The ICTY’s Legacy of Ethnic Discrimination

November 30, 2017

As the International Criminal Tribunal for the former Yugoslavia (ICTY) comes to an end, it is important to understand its record of systematic discrimination against Serbs, which has undermined reconciliation and the rule of law. Republika Srpska, as the European Union and the ICTY itself have long recognized, has given the ICTY its full cooperation. Unfortunately, the ICTY has shirked its responsibility to prosecute and adjudicate war crimes cases without regard to ethnicity. Instead, the ICTY has shown itself to be concerned with convicting Serbs while setting Bosniaks free or ignoring their atrocities—largely against Serbs—altogether.

Since the ICTY was founded 24 years ago, it has convicted just five Bosniaks for war crimes against Serbs and sentenced them to an average of 8 years. Meanwhile, it has convicted 50 RS Serbs for war crimes against Bosniaks and sentenced them to an average of 21 years. These colossal disparities simply cannot be reconciled with the ICTY’s own estimate that during the war in Bosnia and Herzegovina 7,480 Serb civilians were killed, accounting for more than 20% of civilian war deaths.

Perhaps equally shocking is the fact that there was not a single acquittal among the ICTY’s 50 verdicts with respect to RS Serbs. By comparison, three out of eight ICTY verdicts with respect to Bosniaks and five out of six verdicts with respect to Kosovo Albanians were acquittals.

In a December 2012 New York Times op-ed, Prof. David Harland of the Geneva-based Centre for Humanitarian Dialogue condemned the ICTY’s record with respect to Serbs, writing:

Too bad if you were a Serb victim of any crime in the former Yugoslavia. More Serbs were displaced—ethnically cleansed—by the wars in the Balkans than any other community. And more Serbs remain ethnically displaced to this day. Almost no one has been held to account, and it appears that no one will be.

As Prof. Harland wrote, the ICTY’s results “do not reflect the balance of crimes committed on the ground.” He continued:

Convicting only Serbs simply doesn’t make sense in terms of justice, in terms of reality, or in terms of politics.

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What has happened at the tribunal is far from justice, and will be interpreted by observers in the Balkans and beyond as the continuation of war by legal means—with the United States, Germany and other Western powers on one side, and the Serbs on the other.

It is too late for the ICTY to correct its shameful record of discrimination against Serbs. But the ICTY’s record highlights the need for the BiH justice system to end its own well-documented discrimination against Serb victims of war crimes. Prosecution and adjudication of war crimes without regard to ethnicity is essential for BiH’s reconciliation.