What happens to the absorbed energy?. Energy soso s1s1 t1t1.
Coming to Terms With the Past-Dragovic Soso Gordy
Transcript of 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
-
7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy
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.
-
7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy
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
-
7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy
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
-
7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy
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
-
7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy
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
_ -
-
7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy
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
-
7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy
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
-
7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy
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
-
7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy
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
-
7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy
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
-
7/26/2019 Coming to Terms With the Past-Dragovic Soso Gordy
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