Obstruction and blockade of transitional justice in post-Yugoslav countries

Obstruction and blockade of transitional justice in post-Yugoslav countries

February 28^th, 2017

The process of establishing transitional justice in the states created by the breakup of the former SFRJ is going through a serious crisis.  The main reasons behind this lie in the lack of political will among the newly-elected administrations across the region to prosecute war criminals, the weakness of state institutions (still ineffective, almost 17 years after the war, and still completely lacking in independence), the surge of extreme nationalism, the cessation of all dialogue about the past with the civil society, the (continuing) denial of access to state archives, and the EU’s inconsistent support for transitional justice in the Balkans.

There is virtually no progress in war crimes trials in the entire region.  The Hague Tribunal’s whole legacy is being completely ignored when it comes to opening new cases or raising new indictments.  In Serbia and Croatia in particular, there is absolutely no political support for trials involving command responsibility, especially when the accused belong to “our own” ethnic group.  The ever-growing feeling of distrust in judicial institutions among the victims is especially conspicuous.  Up until 2010, it was Serbia that had been making the most progress in terms of conducting war crimes trials involving victims and witnesses from other groups and states, namely Croatia, B&H and Kosovo.  However, since the guilty verdicts in the first instance for mass atrocities in Ovčara, Lovas and Ćuška were overturned on appeal, the victims’ families are no longer willing to testify before the Serbian courts, and find themselves further discouraged by frequent and unreasonable procedural delays and adjournments.

Serbia has not had a War Crimes Prosecutor for over a year.  During the last two years, the OTP has often found itself the target of political attacks and accusations launched by the Serbian Parliamentary Committee for Kosovo, as well as by the President of Serbia himself.  In November of 2014, during one of its sessions, Milovan Drecun, the chair of the said committee, accused the OTP of having achieved very little in terms of prosecuting crimes against Serbs, while, at the same time, being very good at indicting Serbs over war crimes perpetrated against ethnic Albanians.  Under immense pressure from the committee members (including Momir Stojanović, indicted for war crimes by a court in Kosovo), the representatives of the OTP attempted justifying their actions (citing their inability to gather evidence or reach relevant individuals in Kosovo), rather than clarifying that the OTP’s main task is to contribute to the establishment of the rule of law in Serbia– precisely by prosecuting Serbian citizens.

When the mortal remains of 52 Kosovo Albanians were exhumed from a mass grave in Rudnica, Serbia in February of 2015, President Tomislav Nikolić openly threatened the Prosecutor, warning him to “think very carefully about what it is he’s digging up in Serbia”.

The Government of the Republic of Croatia also reacted very strongly when, in November of 2016, 10 members of the former Croatian Defense Council were arrested in B&H over their alleged involvement in war crimes perpetrated against Serbian POWs in 1992 and 1993 in Orašje, adding that it was now a member of NATO.

On the other hand, the establishment of the Special Court for War Crimes Perpetrated by Members of the KLA, represents a positive step in serving criminal justice.  This court was established as a direct result of the pressure applied by the US and the EU.   Even though it does not enjoy the support of the Opposition, or, for that matter, the larger part of Kosovo’s civil society, it represents a significant contribution to the rule of law in Kosovo from a long-term perspective.

The reactions to Bosnia’s filing of an appeal to the verdict by the International Court of Justice in the case against Serbia on charges of genocide, have served only to confirm that the current administrations in the region are trying to shield their respective states from any responsibility for illegal actions and gross human rights violations in the past.  Claiming that a re-trial would “further disrupt relations between Balkan states and nations”, that such an act reflected Bosniak hatred of Serbs and served only to humiliate Serbia and take it back 22 years into the past, Serbian and RS leaders have unequivocally shown that they do not support the EU’s position that judicial and other instruments of transitional justice are an “integral part of state and peace-building processes” (The EU’s Policy Framework on Support to Transitional Justice, 2015–2019).

The right to truth, that is, the right to know the truth, is in serious jeopardy.  All states in the region are preventing the public from accessing the archives of their armed forces and civilian authorities.  Thus, in his reply to the Humanitarian Law Center’s request for information about the former 37^th Motorized Brigade of the VJ between April and June of 1999, the Serbian Minister of Defence decided to declare the entire archives concerning this brigade a state secret for the next 30 years.

The question of the mass graves (including Serbia’s attempt to hide and move the bodies) and the fact that there are many individuals who have been missing for a very long time, serve only to highlight the issue of the society’s right to know the truth.  As a matter of course, exhumation of known mass graves and the identification of exhumed bodies are being unnecessarily delayed and prolonged, while information about secret mass graves and the fates of around 12,000 missing persons is being kept hidden from the public.  No indictments have been raised to date against those responsible for trying to hide the bodies.  In Serbia, a civil court awarded the Serbian Army Chief damages for alleged defamation by the Humanitarian Law Center and Nataša Kandić, who had publicly stated that the general in question was unfit to hold office and unworthy of his duties, as more than 1,000 Kosovo Albanian civilians had been killed in his zone of responsibility during the war (including 52 persons whose fates remained unknown for fifteen years because their bodies were moved and hidden in a mass grave in Serbia), and that his individual and command responsibility ought to be investigated.

The history of the RECOM Initiative (regional commission to establish the facts about the war crimes and other gross human rights violations perpetrated in the former Yugoslavia) clearly points to the lack of political will of the region’s states to jointly meet their international obligations concerning the right of victims and their families (and the society as a whole) to know what really happened in the past.

The RECOM Initiative is the only initiative for facing the past with strong public support throughout the region (it has received 580,000 signatures so far).  This kind of support was gathered during RECOM’s consultations process and through direct dialogue with the region’s governments and presidents.  Its founding document, the Amendments to the RECOM Statute, was drafted by the states’ Formal Envoys to RECOM and adopted in its entirety by the RECOM Coalition at its 10^th Assembly on November 14^th, 2014.  Expectations were high at the time that a political agreement to establish RECOM would be reached in the end; but, as it turned out,  formal pledges of support, once given, were not treated as binding – not even by those who gave them, let alone their political successors.  In July of 2013, the Serbian President appointed his Personal Envoy to RECOM, praising RECOM’s efforts to create a regional registry of war victims – only to accuse the Coalition of trying to bring down the state and then withdrawing his support just a year later.

With the change of power in the Republic of Croatia in January of 2015 (when Kolinda Grabar-Kitarović succeeded Ivo Josipović as the President of Croatia), all official support for the establishment of RECOM in Croatia was lost; which, in turn, led to the loss of support from the Croatian Member of the B&H Presidency as well.  Andrej Plenković, Croatia’s new Prime Minister, announced plans for the establishment of a “Council for Facing the Past”, so that “Croatia could take a stand on the whole issue of the past and the totalitarian regimes of the 20^th century, clearly denounce the regime in power between 1941 and 1945 (the Ustase regime) under which numerous crimes were perpetrated, and, at the same time, analyze rationally everything that happened afterwards.”  The immediate reason behind this announcement had to do with a commemorative plaque with an engraved Ustase slogan (“za dom spremni” – “At the ready for the Homeland!”) having been erected in Jasenovac, and the view of a portion of the Croatian political public that the inscription was not an actual Ustase slogan, and that victims should not feel offended by it.

Although the Serbian government did publicly pledge its support for the establishment of RECOM in July of 2015, when Prime Minister Vučić promised RECOM’s Public Advocates that he would take up the issue of transferring the whole RECOM process from civil to official levels with his counterparts in bilateral talks with neighbouring countries, the RECOM Coalition has not been able to schedule another meeting with him.

In a meeting with RECOM’s Public Advocates on July 8^th, 2016, Kosovo’s Prime Minister Isa Mustafa affirmed his pledge of support and promised to raise the issue of establishing RECOM in bilateral talks at the next Balkan Leaders Summit (organized as part of the Berlin Process).  However, in December of 2016, Kosovo’s President announced his plans for another commission – the Commission for Truth and Reconciliation in Kosovo – despite the fact that he, too, strongly backed the establishment of RECOM in 2010.

Meanwhile, Montenegro’s support for RECOM remains stable. In Macedonia, however, the processes of regional cooperation and facing the past are now secondary priorities, primarily due to the stalemate in negotiations over the composition of the new government.

One of the reasons behind the slow implementation of truth-telling and truth-finding instruments in this region most certainly has to do with the EU’s vague and unclear support.  The arrests and extraditions of Hague indictees Ante Gotovina, Radovan Karadžić and Ratko Mladić were made possible by the EU’s policy of conditionality in negotiations with membership candidate states.  With respect to the right to truth, the EU decided to financially support certain civil society programmes relying on government participation, but it did not take an active part in the dialogue between the region’s NGOs and governments, and chose not to link membership negotiations with the right to truth.  In the case of the RECOM Initiative, the participation of Official Envoys (representing the highest authorities of their respective states) in the drafting of the Initiative’s founding document (Amendments to the RECOM Statute, the adoption of which marked the start of the transfer of the whole process from civilian to inter-state levels), imposed no obligation on the part of the newly-elected leaders to continue the formal procedure for assuming ownership of the RECOM Process.  Time has shown that, without the EU’s direct participation and mediation and clearly defined obligations on the part of membership candidate states, Balkan civil society has neither the capacity nor the instruments needed to force the leaders of the states created by the breakup of the former Yugoslavia to meet their international obligations, with respect to truth-finding and truth-telling efforts – that is, finally to tell the truth about what really happened in the past.

A positive step in this regard was made by the Commissioner of the Council of Europe, who, in his report “Missing Persons and Victims of Forced Disappearances in Europe”, called on all the successor-states of the former Yugoslavia to assume ownership of the RECOM Initiative and ensure that the information contained in the archives of their state and security services is made available to the public.  However, this appeal lacked the necessary strength to un-block the political aspect of the RECOM Process.  Including the RECOM Initiative in the programme of the Berlin Process could overcome such obstacles as have been created by the attempts of leaders in the Western Balkans to evade the obligation to face and come to terms with their states’ violent pasts.

Binding Results

Two of RECOM’s main tasks, as defined by the Amendments to the RECOM Statute, are to create a registry of all persons (combatants and civilians alike) who lost their lives in connection with the wars of the nineties, and to document and map all wartime detention sites and prison camps.

While advocating for the establishment of the commission, the Coalition for RECOM has already begun empirical research into the human losses in connection with the wars of the nineties and the detention sites that operated in B&H during the war, in order to help the future commission carry out its mandate to document wartime prison camps and shed light on the fate of each and every individual victim.  As of December 31^st, 2016, the Coalition has confirmed the identities and the circumstances of the deaths or disappearances of around 23,000 persons who lost their lives or went missing during the wars in Croatia and Kosovo (using a total of 56,000 documents, including some 17,000 witness statements and interviews with victims’ families).  630 wartime detention sites and prison camps have been identified in B&H to date, where more than 170,000 people were imprisoned during the war – civilians, for the most part.  The Coalition for RECOM has also created a central database of human losses.  After a two-year evaluation process, in February of 2015 a team of experts in the statistical analysis of human rights violations in conflicts described it as “the most complete and reliable database [on war victims] in the world that we know of”.

As mentioned above, the Coalition for RECOM, relying on empirical research, has begun work on compiling a database of all wartime detention sites and prison camps in B&H.  Both databases will be put at the future commission’s disposal, while the Coalition will continue to assist in documenting the remaining victims (out of the total of 130,000) and various other activities.

In collaboration with the Humanitarian Law Center, the Research-Documentation Center has published the Bosnian Book of the Dead, containing the names of 96,000 victims of the war in B&H; while the Hague Tribunal itself has established the identities of at least 12,000 victims of war crimes.  This unequivocally shows that a large portion of the work on documenting war victims has been completed in the meantime, and that it is now up to the successor-states of the former SFRJ to finish the job of identifying the remaining victims (as well as other RECOM commitments), since the task of documenting war victims must not end before it has been completed.

The Coalition for RECOM believes that we cannot afford to miss this important historic chance to create a regional registry of war victims, with as little delay as possible.  At the very least, naming all the victims publicly makes a significant contribution towards guaranteeing the non-repetition of crimes and a firm foundation for building peace and trust.

The Berlin Process already contains the appropriate framework for any political agreement on the establishment of RECOM, and the role of the EU will prove crucial for its future.