of a truth and reconciliation commission or truth commission is to bring the truth (regarding human rights violations) to light. To this end truth commissions have limited authority to compel evidence and interview victims/wrongdoers. The columniation of a truth commission will be a report that highlights and/or brings the facts regarding a wrongdoing to light, on the other hand an international criminal tribunal is an international trial which will end with a conviction or acquittal of a wrongdoer. While the end goal of both the international criminal tribunal and a truth commission are different they can function at the same time. Both types of transitional justice have been utilized in the former Yugoslavia.
A Case for Yugoslavia
Between 1992 and 1995 the Republic of Bosnia-Herzegovina emerged from the breakup of Yugoslavia. Included in the population of the former Yugoslavia were “the Serbs (Orthodox Christians), Croats (Catholics) and ethnic Albanians (Muslims).” (The History Place - Genocide in the 20th Century: Bosnia-Herzegovina 1992-95) The resulting civil war was led by Slobodan Milosevic. Milosevic was able to incite nationalist violence directed toward the Bosnian Muslim population. Accusations of Muslim mistreatment of the Christian minority were the reason behind this violence. The worst atrocities of this conflict occurred “In Srebrenica, U.N. peacekeepers stood by helplessly as the Serbs under the command of General Ratko Mladic systematically selected and then slaughtered nearly 8,000 men and boys between the ages of twelve and sixty - the worst mass murder in Europe since World War II. In addition, the Serbs continued to engage in mass rapes of Muslim females.” (The History Place - Genocide in the 20th Century: Bosnia-Herzegovina 1992-95) In November of 1995 leaders of the warring factions traveled to the United States to begin peace talks “After three weeks of negotiations, a peace accord was declared. Terms of the agreement included partitioning Bosnia into two main portions known as the Bosnian Serb Republic and the Muslim-Croat Federation. The agreement also called for democratic elections and stipulated that war criminals would be handed over for prosecution. 60,000 NATO soldiers were deployed to preserve the cease-fire.” (The History Place - Genocide in the 20th Century: Bosnia-Herzegovina 1992-95)
Unlike other cases of modern Genocide, cases include the genocide in Rwanda (in 1994) and the genocide in the Sudan (Darfur 2003). The genocide in the former Yugoslavia is an area that was/is identifiable to many Americans(as in knowing that the country is located in central Europe)and those on both sides the victim and wrongdoer was also ethnically similar to the majority of Americans(White of European origin). Given the fact that so many could easily identify with the crisis in Yugoslavia the international community still stood by and did very little to end the violence.
What also makes the genocide in Yugoslavia and the International Criminal Tribunal for the former Yugoslavia (ICTY) an interesting case study if the fact that after the after “the Yugoslavia Tribunal was underway for a number of years, in 1997, a truth commission was proposed for Bosnia, intended to serve as a complementary body that would work on the national level to document the massive abuses that took place.”(Hayner 2002, p. 207) While the ICTY “chief prosecutor investigates and brings charges against individuals, while an international panel of judges hears and decides on each case.”(Hayner 2002, p. 207) The Truth Commission was established “in recognition that three contradictory versions of history were being taught by the three ethnic communities of Bosnia the Serbs, Muslims and Croats and that such radically different understandings of the atrocities of recent war could well lead to future violence.”(Hayner 2002, p. 207) In short simply bringing the wrongdoer to justice through legal means would not be sufficient to completely end violence in the region as the various ethnicities in the region may still feel victimized or feel that they may need to take matters into their own hands so to speak to bring wrongdoers to justice. This seems to be indicated by the fact that “the efforts of the Tribunal did not seem to be having any impact on these local dynamics.”(Hayner 2002, p. 207) Given these factors the ICTY and Truth Commission worked jointly to bring peace to a war torn region. While it is improbably that one type of justice or the other would have been enough to end hostilities. The case of the former Yugoslavia is a prime indicator of how Truth Commissions and International Criminal Tribunals can work in conjunction with one another where independent bodies may fail.
According to Mendez in National Reconciliation, Transnational Justice, and the International Criminal Court “The creation by the United Nations of ad hoc war crimes tribunals, the disposition of the judiciaries of some countries to act extraterritorially by applying universal jurisdiction, and the adoption of the Rome Statute for an International Criminal Court reflect a clear tendency in international law to provide the means to ensure that genocide, war crimes, and crimes against humanity do not go unpunished.”(Mendez 2001) International Criminal Tribunals have high minded goals of utilizing international criminal law to bring the wrongdoer to justice. However, bringing the wrongdoer to justice will be through strictly legal means such as gathering evidence, interviewing witnesses and wrongdoers culminating with a judgment in favor of guilt or innocence. As the case of the former Yugoslavia indicates, using criminal laws may not be enough to make all parties involved in crimes against humanity happy. In the end it may not be enough to legally demonstrate that one group is guilty while another group has been victimized, it may be that to end hostilities all sides require being heard, this goal can be accomplished through truth commissions that instead of proving the guilt or innocence of one side over another ensure that both sides feel that their grievances have been heard.
Hayner, Priscilla B.. Unspeakable truths: facing the challenge of truth commissions. New York: Routledge, 2002.
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Mendez, Juan. "National Reconciliation, Transnational Justice, and the International Criminal Court." Ethics & International Affairs 15 (2001). https://edge.apus.edu/access/content/group/191387/Assigned%20Readings/Reconciliation.pdf (accessed August 21, 2012).
Scharf, Michael. "The Case for a Permanent International Truth Commision." scholarship.law.duke.edu. scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1004&context=djcil (accessed August 21, 2012).
"The History Place - Genocide in the 20th Century: Bosnia-Herzegovina 1992-95." The History Place. http://www.historyplace.com/worldhistory/genocide/bosnia.htm (accessed August 22, 2012).