Dealing with the Past Desired and Actual Effects of Transitional Justice in Serbia Jan Montwill j.montwill@gmail.com

Abstract This paper examines whether the transitional justice measures implemented in Serbia have had the desired effect of contributing to reconciliation after the Yugoslav conflict in the 1990s. As the process of transitional justice in Serbia has been drawn-out, from 1993 to present, it is important to understand if the measures have succeeded with the task of reconciliation as desired by the international community. Transitional justice measures are widely implemented by the international community as an effort to restore normality in post-conflict areas. This study shows that what the international community understands as restoring normality in a post-conflict area does not necessarily correlate with the actual needs of the area. In Serbia’s case, this study found that transitional justice mechanisms implemented by the international community are seen by the Serbs as ways to join the EU. Dealing with the past is unnecessary because when (or if) Serbia joins the EU the opinion is that Serbia ́s economical situation will improve and citizens will forget about the past due to improved life standards. Hence, the mechanisms implemented by the international community in order to restore normality in the uncertain post-conflict Serbia, are instead seen by the Serbs as obstacles to what they consider to be the real state of normality; being a member of the EU. This finding is important and still relevant in 2014 due to recent events in Serbia´s efforts to join the EU, events that were already predicted in the thesis in 2011. Also, the study shows that in order to discuss ‘normality in an uncertain world’ normality must first be understood and defined. Introduction The conflicts in the Balkans during the 1990s have been pointed out as the

worst in Europe in terms of international crimes since World War 2 (Sörensen,

2009; Zupan, 2006). As with the Nuremberg trials as a measure to deal with

the perpetrators of WW2, the international community reacted by establishing

the International Criminal Tribunal for former Yugoslavia (ICTY) in order to

hold those who committed atrocities during the conflicts in the Balkans

responsible. Established in 1993 its purpose is to deal with grave breaches of

the Geneva Conventions of 1949, violations of the laws or customs of war,

genocide and crime against humanity committed in the territory of the former

Yugoslavia after 1 January 1991 until 2008 (Cryer, et. al. 2010; Ellis 2004;

McMahon & Forsythe, 2008). With the last indictees arrested in 2011 (Ratko

Mladic and Goran Hadic) the tribunal has almost completed the task of trying

161 people for crimes committed between 1991 and 2001 in Croatia, Bosnia

and Herzegovina, Serbia, Kosovo and the Former Yugoslav Republic of

Macedonia (The International Criminal Tribunal for the Former Yugoslavia,

2014). Along with the ad hoc tribunal, domestic transitional justice

mechanisms have been used in the Balkan region for the purpose of dealing

with the past, i.e. establishing the truth about what happened during the

conflicts, recognising guilt and moving forward (Subotic, 2009).

The main focus of this paper is the ICTY as it is the transitional justice

measure that has played a major role in Serbia´s development in terms of

dealing with the past. Public opinion in the region regarding the measure

differs from what the international community believes the measure has

contributed to, which is problematic due to the fact that the measure is

intended to help the public (Subotic, 2009).

The majority of people indicted by the ICTY are Serbs and several conditions

regarding applying transitional justice in Serbia have been made by the

international community in order to lift sanctions, receive aid and join the

European Union. Thus it can be argued that Serbia has received the main

focus of the international community regarding the conflicts in the 1990s. This

paper analyses the international community´s desired effects of transitional

justice mechanisms in Serbia and concludes that although transitional justice

as desired by the international community has been dispensed (in theory), the

actual situation is very different.

The distinction is thus made between the desired effects of the international

community and the actual effects in Serbian society.

The international community´s desired effects of transitional justice

mechanisms are what the mechanisms should contribute to according to the

international community. The actual effects of transitional justice are what

these mechanisms actually contributed to in the opinion of the people that

were de facto affected by these mechanisms: Serbian citizens. This distinction

has been made because the desired and actual effects differ. Hence, the

research question guiding this paper is: To what extent have transitional

justice mechanisms had the desired effect in Serbian society?

To answer this research question, new data has been gathered through

interviews with Belgrade citizens, rather than relying on what already has

been concluded by other scholars. This data brings new knowledge to the

discussion about the effects of transitional justice measures in Serbia.

What is Transitional Justice? Dealing with the past, i.e. transitional justice is generally constituted to have

the purpose of establishing the truth, recognising guilt and moving on

(reconciliation) (Clark, 2008; Subotic, 2009; Teitel, 2003). Transitional justice

is a set of different legal and non-legal measures that will contribute to re-

establishing functioning and just states in post-conflict areas. Through

understanding of the reasons and implications of the conflict(s), recognising

victims and punishing perpetrators transitional justice will lead to the definite

goal: contribute to reconciliation (Siminovic, 2004; Subotic, 2009; Teitel, 2003;

UN, 2010).

This section will describe the general ideas behind dealing with the past, i.e.

transitional justice, outlined by both scholars and the UN, who play a big role

in transitional justice in post-conflict areas. Further, the general ideas will be

reviewed on the basis of application and desired effect by the international

community in Serbia in order to specify the general concepts of transitional

justice for the aim of the argument of the paper.

Establishing the Truth Establishing the truth is considered, by the international community, as the

foundation of transitional justice that needs to be dealt with before further

work can be done (UN, 2010). The truth aims at establishing the causes of the

conflict, finding and hearing instigators or perpetrators and victims as well as

hearing the acts committed during the conflict (Clark, 2008; UN, 2010).

However, the truth can be difficult to establish due to of the complicated

nature of conflict. What might appear to be the truth for one party might not be

true for another party, as it is in the case of the conflicts in former Yugoslavia

in the 1990s.

Establishing the truth and ultimately contributing to reconciliation does not

have to include all the above mentioned factors, on the contrary, it can be

reached by establishing records of the conflict, offering a platform for victims

to voice their stories and/or receive compensation for the suffering, offer and

support political and legal measures to avoid future atrocities to take place or

by establishing guilt and accountability of perpetrators (Subotic, 2009).

Furthermore, establishing the truth by creating historical records of conflicts,

as a core for national accord will have the effect of a national collective

understanding of the past. Such judicial records will, as is argued by the

international community, outweigh individual understandings of the conflicts

leading to reconciliation and the creation of a new national consensus

(Rosenberg, 2008; UN, 2010). An important part in establishing truth as part

of the reconciliation process is the recognition of victims from all sides of the

participants in the conflict. If not recognised it may become a major obstacle

to reconciliation in the form of a constant reminder of suffering that has not

been acknowledged (Clark, 2008).

Recognising Guilt Acknowledging victims is connected with recognising guilt; there has to be

something that caused the victimhood, i.e. a perpetrator. Whether it is the

state, a group of people or a single person, the perpetrator has to be brought

to justice for two reasons; to acknowledge victims by punishing their offenders

and to rebuild a broken national legal system into a functioning system that

can (through implementation of international criminal law) take legal actions

against national perpetrators of the conflict (Clark, 2008; Rosenberg, 2008;

Siminovic, 2004; Subotic, 2009; UN, 2010). The latter is especially stressed in

the UN guidelines for transitional justice; national legislation that is in

accordance with international criminal law and international human rights law

is of great importance for a nation in order to deal with the past (UN, 2010).

Furthermore, recognising guilt (together with establishing the truth) serves as

restoration and the maintenance of peace as the state demonstrates a

willingness to acknowledge past wrongdoings, holding those responsible

accountable for their actions and thus accepting the guilt and the past

(Rosenberg, 2008; UN, 2010).

Moving On Reconciliation is a term widely used in the context of transitional justice and

can simply be described as coexistence and forgiveness between various

groups in the post-conflict region(s) (Rosenberg, 2008). It aims at a mutual

understanding between former enemies for the purpose of creating a

condition under which people can trust one another as citizens and move on

from the past (Rosenberg, 2008). Thus moving on is, in the eyes of the

international community, synonymous with reconciliation, the ultimate goal

(the desired effect) of transitional justice (Siminovic, 2004; Subotic, 2009;

Teitel, 2003; UN, 2010).

Transitional Justice in Serbia When reviewing the general ideas of transitional justice, it’s necessary to

emphasise the international community’s support of the national government.

Transitional justice is to be handled nationally but within the guidelines of the

international community: international criminal law and international human

rights law (UN, 2010).

The major transitional justice measures in Serbia are the ICTY and the

Serbian War Crimes Court as well as the former Yugoslav Truth and

Reconciliation Commission (TRC).

ICTY

From the international community’s perspective, the ICTY has been a

successful transitional justice measure that has contributed to the desired

effect by establishing truth through creating an ‘indisputable historical record’

(The International Criminal Tribunal for the Former Yugoslavia, 2014). The

Tribunal also states that it has ‘helped communities come to terms with their

recent history’ (The International Criminal Tribunal for the Former Yugoslavia,

2014) meaning further establishing truth, as part of the way to reconciliation in

the region.

The duration of the ICTY has been a heavily debated issue. The ICTY is seen

as ineffective and expensive, with its now 18 years of practice and the recent

extension to 31 December 2014, and the cost of the Tribunal has been

pointed out as utterly high (between 1993 and 2009 the budget for the

Tribunal was more than $ 1.5 billion) (Cryer, et. al. 2010; McMahon &

Forsythe, 2008; UN Security Council Resolution 1966 (2010)). The critique

has been met with the argument that international justice is expensive and

that UN bureaucracy has contributed to both the costs and the long existence

of the Tribunal, as well as the unwillingness to co-operate by the former

Yugoslav states to pursue, arrest and extradite suspects (Batt, 2005; Cryer,

et. al. 2010; Dimitrijevic, 2008; Klarin, 2009; McMahon & Forsythe, 2008;

Zupan, 2006). Moreover, the Tribunal has ‘laid the foundation for what is now

the accepted norm for conflict resolution and post-conflict development across

the globe’ (The International Criminal Tribunal for the Former Yugoslavia,

2014), thus justifying the costs of international justice.

The Tribunal has also been accused of bias regarding the over representation

of Serbs indicted compared to other nationalities; out of 161 persons indicted

by the ICTY, the distribution is 94 Serbs, 29 Croats, 9 Bosnians, 9 Albanians,

2 Montenegrins, and 2 Macedonians (Cryer, et. al. 2010; Klarin, 2009). This

has led to a perceived sense of victimisation of Serbian citizens, who see the

Tribunal as targeting Serbs and not focusing enough on other parties involved

in the conflicts. This of course has undermined the credibility of the ICTY

among Serbs who see the Tribunal as a political court (Clark, 2008; Ellis,

2004; Jennings, 2009; Klarin, 2009; Subotic, 2009).

Serbia´s co-operation with the ICTY has been tightly linked with the question

of the state joining the EU. One of the conditions for Serbia to be able to join

the EU has been to fully co-operate with the ICTY and specifically to succeed

in apprehending Ratko Mladic and transfer him to The Hague (Jennings,

2009; McMahon & Forsythe, 2008; Noutcheva, 2006; Pribicevic; 2010). Mladic

was recently (May 2011) apprehended and extradited to The Hague (along

with the last suspect Goran Hadzic) meaning that the EU condition for co-

operating with the Tribunal has been met, bringing current President Boris

Tadic one step closer to bringing Serbia into the European Union (The

International Criminal Tribunal for the Former Yugoslavia, 2005).

However, Ratko Mladic´s absence in The Hague for the last 16 years

exemplifies Serbia´s unwillingness to co-operate with the ICTY in regards to

dealing with the past (Subotic, 2009). Also, as of 2008, Serbia has been

pressured to recognise Kosovo in order to join the EU.

Serbian War Crimes Court The international community´s concern with Serbia`s reluctance to co-operate

with the ICTY resulted in the Organisation for Security and Co-operation in

Europe’s (OSCE) assistance to the Serbian Government in creating the

means to prosecute suspected war criminals within the national judiciary, thus

creating a national transitional justice mechanism (Ellis, 2004).

In 2003, the Serbian Government surprised the international community by

announcing it was taking the initiative to draft new war crimes legislation (Ellis,

2004). The Serbian Minister of Justice drafted a new law allowing the creation

of a special War Crimes Court. The International Bar Association (IBA)

assessed the Draft Law after an agreement between the U.S. Embassy (a

major supporter of domestic war crimes trials), OSCE and the IBA. Upon

recommendations, the Serbian government adopted the Final Law thus

creating a new War Crimes Court in 2003 (War Crimes Chamber of the

Belgrade District Court and a War Crimes Prosecutor´s Office) (Ellis, 2004).

As the Court was established from a national initiative including international

criminal law with the co-operation and support of the international community,

the Court followed the guidelines of the international community (UN, 2010).

Furthermore, establishing the Court partly fulfilled the objectives of transitional

justice regarding establishing truth and recognising guilt by establishing

responsibility and accountability of perpetrators (Subotic, 2009).

The Yugoslav Truth and Reconciliation Commission The Yugoslav Truth and Reconciliation Commission (Yugoslav TRC) was a

state body established in March 29, 2001 by the President of the Federal

Republic of Yugoslavia (FRY, Serbia and Montenegro) (Dimitrijevic, 2008).

The commission had representatives from both political sides in Serbia

(nationalist and civic), one member each represented two ethnic minorities in

Serbia and all representatives were members of the Serbian Orthodox Church

(Pejic, 2001). Concern was raised almost immediately due to the lack of

representatives from the other Yugoslav republic, Montenegro, the low

representation of minorities in Serbia and other religious communities as well

as the lack of Non Governmental Organisations (NGO´s), foreign experts and

professional associations (Pejic, 2001).

This transitional justice measure was a national initiative but failed to include

the international community, which has been stated as a contributing factor for

a transitional justice measure to succeed (UN, 2010).

The aim of the commission was in line with the international guidelines of

transitional justice, as stated in the description of the Yugoslav TRC, which

would: ‘contribute to general reconciliation within the FRY and with

neighbouring nations by means of facing the truth about the conflicts in the

Socialist Federal Republic of Yugoslavia (‘SFRY’) and the successor states,

which caused crimes against the peace, numerous violations of human rights,

of the law of war and humanitarian law’ (Pejic, 2001, p. 10), as well as

‘comprehensively examine and establish the causes and courses of conflicts

which led to the disintegration of the former state and to the war, causing

enormous human sufferings and destruction in the past decade’ (Pejic, 2001,

p. 10).

It can even be said that the Yugoslav TRC was, at least on paper, the national

transitional justice mechanism that shared the international community´s

desired effect of dealing with the past as the description clearly states the

TRC should contribute to general reconciliation within the FRY.

However, in 2003, when the Federal Republic of Yugoslavia became the

State Union of Serbia and Montenegro, the commission was dissolved

(Dimitrijevic, 2008). The commission had by then only produced a few internal

documents and neither truth nor reconciliation had been achieved

(Dimitrijevic, 2008).

Political factors as well as the focus of the Commission are explained as the

causes of the failure of the Yugoslav TRC. Firstly, the political climate during

2001 – 2003 has been seen as the major factor of the failure of the

commission. Many politicians from the Milosevic era, who still held seats in

Parliament, contributed to the lack of support by the government of the

Commission due to their unwillingness to respond to the Commission

(Dimitrijevic, 2008).

Secondly, the raison d'être of the Commission was not – as it should be – to

establish and voice the truth about victims and perpetrators. Instead the main

focus of the Truth and Reconciliation Commission was to investigate the

causes of the crimes for historical reasons, an important aspect of a Truth and

Reconciliation Commission but not the main goal of such a body (Subotic,

2009; Pejic, 2001).

The international community did not support the Commission because of the

failure to include international organizations and the majority of Serbian

representatives (Subotic, 2009).

Many scholars argue that now is the time for establishing a truth and

reconciliation commission (Clark, 2008; Jennings, 2009; Nikolic-Ristanovic &

Hanak, 2006; Rosenberg, 2008) but it seems as though the Serbian citizens

are divided in opinion, making it difficult to foresee what the actual effect of

the transitional measure would be. The current debate regarding a TRC

includes international organisations and is supported by the international

community. These are two factors that are favourable for the establishment of

a new TRC and, if established, the mechanism might get closer to contributing

to the international community´s desired effect of transitional justice:

reconciliation (Coalition for RECOM, 2009; Coalition for RECOM, 2011;

Nikolic-Ristanovic & Hanak, 2006).

The Reason for Serbia’s Transitional Justice Measures? Subotic (2009) argues that both the Yugoslav Truth and Reconciliation

Commission and the Serbian War Crimes Court were established in order to

ease the pressure from the ICTY regarding the full co-operation that was

required according to the Dayton Accords. The Truth and Reconciliation

Commission was not supported by the international community, unlike the

Serbian War Crimes Court, which enjoyed great help from the international

community (Subotic, 2009). The author points out that these two measures

were created by the Serbian government to ease the international pressure to

pursue war crimes suspects but still received monetary aid (Subotic, 2009).

However, the pressure was not alleviated due to the requirement from the

European Union that Serbia had to actively work to apprehend war crimes

suspects in order to join the Union, as well as the fact that European and

American aid was co-operating closely with the ICTY (Noutcheva, 2006).

In 2005, after Serbia had delivered several indicted persons to The Hague,

the EU agreed to negotiate a stabilisation and association agreement (SAA),

a first step towards negotiations for EU membership (Subotic, 2009). Seen as

a major step for Serbia, the co-operation with the ICTY stagnated to the point

where the European Union stopped talks with Serbia in 2006 about

membership because of the state’s failure to apprehend Ratko Mladic and

Radovan Karadzic. Talks were resumed in 2007 after the arrest of two

suspects and the SAA was signed in April 2008 (with the condition to fully co-

operate with the ICTY); three months later (in July) Radovan Karadzic was

arrested.

Although Ratko Mladic was the last remaining high profile suspect that stood

in the way between Serbia and European Union membership, the

development of Kosovo at the time changed the condition for joining the EU

(Subotic, 2009). With Kosovo declaring independence in February 2008, the

EU ministers made it clear that Serbia would be fast-tracked if the state

peacefully recognised Kosovo, a condition that has not yet been met.

It thus appears that the international community´s desired effect of transitional

justice has been partly fulfilled from the perspective of the international

community. Serbia has fulfilled its obligation to co-operate with the ICTY and it

can be argued that Serbia has, by arresting the Serbian indictees, recognised

guilt and is heading in the direction of reconciliation: the international

community´s desired effect of transitional justice. On the other hand, Subotic

(2009) argues that Serbian national transitional measures were established to

ease the pressure of co-operating with the ICTY and also co-operating with

the ICTY for economical gain (EU membership and receiving aid) and not as

sincerely recognising guilt. By solely relying on theories established by other

scholars and comparing previous findings to what the international community

states has been accomplished in Serbia, it does not give the full insight into

this issue. In order to understand what the actual effects of the transitional

justice measures in Serbian society are, Serbian citizens who experience the

effects first hand must be heard.

Analysis Through interviews with people in Serbia, it was found that people want to

move on and do not care about the past; instead, they care about the

economic situation that they believe will be solved if Serbia joins the EU.

The new data obtained by interviews raises issues which previous literature

has not discussed, contributing to filling a gap in the academic debate

regarding transitional justice in Serbia.

Transitional justice is seen as a way to join the EU (more specifically to

improve the economical situation of daily life) through imposed measures and

not as actual justice. The objectives of transitional justice (establishing the

truth, recognising guilt and moving on) as outlined by the international

community has a different meaning among the respondents when it comes to

dealing with the past within Serbian society.

Methodology In order to answer the research question, not only based on what already has

been written, and to gain understanding of the present opinion of Belgrade

citizens, field research and interviews were conducted in Belgrade, Serbia, in

June 2011. Interviews with Belgrade citizens contribute to gaining new

knowledge in this field based on new data, and not constructing new

knowledge solely based on already processed data.

Has the Truth been Established? Establishing the truth and recognising guilt are factors that collectively

contribute to moving on. These factors are seen as interrelated by the

international community for the purpose of dealing with the past and ultimately

reaching reconciliation (UN, 2010).

According to the ICTY, truth has been established and has helped

communities come to terms with their past (The International Criminal

Tribunal for the Former Yugoslavia, 2014). Therefore, from the perspective of

the international community, the ICTY is a transitional justice measure that

has partially contributed to the desired effect of reconciliation. However, if this

had been the case it should have been reflected in the opinion of the Serbian

population, which it is not. The opinion of the respondents seems united in the

belief that the ICTY is a political court imposed on Serbia in order “to give

away our war generals in order to become EU or get money”, as stated by

one of the interviewees. Thus the task of establishing truth or contributing to

establishing truth becomes an almost impossible task for the ICTY in Serbia.

The Tribunal is not seen (by the people who are supposed to acknowledge

the established truth) as a legitimate measure for the purpose of establishing

truth. Furthermore, the Tribunals credibility is low in Serbia making it difficult

to contribute to establishing truth. The majority of Serbian citizens have a

perceived sense of victimisation already pointed out by scholars (Ellis, 2004;

Jennings, 2009; Klarin, 2009; Subotic, 2009) and also found in the interviews

with Belgrade citizens. As a result of this perceived sense of victimisation it is

not likely that they will accept the truth that has been established by the very

mechanism they believe is victimising them. Consequently, according to the

interviewees, the actual effect of the ICTY in regards to establishing truth is a

mistrust of the mechanism.

Interviewee Prof. Vesna Nikolic-Ristanovic pointed to the ineffectiveness of

the Tribunal as the main flaw of the mechanism along with its long existence,

which has in turn contributed to the disbelief in the mechanism as well as the

opinion of its ineffectiveness. This argument is supported by one respondent

who emphasised that Milosevic´s trial was supposed to last for two-three

years but lasted six years. The lengthy proceedings are also exemplified in

the Seselj case, who, according to the respondents, is not even believed to be

guilty and is being held in The Hague for a long time while the Tribunal has

not yet been able to prove his guilt (The International Criminal Tribunal for the

Former Yugoslavia, 2003).

The ICTY cases are complicated and time consuming; the legal proceedings

have indeed taken a long time and in some cases have not been able to

establish guilt or innocence for an extensive period of time. When verdicts are

finally reached it does not contribute to establishing truth but to misbelief and

an opinion of ineffectiveness of the Tribunal by Serbs as a result of a slow

international legal process.

The Serbian War Crimes Court, on the other hand, enjoys more support from

the Serbian citizens. One respondent stated that the Serbian War Crimes

Court is good because it is showing the world that Serbia is dealing with the

past on its own and that the people convicted by the court were rightfully

convicted. It can be argued that the reason for the positive attitude towards

the court comes from the fundamental difference between the national court

and the ad hoc tribunal, namely the initiating party. While the international

community initiated the ICTY (Cryer et. al., 2010), the Serbian War Crimes

Court was initiated nationally with the help of the international community

(Ellis, 2004). Thus, the opinion towards the state-initiated national transitional

measure is that it is not seen as an imposed political measure but as a

legitimate legal measure.

Because of the support the court enjoys it can contribute to establishing truth

in a greater extent than the ICTY. If a transitional justice mechanism is not

met with suspicion, disbelief or seen as imposed, the historical records it

creates (by trying war crimes suspects and hearing them and the victims) in

order to contribute to establishing the truth, are more likely to be accepted by

the public and hopefully lead to eventual reconciliation.

It is important to note the similarity and difference between the Serbian War

Crimes Court and the ICTY. The similarity lies in the fact that both measures

are legal and work towards contributing to establish the truth about the

conflicts in the 1990s. Thus both mechanisms work within the guidelines of

what the international community has defined as a part of the process of

dealing with the past that leads to the desired effect of transitional justice. The

difference (other than one mechanism being national and the other

international) is the actual effect of the ICTY is not what the international

community desired while the actual effect of the Serbian War Crimes Court is

what the international community set out the ICTY to be: a measure which

contributes to establishing truth.

The former Yugoslav Truth and Reconciliation Commission did not contribute

to establishing the truth in Serbia because it ceased to exist before it did any

actual work (Dimitrijevic, 2008). Many scholars argue that now is the time to

establish such a commission (Clark, 2008; Jennings, 2009; Nikolic-Ristanovic

& Hanak, 2006; Rosenberg, 2008). It seems that a transitional justice

measure like a TRC could help in establishing the truth in the region and

contribute to reconciliation, if nationally initiated and supported by the

international community (like the Serbian War Crimes Court). However, the

majority of the interviewees were sceptical towards establishing such a body.

What can be concluded by these opinions is that dealing with the past in

Serbia has been going on for too long and with the main transitional justice

measure being imposed on the country; the Serbs are tired of these questions

and want to move on. This line of thought was already present in 2001 (Cox,

2002) yet ten years later the issue of establishing truth still persists in Serbia.

The truth is yet to be established (in the sense that it is accepted by the

public), but it is unlikely that it ever will be; as one respondent stated, “People

think about how they can pay their bills in the end of the month, how they can

go for the summer holiday, they don’t care about Mladic or Hadzic, that is not

their main issue”. This exemplifies the fact that the improvement of the

economical situation is a more pressing issue than establishing truth and

dealing with the past in Serbian society.

Recognition of Guilt by Serbia Analysing the recognition of guilt by Serbia, the distinction between

international and national transitional justice mechanisms must be made

again. Recognising guilt, as described earlier is to take legal actions against

perpetrators in order to acknowledge victims (recognising guilt) and to rebuild

a national legal system (Clark, 2008; Rosenberg, 2008; Siminovic, 2004;

Subotic, 2009; UN, 2010). Clearly the Serbian War Crimes Court serves this

purpose better than the ICTY because it is a national legal measure that can

rebuild a national legal system from within, while the ICTY is an international

measure not even located in its target region. The ICTY is not intended to

rebuild a national legal system but has been established for prosecution of

war crimes suspects (The International Criminal Tribunal for the Former

Yugoslavia, 2014).

Comparing the recognition of guilt as outlined by the international community

and the conducted interviews another distinction has to be made; sincere

recognition of guilt and compliance. Addressing the latter, as Subotic (2009)

already pointed out, Serbia´s co-operation with the ICTY has been tightly

linked with foreign aid and a membership of the EU. Arresting and extraditing

Serbian war crimes suspects to The Hague cannot be seen as sincere

recognition of guilt by Serbia but as compliance to obligations and

requirements set by the international community. The ICTY is a transitional

justice mechanism that was intended to contribute to the international

community´s desired effect of reconciliation. A part of the process is the

recognition of guilt by the state, which has not been done in the case of

Serbia. The persons interviewed for the study cohesively stated that the ICTY

is a political court, an imposed measure on Serbia by the U.S.A. and the EU

as well as biased against the Serbs. Thus when Serbia is extraditing indictees

to The Hague, it is not to contribute to the recognition of guilt (or to contribute

to reconciliation) but to comply with international requirements in order to try

to develop the country economically.

Moreover, the ICTY indicted Milosevic, whom Serbia extradited to The Hague,

but failed to indict Tudjman (the Croatian President during the 1990s) and

Izetbegovic (the President of Bosnia and Herzegovina during the 1990s). This

has sent the message to the Serbian public that the international community

sees Serbia as the main perpetrator and Croatia and Bosnia and Herzegovina

as victims. The failure of distributing the guilt evenly among the parties and

forcing one party to recognise guilt to a wider extent than the other parties has

lead to the perceived feeling of victimisation of the Serbian population, as well

as making it difficult for Serbs to see the ICTY as a legitimate measure that

deals with recognizing guilt.

Sincere recognition of guilt can be seen with the Serbian War Crimes Court.

Even though Subotic (2009) argues that the Serbian War Crimes Court was

established by the Serbian government to ease pressure from the

international community and the obligation to co-operate with the ICTY, the

court is still functioning despite the fact that the co-operation with the ICTY

has ended. The court might have been established to ease pressure but it has

evolved into a functioning transitional measure in Serbia. Prof. Vesna Nikolic-

Ristanovic recognises the importance of the court and one of the respondents

voices support for the court, stating, “all the people who are convicted in this

court should have been convicted”. The same respondent stated that Serbia

is not escaping the responsibility to prosecute war crimes suspects, directly

contradicting Subotic´s (2009) argument that the court was established to

ease pressure from the international community. Moreover, the respondent’s

statement can be interpreted as recognising that although the Serbian War

Crimes Court is prosecuting war crimes suspects and recognising guilt, it is

doing so to also show the world that Serbia is maintaining peace and thus

ready to join the EU.

To Move On Moving on as reconciliation, where ethnicities live peacefully in coexistence

after accepting the truth and forgive past wrongdoings, is a complex issue

(Rosenberg, 2008). Reconciliation is also complex in Serbia and by analysing

the gathered data it is clear how divided the opinion in Serbia can be. A major

finding is that moving on (reconciliation), as the international community´s

desired effect of transitional justice, is different to what Serbs define as

moving on.

Firstly, the conducted interviews illustrate the division of public opinion in

Serbia regarding reconciliation. Even though the data cannot be generalised,

it gives an insight into how complex the question of reconciliation in Serbia is.

Some believe that reconciliation should be reached because the region

consists of the same people (Slavic), thus there should be forgiveness so the

region can leave the past and move on living peacefully as neighbours.

Moreover, it has been expressed that Serbia is a tolerant nation with a long

history of different ethnicities living in coexistence. However, there is also the

opinion that reconciliation can never be reached in Serbia because of the

damage that past events have done, i.e. the displacement of Serbs from

Croatia, Bosnia and Herzegovina and Kosovo and the killings of family

members.

One opinion is unanimous among the respondents regarding reconciliation

that is tightly linked with the ICTY and transitional justice: the EU.

The EU is believed to be the solution to the current economical situation,

which is the main concern according to the respondents. Transitional justice

has been dealt with for so long that people in Serbia do not care anymore;

what is important is the economical situation, an opinion also supported by

Prof. Vesna Nikolic-Ristanovic.

Joining the EU will also indirectly lead to the international community´s

desired effect of transitional justice; reconciliation. But reconciliation in the

view of the international community achieved by establishing truth and

recognising guilt is not how the Serbs see reconciliation. In Serbian society

(more specifically in Belgrade) moving on means improving the economical

situation to improve the standard of daily life. Establishing truth and

recognising guilt will mainly be achieved by forgetting and simply not caring

about the past and not through helping ‘communities come to terms with their

recent history’ (The International Criminal Tribunal for the Former Yugoslavia,

20014) and prosecuting war crimes suspects by an international transitional

justice measure.

The European Union Ratko Mladic was the last person the EU had as a condition for Serbia to

arrest and extradite in order for the country to advance towards a

membership. Along with the last indictee, Goran Hadic, Serbia has fulfilled it´s

obligation towards the ICTY and met the EU condition bringing the nation

closer to a membership in the Union and, according to the respondents,

closer to leaving the past behind and moving on.

Joining the EU is however embossed with one last condition; Kosovo. After

Kosovo´s declaration of independence, the international community has

pressured Serbia to recognise the independence (Subotic, 2009). The EU has

made this recognition a condition for the state to enter the Union and touched

upon a sensitive issue in Serbia considering its recent history (the NATO

bombings in 1999 as intervention of the conflict in Kosovo). The interviewees

recognised Subotic’s (2009) other argument: that Serbia is a small country

that has to comply with the conditions made by the international community in

order to progress.

Considering what Serbia has already done for EU membership, namely

arresting and extraditing all indicted persons by the ICTY, it is likely that

Kosovo will be recognised for the purpose of progressing. Even one of the

respondents has already elaborated on this notion: “you have to accept some

painful decisions made by the West about Kosovo and about Serbia in

general.”

This quote summarises the discrepancy between the international

community´s desired effects of transitional justice in Serbia and the actual

effects from the Serbs’ perspective. The most successful transitional justice

measure in Serbia in the eyes of the international community has not resulted

in the effects it claims. On the contrary, the international community has lost

credibility among the Serbian citizens because of a transitional justice

measure that is perceived as imposed but tolerated, not for reconciliation, but

to meet conditions set by the EU and hopefully improve the economical

situation.

Conclusion What the international community means by transitional justice measures is,

in the opinion of Serbs, seen as imposed conditions on Serbia that have to be

met in order for the country to progress. The improvement of the economical

situation has been the main concern of Serbian citizens since the end of the

conflicts. Today the main concern has not changed and the Serbs are tired of

dealing with the past – they want to move on and improve their every day life,

which can only be done if the conditions set by EU are met and Serbia enters

the EU.

The international transitional justice measure (ICTY) imposed on Serbia has

contributed to mistrust among the Serbian citizens towards the international

community. Yet it is still accepted because it is the only way for the

economical situation to improve.

The answer to the research question: To what extent has transitional justice

mechanisms had the desired effect in Serbian society? is therefore twofold.

Firstly, national transitional justice mechanisms supported by the international

community but initiated nationally have had more success contributing to the

desired effect outlined by the international community in Serbian society than

the international transitional justice measure. The ICTY claims it has

contributed to establishing the truth in Serbia, while in fact it is seen by Serbs

as a political court and met with misbelief and the opinion that the Tribunal is

ineffective as a result of a slow international legal process (as well as the

overrepresentation of Serbs indicted by the ICTY). Consequently, the effect of

the Tribunal is a perceived sense of victimisation by the Serbian people and

the view of the ICTY as a political court that has more to do with international

interests than justice. The Serbian War Crimes Court is on the other hand

seen as a legitimate national transitional justice measure that is actually

contributing to the recognition of guilt.

However, transitional justice mechanisms, whether national or international,

are primarily seen as measures to move on. To move on is not seen as

reconciliation, which the international community holds synonymous with

moving on and is their desired effect of transitional justice. Moving on for

Serbs would be an improved economical situation for a better day-to-day life

and forgetting about the past. When (and if) the economical situation

improves, reconciliation in Serbia will automatically follow as a result of better

living standards and forgetting the past, that is both the conflicts in the 1990s

and the imposed transitional justice measure.

The key to moving on, in the Serbian context, is joining the EU. The main

finding of this study is that transitional justice mechanisms in Serbia are seen

as ways of gaining EU membership. There is no need to deal with the past

because when (or if) Serbia joins the EU the opinion is that Serbia´s

economical situation will improve and citizens will forget about the past due to

improved life standards. The international transitional justice measure, the

ICTY, and Serbia´s co-operation with the measure has been the main

condition for the state to join the EU. This co-operation is thus seen as a

purely imposed condition by the international community that has to be met by

Serbia and has nothing to do with establishing the truth, recognising guilt or

reconciliation.

                                                                       

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