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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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(6) We assume that the understanding of truth and justice differs among TJ protagonists, as some are influenced by the human rights discourse, others by the peacebuilding debate. This leads to controversial expectations and assessments.

(7) We assume that different actors’ groups present different priorities and proposals for sequencing initiatives for justice, truth recovery and reconciliation.

(8) We assume that in general, TJ protagonists regard processes of facing the past as a contribution to reconciliation. However, we assume that there is no consensus on the necessary preconditions for paving the way to reconciliation.

We assume that war veterans’ and victims’ organisation attribute great (9) importance to justice and truth-finding, but are sceptical towards the concept of reconciliation, suspecting that it will be used as an excuse and legitimation for impunity.

46 Working hypothesis agreed by Martina Fischer, Ljubinka Petrović-Ziemer and Bodo Weber after consultation with our partners, May 2010. For a detailed outline of the project design and research questions see Berghof Report 18 (Fischer and Petrović-Ziemer 2013).

Summary Analysis47 and Policy Recommendations 3.

(by M. Fischer) 3.1. Coherence and compatibility of concepts and approaches The interviews with protagonists of transitional justice (representatives of legal and factfinding institutions, local CSOs, and international actors) reveal that more than 15 years after the Dayton Peace Accords, the signatory countries in the Balkans are still facing a variety of war legacies, although to varying degrees, given that they were involved in different ways in war operations. However, in all countries people continue searching for missing relatives, struggle for recognition as victims of war-related crimes, for redress, or for durable solutions after displacement. Others have to cope with painful memories, insecurity and mistrust, particularly if they are facing parallel societies or divided communities, as reported from Bosnia-Herzegovina or war-torn areas in Croatia.

TJ protagonists have observed some progress towards political reconciliation between Croatia and Serbia, due to public gestures of remembrance and recognition such as the visit by the then President of Serbia, Boris Tadić, and the President of Croatia, Ivo Josipović, to Vukovar.48 Tadić’s participation at the commemoration in Srebrenica in 2010 and the Srebrenica Declaration adopted by the Parliament of Serbia are seen as positive developments, although critical CSO activists and international representatives also point to the ambivalence of official gestures. One particular point of criticism is that high-ranking Serbian politicians tend to avoid explicit acknowledgment of existing borders (regarding Kosovo and the Republika Srpska in BiH). However, international actors conclude that ethno-nationalist arguments apparently no longer attract a broader audience in Serbia.

By contrast, in Bosnia the picture is less encouraging. A positive move, from the international actors’ perspective, is that a strategy for transitional justice has been developed by UNDP and state ministries in consultation with civil society actors in BiH.

Representatives from the UN, OSCE and EU express high expectations that this step will help to further advance the process of dealing with the past in this country. Local civil society experts are less optimistic (see Petrović-Ziemer 2013b). They see many obstacles to the implementation of such a strategy, due to the fragmentation of institutions and dominance of ethnopolitics. The findings of the field research in this country reflect the phenomena described for social reality after ethnopolitical war: a lack of identification with the political structures, inter-generational transmission of trauma, negative interdependence and polarisation (Bloomfield et. al 2003). Tensions in divided communities, selective forms of commemorations, and manipulation of victims, refugees or IDPs for political polarisation are important expressions of the “presence” of the past in this society. Some of these problems are also reported from war-torn regions in Croatia.

Questions of return and durable solutions for settlement and property restitution for refugees and IDPs (mostly in Bosnia and Serbia) are still pending and depend on the involvement of authorities in all three countries.

Although TJ protagonists see some progress in the dynamic of dealing with the past in the region, they observe that cultures of denial are still powerful in some sections of politics 47 This Chapter compiles findings of the empiric analyses conducted by Ljubinka Petrović-Ziemer, Martina Fischer, Srđan Dvornik, Ismet Seifija and Katarina Milićević published in Berghof Report 18 (ed. by M. Fischer and Lj.

Petrović-Ziemer 2013).

48 In November 2010, Tadić and Josipović laid wreaths to honour Croat victims at a memorial in Ovčara, near Vukovar.

The two leaders also visited a memorial for Serb civilians killed in the town of Paulin Dvor. Both towns were the scene of executions of prisoners and civilians during the war in 1991. See http://www.b92.net/eng/news/politicsarticle.php?yyyy=2010&mm=11&dd=04&nav_id=70684).

and society, and that they are often combined with the tendency to point to the victims of one’s own side in order to avoid recognising those of the others. Apparently, this pattern is most dominant in Bosnia, but also exists in the other countries.

It is noteworthy that many local CSOs perceive the dynamic of dealing with the past in the region as too slow. Most of them are convinced that policy-makers and governments in the region still show a very low degree of willingness to face the past (see Petrović-Ziemer 2013b), whereas international actors express a different view on this. Most of the latter, while agreeing that more could be done, are convinced that the countries in the region of former Yugoslavia are already rather advanced in this field, compared to developments in other post-war situations (see Fischer 2013a). This view is particularly emphasised by organisations from Germany (which compare the dynamic in the Balkans to the stages of memorialisation of the Holocaust and World War II in German society). International actors also point to the achievements of the ICTY and the domestic war crimes chambers in accountability and documentation, which have substantially contributed to advancing the dynamic, together with CSO activities in this field. In particular, international interviewees believe that EU conditionality has also significantly contributed to a positive dynamic. In contrast, CSOs have a more critical view of the EU conditionality policy (see PetrovićZiemer 2013b, 51): in their opinion, this concept has contributed to politicising the role of the ICTY.

3.1.1. TJ protagonists’ assessments of TJ mechanisms, concepts and approaches

Accountability: ICTY and domestic war crimes chambers Among the protagonists of transitional justice, all interviewed actors (representatives of legal and fact-finding institutions, local CSOs, and international actors) regard war crimes prosecution as indispensable, and all of these largely acknowledge the contribution of the ICTY. The Commissions for Missing Persons point to the ICTY’s assistance in disclosing information on sites where atrocities were committed. Domestic legal institutions mention, on the one hand, the Tribunal’s role in setting norms and reforming judicial proceedings.

On the other hand, they state that some of its practices (in particular elements of common law, and the practice of plea bargaining) have proved to be problematic (see PetrovićZiemer 2013a, 31). Among CSOs, divergent opinions are expressed. Most of them are convinced that the International Tribunal has established evidence and important archives, despite some serious criticisms of its legal practices, effectiveness, and information policy.

In contrast, representatives of war veterans’ and victims’ associations express more negative assessments, suspecting that the Tribunal operates with an ethnic bias and treats criminals from the “other side” more leniently than those of “their own” constituency.

Assessments of the performance and potential of the domestic courts are diverse as well.

CSOs – although they acknowledge improvements in the practice of the domestic courts, and see progress on sentencing in important cases (i.e. Ovčara, Scorpions, Glavaš, Norac/Ademi) – express less confidence in these institutions (see Petrović-Ziemer 2013b, 52), by comparison with international representatives and representatives of TJ institutions, who place more trust in them and assess them more positively (see Petrović-Ziemer 2013a, 33-35, Fischer 2013a, 74-76). Ethnopolitical bias and politicisation of the domestic judiciary, as well as slowness and a lack of witness protection are the deficiencies that are most frequently mentioned by CSOs in all countries. International actors, in contrast, are convinced that the legal institutions have overcome at least some of these problems, pointing in particular to the revision of in absentia trials, to increasing numbers of indictments and sentencing in cases where crimes were committed by members of the “own” constituency, and to more advanced cooperation among courts in the region.

The field research reveals that CSOs, TJ institutions and international actors all see a need and have a strong preference for legal accountability. Thus the first hypothesis (assuming that peace organisations are more sceptical towards retributive justice) has not been proved. Representatives of the judiciary, Commissions for Missing Persons, local peace practitioners, human rights activists, representatives of victims’ associations, and international organisations are all convinced that impunity cannot be tolerated, in view of the gross human rights violations committed in the 1990s. In this respect, there is a clear consensus and no incompatibility of goals can be observed.

However, all TJ protagonists also clearly recognise the limits of legal prosecution and propose additional approaches to complement the work of the courts.

Fact-finding and truth recovery: The potential of REKOM The REKOM initiative appears to offer potential for additional approaches and also for engaging a variety of different actors: peace practitioners and human rights activists (including women’s and youth groups), journalists and intellectuals, and also veterans’ and victims’ groups (although only a small number of the latter are involved). Most of the interviewed CSOs and international actors welcome the regional approach. Those who promote the initiative all agree on one common denominator: that a regional commission should complement or even support the courts’ work and that it should mainly focus on fact-finding.

However, a number of human rights activists and victims’ representatives are convinced that REKOM should also give a voice to the victims of war-related crimes. But the hearings that have been held during the campaign have aroused controversy and are criticised by some of these actors (see Petrović-Ziemer 2013b). In particular, the question of how to provide psychological support and protection for those who tell their stories in a public setting remains unresolved. The same applies to the question of how their testimonies can be verified and transformed into “facts” that cannot be denied, so that they receive official acknowledgment.

Among peace practitioners and human rights activists there is another strand of debate, based on the expectation that a regional commission would also enhance societal debate and dialogue on the past and help to establish an inclusive culture of remembrance.

International promoters of the REKOM campaign also share this expectation. Options expressed by the international promoters of a regional commission range from (a) establishing a shared view on the past, to (b) providing a climate that enables people to accept that different views exist, to c) developing empathy for opposing narratives, and (d) providing a forum for alternative learning and debating of history.

To sum up, TJ protagonists in all three countries see a need to establish a set of undeniable facts relating to the recent war events, as a point of reference for a “shared truth” and as a means to counteract denial of war-related crimes. Others argue that the societies in the region should also critically reflect on the misguided policies of the former Yugoslav regime which paved the ground for a selective politics of remembrance, by honouring partisans as heroes, silencing discussion of crimes committed in the Second World War and its aftermath, and largely ignoring the victims. Many interviewees suggest that earlier periods of history (World War II, and even before) have to be considered.

Among those interviewees who advocate for a regional truth commission, different opinions are expressed as regards its tasks, mandate and composition. But against the assumption made in our third hypothesis, the promoters of REKOM do not consider the purpose of establishing dialogical and societal truth to be the first priority on the agenda of a regional commission. Instead, documenting the missing persons and gathering facts about the events of the war are clearly seen as preconditions for dialogue and societal debate on the past, and are therefore considered to be the most crucial task by all promoters of REKOM. Most of the interviewed peace practitioners and human rights activists regard a regional fact-finding commission as a useful mechanism to be established in addition to the war crimes chambers, in order to complement and support the efforts of the courts. The same applies to the international actors. This shows again that there is no major controversy on the priorities of justice vs. truth among these groups. Nevertheless, the interviews reveal that so far, no detailed concepts have developed for the form that cooperation among legal and fact-finding institutions should take.

The majority of the interviewed international actors in all countries support REKOM. Some actively fund the campaign while others do not provide financial assistance but support the aims and idea of establishing a cross-border commission. Only a minority doubts the sense or practicability of such a mechanism. Nevertheless, international representatives are most reluctant to express precise expectations or models for a regional commission.

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