The Politics of Punishment and the Siege of Sarajevo: Toward a Conflict Theory of Perceived International (In)Justice
Ivkovic, Sanja Kutnjak, Hagan, John, Law & Society Review
Liberal legalism noncontroversially advocates procedural fairness and due process in institutions such as the International Criminal Tribunal for the Former Yugoslavia (ICTY). The visible conflicts come with the ebb and flow of international jurisdictional claims, suspicions of racial/ethnic and cultural biases in deliberations and decisions, prioritization of purposes in sentencing decisions, and the intrusion of institutional and international political debates into the liberal legal agenda. These conflicts threaten to create a legitimacy deficit in diffuse support for the ICTY. We examine these conflicts within the context of two surveys about the ICTY conducted in Sarajevo in 2000 and 2003. The results indicate that the citizens of Sarajevo increasingly believe that the ICTY is politically influenced by internationally appointed judges, peaking with the sentencing of Stanislav Galic for the siege of Sarajevo. This conflict focuses on issues of substantive rather than procedural justice and is increasingly articulated as a rejection of international political intervention that subverts the need for a local sense of justice. This may be a sequence of political conflict and disillusionment that is as inevitable as it is unavoidable.
The Cold War that followed the post-World War II legal experiment at the Nuremberg International Military Tribunal made both the Soviet Union and the United States wary of international criminal law (Robertson 1999). The establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) was a first step in a renewal of international criminal justice following the breakup of the Soviet Union in the early 1990s. The demise of the Soviet Union and the war in the former Yugoslavia (Silber & Little 1995; Judah 1997)-including the drive to establish a Greater Serbia, the resulting siege of Sarajevo, and the massacre in Srebrenica-revived the perceived need for international institutions of criminal justice (Bass 2000). Further tribunals and special courts were advocated for Rwanda, Sierra Leone, East Timor, and Cambodia, as well as the new International Criminal Court (ICC).
When it was established by the United Nations Security Council in 1993, the ICTY was described in the European press as a fig leaf for military inaction (see Penrose 2000; Parenti 2000). Over the past decade, especially during periods of support from the Clinton Administration and the United States, the ICTY became a flagship United Nations (UN) institution, with more than a thousand employees from 84 countries, a hundred-million-dollar-a-year budget, more than 40 detainees awaiting or on trial, and a former sitting head of state-Slobodan Milosevic-on trial for crimes against humanity and genocide (Hagan 2003; Hagan & Levi 2005; ICTY 2005). With recent encouragement from the Bush administration and the United States (Prosper 2002), the ICTY has developed a plan that will lead to its eventual closure. The United States has pressured the ICTY to develop a "completion strategy," which ended investigations in 2004 and promises to finish trials by the end of 2008, then transferring the remaining cases to the jurisdiction of courts established in the newly independent states of the former Yugoslavia (see Klarin 2002).
Little is known about the impact on citizen perceptions of this historic institution of international law in the war crime settingssuch as Bosnia and its besieged city of Sarajevo-where the ICTY seeks to restore a sense of justice for citizens. The first three prosecutors of the ICTY-Richard Goldstone, Louise Arbour, and Carla Del Ponte-have been strong advocates for the primary jurisdiction of the ICTY over war crimes in the Balkans and for subsequent international criminal courts, arguing that such courts are often the only means of assuring the security and independence needed to achieve international criminal justice. The ICTY prosecutors have argued that, as supranational institutions, international criminal courts should assume powers of extraterritorial if not universal jurisdiction, exercising a primary jurisdiction that overtakes the sovereignty of nation-states. …