Transitional Justice in Post-war Societies

Introduction 462

What justice is, who it serves to and what forms it can take are the issues that have been challenging philosophers, legal and political scientists for centuries making them search for answers in religious norms, in the rule of law, or even in fairness itself (Ralws 1985). Reasonably, during the periods of transitions and far-reaching transformations of societies this task nevertheless resembles more a Sisyphean one since what is “fair and just in extraordinary political circumstances is determined not from an idealized archimedean point, but from the transitional point itself” (Teitel 2000, 224). Since every transition is a highly complex and historically contingent process, the act of tailoring an appropriate response to a repressive past is influenced by a number of factors, such as affected society’s legacy of injustice, its legal culture, and political traditions (Teitel 2000, 2019). Nevertheless, not all scholars agree on this, but fully reject the relevance of these and similar factors, considering the “transitional” qualifier misleading since it suggests an altered – and unacceptable lesser – form of regular criminal justice (Olsen, Payne and Reiter 2010, 10). This fault line leads to and further shapes another fundamental debate surrounding transitional justice – whether the attitudes toward justice are relevant or not, i.e. whether the purpose of justice will be fulfilled if those who it should serve to do not see it fair. Recognizing a wide scope of political transitions and significant differences among them, this paper attempts to analyse the importance of how justice is perceived in the communities emerging from a violent conflict. Such complex environment – abound with perplexity, sentiments, irrational thinking and behaviour – undoubtedly prevents us from reaching clean and neat explanations of the relationship between justice and its perceptions, but at the same time reminds us of how vital this relation is to the future of transitional justice including its prospects for improvement.

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The main argument of this paper is that transitional justice in post-war societies will have limited success and will most likely create new grievances among affected societies if they tend to perceive the exercised justice as unfair. However, we warn against the trap of tautology of any kind and call for further research on the possibility, as well as the necessity of overcoming this inherent “weakness” of transitional justice in post-war circumstances.

Upon setting up the theoretical framework, the paper will analyse in which manner broadly negative perceptions of transitional justice affect the success of its both retributive and restorative efforts and contribute to existing frictions between affected post-war communities. Supporting evidence to proposed hypotheses will be sought in the legacy of International Criminal Tribunal for the former Yugoslavia (ICTY). Finally, the third chapter will shortly discuss the chances for achieving transitional justice that is widely perceived as fair by the societies emerging from wars.

Holistic Approach to Transitional Justice 492

Looking into definitions of transitional justice, one can notice two main approaches (Olsen, Payne and Reiter 2010, 12; Kaspas 2008, Clark 2008), coinciding and echoing the parts of the sentence we discuss in this paper. Offering different, sometimes opposing forms and mechanisms of transitional justice, these approaches differ in the aims they strive to achieve, or at least, in the order of their priorities. A narrower, “retributive” approach to transitional justice aims to hold perpetrators individually accountable for their wrongdoings, to punish them, and in such way bring justice to victims. Those who advocate for it are therefore primarily concerned about the fairness of the prosecutorial forms of justice (e.g. trials) – where fairness is associated with traditional legal standards (Moghalu 2011, 522-524) – and they are not much interested in the way justice is perceived. Although the name suggests otherwise, the “restorative” approach to transitional justice is more forward-looking and it “attempts to bring justice by working toward a new inclusive society that addresses the fundamental needs of population” (Olsen, Payne and Reiter 2010, 12) through retributive, but also via a wide range of non-prosecutorial mechanisms (truth commissions, reparations, memorialization, etc.) Being concerned about repairing harm and “building and healing” societies (Lederach 2001, 842), scholars and policy makers arguing for this approach are more concerned about the way these societies perceive transitional justice and tend to “value the justice which restores community, rather than the justice which destroys it” (Lambourne 2003, 24).

In this paper we adopt a rather comprehensive, holistic definition of transitional justice offered by International Centre for Transitional Justice (ICTJ):

Transitional justice is a response to systematic or widespread violations of human rights. It seeks recognition for the victims and to promote possibilities for peace, reconciliation, and democracy. (ICTJ 2009, 1)

Even though some scholars argue that including both retributive and restorative efforts “dilutes the notion of justice” (Olsen, Payne and Reiter 2010, 12), we believe that this kind of definition is the most appropriate one for the following analysis for two reasons. First, it does not exclude or favour, but encompasses the aims of both retributive and restorative efforts, thus providing a basis for a more comprehensive analysis of the impact of justice perceptions on all its aims. Second, such a broad definition is suitable for analysing the importance of how justice is perceived in post-war environments since even though it is almost never possible to punish all those who committed crimes nor to recognize all those who suffered during the mass violence, the survivors – both victims and perpetrators – will have to find their own ways to live together and to deal with the exercised justice, be that in a constructive, ignorant or a destructive manner.

Since the aim of this paper is to evaluate the impact of perceptions of transitional justice on its ability to “serve its purpose”, we will analyse the aims which stand behind restorative and retributive efforts, but not various forms they can take.

Retributive efforts 624

Aiming to establish individual criminal accountability and pursuing an idealistic goal of universal legal fairness, the retributive approach to transitional justice neglects the importance, if not the centrality of fairness perceptions and thus jeopardizes a suboptimal goal of “legalist” justice – deterring future wrongdoings.[1] Nonetheless, the capacity of transitional justice to prevent similar offences in post-conflict societies is indeed impacted by these societies’ attitudes towards exercised justice.

The establishment of individual criminal guilt for punishable acts is supposed to mitigate the “dangerous culture of collective guilt” (Kritz 1999, 169) which threatens by its two equally perilous extremes – blaming all members of the rivalry groups only because of their group characteristics or, conversely, falling into “if everyone is guilty, than no one is guilty” trap. By punishing individuals who purported to act in the name of the whole ethnicity or nation, retributive transitional justice efforts are assumed to dissolute “dichotomist perceptions and nihilistic stereotypes which stigmatize entire communities and might lead to a new round of violence” (Kaspas 2008, 62) and acts of private revenge. Nevertheless, no matter how successful trials in the aftermath of war might be, their unavoidable selectivity almost inevitably creates an impression of unequal treatment and unfairness among affected communities thus fostering instead of overturning their distorted group-specific conceptions and perceptions of justice (Weinstein and Stover 2006, 11) Hence, if affected communities perceive the exercised justice as unfair regardless of its legal fairness, the “truth” that trials aimed to establish will remain to be viewed through lenses of “societal guilt” (Subotic 2011) and not only that trust among communities will not be rebuilt, but – more importantly from the aspect of retributive justice – their trust in the rule of law will not be restored. Consequently, the deterring capacity of transitional justice will be considerably undermined.

Moreover, widely-perceived-as-unfair justice may incentivise new circle of “private justice” by reifying divides and hostile attitudes which caused violence in the first place (Sriram 2007, 587). The reason for which the perceptions of justice are particularly important in post-war transitions, even more than in any other type of transition, is because these communities are often caught in a security dilemma which tends to get intensified in the aftermath of a war (Posen 1993, 36). If transitional justice is perceived as unfair, it will most likely create new grievances and simply institutionalize group-specific narratives that affect societies shaped by their self-understanding of sources of coercion and repression in past (Teitel 2000, 224), thus encouraging calls for revision and “redressing” of perceived injustices. Therefore, the attitudes that post-war societies adopt about the exercised transitional justice can not only undermine its deterring efforts, but even turn them upside down.

This, however, does not mean that widely-perceived-as-fair justice leads to absolute success of retributive efforts – it is not the case even in “regular” circumstances – since people are not always rational actors and have different perceptions of costs and benefits, especially when their “vital interests” are at stake. Nonetheless, this means that “deterrence capability” of transitional justice is more limited if it is seen as unfair, which is especially dangerous in the transitions from war to peace, when chances for the recurrence of violence are still critically high (Collier, Hoeffler and Söderbom 2004). However, the question then arises as whether this “technocratic legalism” (Sharp 2013, 150) which strives to present justice as neutral and immune to underlying political tensions can ever be sufficiently fair to post-war societies, or some correctives of fairness perceptions are always needed if communities previously in war are to be kept away from a new circle of violence, either open or structural. This brings us to the restorative efforts of transitional justice.

Restorative efforts 681

Searching for equilibrium between the demands of justice and peace, the primary aim of restorative efforts is a successful transformation of societies previously in war towards more peaceful, inclusive, democratic, – or to use an “umbrella term” – reconciled ones (Bloomfield 2006, 16; ICTY 2009, Loyle and Davenport 2015; Uprimny and Saffon, 2006). Since the accomplishment of this aim requires active participation of the communities (even though the focus is on the victims, the involvement of both victims and offenders is equally important) (Kaspis 2008, 64), their attitudes toward exercised transitional justice are of vital importance for successful transformation.

Since negative attitudes towards the exercised transitional justice significantly hinder its deterring capacity, it is not hard to assume how crucial they are for building far more demanding “positive” elements of peace – political, economic and societal reconstruction of communities emerging from a war. What is fair and just in the periods of transition is not determined in a vacuum, but is forged against the affected society’s “backdrop of historical legacies of injustice” which is the springboard for its imagination of transitional justice (Teitell 2000, 224). If exercised justice collides with this “imagination of justice”, transitional justice efforts risk falling into irrelevance or worse. Empirical evidences from various peace-building missions support this assumption since even those reconciliation efforts that come from the local civil societies tend to have rather limited success if “truth” and justice behind them are negatively perceived by affected communities (Andrieu 2010, Backer 2003, Rangelov 2015). Forgiveness and healing at which reconciliation aims are unthinkable in the societies which believe that exercised justice is unfair, partial, insufficient, and that it needs to be revised since their “sense of justice” prevents them from moving  beyond “negative coexistence” (Bloomfield 2006, 14).

Moreover, transitional justice which is widely perceived as unfair can even harm such cold peace between the communities previously in war. It is highly unlikely that transitional justice will have “legitimizing and democratizing effect for implementing regimes” (Loyle and Davenport 2015, 129) if people perceive transitional justice only as the legitimization of a new kind of repression (Stover, Megally and Mufti, 2005). “Political entrepreneurs” (Lemay-He’bert 2009, 28) who often appear in the aftermath of wars and during transition periods might try to manipulate these attitudes, fuel ethnocentric and nationalistic beliefs and reactions and further obstruct reconstruction efforts. Therefore, if transitional justice adds a new layer of already complex grievances among the rival communities, the process of “change and redefinition of relationships” between them (Ledarch 2001, 842) will hardly move towards mutual trust, empathy and harmony, but will rather be rebuilt on fear, suspicion and mutual accusations. Therefore, in fragile, post-conflict societies, “the perception of justice is often as important as its delivery” (Neuffer 2000, 340).

However, regardless of how consistent these assumptions on the importance of perceptions of transitional justice might seem for the accomplishment of its ambitious aims, they must not at all be taken for granted. It would be naïve to assume that widely-perceived-as-fair transitional justice necessarily leads to peaceful, democratic and reconciled societies. Not only do many other factors beside justice mechanisms play extremely important role in the transformation from war to peace, but “perceptions of fairness” themselves can be key spoilers of the real transition towards peace, democracy and reconciliation. What caused or, at least, justified the violence in the first place were those mass hostile attitudes fostered by the “reservoirs of myths” (King 2001, 167) of ethnic and national animosities (Kaufman 2006). If the exercised transitional justice is widely perceived as fair through these corrupted lenses, the nature of these positive attitudes needs to be considered with more attention. If these attitudes are based on the knowledge and acknowledgment of committed war crimes, they probably mean a step forward towards the aims of transitional justice. However if they are met at the expense of “fairness” of justice, they most likely undermine the prospects for profound transformation of the affected societies. Therefore, the relationship between the aims of transitional justice and the perceptions of affected communities in post-war transitions is extremely sensitive and complex, thus requiring a case-to-case examination.

The Legacy of the ICTY – More than Trials? 367

Academic debates on the legacy of the ICTY (established in May 1993 to try those responsible for violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 (United Nations 2009)) very well reflect the general debates on the role of transitional justice and the importance of the affected communities’ attitudes towards it. Despite a strong consensus on the ICTY’s contribution to the development of international criminal justice (Steinberg 2011), the long-term impact of the ICTY on the communities in the region of former Yugoslavia remains largely disputed. Namely, even though the ICTY is a prosecutorial, retributive mechanism of transitional justice, the expectations out of it have been much greater than those from “regular” courts, and it has been ascribed with restorative potential from the very beginning (. The ICTY was, according to prevailing public opinion, supposed to contribute to the healing of communities in the Balkans and the rebuilding of their inter-communitarian ties. Although substantially unrealistic, these expectations did not emerge out of thin air since the founders of the ICTY indeed set high objectives at the Tribunal. According to the Statute of the ICTY, the primary objective of the tribunal was to “prosecute persons responsible for serious violations of international humanitarian law”, but also to “contribute to the restoration and maintenance of peace” and security in the region (UN 1993), which undoubtedly encompassed some of the restorative aims in addition to the regular prosecutorial aims of trials. Moreover, the record of the debate at the Security Council suggests that the seeds for another goal – that of promoting reconciliation and “good neighbourliness” – were planted at the ICTY’s inception (Fletcher and Weinstein 2004, 36).

Dealing with the way and the extent to which the perceptions of the ICTY influenced the effectiveness of its retributive and restorative efforts, we look for the answer to the concerns raised by the ICTY Judge Gabrielle Kirk McDonald, who, during her visit to Bosnia, faced a disappointing lack of knowledge and misunderstanding of the Tribunal’s work among the local populations. “You know, I am wondering if this is all worth it. I’m wondering if what we are doing at the Tribunal is worthwhile”, she said (Neuffer 2000, 354).

ICTY Retributive Efforts – Preventing New War Crimes 1070

Indicating 161 alleged war criminals (ICTY 2016), most of whom have already been convicted, the ICTY has undoubtedly developed and impressive body of jurisprudence and louder and clearer than ever announced the end of impunity for those who commit war crimes. Nevertheless, the very existence and work of the ICTY have never been “favourably regarded in the countries where its deterrent effects should have been most pronounced” (Dimitrijevic 2009, 83) since it has been met with great suspicion, disapproval and resistance by the majority of people in the Western Balkans. Despite the fact that the ICTY was established to punish war crimes of all sides to the conflict – in comparison to the very limited, even discriminatory mandate of the International Criminal Tribunal for Rwanda (Loyle and Davenport 2015) – its legitimacy in the region has remained remarkably low among all three communities with 71% of people in Serbia, 84% in Republika Srpska, 64% in Croatia and 39% in Federation having “sum negative” attitudes towards the ICTY almost twenty years after its establishment (Milanovic 2016, 240). The Serbs view the ICTY as a political anti-Serb tribunal, as a one more instrument of the Western powers whose purpose is to dispense “victor’s justice” and blame the Serbs for all the atrocities in the wars (Obradovic-Wochnik 2009; Dimirijevic 2009; Saxon 2006). The Croats believe that the Tribunal unacceptably equates the guilt of the Serbs and the Croats, making “a massive wound on Croatia’s body” by trying the “best of all Croatian sons” and thus attacking on the dignity and the legitimacy of the “Homeland War” (Dimitrijevic 2009, 84; Peskin and Boduszynski 2003, 1117; Jovic 2009, 15). Finally, the ICTY is a “mixed bag” (Saxon 2006, 564) of hopes and disappointments for the Muslim community which appreciates the ICTY’s so far efforts and achievements, but at the same time considers them slow, mild and insufficient (Milanovic 2016, 242). Root causes of these attitudes are multitude and are beyond the scope of this analysis. However, what is important to notice is that even though the ICTY has done a remarkable job, in the eyes of the affected communities that job has remained somewhere else and the ICTY has become a “world unto itself” (Fletcher and Weinstein 2004, 33). Consequently, its negative image has hindered the efficiency of its sentences and undermined its “pedagogical role” in changing the attitudes towards war crimes in the region.

If retributive efforts of the ICTY were successful, all sides would be ready to admit the crimes committed by their communities and recognize the victims of others sides, realizing that exercised violence should have never happened and must never be repeated. However, since significant parts among all the communities “do not believe that the trials were fair and do not believe in what was established in the judgements” (Milanovic 2016, 242), their persistence of their attitudes towards committed war crimes come as no surprise. Despite the extant of the facts established in front of the ICTY, they are still perceived through the lenses of nationalistic and ethnocentric narratives and myths full of self-victimhood and denial of its wrongdoings (Milanovic 2016, 243). For instance, 75.9% of Serbs and 76.2% of Croats in Bosnia believe that the members of their own community fought a defensively oriented war (Kostic 2012, 655), 74% Serbs and 43% of Croats believe that their communities were the greatest victims (Milanovic, 2016, 243-244), while only 5% of Serbs and 0.4% of Croats think that their coethnics were the greatest perpetrators (Milanovic, 2016, 243-244), even though neither of these communities had the largest number of victims or the smallest number of victimizers according to the facts established by the ICTY and the domestic courts. The lack of the recognition of war crimes is maintained through the lack of the knowledge of the facts on these crimes, which is from its side maintained through the ignorance and refusal of the justice, perceived as unfair. Many surveys show that the facts, evidences and judgements which the ICTY has made available to the public have been routinely rejected and have not influenced the attitudes these communities have towards the committed crimes (Obradovic-Wochnik 2009, 34). Moreover, perceived as “unjust” and “unfair”, the truth on war crimes which the ICTY aimed to reveal has given new impulses to “old truths” rooted in each of the communities and manipulated by their greedy political leaders – the truths which have throughout the history of the region justified even the worst atrocities and turned them into the acts of national heroism. The fact that the justice exercised in front of the ICTY is not owned by the locals since it has not made them recognize the victims of other sides or admit the crimes committed in the name of and by their own side, indeed limits the “deterring capacity” of the ICTY to a rather modest range.

Nevertheless, it would be against the grain to claim that the retributive efforts of the ICTY have not been real and observable, nor is that the aim of this paper. Without the ICTY and the pressure of the international community, not only that the high-ranking political and military leaders from the region would have ever been tried, but even the persecutions of mid- or low-level offenders before the national courts of these states would be less likely. Therefore, we do not claim that the ICTY’s retributive efforts have completely failed, but question their scope due to the low legitimacy of the ICTY among the communities in the region of the former Yugoslavia. There is no doubt that the main retributive aim of transitional justice – the prevention of similar wrongdoings in future – would have been achieved with greater certainty if the exercised justice were perceived as fair. The ICTY has failed twice already to deter the commission of war crimes in the Yugoslav conflicts since some of the worst atrocities were committed after the establishment of the Tribunal – first in Bosnia in the period from 1993 to 1995, and then in Kosovo in the period from 1998 to1999.

Unfortunately, media reports on the crowds and government officials in Croatia welcoming Blaskic, or in Bosnia welcoming Krajisnik and Plavsic, or in Serbia welcoming Ojdanic and Lazarevic – all convicted war criminals – suggest that the “legalistic fairness” and retributive efforts of the ICTY have failed to root out dangerous attitudes these communities have towards war crimes.

ICTY Restorative Efforts – Preventing New Wars 931

The above mentioned surveys show that even though the “negative peace” among the Serbs, Croats and Bosniaks has been preserved for the last twenty years, their “war on truth” is far from an end despite all the ICTY’s efforts and achievements (Hodzic 2015). The capacity of the ICTY to bring peace to these “memory wars” and put the former enemies on the path of reconciliation is considerably limited by its low credibility among the targeted audiences. In 2005, strikingly small 16.7% of people in Bosnia perceived the trials at the Tribunal as fair and only 26% of them believed that these trials were a precondition for just peaceful and normal relations in the region (Kostic 2012, 659). The disappointment among all three ethnic groups with “fairness” and “relevance” of the ICTY further increased by 2010 (Kostic 2012, 659). Hence, the relationship between the local populace and the Tribunal – a crucial dimension for its success (Fletcher and Weinstein 2004, 44) – has remained weak, limiting its contribution to peace, stability and reconciliation in the Balkans.

Perceived as unfair, the ICTY has had little chances to change the way the past is integrated and spoken between the Serbs, Bosniaks and Croats, to reconcile their contradictory versions of the truth, and to incentivize them to base their relationships on the present instead of the past (Hayner 2011). The public discourse which – especially in Republika Srpska, Serbia and Croatia – securitized the ICTY as an “unfair political court” pushed the ICTY into a “transitional justice security dilemma” among the Serbs, Croats and Bosniaks in which every side believed that the conviction of its nationals represented a threat to its societal security. This created a wall of risky indifference, silence and denial between these communities and the Tribunal, so the ICTY operates in a “bias-driven downward spiral” – the more it challenges rooted nationalist narratives of each side, the more likely that it will generate distrust, and hence less likely that it will be perceived as fair (Milanovic 2016, 259). Not considered fair, hardly can it contribute to sustainable peace, democracy and reconciliation in the region.

Moreover, the negative attitudes towards the ICTY have been often misused against reconciliation – the very thing which transitional justice aims to foster. Democratically elected leaders in the region have been manipulating people’s perceptions of the ICTY from the very beginning, passing them through cognitive and emotional filters of prior beliefs and attitudes of these communities, thus preserving national narratives full of competitive victimhood (Subotic 2011, Dimitrijevic 2008, Jovic 2009, Fischer and Simic 2016). This has been particularly evident in election campaigns of national political elites of all three communities, who would mobilize this resentment in order to score cheap political points. For instance, trying to recover from what seemed to be a disastrous loss of support in 2000-2001 and prepare for the parliamentary elections in 2003, the Croatian Democratic Union (HDZ) organised massive public protests against the ICTY and the indictment against “noble Mirko Norac” (the General of the Croatian Army who was later convicted for war crimes), sometimes gathering more than 150.000 supporters (Jovic 2009, 15). It was by its sharp criticism of the ICTY that the HDZ reinvented itself and staged a quick comeback by taking a convincing victory in 2003 (Jovic 2009, 16). The most recent example is the Serbian Radical Party which regained its political influence and power by re-entering the Parliament after years of decreasing popular support. The most important reason for such development is the acquittal of its leader Vojislav Seselj before the ICTY, which was framed as his “victory over The Hague” by the Serbian radicals and the media close to them (Nikolic 2016). Many people in Serbia perceived this as a kind of correction of injustice imposed to the Serbian people by the Tribunal and the West. Therefore, the ICTY has over the years served as deus ex machina to many political actors in the region.

However, these assumptions do not “outspeak” the main counter-argument – that the situation in regards to peace and reconciliation in the region would have been worse had it not been for the ICTY. Even if some indictments or verdicts were perceived as unfair by the coethnics of alleged or condemned war criminals, the fact that they were removed from the post-Yugoslav political scene was already a significant contribution to the regional peace and security. Providing the opportunity for many victims to talk about their sufferings for the first time, the ICTY has undoubtedly open the way for a long and difficult process of reconciliation among the Bosniaks, Croats and Serbs. Nonetheless, this paper aims to emphasize that the efforts of the ICTY in “combatting denial and preventing attempts at revisionism” (ICTY) and its capacity to “make it impossible for anyone to dispute the reality of the horrors that took place” (ICTY), would have been much more successful if the exercised justice had been perceived as fair by the affected communities. The anniversaries of the worst war crimes in the region – from the Srebrenica genocide, over the Vukovar massacre, to the Operations Flash and Storm – every year warn how shallowly the “hatchets were buried” and how far positive peace and reconciliation seem to be despite all the truth-seeking and truth-telling at hundreds of trials. The justice that these trials brought remained trapped in the unfavourable perceptions of these communities. Nevertheless, risking returning to the very beginning and compromising our main claim, we cannot resist but raise a new question: Could the ICTY ever been perceived as fair by the Serbs, Croats and Bosniaks?

(In)Surmountable Weakness? 666

Aiming to serve to all the “survivors” of mass violence (Shaw and Wladorf 2000, 3) – direct victims, direct victimizers and members of both “victim and offender communities” -transitional justice in post-war societies addresses diverse “audiences” with considerably different experiences and interests that decisively shape their attitudes towards the exercised justice. Even though we have shown that negative attitudes towards transitional justice limit its accomplishments, we need to raise – rather than answer – at least two new questions.

The most fundamental issue is how realistic it actually is to expect from all the sides in conflict to agree with exercised transitional justice and perceive it as fair (Bloomfield 2006, 20). When large-scale violence is committed, the way people perceive justice is not shaped only by their own suffering, but by the suffering of all members of the group they belong to since their membership in that group is what made them victims in the first place. Since no transitional justice mechanism is capable to punish all wrongdoings, even the best one will be insufficiently fair for the affected communities. This is especially problematic after civil wars when groups in conflict were often both victimized and acted as victimizers (Kaminski, Nalepa and O’Neill 2006, 301), while after the war every side simply wants to see its own needs for justice met, not caring, even denying victims of the other side. The strong notion of reconciliation further fuels the distrust of former “enemies”