Journalist Ed Vulliamy once noted that “within 20 years of the liberation of Dachau… the Beatles were playing Hamburg”. No such thawing of relations or moving-on has meaningfully taken place in the Balkan region. There is still an urgent need for reconciliation. Meanwhile, a whole generation have grown up in the long shadow of the war, hearing three rival nationalist narratives from respective governments. To this day, the government in Serbia refuses to recognise that the massacre of 8,000 Bosnia Muslim (or Bosniak) boys and men in the town of Srebrenica in 1992 constitutes genocide.
Why has transitional justice proved so challenging in the Balkans? On the face of it, there seems to be progress. The final two criminal cases related to the Yugoslav wars were concluded last year by the international court in the Hague. However, the process of pursuing justice at a local level has largely stalled, with many cases yet to be heard. Meanwhile, nationalist politicians have sought to undermine the institutions of Bosnia and dismember the state. Still, there are people and organisations working to pursue transitional justice in the region, holding perpetrators to account and attempting a measure of reconciliation between groups on different sides of the conflicts. How can the region move on from the current reality of frozen conflict?
The first war crimes court since Nuremberg
The reconciliation process had once been geared around the International Criminal Tribunal for the former Yugoslavia, set up in 1993 by the UN to prosecute war crimes committed in the region. It later spread to the whole region, including Kosovo. The court operated for twenty-four years, indicting 161 people, conducting 111 trials, and convicting 90 people from all sides of the conflict – including the first sitting head of a state to be indicted for war crimes, Slobodan Milosevic. In many ways it was ground-breaking. The first war crimes court to be established since the end of the Second World War, it issued important judgements on rape as a weapon of war.
David Tolbert worked at the court on and off for nine years, starting as a senior legal officer. While many people looked back to the Nuremberg Trials as an antecedent, he feels that the ICTY was “the first of its kind”. He is positive about the record of the court, which indicted a larger number of people and accounted for all of them, when comparable efforts at justice in countries such as Rwanda and Cambodia have struggled. The prosecutors were facilitated by political will to make arrests and were also able to make links between some of the defendants where they had been working together to commit crimes.
But the court also faced challenges and attracted criticism from all sides. Securing the support of national governments was a significant block, especially early on. “In Serbia the cooperation was really difficult and also in Republic Srpska [the majority Serb areas in Bosnia],” says Tolbert, “that’s where we really needed political support from NATO and the NATO countries.” That support did come, with NATO troops making arrests and transferring a suspected war criminal to the ICTJ. Tolbert feels the court improved over time in terms of dealing with this political engagement and in helping make arrests. He noted that there was a “pretty big learning curve” for those involved to begin to understand the context, and then to create the mechanisms to make arrests and gather evidence, given that the ICTY was an international court and those involved mostly came from outside the region.
The court also made its own blunders. One of the most emotive was the loss of personal belongings of Srebrenica victims. Originally removed from mass grave sites in 1996-97, these items were destroyed in 2009 on the grounds they had started to decompose. They included documents and photos that could help identify the remains of victims. The convoluted and opaque system that allowed this to happen without the prior knowledge of victims’ groups and families underlined the failures of trust and communication. The ICTY finally closed its doors in 2017, leaving a mixed legacy and a handful of cases to finish.
Failing survivors?
A year later, the Balkans Investigative Reporting Network (BIRN) published a report into the state of transitional justice in the region. “Accountability, truth and justice still seem more like ideals than reality,” the report said, going on to set out how prosecutions by national governments had fallen, regional cooperation had collapsed, and victims and survivors had been “betrayed”. For example, the report noted that while there had been 3,500 prosecutions in Croatia, just 119 were against Croatian soldiers, and their sentences were lower than for people from other ethnicities for the same categories of crimes. While the ICTY did set those ground-breaking precedents on rape as a weapon of war, a recent survey of survivors found a majority of survivors felt abandoned by the civil justice system because it is very difficult for them to claim compensation.
The ICTY is now seen by many as a failure. Rather than bringing closure to victims, or paving the way for societal-level reconciliation, they see the court as having amplified the voices of wartime leaders. While many such leaders were prosecuted, their trials gave them the platform and space to pontificate and propagate their ultranationalist ideologies.
Perhaps the most surreal example of this was the infamous suicide of Slobodan Praljak in the Hague court. A former Bosnian Croat general, Praljac had been found guilty of committing violations of the laws of war, crimes against humanity, and breaches of the Geneva Convention. On hearing the guilty verdict in 2017, he swallowed cyanide in the courtroom. The act somewhat grotesquely became an internet meme in the late 2010s to characterise an excessive emotional reaction to a situation ("excuse me while I drink my poison").
The later acquittal of Serb leader Vojislav Seselj – who had been charged with incitement of torture, murder, forcible deportations and persecution on religious and racial grounds, but was found to have had had no military “hierarchical responsibility” – was for many anti-nationalist campaigners in the region the death knell of the ICTY’s legitimacy. Seselj received and was quickly rehabilitated by the Serbian political establishment.
Meanwhile, in the absence of meaningful and effective transitional justice in the region, society continues to be divided along ethnic lines. The starkest example is Bosnia, a multi-ethnic state of Bosniaks (or, as many prefer to be called, Bosnian Muslims), Croats and Serbs. While schools in the country nominally promote “democratic” values, in practice they are ethnically and linguistically segregated, meaning three very different versions of history are being taught. This not only reinforces those ethno-nationalist discourses, but has made it more challenging for those children and young people, to process the pasts and their sense of who they are and where they belong. Many of the Bosnia-wide institutions, such as public broadcasting and sports, that might have contributed to a sense of national unity beyond ethnic divides, have been undermined over the years by a persistent campaign from Serb and Croat separatists. Nor are the tensions confined to Bosnia.
Transitional justice from the grassroots
What might the future hold for the region’s “frozen conflict”? Despite the failures of the ICTY and other “top-down” efforts, some remarkable people and organisations have stepped up at the grassroots. One of the earliest bodies to pursue transitional justice, the Humanitarian Law Centre, was founded in the early stages of the conflicts in 1992. The HLC has played a significant role in Balkan civil society over the last three decade, both tirelessly documenting the Milosevic-era war crimes and human rights violations committed in the 1992-1995 conflict, predominantly against Croats and Bosnian Muslims, and, simultaneously, collecting evidence – with a view to both prosecutions and societal-level "truth-telling" – of war crimes and human rights violations in the 1999 conflict in Kosovo.
HLC’s work in Kosovo is crucial, as many other Serbian human rights organisations would still rather not engage in the country. The idea that "Kosovo is Serbia" still holds sway among sections of Serbian society steeped in the mythologised narrative of the 1389 Field of Blackbirds battle and glorified in the poetry of the nineteenth-century Serb Orthodox/ Montegrin poet Njegos, and the claim was arguably the most central tenet of Milosevic’s ultranationalist ideology, from whence all other racist and exclusivist positions emanated.
HLC’s founder, Natasha Kandic, has been the subject of dozens of lawsuits from Serbian public officials during the past 25 years as a result of her public criticism and work on Serbia’s war crimes, documenting atrocities committed in both 1992-1995 in Bosnia and Croatia, and 1999 in Kosovo. It was Kandic who provided what is considered the “smoking gun” for Serbia’s involvement in the Srebrenica Massacre: a video of Serbian soldiers from the Skorpions Unit executing six Bosnian Muslim prisoners. The video, presented as evidence to the ICTY, was also partially broadcast on Serbian and Bosnian TV. She continues to be a key figure across the human rights and transitional justice movement in the former Yugoslavia.
Kandic also spearheaded the RECOM initiative, which in 2008 initiated the creation of a regional “peace commission for the people”, focusing on documenting war crimes along with truth-telling and processing the past through public initiatives. The aim was that this documentation of war crimes committed by "all sides" in the 1990s would be used to secure prosecution. RECOM made significant breakthroughs, not only in presenting an alternative to the one-sided narratives and ultranationalist rhetoric of leading political parties in Bosnia, Croatia, and Serbia, but also in helping to mobilise and coordinate progressive and pro-human rights actors across all countries in the region.
RECOM’s work spoke to the need articulated by anti-nationalist, feminist Croatian writer Slavenka Drakulic to bridge the chasm "between official history and collective memory", as a necessary stage of societal-level healing. Its work dovetailed with the Croatian-based initiative, Dokumenta, an organisation formed in 2004 with the aim of investigating and establishing truth so as to create a “sustainable peace by dealing with the past.”
The emergence of these independent bodies in the late 2000s thus seemed to many progressive activists and academics in the region a tonic to the toxic legacies of the 1990s war that had begun to appear in the election of ultranationalists and the routine denial of facts (even when, as in the case of the 1995 genocide in Srebrenica, such facts had been established both in the ICTY and other international courts).
Both RECOM and Dokumenta speak to a need for shared narratives, whether these emerge through trials or through truth-telling. As Bosnian filmmaker Jasmila Zbanic illustrated through her 2010 film For Those Who Can Tell No Tales, about what she calls the “endangered” memory of the Visegrad massacre, there is no justice without truth and no truth without justice. She recently won an Oscar for Quo Vadis, Aida her exploration of collective memory and Srebrenica.
Yet, as RECOM representatives noted in an interview with us, these initiatives stand little chance of shifting from shared recognition of the facts to securing prosecutorial victories, in the face of the continued damage of ultranationalism in party politics. As they note: “Unfortunately, the situation in the region is very discouraging: number of war crime trials has been decreased; there are no indictments against high-ranked military and police officers; only judgments condemning members of other ethnic communities.”
Learning from the past
The tireless and painstaking work of documenting what actually happened during the conflict – who did what to whom and when – is both specific to the nature of the atrocities of the former Yugoslavia, and central to the development of what "transitional justice" as a whole can mean. Transitional justice, as a concept and practice, originally emerged out of the South American experiences of authoritarianism in the 1970s. The "right to know" emerged out of South America - and in particular Chile’s attempts to deal with the legacy of the Pinochet regime – as the assertion by families that they, literally, had a right to know where "disappeared" loved ones were buried.
In practice, "transitional justice" quickly developed a binary. There was "truth and reconciliation" without prosecution on the one hand, such as the societal-level initiatives of post-apartheid South Africa. On the other hand, there was "prosecutorial justice", such as the formal legal spaces of the ICTY and ICTR (the International Criminal Tribunal on Rwanda).
The last decade has seen a new "wave" of transitional justice in the wake of the 2011 Arab revolutions, and in fora such as the Tunisian Truth and Dignity Commission, a national organisation to process the authoritarian past of pre-2011 Tunisia. This new wave, and other national attempts to process the injustices of the past, owe the ICTY a debt of thanks for the paradigms they developed. However, is notable that those involved chose to combine the prosecutorial model of the ICTY with learning from South Africa’s reconciliatory experience of "processing the past". This suggests that it isn’t that the ICTY was a failure, but rather that it was "necessary but not sufficient" for the people of the region to gain closure from the horrors of the 1990s.
Bodies like RECOM and Dokumenta are effective where they work in tandem with the "official" transitional justice processes, such as the work that was undertaken at the ICTY. As RECOM said to us: “The International Criminal Tribunal for the former Yugoslavia (ICTY) was crucial for judicially established facts that should serve as a basis for the establishment of the rule of law through domestic war crime trials. The RECOM Reconciliation Network as most trustworthy and credible actor of regional reconciliation is establishing a regional record of all the victims regardless of their ethnicity, despite the absence of political support”, using the ICTY judgments as the basis of their work.”
In some sense, the greatest "victory" of the former Yugoslavia’s war-time victims in securing formal and structural change and recognition is a victory that has protected others who have suffered in subsequent conflicts – that of UN Security Council Resolution 1325, which was adopted unanimously in 2000, and acknowledges the disproportionate and unique impact of armed conflict on women and girls, and provided the legal basis to prosecute war-time rape as a weapon of war. Securing Resolution 1325 remains an astonishing victory secured in large part through the work of Bosnian women's rights activists and NGOs.
“Prosecutions are important, particularly of senior leaders, military and political leaders, but I think a whole lot more needs to be done and that hasn’t happened,” says David Tolbert. “I would have wanted to have seen more transitional justice approaches.” Those could have included a truth commission, reparations, a lot of reforms, and political realignment. While he said there were discussions about a truth commission in Serbia, it was unclear whether they were serious. In the generation since the end of the wars of the former Yugoslavia, as Afghanistan and Iraq reformulated the concept of "humanitarian intervention" in the 2000s, and the Arab Revolutions and Euromaidan in Ukraine offered new modes and templates of how to "process the past" after an end of authoritarianism, the ICTY’s legacy, and the lessons it offers transitional justice processes that have followed it, remains a bridge – towards justice, but not there yet.
