Transitional Justice in Serbia: The Impact on Facing the Past

Master's Thesis 2012 49 Pages

Politics - International Politics - Region: South East Europe, Balkans



1 Introduction

2 Research Design

3 The State Policy of Dealing with the Past
3.1 A Fake Attempt at Dealing with the Past: The Yugoslav TRC
3.2 The 'Declaration Condemning the Crime in Srebrenica' (March 2010)

4 'RECOM' – The Initiative for a Transnational Post-Yugoslav TRC
4.1 Transitional Justice and 'The Region'
4.2 On the Production of Victims

5 Concluding Remarks
Other Documents Cited

1. Introduction

When states have undergone transition following violent conflict, they usually struggle to re-establish order, stability, and economic well-being in their country. Since some years now, they have been increasingly faced with another challenge: How to bring leading members of the former regime to justice and how to establish the truth about past violations of human rights? This phenomenon appeared concurrently to and is interlinked with a general shift in international law. During the 1990s, it was transformed from a pluralistic international law focusing on states as its main actors to a liberal international law that still regards states as main actors but tends to understand them as agglomerations of individuals. This liberal discourse of individuality has introduced more strongly the goal of preservation of human rights into international law.[1] That is, if states seek to be acknowledged by the 'international community', they have to guarantee human rights for their citizens. For states that have undergone transition this means clearing up violations of human rights of the former regime and bringing the former elites that are responsible for those violations to justice. Therefore, most post-transition states have adopted some measure of transitional justice. If the international community intervened into the conflict, then the instrument of transitional justice is also most likely to be imposed upon the post-conflict country.

An example for such imposition of a transitional justice measure represent the post-Yugoslav states. The disintegration of the Federal Republic of Yugoslavia into independent national states, led by Slovenia and Croatia in 1991, resulted in four wars. While the war with Slovenia was short and caused comparatively few casualties, during the war in Croatia (1991-1995) hundreds of thousands of people were displaced and 10,000-20,000 killed. In Bosnia and Herzegovina (1992-1995), it is estimated that almost 100,000 people were killed. The fourth war in Kosovo (1998-2000) resulted in 10,000 deaths. As early as 1993, the UN security council established by a resolution the International Criminal Tribunal for the former Yugoslavia (ICTY), in which all perpetrators of serious violations of the International Humanitarian Law committed on the territory of the former Yugoslavia would be tried. After the 9/11 terrorist attacks, the European Union practically took over the role of the ICTY's 'surrogate enforcer'[2] from the United States. That is, the EU performs the (unofficial) role of exerting pressure on the post-Yugoslav states to extradite war criminals to the Hague. This entails the very peculiar and interesting situation that the countries the EU exerted pressure on were very early also considered to be potential candidates for EU accession. As early as 1997, the European Union gave the post-Yugoslav countries the perspective of EU membership. For this, it extended its so-called Copenhagen criteria by two preconditions that the respective states had to comply with: (1) the full co-operation with the ICTY, and (2) the proof of good-neighbourly relations between the post-Yugoslav countries.[3] Thus, the European Union made transitional justice a part of its enlargement policy.

In this thesis, I will examine the effects of transitional justice and Europeanisation on the Republic of Serbia's policy of dealing with the past. The Republic of Serbia has shown – at different times - both refusal and assertion of Europeanisation. Refusal of Europeanisation did not contribute to an honest dealing with the past. While the assertion of Europeanisation accelerated compliance with the demands set out by the European Union, Serbia did comply mostly for reasons of strategy. That is, Serbia emphasized projects of dealing with the past mainly because they guarantee closer ties with the European Union. In this way, the European Union's capacity to shape the Serbian conception of history according to its identity is limited. Therefore, traditional Serbian narratives of its history will remain prevalent.

2. Research Design

This chapter shall elucidate the design of this research work. For the most part of it, this study will analyse the case of the Republic of Serbia. While single case studies are frequently criticized for the modest contribution they make to theory building, I will emphasize the merits of this approach for my research. The selection of the case of the Republic of Serbia shall be justified. I will broadly explain why I divided up the empirical part of my study into two chapters, one focusing mainly on the policy of the state, the other on an initiative put forward by civil society organisations. Finally, the sources the second part of this study mainly draws on will be explained.

In chapter 1 I argued that while the assertion of Europeanisation accelerated compliance with the demands set out by the European Union, Serbia did comply mostly for reasons of strategy. In this way, the European Union's capacity to shape the Serbian conception of history according to its identity is limited. Therefore, traditional Serbian narratives of its history will remain prevalent. I selected the Republic of Serbia as the object of this study because Serbia usually plays a key role in region of the post-Yugoslav countries. However, as yet, is has only reached a midfield position in terms of the status in the EU accession negotiations.

For this piece of research I use the methodology of a qualitative case study. In the literature on the methods of social science, (single) case studies are frequently criticized, in contrast to comparative research designs, for the modest contribution they make to theory building. It is said that results of comparative studies have greater explanatory power as the theoretical insights are deduced from at least two cases. This is unlike the results from (single) case studies where theories are readily applicable only to the respective case under analysis. However, comparative studies do also have their weaknesses. Researches that analyse the record of Europeanization and/or transitional justice implementation in post-Yugoslav states frequently chose Croatia and Serbia as their cases.[4] While these studies are generally critical of the developments in both states, they usually present Croatia as a stringent Europeaniser or implementer while Serbia is a laggard in all these respects. While these findings are true in principle, these comparative studies generalise each case and thus tend to overlook changes within them. This case study intends to reveal these changes in the Republic of Serbia's policy of coming to terms with its violent past. Chapter 3 therefore analyses the state's responses to pressure for transitional justice as well as its own efforts of dealing with the past. It does so for the time period beginning with the transition of October 2000 until the end of 2011. While most events that are dealt with in this chapter have already received some scholarly attention, they have as yet not been put in the context of analysing Serbia's policy of dealing with the past as a whole.

Transitional Justice is a recent, yet burgeoning field of research. Because of the huge engagement of institutions of transitional justice, the post-Yugoslav area has also received extensive attention by scholars. Most of the studies represent legal assessments of court proceedings at the International Criminal Tribunal for the Former Yugoslavia (ICTY). However, there is also a significant body of literature that pertains to political science and which deals with the effects of transitional justice on Serbia. A very systematic examination of the effects of the ICTY proceedings on the perception of the Serbian society on its past was presented by Diane Orentlicher in her study 'Shrinking the Space for Denial: The Impact of the ICTY in Serbia' [5]. Other research concentrate on the relationship between the ICTY, the European Union and the Western Balkan countries in order to analyse by what factors a transitional justice conditionality policy is shaped. Noteworthy is here a thorough study presented by Victor Peskin and Mieczysław P. Boduszynski.[6]

Chapter 4 of this study concentrates on the initiative of several human rights NGOs in the post-Yugoslav countries to establish a transnational truth commission. This chapter generally analyses the discourses of several Serbian NGOs concerned with transitional justice. It draws on semi-structured, 30-90 minute-long interviews with leading representatives of these organisations.

3. The State Policy of Dealing with the Past

This chapter examines the policy of reconciliation as has been pursued by the government of the Republic of Serbia since the transition of 2000. Despite the brevity of the period under analysis, the state policy towards reconciliation and dealing with the past has seen significant change since then. These changes, as is argued below, allow of a broad subdivision of the time period into two phases: the first, lasting from the transition to the parliamentary elections in 2008, is characterised by denial of war crimes or a marked reluctance at coming to terms with the past – however successful – within government generally. The second phase – being placed beginning with the parliamentary elections in 2008 and still ongoing – is distinct from the first phase in the government and parliament's greater willingness of dealing with Serbia's past wrongs. This willingness, however, comes with significant strings attached and is quite obviously tied to Serbia's longing for its accession to the European Union.

At the outset, the chapter describes in detail two instances of the state's policy of dealing with its past – each being representative of one of the phases named above. The first example will be the Yugoslav Truth and Reconciliation Commission, established in 2001 and thus being an example of the first phase. The chapter then continues by explaining the example representative of the second phase – the Srebrenica Declaration passed by the Serbian Parliament in March 2010. Both instances will be placed in the context that caused their existence, i.e. elucidating the prevailing pressures both domestic and international/European at the respective time.

3.1 A Fake Attempt at Dealing with the Past: The Yugoslav Truth and Reconciliation Commission (2001-2003)

The Truth and Reconciliation Commission (Komisije za istinu i pomirenje) was the first institution of the post-Milošević era allegedly tasked with confronting the recent authoritative and nationalistic past and shedding light on human rights violations and war crimes. It was established by decree of then Yugoslav president Vojislav Koštunica at the end of March 2001 and thus came just six months after the overthrow of Slobodan Milošević following the presidential elections and large-scale protests throughout the country. However, unlike the quick establishment of a TRC could suggest, responsibility for war crimes and human rights violations was not a widely shared aim of the heterogeneous opposition movement.[7] Instead, it was the enthusiasm for a possible overthrow of Slobodan Milošević that forged a bond between the 18 parties forming the Democratic Opposition of Serbia (DOS), the biggest opposition coalition that would run a candidate against Milošević in the presidential elections. The two leading figures of DOS – who would later share power as president and prime minister respectively – were entirely different characters. Vojislav Koštunica remained passive during the protests surrounding the local elections in autumn 1996 and just jumped on the democratic bandwagon when Milošević's political demise was foreseeable. He is known for his nationalist rhetoric and leader of the Democratic Party of Serbia (DSS), a party which split from the Democratic Party (DS) in 1992 over the controversy of the 'national question' in Yugoslavia. Zoran Đinđić became interested in politics when he was a student of philosophy at the University of Belgrade, informed by the critical theory of the Frankfurt School. He was arrested by police in Ljubljana in 1974 when he - together with others – organised a students' conference that intended to discuss the crisis of Yugoslav society and communism from a leftist point of view. International pressure saved him from prison. He continued his studies in West Germany and obtained a doctorate under Jürgen Habermas. After more than 10 years in exile, Đinđić returned to Serbia in 1989 where he co-founded the social-democratic Democratic Party (DS). He became mayor of Belgrade as a result of the local election in 1996 and prime minister of Serbia in 2001. The coming years until Đinđić’s assassination would be marked by political and personal struggles for the right course of Serbia and the style of Serbian politics. While Koštunica tried to entice away former supporters of Milošević's nationalism, Đinđić was a conviction politician. He regarded Serbia's history of the past 200 years as an ideological battle between modernisers that approve of reforms and anti-modernisers that would obstruct reforms. In this battle he clearly opted for the former.[8] During the months of transition, many activists from civil society organisations decided to join the parties of the DOS. They were reluctantly accepted in order to fill the mass of vacancies in the parties' managements that the election of a new, post-transition government entailed.[9] This scenario, however, does not apply to non-governmental organisations committed to human rights and transitional justice.[10] Their positions were largely marginal to the transition movement. This also becomes evident from the small constituencies that parties rooted in the pacifist and anti-war movement had had, like the Civic Alliance of Serbia (GSS). Although its leader, Goran Svilanović, assumed the prestigious post of Minister of Foreign Affairs in the new government, his party garnered merely a small share of votes and only joined parliament because it was on the list of the DOS coalition. This obvious lack of public support for organisations concerned with war crimes and human rights violation does not come as a surprise when one considers the results of a study on the public opinion of Serbian politics during the 1990s, conducted in April 2001.[11] Most generally, the study reveals a lack of knowledge about the time, course and places of wars among a majority of the interviewed. Furthermore, characteristic of many of the interviewed is their lack of accountability or even partial denial of war crimes being committed during the 1990s. In summarizing this study, Dejan Ilić even comes to the conclusion that “this data reveals a kind of tacit approval of massacres, as they were perpetrated for the sake of the nation”[12]. As this study strikingly illustrates, there was no climate in society that would permit any public institution to honestly deal with Serbia's recent past. This is bad omen for starting a truth and reconciliation commission.

However marginalised the position of human rights NGOs was, they at least managed to discuss the possible introduction of a truth commission in the Federal Republic of Yugoslavia. In October 1999, the Open Society Institute – a big financier and advisor of human rights organisations in Serbia – arranged a meeting between Alex Boraine, the architect of the TRC in South Africa, and “a wide range of people representing alternative academic organisations, students, NGOs, independent media, and representatives of the Orthodox Church”[13] in Belgrade. According to Ilić, both Boraine and representatives of the Open Society Institute considered the South African version of a TRC to be a relevant model for the Federal Republic of Yugoslavia.[14] This is indeed surprising as the character of conflict as well as the ethnic composition of the new Yugoslav state to be formed was quite different from the South African one.[15] However, it has to be taken into account that - at that time – the South African TRC received “global attention and nearly universal acclaim”[16] among human rights activists and is – perhaps too hastily in hindsight - credited with contributing to democracy and stabilising state institutions in South Africa. Yet, despite the involvement of key figures of the South African TRC, it is to be assumed that the Yugoslav Truth and Reconciliation Commission was only vaguely planned when the presidential elections ushered in a new democratic era.[17] Thus, it is all the more surprising that “practically over night”[18] president Vojislav Koštunica, on the initiative of Goran Svilanović, formed the Yugoslav TRC on 29 March 2001.[19] Before examining the mandate and the members of the commission, I present a concept that suggests to look into the power relations at the international level to explain the institution's rash establishment.

Why was the Yugoslav Truth and Reconciliation Commission established in the first place – in spite of a general lack of consensus in society and a merely vague idea of its shape? Brian Grodsky suggests the concept of 'compromise justice' to explain the allegedly inconsistent behaviour of states going through transition. States that just have overcome an authoritative past and military conflict often face formidable international pressure to pursue harsh measures of (transitional) justice (e.g. bringing commanders of war and leaders of the former regime before a court of law). If the new elite is confronted with a non-elite that opposes the prescribed course of transitional justice imposed by international actors, the new government feels compelled to find a compromise seeking to assuage both sides. They then engage in 'compromise justice', that is, they choose to pursue a mechanism that judges the leaders of the old regime more leniently than the prescribed one by international actors would. This, then, is more acceptable to the non-elite and the new government if it has decided to remain somewhat loyal to the old elite. At the same time, the new government has to signal its resoluteness to act on past violations and show that the chosen instrument is equally capable of bringing former government officials to justice.[20] Thus, Grodsky argues, 'compromise justice' is the result of the prevailing power relations: “The precise mechanism chosen is a function of the bargaining power and preferences of the two opposing pressure groups, as well as the attitudes of local elites themselves”[21]. The mechanism chosen by the newly-elected president of Yugoslavia was the Truth and Reconciliation Commission. While there was a general consensus among the government to hold Slobodan Milošević and other former members of the state elite accountable in a court of law in Serbia, what the Yugoslav version of 'compromise justice' intended to prevent was their extradition to the ICTY.[22] The international tribunal was unpopular with the Serbs from the start, mainly because it represented to many an example of victor's justice being supported by NATO and the US government that were made responsible for the air raids on Serbia in 1999.[23] President Koštunica reverted to the argument that cooperation with the ICTY were incompatible with the constitution of the federal republic in order to explain his animosity towards The Hague.[24] Indeed, because senior western politicians believed pressure on Serbia to extradite Milošević and other members of the former political elite could endanger its fledgling democracy, they declared cooperation with the ICTY not urgent in the immediate weeks after the overthrow of the Milošević regime.[25] This position changed, however. In early 2001, the US government, under pressure from the ICTY's chief prosecutor Carla del Ponte, decided to make further aid to Serbia conditional upon its cooperation with the international tribunal.[26] In an attempt to appease foreign diplomats, Koštunica launched a truth and reconciliation commission.[27] In so doing, he followed the logic of 'compromise justice':[28] Koštunica not only chose a weak mechanism of transitional justice – compared to trials at the international tribunal – he again rendered the Yugoslav Truth and Reconciliation Commission even less authoritative and conducive to the purpose of transitional justice. For instance, unlike recommended by his foreign minister, he extended the period of operation from one-and-a-half years to three years,[29] obviously intending to delay extraditions to the ICTY in this way.[30] More than that, the projected commission would not be granted the powers to subpoena witness or demand evidence from institutions. It generally lacked any legal stature and rather was conceived as a consultative body.31 However, serving as an instrument of 'compromise justice' was not the only purpose of the Yugoslav Truth and Reconciliation Commission. As the following sections suggest, the TRC endeavoured to present a Serbian story of the wars in the 1990s and legitimise its atrocities with the suffering of Serbs in the earlier past.


[1] cf. Krisch, Nico (2004). Amerikanische Hegemonie und liberale Revolution im Völkerrecht. Der Staat 45(1), pp. 279/80.

[2] cf. Peskin, Victor and Mieczysław P. Boduszynski (2011). Balancing International Justice in the Balkans: Surrogate Enforcers, Uncertain Transitions and the Road to Europe. Journal of Transitional Justice 5(1).

[3] cf. Schlußfolgerungen des Rates zur Anwendung der Konditionalität bei der Entwicklung der Beziehungen

zwischen der Europäischen Union und bestimmten Ländern Südosteuropas. <http://europa.eu/archives/ bulletin/de/9704/p202001.htm>, last access: 14 June 2011.

[4] For instance cf. Subotić, Jelena (2011). Europe is a State of Mind: Identity and Europeanization in the Balkans. International Studies Quarterly 55(1), Subotić, Jelena (2009). The Paradox of International Justice Compliance. The International Journal of Transitional Justice 3 Grodsky, Brian (2009). International Prosecutions and Domestic Politics: The Use of Truth Commissions as Compromise Justice in Serbia and Croatia. International Studies Review 11(4).

[5] Orentlicher, Diane F. (2008). Shrinking the Space for Denial – The Impact of the ICTY on Serbia. Open Society Justice Initiative, May 2008.

[6] Peskin, Victor and Mieczysław P. Boduszynski (2011). Balancing International Justice in the Balkans: Surrogate Enforcers, Uncertain Transitions and the Road to Europe. Journal of Transitional Justice 5(1).

[7] cf. Ilić, Dejan (2004). The Yugoslav Truth and Reconciliation Commission - Overcoming Cognitive Blocks. Eurozine 23.04.2004, p. 2.

[8] cf. Biserko, Sonja (2008). Macht und Ohnmacht der Zivilgesellschaft. in: Becker, Jens and Achim Engelberg (eds.) Serbien nach den Kriegen. Frankfurt a.M., p. 221.

[9] Among those organisations was the prominent youth-movementOtpor.Otpor officially joined the DS in 2003. As Sonja Biserko points out, the civil society sector was regarded by many established parties as competitors as they apparently behaved as if they were part of the government. Indeed, during the months of transition, some members of NGOs acted on behalf of their organisations and ministries, which caused a legitimacy crisis. Cf. Biserko, Sonja (2008), p. 220.

[10] In particular the Humanitarian Law Center (HLC) and the Helsinki Committee for Human Rights in Serbia that were founded in 1992 and 1994, respectively.

[11] The complete study is available in: Logar, Svetlana and Srdjan Bogosavljevic (2001) Vidjenje istine u Srbiji [Perceptions of truth in Serbia], Rec 62, pp. 7−34; a good summary of the study can be found in Ilić, Dejan (2004), pp. 3-5.

[12] Ilić, Dejan (2004), p. 4.

[13] Alex Boraine quoted in Ilić, Dejan (2004), p.7.

[14] cf. Ilić, Dejan (2004), p.7.

[15] The flaws of the conception of the Yugoslav TRC shall be dealt with below.

[16] Wiebelhaus-Brahm, Eric (2010). Truth Commission and Transitional Societies. The Impact on Human Rights and Democracy. London, p. 35.

[17] Indicative of this, besides other facts, is that Alex Boraine was denied visa to enter the country for a second meeting in April 2000.

[18] Grodsky, Brian (2009). International Prosecutions and Domestic Politics: The Use of Truth Commissions as Compromise Justice in Serbia and Croatia. International Studies Review 11(4), p. 696.

[19] cf. Ilić, Dejan (2004), p.8.

[20] Grodsky, Brian (2009), S. 692.

[21] Ibid.

[22] Slobodan Milošević was indicted in May 1999 by the International Criminal Court for the former Yugoslavia for war crimes and crimes against humanity.

[23] Reasons for the animosity of many Serbs towards the ICTY shall be discussed later in detail.

[24] cf. Peskin, Victor and Mieczysław P. Boduszynski (2011). Balancing International Justice in the Balkans: Surrogate Enforcers, Uncertain Transitions and the Road to Europe. Journal of Transitional Justice 5(1), p. 59.

[25] cf. ibid.

[26] cf. ibid, p. 60.

[27] This argument is also supported by the view of a representative of a human rights NGO in Serbia: “So it was obvious from the beginning that it [the truth commission, C.F.] was just made in order to say to the international community that Serbia will deal with some of the facts (...)”, see interview 3.

[28] Truth commissions, used as an instrument of 'compromise justice' should also be in themselves weak. He writes: “Instrumentalization of justice should render chosen (domestically unpopular) policies bigger in name than in action, lacking powers to independently and forcefully execute their mission. (…) And truth commissions might be locally invisible, drawn out and weak.” cf. p. 693.

[29] The extended time-span for investigations really is a sign of weakness as the final reports of truth commissions are supposed to contain a list of recommended reforms of state institutions. Those reforms, however, are more likely to happen after one and a half years than three years after transition.

[30] cf. ibid, p. 696/97. The goal of delaying transfers – even though naive in hindsight – seemed relevant, as it was planned, as of 2001, to close the ad hoc international tribunal for the former Yugoslavia by the end of the decade.

[31] cf. ibid, p. 696.


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Title: Transitional Justice in Serbia: The Impact on Facing the Past