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Abstract
This article aims to assess the achievements and challenges facing the transitional justice processes that have taken place in the countries most affected by the armed conflicts resulting in the violent dissolution of the former Yugoslavia and whether, and to what extent, these processes have furthered inter-ethnic reconciliation. The two variables used for this purpose are the scope of individual criminal accountability for war crimes and the scope of reparations provided to victims of the armed conflicts occurring throughout the 1990s and in the early 2000s. The following analysis combines an assessment of relevant international and domestic efforts. Thus, first, the article analyses the impact of the International Criminal Tribunal for the former Yugoslavia (ICTY or tribunal) in the transitional justice processes in Croatia, Bosnia and Herzegovina (Bosnia or BiH), the former Yugoslav Republic of Macedonia (Macedonia), Serbia, and Kosovo. Over the last 20 years the tribunal has investigated and prosecuted a considerable number of individuals for mass atrocity crimes. Subsequently, the focus shifts to assessing the domestic efforts surrounding the prosecution of war crimes and awarding of reparations for victims of the armed conflicts in these countries. The article argues that lack of sufficient coordination and close cooperation between international stakeholders and a general reticence on the part of the national authorities to engage meaningfully with past wrongs have resulted in a situation where many perpetrators of war crimes remain unpunished and individual victims have barely received any reparations. The article holds that for the ongoing transitional justice processes to meaningfully further inter-ethnic reconciliation in the republics emerging from the former Yugoslavia, continued legal reforms and a pluralistic public discourse, which embrace a strong focus on the rights of victims of war crimes, are necessary.
Notes
* The first part of this paper draws considerably on a short research paper by Gentian Zyberi, published with the Oxford Transitional Justice Research Papers in March 2012, ‘The Transitional Justice Process in the Former Yugoslavia: Long Transition, Yet not Enough Justice’, at www.csls.ox.ac.uk/documents/Zyberi_formerYugoslavia_OTJRWorkingPaperSeries.pdf. The authors would like to thank the anonymous peer reviewers for their useful comments on previous drafts. Any potential mistakes are our own. All cited websites were last accessed on 31 March 2015.
1See inter alia P Williams and M Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (Rowman & Littlefield Publishers, 2002); O Wils and N Zupan, Dealing with the Past and Conflict Transformation in Former Yugoslavia, Evaluation Report (Berlin: Berghof Research Center, 2004); J-C Cady and N Booth, ‘Internationalized Courts in Kosovo: An UNMIK Perspective’, in CPR Romano, A Nollkaemper and JK Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford University Press, 2004) 59–78; J Meernik, ‘Justice and Peace? How the International Criminal Tribunal Affects Societal Peace in Bosnia’ (2005) 42(3) J of Peace Research 271–89; D Saxon, ‘Exporting Justice: Perceptions of the ICTY Among the Serbian, Croatian, and Muslim Communities in the Former Yugoslavia’ (2005) 4(4) J of Human Rights 559–72; DE Arzt, ‘Views on the Ground: The Local Perception of International Criminal Tribunals in the Former Yugoslavia and Sierra Leone’ (2006) The Annals of the American Academy of Political and Social Science 226–39; N Zupan, ‘Facing the Past and Transitional Justice in Countries of Former Yugoslavia, Peacebuilding and Civil Society in Bosnia’, in M Fischer (ed), Peacebuilding and Civil Society in Bosnia-Herzegovina: Ten Years after Dayton (Münster: Lit Verlag, 2006) 327–42; J Subotić, ‘Hijacked Justice: Dealing with the Past in the Balkans’ (Cornell University Press, 2009); I Rangelov and M Theros, ‘Transitional Justice in Bosnia and Herzegovina: Coherence and Complementarity of EU Institutions and Civil Society’, in K Ambos, J Large and M Wierda (eds), Building a Future on Peace and Justice (Springer, 2009) 357–89; J Subotić, Hijacked Justice: Dealing with the Past in the Balkans (Cornell University Press, 2009); P de Greiff and R Duthie (eds), Transitional Justice and Development: Making Connections (Social Science Research Council, 2009); DF Orentlicher, That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia (Open Society Institute, 2010); AL Hinton (ed), Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence (Rutgers University Press, 2010); R Shaw and L Waldorf (eds), Localizing Transitional Justice: Interventions and Priorities after Mass Violence (Stanford University Press, 2010); C Lamont, ‘Defiance or Strategic Compliance: the Post-Tudjman Croatian Democratic Union and the International Criminal Tribunal for the Former Yugoslavia’ (2010) 62(10) Europe–Asia Studies 1683–705; R Steinberg (ed), Assessing the Legacy of the ICTY (Martinus Nijhoff Publishers, 2011); J Lincoln, Transitional Justice, Peace and Accountability: Outreach and the Role of International Courts after Conflict (Routledge, 2011); A Buyse and M Hamilton (eds), Transitional Jurisprudence and the ECHR: Justice Politics and Rights (Cambridge University Press, 2011); P Arthur (ed), Identities in Transition: Challenges for Transitional Justice in Divided Societies (Cambridge University Press, 2011); A Aitchison, Making the Transition: International Intervention, State-Building and Criminal Justice Reform in Bosnia and Herzegovina (Intersentia, 2011); J Almqvist and C Espósito (eds), The Role of Courts in Transitional Justice: Voices from Latin America and Spain (Routledge, 2012); N Palmer, P Clark and D Granville (eds), Critical Perspectives in Transitional Justice (Intersentia, 2012); M Williams, R Nagy and J Elster (eds), Transitional Justice (New York University Press, 2012); A Di Lellio and C McCurn, ‘Engineering Grassroots Transitional Justice in the Balkans: The Case of Kosovo’ (2013) 27(1) East European Politics and Societies 129–48; C Brants, A Hol and D Siegel (eds), Transitional Justice: Images and Memories (Ashgate, 2013); P McAuliffe, Transitional Justice and Rule of Law Reconstruction: A Contentious Relationship (Routledge, 2013); J Gow, Prosecuting War Crimes: Lessons and Legacies of the International Criminal Tribunal for the Former Yugoslavia (Routledge, 2014).
2P Hazan, ‘Measuring the Impact of Punishment and Forgiveness: A Framework for Evaluating Transitional Justice’, (2006) 88 Int Rev of the Red Cross 19–47; S Veitch (ed), Law and Politics of Reconciliation (Ashgate, 2007); L Huyse and M Salter (eds), Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences (Institute for Democracy and Electoral Assistance, 2008); M Freeman, Necessary Evils: Amnesties and the Search for Justice (Cambridge University Press, 2009); P Hazan, Judging War, Judging History: Behind Truth and Reconciliation (Stanford University Press, 2010); B van Stokkom, N Doorn and P van Tongeren (eds), Public Forgiveness in Post-Conflict Contexts (Intersentia, 2012); M Spoerri, ‘Justice Imposed: How Policies of Conditionality Affect Transitional Justice in the Former Yugoslavia’, in F Bieber (ed), EU Conditionality in The Western Balkans (Routledge, 2013); J Marko, ‘Defective Democracy in a Failed State? Bridging Constitutional Design, Politics and Ethnic Division in Bosnia-Herzegovina’, in Y Ghai and S Woodman (eds), Practising Self-Government: A Comparative Study of Autonomous Regions (Cambridge University Press, 2013); N Aiken, Identity, Reconciliation and Transitional Justice: Overcoming Intractability in Divided Societies (Routledge, 2013).
3For two different views on whether the ICTY has assisted in the process of reconciliation in the Former Yugoslavia see inter alia http://ictj.org/news/join-debate-has-icty-contributed-reconciliation-former-yugoslavia. See also generally C van den Wyngaert, ‘International Criminal Courts as Fact (and Truth) Finders in Post-Conflict Societies: Can Disparities with Ordinary International Courts be Avoided?’ (2006) 100 Proceedings of the Annual Meeting (American Society of International Law) 63–68; JE Stromseth, ‘Justice on the Ground: Can International Criminal Courts Strengthen Domestic Rule of Law in Post-Conflict Societies?’ (2009) 1 Hague J on the Rule of Law 87–97; MC Nmaju, ‘The Role of Judicial Institutions in the Restoration of Post-Conflict Societies: The Cases of Rwanda and Sierra Leone’ (2011) 16(2) J of Conflict & Security Law 357–84; G Zyberi, ‘The Role of International Courts in Post-Conflict Societies’, in I Boerefijn et al (eds), Human Rights and Conflict: Essays in Honour of Bas de Gaay Fortman (Intersentia, 2012) 367–85.
4The tribunal's achievements include holding leaders accountable, bringing justice to victims, giving victims a voice, establishing the facts, developing international law and strengthening the rule of law. For more information on the tribunal's achievements see www.icty.org/sid/324. See inter alia P Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’ (2001) 95(1) American J of Int Law 7–31. See also C Stahn, ‘Between ‘Faith’ and ‘Facts’: By what Standards should we Assess International Criminal Justice?’ (2012) 25(2) Leiden J of Int Law 251–82.
5Slovenia and Montenegro are not dealt with in this context, since their involvement in the armed conflicts accompanying the violent dissolution of the Former Yugoslavia was relatively minor. For a very brief overview of transitional justice in the Former Yugoslavia see International Center for Transitional Justice (ICTJ), ‘Transitional Justice in the Former Yugoslavia’, 2009, at http://ictj.org/sites/default/files/ICTJ-FormerYugoslavia-Justice-Facts-2009-English.pdf. For more details see the Report by DOCUMENTA (Center for Dealing with the Past), Humanitarian Law Center and Research and Documentation Center, ‘Transitional Justice in Post-Yugoslav Countries’, 2006.
6S Parmentier, ‘Global Justice in the Aftermath of Mass Violence: The Role of the International Criminal Court in Dealing with Political Crimes’, (2003) 41(1–2) Int Annals of Criminology 203–24. See also NA Jones, S Parmentier and E Weitekamp, ‘Dealing with International Crimes in Post-War Bosnia: A Look through the Lens of the Affected Population’, (2012) 9(5) Eur J of Criminology 554–55.
7For a discussion of these hybrid or domestic legal mechanisms see inter alia J-C Cady and N Booth, ‘Internationalized Courts in Kosovo: An UNMIK Perspective’ in CPR Romano, A Nollkaemper and JK Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford University Press, 2004) 59–78; Human Rights Watch, Looking for Justice: The War Crimes Chamber in Bosnia and Herzegovina (February 2006); International Center for Transitional Justice, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court (2008); G Zyberi, ‘Bosnian Special Court’, in A Cassese et al (eds), Oxford Companion to International Criminal Justice (Oxford University Press, 2009) 258–59; G Zyberi, ‘Kosovo Special Courts’, in A Cassese et al (eds), Oxford Companion to International Criminal Justice (Oxford University Press, 2009) 403–4; Human Rights Watch, Justice for Atrocity Crimes: Lessons of International Support for Trials before the State Court of Bosnia and Herzegovina (March 2012); UNDP, ‘Perceptions on Transitional Justice in Kosovo’, 2012, at http://www.undp.org/content/dam/kosovo/docs/TJ/English-Web_965257.pdf.
8J Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge University Press, 2004), 84 (Elster, Closing the Books). See also R Sannerholm, ‘Legal, Judicial and Administrative Reforms in Post-Conflict Societies: Beyond the Rule of Law Template’, (2007) 12 J of Conflict and Security Law 65–93.
9J Webber, ‘Forms of Transitional Justice’, in M Williams, R Nagy, and J Elster (eds), Transitional Justice (New York University Press, 2012), 102–3 (Webber, Forms of Transitional Justice).
10Ibid, 103–8.
11Ibid, 108–13.
12Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc S/2004/616, 23 August 2004, 4. For a general discussion of transitional justice see inter alia Advisory Council on International Affairs (AIV) and the Advisory Committee on Issues of Public International Law (CAVV), Transitional Justice: Justice and Peace in Situations of Transition (CAVV April 2009). See also R Teitel, ‘Editorial Note-Transitional Justice Globalized’ (2008) 2 Int J of Transitional Justice 1–4.
13Elster, Closing the Books, 93.
14Security Council Resolution 827 of 25 May 1993; see also www.icty.org/sid/320. For a timeline of the activity of the ICTY see www.icty.org/action/timeline/254.
15See respectively arts 2, 3, 4 and 5 of the ICTY Statute.
16For more information on the activity of the ICTY see www.icty.org/sections/TheCases/KeyFiguresoftheCases. At the present the ICTY has completed the cases for 146 accused, from whom 79 were sentenced; 18 were acquitted; 13 were referred to a national jurisdiction pursuant to Rule 11bis; and 36 had their indictments withdrawn or are deceased. Proceedings are ongoing for 25 accused, of whom 4 are currently on trial, 11 are awaiting the appeals judgment, and 10 are awaiting transferral to another jurisdiction to serve their sentence.
17Report of the Secretary-General on the work of the Organization, General Assembly Official Records, 68th Session, UN Doc A/68/1, 19 August 2013, paras 54–56 on ‘Promotion of justice and international law’.
18Report of the Secretary-General on the work of the Organization, para 55.
19See inter alia the Report of the Secretary-General, ‘The rule of law and transitional justice in conflict and post-conflict societies’, UN Doc S/2004/616, 23 August 2004, at 1 (Rule of Law and Transitional Justice Report), 13–17, paras 38–49; Report of the Secretary-General, ‘Strengthening and coordinating United Nations rule of law activities’, UN Doc A/63/318 (20 August 2010), 7–9, paras 24–30 (Strengthening and Coordinating UN Rule of Law Activities Report). For more information regarding the UN activities and approach to rule of law issues visit the UN Rule of Law website at www.unrol.org. See also J Voorhoeve, From War to the Rule of Law: Peacebuilding After Violent Conflicts (Amsterdam University Press, 2007).
20For more details see R Steinberg (ed), Assessing the Legacy of the ICTY (Martinus Nijhoff Publishers, 2011), especially 139–262. See also www.icty.org/sid/324#strengthening and the 2010 ICTY Report, UN Doc A/65/205–S/2010/413 (30 July 2010), at 19, paras 83–84.
21For more information and the ICTY reports see www.icty.org/tabs/14/2. On the basis of Security Council Resolution 1966(2010) the International Residual Mechanism for Criminal Tribunals (‘the Mechanism’) with two branches, commenced functioning on 1 July 2012 (branch for the ICTR) and 1 July 2013 (branch for the ICTY). From 1 July 2013, the Mechanism will respond to requests for assistance from national authorities (not restricted to the Former Yugoslavia) in relation to national investigations, prosecutions and trials of persons responsible for serious violations of international humanitarian law in the Former Yugoslavia. This function comprises the provision of assistance to national courts conducting related proceedings, which includes transferring dossiers, responding to requests for evidence, variation or rescission of protective measures for witnesses and responding to requests to question detained persons. For more information on the ICTY residual mechanism see www.icty.org/sid/10874.
22The persons whose cases have been transferred to a national jurisdiction are Rahim Ademi, Dušan Fuštar, Momčilo Gruban, Gojko Janković, Vladimir Kovačević, Duško Knežević, Paško Ljubičić, Željko Mejakić, Mirko Norac, Mitar Rašević, Radovan Stanković, Savo Todović, and Milorad Trbić.
23Known until 2003 as the Human Rights Chamber. For more details see inter alia Human Rights Watch, ‘Looking for Justice: The War Crimes Chamber in Bosnia and Herzegovina’ (February 2006); International Center for Transitional Justice, ‘The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court’ (2008); G Zyberi, ‘Bosnian Special Court’, in A Cassese et al (eds), Oxford Companion to International Criminal Justice, (Oxford University Press, 2009) 258–59; Human Rights Watch, ‘Justice for Atrocity Crimes: Lessons of International Support for Trials before the State Court of Bosnia and Herzegovina’ (March 2012).
24See inter alia the ICTY website at www.icty.org/sid/324 and relevant reports prepared by the International Center for Transitional Justice at http://ictj.org/publications.
25See inter alia J-C Cady and N Booth, ‘Internationalized Courts in Kosovo: An UNMIK Perspective’ in CPR Romano, A Nollkaemper and JK Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford University Press, 2004) 59–78; G Zyberi, ‘Kosovo Special Courts’, in A Cassese et al (eds), Oxford Companion to International Criminal Justice (Oxford University Press, 2009) 403–4.
26For a list of cases tried in Kosovo see the information provided by the Humanitarian Law Centre at www.hlc-kosovo.org accessed 26 January 2015. See also OSCE Mission in Kosovo, ‘Kosovo's War Crimes Trials: An Assessment Ten Years On 1999–2009’ (May 2010); Amnesty International, ‘Kosovo: Time for EULEX to Prioritize War Crimes’ (April 2012).
27ICTY Completion Strategy Report, ‘Report of Serge Brammertz, Prosecutor of the International Tribunal for the Former Yugoslavia, provided to the Security Council under paragraph 6 of Security Council resolution 1534 (2004)’, UN Doc S/2014/827, 19 November 2014, at 32, para 51 (ICTY Completion Strategy Report November 2014).
28See the ICTY Interactive Map at www.icty.org/sections/TheCases/InteractiveMap. The Humanitarian Law Center in Kosovo has registered a total of 14,554 victims of murders and disappearances in Kosovo prior to, during the armed conflict, and immediately after the deployment of international troops in Kosovo (January 1998–December 2000); the full list is available at www.kosovomemorybook.org/db/kkp_en/index.html. See also E Tabeau (ed), ‘Conflict in Numbers: Casualties of the 1990s Wars in the Former Yugoslavia (1991–1999)’ (Belgrade, 2009) at www.helsinki.org.rs/doc/testimonies33.pdf.
29The cases linked to this conflict tried before the ICTY are those of Ljube Boškoski (acquitted) and Johan Tarčulovski (sentenced to 12 years imprisonment).
30For a detailed discussion of the limitations of criminal trials in this regard see inter alia RA Wilson, Writing History in International Criminal Trials (Cambridge University Press, 2011), especially 1–23.
31Rule 105 of the ICTY Rules of Procedure and Evidence provides for the restitution of property and Rule 106 provides for compensation to victims. These rules are yet to be used.
32See the ICTY Completion Strategy Report, UN Doc S/2012/847 of November 2012, 12, para 60.
33ICTY Completion Strategy Report November 2014, at 32, para 51.
34See the letter addressed to the UN Secretary-General by the President of the ICTY, UN Doc S/2000/1063 (dated 12 October 2000), in Appendix ‘Victims’ compensation and participation’, at 18, para 48. President Jorda stated that the judges, prosecutors, defence counsel and legal officers at the Tribunal agreed that the need, or even the right, of the victims to obtain compensation is fundamental for restoration of the peace and reconciliation in the Balkans.
35See respectively the following Completion Strategy Reports: S/2009/589 (13 November 2009), paras 57–58; S/2010/270 (1 June 2010), paras 69–70; S/2010/588 (19 November 2010), para 78; S/2011/316 (18 May 2011), paras 89–90; S/2011/716 (16 November 2011), paras 58–59; S/2012/354 (23 May 2012), paras 61–62; and S/2012/847 (19 November 2012), paras 60–61.
36President Robinson's address before the United Nations General Assembly, Press Release VE/MOW/PR1460e (11 November 2011), available at www.icty.org/sid/10850.
37ICTY Completion Strategy Report, S/2012/847 (19 November 2012), para 61.
38See especially the ICTY Completion Strategy Reports of the Office of the Prosecution from 2008–2014 at http://www.icty.org/sections/AbouttheICTY/ReportsandPublications.
39ICTY Completion Strategy Report November 2014, at 29–30, para 40.
40See N Roht-Arriaza, ‘The Role of International Actors in National Accountability Processes’ in AB de Brito, C Gonzaléz-Enríquez and P Aguilar (eds), The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford University Press, 2001) 58.
41See inter alia J Meernik, ‘Justice and Peace? How the International Criminal Tribunal Affects Societal Peace in Bosnia’ (2005) 42(3) J of Peace Research 271–89; DE Arzt, ‘Views on the Ground: The Local Perception of International Criminal Tribunals in the Former Yugoslavia and Sierra Leone’ (2006) The Annals of the American Academy of Political and Social Science 226–39; A Kamminga, ‘Seeds of the Future: “Presence” of the Past in Relation to Ethnic Violence’ (2010) 1 KRISIS (Journal for Contemporary Philosophy) 42–62; SK Ivković and J Hagan, ‘Images of International Criminal Justice in the Former Yugoslavia’, in C Brants, A Hol and D Siegel (eds), Transitional Justice: Images and Memories (Ashgate, 2013) 181–202.
42There have been twenty guilty pleas at the ICTY. In order for a plea of guilty to be accepted, the Trial Chamber has to be satisfied that it is voluntary, informed and unequivocal and that facts point to the accused's responsibility for the charged crime. For more information see www.icty.org/sid/26.
43International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, ICJ Reports 2007, 43.
44The relevant provision reads: ‘The parliament of Serbia strongly condemns the crime committed against the Bosnian Muslim population of Srebrenica in July 1995, as determined by the International Court of Justice ruling.’ For more information see the English summary at www.parlament.rs/Third_Sitting_of_the_First_Regular_Session_of_the_.7296.537.html. For a brief discussion of this resolution see inter alia J Obradovic-Wochnik, ‘Serbia's Srebrenica Declaration: A Small Step, but in the Right Direction’ at www.iss.europa.eu/uploads/media/Serbias_Srebrenica_Declaration.pdf.
45Paragraph 76 of the ICTY 2012 Annual Report notes as follows: ‘The Prosecutor has expressed concern about the comments made by the new President of Serbia, shortly after his election, denying that genocide occurred in Srebrenica in July 1995. The statements, which are not acceptable, contravene the legal and factual findings of the Tribunal and of the International Court of Justice. Such rhetoric is a step backwards, aggravates victims’ suffering, and jeopardizes the fragile process of reconciliation in the Former Yugoslavia.’
46See inter alia ICTY Completion Strategy Report November 2014, at 32, paras 50–51. See also SA Sofos, ‘Inter-ethnic Violence and Gendered Constructions of Ethnicity in Former Yugoslavia’ (1996) 2(1) Social Identities: J for the Study of Race, Nation and Culture, 73–92; KH Brodersen, ‘The ICTY's Conditionality Dilemma: On the Interaction of Influences of the European Union's Conditionality Policy and the International Criminal Tribunal for the Former Yugoslavia on the Development of Rule of Law in Serbia’ (2014) 22 (3) Eur J of Crime, Criminal Law and Criminal Justice, 219–48; and S Keil, Multinational Federalism in Bosnia and Herzegovina (Farnham, Burlington; Ashgate, 2013).
47ICTY Completion Strategy Report November 2014, at 32, para 50. See also S Parmentier; EGM Weitekamp, ‘Victimisation during and after War: Empirical Findings from Bosnia’ in DL Rothe and D Kauzlarich (eds), Towards a Victimology of State Crime (London, Routledge, 2014) 149–169.
48ICTY Completion Strategy Report November 2014, at 32, para 51.
49See inter alia Z Čustović, ‘Segregation, Education and Nationalism: Two Schools Under One Roof System in Bosnia and Herzegovina’, 30 October 2014, at http://politheor.net/segregation-education-and-nationalism-two-schools-under-one-roof-system-in-bosnia-and-herzegovina-2/; D Dzidic, Bosnia's Segregated Schools Maintain Educational Divide, 13 February 2015, at http://www.balkaninsight.com/en/Art/bosnia-s-segregated-schools-maintain-educational-divide.
50SA Barbour, ‘Making Justice Visible: Bosnia and Herzegovina's Domestic War Crimes Trials Outreach’, in C Ramírez-Barat (ed), Transitional Justice, Culture, and Society: Beyond Outreach (New York : Social Science Research Council, 2014) 96–138. See also P Bergling, ‘Failures of Trust: Anti-Corruption in Bosnia and Herzegovina’, in T Madell (ed) Utblick och inblick: vänbok till Claes Sandgren (Uppsala, Iustus Förlag, 2014) 43–56.
51See respectively Art 49 of Geneva Convention I (GCI); Art 50 of Geneva Convention II (GCII); art 129 of Geneva Convention III (GCIII); art 146 of Geneva Convention IV (GCIV); arts 11 and 85 of Additional Protocol I (API). See also art 2 (grave breaches of the Geneva Conventions of 1949) and 3 (violations of the laws or customs of war) of the ICTY Statute. With regard to customary international law norms see Rule 151–15 on individual criminal responsibility for war crimes in J-M Henckaerts and L Doswald-Beck (eds), Customary International Humanitarian Law, Volume I: Rules (ICRC, Cambridge University Press, 2005) 551–67. For a discussion of the system of the grave breaches system see inter alia Y Sandoz, ‘The History of the Grave Breaches Regime’ (2009) 7 J of Int Criminal Justice 657–82.
52See Art 3 of the Hague Convention regarding the Laws and Customs of Land Warfare, 1907 Hague Convention IV; Art 51 of GCI; Art 52 of GCII; Art 131 of GCIII; Art 148 of GCIV; and Art 91 of API. For a detailed discussion of this topic see inter alia L Zegveld, ‘Remedies for Victims of Violations of International Humanitarian Law’ (2003) 85 Int Rev of the Red Cross 497–526, noting that international humanitarian law does not expressly guarantee victims a right to a legal remedy. On the right to a remedy under human rights law see inter alia Art 13 of the European Convention on Human Rights and Art 2(3) of the International Covenant on Civil and Political Rights. For a detailed discussion on remedies see inter alia D Shelton, Remedies in International Human Rights Law, 2nd ed (Oxford University Press, 2005).
53Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by General Assembly Resolution 60/147 of 16 December 2005 (Basic principles).
54Basic principles, 3(a).
55Ibid, 3(b).
56Ibid, 3(c).
57Ibid, 3(d).
58ICTY, Prosecutor v Tadić (IT-94-1-A), Appeals Chamber Judgment, 15 July 1999, para 190.
59Report of Serge Brammertz, Prosecutor of the International Tribunal for the Former Yugoslavia, provided to the Security Council under paragraph 6 of Security Council resolution 1534 (2004), UN Doc S/2013/678, 18 November 2013, 25, para 45.
60For a general overview and information on the process of transitional justice in the Balkans see inter alia www.balkaninsight.com/en/page/balkan-transitional-justice-home. See also the work of the International Center for Transitional Justice on the Former Yugoslavia at http://ictj.org/our-work/regions-and-countries/former-yugoslavia.
61Law on Court of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, 29/00, 16/02, 24/02, 3/03, 37/03, 42/03, 4/04, 9/04, 35/04, 61/04, 32/07, Art 24.
62Criminal Code of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, 3/03, Chapter Seventeen (Crimes against Humanity and values protected by international law), Arts 171–203.
63Criminal Code of Bosnia and Herzegovina, Art 19.
64Human Rights Watch, ‘Justice for Atrocity Crimes, Lessons of International Support for Trials before the State Court of Bosnia and Herzegovina’ 2012, 20, at www.hrw.org/sites/default/files/reports/bosnia0312_0.pdf.
65See note 17 above. See also OSCE, ‘The Processing of ICTY Rule 11bis cases in Bosnia and Herzegovina: Reflections on Findings from Five Years of OSCE Monitoring’, January 2010.
66See Jurist, ‘Bosnian Muslims on Trial for War Crimes against Serbs’, 20 April 2012, at http://jurist.org/paperchase/2012/04/bosnian-muslims-on-trial-for-war-crimes-against-serbs.php.
67OSCE in Bosnia and Herzegovina, War Crimes Processing Project, 2, at www.oscebih.org/documents/osce_bih_doc_2013032512531594eng.pdf.
68OSCE Mission to Bosnia and Herzegovina, Accountability for war crimes, at www.oscebih.org/Default.aspx?id=70&lang=EN.
69United Nations Human Rights Committee, concluding observations on the second periodic report of Bosnia and Herzegovina, 106th session, 15 October to 2 November 2012, para 9, at www.ohchr.org/en/countries/enacaregion/pages/baindex.aspx.
70B Ivanišević, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court (International Center for Transitional Justice, 2008) 43. See also Human Rights Watch Report, ‘Narrowing the Impunity Gap: Trials before Bosnia's War Crimes Chamber’, February 2007, at www.hrw.org/reports/2007/02/11/narrowing-impunity-gap. See also O Martin-Ortega, ‘Beyond The Hague: Prosecuting War Crimes in Bosnia and Herzegovina’, in J Gow, R Kerr and Z Pajić (eds), Prosecuting War Crimes: Lessons and Legacies of the International Criminal Tribunal for the Former Yugoslavia (Routledge, 2014).
71See Human Rights Law Committee, Durić v Bosnia and Herzegovina, CCPR/C/111/D/1956/2010, 16 July 2014; and Selimović et al v Bosnia and Herzegovina, CCPR/C/111/D/2003/2010, 17 July 2014.
72OSCE, ‘Delivering Justice in Bosnia and Herzegovina, An Overview of War Crimes Processing from 2005 to 2010’, 94.
73See inter alia I Josipović, ‘Responsibility for War Crimes before National Courts in Croatia’ (2006) 88 Int Rev of the Red Cross 145–68.
74For more details see www.veritas.org.rs/spiskovi/procesuirani-za-ratne-zlocine-u-rh. See also Organizacija za europsku sigurnost i suradnju, Misija u Republici Hrvatskoj Glavni ured, Osnovno Izvješće: Postupci za Ratne Zločine pred Domaćim Sudovima (Main Report: war crimes trials before national courts, 2006).
75SR Petrovu, ‘Hrvatu koji se borio za srpsku nejač (The trial of R. Petrov a Croat who fought for the Serbian infants)’, Večernji list, 19 July 2012.
76Human Rights Watch, ‘2012 World Report – Croatia’ at www.hrw.org/world-report-2012/world-report-2012-croatia.
77 Ibid.
78Article 1, Official Gazette No 80/1996. See also European Court of Human Rights, Marguš v Croatia, Application No 4455/10, 27 May 2014 (Grand Chamber). The European Court noted that, ‘In the present case the applicant was granted amnesty for acts which amounted to grave breaches of fundamental human rights such as the intentional killing of civilians and inflicting grave bodily injury on a child, and the County Court's reasoning referred to the applicant's merits as a military officer. A growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances’ (para 139).
79United Nations Human Rights Committee, Concluding observations on Croatia, 97th session, 12–30 October 2009, para 10. It also noted that ‘It regrets the lack of statistical information provided by the State party on the ethnicity of the perpetrators and victims in national war crimes proceedings.’
80 Ibid.
81Amnesty International, ‘New Croatian Government Must Deliver War Crimes Justice’, 23 December 2011, at www.amnesty.org/en/for-media/press-releases/new-croatian-government-must-deliver-war-crimes-justice-2011-12-23.
82V Peskin and MP Boduszynski, ‘International Justice and Domestic Politics: Post-Tudjman Croatia and the International Criminal Tribunal for the Former Yugoslavia’ (2003) Europe–Asia Studies 1117–42. See also T Cruvellier and M Valiñas, ‘Croatia: Selected Developments in Transitional Justice’ (International Center for Transitional Justice, December 2006).
83The Macedonian Act on Amnesty, Official Gazette of the Republic of Macedonia No 18, 8 March 2002, at www.ecoi.net/file_upload/1329_1202725936_sb39-mcd-amnlaw-080302.pdf.
84 Ibid, Art 1.
85ICTY, Prosecutor v Boskoski and Tarculovski, Case No IT-04-82-A, Appeal Judgment of 19 May 2010.
86For a detailed discussion see inter alia M Freeman, Necessary Evils: Amnesties and the Search for Justice (Cambridge University Press, 2009).
87Amnesty International, ‘Macedonia: Time to Deliver Justice to the Victims of War Crimes’, 1 September 2011, at www.amnesty.org/en/for-media/press-releases/macedonia-time-deliver-justice-victims-war-crimes-2011-09-01.
88SJ Marusic and S Dimovski, ‘Macedonian Court Rejects Review of War Crimes Amnesty’, 31 October 2012, at www.balkaninsight.com/en/Art/macedonian-court-rejects-review-of-war-crimes-amnesty.
89For a timeline of key dates and events in transitional justice in Serbia see M Ristic, ‘Timeline – Transitional Justice in Serbia’, at www.balkaninsight.com/en/Art/timeline-transitional-justice-in-serbia.
90Article 2, Law on Organization and Competence of Government Authorities in War Crimes Proceedings.
91 Ibid, art 3.
92For more details see www.tuzilastvorz.org.rs/html_trz/pocetna_eng.htm. See also MS Ellis, ‘Coming to Terms with its Past – Serbia's New Court for the Prosecution of War Crimes’ (2004) 22 Berkeley J of Int Law 165.
93Article 9, Law on Organization and Competence of Government Authorities in War Crimes Proceedings.
94See inter alia M Majić and D Ignjatović, ‘Ten Lessons from Serbia's Experience in War Crimes Issues’ FICHL Policy Brief Series No 9 (2012), 3, at www.fichl.org/fileadmin/fichl/documents/FICHL_Policy_Brief_Series/FICHL_PB9.pdf.
95Republic of Serbia, Office of the War Crimes Prosecutors, ‘Cases’, at www.tuzilastvorz.org.rs/html_trz/predmeti_lat.htm. See also B Ivanišević, ‘Against the Current – War Crimes Prosecutions in Serbia’ (International Center for Transitional Justice, 2007) at http://ictj.org/sites/default/files/ICTJ-FormerYugoslavia-Crimes-Prosecutions-2007-English_1.pdf.
96Human Rights Watch, ‘World Report 2012 (Serbia)’ at www.hrw.org/world-report-2012/serbia.
97For more detailed information see inter alia the case law of the ICTY, especially Milošević (IT-02-54); Đorđević (IT-05-87/1); and Šainović et al (IT-05-87). The Tribunal issued indictments against 16 individuals for the crimes committed in Kosovo.
98So far Kosovo has been recognised by 96 states. For more information see www.mfa-ks.net/?page=2,33. See also International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 403.
99For an overview of the activity of UNMIK see www.unmikonline.org/pages/default.aspx.
100For a detailed discussion of the investigation and prosecution of war crimes in Kosovo see inter alia T Perriello and M Wierda, ‘Lessons from the Deployment of International Judges and Prosecutors in Kosovo’ (International Center for Transitional Justice, 2006); OSCE, ‘Kosovo's War Crimes Trials: An Assessment Ten Years On 1999–2009’ (OSCE, 2010), at www.osce.org/kosovo/68569; Amnesty International, ‘Kosovo: Time for EULEX to Prioritize War Crimes’ (Amnesty International, 2012). For more information on relevant cases and documents see also www.hlc-kosovo.org under ‘Transitional Justice’.
101See inter alia B Borchardt, EULEX Head of Mission, EULEX and War Crimes, 14 June 2013, at www.eulex-kosovo.eu/en/news/000427.php.
102For more information on the SITF see http://www.sitf.eu/images/fact_sheets/sitf_factsheet_en.pdf.
103United Nations Human Rights Committee, concluding observations on the second periodic report of Bosnia and Herzegovina, 106th session, 15 October–2 November 2012, para 8.
104Strategija tranzicijske pravde u Bosni i Hercegovini 2012–2016 (Draft Strategy of Transitional Justice in Bosnia and Herzegovina 2012–2016), at www.mpr.gov.ba/aktuelnosti/propisi/konsultacije/Strategija%20TP%20-%20bosanski%20jezik%20fin%20doc.pdf. This strategy was refused by several non-governmental organisations in Republika Srpska, D Dzidic, ‘Bosnian Transitional Justice Strategy Hits First Bump’, 1 November 2012, at www.balkaninsight.com/en/Art/bosnian-transitional-justice-strategy-hits-first-bump.
105Draft Strategy of Transitional Justice in Bosnia and Herzegovina 2012–2016, 14–17, 26–27, 46–80.
106United Nations Human Rights Committee, Concluding observations on the second periodic report of Bosnia and Herzegovina, 106th session, 15 October–2 November 2012, para 8.
107Belgrade Humanitarian Centre, ‘Transitional Justice in Post-Yugoslav Countries’ (Report for 2007) 45.
108See art 9, Law on Changes and Amendments to the Law on Basis of Welfare, Care for Civilian War Victims, Care for Families with Children, Official Gazette of Federation of Bosnia and Herzegovina, No 39/06.
109See art 2, Law on Rights of Veterans, Disabled Veterans and Families of Killed Veterans of the Defence and Homeland War of Republika Srpska, Official Gazette of the Republika Srpska, No 46/04 and 53/04, art 4; Law on the Protection of Civilian War Victims, Official Gazette of the Republika Srpska No 25/93, 1/94, 32/94, 37/07 and 60/07).
110United Nations Human Rights Committee, Concluding observations on the second periodic report of Bosnia and Herzegovina (2012), para 8.
111Amnesty International, Submission for BiH Progress report, EUR 63/007/2012, May 2012, 8, at www.unhcr.org/refworld/pdfid/4fb383a72.pdf.
112European Court of Human Rights, Đurić and others v Bosnia and Herzegovina, Application Nos 79867/12, 79873/12, 80027/12, 8020/12 and 115/13, 20 January 2015. More specifically, the court noted that ‘While a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights is inherent in the whole of the Convention, the consequence of the respondent State's action in delaying for another 20 years the enforcement of these judgments is to impose an individual and excessive burden on the creditors concerned’ (para 30). See also J Borger, Bosnia rape victims may claim compensation for first time, The Guardian, 30 June 2015.
113Belgrade Humanitarian Centre, ‘Transitional Justice in Post-Yugoslav Countries’ (Report for 2007) 67.
114Ministarstvo za ljudska prava i izbjeglice BiH; Izbjeglice, raseljeni i stambena politika (Ministry for Human Rights and Refugees of Bosnia and Herzegovina; Refugees, displaced and housing policy), at www.mhrr.gov.ba/izbjeglice/default.aspx?id=6&langTag=bs-BA. For a detailed discussion see inter alia A Buyse, Post-Conflict Housing Restitution: The European Human Rights Perspective with a Case Study on Bosnia and Herzegovina (Antwerp, Intersentia, 2008).
115Belgrade Humanitarian Centre, ‘Transitional Justice in Post-Yugoslav Countries’ (Report for 2007) 54.
116 Ibid, 68–69.
117Amnesty International, ‘Briefing to the European Commission on the ongoing concerns over impunity for war crimes in Croatia’ (October 2011), 57–59, at www2.ohchr.org/english/bodies/hrc/docs/ngos/AI-1_Croatia_HRC105.pdf.
118 Ibid, 8.
119See, for instance, ECtHR, Skendžič and Krznarič v Croatia, Application No 16212/08, 20 January 2011, where the European Court of Human Rights found violations of procedural dimension of art 2 (right to life) of ECHR.
120Belgrade Humanitarian Law Centre, ‘Material Reparations for Human Rights Violations Committed in the Past: Court Practice in the Republic of Serbia’ 5, www.hlc-rdc.org/wp-content/uploads/2013/01/Material_Reparations.pdf.
121 Ibid.
122 Ibid, 59.
123See inter alia the Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe Following his visit to Serbia on 12–15 June 2011, CommDH(2011)29, 22 September 2011, paras 24–27; Concluding remarks of the Human Rights Committee on the Implementation of the International Covenant on Civil and Political Rights in 2004 and 2011, respectively CCPR/CO/81/SEMO, 12 August 2004, paras 7–15 and CCPR/C/SRB/CO/2, 20 May 2011, paras 10 and 12, at www2.ohchr.org/english/bodies/hrc/sessions.htm; Concluding remarks of the UN Committee for the Prevention of Torture on the Implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT/C/SRB/CO/1, 19 January 2009, 8, para 18, at www2.ohchr.org/english/bodies/cat/cats41.htm.
124United Nations Human Rights Committee, 101st session New York, 14 March–1April 2011, Concluding Observations of the Human Rights Committee on Serbia, para 10.
125 Ibid.
126United Nations Committee Against Torture, 41st session, 3–21 November 2008, Concluding Observations on Serbia, para 18.
127Thomas Hammarberg, the former Council of Europe Commissioner for Human Rights, 22 September 2011, CommDH(2011)29, para 60.
128Belgrade Humanitarian Law Centre, ‘Material Reparations for Human Rights Violations Committed in the Past: Court Practice in the Republic of Serbia’, January 2012, 59, at www.hlc-rdc.org/wp-content/uploads/2011/12/Material_Reparations.pdf.
129 Ibid.
130Belgrade Humanitarian Law Centre, Predsednik Srbije Boris Tadić se prilikom prve posete BiH, 6 decembra 2006 godine u Sarajevu, izvinio u ime srpskog naroda (President of Serbia, Boris Tadić, apologised on behalf of Serbian people, during his first visit to Bosnia and Herzegovina, 6 December 2006 in Sarajevo), at www.hlc-rdc.org/?p=13592.
131S Parmentier and E Weitekamp, ‘Punishing perpetrators or seeking truth for victims: What does the population in Serbia think about dealing with war crimes?’ (2013) 13 Int Criminal Law Rev (Special Issue on International Criminal Justice) 43–62.
132UNDP, ‘Public Perceptions on Transitional Justice: Report on Transitional Justice Opinion Polling Survey Conducted in April–May 2007 in Kosovo’ (Prishtina, May 2007).
133UNDP, ‘Perceptions on Transitional Justice: Kosovo’ 2012, 18, at www.undp.org/content/dam/kosovo/docs/TJ/English-Web_965257.pdf.
134ICTY Completion Strategy Report November 2014, at 23, para 5.
135See inter alia J Subotić, Hijacked Justice: Dealing with the Past in the Balkans (Cornell University Press, 2009) 169.
136See inter alia Amnesty International, ‘When Everyone is Silent: Reparation for Survivors of Wartime Rape in Republika Srpska in Bosnia and Herzegovina’ (Amnesty International Publications, 2012); LC Turano, ‘The Gender Dimension of Transitional Justice Mechanisms’ (2011) 43 New York University J of Int Law and Politics 1045–86.
137See Council of Europe Commissioner for Human Rights, ‘Post-war justice and durable peace in the Former Yugoslavia’ (February 2012) 26–28. For concrete suggestions on how to overcome this situation see P Van der Auweraert (with the collaboration of I Cvetkovski), ‘Reparations for Wartime Victims in the Former Yugoslavia: In Search of the Way Forward’, (International Organization for Migration, June 2013). The report supports a regional reparations effort, whereby the affected states come together and establish a program that covers all victims of wartime violations during the Yugoslav wars (26).
138See inter alia S Parmentier, M Rauschenbach, and E Weitekamp, ‘Repairing the Harm of Victims after Violent Conflict: Empirical Findings from Serbia’ (2014) 20 (1) Int Rev of Victimology 85–99; S Parmentier and E Weitekamp, ‘Punishing Perpetrators or Seeking Truth for Victims: What does the Population in Serbia think about Dealing with War Crimes?’ (2013) 13 Int Criminal Law Rev (Special Issue on International Criminal Justice) 43–62; NA Jones, S Parmentier and E Weitekamp, ‘Dealing with International Crimes in Post-War Bosnia: A Look through the Lens of the Affected Population’, (2012) 9 (5) Eur J of Criminology 553–64; UNDP, ‘Perceptions on Transitional Justice: Kosovo 2012’, S Parmentier, M Valiñas and E Weitekamp, ‘How to Repair the Harm after Violent Conflict in Bosnia? Results of a Population-Based Survey’, (2009) 27 (1) Netherlands Quarterly of Human Rights 27–44; and UNDP, ‘Public Perceptions on Transitional Justice: Report on Transitional Justice Opinion Polling Survey Conducted in April–May 2007 in Kosovo’ (Prishtina, May 2007).
139 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment of 3 February 2015, para 523, at http://www.icj-cij.org/docket/files/118/18422.pdf.
140Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), para 16.
141See inter alia N Ronzitti, ‘Access to Justice and Compensation for Violations of the Law of War’, in F Francioni (ed), Access to Justice as a Human Right (Oxford University Press, 2007) 95–134.
142See inter alia E Kiza and H-C Rohne, ‘Victims’ Expectations towards Justice in Post-Conflict Societies: A Bottom-Up Perspective’, in R Henham and M Findlay (eds), Exploring the Boundaries of International Criminal Justice (Ashgate, 2011) 75–103.
143See inter alia T Hammarberg, ‘Justice and Reconciliation Cannot be Delayed’, 19 March 2012, at www.balkaninsight.com/en/Art/justice-and-reconciliation-cannot-be-delayed. For a detailed discussion see the issue paper of the Commissioner for Human Rights (Council of Europe), ‘Post-War Justice and Durable Peace in the Former Yugoslavia’ (February 2012) at www.coe.int/t/commissioner/Source/prems/Prems14712_GBR_1700_PostwarJustice.pdf.
144Y Sooka, ‘Foreword to the Book’ in S Peté and M du Plessis (eds), Repairing the Past? International Perspectives on Reparations of Gross Human Rights Abuses (Intersentia, 2007).
145F Lafontaine, ‘Transitional Justice’, in A Cassese et al (ed), The Oxford Companion to International Criminal Justice (Oxford University Press, 2009) 539.
146See inter alia P McAuliffe, ‘Transitional Justice and the Rule of Law: The Perfect Couple or Awkward Bedfellows’, (2010) 2 Hague J on the Rule of Law 127–54.
147Belgrade Humanitarian Centre, ‘Transitional Justice in Post-Yugoslav Countries’ (Report for 2007) 70.
148 Ibid.