STRATEGIC GUIDELINES For TRANSITIONAL JUSTICE ACTIVITIES IN THE FORMER YUGOSLAVIA Judicial Reform Rule of Law Cluster
United Nations Development Program UNDP Belgrade, February 2007
STRATEGIC GUIDELINES For TRANSITIONAL JUSTICE ACTIVITIES IN THE FORMER YUGOSLAVIA Submitted to UNDP Serbia and Montenegro By Louis Aucoin And Eileen F. Babbitt The Fletcher School of Law and Diplomacy Tufts University July 2006 S T R A T E G I C G U I D E L I N E S 5
CONTENT Introduction 7 Truth seeking 8 Prosecutions 19 Reparations 25 Institutional reform 29 Miscellaneous 31
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INTRODUCTION 1 http://www.oecd. org/department/ 0,2688,en_2649_ 34567_1_1_1_1_ 1,00.html The following represents our proposed strategic guidelines for the support of Transitional Justice activities in the region of the former Yugoslavia. We have included potential activities that we think would be useful and effective in each of the four pillars on which we reported in our Assessment Survey, i.e. Domestic Prosecutions, Truth Seeking, Reparations, and Institutional Reform/Vetting. We have recommended activities that we think flow logically from the information we have gathered in the research for the Assessment Survey and from reports and discussions at the recent regional conference on Transitional Justice convened by UNDP and held in Belgrade, Serbia on 13-15 June 2006. In the sections below we have first included a set of principles which are general considerations to guide activity in each of the four pillars. For the most part they reflect considerations on which there appeared to be consensus expressed at the Belgrade conference. In a final miscellaneous section, we have identified two overarching themes donor coordination and access to justice and identified activities appropriate to these areas. In drafting these guidelines, we have consulted the recommendations of the Development Assistance Committee (DAC) Network on Conflict, Peace, and Development Cooperation of the OECD in order to ensure that they reflect a development perspective. These recommendations appear in a series of recent OECD Issues Briefs that were published in December of 2005, designed to advise development agencies on preventing conflict and building peace, in order to create a favorable and secure environment for development. 1 For our purposes, we focused on those recommendations related to: security sector reform (including justice and rule of law); governance and participation (including support for institutional change, dialogue, and civil society); and reconciliation. Our recommendations have been inspired, in part, by this publication, in particular in the recommendation for dialogue processes, as a way of educating and involving S T R A T E G I C G U I D E L I N E S 9
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TRUTH SEEKING I PRINCIPLES A B C D E F G Strengthen existing mechanisms before undertaking new initiatives. This was stated strongly by conference participants. International involvement is important for legitimacy. This was alsmetioned many times at the conference. Inclusion and transparency are also key factors in establishing legitimacy. The use of the words truth and reconciliation can be provocative, so other terms may be more useful in some circumstances e.g. The International Institute for Democracy and Electoral Assistance (IDEA) speaks of justice, truth and responsibility instead of reconciliation. Truth seeking should focus not only on war crimes but should also include history of the region in the twentieth century, since many of the events of the era have been suppressed or misrepresented and can therefore be manipulated for political purposes. Tuth seeking efforts should not strive for establishing one truth, but instead should educate the public on the multiple truths that have validity in the region. We recommend not supporting lobbying for laws providing punishment for genocide denial at this time (being discussed in Bosnia), unless there is agreement on a set of facts with respect to which denial is unacceptable. Truth seeking needs to come first. S T R A T E G I C G U I D E L I N E S 11
II ACTIVITIES (in 4 areas) A EDUCATION (4 activities) 1 Set up a UNDP website that provides a mapping of all organizations engaged in Transitional Justice activities throughout the region. Begin with a posting of Annex C of the Assessment Survey, and provide links to other such maps, e.g. the recent HLC assessment of transitional justice. This activity will also require resources for the maintenance and update of the website. 2 Education of parliaments in the region on all facets of Transitional Justice Potential Partners: IDEA (on the reconciliation aspects) The International Center for Transitional Justice (ICTJ) The Institute for Human Security at the Fletcher School (authors of the Assessment Survey and of these Guidelines) The Inter-Parliamentary Union in Brussels 3 Public education a What it should include: i ii iii Explain the currently-existing modalities for truth seeking, other than a truth commission, and how each of these functions. Comparative information on truth commissions, as there are very different conceptions in the region as to how such a body is constructed and what its mandate is. (e.g. What is a truth commission and what are the different ways in which they have been organized in the past? Also pay attention to the issue of amnesty because of the concern in the region regarding this issue.) Regional 20th century history, particularly the post-1945 period, building upon the CDRSEE format for high schools and extending to all ages 12 S T R A T E G I C G U I D E L I N E S
2 http://www.cla. purdue.edu/hist o r y / f a c s t a f f / Ingrao/si/schola r s p rospectus. htm b iv How it should be done: i Potential resources: Dissemination of personal stories from the region that have already been collected by local NGOs. Put together an RFP which would elicit creative approaches for implementation by NGOs throughout the region, encouraging but not requiring partnerships between local, regional and international organizations. CDRSEE (Thesseloniki) Scholars Initiative (based at Purdue University in the U.S., a research project involving local and international scholars to document the key events in the period before and during the wars of the 1990s) 2 Croatian Center for Political Research (Dialogues of historians) ICTJ (for info on comparative truth commissions) Belgrade Outreach Office, ICTY (e.g., proposed exhibit on the Milosevic trial) 4 Convene a Regional Dialogue on using complementary teaching materials in schools (i.e., Ministries of Education control school curricula, which can obscure the truth; how to offer an alternative?) a Identify the NGOs potentially interested in this, going beyond the network identified in the Assessment Survey (It was beyond the scope of the Assessment Survey to identify grass roots NGOs with respect to this issue.) b Dialogue to include the following: i ii Potential Partners: Develop a regional strategy for approaching Ministries of Education that recognizes national differences Pursue national level implementation of the strategy CDRSEE US Institute of Peace Education Program S T R A T E G I C G U I D E L I N E S 13
B MEDIA (2 activities) 1 Training of all journalists in the following: a Covering war crimes proceedings b Transitional Justice generally Potential partners: Institute for War and Peace Reporting Balkan Investigative Reporting Network (BIRN) 2 Funding to support investigative journalism, focusing on individual reporters and specific programs and projects that contribute to truth seeking. Possible partners to be found at: Feral Tribune in Croatia B92 in Serbia Nezavisne Novine in BiH SaGA Films in BiH C DOCUMENTATION (2 activities) 1 Convene a regional dialogue on documentation. a Include those currently engaged in documentation (e.g. missing persons organizations, NGO consortium, Helsinki Committee, etc.) b Dialogue to include: i ii iii iv development of an overall plan for the establishment of uniform procedures for cataloguing materials (the ICTY cataloguing system might be maintained) establishing protocols for fact-checking securing funding and establishing procedures for making materials available electronically in national archives (as a prelude to the development of a regional archive.) planning for how to provide public access to documents, and which documents to be made publicly available 14 S T R A T E G I C G U I D E L I N E S
3 h t t p : / / w w w. l i b ra r y. co r n e l l. edu/about/digital.html v vi vii Potential partners: decide upon the location of the ICTY archives. This location would presumably house the complete regional archives in the future. begin lobbying for the transfer of the ICTY documents to the region. decide how the national and regional archives will be managed (i.e., what institutions, with what authority, etc) Universities that have entered such partnerships in the past, include Yale University, who was a key sponsor of the Cambodia Documentation Centre (a national archive of the atrocities committed by the Khmer Rouge) Cornell University has pioneered a large number of publicly accessible digital archives, and may be approached to consult on the setting up of public electronic databases 3 2 Increase the coordination of agencies working with Missing Persons and cooperation with local authorities and actors in order to resolve open cases. As we said in our Assessment Report (page 176): Strategies will need to be developed to encourage the cooperation of governments throughout the region in dealing with this issue. These strategies should be designed to expand their involvement beyond that which is currently associated with the work of the ICMP. These strategies will also need to encourage governments to address not only the truth seeking and prosecution interest but also the humanitarian interest in individual identification of remains. The latter interest is also essential for reconciliation in the region. S T R A T E G I C G U I D E L I N E S 15
D TRUTH COMMISSION (1 activity) Additional Principles which are specific to this subcategory: a If and when a truth commission is established it should be on a regional level (We recommended this in our Assessment Survey, although we recognize that there is currently a discussion taking place in Bosnia about setting up a national commission, with varying points of view on its appropriateness) b c d Consensus that the time is perhaps not ripe now for setting up such a commission, although once again in Bosnia there are differences of opinion on this question. In the event that a truth commission is developed, special attention will need to be devoted to: i ii the question of composition, in order to insure legitimacy, independence, and impartiality of the body (possibly religious figures, members of the judiciary, etc) the question of whether amnesty should be provided. The amnesty issue is important because there is a fear in the region that amnesty comes automatically with the establishment of a truth commission and therefore perpetrators may go free. There are many different models of truth commissions existing from around the world; no one model is best, and each country/region must design its own body to fit its specific needs and goals. 1 Research is the most appropriate action to take atthis time, since there is consensus that it is not a good idea to set up a truth commission at this time. A research project should retain international and local experts to explore the following questions: a Will a truth commission be needed in the region if all of the other truth seeking activities described above are pursued? b c What would be the value added by a Truth Commission? Is it necessary or desirable to explore the causes of the war (Truth commissions have often been used for this purpose, e.g. Sierra Leone). We recognize that this is a volatile question, but it is one that should be discussed because there are very strong sentiments on all sides of the issue and it will surface in any planning of a truth commission. 16 S T R A T E G I C G U I D E L I N E S
d e f g h What is the appropriate timing for the establishment of a Truth Commission and how should that determination be made? What connection, if any, should there be between truth seeking and reparations in the region? Is the development of Commissions of Inquiry a desirable alternative to consider? (e.g. The Srebrenica and Sarajevo Commissions) Do different ethnic interrelationships in the region require different truth seeking processes, because of differences in the kinds of grievances that exist in each? (e.g. Serb/Croat, Serb/Albanian, Serb/Bosniac) Should support be lent to the development of the Victims Commission currently under consideration? This project should be evaluated for its potential to involve governments in truth seeking and to create public understanding and demand for truth seeking. i How should the connection to governmental authorities be assured if a regional commission is convened? Potential international partners for such research: Institute for Human Security of the Fletcher School ICTJ S T R A T E G I C G U I D E L I N E S 17
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PROSECUTIONS I PRINCIPLES. A B Defense counsel should not be neglected or overlooked. EU accession can be used as an incentive for reform. II A ACTIVITIES (in 4 areas) HARMONIZATION OF LAWS/STANDARDS (1 activity) 1 Organize a regional policy dialogue on harmonizing standards and devising implementation strategies [The efforts undertaken to date by Sinisa Vazic President of the Belgrade District Court and of the Belgrade War Crimes Chamber and Meddzida Kreso, President of the State Court of BiH should be taken into consideration and included in this act] The dialogue should address the following: a Sentencing guidelines. There was much discussion at the conference of the disparate sentencing practices between the courts on the federal and entity levels in BiH and between courts throughout the region. It was reported that the disparity was contributing to public perceptions of injustice and impunity in the region. There was also concern that the disparity could create an opportunity for a kind of forum shopping by defendants. Although the disparity results at least in part from varying legal standards throughout the region, a more uniform approach could be agreed upon through the establishment of sentencing guidelines to ensure that judges take the issue of uniformity into consideration in issuing sentences. This could be the most effective strategy since laws cannot S T R A T E G I C G U I D E L I N E S 19
b c d be amended to increase penalties retroactively. Uniform sentencing practices should be a priority to be addressed in this policy dialogue. Laws on witness protection Procedural guarantees (e.g. due process relating to the right to counsel, the right to remain silent, etc.) Possible multilateral treaty on universal jurisdiction, including principle of prosecute or extradite. Participants could include presidents of national supreme courts, members of parliament, NGOs monitoring war crimes procedures and selected local and international legal experts. B TRAINING (3 activities) 1 Regional training within professional groups at all judicial levels: judges, prosecutors, defense attorneys. a Ethics/Codes of Conduct. These codes will need specifically to deal with the problem of the maintenance of courtroom discipline, since courtroom discipline has frequently been cited as a problem in war crimes proceedings. b Legal Issues, e.g. command responsibility, universal jurisdiction 2 National training across professional groups, including court administrators, to include: a The development of hypothetical fact scenarios 20 S T R A T E G I C G U I D E L I N E S b Simulated exercises including mock trials 3 Mentoring of all professional groups a Hire mentors who are well respected international or regional experts b Particular attention will need to be paid to mentoring on issues of impartiality and judicial independence Potential Partners are: Judicial training centers in Belgrade and Kosovo, the Judicial Academy in Croatia, and the two Judicial Training Centers in BiH (one on the federal level and the other in RS.) National Center for State Courts (US) court administration
Marcus Zimmer international expert on court admin (US) Christie Warren international expert on mentoring (US) IDLO International Development Law Organization (Rome) Institute for Human Security Louis Aucoin (US) Global rights (US) OSCE Associations of Defense Counsel throughout the region. C PUBLIC OUTREACH/EDUCATION (4 activities) 1 Fund the development of outreach efforts in every country, along the lines of the ICTY effort (e.g., meeting with victims associations; media broadcasts; seminars; etc. over and above the holding of public trials and routine press releases). UNDP offices throughout the region should be encouraged to follow the example of the outreach efforts which have been recently undertaken in Serbia under the direction of President Sinisa Vazic of the Belgrade War Crimes Chamber. The outreach programs should include outreach to parallel professional groups in each of the countries, i.e. judges, prosecutors, defense counsel, police. 2 Research: RFP to explore whether televised war crimes trials are feasible and the most effective method for public outreach/education. Comparison with newsletters, reports as alternatives. Ways to minimize unintended consequences of such broadcasts, such as parties playing to the public audience during the trial. 3 Education campaign for victims groups on procedures and standards relating to domestic war crimes proceedings; also to update them on progress of domestic trials. 4 Broader public education on the rights of the accused as well as the rights of victims. This issue should be highlighted as part of a broader effort to educate the public on the practical meaning of Rule of Law generally. S T R A T E G I C G U I D E L I N E S 21
D COOPERATION (1 activity) 1 Fund a coordinator on war crimes prosecutions from each country, who would: a attend monthly meetings with other national coordinators to review progress on relevant war crimes proceedings and on apprehension of perpetrators. b. develop procedures for tracking national efforts and information sharing within their own country, including use of uniform standards to be developed by regional policy dialogue (see above) c inform domestic prosecutors of availability of potential evidence in regional archives 22 S T R A T E G I C G U I D E L I N E S
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REPARATIONS I PRINCIPLES A B C D Lump sum payments are considered by victims as undignified (quote from conference) Acknowledgment of responsibility is perhaps more important than cash payments. Individual apologies made by political leaders are not sufficient to change public perceptions. Statements by individual executive authorities are perceived as personal pronouncements, not necessarily reflecting official policy. Consequently, at the conference many expressed the view that apologies need to be made in such a manner and by the appropriate institution (parliaments, e.g.) so as to convince the general public of their sincerity. National reparations programs must not overlook disenfranchised populations and communities. For example, reparations for Serb refugees in Montenegro should be addressed by both countries so that victims in this group will not be overlooked. II ACTIVITIES (3 activities) 1 At the national level, provide funding and staff assistance to agencies focusing on ending discrimination in the way property rights are administered. S T R A T E G I C G U I D E L I N E S 25
2 At the national level, fund the building/renovating of housing for those whose homes were destroyed or confiscated. 3 Fund national policy dialogues on reparations, to include discussion of: a development of national legislation re. compensation to families of missing persons (e.g., In Nov. of 2004, BiH adopted a law which allows families of missing persons to be compensated as victims just as they would be were their missing family members deceased. This kind of reparations reform has been included in the laws relating to reparations in other countries which have implemented programs of transitional justice, such as Argentina) b c d e Gender-specific concerns re. rape victims, widows, use of past earnings as a standard for determination of compensation. Strategy for educating Parliament on the need for official acknowledgment of responsibility for human rights abuses, and possibly for apologies. Potential Partner: International IDEA. Possible policy guidance on commemoration and memorials, to discourage overtly nationalist memorials that insult other groups, while e n c o u r- aging creation of ethnically and socially inclusive national public policy on all forms of commemorations of the 1990s conflicts in the region. Long-term strategy on developing national legislation for reparations that would flow from truth-seeking activities, including a precise identification of beneficiary groups (beyond property rights and missing persons families). 4. The RSO initiative should inventory all of the public apologies that have been made so far in the region as part of its research activities. 26 S T R A T E G I C G U I D E L I N E S
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INSTITUTIONAL REFORM I PRINCIPLES A B The Assessment Survey did not analyze broader questions of institutional reform. This would have involved a much more extensive review of the rule of law in the region, which was beyond the scope of this project. Therefore, this section will primarily focus on vetting and lustration as an entry point for institutional reform. The primary value of establishing a policy on vetting and lustration is to prevent abuses of these practices, including potential use of political blackmail. II ACTIVITIES (2 activities) 1 Support the CDRSEE process re. a regional dialogue on vetting and lustration; encourage discussion of principles for these processes advocated by Prof. Herman Schwartz (see his article) 2 In order to prevent abuses in current vetting processes taking place in the region, fund a project that will educate those involved in such processes on best practices. (The current local vetting processes we have identified to date are: the names developed by the Srebrenica Commission; the vetting of judges about to begin in Kosovo; and the de facto vetting of special police forces in Serbia) S T R A T E G I C G U I D E L I N E S 29
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MISCELLANEOUS I Donor Coordination We realize that not all of the activities which have been recommended above can be funded by a single donor. At the same time, these activities do represent what we consider to be a coherent and holistic plan for the support of Transitional Justice in the region. For that reason, donor coordination will be key. We therefore recommend that UNDP/Belgrade take the lead in organizing that coordination in the interest of implementing this coherent plan. We also would like to emphasize that EU accession will need to be the lynchpin of donor activity in this area. UNDP should specifically elicit the support of the EU in the execution of this plan and should encourage the EU, to the extent feasible, to include the various parts of the plan in its negotiations with each one of the countries/territories in negotiations on EU accession. We believe that this is an appropriate strategy since there is consensus on the fact that EU accession appears to be the most significant incentive for reform in this area. Finally, support for documentation activities will need to be addressed as a priority for donors. This is so not only because of the importance of these activities to the overall success of a holistic transitional justice program, but also because they will require significant resources. This latter factor will need to be taken into consideration in particular in connection with the issue of the location and handling of the ICTY s archives after the Tribunal closes, since that activity in particular will require intensive resources. S T R A T E G I C G U I D E L I N E S 31
II Access to Justice We note that several of the activities which we have recommended above require negotiation with parliaments in the region for the enactment of specific legislation and/or the negotiation of bilateral or multilateral agreements or treaties with or among national governments in the region. We therefore recommend that, in addition to funding NGOs who have the capacity to engage in these activities as we have suggested above, funding for legal services should be provided to Victims Associations and to Associations for Families of Missing Persons in order to enable them to have a voice in these activities as well. The efforts of the Ministry of Justice in Serbia to provide legal aid to these groups could serve as a model for service delivery in other countries of the region. This activity will have the added benefit of empowering disenfranchised populations who may not have access to legal services. 32 S T R A T E G I C G U I D E L I N E S
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