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  • Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal*
  • Payam Akhavan (bio)
I. Introduction 738
II. Justice in the Cynical Theater: Deterrence Against a Culture of Impunity 743
III. Understanding the Non-Ethnicity of Ethnic Conflict 752
  A. The Politicization of Ethnicity 753
  B. A Clash of Civilizations or a Clash of Political Elites in Former Yugoslavia? 758
IV. The Power of Truth 765
  A. What is Truth? 768
  B. Prosecutorial Discretion: Constructing the Optimal Truth 774
     1. The “Big Fish v. Small Fish” Debate 777
     2. The Question of “Ethnic Parity” 781
  C. Tribunal as Theater: The Limits of the Judicial Stage 783
     1. The Tadic Trial 786
     2. The Erdemovic Case 791
     3. The Inaccessibility of Truth 793
V. Arresting the Accused, Ending the Hypocrisy: Time and Trepidation 795
  A. The Soft Options: Imprisonment at Home, Removal from Office 798
  B. Approaching the Hard Option: SFOR Arrest and Strangulation 802
  C. Economic Aid Conditionality as an Incentive for Cooperation: Impunity as an Impediment to Economic Reconstruction 807
  D. The Distant Promise of Democracy 810
VI. Specters of the Past, Promises of the Future 813

[End Page 737]

I. Introduction

From its very inception in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) was surrounded by the so-called “peace versus accountability” controversy. The ICTY was established by the UN Security Council as a measure for the restoration of peace and security under Chapter VII of the UN Charter. But commentators of a realist persuasion suggested that the ICTY was actually an impediment, and not a contribution, to reconciliation in the former Yugoslavia. It was argued that indicting political and military leaders such as Radovan Karadzic and Ratko Mladic would undermine the prospects of a peace settlement because they were indispensable to ongoing negotiations, and because they would have no incentive to put an end to the fighting without assurances of immunity or amnesty. 1 An anonymous commentator went so far as to suggest that “[t]housands of people are dead who should have been alive—because moralists were in quest of the perfect peace. . . . The quest for justice for yesterday’s victims of atrocities should not be pursued in such a manner that it makes today’s living the dead of tomorrow.” 2

The prognosis of the skeptics was wrong. The indictment of Karadzic and Mladic and their exclusion from the Dayton talks did not prevent the conclusion of a peace agreement in 1995. Nor was the ICTY sacrificed at the altar of realism as the Dayton Agreement 3 obliged the parties to [End Page 738] recognize its jurisdiction. 4 Some attributed this notable achievement to the skillful diplomacy of Richard Holbrooke, Warren Christopher, and other US mediators. 5 Others suggested that “realities on the ground dictated the terms of the peace,” and that even without a guarantee of immunity or amnesty, the whims of particular leaders could not obstruct an agreement. 6

In the immediate post-Dayton phase, the peace versus accountability debate focused on the view that “certain leading Yugoslav protagonists do not genuinely believe in legal justice in the form of cooperation with the Yugoslav Court,” that Croat and Serb parties “have stalled with regard to cooperation with international criminal prosecutions,” and that it remains to be seen whether international forces would arrest indicted suspects. 7 Evidently, there was an initial reluctance on the part of international forces to become embroiled in a potential quagmire. But eventually, from July 1997 onwards, elements of the Stabilization Force (SFOR) began arresting indicted persons—both Bosnian Serbs and Bosnian Croats—in Bosnia-Herzegovina. The momentum generated by the fear of further arrests furthermore resulted in several Bosnian Serb indictees voluntarily surrendering themselves to the ICTY starting in February 1998. In addition, an alliance between Bosnian Serb moderates and the international community has significantly diminished the influence of Karadzic and his cohorts, who face ever-increasing isolation and antagonism in Republica Srpska. To the disbelief of many, the possibility that Karadzic may be arrested by the Bosnian Serb police, or that he may even voluntarily surrender himself, let alone be arrested by international forces, is no longer a...

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