Rebuilding trust in the former Yugoslavia: Overcoming the limits of the formal justice system

Abstract

Much of the ongoing debate on how societies can and should respond to a legacy of mass abuse in the wake of large-scale conflict or of State-organised oppression deals with the question of what can be the role and contribution of law to the challenges and needs faced by these societies. Situations in which societies find themselves devastated by heinous and widespread violence and destruction at different levels pose enormous and very real challenges to human capacity and creativity in dealing with its consequences. As the title of this chapter suggests, law - embodied in the formal justice system - encounters significant limitations in addressing mass atrocities. One can say that situations like these truly constitute a test to the potential and the limits of the law. In this chapter we will focus on the international application of criminal justice. One of the major challenges faced in the wake of mass violence is how to rebuild trust among those who were on conflicting sides. While some claim that judicial adjudication will contribute to reconciliation between former enemies, others warn against raising unrealistic and unfounded expectations and the disillusionment that will follow thereof. We will use the notion of social trust as one of the elements of the process of social reconstruction1 (section 2) and analyse the contribution of law to the rebuilding of that trust. This will be done through a critical assessment of how law fulfils two of its functions which are closely related to the notion of trust - the symbolic and the dispute resolution or peace-making functions (section 3). The question of rebuilding trust among members of different ethnic groups in the former Yugoslavia is still very present. Years after the official end of the conflicts, and after a significant amount of attention and resources were drawn into the process of addressing the violations of the past, mistrust continues to play a role in the individual, social, and political spheres of these countries. Having been the stage of important advancements in the use of law to serve the interests of post-conflict justice (perhaps even at the cost of consideration of other equally valuable options2), the case of the former Yugoslavia triggers further reflection on the contribution and limits of the law. In order to benefit from hindsight analysis, we will focus only on the International Criminal Tribunal for the former Yugoslavia (ICTY or 'the Tribunal' hereafter) and not for the moment - on the judicial mechanisms at the national level. As the realisation of the limitations of law in rebuilding trust between opposing sides becomes more apparent in the region, there is renewed discussion on what mechanisms and approaches could assist that process. In this chapter we offer the hypothesis that a restorative approach might make a relevant contribution to the long and complex path towards social repair (section 4). © 2009 Springer-Verlag Berlin Heidelberg.