340. Acting Globally, Thinking Locally: The Side-Effects of Pursuing International Justice in the Former Yugoslavia

Brian Grodsky is Assistant Professor of Political Science at the University of Maryland-Baltimore County. He spoke at an EES Noon Discussion on October 24, 2007. The following is a summary of his presentation. Meeting Report 340.

Since the end of the Cold War, there has been a marked rise in support for the international prosecution of leaders involved in some of the most heinous human rights violations. This process began with the two ad hoc international criminal tribunals for the former Yugoslavia (1993) and Rwanda (1995) and continued into the new century with the UN's Special Court for Sierra Leone (2002) and efforts to launch similar international prosecutions in other states such as Cambodia (2003) and Iraq (2005). In all but the latter case, criminal prosecutions were launched by international authorities relying on the non-coerced cooperation of leaders in sovereign states. As a result, transitional justice has become an important issue in these countries' bilateral and multilateral relations. The establishment of the International Criminal Court in 2003 suggests that the international diplomacy of transitional justice is not merely a fad but instead may become a staple.

The mere presence of these tribunals and the diplomacy that so frequently accompanies them is, of course, not always sufficient to ensure compliance. Indeed, the track record for cooperation has varied, and has been influenced by factors widely researched in the transitional justice literature including the strength of the old guard, the degree of popular complicity in past atrocities and the broader political and economic costs (and benefits) of cooperation. This list of domestic obstacles raises important questions concerning both the ability of external states to force justice in the absence of military occupation, as well as the effects of internationally-demanded transitional justice on democratic consolidation in these post-repressive states. In my research, I examine the side effects of international pressure for criminal justice, focusing on how external pressure affects organic efforts at transitional justice at the domestic level.

The cases of Serbia and Croatia demonstrate how outside pressures for international prosecutions fundamentally alter the dynamics of domestic transitional justice policy. Political elites eager to avoid the appearance of submission to outside pressures or struggling to balance conflicting international and domestic demands may launch otherwise unlikely policies in an effort to control a policy sphere that has been taken from them. Similarly, international pressures might convince elites that otherwise favored policies are no longer useful or are excessively costly. While international pressures may be partially or even wholly successful at producing compliance, therefore, they also have effects that go beyond their immediate objectives. The outcome is often the ‘cheapening' of domestic efforts at justice in ways that compromise the tools that transitional justice scholars posit make post-conflict reconciliation most likely.

In order to explore this argument, I create a continuum of transitional justice policies ranked by the degree to which they personalize responsibility, as well as by the severity of each measure's repercussions. These include (in order): cessation and codification of human rights violations; condemnations or apologies; victim rehabilitation and compensation; truth commissions; purges from public offices; and criminal prosecution of low-level rights violators and their masters. In the face of conflicting international and local pressures, political leaders in a target state should actively work to soften pressures for cooperation with international criminal tribunals by offering their own alternatives lower down on the spectrum. Because such measures are tools harnessed by ruling elites, they should be bigger in name than in action, lacking powers to independently and forcefully execute their mission, whether that mission is local arrests, public education or victim assistance.

In summary, the gradual move towards the internationalization of criminal accountability can pit new political elites against two opposing pressure groups, international and domestic. High levels of political or economic pressure can convert international actors into important players on the domestic stage, forcing target elites into the uncomfortable position of brokering a deal between two irreconcilable sides. Transitional justice is mutated into an exercise of subtle two-level bargaining. International demands for one specific type of justice have a ripple effect through the entire spectrum of possible justice measures, affecting the appearance and shape of other justice mechanisms. The resulting local forms of transitional justice may be insincere, incomplete and, to the local community, irrelevant.

Serbia
Members of the one-time opposition who toppled Slobodan Milosevic in 2000 were quickly faced with the dilemma of reconciling Western demands for ICTY cooperation with domestic antagonism towards war crime trials. From the start, Yugoslavia's new president, Vojislav Kostunica (Democratic Party of Serbia—DSS), deplored the unpopular ICTY as a "monstrous institution." In the face of immense Western pressure to cooperate with the ICTY, however, he was compelled to make concessions. In early November 2000, just weeks after taking power, Kostunica used a visit by the head of the OSCE to announce his own version of justice. Prior to any extraditions, Kostunica announced, the Yugoslavs would launch a truth commission to investigate war crimes themselves. Yugoslav officials actively sought Western support for the proposed commission, promising to endow it with significant powers and even allow international members. ICTY officials and Western diplomats reacted warily.

Even as the commission became a staple of Yugoslav diplomacy, the federal government was quietly divided over its institutional shape. While Justice Minister Momcilo Grubac and Foreign Minister Goran Svilanovic projected a strong commission with the power to grant amnesties, subpoena witnesses and demand evidence, their boss felt there was insufficient time to pass a complex and controversial law necessary for such a commission. Instead, according to the Truth Commission's coordinator, Kostunica sought to act quickly to show international actors that "the new authorities care about this issue." Without his cabinet's knowledge, Kostunica created his commission practically overnight. The Grubac-Svilanovic project was dead in the water.

The hurried nature of Kostunica's commission had important practical consequences. Because it was established single-handedly by the president, the commission lacked legal stature and was therefore just a "consultative body" without the extensive powers advocated by the justice and foreign ministers. Instead, the commission was tasked with compiling information and evidence from various—mostly open—sources. It was, in the words of Justice Minister Grubac, "more moral than legal, and more public than state." The commission was put together so hastily that at least one appointed member claims to have been surprised to find himself on Kostunica's list of commission members and, along with two others, resigned almost immediately. Political observers noted that Serbian society, just emerging from years of nationalist propaganda, was unprepared to engage in an objective investigation of the initiative.

Kostunica apparently launched his truth commission in a two-pronged strategy to offset The Hague: first, to delay extraditions for years and, second, to reduce the image of Serbian guilt or, as Kostunica put it, counter the "biased" "pseudo-history" and "hypocrisy" of The Hague. President Kostunica handpicked the commission's 19 members, who were almost all ethnic Serbs (eventually resulting in a second round of appointments designed to increase the commission's representativeness and legitimacy). He also made the commission's mandate especially broad, designed to include an investigation of communist-era aggression by ethnic Croats and Muslims against Serbs. Finally, the commission was granted a full three years to do its work, during which time Kostunica intended for the international court to wait on the sidelines.

The commission's legitimacy was questioned almost from the start, with resigning members complaining of the commission's legal impotence and denouncing the commission's anti-Hague objectives. While commissioners argued Kostunica's role was limited to determining membership, human rights activists in Serbia felt the commission was under political pressure to simply put out a report, but not one of critical content. The low domestic profile of the truth commission, in contrast to its prominence in international circles, led diplomats to label it a "sop to the international community." Perceptions that the commission was stacked with Serb nationalists discouraged cooperation with other truth commissions in the region.

The widespread perception among Serbian elites that Kostunica's truth commission was an attempt to side-step international pressures for ICTY cooperation was reinforced by the fact that the commission was starved of funding, receiving an annual budget of $20,000—less than 15 percent of the sum requested—a full ten months after its inception. Commission members were unpaid professionals, working only in their spare time. With no legal status, Kostunica had difficulty acquiring funding from his own government and, ultimately, keeping the commission alive for its intended duration. Kostunica's truth commission expired prematurely with the bureaucratic reorganization of all federal bodies in December 2003. It never published any findings and its website, launched in November 2002, had within two years been turned into a pornography site.

Croatia
Croatian post-oppositionists who won power from the late nationalist Franjo Tudjman's party in late 1999 faced very similar accountability challenges to those of their one-time socialist "brothers" in Serbia. The task of dealing with the ICTY largely went to Prime Minister Ivica Racan, head of the largest post-opposition party (the Social-Democratic Party) and the last First Secretary of Croatia's League of Communists, who formed a fragile coalition government that ran Croatia from 2000 until 2004. Faced with pressures to cooperate with a domestically unpopular ICTY, Racan, like Yugoslavia's Kostunica, launched a perfunctory truth commission apparently aimed at lessening Western pressure for criminal accountability while simultaneously avoiding activities that could be interpreted by voters, or even his ruling coalition, as unpatriotic.

In the midst of speculation in the Croatian media that the widely-revered General Ante Gotovina was next on The Hague's list of indictments, Prime Minister Racan quietly ordered the Croatian Historical Institute to open an investigation into the history, scope and nature of the victims of the Homeland War. The three-year "Creation of the Croatian Republic and Homeland War" project was the first project imposed by political leaders on the Institute since just after Tito's death.

Like their Yugoslav counterparts, Croatian researchers were tasked primarily with combing through open source materials, especially newspaper accounts, and they worked in relative isolation, with no input from local or international human rights or other organizations. The Croatian project included a pre-1991 component as well as an investigation of international actors' roles during the war, perhaps intended to spread blame or rationalize Croatian abuses. And Croatian investigators shared with their Yugoslav colleagues the perception that state funding was inadequate to accomplish the massive job set out for them. In fact, after the group completed the three-year project it was given another three year mandate to explore further. Finally, those involved in the Croatian process believe that it was born for political reasons, but claim there has been no external pressure on them beyond the project's inception.

While Croatia's version of a truth commission was significantly less visible than Yugoslavia's, researchers on the project note that it closely adheres to a subtle foreign policy strategy in which Croatian leaders have engaged for decades. Throughout the communist period the Historical Institute was an international showpiece for free speech, publishing research that did not conform strictly to the ruling ideology. At the same time, the Institute was given no access to a domestic audience, thereby making its findings practically irrelevant on the local stage. "You could work as long as it was not published. Then they'd say ‘Look what a free country we are,'" said one researcher who has been with the Institute since 1972. This project, largely unknown to Croats, was destined to share "a similar fate," that researcher added.

While public awareness data concerning the project is unavailable, elite responses suggest that numbers would be extremely low. Most of my elite respondents had not heard about the project and those who were familiar with it dismissed it as a "symbolic gesture" for Western consumption or even a bone for nationalists. The hushed nature of Racan's project reflects the perception that, given mass social resentment towards those who attack the Homeland War, any truth process is premature. "In Croatia, the truth is very simple," said one Croatian Member of Parliament. "We were attacked by Serbs and defended ourselves." NGO leaders who discussed holding a truth process in the late 1990s, acknowledged their impetus quickly fizzled out precisely for lack of government and public support.

Human rights activists and political elites aware of the investigation widely share the perception that it was initiated as part of a government campaign to counter international demands for ICTY cooperation. Racan seemed to hope that a moderate form of justice might be enough to convince foreigners that Croats could deal with the past on their own terms, which would in turn defuse the far more visible and politically costly issue of ICTY extraditions. Racan himself noted the project was an attempt to "depoliticize war crimes…to leave history to the historians, not the politicians." At the same time, Racan needed his truth commission to glide under the radar of most (potentially disapproving) Croats. Croatia's truth process was designed to remove criminal justice from center political stage, which would help preserve Racan's ability to govern. Researchers involved in the project believe that their own impotence and post-oppositionists' hesitancy to counter popular myths about the war doomed Croatia's truth mechanism to irrelevance. "Society does not give a damn," said one, adding that the government is uninterested in changing this. "People do not read history books." Croatian political leaders may have been interested in launching the investigation for political ends, but they were uninterested in significantly shaping it beyond its inception.

Conclusion
The process of removing transitional justice from local hands can be both a blessing and a curse. On the one hand, post-oppositionists may use credible foreign pressures to convince their domestic constituents that the policy privately favored by political elites is the only viable one. On the other hand, these actors must struggle to balance the appearance of compliance and submission. One result of this struggle may be the creation of otherwise unlikely justice mechanisms, designed to placate both international and domestic audiences.

In both Yugoslavia and Croatia, conflicting international and domestic pressures compelled domestic leaders to seek out a middle ground for justice. In a race with Western demands for ICTY cooperation, both President Kostunica and Prime Minister Racan rushed their truth projects into being, lacking any social or political consensus that might give their investigations legitimacy, authority or financial viability. Both projects were designed to influence external, not internal, perceptions of guilt; their celebrated inaugurations gave way to slow and almost covert research. The former president of Serbia's Open Society Foundation, who actively worked with Kostunica to establish a commission, noted that by establishing the commission hastily, rather than with general parliamentary or societal support, Kostunica's truth commission "was doomed, unfortunately, to fail." The leader of the Croatian project agreed that a later truth process might have led to a much greater public role. But for Kostunica and Racan, racing to impede domestically unpopular pressures for international justice, time was of the essence.