Ukraine: learning lessons from the ICTY

The International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague has successfully prosecuted many perpetrators of the Balkan wars. Vladimir Dzuro, who worked for ten years as an ICTY investigator, explains to IWPR’s Olga Golovina how aspects of this experience could be used in Ukraine’s legal processes.

IWPR: What specific lessons do you think can be learned from the ICTY that should be applied to international justice processes regarding Ukraine?

Vladimir Dzouro: The war in the former Yugoslavia broke out in 1991; The ICTY was established in 1993 and took about two more years before it became fully operational. No one – including the politicians who voted for the creation of the Tribunal – believed it would work.

Despite the lack of trust, the Tribunal indicted and subsequently arrested a number of war criminals, starting in 1997 with Vukovar Mayor Slavko Dokmanović and moving up the chain of command to the leadership, namely Radovan Karadžić, Biljana Plavšić (presidents of the Republic of Srpska), Slobodan Milošević (president of Serbia) and Ratko Mladić, commander of the Bosnian Serb forces.

The Tribunal proved to be a success, which contributed to the creation of the International Criminal Court (ICC). However, its success required 17 years of hard work by investigators, lawyers, prosecutors, judges and support staff, and cost the international community approximately two billion US dollars.

There is currently an apparent lack of confidence in the ability to prosecute war crimes committed in Ukraine. I believe that many people will be investigated and some perpetrators will be brought to justice. However, this will take longer than Ukrainians and the international community would like.

The Tribunal’s first lesson: war crimes prosecutions are a long and expensive process, more of a marathon than a sprint.

Lesson Two: Not all crimes will be prosecuted. Therefore, the people who suffered will not be satisfied, regardless of the success of the prosecution. We should not be naive and hope for perfect justice, but we must strive to achieve it.

The third is that investigations must be conducted to standards acceptable to local and international courts. The integrity of evidence collection must be ensured and investigations must be conducted in accordance with applicable law.

Civil society groups played a key role in collecting testimony during the Balkan Wars. How did this happen again in Ukraine?

Civil society groups play a very important role in every conflict, including in Ukraine. They often arrive at the crime scene well before law enforcement or international investigators. Therefore, they can greatly help with documentation.

Thanks to advanced technologies – for example smartphones with good quality cameras – everyone can obtain important information which can then help investigators in their work. In Ukraine, various civil society groups recorded and transmitted information to investigators. It is extremely important that they do not expose themselves to unnecessary danger: war zones are inherently dangerous places.

And the information must be carefully reviewed by professional investigators. Collectors are generally not properly trained and therefore may make real or intentional errors.

When recording interviews with witnesses, for example, they may not be able to distinguish between information from eyewitnesses and hearsay. Time also plays an important role. The further removed from the incident, the more inaccurate or even confusing the story can be.

We must not forget possible double victimization, particularly on the part of people exposed to sexual violence. Repeated interviews increase victims’ stress. The welfare of victims must always be kept in mind.

Propaganda and hate speech have not been investigated under the ICTY’s mandate. In retrospect, was this a mistake, and is there an argument that this should now be part of war crimes jurisprudence?

War propaganda is nothing new. Fighting parties always spread information about their successes – not only inaccurate or exaggerated, but often intentionally false.

The conflict in the former Yugoslavia was no different, but advanced technologies, including television and radio, allowed propaganda to enter the living rooms of almost every family. The impact was devastating.

Within a year or two, the propaganda brought back bitter memories of World War II and succeeded in antagonizing the Yugoslav nations who had since lived in “brotherhood and unity.” In state media, Serbian Croats were referred to as Ustasha fascists, Croatian Serbs as Chetniks, and in Croatia and Serbia Bosnian Muslims were often described as Turks. This brainwashing helps motivate people to shoot each other, because shooting siblings may not be as simple as shooting their grandparents’ “killers” during World War II.

In this specific context, for example, Serbian media broadcast information according to which Croats had massacred 40 Serbian children in Vukovar.

This fake news was not only spread in the former Yugoslavia, but also spread around the world, without proper verification. The news was retracted, but the impact was devastating. More than 265 unarmed Croatian men and women were executed and buried in a mass grave at the Ovcara farm.

The ICTY did not investigate those involved in the development and dissemination of this fake news in Serbia. In hindsight this may seem like a mistake, but at the time of our investigations it was outside our mandate.

I consider the situation in Ukraine to be even more complex than the one we faced in the former Yugoslavia.

The impact of war propaganda on the Internet is much more sophisticated and therefore dangerous than what was happening in the 1990s. Investigations must therefore be just as sophisticated. I think this requires legal thinking and policy decisions – establishing the legal frameworks that would enable effective investigations and subsequent prosecutions.

Many have wrongly viewed the ICTY as a reconciliation mechanism. This was not his goal, but how can such expectations be managed in the Ukrainian context?

Reconciliation is such a complex issue that no court can achieve it alone. Justice is one of the essential elements necessary for reconciliation, but it cannot function in isolation.

One example (from the ICTY) is that after some war criminals served their sentences and returned home, they were welcomed as national heroes. If convicted war criminals are considered heroes by a significant portion of the population, it would be naive to expect an easy and quick reconciliation.

The longer the conflict in Ukraine lasts, the more misery will spread throughout society. More suffering equals more hatred and ultimately more time needed for the healing process and ultimate reconciliation.

The war in the former Yugoslavia, excluding Kosovo, ended in 1995 and until now society has not unified. In Croatia, for example, the experiment of placing Croatian and Serbian children in the same classes, in the same schools, failed in most cases.

I personally believe that an important role in the healing process will have to be played by Ukrainian and Russian politicians and government institutions, with the help of the international community. No court or tribunal can achieve reconciliation alone, even if it can contribute to it.

A key factor in the figures reported to the ICTY were both financial incentives and potential bonuses such as EU membership. Could this model have equivalent use in Ukraine?

Russia must be cut off from its gas and oil revenues, which would lead to serious peace negotiations. I know this is easier said than done, because if not the whole world, Europe still depends on Russian gas and oil.

As was the case in Serbia in 2000, the arrest of Russia’s top military and political leaders will require regime change. The Russians will have to do it themselves.

However, not all war crimes in Ukraine were committed by the leaders. Many have been committed by soldiers or paramilitaries and their commanders, who may be within the reach of Ukrainian authorities.

What are the main tips for Ukrainian investigators to properly investigate war crimes?

War crimes investigations are very similar to ordinary homicide and/or organized crime investigations, but on a much larger scale.

Ukrainian prosecutors are currently assisted by a number of experts – lawyers and investigators – who have gained experience working for different courts (ICTY, ICTR or ICC). Prosecutors, however, must tread carefully and investigate all war crimes, not just those committed by Russians. There is no doubt who attacked who. The Russians are the aggressors in this conflict, but that does not mean that Ukrainian defenders cannot or have not committed war crimes. Prosecutors will also have to investigate these cases, otherwise they could lose credibility. I am fully aware that investigations into Ukrainian war crimes will be politically very unpopular in Ukraine.

Comparably, in the former Yugoslavia it was much easier to investigate and prosecute Serbs in Croatia and Croats in Serbia, but very difficult to prosecute Croats in Croatia and Serbs in Serbia. There is no reason to think that it will be any different in Ukraine. Politics will play an important role in this process.

Vladimir Dzuro currently works as Head of the United Nations Office of Internal Oversight Services Headquarters Office in New York and is the author of The Investigator: The Demons of the Balkan War.