Journal of Human Rights

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International intervention, justice and national

reconciliation: the role of the ICTY and ICTR in Bosnia
and Rwanda

Michael Humphrey

To cite this article: Michael Humphrey (2003) International intervention, justice and national
reconciliation: the role of the ICTY and ICTR in Bosnia and Rwanda, Journal of Human Rights,
2:4, 495-505, DOI: 10.1080/1475483032000137084

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cJHR100091.fm Page 495 Monday, December 8, 2003 11:44 AM

JOURNAL OF HUMAN RIGHTS, VOL. 2, NO. 4 ( DECEMBER 2003), 495–505

International intervention, justice and national

reconciliation: the role of the ICTY and ICTR
in Bosnia and Rwanda

MICHAEL HUMPHREY

International criminal trials have re-emerged as part of the international diplomacy of

intervention in the relationship between states and their populations after widespread
atrocities. The establishment of these criminal tribunals represents an attempt to apply
human rights law in two situations where states have failed to protect their citizens from
extreme violence and atrocity and the successor state has had neither the capacity nor the
will to fulfil its obligations to investigate and prosecute gross human rights abuse. The
various national crises and state atrocities that occurred during the 1980s and 1990s
confronted international legal and political institutions with the problem of how best to
intervene to stop human rights abuses and reintroduce the rule of law. These international
criminal tribunals have sought to undertake what national courts could not and to provide
the institutional groundwork for the establishment of a permanent International Criminal
Court (ICC).
The International Criminal Tribunal on the Former Yugoslavia (ICTY) and the Inter-
national Criminal Tribunal on Rwanda (ICTR) were established with the purpose of
bringing justice to the victims of mass atrocity that had resulted from the catastrophic failure
of their national states to protect them and the likelihood that those states would not
prosecute the perpetrators through national trials. In both cases the atrocities involved acts
of genocide. In the former Yugoslavia this was referred to as ‘ethnic cleansing’. The
establishment of the ICTY and ICTR was part of diplomatic and military intervention in
Bosnia and Rwanda respectively to prevent the atrocities continuing, to contain their effects
from spilling over into neighbouring countries, to challenge legal impunity through the
prosecution of those most responsible, to restore the authority of law and to help promote
national reconciliation.
The ICTY and ICTR were established in The Hague and Arusha (Tanzania) by UN
Security Council Resolutions because these ‘crimes against humanity’ and ‘war crimes’
were seen to be a ‘threat to international peace and security’.1 They were created with the
specific purpose of prosecuting ‘crimes against humanity’ and ‘war crimes’ that had
occurred during the wars in the former Yugoslavia and the breakdown of the Arusha (1992)
peace accords in Rwanda. The inclusion of the Nuremberg concept of ‘crimes against
humanity’ in the articles of both the ICTY and ICTR represented a significant extension
of international humanitarian law in internal conflicts.2 With the break-up of the former
Yugoslav Federation the conflicts there became both internal and external whereas in
Rwanda the war with the Tutsi-led RPF and the genocide against them took place within
the state boundaries. However, even the Rwanda conflict is complicated by the fact that the
RPF forces were exiles invading from Uganda.

Journal of Human Rights

ISSN 1475-4835 print/ISSN 1475-4843 online © 2003 Taylor & Francis Ltd
http://www.tandf.co.uk/journals
DOI: 10.1080/1475483032000137084
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496 MICHAEL HUMPHREY

The principle judicial purpose of these international trials has been to challenge
impunity by identifying who was responsible for acts of atrocity – crimes against humanity,
genocide and war crimes – and to prosecute them. This has involved both individualizing
responsibility for acts of atrocity and, at the same time, revealing the political and organized
character of the crimes committed. These international legal interventions then are
designed not only to make perpetrators accountable but also to promote peace by restoring
the authority of law, justice and individual rights after mass atrocity. The fact that the life
span of the ICTY is explicitly linked to the restoration of peace reflects this wider role of
international prosecutions (Blakesley 1997). They are part of the institutionalizing strate-
gies, along with peace negotiations, democratic elections and truth commissions to promote
national reconstruction after mass atrocity.
The international development and elaboration of human rights instruments can be
seen as the extension and application of international law in response to political circum-
stances, moral concerns and legal need. However, from a political perspective the very
elaboration of human rights instruments addressing specific practices – torture, enforced
disappearance, detention, genocide – is itself evidence of the growing crisis of national
citizenship as a guarantor of individual rights in many parts of the world. Soon after the
Universal Declaration of Human Rights in 1948, Hanna Arendt pointed out the disturbing
relationship between citizenship and human rights. She argued that the fate of human rights
and the nation-state were tied up together and that the decline of one meant the decline of
the other. ‘The conception of human rights based upon the assumed existence of a human
being as such, broke down at the very moment when those who professed to believe in it
were for the first time confronted with people who had indeed lost all other qualities and
specific relationships – except that they were still human’ (Arendt 1979: 299). The contem-
porary currency of atrocity is a measure of the crisis of national citizenship as a source of
protection for individual rights.
Human rights are applied through these international criminals trials to recover the
individual rights of victims forced beyond the protection of national law. International
agreements between states over the ‘value of human life’ (Universal Declaration of Human
Rights and the various Conventions and Protocols) are being used to try to re-establish that
value in the face of atrocity which brutally reveals the limits of rights individualized on the
basis of humanity. Human rights, however, have to be actualized through their translation
into law, itself a set of objectified aspirations. Law establishes the objectified standards of
action and provides ‘the mechanism for holding the population to the promises they have
made’ (Scarry 1999: 301). The importance of law therefore is its institutionalized status;
‘the work accomplished by a structure of laws cannot be accomplished by a structure of
sentiment. Constitutions are needed to uphold transnational values’ (Scarry 1999: 302).
Politically the recovery of the victim through international law represents the attempt
to reverse victimization produced by state violence. Characteristically human rights abuses
by states target individuals not so much as criminals but as representatives of social
categories considered dangerous, subversive or contaminating. While international criminal
prosecutions aim to recover the victim through law they at the same time identify the social
category stigmatized and excluded by the state’s biopolitics of selection. Agamben (1998)
refers to this category as ‘bare life’ (homo sacer), those who can be killed with impunity,
without consequence. These international trials seek to make those responsible accountable
for gross human rights abuse.
The biopolitics of selection and exclusion, Agamben (1998) argues, is at the heart of
political sovereignty in the modern state and the mechanism whereby de-nationalization
and de-socialization of large numbers of people is made possible. Power is defined by the
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THE ICTY AND ICTR IN BOSNIA AND RWANDA 497

state’s increasing control over individual life. The victims selected, those put beyond the
protection of law, define who has rights and who determines the value of individual life.
The abuse of state power is challenged through prosecutions. By defending human rights
established in international humanitarian law international criminal trials seek the recovery
of individual rights that should have been protected by national law. The contemporary use
of atrocity by states is a measure of the crisis of the value of national citizenship as a source
of protection for individual rights.
The continual elaboration of human rights conventions at the international level seeks
to retrieve the juridical person lost through the erosion of citizenship. Thus, for example,
in response to the continued widespread use of torture a more focused treaty elaborated on
Article 5 of the UDHR, which condemned the use of torture, cruel inhuman and degrading
treatment or punishment. This was the UN: Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment 9GA Resolution 39/46 (1984). In
response to growing international concern over the widespread use of ‘enforced disappear-
ance’ as a form of organized terror during the 1970s and 1980s the UN introduced the
Declaration on the Protection of all Persons from Enforced Disappearance (1992). What
the UN elaboration of human rights instruments has constantly demonstrated is the large
number of people who continue to fall outside the protection of national law. The politics
of atrocity has put many millions of people into the liminal space of homo sacer. The continual
elaboration of human rights seeks to retrieve the juridical person lost through the erosion
of citizenship. Contemporary political violence, then, is a globalizing phenomenon in the
sense that it reduces people to bearers of mere human rights de-nationalising them by
stripping them of citizenship.
The extent to which impunity is challenged depends on the extent to which successor
regimes make truth and justice policies a mandate for their political legitimacy. Political
compromises made during political transition influence the choice between adopting
policies of justice and/or reconciliation. This choice is now usually understood as a choice
between trials and truth commissions, between prosecuting the main perpetrators or
witnessing the truth about atrocities in the victims’ stories. The former emphasizes the
victims’ rights, while the latter emphasizes the victims’ suffering as the vehicle for national
renewal. In practice, trials and truth commissions are seen as either competing or comple-
mentary strategies shaped by political compromises made during peace negotiations which
have conceded degrees of impunity for the past crimes of the political and military elite.
The need for international criminal tribunals has occurred where the scale of atrocity
has been so excessive as to challenge the very worth of international humanitarian law and
the international agreements between states upholding it. In these situations prosecutions
could not be left up to national courts alone either because perpetrators would escape
prosecution through an absence of justice or because national trials would be seen to be
administering victor’s justice. The formation of international criminal tribunals has
occurred precisely because states have failed to live up to international human rights
obligations even where they have been ratified and codified in national law and constitu-
tions.
Yet international legal intervention has so far only occurred as part of broader diplo-
matic, political and military intervention to bring about ceasefires and start peace negoti-
ations. Thus, for example, the Dayton Accords in Bosnia established that an international
criminal tribunal would prosecute crimes against humanity and that the parties to the
agreement were obliged to cooperate with it. In practice the prosecution of war crimes and
crimes against humanity has proceeded through either forced capture of those accused or
diplomatic and political pressure to get states to cooperate with the international criminal
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498 MICHAEL HUMPHREY

tribunals. Perhaps the best known case was the arrest and transfer of former President
Milosevic to the ICTY by the Serbian government after considerable economic and
political pressure was exerted by the US and EU governments.
In addition, prosecutions by international criminal tribunals are not merely interven-
tionist. They are necessarily designed to be re-constitutive of national law. It is not enough
just to substitute international for national judicial enforcement; it is necessary to create the
very possibility of re-creating moral social relationships and community and therefore
national justice. The emphasis on the restoration of national justice is reflected in the trend
to support national courts to enforce international law in preference to international judicial
intervention. Roht-Arriaza (1995: 28) notes there is an overall movement ‘from permissive
to mandatory jurisdiction and from the idea of an international tribunal to reliance on
national legal systems to prosecute offenders’. Hence the support for the Indonesian courts
to prosecute those responsible for human rights abuse in East Timor rather than their
international prosecution in a separate international criminal tribunal.
These questions are explored through a cultural and legal analysis of the role of
international and national prosecutions after mass atrocity. It is argued that while selective
international prosecutions may establish the truth of mass atrocity and punish some of those
most responsible during the period of political transition, their role in re-establishing the
authority of national law and challenging impunity is limited. The process of restoration of
national law, or more importantly the emergence of a morally reflexive community, is a
long-term process. The importance of international prosecutions in relation to national
trials is that, unlike the national political compromises motivated by a desire to seek closure
on the past through forgetting and amnesty during political transition, international
humanitarian law keeps open the right to prosecute the most serious ‘crimes against
humanity’.

Criminal law and atrocity

The principal goal of prosecutions in international criminal tribunals has been to challenge
impunity by bringing victims within the protection of the law and perpetrators under the
scrutiny of the law. The aim is to recover the universality of law, its equal application to all,
by re-establishing individual rights. The international criminal tribunals seek to extend legal
protection and rights through the prosecution of individuals accused of being responsible
for ‘crimes against humanity’ and ‘war crimes’. Yet, while international humanitarian law
provides the basis for extending legal protection to victims, its application to situations of
large-scale atrocity imposes a particular individualizing logic (Osiel 1997). The application
of criminal law to large-scale atrocity necessarily results in selective prosecution, producing
a symbolic economy of justice.
Usually crime is prosecuted in the context of a normative legal order and moral
community. Criminal law is applied to transgressive acts in a normative context in which
criminal acts are the exception. Prosecution proceeds by seeking to individualize responsi-
bility for criminal acts, thereby establishing right from wrong and innocent from guilty for
a witnessing moral public. However, in societies where large-scale atrocity occurs the
normative order itself is criminal. Even the legal terminology used to describe acts of
atrocity such as ‘crimes against humanity’ and ‘genocide’ seems quite inadequate to convey
the cruelty and horror to which such terms refer.
When prosecutions seek to individualize responsibility for mass atrocity they necessarily
end up, for practical and political reasons, as selective. The sheer number of offences makes
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THE ICTY AND ICTR IN BOSNIA AND RWANDA 499

the prosecution of every offence impossible. The practical problems of time, expense and
the volume of evidence required to prosecute all offences means that neither all perpetrators
can be prosecuted nor all victims compensated. In addition, political obstruction by states
that refuse to extradite indictees or prevent access to evidence, or simply the lack of
sufficient evidence to undertake successful prosecutions, only serves to increase the selec-
tivity of prosecutions. And because the prosecution of large-scale atrocity is necessarily
selective and can never be universal it turns prosecutions into politically and symbolically
managed events which must seek to maximize public acceptance of the trial process itself,
the story revealed through the testimonies of victims and the justice of the judgements. In
other words, individual prosecutions against atrocity must be made to carry a high symbolic
and political load by virtue of their selectivity.
The individualizing logic of criminal trials is reinforced by the ritual structure inherent
in trials. Trials establish truth by re-enacting violence in legal discourse. Rules of evidence
are applied to establish ‘facts’ to corroborate a legal narrative of responsibility that is
individualizing. The victim plays a central role in the legal re-enactment of violence.
Through the agency of putting violence into language in the form of ‘violence stories’ the
victims/survivors of violence re-victimize themselves. They are made to embody the
violence, the truth. They ‘must mark themselves as victims, which in turn excludes them
from the very communities that are brought forth through their own sacrifice’ (Cobb 1997:
406). Their suffering, which socially sets them apart, is made a source of communion but
at the same time puts them in a socially ambiguous position. While the trial enables the
recovery of the victim as subject through voice (agency) it also re-victimizes the victim who
ritually embodies the very violence the community seeks to expel. The ambiguity lies at the
heart of the mechanism of ‘sacrificial ritual’, the paradox that violence can be an act of
destruction and an act of salvation.
The trial process in fact produces two ‘victims’: the victim of the original crime whose
victimhood is reproduced through his/her testimony, and the victim of ‘law’s violence’, the
perpetrator who is judged and punished.3 Through the reconstruction of the victim in
testimony the community learns what wrong has been done and the suffering it has caused
and, through the conviction of the perpetrator, the source of the violence is individualized
and separated (expelled) from the community. The former is supposed to effect inward
mediation transforming (healing) the victim him/herself through the revelation of violence.
The latter is supposed to effect outward mediation renewing the moral community through
the perpetrator’s exclusion/separation. The bipolar outcome of trials, the division between
the innocent and the guilty, is therefore the product of the ritual position of the ‘scapegoat’
as well as the law’s logic of individualizing responsibility.
It is worth noting the way truth commissions and trials differ in their ritual solutions
for ‘healing’ society – i.e. dealing with the legacies of violence in order to prevent its return.
While truth commissions focus on the ritual ‘purification’ of the individual, trials focus on
the ritual purification of society. The victim-centred truth commissions focused on indi-
vidual suffering employ the language of psychology. The legacy of violence – the indi-
vidual’s traumatic memory – is supposed to be expelled from the individual through the
cathartic experience of revealing and sharing it. This ritual process is, in turn, intended to
be socially healing through the public witnessing of the truth about the origins of suffering.
Without a trial reconciliation is focused on containing the violence potentially arising from
the victim’s desire for revenge or perhaps social dysfunctionality. Reconciliation in this case
means the individual abandons the desire for vengeance – being consumed by violence –
and publicly forgives. Trials, on the other hand, seek to achieve social healing by identifying
the source of the violence in the accused and expelling (imprisoning, executing) those
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500 MICHAEL HUMPHREY

responsible from society as a punishment. Society is ‘healed’ through the prosecution and
punishment of the perpetrator, who in turn provides the social benefit of the moral renewal
of the national community.
In summary, the prosecution of mass atrocity through the application of criminal law
is burdened by a selective process in which it is expected to fulfil larger political and
symbolic functions going beyond the justice of individual prosecutions. First, individual
prosecutions must locate the origins of atrocity in the acts of the accused. This is the product
of both the legal and the ritual logic of individualizing responsibility – producing a victim
who is legally responsible as well as ritually identified as the origin of atrocity. This is the
sacrificial victim, the one who produces the benefit of moral renewal for the community
through his/her victimhood (Girard 1977). Second, individual prosecutions must tell the
wider story of ‘administrative massacre’, the ‘large-scale violation of basic human rights to
life and liberty by the central state in a systematic and organized fashion, often against its
own citizens, generally in a climate of war – civil or international, real or imagined’ (Osiel
1997: 174). Third, individual prosecutions must stigmatize the political project of the
previous regime; they must effectively criminalize the individual and the previous regime
(Feher 1999).
The bipolar division between the innocent and guilty has another impact on justice. It
sets limits to national reconciliation through the restoration of law by restricting wider
moral identification. It tends to circumscribe responsibility for atrocity thereby allowing the
many who acquiesced or colluded in the regime’s project to accept the ritual effect of
separation as a resolution of the past. In fact, as we shall see later, the impunity generated
from this political desire for closure is usually not final but is subsequently challenged by
those victims who have remained unrecognized during the truth and justice policies
pursued during political transitions. The selective character of post-atrocity trials makes
them only the first step in re-establishing justice, which subsequently needs to be consoli-
dated through a broader human rights culture and engaged public moral reflection about
the past.

Transitional justice

The international criminal tribunals are best understood as mechanisms of transitional

justice that intervene to change social and political reality of post-atrocity states through
prosecutions. As Czarnota (2001) observes, they are involved in a process of ‘legalizing’
collective memories in order to change the past for the benefit of the present and the future.
However, the measure of their success is the extent to which they forge a new political
community through their truth and justice policies. International trials set benchmarks and
establish facts which must then be taken up in national prosecutions if justice is to be
consolidated and law restored in the communities traumatized by atrocities. International
trials cannot help but be symbolic in the sense of being selective and limited.
The ICTY and ICTR have had varied success in conducting prosecutions. In the
former Yugoslavia and Rwanda the ICTY and ICTR respectively have encountered
political situations ranging from ‘fractured sovereignty’ to ‘new sovereignty’. ‘Fractured
sovereignty’ can be characterized as a situation where the state has disintegrated, the
protagonists continue to live together, the basis for citizenship is unresolved and political
power is divided. In this case impunity derives from limited state sovereignty and absence
of law. ‘New sovereignty’ refers to situations where, through succession or a radical political
break with the past, the new regime feels no responsibility for past atrocity (Osiel 1997:
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THE ICTY AND ICTR IN BOSNIA AND RWANDA 501

174). This is especially the case where the victimized group has been politically and legally
excluded by marginalization, expulsion or elimination. In these cases the question of justice
is not shaped by the political and moral imperatives of people having to continue living
together. Instead separation often produces a climate of forgetting (social amnesia) about
atrocity because of the absence of the victims and/or their elimination as constituents of
the national community. In this case impunity derives from the collective denial of respon-
sibility on the one hand and the capacity of the political elite to ensure their impunity on
the other.
In the states that emerged from the former Yugoslavia the ICTY has confronted both
‘fractured sovereignty’ and ‘new sovereignty’. In Bosnia and Herzegovina (BiH), where
different wars shattered the state, the ICTY has confronted ‘fractured sovereignty’. As part
of the international intervention the new state institutions were created. The national
constitution was rewritten, the political institutions redesigned, the judiciary and police
forces rebuilt and the criminal law extended to cover ‘crimes against humanity’. Moreover,
international intervention through the General Framework Agreement (GFA) involved the
imposition of transnational legal values and institutions shaped by the European Conven-
tion on Human Rights.4 By contrast, in Croatia and Serbia the ICTY has confronted
situations of the ‘new sovereignty’. Here state institutions have remained strong and intact
with the victim/survivor populations essentially excluded, expelled or eliminated. In
Rwanda, on the other hand, the ICTR has faced a situation between ‘fractured sovereignty’
and ‘new sovereignty’. Despite the disintegration of state institutions, massive population
dislocation and death and the need to rebuild the legal institutions from scratch the Tutsi
RPF forces emerged in clear command of the state. This produced a situation of ‘new
sovereignty’ in which only the Hutu are being prosecuted for ‘crimes against humanity’ and
‘war crimes’ in both the national and international trials. From the perspective of many
Hutus this is seen as victor’s justice.
There is a marked contrast in the extent to which international prosecutions in the
ICTY and ICTR have been extended by national trials in Bosnia and Rwanda respectively.
In Bosnia there has been limited success in extending prosecutions in national courts while
in Rwanda the national trials have been central to the re-establishment of state authority.
The experience of the ICTY and ICTR in Bosnia and Rwanda respectively has been
that national trials have been seen to be either too partisan or too lax to gain the confidence
of all communities. Moreover the ethnic framing of the prosecutions, which sees national
reconciliation as reconciliation between ‘ethnic communities’, hinders the formation of a
more inclusive political community and justice. Bosnia and Rwanda are nevertheless
distinct. The peace agreement (GFA) in Bosnia, which established two Entities (and an
incipient third Entity), created enormous difficulties for the ICTY in creating an official
history of ‘ethnic cleansing’ that all communities would embrace. This is despite its efforts
at ‘even handed’ prosecutions. The lack of national trials in Bosnia only highlights the lack
of shared political community. The limited progress in the matters of the ‘disappeared’ and
‘displaced’ is also a measure of the absence of a shared political community. It seems in
Bosnia there need to be further significant political reforms before justice can be advanced
or other forums such as truth commissions could be entertained.
In Rwanda the consolidation of political power over the entire territory under the RPF
government created the problem of an alienated and fearful Hutu community. The attempt
to prosecute to the full in Rwanda’s courts all those guilty of ‘crimes against humanity’ has
created its own difficulties for justice and the restoration of national law: competition with
the ICTR to prosecute key figures in the genocide, a discrepancy between sentencing and
justice in the ICTR and national courts, and the almost exclusive prosecution of Hutus.
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502 MICHAEL HUMPHREY

A movement towards broadening the social forums of justice in Rwanda has shifted the
emphasis on prosecution to truth and reconciliation. Perhaps it is time, as Sarkin (1999)
suggests, to launch a truth commission in Rwanda in order to promote the creation of a
more inclusive political community that international and national trials have so far not
achieved.
The lessons from situations of political transition suggest we should understand the
process of justice, reconciliation and the restoration of the rule of law as a much longer term
one. The case of Argentina reveals that despite the choice of impunity after limited trials
the unrecognized victims and survivors of atrocity continue to make demands on the
political and judicial systems. In the case of ‘crimes against humanity’ there is an interactive
relationship between national and international forums for justice. These include different
national (third country) courts as well as regional and international human rights move-
ments. As the distance from the period of political transition grows and the political context
changes there is feedback into national politics and justice. Moreover, what is becoming
apparent is that impunity does not merely refer to past crimes; it also refers to present ones.
Nevertheless in both cases national trials have so far failed to win the confidence of most
of the population. They have not provided the basis for constituting broad-based inclusive
political communities on which national justice and reconciliation could be built. This is in
fact a much longer term and interactive process than the rhetoric of peace, justice and
reconciliation that international political and legal intervention admits. The dynamic and
interactive character of justice is already becoming apparent in Bosnia where the ICTY
verdicts have now put the issue of the future ‘political community’ in the forefront of
national justice and in Rwanda where the need to broaden the social basis for justice beyond
mere prosecutions is being realized.
The ‘ethnic framing’ of the conflicts in Bosnia and Rwanda has also hindered the
process of reconstituting a more inclusive political community. The political objective of
the ICTY and ICTR prosecutions has become to facilitate a process of reconciliation
between antagonistic ethnic communities rather than to stigmatize the political project
in which one group was the main victim with the purpose of forging a new political
community. Only if genocide is seen as a political project rather than ‘cultural conflict’ can
reconciliation occur through ‘official repudiation – at both the national and international
level – of the regimes that advocated ethnic purity and endeavoured to turn their ideal into
a reality’ (Feher 1999: 337).
In both Bosnia and Rwanda what reconciliation means is the acceptance, by the
survivors of ‘ethnic cleansing’ and ‘genocide’ respectively, that they should live with those
who were either directly responsible for atrocities or had colluded with them. The extent
to which the ICTY or ICTR can achieve such a reconciliation depends not just on the truth
of past violence being revealed but also on shifting the political premise of participation and
identity in a moral national community. The ICTY and ICTR prosecutions must succeed,
through the mechanism of judicial selectivity, in altering the premise of political and moral
participation. They must set the premises for reconciliation, which must then be deepened
within national forums for justice and reconciliation.
If the result of ICTY and ICTR prosecutions is to convict individual criminals at the
expense of establishing truth about the genocidal political project they embodied then
the impact of international judicial intervention will be diminished. It reproduces at the
international level what is only too evident in the national trials against atrocity: prose-
cution circumscribed to facilitate pragmatic political goals in the hope that these rituals
of transition will substitute for more enduring acts of collective accountability and public
acknowledgement.
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THE ICTY AND ICTR IN BOSNIA AND RWANDA 503

Lessons can be drawn from the experience of transitional justice in countries such as
Argentina, Uruguay and Chile. Fifteen and more years on from the trials of military
dictators, truth commissions and amnesty laws it is clear that these ‘truth rituals’ did not
bring closure on the injustices of the past. No matter how much the political and military
elite wanted to bury the past in a culture of post-transition forgetting the issue of impunity
has provided the focus for human rights movements, prosecutions in the regional Inter-
American Court, third-country prosecutions in European courts and innovative ‘truth
trials’ in national courts. As de Brito (1997) notes, where justice is not pursued ‘the plight
of the victims and their relatives are pending social problems which must be dealt with even
in the absence of judicial prosecution’ (de Brito 1997: 11).
In Argentina transitional justice included a national truth commission focused on the
fate of the ‘Disappeared’ and trials that prosecuted the key military generals responsible for
the ‘Dirty War’. However, these trials were brought to an end in 1987 by amnesty laws –
the ‘Final Point’ law and the ‘Due Obedience Law’. Although the prosecution and convic-
tion of several Argentine generals represented significant achievements in the consolidation
of democracy through justice they had limited effect in challenging a deeper culture of
impunity. The trials had the effect of dividing the population into the ‘innocent’ and the
‘guilty’, thereby facilitating national renewal through the collective denial of public collu-
sion with the administrative terror under the dictatorship. The effect of the trials and
amnesty laws limited the extent to which the public could, or was willing to, assume
responsibility for accepting the broader political process that permitted the selective exclu-
sion of the victims from the protection of the law – especially the policy of ‘Disappearance’
involving some 30 000 people.
The consolidation of justice involves a longer-term process, which requires ongoing public
engagement with the issues raised by trial outcomes and the production of an enduring
collective memory. Broader social participation is required to strengthen citizenship, which
cannot be taken for granted merely by the return of democracy ( Jelin 1996). To counter the
tendency of trials to polarize the guilty and innocent, and thereby disengage public responsi-
bility for/complicity in past atrocity, social movements have emerged to promote further
justice and commemoration. Often the same human rights movements that challenged
repression and atrocity have assumed a prominent role in contesting the politics of oblivion
– forgetting. In Argentina Jelin (1994) describes the post-dictatorship human rights movement
as an ‘entrepreneur’ seeking to promote a certain kind of memory negotiating between those
who want to glorify the ‘Dirty War’ and those who wish for reconciliation through forgetful-
ness. Their role, as they saw it, was not just to establish an archived collective memory – the
Nunca Mas projects – but to set up a political programme by ‘promoting recall, pointing out
which events have to be retained and transmitted’ ( Jelin 1994: 50).
In Argentina the significance of these post-dictatorship social movements in deepening
justice and commemoration is apparent in the way the past continues to be excavated and
revealed even after the termination of trials, the amnesty for the military under the due
obedience laws, and the pardon given by President Menem to the senior military figures
serving prison sentences. Justice nevertheless is still unfolding through revelations produced
in subsequent trials and in media confessions (Feitlowitz 1998).

Conclusion

International criminal tribunals have emerged in the context of political crisis in nation-
states in which political violence has taken the form of mass atrocity. They are part of
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504 MICHAEL HUMPHREY

strategies of international intervention to stop violence and help restore peace and achieve
national reconciliation through justice. However, the project of justice they have set them-
selves is in contexts where states have failed and societies have divided. They are part of
larger political projects to reverse the polarizing effects of war and to construct a new
political community and national identity.
Although international human rights law is used to recover the universality of law, the
effect of international criminal tribunals is inevitably selective. The prosecution of mass
atrocity through criminal law imposes the logic of individualizing responsibility for crimes.
This occurs both as a consequence of establishing the truth about specific crimes and also
through the ritual structure of trials, which makes selectivity a method of dividing the
innocent and guilty. The inevitably selective and symbolic character of international trials
becomes burdened by the need to gain judicial acceptance for their prosecutions and
verdicts among antagonistic communities. They face the problem of addressing the rights,
grievances and fears of communities divided and displaced by war with no political
community yet to embrace them. The international criminal tribunals represent forums of
transitional justice whose revelations and verdicts need to be consolidated through national
prosecutions. International tribunals can never be anything but the focus for justice after
mass atrocity that establishes the ‘truth’ about past violence. The restoration of law and
justice must be then founded and affirmed in national communities through their laws,
courts and constitutions.

Notes

1. On 3 May 1994 the UN Secretary-General proposed a statute for the creation of a war crimes tribunal for the
former Yugoslavia. The Security Council approved the Statute and established the Tribunal with the adoption
of resolution 827. The Rwanda Tribunal was created by Security Council Resolution 955 in 1994. See
Blakesley (1997).
2. In the ICTR Statute Article 3, ‘Crimes Against Humanity, follows Article 6(C) of the Nuremberg Charter. ‘It
empowers the Tribunal to prosecute persons responsible for the following crimes when committed as part of
a widespread and systematic attack against any civilian population on national, political, ethnic, racial, or
religious grounds: murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions
on political, racial, and religious grounds and other inhumane acts’ (Magnarella 2000).
3. The term ‘law’s violence’ is borrowed from Cover (1986).
4. Respect for human rights was one of the most important pillars of the civilian part of the General Framework
Agreement for Peace in Bosnia and Herzegovina and its Annexes, signed in Paris in December 1995. With its
special emphasis on the people displaced by the Yugoslav wars a prominent place is given to the European
Convention for the Protection of Human Rights and Fundamental Freedoms. See Mol (1998).

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