Milanovic: Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences

Marko Milanovic (Univ. of Nottingham - Law) has posted Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences (Georgetown Journal of International Law, forthcoming). Here's the abstract:

In an earlier piece, forthcoming in the American Journal of International Law, I discussed the findings of a series of public opinion surveys in the former Yugoslavia probing the attitudes of the respondent populations regarding the mass atrocities committed during the Yugoslav wars of the 1990s, such as the Srebrenica genocide. That article concluded that the International Criminal Tribunal for the Former Yugoslavia (ICTY), the first modern, post-Nuremberg international criminal jurisdiction, failed to persuade the target audiences in the former Yugoslavia that the findings in its judgments are true. The surveys show that denialism is widespread and governed by ethnic bias – for example, only 10% of the Serbian population accept the facts about the Srebrenica genocide, the greatest crime committed in Europe since World War II, as they were established by the ICTY.

While that companion piece addressed the empirical, “what” question, this one looks at the equally, if not even more important, “why” question – why has the ICTY proven to be so ineffectual in inducing attitude change? In answering this question I proceed primarily from the theoretical standpoint of social psychology, enabling a more sophisticated understanding of how the target audiences in the former Yugoslavia have so persistently resisted internalizing the ICTY’s factual findings. I argue that the causes of the ICTY’s ineffectiveness are complex, turning on an interplay between subjective and objective limitations on individuals’ processing of information about war crimes, limitations that are largely independent of the quality of the Tribunal’s own work.

For example, average citizens normally lack any immediate experience of the event, which necessitates the mediation of information by third parties, e.g. the media and political and intellectual elites, while they similarly lack the time, expertise and resources to rigorously examine the information by themselves. Remoteness from the event also facilitates the avoidance of revising previously acquired beliefs about the event, for instance through discrediting certain sources of information, such as the ICTY. Crucially, ethnic nationalism continues to play a central role in the politics of the region, providing key political actors with both the opportunity and the incentive to engage in the deliberate manipulation of the (already heavily mediated) information that citizens receive about specific atrocities and the ICTY. These objective limitations then feed into the numerous cognitive biases which shape the processing of any information about mass atrocities, essentially pushing individuals (at an unconscious level) to believe what they want to believe and reason about the ICTY and its work in a way that is most protective of their own sense of identity.

The article thus argues that even had the ICTY been run perfectly – and it was not – it would not have been able to overcome the many barriers insulating the peoples of the former Yugoslavia from the positive effects of its work. Operating in a bias-driven downward spiral, the more it challenged established nationalist narratives the more it generated distrust, and hence the less likely it was that it would be believed. In other words, as a mechanism of transitional justice the Tribunal was from the outset doomed to fail. Valuable lessons can, however, be learned from that failure, and not every other international criminal court and tribunal will necessarily find itself in the same unenviable position.