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«Martina Fischer/Ljubinka Petrović-Ziemer Forschung DSF Nº 36 Dealing with the Past and Peacebuilding in the Western Balkans1 Martina ...»

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The representatives of the Commissions for Missing Persons are even more critical about the idea of a truth commission. Interviewees in all three countries express irritation, above all, at the REKOM campaign. They are concerned that the Coalition for REKOM questions their own fact-finding efforts and the achievements of the courts, police, and victims’ organisations in the region, and makes the public believe that evidence on missing and killed persons is not available or has been manipulated. A further point of criticism is that the activities undertaken by the REKOM campaign may lead to a duplication of efforts that is counterproductive.

The representative of the Commission for Missing Persons in Croatia explains that in the past, victims were asked to share their testimonies on war crimes with the police and legal institutions. Later on, NGO activists appeared and asked the same questions again.

According to this interviewee, many victims complained about this practice. This interviewee is convinced that such uncoordinated and arbitrary actions put an additional burden on those who are still suffering from the consequences of the war. Such actions, furthermore, suggest that the official institutions in charge of war crimes investigation are unreliable or incompetent, which damages trust-building processes.

4.3. Guiding concepts

4.3.1. Truth The representatives of the Commissions for Missing Persons in all three countries state that truth recovery is the highest priority for them, and that above all, this means forensic truth. They underscore that finding and identifying human remains is also the precondition for judicial truth and criminal justice. “There is not a crime [like a murder, author's note] that is committed without a human body, and there is no accountability and justice unless the mortal remains are found and identified” (CMP-SER-1). All representatives of the legal institutions (ICTY and domestic judiciary) who were interviewed emphasise that judicial truth is exclusively based on verified facts that help to establish evidence of the events and circumstances related to war crimes and the responsibility of the accused individuals. They believe that the facts established by the courts can reduce scope for speculation about what actually happened during the war and serve as a starting point for truth recovery on a societal level.

4.3.2. Justice All representatives of legal institutions interviewed agree that establishing justice is the primary goal of legal institutions and proceedings. As representatives of the domestic judiciary state, a verdict may establish justice only if it is based on verified facts that are proven beyond reasonable doubt. In the view of most of the interlocutors, by confirming the guilt of a perpetrator and handing down a binding sentence, the court serves the cause of justice. It is argued that justice is served by punishing the perpetrator. At the same time, interviewees concede that judicial justice in the form of war crimes prosecution will not automatically lead to acknowledgment of the suffering of the victims. In order to achieve this, compensation is needed. This could be established by a reparation programme for all victims regardless of their ethnic background. But so far, such programmes are not in sight.

4.3.3. Reconciliation The representatives of the domestic judiciary in all three countries are convinced that truth and justice can be served without reconciliation. They agree that political and societal reconciliation is beyond the mandate of legal institutions. Politicians are deemed to be responsible for inducing and managing such processes. Several interviewees also state that they find the concept too ambitious and avoid using the term. One interviewee from Bosnia illustrates this view: “We do not have to reconcile with each other, we have to tolerate each other and engage in cooperation” (L-BiH-5).

In contrast, for some representatives of the ICTY the concept of “reconciliation” is uncontested since it mirrors the efforts of individuals and societies for trust-building, shared values, and visions for a peaceful future.

According to the local and international representatives of legal institutions, it is an important obstacle for reconciliation that the wars of the 1990s themselves are not questioned by relevant parts of the societies and political decision-makers in the region. In addition to this, concern is expressed that the young generations are exposed to one-sided and biased narratives. It is also stressed that the notion of victimhood forms a barrier to reconciliation. The urge to present one's own experience as the most tragic one correlates with the need to be recognised as a victim by society. The refusal to acknowledge the suffering of others reflects the deep-rooted fear that an unconditioned recognition of the sufferings of others would cause the loss of one's own victim status.

As the representatives of legal institutions also point out, a prerequisite for reconciliation would be an unconditioned acknowledgment of the crimes committed by members of one's own ethnic constituency. Yet all of them are convinced that this level of political responsibility has not been reached so far. Furthermore, it is stated that a well-functioning judiciary, fair trials and judgments are important, as well as the identification of missing persons. Political apologies and visits by government representatives to sites of recent crimes are also considered important incentives for the societies to continue their trustbuilding efforts. Furthermore, education, employment, economic prosperity and crossborder cooperation initiatives are seen as crucial in paving the way for such a process.

The representatives of the Commissions for Missing Persons say that they avoid the term “reconciliation”, preferring the notion of trust and trust-building instead. They are convinced that the peoples of the former Yugoslavia have lost their trust in each other, which now needs to be carefully re-established. Trust-building and shedding light on the fate of the missing persons are considered to be the key prerequisites for rebuilding relationships in the region.

4.4. Learning processes and suggestions

Learning processes and suggestions from the perspective of legal institutions All interviewees agree that war crime proceedings require a large body of evidence which is time-consuming and challenging to compile. Due to the complexity of such trials, and in order to avoid misunderstandings, it is important to explain the legal proceedings thoroughly to all actors involved. Furthermore, several interviewees highlight that it is difficult to find an appropriate way to present the courts’ findings and judgments to the public. In general, the judgments would need to be presented in a language that is comprehensible for non-experts.

Representatives of legal institutions from all three countries concede that various civil society actors and relevant parts of the public are chronically dissatisfied with the work of the courts. The negative assessments of the work of the courts prevail, whilst the achievements and the positive changes within the judiciary are rarely mentioned in the reports of human rights activists, peace practitioners and journalists. Victims in particular are highly dissatisfied when the sentences are too low. Low sentences are often either interpreted as reflecting the courts’ incompetence or as a way of protecting the perpetrators. A further problem is that many people misunderstand the role of the judges and expect them to protect the interests of the victims from their own ethnic constituency.

Furthermore, one of the learning processes stressed by the domestic judiciary is that in a society that lacks the political will for war crimes prosecution, the judgments handed down by the courts will remain contested. However, these legal experts believe that, in the long run, war crimes prosecution makes a crucial contribution to peaceful co-existence, mutual understanding and trust-building. In their understanding, only when criminal justice is being served are the victims prepared to hear about the suffering of victims on the other side.

Therefore the interviewees suggest that the judiciary should anticipate criticism or political and social resistance and respond constructively to this dynamic.

Interviewees also point out that war crimes investigations still face a variety of problems. In the experience of representatives of legal institutions from all countries, gathering evidence is difficult because relevant documents have frequently been destroyed or access is obstructed by state institutions. Often the testimony of witnesses is the main source of information. Interviewees from all countries also stress that protection of witnesses who testify in the courtrooms has to be improved. The interlocutors see a need for state institutions to take measures to optimise the protection of the physical integrity and property of witnesses and victims. The interviewees suggest that regional cooperation needs to be intensified in this field, as witnesses also have to testify in courts in the other countries of the former Yugoslavia and need police protection both in their home country and at the places where they testify. If necessary, a change of residence should be organised for the victims. However, the interviewees also point out that such measures are costly and cannot be implemented without substantial support from international partners.

Apart from the general problems that are mentioned by representatives of legal institutions in all countries, some country-specific challenges and dilemmas are highlighted.

In Bosnia, where a large number of war crimes cases are still pending, the interviewees explain that it is a huge challenge for the judiciary to cope with so many cases in an adequate time frame. They point out that investigations of war crimes that were committed many years ago face many problems: After such a long time, there is a risk that witnesses’ memories will have faded, and that testimonies are not precise enough and additional time-consuming investigations are required. The interviewees explain that war crimes trials are very complex procedures as many witnesses need to be interviewed. “In very complicated cases approximately 100 witnesses are invited to give their testimonies.

Realistically, during a day of a trial only two or three witnesses can testify” (L-BiH-3). But it is difficult to explain these circumstances to a public that is already criticising the fact that war crime proceedings move too slowly. In the interviewees’ opinion, it is therefore important to raise awareness of the work of the courts and explain these circumstances to the public.

In Croatia, one representative of the legal institutions concedes that in the 1990s, former members of the Croatian army who were accused of war crimes were tried under mitigating circumstances. The judiciary argued that the Croatian army was merely defending its homeland, which in most cases resulted in lenient sentencing and acquittals.

This legal practice was abolished later on, but as this interviewee reports, it was – and still is – an enormous challenge for the courts to explain this change to the public. They encounter a great deal of criticism when they hold army commanders accountable. Excombatants in particular perceive such trials to be a retroactive degradation of their commitment to defend their country by risking their own lives. Furthermore, representatives of legal institutions from Croatia place too much emphasis on explaining the benefits of trials in absentia. Although the application of this legal instrument has been significantly reduced under pressure from the international organisations, representatives of the Croatian judiciary are still very much convinced of the merits of this practice, and argue against the suspension of such trials. They argue as follows: As the charges are in most cases issued for a group of war crimes suspects, suspending these trials would mean that those who have already been arrested and placed in custody would have to wait for their trial until the rest of the group is arrested, which is difficult if the suspects do not reside in Croatia and could take some years. It must also be assumed that in some cases, the innocence of some of the accused might be proved. For these detainees, the suspension of trials in absentia is reportedly unbearable. It is also mentioned that as a consequence of the suspensions of such trials, more space in detention facilities is required.

In Serbia, interviewees from domestic legal institutions concede that courts that try war criminals from Serbia still face a great deal of resistance, in particular from a strong rightwing movement. They also have to cope with a general lack of acceptance. According to the interviewees, witness protection needs to be improved, but there is still not much awareness of this problem. It is also stated that legal institutions in Serbia still show a lack of empathy with war victims beyond the Serb constituency and a lack of respect towards civil society actors who support these witnesses. One interviewee observes: “Even though not openly spoken, discrimination towards minorities and human rights activists who support minorities and war victims who do not belong to the major national group is also noticeable in legal institutions. Human rights activists in Serbia are treated as traitors even by representatives of domestic legal institutions” (L-SER-3).

Learning processes and suggestions from the perspective of the Commissions for Missing Persons As the interviewees report, the unsolved fate of missing persons frequently causes tensions among the members of different ethnic groups in local communities. Relatives have to cope with uncertainty over a long period of time, and they believe that members of the other ethnic groups conceal information on mass graves and thus obstruct the search for missing persons. This suspicion creates deep mistrust within ethnically divided communities. Due to the strong wish to determine the fate of missing persons, exhumation processes are accompanied by high expectations in local communities. Consequently, exhumation sites are regularly visited by people from nearby communities. At the same time, interviewees report that as soon as the process of identifying human remains is finished, tensions in the community decline, and the processes of dialogue and trustbuilding can then take place under more conducive conditions.

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