Justice Imposed: How Policies of Conditionality Effect Transitional Justice in the Former Yugoslavia

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Notes

Fifty interviews were conducted by the author between 2005 and 2011, with a diverse range of individuals including eight Serbian NGO activists, three academics, eight politicians, two individuals working in the media, five workers, two pensioners and five students. A total of 17 members of the international community, including EU, US and ICTY representatives, were also included. Interviewee selection aimed at capturing socio-economic, educational and gender diversity in Serbian society. Interviews were conducted in both Serbian and English. Interviews typically lasted for one hour and were transcribed either by tape recorder or hand-written notes.

Criminal Justice, website of the International Centre for Transitional Justice, available at: http://ictj.org/en/tj/781.html, accessed 5 September 2010.

Saxon (2005, p. 567), for example, has noted that, ‘International Tribunals like the ICTY should not be established with the expectation that they will be a panacea for the reconciliation and reconstruction of shattered societies’. See also Fletcher and Weinstein (2002) and Leebaw (2008).

In the resolution's words, the Council's members were committed to ‘the restoration and maintenance of peace’ and sought to establish ‘effective measures to bring justice to the persons’ responsible for war crimes. See United Nations Security Council Resolution 827 (23 May 1993), available at: http://www.un.org/Docs/scres/1993/scres93.htm, accessed 20 July 2011.

In fact, as Byrne (2006, p. 486) writes, ‘Never before [had] there been such ambitious expectations for international prosecutions’ as there were for the ICTY. For a comprehensive list of ambitions ascribed to the tribunal, see Schrag (2004, p. 428).

Address by Tribunal Prosecutor Carla Del Ponte to NATO Parliamentary Assembly, 26 October 2007, available at: http://www.icty.org/sid/8829, accessed 20 July 2011.

Press Release, Madeleine Albright, Bosnia in Light of the Holocaust: War Crimes Tribunals, State Department Dispatch (18 April 1994), available at: http://calbears.findarticles.com/p/articles/mi_m1584/is_n16_v5/ai_15282479, accessed 20 July 2011.

Erdemović Sentencing Judgement, Case No. IT-96-22-Tbis, 5 March 1998, para. 21, available at: www.icty.org/x/cases/erdemovic/tjug/en/erd-tsj980305e.pdf, accessed 20 July 2011.

The most recent being a Serbian resolution condemning the murder of approximately 8,000 Bosniaks by Bosnian Serbs in 1995. The resolution also included the Serbian government's apology for its failure to prevent the tragedy. Controversially, however, it stopped short of labelling the event as ‘genocide’. Despite this omission, the resolution narrowly passed Serbia's parliament in March 2010.

According to Gallup's Balkan Monitor (2008, p. 30), the majority of Croats, Serbs and Montenegrins believe that ‘the ICTY did not serve the interest of the region and was simply fueling past conflicts’. The same survey found that less than one-third of Bosnians, Macedonians, Montenegrins, Croatians and Serbians believe the ICTY to be ‘impartial’ or to have offered transparent outcomes. The survey's findings were drawn from more than 5,000 face-to-face interviews conducted throughout the Western Balkans, with a margin of error of ±3%.

It was only in 1999—six years after the tribunal's founding—that the ICTY established a programme dedicated to this purpose. By that time, however, it may already have been too late, for few of the tribunal's messages have since resonated with domestic constituents in the former Yugoslavia (Orentlicher 2008; Rangelov 2006; Schrag 2004; Simpson 2005; Spoerri & Freyberg-Inan 2008; McMahon & Forsythe 2008). Indeed, in posing the question as to whether the ICTY has done enough to counter domestic distortions of its record or to ensure that the public understood its work, Orentlicher writes that the answer was ‘unambiguously no’ (2008, p. 65).

The inherent limitations of criminal justice as a means for furthering non-judicial purposes have been convincing elucidated by Fletcher and Weinstein (2006).

In signing the Dayton Peace Accords, the Federal Republic of Yugoslavia committed itself to full cooperation with international justice institutions, including the ICTY.

In Koštunica's words, ‘it is the ninth hole on an [eight hole] flute’ (Zimonjić 2000).

This, in spite of the fact that as early as 1997, EU authorities called ICTY cooperation a ‘basic condition for any progress in the development of bilateral relations in the areas of commercial exchanges, financial assistance and economic co-operation as well as contractual relations between the EU and the countries of the region’ (see ICTY 1997).

The EU had, however, required ICTY cooperation from Croatia, albeit at a later stage.

‘Solana ne dolazi u Beograd’, B92, 20 January 2005, available at: http://www.b92.net/info/vesti/index.php?yyyy=2005&mm=01&dd=20&nav_category=11&nav_id=160393, accessed 16 March 2010.

For more on the discussion of voluntary surrenders, please refer to ‘The costs of conditioned compliance’ section of this essay.

These included: Dragomir Milošević, Savo Todović, Vladimir Lazarević, Milan Gvero, Radivoje Miletić, Momčilo Perišić, Mićo Stanišić, Gojko Janković, Drago Nikolić, Viko Pandurević, Ljubomir Boravčanin, Sreten Lukić, Vujadin Popović and Nebojša Pavković.

‘Zapadni Balkan i napredak ka EU: Zeleno svetlo za SCG u Aprilu’, Blic, 10 March 2005.

‘Civilian Peace Building and Human Rights in South-East Europe’, 1 September 2005, available at: http://www.icty.org/sid/8544, accessed 16 March 2010.

At the time, many suspected Serbia's direct complicity herein. It is notable, for example, that Ratko Mladić continued to receive his state pension until November 2005. For more on Belgrade's suspected involvement in Mladić's flight from justice, see Pinto-Brkić (2005).

Mladić was arrested by Serbian authorities on 26 May 2011 and extradited to The Hague on 31 May 2011.

‘Letter to H.E. Maxime Vernhagen: Netherlands Should Play Pivotal Role in EU/Serbia Talks’, Human Rights Watch, 11 June 2010, available at: http://www.hrw.org/fr/news/2010/06/11/letter-he-maxime-vernhagen-netherlands-should-play-pivotal-role-euserbia-talks#_ftn1, accessed 3 September 2010.

‘Civilian Peace Building and Human Rights in South-East Europe’, 1 September 2005, available at: http://www.icty.org/sid/8544, accessed 16 March 2010.

‘Civilian Peace Building and Human Rights in South-East Europe’, 1 September 2005, available at: http://www.icty.org/sid/8544, accessed 16 March 2010.

As quoted in: ‘Serbia and EU Sign Pact on Ties’, BBC, 29 April 2008, available at: http://news.bbc.co.uk/2/hi/europe/7373045.stm, accessed 16 March 2010.

As the tribunal's president, Gabrielle Kirk McDonald noted: ‘For the Tribunal's investigative and judicial work to have the desired effect, it must be known and understood by the people of the region’ (see ICTY 1998).

The survey was based on 1,400 face-to-face interviews with Serbian respondents drawn from throughout Serbia, with the exception of Kosovo. The margin of error was ±-3.25%.

‘Poll: 61% Support EU Entry’, B92, 4 September 2008, available at: http://www.b92.net/eng/news/politics-article.php?yyyy=2008&mm=09&dd=04&nav_id=53216, accessed 2 April 2010.

In a recent article on Serbian cooperation with the ICTY, for example, the popular tabloid Kurir succeeded in assessing ICTY Chief Prosecutor's Brammertz's appraisal of Serbian cooperation with the tribunal and the continued flight of Ratko Mladić, without making any mention of the content of that cooperation or the reasons for which Mladić is being pursued. See ‘Bramerc pohvalno o saradnji Srbije s tribulanom’, Kurir, 4 June 2010, available at: http://www.kurir-info.rs/vesti/bramerc-pohvalno-o-saradnji-srbije-s-tribunalom-36674.php, accessed 4 September 2010. Coverage by Blic reads similarly. In a 2009 article on Serbian cooperation, for example, content focused on the status of cooperation and Mladić's flight from justice, but said nothing of the crimes for which Mladić stood accused or the reasons cooperation was being sought (‘Haški tribunal: Srbija unapredila saradnju, ostaje hapšenje Mladića’, Blic, 7 October 2010, available at: http://www.blic.rs/Vesti/Politika/114417/Haski-tribunal-Srbija-unapredila-saradnju-ostaje-hapsenje-Mladica, accessed 5 September 2010). Conditionality has likewise dominated the coverage that the conservative daily newspaper Politika dedicates to the ICTY. See for example: ‘Srbija napredovala, ali još nema pune saradnje’, Politika, 5September 2010, available at: http://www.politika.rs/rubrike/Svet/Srbija-napredovala-ali-josh-nema-pune-saradnje.lt.html, accessed 5 September 2010.

The author conducted content analysis of three major Serbian media sources: the daily newspaper Politika, the national tabloid Kurir, and the website of the radio and television news station, B92. This research was conducted as part of the author's doctoral research project, International Intervention, Democracy and Political Parties: The External Dimension of Democratization Processes in the Balkans and the Former Soviet Union, which is funded by the Dutch Scientific Organization (NWO).

Author's interview with 42-year old, working male residing in Belgrade, who wished to remain anonymous, 26 August 2010, Belgrade, Serbia.

As quoted in: ‘Đinđić: Saradnja sa Haškim Tribunalom je deo obaveza prema UN’, Tanjug, 16 June 2001.

As Carla Del Ponte explained in 2005, Serbian authorities ‘in particular, have been co-operating with the Tribunal only thanks to the international pressure. Their co-operation is not perfect, nor full, but the serious improvements we could notice in the past year and a half or so are definitely the result of the well-articulated and consistent EU policy’ (Keynote Speech by Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the former Yugoslavia, Annual Conference of Political Affairs Division IV, ‘Civilian Peace Building and Human Rights in South-East Europe’, 1 September 2005, available at: http://www.icty.org/sid/8544, accessed 1 January 2010).

‘Tadić i Drašković: U Evropu preko Haga’, B92 net, 9 December 2004, available at: http://www.b92.net/info/vesti/index.php?yyyy=2004&mm=12&dd=09&nav_id=157512, accessed 16 March 2010.

Boris Tadić, Press Conference on Mladic's Arrest, Radio Television Serbia 1, 26 May 2011, available at: http://www.rts.rs/page/stories/sr/story/135/Hronika/898386/Uhap%C5%A1en+Ratko+Mladi%C4%87.html, accessed 28 July 2011.

As quoted in: ‘Trenutak Odluke?’, B92, 26 January 2005, available at: http://www.b92.net/info/emisije/kaziprst.php?nav_id=160835&yyyy=2005&mm=01, accessed 16 March 2010.

Author's interviews with Bogdan Ivanišević conducted in 20 March 2005 and 11 January 2011 in Belgrade, Serbia and by phone.

By contrast, just 13% of respondents held positive views towards the ICTY. Results were based on face-to-face interviews with 1,400 respondents throughout Serbia.

Author's interview with Milivoje Ilić, manual labourer, 18 April 2005, Belgrade, Serbia.

‘FM: Hague Convicted Individuals, Not Serbia’, B92, 28 February 2009, available at: http://www.b92.net/eng/news/politics-article.php?mm=2&dd=28&yyyy=2009, accessed 17 March 2010.

For more on this, see Konitzer's essay in this collection.

International Republican Institute (2006, pp. 43–44). The poll included a sample of 2,209 respondents. Respondents were questioned in person, in their homes between 25 June and 3 July 2006.

In 2009, such findings were reconfirmed by a similar poll, which found that only 25% of Serbian respondents supported the arrest and extradition of Ratko Mladić, as compared to the 64% who opposed it (Barlovac 2009). In another poll conducted that same year by the Strategic Marketing and Media Research Institute, the majority of people in Serbia (65%) admitted that they would refuse to offer information on Mladić's whereabouts, regardless of the $1.3 million reward. This poll relied on interviews with 1,050 Serb adults, with a margin of error of 3% (see Angus Reid Global Monitor 2009).

A total of 42% of respondents maintained he was neither criminal nor hero, and an additional 8% were undecided. The poll, conducted by the Strategic Marketing and Media Research Institute, included interviews with 1,000 Serb adults and was conducted in late July 2008 with a margin of error of 3% (see Angus Reid Global Monitor 2008).

See ‘Serbs Would Not Turn in Mladic—Poll’, Balkan Insight, 23 January 2009, available at: http://www.balkaninsight.com/en/main/news/16192/, accessed 17 March 2010.

‘Lazarević ide u Hag’, Glas Javnosti, 29 January 2005, available at: http://arhiva.glas-javnosti.rs/arhiva/2005/01/29/srpski/P05012801.shtml, accessed 20 July 2011.

Author's interview with Nemanja Cocić, student, 11 April 2005, Belgrade, Serbia.

Author's interview with Vesna Bogojević, civic activist, 21 May 2005, Belgrade, Serbia.