Carsten Stahn, Carmel Agius, Serge Brammertz and Colleen Rohan: Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Approach

How is legacy defined and assessed? Are an institution’s effects to be evaluated on the objectives it was designed to achieve, or should those objectives themselves be subjected to scrutiny? Using the International Criminal Tribunal for the former Yugoslavia (ICTY) as its prism, this volume reveals both the tribunal’s normative underpinnings and its actual functioning to help readers address those questions.

The book’s title suggests its structure. Each part reflects its own particular angle of the multi-faceted legacy of the ICTY, offering analyses of international criminal law, transitional justice, political science, history, behavioural science and psychology. The book’s structure implies its top-down approach, starting from broad considerations of the thinking behind the ICTY’s institutional set-up legacy, and continues with comparative analyses of the ICTY’s work with domestic institutions. The volume’s final layer is a micro-level evaluation of how the ICTY permeated local societies.

It is indeed this comprehensive analysis of the ICTY’s several tiers that helps us comprehend that there are at least as many legacies of the ICTY as there are chapters in this book. In their first line, the authors underline the importance of the ICTY’s contribution to holding to account those among the highest echelons of armed actors (16), to offering pioneering interpretations of international humanitarian law (75) and to ushering in the development of international criminal procedures and justice (73), as well embodying a permanent international criminal court able to apportion grave responsibility (63). The book’s multi-disciplinary approach explains how the ICTY’s legacy extends beyond the dry stuff of criminal procedure and court verdicts; reflecting its constant emphasis on the local, the book shows too the broader heritage of post-ex-YU conflict justice, and rather than looking exclusively at the legacy of the ICTY it sees how its effect has been translated to the work of local courts (465, 478–96, 501).

More than simply an advanced encyclopaedia of aspects of the ICTY’s work and its interactions—vertical and horizontal—with other institutions (394, 511) Legacies of the ICTY is as much a manual of good practice, offering concrete advice on preparing cases, collecting evidence (268) and working with witnesses (271–76). More generally it paints for the reader a vivid picture of the courtroom, illustrating how each trial is designed like a complex mechanism comprising a multitude of nuts and bolts, each holding in place some element that is crucial to the smooth functioning of the “machine” (298). Beyond that, the volume also helps pinpoint some of the most thought-provoking and contentious questions facing the ICTY and international criminal justice more broadly: What is the role of judges? (162) How do we understand justice (170) and is our definition of justice driven by broader societal goals we might be seeking to achieve? (421) Can a trial define history and truth? And should it do so? (178) How are justice, truth (227), and peace (525) correlated? How is collective memory shaped and reshaped? (568)

Perhaps the volume’s most important added value is the introspective element of its analysis. It offers important explanations of why certain choices were made at tribunal level, and traces the trajectory of the court’s work, depicting two of its most telling characteristics. First, the ICTY was set up from scratch to accommodate hybrid solutions, including a hybrid model of adversarial proceedings, but over the course of its existence managed to install robust mechanisms like the Association of Defence Counsel (52–9); or the Staff Welfare Office (342). Second, none of the ICTY’s procedures was set in stone, so that difficulties caused by certain of its initial features could be revisited and rethought. Examples are the shifts from primacy to positive complementarity (31–9), amendments to the scope of its outreach programme (355–68), the formation of an association of defence counsel to mitigate procedural inconsistency (50) and to safeguard an accused’s right to fair trial (54–7). Elements of the ICTY’s Outreach Programme were changed, too (359).

The book shows how the ICTY laid the groundwork of its own legacy strategy (92), and the multiple parallel tracks along which it strove to run its external engagement. There was the immediacy of its Outreach Programme (355–68), youth engagement (371) and activities to build capacity for jurists, fostering the multiplier effect. But there was a wish to create a longer-lasting written record of the Tribunal’s functioning, not least in a number of manuals for practitioners, such as the ICTY Manual on Developed Practices, the Defence Manual (59), the Compendium of Lessons Learned and Suggested Practice from the Offices of Prosecutors (95), the Lexicon of Military Terms (348), or the “Position of the Interpreter” obiter dictum (350). Finally, the volume sheds light on some of the tribunal’s lesser-known work from more obscure perspectives, including, for example, use of DNA evidence (212–23), the participation of witnesses and their sense of contributing to truth and justice (225–46), or proceedings against journalists for contempt (307, 322).

Of particular value is the book’s underlining of the collective nature of the ICTY project. The authors describe the contributions to the ICTY by external actors, including the American Bar Association and the Organisation for Security and Cooperation in Europe (255), whose involvement was perhaps triggered by an initially positive view of the new tribunal (16). Similarly, the volume highlights the ICTY’s credibility to outsiders, who saw its findings being reproduced to the extent that US federal courts accepted the ICTY’s authority in its domestic tort-based civil proceedings (130–44). Nevertheless, the volume acknowledges the multitude of difficulties rooted in the court’s flawed relationship with domestic institutions, including problems of access to evidence (31) and the execution of arrest warrants (32, 154). The book aims therefore to underscore the prime importance to the success of the ICTY of cooperation with and replication of the region’s national authorities (32, 126). The book traces the spider’s web of factors that both enabled and hindered the new judicial institution’s efforts to reach its full potential.

Operating in a complex, deeply uncertain and changeable political climate, the ad hoc tribunal faced inescapable constraints on its extraordinary work, and the merest glance at a regional daily newspaper shows how relevant that point is today. Even with the rightly focused critiques of the ICTY’s work, and no matter its extensive efforts to provide space for dialogue both in (77–8) and outside the courtroom (98) no-one can claim that the court has unequivocally succeeded in bringing societies to terms with the past (170–2). The dynamics embedded in post-conflict societies might well remind us of the ‘chicken-and-egg’ conundrum where political elites both drive and feed into community narratives in order to attain popular support, thereby perpetuating polarisation. However, if it is anyone, it is precisely those political elites who control the levers of the sort of power that could be used to change narratives and offer leadership in dealing with society’s legacy (25, 567). Similarly, the book notes that the success of legal strategies hinges upon political factors (470) and is catalysed by international influence and oversight (467, 477, 553). Various contributors to part VIII have proposed different approaches to matters of transitional justice, ranging from calls for a changed strategy of engagement with societal attitudes to underlining the importance of dialogue based not so much on facts but rather “meta-truths” thought of as “higher” truths that everyone recognises and which do not invite divisive ethnic narratives (583). Perhaps comparative analysis of the ICTY and experience of other mechanisms of international criminal justice will unearth underlying factors that might prompt local elites to break the causal chain of nurturing local truths. More pressingly, perhaps it will promote an understanding of how the ICTY’s rich legacy portrayed in this volume could better permeate divided societies and foster transition and reconciliation.