Izabela Kisić about Yugoslavian experience of transitional justice

On June 25-26 CivilM+ Platform and CSP Platform members met for an expert seminar “Re-establishment of justice and dialogue in the OSCE conflict regions – two angles of transitional justice“. We publish selected fragments of expert statements.

Izabela Kisić, Helsinki Committee for Human Rights in Serbia, Belgrade:

When I was young I dreamt to see all criminals on trial. I see now that the majority of them are free in Serbia. Many people who were engaged in war are today again in power. What we have today in 20 years after the so called conflict resolution and peace agreement is still a conflict. It is not armed conflict anymore but it is still conflict. International community has failed to articulate the coherent policy of how justice in the broader sense is ought to guide and direct activities of the peacebuilding the western Balkans. Maybe now there is a chance to build this policy.

One of the most important mechanisms in the Yugoslavian case is the ICTY established by the UN. Of course we needed political will for this court to be established and in this case Russia was on the same side with other countries. Cooperation with ICTY was highly uncertain and they were under the strong pressure of international community. Balkan countries in many cases refused on extraditions of the suspects. Serbia did not want to cooperate with the tribunal on providing documents, etc.

It should be noted that work of the ICTY was crucial for systematisation of the facts about the war and pre-war period. However, the expectations from the tribunal in reconciliation process were too high. The criminal justice certainly cannot be regarded as the single instrument of transitional justice, which is why it is necessary to consider the other aspects of the reconciliation process. Trials in the tribunal have not influenced public opinion in many post Yugoslav countries. Also there were some decisions made by the International Court of Justice, like decision in the case Bosnia vs Serbia, which qualifies Srebrenica as genocide and advisory opinion on Kosovo independence declaration, which are also important for the transitional justice process in Yugoslavia, but there was never a proper explanation of those decisions to the citizens of Serbia. There was no change in public opinion because there was no will to present those decisions to citizens.

No country in Western Balkans adopted any generally recognised transitional justice concept. We have just some ad hoc initiatives. Some domestic mechanisms include establishing courts for the war crimes, or some changes, some reforms of army services but all those mechanisms are in crisis today and the reconciliation process is in the regression. Regional relations are perhaps on the lowest level since the last war. The most difficult aspect of this process is creation of universal historical narrative about the conflict and defining the nature of the wars. Serbia is the main obstacle of this process because it did not change its narrative since the beginning of the war. War narrative is still present in public and political life. As long as the narrative stays the same there is no reconciliation between the societies in west Balkans. Reforming institutions and creating historical narrative on the causes of the war are two inseparable aspects of transitional justice in the region. Existence of only one of those processes and not the other does not automatically lead to the stable peace and reconciliation.

We had several attempts to establish truth and reconciliation commissions in Western Balkans and currently only one commission is active which presents the large coalition of civil society organisations in the region. This coalition is established to determine all aspects about the victims of the war crimes and other grave human rights violations in Yugoslavia from 1991 to 2001. The initiative is supported by the international community. Also half of a million people from post Yugoslav countries have put their signature under the initiative to declare their support. The coalition still faces some challenges. The critics say that regional approach to recording of facts ignores political, cultural and social context on the eve of the war. The advocates of this approach say that it is an imperative for the Serb society to face its responsibility for the war and war crimes. Yugoslav war was not a civil war. It was a war of aggression, Serbia occupied parts of territories of other republics, of Bosnia and Croatia first of all. However the insistence on the accountability for the massive war crimes casts the shadow on the by far more important dimension of the war – the policy which generated these crimes. In that context there has not been any responsibility of the state of Serbia, its institutions and elites. The facts about the war and the war crimes have been well documented even before the war. Reconciliation is only possible after telling all the context and discussing it. Ignoring the context undermines achievement of the whole project. Another solution would be the implementation of the educational approach as a mechanism of transitional justice. Comprehensive discussion with the youth about context and causes of the conflict. But the region does not have resources for implementation of such comprehensive educational programs and international help is needed. It is also important to note that all instruments of transitional justice should be based on the clear set of values because moral renewal of the society is needed to achieve sustainable piece.