Confronting the Yugoslav Controversies: A Scholars' Initiative

The International Criminal Tribunal for the Former Yugoslavia

10 Vojin Dimitrijević, team leader Julie Mertus, team leader John B. Allcock Edina Bećirević Mikloš Biro John Cerone Ana Dević Ranka Gašić Eric D. Gordy James Gow Dejan Guzina Olja Hočevar van Wely Constantin Iordachi Selma Leydesdorff Vuk Maksimović Lara Nettelfield Richard M. Oloffson Diane Orentlicher Nenad Popović Blerim Reka Ruth Wedgwood Paul Williams Maryanne Yerkes This chapter was revised and edited by John Allcock from previously discrete contributions written by him, Mikloš Biro, Vojin Dimitrijević, Eric Gordy, Julie Mertus and Richard Oloffson. Selma Leydesdorff provided material from Dutch-language sources. Other team members made additional , though less extensive contributions. The process of editing, summarizing and condensing the penultimate 33,000-word draft has necessarily merged formerly separate contributions to the point of making individual acknowledgment impracticable. The National Endowment for Democracy funded an analysis of Serbian media by Mikloš Biro, as well as a series of statistical surveys conducted by Vojin Dimitrijević and Igor Bandević in Serbia, and by Julie Mertus and Olja Hočevar van Wely in Bosnia, Croatia and Kosovo. Field work by Maryanne Yerkes appeared separately as “Facing the Violent Past: Discussions with Serbia’s Youth” in Nationalities Papers 32/4 (December 2004), subsequently republished in Thomas Emmert and Charles Ingrao, eds., Conflict in Southeastern Europe at the End of the Twentieth Century: A Scholars’Initiative (New York & London: Routledge, 2006). The chapter benefited from extensive comment and criticism during three lengthy project-wide reviews in March-April 2004, July-August 2005, and December 2005-January 2006. 347 The International Criminal Tribunal for the Former Yugoslavia ◆ John B. Allcock, Editor ◆ New Questions for Old The Prospectus of the Scholars’Initiative (SI) summarizes the concerns of Group 10 in three questions. “To what extent is the ICTY [International Criminal Tribunal for the Former Yugoslavia] a political body? To what extent is it impartial? To what extent is it anti-Serb?” In the course of our research we have moved away from the attempt to answer them either in simple negative or affirmative terms and have arrived at the conclusion that it is more useful to investigate the sense in which it might be said that the Tribunal is political and the gap between intention and effect with respect to its impartiality. Perhaps more significantly, we believe that it is important to challenge the framing of partiality or impartiality in terms of the specific position of many Serbs. The project sets out to challenge accounts of the Yugoslav experience embedded in the lay understanding of history, particularly in the region itself. These accounts often need to be challenged, not because the presumed “facts” upon which they are based are false but because the very intellectual framework within which they belong is distorted. To What Extent Is the ICTY a Political Body? The question contains the rhetorical implication that the ICTY should somehow not be a political body and that to reveal its political character is to expose its fundamental illegitimacy. This language is encountered frequently in press and public discussion of the Tribunal within the region, but no social scientist would ever entertain it seriously. All courts are political bodies: they are essentially embedded within the state. The fact that the ICTY is an international tribunal cannot 348   ◆   John B. Allcock be expected to elevate it above the world of politics into some Platonic realm of ideal justice. The properly social-scientific answer to the original question is an explanation of the specific manner in which international justice takes on a political aspect.1 To What Extent Is the ICTY Impartial? Because courts are embedded within a political matrix they are never completely impartial—although their effectiveness and legitimacy rest upon the belief in their impartiality. A striking feature of the work of the ICTY, however, is the gap that has grown up between the international perception of its legitimacy (based substantially upon a belief in its impartiality) and local doubts on this score. Understanding of the importance of the Tribunal as an experiment in international justice is best advanced by rephrasing the original question in order to explore the origins and significance of that gap in perception. Is the Tribunal Anti-Serb? This certainly has been a widespread perception within Serbia. To tackle this question without further qualification would not be very helpful. The result would be to frame the SI irrecoverably as either pro- or anti-Serb. In fact, when one...