On 23 November 2023, the Council of Europe published a report entitled “Confronting the Past for a Better Future: Achieving Justice, Peace and Social Cohesion in the Region of the Former Yugoslavia” on 23 November 2023.[1] With this report, the importance of peace in Europe and the Balkans is once again recognised.
The break-up of Yugoslavia led to devastating wars in the 1990s and early 2000s, marked by atrocities such as genocide, torture and systematic rape. Efforts have been made to address such crimes through transitional justice mechanisms, including the International Criminal Tribunal for the former Yugoslavia (ICTY) and local trials. However, almost three decades later, many challenges remain, with the recurrence of separatist acts hindering reconciliation and peace. Transitional justice efforts have been slowed or stalled by a lack of political will, truth-seeking and institutional reform.
The ICTY was established by the United Nations (UN) Security Council in 1993 to address human rights violations during the wars of the 1990s and indicted 161 people, focusing on senior leaders, before closing in 2017. Despite challenges, it has contributed to international law by ensuring justice for victims. Local investigations in the region have shown progress, with specialised units and strategies established to handle war crimes cases, partly as a result of the European Union accession process.
The region is still struggling with unresolved transitional justice challenges from its violent past, which hinder progress towards inclusive democracy and the rule of law. Almost three decades on, prosecution of war crimes remains blocked, cooperation on judicial matters remains limited and victim-centred approaches lack political will.
Survivors face social stigmatisation and lack of support, deepening social divisions and preventing genuine reconciliation. Efforts to prevent impunity for atrocities through domestic criminal proceedings have been slow due to capacity issues and lack of political will. More than 3,000 persons suspected of war crimes in Serbia, Bosnia and Herzegovina and Croatia are still awaiting investigation. There is an absolute backlog of cases and the war-related justice process has slowed down over the last decade.
Serbia’s focus on low-level perpetrators rather than high-level individuals has raised concerns. Delays in proceedings are common, as seen in the repeated postponement of the first trial in Serbia for war crimes committed in the country. In Montenegro, only two indictments were issued between 2015 and 2023 and investigations are often based on information from third states. In Kosovo, the competence to prosecute war crimes was transferred to the domestic judiciary in 2019. However, shortcomings in investigations from the past remain to this day. Croatia has prosecuted a number of individuals, but there are concerns about delays and disproportionality in sentences. Local justice mechanisms in the region have been criticised for lack of capacity and efficiency. There are problems of intimidation and protection of defendants, as well as visible ethnic bias in judicial proceedings, particularly targeting certain ethnic groups. Questions have been raised about the reluctance to hold certain individuals, such as former members of the Kosovo Liberation Army (KLA) in Kosovo, accountable for war crimes, which creates various challenges to justice and accountability for victims.
The failure of States in the region to implement comprehensive reparations programmes has led to frustration and inequality among victims of civil war. The ICTY has called for the establishment of a voluntary trust fund for such victims, but unfortunately no such fund has been established. The lack of regional co-operation on reparations exacerbates the problem, particularly for victims residing in countries other than the countries where the crimes were committed. In the absence of inclusive programmes, victims have been forced to rely on existing social protection mechanisms and inadequate individual court proceedings. The current approach to reparations exacerbates inequality and resentment rather than promoting social cohesion and addressing the legacy of past violence.
The implementation of transitional justice processes should prioritise the prevention of recurrence by promoting the idea of “never again” rather than holding those responsible for the horrors of the past to account. Education, archives and memory play an important role in this context. This is because they shape the way future generations understand past events and ensure empathy and justice. Building a holistic approach to transitional justice involves combating historical revisionism and promoting inclusivity by addressing its structural root causes and committing to educational reform, history teaching, archival preservation and commemoration. It is important to invest in young people as future leaders and to involve them in policy-making. Because dealing with the past is a societal role. Urgent education reforms are necessary to end discrimination. Inclusive education is needed to integrate children from different ethnic backgrounds, recognising diversity and creating a sense of shared belonging.
Remembering and unequivocally condemning past injustices and speaking the truth about the past are key elements for the promotion of a democratic society and a commitment to human rights. This step is essential for a democratic society and human rights. It is important that memorialisation activities involve the participation of victims and are free of hate speech and discrimination. History education is also a valuable element for transitional justice. International standards can inform history teaching practices, particularly during and after conflict and its aftermath. Preserving and making archives accessible is vital for truth-seeking and accountability. Finally, promoting and supporting the work of human rights defenders and victims contributes to accountability and justice. Civil society organisations can set their own ideals without externally imposed agendas through political pressures. In addition, governments should assume primary responsibility for preventing violence and human rights violations, with civil society playing a supportive role.
The issue of dealing with the past in the former Yugoslavia is complex and regional in character. However, the willingness of current governments to work on transitional justice processes regionally is waning. Challenges such as radicalisation, denial of war crimes and misinformation complicate efforts. It is important to follow the recommendations of international organisations and to push states to confront past injustices. Action plans on transitional justice should be developed with a focus on victim participation, reparations, civil society empowerment and education. Regional coordination is vital for the prosecution of war crimes and the search for missing persons. It is important for civil society to support transitional justice at the local level.
In sum, dealing with the past in regions such as the former Yugoslavia requires prioritising the rights of victims and survivors in transitional justice processes. Strengthening legal institutions is crucial to reduce the possibility of future violence and to prevent the denial of past atrocities. It is essential to support civil society organisations, encourage intergenerational cooperation and support human rights defenders.
States should take the lead in addressing past injustices, with increased international engagement. Despite challenges such as radicalisation and denial of war crimes, international recommendations should be heeded and states should be pressured to confront past wrongs. Action plans on transitional justice should emphasise victim participation, reparations, civil society empowerment and education. Regional coordination is vital to resolve war crimes and search for missing persons. Localised support for transitional justice by civil society would also be a useful approach.
[1] “Dealing with the Past for a Better Future – Resolute efforts on dealing with the violent past are required in the region of the former Yugoslavia”, Council of Europe, https://t.ly/lbPVB, (Date of Access: 13.02.2024).
