The Srebrenica-Potocari Memorial and Cemetery, in Potocari, Bosnia-Herzegovina, is a good place for visitors new to the region to begin to understand some of the unresolved facets and lingering resentments of the wars. The memorial, with significant donations from the U.S. and other foreign governments, opened in 2003 at the site of the U.N. base in Potocari, where Muslims had unsuccessfully sought refuge. (In 2005, Bosnian police found two bombs at the site just days before a ceremony on the 10-year anniversary of the Srebrenica massacre.) The long stretches of graves are occasionally interrupted by open ditches, ready for new burials. As of this past summer, fewer than six thousand of the 7,000 to 8,000 people massacred were buried here; remains in mass graves are difficult to identify, a source of ongoing torment to the families of those killed.
A detailed explanation of the identification process is offered at the Sarajevo office of the International Commission on Missing Persons, which collects blood samples from relatives of the victims with the hopes of matching the DNA to collected bone samples. The International Committee for the Red Cross estimates that more than 13,000 people remain missing from the wars in Croatia, Bosnia-Herzegovina and Kosovo, in addition to those killed and victimized by displacement, torture and other forms of abuse.
How to address such massive crimes? Trials were not the obvious solution as Yugoslavia was being torn apart by war. Any momentum created by Nuremberg and Tokyo tribunals was halted by the divisions of the Cold War, which prevented the international community from agreeing on a new international criminal tribunal. But the field of “transitional justice” – the use of justice mechanisms in transitioning societies to address crimes from a period of war or oppression – started to solidify in 1980s and 1990s. A number of books, including Kathryn Sikkink’s “The Justice Cascade,” identify the factors involved, including the strengthening of the global human rights movement and the transitions to democracy in Latin American and Eastern European nations. Trials, truth commissions, lustration and reparation polices became increasingly common in post-conflict settings; memorials and local reconciliation rituals or programs also joined the mix of “justice” tools.
The end of the Cold War was a key factor in the U.N.’s ability to form international criminal tribunals for situations in which domestic courts were too unstable to credibly handle their own cases. (The ICTY was nevertheless an unlikely institution and struggled in its early years to become a credible court; as has been documented in several accounts, the Western powers behind the court were themselves somewhat ambivalent about their support, mostly out of a concern for the delicate political balance required to achieve and then sustain peace in the region.) In addition to the ICTY, the U.N. created the International Criminal Tribunal for Rwanda, for the 1994 genocide, and has played a role in establishing so-called hybrid ad hoc tribunals – staffed by a mix of international and domestic professionals – to prosecute crimes from conflicts in places like Sierra Leone, Cambodia and East Timor.
The foundational theory of the field is that societies that do not account for past human rights violations are more likely to experience future turmoil and a reoccurrence of crimes, whereas transitional justice strategies can help promote democratization, victim and survivor healing, deterrence of future crimes, an accurate historical documentation of past crimes, and reconciliation, or at least a greater chance of stability in a nation or region.
The varying theoretical claims are not always backed by clear empirical evidence, but few advocates or academics support a total-amnesty approach without any attempt to document or address past crimes. What is more hotly contested is which justice mechanisms work best in particular settings. While it has become more common in recent years to view the mechanisms as complementary, debates continue over the value of “truth” versus “justice,” which often pits truth commissions against the more punitive trial approach.
Both critics and supporters of trials have relied on the ICTY to back their positions. By one assessment, the tribunal has run credible proceedings that have established important legal records of some of the worst atrocities, as well as new precedents in international criminal law. Though often criticized as a token gesture by Western nations unwilling to stop the bloodshed by intervening militarily, the tribunal’s achievements allowed proponents to successfully push for the creation of a permanent ICC. But the high costs and glacial movement of the tribunal’s cases, along with its inability to gain trust in resistant settings like Serbia or to measurably promote reconciliation (at times, it has seemed to do the opposite), raised concerns. Critics have used these shortcomings to argue that international tribunals are not only divisive but a waste of resources that could be spent better elsewhere in fledgling societies.
More practically, the shortcomings also contributed to the U.N. Security Council and the ICTY developing the 2003 completion strategy that placed an increased responsibility on the national courts. The completion strategy also reflected a belief that the passage of time had stabilized national governments of the former Yugoslavia to the point where they could begin to handle their own war crimes cases. (In fact, some war crimes trials had taken place in national courts in the region, though the credibility of the proceedings were of regular concern to human rights groups.)
The situation in Serbia was nevertheless harrowing in 2003. Milosevic was ousted in 2000 by the Democratic Opposition of Serbia, a tenuous alliance between the nationalism of Vojislav Kostunica, who became president, and the more moderate and pro-West factions led by Zoran Dindic, who became prime minister. Dindic operated behind Kostunica’s back to orchestrate Milosevic’s arrest and transfer to the ICTY in 2001. In March 2003, an organized crime group assassinated Dindic in an operation reportedly called “Stop The Hague.” The tragedy not only intensified crackdowns on organized crime, which had flourished under Milosevic, but it also created increased momentum for a War Crimes Chamber.
Significant domestic support already existed for the establishment of a new chamber for organized crime cases. International pressure from Europe and the U.S. along with the expectation of ICTY case transfers allowed the creation of the Belgrade War Crimes Chamber to be “folded into” the same process, according to OSCE’s Jovanovic; both new chambers were created in 2003. Jovanovic also said there was a genuine desire on the part of some Serb prosecutors and judges as well as other members of the government to prove that Serbia could handle its own war crimes cases.
Vukcevic said he accepted the job because he felt it was important and honorable work.
"We prosecute people whose hands are stained with blood and who brought shame on our country," he said. "Our children do not deserve to be left with such a heavy burden on their shoulders, and that is … a strong motive behind one’s decision to take on a duty like this."
A successful completion strategy would also require credible domestic prosecutions in the other republics. In Bosnia-Herzegovina, where the war had inflicted tremendous damage to physical and administrative infrastructures, the new domestic chamber required more formal international participation, even though there was a stronger demand for war crimes cases in that country. The U.N. Office of the High Representative for Bosnia-Herzegovina and the ICTY established a specialized war crimes chamber in Sarajevo that began operations in 2005. Though part of the domestic justice system, the court was set up as something of a hybrid with the participation of international judges and prosecutors who have been phased out of the operations over time. Like Serbia, Croatia’s war crimes cases have taken place without international participation, most of them in various local courts around the country, though recent reforms are designed to funnel the cases to specialized chambers.
All of these domestic efforts have received their share of mixed reviews over the years. The dedicated chambers in Bosnia-Herzegovina and Serbia have been generally viewed as meeting international legal standards for war crimes prosecutions. The cases in Croatia, with so many tried in dispersed local courts, have received the most criticism for perceived biases in predominantly targeting the country’s Serbs, many of whom have been convicted on weak evidence and in absentia. The process has become more professionalized in recent years as the prosecutor’s office has focused on more substantiated cases, including those against Croats, according to the OSCE. (The U.N. Mission to Kosovo, and more recently the European Rule of Law Mission in Kosovo, have been responsible for war crimes cases there; an OSCE report in 2010 found a systematic failure to process war crimes cases adequately.)
Though staffed only with Serbs, international assistance has played an important part in the establishment and operations of the domestic system. ICTY staff, the OSCE and the U.S. government have provided training to Serb prosecutors, judges and related personnel. The OSCE and an outside team of experts retained by the organization provided assistance in drafting the 2003 war crimes legislation, and the OSCE began monitoring all of the cases from the outset. The U.S. Marshals helped the Interior Ministry, which includes the police forces, establish a witness protection unit to protect and if necessary relocate witnesses. The chamber also has a victim and witness support unit, which coordinates logistical matters for witnesses and victims attending proceedings.
In Jovanovic’s view, some of the biggest challenges in 2003 resulted from the lack of experience in “highly complex criminal cases with cross-border dimensions” that would require the participation of reluctant witnesses and the incorporation of evidence and rulings generated by the ICTY – all procedurally new in Serbia. By and large, the technical assistance and hard work by domestic actors has succeeded. Despite criticism over a lack of cases against the highest-level remaining offenders, prosecutors and judges have demonstrated their ability to process complex and unpopular war crimes cases.
“Ten or 15 years ago, the idea that Serb judges and prosecutors would be conducting credible cases against Serbs in Belgrade for crimes committed during the wars was unthinkable,” said Mark Ellis, the executive director of the International Bar Association, an expert hired by the OSCE to evaluate the domestic environment in 2003 and assist with the drafting of the legislation. “I think in that historical context, you have to see it as a success.”
Ellis said he saw a critical mass of political will to get the chamber off the ground in 2003, noting that Serbian officials agreed to a number of important revisions to the proposed legislation before it reached the National Assembly. Still, Ellis, like many observers, recognized a strong “culture of impunity” in Serbia, and he knew that support of the cases would not be widespread throughout the state machinery and the public.
Indeed, training and the efforts by justice advocates – including prosecutors, judges and victims’ representatives – can only do so much in a setting that is extremely resistant to accountability mechanisms. One relatively uncontroversial theory in the area of transitional justice is that prosecutions and other justice mechanisms are more likely to take hold in societies that have a clean break with the past – a complete military victory or a toppling of a government – or where incoming and outgoing regimes reach some agreement about how to address past crimes. This was not the case after the end of the Milosevic era in Serbia, which has witnessed a constant push and pull between nationalist and reformist political forces without any agreement on how to forge a full reckoning of the wars and the complicated history that preceded them.