Trials at the ICTY concerned political violence and criminality that resulted from disintegration of a federation from which seven new successors states were formed. That process has been defined as a 'clash of state projects', where violence happened in areas claimed by two or more parties, or an aspiring state. The war crimes trials at the ICTY that resulted from overlapping territorial claims in Croatia, Bosnia and Kosovo produced a huge record of trial evidence. Problems in the very small state of Kosovo may be seen as the beginning of the violent process of disintegration, now known loosely as the Balkan wars of the 1990s. The conflict in Kosovo of 1998-9 may be seen as the end of those wars. Kosovo now seeks global recognition as an independent state but faces opposition both as to its international legal entitlements and as to how its history in the conflict should be viewed.
Conflicts in the small state of Bosnia may be seen as the heart of the 1990's Balkan wars. Bosnia's complex constitution and uncertain political equilibrium have left it with an insecure future. ICTY trials had several objectives, including bringing retribution and achieving deterrence but they never sought to write history and those who would seek historical truth in the trial record might be disappointed; every trial record produces at least two competing narratives, a Prosecution narrative and a Defence narrative or narratives, neither / none of which may be accurate. Yet outside the courtroom, the trial record will be used - or abused - for shaping the collective memory of the peoples and nations involved and for providing an overall narrative of the wars themselves.
The struggle for the interpretation of historical events through the trial record might be as important in long run as the determination of guilt or innocence of the individuals tried.
Kosovo and Bosnia both face a former foe -- Serbia - which might like to leave a 'historical record' that suggests moral equivalence between Serbia and Kosovo and between Serbia and Bosnia. The ICTY's policy of prosecuting representatives of all states /entities involved in the wars, may have contributed, some argue, to a concept of 'proportionality of criminal responsibility' that may assist Serbia in achieving this goal. In any event, Serbia may have shown itself skilful in the use of the court system and of the court record to write or re-write narratives of the conflicts in Kosovo and Bosnia? If it has, how can Kosovo and Bosnia fight back and write their own -- or at least better - narratives?
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