coming to terms with the past-dragovic soso gordy

7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy

1/12

New Perspectives on Yugoslavia

Key Issues and ontroversies

Edited by

Dejan Djokic and James Ker Lindsay

~ ~~o~&t ;n~2~up

LONDON ND N W YOR


2/12

192

The Final Yugoslav Issue

78 As two forn1cr

UNivfIK

officials explained, the irirernational community 'failed

ro

understand

that

the Kosovo conflict of the late nineties ... was only the latest chapter in a long-running

competition between

two

peopl.es fOr conrrol of territory. The international com1nunity

realised too late

that

its ailiance

with

the Albanian militants was somewhat arbitrary. Borh

opposed Serb atrocities, but while the international cornrnunity was against the atrocities,

the guerrillas were against the Serbs. Most Albanians who took

up

anns to challenge

Serbian oppression

did

not object to one ethnic group bullying all the others; they just

wanted to be rhe one on rop', l(ing and 11ason, Peace

at Any

Price, pp. 243-44.

79

See a range of exa1nples, UN envoy on Kosovo's status says independence

is

the only

option' ,

[lf ,.T

News Centre, 26

Nfarch

2007;

'U.S. Envoy Discusses Kosovo Independence

Declaration', PBS, 18 Fcbruaty 2008; 'Joint

ETJ

reaction on Kosovo's declaration

of

inde

pendence - Doris Pack MEP', Press Release,

EPP-ED

G roup

in the European Par/LwN11t,

20 February 2008; 'l--Iarper defends Kosovo recognition as unique case', CBC, 19 March

2008; 'The lJ.S. and Russia at ()dds Over Kosovo',

VOA

] ,lews, 25 February 2008; 'Joy in

Kosovo, Anger in Serbia', Time, 17 February 2008.

j

11 Coming

to Terms with the

Past

Transitional justice and reconciliation

in

the post-Yugoslav lands

asna

Dragovic-Soso

and

Eric Gordy

Since

the

establishment

of the

International Criminal

Tribunal

for

the

Former Yugoslavia (ICTY) in

1993,

and especially since the changes of

regime

in

Serbia

and

Croatia in

2000,

a complex and controversial story

has developed around the variety of measures that have been generated

to produce accounts

and

promote understandings

of

the past, identify

violations

of humanitarian

law

and

penalize

their

perpetrators,

and

satisfy

international demands for accountability. 1~hese initiatives have operated in

fits and starts, often in response to conditionality i1nposed from outside,

sometimes in bad faith and frequently

in half

measures

or through

processes

that

remain incomplete. However,

what

is being asked of the former

Yugoslav states

is

a process which, in its

depth

and speed, has no close

parallel

in

history. They are expected to participate in both do1nestic

and international criminal proceedings

that

use

an

eclectic mixture

of

proce

dures and practices and to produce gestures

of

penance which embody

a genuine transformat ion in popul ar consciousness all this

without

destroy

ing

political and legal institutions nor

permitting them

to remain as

they were when their states were complicit in deeds that they now have to

punish. Considering

that

these states have experienced neither a decisive

military defeat nor a complete political transformation,

the

fact

that

transi

tional justice initiatives have occurred on a meaningful scale at all is in itself

noteworthy.

1

The

stares

of the

fOrmer Yugoslavia have functioned

as

laboratories

of transitionaJ justice. I {ere we have seen the first effort at an international

tribunal,

the

first regional system

of

special prosecutors

and

special courts for

violations of international humanitarian law; the first invocation of 'confront

ing

the

past' as a principle of conditionality;

and the

first efforts

in the

civil

sector to develop cooperative approaches

to

reconciliation.

If the

founding

of

ICTY is taken as marking the beginning of these processes,

it

is now possible

to evaluate

16

years of experience to see

what

efforts have been sustained

and which have been abandoned, to assess the contributions of ongoing

processes,

and

to consider the obstacles

that

have impeded

the

development

of

some proposed initiatives, particularly national

and

local 'truth-seeking'

projects.


3/12

194

Cv111ing

to 1 erms

with

the ast

Judicial

processes

Judicial

institutions

of different types have heard cases involving violations of

international and

hun1anitarian law

in

the wars of the

1990s.

~fhe best

known

of

the

initiatives to try such cases has been the

ICIT

or

the 'Hague

Tribunal .

2

ICTY was established by UN Security Resolutio n 827 in

1993, began

its first

hearings

in November 1994

and issued its final original indictn1ents in ~fay

2004.

Its completion strategy envisions that all trials be completed in 2010

and

all appeals

in 2011.

3

In

all Yugoslav successor states don1estic prosecutors

and

courts have also

brought and heard a number of international

humanitarian

law cases, while

ICTY

has devolved several of these cases to national courts; they will con

stitute

the

primary

venue for such cases after IC:TY closes. Cases before

domestic courts might be evaluated in terms

of

the

conduct

and credibility of

the trials, though

it may

also be important to consider them

in

terms of

their

role in

the

deveJoptnent of local

institutional

capacities,

and in

terms of

their

function in

generating

cooperative relationships ber,veen legal

institutions

across borders.

Finally,

in

a small number of instances former Yugoslav states have

brought

disputes

fOr resolution before the

lnternational Court

of

Justice

(JCJ)

in The

Hague. In

each

of

these cases

there

have been (or promise to be) legal rulings

that are likely to have implications for the

development

of international law

related to the cri me of genocide.

IC Y

As of mid-2009

the

lCTY prosecutor has issued 161

indictments, which

have

resulted in

S 8

convictions,

20 guilty

pleas, 13 referrals to domestic urisdic

tions, and 10 acquittals. Charges were

withdra,vn

in 31 cases and 44 indictees

are

awaiting

trial. Two indictees

remain at

large.

4

Some

of

the

most

closely fr)llowed cases at ICTY have also been an1ong the

most

controversial. ()f the top-level

government

leaders

who

have

been

tried,

former Serbian

president Milan

MilutinoviC was

acquitted on

the

grounds

that

he

did not exercise con1mand, former Kosovo prime minister Ramush

Haradinaj

was

acquitted

arnid suspicions of extensive

tampering, and

former

Serbian

and

Yugoslav

president

Slobodan MiloSeviC died in custody before his

trial was completed. High-ranking military commanders have been convicted,

including Rasim

Delic (Bosniak),

Dragoljub Ojdanic and Nebnjsa

Pavkovic

(both

formerly of the Yugoslav Army). Sefer Halilovic (Bosniak) was acquit

ted,

and Janka Bobetko

(Croat) never faced trial. Cases such as those against

Bosniak paramilit ary comn1ander

Naser Ori(

and Croatian

army

general

Ante

Gotovina have raised questions regarding the systematic character

of

crimes

committed against the civilian

population

and the threshold of evidence

required to

demonstrate

the existence of command responsibility.

And

of

course recurrent controversies over the delivery

of

indictees for trial have led

C v1ni11g to Ternzs zuith the ast

195

to periodic reexamination of the relationship between the states of the region

and

the European

Union.

The questions about ICTY that are asked most frequently, however, and

that demand answers

most urgently,

are

not

questions of fact.

They

involve

answers

to

the

question

of

how

the

indictments,

convictions, acquittals

and

other details

just enumerated

correspond (or fail to correspond) to the

requirements of justice.

The

Tribun al s official publicicy

5

lisrs the follo\ving

as

some

of

the Tribunal s

achievements :

holding

leaders accountable, bringing justice to victims,

giving victims a voice, establishing the facts, developing international law,

and

strengthening

the rule of law. These achievements are mostly real.

'fhere

is indeed

substantial

ground for doubt that political, military

and

para

military leaders

would

ever have been brought to account \Vithout

ICTY,

or

that

victims

would

have had

the opportunity

to

see their

evidence considered

or

in

some cases to confi-ont the perpetrators

in

court. The evidence presented

in

the

Tribunal's

open session already constitutes an invaluable

documentary

record, and in the event that evidence

gathered

by the

Tribunal

but

not

introduced in open session becomes available, it could serve as an extraordinary

resource for detailed

documentation of the

\vartime events.

ICTY's Trial

Chamber has set major precedents

in

rnany of its rulings.

Beginning

with

the

C:elebiCi

prison

camp

case,

6

the

IC'fY

developed a new

body

of

jurisprudence on

command

responsibility, establishing that civilians

as

well as

military

officers

could

e held responsible if

they

actually exercised

command, and bringing into

criminal law the

distinction

betv.reen a

de

jttre

and

a

de

facto commander. Among the consequences of this

ruling

is an

enhanced ability

to

apply

international la\v to civil wars

and

to incidents

involving paramilitary formations.

Along

with the International Criminal

Tribunal

for

Rwanda

(lCTR),

CTY

has

produced

jurisprudence

that

has

made

a

major contribution, including

gender-based cri1nes,

including

rape

and

sexual violence, as violations of the

I Iague

and

Geneva

Conventions

and as

elements of the cri,nes of genocide

and

torture.

While ICTY

and

IC~fR have

produced

the first

international

jurisprudence

on

genocide since the passage of the G-enocide c:onvention

in 1948,

IC~fY s

approach to genocide has been decidedly mini1nalistic. Only the mass killing

of males frorn Srebrenica

in 1995

has been defined as genocide, although

prosecutors have sought to

apply

the charge more broadly.

Only

one indivi

dual

has

een

convicted of genocide - R adislav KrstiC,

commander

of the

l)rina

Corps of the Arrny of

Republika

Srpska - though his conviction was

altered on appeal to a conviction for

aiding

and abetting genocide. Additional

jurisprudence

on

Srebrenica is

anticipated

from cases in which judgment has

yet to be rendered,

including

the Srebrenica Seven case

and

the prosecution

of

Radovan l(aradZiC. The KaradZiC indictment could expand the ICTY's

definition of

genocide

as it seeks to

include

the killings and expulsions of

civilians

in 1992 as

acts of genocide.

7


4/12

196 Cutning to Terms

u1ith

the Past

Finally,

the

greatest significance

of

some 1 :]Y cases may

d_erive

from

the fact that they reached trial at all. The prosecutions of heads of srat.e frnm

the

region produced mixed results at best: MiloSeviC died be.f?re his

tr1~l

could be completed, while in the cases

of

both Alija Izetbegov1c and Fran

Jo

Tudman there were only general statements after their deaths that they would

have been charged if they had survived. Other heads of state brought before

JC:TY

were mostly

clients

\vhose

comn1an


5/12

198

Co111ing to

Tenns with the Past

A few show trials were also conducted in the 1990s; in these trials para

military soldiers were charged

but

members

of

the regular military were not,

and

the prosecutions were often conducted in a way that assured the trials

would

not

be carried to conclusion.

()ne

well publicized instance was

the

trial

of the VuCkoviC

brothers i n Sabac in l 994:

the

principal suspect

\Vas

an

alcoholic

with

a history of severe psychological illness who had been dismissed

fron1

the

army in 1982.

This

established a distance between

the

1nilitary and

the

crimes, while also

building

a

pretext

for crimes to be traced to an unusual

individual condition rather than to a political setting. While the trial dealt

with

individual crimes,

it

never raised

the

role

of

the Serbian Radical Party, which

was

part of

the governing coalition,

that

had organized the pararnilitary

formation that included VuCkoviC.

2

The

capacity for domestic prosecution was enhanced after

2000,

with

political changes

in

Serbia and Croatia. Vladimir

VukCeviC

became the first

special prosecutor for \Var crimes in Serbia in

2003,

and Bosnia-Herzegovina s

War

Crimes

Chamber

began work in March 2005. \Xfhile the (~roatian par

liament had made a declaration on the legitimacy of rhe state s military efforts

in

2000, in

response to pressure from

the

European lJnion special war crimes

chambers were designated

and

rhe firsr cases began to be referred to

rhen1

in 2005.

Early prosecutions in Croatia had been ,videly perceived

as

being selective.

With rhe establishment of special chambers major cases began to e tried on a

larger scale by domestic legal institutions.

While

the balance has favoured

prosecutions

of

Croatian Serbs for violations comn1itted as members

of

rebel

lious parami lit ary forces, there have also been cases invol ving violations

commin:ed by C:roat forces against civilians.

13

There are nonetheless dran1atic

instances

of impunity

in Croatia,

including

rhe

continued

untouchable status

of para1nilitary commander fomislav MerCep, who is heavily implicated in

kidnappings

and

killings in and around Pakrac

in 1991-92

bur remains an

active political figure.

14

While the special war crimes chamber \Vas estab

lished

with th

purpose of guaranteeing a level

of

objectivity and expertise in

the conduct

of

trials, in practice the power

of

prosecutors to refer cases from

the

regular courts

to

this chamber

is

rarely used.

Since the special chamber for war crimes began work in Bosnia

in 2005,

122 cases have

begun

in domestic courts.

15

The number of

cases hardly cor

responds, and probably never can do so, to

the number

of people who could

potentially be charged

with

offences. There are barriers

to

prosecution

imposed by basic political structures like the Dayton Peace Agreement: this

achieved an end to armed conflict by assuring that power gained in

the \Vat

would be maintained, and unsurprisingly n1any wartime figures continue to

enjoy a protected status. 1~here are also persistent issues of jurisdiction arising

frorn

the

simultaneous operation of different judicial systems in the two entities

and

BrCko,

as

well

as

from ongoing confusion

as

to

whether

the applicable

law derives from the Crirninal c:ode of Yugoslavia, which was

in

force at the

rime of rhc conflicr, or from

the

( .rimina1 (~ode

of

Bosnia-I--Ierzerrovina.

v,,,hich

C o111itt, to

Tenns icith the Past 199

addresses issues of war crimes

in

greater detail but did not

come into

force

until 2003.

16

Serbia faced both a large number

of

cases and huge challenges to prosecuting

them. Some of rhe most

prominent

war crimes prosecutions since

2000

have

involved the Scorpions paramilit ary group, members

of

which were con

victed and sentenced

in

2005 fOr a massacre of ethnic Albanian civilians in

Podujevo,

and

in

2007

for participation

in

the Srebrenica genocide.

17

Aside

froin the question

of

crimes perpetrated, these cases raised the question

of the

role of military

and

state security services in rhe war; this presented a major

portion

of the

legal strategy

of

nongovernrriental advocacy groups in these

cases. A more complicated

picture

emerges from

th

efforts to try

the

perpe

trators of the OvCara massacre near Vukovar in 1991. A conviction

with

harsh

sentences

\Vas

rendered in

2005, though

this was subsequently overturned.

The last word in the case may have been fOrfeited by the Serbian courts and

could instead remain

with

IC~fY, which convicted two of

the

main suspects in

the massacre and released a third.

18

In posr-2000 Serbia a

number

of domestic

murder

cases remain unresolved.

During

the

investigation

of the murder

of

prime

minister Zoran DjindjiC

in

2003,

the 2000

murder

of

forn1er president Ivan StamboliC ,vas also solved and

convictions

\Vere

rendered against rnembers

of

a disbanded special forces

unit

in

both

cases. However

the attempted murder

in

2000 of

politician

Vuk

DrJ.SkoviC has resulted in several convictions, all of which have been reversed on

appeal, ,vhile nobody has been charged in

th murder of

newspaper editor

Slavko C:uruvija in front

of

his home in 1999. Suspicion remains

that other

unsolved killings, like

that of

journalist Radoslava (Dada) VujasinoviC in 1994,

can also be traced to regime-related

fOrces but

these cases remain unprosecuted.

Eight

cases have been returned to domestic jurisdictions from ICTY.

The

case

of

killings of civilians in

the

Medak pocket has been transferred to

Croatia. Most

of the

cases transferred from IC: IY

to

domestic courts have been

transferred to Bosnia-Herzegovina, ,vhere their conduct is closely monitored

by

the Tribunal.

19

The

close association between crimes

committed

in

the

course

of

the

conduct

of

war and nearly all

other

types

of

major crime in the region has

highlighted

the persistent need for cross-border cooperation in prosecution

and law enforcement. For instance, rhe Croatian politician and former

paramilitary

commander

Branimir GlavaS was convicted

of

war-related

1nurders and

attempted to

escape sentencing by fleeing

to

neighbouring

Bosnia-Herzegovina where he holds citizenship. At Croatia s request he ,vas

quickly arrested by Bosnian police and prosecutors began to request his extra

dition. 1'hough stare prosecutors have 1nade progress in assuring witness pro

tection and allo\ving for testimony

to

be given rerr1otely, serious obstacles

remain to cross-border cooperation in trials,

among them

the legal ban on

extradition which is shared by all of the stares in the region.

20

That

the

record

of

domestic prosecution should be mixed

is

hardly sur

nrisinf ".

Domestic insrirutionc.: -

c.:nmP nP'-V :-1nrl

nnt F :.rPrl

~nmr,> nlr1 -:,nrl


6/12

200

Cu1ning to Terrns tuith the Past

burdened by legacies of subordination and complicity took on a set of issues

of extraordinary complexity and political sensitivity.

They

did so in an

atmosphere

of diminished trust

in institutions, political uncertainty, uneven

access

to

evidence, lack of clear jurisdiction and frequently hostile

public

sentiment, while si1nultaneously

building

institutional capacity and

the

capacity

to

collaborate and coordinate

with

their colleagues

in

states

that

were

until

recently hostile. Despite

a

record of disappointnients and reversals along

the

way,

important

precedents are being set by don1estic legal institutions.

The lnternation{I/ Court oj Justice

Governments in

the

region have also engaged on a smaller scale in efforts to

request international courts to evaluate

the

behaviour

of

states.

In

t\vo cases

before

the International Court of Justice (the IC] Serbia and its clients were

charged

with

genocide.

The

first rime the ICJ ,vas asked

to

make an intervention into the legal

definit:ion of genocide it affirrned the restrictive definition used

by

interna

tional criminal tribunals.

21

In

its complaint against Serbia and Montenegro)

Bosnia

and

I--Ierzegovina asked

the

JCJ to detern1ine

that the conduct of

carr1paigns against civilians

in the

war ,vas genocidal, but

the

chamber

n1aintained

the

position that only

the

1995 Srebrenica killings constituted an

'act of genocide:-. fhe court ruled in February 2007 that Serbia \Vas guilty of

failure

to

prevent and punish genocide

but

was

guilty

neirher of genocide nor

of

complicity in genocide. Clearly,

the

ruling, which as

the

IC:J's first ruling

on the crime of genocide was meant to create a precedent, sought to apply a

narrow definition of the crime and a high standard

of

evidence.

As

a consequence

the

killings at Srebrenica in 1995 were found to constitute genocide

but

the

intimidation and expulsion of civilians and the destn1ction of cultural property

were not.

They

also established that direct and 'fully conclusive' evidence

of

intent \Vas required rather rhan de1nonstraring intent

through

a 'pattern

of

acts'

(paras. 76-81), and similarly required that the 'complete dependence' (paras.

138-52) of

client paramilitary forces on

their

sponsors had

to

be demonstrated

in order to establish the existence

of

relations

of

com1nand and control.

It

would

appear that in its decision

the IC:J

sought

to

reduce the

number of

genocide

cases

that

could be

brought

before it.

The

ICJ ruling in the case

is

generally

consistent with the narrow definition

of

the crime of genocide applied by ICTY.

Another

genocide case, filed against Serbia by Croatia in

1999,

has yet to

be heard. The Serbian government has announced its intention to respond

with

a counter-complaint charging Croatia

with

genocide. While this devel

opment

is

likely

to

make

the

progress

of

the case more complicated,

it

may

indicate at

the same

time

the degree to which the filing of charges and

counter-charges represents less a legal process and more a process of competi

tion for political advantage.

1~he continued

stretching out

of the time by

which any pleadings before the court

mighr

begin could be thought of as the

IC_J offering the

opportunity

for politicians to resolve a oolitical disoute.

C mning to

T

ernzs

u1ith

the Past 201

Non-judicial mechanisms: Attempts to

create

truth and

reconciliation commissions

ln

addition to judicial n1echanis1ns, there have also been several

attempts

since the ate 1990s to create truth and reconciliation commissions' (YR.Cs)

in the region. Three

attempts

at creating a commission in Bosnia took place

between

1997

and

2006,

one in

2001-3

in Serbia (then still officially

united

with

Montenegro

as

the Federal Republic

of

Yugoslavia

FRY), and, since

2006,

there has been an ongoing regional initiative by three

NGOs

from

Bosnia, Croatia

and

Serbia. In Bosnia, decisions

\Vere

also taken to establish

two 'local' corn1nissions - one on Srebrenica and one on Sarajevo - of which

only the former completed its work and produced a report.

Overall, these

attempts

to create

truth

commissions have

not

produced any

significant results.

Although

the current regional initiative

is

being under

taken very thoroughly,

it

is still too early to kno\v ,vhether

it

will actually

lead

to the

establishment of a regional commission and n1any remain sceptical

about the

chances of its success.

There have been three principal reasons for the failure

to

create

truth

comn1issions

until

now: a lack

of genuine

political \\rill

among

power-holders

in the region

to

engage constructively \Vith processes

of

confronting the recent

past; a ccHnplicated relationship

with

international actors,

including the

ICT .{,

which have shaped domestic processes in \vays char have not al\vays

been conducive to quests for truth and reconciliation'; and a deep and still

enduring

proble1n of divisive and fragmented visions

of

the recent past

throughout the

former

{

ugoslavia, encountered not only on an inter-ethnic

level but even \Vithin civil societies of the san1e national group.

Bosnia and Herzegovina

The

idea

of

a truth and reconciliation comn1ission for the former Yugoslavia

first appeared in the debates surrounding the creation of the ICTY in 1993.

In the United

States, those sceptical

about

the possibility of prosecuting war

criminals in rhe former Yugoslavia argued

that

a better way fotward was to

create a UN-sponsored

truth

commission similar to the one that had recently

completed its ,vork on

El

Salvador.

22

The idea resurfaced r,vo years later,

v..rhen

in side-letters

to

the Dayton Peace Agreement the parries

to

the

Bosnian war agreed to establish an 'international commission of inquiry

into the

causes,

conduct

and consequences

of

the recent conflict' in

the

fonner

Yugoslavia that was to include representatives of governments from the

region along

with

'distinguished international experts'.

2

3

Frorn the start, the organization that was most deeply involved in rhe

process of creating a TR(~ for Bosnia was the

lJnited

Stares Institute for Peace

(USIP); according to some,

it

was

the

n1otor of the whole endeavour.

24

1 he

USIP organized a nurnber

of

meetings in the late 1990s

with

Bosnian poli-

tical and

relio-innc:

]p,i,--l,.,rc ;"_.,-;,..,.,_,

. fh : .L

J

_ -


7/12

202

Cv1,2ing

to fertns 1uith the Pasl

such

n1eeting,

led by Neil Kritz of the lJSIP, in Strasbourg in July 1997,

explored the possibility of a truth and reconciliation con1mission.

25

~he_ most

enthusiastic

dornestic

support for the initiative came

from Jakob F1nc1, the

president of

Bosnia's

Jewish Community and

executive

director of the coun

try s

Open Society

Fund.

Follov.ring

the Strasbourg

n1eering,

Kritz drafted

a

commission stature, which he then proposed to the three n1embers of the

d

.

. . 6

Bosnian

Presidency, religious leaders

an

c1v1 society representatives.

According to Kritz, the main

characteristics

of such

a

truth

commi~s.ion were

that it would not offer

amnesties,

but focus on

fact-finding

including estab

lishing

accurate

numbers

of people

killed in

the war.

lt

,vou]d also

be

un.igue

in documenting acts of

heroism

by

ordinary

citizens from all nauonal

groups

- ~vhich was n1eant

to help break down

collective

bla~e .

27

~-Iowever,

when

the

Bosnian collective

presidency

rejected

the initiative spring

1998

che

project came to

a

standstill. Later

Kritz and

Finci

noted that ICTY ~ffi

cials

bad not supported the establishment of

a Bosnian

TRC at

the

nme

because

it

might conflict

with

the

work

of the ~fribunaL

They

also

explained

that the Serb member of Bosnia's collective presidency, Mo1nCilo KrajiSnik,

had insisted that he would personally select the Serb members

of

the com

mission and that the Bosnian Presidency would need to

approve

the TRC s

final

report prior to publication.

As they

noted, rather than agreeing to

these

crippling compron1ises, the 1 llC project was

tabled .

28

In 2000, with KrajiSnik extradited to The I-Iague and the ICTY dee~ed to

have built a n1ore solid fOundation', the

idea of

a

TRC

for Bosnia was

revived. A petition

calling

for a TRC was

signed

by over a hundred

NGO

and

civil society representatives

and

a

National

Association for

the Establishment

of

a

Truth and Reconciliation Commission

was created under Finci's

direc

tion. In

February

that year a round table in Sarajevo brought

rogerher

some

80

men1bers

of

various

domestic and international organizations,

.'ho

stated

their

support for the initiative. 11owever, Gavin Ruxton,

rhe ICTY

rep.re

sentative

outlined the main

objections to

the TRC proposal, among which

figured the fear that the TRC would interfere with the Tribunal's work: diat

there would

be

problems of overlap in the

two

bodies'

investigative funcnons,

that

the

TRC

could underrnine decisions

by

the

ICTY

(for exan1ple

on whether

genocide had been committed),

or

that public

hearin~s

~ight jeorardize

the

Tribunal s witness protection programme

or

secret 1ndict1nents.-

9

In

May

2001 the Tribunal s president

Claude

Jorda

recognized

in

a speech

in

Sarajevo

that ;he

fRC

was 'a national initiative

and, as

such, falls within

your

sovereign

province', at the same time noting that such a bo


8/12

204 C u1ni11g

to

Terrns tl ith the Past

the fate of the wider iniriarive for constiturional change. The elections of

October 2006

confirmed

the

deep divisions

v,,j

thin rhe Bosnian political elite

both in

regard

co

visions

of

the past and those

of the

future.

3

9

The only truth commisslon that actually can1e

into

being in post-l)ayton

Bosnia was rhe 'Commission for Investigation

of

the events

in

and around

Srebrenica between IO and 19 July 1995' (the 'Srebrenica Commission'),

established by

the

Parliament of

the

Republika Srpska (RS) in Decen1ber

2003.

40

This con1mission was nor created voluntarily by

che RS

government,

but rather as a response to a decision by Bosnia's Human Rights Cha,nber

(a

hybrid

institution of eight

foreign and six Bosnian judges set up by the

l)ayton

Accords), follo\ving numerous requests from families searching for

information

about

missing persons last seen in Srebrenica in July 1995.

'fhe

RS government

unsuccessfully appealed this decision and ultirnacely had no

choice

but

to create a co1n1nission due to the direct intervention by rhe

High

Represeocative, Paddy Ashdown. Following long debates in rhe

RS

parlia

ment

concerning rhe

C=omrr1ission's

mandate anJ membership,

it

finally began

work in early

2004

11

1--Iov.rcver,

the Com1nission faced continuing obstruction

by RS

institutions i

hich refused

to

provide documentation,

as

\vell

as

threats

to its members and their public stigmatization as 'traitors'

co

their nation -

provoking a second intervention by the High Representative in April

2004.

Ashdown also redefined

the

commission's mandate on this occasion, narro,ving

the investigation of the events that took place

in

Srebrenica in

July

1995 to

focus on disclosing unknown locations

of

mass graves

and

cornpiling a list

of

missing persons.

42

The commission's final report, produced

in

June 2004, provided the

location

of 32

mass grave sites, along

with

information concerning over

1,000

n1issing persons.

43

The

report also gave an account

of

the role played

in

the

killings by

the RS

army, police and the Ministry

of the

Interior,

including

confidential documents exposing 'Operation Krivaja' in ,vhich the attack on

Srebrenica and the executions were planned. An addendum to the report

provided in ()ctober

2004

contained a list

of

names of missing persons. In its

session

of

28 October,

the

I\S Parliament adopted

the

report's conclusion

that

'grave crimes

had

been

committed

in

the

Srebrenica region in

July

1995 in

violation

of

international humanitarian law' and

made

a formal apology to the

families

of

the Srebrenica victims.

44

Finally, following yet anot her. interven

tion of the High R.epresentarive in January

2005,

a second working

group

was set

up

by

the RS

government to produce a list

of

892 officials still

employed by the institutions of the RS despite having been involved in rhe

killings of July 1995. Some

of

the names from this confidential list were

leaked

to the

Bosnian press.

45

The

significance of the Srebrenica Commission has been subject to very

different interpretations. Whereas international representatives judged its

report to be 'a historical and revolutionary event'

46

among

Bosniaks

the

view

prevailed that the report and the apology issued by the

RS

President were

insincere and rook nlace onlv 'because Kinrr fsicl Padclv

A5;hdo,vn

v..,if'ldt-Yl

hi

c1.nning

to

Tenns llJith the Past 205

big srick'.

47

An1ong Bosnian Serbs, the commission was seen as imposed and

it was not followed up by a distinctive change in policy towards the past.

48

Although

the Commission report had taken over

the

I(~TY's verdict in rhe

case of General KrstiC for its description of the context and the events in

Srebrenica (which

undermined

the authority of the findings for many Bosnian

Serbs, who view

the ICT { as

an anti-Serb institution),

it did

not also

adopt

the

tern1 'genocide' for what had happened. In June

2005, the

same

RS

Presidens

who

had issued a fonnal apology to

the

victims

of

the n1assacre,

l)ragan CaviC, argued that 'there was no basis to speak of genocide', while RS

officials continued to n1inimize and relativize

the

crime con1mitted.

49

Indeed,

it appears

that

for the

RS

government

the

Srebrenica Comn1ission mainly

served to enable a request for the creation of a sin1ilar commission to document

the sufferings of Serbs in Sarajevo

during the

war.

1 he Sarajevo Commission was created in

June

2006. Internacional repre

sentatives refused to get involved in the project, denouncing it from the start

as 'politicized'.

Their

reluctance was probably

due

to the fact

that,

in this

instance,

the main

initiators were victim associations in

the

RS, many

of

which were linked to political parties in constant conflict with rhe Office

of

the

l{igh

Representative. Resistance also can1e frorn Bosniak politicians

reluctant to accept a

highlighting

of Serb sufferings in the capital and

the

creation

of

any 'symmetry' between Srebrenica and Sarajevo.

50

After t\vo years

of \Vrangling, Bosniak political leaders eventually compromised, bur only after

a boycott of

the

federal parliament by Serb men1bers in

May-June 2006

at

the

height of

the negoriations on constitutional change. This compromise

solution expanded the mandate of the commission to investigate the suffering

not

just

of

Serbs,

but

also of Croats, Bosniaks, Jews an


9/12

206 Cu111ing to 1 er111s u ith

the

Past

campaign

against Serbia, KoStunica also never hid his disdain fi)r the TCTY,

which he viewed

as

a biased, American-dominated and anti-Serb institution.

54

It

is

likely that he envisioned a Yugoslav TRC as a body

that

would challenge

the truth

represented by

the

Tribunal, or even possibly alleviate

Western

pressures for

the

extradition

of

MiloSeviC to

the ICTY

which were stepped

up

in spring

2001,

exactly at

the

time of the commission s creation.

55

In

2001 ther e was very littl e interest

among

W cstern gover nments for any

transitional justice 1nechanisms in Serbia other than the IC fY. 1 he lJnited

States in particular continued to condition financial aid to Serbia

through

cooperation

with the

Tribun al, specifically on MiloSeviC s ext radition. External

support for the TRC initiative catne above all from Western NGOs, notably

the

newly created lnternatiional Centre for Transitional

Justice in New

York

and

its president Alex Boraine, the former

deputy

chair

of the

South African

TRC.

Boraine was introduced

to

KoStunica in

New

York in November

2000,

when the

possibility

of

creating a

truth

commission was discussed. Ho\vever,

KoStunica set

up

the cominission

without

further consultations

with him

-

showing little consideration

of

external factors. Boraine remained

committed

to the project until the end of 2001, primarily advising the commissioners and

trying

to

establish links between the commission and possible counterparts

in

the

region.

I:Ie

organized a round table in Prague

in October 2001,

\vhich

brought

together representatives

of

the

commission

and

civil society repre

sentatives from Bosnia and Croatia. This

meeting

gave rise

to

sharp criticism

of the

commission s objectives by the

other

participants

and

ended

up as

a

complete failure.

56

Boraine effectively withdrew from the project after Prague

and

did

not

attend

the

TRC s

first public presentation

of

its \Vork in

May 2002.

Viewed very

much

as KoStunica s initiative, the comn1ission soon became a

victim

of

political infighting in

the

ruling Democratic Opposition

of

Serbia

(DOS) coalition. KoSrunica s main coalit ion partner , Pri me Ministe r DjindjiC,

showed no interest in

the

commission or indeed in any truth-seeking

process. DjindjiC n1ade it clear

that

his priority was

to

re-establish links

with

the West, kick-start econon1ic recovery, and turn Serbia into a modern,

democratic country

--

putting

the

past behind

as

quickly

as

possible.

57

Other

DOS

party leaders were also reluctant to

support the

commission.

Without

government backing, the commissioners waited for months to get office space

and a budget.

58

Over

time

even KoStunica appeared to lose interest in

the

commission.

The

commission s only subsequent contacts

with

KoStunica s

office concerned its expansion to include

nevv

members and further financing.

By the

time

the commission s fate was being decided in early

2003,

KoStunica

had clearly given

up

on

the

whole endeavour.

Along

with the

lack of sustained political support, the Yugoslav 1~RC also

had to

contend

with

deep hostility

fro1n

\Vithin Serbia s civil society, parti

cularly from those individuals

and

groups that had been the 1nost active in

the

opposition to Serbian narionalisn1 and MiloSeviC s policy

in the

1990s. For

then1, rhe idea

of

a

truth

con11nission - \vhich had been discussed since

1999

_;u,ning to

l~m,u ivith

the Prtst 207

and whi ch ha d first been publicly raised shortly after MiloSeviC s ouster by one

of

the

politicians involved

in

these deliberarions

59

-

had effectively been

hijacked by KoStunica, who had set

up the TRC

suddenly

with

no consulta

tion. There were deep misgivings about son1e of the members chosen by

KoStunica

and

considerable mistrust

about

1ts overall purpose.

60

The

commission s stated objective was:

to

investigate and determine causes

and the course of conflicts which

brought

about the disintegration of the

former state and

the

vvar,

and led

to

horrifying hurnan suffering

and

material

destruct ion in the pr eceding decade .

61

The

emphasis was

thus

placed on

historical inquiry into the causes of Yugoslavia s dis integr ation and wars.

Ar an international conference held in May 2001 in Belgrade, some

of the

commissioners defended

the

project

of

examining the historical roots

of the

Yugoslav conflict, which also included

the

role played by international factors,

arguing

rhat the

issue

of

war crimes was better left to

the IC~ry or

dornestic

tribunals.

62

One of the commissioners, the economist BoSko MijatoviC,

expressed hope

that the

commission \Vou d contribute to

our

understanding

of the

events

of the

past decade [and] help

the

world understand us and

our

behaviour and the circumstances

that

affected

the

misfortune of the forn1er

Yugoslavia .

63

According to the commiss ion s critics, this sn1acked of an

attempt

to

explain - even justify - Serbian actions

during

the 1990s

to

an international

audience, rather

than

to present the Serbian

public with

evidence

of their

government s complicity in the crimes committed against other national

groups.

64

And it

was

the

latter

that

needed, in their view,

to

be the focus

of

any credible

truth

and reconciliation process. Almost immediately following

the commi ssion s creation, the law professor Vojin DimitrijeviC and the

historian Latinka PeroviC - two prorninent anti-nationalise intellectuals -

resigned from it, publicly expressing their deep scepticism towards the whole

cndeavour.

65

The

two resignations

an


10/12

208

Cu lting

to

Ternzs

zvith the Past

rights, creating a documentary record of crin1es

committed

and enhancing the

ability

of

dornestic institutions to respond. Some

of the

more ambitious social

and moral goals associated with legal initiatives have, however, proved elusive.

~[he repeated false starts of

truth

seeking' initiatives underscore the

point that

it is

easier

to

approach the past procedurally

than

it

is

to achieve a cathartic

confrontation ,vith it. 'fransitional justice initiatives have not bridged the

cognitive divisions chat

undermine

reconciliation in the region.

Several factors have interfered

with the goals of reconciliation. In the first

place, political elites in the region have for the most part participated in

transitional justice unwillingly, seeking to satisfy internationally imposed

conditions

without

alienating more nationalistic sections of che population.

The institutions of civil society have been divided, both in terms of cheir

goals and

in

terms

of the

means they

sav..,

as appropriate for achieving them.

As time has passed since the end of arrned conflict, econorr1ic concerns have

come to appear to be more concrete

than

ones

that

seemed increasingly to be

advocated by moralistically inclined intellectuals. Similarly, judicial

institu

tions have been .inconsistent. Dornestic ones have not

emerged

completely

from the legacy

of

subordination to political institutions, while international

ones operate with a degree of distance and opacity

that affi)res.

2 Full name: International

Tribunal

for the Prosecution

of

Persons Responsible for Serious

Violations

of

International

Humanitarian

Law Corn1nitted in

the

Territory

of

the I

1

ormer

Yugoslavia since 1991.

3 Sec a letter by P. Robinson and S. Bra1nmertz

of

2

.

Noven1ber

2008

and a report by

Bran1mertz dated

24 November 2008

(http://www.icry.org/x/file/About/Reports%20and9f1

2 0 Publications/Com plerionStrategy Co mpletion_Strategy_24nov 2

008

_en. pdf).

4

The

nu1nbers cited are as

of

April

2009.

ICTY maintains a

running

record: http://www.

icty. or

g/ ec

tions/TheCases/Key Figures

International Criminal

Tribunal

for

chc

Former Yugoslavia, 'Some

of

the Tribunal's

Achievements,' hctJi://www.icty.org/sid/3 24.

6 Full


11/12

210 Co1Jti1tg to Terrrts -with the Past

12 lJnsigned, 'Vidovdanski masakr,'

l\

1

/N,

12 July 2001, p. 20.

13

OSCE lv[ission to Croatia, Bad:,r,rr,11JJd

report:

Dumwtic war criwe;

prur",fJin;p 2006

(Zagreb,

3

August

2007), p. 4.

14

A

redacted US intelligence repnn on MerCep's activities can be found at hrtp://w,.vw.foia.

cia.gov/browse_docs.asp?doc_no=0001063835. See also D. f-Iedl, 'Croatia: In1punity pre

vails,'

Tramitiuns

Ou int, 10 lJecen1ber 2005, http://www.legnostorto.com/index2.php?

option=com_content&do_pdf"'J.&id ' 11239.

15 OSCE, 'War crimes cases started in January 2004-April

2009,'

bttp://w\vw.oscebih.org/

images/WC_Starred _0409.jpg.

16 OSCE Mission

to

Bosnia and Fierzegovina, l\1oving

towardJ

a

harmunizul

;,1pp icatiu11

uf

he

law

etpplirable in war crimes cases hejiH-e

co1trts

in

Bosnia and Herzeguvitta

(Sarajevo, August 2008),

http:/ ww\v.oscebih.org/documents / 12 61 5-eng. pdf.

17 'Massacre

at

Podujevo, Kosovo', CBC News,

29

March 2004, http: lwww.cbc.ca/news/

background/batkans/crimesandcourage.html;

V.

PeriC ZimonjiC, 'Serb "Scorpions" guilty of

Srebrenica massacre',

The

fwl1:pende11t, 11 April 2007.

18 ICTY case no.

IT-95-L3/l-PT,

'Tbe prosecutor of the Tribunal against Mile MrkSiC,

l'vfiroslav RadiC and \Teselin Sljivan(anin.' All documents related

ro

the case are available at

http: wv.,w. icty.org/case/ mrksi c/4.

19 1'foniroring of cases to Bosnia-1-ferzegovina

is

reported at http://,.vww.oscebih.org/human_rights/

monitoring.asp?d"" 1.

20 OSCE Mission to Croatia, Bacl:gruund rep(Jrf: Dumwtic wtlr crimeJ

jtruaalingi

2006 (Zagreb,

3

August

2007), pp. 15-18.

21 All documents related to the case Applicatiu11

~(

the Cu111 1:ntio1t on the

Prdnttiun and

Pt11tiJh11 ~11t

of he

Cn'11m

o/Gc:,wcide (Bosnia and Herug1.rt,ina v. Serbia and ,1fontr:ncgru) can be found online at

http://www.icj-cij.org/docket/index. php?p l = 3&p2

=

3&k=f4&case"" 9 l &code= bhy&p3

'4.

22 See articles by lj. Schwartz and

A.

Neier, Htmtttn Rights Brief, Spring 1994, vol. l, no. 1,

http://ww w. we/ .amcrican.edu/hrbrief/0 1 1point.cfm.

23 Side letters to the (;eneral Framework of Agreement for Peace in Bosnia and 1-Ierzegovina,

bttp:i/state.gov/p/eur/rls/or/dayton/52601.btm.

24 See Gavin Ruxton's comn1ents

at

the roundtable 'Ttuth and Reconciliation: l1npetative

for

the Future of Bosnia-1--Ierzegovina', Sarajevo, 4 February 2000. http://www.angelfire.com/

bc2/kip/bosanski/conferences.htm.

25 'Cooperation Agree1nents in Bosnia', USIP Peace\Vatch, August 1997, http://www.usip.org/

peacewatch/ 1997 897 botnia.html.

26

'Bosnia to Form a Single

Trurh

Commission', US1P PtaceWatch, February 1998, http://

www. usi p.or

g

peacewatc h/ 1998/298/ ruth.html.

27 Kritz quoted in ibid.

28

N. J

Kritz and J. Finci, 'A Tn1th and Reconciliation Commission

in

Bosnia and Herzegovina:

An Idea Whose Time

has

Come', 1tternatio11al Law

Por1t11t,

200

, voL

3,

p.

56.

29 Ruxton in

'Truth

and Reconciliation', op. cit.

30

C. Jorda, 'The ICTY and rhe

Truth

and Reconciliation Commission in Bosnia and

Herzegovina'

(12

1{ay 200

,

Sarajevo). ICTY Press Release,

1

7 i\fay 2001, http://www.un.

org/ cty pressreal/p 5 91 -e.h m.

31

Saliba Duderija, quoted in 'Kredibilitet suda

BiH

je vaZan

za

gra(tane

BiH ,

Centar

za

istra:ZivaCko novinarstvo,

l

July 2005, http://www.cin.ba.

32 C. Jouhann cau, 'La

recherche de la "verire" entre langage international et categories 1norales

locales: Reflexions sur

la

non-creation d'une Commission VCrite et Reconciliation pour la

Bosnie-flerzegovine', unpublished paper presented at conference on 'Politics of Reconcilia

tion', Berlin, Centre }.fare Bloch, ()ctober 27, 2007.

33

I.

Delpla, 'In the Midsc of Injustice: 'fhe ICTY fron1 the Perspective of some Victim Asso

ciations', in X. Bougarel, E. I-leln1s and G. Duijzings (eds), The

New

Bosnitrn A'losaic: Iden-

titites,

1Htmorin

and iilora Claims in a Po.rt- \Var Society (Aldershot: Ashgate, 2007), pp. 211-34.

34 Adisa

Tihi(

in 'Medunarodna Konferencija: Utrvdivanje istine u post-konfliktnom

period: inicijarive i perspective na zapadnon1 Balkanu', Sarajevo, 5--6 lvfay 2006, pp. 47--48,

Coining

to

'[er1ns 1vith the Past

211

http://www. koreko1n. org/public/ r:k_files/ file/Reg_-% 20foru m %20za

96

2Orrn.n prav


12/12

212

Coiiting to Tertns U ith the Past

60 For

an

overview

of the main

critiques, see D.

IliC,

'Jugoslovenska

ko1niSija

za istinu i

pomirenje,

2001-?'

Ref no. 73.19, Ocrober

2005.

61

Komisija za

istinu i

po1nirenje, 'Osnovna pravila rada',

document in possession of

authors.

62

See

IliC, op.

cit.

63 Quoted in \ reme, 12

April

2001, p. 30.

64 Ili(,

op. cit.,

p. 65.

65 A tbicd membec ,iso eesigned, but wi,bout publicly ceitiei,ing ,be commission.

66 Jnterviews with conunission

men1bcrs,

Belgrade, November 2007

and

lvfay 2008.

67 A

full

English translation of the

honer

is available at http://listserv.buffalo.edu/cg.i-bin/wa?

A2=ind0202&L= 1JSTW

ATCH-L&P=R83099&D"'O&I-l=0&0= T&T =0.

Index

Ademovii:, .PaJil 98

Adriatic Sea 133

Agrarians (SZ) 64, 101

Agroku111erc 1

5

0

Ahtisa:,ri, NfarHi 180, 185, 191

Albanians: in interwar Yugoslavia 63;

see

also

Kosovo Albanians

Albright,

1faJdiue

168, l

79

Alexander I,

king of che

Serbs, Croats and

Slovenes

J 921-29),

nd king

of

Yugoslavia

(1929-34)

63, 69, 75,

76,

.

T?,

100, 141;

a.ssa~sinarion 14, 64, 66;

as

Crown Prince and

Regent (1914--21)

20,

21-,-22, 39

Alexandra, Princess, of Greece

111, 113

Andrijevica: rally 153

Annan,

Kofi 84-85

Ancemurale Christianitatis 17,

84

anribureaucratic revolution 136,

1:18,

139,

152--57

army, Yugoslav 47; defeflt in Second

World War

82, 101, 102, 103; ethic composirion in 1945

119; in exile 102--3; resurrection under

Mihailovi( 103

Ashdown, Pa.Jdy 188,

204-5

Associated Labour Acr (Croatia, 1976) 132

Athens: exiled government in 1 01, 1 07

Attems,

Carl

Gra(

Couo.t

35-36

Austria:

1970s

relations with 133; Reichsrnt 28,

32, 37; see

,dr/J Yugoslav dub

Austria-Hungary 10, 11, 12, 13; ar1nexation of

Bosnia-Hcu.eguvina 14;

declaration movement

27, 32-37; economic insecurities 28-30,

35-36; First World

\War

allegiances 30-32;

rnilitary revolts 36; Serbia's 19th century

dependeHCe on

13-14;

and Sourh Slav

provinces in First World \X/ar 14--24, 27-45;

Yugoslav

Comminee

on 18-19, 2

auconomy: of

/;,wuiinaJ"

67, 69, 72; federalism and

12'5, ],ii;

as

option for Bosnia 69, 70,

7J;

as

option for Kosovo 168,176,179,

180-81,

184, 186

BabiC, Acim 92

BaCka: am1exeJ by Hungary 82

Ba(ka

Palanka: workers' protests 154

Badinter Arbitr ation Commi~~iou 178, 185

BakariC, Vladirnir

l28,

135,136,145

Balkan Wars

(1912-13) 14,

19, 176-77

Balkans: Second

World

\X/ar policy 106, 107

Banac, Ivo

8

Banija: underdevelopment 123

Banja Luka 32, 84

buno;,,iJJas

67-68, 69, 70,

71-73,

75, 76, 100 -lOl

Bauer, Anrnnio, archbishop of Zagreb

39,

11

Baumau,

Zygmunt

94

Beissinger, J\1ark 170

Belgrade: captured

by

Habsburgs 31; disabled

veterans

li9,

52-56; dissident inrellecruals 146,

148; and exploitation

of

Croatia 131;

extremism 140; Kosovo Albanians

protests

156; Kosovo Serbs' protests

148,153,

16/i;

university 167; workers' protests 150,

153-54,

155, 161

Berlin,

Congress

of

24

Berti(,

Zivko

40

Bilii',

Jure

135

Bje olasica:

spons

cenrre 134

Bje ovar:

;ind

anti-Serb discrin1ination 72

Black

Hand

organisation 14

Bloc of National Agwenient 64

Boban, I.jubo 78

Bobetko,

Janko

194

Bogojevi(

(reacher) 72

Boljkovac, Josip J 39

Bolton, John 189

Boraine, Alex 206

Borisavljevi(, Zdravko 70

coming to terms with the past-dragovic soso gordy

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