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Home International Criminal Law Crimes Against Humanity Understanding the ICTY’s Impact in the Former Yugoslavia

Understanding the ICTY’s Impact in the Former Yugoslavia

Published on April 11, 2016        Author: 

As a follow-up to the ICTY extravaganza we’ve had on the blog in the past few weeks, I wanted to post about two companion articles I recently put on SSRN that readers might find of interest. The first is ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Post-Mortem’, and it is forthcoming in the American Journal of International Law; the second is ‘Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences,’ and it will be published in the Georgetown Journal of International Law.

The AJIL piece looks at whether the ICTY managed to persuade target populations that the findings in its judgments are true. To answer that question, foundational for transitional justice processes, the article discusses the findings of a series of public opinion surveys in Serbia, Croatia, Bosnia (designed by the Belgrade Centre for Human Rights, sponsored by the OSCE and conducted by Ipsos – detailed charts, mostly in Serbo-Croatian but some in English, are available here) and Kosovo (sponsored by the UNDP and conducted by a local polling agency, here and here).

The detail and amount of data obtained through these surveys provide an unprecedented level of insight into the reception of factual determinations by international criminal tribunals by target audiences. The surveys show that denialism and revisionism are rampant in the former Yugoslavia. For example, twenty years on, barely one-fifth of the Bosnian Serb population believe that any crime (let alone genocide) happened in Srebrenica, while two-fifths say that they never even heard of any such crime. The acceptance levels for many other serious crimes are in the single digits. They also demonstrate a strong relationship between the respondents’ ethnicity, their perception of the ICTY’s bias against members of their own group, and their distrust in the ICTY and in its findings, which increases the more the ICTY challenges the group’s dominant internal narratives.

Survey findings

This is, for example, how divided realities look like in today’s Bosnia (BiH Muslim/Croat Federation results on top; Republika Srpska at the bottom) – note that these are some of the most serious crimes committed in the Bosnian conflict, all of them addressed in major ICTY cases:

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Here are the attitudes in Serbia (on the basis of the total multiethnic population of the country) towards the 1995 Srebrenica genocide; the polling is quite consistent over time, showing a mild downward trend:

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Here is a chart showing how only 10% of ethnic Serbs in Serbia accept the facts regarding Srebrenica as they were established by the ICTY, i.e. that more than 7000 Bosniak men and boys were executed, with the remainder of the population engaging in different types of denail:

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Finally, here are the results of the Serbian and Croatian surveys regarding crimes in Croatia which again show the full extent of divided ethnic realities – the two surveys are almost exact mirror images of one another. Note in particular the responses regarding crimes in Vukovar and during Operation Storm:

Serbia: responses about crimes by or against Croats

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Croatia: responses about crimes by or against Croats

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Truthiness and reconciliation

The surveys paint a very depressing picture: not only is denialism widespread in the former Yugoslavia, it is perfectly mainstream. Last year’s explosion of nationalism in reaction to the twentieth anniversaries of Operation Storm and Srebrenica provides ample confirmation for the survey results. One could put forward two different hypotheses to explain this picture: yes, the situation is bad, but it would have been worse had it not been for the ICTY; or, yes, the situation is bad, but it was made worse by the ICTY. Both of these hypotheses could reasonably fit the data: the 10% of Serbian respondents who believe in the facts regarding the Srebrenica genocide as the ICTY established them could equally have been 5% or 15% had it not been for the ICTY. But that may simply support a third, and perhaps most likely hypothesis: whatever impact that the ICTY has had, whether of attitude moderation or polarization, was relatively modest. We can definitely say that it has not been transformative – a strong majority within each post-Yugoslav community was nationalist before and remains so today, believing only in the existence of those events which reinforce their prior beliefs.

The basic assumption of transitional justice is that, over time, the truth about crimes committed in the conflicts as established by the ICTY will be accepted by the relevant target audiences, thus putting them on the path of reconciliation. But even accepting the presumed validity of a causal link between truth and reconciliation, each ethnic group in the former Yugoslavia is still firmly attached to its own version of reality. The post-Yugoslav societies are today nowhere near even to simply accepting the potential legitimacy of out-group perspectives. To paraphrase Stephen Colbert, they only care about their own truthiness, which they feel in their gut and are constantly fighting to protect.

In short, the ICTY failed to persuade the relevant target populations that the findings in its judgments are true. It manifestly did not succeed (as the Tribunal’s website claims in a nice bit on its achievements)  in “combatting denial and preventing attempts at revisionism,” let alone in “mak[ing] it impossible for anyone to dispute the reality of the horrors that took place” in the Yugoslav wars. This is simply a fact, as established by the best evidence we have available. The answers to the empirical, “what” question, are I think fairly clear. But even more important is the “why” question – why has the ICTY proven to be so ineffectual in inducing attitude change?

Why?

I try to answer this question in the second, GJIL piece, where I proceed primarily from the theoretical standpoint of social psychology, thus enabling a more sophisticated understanding of how the target audiences in the former Yugoslavia have so persistently resisted internalizing the ICTY’s factual findings (see also this excellent article by Stuart Ford using a similar approach). I argue 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.

For example, average citizens normally lack any immediate experience of specific crimes, which necessitates the mediation of information by third parties, e.g. the media and political and intellectual elites, while they similarly lack the time, expertise and resources to rigorously examine the information by themselves. Remoteness from the event also facilitates the avoidance of revising previously acquired beliefs about the event, for instance through discrediting certain sources of information, such as the ICTY. Crucially, ethnic nationalism continues to play a central role in the politics of the region, providing key political actors with both the opportunity and the incentive to engage in the deliberate manipulation of the (already heavily mediated) information that citizens receive about specific atrocities and the ICTY. These objective limitations then feed into the numerous cognitive biases which shape the processing of any information about mass atrocities, essentially pushing individuals (at an unconscious level) to believe what they want to believe and reason about the ICTY and its work in a way that is most protective of their own sense of identity.

Another crucial point that comes from the psychological research I reviewed is the importance of the link between emotion and cognition. In fact, neuroscience has shown that this link exists at the most fundamental level, with shared neural pathways in the brain. People who have established their beliefs about various events in Yugoslav wars emotionally, as a core part of their identity, are not and cannot be fully rational. They are not going to be dissuaded by 1000-page judgments in legalese English or French that nobody ever even reads. It is in my view futile to hope there is some future tipping point of evidence that we must reach so that people will come to gradually internalize the facts as established by the ICTY. There is simply no such thing. There already are mountains of scientifically rigorous evidence about the inexistent link between vaccinations and autism, or about the ineffectiveness of homeopathy, or about the anthropogenic causes of climate change, yet that does not in any way dissuade the true believers. They can very easily rationalize that information away, because they have access to some other information (which they regard as credible, however factually inaccurate it may be) that allows them to reject the former while maintaining their illusion of objectivity.

In sum, information about the ICTY and generated by the ICTY is processed through a cognitive and emotional filter of prior attitudes and beliefs, and will be skewed to fit those pre-existing beliefs. The psychological research on our flawed, bounded rationality allows us to recognize the malady for what it is: a self-validating, self-perpetuating vicious circle of metastasized confirmation bias. But while the diagnosis is easy, the cure is not. Persuading millions of Serbs, Croats, Bosniaks and Albanians to stop with the endless retrenchment of competitive victimhood and to start believing that members of their own group, indeed frequently the leaders of their groups, committed crimes against other groups is nothing less than a Herculean task. It is akin in magnitude to persuading whole nations of anti-vaxxers, creationists, or climate change sceptics to revise their beliefs, and doing so while fighting contrary propaganda that overwhelms other messages in the public space. This is not something that ten ICTYs could have done. How could they? This is not something that ten ICTYs run perfectly could have done, let alone the one very fallible Tribunal that we have got, a Tribunal that has in small ways and large constantly provided fodder for those who seek to discredit it.

Moving forward

Can one meaningfully write the ICTY’s post-mortem when it is not even fully dead yet? Is it not, as Zhou Enlai supposedly quipped when asked about the impact of the French Revolution, simply “too early to say” what the ICTY’s impact on the former Yugoslavia was? Did it not, for example, take Germany generations to come to terms with its past? Obviously, there is no way to know what the former Yugoslavia will look like twenty, thirty or fifty years from now, and even less so what role the ICTY will be seen to have played in that distant, unknown future. But that is an observation so trivial that it is hardly worth making. I could say, equally trivially, that one’s perspective may vary on precisely how much time counts as “too soon.” After all, it has been twenty years since the end of the wars in Bosnia and Croatia. People who were not even born then are having their own children today. On a human scale at least, that is plenty of time. So even if this post-mortem is premature, it is premature only so very slightly.

The disease is not one that time alone can cure; it is not as if simply letting the decades go by will magically unwind the cycle of bias. Time by itself does nothing – except, perhaps, allow human mortality to run its course. To deploy a famously cynical quote by Max Planck: “A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.” And if we suppose this is true of science, that most rational of human endeavours, and of scientific truths, how more apt it would be for other truths, for the so very emotional questions of individual and social identity. We could hence say that time helps insofar that people whose attitudes have hardened so much that they become essentially unmovable die off, and are replaced by more pliable, less personally invested younger generations.

This is, I think, the only real promise that time can have. But it is only a promise, which rests on a premise – that nationalist worldviews are not going to be transmitted to the succeeding generations. And I am afraid that there is plenty of evidence of such transgenerational transmission, in the former Yugoslavia and elsewhere. Think only, for instance, of attitudes towards crimes committed in the Second World War in today’s Japan. It has been seventy years since the end of that war, but the denial of Japanese war crimes, e.g. regarding so-called comfort women in Korea, is arguably on the increase, and significantly so, coupled with a general relativization of Japan’s role in the war. Why? Because claims about specific crimes play into larger nationalist narratives that are themselves of contemporary political relevance, as they are, for example, in Turkey a century after the Armenian genocide (or “genocide”?).

My point is simply that things can get worse over time, rather than inevitably get better. And there are good reasons to fear such long-term downward trends in the Balkans – Bosnia in particular is a case in point, where school-children learn their history (and a number of other subjects) from different Bosniak, Croat, and Serb textbooks, in ethnically segregated classrooms. This is a recipe for the perpetuation of ethnic divisions and victimhood narratives, rather than for their mitigation. Reconciliation might not require “writing a joint consensual history, but it does require admitting the other’s truth into one’s own narrative” (Kelman, 2008). Today, however, the communities of the former Yugoslavia seem as far away from that point as they have ever been.

Nobody knows whether one day the school-children in the former Yugoslavia will study the conflicts of their past from textbooks prominently referring to the ICTY’s judgments. Nobody knows whether the different ethnic communities will one day reach the point where the negation of the other is no longer seen as a central component of their own identity, whether they will “eventually begin to see the contours of human beings on the other side of the fence, through the dark clouds of enmity that obscure them” (Bar-Tal et al, 2009). But even if that day comes, it will not have come because of anything the ICTY has directly said or done, but because of how the communities of the former Yugoslavia decided to use its legacy – or not. That process has not necessarily been made any easier by the ICTY, or at least there is no evidence that this has been the case. That process will depend largely on wise political leadership, always on very short supply, on transforming the role of the media from escalators to de-escalators of conflict, and on the outcome of other routes of transitional justice, such as the ongoing civil society initiative to create a regional truth and reconciliation commission. But, most importantly, even with best efforts and intentions there is no guarantee whatsoever that that process will eventually succeed.

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6 Responses

  1. Milena Sterio

    Dear Marko,
    I look forward to reading both articles. I agree with your assessment that the ICTY certainly has not been “transformative” – I do not think that any institution could have been transformative, in the context of existing ethnic/nationalistic beliefs/presumptions/”truthiness.” However, what if one were to look at the ICTY as a criminal justice mechanism only – while the tribunal has not contributed toward reconciliation and the transformation of attitudes in the region, has it accomplished significant legal victories and has it contributed to the development of international criminal law? Of course we can all criticize the tribunal for inconsistencies, imperfect jurisprudence, judicial incompetence, etc., what about its overall contribution to ICL? Thoughts? Thanks again for the excellent post.

  2. Marko Milanovic Marko Milanovic

    Hi Milena,

    Thanks for this. As you can see in the intro to my AJIL piece, I agree with you on all counts – the ICTY has been a genuine success in other respects, e.g. in punishing a lot of bad guys, developing ICL etc. My focus here however is solely on that question of who the ICTY established the facts for, and whether it is believed (and if not, why not) by the relevant target audiences.

  3. Marko Prelec

    I think your analysis is sound, and I agree with your conclusions. But the ICTY might have contributed to a consensus (weak as it is) indirectly, by removing war criminals from office. It’s easy to imagine responses well below those in the surveys above, had (say) Karadzic continued in office. (Though pure mortality took others, e.g. Boban and Tudjman, from the scene.)

  4. Barrie Sander

    Hi Marko

    Thanks for this interesting post. I look forward to reading the full papers as this is a topic that is of significant interest to my ongoing research.

    I am in complete agreement that the narratives produced by the ICTY have not been transformative in combating denialism or nurturing reconciliation. The high expectations initially attributed to the ad hoc tribunals have left a lot of low-hanging fruit to critique.

    My questions are as follows:

    1. Acknowledgement Function of ICTY: While not transformative, one could argue that the narratives of the ICTY performed an important public acknowledgement function for those who already believed in the narratives it constructed, but sought some form of public validation of their view. I wondered if you had any thoughts on the importance of acknowledgement (e.g. for some of the witnesses who took part in the proceedings etc.)?

    2. Historical Function of International Criminal Courts: Should your findings impact on how we view the historical record-setting function of international criminal courts going forward? If judicially constructed narratives are likely to be rejected by local populations for a range of reasons, e.g. socio-psychological obstacles, would you prefer narrower symbolic charges in future international criminal trials to ensure a more streamlined process (as was attempted in the case of Lubanga with the narrow child soldier-focused charges)? Or do you feel that the accountability function of international criminal trials means that charges have to be at least reasonably representative of the alleged criminality of the accused?

    Thanks

    Barrie

  5. Marko Milanovic Marko Milanovic

    Marko (Prelec) – I agree that the removal by the ICTY of certain individuals from the region had an enormous impact, but those impacts were highly contingent and largely unintended and unpredictable. Think only of the removal of Seselj, which enabled his erstwhile lieutenants Nikolic and Vucic to rebel against him, for the Serbian Progressive Party and win absolute power in Serbia. That particular decision may prove to have had greater impact for the Serbian people than anything else the ICTY has done, but obviously there was no way to know that at the time. I’m not sure that such removals (e.g. that of Karadzic or Milosevic) directly contributed to some kind of consensus about atrocities forming – the numbers in the Republika Srpska polling in particular could hardly be lower.

    Barrie, the questions you ask are truly excellent but to be honest I’m not sure I have the answers for them, one reason being that my findings regarding the ICTY are not necessarily generalizable to other international criminal courts and tribunals (some of them probably are, others not, but I have to think about this more). Regarding your first question, I do agree that’s important – speaking from my own personal experience (and broadening this to NGO activists etc) it does feel good that your own worldview, which is a distinct minority in your country, is validated by an international institution, a UN tribunal. I’m sure some witnesses, victims etc also experienced personal satisfaction, and that is not a small thing – but it’s not paradigm shifting either in terms of persuading others.

    As for your second question, I can’t even begin to answer it fully or rigorously, for the reasons I gave. I think we can fairly say that a very long trial, scrupulously adhering to standards of procedural fairness, followed by a very long judgment, is not going to be regarded by local populations as any more credible than a trial that lasted a couple of months and dealt with a narrower set of charges. In other words, the mega-trial of the Milosevic or even Karadzic kind is not going to be more effective than alternatives in fostering reconciliation etc. But what kind of trial we should prefer is a more complex question that requires the weighing of other considerations as well.

  6. Pavle

    A good read, Marko, like all your posts. I am not a legal expert on the matters of international justice. I am simply a citizen of Serbia (and Croatia, which I left in 1998; not a refugee) interested in our recent history and hoping that the countries and peoples of former Yugoslavia can coexist in peace. In that sense, the past crimes have to be punished and, maybe even more importantly, widely recognized as such by local Serbs, Croats, Bosniaks, and Albanians. The narrative of perpetual victimhood needs to be supplanted by full understanding of scale and severity of crimes committed in “our name”, which doesn’t in way diminish the need for justice where “their” crimes against “us” are concerned. This shouldn’t in any way be construed as a call to assign the blame on all the sides equally (“izjednačavanje zločina”, a widespread phrase in these parts).

    That said, I think there is another reason the Hague Justice isn’t perceived as all that just and why it hasn’t had any appreciable effect on the attitudes of the Balkan nations. Since I don’t have any personal ties to Bosnia, I will refrain from commenting on the situation there. Concerning Croatia, why should Croats change their outlook on the nature of the war and the atrocities committed there when the ICTY itself, at a public level at least, exonerated them on pretty much all accounts. Not a single (!) Croat has been found guilty for crimes against Serbs in Croatia. Not one in the entire history of Hague jurisprudence. The JCE led by Tuđman&Co has been quashed in its entirety by the Gotovina verdict.

    You yourself said this in the excellent article on the verdict: “In assessing these two narratives, if that is even possible, the Croatian, victorious brand of nationalism is even more poisonous and harder to cure.” What we’re seeing these days in Croatia — an appalling rise of right-wing nationalism and outright Nazi nostalgia indulged and occasionally promoted by the current government — is in part a direct outgrowth of those verdicts. How can anyone expect the public in Croatia to own up to the crimes committed when the Hague itself issued “a clean bill of health”?

    As for Serbia, I can fully agree with you the willingness of the public to admit to and face the crimes of its side is unfortunately also at an unacceptably low level. Serbs are in this no better than Croats, but I think that the motivations are different. While there are likely a large number of those who are outright denialists (much like in Croatia), I posit that there is also a significant number of those who are fully aware of what was done in the wars, but are revolted by the perceived lack of justice for Serbian victims. Honestly, having in mind what I wrote about Croatian crimes above, and also the fact the practically no one of consequence has been found guilty of crimes against Serbs in Bosnia and Kosovo as well, it’s hard to blame the public for their views of Hague anti-Serb bias. The public reactions after the recent acquittal of Seselj are indicative. While a lot of people have no fond feelings for Seselj and are under no illusions on his shameful role in the wars, at the same time they give a pretty standard response: “Well, since no one answered for Operation Storm and the expulsion of Serbs, why should Seselj be held accountable?”

    I personally don’t subscribe to that school of thought and I deeply believe that all war criminals have to be brought to justice. Unfortunately, I also believe that Hague, on purpose or otherwise, was under undue political influence its whole life. It has predominantly itself to blame for much of its failings.