Given its headline-grabbing caseload, the ICC regime might not appear to the casual observer to favor domestic prosecutions. Under Article 17 of the governing Rome Statute, however, the ICC can only exercise jurisdiction if national courts are “unwilling or unable genuinely” to prosecute crimes falling under the statute. The principle is known as “complementarity,” the exact meaning and implementation of which is the subject of much debate and analysis among scholars and advocates who follow the court. But most agree that domestic courts should handle their own cases if doing so is possible. States that ratify the treaty (121 have so far) are required to incorporate ICC crimes into their domestic legislation.
The ICTY has continued to assert its primacy over its pending cases, such as those of the recently arrested high-level fugitives. Nevertheless, some of the reasoning behind the push for domestic participation in the former Yugoslavia was based on complementarity principles – namely, that domestic cases are closer to those most affected by the proceedings and can restore trust and develop skills in national justice systems. Writing in 2009 about the ICTY’s completion strategy, then-President of the ICTY Fausto Pocar said that “primacy” and “complementarity” were actually “two sides of the same coin” – the ICTY had assumed jurisdiction over cases because of the inability of national courts to do so, and now the tribunal could send cases back to their rightful jurisdictions. (This puts a somewhat positive spin on the motivations behind completion strategy, which was also hastened by concerns about the costs of international tribunals.)
Seen this way, the mix of international and domestic cases that have emerged in response to war crimes in the former Yugoslavia may suggest tandem responses to future atrocities falling under the jurisdiction of the Rome Statute. The ICC may need to exercise jurisdiction in particularly unstable situations, but both the court and international community at large will expect domestic courts to begin processing cases as soon as possible. For those who favor prosecutions after conflicts, this may be crucial to fill justice gaps left by international tribunals, as the ICC has tended to target only a handful or so of high-level suspects in its early cases. The experience of the former Yugoslavia is also likely relevant to accountability efforts that do not involve any international cases, but where domestic courts need significant international assistance. In a presentation last year, David Tolbert, the president of the International Center for Transitional Justice, said that the future of international justice would rely on “nationally-based courts which utilize the support and expertise of international experts,” with a focus on capacity building.
Serbia’s experience provides an opportunity to evaluate such relationships between international and domestic institutions. The domestic system has clearly performed well under certain principles of complementarity. Most sources agree that the war crimes effort has strengthened Serbia’s justice system. Jovanovic said that the skills associated with complex cross-border war crimes cases have been put to use in other criminal matters. The cases have begun to fill justice gaps by prosecuting individuals untouched by the ICTY, however much that effort remains a work in process. Vukcevic said the improvement of the "national justice system is an undeniable fact."
Public opinion polls conducted by the OSCE and partnering organizations in recent years also show that the domestic system enjoys greater legitimacy in Serbia than the ICTY. Granted, the bar was extremely low: In results from the 2009 poll, 78 percent of Serbs had a very negative or mostly negative view of the ICTY (while majorities of Albanian and Bosniak citizens in Serbia had positive views). The domestic system has not necessarily received glowing reviews. In surveys from recent years, only about a third of the respondents believed that the prosecutor’s office had the courage to prosecute high-ranking state officials, and a quarter or less have believed that prosecutors and judges act independently of pressure from state authorities and the public.
Still, only eight percent from the 2009 survey believed that the point of the domestic system is to “place guilt of wartime sufferings on the Serbs.” That report concluded that, when finding Serbs guilty, respondents believed that “the court reached the decision solely on basis of evidence and hence accept what has been determined,” though the percentage holding that opinion dipped from 57 to 50 percent between the 2009 and 2011 polls. The sizeable acceptance of case results involving Serbs would seem to constitute a notable achievement.
Yet transitional justice efforts are intended to contribute to more transformative goals related to the long-term health of a society or region. The most cherished goal, reconciliation, is also the most fraught with complexity: It can mean individual victim-to-perpetrator forgiveness or improved trust and peaceful co-existence between previously combative ethnic groups or political parties, among other interpretations. In interviews at The Hague and in the former Yugoslavia, the most common theme to emerge regarding transitional justice was that the processes of reconciliation can last decades or longer, and still may never reach satisfying conclusions for the wartime generation. The anticipated benefits of “reconciliation” were tossed around rather easily during the early years of the ICTY, burdening the institution with enormous expectations that led to disappointment among its supporters and constituencies.
Skeptics of punitive approaches do not limit their criticisms to the ICTY or international tribunals generally. Indeed, many lament the emerging consensus over an interpretation of complementarity that requires ICC states to prosecute offenders at home, when truth commissions and other locally developed mechanisms might be more constructive while also satisfying the ICC’s desire to end impunity. A widely shared view is that truth commissions will almost always have a better chance at establishing the historical causes and full range of crimes and victim experiences of any given conflict or period of oppression; trials are necessarily narrow by focusing on individuals, however well the crimes are contextualized.
Serbia has yet to benefit from such a truth initiative. Kostunica, with questionable motivations, attempted to form a truth commission in 2001 whose composition was not considered credible and the process died before implementation. An impressive effort composed of many organizations is underway throughout the entire former Yugoslavia to push for a regional truth commission, known as RECOM. Advocates of the process want RECOM to include the participation of victims, civil society organizations and all of the governments of nations that were party to the conflicts. Though doubts remain about the chances of securing formal support from the governments, Croatian President Ivo Josipovic has been public in his support of the initiative and suggested his counterparts also look into possible means of implementation.
It is often unclear what trials can accomplish on their own. At times, trial proponents in the field of transitional justice have scaled back expectations in recent years, in no small part due to the mixed performance of the ad hoc tribunals. They have the luxury of falling back on a legalistic premise – that the prosecution of many cases should not be viewed as an option but as required by international law, given that the Genocide Convention, the Torture Convention and “grave breaches” provision of the Geneva Conventions require states to prosecute or extradite offenders. (A more controversial argument is that customary international law now requires nations to prosecute gross human rights violations.)
Still, there remains a belief that war crimes cases, when well conducted, can help promote the rule of law, protect and elevate the rights of victims, remove dangerous criminals from the streets and establish a credible legal record of atrocities. Such a legal record can at least contribute to an accurate understanding of past crimes that is shared among different ethnic groups.
That last development would surely be transformative in Serbia, as elsewhere in the region, but it has yet to materialize. Serbs may accept the results of individual domestic cases, but not the truth about the broader patterns of atrocities. In the 2011 OSCE public opinion poll, 69 percent of those interviewed believed that Serbs suffered the most during the wars. The respondents believed that Croats, Albanians and Bosniaks (in that order) committed the most crimes during the wars, with Serbs committing the fewest. In addition, 52 percent either did not know what happened in Srebrenica, thought the crimes were made up or that there were casualties in battle but no executions; only 15 percent believed the truth of what actually happened, that more than 7,000 Bosniaks were executed. From those measures, neither the ICTY nor the domestic War Crimes Chamber appear to have contributed to a shared, accurate understanding of the events of the wars.
At least part of the explanation for the ICTY’s failure in this area is presented in Jelena Subotic’s highly regarded book, “Hijacked Justice,” which offers a negative assessment of transitional justice efforts in the former Yugoslavia. Her chief contention with Serbia is that the use of conditionality – the lure of economic aid and EU membership to secure cooperation with the ICTY, specifically, the arrests of suspects – turned war crimes accountability into a “business transition” that avoided any true national reckoning of the past. Subotic recounts how the post-Milosevic Kostunica government orchestrated a series of “voluntary surrenders” that had ICTY indictees transferred amidst praises for their patriotism and sacrifice – without mentioning the nature of the alleged crimes or the victims.
The prospect of EU membership clearly contributed to the May 2008 election of Boris Tadic’s Democratic Party, which created a more favorable environment for war crimes accountability efforts. Subotic nevertheless contends that the EU and Serbia’s numbers-based approach to compliance limited the positive effects that a more genuine transitional justice strategy might have had on Serbian society and governmental institutions.
The prevailing wisdom also places blame on the ICTY itself for failing to invest enough resources into outreach activities to explain its mission and the composition of the cases, in effect allowing its message to become “hijacked” by nationalist politicians. In fact, the ICTY has arranged a number of impressive outreach activities throughout the region, but these efforts are seen as too little, too late. The domestic system has received praise for its public information efforts and proactive relationship with the media. In surveys of journalists in Serbia, Vukcevic and his deputy Vekaric have been named the “most communicative state officials.” However, there is limited media or public interest in the cases. In the OSCE polls, very few Serbs could identify any specific cases that have occurred in the domestic chamber. (Most observers agree that televising chamber proceedings would help.)
Nevertheless, Vukcevic believes that the domestic cases have been contributing to reconciliation.
“In my view, the greatest paradox lies in the fact that cases against individual perpetrators do more for the process of reconciliation than those against top-level indictees,” he explained. “Namely, it is generally easier for people to identify themselves with the victim when they hear that he or she was killed, raped or tortured by a concrete individual. Cases against the highest government officials are complicated and remote from ordinary people."
In addition, the legal records of both the ICTY and Serbia’s War Crimes Chamber – the most tangible outcomes under their control – continue to grow. How that record is used may be largely out of the courts’ control, but its development is consistent with any number of worthwhile transitional justice goals. A more critical interpretation of the domestic cases might question whether their cumulative effect would unduly minimize state complicity. But even Kandic does not qualify her support for the existence of the system itself.
“Trials are very important, even the bad ones, because they establish the facts, and the facts are different than the judgments and the verdicts,” she said. “In 10 years, we might have more professional institutions, and we might have historians who will take all the facts established by the trials and start to discuss them. Trials deal with facts and the testimony of witnesses. This is better than a climate without trials.”