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Some Kind of Justice: The ICTY's Impact in Bosnia and Serbia PDF

495 Pages·2018·8.875 MB·English
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Some Kind of Justice Some Kind of Justice The ICTY’s Impact in Bosnia and Serbia D O iane rentlicher 1 Some Kind of Justice. Diane Orentlicher. © Diane Orentlicher 2018. Published 2018 by Oxford University Press. 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Diane Orentlicher 2018 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging- in- Publication Data Names: Orentlicher, Diane, author. Title: Some kind of justice : the ICTY’s impact in Bosnia and Serbia / Diane Orentlicher. Description: New York : Oxford University Press, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2017048647 | ISBN 9780190882273 ((hardback) : alk. paper) Subjects: LCSH: International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. | War crime trials—Yugoslavia. | War crime trials—Serbia. | War crime trials—Bosnia and Herzegovina. Classification: LCC KZ1203.A12 O74 2018 | DDC 341.6/90268—dc23 LC record available at https://lccn.loc.gov/2017048647 9 8 7 6 5 4 3 2 1 Printed by Edwards Brothers Malloy, United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com. For Mort CONTENTS Preface and Acknowledgments xiii Abbreviations xvii 1. Introduction 1 Taking Its Shape from the Shore It Meets 3 Benchmarks for Assessing Impact 4 Assessing Impact: Recurring Questions 6 Satisfying and Disappointing the Expectations of Victims 8 Social Transformation: Dispelling Denial and Fostering Acknowledgment 9 Catalyzing Domestic Prosecutions 10 PART ONE The Landscape of Justice: Overview of the ICTY’s Relationship with Bosnia and Serbia 2. Forged in War: Bosnia’s Relationship with the ICTY 15 I. Creating a Court in the Crucible of War 16 A. Reactions to the Council’s Action 20 B. The Wartime Court: Early Indictments of Low- Level Perpetrators 27 C. Justice and Peace: Preventing Amnesty at Dayton 31 II. The Aftermath of War 34 A. IFOR’s Policy of Avoidance 34 B. The OTP Forces NATO’s Hand 41 III. Postwar Political Context: Dayton’s Legacy 45 A. Architecture of Division and Dysfunction 45 1. Ethnic Entities 47 2. Entity Voting and Minority Veto 48 3. The High Representative 49 IV. Concluding Observations 56 3. Coerced Cooperation: Serbia’s Relationship with the ICTY 59 I. Defiance during the Milošević Years 61 II. Conflicted Cooperation: The Koštunica- Đinđić Government (2000– 2003) 63 III. The Aftermath of the Đinđić Assassination 71 IV. The Carrot of European Integration 75 V. Concluding Observations 86 viii Contents PART TWO Measuring ICTY Success: Local Perspectives 4. Some Kind of Justice: Bosnian Expectations of the ICTY 91 I. “Justice Is Important for Its Own Sake” 94 II. “We Are Here to Say It’s Not Good to Do That” 97 III. Establishing the Truth and Dispelling Denial 99 A. Dispelling Serb Denial 99 B. Fostering Acknowledgment by Each Ethnic Group 102 IV. Reconciliation 103 V. Bearing Witness 107 VI. Preventing Future Crimes 107 VII. Removing War Criminals 110 VIII. Catalyzing Justice at Home 110 IX. Concluding Observations 110 5. Dealing with the Past: Serbian Perspectives on ICTY Success 113 I. Ensuring Prosecution of Atrocious Crimes; Dispelling Impunity 114 II. Removing War Criminals 116 III. Dealing with the Past 118 IV. Reconciliation 121 V. Strengthening the Rule of Law by Catalyzing Domestic War Crimes Prosecutions 123 PART THREE The Quality of Victims’ Justice 6. The Quality of Justice: Bosnian Assessments 127 I. Broad Patterns in Bosnian Assessments of the ICTY 129 A. Overall Decline in Positive Assessments 129 B. Ethnic Divisions in Overall Assessments of the Tribunal 130 II. The Quality of Justice 134 A. Sentencing Practices 134 1. Sentence Lengths 134 2. Apparent Inconsistency in Sentencing 141 3. Plea Agreements/ Confessions 142 a. Dražen Erdemović 143 b. Biljana Plavšić 145 c. Other Confessions 149 B. Length and Complexity of ICTY Proceedings 153 1. The Trial without End: Slobodan Milošević 154 2. The Heavy Weight of Lengthening Time 157 C. The Collateral Damage of Self- Representation 159 D. The Unindicted 163 E. Removing Dangerous Individuals 164 F. Symbolically Resonant Judgments 165 1. Calling a Massacre by Its Proper Name 165 2. Absence of Genocide Convictions outside the Context of Srebrenica 167 3. Gender Jurisprudence 170 G. Beyond Individual Judgments 172 Contents ix H. Bearing Witness 173 I. “This Is a Political Court” 175 1. Nondisclosure of Evidence in the Milošević Case 175 2. Controversial Acquittals 178 a. Gotovina and Haradinaj Acquittals 179 b. “Specific Direction” 182 c. Trial Chamber’s Acquittal of Vojislav Šešelj 188 III. Concluding Observations 189 PART FOUR Impact on Acknowledgment 7. Denial and Acknowledgment in Serbia 193 I. Serbian Citizens’ Awareness and Acknowledgment of Crimes Committed by Serbs and the Role of Serbian Institutions 195 A. What Might We Expect Serbian Citizens to Know and Acknowledge? 195 B. Awareness of War Crimes as Reflected in Surveys 198 C. Resistance to Reports of Serb Atrocities 207 II. Accounting for Persistently High Levels of Denial 208 A. Serbian Perspectives 208 1. Knowing/ Not Knowing 208 2. Time, Memory, and Context 210 3. Sources of Information about Wartime Conduct: Official and Elite Discourses 216 4. Vilifying the Hague Tribunal 220 5. Other Sources of Information about War Crimes 225 B. Social Science Perspectives 226 1. Impact of Official Narratives: Heuristics and Framing 227 2. Motivated Reasoning and Social Identity 229 3. Dissonance 231 4. Belief Perseverance/ Confirmation Biases 233 5. A Tipping Point: When Does New Information Change Minds? 235 III. Is There Less Denial and Greater Acknowledgment than There Would Have Been without the ICTY? 236 A. Growing Acceptance of Facts concerning Serb Atrocities 237 B. Regression . . . ? 239 IV. Official Acknowledgment 244 A. Early Post- Milošević Years 245 B. Apologies by Subsequent Serbian Governments 246 C. The Parliamentary Declaration on Srebrenica 250 D. Acknowledgment by “Reformed” Nationalists 251 V. A Foundation for Future Acknowledgment? 256 8. Living in Compulsory Denial (Bosnia) 259 I. Bosnian Citizens’ Acceptance of Fundamental Facts of Wartime Atrocities 260 A. What Should Bosnians Know, Say They Know, and Condemn? 260

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