BALKAN WITNESS
Articles on the Kosovo Conflict
Dealing with impunity in Serbia: options and obstacles
Impunity Watch
July 2009EXECUTIVE SUMMARY
The brutality of the wars of Yugoslav dissolution in the 1990s took the world, and many Yugoslavs, by surprise. While certainly not the only region in recent times to experience mass violations of human rights, the location of the Balkan region in the heart of Europe provoked a special sense of shame and responsibility among the international community, which led to its strong engagement in conflict resolution, peace-building and development measures, not least in the field of transitional justice.
Yet despite this investment, willingness in the war-affected states to confront their past and end impunity for the crimes then committed remains weak, sustained only by the persistence of democracy and human rights activists, and the range of carrots and sticks offered by the international community to take up the measures it proposes.
It is this stark gap between investment and results that drew Impunity Watch to the Balkan region. Any one of the countries involved in the wars could have benefited from the thorough x-ray of impunity its research instrument performs, as all have problems in coming to terms with their responsibility for what happened and recognising the validity of the suffering of all victims, regardless of ethnicity. However, the extent and persistence of impunity in Serbia when compared with its role in the 1990s wars called for special attention, not least because of the effect this has on its development, the quality of life of its citizens and the security of neighbouring countries.
Serbia has been in transition for more than eight years now, following the ouster of its autocratic wartime president, Slobodan Milosevic, in October 2000. That moment created great hope among those who had campaigned throughout the 1990s for an end to war and for the protection of human rights that accountability would be pursued. More generally, the Serbian public looked forward to an end to the country's pariah status, and the isolation and poverty that entailed. Investment of money, institutions and expertise flowed into Serbia to support a range of transitional justice mechanisms: exhumations and the search for the disappeared, prosecutions, lustration and institutional reform. However, the commitment of the new Serbia to these processes has proved patchy at best, leaving victims, the organisations that support them, civil society groups campaigning for a democratic, tolerant society, and the international community dissatisfied and concerned as to the direction in which the country is going.
A chronic gap exists in Serbia between the enactment of transitional justice measures and their implementation by the state and endorsement by the public. Impunity Watch was founded to help post-conflict countries understand the underlying reasons why such situations emerge by identifying the way in which transitional measures interact with the factors that perpetuate impunity. It does so by working with local partners to implement a comprehensive, multi-disciplinary research methodology, and then consulting with the widest possible range of stakeholders to identify creative solutions for overcoming the obstacles identified and mapping a realistic path towards accountability.
Having undertaken this project with the Humanitarian Law Centre, Helsinki Committee for Human Rights in Serbia, Youth Initiative for Human Rights and YUCOM over the past two years, we published our findings and recommendations in December 2008, in the report Dealing with Impunity in Serbia - Options and Obstacles. Our research has exposed a system and a society that have a deep urge to resist dealing with the past and shirk responsibility for, deny or disregard many of the crimes then committed, yet are compelled to undertake these processes by a desire to integrate into the European mainstream.
At every turn, we found that those who seek to combat impunity, not only in the civil society sector, but also among institutions pivotal to the process, such as judges, prosecutors, the Commissioner for Information of Public Importance and ombudsmen, are intimidated in their work by a much larger body that is either opposed to the painful and costly process of admitting wrongdoing, or is actively, sometimes violently, working against it. As a result, even where adequate, sometimes exemplary, institutions, frameworks or procedures exist, ways are generally found to block or undermine them.
Thus, a truth commission set up in 2001 with international support was soon revealed to be nothing more than a propaganda and distraction tactic before disappearing without a trace and without producing any results; exhumations depend on the intervention of the international community, while investigations into cause of death of bodies found have often been blocked by local institutions; war-time archives remain difficult to access, risking their further destruction and falsification; officials, lawyers and activists involved in domestic war crimes prosecutions suffer serious intimidation and threat, as well as the non-cooperation of other institutions, such as the police; reparations are only paid out when civil society organisations are able to support victims in bringing private claims for damages; model lustration bills and the ample funding allocated for their implementation are rendered useless by the failure of their implementing bodies to take any action whatsoever; and vetting of officials based on their wartime role has only rarely been undertaken, and always upon the initiative of non-governmental actors.
The processes and results that manage to emerge from these imperfect and obstructed measures are kept quiet, a result of the prevailing atmosphere of outrage, fuelled by the media, at any suggestion that Serbia might hold some responsibility for war crimes. A decade of isolation allowed a victim complex to become deeply engrained in Serbia, one which placed it as the target of an international conspiracy to undermine it.
The prevalence of that viewpoint means that all cases against Serbs at the International Criminal Tribunal for the former Yugoslavia (ICTY), the UN court that has made an incredible contribution to documenting crimes, achieving accountability and promoting the idea of criminal justice throughout the former Yugoslavia, are seen as unjustified vendetta against the entire nation, and the defendants as epic heroes standing up to the Goliath of the international community. Even those less interested in such rhetoric tend to see criminal cases from the point of view of the indictee alone, entertained by the interviews and stories about them that fill the tabloids, while the victims are nowhere to be seen or heard. The response to the arrest in July 2008 of long-time ICTY fugitive, Radovan Karadzic, on charges of genocide is a perfect case in point.
Moreover, many are now aware that any admission of guilt for war crimes perpetrated in Bosnia-Herzegovina, Croatia or Kosovo could lead to liability for reparations, a prospect that instils fear in a country impoverished by war and isolation. Thus, the 2006 verdict of the International Court of Justice (ICJ) that it had violated the Genocide Convention by failing to prevent the Srebrenica massacre and punish those responsible for it was celebrated in Serbia since it fell short of imposing liability for compensating victims. The fact that Serbia had become the only country to have fallen afoul of the convention since its enactment in 1948 slipped by the wayside.
These attitudes are fuelled by the messages being sent from even the more progressive of statesmen. When cooperating with the ICTY, they almost publicly apologise for doing so, while emphasising the support being provided by the state to indictees and their families. Talk of victims is noticeably absent, and any notion of reparations strongly condemned. A vicious cycle is in effect, whereby politicians are reluctant to support transitional justice measures for fear of losing public support, which in turn reinforces public opposition to dealing with the past. The lack of empathy with victims and disinterest in uncovering the truth is all the more concerning as it is now being passed on to the generation too young to have witnessed the wars firsthand. Their school curricula offer little to counter the attitudes prevailing in the media, at home and in public discourse. As a result, the ideas of ethnic prejudice, xenophobia, intolerance and expansionism which prompted the conflicts are being perpetuated, posing serious risk to efforts to achieve guarantees of non-recurrence of the human rights violations of the 1990s. The failure of the state to create a basic, functioning system to protect and promote minority and human rights makes the situation even more worrying.
The absence of a properly sourced, widely communicated and publicly accepted truth about what happened in the 1990s emerges as the root of Serbia's difficulties in combating impunity. The combination of efforts of various civil society organisations and the ICTY's public outreach department to bring victim testimony and verified historical facts to the public, although to be commended, have proven too little in relation to the scale of opposition and distortions present in Serbian society.
It is for this reason that Impunity Watch's research and policy consultations have produced a strong case for supporting the regional initiative underway to form a truth commission, known as RECOM, that takes the victims' perspective as its starting point, covers the entire territory affected by Yugoslavia's wars of dissolution and aims to work with states rather than as a non-governmental body. The fact that a cross-border coalition of organisations seeks the cooperation of the authorities of all countries affected, rather than pressing for truth-seeking on a national basis, gives the initiative much greater chances of success. Also, experience in Serbia has shown that effective alliances can be formed between progressive officials in institutions key to the combat of impunity, such as the Commissioner for Information of Public Importance, officials from the Special War Crimes Court and the Ombudsman, leading to the achievement of greater results than if they worked alone.
To date, the international community has provided the bulk of its support and exerted most pressure in relation to criminal prosecution of war crimes. As Impunity Watch's findings and analysis show, the pursuit of criminal justice cannot work in isolation from other transitional justice mechanisms. As with reparations and non-recurrence, justice depends on the construction of a common historical narrative. The RECOM is by far the best and most promising initiative yet for delivering this.
Impunity Watch's main recommendations are therefore that branches and bodies of the state take appropriate action to:
a) Found the RECOM;
b) Enable full accessibility of documents, dossiers and archives, and prevent their further destruction and forgery;
c) Provide adequate economic and symbolic reparations to victims of crimes against humanity, including memorials and remembrance days;
d) Increase the independence of judicial institutions and strengthen independent mechanisms for the protection of human and minority rights;
e) Improve the safety of victims, witnesses, court representatives, human rights organisations and others involved in the prosecution of war crimes;
f) Establish full cooperation with the ICTY, and arrest and extradite the indictees that remain at large; and
g) Raise awareness among young people, including through educational reform, of the serious nature of war crimes committed in the recent past and urge them to adopt a system of values based on respect for the rule of law and human rights.
We also recommend that civil society organisations take all possible measures to improve their capacity and strategies to advocate for the recommendations made to the state, as well as to:
h) Advocate the most appropriate solutions for the full protection of the ICTY archives and their accessibility to the countries in the region;
i) Monitor the processes of adoption, amendment and implementation of laws relevant to the combat of impunity;
j) Press for speedier prosecution of war crimes by the domestic judiciary and the exposition of command and organisational networks;
k) Investigate the degree of knowledge among youth about the war crimes committed in the recent past and the events linked to them, and in accordance with these results, advocate reform of the education system;
l) Encourage the restoration of citizens' confidence in state institutions and the creation of guarantees of non-recurrence of crimes through various methods, including an analytical cross-linking of persons who held key positions in the conflict period.
To the international community, we strongly recommend that it continue to work with the Serbian state on the challenges it faces in pursuing transitional justice, as well as support civil society organisations in advocating the recommendations listed above.
IW's full report and recommendations can be accessed by following this link: www.impunitywatch.org/en/publication/39.
Serbia is only one of the countries to experience the shortfall of transitional justice mechanisms, and so Impunity Watch has and continues to extend this approach to other post-conflict situations where impunity is seriously impeding peace and progress, in the process facilitating exchange among civil society organisations on strategies and experiences. To read more about all Impunity Watch's projects, visit our website at www.impunitywatch.org.