Milan Rakita
Humanitarian Law Center, Serbia and Montenegro

Transitional Justice Strategy in Serbia

After finishing of armed conflicts in the former Yugoslavia the major problem standing in front of the new independent countries was how to deal with legacy of grave human rights violations and war crimes, or, how to implement transitional justice strategy in the social context determined by widespread denial and silence, where, continuously, societies glorify war crimes perpetrators as heroes, "our" nation as victim, and, victims of another as collateral damage, which happens in every war.
In other words, the main question is how to pave the way for dealing with the past and how to implement transitional justice instruments in order to confront rule of law and full respect of human rights to armed conflict legacy.

Having in mind nature of the conflict where three former Yugoslav republics, Bosnia and Herzegovina, Croatia, and Serbia have their separate vision of the 1990s clashes, regional character of the conflict created Yugoslav case far more complex then, more or less successful examples like South Africa, Chile or Argentina, where transitional justice instruments provided, at least, good start for democratic development. Nevertheless, nature of the Yugoslav conflict is unbearable in the contexts of those countries and because of that seeks unique and sophisticated approach. Thus, any proposed transitional justice strategy has to have prefix "regional" in order to successfully "reconcile" communities involved in the conflict and human rights violations.
Although some bilateral agreements were signed, in the essence, they are very limited because of inexistence of trilateral involvements. For example, borders and visa regimes are mostly eliminated between Serbia, Bosnia and Croatia, in administrative terms, but not in terms of cooperation between institutional bodies, responsible to deal with humiliation of human rights like war crimes prosecutors’ offices or investigative bodies in these three respective countries.
However, even bilateral agreements were reached particular improvement is obscured by widespread denial. Thus, war crimes are still taboo issues on the high-level communication between governmental structures. Additionally, it should be taken in account process undertook by Bosnia and Croatia against Serbia before International Court of Justice. This is also reason why borders, although administratively overcome, psychologically are much firmer especially on the level of common people and victims - perpetrators of war crimes are still secured behind the border of another state, and victims are still unsatisfied behind borders] of another.
Thus, specificity of post-conflict dealing with the past in former Yugoslavia create a vision that governmental or civil society projects has to be coordinated and implemented together with institutions and organizations from Serbia, Croatia, Bosnia and Herzegovina, as well as Kosovo.

Overall approach toward healing of the wounds produced through systematic violations of human rights is consisted of three coherent elements:
1) truth telling, in which stereotypes and distortions of the past are terminated, setting the historical record straight, establishing trust across ethnic-religious divides but also rehabilitating the victims of past atrocity,
2) justice and accountability, involves providing justice and reparations for victims of past crimes, in this way restoring dignity of victims and compensating their families; ending impunity for those who have committed crimes in the past; and countering the culture of illegality by pushing for relevant litigation and new/amended legislation, and
3) reconciliation for deterrence, ultimate goal of the process of dealing with the past that specifically means reconciling people and societies with the truth about their past; and, on the other, reconciling ethnic or national communities after the bitter experiences of inter-ethnic conflict and violence.

Bearing in mind the regional scope of the ex-Yugoslav problem, it is important to find sophisticated tools for triggering the process of dealing with the past. As it was stressed the Yugoslav case is far different from South Africa and South American cases. Going in that direction it is necessary to have discussion why traditional mechanisms as such cannot be implemented in the ex-Yugoslav context.
For instance, Truth Commissions cannot be implied in the context of former Yugoslavia, at least, considering composition of that body, range of work and aims that should be reached. Shortage in performing of any of mentioned obstacles will be the reason of loosing credibility and support by all sides.
However, as it was mentioned earlier the complicity and exclusivity of the Yugoslav case raise awareness that Truth Commission cannot be organized on the way that it will be accepted by all warring sides. Thus, having in mind nature of Yugoslav conflict, any similar body has to be product of firm regional cooperation. If some elite supports the idea of Truth Commission creation, they must answer on following questions - who are credible people which all three sides, or two sides, considering Serbs and Albanians, will accept? Considering Argentinean case, the answer was - NGO activists.
Bearing in mind that problem from Serbian perspective, it is obvious that there is no any organization in Bosnia or Croatia, at least not powerful, which speaks up loudly about Serbs as victims. From the other side, Muslims, Croats and Albanians may find certain NGOs from Serbia, which raise public awareness about what Serbian forces have done to those ethic groups, like HLC. However, for Serbs these organizations are colloquially defined as anti-Serb organizations.
Beside that political elites from all three sides will discover something inappropriate for them in creating of such a body, in political sense, since of widespread political atmosphere and thoughts of majority electorates who would not support political option, which considers domestic institutions and their members accountable for the events from the past. Thus, in such context every state has their own vision of the crimes and history, therefore, in such occasion creation of Truth Commission seems as “mission impossible”. Also in addition, there is no reparation strategy and witness protection law in Serbia. Beside that, members of institutions and individuals that should deal with human rights violations like judges, prosecutors, police, army officials, attorneys at law, intellectual elite, politicians and NGO activists are not empowered with sufficient knowledge about what should have been done and how.

Since state institutions cannot form any sustainable body which on comprehensive way would collect evidences and formulate new historical record, thus NGOs appeared to find perspective through their network toward making of the record, such as forming of comprehensive data base which should involve work of regional NGOs, especially toward research and documenting of victims, victims families and eye-witnesses’ testimonies.

ICTY documentation build-up

With the announcement of the ICTY completion strategy (closing all investigations by the end of 2004, all trails by 2008, and all appeals by 2010), the transfer of knowledge, documentation and eventually cases from the Tribunal to local jurisdictions acquires particular importance. Thus, in the process of transitional justice strategy creation ICTY documents show themselves as viable material as institutional testimony about human rights violations from the past. They particularly have bigger importance regarding to inexistence of information in local media about victims and things they passed through, in one hand, and lot of information about perpetrators and their “heroism”. Thus, this approach is of the utmost importance because of existing historical gaps that created fertile land for the overall regional denial. After making verdicts historical record about the past can be formed and pave path toward the truth about events from the past.

Above mentioned difficulties in creating of Truth Commission within Yugoslav case, which has aroused interest of NGOs in finding of another mechanism that will establish truth telling pillar as a preparatory stage for raising of public awareness about past atrocities. One may be public debate about particular event, like mass graves or concentration camps, not excluding constantly informing of society, through MASS media about those events. It is necessary to call victims, their families and eyewitnesses on such debates in order to give, particularly to victims, importance and floor for explaining what Serbian forces have done to them. On this way, public debates function as a quasi and unofficial Truth Commission. This is the way how is possible to overcome shortage of institutional involvement, but it opens area to push, for example, parliament to organize specific investigative parliamentary bodies which will deal with NGO quotations. On the other hand, war crimes atrocities would be matter of regular parliamentary sessions. In the organizing of such events and bodies materials from ICTY, as it was mentioned earlier, may give necessary materials.

Justice/Accountability

The second element of dealing with the past process is Transitional Justice and Accountability. As it is known, it involves providing justice and reparations for victims of past crimes, in this way restoring the dignity of victims and compensating their families; ending impunity for those who have committed crimes in the past; and countering the culture of illegality by pushing for relevant litigation and new/amended legislation.

After adoption of law on prosecuting war crimes perpetrators in July 2003 special institutions War Crimes Chamber and War crimes Prosecutor Office were formed. However, public attitudes reinforce culture of silence and denial that is also supported by unwillingness of political elites to initiate a process for dealing with the past by committing the political will and resources that are necessary. These attitudes and inaction are constantly challenged by the persistent intervention of ICTY indictments, requests for transfer of indicted persons, and prosecutions, in the transitional politics of the region. With the announcement of the ICTY completion strategy and the pending transfer of cases from The Hague Tribunal to domestic jurisdictions, the imperative of establishing justice and accountability becomes even more urgent. Furthermore, domestic war crimes trials in the target countries are debilitated by selectivity of investigation and prosecution, lack of witness protection legislation and programs, and questionable independence and ability for initiative on the part of local judiciaries. On this way, without victims/witness protection program it is difficult to expect that witnesses will come to give evidence before domestic courts.
In that space, role of NGOs is dominant since through their informal contacts with NGO partners from other former Yugoslav republics, it is possible to find eligible witnesses and to establish trust. This is the case with the HLC which is involved in the ongoing war crimes trial in Serbia as victims advocate counsel. Through this project HLC found eligible witnesses. On this way it supports functioning of the domestic war crimes prosecutor office. In the line with this project HLC gives professional advice to victim families by explaining of judicial procedures, psychological support and cooperates with Serbian Ministry of Interior providing safety for witnesses as well as their families.
Also, lack of bilateral or trilateral agreements in the frames of dealing with the past process especially considering victims and witnesses may be overcome with the same action. Therefore, HLC made initial contact with the Ministry of Justice in Croatia and became a bridge between that institution and war crimes prosecutor office in Serbia that also supports ongoing war crimes trial in Serbia (case against 17 Serbs, who executed around 200 Croatian war prisoners in Vukovar, in November 1991).

Difficulties in developing of transitional justice instruments and prosecuting war crimes perpetrators can be also shown through assassination of the Serbian Prime Minister Zoran Djindjic. That example clearly states important connection between organized crime and war crimes perpetrators, which consequences may appear after introducing of political changes and transitional justice program. Zoran Djindjic made important step transferring Slobodan Milosevic to ICTY, respecting international obligations. That act has obviously scared certain former or current institutional officials, involved in human rights violations and war crimes, especially secret service and army officials which, through network of organized crime formed informal group of people who under operation “Stop to Hague” organized assassination of the Prime Minister. That event showed in which atmosphere war crimes trials should take place, and how difficult is to define proper transitional justice strategy.

Reparations

Inexistence of organized reparation policy goes parallel with unsustainable truth telling process since those kinds of activities give necessary logistical support to reparations as transitional justice mechanism. Without truth telling incentives is difficult to explain why there is a need to satisfy ethnic groups who colloquially are “enemies” and proverbial war crimes perpetrators. In accordance with mentioned explanation how difficult is to structure truth telling in the political atmosphere of denial, the only way of dealing with the reparations is through legal counselling that is mostly provided by NGO projects. NGO function mostly as victims advocate counsel. Some NGO, like HLC counsel Muslims and Albanians from Southern Serbia and Kosovo, and also Romani mostly in proceedings for reparation of material damage.
In most of the cases proposed material compensation is inadequate for performed violations of human rights, which is another reason why reparations strategy has to be implemented through institutional level. Insufficient compensation can additionally harm victims and show state ignorance toward certain aspects of human rights violations. As a product of this approach resocialization of victims are questionable, so as changes of political atmosphere in which human rights abusing were happening. On the other hand, governmental institutions inaction toward adequate reparations depend of political interest of the ruling elite in dealing with certain cases.

In almost all transitional states is very problematic to implement firm material reparation policy since it is very difficult to give necessary and acceptable compensation, first, because of failed economy, thus any available lump some cannot give adequate satisfaction. Putting this aside, it must said that political elite in Serbia is aware that reparation policy is important but it applies double standard policy. Every day political orientation form approach to compensation. For example, government is more interested in dealing with victims of police torture during action “Sober” and state of emergency that started after assassination of the Prime Minister. It does not mean that people whose rights were violated during operation “Sober” should not get that compensation, it means that government does not have the same approach toward other cases of human rights violations and that its decisions and activities depends on political interests, but not to human rights protection policy to every category of people. Therefore, policy of selectivity cannot lead to forming of efficient transitional justice policy, and, in this case, reparation strategy.

Institutional reforms

Institutional reforms in general mean introducing of new legislation processes (adoption of lustration or vetting law; witness protection law;) and founding of new institutions (Minority council etc.). The most important dimension of this process certainly is reforming of bureaucratic apparatus, security service, police and army through lustration and vetting process. It generally means purging institutions from white collar bureaucrats, officers and disbanding of certain armed units which humiliated human rights and replacing them with new professionals.

As it was mentioned before, reforms were performed on the very basic scale, and they do not create any integrated groupings of instruments but stand separately which show that there is no organized strategy for dealing with justice changes. For example, although war crimes prosecutor office and war crimes chamber were found after adoption of the above mentioned law there is still not witness protection law, which is the basic element in introduction of rule of law and implementing of international judicial standards. So inexistence of witness protection law referred that there is no institutional framework for dealing with human rights atrocities form the past and that Serbia still is in the proto stadium considering current development of transitional justice strategy.

Lustration is the process that is very familiar to former communist block countries. In June, 2003 “Accountability for human rights violations Act” was adopted in Serbian Parliament and it was based on the Hungarian lustration law. Namely, Serbian law partly includes lustration process, through firing of officials, and vetting process, through appointing of new.
However, this law still does not function and there are many reasons for that. The law does not provide screening of public officials, which violated the law, therefore victims cannot see how state confront the past, and functions in their names; law considers just human rights violations without mentioning of war crimes; it deals with high rank officials, not entering in the frame of middle or law rank officials; the law does not consider NGO documents, but just governmental ones, mostly security service documents, that, generally cannot be defined as credible in totality. In this occasion, truth telling activity, supported by NGO documents are things of strongest importance, since their documents are much acceptable and based on views of eye-witnesses and victims which comes from other ethnic groups.
Going in the same way only organized partnership between NGOs as lobby group for changes, can bring awareness to the public about public officials. From the other side, in the line with previously stated, it is clear that the same coalition should be created on the regional level, in order to support screening of white collar officials from the region. Inexistence of this activity reflects that old forces still are powerful in every post war society. This is the case with Serbia, since current government is supported by Slobodan Milosevic’s party. Screening of public officials from Milosevic’s time will lead toward loosing of Milosevic’s party support. Thus, government must go in line with certain demands which come from this party. This was the case with adoption of law on material help to family of ICTY indicted people. The law was repelled by Constitutional court, but it clearly referred political climate and importance of Milosevic’s party in Serbian political setting.

Instead of conclusion

Beside noticed unwillingness of political elite to perform transitional justice strategy, it can be seen lack of capacity, referring to knowledge how transitional justice strategy should be constructed and, also, which people and institutions should perform proposed actions. Similarly, organizations and individuals willing to confront the legacy of the past with moral society, to raise awareness about human rights violations, to make accountable all those involved in war crimes and to reconcile communities need to be additionally trained in transitional justice. Thus, the basic step in defining of transitional justice strategy is to build capacity of institutions and individuals who would deal with violations of human rights, but having in mind specificity of Serbian case. This precisely means stressing of justice and accountability process, supporting cooperation with ICTY and building capacity of domestic institutions like war crimes chamber and war crimes prosecutor office.