Mirroring transitional justice. Construction and impact of European Union ICTY-conditionality

International and Historical Expectations. Retributive Justice as International Ideal and European Value

The EU’s understanding of the reconciled, modern and democratic self was more than a mere inspirational narrative to transfer to the Western Balkans. It concretely shaped the EU’s enlargement state-building strategy. The emphasis on ‘regional cooperation and good neighbourly relations’ is a first indication of the practical implications of the EU’s idea that ‘being European’ was the result of regional reconciliation. It formed a consistent element of the annual progress reports on Serbia and other communications issued by the European Commission (EC).^[27] Progress on the EU membership path was not only a reward for and an indication of, but also ‘the best way’ for successfully addressing ‘inter-ethnic or status issues’ impeding regional stability.^[28] This ‘essential’ process was evaluated beyond concrete diplomatic activity.^[29] Positive references to airlinks connecting Belgrade and Tirana,^[30] concern with Serbian–Albanian animosities during a football game,^[31] or ongoing bilateral ‘dispute[s]’ between domestic churches,^[32] for example, testify to the EU’s appreciation of both political and sociocultural cross-border regional cooperation in line with its own inclusive understanding of post-war regional reconciliation. Other important regional reconciliation tools were diplomatic apologies and war-crimes prosecution, with the EU’s demand for ICTY-cooperation thus serving both as indicator of good regional relations and as accession criterion in itself.

This focus on retributive justice derived from the EU’s projection of its own experiences with the Nuremberg trials onto the Western Balkans. The Nuremberg court prosecuted several perpetrators and, according to many, brought justice to a devastated continent by focusing on individual criminal responsibility.^[33] For the longest time, this European success story, together with similar trials in Tokyo, was the world’s first encounter with international criminal justice. Although the idea did not disappear after Nuremberg and Tokyo, the bipolar world after 1950 lacked a ‘neutral’ space that could facilitate another international court.^[34] However, the conflicts in the former Yugoslavia coincided with the end of the Cold War. This created the perfect conditions for the United Nations (UN) to establish the ICTY in 1993. Specifically, Serbia’s cooperation with the ICTY, as the country hosting the most indictees, became the ‘test case’^[35] or ‘laboratory’^[36] of this long-awaited second chance to realize the ideal of international criminal justice.

At first, the EU depicted its ICTY-conditionality as an effective means to enforce Serbia’s compliance with retributive justice as an international obligation. In the course of years, the EU increasingly portrayed Serbia’s cooperation with the court as a symbol of the state’s ‘Europeanness’. At the Western Balkans summit in Thessaloniki in 2003, the EU had declared with regards to the ICTY that ‘providing justice for war crimes is a legal, political and moral imperative to which we [not specified, N.W.] are all committed’.^[37] When Radovan Karadžić was arrested in July 2008, the notion of ‘becoming European’ had apparently entered the discourse. Rehn enthusiastically welcomed the arrest of this suspect, charged with a wide variety of war crimes, as a ‘milestone’ in Serbia’s path ‘towards a European future’.^[38] The spokesperson for Rehn’s colleague Javier Solana emphasized the ‘excellent operation’ of the Serbian authorities that ‘will bring Serbia closer to European values’.^[39] In 2011, van Rompuy connected the two tiers. Shortly after the arrest of Ratko Mladić, a Bosnian Serb commander charged with various crimes including the genocide in Srebrenica, van Rompuy congratulated Serbian president Boris Tadić with this accomplishment ‘not only for Serbia, but for the region and international justice as well’.^[40] Two months later, van Rompuy depicted the arrest of Goran Hadžić as ‘a further important step for Serbia in realising its European perspective’ and ‘equally crucial for international justice’.^[41]

It is worth noting that to a certain extent this duality was adopted in Serbian discourse as well. In Serbia’s National Programme for EU integration of 2009, ICTY-cooperation is the first topic in the subsection of ‘international obligations’. As the document states, Serbia considers cooperation with the court ‘primarily […] in the context of acceptance, upgrading and respect of the values and rule of law as recognized in European countries’.^[42] Serbia understood that, by that time, the ICTY-condition signified commitment to both a universal ideal and a European identity. Through retributive justice in the form of ICTY-cooperation, Serbia was supposed to achieve reconciliation that would contribute to regional stability and enable the EU to build a successful member state.

Practicalities of Conditionality. Formulating, Evaluating, and Implementing Retributive Justice

As the perceived basis for a European, democratic future, cooperation with the ICTY became a non-negotiable part of the membership demands. The EU hence used its most powerful instrument of ‘reinforcement by reward’: full conditionality.^[43] Progress reports and other EC communications consistently and elaborately discussed ICTY-cooperation.^[44] In the important Stabilization and Association Agreement (SAA), signed in 2008, Article 4 referred to ‘full cooperation with the ICTY’.^[45]

The broad formulation of the condition allowed for various components of cooperation, including archival disclosure, fact-finding, information sharing and extraditions to the ICTY. The EC’s annual progress reports, which assessed Serbia’s efforts towards EU membership, reflected the wide scope of this definition. The documents from 2006 onwards all started with a reference to the progress made. They emphasized the government’s ‘good work concerning waiver or witnesses and access to documents’,^[46] ‘significant progress’,^[47] ‘major step[s] forward’,^[48] ‘further progress’,^[49] ‘improved cooperation’,^[50] ‘active’ cooperation^[51] and ‘adequate’ responsiveness.^[52]

Nonetheless, the evaluation of the condition was eventually rather negative. The progress reports concluded that ‘full cooperation’ with the ICTY was not achieved yet because of the remaining fugitives.^[53] More specifically, all reports referred to the necessity of Mladić’s arrest.^[54] In an adopted resolution, the EP reminded Serbia that ‘only apprehension and extradition of the fugitives to The Hague can be deemed the most convincing evidence of full cooperation’.^[55] After the 2011 extradition of Hadžić as the last remaining fugitive, the EC and EP indeed declared that Serbia’s ICTY-cooperation had achieved a ‘fully’ and ‘entirely’ ‘satisfactory level’.^[56] The subcriterion of fugitives’ arrest thus dominated the assessment of full cooperation with remarkable consistency.

Although this stern evaluation leads one to expect a similarly strict implementation, sanctions and rewards were adjusted to the domestic political situation in Serbia. The combination of the condition’s width in formulation and firmness of evaluation enabled the EU to ‘incentivise and bargain’ with relevant pro-reform authorities.^[57] For example, in 2005 the Council of the European Union declared itself ‘mindful of the forthcoming anniversary of the democratic uprising in October 2000’.^[58] A historical reconstruction of two key events in 2006 and 2008, both meant to enforce extradition of the remaining fugitives, further illustrates how implementation grew more sensitive to the specific domestic political context.

When the EU stepped up its pressure in 2006, the political power balance in Serbia was stark and fixed. Prime Minister Vojislav Koštunica had limited room for political manoeuvring, because his party relied on the support of the geopolitically conservative Socialists—not to mention that he was already a stark opponent of the ICTY, which he accused of being an ‘American court’.^[59] Unwilling and unable to give in to the EU’s pressure, he therefore declared that ‘Mladić is hiding all by himself’.^[60] Prompted by this reluctant attitude, the EU made continuation of the SAA negotiations conditional upon Mladić’s extradition. Having once extended the deadline due to Serbian promises, on 3 May the EU decided to block the negotiations when these promises proved hollow. The Netherlands, as an individual member state, played a significant role in this decision. While the head of the delegation responsible for EU negotiations, Miroljub Labus, resigned, the Serbian government continued its work without major changes and without strengthening its efforts to capture Mladić.^[61] It would take more than a year for the SAA negotiations to be resumed.^[62]

In January 2008 the EU’s aim was the same. Nevertheless, both the political situation and the EU’s strategy were different—and so was the outcome. Since 2007, a more pro-EU coalition had come to power in Serbia. Despite failing to capture Mladić, the coalition improved ICTY-cooperation. The new government had already managed to reopen the frozen SAA negotiations in June 2007.^[63] The upcoming parliamentary and presidential elections in the first half of 2008 further added to this political momentum. Perhaps recognizing this timely opportunity, in January 2008 the Netherlands again used its power as an individual member state to prevent the SAA from entering into force. Similar to the situation in 2006, this decision was based on Serbia’s failure to arrest the remaining fugitives, notably Mladić. Refusing to make Serbia’s broken promise an absolute stalemate in this stage of the negotiations, the other member states did not follow the Dutch initiative. Instead, the EU designed a temporary agreement, hoping to mobilize domestic progressive forces.^[64] Rehn, for instance, told the press that the Serbian citizens were about to choose ‘between a nationalist past and a European future’.^[65] Solana stated that the EU had to show its ‘commitment to get Serbia as close as possible to the EU’.^[66] ‘We have not forgotten all the conditions’, Dimitrij Rupel declared, ‘we thought it was important to give Serbia signals at this point of time’.^[67] Serbia’s pro-reform party, as was hoped, won the subsequent elections,^[68] leading to what Adam Fagan dubs a ‘shift towards cooperation with the demands of the EU’.^[69]

Several authors have tried to explain this surprisingly lenient gesture.^[70] It stands in striking contrast to the popular academic view that enlargement fatigue led to an increasingly severe accession policy.^[71] If the member states indeed felt that further enlargement was undesirable or simply too bothersome, the Dutch reluctance would have offered a perfect pretext to again halt negotiations with Serbia. Security considerations can perhaps explain this seemingly unlikely choice. With Russia’s intervention in Georgia and the Arab spring, from an EU perspective the security situation in the Caucasus and the Middle East had worsened. This pushed the EC in 2008 and 2011 to emphasize the need for ‘political stability’ in the candidate member states.^[72] Moreover, EC enlargement strategies reveal that the EU increasingly held a credible membership perspective, and thus commitment to its own promises, as being essential in enforcing reforms.^[73]

A third reason may again be found in the EU’s own experiences with transitional justice. The EU expected Serbia eventually to be willing to do justice and reconcile with its neighbours, as archenemies France and Germany had supposedly done. Enforcing ICTY-cooperation was, after all, part of the EU’s state-building strategy. By allowing for negotiation and delay in arresting indictees, the EU could try to influence domestic politics. This illustrates how retributive justice, as demanded by the EU, eventually had to serve democratization and the rule of law in the Western Balkans.

The previous sections linked the EU’s expectations of retributive justice, as part of its state-building strategy, to the construction of ICTY-conditionality. Here, the question of effectiveness inevitably arises. Because the focus of this paper lies with the conditionality itself, I will rely here on the most recent conclusions of thorough scholarly work rather than on primary material and reconstruction. As shown by Europeanization scholars looking at the issue through a mainly rationalist lens, contributing to our understanding of the EU’s carrot-and-stick approach, conditionality was certainly effective in enforcing ICTY-cooperation and influencing political constellations, especially in comparison with other international bodies.^[74]

Research using a socialization approach has nuanced these conclusions. In the case of Croatia, Tina Freyburg and Solveig Richter demonstrated that conditionality’s demands often proved incompatible with ‘national identity’. Even if cooperation was not politically costly, such a clash resulted in non-compliance.^[75] It is, however, important to look beyond a simple dichotomy of compliance and non-compliance. Instead of looking at effectiveness, these constructivist scholars indeed aimed to study impact. The EU’s politically sensitive approach, as described previously, raised possibilities of ‘fake compliance’ or ‘imposed compliance’, to use some apt terms from Gergana Noutcheva.^[76] This constructivist input has helped us realize that Europeanization does not only consist of transfer of policies and standards. It includes the complex transfer of norms, values and practices that are more difficult to measure but at least as important in the process of becoming an EU state. For the case of Serbia, several authors have in that light articulated how even formal compliance with ICTY-cooperation did not result in genuine recognition of the court’s legitimacy.^[77] Jelena Subotić and Marlene Spoerri, for example, found that the majority of Serbian political actors have never acknowledged justice as a moral necessity. Just as the nationalist discourse in the wake of the refugee crisis and the Turkish coup d’état seemed to intensify rather than retreat after the EU’s repeated attempts to enforce norms of solidarity, democracy and human rights, the EU’s constant articulation of the norms of justice, peace and reconciliation in the case of ICTY-cooperation has arguably armoured nationalist elites. Depicting ICTY-cooperation merely as a pragmatic choice with direct economic and political benefits, they could mobilize support around their dismissal of the norms the EU membership prospect was expected to enhance.^[78]

Claims and Discourse. A Retributive Court as Generator of Restorative Justice

Research thus found a discrepancy between Serbian politicians’ compliance with ICTY-conditionality and their internalization of the norms supposedly represented by the ICTY. The disappointing impact of ICTY-conditionality can be explained in terms of a ‘mismatch’ between the expectations and values embodied by the court, on the one hand, and the concrete conditionality designed to enforce cooperation, on the other hand. The next step in this article, and as I would argue for Europeanization literature in general, is therefore to look again at the claims and expectations of the EU as instigator of the Europeanization process. Admittedly, it seems highly ironic to advocate for this shift back to the EU-level now that scholars have only just recognized the importance of studying the complex and contradictory dynamics of domestic receptivity. As this section will illustrate, however, it is exactly the EU’s conviction that Serbia’s transitional justice process was to be modelled on EU experience that is key to understanding how ICTY-cooperation within the Serbian context acquired political meanings so different from the norms envisioned by the EU.

The causal relation between international criminal justice and state-building, from an EU perspective, lies in the ICTY’s contribution to reconciliation and peace. This three-layered narrative of justice as a step towards reconciliation, which in turn leads to state-building, followed the notion of the Nuremberg court as facilitator of Western European integration. Nuremberg had allegedly paved the way for Western European powers to reconcile peacefully. On the basis of this reconciliation, the former enemies could become one Europe, united by democratization and rule of law.^[79] This EU understanding actually happened to fit in well with the broader discourse of transitional justice, used by practitioners and politicians, as well as scholars. They increasingly embraced international criminal justice as the basis for reconciliation and peace. UN Security Council documents establishing the ICTY confirmed this idea. They stressed the court’s contribution to ‘lasting peace’, ‘restoration and maintenance of peace’ and ‘(national) reconciliation’.^[80] The ICTY accordingly states on its website that it strives to ‘fulfil its mandate of contributing to peace and security in the region’.^[81] Even today, scholars defend this idea of the ICTY being the essential constituent of transitional justice and thus of reconciliation and peace.^[82] After an initial trend to focus on the incompatibility of justice and peace, the academic field now considers them to be mutually enforcing.

However, since the nineties, the academic and practitioners’ understanding of transitional justice has quickly evolved. It did not move back to the peace-versus-justice debate, but instead expanded the concept of this justice required to pave the way for peace. Many now emphasize the importance of restorative justice as, at the very least, a complementary mechanism to courts. Recent studies therefore refute the EU’s expectation that a single international criminal court, located within the realm of retributive justice, could further restorative goals.^[83] Fact-finding, truth commissions, local initiatives and the involvement of civil society are necessary components of a complete approach to justice that enables long-lasting reconciliation and peace.^[84] Shifting attitudes within the ICTY reflect this change.^[85] The ICTY’s personnel generally believe that their main priority lies with prosecution and investigation. They express modesty towards the court’s claimed potential for reconciliation. Many believe this can only be an additional and intended consequence of their core task to bring retributive justice.^[86] The ICTY adopted an outreach programme meant to enhance the court’s positive impact on peace and reconciliation, but the UN did not consider this a ‘core activity’. As a result, the outreach programme relied almost exclusively on donations by the EC.^[87]

The EU, meanwhile, severed rather than loosened the discursive link between the ICTY and reconciliation and peace. While an EP resolution from 2007 had already described ICTY-cooperation as ‘a key step towards achieving lasting reconciliation in the region’,^[88] since 2009 the EU has consistently emphasized this connection, especially in EC enlargement strategies and EP recommendations and resolutions. The EC dubbed cooperation an ‘essential’ condition and ‘key’ in achieving ‘lasting reconciliation in the region’.^[89] As early as 2009 the EP had concluded that the ICTY had ‘already made a significant contribution’ to reconciliation and peace in the region.^[90] In 2009 and 2012 the EP urged the Western Balkan societies to see extraditions of war criminals as not only a membership condition, but ‘above all a step towards bringing justice to the victims […] and reconciliation in the region’.^[91] When in 2011 the last remaining fugitives of the ICTY were arrested, the EC praised the extraditions of Mladić and Hadžić as ‘marking an important step towards reconciliation’.^[92] The conditionality’s focus on arrests was thus directly connected to the EU’s broader expectations of the court’s restorative potential. This link permeated the Serbian side of the diplomatic relations, with official documents declaring that ‘an awareness has been developed that fulfilment of the ICTY’s mandate will contribute to the reconciliation among peoples in the region’.^[93] With this discourse, the EU actively carried out a message that was debated within the wider academic community and that even went beyond claims of the court itself.