May 7, 2019

Clinical Professor Jennifer Trahan writes on the Legacy of the International Criminal Tribunal for the Former Yugoslavia

The Center for Global Affairs (CGA) is pleased to note the publication of Professor Jennifer Trahan’s book chapter, “Examining the Benchmarks by which to Evaluate the ICTY’s Legacy.” The chapter was published in The Legacy of Ad Hoc Tribunals in International Criminal Law: Assessing the ICTY’s and the ICTR’s Most Significant Legal Accomplishments, ed. by Milena Sterio and Michael P. Scharf (Cambridge Univ. Press 2019).

Professor Trahan's chapter examines how to evaluate the legacy of the International Criminal Tribunal for the former Yugoslavia (ICTY), and, particularly, what should constitute the benchmarks by which to measure the tribunal's accomplishments.  The chapter suggests that the ICTY has proven quite a successful institution considering the ICTY's: (a) conducting high-level prosecutions pursuant to internationally recognized fair trial standards; (b) success in having all indictees apprehended; (c) creation of an extensive body of generally well-reasoned jurisprudence; (d) focus on previously under-reported and under-documented crimes such as sexual and gender based violence; (e) having nearly 5,000 victims and witnesses testify, allowing their voices to be heard; (f) establishing a solid historical record and extensive documentary archive; and (g) contributing to rule of law through its own work, capacity-building in the region, and more broadly.


However, in reaching her assessment, Trahan also factors in that many in the region do not share this positive assessment of the Tribunal's work, and she seeks to explain this and the extent to which that impacts (or not) upon how one measures accomplishments.  She then examines more society-wide transformative goals (contributions to international peace and security, and deterrence), where she argues the ICTY in fact made contributions.  However, she argues that tribunals generally should not be asked to fulfill such goals.  Finally, in other areas, such as reconciliation, she concludes there has been distinctly less success (perhaps none at all).  Ultimately, she concludes that it is the lack of a shared narrative about the wars and the denial of crimes that seem the greatest challenges, but that these will have to await future progress by other transitional justice actors and/or new generations of political leaders.  Overall, she finds that the experience of the ICTY presents an important lesson for the future on managing expectations as to what tribunals can reasonably be asked to accomplish. 

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