ICTJ in the News

May 14, 2005

Trying to balance justice with progress

The Toronto Star

By Olivia Ward

At the height of NATO's bombing campaign to punish Serbian leader Slobodan Milosevic for attacks on Kosovo's ethnic Albanians, an aluminum plant in southern Serbia was billowing smoke from its chimneys.

When the blast furnaces were fired up, witnesses in the town of Surdulica say truckloads of Albanian corpses were brought in and incinerated, a grisly reminder of World War II.

Today, those who say they witnessed the scene in May, 1999, are still afraid to go public, and testimony is given only in private. Serbia's special prosecutor for war crimes is investigating, but in secret.

The fact that such horrifying allegations have led to a national investigation, but the will to thwart it persists so strongly, demonstrates the challenges for those seeking justice in societies emerging from bloody conflict.

"The scale and magnitude of the injustices that take place in these situations is enormous," says Mark Freeman of the International Centre for Transitional Justice (ICTJ), and a senior fellow at the Munk Centre at the University of Toronto.

"Regrettably, no system is equipped to cope with them, and what is left is a guarantee of incomplete justice. But that's often the best that can be done."

Last week the Munk Centre for International Studies launched its Toronto Transitional Justice Program, in partnership with the New York-based ICTJ. The program examines the mechanisms available to bring some form of justice to shattered countries, helping them to make the difficult transition to peace and democracy.

Can countries move beyond their murderous pasts if justice isn't done? In countries from Rwanda to Bosnia, Chile to Cambodia, victims have had to seek their own, often painful, answers.

"The starting point for justice is always the criminal justice system," says Freeman, but there are many reasons why it might not work: dysfunctional court systems, ongoing security issues, the destruction of evidence, and the fact people live in failed economies where justice seems a luxury.

Transitional justice recognizes that justice, while not perfect, is indispensable. It is one of the fastest-growing branches of human rights, and a vital part of a country's passage from war to peace. It focuses on five strategies: documenting human rights violations, prosecuting perpetrators, providing reparations, reforming institutions, and advancing reconciliation.

But the challenges facing justice-seekers are pervasive, say four advocates from the former Yugoslavia who attended the seminar in Toronto last week. In Bosnia and Croatia, three years of warfare ended in 1995, while in Kosovo, months of strife culminated in the 1999 NATO attacks. In the Balkans during the 1990s, more than 200,000 people were killed and 2.4 million displaced, leaving Yugoslavs of every ethnic origin embittered.

"In Bosnia a lot of time has gone by now, and people don't want empty apologies," says Alma Masic, a Bosnian political scientist and regional coordinator for the International Commission on Missing Persons. "Pressuring perpetrators into saying they're sorry will do no good."

A number of war criminals from the former Yugoslavia have been brought to trial at the international criminal tribunal in The Hague. But for the victims, that has sometimes seemed little more than a technical exercise, despite some notable convictions.

"The public really doesn't understand the legalities, and the media don't give the trials much coverage any more," says Maja Karaman, a Croatian lawyer who monitors domestic war crimes trials for the Zagreb-based Civic Committee for Human Rights. "What goes on at The Hague doesn't seem relevant to many people these days."

In the former Yugoslavia, a recent move to transfer trials of lower-ranking suspects to domestic courts may be more effective, Masic says.

"Outreach and witness protection programs have spread responsibility into the community. If people know their neighbours stand with them, they can testify without fear."

In Serbia, where resistance to recognition of war crimes remains high, a new process has had some success. Since the creation of a special War Crimes Panel in Belgrade two years ago, police and prosecutors have begun to cooperate across national lines. Last year, 17 members of a Serbian paramilitary unit were tried on allegations of seizing some 200 ill and wounded Croats from a hospital in Vukovar in 1991 and murdering them.

"For the first time, Croatian witnesses came to testify," says Serbian lawyer Jovan Nicic of the Humanitarian Law Centre in Belgrade. "Families arrived feeling nervous, and believing Serbia was an evil place. But testifying changed their perception of Serbia and Serbs. They saw how professional the prosecutors were, and they felt they had the right to truth and justice."

In Bosnia, a state court for war crimes was also established in early March.

Still, an urgent need for institutional reform remains.

In Kosovo, simmering ethnic conflicts have already burst into flame, with rampages of violence against the 100,000 besieged Serbs who remained there after the war. Reprisal attacks were launched against Albanians. And 25,000 Roma people also describe violence and discrimination.

"On a daily basis I see how bad things can become when there's still no sign of justice," warns lawyer Sasa Ristic, an advisor to the U.N. in Kosovo. "Things will only get worse if the administration of justice is turned over to local authorities without first establishing any rule of law."

In situations where formal justice is impossible, an increasingly popular alternative is a truth commission. Thirty have been established worldwide, with mixed results.

In Bosnia, an Association of Citizens for Truth and Reconciliation was set up five years ago. But many victims resent what they feel is an internationally imposed system that gives no assurance of justice.

In Serbia, a truth and reconciliation commission was set up in 2001 but closed down two years later, lacking popular and political support.

Widespread misunderstandings about truth commissions persist, says Freeman. The well-publicized model of South Africa, with its repentance and pardons, is the exception rather than the rule. "There's a belief that truth commissions can bring about amnesties, as happened in South Africa. But in other countries that isn't true. There is also a limit to the pressure you can put on the perpetrators to co-operate."

However, a commission set up to investigate the killings of thousands of Bosnian Muslim men at Srebrenica in July 1995 did have significant success. It put pressure on the Bosnian Serb government of Republika Srpska to provide new information on the fate and whereabouts of the victims. Among other things, it documented 32 previously undisclosed mass graves.

But those who live in shattered countries say that economic development must go hand in hand with justice if a real transition to peace and democracy is to take place. In Croatia, economic development and joining the European Union is vital, says Karaman.

Perhaps the most powerful example of the damage economic failure can have on justice for war victims is Serbia, said Nicic.

After the fall of the Milosevic regime in 2000, the new Serbian government co-operated in turning him over on the promise of substantial economic aid. But five years later, unemployment is soaring, savings are exhausted and new investment falls short of expectations. Serbs feel cheated and betrayed and the backlash against the war crimes tribunal continues.

The EU says that later this year it will open talks with Serbia and Montenegro, the successor state to Yugoslavia. But it's also said that more extraditions must come with economic reforms.

Some experts urge the EU to drop this policy. They say a program of financial support and institution building will help develop the rule of law and kind of security it wants on Europe's borders.

Human rights advocates, and the victims of the wars, say it should also include progress toward justice.

"Overall," says Freeman, "the aim is to make sure that there is no repetition of the abuse ... If you dare to deal with the past in a forthright manner, without going for broke and creating a bigger problem, you're reconstituting the society on a better path."