Transitional Justice Should Be Part of Serbia’s Accession to the EU


Originally published in Accession Through Justice newsletter, available here

The European Union has played a pivotal role over the last decades in ensuring respect for human rights and the rule of law in a long list of new member states running from the Baltic to the Aegean. It has done so by requiring candidate states to undertake difficult reforms, including tackling past and present human rights abuses. Serbia, which now is a candidate for EU membership, has much to do to address its long and troubling legacy of human rights violations before it can claim this prize.

In order to meet the EU’s high standards on the rule of law and human rights, Serbia must address the legacy of its recent past in which Slobodan Milosevic’s regime and the institutions under its control were involved in some of the most notorious crimes committed in Europe since World War II. Given Serbia’s past, the EU has an opportunity, if not an obligation, to ensure that transitional justice is one of the key elements in negotiations on Serbia’s accession, even as the EU works to develop a comprehensive policy on transitional justice itself.

Serbia has made some progress in trying to deal with crimes committed during the conflict in the former Yugoslavia, including Croatia, Bosnia and Herzegovina, and Kosovo. These efforts are primarily the result of vigorous efforts by Serbian civil society groups, such as the Humanitarian Law Center, the Helsinki Committee of Serbia, the Youth Initiative for Human Rights, and others.    
In order to meet the EU’s high standards on the rule of law and human rights, Serbia must address the legacy of its recent past in which Slobodan Milosevic’s regime and the institutions under its control were involved in some of the most notorious crimes committed in Europe since World War II.

They have led the way in championing initiatives like the Regional Commission (RECOM) – a campaign to establish a regional truth commission to establish facts about all victims of massive crimes committed in the former Yugoslavia between 1991 and 2001.

Moreover, the tireless advocacy of these groups mobilized a process in which a number of war crimes trials were held in Belgrade’s District Court, including against Serbian citizens for crimes committed across the Serbian border. The work of these civil society groups in providing support to witnesses coming from Croatia, Bosnia and Kosovo has been crucial to the success of a number of these prosecutions.

In another positive step, agreements have been reached between the state prosecutor for war crimes in Serbia and his Croatian and Bosnian counterparts, allowing for cross-border cooperation in the investigation and prosecution of war crimes.

We should not gainsay these accomplishments, but there is a great deal more that needs to be done by the Serbian government to demonstrate a genuine commitment to an honest and responsible reckoning with the crimes of the past and justice for victims.

The initial progress made in prosecuting war crimes has been undermined by serious concerns regarding witness intimidation and the influence of political factors in some cases. For example, the highly respected human rights advocate Natasa Kandic, who has been supportive of, and helpful to, the prosecutor’s work, recently publicly accused the prosecutor’s office of intimidation of protected witnesses. Earlier, an arrest warrant issued by the prosecutor against a former Bosnian government official was thrown out of a London court on grounds of being politically motivated.

In addition, there is a troubling and apparent lack of willingness on the part of the Serbian war crimes prosecutor to open or properly support investigations against senior officials of the former regime who have been implicated as alleged co-perpetrators in the judgments of the International Criminal Tribunal for the Former Yugoslavia (ICTY). These are worrying signs for all who had high hopes that the Serbian judiciary had the capacity and the intent to hold war crimes trials in accordance with international standards.

The situation does not look much better on other fronts. Reparations for victims of crimes committed by Serbian forces are not on the table. On the contrary, the law that regulates the right of victims to reparations dates back to Milosevic’s reign and stipulates that only the victims of “enemy forces” are entitled to reparations. This leaves out not only scores of victims from outside Serbia who suffered at the hands of Serbian forces, but also Serbian citizens like the families of victims of the Strpci massacre, for example. This hardly sends a message that Serbia is ready to abide by international principles that guarantee victims’ right to a remedy and reparations.

Much remains to be done regarding the reform of Serbia’s security sector and other state institutions. There are many officials who served in the former regime in positions of power who retain significant influence in state institutions today. One of the most blatant examples is the ongoing presence of members of the notorious Special Operations Unit (JSO) in the Witness Protection Unit, which is mandated to provide security to witnesses and insiders testifying about crimes that JSO members, among others, have committed. What kind of protection can such witnesses expect and what justice can victims expect from institutions manned by those people?

Clearly, Serbia has much hard work to do in these areas, but it is unlikely to accomplish its tasks without the support and pressure of the EU. The EU’s continuing support for the RECOM initiative is very welcome, as is the language of support for war crimes trials in its progress report on Serbia’s accession.

However, the opportunity to fully integrate transitional justice into the accession negotiations should not be missed by the EU. It is too important for both Serbia and the EU itself. The rationale for such a course of action is clear. The EU has been here before: its policy of conditionality in relation to the cooperation of Balkan states with the ICTY was the principal catalyst for all fugitives being transferred to the ICTY and thus facing the bar of justice. This policy proved that Serbia as well as other Balkan states can deliver on justice when it is clear that the EU so requires.

From another point of view, the inclusion of transitional justice in accession talks is important for the EU itself as it works to develop its own policy on transitional justice. In addition, it has an extremely important role to play in supporting transitional justice processes across the world. It should start by applying this policy in its own accession processes. This would send a clear signal of the EU’s position. Moreover, it would be difficult to imagine that the EU could effectively champion these principles in other countries outside its union, such as the countries of the “Arab Spring”, for example, if it chooses not to make them a priority at its doorstep.

Photo: Rexhe Kelmendi, one of three survivors of the Cuska massacre, points out the names of family members as he visits the Martyr's cemetery in the village of Cuska, Kosovo on Tuesday, Feb. 11, 2014. Serbia's war crimes court convicted nine former paramilitaries of the brutal killings of more than 100 ethnic Albanian civilians during the Kosovo war and sentenced them to between two and 20 years in prison. The crime by the "Jackals" paramilitary group includes the massacre of 41 people in the Kosovo village of Cuska where Serbs rounded up villagers, robbed them, separated women and children from men, locked the men in a house and set it on fire. The brutality of Serbia's crackdown prompted NATO to intervene with airstrikes to stop the war. (AP Photo/Visar Kryeziu)