Global Policy Forum

The ICTY's struggle to prosecute war criminals causes a further decline in credibility in times when progress is vital for Croatia and the relation between Serbia and Bosnia.

It seems strange to think now that, until recently, the ICTY was intended to be closed by December 2010; the UN Security Council recently extended its mandate to December 2012, meaning that the work of the court will continue past the milestone of twenty years since the start of the devastating wars in the former Yugoslavia. Yet the events of the past week seem to indicate that even two more years is not long enough for the ICTY to fulfil its goal of prosecuting those responsible for war crimes and genocide-high profile war crimes fugitives Ratko Mladic and Goran Hadzic have still not been arrested, whilst Radovan Karadzic managed to hide from justice for twelve years between his ICTY indictment and his arrest in 2008. Meanwhile, as Karadzic is now busy making a mockery of the ICTY's process, Britain has found itself in a divisive diplomatic row with Bosnia over the arrest of University of Sarajevo professor Ejup Ganic, whilst last week saw the announcement of a concert to raise money for those indicted by the ICTY in Croatia.

While war crimes were committed by all sides during the conflict in the former Yugoslavia, the 44 month siege of Sarajevo-estimated to have killed 10,000 and injured 56,000-stands out as one of the most shocking. One of the 11 indictments against Radovan Karadzic is his role in the siege as Bosnian Serb leader during the 1992-1996 assault on the city. On Tuesday, a day after Karadzic's trial reopened, the former Bosnian leader-as defiant as Milosevic at the start of his trial in 2001-claimed that Bosnian Muslims orchestrated the siege of Sarajevo in order to engineer a Nato attack on Bosnian Serbs, whilst dismissing the 1995 massacre of over 7,000 men and boys in Srebrenica as a "myth." Then, just as these old wounds were being reopened, Karadzic's trial was postponed once more, so that the Appellate Chamber could decide on Karadzic's appeal against a previous decision in which the Trial Chamber rejected his request for postponement. Like a bad parody of Kafka, the court has postponed Karadzic's trial in order to rule on an earlier postponement. In the meantime, witnesses who came to The Hague to testify have been turned away a second time, and the traumas of those affected by the siege and by Srebrenica have been forced to the surface without any chance to respond.

Whilst Karadzic has been allowed to make a mockery of the ICTY's process, there was nonetheless a glimmer of hope this week that, despite Karadzic's theatrics, the process of bringing war criminals to justice was functioning at least as well as normal. The arrest of alleged Montenegrin war criminal Veselin Vlahoiv Batko, known as the 'Monster of Grbavica', in Spain on Tuesday had little of the drama and myth-making that Karadzic has brought to the justice process: Batko claims he is "tired of running" from the arrest warrants against him and seems likely to co-operate with the judicial process. Spanish newspaper El Pais quoted police sources saying that Batko confessed to his role in raping, torturing and killing civilians in the Grbavica area of Sarajevo during the war. Both Montenegro and Bosnia requested his extradition to their countries after his arrest in Spain; Serbia's Ministry of Justice later added their own extradition request for crimes they claim Batko has committed in Serbia. While the question of which country will succeed in extraditing Batko largely rests on the still unresolved question of whether he has a Bosnian passport, his confession and Bosnia and Serbia's mutual desire to see him brought to justice, could have signalled a return to the grim normality of prosecuting war criminals.

However, Batko's arrest has been quickly overshadowed by that of Ejup Ganic at London's Heathrow airport, provoking a diplomatic row to rival the dispute in late 2009 in which Britain failed to guarantee that Israeli politician Tzipi Livni would not be arrested for war crimes. It seems fair to say that Britain has not yet given a consistent answer as to why they arrested Ganic without bail, yet quickly attempted to make amends with Israel after 'universal jurisdiction' was very briefly invoked in relation to Livni. () A source of particular grievance to many Bosniaks this week has been that Ganic was arrested in Heathrow after an extradition appeal that came directly from Serbia to Britain: the ICTY has already investigated allegations made against Ganic and has refused to issue an indictment for war crimes.

An academic by profession, Ganic was President of Bosnia for around 48 hours in 1992, whilst Alia Itzetbegovic was held hostage by the JNA in Sarajevo airport as he returned from peace talks in Portugal. During this period, Serbian officials claim that Ganic ordered an ambush of a UN-sponsored evacuation, leading to the deaths of 42 soldiers. That Ganic's arrest came just as Karadzic's trial commenced in The Hague has strained tensions between Serbia and Bosnia, as Bosnian officials have seen the arrest of Ganic as 'retaliatory' and an attempt to make an equivalence between Ganic and Karadzic. As of Thursday, a Facebook fan page calling for the release of Ganic has reached over 17,000 members, and the Bosniak member of BiH's three-seat Presidency has vowed to "fight to defend the rights of our citizens and the dignity of war resistance to the aggression that was launched on Bosnia."

It remains to be seen how the ICTY will respond to this escalation of accusations and counter-accusations. It is, however, becoming clearer that citizens from all countries involved in the 1990s conflicts are losing faith in the processes of prosecuting those responsible for war crimes. Last week, it was announced that a concert of Croatian musicians will be held in Split to raise funds for the defence of three we crime indictees accused of the deportation and murder of Serb civilians in 1995-another indication that the UN Tribunal can no longer ignore the issue of its declining credibility in the region, and that allowing Karadzic to turn his trial into a farce is further exacerbating the issue.

Of course, the ICTY's credibility has often been disputed. In her 2004 book 'They Would Never Hurt A Fly', journalist Slavenka Drakulic describes how, in the early days of the Tribunal, nationalist politicians-often the same politicians as had been in power in the early 1990s-created a powerful rhetoric equating defiance of the ICTY with patriotism, and evidence of its alleged bias were widely disseminated. As Drakulic notes, Serbia's experience of sanctions and the NATO bombings in the 1990s also lent weight to feelings that Serbia has been disproportionately targeted or portrayed as the sole aggressor, as did the comparative lack of public acknowledgement of the war crimes committed against Serb civilians. In Bosnia, meanwhile, post-Dayton institutional entrenchment of ethnic divisions means that children from the three official 'constituent nations' now study different curricula based on their official ethnic identity: history classes attended by Bosnian Croat and Bosnian Serb children use textbooks from the neighbouring states, while lessons for Bosnian Muslims use textbooks created for their purposes. All three curricula explain the 1990s wars in terms of a struggle for independence and self-defence against the aggressors of the other ethnic groups: the ICTY prosecutions betray these official histories.

With Karadzic's mocking theatrics, a concert for war crime indictees in Croatia, and a diplomatic row over Ejup Ganic's arrest in London, it is hard to see how the ICTY will recover legitimacy amongst the communities to whom it is intended to bring justice, whilst in the time since the Tribunal was established the compulsory ethnic-identification has become increasingly institutionalised and entrenched. Relations between Bosnia and Serbia had recently been improving-the Sarajevo-Belgrade railway had symbolically re-opened in late 2009-yet Ganic's arrest could easily set back this normalisation. Moreover, the election of the moderate Jospovic in late 2009 in Croatia had been seen as a sign of hope that the country could fully move on from the Tudjman era. The events of this week unfortunately seem to indicate that there is much further to go than had recently seemed possible.