Abstract
The workings of international criminal trials situate themselves in an era where the concept of truth is heralded as a key aspect in the production of understandings of the past within transitional justice (TJ) settings. Yet, in such contexts where representations of the past are multilayered, trials tend to put to the fore certain narratives as legitimate readings, while excluding many others. This article explores the discourses of 18 individuals accused by the International Criminal Tribunal for the Former Yugoslavia (ICTY). It focuses on their role as generally delegitimized agents of truth and analyzes how they reconstruct their justice experience, focusing particularly on how they make sense of the judicial truths stemming from their case. It reveals how they reconstruct the ICTY as a hegemonic arena which produces judicial truths, which cannot be considered as legitimate and complete accounts of the past and which are at odds with their authoritative perspective of the “truth.” These findings are analyzed against the backdrop of increasing scholarly debates about the legitimacy, which can be attributed to perpetrators’ perspectives given the tendency, within TJ discourses and practices, to position international criminal justice as a universal and authoritative arbitrator of morality in conflict.
This article focuses on perceptions of justice gathered through personal interviews carried out with individuals accused by the International Criminal Tribunal for the Former Yugoslavia (ICTY). These perceptions are analyzed against the backdrop of contemporaneous debates about the role of international criminal courts in dealing with the past and in contributing to historical understandings through the production of particular judicial truths within transitional justice (TJ) settings. In particular, the article examines how the accused reconstruct their experience of the ICTY with a specific focus on how they make sense of the narratives that are produced as a result of the legal processing of their case.
Accounting for the Accused and Perpetrators’ Voice Within Research
There is an emerging body of scholarship accounting for perpetrator perspectives within empirical research, despite the many critiques it has faced (Baumeister, 2012; Eaglestone, 2010; McGlothlin, 2016). As socially imagined and constructed figures of evil and of moral repugnance, perpetrators of mass atrocities have often been relegated to the domain of the incomprehensible, the illegitimate, and the unacknowledgable within academia and beyond (Baumeister, 2012; Clark, 2009). Voices expressed against giving perpetrators a voice have pointed to the immorality of considering such narratives (Levi, 1988), to the violation of the solidarity owed to victims who listening to their voice would create (Bauer, 2002), or to the unreliability of their accounts (Browning, 1998). Owing to those concerns, some explored how and under what conditions these accounts could constitute sources of testimonies on the past that can contribute to historical understandings of collective violence and atrocity (Browning, 2003). Another rationale more frequently evoked has been the need to understand how ordinary individuals could commit extraordinary evil as well as what the causal roots of such mass violence and the processes involved in its commission are (Kressel, 2002; Staub, 1989; Straus, 2006; Waller, 2002). More recently, empirical scholarship is also increasingly turning its attention to perpetrators’ discourses as the main focus (Staub, 2003). Such research perspectives have been applied to various TJ contexts such as Rwanda (Fuji, 2009), the Former Yugoslavia (Rauschenbach, Staerklé, & Scalia, 2015), Greece (Haritos-Fatouros, 2003), South Africa (Kraft, 2014), Cambodia (Hinton, 2017), Brazil (Huggins, Haritos-Fatouros, & Zimbardo, 2002), or Argentina (Payne, 2008). Many of these studies have interviewed perpetrators with the objective of understanding the complexity of their involvement in serious human rights violations. Some have focused more particularly on their thoughts, motivations, and states of mind in perpetratorship (Kraft, 2014; Smeulers, 2008) or the role of group-level factors and structural forces in fostering collective violence in intercommunal conflict (Fuji, 2009; Rauschenbach et al., 2015). This scholarship has generally also added further support to concerns over the tendency in TJ processes to draw a firm boundary between blameless victims and guilty perpetrators in collective violence contexts (Shaw & Waldorf, 2010). It also evidences the necessity for a nuanced understanding of the complexity of perpetratorship: the multifarious nature of involvement in conflict, the different sociopolitical contexts that shape and promote the commission of international crimes, as well as the collective underpinnings attached to different levels of perpetratorship.
Within international criminal law scholarship, there has been a recent surge in research interest for defendants. Such perspectives are situated within a broader critical perspective focused on the international criminal justice project and the dominant discourses supporting its development and practices (see Devresse & Scalia, 2016; Mégret, 2005). Scholarly interest for the perspective of the accused within international criminal courts is scarcer, even though there are indications that this field of research is developing. One can mention research focusing on defendants’ active role in challenging the legality of international criminal courts and their practices (Gallant, 2010). There is also an increasing interest for investigating the conduct of defendants in international criminal trials and how they exploit opportunities within the judicial process to gain agency (e.g., Mégret, 2005; Meijers & Glasius, 2013).
There is also a developing body of research, which strives to analyze defendants’ discourses within the trial process. It aims to examine these accounts against the backdrop of other narratives that are expressed and generated in court (Bringedal Houge, 2016; Skjelsbæk, 2015). Some studies have focused particularly on understanding how these narratives play out in relation to the truth-seeking function of international criminal trials (Bringedal Houge, 2016; Schabas, 2012). As TJ mechanisms, international criminal trials have been entrusted with many core purposes, including establishing a record of past events. 1 The truth-seeking function of international criminal trials is generally acknowledged as central to their purpose (Gaynor, 2012; Schabas, 2012). 2 As such, international trials constitute significant arenas where narratives are produced, for example, about the individual criminal responsibilities with regard to mass atrocities that are prosecuted and the broader circumstances that led to these crimes, accounts that are then authenticated as “trial or judicial truths” 3 about a violent past (Gaynor, 2012). As platforms of truth-telling, trials are thus thought to express shared understandings of what happened. This function has been associated with various forward-looking objectives such as educating society about its past, preventing future atrocities, contributing to national reconciliation, or bringing an acknowledgment to victims (Drumbl, 2007; Koskenniemi, 2011). Yet, many scholars nuance the scope and potential of judicial truth, confining it to the information stemming from the outcome of the trial judgment and from the evidence admitted during the trial process (Bringedal Houge, 2016; Drumbl, 2007; Gaynor, 2012). Overall, there seems to be a consensus within scholarship that judicial truth represents only one dimension of truth among many others emerging in the aftermath of a violent conflict (Cohen, 2009).
Judicial Truth as One Dimension of Truth Among Others in TJ Settings
The TJ scholarship generally acknowledges that various forms of truth should be acknowledged to obtain a complete account of the past, which can be considered valid and accepted by a majority of justice stakeholders (Daly, 2008; Lambourne, 2009). 4 These different dimensions of truth can be defined as diverse narratives about a violent past, which stem from different channels, whether institutional, collective, or individual. 5 As multiple facets of what may constitute truth in the aftermath of a violent past, these dimensions can be complementary but also often come with conflicting objectives, meanings, and agendas (Kraft, 2014; Mannergren-Selimovic, 2015). Truth is a relative concept attached to different instrumental purposes, which tend to run into tension with each other depending on the transitional setting and its sociopolitical characteristics (Daly, 2008; Parmentier & Aciru, 2016). Truth is often contested because it resonates differently with communities and actors in transitional settings depending on its social and political meaning for different justice stakeholders. Some truths may obtain a larger recognition than others. The decision as to whether various voices are acceptable and legitimate and consequently given a space for expression and acknowledgment may often be contingent upon the normative and political framework in which testimonies are produced (Bakiner, 2016). As specifically crafted representations, which strategically link the past, present, and future, narratives are never constructed in a social vacuum. Trials, as well as other spheres of social interaction, constitute a realm where competing interpretations of the past are produced and negotiated with particular strategic purposes (Harris, 2001).
Judicial truth thus constitutes a particular reading of facts presented during the judicial proceedings and the trial, which is likely to exclude many other interpretations of the past and experiences of the crimes (Koskenniemi, 2011). Scholarship (Gaynor, 2012; Osiel, 2012; Wilson, 2011) studying the role of international criminal trials in contributing to the development of a historical record and in shaping collective memory within transitional settings doubts whether judicial truth can account for the multilayered nature of understandings of the past. Many of these critiques point to procedural, evidentiary, as well as jurisdictional factors which constrain the production of judicial truth and which are inherent to the nature and process of trials (Gaynor, 2012; Koskenniemi, 2011; Szoke-Burke, 2015).
Constraints to the Production of Judicial Truth: The Normative and Political Framework
Scholarly debates have highlighted various constraints to the plurality of memories, which can be expressed in international criminal courts. Some of them are specific to the international nature of these institutions and to the violations they are meant to prosecute. These constraints stem from the norm-setting assumptions of international trials as well as from the political context and the resulting power dynamics, which invariably surround their functioning.
Judicial truth and its norm-setting assumptions
International criminal courts are considered as forums where morality is assessed and debated through a legally framed interpretation of facts brought forward by all the parties to the process, that is, defense and the prosecution (Osiel, 2012). These courts are assumed to contribute to the production of a legally validated account of the past, which is considered as legitimate de facto by those who are instrumental in producing it. Such an assumption is based on the understanding of truths stemming from trials as authoritative, due to the formality and regulated nature of the trials, as well as the evidence-based interpretative process, in which it is produced (Drumbl, 2007). This authoritative norm-setting status may thus also confer a particular legitimacy to the interpretations of the past generated through trials. The expressive function often attributed to trials as channels of expression of dominant moral attitudes in society (Durkheim, 1933) may also bolster this legitimacy. Such an expressive function may be particularly salient for international criminal courts compared to domestic courts. International courts are meant to deliver messages about the values and norms, which are assumed to characterize humanity. They are assumed to reflect a global moral community united in the condemnation of the most egregious violations (Drumbl, 2007). International criminal trials are, in this perspective, purported to create a moral consensus among their wider global audience by producing an institutional narrative expressing a shared understanding of the past (Mannergren-Selimovic, 2015). This narrative defines which behaviors in conflict are criminal and morally unacceptable, what happened and who is criminally accountable for the crimes that are prosecuted (Osiel, 2012). Thus, international criminal courts may constitute powerful platforms of truth-telling bearing “an aura of reliable impartiality” (Drumbl, 2007, p. 17), thereby generating dominant narratives about the past which can be incorporated into the collective memory of nations recovering from mass atrocity (Osiel, 2012).
Judicial truth and the sociopolitical framework
Scholarship analyzing the accounts produced within international criminal trials highlights a particular significance of the sociopolitical dynamics embedding the production and reception of such narratives (Meijers & Glasius, 2013; Skjelsbæk, 2015). This may be particularly relevant in a postconflict setting, such as the Former Yugoslavia, where communities are divided along contrasted understandings of the past and politicized power struggles for justice. In such a context, “differing narratives and framings of the past compete for dominance, because establishing the truth about a conflict legitimises what is seen as just and moral in the post-war political context” (Kostic, 2012, p. 652). Within this complex memory scape, the accounts of the past established through the ICTY’s proceedings are placed in conflict with many other prevailing historical understandings (Barkan & Becirbasic, 2015; Clark, 2014). Moreover, various actors within the judicial process are not immune to the audience external to the ICTY courtroom, whether the local communities whose lives have been affected by the crimes prosecuted within the trial or the international community constituents (Meijers & Glasius, 2013). Accounts expressed within court proceedings are likely to have an instrumental purpose: They are reconstructed by their narrators, whether victims, the accused, witnesses, or legal actors, with regard to the particular power dynamics characterizing their audience (Koskenniemi, 1999). Meijers and Glasius’s study shows, for example, that accounts generated by the defense or the prosecution at the ICTY are tailored to persuade and obtain support of different external constituencies with contrasted allegiances and interests. Defendants can, as illustrated in the Karadzic and Milosevic trials, strategically focus their defense on narratives of victimhood and innocence. They are well aware that these representations of the past will have a significant resonance among local constituencies who support them as heroic representatives of their community in the postwar memory landscape (Mégret, 2005). Narratives produced by the prosecution that ground the verdict of culpability, on the other hand, are more likely to be accepted by the communities which are considered to be the victims of the collective crimes that are prosecuted (Barkan & Becirbasic, 2015). Finally, prosecutorial accounts may also be targeted toward international community actors, especially those contributing financially to its workings, to whom the ICTY has to justify its progress. Thus, there are various normative and political constraints to the production of a judicial truth at the ICTY. This dynamic also indicates that some accounts of the past are more likely to be recognized as legitimate and may have more chances to dominate the judicial memory landscape stemming from the ICTY than other understandings of events.
Judicial truth: The critique of hegemony and polarization
There are increasing criticisms pointing to the hegemonic role of international criminal courts in producing interpretations of the past and to the challenges this can pose for transitional settings (e.g., Shaw & Waldorf, 2010). TJ discourses and practices tend to be construed and structured around rhetorical understandings and framings of conflict, violence, and victimhood, which reflect a dominant simplistic picture of such contexts. Overall, the observed tendency is to reduce complex sociopolitical transitional realities to dichotomic categorizations of “good victims” versus “evil perpetrators,” which are salient in much of TJ discourse and practice (Hinton, 2011; Shaw & Waldorf, 2010), including international criminal courts (Brants, 2013; Clark, 2009). International criminal courts have generated a polarized normative framework where recognition and denial, guilt and innocence, and evil and good are pitted against each other to justify imperatives of justice (van Wijk, 2013). The dichotomy between victim and perpetrator is undoubtedly a significant element grounding the operations of international criminal prosecutions and their objective of establishment of individual criminal accountability. Yet, these categorizations are also reflective of “the definitional power” of TJ mechanisms and processes (Miller, 2008, p. 281). This points also more broadly to the inherently politicized and power-ridden nature of TJ discourse and processes, where targets of accountability tend to be strategically determined, along with the crimes that are prosecuted (Nagy, 2008). Thus, determining and defining who is a victim and who is a perpetrator, as well as what investigations and prosecutions are pursued, is often more a matter of choice and strategy than a straightforward decision (Moffet, 2016).
More generally, the critique of a polarized framework brings into question the role of key protagonists of international criminal trials and their position within a legal process, which is inherently ridden with power struggles between its different actors. It also raises a question of the legitimacy afforded to these different protagonists’ accounts within the legal process and how these accounts play out in relation to a judicial truth which is assumed, by many, to reflect the expression of a dominant and universal moral positioning based on international criminal law principles (Corrias & Gordon, 2015; Tallgren, 2014). It is generally recognized that defendants have historically had more opportunities to have their voice heard through their oral testimonies in court or the written documents they had produced, compared to victims, as observed in the Nuremberg trials and also in the more recent workings of ad hoc or hybrid courts (Karstedt, 2010). Yet, perpetrators’ truths are likely to be at odds with the judicial truth. As defendants, they are likely, akin to what could be observed in domestic criminal courts, to counter a legal truth-telling by offering alternative representations of the past to debunk the narrative on their individual culpability constructed within the trial. Yet, compared to most domestic trials, the political and normative embedding of individual involvement in mass atrocities may provide additional support to defendants’ counter-understandings of the past (Koskenniemi, 2011). Moreover, the narratives of culpability may also clash with defendants’ experiences because they are framed to serve a broader prosecutorial strategy. The truth-telling stemming from the prosecution of one case constitutes generally one piece of a larger narrative of the past which is related to the broader objectives guiding the workings of a court such as the ICTY (Osiel, 2012). The legal narrative of their case may constitute one more element necessary to corroborate a larger story about accountability and truths underlying mass atrocity, so as to persuade an intended audience of the historical validity of this account (Schabas, 2012).
Consequently, despite the many challenges attached to the judicial production of narratives of the past, trials, as channels of judicial truths, undeniably play a role in shaping collective memory in TJ settings (Gaynor, 2012; Osiel, 2009). Moreover, transitional settings are likely to constitute a complex matrix of understandings of the past held by various justice beneficiaries which is more nuanced than the polarized and binary picture often reflected in TJ and human rights discourse (Borer, 2003). Furthermore, in light of the power dynamics structuring the production of accounts of the past within international criminal courts, the possibilities for the accused to have their accounts acknowledged in trials seem limited. Perpetrators’ accounts, which do not fit the dominant narratives of what constitutes victimhood and perpetratorship, are less likely to be considered within TJ processes following mass atrocities (Borer, 2003; Hourmat, 2016). Yet, perpetrator accounts bear significance, and as discussed above, there is a growing interest for their accounts within various scholarly fields, including international criminal law and TJ.
Accounting for the perceptions of the accused is relevant for scholarship on the role of international criminal courts in TJ settings. In line with previous studies (Scalia, Rauschenbach, & Staerklé, 2012), we base this study on the premise that those accused at the ICTY, as key subjects of the workings of a still-infant system of international criminal justice (Mégret, 2005), can provide us with another valuable viewpoint to understand better its role, its functioning, and its challenges. This is all the more relevant, given the ongoing criticism of international criminal justice (Schwöbel, 2014). These difficulties place the workings of fledgling courts such as the ICTY in a constant struggle for legitimacy and in precarious positions at times. It is in line with the assumption that the legitimacy of international criminal courts rests significantly on how multiple constituents perceive and accept it, be it mandate givers (states), justice stakeholders (victims, perpetrators, and communities affected by crimes of the past), or other stakeholders (international organizations and civil society actors; Buckley-Zistel, 2017). In this perspective, much of research has focused on victims and communities in transitional settings examining how international criminal trials are experienced and whether they meet local expectations and needs (i.e., Clark, 2014; Kutnjak-Ivković & Hagan, 2013; Stover, 2005; Weinstein, 2014). Some research has also focused on actors of international criminal justice such as judges, prosecutors, and defense counsels, with a view to better understand their position and role, as well as the challenges they face, within these judicial institutions. 6 There is, however, very little research, particularly interview-based studies, on how the accused perceive these international criminal courts, their practices, and procedures and how they make sense of the judicial truths that stem from these. In this study, we aim to bridge this gap.
The Present Study: Aims and Methodology
We aim to analyze, through the discourses of individuals accused at the ICTY, how they perceive their experience of the ICTY and how they make sense of the understandings of the past that are produced as a result of the legal processing of their case. We investigate how the accused (de)construct this experience, in terms of the position and authority of the ICTY as an international criminal justice institution, as well as in terms of their own trajectory in its process. Thus, we account for their perspective on the social and structural reality of the ICTY as well as the role of its legal actors (mainly prosecutors and judges). This implies also a particular focus on how they make sense of their perceived position with regard to balances of power in the legal process and how this relates to the judicial truth produced in their case. Finally, we explore factors they perceive as affecting the legal narratives that stem from these processes and how they situate their personal narratives within this framework.
This study is based on semistructured interviews carried out 7 with 18 male individuals who were accused of international crimes by the ICTY. 8 In order to gain access to the interviewees, we approached various gatekeepers, for necessary authorizations to conduct our interviews. The interviewees recruited for this study represent a convenience sample, as we depended on various sources of authorization. 9 Interviews took a retrospective approach and covered their experience of the legal process from the arrest to the conviction as well as their experience of prison and, where relevant, their life after release. 10 This analysis focuses mainly on discourses related to their experience of the ICTY and its legal actors. The sample is representative of the individuals accused before the ICTY because it includes persons from different levels of power or roles during the conflict from different nationalities and with different experiences of the ICTY. Fifteen were convicted for various sentences ranging from a few years to several dozens of years. 11 Before their indictment, many of our respondents held high positions of authority, whether in the military or in politics, within their ethnonational communities. 12
In addition to adopting “Interpretative Phenomenological Analysis” (Smith & Eatough, 2007), our discourse analyzes were based on a critical approach (Jorgensen & Phillips, 2002). 13 The critical approach focuses on the linkages between identity positionings and the power relations or imbalances, which are salient within the recounted experiences, as well as the context, in which the discursive interaction takes place. Such a method is particularly relevant in the case of this study, given the significance of power relations and identity concerns in social interactions such as those pertaining to criminal law (Toyoki & Brown, 2014), including the ICTY (Rauschenbach, in press). These power and identity concerns may have been all the more salient in this research context, given the stigma likely to be attributed to respondents as a result of being accused for international crimes (Devresse & Scalia, 2016; Mégret, 2014b). 14 More generally, we analyzed discourse with the premise that when respondents account for their past experiences, their narratives always constitute reconstructions and representations, which are highly contingent on the social meaning of their present subject of discussion and which reflect in their narrative positioning (De Fina & Georgakopoulou, 2012).
Findings
The findings are structured according to two main aspects salient in respondents’ discourses. 15 Firstly, we focus on narratives describing a trajectory within the ICTY’s process, which begins with high expectations of justice and ends with the perceptions of disillusion and injustice in the face of a hegemonic justice system. Secondly, we will demonstrate how these negative perceptions are reconstructed by the accused as leading them inevitably to question the judicial truth stemming from this hegemonic norm-setting institution. The strategies they depict to counter the account stemming from the ICTY’s indictment or judgment with their personal and experienced version of the truth are also highlighted.
Portrayal of a Hegemonic Justice Against the Backdrop of High Expectations
Many of our respondents’ discourses revealed a narrative structure depicting a trajectory starting with high expectations of justice, on the onset of their experience of the legal process, and ending with disappointment and feelings of injustice. Their expectations mirror the idealized conception of international criminal justice that was generally put forward by its proponents at the beginnings of the ICTY (Leebaw, 2011). These discourses strive generally to contrast an idealized narrative of the authoritative character of the ICTY as a universal norm-setting justice mechanism to their own experience of the “reality”: I believed the tribunal is an international institution of highest rank that will fight for justice and truth and I believed that I will succeed in explaining and proving my truth before the Tribunal. However, my experience is that the prosecution has used some unknown methods of work so far in relation to myself. (3) I was expecting some high institution, so an international criminal tribunal, at least with highest rankings and highest reputation regarding justice. I was expecting the ICTY to be something like a role model to all the other courts, on all levels: national, local, or whatever. As a person who graduated from university, I was expecting to meet people there who were respecting human rights and international law. And I was expecting these people to be looking for truth and justice. So it should be feelings that lead those people. It was my expectation. When I came there, the first time, I did not have bad experiences. At the first day, but step by step, month by month, when I entered the room, the courtroom, I was expecting and thinking, for all the people who worked there, that everything is based on truth and justice. And after hearing the basis of my indictment, I was shocked when I saw what the indictment was about. It was based on lies, not on the truth and not on real justice. (17)
These excerpts show how the accused reconstruct an experience where they position themselves as true believers of this romanticized narrative, which heralds the ICTY’s moral authoritativeness, with the implicit assumption that legitimacy and justice are inherent to the international criminal justice project and its idealized attributes. They then discursively challenge this assumption against their own firsthand experience as key actors positioned at the receiving end of this unjust process. They also construct an implicit linkage between a legal quest of “truth and justice,” which is based on international and human rights law, and the necessity to consider, if not acknowledge, their personal understanding of the past. They both point to feelings of illegitimate practices, using formulations such as “unknown methods of work” to describe the prosecutor’s actions (3) or to an indictment “based on lies” (17).
Respondent 17 reconstructs this trajectory as an insidious process. He also draws a linear logic between the authoritativeness (illegitimately) attributed to international criminal courts and his own elevated social and educational standing, positioning himself as a righteous and credible observant of an immoral process. Thus, he expresses that he had expected the ICTY to function in line with the norms of justice that grounded its establishment. He justifies this expectation by referring to his university education, as a validating factor vouching for his competence to assess the capacity of the ICTY and its actors to function in accordance with the legal principles they are supposed to respect. He can thus position himself as a credible judge of an institution, practices of which did not meet his very legitimate expectations and which may not deserve the standing it is afforded. He explains further how this disappointment unfolded: Step by step I also saw that unfortunately even the judges were not looking for this truth and justice. And were not accepting facts, but they had their own view on this and they were going their own way. (17) And it was like they would not want to know anything; it was like they knew I was guilty. And in one moment I got my eyes open, I saw what was going on, I saw what reality was. (17) I was convinced at that time that I was going before one international Tribunal which is really supposed to say and confirm, or deny that I have been involved in some situations that have happened during the war. I was convinced I will see justice there, because I was convinced, as I am now convinced, that I was totally innocent in going before the Tribunal, which is also my standpoint right now. In that sense, I do not want to question the legitimacy of the Tribunal in The Hague, but unfortunately after everything I have been through there, I must say, I am sorry, that I think the Hague Tribunal is not what I expected it to be when I initially thought of it when I went there. I do not say that just for me, because I have been convicted, I have a sentence and I think that I am innocent. I also consider myself an intellectual, who spent […] years in the Tribunal, before The Hague Tribunal and I think that the Tribunal in The Hague should be doing justice in a much different way that it actually does. Of course, I am not an expert in law, but [have an expertise] in the context of what I have said. (8)
Thus, many respondents tend to delegitimize the ICTY as an institution of international criminal justice by strategically confronting the idealized assumptions that were evoked to support its establishment to their personal experiences of it as well as to their social standing. We will now explore in more details the discursive strategies they use to undermine the ICTY’s practices.
The ICTY: A politicized and biased tribunal
The narrative of the ICTY, as politicized and biased, impacting the accounts of the past that stem from its prosecutions, is a salient one that is expressed by many respondents. Some refer to the pressures dictating prosecutorial strategies, to which the ICTY and its actors are subjected by other states or the international community that supersede any consideration for facts when deciding who to prosecute: All this was a farce. The word ‘impartial’ is not in the vocabulary of these circumstances. There was more lenience for the other factions. There was a bias against the Serbs. The acknowledgment must be done for all. […] This was not the kind of consideration that was the object of much debate. Percentages were fixed for the indictments, this was plain maths. They do not care about circumstances; what matters is 80% Serbs, 15% Croats, and 5% Bosniacs. When I was on the field, during the war, there games of influence between the Germans, the Americans and the French [state entities involved politically and militarily during the conflicts]. (12) I consider that it is normal, even though it is rejected by many, that ICTY and the prosecution do not bring an indictment for justice reasons, but for political reasons. The prosecution’s task is to fulfill goals of the ICTY; this is usually an injustice for a man. I understand why the prosecution does that, even if it is not justice for me. (10) I concluded it was not important to find the real guilty, it was important to convict those who were present there. X (another convicted person) wrote until now that the Serbs were convicted to 1190 years of prison, the Croats 200 years and the Muslims less than 100 years. […] This does not mean anything to a lot of people, but it is very strange that from 10-15 Muslims indicted, less than half were acquitted. For example, X. (a Bosnian Muslim) got two and a half years and was acquitted in the appeals stage. As for the Serbs, the most drastic conviction was that of X. who got 20 years in the first conviction and in the appeals, a life sentence. And X (another Bosnian Serb) got a life sentence in the first judgment and in the appeals 40 years. (12) And during this time [since his conviction], as a man who definitely knows what happened in central Bosnia, during the 90s, I am more and more wondering why are only Croats indicted for war crimes in that area and the others are not. And I am not talking about opinions or whatever, I am talking about facts. (17)
This Bosnian Muslim respondent paints a different picture of an artificial representation of all nationalities that stems from pressures to have a balance: And I concluded that the representatives of the international community should be neutral. My conclusion was that they needed the balance, you know, from each side, when I say sides, I mean Bosnian and Serb side. […] So, my impression was, they wanted to feed these Serb lobbyists and to satisfy them […] And I realize that there are lots of problems in within the bodies of the European community, they were different lobbies for this side, for that side. And there were all sorts of clashes between those lobbies, which influenced what happened. (5)
A powerful institution with strategic objectives that do not include truth or justice
Another recurring and related element structuring narratives underscores the power of the ICTY as a product of the international criminal justice project, its assumed universal norm-setting function, and how these shape legal actors’ behaviors working within this institution. Many respondents tend to construct a picture of the ICTY as a machine, which is designed to win at all costs and which is assured victory from the onset. These discourses give a sense that the accused was left helpless and feeling like a pawn in a political game. Respondents illustrate this sense of powerlessness in the face of an intimidating institution of justice, which, in their view, did not give them a chance to prove their case, using formulations such as: I was told that I was naïve, the important thing is that when you arrive in the ICTY, you cannot win. […] It is a big stress that a man can experience. (10 describes what he was told when he got to the Hague the first time) I had the impression to be displayed. […] I had the feeling I was stripped of all rights. I was convicted right from the start. I wanted everything to be concluded as quickly as possible. (12)
Others reconstruct this experience by emphasizing through vivid metaphoric images their position of victimhood and passivity: “I had the impression of being a guinea pig and that a scientific experience was unfolding in front of me” (13). He qualifies this experience further explaining that: When I came in [the trial Chamber], they [the judges and all other people in the audience] were very intimidating, I had the impression of entering in a corrida. There were dozens of reporters and photographers. I was really the bull that enters the arena of the corrida. (13) Among the legal actors, it is the Office of the Prosecutor that is the most often pinpointed by our respondents as the main protagonist in the power struggle for “justice", in which defendants describe themselves powerless. Respondents reconstruct their experience of the prosecution and its actors with emblematic formulations emphasizing how they are solely guided by the instrumental objective of winning and proving its case to the detriment of truth and justice.
Some hint to the necessity for these actors to prove their case and build up on this in order to prosecute other cases in the future: I am going to be honest. I think it is a great business for the prosecution. They don’t care that much about justice, but they want just to prove that their assumptions are truthful and that they are going to serve some purpose in the future. (7) I thought that the prosecution, as people, they would understand eventually that I am a completely innocent man and give up their stance that I should be sentenced for prison. But obviously, I am being confused, and I must say, particularly in that part, I considered the prosecutor and the court, as one legal flea market where anything can be bargained, and anything can be said. […] My impression is, after all, the prosecutor practically has a task and they are doing all they can just to prove that you are guilty, it does not matter if they have arguments or anything to support it. (8) Sometimes when they take a look in the mirror, they have to feel bad, because they did things that are not ok. I believe that they were looking at dirty winning over my case. Truth and justice are the values they should be fighting for, but they did not. They were not looking after truth and justice, but just after winning. (17) The prosecution dominated with its knowledge, its capacity, with its number of people, they had different people for different areas of the case. I later discovered that the defense really was powerless against this kind of aggressive prosecution. (9) It was a combat between David and Goliath. (14)
Putting emphasis on the ICTY’s legal and procedural failings
Another discursive strategy used to disparage the authoritative position of the ICTY and the validity of its legal understandings of the past focuses on the tribunal’s process and its procedures. Some use various metaphoric expressions to qualify the trial process as “some sort of criminal movie. It was an unbelievable scenario” (10) or “a theater” (18), “a circus” (18), “a joke” (13), or “a farce” (13).
Others make use of some of the challenges faced by the ICTY in relation to scholarly critiques, many in the early workings of the ICTY, questioning the validity of rules of decision-making or procedural changes (i.e., Damaska, 2008; Osiel, 2009; van Sliedgret, 2012). Respondent 13 criticizes dryly the erratic changes in the norms grounding the procedures practiced at the ICTY: You start this legal game, in between brackets, and then you change these rules. And then, when you need it, you change the rules in your favor, and this way it is totally partial. (13) Let us say I organize something together, a court and we make our own statute, our own rules, we have no responsibility towards anybody, all we do we can do without any consequence. This is The Hague. From the beginning in 1993–1994, they started to write a Statute.
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(18) In a normal world, in normal justice, the law is always trying to give the potential accused more chance to forgiveness. But not in The Hague. (18) How many times in a year did they change the Statute, twice a year I think. They made all the rules what they like to have. Why they can do that? Because they are not responsible for anything or anybody. They do not need to. They are the highest court in the world. Nobody can say: ‘hey, what are you doing?’ I want to say to you, you know that I am sure, you are an expert. What means power in the wrong hands? Who am I? I was a tool for them to show the world what means power, what they can do. […]A court or another institution, which has no responsibility, you can do anything you want, without any consequence. We can organize a car sale and say that the price for a car is 100.000 and there is no people who can do anything against us. This is terrible. (18)
Countering Judicial Truth With Their Personal Truth
The interview as a means of truth-telling
Respondents represent discursively the process of the trial as an arena where power balances are clearly in disfavor of the defense. In the face of these dynamics, the interview is an occasion to regain a certain control they may feel they have lost in their experience of the legal process. Having their voice heard and the possibility to express their version of the truth is generally mentioned as a significant reason for participating in our interviews. Respondent 9 explains wanting to denounce helplessness in which the trial positioned him and the “great injustice” he experienced: The primary motive [for participating]: I experienced there was a great injustice in the trial and I wished that there was an opportunity somewhere to talk about that and to say that. The process of the trial that existed did not give me a chance or an opportunity, and it did not give enough opportunity for every detail to be explained, to be cleared up, and to be testified. It did not give an opportunity for the evidence to be confirmed. My belief and my understanding is that it was easily said in the court that something is this way without having been proved properly. So, something is being confirmed as being the way it was without there being much proof or efforts to prove that point. It was very easy for the court to just say yes that is the way it is. I can always say that I can prove that it was not that way, but it takes a lot of time. It takes a lot of details. I would be satisfied, very satisfied if you do anything against this torture in The Hague. In fact, it does not mean anything personally to me, but the fact that it is a personal satisfaction to show the world what is going on in this theater in the ICTY, in this circus! (18) My essential desire was to expose the truth. I hope that this truth will not be interpreted in a false and different way. One day is very little to express my complaints, one would need at least 10 days. (11) My concern is that one knows how this Tribunal functions, how it functions really. (13) It is particularly important for me- I have the deep wish to talk about this, to denounce this state of affairs, even if it is to people who do not have the competence to change things. Besides all that I am telling about this Tribunal can be verified, I have documents […]. Maybe I will disappoint many people by talking about this Tribunal, but I definitely wish to say only the truth. What would make me happy in this process would be at least to be believed, that is the only way to give a meaning to this interview. (13) And I hope that my participation can give you a lot of benefits for your work and help you to show that the truth comes out. And I hope that my own perspective of my point of view will help you in your work. Like it says in the Bible, only the truth will make you free. (17)
Judicial truth: One version of the truth against which they present their personal truth
Other respondents find support for the validity of their truth by highlighting that judicial truth can only be one version of the truth; it does not represent the only authoritative account. This excerpt about the ICTY’s understanding of the circumstances around the conflict in which the accused was involved in is particularly illustrative: The ICTY, as well as national courts, were only one of the consequences of the war. And the court itself provides only one stance, one opinion of the occurrences in the war. […] Now you should conclude how one views the war. For most of the people, we are discussing it as an ethnical conflict, but for some people, you could say differently. The one in the war does not see a Muslim or a Croat over there. He sees an enemy, he sees the one holding a gun pointed to somebody, and he has to find an enemy. That is the situation. Just after that, it appears it was a Muslim, it was a Croat. But you are fighting against the enemy in the war. This is one view, if we are discussing the justice, and the justice that is provided by the legal system. What is actually the real goal that has been reached by it? (16) That is what I was mad about during the trial that if this international institution, the ICTY, wants to bring about the truth, they cannot pick truth and select it out of what happened down there. They would have had to show what happened also from the other side. (17) You cannot force people to respect this institution if this institution does not force all the others to respect each other and to bring out the truth. They should not be acting like they are a force that should be respected. But they should do things to earn the respect of the people. (17) I do not have the right to say it in their names, but as far as I know, throughout the media and chats with friends, I do not believe that they are very satisfied with the work of the ICTY. (17)
The quest for the acknowledgment of their truth
While most respondents describe generally a lack of agency within the trial process, some also express a continual quest to reveal their truth in the trial process or afterward. This quest is expressed in many ways, using instrumental metaphors describing it as a life mission, a job or even a combat: “I don’t care how many years I will get, I only
Respondent 8 uses the image of a “crucifix” which he was aware would be much “trouble proving that I did not do all this atrocity they told I had been doing….”
Another employs the symbol of a label: My whole life is comprised of waiting. I live for the day the judge will say that I am not guilty. […] I would give 5 years to prove that I am not guilty. Because the judgment is about wearing the label ‘war criminal,’ not the years of prison. (10)
This sense of hope is also expressed by Respondent 18 who recounts it almost as a coping strategy to stay normal following the shock of having heard his sentence: I was so shaken, it was terrible, really. And after I spoke with my wife, in an hour or two, I simply accepted. What can I do? To kill myself, it is the only thing I can do or staying normal, accept that and stay normal. And you always have a little bit of hope in yourself. […] I think that after so many years of isolation from normal life but I think it is my opinion, I do not know what other people think, I still have hope. (18)
Respondent 1 explains: We knew that the indictment was complex and very difficult. So, we [the defense counsel and him] started to work on this indictment in order to create something in parallel, create something that is the truth in parallel with the indictment. (1) That was my only fear, whether they [the judges] will understand me properly. I told myself: ok that is fine with me, but my work now has to be done, my obligation is to try to picture, to make them see the real picture of what was going on. It was my job. […] It is not a problem, if you believe in your story and if you know you are telling the truth, then it is ok. Then people will understand you and the judge will not have any problem to rule whether you are guilty or not guilty. (5) My goal was to prove to all those people, including institutions, that this man the indictment is talking about, the documents are talking about, this picture that intelligence services this or that created, has nothing to do with R. (the interviewee) the man. So, my idea was to recreate, like I say, the true R. (the interviewee) and to put him against this fictional one, one from the paper, so everyone could see the truth, because the true picture would emerge eventually. I was not really bothered by this picture the indictment created about R. (the interviewee), I knew I had to be patient and I knew that my goal would be reached eventually. I decided to go count by count from the indictment and to make my true person emerge. (5) There was no point for me in saying that [he is not guilty]. Because why people take so long to write this indictment that I am guilty, I really come and say that I am not. So, by saying that I am not guilty, it is just a formal procedure for the court, and of course, I expected that after that I could prove that I was not. (9) I knew that when someone is suing you or taking you to trial, then the prosecution will try to prove its theory and the defense will try to prove its theory. So, I expected that there will be like a meeting of the two theories, the two factors and that the chamber and the judges will listen to what really happened. That the chamber will look at those two and decide which theory was most founded. […] But my defense was so far behind the prosecution’s power. (9)
Such a stance is expressed by respondent (7) who was acquitted. As shown previously, he described his experience of a powerful prosecution determined to win and explains: It is very hard to reach the truth, but at the end, I succeeded in that.” He then contrasts the prosecution’s practices with those of the judges: “They were very professional and skilled. They took into consideration all facts presented in the courtroom. And they actually were open-minded to what was real truth, and probably this was actually the result of the very big experience that they had as judges. I was the lucky one, having opportunity to present my truth before such a trial chamber.” (7)
Conclusion
This study aimed at investigating the perceptions of those accused by the ICTY about their justice experience against the backdrop of current debates about the role of such courts, as truth-telling forums, in producing narratives, which can contribute to a historical record of the past in transitional settings. Our findings reveal from the onset a specific narrative order employed by many respondents to describe their trajectory within the ICTY’s legal process. This narrative structure generally conveys initially high expectations, followed by the feelings of disillusion as well as perceptions of illegitimacy and unjust treatment. It often ends with descriptions of the strategies expressed by respondents to disseminate their personal truth and to counter the judicial truths they consider to be imposed on them by a powerful international criminal justice machine. Overall, many of the themes highlighted in this study reflect how the accused draw strategically on the dominant critiques of the ICTY (Cooper, 2010; Mégret, 2014a). Some critiques have stemmed predominantly from scholarship studying the development of international criminal justice from its infancy, while other critical accounts are more likely to have been formulated by the many political detractors of the ICTY’s establishment and practices. For example, narratives describing a mental journey between high expectations and disappointment mirror observations in the early workings of the ICTY underlining the “utopian rhetoric” (Leebaw, 2011, p. 55) of international criminal tribunals. They are also in line with the recurrent finding highlighted in scholarship of a disconnect between, on the one hand, the ICTY’s claimed achievements and its manifold objectives and, on the other hand, the perceptions of those affected by the crimes under its jurisdiction (Klarin, 2009; Kutnjak-Ivković & Hagan, 2013).
Different themes came out as salient elements of respondents’ discursive delegitimization of the ICTY and its main actors. A first category of narratives portrays the ICTY as an institution, which produces biased accounts of the past due to the tendency for its process and prosecution strategies to be steered by political pressures and interests, to the detriment of facts as well as coherent decision-making and procedures. While all pertaining to a general critique of politicization and bias, these narratives tend to be formulated differently depending on the national affiliation of the respondent. This is in line with the recurrent observation that perceptions of the ICTY tend to be entrenched within various ethnonational communities and to differ between former antagonist groups (Barkan & Becirbasic, 2015; Kutnjak-Ivković & Hagan, 2013). The ICTY has been suggested to constitute a significant political actor in a postwar landscape ridden with power struggles for the recognition of various truths about the past (Osiel, 1999). Moreover, the ICTY has struggled from the onset to demonstrate its neutrality and to rid itself of the label of “partisan.” As our findings suggest, such a perception is more likely to be prevalent among Serbians, Bosnian Serbs, and Croats, probably because these affiliations are more represented within the pool to indict at the ICTY (Kaye, 2014). A second salient category of narratives tends to designate the ICTY and its actors as a hegemonic institution whose power is depicted as illegitimate and unrestrained (Lombardi, 2003). The morally disputable actions of the prosecution and its dominant standing are particularly denounced in these discourses. Respondents emphasize in particular how the power imbalance resulting from the prosecution’s practices affects their chances of having their side of the story heard and proven. They position themselves as helpless and as victims of game they are merely spectators of, without a real possibility for agency and for having their personal truth heard. A third category is a tendency to delegitimize the judicial interpretations of their actions of the past used to prove their culpability. This is mainly done by strategically exploiting the legal and procedural failings, which have been classically highlighted in analysis of the ICTY’s procedures in order to evidence their contention that the judicial truth that is produced at the ICTY should be mistrusted. Their discourses point to the erratic character of the frequent changes of RPEs, with a particular emphasis on the lack of accountability of this tribunal, as one more warning sign pointing to its hegemonic position, reflecting again critiques voiced within scholarship (Lombardi, 2003). These discourses are also reflective of procedural concerns related to voice and participation in the process alike those highlighted for defendants with regard to their domestic criminal court experiences (Casper, Tyler, & Fischer, 1988).
A second part of analyses focuses on respondents’ discursive reconstruction of the strategies and channels they used to bring their personal truth to the fore. They reveal their experiences in the face of an institution of international criminal justice which produces accounts of their actions they perceive as inaccurate, incomplete, or invalid. Some explicitly mention the opportunity to have their truth heard as a primary motivation to participate in our interview study. They describe their participation as a means to regain a certain narrative agency over their experiences or as a channel enabling them to share their firsthand knowledge, as a key witness, of the workings of the ICTY, with the outside world. They position themselves as witnesses who have an indisputable authority on these accounts. This positioning could indicate another means of resistance against the hegemonic power of the ICTY, akin to the use of the interview by inmates in order to gain a certain control that they feel they have lost through detention and the imposed stigma of being accused of violating social norms of behavior (Toyoki & Brown, 2014). Another strategic positioning is to highlight a conception of judicial truth as one form of representation of the past, which does not have an authoritative or superior status, compared to their personal accounts. They point to the many limitations on the authority attributed to judicial truth, particularly the extent to which it can account for the historical, structural, and collective framework surrounding their involvement in conflict or to which it can acknowledge the harms suffered by all protagonists to the conflict (Gaynor, 2012; Osiel, 2009). Findings also reveal narratives of a determination to have “their truth” acknowledged. This drive is described as a perpetual quest which they cannot let go of and which they associate in their discourse with the stigma they were imposed by being accused by the ICTY. Some explain this as a process. They assimilate it to the careful and active reconstruction of a narrative aiming strategically at confronting a credible and accurate picture with the legal framing of their experience. These discourses indicate an understanding of a trial setting as an arena where the stories of each party are confronted and are judged for their credibility within the framework of particular procedures and rules of evidence. Thus, many respondents describe not having had a real opportunity to explain their side of the story, positioning themselves as striving perpetually to fulfil this urge to share their personal truth and have it acknowledged. One respondent who was acquitted did, however, explain that his voice was taken into account. He expressed clearly his satisfaction of having had “his truth” acknowledged. The acquittal, in his view, may have allowed him to put across his perspective and to have it added in the balance of evidence tested for the “beyond reasonable doubt” condition.
Our findings show how the accused construct an account of their experience of the ICTY which is in consistency with their present and future interests, positioning themselves through various discursive strategies in such a way as to get their perspective of the past across. The analysis of respondents’ discursive representations reveals overall the construction of a morally coherent picture of their experience which has clear strategic purposes. It is aimed at countering the often-dominant claims advocating for the workings of international criminal tribunals and for the authority of the accounts of the past that stem from these. The accused aim to challenge the idealized “institutional narratives” (Mannergren Selimovic, 2015) which reflect a more global discourse of TJ aiming at the promotion of the legal and moral significance of the understandings of the past, based on the establishment of individual accountability, that are produced within courts (Nagy, 2008). This allows them to represent an overall picture of their recounted experience that is meaningful and that demonstrates through a narrative logic that “their truth” bears more authority than the ICTY’s account of their case. This narrative genre allows them to justify a conveyed perception of having been treated unjustly by a court which employs illegitimate methods and which is conferred disproportionate power to do justice.
That our respondents strategically reconstructed their experiences to fit the picture they wanted to convey to the outside world is not surprising. This deployment of narratives of victimhood and of delegitimization of the ICTY is in line with the positioning of individuals who are accused of international crimes during their trial (Arendt, 1963; Bringedal Houge, 2016; Payne, 2008). As pointed out elsewhere (Rauschenbach et al., 2015), our respondents are likely to be motivated to present a moral self in the face of the attribution of a stigmatized identity of “war criminal” or “accused at the ICTY,” which is threatening for their identity. This stigma management process influenced the way in which the interview process unfolds in many ways (Rauschenbach, in press). While such strategies are also observed in interviews of ordinary criminals (Presser, 2009), our findings suggest that they may be particularly deployed by individuals accused in international courts. One reason for this has to do with the normative and political context in which international crimes are committed (Rauschenbach et al., 2015) and adjudicated (Mégret, 2005), which may particularly motivate discourses of denial and victimhood, compared to ordinary criminals. Another reason may lie in the particular status of those accused at the ICTY. Many of them held high-ranking (e.g., political or military) or authority-laden positions (e.g., military men, police men) within their communities before being labelled with the stigma of having been convicted by the ICTY. In contrast, ordinary criminals who have been studied with regard to their perspectives about their justice experience are more likely to be of low social status (Tyler, 2006). Our findings suggest that respondents, particularly those who held a high-ranking status within their communities, may be even more motivated to emphasize a moral self because of the threat the stigma of being accused is likely to pose to their valued social identity. This is particularly salient in some respondents’ attempts to put forward their elevated educational and social status, using this positioning to justify their delegitimization of the ICTY and its judicial truth. Our findings also hint to the possibility that the support some still benefit (or think they benefit) from within their own communities may also galvanize these (mostly invalid) claims of moral righteousness and injustice (Mégret, 2005). By the same token, the social standing of “ordinary law-abiding citizens” our interviewees enjoyed before and after the conflict (Drakulic, 2004; Thys, 2007) may also provide another explanatory line for the recurrent finding of a global narrative structure depicting a mental journey of high expectations and disappointment. Some of the respondents may have genuinely thought that their involvement in the conflict would not be judged as criminal, especially if the normative and political context of the conflict normalized their harmful actions (Drumbl, 2007). We argue that this positioning is likely to be specific to those accused by international criminal courts, compared to ordinary criminals.
Further Reflections
These findings raise more generally the question of why we should account for the narratives of the accused, if these are based on strategic interpretations of the past that are likely to be biased or reflect lies. We acknowledge that many of these discourses are likely to constitute strategic and biased reconstructions of the workings of the ICTY. Yet, this does not, in our view and in line with an emerging body of scholarship (McGlothlin, 2016; Schlund-Vials & Martinez, 2015), warrant for the complete and systematic discarding and neglect of the accused’s accounts about their experience of justice within empirical research. They may not correspond to a judicial truth or to the experiences of victims, but they may be psychologically true (Jessie, 2017). One entry point is the well-acknowledged relevance of research on ordinary criminals’ perspectives (Casper et al., 1988; Tyler, 2006). A classical counterargument to this perspective would be the normative distinction, operated between “ordinary” and international crimes, underlining the particular abhorrence of the latter (Devresse & Scalia, 2016). Yet, we argue that an empirical focus on defendants’ perspectives in the international criminal law arena may have a relevance that is qualitatively different than for ordinary criminals in domestic trials. This empirical focus may be particularly justified because of the political embedding of international trials and the struggle for legitimacy they are facing, as well as the complex nature of perpetratorship in mass atrocities, issues which may be less salient in most domestic trials (Mégret, 2005). 18
Our findings indicate that accounting for the narratives of the accused may contribute to research examining the role of international criminal justice in TJ settings in several ways. These discourses provide further evidence that judicial truths constitute only a small portion of the story that are likely to be attached to particular normative assumptions and political interests, which inevitably shape the meanings afforded to interpretations of the past stemming from its proceedings (Osiel, 2009). Our findings also show how the accused use strategically the interview as a political platform and an opportunity to have their experience of the reality of a trajectory in an international criminal court heard. Similar to defendants’ behaviors during the ICTY trials (Mégret, 2005; Meijers & Glasius, 2013) and to their use of media (Simic, 2011), this is another opportunity to communicate with an audience situated in the outside world, particularly the constituencies they represent back home. While such explicit attempts to gain support from the constituencies they represent cannot be avoided, they are less likely to be integrated as credible narratives by these audiences if they are not substantiated with facts. Yet, if they point to concerns that are relayed by legal actors, academia, and other sources, they may find a better resonance (Meijers & Glasius, 2013). This may thus be particularly successful if the accused exploit well-acknowledged challenges to the validity of the judicial truths produced in trials at the ICTY in order to validate their own personal truths. As such, our findings show that many of the respondents strategically evoke these challenges to support their claims. This can help them to sustain already existing perceptions within their communities that they are victims of scapegoating from the part of the international community (Karstedt, 2013). Undeniably, such support is likely to be also contingent upon the past and present sociopolitical standing of the accused and the extent to which they have the power and legitimacy to promote particular agendas within their communities in the present and for the future. Overall, if local constituents are recurrently confronted with credible information suggesting that defendants’ legal processes at the ICTY are determined by political considerations and are fraught with irregularities and procedural failings, the perception that their standing within the trial is unfair is likely to be strengthened (Waters, 2013). This is a concern because it can ultimately reduce the likelihood for narratives stemming out of the ICTY’s process to be accepted locally and help sustain the narratives that deny past crimes. It reinforces views of the ICTY as a tribunal of “victor’s justice,” which may ultimately impede efforts to restore social ties between communities within the Former Yugoslavia (Clark, 2014).
Let us conclude by stressing the conviction gained through our research that the perspective of the accused can and should be analyzed with consideration for the very legitimate concerns of morality and legitimacy attached to the voice of perpetrators (Rauschenbach, in press). This implies a careful consideration for the rationales and objectives grounding the analysis of such testimonies, by reflecting on questions, such as what to do with these accounts, what are the empirical and ethical limitations attached to these accounts, how to listen to these, and how to interpret these (Rauschenbach, in press).
Footnotes
Author’s Note
The author would like to thank Paola Gaeta, Christian Staerklé, and Robert Roth for their support and assistance in carrying out this research.
Declaration of Conflicting Interests
The author declared no potential conflict of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was carried out in collaboration with Damien Scalia and supported by the Swiss National Science Foundation (Project 131841).