Note that we are distributing two reviews of Aleksandar Fatic's Reconciliation
via the War Crimes Tribunal. The first review was comissioned by Balkan
Academic News, the second was volunteered by Jelena Gazivoda.
Florian Bieber.

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Balkan Academic News Book Review 1/2000

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Reconciliation via the War Crimes Tribunal?
Aleksandar Fatic
Aldershot: Ashgate, January 2000
£ 35.00 pp. 128
ISBN 1 84014 487 4


Jos De la Haye

The title “Reconciliation via the War Crimes Tribunal?” reveals two objectives
of the author, first, linking the question of reconciliation with the
International War Crimes Tribunal, and second, asking whether
reconciliation is
possible through the instrument of the International War Crimes Tribunal. The
author manages to combine these two complex issues in a clear and open manner.
Interesting was that as a reader one could sense the book had been written by
someone who witnessed the events himself. Consequently, the impact of the IWCT
as a new instrument became more tangible.
Fatic deals with the conceptual and practical issues facing the International
Crimes Tribunal for the Former Yugoslavia (ICTY) without entering into a
formalistic and legalistic debate. He explains the importance of a system of
consequentialism in national justice within the restorative theory. During the
whole process the danger of mixing up “heroes” and “criminals” is always
present. Furthermore, he discussed the consequences of the difficult
distinction between “responsibility” and “guilt” which has to be seen on two
levels: individually and collectively. Further on in the debate he invoked the
concept of “criminally responsible” when referring to those who “had made
crime
probable in the first place and are at least as guilty and need to be accused
as soon as possible after the immediate perpetrators are”.
His conceptual debate is written in a manner that it is open to everyone and
not only to specialists in international human rights law. He immediately
gives
a practical perspective of certain concepts, when for instance speaking of
individual and collective responsibility or guilt. One aspect the author pays
little attention to is the complexity of knowing the “truth” on what happened.
As such the debate on a “truth and reconciliation” commission for Bosnia is
too
little explored.
In his chapter on “Policy Issues” Fatic elaborates on how an international war
crimes tribunal could resolve an ongoing conflict. The link with
reconciliation
lies in two main dimensions. Firstly, shifting the blame from entire
nations to
guilty individuals, and secondly, impartiality. Fatic states that it is
obvious
that the actual ICTY has problems in showing its “impartiality”.
When establishing a huge organization like the international war crimes
tribunal, the author distinguished two systems. First, the “initial
proportion”
strategy or what he referred to as “the tube, and second, the “massive
imposition strategy” or what he labeled the “balloon”. It was Fatic’s
conclusion the ICTY has adopted the massive imposition strategy since 1996,
although in a modified version. He argued the “tube” system as the most
effective one.
In his concluding remarks, Fatic points at the process of reconciliation as a
“switch” for radicalism. International organizations like the ICTY, UN and
NATO; can play a role in this evolution. The ICTY’s mission, in part, helps to
“bring about reconciliation by determining individual faults and leaving open
room for the forgiveness of collective faults or those actions or inaction
that
may appear as faults”. This strategy involves various sorts of pressure, in
order to be operationally viable. This is where the UN and NATO come into the
picture. Fatic recognizes the structural differences between NATO and UN, but
remains optimistic. However, what is lacking is the role of (international)
non-governmental organization in the process of reconciliation.
In short, this book gives a very interesting perspective on the complex
relationship between the ICTY and the reconciliation process. Firstly, because
the author’s insight information as a witness on the field, secondly, the book
is written in such a way that it is open for everyone interested in this
complex subject. As such it is a recommended book for every one interested in
the international war crimes tribunal, and also for those interested in
understanding the underlying tensions in Bosnian society during and after the
war.

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Jos De la Haye is a Ph.D. researcher at the Department of Political
Sciences of
the K.U. Leuven. He is currently working on his Ph.D., analyzing the
phenomenon
of “missed opportunities” of conflict prevention in Bosnia-Herzegovina.

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Jelena Gazivoda

Reconciliation via the War Crimes Tribunal? is a study of the International
Criminal Tribunal for the Former Yugoslavia (ICTY), its history, the legal
basis of its establishment, the initial phase of its work, aspirations and
prospects, as well as some shortcomings in the realization of its main goals.
The book offers a parallel chronological review of the break-up of a country,
the tragic destiny of the Yugoslav peoples that had ended in bloodletting and
brutal civil wars, as well an analysis of the roles played by powerful
countries in the unfolding of the “Balkan's story”.
This is the study of an ad hoc Tribunal that was established on 22 February
1993, in the midst of a major civil war in the former Yugoslavia. One of the
main aspirations behind the Tribunal's establishment was to deter killing and
stop the destruction as quickly as reasonably practicable. There is reason to
argue that the Tribunal has not been sufficiently effective in accomplishing
these goals. The idea was to establish an impartial international court that
would function as the ultimate instrument of international law in enforcing
international justice and preventing the uncontrolled use of violence in the
settlement of regional disputes. In this sense, the author argues the ICTY has
inevitably become both a judicial and diplomatic tool, aimed to convey to the
warring sides a message containing the values adopted by the international
community. Fatiæ devotes considerable attention to the diplomatic aspects of
the ICTY's work, its constructive role in security constellation in Europe,
particularly in the context of the state disintegration and political
fragmentation of what was once Yugoslavia.
The book discusses the main motives behind the ICTY's establishment as well as
the main goals to effects (p. 45, 1). In this context, the ICTY' role to
contribute to national reconciliation and the creation of preconditions for
the
establishment of links between the recently formed countries of the former
Yugoslav space on the one hand and the international community on the
other, is
particularly relevant. The ICTY works to achieve this end by seeking to put in
perspective of individual responsibility of the perpetrators of war crimes,
thus allowing the peoples of the former Yugoslavia to get on with their lives
and mutual relations. In the same manner, the author portraits the ICTY as a
filter of messages (p.9).
The ICTY is based on the principle of individual, personal responsibility.
This
implies that it does not prosecute groups, collectives or organizations. At
the
same time, it entrances the individual responsibility of leaders of
collectives
or groups such as of a state, a governmental official or any other person in a
position of authority. Those who have ordered the commission of atrocities or
were in a position to prevent them, and/or punish their immediate
perpetrators,
but have failed to do so, are also among the indicted. These and other key
principles behind the ICTY's operation are explained in detail. A particularly
important aspect of the ICTY's work is that its Statute fully respects the
principle of ne bis in idem and gives the ICTY superior jurisdiction to
that of
the national courts. The adoption of the ICTY's Statute has in fact
institutionalized the obligation of all parties to extradite any suspect to
the
ICTY that the ICTY might identify as potential perpetrators of atrocities.
Chapter 4 of the book, entitled “ The ICTY’s Aspirations, its Statute, and
some
of the Legal Inconsistencies in its Establishment” is particularly relevant
for
lawyers, as here the author explains some of the main objections that have
been
directed at the ICTY. They include both political and legal objections as well
as their detailed commentary. The author also provides here a brief review of
the Geneva Conventions and the 1907 Hague Convention.
The book traces the functioning of the ICTY from 1993 onwards convincingly,
specifically enumerating all of the indictments, quoting the names of the
indicted, charges against them, and the legal basis for the indictments. This
is where Fatic also points to a number of shortcomings in the ICTY's work,
particularly concerning the lack of protection against the possible
miscarriages of justice, as well as the controversies that surrounded the
suicide of Slavko Dokmanoviæ while incarcerated at Scheveningen.
The most important aspect of Reconciliation via the War Crimes Tribunal? is
the
scope and meaning of the very idea of reconciliation in the context of the
ICTY. Fatic here concentrates on two main dimensions of the Tribunal's work
that facilitate the achievement of reconciliation: 1) shifting the blame from
entire nations to guilty individuals by bringing those guilty to justice; and
2) a demonstration of an impeccable impartiality. It is these two principles
that the author develops as a basis for the ICTY's reconciliatory potential in
the region of southeastern Europe.
Reconciliation is, in fact, a leading idea even in chapters where other
relevant issues are discussed. The author clearly asks himself whether and to
what extent international justice is able to serve the arms of reconciliation.
This is perhaps most clearly indicated by the question mark in the title of
the
book.

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Jelena Gazivoda is a Research Associate, Institute of International Politics
and Economics, Belgrade

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© 2000 Balkan Academic News. This review may be distributed and reproduced
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