Legitimacy, Scope, and Conflicting Claims on the ICTY: In the Aftermath of Gotovina, Haradinaj and Perišić

Abstract

Within the span of three months in 2012/2013, the International Criminal Tribunal for the former Yugoslavia (ICTY) handed down three major acquittal verdicts: two Croatian Army generals, three members of the Kosovo Liberation Army, and a high ranking Serbian army general. This article analyzes the political fallout from the acquittals to make three principal arguments. First, in the absence of broader transitional justice framework in the former Yugoslavia, the ICTY has become the principal instrument of both retributive and restorative justice, which places undue burdens on an institution with a narrow and technical mandate. Second, the ICTY has brought this unrealistic expectation on itself by legitimizing its work to hostile domestic publics as a path to reconciliation and creation of a historical transcript—promises that a court is not equipped to either make or keep. Third, the human rights community in the region has relied on the ICTY to be its “force multiplier” in building transitional justice efforts. This has further conflated the role of the international court with homegrown transitional justice campaigns and has made the political challenges for local efforts much more daunting.