In Some Kind of Justice: The ICTY's Impact in Bosnia and Serbia, Diane Orentlicher examines the on-the-ground impact of the International Criminal Tribunal for the former Yugoslavia (ICTY or Tribunal) in Bosnia and Herzegovina and in Serbia, the two countries most affected by the Tribunal's work. The subject matter is not novel; over the course of its twenty-five year history, countless scholars, journalists, and activists have written about the ICTY, championing its role in the development of international criminal law while, more recently, also grappling with complex questions of its legacy in the former Yugoslavia.Footnote ¹ Some Kind of Justice, however, is especially comprehensive in its efforts to capture local expectations and perceptions of the Tribunal's work and, significantly, it tracks the evolution of these perspectives over time. The result is a nuanced picture of the effects of a path-breaking institution that provides sound guidance for international criminal tribunals seeking to bring justice to the populations they are intended to serve.

Orentlicher, a co-director of the Center for Human Rights and Humanitarian Law at American University Washington College of Law, who served in the U.S. Department of State's Office of War Crimes Issues (now the Office of Global Criminal Justice) in the Obama administration, is well versed in both the Tribunal's case law and the arguments in support of and against its utility. She has written extensively on the ICTY and its impact on victims and survivors, and Some Kind of Justice builds on her previous work.Footnote ²

The questions asked in Some Kind of Justice are familiar: Do international tribunals like the ICTY truly provide justice for victims? Can they play a role in catalyzing positive political change, promoting reconciliation, and deterring future atrocities? Orentlicher answers these questions both qualitatively and quantitatively, through individual responses from Bosnian and SerbianFootnote ³ interviewees and by presenting data from two decades’ worth of social science surveys. She examines reactions and results through the lens of various theories of punishment and measures them against a variety of psychosocial theories related to collective memory, victimization, and guilt.

Orentlicher accepts that the Tribunal's legacy is complicated. Some Kind of Justice does not work backward to prove a bold, broad thesis, justifying or undermining the existence of the ICTY. Instead, it provides an evenhanded, realistic account of the evolving political, economic, social, and cultural dynamics that have played a profound role in shaping the Tribunal's legacy in Bosnia and Herzegovina and Serbia. Orentlicher begins by surveying the political situation in both countries from the 1990s to the present and discussing the evolution of governmental relationships with the ICTY. She then sets forth Bosnian and Serbian expectations of the Tribunal, along with measures for judging its success. Next, Orentlicher examines the quality of the justice dispensed by the ICTY, focusing particularly on the assessments of Bosnian Muslims (Bosniaks)—a population heavily impacted by the war that, on the whole, placed the highest hopes on the Tribunal.

Finally, Orentlicher examines the ICTY's influence on the acknowledgment of wartime atrocities and its role in catalyzing and supporting local prosecutions. Both are key to assessing the Tribunal's impact and its broader legacy. For its Bosnian and Serbian supporters (as well as its Western-power creators) the ICTY had the potential to create an authoritative historical record, which would dispel denialism and foster reconciliation. These lofty goals remain largely unrealized, and Orentlicher identifies them as a primary source of disappointment. By contrast, she touts the success of local prosecutions, not originally among the Tribunal's goals, as one of the ICTY's greatest and potentially longest lasting successes.

Some Kind of Justice shines when it is examining how particular cases and situations bear on the Tribunal's legacy from the eyes of the affected populations. Over the course of a decade, Orentlicher took multiple trips to Bosnia and Herzegovina and Serbia and solicited input from dozens of individuals, including judges, attorneys, politicians, journalists, academics, and activists. She comes back to many of her subjects repeatedly to assess whether and how their views on the ICTY change as the landscape shifts and evolves. Orentlicher intersperses her own analysis, which generally avoids reductionism and is careful to provide the reader with context.

The book covers the highs and lows of attempts to bring pivotal actors such as former President of Serbia Slobodan Milošević, former President of Republika Srpska Radovan Karadžić, and former Bosnian Serb General Ratko Mladić to justice—watershed events marred by delays in the proceedings and cries of unfairness on all sides. It also discusses controversial exonerations—including the shocking reversal of Croatian General Ante Gotovina's conviction for war crimes committed against Serbs during the 1995 Operation Storm, and the absurd judgment acquitting radical Serb politician Vojislav Šešilj, which, among other things, stated that forcible transfers of civilian populations were not crimes against humanity, “but rather acts of humanitarian assistance”Footnote ⁴—and assesses their impact on the Tribunal's overall credibility.

In the course of examining these events, Orentlicher reviews key aspects of the underlying case law, such as the conclusion that the Srebrenica massacre constituted genocide while the crimes committed in and around Prijedor did not. She discusses the profound and lasting impact that the former has had on the Bosnian political landscape and on the relationship between Bosnia and Herzegovina and Serbia, and acknowledges the latter as a lasting source of disappointment for many within Bosniak communities. In addition to examining the case law, Orentlicher addresses procedures employed by the Tribunal that generated widespread consternation, including the use of plea-bargaining, relatively short sentences, and the practice of early release—even for high-level actors such as Biljana Plavšić, the former president of the Bosnian Serb entity, Republika Srpska.

More of the book is devoted to Bosnia and Herzegovina than to Serbia, and the issues addressed in the chapters on the former do not fully align with those discussed in the chapters on the latter. Most notably, Orentlicher devotes an entire chapter to Bosnian perspectives on the quality of justice, but does not include a similar chapter for Serbia. To some extent, that is understandable, because Bosnians of all ethnicities were direct victims (and perpetrators) in the war, whereas fighting did not occur on Serbian territory. Nonetheless, omitting the Serbian perspective makes it difficult to engage in meaningful comparison. Orentlicher also largely leaves out Croatian and Kosovar voices altogether, even though their perspectives on similar issues would have captured a fuller picture of the ICTY's impact in the former Yugoslavia as a whole.Footnote ⁵

Fundamentally, Some Kind of Justice is focused more on local populations’ satisfaction with the ICTY's results than with their understandings of why the Tribunal came to the conclusions it did. Orentlicher herself engages with the substantive law, but generally does not ask her subjects to parse the Tribunal's decisions in depth. Moreover, her interviewees tend to be individuals who are highly engaged with the ICTY's work. Orentlicher does not speak to many “average” citizens, relying primarily on surveys to illustrate broader community beliefs. Thus, it is difficult to determine whether Serb opposition to and Bosniak acceptance of the ICTY's determination that what occurred in Srebrenica amounted to and met the legal definition of “genocide,” for example, is primarily visceral, based on the communities’ perceived statuses as victims or perpetrators, or whether some Serbs take issue with the reasoning behind the Tribunal's decisions in the relevant cases.Footnote ⁶ That is a distinction with a difference. If the former is true, then it likely will prove continually difficult to engage in meaningful debate, even as memories of the war fade into the past. If the latter is more accurate, there may be more space to achieve common ground in the future.

Of course, arriving at an answer is not so simple, nor, likely, is the answer itself. As Orentlicher discusses in the chapters on denialism and acceptance, people are not always willing to offer nuanced accounts of complex matters when the issues in question are central to their identities. And, as one interviewee, Edin Hodžić candidly states: “People do not read [ICTY] judgments. Nobody” (p. 315). Most people receive complicated information through a filter. In the absence of robust communication from the Tribunal itself—a critical flaw, particularly in the early years, which Orentlicher points out—it is difficult to assess whether the substance was imparted at all, much less from an impartial, reliable source.Footnote ⁷

It is worthwhile, however, to keep investigating the “why” of people's reactions to the Tribunal's rulings. Mass atrocity crimes—genocide, war crimes, and crimes against humanity—are, by definition, intended to be of the greatest concern to mankind as a whole.Footnote ⁸ Thus, it seems especially important that communities understand what these crimes are, and what they are not, when their own members are involved. Mass atrocity crimes all include contextual elements that do not always comport with popular understanding.Footnote ⁹ Journalists, activists, and others regularly invoke the term “genocide,” for example, whenever a minority group endures great suffering at the hands of a majority.Footnote ¹⁰ The debate among legal scholars is genuine and nuanced,Footnote ¹¹ but outside of academia, it often seems that large-scale crimes against civilians do not generate public outcry unless the word “genocide” is invoked.Footnote ¹² Crimes against humanity are treated as a lesser form of wrongdoing, as if these crimes were meant to serve the function of “manslaughter” to genocide's “murder.” Orentlicher recognizes this “vexing irony,” by which the crime of genocide has “downgraded the stigma associated with other international crimes” (p. 168).

Communities impacted by mass atrocities are thus left in the position of trying to match the suffering they endured (or their members committed) with precise legal definitions, the application of which often yields conclusions that do not comport with popular understanding. Bosniaks, for example, overwhelmingly accept the killing of more than 7,000 individuals, mostly men and boys, around Srebrenica as an act of genocide. Yet, the masterminds behind Srebrenica were the same leaders responsible for the deaths of some 3,000 civilians in Prijedor earlier in the war, and the direct perpetrators came from the same ethnic group. How is it, then, that the ICTY concluded no genocide occurred there? Conversely, from the Serb perspective, how could what occurred at Srebrenica reasonably be considered a crime of the same magnitude as the systematic murder of hundreds of thousands of Serbs by Croatian fascists during World War II (much less the Holocaust, where six million Jews perished)?Footnote ¹³

Judges, lawyers, and scholars recognize it is not solely about the numbers killed, the causes of the war, or even the fact that civilians were targeted. Instead, the legal definition of genocide focuses on the specific intent of the perpetrators, and the law requires proof of that intent beyond a reasonable doubt.Footnote ¹⁴ It is unclear whether average citizens are aware of these distinctions or whether, if they were, it would make any difference in terms of acceptance of a verdict.Footnote ¹⁵ Communities often divide over controversial prosecutions, but mass atrocity crimes decimate populations and entrench divisions that already run deep. Thus, it is particularly important to explore whether people know or care why an individual is or is not convicted of certain crimes, or if it only matters whether he or she is found guilty and sentenced sufficiently harshly.

If an international criminal tribunal can effectively impart the law, then it may have a greater power to shape attitudes in the future as circumstances change and evolve. As Orentlicher notes, the ICTY may have missed this opportunity by failing to develop a comprehensive communications strategy early on. Neither the survey data she shares nor the individual perspectives she collects shed much light on whether the communities affected by the Tribunal's work engaged with the substance of its decisions through other means. Some Kind of Justice would have been even more compelling if it had dug deeper into these questions, requiring its subjects to engage more fully with the substantive law.

Finally, there is an obvious, acknowledged tension between the picture Orentlicher presents of the ICTY's legacy in Bosnia and Herzegovina and Serbia and the guidance she hopes to provide for other international tribunals. Despite documented missteps, the ICTY did more for the development of the field of international criminal law than any institution before or since. But the collective conclusion of the book's interviews is, seemingly, that although the ICTY delivered “some kind” of justice to victims, it fell far short of expectations.

The ICTY did not truly help communities heal. Its creation of a comprehensive factual record has not yet meaningfully loosened entrenched narratives or caused a societal reckoning with hard facts. Prosecutions physically removed leaders from some impacted communities, but this did not catalyze sustained political change. Nationalism is firmly rooted in both countries. The political situation in Bosnia and Herzegovina is widely believed to be unsustainable and, with the recent election of Serb nationalist Milorad Dodik to the presidency, has grown more precarious since the book's release last spring.Footnote ¹⁶ Many communities remain segregated, despite attempts by activists to foster reconciliation.Footnote ¹⁷ And political actors have used the ICTY as a tool to manipulate their constituents and entrench these divisions to advance their own agendas.Footnote ¹⁸

In a time when support for international justice appears to be waning, with former supporters threatening to pull out of the International Criminal Court (ICC) and renewed U.S. hostility to its mandate, these realities are problematic. How is it possible to justify such institutions, which are costly and cumbersome, if they cannot effectively deliver justice, foster reconciliation, or bring about political change?

Orentlicher offers a partial answer in the last chapters, which document the major role the ICTY played in catalyzing and supporting local prosecutions of war crimes in Bosnia and Herzegovina and Serbia. Although the Tribunal had primacy over local courts, the fact that it ultimately helped pave the way for local prosecutions is a positive development. The experience of the ICTY shows that international tribunals can help develop the law, train judges and prosecutors, and even sometimes gather evidence that will help national courts prosecuting similar cases. That model comports with the ICC's system of complementarity, which is designed to yield to genuine local efforts to prosecute and punish, and the ICC's institutions can serve as a model for domestic legal systems and play a significant role in advancing national justice.Footnote ¹⁹

Orentlicher also argues that it may be too soon to assess what the ICTY has achieved in Bosnia and Herzegovina and Serbia. The afterlife of an international criminal tribunal can far exceed its life, evidence for which she finds in the evolution of German attitudes toward the Nuremburg Tribunal in the decades after the trials occurred. In the concluding pages of Some Kind of Justice, Orentlicher discusses how German citizens generally accepted the guilt of the Nazi leadership after the Nuremberg trials, but the public grew increasingly wary as prosecutions continued. A host of factors, including external pressure, increased exposure to victims’ narratives, the coming of age of a new generation, and recovery of Germany's international stature, helped coalesce a more positive view. Now, seventy years on, “German society has generally embraced the normative model and message of Nuremberg” (p. 442).

The same may prove true of the ICTY in Bosnia and Herzegovina and Serbia, but, as Orentlicher recognizes, the end result will almost certainly depend on political, economic, and social developments in those countries and in the region. That makes it all the more important to continue analyzing the ICTY's impact, even as the Tribunal's doors are shuttered. Orentlicher may already have worked on Some Kind of Justice much longer than she intended, but there is more information to be mined from the Tribunal's legacy as it continues to develop and evolve. In the meantime, other international criminal tribunals and their supporters should learn from the ICTY's mistakes, to help make tangible strides toward achieving the lofty goals of ending impunity, promoting deterrence, and fostering reconciliation that have long served as mantras for the field of international criminal law. In providing a comprehensive, if not fully complete, account of the ICTY's local impact, Some Kind of Justice undoubtedly will serve as a useful tool.