‘The only victor would be the truth’
When the Tribunal was created, expectations went well beyond putting individuals on trial. It was supposed to contribute to an authoritative historical record and, ultimately, peace in the region. The US representative at the UN Security Council famously declared that it would be “no victors’ tribunal” and that “the only victor” would be the truth.
But there was a fundamental problem: the ICTY was a criminal court, with a mandate focused on individual responsibility for crimes committed during the conflicts. The wider political causes of the wars lay outside its formal jurisdiction.
‘This meant that the pursuit of the historical “truth” of the causes of what happened, in the cases in which it occurred at all, was more of a by-product than the goal of the proceedings,’ says Finci.
That did not stop the prosecution from presenting much bigger stories, however. Legal mechanisms developed at the Tribunal, including ‘joint criminal enterprise’ (used by the prosecutors to allege a shared political motivation for those allegedly involved in the commission of crimes) meant that arguments about the political causes of the conflicts began to seep into the courtrooms.
When history meets the courtroom
The result was a clash between competing versions of the past. Prosecutors presented their interpretations of why crimes had occurred; defendants often responded with versions closely resembling the dominant national narratives in their home countries.