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Jeffrey A. Justice incomplete: Radovan Karađžic, the ICTY and the spaces of international law. Environment and Planning D: Society and Space 2009,27 3 387-402.

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Justice incomplete: Radovan Karađžic, the ICTY and the spaces of international

law

Revised version for consideration at Environment and Planning D: Society and

Space

Alex Jeffrey March 2009

Abstract

The arrest of Radovan Karađžic in July 2008 and his transfer to the

International Criminal Tribunal for the Former Yugoslavia (ICTY) has brought

international judicial instruments under renewed scrutiny. In particular, the

active pursuit of indicted war criminals across the international borders of the

former Yugoslavia has challenged the primacy of the state as the locus of

judicial authority. Using the arrest of Radovan Karađžic as a starting point, this

paper evaluates the emergence of the ICTY and its contribution to peace

building in the former Yugoslavia. It suggests that the ICTY is challenging

existing international interventions within Bosnia, in particular 1995’s Dayton

Peace Agreement, whilst simultaneously producing new judicial spaces and

encounters. The paper calls for an understanding of international justice not as

an abstract condition or outcome, but as a process that is incomplete and

situated in space.

Keywords

International Law, Justice, Bosnia, ICTY, Radovan Karađžić

Introduction

On July 21 2008 the Serbian Government announced at a press conference in

Belgrade that Radovan Karađžic had been arrested. It transpired he had been

on the run disguised as an alternative healer named Dragan Dabić living in the

city’s suburb of Novi Belgrade. This news came nearly thirteen years after

Karađžic’s initial indictment by the International Criminal Tribunal for the

former Yugoslavia (ICTY) for crimes carried out during the Bosnian war

between 1992 and 1995 including genocide, violations of the laws or customs of

war and breaches of the Geneva Conventions. The arrest was a cause for

celebration, as European and US news networks clamoured to brand Karađžic a

‘monster’. The perceived singularity of Karađžic was reflected in news

editorials that labelled him the “Butcher of the Balkans,”i the individual

responsible for the worst excesses of military and paramilitary violence since

the Second World War. This label paid little attention to the wider context of

Karađžic’s crimes, drawing attention instead to deformities in his personality.

This approach was typified by Richard Holbrooke, the chief negotiator of the

Dayton Peace Accords (DPA) which ended the war in Bosnia in December 1995,

who declared that Karađžic was the “the Osama bin Laden of

Europe”(Holbrooke, 2008).

The dominant repertoire of representations within the media resonates with

how powerful institutions have characterized war criminals in other contexts.

Hannah Arendt examines this process in her authoritative account of the trial of

Nazi bureaucrat Adolf Eichmann for crimes committed during the Holocaust.

Arendt talks of how “comforting” it would have been to prosecuting Israeli

lawyers to present Eichmann as a “monster” (Arendt, 1994: 54 and 276). Arendt

notes how this strategy would have lent moral clarity to proceedings as a clear

distinction could be drawn between victims and perpetrators. Indeed, Arendt’s

motivation for compiling her report on the trial was to illustrate the normality

of Eichmann as an individual distanced from his horrifying crimes through

‘language rules’ which avoided terms such as ‘murder’ and ‘extermination’ and

bureaucratic instruments that distanced him from the killing itself. The Croatian

scholar Slavenka Drakulić (2004) has developed these ideas in the context of

the fragmentation of Yugoslavia. Drakulić explores the biographies of a number

of individuals indicted by the ICTY. She draws attention to the ordinariness of

the individuals involved, examining their unremarkable backgrounds that give

no clue as to their sudden moral transgressions. Drakulić has later contrasted

these narratives with the political and media response to the arrest of Radovan

Karađžic, arguing that “[w]e look for anything that might possibly justify our

belief that he is different, that he is a monster and nothing like us” (Drakulić,

2008).

The practice of setting Karađžic at a moral distance resonates with the wider

international response to the violence of the Bosnian war. Drawing on

poststructural international relations theory, scholars have identified the

discursive tactics of Western politicians and media agencies in distancing

Bosnia as a barbaric place which did not conform to civilised European norms

(Ó Tuathail, 1996; Campbell, 1998). Such foreign policy scripts represented the

conflict as a consequence of ‘ancient hatreds’ and ‘primordial evil’, where victim

and perpetrator were hard to discern within an environment of irrational

violence. The former United Nations Secretary General Kofi Annan has

acknowledged in the subsequent report concerning the Srebrenica massacre of

1995 that the image of the conflict as an outcome of primordial tensions

presented a moral equivalency, where all sides were equally to blame for the

violence (Annan, 1998; see also Simms, 2001: 1). This scripting of the conflict

has been challenged in the post-conflict period in order to accommodate the

demands for justice prompted by the establishment of the ICTY. While media

designations such as ‘monster’ and ‘butcher’ reassure an international public

that the appropriate criminal perpetrators have been apprehended, they are

labels that mask the broader questions of moral and political authority that are

raised by the process of international justice.

In order to confront such questions, this paper will evaluate the role of the ICTY

in the context of the wider international intervention in the former Yugoslavia. I

will argue that in order to understand the position of the ICTY we need to

understand international justice as an incomplete process, rather than an

abstract virtue. This is not to deny the ‘big questions’ of what is meant by

justice, humanity or common morality, but rather to foreground the

opportunities inherent in studying the mundane spaces, actors and materials

through which judicial processes unfold. Exploring the ICTY as an incomplete

process opens up an awareness of two important aspects of the practices of the

tribunal. Firstly, it highlights the continued role of state sovereignty in the

process of international justice, where states continue to shape the function,

form and funding of purportedly international bodies. Secondly, a focus on the

process of the ICTY illustrates the function of space not as a static container for

international judicial bodies but as actively enrolled in its operation and

outcomes.

This argument contributes to a growing body of scholarship exploring the

institutionalisation of international law (Branch, 2004; Peskin, 2005; Allen,

2006). The recent increase in activity of the International Criminal Court (ICC),

the International Criminal Tribunal for Rwanda (ICTR) and the ICTY has

encouraged increased scholarly scrutiny of the mechanisms of transboundary

legal authorities. In the case of the ICC, the indictment of Sudanese President

Omar Hassan al-Bashir and the actions against the Lord’s Resistance Army in

Uganda has illuminated a tension between holding alleged war criminals to

account and attempts to establish a swift resolution to periods of violence

(Allen, 2006). The actions of these United Nations-sanctioned judicial

instruments needs to be placed in the context of more unilateral attempts to

enact law beyond state boundaries, for example in the case of the US detention

centre at Guantanamo Bay established in 1980s and housing ‘enemy

combatants’ in the US-led ‘war on terror’ since 2002. The ICTY, then, does not

stand alone as an experiment in institutionalising international justice, but must

be understood as one example amongst a series of innovations that have

attempted to establish legal accountability beyond the territory of an individual

state.

The paper is divided into five sections. In the first I will consider how the

institutionalisation of international law has required the separation of state

territoriality and legal jurisdiction. In the second section I explore the contested

process through which the UN Security Council established the ICTY in 1993,

focusing in particular on the continued significance of state sovereignty to the

operation of the tribunal. In the third I explore how this form of international

judicial authority has been criticised by scholars who have argued that

international tribunals and courts use a language of moral universalism as a

cloak for Western neo-imperialism. I develop this theme in the forth section by

contrasting the legal imaginaries of the ICTY with the geographical imagination

of the Dayton Agreement. In the final section I explore the ways in which an

appreciation of the process of the ICTY, and in particular the case of the trial of

Radovan Karađžic, can illuminate the new spaces and encounters produced

through this international legal initiative.

Separating Territory and Justice

When Delaney (2001: 252) suggests “state boundaries provide an on-the-ground

framework for demarcating distinct legal orders” he reflects the long-held

assumption that state sovereignty confers legal jurisdiction over a given

territory. This alignment between state territoriality and judicial authority has

come under increased strain over the past two decades. Claims of the ‘crisis’ of

the Westphalian state system have drawn attention to the limitations of state

sovereignty in governing phenomena that operate at a global scale or require

global cooperation (Strange, 1999). Environmental degradation, international

terrorism, the trade in illegal drugs and poverty are often cited as key

challenges to governing capacities of individual states (Benhabib, 2004). These

issues remind us that there are limits to its ability to act as a social, political or

economic container. Perhaps more importantly, they draw attention to the need

for forms of regulation and law that operate beyond the territories of individual

states. This imperative illuminates a contradiction at the heart of modernity

between the solidification of an international state system and the parallel

technological, infrastructural and communications advances that facilitated a

conception of a common human condition.

This apparent contradiction between the primacy of state sovereignty and

normative appeals to common humanity has shaped attempts to establish a

global legal architecture over the past century. The first such attempt followed

the Allied victory in First World War, where the Treaty of Versailles contained a

provision to prosecute the German Kaiser. This endeavour was unsuccessful,

largely on the grounds that European states were not willing to establish a

precedent where heads of state could be held criminally accountable (Bassiouni,

2004: ix). The violence of the Second World War catalysed efforts to promote an

international legal framework. Three legal innovations are particularly

noteworthy. The first was the Nuremberg Charter of 1945, which led to the

prosecution of twenty-one Nazi officials at the International Military Tribunal in

Nuremberg between 1945 and 1949. As Tim Allen (2006) notes, though there

was a historical precedent for prosecution of enemy combatants, the

identification in the Nuremberg Charter of ‘crimes against humanity’

constituted a new legal vocabulary. For the first time an international legal

chamber sought to argue guilt or innocence of individuals on the basis of a legal

code emanating from a conception of common humanity.

This theme was expanded in a second post-Second World War legal innovation,

the Universal Declaration of Human Rights (UDHR) in 1948. Building on the

Nuremberg Charter’s invocation of crimes against humanity, the UDHR outlines

the entitlements that are integral to being human, in particular the rights to

liberty, security and “recognition everywhere as a person before the law” (UN,

2008). The third legal innovation was the revision and ratification of the Geneva

Conventions in 1949, a set of provisions that sought to limit the barbarities of

warfare by codifying a minimum standard of treatment of prisoners of war. As

with the UDHR, the adoption of the Geneva Conventions relied upon the

voluntary agreement of warring states, with little direct means of enforcing

regulations beyond sanctions passed through the United Nations Security

Council.

In order to understand the emergence of international legal mechanisms

scholars have turned to the work of Immanuel Kant, in particular his writings on

cosmopolitan law. As Otfried Höffe has identified, Kant was the first thinker who

“elevated the concept of peace to the status of a foundational concept of

philosophy” (Höffe, 2006: xv). Writing in the 18th century, an era often

characterised as the flourishing of European nation-states, Kant – rather

uniquely – attempted to look beyond what he saw as the limiting aspects of state

sovereignty (see Elden, 2009). In particular, Kant viewed war as unnecessary to

the resolution of conflict in civilized society, and consequently portrayed inter-

state wars as a temporal phase that will give way to a global cosmopolitan order

and perpetual peace. In Kant’s view, the catalyst for such a transition to

perpetual peace would be the rational citizens of democratic states who would

compel their governments to pursue peaceful policies (Habermas, 1998a,

1998b). Kant therefore elevates forms of solidarity beyond the state as the

primary motivation for a more peaceful form of cosmopolitan solidarity, beyond

the sovereignty of individual states. Consequently, Kant’s ideas have been cited

as the inspiration behind ideas as diverse as global human rights and

cosmopolitan democracy.

Perhaps unsurprisingly, the normative and universalising aspects of Kant’s work

have attracted much criticism. Scholars have particularly focused on Kant’s

omissions and forms of politics that Kant’s ideas legitimise. In the former group,

scholars have drawn attention to Kant’s failure to account for the influence of

the idea of the nation, and the consequential power of nationalism to shape

identity formation in confrontational terms (Habermas, 1998a). The political

philosophy of Carl Schmitt (2007) embodies this stance. In stark contrast to

Kant’s conception of global citizenship, Schmitt sketches a concept of political

subjectivity founded on the friend/enemy dialectic. This realist philosophy

rejects the supposed moral universalism emerging out of Kant’s work, casting

such concepts as ideological instruments used by powerful actors to discipline

the behaviour of less powerful adversaries (see Habermas, 1998a 187-190). In a

second body of criticism, scholars have critiqued the political application of

Kant’s ideas. For example David Harvey suggests that the “universal principles”

offered by Kant operate as an “intensely discriminatory code masquerading as

the universal good” (Harvey, 2000: 535). Harvey is particularly critical of the

enrolment of Kantian ideas to justify recent attempts to codify a cosmopolitan

political order, arguing that the “eloquent plea for a new form of cosmopolitan

governance and democracy has as much to do with making the world safe for

capitalism, market freedoms, and social democracy as it has to do with any

other conception of the goodlife” (Harvey, 2000: 560).

There is no shortage of examples to support both Schmitt and Harvey’s

positions, the period since the Second World War has seen the universalising

language of human rights and humanitarian intervention deployed by powerful

states whilst they simultaneously ignore human rights abuses in the name of the

national interest. Over the last decade UN Security Council members have

circumvented the Geneva Conventions without sanction, for example in the case

of Russian treatment of prisoners of war during the conflict in Chechnya

(Cornell, 1999) or the US treatment of ‘enemy combatants’ at Camp Delta in

Guantanamo Bay. In the latter case, former UK Law Lord Johan Steyn (2008: 8)

has suggested that the purpose of holding prisoners at Guantanamo Bay “was

and is to put them beyond the rule of law, beyond the protection of any courts,

and at the mercy of the victors.” In doing so, the US could be accused of

contravening articles 82-88 of the Geneva Conventions that cover disciplinary

and penal sanctions of prisoners of war.

But rejecting Kant’s philosophy on account of either its failure to accord with

the realities of chauvinistic nationalism or its application towards economically

oppressive ends risks overlooking the normative principles on which it is

founded. As Höffe (2006: 3) outlines, Kant’s vision of a cosmopolitan legal order

is couched in a principle that distinguishes between law that has positive

validity (what is laid down as right) and law that has moral validity (what is

right: natural law). This dichotomy helps us narrate, in Seyla Benhabib’s words,

“the growing normative incongruities between international human rights

norms, particularly as they pertain to the ‘rights of others’ […] and assertions of

territorial sovereignty” (Benhabib, 2004: 7). Therefore, the power of Kant’s

work does not emanate from its positive validity: it is clear that utopian visions

of cosmopolitan citizenship are still far from being fulfilled. Rather, we can

recover from Kant a powerful set of normative principles that help us engage

with questions of moral validity: what is right. As Benhabib has recognised,

Kant’s moral framework provides sightlines as to how we understand

responsibility to others, and how this is brought to the fore in political practice.

In an era of flourishing forms of citizenship that do not accord with the neat

tapestry of sovereign states, it seems that the need to explore our moral

responsibility to others is particularly acute.

I would therefore follow Martha Nussbaum (1997) in arguing that Kant’s work

provides a normative framework that helps us evaluate the principles on which

international legal institutions are founded and justified. In political terms these

principles translate to two assumptions: first, that there exists a body of

international humanitarian law from which every human can derive rights,

based upon the shared understandings of humanity and conduct in warfare set

out in the UDHR and the Geneva Conventions. Second, there is an assumption

that sovereign states cannot, or will not, always protect these rights. These two

steps serve to unsettle the conventional understanding of the space of law as

coterminous with the nation-state. While the connection between territory and

law was loosened through the post-Second World War international agreements

and declarations, it was not until the establishment of the ICTY in 1993 that it

found institutional form.

The Creation of the ICTY

The origins of the ICTY lie in the delayed and poorly organised international

response to the Bosnian war. Conflict in Bosnia had broken out in April 1992, as

part of the wider fragmentation of Yugoslavia which had included secessionist

conflicts in Slovenia and Croatia.ii In the case of Bosnia the violence was

particularly acute, as Serb nationalist military and paramilitary forces loyal to

Radovan Karađžić’s Srpska Demokratska Stranka (Serb Democratic Party or

SDS) attempted to carve a Serb territory out of the multiethnic landscape of the

Bosnian state. This effort was assisted by the former Jugoslovenska Narodna

Armija (Yugoslav People’s Army or JNA) and involved the siege of Sarajevo and

the expulsion of victim populations (largely identifying themselves as Bosnian

Muslim or Croat) from towns and villages across eastern and north western

Bosnia. The international response to the conflict was slow, initially the UN

Security Council authorised the limited deployment of a United Nations

Protection Force (UNPROFOR) around Sarajevo and the continuation of the

arms embargo that had been placed over the whole of the former Yugoslavia in

1991. Politicians in Western Europe and North America identified the cause of

the conflict as ‘ancient ethnic hatreds’ and labelled violence a ‘humanitarian

catastrophe’, a Kantian classification that failed to discern between victim and

perpetrator (Ó Tuathail, 2002). The humanitarian intervention that followed was

largely based around delivery of aid, predominantly organised through the

UNHCR (Jeffrey, 2007).

While Western governments conducted hastily arranged peace conferences,

shuttle diplomacy and a search for the ‘correct’ partition of the Bosnian state,

journalists and NGOs in Sarajevo relayed images of bloodshed to global

audiences. This is exemplified in the case of the reports on Omarska

concentration camp broadcast in the summer of 1992 by the journalists Ed

Vulliamy, Penny Marshall and Ian Williams. The images of gaunt men standing

behind barbed wire fences raised the spectre of genocide on the European

continent and sparked global public consternation at the lack of punitive

measures against those that were responsible. While Western leaders

individually spoke of the need to hold individuals to account for war crime, the

prospect of an international judicial instrument capable of prosecuting

individuals was still far off. As Pierre Hazan (2004) has outlined in his

comprehensive account of the emergence of judicial mechanisms during the

Bosnian war, European leaders feared an international tribunal would

jeopardise chances for a negotiated peace. In place of a tribunal, the Security

Council agreed in October 1992 to a more limited commission to gather

evidence of potential war crimes. This body, known as The Commission of

Experts Pursuant to Security Council 780 (abbreviated to ‘The Commission of

Experts’), was hampered from the outset due to the lack of any allocated funds

or resources. As Hazan (2004) notes, the Commission of Experts appeared to

have been established as a public relations exercise – to demonstrate

‘something was being done’ – without the resources to harm the ongoing

diplomatic effort in Bosnia. The commission rapporteur, Cherif Bassiouni, finally

took the astonishing step of moving the Commission’s activities from (under-

resourced) UN offices in Geneva to his university offices at DePaul University,

Chicago, in order assure computer access and establish a secure archive of

testimonies and observations (see Hazan, 2004: 26-30).

The case of the Commission of Experts serves as a precursor to the

establishment of the ICTY. In 1993, the newly-elected US President Bill Clinton

viewed the establishment of an international tribunal as an alternative to his

election campaign pledge to lift the arms embargo on the former Yugoslavia and

carry out air strikes on Serb military positions. This new political will is

supported by the then French foreign minister Roland Dumas, who since 1992

had mounted a personal campaign to establish a war crimes tribunal in the face

of continuing reports from Bosnia of systematic rape, executions and the

expulsion of civilians from their homes (see Hazan, 2004: 34-37). Despite

continuing reluctance from the UK, and concerns from China and Russia over

precedent setting, the Security Council established the ICTY through Resolution

827 on May 25 1993. In response to what it considered as “grave breaches of

the Geneva Conventions” the Resolution 827 tasked the tribunal with

“prosecuting persons responsible for serious violations of international

humanitarian law committed in the territory of the former Yugoslavia” from

January 1991 onwards (United Nations Security Council, 1993).

The mandate of the ICTY states that it may claim “primacy and may take over

national investigations and proceedings at any stage if this proves to be in the

interest of international justice” (ICTY, 2009). The Tribunal was comprised of

three organs: a judiciary, initially consisting of 11 judges though by 2008 they

numbered 30; the Office of the Prosecutor, a position held by Richard Goldstone

(1993-1995), Louise Arbour (1995-1999) Carla Del Ponte (1999-2008) and since

2008 by Serge Brammertz, and the Registry providing administrative support.iii

While parallels can be made to the mandate of the Nuremberg Trials, the ICTY

differs in its attempt to foster a sense of legal parameters to war during the

conflict as opposed to after its conclusion. While this is a significant legal

innovation it almost proved to be the tribunal’s undoing. Wary of unsettling the

diplomatic efforts to resolve the conflict, Richard Goldstone was reticent to

indict key protagonists in the violence between 1993-5. In the post-conflict

period the numbers of indictments have increased, to date the ICTY has indicted

161 individuals on charges of violations of the laws or customs of war and

breaches of the Geneva Conventions.

As evidenced by the contested process through which the tribunal came into

existence, the challenge for the ICTY has been to practice a conception of moral

universalism within an international system that is still organised through state

sovereignty. While the ICTY mandate suggests a form of jurisdiction beyond or

‘above’ that of particular state interests, the reality of implementing

international justice has illustrated the continuing power of state interests to

shape the judicial process. Rather than rejecting attempts at establishing

international jurisdiction on account of its failure to meet Kantian ideals, the

continued significance of the state should urge exploration of the complex and

incomplete nature of international processes of justice. One of the central

challenges to the ICTY has come from those who question whether it can claim

the moral authority to adjudicate criminality across sovereign borders.

Moral Authority

The establishment of the ICTY was celebrated in many quarters for comprising

an “attempt to restore equilibrium to a moral universe overwhelmed by evil”

(Akhavan, 2001: 7). The ICTY marked a shift in international response to the

conflict in Bosnia, which had thus far been characterised by European-led

attempts to broker a peace deal. Specifically, the ICTY introduced a concept of

accountability into the prosecution of the violence, holding individuals

responsible for acts which transgressed the Geneva Conventions. Therefore, the

ICTY is founded on a belief that there are legal and illegal ways of fighting wars

that apply to all humankind, and where transgressions have been made legal

action may be taken. Perhaps inevitably, and reflecting earlier discussion of

Kantian principles, the invocation of moral universalism has attracted criticism,

and we can divide these contributions into two broad camps.

First, there are those who reject the theory of a universal concept of justice or

morality. This response has involved scholars questioning the ability of single

individuals or institutions to articulate a moral vision for the whole of humanity.

This has prompted a notion of moral relativism where morality is derived from

the implicit agreements formed between individuals concerning their

relationship between each other (see Harman, 2007). Within this framework

morality is derived from human agency rather than abstract codes. Moral

relativism reflects the broader intellectual trends with Western social science,

particularly early 20th century US social anthropology, that promoted relativism

as a means through which to critique the dominance of Western values while

also promoting tolerance to diversity (see Hatch, 1997). Consequently, the

argument between moral universalism and relativism recovers the

epistemological tension between modern and postmodern positions within

Western academic thought over the 1980s and 1990s. As Stuart Corbridge

(1998: 45) has identified in the context of Rawls’s (2005) theory of justice,

recourse to moral universalism has often been represented as “dangerously

inattentive to cultural differences and moral particularities.” As we have seen in

the case of David Harvey’s critique of Kant, suspected universalism attracts

scholarly criticism for masking the interplay of power, as certain voices are

promoted as arbiters of morality while difference may be cast out as immoral or

dangerous.

The ICTY would appear particularly suitable for such a criticism, since it derives

its legitimacy from the existence of universal humanitarian law. This mandate

sets a legal framework of conduct in conflict, structured around the premise of

each human receiving protection under international law regardless of their

citizenship or state of residence. Reflecting Corbridge’s (1998) findings in the

case of development ethics, I would perceive this as a minimal universalism,

since the promotion of universal legal personality does not necessarily exclude

other ways of being or forms of knowledge. The alternative, a form of legal

particularism, would serve little utility in attempting to halt the mediation of

social relations through violence, since it would undermine the power to bring

war criminals to trial. It is the universal establishment of accountability and

punishment from which the ICTY derives its judicial power. This is not to

overlook the symbolic capital accrued through the ability to adjudicate the

legal/illegal distinction, but rather to view law itself as a preferable means

through which to negotiate justice in comparison to violent alternatives. By

promoting this minimal universalism the ICTY has been able to produce a space

for the establishment of testimony about the war crimes committed in the

former Yugoslavia. Therefore from the universal emerges the particular: a

highly-accessible archive of accounts of the violence committed during the

Bosnian war. A minimalist understanding of universal morals has been

necessary to allow these situated, grounded and localised testimonies to come

to the fore.

A larger group of critics have accepted the concept of universal morals, but feel

that it is hypocritical to punish certain transgressions of humanitarian law while

ignoring others. This scholarship has emphasised the geopolitical placement of

the ICTY as a tool of Western powers to selectively enforce moral law, while

ignoring their own crimes against humanity in Kosovo and more recently in

Afghanistan and Iraq. For example, Noam Chomsky gestures at this selectivity

in relation to the Milošević trial at the ICTY where he suggests that “any

criminal proceedings [would be] properly focused by those with the guns and

the dollars” (Chomsky, 1999: 86). By extension, commentators have been keen

to point to the anti-democratic nature of the ICTY, which, they suggest, has

promoted the imagined virtue of the international community against the

immoral and untrustworthy Bosnian authorities (Chandler, 2000; Johnstone,

2002). David Chandler (2000: 100) remarks that the ICTY has “sharpened the

distinction between the international community, which could be trusted to

wield power and responsibility, and the Bosnian parties, which were alleged to

be incapable of acting against war criminals or protecting human rights.”

These criticisms present the ICTY as a tool of imperialism, where powerful

states exert their authority over subjugated post-conflict territories through the

selective prosecution of alleged criminal activity. Echoing certain aspects of the

particularist logic discussed above, this approach advances a normative

argument that territory and justice should be reconnected and crimes

committed during the conflict should be prosecuted through national war

crimes courts.

This critical work brings to light the emergence of the ICTY in an uneven

international landscape of power. The Tribunal’s mandate was established by

the UN Security Council and it is consequently open to accusations of reifying

the hegemony of a select group of powerful states. But the solutions offered by

Chandler appear misdirected and in some respects characterise the wider

struggle by the academic left to critique the role of the international community

in the fragmentation of Yugoslavia.iv This position is encapsulated by Diane

Johnstone’s revisionist account of international intervention in the former

Yugoslavia, where the international community (and in particular NATO) is

accused of cultivating the conflict for hidden motives of establishing

international protectorates in the Balkans. The challenge for such accounts is

dealing with the facts of war crimes and ethnic cleansing, though for Johnstone

this is navigated by denying the seriousness of the Srebrenica massacre and,

perhaps even more bizarrely, suggesting that the Sarajevo siege was actually a

case of two sides fighting each other in the urban landscape. For Johnstone

(2002: 91) the conflict was a ‘destructive chaos’ where “in the confusion of

suffering destruction, and conflicting accusations, it is extremely difficult for

outsiders to sort out exactly who did what to whom.” Of course, the irony of this

position is that it mirrors the mainstream moral equivalency voiced by political

elites in Western Europe during the conflict itself (see Simms, 2001).

Significantly for this discussion, the approach of scholars such as Johnstone and

(to a lesser extent) Chandler fails to table a suitable alternative to prosecution

through the ICTY. If we discount on empirical grounds downplaying, or simply

ignoring, war crimes (even the authorities of the Republika Srpska have now

grudgingly acknowledged the reality of the Srebrenica massacrev) we are left

with the enduring problem of how individuals are made accountable for war

crimes and punished for their actions.

Since 2002, national war crime chambers have been established in the former

Yugoslavia in order act as successor courts to the ICTY. But their localised

nature should not be interpreted as a necessary virtue. As Human Rights

Watch (2004) has identified, these courts have suffered from ethno-national bias

both in their selection of individuals to indict and the rates of conviction. For

example, war crimes monitoring by the OSCE in Croatia found that in 2002 83

percent of Serbs were found guilty while only 18 percent of Croats were

convicted. Similar patterns can be seen in courts in the Republika Srpska, (RS)

which indicated in March 2002 it was preparing cases against 300 Bosniaks and

only 12 Serbs (Human Rights Watch, 2004: 3). This should not be a surprise;

public support amongst Croats and Serbs for the activities of the ICTY and

successor courts is extremely low. As an indication, Drakulić (2004) suggests

that in Croatia to stand up against the ICTY is a sign of patriotism, while

compliance is represented by government officials as an unfortunately

necessary step in order to achieve the broader political objective of joining the

European Union (see Jeffrey, 2008). This connection between the ICTY and

closer European integration was evident in the case of Karađžic’s arrest, with

UK Foreign Secretary David Miliband quick to assert that Karađžic’s trial at the

Hague would constitute “an important step forward” in Serbia’s desire to join

the EU (see Meade, 2008).

The significance to state interests to the functioning of the ICTY demonstrates

more than the continuing significance of Westphalian sovereignty to the

international judicial institutions. The power of nationalist politics is a

reflection of the legacy of the wider international intervention in the former

Yugoslavia over the course of the 1990s, and in particular the identity-based

logic of the Dayton Peace Accords (DPA). In order to set the actions of the ICTY

in context it is necessary to explore how the DPA has provided a territorial

framework for the continued dominance of nationalist political parties.

Relationship with the Dayton Peace Agreement

The prevalence of national bias within local mechanisms of justice in Bosnia is

evidence of the solidification of social cleavages in the post-Dayton era. The

centrality of identity to the local courts’ conviction rates must not be dismissed

as a natural expression of ethnic tension, to do so would echo the primordialism

embodied by the leaders of Western Europe in their initial responses to the war.

The ability for nationalist political and judicial bodies to thrive in post-conflict

Bosnia is a consequence of the connection made between identity and territory

at the DPA (Campbell, 1998). The DPA devolved power away from the state

towards two sub-state entities: the RS and the Muslim-Croat Federation.

Though compliance with the ICTY was written into the DPA, it was not part of

the main text of the General Framework Agreement but it is instead inserted in

Annex 6 (‘the Agreement on Human Rights’) under Chapter 3, Article XIII

paragraph 4 (and even then the word ‘Criminal’ is removed). This marginal

position of the ICTY at Dayton is reflected in the comments of Pauline Neville

Jones, a negotiator within the British delegation, who admits “we expected to

isolate Karađžić and Mladić, to marginalize them in order to reduce their

political influence, rather than arrest them” (cited in Hazan, 2004: 70).

As Richard Holbrooke acknowledges, the DPA was a good agreement “on

paper” since “it ended the war and established a single, multiethnic country”

(Holbrooke, 1999: 335). The fact that Holbrooke evaluates the agreement in

theoretical terms is significant since its implementation has proved extremely

difficult, with slow refugee returns, stagnant state-level policy making and

continued inter-ethnic tension. The logic of the agreement is one of peace

through the establishment of new sub-state polities and drawing a line under

the past. There is no formal structure through which reconciliation could be

enacted and prior to 2002 local authorities did not investigate war time

atrocities in case tensions between ethno-national groups were exacerbated.

The desire by international supervisory bodies to avoid engaging with the

recent past allowed competing nationalist narratives of history to be

commemorated through invented traditions and new public monuments within

the urban landscape (Jeffrey, 2006; Robinson et al., 2001).

The DPA was an expression of pragmatism, a desire to establish peace at any

cost. This clearly contrasts with the moral imagination of the ICTY, where the

past is confronted, documented and adjudicated in law. Using Aurélien Colson’s

(2000) distinction, we could identify the DPA as embodying a logic of peace

while the ICTY embodies a logic of justice. The DPA seeks to pacify Bosnian

politics through the establishment of ethno-national territories whose borders

are inviolable. In contrast the logic of justice is centred on deterritorialised

concerns of establishing guilt and innocence in line with humanitarian law and

punishing perpetrators accordingly. The logic of peace would appear to demand

that local warlords are brought into the political process in order to avoid the

use of violence. In contrast the ICTY has sought to arrest indicted war criminals

regardless of their position within governmental institutions, such as the cases

of the former leader of the Serb Radical Party Vojislav Šešelj and former

president of the RS Bijlana Plavšić.

The ICTY’s experience of a struggle between the politics of peace and the

imperatives of justice is not unique. Tim Allen’s (2006) recent instructive

account of the attempts by the ICC to prosecute members of the Lord’s

Resistance Army (LRA) in Uganda illustrates the complex relationship between

peace and justice in conditions of violent civil conflict. In particular, his account

draws attention to the tension between the Ugandan Government’s Amnesty

Act, designed to weaken the LRA by granting immunity to fighters who put

down their weapons, and the legal due process of the ICC which sought to hold

LRA fighters to account. Supporters of the amnesty argued that they were

promoting forgiveness, an alternative form of justice to the ICC’s model of

criminal accountability (Allen, 2006: 86). But in response, the ICC has

highlighted that it is not an absolute form of justice, in logistical terms it cannot

possibly seek to prosecute every individuals involved in war crimes. Rather it is,

in practice, a selective judicial instrument that seeks to punish only the most

serious offences. In doing so the ICC has been able to adopt aspects of both the

logic of peace and logic of justice. This has been more difficult in the Bosnian

example, since the DPA and the ICTY appear to promote alternative moral

imaginaries that have hardened positions on either side of the justice/peace

binary.

As we have seen, the ICTY’s separation of justice and territory has allowed the

propagation of a form of morality detached from ethnic paranoia and struggles

over territory. The ICTY has attempted to draw attention to the nationalistic

violence at the heart of the Bosnian war and sought to make individuals

accountable. This approach differs from the pragmatic and realist DPA, which

appeared to sacrifice justice in the hope that it would bring an end to the

violence. The DPA’s approach was no surprise; to a greater extent those who

planned the violence were responsible for negotiating the agreement. Though

Radovan Karađžic was not present at the Dayton negotiations his central

defence at pre-trial hearings at the ICTY has consisted of claims that he had

accepted an offer of immunity from Richard Holbrooke and in exchange he

would “withdraw not only from public but also from party offices and completely

disappear from the public arena, not give interviews and not even publish

literary works, in a word, become invisible long enough for the Dayton

Agreement to be implemented in full” (Karađžic, 2008: 1). Though Holbrooke

denies knowledge of this agreement,vi it is perhaps a fitting (if fictional)

illustration of the tension between the DPA and the ICTY. The DPA was

negotiated in an environment of realpolitik where nationalist politicians were

heralded as the post-Socialist saviours of their communities. Rather than

championing nationalist leaders, the ICTY has attempted to construct an arena

where those responsible for ethnic cleansing and targeting civilians may be held

accountable. While it could be argued that Dayton’s peace was a necessary

forerunner to the ICTY’s justice, it must noted that the structure of the Dayton

state (in particular the existence of the Republika Srpska) has proved a

enduring barrier to the workings of the Tribunal.

The distinctions between the ICTY and DPA allow us to reflect back on the

philosophical roots of the international intervention in Bosnia. While the ICTY

appears to rely on a conception of universal humanity derived from Kantian

principles, in particular the pacifying potential of a universal humanitarian law,

the DPA is embedded in Schmitt’s friend/enemy distinction, where antagonistic

national identities are connected to territory. In the stagnancy of post-conflict

Bosnian politics we can a working example of Engin Isin’s (2002: 32) criticism

of Schmitt’s concept of the political, that it constitutes a non-relation, an

absence of meaningful relationship to the Other. Rather than stimulating the

conflict and cooperation that some see as central to the operation of democratic

politics (see Mouffe, 1993), the Dayton Agreement promotes an image of the

political based on hollow consensus structured around imagined national

identities. The ICTY, in contrast, is allowing new spaces of justice to emerge,

new relationships and agonistic encounters through the process of the

international tribunal and its attendant materialities. By examining the ICTY as

a ‘doing’ the contribution of the tribunal to justice begins to emerge. As

Campbell (1998) identifies, justice is necessarily an incomplete process, and

thus to remain practical it “must always be to come” (Campbell, 1998: 207,

original emphasis). Therefore rather than attempting to identify a metaphysical

outcome of the ICTY (its contribution to ‘justice’) it is more profitable to explore

the legacy of the Tribunal through the materiality of the process: its

subjectivities, spaces and documentation. Through these material artefacts new

spaces of international justice can be identified.

The Spaces of International Law

Pre-trial Judge Bonomy: […] [H]ave you had some sort of discussion with

the Registry about additional assistance they can give you as long as you

are defending yourself?

Radovan Karađžic: […] The material I was supposed to receive by the

15th, I received only yesterday and I received some of it today.  I was

supposed to receive it the day before yesterday to be specific.  For the

most part, most of this material is unusable, or rather, barely usable. 

There is a man who repairs computers who’s been coming to help me all

the time so that I can review the material; however, the material has

been coming in on a gradual basis (ICTY, 2008).

This exchange is taken from Radovan Karađžic’s third pre-trial hearing

conducted on September 17th 2008. It reflects the mundane nature of much of

the pre-trial discussion, with its preoccupation with administrative and logistical

details related to the evidence base gathered for Karađžic’s trial. As the judge

indicates, these facets of the trial system are particularly important in the

Karađžic case since he is acting without a defence counsel, though he declared

in his initial pre-trial hearing that he was guided by an ‘invisible advisor.’ As

was widely supposed in the trial of Slobodan Milošević, this tactic could be

dismissed as a strategy by Karađžic to slow down the trial process and publicise

his view that he does not consider the ICTY to be a legitimate arbiter of law. But

we must not dismiss the significance of these transcripts. The passage above

conjures the scene of the computer illiterate Karađžic struggling with the

copious data files containing the testimonies of his victims. His frustration at

accessing the data and the frequent visits of the IT assistant will be

recognizable to most computer users. The familiarity of Karađžic underpins the

importance of this exchange (and the numerous others available through the

ICTY’s archivevii). The everyday struggles faced by Karađžic illustrate his

normality, his ‘ordinariness’ to use Slavenka Drakulić’s phrase. Through the

transcripts we do not see Karađžic as a monster detached from our own moral

framework. Instead we see an ordinary individual who has committed

monstrous acts. As Slavoj Žižek (2008) has argued through an exploration of

Karađžic’s poetry, these were not irrational acts committed out of a primordial

desire to eradicate another cultural group, but rather strategically planned

attempts to render multi-ethnicity impossible within the former Yugoslavia. The

ICTY helps us explore the production of this belligerent subjectivity through the

trial process.

The documentation and broadcast of the trials at the ICTY also produces a

range of new sites of justice. In simple terms, the quotidian accounts such as

the example cited above help to locate the process of justice within the

corridors, trial chambers and cells of Tribunal’s headquarters at The Hague.

Rather than justice constituting an abstract process driven by normative

principles, we see the negotiated, drawn-out and situated character of the

international judicial process at the ICTY. But in addition to these formal

spaces of judicial process, the ICTY’s proceedings are projected through

television, radio and internet broadcasts to wider publics across the world.

These mechanisms produce remote spaces of justice, where individuals respond

to the trial process with, amongst other emotions, hope, anger, cynicism and

fear. These remote spaces point to the significance of the ordinary ways in

which individuals manage their feelings towards international justice.viii Just as

the state has been subject to renewed consideration through an exploration of

the prosaic nature of its operation (Painter, 2006), so international judicial

structures profit from similar analytics. A prosaic lens on international justice

would be open to the importance of “the affective, the non-rational, the non-

cognitive and the practical in ways that distinguish it sharply from critical

realist and structurationist accounts” (Painter, 2006: 12). As Allen’s (2006)

account of the fraught intervention of the ICC in northern Uganda, the power of

international justice does not emanate from its indictments but from its ability

produce both formal and remote spaces of international law.

Finally, the ICTY process has produced new spaces of justice through the

production of a vast archive of witness testimonies available through the

tribunal’s website. These accounts provide a valuable resource in documenting

the crimes committed in the former Yugoslavia and create a material barrier to

attempts to forget the violent dangers of connecting identity and territory.

Within these documents the war crimes undertaken during the conflicts in

Yugoslavia cease to be intangible events sanitised through signifiers such as

‘Srebrenica,’ ‘Keraterm,’ and ‘Omarska.’ In case after case witnesses outline in

corporeal detail the violence and brutality that typified the military and

paramilitary actions across Yugoslavia between 1991-5. The forced evictions

from villages, the burning of homes, the laying of mines in electricity sub-

stations, and the intimidation of victim ethno-national groups are all detailed,

logged and published through the ICTY. The spaces of war criminality are

exposed as banal and everyday sites, from hotels and cafes to farm buildings

and ports. While in the post-Dayton landscape of Bosnia these locations are not

commemorated, the transcripts of the ICTY conjure their violent past. Law and

space are connected through these geographies of suffering, where context and

location serve as fundamental narratives.

Conclusion

Using the arrest of Radovan Karađžic as a starting point, this paper has

evaluated the contribution of the ICTY to the wider international response to

the Bosnian war. The ICTY is founded on grand concepts of humanity and

international law, ideas we can trace to the writings of Immanuel Kant. The

invocation of moral universals has attracted criticism, not least for allowing the

political priorities of powerful states to be presented as the common good.

While there is no doubt that the ICTY is embedded in unequal power relations,

this does not necessarily discount its potential to produce new spaces of justice.

I have argued that by examining international justice as process rather than

evaluating its contribution to a metaphysical ideal (‘justice’), new possibilities

for political contestation and participation have emerged. This mode of

evaluation deviates from mainstream media assessments of the benefit of the

ICTY in terms of convicted individuals or its cost in simple monetary terms. The

ICTY serves its purpose through less tangible instruments, by challenging

nationalist narratives of the past, strengthening moderate political positions by

warning of the dangers of political chauvinism and unsettling attempts to play

down or ignore war crime. While these initiatives lack the political expedience

of the DPA, they perhaps produce the possible environment for future

cooperation within Bosnia.

This paper has argued that the power of the ICTY is not simply based on its

ideals but on its operation. The openness of the ICTY trial process allows

individuals to engage with the content of proceedings and evaluate the evidence

as presented to the court. This is not simply a desirable aspect of international

judicial mechanisms; it is a necessary part of their functioning. The Geneva

Conventions require international penal facilities to be open to the scrutiny of

the International Committee of the Red Cross (ICRC) and subject each inmate to

legal due process. Often at the expense of expedience, open negotiations

around status and deliberations on due process are all fundamental aspects of

the ICTY’s operation. Within these terms the US detention centre at

Guantanamo Bay clearly does not constitute an international judicial body,

despite the global origins of its inmates. Instead, Guantanamo Bay is grounded

explicitly in the national interest of the US state, centred on the punishment of

suspected ‘terrorists’ and ‘enemy combatants’. While punitive sanctions are a

crucial part of the ICTY process, I have argued that the openness of the trial

process produces a range of less tangible and perhaps more valuable outcomes.

The arrest and trial of Radovan Karađžic draws attention to the performance of

justice exhibited in the ICTY. While discussing the moral, political and spatial

implications of the ICTY we must be attentive to the responsibilities of scholarly

criticism. The alternatives to the ICTY tabled so far have either involved

overlooking the war crimes for pragmatic purposes, questioning the existence

of war crimes despite the amassed evidence or devolving responsibility for

punishment to nationally-aligned local courts. None of these constitute credible

alternatives. The ICTY has the potential to advance justice in Bosnia, though

this will necessarily constitute a long-term, costly and largely intangible

process. The experiment of the ICTY has served as a mechanism through which

the territorial principle at the heart of justice may be suspended in order to

attempt to introduce a concept of accountability into the international arena.

Acknowledgements

I would like to thank Stuart Elden and the co-editors for valuable advice

throughout the publication process. Thanks to Simon Reid-Henry and Miles

Ogborn for the invitation to present elements of this paper in a research

symposium at Queen Mary, University of London, in March 2009. I am also

grateful to Carl Dahlman, Matthew Bolton, Craig Jeffrey, Merje Kuus and four

anonymous referees for suggestions and comments.

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Notes

i See, for example, CNN (2008). The flexibility of this label is evident by its application by US News Agencies (such as Time Magazine and CNN) to Slobodan Milošević until his death in 2006. ii For a detailed examination of Yugoslavia’s fragmentation see Silber and Little (1995). For further historical explanations of the rise of nationalist politics in Yugoslavia see Udovički and Ridgeway (2000). iii For a comprehensive overview of the structure of the ICTY see http://www.un.org/icty/glance-e/index.htm iv For a detailed examination of the struggle of the academic left, particularly in the US, to come to terms with the fragmentation of Yugoslavia see Campbell (2008). v Under pressure from the then High Representative Paddy Ashdown and following eight years of denial, in 2003 the Government of the Republika Srpska acknowledged the role of Serb military and paramilitary forces in the organised execution of around 8000 Bosniak men and boys in Srebrenica in July 1995. vi See Holbrooke (2008) for a response to Karađžic’s accusations. vii See http://www.un.org/icty/latest-e/pressindex.htm viii See Navaro-Yashin (2002) for a discussion of the management of such affective responses in relation to the Turkish state.