A deliberative and participatory aspect of transitional justice
Scholars and analysts, by the nature of their trade, and driven by critical thinking, have focused on and studied the limitations of transitional justice. These are captured in nearly unanimous assessments that there has been no reconciliation in the region. Does that mean that nothing has changed since the end of the wars? I would like to reflect on what we may consider an achievement of transitional justice in relation to the situation at the end of violence. I will highlight two aspects: the deliberative and the participatory aspects of transitional justice. Each of these achievements will be qualified.
Deliberative aspect of TJ
The work of the ICTY with its effects on reconciliation and peace-building is singled out as a confirmation (or yet another confirmation, given the literature on other judicial mechanisms used globally, such as the Rwanda Tribunal and the International Criminal Court) that the contribution to transitional justice of judicial instruments is at best dubious. The establishment of the ICTY has been a part of the normalization of justice in the context of globalization. Such a development has made impunity for crimes a non-option, but, at the same time, brought along with it a number of challenges. These can be broadly categorised as those of legitimacy, politicisation and selectivity.
Being located far from the affected post-conflict zone and with ”foreigners” at the helm of the judicial process, the Tribunal has failed to generate a connection with the local population. Ironically, the record of its twenty years of existence shows, that the best rapport that it achieved was with state institutions, which themselves were often most resistant to cooperation. The legitimacy problem is also directly related to the politicisation of indictments, and the charges of ethnic bias addressed to the ICTY. The count of Serb indictees, for example, has been used to feed the Serb narratives that they have been singled out unjustly. Finally, the ICTY has also encountered the issue of selectivity as one of the key dilemmas in pursuing trials as a transitional justice instrument. Both in international and domestic trials, the question of how wide to cast the net and how far down the chain in the political and military leadership to go as to who is to be held responsible, cannot be answered easily. The Tribunal’s strategy of focusing on the ”big fry” has been additionally exposed by its strategy of ”staggered and ordered closure” by 2016, and the transfer of cases to the domestic courts in the Western Balkans.
In sum, the nations in the Balkans, whether Serbs, Croats, Bosniaks, or Albanians, have been loath to see their own representatives in the dock answering for crimes committed in their name. They waved off the suspected war criminals to The Hague as heroes, dismissed the ICTY as biased, even as being an international conspiracy, while invoking exclusively their own suffering and victimhood during the course of the conflict. The result has been a persistent collectivisation of culpability among the different nations, despite the fact that retributive justice is aimed at individualising the guilt; and, closely related to this, there has been very limited, if any, progress, on delegitimisation of the competing nationalist projects that contributed to the violent dissolution of former Yugoslavia.
Against such appraisals of the Hague Tribunal and its work, there is some recognition of what the Hague project by the international community may have achieved. Among the number of peace-building goals of transitional justice, we should include here the identification of crimes by means of the punishment of perpetrators, and the creation of an historical record, as well as a demonstration of the rule of law, and building local capacity by assisting domestic trials.
Yet, very little attention has been given to what I suggest will be the Tribunal’s enduring legacy in the region – that of transitional justice as deliberation. Twenty years after the founding of the Tribunal, the discussion of war crimes and conflict legacy has become a part of public discourse and deliberations. First and foremost, the work of the ICTY, which can be understood as an external imposition of transitional justice on the Western Balkans, has removed from the hands of the domestic lawmakers as well as those of the public the possibility to ignore the past. The temptation, particularly strong in the aftermath of ethnic conflict, is to adopt an approach of ”forget and move on”, especially if there is continuity between wartime actors and post-war authorities. The fact that transitional justice could not be sidelined needs to be taken seriously (though it can be easily dismissed, without recalling the early post-war days), despite evidence that the ability of the ICTY to project justice is more ambiguous.
Furthermore, deliberation does not mean consensus. The discussion about war crimes in the region is frought by disagreements and contentions between and among the different ethnic groups. These are concerned with whether ideological delegitimisation of the nationalism of the 1990s is a precondition for transitional justice, or vice-versa; whether a national as opposed to a regional approach is preferable, etc. Such a diversity of views points to the important deliberative dimension of transitional justice in the region – to a discussion that keeps the issues alive and on the agenda. Scholars who think critically about the notion of deliberation question the value of a debate in the context of unequal relations. When it comes to past atrocities, particularly problematic may be the fact that deliberation may only entrench previously held positions. Despite those caveats, the public sphere in the Western Balkans, when it comes to discussing the legacy of war crimes, has come a long way. This discussion does not lend itself to simple generalisations or conclusions about the state of transitional justice in the Western Balkans. But it is at least a departure from silence and complete marginalisation of the issue of criminal past. The space for this debate was prized open by the distant work of the ICTY, while local input to the debate was critical – which brings me to the participatory aspect of transitional justice in the region.
Participatory aspect of TJ
A complementary perspective on the deliberative aspect of transitional justice hones in on transitional justice stakeholders. Our understanding of the effects of various instruments of transitional justice is critically informed by the study of the actors best positioned and equipped to initiate and spearhead efforts that would tackle the war legacy meaningfully and effectively. This is reflected in a growing critical focus on civil society as the actor in furthering the cause of reconciliation, both from the transitional justice and the post-conflict peace-building perspectives. The bottom-up perspective is particularly relevant in the context where the institutional level – as was very much the case at the end of the wars in former Yugoslavia – was a key obstacle to any transitional justice initiatives, whether coming from the outside or from within.
Consequently, the deliberative achievements in the area of transitional justice in former Yugoslavia owe much to civil society’s critical role in promoting the need for accountability with the criminal past. Civil society emerged as a key pillar of local support of the ICTY project (but also as an informed critic of a narrow perpetrator-centred ICTY approach). Consistent with its vantage point of the necessity of reckoning with the criminal past and focussing on victims of human rights violations, civil society spearheaded the debate aimed at facing the past. It subjected official authorities to unrelenting critical scrutiny in its critique of the official rhetoric and policies that would award impunity.
At the same time, despite a critical engagement with authorities, civil society has played an important role in supporting the trials, addressing both the weakness of the state’s judiciary capacity as well as political constraints; in other words, it has supported the implementation of transitional justice policy (e.g. domestic trials); alongside this goal it has pushed for putting a range of transitional policies on the agenda, like advocating legislation that would contribute to the acknowledgment of the victims, as well as performing a check on given legislation to expose its bias. Likewise, it has engaged with the consequences of given state policies or pinpointed their absence, as when exposing the criminal past of appointed officials or assisting the families of the victims in their search for acknowledgment in law and symbolically.
Lastly, civil society has emerged as a source of grass-roots transitional justice initiatives, and, it could be said, a transitional actor in its own right. The work of the RECOM coalition is certainly one such example. Similarly, numerous other initiatives, including most prominently those by youth organisations, fostering contact among young people across ethnic lines, educational initiatives focused on textbooks, activism prioritising the role of women, etc. need to be understood from a participatory perspective. Transitional justice, understood broadly as a way of addressing the legacy of past abuse, has engaged a growing number of stakeholders with a wide range of perspectives, from those of political and human rights to those in the area of arts and culture.
Yet such a perspective on civil society provides only a one-sided view of the civil society’s contribution to transitional justice. What I have described is the contribution of a liberally-minded civil society, which represents only one aspect of a much more complex picture of the non-state sphere in the Western Balkans. Illiberal segments of the civil society have also emerged as an obstacle to achieving post-conflict transitional justice. In this sense, the pluralism inherent in the concept of civil society is turned on its head, and denotes the presence and endorsement of extreme, exclusivist and illiberal ideas and interests by non-state actors. Just as we have seen civil societies across the region that have worked painstakingly on justice and reconciliation, other segments of civil society have had exactly the opposite aims and ideas.
Therefore, the role of civil society and its contribution to justice and reconciliation, or more specifically, of its liberal segments, cannot be assessed in separation from the broader environment in which it has operated, in that it has in many cases faced an “illiberal alliance” where segments of illiberal civil society have reinforced the reluctance or resistance at the state level to address the issue of culpability. Conversely, recent developments at an institutional level, such as official apologies, cannot be isolated from the civil society’s activism and its insistence on reckoning with past wrongs.
In summary, deliberative and participatory perspectives on transitional justice in the Western Balkans point to an ever changing context and dynamics in which the past crimes are understood, addressed and contested in the region. They shape both our understanding of the constraints on achieving justice, but also indicate why the pursuit of transitional justice has often been a painstaking and disappointing endeavour, especially from the perspective of the victims. However, they also show that they were effective in preventing oblivion, and that they kept the imperative of reckoning with the past atrocity alive, and the hope is that they may yet further carve a path to reconciliation and, above all, to recognition of the victims and their suffering.
Dr. Denisa Kostovicova is an Associate Professor at the London School of Economics and Political Science
Paper A deliberative and participatory aspect of transitional justice of Denisa Kostovicova is part of forthcoming publication and is available in English only
 R. Teitel, “Transitional Justice Genealogy”, Harvard Human Rights Journal, Vol. 16, pp. 69-94.
 Cf. Neil J. Kritz, “The dilemmas of transitional justice”, in Neil J. Kritz (ed) Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vol. I, Washington D.C.: United States Institute of Peace Press, pp. xix-xxx, p.xxiii
 These arguments are rehearsed in the burgeoning body of literature, with select references including: V. Peskin and M.P. Boduszynski, “International justice and domestic politics: post-Tudjman Croatia and the international criminal tribunal for the former Yugoslavia”, Europe-Asia Studies, Nov 2003, Vol. 55, No. 7, p. 1117-1142; Dan Saxon, “Exporting justice: perceptions of the ICTY among the Serbian, Croatian, and Muslim communities in the Former Yugoslavia”, Journal of Human Rights, 4(4), 2005; Fletcher, Laurel E. and Harvey M. Weinstein, “A world unto itself? The application of international justice in former Yugoslavia”, in Stover, Eric and Harvey M. Weinstein, My Neighbour, My Enemy: Justice and Community in the aftermath of atrocity, Cambridge: Cambridge University Press, 2004; Meernik, James and Kimi King. 2003. “The Determinants of ICTY Sentencing: An Empirical and Doctrinal Analysis”. Leyden Journal of International Law 16(4):717-750; Jelena Subotic (2009) Hijacked Justice: Dealing with the Past in the Balkans (Cornell University Press). Marlene Spoerri and Annette Freyberg-Inan, “From prosecution to persecution: perceptions of the International Criminal Tribunal for the former Yugoslavia (ICTY) in Serbian domestic politics”, Journal of International Relations and Development (2008) 11, 350–384.
 Peter Uvin, “Difficult choices in the new post-conflict agenda: the international community in Rwanda after the Genocide”, Third World Quarterly, Vol. 22, No. 2, 2001, pp. 177-189; David Mendeloff (2004), “Truth-seeking, truth-telling and postconflict peacebuilding: curb the enthusiasm”, International Studies Review, 6, 355-380. Beatrice Pouligny, “Civil Society and Post-Conflict Peacebuilding: Ambiguities of International Programmes Aimed at Building ‘New Societies’”, Security Dialogue, Vol. 36, No. 4, 2005.
 Denisa Kostovicova, “Civil society and post-Communist democratisation: facing a double challenge in post-Milošević Serbia”, Journal of Civil Society, Vol. 2, No.1, 2006, pp. 21-37.