Rush to Closure: Lessons of the Tadić Judgment

In 1993 and 1994, following allegations of mass atrocities, including systematic killings, rapes, and other horrific forms of violence in Rwanda and the territories of the former Yugoslavia, two ad hoc international war crimes tribunals were established to prosecute individuals for grave violations of international humanitarian law, including genocide. As might be expected, advocates for the creation of these entities – the first international courts to prosecute individuals under international law since the trials at Nuremberg and Tokyo after World War II – aspired to grand goals inspired by, but extending far beyond, the pedestrian aims of ordinary criminal prosecutions. Those who pushed for the creation of these tribunals argued that, as with earlier trials of major Nazi and Japanese wartime leaders, properly conducted international criminal trials, brought by and on behalf of the international community, would: threaten those in positions of power to deter further violence; make possible atonement for the perpetrators and honor the dead; provide a mechanism to enable victims and their families to receive needed psychological relief, identify remains, restore lost property, and otherwise help heal wounds; channel victims’ thirst for revenge toward peaceful dispute settlement; affirm the Nuremberg Principles at the international level while restoring faith in the rule of law generally; tell the truth of what occurred, thereby preserving an accurate historical account of barbarism that would help prevent its recurrence; and, perhaps most important, restore the lost civility of tom societies to achieve national reconciliation, This article reexamines these goals in light of the judgment issued after the first full trial at the Yugoslav tribunal, the case against the Serb former cafe owner, Dusan “Dusko” Tadic. In my view, the form, structure and content of this historic judgment suggest adherence to what Mark Osiel has characterized, in other contexts, as a model of closure. Under this model, inspired by the Nuremberg trials and subsequent criminal prosecutions for “administrative massacre[s]” in national courts, it is assumed that such proceedings will draw upon “an already-existing consensus” regarding “first principles” and evoke in participants and observers a sense of social solidarity premised on the “common values” of Emile Durkheim’s “collective conscience.”