The Promise and Peril of Regional Truth Seeking in the Balkans
Jelena Subotić, 10.02.2010, (0)
The author assesses the projected ambitious goals of the recent regional non-governmental truth-seeking initiative for ex Yugoslavia, arguing that its innovative regional approach is both its strength and a significant weakness that might undermine the goal of establishing a coherent historical narrative.
The author assesses the projected ambitious goals of the recent regional non-governmental truth-seeking initiative for ex Yugoslavia, arguing that its innovative regional approach is both its strength and a significant weakness that might undermine the goal of establishing a coherent historical narrative.
Introduction
The past decade has seen an unprecedented surge of international interest in transitional justice – the systematic addressing of mass crimes of the past. Most of the scholarly discussion about transitional justice has focused on two major pragmatic and normative debates. The first question is whether societies coming out of violent pasts should set up any transitional justice initiatives at all or should instead focus on the future, leaving the past to rest. The second debate is about institutional design, where the choice for transitional democracies is limited to sequencing - what should come first, war crimes trials of individual perpetrators or truth commissions. In other words, the debate has been about what is more urgent for a traumatized postwar society: justice or truth and healing.
Most transitional justice literature sees reconciliation as the ultimate goal of transitional justice projects, regardless of the institutional form chosen (Minow, 1998). Reconciliation can come in many ways. It can include the creation of a reliable record of past events, offering a platform for victims to tell their stories and get some (emotional or material) compensation, proposing legal or political remedies to avoid future atrocities, and ascertaining guilt and determining accountability of perpetrators (Popkin and Roht-Arriaza, 1995).
Other scholars and transitional justice activists stress the beneficial consequences of societal catharsis that follow truth-seeking efforts and the prosecution of perpetrators (Wilson and Hamber, 2002). In this view, proportionate to the punishment of the perpetrators is the acknowledgment of victims’ suffering, which can come about only by the public reconstruction of the violent past, by establishing who did what to whom, why, and under whose orders (Rotberg, 2000).
In addition, transitional justice projects can have a demonstrative effect in that procedural justice helps reinforce democratic consolidation and instill society with respect for the rule of law (Teitel, 2000). Finally, some arguments in favor of transitional justice are made on purely moral grounds - it is the right thing to do, and transitional countries have a duty to bring former perpetrators to justice (Orentlicher, 1991).
Transitional justice in the former Yugoslavia
These questions have always been of critical importance in the aftermath of the catastrophic wars of Yugoslav secession. The brutal wars have produced parallel and often incommensurable political narratives. The discrepancies in ethnic accounts of what happened, how, and why among the Bosniacs, Serbs and Croats, but also Montenegrins, Kosovo Albanians and others, are so vast and profound that it is simply not possible that all the accounts are correct. In fact, it is much more probable that none of them are.
Furthermore, much of convenient “forgetting” of one’s own crimes and often highly exaggerated “remembering” of others’ atrocities has been a political act. In a highly uncertain political environment after the war’s end, Serbia, Croatia, the two Bosnian entities, as well as Kosovo, used the memory of the past to build the reputation of a “victim state” and project this self-designated status to the international community in exchange for valuable political rewards.
Finally, transitional justice, and especially cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, was – and still is – consistently used as a domestic political wedge issue, a defining difference between various political coalitions who vie for electoral domination. In both Croatia and Serbia, for example, conservatives as well as reformers used the issue of justice at The Hague as a way to paint the political opponents as either too cozy with the international community and therefore “unpatriotic” or too confrontational in relations with the West and therefore also, but in a different way, “unpatriotic.” To fulfill international requirements but also to compete for electoral votes, different Serbian and Croatian leaders at different times used the issue of cooperation with The Hague as a business transaction (arrest of war crimes suspects in exchange for international aid or negotiations for EU accession), and not as an issue of justice. This perceived barter seriously undermined the comprehensive process of dealing with the past in the region, and even further lowered the public’s interest in addressing the legacy of violence (Subotić, 2009).
The European Union has made it a requirement for the former Yugoslav states to cooperate with the ICTY in The Hague as a condition for EU accession. And while both Serbia and Croatia, after much foot dragging, finally agreed to improve cooperation with the ICTY by getting serious about arresting and transferring ICTY suspects (Croatia has fulfilled this requirement in 2006, Serbia is yet to arrest the number one Hague suspect, Bosnian Serb general Ratko Mladić), the memories of the war, the understanding of what caused it, who was to blame, who committed atrocities and against whom – remain deeply contested.
The past is not yet over
The root cause of this contestation is that, in the Balkans, the past is not yet over. The violence has stopped and the vitriolic rhetoric has eased, but the grand narratives of the nation, ethnicity, history, and territory have not been replaced. Serbia has emerged out of the disastrous era of Slobodan Milosevic a nation feeling wronged, isolated, and in an uncertain place between Europe and Russia. Croatia has made significant steps toward joining the European Union, but this appearance of international success has only solidified a strong feeling of historical vindication and a profound lack of interest in addressing the problematic nature of its “homeland war” and war crimes committed in its pursuit. Bosnia is back in the headlines as a troubling reminder that the Dayton Peace Process did not set the country toward a path of multiethnic coexistence, but much more toward a road to renewed instability, ethnic and cultural distrust, segregation and cycles of mutual reprisal.
In the Balkans, the links between addressing the past and democratic consolidation are direct. In Croatia, there are still significant obstacles to Serb refugee return. Very few Serb refugees have returned to the Krajina region, from which they were expelled during Operation Storm in 1995. This problem – a major one for Croatia’s democratic reputation – is a direct consequence of an unchanged national ideology in Croatia, according to which Serbs were deemed enemies, undesirables, and political aliens in Croatia. In 2006, the Croatian Parliament has passed a Declaration on Operation Storm, making it official policy of the Croatian state to remember the operation as a heroic military triumph that made the independent state of Croatia possible. The continuing denial in Croatia of mass human rights abuses committed against the Serb population during Operation Storm solidifies this view of the “homeland war” and Croatian past in the mind of both policymakers and the Croatian public. The lack of official addressing of Operation Storm crimes sends a signal to Croatian Serbs that nothing significant has changed in how Croatia views its past and its treatment of the Serb minority.
In Serbia, the continuation of nationalist ideology is also clear. The virulent reaction of the Serbian establishment and a great majority of its population to Kosovo’s declaration of independence in 2008 shows that the post-Milosevic government elites did not level with the Serbian people. They did not make a clean break with the past, reject nationalistic claims or put principles of human rights above claims to a mythical history and national identity. Instead, the new Serbian government – conservatives as well as reformers – have adopted the major nationalist framework from the Milosevic regime. This framework sees Serbia as a nation wronged, isolated, and unduly punished for crimes it did not commit. Kosovo’s independence was then interpreted as another sign of Serbia’s great tragedy and historical doom, and not a consequence of its misguided policies of the 1990s.
In Bosnia, the consequences of not addressing the past are even direr. The two ethnic entities – Republika Srpska and the Bosnian Federation – continue to feed each other’s intolerance and nationalisms by the failure to acknowledge the true nature of the grave human rights abuses committed during the Bosnian war. For many Bosniac politicians and much of the public, Republika Srpska is a quasi state born through genocide and ethnic cleansing. Bosniacs have interpreted the continuing denial of and silence about Bosnian Serb atrocities as further proof that no true coexistence is really possible. At the same time, Bosnian Serbs look at increasingly heated rhetoric by Bosniac leaders as a potential opening for making even more radical claims about Republika Srpska’s secession.
Coalition for RECOM
Recognizing this state of affairs, a group of dedicated human rights non-governmental organizations from Serbia (Humanitarian Law Center), Croatia (Documenta), and Bosnia (Research and Documentation Center) have been working since 2006 on creating the Regional Commission for investigating and disclosing the facts about war crimes and other serious human rights violations on the territory of the former Yugoslavia - RECOM (Coalition for RECOM, 2009). The commission would also investigate the fate of thousands of missing victims, an issue of great importance to survivors of the war (Wagner, 2008) and a problem that existing transitional justice institutions (domestic and international courts) are ill equipped to deal with.
The premise behind RECOM is that effective process of dealing with the past is through a regional approach that understands the historical and political context in which crimes were committed. In other words, the crimes themselves are understood to be of regional nature, and so is any hope of true regional reconciliation. Implicit in this approach is the critique of previous, haphazard attempts at truth telling in individual post-Yugoslav states. This critique is quite warranted considering the almost complete absence of a serious truth telling institution in Croatia, the failure of the truth commission in Bosnia and the embarrassment that was the quasi-truth commission former Serbian president Vojislav Koštunica set up.
The human rights activists behind RECOM have set lofty goals for this institution. The founders claim that RECOM can put an end to continuing lies about the past; it can provide public space for victims to speak up and generate some sympathy among the general public, especially from the society of perpetrators; it can create a comprehensive database of victims thus preventing the continuing manipulation of numbers; it can help war crimes prosecutors with evidence collection and witness handling; it can help search for the missing; and can set the foundation for better understanding and tolerance among former enemies (Coalition for RECOM, 2009).
In terms of institutional set up, RECOM is to be an official body formed, or at least, endorsed by the governments of the post-Yugoslav states while at the same time independent from them. It is to be a temporary institution with a finite mandate, located on the territory where crimes were committed. It is to be non-judicial, but still capable of conducting public hearings of victims. RECOM’s expansive mandate includes interviewing, evidence collecting and investigative authority, as well as capacity to issue recommendations on reparations and other types of redistributive justice (Coalition for RECOM, 2009).
The Coalition for RECOM has already organized five regional forums to discuss the institutionalization of the project. These regional meetings also included public testimonies from war victims, as examples of what a future commission would be engaged in day to day. So far, more than 500 nongovernmental organizations have joined the Coalition for RECOM, making it the most robust truth telling initiative yet in the region.
The promise and obstacles of RECOM
RECOM has much to recommend it. It is the brainchild of major human rights and transitional justice activists in the region. Its parent organizations have a well established track record as transitional justice leaders in the region. The quality of leadership, therefore, is not the question.
In addition, the Coalition for RECOM has systematically applied lessons from other international contexts as well as from previous failed truth telling experiments in Serbia and Croatia. Two lessons stand out as particularly salient.
First, involving broad segments of civil society, including victims groups, local human rights organizations, individuals, and experts is critical for the commission’s long term success. This is one of the principal lessons from the scholarship on transitional justice, and especially research on truth commissions (Hayner, 2001).
Second, the Coalition realized early on that in order to have any serious impact, the Commission needs to be recognized as an official body, endorsed by governments, and not only a civil society initiative detached and isolated from the corridors of power. To this end, the Coalition plans to carry out comprehensive social outreach, raise awareness of crimes of the past through public victim testimonies, and ultimately collect a million signatures of ordinary citizens, a symbolic gesture that is meant to put pressure on governments to endorse the commission as an official truth telling body (Coalition for RECOM, 2009).
This is, in fact, RECOM’s biggest strength as well as its biggest potential weakness. The commission faces significant challenges as it moves on, as none of the governments in the region have endorsed the project, and the societies themselves are deeply divided on what kind of a truth institution is most appropriate (Gaffney and Alić, 2008). Without official support, it is unlikely that the commission will have a broad social and political impact.
As valuable such an initiative is for future research into mass atrocities in the region, its findings will be largely irrelevant if there is no political will on either side to take the results seriously and streamline them into the political process. What the countries of the Balkans so desperately need are courageous political leaders who can say what was done was wrong, this is why, and this is why it can never happen again. So far, the only regional leader with some initiative in this regard has been former Croatian president Stjepan Mesić, who made repeated public claims that dealing with the past is important for Croatia’s democratization and Europeanization. The newly elected president of Croatia, Ivo Josipović, himself a premier international justice scholar, has also made similar claims. The region needs more of this approach, but no other politicians in the region show much interest in addressing past violence. In the Balkans, politicians seem to believe that dealing with the past is something that will lose you votes and is therefore not to be attempted, unless it can be used to whip up nationalist frenzy and electoral support.
RECOM’s decision to adopt a regional approach is also a double edged sword. The Coalition founders make a strong argument that the national commissions attempted so far have produced no results, and that a new approach is needed. It is unclear from this logic, however, why is the solution to regionalize the project instead of reconceptualizing a better national initiative? A more persuasive argument for regionalization is to overcome a unique obstacle to transitional justice in the former Yugoslavia – that fact that victims and perpetrators no longer live with one another in the same state which has made domestic calls for justice much more difficult to push through official state channels.
Another problem RECOM will have to face is the qualitative difference in types of crimes committed throughout the region. RECOM has made a decision to include minor conflicts, such as those in Slovenia and Macedonia, presumably in an effort to provide as comprehensive an account as possible. The political background and local dynamics of these conflicts, however, are fundamentally different from the “core” conflicts in Bosnia, Croatia, and Kosovo and an attempt to place these conflicts under one historical narrative will prove to be very difficult.
Conclusion: The importance of dealing with the past
With these obstacles in mind, the initiative for RECOM is still an incredibly worthy pursuit. Even if the Commission fails to accomplish all of its lofty goals, just keeping the memory of past atrocities in the mind of the public and state officials is valuable enough. But more importantly, initiatives such as RECOM are important if the Balkans have any chance of moving forward politically in a peaceful manner.
There is a direct connection between continuing instability in the region and failures to address legacies of the past. Systematic addressing of past abuses is not just a luxury of consolidated democracies. It is particularly critical for transitioning states, for states coming out of a violent era. It is important to find the truth about past atrocities, societal complicity in them, and political and ideological structures that made them possible. It is important to justify right from wrong politics, to become a “normal” society again (Dimitrijević, 2006). It is important for transitioning states to shift to a new political practice that clearly delegitimizes violence, intolerance, and ethnic hostility as a normal way of conducting policy. Only then can we begin to talk about democratic consolidation and reconciliation in the Balkans.
References:
Coalition for RECOM. (2009). "Why RECOM?", at http://www.korekom.org/webpage/1.
Dimitrijević, Nenad (2006). "Justice beyond Blame: Moral Justification of (the Idea of) a Truth Commission." Journal of Conflict Resolution 50(3): 368-382.
Gaffney, Conor and Aida Alić (2008) "First Regional Truth Commission Runs Into Doubts." Balkan Insight, August 5, at http://www.balkaninsight.com/en/main/analysis/12257.
Hayner, Priscilla B. (2001). Unspeakable Truths: Confronting State Terror and Atrocity. New York, Routledge.
Subotić, Jelena (2009). Hijacked Justice: Dealing with the Past in the Balkans. Ithaca, Cornell University Press.
Minow, Martha (1998). Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston, Beacon Press.
Orentlicher, Diane (1991). "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime." Yale Law Review 100: 2539-615.
Popkin, Margaret and Naomi Roht-Arriaza (1995). "Truth as Justice: Investigatory Commissions in Latin America." Law and Social Inquiry 20(1): 79-116.
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Teitel, Ruti G. (2000). Transitional Justice. Oxford, Oxford University Press.
Wagner, Sarah E. (2008). To know where he lies : DNA technology and the search for Srebrenica's missing. Berkeley, University of California Press.
Wilson, Richard and Brandon Hamber (2002). "Symbolic Closure through Memory, Reparation and Revenge in Post-Conflict Societies." Journal of Human Rights 1(1).
