Abandoning the process of transitional justice and lost momentum for RECOM?

Generally speaking, the process of transitional justice in post-Yugoslav countries was stopped. National prosecution for War Crimes protect military and police generals of the armed forces of their country from criminal responsibility.
In connection with the trials of members of the KLA before the Special court, it is not realistic to expect that Serbia will begin to act more responsibly with regard to the fact that its forces were responsible for the death or disappearance of some 8,000 Albanian civilians. Such Serbia will cause great dissatisfaction of the families of albanian victims in Kosovo.
RECOM is a way out of this situation. Since 2008, every two years, with the change of government in one of the countries in the region of the former Yugoslavia, we began from scratch. A lot of time has passed in the expectation that the politicians agree on the establishment of RECOM.
We now have very concrete results, which can encourage states to assume their responsibilities towards the victims, their families and society. Five members of the Coalition for RECOM conduct research human losses and detention sites, in order to help create name by name register of all war victims and sites of detention.
The identity and fate of 23,000 people is fully established. If we add that the Hague tribunal established the circumstances of the death of around 18,000 victims, then that information that is in the name of support RECOM to form a record of the victims, but listed 41,000 war victim, speaks in favor of the opinion that the RECOM process alive.

Berlin process has represented a significant boost for regional relations, with dozens of infrastructural and economical projects discussed and planned. Also, a platform for political dialogue on the highest level has been created, which can be effective in crisis management, which we have seen few days ago, with PM's having joint dinner in Bruxelles, while at the same time FM's had a meeting in Rome.

Nevertheless, there is only one successful product of the Berlin Process - Regional Youth Cooperation Office. All of other ideas and projects are pending, without necessary political will to be implemented, especially because of economical risks.

Establishment of RYCO has shown that adequate pressure and advocacy from Civil Society can result in positive change. Key challenge in securing Governments' support for an initiative like RYCO and RECOM is presenting that there is a geniuine need in the societies for an institution like this. In RECOM's case, more than 600 thousands signatures of support shows a clear will of citizens for the establishment of RECOM.

On the other side, in RYCO's case it has proven that pressure and engagement from EU countries is vital for the effectiveness of the process. Current political crisis in the region, rise of nationalism and more and more open talks about open conflicts is threatening to damage all positive changes in the Berlin process, and the only way to set a steady pace towards progress and cooperation is to take a regional approach towards the past, and RECOM is the most important, needed and developed mechanism for that.

Establishment of truth about the past and serious human rights violations in the 90s must be a top priority in all countries in the region. It is impossible to say that there is rule of law, access to justice and respect for human rights in any country in the region if perpetrators of most serious human rights violations are free and facts are not established.

A synergy of different methods is the only way to success. We must document all violations, including interviews with victims and witnesses (in some cases, war crimes happened more than 25 years ago). Apart from documenting, we must "press" judiciary with facts and criminal complaints against perpetrators. When it comes to communication since most of the mainstream media are closed to voices of victims/witnesses, we should use internet and social media to reach the audience and present facts. Finally, we must continue work with local duty holders and international community despite changes in their interest in dealing with the past.

RECOM has no alternative in the region, while some ideas about national commissions were without enough guarantees that facts will be established. Improving strategy for advocating RECOM is possible, but the idea and results so far must be the foundation for the future work.

I’m covering the Balkans for the last 20 years, as a journalist for OBCT. During this period I’ve seen not only the drammatic conseguences of the war in the former Yugoslavia but also the brave initiative of few people dedicated to set the truth, the trust in the Other and the hard job to find a way to the reconciliation. I personally think that more in other period we need now something like RECOM, becasuse is the unique effort in this direction. We’re now facing an icrease of nationalism, sometime occulted fascism, and clear intollerance. The relationships among the former jugo states are worse than before. The populistic rhetoric is more and more present on the local media (with some tabloids allarming the readers about new conflicts). I’m quite sure that at this moment no one country will build spontaneously a commission for truth and reconciliation… and we’ve already seen some of these (failed) experiments. Specially when the EU is not so focused on the region (Western Balkans) and for sure doesn’t push up for a process of transitional justice, abandoning something as RECOM would be a blunder.

I am writing to offer my contribution to the consultation process as an academic with a long-standing interest in the issues of transitional justice in the Western Balkans, in general, and as a researcher interested in the merits of a regional approach to transitional justice, epitomised by the RECOM process, in particular. The RECOM initiative is worthy of support for several interrelated reasons I outline below:

1) The RECOM process has originated in the recognition of the limitations of the retributive transitional justice instruments, i.e. war crimes trials, to meet the justice needs for the victims. At the time, this has particularly concerned the work of the International Criminal the International Criminal Tribunal for the Former Yugoslavia (ICTY). The ICTY is wrapping up its work, and despite the fact that there are number of domestic trials throughout the countries in former Yugoslavia, there is an evident need for other non-judicial mechanisms to meet the needs of the victims. With its focus on victims regardless of their ethnicity, RECOM is uniquely positioned to address this huge gap.

2) Arguably, the current political and even social environment in the entire region of the Western Balkans is even less conducive to the pursuit of any transitional justice measures, than it was immediately after the conflicts ended, because any attempts at transitional justice have been thoroughly politicised. This is the reason why any new transitional justice initiatives have to be pursued very sensitively, and try to balance the imperative of not being politicised and therefore undermined, with being effective in addressing the needs of the victims. RECOM’s remit that is focused on documenting the facts of war crimes and other human rights abuses can do precisely that. By being focused on the facts, rather than on interpretations, it stands the best chance of avoiding being either co-opted or undermined for the benefit of narrow national interests that obstruct reconciliation.

3) The RECOM’s future ambition to establish the record of war crimes throughout the region also has to be viewed in the context of the lack of any record of war crimes in the Balkans. Historically, this region has fallen prey to cycles of conflict. Scholars of the wars of Yugoslavia’s dissolution of the 1990s have argued that the lack of a historical record was one of the major contributing factors that flamed nationalist intolerance and hatred, which ultimately led to bloodshed. The lack of the historical record allowed the distortion of facts, and their abuse in an attempt to destroy the multi-ethnicity. RECOM’s aim is to establish the record of war crimes and human rights violations throughout the region. It can potentially have a conflict prevention role – by removing a very important, and very likely method that could be used to incite violence in the future.

4) I mentioned above that I have conducted specifically research into the RECOM process in the Balkans (as part of my Leverhulme Trust Research Fellowship). During my research, I have had an opportunity to attend several fora organised by RECOM. Here, I would like to particularly stress the importance of the public testimonies of the victims. It became acutely evident to me during these gatherings how much the victims had a need to share their experiences in the public fora, in the search of the recognition of their pain. The RECOM as a commission plans testimonies as one of the methods for recognition of victims and their suffering. However, apart for being very important for the victims, the RECOM meetings that gathered people from different ethnic groups in the Balkans, and where victims from across the ethnic divides shared their painful experiences, also demonstrated the power of the testimony to nurture empathy across ethnic lines, as well as multiperspectivity – understanding someone else’s suffering and humanity. The forums were a small example of how this could work at a larger and more formal platform – whose effect would also be amplified by the fact that it would be an officially endorsed platform.

5) Lastly, I would like to comment on the merits of a regional approach, drawing on my research – and of which the publication is available from the International Journal of Transitional Justice 2017 11 (1). pp. 154-175) Seeking justice in a divided region: text analysis of regional civil society deliberations in the Balkans. This concerns the merits of a regional approach as opposed to the national approach. There has been much debate in the academic and policy circles which approach should be prioritised. I undertook a quantitative analysis of the RECOM debates, in order to measure whether when people gather at a regional level they will be more focused on peace, truth and reconciliation as opposed to when they meet at a national or local level. I was particularly interested to measure this effect in view of some arguments that a regional approach may import different national conflicts and, therefore, fail. The results of my analysis show exactly the opposite – when people meet at a regional level they conducted discussion that was more focused on the restorative aims of transitional justice. This has potentially important implications for policy making – concretely, having learnt from RECOM, we see that bringing people from different ethnic groups together, i.e. a regional rather than a national approach – is conducive to focusing the conversation on peace and reconciliation.
Denisa Kostovicova, LSE

Having read previous observations, with which I fully agree, I would like to add one important argument for not letting the politicians abandon this important initiative.

The request to establish the regional commission mandated for seeking and telling the factual truth about the war-related human rights abuses has been made by participants of one quite broad and participative consultation process held throughout the whole Western Balkans region (excluding Albania). This process involved civil society actors, victims and their associations, war veterans, journalists, artists, youngsters and experts from various fields. The request - later concretized as the Proposal of the Statute of such a commission - was eventually (and declarative) supported by political leaders. Finally, the special envoys of presidents of states had examined the Proposal and offered recommendations on how to adjust it to fit the national legal frameworks.

To sum it up: we, the citizens of Western Balkans states do believe that RECOM is our chance to overcome our violent past, to admit the wrongdoings inflicted upon others and finally move on into the peaceful and stable future. No politician should be allowed to decide whether this initiative should be backed, ignored or dismissed: it is their obligation to build upon citizens’ request, if not for the other reason then because their legitimacy derives from within.

I do think that lost momentum is causing some major problems for transitional justice in the region. After over 20 years people can now claim with some justification that addressing the events of 1990s are “digging up the past”. Reaching this point was undoubtedly the intention of politicians who have constantly delayed criminal investigations over the last two decades. The dismissal of the conflicts as being 'in the past' is somewhat ironic given the tendency of politicians in the region to use their own nation’s victims to curry favour and win votes. Still, with the ICTY coming to an end, and perpetrators of war crimes starting to die, many people in the region want to forget and move on.

Furthermore, it seems to me that the social impact of court cases lessens as time passes. People feel less and less connected to those who are accused of crimes, especially the younger generation, which unfortunately can make them even more open to the victimhood narrative than people who actually lived through the wars. They will ask why their country’s reputation should be damaged because of the actions of an old man that happened before they were even born. This tends to feed the idea that transitional justice is a conspiracy to shame the country.

The understandable desire to move on is being used by politicians to bury their responsibility for what happened. This avoidance of responsibility is supported by most political parties and the media, it is well-established and it is likely to continue to be the prevailing attitude across the region for the foreseeable future.

This however, does not mean that work on transitional justice should stop, on the contrary it makes the task of documenting what happened even more important. The records being established by RECOM allow for the possibility of the current narratives being challenged, once the politicians and societies in the region become more amenable to self-criticism. Admittedly this is probably not much comfort to victims of violence. It may seem like a thankless task, but establishing the truth and publicizing it is vital if the societies in the region are ever going to come to terms with what happened. It might never happen, but without factual records it cannot happen - as long as there are records, the possibility of critical engagement with the past remains open.

Dear all,
I tend to disagree with the premises of the current debate. Not because I, just like all of you don’t think that Recom, as envisioned by theoreticians, would be extremely beneficial for the societies, but because theory and reality apart - individuals rarely think and invest themselves for the benefit of the entire societies, in particular when they are not motivated to do so.

Let`s face it, the vast majority of population, not only their political elites, is not interested in the “facing the past” process. Reasons are various for this indifference, and honestly Recom does not have much to offer. The basic Recom assumption that such processes are crucial for the healing of nation and ensuring justice for the crimes committed during the 1990s does not mean much to most of the populations in the Western Balkans – some feel excluded, some want to move on with their lives, some feel threatened by such process and frankly, most feel it has nothing to do with them.

It is not only that in many ways this process is understood as forced upon them, and as such is counterproductive, but those who are promoting it are perceived as patronizing gate-keepers, those who gets to decide what is right and what is wrong (no mistake here, I allude here also on researchers, including myself).

There are at least two reasons why Recom, even if all Western Balkan political elite were actually supporting the process is, in my opinion, not having transformative power. The first reason is, and I understand that for most of you this will be hard to swallow, the fact that “justice for victims” is one of the core motivation behind the process. I find this troubling not only because no one can promise justice to no one (and needless to say justice is in the eyes of beholder) but mostly because this categorical approach based on simplified (and yet historically rooted) triad matrix of victim – perpetrator – bystander is damaging in various ways as it simplifies and purifies extremely messy realities of past conflicts. By pushing and catalogizing people into categories, one deprives them from their right to feel the way they feel about their past – even if we don’t like or don’t agree with it – people will, openly or in secret continue to feel what they feel. And by labeling victim groups as such one inevitably brings in competition over suffering and exclusion of those whose suffering does not fit the victim profile. Thus, in my opinion, the process should bring, develop and adopt different imaginative tools to open up the stage for much wider groups of people that are not going to be classified or approached by the victim-perpetrator key. Finally, we are talking here about neighbors, men, women, workers, sport lovers, friends etc.

The second reason why I think Recom lacks transformative power is because it does not offer real alternative to nationalist understanding of collectiveness. Recom is not equipped to harvest micro-solidarity and transform it into human rights values. Victims does not become more prone to human rights just because they experienced injustice, suffering and trauma. Jews are not more human rights loving because of their Holocaust experience. Neither Bosniaks. Nor will be Palestinians. On the contrary, they are all more nationalist. This is because the experience of micro-solidarity is not instinctive but rather a function of a particular interpretation of symbols and history. Consequently, instead of harvesting strong emotions and senses of loyalty from micro-solidarity pockets to become an ideological cement of human rights norms and values, the framework produced through Recom (and other human rights projects) is either likely to disappear or to be harnessed by the state, and will serve nationalist, ethnically bound agendas by pushing forward the importance of defining the “self” and the “other” through boundaries along ethnic lines.

To sum up, it is not about the world we desire to see, but the reality on the ground that has to be dealt, in my opinion, very much differently.

Best,
Lea David

Bearing in mind that the first decisions of the European Court of Human Rights on the issue of the right to know/the right to truth date from 2011 only, it can be stated that the momentum is definitely not lost. On the other hand, the question is if it ever existed? When looking at the narratives of the documents of the EU and of the Council of Europe, the right to truth, and truth-finding initiatives in general (in the Balkans), is only rarely and marginally mentioned explicitly. It can be spotted in implied terms at somewhat more documents, but in all of the cases it is done as a very marginal issue, which has been put there by chance. The EU just came-up with a TJ strategy in 2014/2015 only, and the CoE has never come up with one. In other words, the right to truth does not seem to be perceived by the important regional organisations as an issue that crucial for reconciliation, as for example, criminal justice has been perceived. It is a question if they have the capacity to perceive it as an important one. In other words, and to conclude, the momentum for lobbying for truth-finding, as a core method of reconciliation in the Balkans, needs to be created and strongly pushed. Thus, the momentum for RECOM needs to be created and pushed into the mind-set and narratives of the EU and CoE strategies. This needs to be done by the civil society sector in the region. Pushing on an issue by the civil society seems to work, as pointed in one of the comments above (which spoke on the formation of RYCO).