As the main trial over the 1995 Srebrenica massacre opened at the special tribunal for Yugoslav war crimes in The Hague this week, the court had one negative and several positive lessons for the new International Criminal Court (ICC).
The negative one is: Don't bite off more than you can chew, as prosecutors did in their exhaustive 66 counts against former Serbian President Slobodan Milosevic. Rather than selecting a few representative crimes, they charged him with offenses from all his bloody campaigns to carve out a Greater Serbia.
The resulting trial dragged on for five years, with hundreds of witnesses, 5,000 exhibits of proof – and no verdict on the mastermind of the 1990s wars before he died in prison last March. ICC prosecutors vow not to repeat this mistake.
Fortunately, the positive lessons trump the spectacular failure to convict Mr. Milosevic. In other trials, the International Criminal Tribunal for the Former Yugoslavia (ICTY) affixed individual – rather than collective – guilt for gross violations of international laws of war and humanity.
It determined legal truth beyond a reasonable doubt about the worst atrocities in Europe since the World War II Holocaust – and this quickly made denial of the Srebrenica massacre impossible, except by the most hard-core Serb ultranationalists. It helped ease the most bloodthirsty bullies out of politics in the former Yugoslavia. Its primary jurisdiction in trying war crimes preempted local court polemics that would only have stoked ethnic hatred in Bosnia, Kosovo, and Macedonia in the wake of war.
And, not least, the ICTY initiated a transformation of justice in the Balkans that spilled over into grudging mutual ethnic tolerance. Both by example and by specific training, the tribunal coached local courts on how to deal with those accused of mass murder and brutal ethnic cleansing and not let them pose as nationalist heroes.
By 2005, Serbian and Croatian courts were routinely convicting their fellow citizens of war crimes – and this month a hybrid court of mixed local and international judges in Kosovo for the first time convicted senior Kosova Liberation Army officers of war crimes.
Furthermore, the ICTY, along with its sister Rwanda tribunal, has built up, for the first time in a half century, a body of legal interpretation of the spare definitions in the post-World War II Genocide Convention. The precedents that the ICTY set include clear concepts of command responsibility for soldiers' bestiality and the addition of systematic rape to the standard list of crimes against humanity. Some observers go even further to argue that the tribunal's indictment of Milosevic in June 1999 triggered, within days, the Serbian leader's abrupt capitulation to NATO forces that ended the 11-week Kosovo war.
None of this seemed remotely possible at the inauspicious birth of the ICTY. The reluctant sponsoring nations, giving in to popular indignation by TV viewers over the barbarity they saw in Bosnia, duly voted at the United Nations to establish a token tribunal.
But they starved it of funds and prestige. The first judges had to rent their robes from a theatrical supplier. The first chief prosecutor was not appointed for more than a year, and then had to spend most of his time raising money.
Yet today the legal truth established at The Hague tribunal forms the base for local court trials. In a vote of confidence in the growing professionalization of these courts, the ICTY is already transferring cases and dossiers to them as it winds up its own work by 2010.
As the prosecution spokesman in one of the first trials of Serbs charged with war crimes in a Belgrade court put it, "No one denies anymore that the crimes took place. The public has been confronted with them and accepted that such crimes must be tried and the perpetrators punished."
It is often argued that adversarial court trials prolong wars by other means – the exact opposite of the intent of both the ad hoc tribunals of the past decade and the new permanent International Criminal Court. But the Yugoslav successor states have today escaped the cycle of wars and revenge. Antonio Cassese, ICTY president in the mid-1990s, asserts that justice actually promotes reconciliation in the long term, because it "breaks the cycle of violence, hatred, and extra-judicial retribution."
The International Criminal Court will do well if it can replicate this positive lesson of the ICTY.
• Elizabeth Pond is a former European correspondent of the Monitor and the author of the forthcoming book "Endgame in the Balkans: Regime Change, European Style."