Assurances of victim participation in proceedings before the International Criminal Court and Extraordinary Chambers in the Courts of Cambodia have been seen as a welcome corrective to the flawed model of earlier tribunals.Footnote ¹ The first such tribunal created since the postwar period, the International Criminal Tribunal for the former Yugoslavia (ICTY), was established by the UN Security Council in May 1993Footnote ² without even consulting those who survived the atrocities that gave rise to its creation, the majority of which took place in Bosnia-Herzegovina.Footnote ³ Nor were victims formally incorporated into the ICTY's work except for those who provided testimony and other evidence. (The same holds true for the International Criminal Tribunal for Rwanda, established by the UN Security Council in 1994;Footnote ⁴ in the interests of brevity, my remarks will focus on the ICTY.)

In striking contrast, victims were central to two landmark trials in the past five years—the prosecution in 2015–2016 of former Chadian dictator Hissène Habré before the Extraordinary African Chambers in Senegal,Footnote ⁵ which is the focus of other panelists’ remarks, and the 2013 trial of former dictator Efraín Ríos Montt in Guatemala.Footnote ⁶ While several factors account for these historic trials, robust and sustained campaigns by victims provided crucial impetus for both. In myriad ways, moreover, Chadian and Guatemalan victims’ persistent engagement may have enhanced their satisfaction with justice long delayed.

At a time of diminishing great-power support for retrospective justice, it is well worth our while to mine these experiences as models that might be adapted to other contexts in which victims demand justice yet face numerous obstacles. While other panelists will take up this task, my primary goal here is to offer a corrective to a widespread perception perhaps implied in my earlier remarks: that victims of atrocities prosecuted before the ICTY were marginal to its work except for their crucial contributions as witnesses. This perception pervades the English-language literature on the ICTY, which typically explains the Tribunal's creation in terms of the actions and motivations of relevant states and intergovernmental bodies.Footnote ⁷

To be sure, as a creature of the UN Security Council, the ICTY exemplifies top-down, externally imposed justice. Yet standard accounts of the Tribunal, which relegate victims to the role of bystanders to its creation and render them peripheral to its operation except as witnesses, erase their contributions and agency. In fact, well before the ICTY was created, Bosnian rape survivors were actively engaged in documenting mass rapes with a view to prosecutions, and became active participants in global efforts to ensure justice for crimes of sexual violence once the Tribunal was launched. Survivors and other activists also shared valuable evidence with the ICTY prosecutor, and pressed governments to cooperate with the Tribunal. Advocates in former Yugoslav states have, moreover, long pressed their governments to build on the ICTY's findings by undertaking meaningful gestures of acknowledgment and penance.Footnote ⁸

English-language literature on the ICTY has also largely obscured the central role of domestic lawyers in developing national war crimes institutions in Bosnia, which are among the ICTY's most tangible (albeit imperiled) legacies. Understandably, accounts of Bosnia's war crimes chamber (WCC) and Special Department for War Crimes in the Office of the Prosecutor, which began operating in 2005, typically emphasize the roles of the ICTY and the Office of the High Representative (OHR) for Bosnia in developing these institutions.Footnote ⁹ While the ICTY and OHR indeed played key roles, Bosnian legal professionals were deeply involved in developing these institutions.Footnote ¹⁰

Acknowledging their role is not just a matter of getting the facts right. Obscuring the contributions of domestic lawyers has compounded already formidable challenges to Bosnia's fragile war crimes institutions. Judge Patricia Whalen, who served as an international judge on the WCC, recalls: “All you ever heard about was the OHR, the ICTY, the OHR, the ICTY.”Footnote ¹¹ In her view, the misleading perception that the WCC was essentially a foreign institution “became a weapon that was used against” it by nationalists opposed to the chamber's work.Footnote ¹²

Most accounts of the ICTY also obscure the degree to which the Hague Tribunal's work helped mobilize civil society advocates in Bosnia, Serbia, and other former Yugoslav states, some of whom have partnered with Tribunal officials in programs aimed at advancing domestic processes of reckoning with wartime atrocities.Footnote ¹³ This type of influence can, at least in some circumstances, have powerful reverberations: by mobilizing domestic advocates, international criminal courts can indirectly help advance accountability for past atrocities in national forums.Footnote ¹⁴ To the extent this leads to human rights prosecutions in domestic courts, we may see a valuable downstream impact: a growing body of research has found a “strong and statistically significant” correlation between such prosecutions and decreased levels of repression.Footnote ¹⁵

So far I have sought to correct a pervasive belief that the ICTY, as well as domestic war crimes institutions it helped launch, are solely the work of international actors. Yet this is not to suggest that the role of victims and other local actors in shaping the ICTY's legacy is comparable to that of victim-led coalitions that relentlessly and successfully campaigned to bring Hissène Habré and Efraín Ríos Montt before the bar of justice. An intriguing question is whether differing degrees of victim engagement in bringing about trials before the ICTY on the one hand, and prosecutions before the Extraordinary African Chambers in Senegal and the Guatemalan court that tried Ríos Montt on the other hand, influenced victims’ experience of justice before these courts.

Any answer must be tentative and qualified, not least because victims’ perceptions of justice result from the complex interaction of many factors. With appropriate caveats, then, I suspect that many Chadian and Guatemalan victims experienced long-delayed justice with special satisfaction in part because they had overcome seemingly insurmountable odds to bring Habré and Ríos Montt, respectively, to justice; in contrast, by the time many of the ICTY's high-level defendants were brought to trial, many Bosnians had grown weary of waiting for the kind of justice they thought the international community had promised to deliver decades earlier, when the ICTY was established. As I note in Some Kind of Justice: The ICTY's Impact in Bosnia and Serbia, Bosnian survivors “did not experience long-awaited trials [of major suspects] the same way they would have years earlier.”Footnote ¹⁶ Even so, when the ICTY rendered its final trial verdict in late November 2017, convicting Ratko Mladić of genocide and sentencing him to life in prison,Footnote ¹⁷ many Bosnians savored the long-awaited judgment.Footnote ¹⁸