The Paradox of International Justice Compliance Jelena Suboti´c∗

8/2/2019 The Paradox of International Justice Compliance Jelena Subotic

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The International Journal of Transitional Justice, Vol. 3, 2009, 362383,doi: 10.1093/ijtj/ijp011

Advance Access publication: 27 July 2009

The Paradox of International JusticeCompliance

Jelena Subotic

Abstract1

This article explores a fundamental paradox of international justice compliance. Under

conditions of strong international pressures and low domestic demand for justice, domes-

tic political elites use international tools and institutions designed to bring justice and

provide reconciliation for very different local purposes, such as getting rid of domestic po-litical opponents, obtaining international financial aid or as a proxy for admission to such

prestigious international organizations as the European Union. To explain theoretically

the domestic political use of international justice, the article introduces a new theoretical

approach to international justice compliance. It first presents two kinds of international

pressures to which states are subjected: coercive and symbolic. It then identifies specific

domestic political conditions that influence which strategy of compliance domestic ac-

tors undertake and what consequences these alternative strategies have for international

justice policy outcomes. The theoretical model is illustrated with empirical evidence from

Serbian and Croatian compliance with the International Criminal Tribunal for the former

Yugoslavia (ICTY).

Introduction

Over the past 20 years, a global norm of international justice has emerged prescrib-

ing the appropriate way for states todeal with crimes of the past.2 This international

norm presents a set of expectations for transitional governments to fulfill when

facing a states criminal history. Crudely, it can be reduced to the statement that

gross human rights abuses, such as war crimes, crimes against humanity or geno-

cide, should be adjudicated in a court of law, and not left to either vengeful justice

or forgiveness. While these crimes were previously dealt with through swift justice,

executions, victors trials or simply with impunity, they are now considered to be

just like other crimes that demand a proper trial and due process. In other words,

Assistant Professor, Department of Political Science, Georgia State University, USA. Email:[email protected]

1 I am grateful to the United States Institute of Peace and the American Council of Learned Societiesfor financial support to carry out this research. I thank Michael Barnett, David Leheny, LeighPayne, Jon Pevehouse, participants in the panel on transitional justice at the International StudiesAssociation annual conference in San Francisco, CA, 2630 March 2008, and the anonymousreviewers and editorial team at IJTJfor comments and suggestions, as well as Shannon Jones forresearch assistance. Some of the material in this article appears in a different form in my book,Jelena Subotic, Hijacked Justice: Dealing with the Past in the Balkans(Ithaca, NY: Cornell UniversityPress, 2009).

2 Ruti Teitel, The Law and Politics of Contemporary Transitional Justice, Cornell International LawJournal38(3) (2005): 837862.

C The Author (2009). Published by Oxford University Press. All rights reserved.For Permissions, please email [email protected].

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The Paradox of International Justice Compliance 363

crimes of such magnitude for which no appropriate punishment was ever possible3

have over the past few decades developed into issues for which perpetrators are

held accountable.4

After the early experiments at Nuremberg and beyond, international justice was

further established, legalized and codified with the establishment of ad hoc tri-bunals for the former Yugoslavia and Rwanda in 1993 and 1994 and the creation of

the permanent International Criminal Court (ICC) in 1998.5 Another display of

international justice institutionalization is the notion of universal jurisdiction, ac-

cording to which national courts can investigate and prosecute alleged perpetrators

on their territory, regardless of where the crime was committed or the nationality

of the accused or the victim.6 In addition to institutions of international justice,

such as international courts, international justice is promoted by a network of

experts, advocates, professionals and activists, as well as by activist states and in-

ternational organizations, which pressure countries into holding human rightsabusers accountable.

Although the growing presence and visibility of international justice has been

followed by increased attention to these issues in scholarly literature,7 not enough

considerationhasbeen given to thequestion of how exactly states go about comply-

ing with international justice requirements, and to what domestic political effect.8

This article offers a new way of thinking about state compliance with international

justice. It challenges optimistic accounts that predict increasing social support for

human rights norms such as those of international justice as international

actors make lasting coalitions with domestic allies and pressure governments tochange their policies.9 Instead, this article examines how compliance with inter-

national justice often faces significant and varied domestic challenges, which then

produce unexpected and contradictory political effects.

The article builds on the recent human rights scholarship, which has shown that

many states display signs of compliance with international human rights norms

they ratify international treaties or change domestic laws, for example but they

do so for window dressing, in order to appease international pressure while in

3 This is Hannah Arendts famous statement: For these crimes, no punishment is severe enough. It

may well be essential to hang Goring, but it is totally inadequate. That is, this guilt, in contrast toall criminal guilt, oversteps and shatters any and all legal systems. That is the reason why the Nazisin Nuremberg are so smug. Quoted in Lotte Kohler and Hans Saner, eds., Hannah Arendt/KarlJaspers Correspondence, 19261969(New York: Harcourt Brace Jovanovich, 1992), 54.

4 Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in InternationalLaw: Beyond the Nuremberg Legacy(Oxford: Oxford University Press, 2001).

5 On the history of international criminal tribunals, see Gary Bass, Stay the Hand of Vengeance: ThePolitics of War Crimes Tribunals(Princeton, NJ: Princeton University Press, 2000).

6 See Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights(Philadelphia: University of Pennsylvania Press, 2005).

7 See for example, Bruce Broomhall, International Justice and the International Criminal Court:Between Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003).

8 For a recent attempt to systematically study state cooperation with international tribunals, see,Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle forState Cooperation (Cambridge: Cambridge University Press, 2008).

9 Margaret E. Keck and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in InternationalPolitics(Ithaca, NY: Cornell University Press, 1998).

International Journal of Transitional Justice, Vol. 3, 2009, 362383

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364 J. Subotic

fact continuing human rights violations at home.10 The findings of this article

give more empirical evidence to this claim in the area of international justice,

by showing that compliance with international justice is often a strategic, even

subversive, choice for those states that do not have much substantive interest in

facing the past.The article proceeds in three steps. First, I describe two kinds of international

pressure to which states are subjected: coercive and symbolic. Next, I identify

specific domestic political conditions that influence how states will go about com-

plying with international demands. Finally, I illustrate the theoretical model with

empirical evidence from international justice efforts in Serbia and Croatia.

The Politics of International Justice Compliance

When the domestic demand for justice is strong,11 states comply with international

justice because these are the norms they already share, or because strong domesticconstituencies are able to put pressure on governments to change their behavior in

response to international demands.12 Alternatively, when international pressures

are low or absent and there are no domestic actors pushing for justice, we can

expect that international justice will be soundly rejected or simply ignored.

However, in todays highly institutionalized international justice environment,

states are facing ever-stronger pressures to prosecute perpetrators of gross human

rights abuses in a court of law, even in the absence of strong social demand for jus-

tice. Under such conditions, compliance with international justice createsdomestic

political backlash as it is unpopular with segments of society that supported pastpolicies, and it can even lead to political instability as old-regime loyalists mobilize

against the transitional government out of fear of prosecution.13 The paradox of

international justice compliance, then, occurs within a universe of compliance pos-

sibilities that react to sustained, but varied, international pressures in a domestic

political context of strong normative resistance.

International Pressures

While the international pressure to comply is a given, it is not a constant. It varies

in intensity, internal coherence, sustainability and reliability. It also varies in kind.

In states where the social demand for justice is weak and the state unrespon-

sive, international actors will use conditionality (tying compliance with interna-

tional justice to rewards such as foreign aid and investment or membership of

10 Sonia Cardenas, Conflict and Compliance: State Responses to International Human Rights Pressure(Philadelphia: University of Pennsylvania Press, 2007).

11 I understand the concept of justice to be multidimensional and not reduced to a juridical definition.Justice can be restorative as well as redistributive. In the context of international justice, however,the concept refers to holding individual perpetrators of mass atrocities accountable.

12 Thomas Risse-Kappen, Steve C. Ropp and Kathryn Sikkink, The Power of Human Rights: Interna-tional Norms and Domestic Change(New York: Cambridge University Press, 1999).

13 Jack L. Snyder and Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies ofInternational Justice, International Security28(3) (2003): 544.


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international organizations) to effectivelycoercethe state into complying with in-

ternational justice. States facing international sticks or carrots will then comply

with international justice to appease international coercion and obtain material

rewards. Coercive pressure produces simple political dynamics: if you comply with

our requirements, you will get our benefits. It also produces perverse domestic po-litical effects. It is more likely to create domestic backlash and resistance to justice,

since justice seems to be imposed on unwilling domestic actors. Coercion may lead

to compliance in the short term as long as there are international benefits to be

gained, but it is unlikely to lead to long-term compliance, and it will not produce

the broad social transformation needed by countries emerging from violent con-

flict. Once coercive pressures ease up, states are likely to revert to noncompliant

behavior.

However, domestic political elites are also social actors and as such have a

desire to form associational ties with other actors in the international arena. Theyalso want to be perceived as legitimate international players.14 In states with a

strong desire for international membership and recognition, international actors

will use symbolicpressure to entice a reluctant state to comply with domestically

unpopular norms, such as those of international justice. Symbolic pressure works

something like this: if you comply, you will become one of us. Under symbolic

international pressure, states will comply with international institutions such as

those of international justice not because of what they do but because of what

theysignify, because of their symbolic and normative properties.15 International

justice compliance, however, is still driven by external incentives appeals tolegitimacy and not by a shared belief that it is the right thing to do. States may

comply with international justice because they want international praise, but in

such cases compliance is shallow and not rooted in a domestic demand for change.

Therefore, once symbolic pressure is lifted or a state joins the club it wants to

belong to, the results of international pressure will be institutional markers of

compliance (for example, the arrest of war crimes suspects), but efforts to achieve

broader international justice goals acknowledgment of crimes, establishment of

a truthful account of the past, etc. will not take root.

Domestic Political Conditions

International pressures on states do not enter a domestic political vacuum. They

always interact with domestic political conditions to guide state strategies of com-

pliance. Under conditions of low domestic demand and strong international pres-

sures, compliance with international justice is shaped by the balance of power

between two domestic political coalitions: international justice opponents and in-

strumental supporters. International justice opponentsare domestic elites who are

14 Martha Finnemore, National Interests in International Society(Ithaca, NY: Cornell University Press,1996).

15 Paul DiMaggio and Walter W. Powell, The Iron Cage Revisited: Institutional Isomorphism andCollective Rationality in Organizational Fields, American Sociological Review 48(2) (1983): 147160.


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366 J. Subotic

ideologically, politically or pragmatically opposed to international justice. They

are often affiliated with the previous regime in a formal or informal capacity, and

see international justice as a politically destabilizing tool. At the same time, they

are faced with rising international pressures to comply. To resolve these conflicting

tensions, these actors will pursue cosmetic changes to their domestic practices andmake tactical concessions in order to obtain international benefits and payoffs.

Other domestic political elites may be instrumental supporters of international

justice. They are using international justice to distinguish themselves from other

political groups, and to position themselves as internationalist and reformist forces

in society. Instrumentalists may face serious political challenges from justice op-

ponents and their constituencies. Still, they agree to comply with international

justice because they consider compliance legitimate and necessary if they are to be

taken seriously by international actors on whom they depend.

International pressures and the domestic balance of power interact to producespecific political outcomes. International justice opponents are likely to respond

more directly to coercive than to symbolic pressures; they are not persuaded

by symbolic calls to appropriate behavior, but may react to material incentives.

They will be particularly sensitive to using international rewards for compliance to

benefit themselves politically at home by, for example, using acquired international

benefits as proof of policy success during an electioncampaign. Instrumentalistsare

more attuned to symbolic pressures. They are defining themselves domestically as

pro-internationalist, reform forces that make lasting coalitions with international

partners on whom they depend for continuing support. They are motivated tocomply not just to obtain material benefits, but also to gain approval of the

international community as forces that canbe counted on to promote international

policies at home. International pressures and domestic political actors therefore

influence each other.

The next section illustrates this theoretical dynamic with brief country examples

from Serbia and Croatia. In both cases international justice was used to achieve

domestic political ends. However, the two transitional regimes were under dif-

ferent types of international pressure (coercive in Serbia, symbolic in Croatia)

with different kinds of elites in charge (justice opponents in Serbia, instrumental

supporters in Croatia), leading to different international justice outcomes.

Serbia

The period 19872000 more than a decade of Slobodan Milo sevics rule of

Serbia was marked by brutal ethnic conflicts in Croatia, Bosnia and Kosovo,

intense international isolation and severe domestic repression. Although the war

operations were not carried out on Serbian territory until the Kosovo crisis, the

Serbian-controlled Yugoslav National Army (JNA) and many different paramil-

itary groups were directly involved in the fighting in both Croatia and Bosnia.Throughout the wars of the 1990s, Serbian forces committed unimaginable atroc-

ities against civilian populations, including most infamously the massacre of 7,000


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Bosniac boys and men in Srebrenica. Serbias last war in Kosovo brought the fight-

ing to Serbia proper.16 Thousands of Kosovo Albanians were murdered during the

Serbian police and paramilitary incursions into the province, and many more were

forced to flee.17 The Kosovo conflict ended with the NATO aerial bombardment

campaign in 1999. In 2000, Milosevic was finally ousted from power by a surge ofpopular unrest following his refusal to accept the results of the presidential elec-

tion. Conservative Vojislav Kostunica was elected president and moderate Zoran

in -dic became prime minister.

International and Domestic Conditions

In the aftermath of Milosevics ousting, the international pressure on Serbia to co-

operate with the International Criminal Tribunal for the former Yugoslavia (ICTY)

was strong. The international community placed great importance on the ICTYs

success as a barometer of the viability of international criminal tribunals in general.To succeed, the ICTY needed full state compliance, since the international tribunal

lacks its own enforcement powers and relies directly on states for cooperation in ar-

resting and transferring suspects, and assisting in investigations. Cooperation with

the ICTY therefore became the international communitys primary measurement

of Serbias acceptance of international justice. This choice was further enforced

by the policy of conditionality, by which almost all international awards Serbia

applied for international aid, financial loans, removal of sanctions, membership

in the EU and NATO, as well as many bilateral arrangements with neighboring

countries were linked to cooperation with the ICTY.While the international pressure on Serbia was substantial, the domestic demand

for justice was consistently low. The Serbian public largely refused to believe that

Serbs had committed war crimes, and they blamed other nations and ethnic

groups for starting the war; they also distrusted the international community and,

by proxy, international justice institutions, notably The Hague tribunal.18 Serbias

hostility toward international justice was multilayered. First, Milosevics policies

were supported by a significant majority of the Serbian electorate, especially in

the first 10 years of his rule. Milosevics rule was not simply imposed on unwilling

oppressed people; for a long time, his leadership and policies were rooted in anational public consensus.19 Second, the fact that the crimes were committed

against foreign enemies (non-Serbs) in an internationalized war setting made

appeals to address individual and social complicity in these crimes much more

difficult to maintain than if the atrocities had been committed by Serbs against

other Serbs. The weakness of these appeals was compounded by the character

16 NATO air strikes hit Serbian targets in Kosovo, as well as in Serbia proper in 1999.17 Human Rights Watch, Weighing the Evidence: Lessons from the Slobodan Milosevi c Trial(December

2006).18 Belgrade Center for Human Rights, An Analysis of a Public Opinion Survey on the ICTY with

Comments and Recommendations(2005).19 See regular reports by the Strategic Marketing Research Agency, Belgrade, at http://www.smmri

.co.yu.


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368 J. Subotic

of the postwar settlement, which institutionalized ethnic divisions and separated

warring groups, who now live in different countries or in highly segregated in-

country ethnicentities without any incentive to cooperate or even interact with one

another.20 This ethnic quality of both the crimes committed and the postconflict

solution made the search for justice that much more distant and less urgent.21

Finally, the post-Milosevic government was a hodgepodge alliance of nationalists

and reformers who were deeply split on the idea of international justice. 22 The

nationalists grouped around President (and later Prime Minister) Kostunicas

Democratic Party of Serbia (DSS), and their political allies displayed a general

hostility toward international justice and strongly opposed cooperation with the

ICTY.23 Politically, justice opponents used the issue of ICTY compliance to present

themselves to the voters as a truly patriotic force, one that preserves Serbian

national legacy and does not put it up for sale. In order to follow this political

strategy, theyhadto resist international justice, because this scored them valuabledomestic political points and secured their unchallenged place on the right of the

political spectrum.

In contrast, Prime Ministerin -dic positioned his Democratic Party as the party

of European integration, reform and internationalism, juxtaposing it to the re-

actionary and anti-European party of President Kostunica. in -dic used justice at

The Hague as a domestic political wedge issue, a defining difference between two

opposing political groups. In other words, in -dics reformers were instrumen-

talsupporters of international justice; they would invoke the international norm

not only to justify institutional and policy change, but also to delegitimize thepreferences of their domestic political opponents.

Serbia and The Hague

For the ICTY, and for powerful international actors such as the US and the EU,

the first order of business in post-Milosevic Serbia was the arrest and transfer

20 Huma Haider, (Re)Imagining Coexistence: Striving for Sustainable Return, Reintegration andReconciliation in Bosnia and Herzegovina, International Journal of Transitional Justice3(1) (2009):91113.

21

This low social demand for transitional justice is evident in results of systematic public opinionsurveys. For example, in a 2005 survey, 81 percent of respondents answered that Serbs suffered themost during the Yugoslav wars and 74 percent believed that Serbs committed the fewest crimes ofall ethnic groups in the former Yugoslavia. Strategic Marketing Research Agency, Public Opinionin Serbia: Views on Domestic War Crimes Judicial Authorities and the Hague Tribunal(April 2005),report on file with author. In a similar survey conducted in 2006, 64 percent of respondents believedthat facing the crimes of the past is important, but of these respondents 35 percent believed thisis important in order to vindicate the Serbs from false accusations of war crimes. Organizationfor Security and Cooperation in Europe (OSCE), Public Opinion in Serbia: Views on Domestic WarCrimes Judicial Authorities and The Hague Tribunal(Belgrade, December 2006).

22 The Kostunicain -dic division was also exacerbated by the structural divisions in Serbian politics,with Kostunica heading the Federal Republic of Yugoslavia (Serbia and Montenegro) and in -dicheading Serbia.

23

Kostunicas disdain of the ICTY is well documented. He often publicly denigrated the ICTY,once famously referring to the tribunal as the last hole on [his] flute. B92, 1 February 2002.(Unless indicated otherwise, B92refers to the website of the Belgrade-based B92broadcast network,http://www.b92.net.) Kostunica also argued that his stomach turns at the thought of the tribunal,but that he had to, in a way, digest this institution (B92, 2 April 2002).


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of Milosevic himself. The new Serbian government, however, was deeply split

on what to do with Milosevic. Unlike President Kostunica, who vigorously op-

posed transferring Milosevic to The Hague and was ambiguous about offering

Milosevic amnesty in response to stepping down peacefully,24 Prime Minister

in-dic advocated investigating Milosevic for abuses of power, but not for war

crimes, and proceeding with the arrest and a domestic trial.25 Worried that

Kostunicas continuing reluctance to arrest Milosevic would undermine inter-

national donors pledges of support, in -dic decided to circumvent the president

and had Milosevic arrested on 31 March 2001, the US-set deadline for continuing

economic aid.26 Milosevic was then suddenly and quite secretively transferred to

The Hague on 28 June 2001 in a clandestine operation coordinated by the prime

minister himself.27

Even though in -dic single-handedly pushed for and orchestrated Milosevics

arrest, he chose not to use the arrest as an opportunity to ignite a public debateabout the past. Instead of approaching international justice as an issue of morality,

as the right thing to do, in -dic justified cooperation with the ICTY using first the

language of international prestige: Milosevic was not exchanged for money, but

for [international] credibility;28 Milosevics extradition is Serbias entrance ticket

to the democratic world.29 He also discussed the material payoffs Serbia would

receive in exchange for compliance: Refusal to extradite Milosevic would lead to

the suspension of financial aid, which would bring the country to the brink of

economic collapse, complicate the repayment of foreign debt, and prevent Serbias

membership in international financial institutions.

30

Other government officialswere even more blunt in justifying Milosevics sudden arrest and extradition: We

wanted American money, we wanted EU money.31 Whilein -dics rhetorical strat-

egy was to couch international justice compliance as a purely pragmatic decision,

this approach had significant consequences for the process of dealing with the past

in Serbia, as Serbian citizens came to see it as a business transaction and not an

issue of justice.32

24 Kostunica Meets Milosevic, BBC News, 14 January 2001.25 Milosevic To Face Justice, BBC News, 24 December 2000.26

This also happened to be the day that Kostunica was out of the country on a state visit and wasunable to intervene and block the arrest operation.27 B92, 29 June 2001.28 Nenad Stefanovic, Zoran in -dic, srpski premijer: Nisam najmocniji covek u Srbiji [Zoran

in -dic, Serbias prime minister: I am not the most powerful man in Serbia], Vreme, 26 July2001.

29 Zoranin -dic, premijer Srbije, odgovara na 50 pitanja o prvih 100 dana svoje vlade [Zoranin -dic,Serbias prime minister, answers 50 questions about the first 100 days of his government],Nedeljnitelegraf, 9 May 2001.

30 B92, 28 June 2001.31 Cedomir Jovanovic, deputy prime minister, later president of the Liberal Democratic Party, inter-

viewed on B92 TV, 19 April 2005.32

Bogdan Ivanisevic, Softly-Softly Approach on War Crimes Doesnt Help Democracy in Serbia (NewYork: Human Rights Watch, August 2004). Most citizens support cooperation for utilitarianreasons, either to avoid international sanctions or because it is a requirement for internationalintegration. These results have remained remarkably steady over time, ranging from 7080 percentof the Serbian population. See, OSCE, supra n 21.


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370 J. Subotic

in -dics political entrepreneurship, however, soon came to a tragic end. He

was assassinated in March 2003 by members of the notorious paramilitary unit the

Red Berets.33 The assassination conspirators called the operation Stop The Hague,

strongly indicating that in -dic was murdered to end further ICTY investigations

and extraditions.34

in -dics assassination marked a pivotal moment in Serbias transition and its

attitude toward international justice. His death left a huge power vacuum, which

was immediately filled by Kostunicas conservative DSS and by the extreme na-

tionalist Serbian Radical Party (SRS). The first post-in -dic elections resulted in a

strong normalization and relativization of war crimes and their perpetrators, who

made an open comeback into mainstream politics.35 The assassination stopped

Serbian reforms in their tracks. It compromised further cooperation with the

ICTY, as the only element in the Serbian government inclined to cooperate was

removed, and Kostunica went back to his entrenched position of noncompliance.The high-profile assassination created a domestic political crisis of major pro-

portions, and the instability that followed significantly weakened the reformist

government, which lost re-election in December 2003. Soon after inauguration,

the new administration announced that it would no longer recognize indictments

based on command responsibility, no further indictees would be transferred to

The Hague and domestic courts would take over ICTY trials.36 A few weeks later,

the government passed a law to fund and legally facilitate the defense of indicted

war criminals before the ICTY.37

However, the

in

-

dic assassination did not ease pressures from the ICTY. In2003, the tribunal surprised the Serbian government by issuing indictments against

four generals accused of crimes against humanity in Kosovo. These indictments

presented a serious problem for the government because some of the generals were

still in active duty in the Serbian army and police corps. The government strongly

opposed the new indictments, but was in no position to ignore the ICTY. The US

announced it would suspend economic assistance to Serbia if it failed to arrest the

generals, while the EU threatened to freeze talks regarding Serbias accession to the

Union.38

33 Officially titled the Special Operations Unit, this group was formed as a paramilitary unit in 1990to stir up Serbian rebellion in Croatia. Its members are accused of committing some of the mostheinous atrocities in the Yugoslav wars. After the end of the war, Milosevic officially merged the RedBerets with regular security forces, and they remained part of official police forces after Milo sevicwas ousted from power, making them much more difficult to disband and prosecute. See DejanAnastasijevic, Ko su Crvene beretke? [Who Are the Red Berets?], Vreme, 19 October 2000.

34 Testimony of Zvezdan Jovanovic, oneof thealleged assassins, during theassassination trial proceed-

ings. D. Curuvija, Ubio samin -dica iz patriotskih razloga [I Killedin -dic for Patriotic Reasons],Glas javnosti, 26 December 2003.

35 The 2003 parliamentary elections featured three indicted war criminals Slobodan Milosevic,VojislavSeselj and Nebojsa Pavkovic at the top of the electoral lists of their respective parties (theSocialist Party of Serbia, the SRS, and the Socialist Peoples Party), while two generals indicted for

war crimes, Vladimir Lazarevic and Sreten Lukic, figured on the Liberal Party election list.36 B92, 6 March 2004.37 B92, 30 March 2004.38 International Crisis Group, Serbia: Spinning Its Wheels(23 May 2005).


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372 J. Subotic

services sought instead to cover up the findings. They began a campaign of

silencing and intimidating witnesses, forcing them to sign statements on spiritual

peace and affirmations that they do not feel psychological pressure to disclose

what had happened . . . in May 1999.44 Local police also threatened to file criminal

charges for disclosure of state secrets against any police officers willing to talk.45

The paradox of increasing international cooperation and complete nonaction

at home made international justice advocates in Serbia complain that the more

the Serbian government stepped up its expedited shipping of ICTY indictees, the

less there was public debate about war crimes. As a leading human rights activist

noted, With each voluntary transfer, Serbia is further away from justice.46

The policy of voluntary transfers, however, was short-lived. After the surge

in transfers in April 2005, cooperation with the ICTY stalled again. The ICTY

increased demands for transfer of the two remaining most wanted indictees

Radovan Karadzic and especially Ratko Mladic, who was widely believed to behiding in Serbia, protected by the Serbian military. The international squeeze on

Serbia to arrest and transfer those two men became increasingly linked to any

future accession negotiations with the EU. In many ways, the future of Serbias

international integration was taken hostage by the two men, without whose appre-

hension Serbia was relegated to the back of the EU accession line, with decreasing

financial assistance and a steadily weakening bargaining position on the future

of Kosovo.47 In May 2006, EU negotiations on Serbias accession were officially

suspended because of Serbias failure to deliver Mladic. The US also suspended

financial aid as punishment for Serbias continuing lack of cooperation with theICTY.

Over the next few months, however, European policies toward Serbia began to

change. In November 2006, NATO admitted Serbia to the Partnership for Peace

program, even as Serbia continued to ignore ICTY demands, a long-term require-

ment for NATO admission.48 Then, in a stunning reversal, the EU announced in

February 2007 that negotiations with Serbia on the Stabilization and Association

Agreement (SAA) would resume provided the government showed a clear commit-

ment to achieve full cooperation with the ICTY.49 What clear commitment meant

was left unspecified, but it was obvious that the government was no longer obliged

to arrest Mladic and Karadzic as a condition for SAA talks.50 Even more surprising

44 Helsinki Committee for Human Rights in Serbia, Human Rights and Collective Identity: Serbia 2004(Belgrade: HCHRS, 2005), 150.

45 Humanitarian Law Center (Belgrade), Report on Transitional Justice in Serbia, Montenegro andKosovo, 19992005(5 December 2006).

46 Personal interview with Biljana Kovacevic Vuco, director of the Lawyers Committee for HumanRights, Belgrade, 29 September 2005.

47 International Crisis Group, supra n 38.48 NATO continued to publicly insist on Serbias full cooperation with the ICTY. NATO Summit

Declaration press release, Riga, Latvia (29 November 2006).49 European Commission, Serbia 2007 Progress Report(Brussels, November 2007).50 In a press conference after the EU Troika meeting with Serbia in early March 2007, Commissioner

Rehn cited the following actions: the new government makes a formal commitment to arrest-ing fugitives in their work program; competent and committed people are placed in the right


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was the timing of the EU turnaround, which came on the heels of the February

2007 ruling by the International Court of Justice, which found that Serbias failure

to transfer Mladic to the tribunal was a violation of the Genocide Convention and

ordered Serbia to cooperate fully with the ICTY.51

The EU officially resumed SAA negotiations with Serbia in June 2007, after theSerbian government cooperated in the arrest of two of the ICTY indictees. 52 In

November 2007, the EU initialized the SAA, a major step toward Serbias accession.

This major reward in the absence of any visible steps toward apprehending remain-

ing war crimes suspects angered international human rights organizations, which

argued that the EU is effectively rewarding Serbia for harboring suspects accused

of genocide and is furthermore considering admitting to the Union a state that is in

violation of the Genocide Convention.53 The renewed negotiations also seriously

undermined the ICTY prosecutor, Carla del Ponte, who had consistently issued

reports that Serbia was not fully cooperating with the tribunal and that only EUconditionality stood a chance of making Serbia act.54 Against serious objections

by Belgium and the Netherlands, the EU finally signed the SAA agreement with

Serbia on 29 April 2008, with the caveat that the implementation of the document

would depend on Serbias cooperation with the ICTY.55

The EUs strategy shift can only be interpreted as a political measure aimed at

strengthening pro-European forces within Serbia namely, the reformist Demo-

cratic Party at the expense of the hard-line DSS and SRS on the eve of par-

liamentary elections scheduled for May 2008.56 In fact, Javier Solana, EUs High

Representative for the Common Foreign and Security Policy, said openly that theSAA should be offered to Serbia before parliamentary elections to support pro-

European forces in the elections and to send a clear message to the Serbian people

that we care about them.57 The EU gamble paid off and the reformers won a

10-point victory in the May 2008 elections. Their victory, however, was not robust

enough to allow them to form a majority government. In a particularly ironic

governmental positions to enable full cooperation with the ICTY; the competent authorities work-ing on the arrest of fugitives are well coordinated; and Serbia grants full access to documents andfiles. General Affairs and External Relations Council, EUSerbia Troika, Brussels, 6 March 2007.

51

On 26 February 2007, the International Court of Justice ruled that Serbia breached its obligationsunder the Convention on the Prevention and Punishment of the Crime of Genocide by failingto prevent the 1995 genocide at Srebrenica or to punish those responsible. It also found thatSerbias continuing failure to transfer Mladic to the ICTY amounts to an ongoing violation of itsobligations under the Genocide Convention. This is the first time the ICJ has ruled that a countrywas in violation of the Genocide Convention. International Court of Justice, Case Concerning theApplication of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosniaand Herzegovina v. Serbia and Montenegro), Judgment (26 February 2007).

52 The suspects in question were Bosnian Serb general Zdravko Tolimir and Serbian former policegeneral Vlastimir or -devic.

53 See, for example, Human Rights Watch, Dont Compromise on Mladi c: EU Should Insist on FullCooperation with Yugoslav Tribunal(6 November 2007).

54 Del Ponte Urges EU Serbia Caution, BBC News, 31 January 2007.

55 B92, 29 April 2008.56 International Crisis Group, Serbias New Government: Turning from Europe(31 May 2007).57 Javier Solana, address to the Committee on Foreign Affairs of the European Parliament, Brussels,

8 April 2008.


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13/22

374 J. Subotic

twist, the reformist Democratic Party was forced to invite Milosevics Socialists to

join the government.58

The change of government, however, quickly led to improved cooperation with

the ICTY. In a clear sign that, at least for the time being, justice opponents were

replaced by instrumentalists, the new reformist government surprised interna-tional observers and The Hague tribunal itself by arresting Radovan Karadzic in

Belgrade in July 2008.59 The government wasted no time in placing Karadzics

arrest in the context of Serbias European aspirations, with the foreign minister

proudly announcing that the arrest was a sign that the Serbian government has a

very ambitious European agenda. He noted: We want to be an EU member.60

But the Serbian government used Karadzics arrest to make an even larger po-

litical point. If Serbia respects international law by cooperating with the ICTY,

the international community should respect Serbia as well, by siding with its

claim that Kosovo should remain part of Serbia.61

Serbian Prime Minister MirkoCvetkovic made this link very clear: Serbia respects international law in every re-

spect, whether the issue is cooperation with The Hague or acting against Kosovos

unilateral declaration of independence.62

It was therefore becoming increasingly clear that the SAA was offered to Serbia

not only to strengthen reformists on the eve of elections, but also specifically to

pressure the Serbian government to recognize Kosovo. As the new crisis regional

instability following Kosovos declaration of independence loomed large, the

issue of internat

Documents

The Paradox of International Justice Compliance Jelena Suboti´c∗