Time has a complicated relationship with war crimes trials. On the one hand, evidence disappears, witnesses die and memories fade, all of which can thwart or complicate cases. But the passage of time can also reduce the influence of obstructive forces, who themselves may die or at least retire – what Petrovic refers to as “lustration by biology.” This may make certain cases less politically challenging, and it clearly contributed to the weakening of fugitive support networks for ICTY indictees like Mladic.
At the same time, Mladic’s arrest and extradition was met with protests in Serbia with accusations of treason against the Tadic government. The protests were reportedly less intense than those in reaction to Karadzic’s arrest and transfer, but they nevertheless reveal how difficult it may be to prosecute any popular, high-ranking officials domestically. The OSCE polls also showed increases between 2009 and 2011 in the number of respondents who believe that Serbia should not cooperate with the ICTY, and in those who do not believe the domestic cases are contributing to reconciliation. The 2011 U.S. State Department human rights report for Serbia noted that judges and prosecutors for war crimes cases (as well as those for organized crime cases) continue to receive death threats, and that some personnel require full-time police protection.
At this early stage, it is unclear what effect, if any, the new Nikolic regime will have on the operations of the domestic war crimes system. Nikolic’s Serbian Progressive Party supports EU integration, and so it also supported Mladic’s arrest and extradition as necessary to fulfill Serbia’s obligations. Dissatisfaction with state corruption and the poor economy are the most common explanations for his victory. The news website Balkan Insight recently reported that ICTY chief prosecutor Brammertz had a positive meeting with Prime Minister Dacic about continued cooperation on war crimes cases.
Yet Jovanovic nevertheless worries that the passage of time could weaken the resolve to zealously pursue the most controversial cases, especially as the EU, largely satisfied with Serbia’s performance, scales back oversight and pressure. Bringing war crimes cases in Serbia, he said, does not come with a political payoff, unlike organized crimes cases, which are widely believed to threaten the state.
“It will very much depend on the personal ability, persistence, courage and determination of the investigators and prosecutors to produce some serious results, to take some personal risk and to make some unpopular moves,” he said.
If anything, the experience of Serbia and the former Yugoslavia generally suggests that a long-term commitment from both domestic and international institutions will likely be required develop a credible and constructive war crimes system in particularly resistant settings. That might be the most obvious lesson for justice advocates who interpret complementarity as mandating post-conflict trials in the image of the ICC. The International Bar Association’s Ellis, who is working on a book about complementarity, said that the lingering question in the ICC regime is who exactly will provide this training and assistance, given that the court itself has said it will not have the resources to do so.
“That is the gap in the paradigm of the Rome Statute,” Ellis said.
Serbia’s experience similarly suggests that fairly assessing societal outcomes will require a great deal of patience. It is probably unrealistic to have expected public opinion about the wars to have changed dramatically by now, given the powerful historical forces at play and the relative recency of Milosevic’s rule. Despite limited public engagement with the domestic cases, interviews with a range of stakeholders suggest that the cases have made it more common to talk about war crimes in Serbia. Stakeholders also suggest that a more realistic initial goal might be an increased acceptance among Serbs of some of the basic truths about the wars, rather than a shared understanding about the patterns of atrocities among different ethnic groups.
For example, Petrovic sees “a social consensus” developing in Serbia about the fact that many crimes were committed during the wars, and that something should be done in response.
“The term ‘war crimes’ used to be oxymoronic here,” Petrovic said. “People used to think, ‘If you’re waging war, nothing you do is a crime because it’s war.’ It sounds crazy. But the idea that something in war is not lawful is new here.”
Vukcevic similarly believes that the domestic cases, benefiting from greater legitimacy and a closer connection to the people, have contributed to a growing realization that criminal charges against Serbs result from "horrible crimes" and not from political motivations – the most frequent criticism of the ICTY.
"Afforded personal insight into the case proceedings, people will soon realize that the accused are not heroes but infamous criminals," Vukcevic said. "Once aware of that, people will easily come to terms with the fact that crimes were not committed only by people of other nationalities, but also by their compatriots – in this particular case, people of Serbian nationality."