“In Ukraine, as in the former Yugoslavia, international justice must not be a justice of the victors”

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By John

Jean-Arnault Dérens is a historian, specialist in the Balkans, and journalist, founder of the online media The Balkan Courier. He has just written, with the journalist Laurent Geslin, The Balkans in 100 questions. Crossroads under influence (Tallandier, 352 pages, 19.90 euros).

Thirty years ago, on May 25, 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) was created. This decision is echoed by current debates on the need to try war crimes in Ukraine. Under what conditions was it taken?

Resolution 827 of the United Nations Security Council, adopted in the midst of the war in Bosnia and Herzegovina, emanates from the Western desire not to create a “tribunal of victors”, like that of Nuremberg. [1945-1946] after the Second World War, but a neutral criminal court, to say the law. In the Balkan Wars, there are no official victors or surrender. The Bosnian war ended with the Dayton agreements in December 1995, which gave enormous powers to warmongers, Serbian nationalists, Croats or Bosnians; that of Kosovo ends with a technical ceasefire agreement [le 9 juin 1999].

The creation of the ICTY also allows Europeans and the international community to ease their conscience, when they have not been able to prevent the war, the fighting continues and the attempts to stop them are bogged down. .

The court pursues two objectives. It is first a question of judging those who have violated international law, to avoid the emergence of a feeling of collective guilt within one people or another. Then appears the ambition to implement transitional justice, in order to bring societies to face their past in a dispassionate way and thus contribute to reconciliation between the parties.

Has the ambition of the ICTY been achieved?

Yes and no. The roadmap was respected: all of the 161 people charged were arrested and tried, except for the ten of them who died in the meantime. But that experiment has been marked by setbacks, some of which fall to the court. Failure on pedagogy first: the choice of an Anglo-Saxon type of justice made the trials difficult to understand for public opinion accustomed to Yugoslav law, inspired by Roman law, and which, however, granted the hearings a wide following. .

The wave of acquittals of 2011-2012 is another failure. People found guilty and sentenced to very heavy sentences – up to forty years in prison at first instance –, notably Croats, but also high-ranking Serbs, were acquitted on appeal, without new facts being presented. On the strength of their deep conviction, the judges decided to no longer retain the principle of command responsibility.