The legitimacy of international courts: Victims’ evaluations of the ICTY and local courts in Bosnia and Herzegovina
| Author | Sanja Kutnjak Ivković,John Hagan |
| Published date | 01 March 2017 |
| Date | 01 March 2017 |
| DOI | http://doi.org/10.1177/1477370816649625 |
| Subject Matter | Articles |
https://doi.org/10.1177/1477370816649625
European Journal of Criminology
2017, Vol. 14(2) 200 –220
© The Author(s) 2016
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DOI: 10.1177/1477370816649625
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The legitimacy of international
courts: Victims’ evaluations of
the ICTY and local courts in
Bosnia and Herzegovina
Sanja Kutnjak Ivković
Michigan State University, USA
John Hagan
Northwestern University, USA
Abstract
This paper presents the results of a 2007 survey of victims of war crimes and crimes against
humanity from Bosnia and Herzegovina. We study the level of diffuse and specific support for
the International Criminal Tribunal for the former Yugoslavia (ICTY) among its constituency by
exploring the respondents’ views about the ICTY and the local courts in Bosnia and Herzegovina,
Croatia, and Serbia. Our results show that, whereas the ICTY was the preferred decision-
maker for war crimes and crimes against humanity for the majority of the respondents, ethnicity
plays a strong role in the perceptions of the ICTY’s legitimacy. Compared with Croat and
Serb respondents, who typically expressed little confidence in the ICTY, the Bosniak/Muslim
respondents seemed to show the greatest degree of support for the ICTY. Although the majority
of the respondents evaluated the ICTY as fair, the level of support for the ICTY was sharply
divided across ethnic lines as well and was related to evaluations of the ICTY’s distributive fairness
and procedural fairness, and to perceptions about the judges’ (lack of) political independence.
The majority of the respondents evaluated only one domestic court – the Court of Bosnia and
Herzegovina – as fair.
Keywords
Human rights, ICTY, international courts, legitimacy, procedural justice, victims
Corresponding author:
Sanja Kutnjak Ivković, School of Criminal Justice, Michigan State University, 560 Baker Hall, East Lansing,
MI 48824, USA.
Email: kutnjak@msu.edu
649625EUC0010.1177/1477370816649625European Journal of CriminologyKutnjak Ivković and Hagan
research-article2016
Article
Kutnjak Ivković and Hagan 201
Introduction
The United Nations Commission of Experts reported in 1994 that the wars in the former
Yugoslavia resulted in more than 3 million refugees, about 200,000–250,000 dead,
50,000 tortured, and 20,000 raped (Commission of Experts, 1994). In response, in 1993
the United Nations Security Council authorized the creation of the International Criminal
Tribunal for the former Yugoslavia (ICTY) with the purposes of contributing to the res-
toration of peace, punishing the offenders, and delivering justice to the victims (United
Nations, 1993; ICTY, 2006).
For a long time, reports by non-governmental organizations (NGOs) on local courts
indicated either that the local courts did not engage in trials for war crimes/crimes against
humanity at all or that the trials by local courts resulted in biased justice (for example,
Djikoli, 2010; Human Rights Watch, 2008; OSCE, 2005). Even a decade after the wars
had ended, the NGOs claimed that the local Bosnian courts, other than the Court of
Bosnia and Herzegovina (BiH – a semi-domestic court heavily influenced by the inter-
national community), did not have the capacity to provide the necessary support to vic-
tims and witnesses (Djikoli, 2010). By 2003, the number of war crime trials conducted
by local courts in Serbia was minuscule (Ellis, 2004: 166), partly a result of the lack of
political will to perform such trials, as well as the incapacity of the court system to con-
duct a large number of such trials and do so in accordance with international standards
(for example, Ellis, 2004: 168). Pressured by the international community, in 2003 Serbia
entrusted the War Crimes Court in Belgrade with exclusive jurisdiction over such cases
(Serbia and Montenegro: Law on Organisation and Jurisdiction of Government
Authorities in Prosecuting Perpetrators of War Crimes, 2003: Article 9). On the other
hand, ‘more than 600 people have been convicted, another 600 have been indicted and
several hundreds more are under investigation’ (OSCE, 2009) by the Croatian courts.
However, as various NGOs have emphasized, ‘[t]he national origin of defendants and,
possibly even more importantly, that of victims continued to affect war-crime proceed-
ings’ (OSCE, 2004: 14). Croatia decided to rectify these issues by reopening a large
number of cases in which the defendants were tried in absentia.
Several factors make the ICTY the preeminent court on the frontier of justice for vic-
tims of war crimes and crimes against humanity in the former Yugoslavia. First, for a
long time, local courts either could not or would not try such cases and deliver unbiased
decisions, whereas the ICTY managed to push through the obstacles (see, for example,
Kutnjak Ivković, 2001) and, over time, found guilty and sentenced 79 individuals (ICTY,
2015). Second, although both UN Security Council Resolution 827 (1993) and the ICTY
Statute (Rule 9, 2009) claimed that the ICTY and local courts have concurrent jurisdic-
tion over war crimes and crimes against humanity, the ICTY was also given primary
jurisdiction, which entitled it to have the first pick of the cases. The Rules of the Road
Agreement (ICTY, 1996) further strengthened this primary jurisdiction, leading toward
almost absolute primacy (Burke-White, 2007–8) and, effectively, imposing restrictions
on zealous local prosecutors. Third, the ICTY has exercised its primary jurisdiction by
focusing mostly on top political and military leaders. The ICTY has put on trial individu-
als such as Slobodan Milošević (former President of Serbia), Radovan Karadžić (former
President of the Serbian part of Bosnia, Republika Srpska – RS), Ratko Mladić (former
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