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Milanović, Marko (2016)
Publisher: American Society of International Law
Languages: English
Types: Article
As a series of public opinion surveys indicate, the International Criminal Tribunal for the Former Yugoslavia seems not to have persuaded populations in the various successor countries that the findings in its judgments are true. These surveys highlight strong relationships between the respondents' ethnicity, their perception of the ICTY's bias against their group, and their distrust of the ICTY and of its findings.
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    • 1 See, e.g., Fausto Pocar, Completion or Continuation Strategy? Appraising Problems and Possible Developments in Building the Legacy of the ICTY, 6 J. INT'L CRIM. JUST. 655 (2008); ROGER O'KEEFE, INTERNATIONAL CRIMINAL LAW 483-91 (2015).
    • 2 See Judge Theodor Meron, Address to the U.N. Security Council ( June 3, 2015), at file/Press/Statements%20and%20Speeches/President/150603_president_meron_un_sc_en.pdf.
    • 3 See Thomas Wayde Pittman, The Road to the Establishment of the International Residual Mechanism for Criminal Tribunals: From Completion to Continuation, 9 J. INT'L CRIM. JUST. 797 (2011); Guido Acquaviva, Was a Residual Mechanism for International Criminal Tribunals Really Necessary?, 9 J. INT'L CRIM. JUST. 789 (2011).
    • 4 ICTY, Achievements, at
    • 5 See also Mirko Klarin, The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia, 7 J. INT'L CRIM. JUST. 89, 90 (2009).
    • 6 See Yae¨l Ronen, Bosnia and Herzegovina: The Interaction between the ICTY and Domestic Courts in Adjudicating International Crimes, DOMAC/8, Sept. 2011, at pdf.
    • 7 See, e.g., European Commission, 2015 Serbia Progress Report, at 11, available at enlargement/pdf/key_documents/2015/20151110_report_serbia.pdf (“[J]udicial independence is not assured in practice. There is scope for political interference in the recruitment and appointment of judges and prosecutors.”); European Commission, 2014 Bosnia Progress Report, at 12, available at enlargement/pdf/key_documents/2014/20141008-bosnia-and-herzegovina-progress-report_en.pdf (“There are persistent flaws in the independence and impartiality of the judiciary. Political interference has continued.”).
    • 8 Prosecutor v. Tadic´, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Int'l Crim. Trib. Former Yugo. Oct. 2, 1995).
    • 9 See Christopher Greenwood, International Humanitarian Law and the Tadic Case, 7 EUR. J. INT'L L. 265 (1996); SANDESH SIVAKUMARAN, THE LAW OF NONINTERNATIONAL ARMED CONFLICT 57- 61 (2012); Marko Milanovic´ , On Realistic Utopias and Other Oxymorons: An Essay on Antonio Cassese's Last Book, 23 EUR. J. INT'L L. 1033, 1046 - 48 (2012).
    • 10 Other articles in this symposium will be dealing in particular with some of the ICTY's contributions in developing substantive and procedural international criminal law.
    • 14 Diane F. Orentlicher, Shrinking the Space for Denial: The Impact of the ICTY in Serbia, OPEN SOCIETY JUSTICE INITIATIVE (2008), at
    • 15 In that sense this article is rather self-consciously part of the empirical turn in international law scholarship. See generally Gregory Shaffer & Tom Ginsburg, The Empirical Turn in International Legal Scholarship, 106 AJIL 1 (2012). See also YUVAL SHANY, ASSESSING THE EFFECTIVENESS OF INTERNATIONAL COURTS (2014).
    • 16 This is of course not the only possible analytical standpoint. For a very different approach, rooted in the psychoanalytical tradition, see STANLEY COHEN, STATES OF DENIAL: KNOWING ABOUT ATROCITIES AND SUFFERING (2001).
    • 17 For a similar approach, see Stuart Ford, A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms, 45 VAND. J. TRANSNAT'L L. 405 (2012).
    • 18 All of the survey results, whether as detailed tables or more brief presentations, are available at http:// Unfortunately, most of the detailed tables are available only in Bosnian-SerbianCroatian.
    • 19 See Ipsos Website, at
    • 20 See Attitudes Towards War Crimes, the ICTY, and the National Judiciary - 2003, PowerPoint presentation of the survey results, at
    • 31 For an accessible overview see Bosnia-Herzegovina Country Profile - Overview, BBC NEWS (Mar. 18, 2015), at
    • 39 See Population by Ethnicity, 2011 Census, available at results/htm/e01_01_04/e01_01_04_RH.html.
    • 40 UNDP, Public Perceptions on Transitional Justice (2007), available at publications/Transitional%20Justice.pdf (hereinafter 2007 UNDP Kosovo Survey).
    • 41 UNDP, Perceptions on Transitional Justice (2012), available at docs/TJ/English-Web_965257.pdf (hereinafter 2012 UNDP Kosovo Survey).
    • 48 2011 BCHR Serbia Survey, supra note 25, at 131.
    • 49 2012 BCHR Bosnia Survey, supra note 30, at 10.
    • 50 See also Klarin, supra note 5, at 91-92 (discussing earlier surveys with similar results).
    • 51 2010 BCHR Bosnia Survey, supra note 29, at 10 -11.
    • 52 2010 BCHR Croatia Survey, supra note 37, at 8.
    • 53 2009 BCHR Serbia Survey, supra note 24, at 13.
    • 54 2004 BCHR Serbia Survey, supra note 21, at 69; 2005 BCHR Serbia Survey, supra note 22, at 60; 2006 BCHR Serbia Survey, supra note 23, at 47.
    • 55 2011 BCHR Croatia Survey, supra note 38, at 9. See also 2010 BCHR Croatia Survey, supra note 37, at 8; 2011 BCHR Serbia Survey, supra note 25, at 131; 2009 BCHR Serbia Survey, supra note 24, at 14.
    • 56 2011 BCHR Croatia Survey, supra note 38, at 9.
    • 57 This is most apparent from the fact that positive attitudes tend to peak, and negative drop, for those respondents who are still in education, i.e. most likely are in the 16 -23 age group, which was the youngest respondent group used in Serbian surveys (compared to 18 -29 in Croatia and Bosnia). The age correlation is otherwise completely absent from the 2009 Serbia survey.
    • 58 2010 BCHR Bosnia Survey, supra note 29, at 11; 2012 BCHR Bosnia Survey, supra note 30, at 10 (although a slight age correlation exists among the Federation respondents).
    • 59 2011 BCHR Serbia Survey, supra note 25, at 132; 2011 BCHR Croatia Survey, supra note 38, at 12; 2012 BCHR Bosnia Survey, supra note 30, at 14.
    • 73 On the different possible varieties of denial, see ERIC GORDY, GUILT, RESPONSIBILITY, AND DENIAL: THE PAST AT STAKE IN POST-MILOSEVIC SERBIA (2013), at 89 -118.
    • 74 See Masi Noor, Nurit Shnabel, Samer Halabi & Arie Nadler, When Suffering Begets Suffering: The Psychology of Competitive Victimhood Between Adversarial Groups in Violent Conflicts, 16 PERSONALITY & SOC. PSYCHOL. REV. 351, 352 (2012).
    • 75 See, e.g., Prosecutor v. Krstic´, Case No. IT-98-33-A, Appeals Judgment (Apr. 19, 2004); Prosecutor v. Blagojevic´ & Jokic´, Case No. IT-02-60-A, Appeals Judgment (May 9, 2007); Prosecutor v. Popovic´ et al., Case No. IT-05-88-A, Appeals Judgment ( Jan. 30, 2015).
    • 76 2011 BCHR Serbia Survey, supra note 25, at 162.
    • 77 Id. at 169 -70.
    • 78 Id. at 184. Attitudes towards Srebrenica in Serbia, 2004-2011
    • 93 See, e.g., Prosecutor v. Krajišnik, Case No. IT-00-39-A, Appeals Judgment (Mar. 17, 2009) (dealing with Bijeljina and Zvornik, inter alia); Prosecutor v. Stakic´, Case No. IT-97-24-A, Appeals Judgment (Mar. 22, 2006) (Prijedor); Prosecutor v. Galic´, Case No. IT-98-29-A, Appeals Judgment (Nov. 30, 2006) (Sarajevo); Prosecutor v. Delic´, Case No. IT-04-83, Trial Judgment (Sept. 15, 2008) (mujahedeen crimes near Travnik); Prosecutor v. Delalic´ et al., Case No. IT-96-21-A, Appeals Judgment (Feb. 20, 2001) (Cˇ elebic´i camp).
    • 94 2011 BCHR Serbia Survey, supra note 25, at 169.
    • 95 Id.
    • 108 See, e.g., CHRISTINE BELL, PEACE AGREEMENTS AND HUMAN RIGHTS 283 (2004); KARIN VON HIPPEL, DEMOCRACY BY FORCE: U.S. MILITARY INTERVENTION IN THE POST-COLD WAR WORLD 150 -51, 197-98 (2000); James Gow, The ICTY, War Crimes Enforcement and Dayton: The Ghost in the Machine, in INTERNATIONALIZED STATE-BUILDING AFTER VIOLENT CONFLICT: BOSNIA TEN YEARS AFTER DAYTON 47, 55 (Marc Weller & Stefan Wolff eds., 2007).
    • 109 See generally Mathias Dobbels, Serbia and the ICTY: How Effective Is EU Conditionality?, College of Europe EU Diplomacy Paper 6/2009, at; Orentlicher, supra note 14, at 25-27.
    • 110 See Twelve Guilty of Djindjic Murder, BBC NEWS (May 23, 2007), at 6683463.stm. See also Petrovic´, supra note 79, at 99; Gordy, supra note 73, at 69 - 86.
    • 111 See generally Serbia Profile - Leaders, BBC NEWS (Aug. 5, 2015), at See also Lily Lynch, The Balkanist Guide to the Serbian Elections: Party Edition, BALKANIST (Mar. 14, 2014), at
    • 120 Refik Hodzˇic´, Twenty Years Since Srebrenica: No Reconciliation, We're Still at War, BALKANIST ( June 29, 2015), at
    • 126 See supra Part II, Victims and Perpetrators.
    • 127 See Daniel Bar-Tal, Lily Chernyak-Hai, Noa Schori & Ayelet Gundar, A Sense of Self-Perceived Collective Victimhood in Intractable Conflicts, 91 INT'L REV. RED CROSS 229, 250 -51 (2009) (discussing links between a sense of collective victimization and the readiness to accept a standard conflict narrative).
    • 129 Cf. Dan Kahan, Fixing the Communications Failure, 463 NATURE 296 (2010) (discussing the process of “cultural cognition” which leads to attitude polarization when people are exposed to counter-attitudinal scientific evidence).
    • 130 See Ford, supra note 17, at 463- 64.
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