United Nations Development Program UNDP Belgrade, June 2006 Prof. Louis AUCOIN and Prof. Eileen BABBITT TRANSITIONAL JUSTICE: ASSESSMENT SURVEY OF CONDITIONS IN THE FORMER YUGOSLAVIA* *The scope of this report is limited to Bosnia and Herzegovina, Croatia, Serbia and Montenegro and the UN Administered Territory of Kosovo and does not include FYR Macedonia and Slovenia. TRANSITIONAL JUSTICE: ASSESMENT SURVEY OF CONDITIONS IN THE FORMER YUGOSLAVIA Team Leader, Judicial Reform/Rule of Law Department Olivera PURIĆ Lead Editor and Editors Djordje DJORDJEVIĆ, Mato MEYER, Olivera PURIĆ Programme Specialist Mato MEYER Programme Adviser Djordje DJORDJEVIĆ CIP - Katalogizacija u publikaciji Authors Narodna biblioteka Srbije, Prof. Louis AUCOIN, Prof. Eileen BABBITT Beograd Researchers 347.93:341.322.5(497) Dragana LUKIĆ, Tena ERCEG, Donika KAĆINARI, Massimo MORATTI U senci zajedničkog nasleđa / The following have participated [ [urednici] Olivera Purić, Đorđe Maja KOVAČ, Jovan NICIĆ, Igor BANDOVIĆ, Saša MADACKI, Mirsad BIBOVIĆ, Đorđević, Mato Majer ; prevod Alma DEDIĆ, Dušan IGNJATOVIĆ, Mladen IVANOVIĆ, Virgjina DUMNICA, Aleksandar PAVIĆ, Maša Matijašević]. - Beograd : Siniša MILATOVIĆ, Jelena MACURA, Biljana LEDENIČAN, Joanna BROOKS, Slobodan GEORGIJEV, Ujedinjene nacije, Program za Olga BELOSAVIĆ, Tijana JANIĆ, Milica MUDRIĆ, Ivana, Ramadanović-VAINOMAA, razvoj, Kancelarija u Srbiji i Crnoj Jelena ĐONOVIĆ, Aleksandra MILETIĆ-ŠANTIĆ Gori : Pravosudni centar za obuku i stručno usavršavanje, Design and layout 2006 (Beograd : Cicero). - 131 str. : ilustr. ; 24 cm Tatjana KUBUROVIĆ Prema predgovoru, studija je nastala na osnovu saznanja Printing prikupljenih na Međunarodnom Cicero, Belgrade seminaru za predstavnike pravosuđa i vlada iz BiH, Number of copies Hrvatske i SCG “Zločini rata i 400 pravno nasleđe: uporedna iskustva i istorijska pozadina”, održanog u Dubrovniku, 2-5. 09. For the publisher 2004. - Tiraž 400. United Nations Development Programme, Country Office Serbia and Montenegro Internacionalnih brogada 69, 11000 Beograd, +381 11 2040400, www.undp.org.yu ISBN - 86-7728-026-X a) Ратни злочини - Судски ISBN - ? поступак - Балканске државе COBISS.SR-ID 131001612 6 CONTENTS I. EXECUTIVE SUMMARY 16 Prosecutions 21 Vetting and Lustration 22 Truth-Seeking 24 Reparations 27 Cross Cutting Issues 30 Recommendations 31 II. OVERVIEW OF THE STUDY 33 III. DEFINING TRANSITIONAL JUSTICE 39 IV. METHODOLOGY OF THE STUDY 45 V. PROSECUTIONS 51 A. Prosecutions before the International Criminal Tribunal for the Former Yugoslavia 56 1. Building Local Capacity and Strengthening the Rule of Law 57 2. The Completion Strategy 58 3. The Outreach Program 60 4. Cooperation 62 5. Public Perceptions 64 B. Domestic Prosecutions 65 1. Prosecutions in Bosnia and Herzegovina 65 2. Prosecutions in Croatia 67 3. Prosecutions in Kosovo 71 TRANSITIONAL JUSTICE: ASSESSMENT SURVEY OF CONDITIONS IN THE FORMER YUGOSLAVIA 7 4. Prosecutions in Montenegro 77 5. Prosecutions in Serbia 78 6. Comparative Analysis 87 6.1. Structural Arrangements 87 6.2. Command Responsibility 89 6.3. Cooperation and Extradition 92 6.4. Training 93 6.5. Witness Protection 95 6.6. Outreach 97 VI. Vetting/lustration 99 1. Bosnia and Herzegovina 101 2. Croatia 103 3. Serbia 104 4. Regional efforts 104 Assessment 105 VII. Truth-Seeking 107 A. Truth Commissions 111 1. Bosnia and Herzegovina 111 2. Serbia 112 3. Regional Initiatives 114 Assessment 116 B. Documentation efforts 117 1. Bosnia and Herzegovina 118 2. Croatia 120 3. Kosovo 122 4. Serbia 123 5. Regional Initiatives 125 6. International Initiatives 126 Assessment 127 8 TRANSITIONAL JUSTICE: ASSESSMENT SURVEY OF CONDITIONS IN THE FORMER YUGOSLAVIA C. Missing Persons 128 1. Bosnia and Herzegovina 129 2. Croatia 130 3. Kosovo 130 4. Regional Initiatives 132 Assessment 132 D. Media 133 1. Bosnia and Herzegovina 133 2. Croatia 134 3. Kosovo 135 4. Serbia 136 Assessment 137 VIII. REPARATIONS 139 A. Material Reparations Between States 143 1. Croatia and Bosnia-Herzegovina 143 2. Kosovo 143 3. Montenegro 143 4. Serbia 144 Assessment 144 B. Material Reparations Within States 145 1. Bosnia and Herzegovina 145 2. Croatia 147 3. Kosovo 150 4. Montenegro 151 5. Serbia 151 Assessment 152 C. Symbolic Reparations 153 Public Statements/Apologies 154 1. Bosnia and Herzegovina 154 TRANSITIONAL JUSTICE: ASSESSMENT SURVEY OF CONDITIONS IN THE FORMER YUGOSLAVIA 9 2. Croatia 155 3. Serbia 156 Assessment 156 Memorials and Holidays 156 1. Bosnia and Herzegovina 156 2. Croatia 157 3. Kosovo 158 Assessment 158 IX. CROSS-CUTTING ISSUES 159 A. Transitional Justice and the Disenfranchised 163 B. Transitional Justice and Reconciliation 163 C. Determining Appropriate Institutions 166 1. Regional Interventions 168 2. International Interventions 169 3. Civil Society Interventions 169 X. CONCLUSIONS 171 A. Top Priority 175 1. NGO truth-seeking 175 2. Attention to Missing Persons 176 3. Witness Protection 177 B. Secondary Priority 179 1. Training and Capacity Building for Prosecutions 179 2. Government Commitment to Truth Seeking 180 C. Longer Term Recommendations 182 1. Prosecutions 182 2. Vetting 184 3. Reparations 184 10 TRANSITIONAL JUSTICE: ASSESSMENT SURVEY OF CONDITIONS IN THE FORMER YUGOSLAVIA ANNEXES 185 ANNEX A Advisory Board to the Transitional Justice Program 187 ANNEX B In country assessment interviews 188 ANNEX C Structure of Interviews 191 ANNEX D Contact List 193 Bibliography 209 TRANSITIONAL JUSTICE: ASSESSMENT SURVEY OF CONDITIONS IN THE FORMER YUGOSLAVIA 11 DISCLAIMER “The views expressed in this publication are those of the authors and do not necessarily represent those of the United Nations, including UNDP, or their Member States“ The regional scope and designation of study areas in the report were dictated by research objectives and method- ological constraints and do not reflect the existing state, political or other community distinctions or those of the conflicts of 1991-1999 in the region. Rather, the research areas were determined on the basis of the existing legisla- tive frameworks, and policy decision-making and imple- mentation authorities. Therefore, the study centers on five designated areas, the federation of Bosnia and Her- zegovina, Croatia, Kosovo and Serbia and Montenegro, while distinctions were further made between conditions in Montenegro and Serbia, and Bosnia and Herzegovina and the Republic of Srpska whenever such need emerged. With the primary goal to focus on the legacy of large-scale past abuses, the survey does not consider two countries formerly part of the SFR Yugoslavia, FYR Macedonia and Slovenia, due to different levels of violence sustained and varying need for transitional justice responses in these countries. TRANSITIONAL JUSTICE: ASSESSMENT SURVEY OF CONDITIONS IN THE FORMER YUGOSLAVIA 13 14 TRANSITIONAL JUSTICE: ASSESSMENT SURVEY OF CONDITIONS IN THE FORMER YUGOSLAVIA I. EXECUTIVE SUMMARY TRANSITIONAL JUSTICE: ASSESSMENT SURVEY OF CONDITIONS IN THE FORMER YUGOSLAVIA 15 The violent dissolution of Yugoslavia, which occurred most dramatically from 1991-1995 and continued in Kosovo in 1999, has left its legacy in every state in the region. The places that have come to embody the war are reflected in the titles of the most well-known legal cases: “Ovcara”, the “Vukovar Three”, “Gospic,” “Srebrenica.” Each one evokes images of atrocities that remain imprinted upon the minds and hearts of the local populations, as emblematic of wounds that can never be forgotten but must be addressed, and hopefully healed, if the region is to move forward and prosper. To this end, the United Nations Development Program in Serbia and Montenegro launched a new program in Transi- tional Justice in January 2005. The study results provided in this Assessment Survey complete the first phase of the new initiative. It describes the existing programs and processes in transitional justice in each of four designated research areas: Bosnia and Herzegovina, Croatia, Kosovo, and Serbia and Montenegro. The research for UNDP Serbia and Montenegro was conducted by two professors from the Fletcher School of Law and Diplomacy in the United States, Louis Aucoin and Eileen Babbitt, with the assistance of three local focal points/ researchers: Dragana Lukic in Belgrade, Tena Erceg in Split/ Zagreb, and Donika Kacinari in Pristina. Two research assis- tants at Fletcher, Kristen de Remer and Marina Travayaikis, assisted Profs. Aucoin and Babbitt. In putting together the regional report UNDP Serbia and Montenegro was assisted by UNDP Bosnia and Herzegovina, whose recent report on transitional justice conditions in Bosnia was used for ana- lytical coverage of this part of the region. The data from Bosnia and Herzegovina was compiled by the UNDP office in Sarajevo in collaboration with independent researchers and the International Center for Transitional Justice, and then integrated into this final report. Massimo Moratti, who was a part of the team working on the UNDP Bosnia and Herzegovina report, provided additional research for Bosnia section of this report. UNDP offices in Podgorica, Pristina and Zagreb also provided additional expert and logistical support. This study was made possible through funding pro- TRANSITIONAL JUSTICE: ASSESSMENT SURVEY OF CONDITIONS IN THE FORMER YUGOSLAVIA 17 vided by UNDP’s Thematic Trust Fund for Crisis Prevention and Recovery (CPRTTF). In conducting this study, we drew principally upon the defi- nition of transitional justice provided by the UN Secretary General in his August 2004 Report to the UN Security Coun- cil on the Rule