- While in law school, the author, Nicole Yukna ’03, spent last summer in the Netherlands helping prosecute war criminals for the former Yugoslavia.
Last summer I spent many days reading autopsy reports and watching videos of massacred civilians. I was working at the International Criminal Tribunal for the former Yugoslavia (ICTY). As a legal intern, I worked in the office of the prosecutor, helping convict war criminals.
As the former Yugoslavia unraveled in the 1990s and religious and political factions vied for power, the crimes involved were grisly: ethnic cleansing, murder, summary execution, torture, rape, kidnapping, mayhem, wounding, physical and mental abuse, and detention of citizens in clear violation of the Geneva Conventions.
I came to the tribunal with many questions about the system and how it worked. And one larger question: How do you heal whole nations?
I was no stranger to transitional justice. As an undergrad at UMass Amherst, I studied the South African Truth and Reconciliation Commission (TRC), formed in 1995 to deal with decades of apartheid-era crimes in that country. The concept of transitional justice fascinated me, learning how nations move from periods of repression and violence to stable regimes supportive of human rights. This process is different in every country, but there are a few basic models. One model is a truth commission, like the one formed in South Africa. Another is a criminal tribunal, like the ICTY.
My experience of the TRC deeply impressed me. Central to its mission was allowing victims to speak. I heard victims and witnesses of apartheid atrocities describe the power of simply telling their story, of having their story recognized and accepted after so many years of silence.
Having these stories out in the open, told to the commission in narrative and unbroken testimony, allowed for a historical record. Though not all victims could testify, the commission sought representatives of many different situations. That way, every listener felt symbolically represented and took part in the cathartic experience of public recognition and acceptance. This greatly expanded the reach of the commission.
I saw firsthand the positive effects of TRC on individual victims and on South African culture. And so I was eager to compare it to the criminal model of the ICTY. Did the prosecution model have something special to offer victims as well?
I was surprised how similar the ICTY is to any domestic criminal prosecution. Like criminal trials in the United States, trials centered on evidence motions and lengthy testimony on minute details of geography and timing and unfortunately featured a lack of contact between the prosecution and the victims. The more I understood how the tribunal worked, the more this made sense, but it was a difficult adjustment from the victim-centered TRC experience.
The tribunal aims to convict the worst offenders, those responsible for the most deaths or the most heinous and egregious atrocities. By bringing symbolic figures—and, often, direct perpetrators—to justice, the tribunal and the UN hope to achieve justice for the victims and prevent future atrocities.
Justice comes from victims knowing that a court has found an individual guilty and has sentenced him to prison for the crimes that hurt them. The prevention should come from holding leaders up as an example, so that political and military leaders the world over know that they will be held accountable if they violate human rights.
Unfortunately, the intricacies of international law require that a trial focus on establishing military chain of command in minute detail. These crucial details allow for convictions; however, they don’t create a historical record of what occurred on a human level during the war. The tribunal offers only the hope of conviction, which I worry may not be enough for some victims.
The tribunal itself is located in the Netherlands, far from the former Yugoslavia. This makes it challenging for victims to feel invested in the process and makes it nearly impossible for victims not testifying to witness the trials. This reduces the cathartic opportunities, the healing effect of hearing stories told and of watching judgment rendered. In cases where a defendant is acquitted, the trial is of little if any benefit to victims.
While working at the Tribunal, I witnessed how dedicated the staff is to achieving justice for victims, how central the victims figure in their daily work. Prosecution teams are mindful of the human price of the crimes they are investigating. Yet, because of the distance and the technical nature of the work, it is difficult for prosecutors to pay tribute to victims in the way many wish they could. I know I wish I could have reached out to the victims in a more concrete way. At the tribunal, the work must speak for itself. The tribute is in a conviction.
After having experienced both models of transitional justice, I prefer to let the victims speak, to share their stories in the way that heals them most. My experience with the TRC was ultimately more uplifting then my work at the Tribunal, though both gave me a sense of the challenges and complexities involved in trying to craft a system to address grievous wrongs, a system that works to heal the unhealable.