ICTJ Activity

The ICTJ has been actively working in the former Yugoslavia since 2002. The Center recognizes that the regional nature of the conflicts in the 1990s means that efforts to address the legacy of the past require regional dimensions and perspectives. The Center's work in the region has focused on building transitional justice expertise, country assessments, support for trials, local truth-telling and reparations, and analysis of vetting and memorialization efforts. Work to date has focused on Bosnia and Herzegovina, Serbia, Kosovo, and Croatia. The ICTJ former Yugoslavia program team includes Senior Associate Caitlin Reiger in the New York office, Europe Director Dick Oosting, Program Associate Dorothée Marotine, and consultant Bogdan Ivanisevic in Belgrade.

Building Transitional Justice Expertise

The ICTJ has always placed significant emphasis on training key civil society and other actors in the theory and practice of transitional justice. The Center's training programs cover the main transitional justice approaches (prosecutions, truth commissions, reparations, and institutional reform) and a wide range of case studies. The ICTJ's training programs for the former Yugoslavia provide participants with the opportunity to write about, examine, and debate the relevance of transitional justice for the region, and to help strengthen democracy, human rights, and the rule of law.

Past large-scale programs include the three-week Ottawa Transitional Justice Fellowship Program held in January 2005 in conjunction with the University of Ottawa Faculty of Law, and the one-week Toronto Transitional Justice Program held in May 2005 in conjunction with the University of Toronto's Munk Centre for International Studies. In 2006 and 2007 the ICTJ Brussels office held three-day transitional justice Essentials Courses, which are designed as intensive courses for practitioners. These trainings have included numerous human rights professionals from across the region.

The ICTJ also selected fellows from Serbia and Montenegro, and from Kosovo, for participation in the 2005 Transitional Justice Fellowship Program in Cape Town, South Africa. In 2005 the Center held a two-part training on transitional justice in Pristina in conjunction with the Kosovar Research and Documentation Institute (KODI), and other NGOs.

In addition, in 2005 and 2006 Mark Freeman, then Head of the ICTJ Brussels office, taught at the transitional justice summer school held in Palic, Serbia. The summer school is jointly organized by the Humanitarian Law Center (Belgrade and Pristina), Research and Documentation Center (Sarajevo), and Documenta (Zagreb). In 2006 Caitlin Reiger taught at the Transitional Justice Learning Workshops in Igalo, Montenegro, which was run by UNDP for judges and parliamentarians throughout the region.

The ICTY

Since its inception, the ICTJ has supported the work of the International Criminal Tribunal for the former Yugoslavia (ICTY). In 2002 then ICTJ President Alex Boraine testified at the unprecedented sentencing hearing in 2002 for Biljana Plavsic, former President of Republika Srpska. Boraine noted the importance of Plavsic's guilty plea and her acknowledgment of responsibility, but questioned her decision not to take the extra step of testifying about the roles of other senior Serb officials in committing war crimes.

On February 12, 2002 the Trial Chamber of the ICTY began to hear the case against former Yugoslav President Slobodan Milosevic. The case marked the first time a head of state faced charges of genocide and crimes against humanity in an international court. It also offered a dramatic public history lesson on the catastrophe that engulfed Yugoslavia in the 1990s. To enable transparency and the widest possible audience for the trial, the ICTJ and the Human Rights Project at Bard College created an internet-based archive of the audio and video of the trial. The archive allows cross-referencing and easy movement across segments of the trial video. It is also linked to a physical archive of broadcast-quality digital videotapes of the trial, fully open to use by researchers, students, broadcasters, and members of the public. While the death of Milosevic in March 2006 meant that the ICTY was unable to issue a verdict in his trial, the case uncovered a substantial amount of documentary evidence and witness testimony that now forms part of the public record.

The ICTY is now in the process of confronting what may prove to be its greatest challenge: completing the trials and handing over what are likely to be dozens of remaining cases to domestic courts ready to conduct independent and fair trials. In February 2007 senior ICTY officials joined their counterparts from the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the Cambodian Extraordinary Chambers to discuss the challenges of planning for the obligations that will continue beyond the life of the institutions. This meeting on "Planning for Residual Issues for International and Hybrid Tribunals" was co-hosted by the Center together with the University of Western Ontario and the Open Society Justice Initiative as part of the ICTJ Prosecutions Network. The ICTJ is continuing to work with the ICTY and local organizations on legacy issues in the region, particularly on the question of ICTY archives.

Other current work includes the ICTJ bringing its expertise in TJ memorialization to partner with the Humanitarian Law Center and the Youth Initiative for Human Rights (Serbia) to examine the possibility of establishing a traveling exhibition on the trial of Slobodan Milosevic before the ICTY.

Domestic Trials

The War Crimes Chamber of Bosnia and Herzegovina

In November 2002 the State Court of Bosnia and Herzegovina was established, including a special War Crimes Chamber staffed by local as well as international judges and prosecutors. The Chamber has begun hearing cases transferred from the ICTY, as well as a limited number of cases initiated in-country but reviewed by the ICTY. In 2005 several members of the Chamber, including the Court President, visited South Africa as part of an ICTJ-sponsored international conference on prosecuting serious human rights crimes. In late 2006 member of the ICTJ Prosecutions Network, Luc Coté, visited the Chamber, and the Center has provided regular input to discussions around the development of a national prosecutorial strategy. The Center is currently preparing an evaluation of the challenges facing the Chamber as part of its prosecutions case-study series on hybrid tribunals.

War Crimes Trials in Serbia

In June 2003 the Serbian legislature passed a law creating the Office of the War Crimes Prosecutor and designating a special War Crimes Chamber at the Belgrade District Court to handle new war crimes cases. The law also established a special unit within the police to gather evidence in war crimes cases, and introduced new practices such as the examination of witnesses via video link. The War Crimes Chamber officially opened in October 2003 and in March 2004 began its first trial concerning the 1991 killing of some 200 civilians seized from a hospital in Vukovar, Croatia. The ICTJ has met with the War Crimes Prosecutor and shared relevant lessons from domestic trial experiences in other countries. In 2007 the Center conducted detailed research on recent progress before the War Crimes Chamber, resulting in the issuance of a report in December. The report concluded that the trials took place in what continued to be a very unfavorable political context, with ethnic nationalists remaining a powerful political force in Serbia. Serious problems remained in various segments of the judicial system and the executive. In spite of the shortcomings and problems identified in the report, the War Crimes Chamber and the Office of the War Crimes Prosecutor have the potential to provide justice for many of the atrocities committed during the wars in the former Yugoslavia.

War Crimes Trials in Kosovo

In Kosovo the UN Interim Administration Mission in Kosovo (UNMIK) issued regulations permitting international judges to serve alongside domestic judges on existing Kosovar courts, and international lawyers to join forces with domestic lawyers to prosecute as well as defend individual war crimes cases. As part of a larger research project on hybrid criminal tribunals, the ICTJ published in 2006 a case study on the experiences of the Kosovo trial panels, with a view to identifying key lessons for policymakers, including the planning of the new European Union ESDP mission, which includes a mandate for judicial matters.

Truth-seeking Initiatives

National Efforts

The idea of a truth commission in Bosnia and Herzegovina has been debated since the conflict ended in the 1990s. Early on the ICTJ provided commentary and advice on proposed legislation to establish such a commission, and participated in discussions with the ICTY and proponents of the Bosnian commission. The process culminated in a groundbreaking speech by former ICTY President Claude Jorda, recognizing the complementarity of trials and truth commissions. Past and current governments in Bosnia and Herzegovina have not, however, been prepared to establish a truth commission for the country. Victims' groups have not been sufficiently consulted. To date the only major exercise in official truth-telling in the country has been the Commission for Investigation of the Events in and around Srebrenica between the 10th and 19th of July, 1995. The Commission completed its work in 2004. A new fact-finding truth commission to investigate the events of the siege of Sarajevo was established in 2006, although its creation is seen as a highly politicized exercise and since the establishment the commission has failed to conduct any substantive research into the issues within its mandate.

In Serbia a Yugoslav Truth and Reconciliation Commission (TRC) was established by means of a presidential decision issued on March 29, 2001 by then President Vojislav Kostunica. Within two years, the TRC dissolved without having produced any results. Inadequate consultations with NGOs and victims-both before and during the Commission's operations-severely damaged its image. The perceived ideological, ethnic, and political homogeneity of the commissioners prevented it from being seen as an impartial body. For a brief period the ICTJ urged diversification of the TRC's membership, as well as victim-centered investigations and public hearings. Ultimately, the absence of political will and civil society support prevented the TRC from becoming truly independent and effective. However, even if the Yugoslav TRC had achieved national legitimacy, it is unlikely that it would have been viewed as credible outside of Serbia.

Toward a regional process

The real challenge in the former Yugoslavia is how to devise a mechanism for truth-telling that will be credible across the region. The ICTJ has long advocated regional approaches to truth-seeking, organizing a regional meeting in Prague and participating in regionally-focused projects of the Igman Initiative and the International Committee on Missing Persons. The Center also commissioned a comprehensive report on available documentation of war crimes and human rights violations in the former Yugoslavia. The report called for a regional, nongovernmental initiative to systematically consolidate and consider the application of existing war crimes documentation to domestic and international truth-telling efforts for the former Yugoslavia.

The ICTJ's main partners in the region, the Humanitarian Law Center in Belgrade, the Sarajevo-based Research and Documentation Center, and Zagreb-based Documenta, have long made similar appeals for a regional approach. The ICTJ works closely with this "troika" and is participating in an ongoing series of public consultations on the issue, following an initial regional consultation that was convened by the ICTJ and the Humanitarian Law Center in September 2005 in Belgrade. The first major regional consultation that followed, "Establishing the Truth in the Post Conflict Period: Initiatives and Perspectives in the Western Balkans," took place in May 2006 in Sarajevo. The second, "Establishing the Truth about War Crimes and Conflicts," was held in Zagreb in February 2007. In February 2008 a third regional consultation, "On the Mechanisms of Truth-seeking and Truth-telling about the War Crimes in the former Yugoslavia," was held in Belgrade. All three meetings were attended by over 300 representatives of victims' and veterans' associations, human rights organizations, judges and prosecutors, media, senior officials of the ICTY, representatives of national governments and international governmental organizations. Further consultations are expected to continue through 2008.

ICTJ representatives participated in the meetings as panelists and discussants. The ICTJ also assisted by providing for participation of panelists from countries in which truth commissions had operated, such as South Africa and Peru, During 2007 the ICTJ also participated in a series of smaller meetings, which the Humanitarian Law Center, Research and Documentation Center, and Documenta held with members of certain sectors of civil society (artists, youth, human rights groups, and media), in order to discuss their role in truth-telling efforts. Both at the major consultations and at the smaller meetings, organizers made available to the participants material written by ICTJ staff on truth commissions and other truth-seeking efforts. In the first half of 2008, at a location within the region, the ICTJ will hold an advanced seminar on transitional justice, with a particular focus on truth commissions, with the heads of selected victim associations and NGOs. The retreat will also serve as a forum to ensure that those involved in the regional consultations on truth-telling are better informed to drive the debate.

Reparations

In Bosnia-Herzegovina there were potentially important developments in 2006 in the area of implementing the right to a remedy for victims of serious human rights violations. In April 2006 in Sarajevo, Mark Freeman and Caitlin Reiger met with a representative of the Inter-Ministerial Human Rights Working Group that has been tasked with drafting a law to compensate civilian victims of war and torture. As a result of this initial meeting and in response to a request by the working group for follow up assistance, in June 2006 ICTJ Senior Associate and reparations specialist Lisa Magarrell presented a full-day seminar on comparative reparations experiences to members of the working group and donated a copy of the ICTJ Handbook on Reparations to the group. Additional comparative material on reparations programs in other countries has subsequently been provided to the working group. In September 2006 this training was complemented by a presentation on reparations to victims' associations and other members of civil society. This presentation was given by ICTJ Research Director (and editor of the Handbook) Pablo de Greiff at a conference organized by the International Commission on Missing Persons. In December 2007 in Belgrade, the ICTJ participated in a conference on reparations hosted by the Humanitarian Law Center. ICTJ staff members Cristian Correa and Ruben Carranza brought their reparations expertise to the event, as well as providing extensive resource material on comparative country experiences.

Other Projects

Kosovo

In Feburary 2008 the Kosovo Assembly declared independence, a move bitterly rejected by Belgrade. In article 2.5 of his report to the Security Council, UN Special Envoy Martti Ahtisaari put forward transitional justice as a requirement of Kosovo's transition toward independence. With his report serving as the basis for the EU's engagement in Kosovo, the ICTJ will work with civil society, government officials, the EU, and other multilateral actors on the implementation of the relevant recommendations.

The ICTJ has also been involved with the Organization for Security and Cooperation in Europe (OSCE) High Commissioner for National Minorities in the organization of meetings of high-level political and civil society figures from Kosovo who share an interest in dialogue about strategies for transitional justice and reconciliation there. In October 2006 and in February 2007 the Center and the High Commissioner co-facilitated two meetings of civil society and political representatives and other stakeholders from Kosovo, both of which were held in Stockholm and supported by the Swedish government. The first meeting focused on the main mechanisms of transitional justice and their potential for contributing to reconciliation. The second meeting focused on questions of institutional reform in the justice and security sectors in Kosovo. Current follow up includes a transitional justice options assessment that is being compiled by Kosovar thinktank, KIPRED.

Country assessments

In October 2004 the ICTJ published two major reports on selected developments in transitional justice in Bosnia and Herzegovina and Serbia and Montenegro, providing an overview of some of the major issues and recent developments in transitional justice in those countries. A third study, on Croatia, was published in December 2006. These reports are all regularly used and cited in local and international transitional justice work.

In May 2007 the Center published a book on vetting of public employees that includes a detailed study of recent vetting efforts in Bosnia and Herzegovina.

The ICTJ is currently working with the local offices of the UN Development Programme in the region on efforts to promote regional approaches to transitional justice activities and programs in the region.

Through its training programs, country assessments, support for local trials and truth-seeking, and analysis of vetting efforts, the Center's involvement in Bosnia and Herzegovina continues to have a positive impact. At the same time, in Bosnia and Herzegovina the country's Dayton Accords-based governance structure, combined with the large-scale past violence and abuse, present an ongoing challenge to the ICTJ's work there. In Croatia and Serbia limited political will means that there are few official efforts with which the Center can engage directly, although there are live debates within civil society and the media. In Kosovo, the ongoing tensions surrounding the declaration of independence also present significant obstacles.

 

Background

Bosnia and Herzegovina

More than a decade has already passed since the signing of the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina, better known as the Dayton Accords. The human and financial costs of the wars devastated the region, but especially Bosnia, where by the end of 1995 tens of thousands of people had died and as many as one million were displaced.

The Dayton Accords established a complex political structure to accommodate Bosnia's warring factions: Serbs, Croats, and Bosnian Muslims (or "Bosniaks"). Bosnia and Herzegovina comprises two "entities": the Federation of Bosnia and Herzegovina ("the Federation"), and the Republika Srpska (RS). (In the north, the contested town of Brcko is an autonomous district under international supervision.) The Federation is predominantly Bosniak and Bosnian Croat, while the RS is predominantly Bosnian Serb. The Constitution (Annex 4 of the Dayton Accords) established a central government with a bicameral legislature, a three-member presidency-consisting of a Bosnian Croat, a Bosniak, and a Bosnian Serb-a council of ministers, a constitutional court, and a central bank.

The Dayton Accords require the Office of the High Representative (OHR) to coordinate and supervise the implementation of the agreement's civilian provisions. The tasks related to civilian implementation were divided up among international organizations, in particular the OHR, the Organisation for Security and Cooperation in Europe (OSCE), the UN Mission in Bosnia and Herzegovina (UNMIBH), and the UN High Commissioner for Refugees (UNHCR).

Though the 1995 Dayton Accords established a framework for rebuilding Bosnia and Herzegovina, they did not set out a comprehensive vision for justice. As a result, transitional justice efforts in Bosnia-particularly in the areas of truth-seeking and reparations-have been ad hoc and incomplete. While there has been some progress in the areas of trials and vetting, there continues to be excessive reliance on the Office of the High Representative (OHR), which has often intervened and imposed solutions in place of recalcitrant authorities. The OHR and other international institutions are now beginning to pull back and let the country run its own affairs.

Serbia

Since the October 2000 revolution that removed former President Slobodan Milosevic from power, Serbia has lurched from one political crisis to another. There have been multiple failed presidential elections because of low voter turnout, the assassination of reformist Prime Minister Zoran Djindjic, and a strong showing by the extreme nationalist parties in the December 2003 parliamentary elections. Although the June 2004 Serbian presidential election resulted in the election of reformist candidate Boris Tadic of the Democratic Party (and again in the February 2008 elections), stagnation and nationalism continue to pervade the body politic.

In the wake of Montenegro's secession and the recent declaration of independence by Kosovo, the country's political stagnation presents an ongoing challenge to the Center's work there. Serbia has reached a critical juncture in its history. In one direction lies the path of denial, conflict, and isolation; in another, the path of transitional justice, democratic consolidation, and European integration. The choices it makes in the next few years will be critical. The ICTJ will continue to support reformists whose objective is to build a modern, democratic, and pluralistic society-an achievement that depends on dealing with the country's legacy of abuse.

(Updated March 08)