That Someone Guilty Be Punished - Open Society Foundations

good, generally speaking, but they are only good after you have militarily defeated the ideology
behind the crimes that you want to prosecute or judge in those tribunals.” 180
There may be another reason why Bosniaks in particular do not set store in the “justice
for peace” rationale set forth in the Security Council resolution creating the ICTY. Despite the
Council’s professed belief that the ICTY would help restore and maintain peace in Bosnia,
states acted on much the opposite premise during the early years of the ICTY. Of particular
relevance to Bosniaks’ perceptions of the ICTY’s achievements, NATO forces operating in
Bosnia in the early postwar years went out of their way to avoid arresting two masterminds of
“ethnic cleansing”—Ratko Mladić and Radovan Karadžić—believing that their arrest could be
destabilizing. 181 This, as we note in Chapter IV, is widely seen as one of the greatest failures
of the international community associated with the ICTY’s work, and one that many believe
has significantly diminished its impact.
D. Reconciliation
The word “reconciliation” is not used in the Security Council resolution establishing the
ICTY, 182 nor is it included in the goals of the Tribunal set forth on its own Web site. 183 Even
so, many have assumed that the Security Council’s determination that creating the ICTY
would contribute to peace includes the notion of reconciliation—a view that has at times been
reflected in ICTY judgments 184 and reports. 185 Senior ICTY officials have repeatedly emphasized
a notion they consider central to the Tribunal’s mission (though not a concern of judges
when performing their work)—that by prosecuting individuals one by one, the Tribunal would
avoid the taint of collective responsibility that might fuel future conflicts. Then ICTY President
Cassese made the point this way in his first report to the UN General Assembly and Security
Council:
Far from being a vehicle for revenge, [the ICTY] is a tool for promoting reconciliation
and restoring true peace. If responsibility for the appalling crimes perpetrated in the former
Yugoslavia is not attributed to individuals, then whole ethnic and religious groups
will be held accountable for these crimes and branded as criminal. In other words,
“collective responsibility”—a primitive and archaic concept—will gain the upper hand;
eventually whole groups will be held guilty of massacres, torture, rape, ethnic cleansing,
the wanton destruction of cities and villages. The history of the region clearly shows
that clinging to feelings of “collective responsibility” easily degenerates into resentment,
hatred and frustration and inevitably leads to further violence and new crimes.
…Thus the establishment of the Tribunal should undoubtedly be regarded as a measure
designed to promote peace by meting out justice in a manner conducive to the
THAT SOMEONE GUILTY BE PUNISHED 39