A key event on the road to war was the 1980 death of Josip Broz Tito, the longtime leader of the Socialist Federal Republic of Yugoslavia who had held its six republics together since World War II. As recounted in many written works, including Gary Bass’ popular book about war crimes trials, “Stay the Hand of Vengeance,” Tito suppressed many of the ethnic divisions simmering from that war, which included massacres of Serbs by the Croatian fascists who supported the Axis powers, as well as reprisal attacks by the victors. His death led to a resurgence of nationalism and ethnic suspicions in the decentralized republic.
The void also made citizens of the republics more susceptible to attaching themselves to strong-willed nationalist leaders like Milosevic and Croatia’s Franco Tudjman, according to Kemal Kurspahic, whose book “Prime Time Crime: Balkan Media in War and Peace” documents Milosevic’s alarming control over the public mindset. Kurspahic writes that Milosevic first used the media to help maneuver his rise to power, then kept near-total control throughout his reign over the state media and other private news outlets, which were run by ardent supporters or intimidated from straying from the nationalist line; the state-owned TV channel was known as “Slobovision.” The endlessly promoted narrative was that of Serbia as the long-suffering victim that needed to defend itself against surrounding existential threats from Muslims in Kosovo and Bosnia, and Croats. (The narrative easily drowned out some of the courageous work of independent outlets.)
Drawing comparisons to Nazi Germany, one scholar, Nenad Dimitrijevic, describes the Milosevic government as “a populist criminal regime” characterized not by repression but popular support. Sabrina Ramet, who has published a number of academic works on Serbia, writes that Serbia suffers from “a denial syndrome” that when coupled with nationalist sentiments creates “a powerful concoction in which the society is able to escape into a mythic reality in which people (in this case, the Serbs) are portrayed as simultaneously heroic and victimized.” Outsiders more casually familiar with Serbia’s complicated history, including visiting journalists, might best avoid making such weighty assessments while at least grasping the obvious – that the carryover of nationalist sentiments was going to cause serious headaches for the ICTY. Similarly, Serbia, which is 83 percent Serb with small minorities of Albanians and Bosniaks, was never going to have a groundswell of popular support for domestic war crimes trials.
Of course, resistance within the government is the more problematic factor in pursuing war crimes cases. Milosevic’s fall did not bring a lustration or vetting policy – as seen, for example, in Eastern Europe after the dissolution of the Soviet bloc – that would have removed some of the corrupt and criminal elements from the government and mitigated the disastrous effects of his legacy. Many people in the army and the police have a vested interest in blocking cases.
"Obstruction is often inherent in these cases," Vukcevic said. "There are people within the police and military ranks who are still holding important positions in these institutions and who – directly or indirectly – were involved in war crimes. They will do anything in order to evade criminal prosecution."
One commonly cited problem, which Ellis had warned against in 2003, was the placement of the new war crimes investigations unit within the police forces, which means the unit is often investigating its own colleagues and has been viewed as traitorous. Human rights groups have questioned the unit’s initiative on occasion. According to one of its reports, the Humanitarian Law Center in 2006 successfully lobbied for the removal of the head of the war crimes investigations unit by contending there was evidence to suggest that he bears some responsibility for crimes committed during the Kosovo war.
War crimes cases are almost always extremely complicated, regardless of the jurisdiction or the preceding conflict, often as a result of evidentiary challenges created by a lack of paper trails or other documentation of criminal intent. This leads to a reliance on witnesses who, whether they are victims or “insiders” with knowledge of criminal acts, will likely be reluctant to testify. In the former Yugoslavia, witnesses are scattered throughout the region, often outside the jurisdiction of the cases to which they are relevant.
The OSCE has worked to facilitate cooperation between the different domestic prosecution offices for war crimes. Cooperation has been most effective between Serbia and Croatia, which entered into an agreement in 2006 over the exchange of evidence and cases to work around each country’s barring of extradition of their nationals. Serbia and Bosnia-Herzegovina have not reached a similar pact. Leaders of the three countries have also failed to iron out an agreement that would have each government focus on prosecuting its own citizens. This is desirable because the issuing of arrest warrants by one country for another country’s citizens has been controversial and often criticized as politically motivated. In one well-known example, a court in London in 2010 refused Serbia’s request for the extradition of Ejup Ganic, a former member of the Bosnian presidency, for his alleged responsibility for war crimes against the Yugoslav army. In 2011, an Austrian court refused an extradition request for former Bosnia-Herzegovina General Jovan Divjak, also wanted by Serbia authorities.
Relations between Serbia and Croatia also took a negative turn last year when Croatia’s parliament – in response to an indictment of Croat defendants forwarded on to Croatian prosecutors by Vukcevic’s office – passed a law purporting to invalidate all laws in Serbia that deal with the prosecution of Croatian citizens from the war. (Croatia’s prosecutor did not support the act and has continued to cooperate with Vukcevic’s team.)
Yet Serbia’s war crimes prosecution office has had some advantages, including the transfer of evidence from cases that the ICTY had already completed or initiated, giving Vukcevic’s team a head start in some domestic cases. The office also had evidentiary assistance from Kandic and the Humanitarian Law Center, which has been widely praised for locating witnesses in victim populations and securing their participation at trials. (In Serbia’s legal system, civil society organizations can represent victims in the trials and can file private criminal complaints in matters where the government has not acted.)
“They understood my explanation that they should fight for justice by directly participating in the trials, by testifying in court, because that means their testimony will live forever in the record,” Kandic explained in an interview. “Nobody can manipulate their testimony. Every word from their testimony will be there forever. They understood why that’s important.”
The international assistance has also been ongoing, in Serbia and elsewhere in the region. It culminated in recent years with the War Crimes Justice Project, a four-million-Euro effort funded by the European Union and run collaboratively by the OSCE, the ICTY and the U.N.’s Interregional Crime and Justice Research Institute. According to the OSCE's website, the project provided training to 800 legal professionals in the region and produced curriculum materials on international criminal law and ICTY caselaw that are tailored to each nation’s justice system. Part of the funding was used to translate tens of thousands of pages of ICTY trial transcripts and appellate decisions into local languages for use by national prosecutors and judges. The project also funded additional staff positions in the national chambers and prosecutor offices.
Perhaps more important is what this assistance has represented over the years – clear support of the domestic system by the European Union and the United States. Nationalistic politicians and media outlets have been vocal in their criticism of figures like Vukcevic and Kandic, but the importance of economic aid and the prospect of EU membership have prevented these hostile forces from shutting the domestic system down.
Vukcevic said the biggest threat came in 2004, when the justice minister and other members of the government wanted to get rid of the war crimes and organized crimes chambers and move their cases into the regular courts. He said EU support was instrumental.
"There have been pressures and threats, both from those who were in power in the early days of this office and from informal right-wing extremist groups," Vukcevic said. "At no point, however, has any such pressure or threat seriously hampered our efforts to prosecute war crimes."
Vukcevic said that he has sensed "real danger for my colleagues and myself in several situations so far," but that prosecutors do not let this interfere with the victims' right to justice. He added that his team has "complete faith in the state authorities which are responsible for our safety."