Ukraine: Learning From The ICTY
Former investigator highlights key lessons that can be garnered from the 17 years of the tribunal’s existence.
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Tuesday, 17 October ‘23
This week’s overview of key events and links to essential reading.
The International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague successfully prosecuted many perpetrators of the wars in the Balkans. Vladimir Dzuro, who worked for ten years as an ICTY investigator, tells IWPR’s Olga Golovina, how aspects of this experience could be used in Ukrainian justice processes.
IWPR: What specific lessons do you think can be learned from the ICTY that should be applied to international justice processes concerning Ukraine?
Vladimir Dzuro: War in the former Yugoslavia broke out in 1991; the ICTY was established in 1993 and it took approximately two more years before it got into full operation. Nobody - including the politicians who voted for the creation of the Tribunal - believed that it would work.
Notwithstanding the lack of confidence, the Tribunal indicted and subsequently arrested a number of war criminals, starting in 1997 with the Mayor of Vukovar Slavko Dokmanović and continuing up the chain of command to the leadership, namely, Radovan Karadžić, Biljana Plavšić (presidents of Republika Srpska), Slobodan Milošević (president of Serbia) and Ratko Mladić, commander of the Bosnian Serb forces.
The Tribunal turned out to be a success, which helped with the creation of the International Criminal Court (ICC). However, its success required 17 years of hard work from investigators, lawyers, prosecutors, judges and support staff, and cost the international community approximately two billion US dollars.
There is currently an apparent lack of confidence that war crimes committed in Ukraine will be successfully prosecuted. I believe that many will be investigated and some perpetrators brought to justice. However, it will take more time than Ukrainians and the international community would like.
The first lesson from the Tribunal: prosecution of war crimes is a long and expensive process, more a marathon than a sprint.
The second lesson: not all crimes will be prosecuted. Therefore, people who suffered will not be satisfied no matter how successful the prosecution may be. We should not be naïve and expect perfect justice, but we need to strive for it.
The third is that investigations need to be conducted according to standards acceptable by local and international courts. Integrity of evidence collection must be ensured, and investigations must be conducted in accordance with the applicable law.
Civil society groups played a key part in collecting testimony in the Balkan wars. How has this been replicated in Ukraine?
Civil society groups play a very important role in every conflict, including in Ukraine. They often get to crime scenes well before law enforcement or international investigators. Therefore, they can assist greatly in documentation.
Considering the advanced technologies - for example smartphones with good quality cameras - everyone can secure important information which may subsequently assist investigators in their work. In Ukraine, various civil society groups have been recording and subsequently handing over information to investigators. It is critically important that they do not expose themselves to unnecessary danger - warzones are inherently dangerous places.
And information needs to be carefully reviewed by professional investigators. The collectors are usually not properly trained and therefore they could make genuine or intentional mistakes.
In recording interviews with witnesses, for example, they may not be able to distinguish between eyewitness information and hearsay. Time also plays an important role. The further from the incident, more inaccurate or even confusing the story may be.
One should not forget possible double victimisation, particularly of those exposed to sexual violence. Repeated interviews put the victims under more stress. The wellbeing of the victims must always be kept in mind.
Propaganda and hate speech were not investigated as part of the ICTY mandate. In retrospect, was this a mistake, and is there an argument that this should now be part of war crimes jurisprudence?
War propaganda is nothing new. Fighting parties always spread information about their successes - not only inaccurate or exaggerated, but often intentionally false.
The conflict in the former Yugoslavia was no different, but the advanced technologies, particularly television and radio broadcasting, allowed propaganda to get into the living rooms of almost every single family. The impact was devastating.
Within a year or two propaganda brought back bitter memories from WWII and managed to antagonise Yugoslav nations who had since lived in “brotherhood and unity”. In state-owned media outlets Croats in Serbia referred to as Ustasha fascists, Serbs in Croatia as Chetniks and in both Croatia and Serbia, Bosnian Muslims were often described as Turks. This brainwashing helps motivate people to shoot at each other, because shooting at brothers and sisters may not be as easy as shooting at “killers” of their grandparents from WWII.
In this very environment, for example, the Serbian media spread information that Croats in Vukovar slaughtered 40 Serbian children.
This fake news was not only spread around the former Yugoslavia, but it was without proper verification also broadcast globally. The news was retracted, but the impact was devastating. More than 265 unarmed Croatian men and women were executed and buried in a mass grave at the Ovcara farm.
ICTY did not investigate the people engaged in the development and spreading of this fake news in Serbia. Looking back, it may be seen as a mistake, but at the time of our investigations it was not within our mandate.
I see the situation in Ukraine as even more complex than the one we faced in the former Yugoslavia.
The impact of war propaganda spread over the internet is far more sophisticated and therefore dangerous than what was happening in the 1990s. The investigations therefore need equal sophistication. I believe it requires legal consideration and political decisions - setting the legal frameworks that would allow effective investigations and subsequent prosecutions.
Many erroneously saw the ICTY as a mechanism for reconciliation. This was not its purpose, but how can such expectations be managed in the Ukrainian context?
Reconciliation is such a complex issue that no tribunal can accomplish it on its own. Justice is one of the critical elements needed for reconciliation, but it cannot work in isolation.
An example [form the ICTY] is that, after some of the war criminals served their sentences and returned home, they were welcomed as national heroes. If convicted war criminals are viewed by a significant portion of the population as heroes, it would be naïve to expect easy and quick reconciliation.
The longer the conflict in Ukraine lasts, the more misery will be spread in society. More suffering equals more hate and ultimately more time needed for the healing process and ultimate reconciliation.
The war in the former Yugoslavia, excluding Kosovo, ended in 1995 and until now the society has not unified. In Croatia, for example, the experiment of putting Croatian and Serbian kids in the same classes in the same schools in most cases completely failed.
I personally believe that an important role in the healing process will have to be played by politicians in Ukraine and in Russia as well as by the government institutions, with the assistance of the international community. Any tribunal or court of law on its own cannot achieve reconciliation, although it can assist.
A key factor in figures being handed over to the ICTY were both financial incentives and potential bonuses such as EU accession. Could this model have any equivalent use in Ukraine?
Russia needs to be cut off from its gas and oil income, which would bring it to serious peace negotiations. I know that it is easier to say than to do, since if not the whole world, then Europe for sure is still dependent on Russian gas and oil.
In a similar fashion to the situation in Serbia in 2000, arresting the top Russian military and political leadership will require a change of the regime. The Russians will have to do this themselves.
However, not all war crimes in Ukraine were committed by the leadership. Many were committed by soldiers or paramilitaries and their commanders, who may be within the reach of the Ukrainian authorities.
What are the main tips for Ukrainian investigators in how to properly investigate war crimes?
War crime investigations are very similar to investigations of regular homicide and/or organised crime, but on a much larger scale.
Ukrainian prosecutors are currently assisted by a number of experts - lawyers and investigators - who gained experience while working for various Tribunals (ICTY, ICTR or by ICC). The prosecutors need to be careful, though, to investigate all war crimes, not only those committed by Russians. There is no doubt about who attacked who. The Russians are the aggressors in this conflict but it does not mean that Ukrainians defenders cannot or did not commit war crimes. The prosecutors will also have to investigate those cases, otherwise they could lose credibility. I am fully aware that investigation of war crimes committed by Ukrainians will be politically very unpopular in Ukraine.
Comparably, in the former Yugoslavia, it was much easier to investigate and prosecute Serbs in Croatia and Croats in Serbia, but very difficult to prosecute Croats in Croatia and Serbs in Serbia. There is no reason to expect that it would be different in Ukraine. Politics will play a significant role in this process.
Vladimir Dzuro currently works as chief of headquarters office at the UN office of internal oversight services in New York and is the author of The Investigator: Demons of the Balkans War.
