Transitional Justice in Serbia

Dealing with the Past
Desired and Actual Effects of Transitional Justice in
Serbia
Jan Montwill
j.montwill@gmail.com

Abstract
This paper examines whether the transitional justice measures implemented
in Serbia have had the desired effect of contributing to reconciliation after the
Yugoslav conflict in the 1990s. As the process of transitional justice in Serbia
has been drawn-out, from 1993 to present, it is important to understand if the
measures have succeeded with the task of reconciliation as desired by the
international community.
Transitional justice measures are widely implemented by the international
community as an effort to restore normality in post-conflict areas. This study
shows that what the international community understands as restoring
normality in a post-conflict area does not necessarily correlate with the actual
needs of the area.
In Serbia’s case, this study found that transitional justice mechanisms
implemented by the international community are seen by the Serbs as ways
to join the EU. Dealing with the past is unnecessary because when (or if)
Serbia joins the EU the opinion is that Serbia ́s economical situation will
improve and citizens will forget about the past due to improved life standards.
Hence, the mechanisms implemented by the international community in order
to restore normality in the uncertain post-conflict Serbia, are instead seen by
the Serbs as obstacles to what they consider to be the real state of normality;
being a member of the EU.
This finding is important and still relevant in 2014 due to recent events in
Serbia´s efforts to join the EU, events that were already predicted in the thesis
in 2011. Also, the study shows that in order to discuss ‘normality in an
uncertain world’ normality must first be understood and defined.
Introduction
The conflicts in the Balkans during the 1990s have been pointed out as the
worst in Europe in terms of international crimes since World War 2 (Sörensen,
2009; Zupan, 2006). As with the Nuremberg trials as a measure to deal with
the perpetrators of WW2, the international community reacted by establishing
the International Criminal Tribunal for former Yugoslavia (ICTY) in order to
hold those who committed atrocities during the conflicts in the Balkans
responsible. Established in 1993 its purpose is to deal with grave breaches of
the Geneva Conventions of 1949, violations of the laws or customs of war,
genocide and crime against humanity committed in the territory of the former
Yugoslavia after 1 January 1991 until 2008 (Cryer, et. al. 2010; Ellis 2004;
McMahon & Forsythe, 2008). With the last indictees arrested in 2011 (Ratko
Mladic and Goran Hadic) the tribunal has almost completed the task of trying

161 people for crimes committed between 1991 and 2001 in Croatia, Bosnia
and Herzegovina, Serbia, Kosovo and the Former Yugoslav Republic of
Macedonia (The International Criminal Tribunal for the Former Yugoslavia,
2014). Along with the ad hoc tribunal, domestic transitional justice
mechanisms have been used in the Balkan region for the purpose of dealing
with the past, i.e. establishing the truth about what happened during the
conflicts, recognising guilt and moving forward (Subotic, 2009).
The main focus of this paper is the ICTY as it is the transitional justice
measure that has played a major role in Serbia´s development in terms of
dealing with the past. Public opinion in the region regarding the measure
differs from what the international community believes the measure has
contributed to, which is problematic due to the fact that the measure is
intended to help the public (Subotic, 2009).
The majority of people indicted by the ICTY are Serbs and several conditions
regarding applying transitional justice in Serbia have been made by the
international community in order to lift sanctions, receive aid and join the
European Union. Thus it can be argued that Serbia has received the main
focus of the international community regarding the conflicts in the 1990s. This
paper analyses the international community´s desired effects of transitional
justice mechanisms in Serbia and concludes that although transitional justice
as desired by the international community has been dispensed (in theory), the
actual situation is very different.
The distinction is thus made between the desired effects of the international
community and the actual effects in Serbian society.
The international community´s desired effects of transitional justice
mechanisms are what the mechanisms should contribute to according to the
international community. The actual effects of transitional justice are what
these mechanisms actually contributed to in the opinion of the people that
were de facto affected by these mechanisms: Serbian citizens. This distinction
has been made because the desired and actual effects differ. Hence, the

research question guiding this paper is: To what extent have transitional
justice mechanisms had the desired effect in Serbian society?
To answer this research question, new data has been gathered through
interviews with Belgrade citizens, rather than relying on what already has
been concluded by other scholars. This data brings new knowledge to the
discussion about the effects of transitional justice measures in Serbia.
What is Transitional Justice?
Dealing with the past, i.e. transitional justice is generally constituted to have
the purpose of establishing the truth, recognising guilt and moving on
(reconciliation) (Clark, 2008; Subotic, 2009; Teitel, 2003). Transitional justice
is a set of different legal and non-legal measures that will contribute to re-
establishing functioning and just states in post-conflict areas. Through
understanding of the reasons and implications of the conflict(s), recognising
victims and punishing perpetrators transitional justice will lead to the definite
goal: contribute to reconciliation (Siminovic, 2004; Subotic, 2009; Teitel, 2003;
UN, 2010).
This section will describe the general ideas behind dealing with the past, i.e.
transitional justice, outlined by both scholars and the UN, who play a big role
in transitional justice in post-conflict areas. Further, the general ideas will be
reviewed on the basis of application and desired effect by the international
community in Serbia in order to specify the general concepts of transitional
justice for the aim of the argument of the paper.
Establishing the Truth
Establishing the truth is considered, by the international community, as the
foundation of transitional justice that needs to be dealt with before further
work can be done (UN, 2010). The truth aims at establishing the causes of the

conflict, finding and hearing instigators or perpetrators and victims as well as
hearing the acts committed during the conflict (Clark, 2008; UN, 2010).
However, the truth can be difficult to establish due to of the complicated
nature of conflict. What might appear to be the truth for one party might not be
true for another party, as it is in the case of the conflicts in former Yugoslavia
in the 1990s.
Establishing the truth and ultimately contributing to reconciliation does not
have to include all the above mentioned factors, on the contrary, it can be
reached by establishing records of the conflict, offering a platform for victims
to voice their stories and/or receive compensation for the suffering, offer and
support political and legal measures to avoid future atrocities to take place or
by establishing guilt and accountability of perpetrators (Subotic, 2009).
Furthermore, establishing the truth by creating historical records of conflicts,
as a core for national accord will have the effect of a national collective
understanding of the past. Such judicial records will, as is argued by the
international community, outweigh individual understandings of the conflicts
leading to reconciliation and the creation of a new national consensus
(Rosenberg, 2008; UN, 2010). An important part in establishing truth as part
of the reconciliation process is the recognition of victims from all sides of the
participants in the conflict. If not recognised it may become a major obstacle
to reconciliation in the form of a constant reminder of suffering that has not
been acknowledged (Clark, 2008).
Recognising Guilt
Acknowledging victims is connected with recognising guilt; there has to be
something that caused the victimhood, i.e. a perpetrator. Whether it is the
state, a group of people or a single person, the perpetrator has to be brought
to justice for two reasons; to acknowledge victims by punishing their offenders
and to rebuild a broken national legal system into a functioning system that
can (through implementation of international criminal law) take legal actions
against national perpetrators of the conflict (Clark, 2008; Rosenberg, 2008;
Siminovic, 2004; Subotic, 2009; UN, 2010). The latter is especially stressed in

the UN guidelines for transitional justice; national legislation that is in
accordance with international criminal law and international human rights law
is of great importance for a nation in order to deal with the past (UN, 2010).
Furthermore, recognising guilt (together with establishing the truth) serves as
restoration and the maintenance of peace as the state demonstrates a
willingness to acknowledge past wrongdoings, holding those responsible
accountable for their actions and thus accepting the guilt and the past
(Rosenberg, 2008; UN, 2010).
Moving On
Reconciliation is a term widely used in the context of transitional justice and
can simply be described as coexistence and forgiveness between various
groups in the post-conflict region(s) (Rosenberg, 2008). It aims at a mutual
understanding between former enemies for the purpose of creating a
condition under which people can trust one another as citizens and move on
from the past (Rosenberg, 2008). Thus moving on is, in the eyes of the
international community, synonymous with reconciliation, the ultimate goal
(the desired effect) of transitional justice (Siminovic, 2004; Subotic, 2009;
Teitel, 2003; UN, 2010).
Transitional Justice in Serbia
When reviewing the general ideas of transitional justice, it’s necessary to
emphasise the international community’s support of the national government.
Transitional justice is to be handled nationally but within the guidelines of the
international community: international criminal law and international human
rights law (UN, 2010).
The major transitional justice measures in Serbia are the ICTY and the
Serbian War Crimes Court as well as the former Yugoslav Truth and
Reconciliation Commission (TRC).

ICTY
From the international community’s perspective, the ICTY has been a
successful transitional justice measure that has contributed to the desired
effect by establishing truth through creating an ‘indisputable historical record’
(The International Criminal Tribunal for the Former Yugoslavia, 2014). The
Tribunal also states that it has ‘helped communities come to terms with their
recent history’ (The International Criminal Tribunal for the Former Yugoslavia,
2014) meaning further establishing truth, as part of the way to reconciliation in
the region.
The duration of the ICTY has been a heavily debated issue. The ICTY is seen
as ineffective and expensive, with its now 18 years of practice and the recent
extension to 31 December 2014, and the cost of the Tribunal has been
pointed out as utterly high (between 1993 and 2009 the budget for the
Tribunal was more than $ 1.5 billion) (Cryer, et. al. 2010; McMahon &
Forsythe, 2008; UN Security Council Resolution 1966 (2010)). The critique
has been met with the argument that international justice is expensive and
that UN bureaucracy has contributed to both the costs and the long existence
of the Tribunal, as well as the unwillingness to co-operate by the former
Yugoslav states to pursue, arrest and extradite suspects (Batt, 2005; Cryer,
et. al. 2010; Dimitrijevic, 2008; Klarin, 2009; McMahon & Forsythe, 2008;
Zupan, 2006). Moreover, the Tribunal has ‘laid the foundation for what is now
the accepted norm for conflict resolution and post-conflict development across
the globe’ (The International Criminal Tribunal for the Former Yugoslavia,
2014), thus justifying the costs of international justice.
The Tribunal has also been accused of bias regarding the over representation
of Serbs indicted compared to other nationalities; out of 161 persons indicted
by the ICTY, the distribution is 94 Serbs, 29 Croats, 9 Bosnians, 9 Albanians,
2 Montenegrins, and 2 Macedonians (Cryer, et. al. 2010; Klarin, 2009). This
has led to a perceived sense of victimisation of Serbian citizens, who see the
Tribunal as targeting Serbs and not focusing enough on other parties involved

in the conflicts. This of course has undermined the credibility of the ICTY
among Serbs who see the Tribunal as a political court (Clark, 2008; Ellis,
2004; Jennings, 2009; Klarin, 2009; Subotic, 2009).
Serbia´s co-operation with the ICTY has been tightly linked with the question
of the state joining the EU. One of the conditions for Serbia to be able to join
the EU has been to fully co-operate with the ICTY and specifically to succeed
in apprehending Ratko Mladic and transfer him to The Hague (Jennings,
2009; McMahon & Forsythe, 2008; Noutcheva, 2006; Pribicevic; 2010). Mladic
was recently (May 2011) apprehended and extradited to The Hague (along
with the last suspect Goran Hadzic) meaning that the EU condition for co-
operating with the Tribunal has been met, bringing current President Boris
Tadic one step closer to bringing Serbia into the European Union (The
International Criminal Tribunal for the Former Yugoslavia, 2005).
However, Ratko Mladic´s absence in The Hague for the last 16 years
exemplifies Serbia´s unwillingness to co-operate with the ICTY in regards to
dealing with the past (Subotic, 2009). Also, as of 2008, Serbia has been
pressured to recognise Kosovo in order to join the EU.
Serbian War Crimes Court
The international community´s concern with Serbia`s reluctance to co-operate
with the ICTY resulted in the Organisation for Security and Co-operation in
Europe’s (OSCE) assistance to the Serbian Government in creating the
means to prosecute suspected war criminals within the national judiciary, thus
creating a national transitional justice mechanism (Ellis, 2004).
In 2003, the Serbian Government surprised the international community by
announcing it was taking the initiative to draft new war crimes legislation (Ellis,
2004). The Serbian Minister of Justice drafted a new law allowing the creation
of a special War Crimes Court. The International Bar Association (IBA)
assessed the Draft Law after an agreement between the U.S. Embassy (a
major supporter of domestic war crimes trials), OSCE and the IBA. Upon

recommendations, the Serbian government adopted the Final Law thus
creating a new War Crimes Court in 2003 (War Crimes Chamber of the
Belgrade District Court and a War Crimes Prosecutor´s Office) (Ellis, 2004).
As the Court was established from a national initiative including international
criminal law with the co-operation and support of the international community,
the Court followed the guidelines of the international community (UN, 2010).
Furthermore, establishing the Court partly fulfilled the objectives of transitional
justice regarding establishing truth and recognising guilt by establishing
responsibility and accountability of perpetrators (Subotic, 2009).
The Yugoslav Truth and Reconciliation Commission
The Yugoslav Truth and Reconciliation Commission (Yugoslav TRC) was a
state body established in March 29, 2001 by the President of the Federal
Republic of Yugoslavia (FRY, Serbia and Montenegro) (Dimitrijevic, 2008).
The commission had representatives from both political sides in Serbia
(nationalist and civic), one member each represented two ethnic minorities in
Serbia and all representatives were members of the Serbian Orthodox Church
(Pejic, 2001). Concern was raised almost immediately due to the lack of
representatives from the other Yugoslav republic, Montenegro, the low
representation of minorities in Serbia and other religious communities as well
as the lack of Non Governmental Organisations (NGO´s), foreign experts and
professional associations (Pejic, 2001).
This transitional justice measure was a national initiative but failed to include
the international community, which has been stated as a contributing factor for
a transitional justice measure to succeed (UN, 2010).
The aim of the commission was in line with the international guidelines of
transitional justice, as stated in the description of the Yugoslav TRC, which
would: ‘contribute to general reconciliation within the FRY and with
neighbouring nations by means of facing the truth about the conflicts in the
Socialist Federal Republic of Yugoslavia (‘SFRY’) and the successor states,

which caused crimes against the peace, numerous violations of human rights,
of the law of war and humanitarian law’ (Pejic, 2001, p. 10), as well as
‘comprehensively examine and establish the causes and courses of conflicts
which led to the disintegration of the former state and to the war, causing
enormous human sufferings and destruction in the past decade’ (Pejic, 2001,
p. 10).
It can even be said that the Yugoslav TRC was, at least on paper, the national
transitional justice mechanism that shared the international community´s
desired effect of dealing with the past as the description clearly states the
TRC should contribute to general reconciliation within the FRY.
However, in 2003, when the Federal Republic of Yugoslavia became the
State Union of Serbia and Montenegro, the commission was dissolved
(Dimitrijevic, 2008). The commission had by then only produced a few internal
documents and neither truth nor reconciliation had been achieved
(Dimitrijevic, 2008).
Political factors as well as the focus of the Commission are explained as the
causes of the failure of the Yugoslav TRC. Firstly, the political climate during
2001 – 2003 has been seen as the major factor of the failure of the
commission. Many politicians from the Milosevic era, who still held seats in
Parliament, contributed to the lack of support by the government of the
Commission due to their unwillingness to respond to the Commission
(Dimitrijevic, 2008).
Secondly, the raison d'être of the Commission was not – as it should be – to
establish and voice the truth about victims and perpetrators. Instead the main
focus of the Truth and Reconciliation Commission was to investigate the
causes of the crimes for historical reasons, an important aspect of a Truth and
Reconciliation Commission but not the main goal of such a body (Subotic,
2009; Pejic, 2001).
The international community did not support the Commission because of the
failure to include international organizations and the majority of Serbian
representatives (Subotic, 2009).

Many scholars argue that now is the time for establishing a truth and
reconciliation commission (Clark, 2008; Jennings, 2009; Nikolic-Ristanovic &
Hanak, 2006; Rosenberg, 2008) but it seems as though the Serbian citizens
are divided in opinion, making it difficult to foresee what the actual effect of
the transitional measure would be. The current debate regarding a TRC
includes international organisations and is supported by the international
community. These are two factors that are favourable for the establishment of
a new TRC and, if established, the mechanism might get closer to contributing
to the international community´s desired effect of transitional justice:
reconciliation (Coalition for RECOM, 2009; Coalition for RECOM, 2011;
Nikolic-Ristanovic & Hanak, 2006).
The Reason for Serbia’s Transitional Justice Measures?
Subotic (2009) argues that both the Yugoslav Truth and Reconciliation
Commission and the Serbian War Crimes Court were established in order to
ease the pressure from the ICTY regarding the full co-operation that was
required according to the Dayton Accords. The Truth and Reconciliation
Commission was not supported by the international community, unlike the
Serbian War Crimes Court, which enjoyed great help from the international
community (Subotic, 2009). The author points out that these two measures
were created by the Serbian government to ease the international pressure to
pursue war crimes suspects but still received monetary aid (Subotic, 2009).
However, the pressure was not alleviated due to the requirement from the
European Union that Serbia had to actively work to apprehend war crimes
suspects in order to join the Union, as well as the fact that European and
American aid was co-operating closely with the ICTY (Noutcheva, 2006).
In 2005, after Serbia had delivered several indicted persons to The Hague,
the EU agreed to negotiate a stabilisation and association agreement (SAA),
a first step towards negotiations for EU membership (Subotic, 2009). Seen as
a major step for Serbia, the co-operation with the ICTY stagnated to the point

where the European Union stopped talks with Serbia in 2006 about
membership because of the state’s failure to apprehend Ratko Mladic and
Radovan Karadzic. Talks were resumed in 2007 after the arrest of two
suspects and the SAA was signed in April 2008 (with the condition to fully co-
operate with the ICTY); three months later (in July) Radovan Karadzic was
arrested.
Although Ratko Mladic was the last remaining high profile suspect that stood
in the way between Serbia and European Union membership, the
development of Kosovo at the time changed the condition for joining the EU
(Subotic, 2009). With Kosovo declaring independence in February 2008, the
EU ministers made it clear that Serbia would be fast-tracked if the state
peacefully recognised Kosovo, a condition that has not yet been met.
It thus appears that the international community´s desired effect of transitional
justice has been partly fulfilled from the perspective of the international
community. Serbia has fulfilled its obligation to co-operate with the ICTY and it
can be argued that Serbia has, by arresting the Serbian indictees, recognised
guilt and is heading in the direction of reconciliation: the international
community´s desired effect of transitional justice. On the other hand, Subotic
(2009) argues that Serbian national transitional measures were established to
ease the pressure of co-operating with the ICTY and also co-operating with
the ICTY for economical gain (EU membership and receiving aid) and not as
sincerely recognising guilt. By solely relying on theories established by other
scholars and comparing previous findings to what the international community
states has been accomplished in Serbia, it does not give the full insight into
this issue. In order to understand what the actual effects of the transitional
justice measures in Serbian society are, Serbian citizens who experience the
effects first hand must be heard.

Analysis
Through interviews with people in Serbia, it was found that people want to
move on and do not care about the past; instead, they care about the
economic situation that they believe will be solved if Serbia joins the EU.
The new data obtained by interviews raises issues which previous literature
has not discussed, contributing to filling a gap in the academic debate
regarding transitional justice in Serbia.
Transitional justice is seen as a way to join the EU (more specifically to
improve the economical situation of daily life) through imposed measures and
not as actual justice. The objectives of transitional justice (establishing the
truth, recognising guilt and moving on) as outlined by the international
community has a different meaning among the respondents when it comes to
dealing with the past within Serbian society.
Methodology
In order to answer the research question, not only based on what already has
been written, and to gain understanding of the present opinion of Belgrade
citizens, field research and interviews were conducted in Belgrade, Serbia, in
June 2011. Interviews with Belgrade citizens contribute to gaining new
knowledge in this field based on new data, and not constructing new
knowledge solely based on already processed data.
Has the Truth been Established?
Establishing the truth and recognising guilt are factors that collectively
contribute to moving on. These factors are seen as interrelated by the
international community for the purpose of dealing with the past and ultimately
reaching reconciliation (UN, 2010).
According to the ICTY, truth has been established and has helped
communities come to terms with their past (The International Criminal
Tribunal for the Former Yugoslavia, 2014). Therefore, from the perspective of
the international community, the ICTY is a transitional justice measure that

has partially contributed to the desired effect of reconciliation. However, if this
had been the case it should have been reflected in the opinion of the Serbian
population, which it is not. The opinion of the respondents seems united in the
belief that the ICTY is a political court imposed on Serbia in order “to give
away our war generals in order to become EU or get money”, as stated by
one of the interviewees. Thus the task of establishing truth or contributing to
establishing truth becomes an almost impossible task for the ICTY in Serbia.
The Tribunal is not seen (by the people who are supposed to acknowledge
the established truth) as a legitimate measure for the purpose of establishing
truth. Furthermore, the Tribunals credibility is low in Serbia making it difficult
to contribute to establishing truth. The majority of Serbian citizens have a
perceived sense of victimisation already pointed out by scholars (Ellis, 2004;
Jennings, 2009; Klarin, 2009; Subotic, 2009) and also found in the interviews
with Belgrade citizens. As a result of this perceived sense of victimisation it is
not likely that they will accept the truth that has been established by the very
mechanism they believe is victimising them. Consequently, according to the
interviewees, the actual effect of the ICTY in regards to establishing truth is a
mistrust of the mechanism.
Interviewee Prof. Vesna Nikolic-Ristanovic pointed to the ineffectiveness of
the Tribunal as the main flaw of the mechanism along with its long existence,
which has in turn contributed to the disbelief in the mechanism as well as the
opinion of its ineffectiveness. This argument is supported by one respondent
who emphasised that Milosevic´s trial was supposed to last for two-three
years but lasted six years. The lengthy proceedings are also exemplified in
the Seselj case, who, according to the respondents, is not even believed to be
guilty and is being held in The Hague for a long time while the Tribunal has
not yet been able to prove his guilt (The International Criminal Tribunal for the
Former Yugoslavia, 2003).
The ICTY cases are complicated and time consuming; the legal proceedings
have indeed taken a long time and in some cases have not been able to
establish guilt or innocence for an extensive period of time. When verdicts are
finally reached it does not contribute to establishing truth but to misbelief and
an opinion of ineffectiveness of the Tribunal by Serbs as a result of a slow
international legal process.

The Serbian War Crimes Court, on the other hand, enjoys more support from
the Serbian citizens. One respondent stated that the Serbian War Crimes
Court is good because it is showing the world that Serbia is dealing with the
past on its own and that the people convicted by the court were rightfully
convicted. It can be argued that the reason for the positive attitude towards
the court comes from the fundamental difference between the national court
and the ad hoc tribunal, namely the initiating party. While the international
community initiated the ICTY (Cryer et. al., 2010), the Serbian War Crimes
Court was initiated nationally with the help of the international community
(Ellis, 2004). Thus, the opinion towards the state-initiated national transitional
measure is that it is not seen as an imposed political measure but as a
legitimate legal measure.
Because of the support the court enjoys it can contribute to establishing truth
in a greater extent than the ICTY. If a transitional justice mechanism is not
met with suspicion, disbelief or seen as imposed, the historical records it
creates (by trying war crimes suspects and hearing them and the victims) in
order to contribute to establishing the truth, are more likely to be accepted by
the public and hopefully lead to eventual reconciliation.
It is important to note the similarity and difference between the Serbian War
Crimes Court and the ICTY. The similarity lies in the fact that both measures
are legal and work towards contributing to establish the truth about the
conflicts in the 1990s. Thus both mechanisms work within the guidelines of
what the international community has defined as a part of the process of
dealing with the past that leads to the desired effect of transitional justice. The
difference (other than one mechanism being national and the other
international) is the actual effect of the ICTY is not what the international
community desired while the actual effect of the Serbian War Crimes Court is
what the international community set out the ICTY to be: a measure which
contributes to establishing truth.
The former Yugoslav Truth and Reconciliation Commission did not contribute
to establishing the truth in Serbia because it ceased to exist before it did any
actual work (Dimitrijevic, 2008). Many scholars argue that now is the time to

establish such a commission (Clark, 2008; Jennings, 2009; Nikolic-Ristanovic
& Hanak, 2006; Rosenberg, 2008). It seems that a transitional justice
measure like a TRC could help in establishing the truth in the region and
contribute to reconciliation, if nationally initiated and supported by the
international community (like the Serbian War Crimes Court). However, the
majority of the interviewees were sceptical towards establishing such a body.
What can be concluded by these opinions is that dealing with the past in
Serbia has been going on for too long and with the main transitional justice
measure being imposed on the country; the Serbs are tired of these questions
and want to move on. This line of thought was already present in 2001 (Cox,
2002) yet ten years later the issue of establishing truth still persists in Serbia.
The truth is yet to be established (in the sense that it is accepted by the
public), but it is unlikely that it ever will be; as one respondent stated, “People
think about how they can pay their bills in the end of the month, how they can
go for the summer holiday, they don’t care about Mladic or Hadzic, that is not
their main issue”. This exemplifies the fact that the improvement of the
economical situation is a more pressing issue than establishing truth and
dealing with the past in Serbian society.
Recognition of Guilt by Serbia
Analysing the recognition of guilt by Serbia, the distinction between
international and national transitional justice mechanisms must be made
again. Recognising guilt, as described earlier is to take legal actions against
perpetrators in order to acknowledge victims (recognising guilt) and to rebuild
a national legal system (Clark, 2008; Rosenberg, 2008; Siminovic, 2004;
Subotic, 2009; UN, 2010). Clearly the Serbian War Crimes Court serves this
purpose better than the ICTY because it is a national legal measure that can
rebuild a national legal system from within, while the ICTY is an international
measure not even located in its target region. The ICTY is not intended to
rebuild a national legal system but has been established for prosecution of
war crimes suspects (The International Criminal Tribunal for the Former
Yugoslavia, 2014).

Comparing the recognition of guilt as outlined by the international community
and the conducted interviews another distinction has to be made; sincere
recognition of guilt and compliance. Addressing the latter, as Subotic (2009)
already pointed out, Serbia´s co-operation with the ICTY has been tightly
linked with foreign aid and a membership of the EU. Arresting and extraditing
Serbian war crimes suspects to The Hague cannot be seen as sincere
recognition of guilt by Serbia but as compliance to obligations and
requirements set by the international community. The ICTY is a transitional
justice mechanism that was intended to contribute to the international
community´s desired effect of reconciliation. A part of the process is the
recognition of guilt by the state, which has not been done in the case of
Serbia. The persons interviewed for the study cohesively stated that the ICTY
is a political court, an imposed measure on Serbia by the U.S.A. and the EU
as well as biased against the Serbs. Thus when Serbia is extraditing indictees
to The Hague, it is not to contribute to the recognition of guilt (or to contribute
to reconciliation) but to comply with international requirements in order to try
to develop the country economically.
Moreover, the ICTY indicted Milosevic, whom Serbia extradited to The Hague,
but failed to indict Tudjman (the Croatian President during the 1990s) and
Izetbegovic (the President of Bosnia and Herzegovina during the 1990s). This
has sent the message to the Serbian public that the international community
sees Serbia as the main perpetrator and Croatia and Bosnia and Herzegovina
as victims. The failure of distributing the guilt evenly among the parties and
forcing one party to recognise guilt to a wider extent than the other parties has
lead to the perceived feeling of victimisation of the Serbian population, as well
as making it difficult for Serbs to see the ICTY as a legitimate measure that
deals with recognizing guilt.
Sincere recognition of guilt can be seen with the Serbian War Crimes Court.
Even though Subotic (2009) argues that the Serbian War Crimes Court was
established by the Serbian government to ease pressure from the
international community and the obligation to co-operate with the ICTY, the
court is still functioning despite the fact that the co-operation with the ICTY
has ended. The court might have been established to ease pressure but it has

evolved into a functioning transitional measure in Serbia. Prof. Vesna Nikolic-
Ristanovic recognises the importance of the court and one of the respondents
voices support for the court, stating, “all the people who are convicted in this
court should have been convicted”. The same respondent stated that Serbia
is not escaping the responsibility to prosecute war crimes suspects, directly
contradicting Subotic´s (2009) argument that the court was established to
ease pressure from the international community. Moreover, the respondent’s
statement can be interpreted as recognising that although the Serbian War
Crimes Court is prosecuting war crimes suspects and recognising guilt, it is
doing so to also show the world that Serbia is maintaining peace and thus
ready to join the EU.
To Move On
Moving on as reconciliation, where ethnicities live peacefully in coexistence
after accepting the truth and forgive past wrongdoings, is a complex issue
(Rosenberg, 2008). Reconciliation is also complex in Serbia and by analysing
the gathered data it is clear how divided the opinion in Serbia can be. A major
finding is that moving on (reconciliation), as the international community´s
desired effect of transitional justice, is different to what Serbs define as
moving on.
Firstly, the conducted interviews illustrate the division of public opinion in
Serbia regarding reconciliation. Even though the data cannot be generalised,
it gives an insight into how complex the question of reconciliation in Serbia is.
Some believe that reconciliation should be reached because the region
consists of the same people (Slavic), thus there should be forgiveness so the
region can leave the past and move on living peacefully as neighbours.
Moreover, it has been expressed that Serbia is a tolerant nation with a long
history of different ethnicities living in coexistence. However, there is also the
opinion that reconciliation can never be reached in Serbia because of the
damage that past events have done, i.e. the displacement of Serbs from

Croatia, Bosnia and Herzegovina and Kosovo and the killings of family
members.
One opinion is unanimous among the respondents regarding reconciliation
that is tightly linked with the ICTY and transitional justice: the EU.
The EU is believed to be the solution to the current economical situation,
which is the main concern according to the respondents. Transitional justice
has been dealt with for so long that people in Serbia do not care anymore;
what is important is the economical situation, an opinion also supported by
Prof. Vesna Nikolic-Ristanovic.
Joining the EU will also indirectly lead to the international community´s
desired effect of transitional justice; reconciliation. But reconciliation in the
view of the international community achieved by establishing truth and
recognising guilt is not how the Serbs see reconciliation. In Serbian society
(more specifically in Belgrade) moving on means improving the economical
situation to improve the standard of daily life. Establishing truth and
recognising guilt will mainly be achieved by forgetting and simply not caring
about the past and not through helping ‘communities come to terms with their
recent history’ (The International Criminal Tribunal for the Former Yugoslavia,
20014) and prosecuting war crimes suspects by an international transitional
justice measure.
The European Union
Ratko Mladic was the last person the EU had as a condition for Serbia to
arrest and extradite in order for the country to advance towards a
membership. Along with the last indictee, Goran Hadic, Serbia has fulfilled it´s
obligation towards the ICTY and met the EU condition bringing the nation
closer to a membership in the Union and, according to the respondents,
closer to leaving the past behind and moving on.
Joining the EU is however embossed with one last condition; Kosovo. After
Kosovo´s declaration of independence, the international community has

pressured Serbia to recognise the independence (Subotic, 2009). The EU has
made this recognition a condition for the state to enter the Union and touched
upon a sensitive issue in Serbia considering its recent history (the NATO
bombings in 1999 as intervention of the conflict in Kosovo). The interviewees
recognised Subotic’s (2009) other argument: that Serbia is a small country
that has to comply with the conditions made by the international community in
order to progress.
Considering what Serbia has already done for EU membership, namely
arresting and extraditing all indicted persons by the ICTY, it is likely that
Kosovo will be recognised for the purpose of progressing. Even one of the
respondents has already elaborated on this notion: “you have to accept some
painful decisions made by the West about Kosovo and about Serbia in
general.”
This quote summarises the discrepancy between the international
community´s desired effects of transitional justice in Serbia and the actual
effects from the Serbs’ perspective. The most successful transitional justice
measure in Serbia in the eyes of the international community has not resulted
in the effects it claims. On the contrary, the international community has lost
credibility among the Serbian citizens because of a transitional justice
measure that is perceived as imposed but tolerated, not for reconciliation, but
to meet conditions set by the EU and hopefully improve the economical
situation.
Conclusion
What the international community means by transitional justice measures is,
in the opinion of Serbs, seen as imposed conditions on Serbia that have to be
met in order for the country to progress. The improvement of the economical
situation has been the main concern of Serbian citizens since the end of the
conflicts. Today the main concern has not changed and the Serbs are tired of
dealing with the past – they want to move on and improve their every day life,

which can only be done if the conditions set by EU are met and Serbia enters
the EU.
The international transitional justice measure (ICTY) imposed on Serbia has
contributed to mistrust among the Serbian citizens towards the international
community. Yet it is still accepted because it is the only way for the
economical situation to improve.
The answer to the research question: To what extent has transitional justice
mechanisms had the desired effect in Serbian society? is therefore twofold.
Firstly, national transitional justice mechanisms supported by the international
community but initiated nationally have had more success contributing to the
desired effect outlined by the international community in Serbian society than
the international transitional justice measure. The ICTY claims it has
contributed to establishing the truth in Serbia, while in fact it is seen by Serbs
as a political court and met with misbelief and the opinion that the Tribunal is
ineffective as a result of a slow international legal process (as well as the
overrepresentation of Serbs indicted by the ICTY). Consequently, the effect of
the Tribunal is a perceived sense of victimisation by the Serbian people and
the view of the ICTY as a political court that has more to do with international
interests than justice. The Serbian War Crimes Court is on the other hand
seen as a legitimate national transitional justice measure that is actually
contributing to the recognition of guilt.
However, transitional justice mechanisms, whether national or international,
are primarily seen as measures to move on. To move on is not seen as
reconciliation, which the international community holds synonymous with
moving on and is their desired effect of transitional justice. Moving on for
Serbs would be an improved economical situation for a better day-to-day life
and forgetting about the past. When (and if) the economical situation
improves, reconciliation in Serbia will automatically follow as a result of better
living standards and forgetting the past, that is both the conflicts in the 1990s
and the imposed transitional justice measure.
The key to moving on, in the Serbian context, is joining the EU. The main
finding of this study is that transitional justice mechanisms in Serbia are seen
as ways of gaining EU membership. There is no need to deal with the past

because when (or if) Serbia joins the EU the opinion is that Serbia´s
economical situation will improve and citizens will forget about the past due to
improved life standards. The international transitional justice measure, the
ICTY, and Serbia´s co-operation with the measure has been the main
condition for the state to join the EU. This co-operation is thus seen as a
purely imposed condition by the international community that has to be met by
Serbia and has nothing to do with establishing the truth, recognising guilt or
reconciliation.

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