Utilizing the Clarity of Hindsight
“If we’re not willing to look back into the past to find the truth about what happened, we really can’t move into the future with any hope for healing.” - James Talent
Conflict in the eastern Europe during the early 1990′s resulted in roughly 130,000 deaths, spurring the international community to create the International Criminal Tribunal for the Former Yugoslavia (ICTY). The slaughter of roughly 800,000 people in Rwanda shocked the international community into action, creating the International Criminal Tribunal for Rwanda (ICTR) in November of 1994. Today, over two decades later, the tribunals are winding down the remainder of their obligations, and the question is: what kind of legacy have the ICTY and ICTR left behind, and what can we learn from them in order to optimize international legal processes in the future?
The beauty of having legal proceedings about conflicts is that they clarify the details of events in the past. While these records will never be complete because some of the stories are necessarily lost in the process of people becoming victims, nevertheless our of understanding the situation comes nearer to the truth. This historical record will often expose surprising parts of a conflict. As a result of the extreme levels of detail necessary for international criminal prosecutions, the blatant failures of other international agencies inadvertently become unveiled; like the failure to prevent the massacre of roughly 8,000 Muslim men in Srebrenica by UN Peacekeepers, or the "Dutchbats" being held responsible for the death of Bosnian civilians. With the facts being spelled out so carefully in a courtroom, the "good guys" are also forced to admit where they made mistakes and provide compensation to the victims, forcing a resurgence of true patriotism. In other words, the tribunals are excellent examples of how humanity has brought justice into the world. The tribunals have been criticized as another example of international “victor’s justice”. While certainly not perfect, they do succeed at smashing down some of the walls of impunity on all sides of a conflict, exposing both those who commit atrocity crimes, and those who fail to prevent them. If this kind of trend continues, “victor’s justice” will be a thing of the past.
“Justice has nothing to do with victor nations and vanquished nations, but must be a moral standard that all the world's peoples can agree to. To seek this and to achieve it - that is true civilization.” - Hideki Tojo
One way we can improve future tribunals is by recognizing flaws in the past, and subsequently making an effort to remedy them. A major weakness was that the ICTR was located nearly 10,000km away from the conflict in The Hague, Netherlands. While The Hague is an excellent place for anything with the word international in front of it, future courts or tribunals ought to be located as locally as possible. First and foremost, this is important so that the communities can observe what takes place there. Part of justice involves is having the victims recognize that perpetrators are being held accountable; this is an important, perhaps necessary, part of healing and rebuilding post-conflict. Furthermore, I will wager that if future legal mechanism are created closer to their respective conflict, their capacity for reducing conflict via deterrence would improve proportionally (with a threshold, of course). So, future courts or tribunals ought to be, practically speaking, as close to their respective conflict as possible.
The international tribunals were surprisingly effective, given that they are the world’s first attempt at international criminal trials since the Nuremberg Trials shortly after World War II. The tribunals had practically nothing to work with, and had to precisely etch out legal definitions while pioneering down the road against impunity, making bold statements in the process. Jennifer Trehan came to speak to our class about the tribunals, and we had a lengthy discussion about how the ICTY had a difficult time deciding whether the Srebrenica massacre was considered genocide. 8,000 people being killed, while staggering to fathom, has a difficult time reaching the “gravity threshold” of genocide. In other words, is 8,000 dead people enough? The tribunal ended up ruling that Srebrenica was indeed considered a genocide since 8,000 was a large enough figure proportional to the region which was targeted, and part of a larger plot to destroy a population. Using the tribunals as a model, future legal systems will be able to more easily classify massacres as genocides, thus expanding the jurisdiction of international courts and working toward an to end impunity.
