Abstract
What is the contribution of Eastern European scholarship to the study of human rights and transitional justice? This essay takes stock of the most significant empirical and theoretical contributions of the study of Eastern Europe, specifically the study of the difficult case of the former Yugoslavia, to the scholarship on transitional justice. I identify three main challenges the scholarship on the former Yugoslavia has presented to the larger field of transitional justice: the political challenge of multiple overlapping transitions, the inability of international institutions to effect domestic social change, and the dangers of politicization of past violence remembrance.
The multidisciplinary field of “transitional” or “post-conflict justice”—the analysis of how societies deal with legacies of past violence—has grown almost beyond recognition since its pioneer days in the early to mid-1990s. 1 From the very beginning, this area of study was mostly centered on post-violence experiences of “democracies in transition”—mostly in Latin America, South Africa, and then in Eastern Europe. 2 As countries made the transition from authoritarianism to some form of democracy, the early transitional justice scholarship predicted that domestic coalitions would gradually form around demands for truth about past violence and justice for perpetrators of abuse. 3 The assumptions that, one, addressing the legacies of the past is a normatively desirable enterprise and, two, that societies would naturally demand this project were, therefore, built into transitional justice scholarship and policy from the very beginning.
This optimistic expectation about the catalytic effect that moments of transition will have on human rights and justice for past violence has also grown out of the expansion of human rights norms more broadly in the 1990s. The normative shift at the international level toward finding legal solutions for human rights abuses 4 has then been translated and simplified into international policy that makes very specific transitional justice mechanisms, such as, for instance, cooperation with war crimes tribunals, a working proxy for state respect of human rights. For example, the European Union has directly tied Serbian and Croatian accession negotiations to full cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY). Importantly, the European Union has chosen this particular policy as a measurement of candidate states’ compliance with the larger Copenhagen Criteria of strong democratic institutions and protection of ethnic and human rights. 5 This simplification had significant consequences for international policy making, as compliance with international justice institutions increasingly became a measurement of broader domestic human rights policy, opening up a large space for domestic elites to offer narrow institutional cooperation with international justice institutions while continuing to deny responsibility for past human rights violations. 6
And while the increasing presence and visibility of transitional justice was followed by increasing attention in the scholarly literature, 7 not enough attention has been paid to questions of how exactly states go about complying with transitional justice requirements under international pressure, and to what domestic political effect. Evidence from former Yugoslavia was indispensable in filling this theoretical void.
The Challenge of Multiple Transitions
The Eastern European experience proved, unsurprisingly, to be much different from the other post-conflict societies that early transitional justice scholarship had examined. It also provided rich empirical material to evaluate and further nuance theories of transitional justice and diffusion of human rights norms. The main difference—and a distinctive analytical advantage of the Eastern European lens—was the presence of multilayered and overlapping transitions. In addition to Offe’s “triple transition” 8 —from weak institutions to stateness, from a centrally planned economy to some version of the free market, and from authoritarianism to some type of democracy—many states in the region also transitioned from peace to war to unstable peace (Balkans, Caucasus), as well as from multiethnic federal to ethnic nation-states (Yugoslavia, Czechoslovakia, the Soviet Union). The “national question,” therefore, adjudicated either through violent or relatively peaceful means, also constituted a profoundly different type of transition than the one other regions faced during the “third wave” of democratization, 9 and it presented transitional justice projects with a whole set of new challenges that the literature built on South Africa or Latin America was not ready to take on.
Some of the immediate questions East European transitions posed to the existing transitional justice scholarship were: How can a transitional justice mechanism be set up when the transition is not yet complete? What role does sequencing (which transitional justice mechanism comes first—trial, truth commission, reparations, lustration, memorialization) play in overlapping transitions? Are transitional justice projects desirable in unstable democracies? Are they desirable in illiberal democracies? Can transitional justice projects succeed in states with undeveloped civil societies?
This richness of the Eastern European experience therefore fundamentally challenged much transitional justice literature. 10 It inserted much more skepticism about post-conflict peace and reconciliation into scholarship that looked at the South African and Latin American transitions as mechanisms to be replicated across the world. The paradox of multiple simultaneous transitions opened up much more analytical space for challenging the principal transitional justice concepts of truth-seeking, reconciliation, or justice. 11 The deep reluctance across much of Eastern Europe to systematically address the legacies of both communist and post-communist violence has also challenged other major assumptions from human rights scholarship, which predicted sustained social demand for justice after conflicts end. 12
The Yugoslav cases complicate transitional justice theories even more. 13 As most of Eastern Europe started the 1990s with hope and enthusiasm about the possibilities of democracy, liberalism, and human rights after fifty years of communist authoritarianism, the former Yugoslavia entered the decade against the backdrop of impending war and overwhelming insecurity. As the country broke apart into small pieces, communism was replaced by something much worse—brutal civil war, shocking levels of violence, and ultimately—genocide. Against this political context, the end of communism in the former Yugoslavia was not something to celebrate. The transition from communism was a transition to nationalist politics and to war. This was not a transition to democracy but to destructive ethnic politics.
Finally, the latest round of transitions, the collapse of authoritarianism in Croatia in 1999 and in Serbia in 2000, the international institutional takeover of Bosnia in 1995, the independence of Montenegro in 2006, of Kosovo in 2008, and the internationally insecure status of Macedonia since 1991, did not usher in clearly liberal democratic governments interested in seriously delegitimizing the criminal regimes of the 1990s. Instead, the priority of post-authoritarian governments was electoral success tied to European Union accession. 14 What this meant in practice was that deeply unpopular EU demands—cooperation with the Hague Tribunal, economic reform, and judicial independence—were carried out superficially and reluctantly, without the necessary democratic transformation they required to succeed. 15
The Yugoslav transition was also a partition. This major transformation of the polity from a multi-ethnic federation to individual ethnic states contributed greatly to the low domestic demand for justice. Unlike major transitional justice projects in other post-conflict contexts (South Africa or Argentina come to mind), where pursuit of truth, justice, and reconciliation were thought necessary to preserve national unity and build a future together with former political enemies, in the Yugoslav successor states, this major incentive—how to continue living together—was absent. This was the case even in Bosnia, where the Dayton Peace Accords that ended the war in 1995 created two separate statelets with conflicting political incentives to work toward strengthening the unitary state. This has been especially the case with the Bosnian Serb entity, Republika Srpska, which has functioned since 1995 at times as Serbia’s proxy and at other times as a secessionist threat to the very architecture of the postwar Bosnian state. This is why it was so challenging for both international and domestic promoters of transitional justice to elevate the problem of facing the past as an issue of national priority. It was very difficult to make the local population care about atrocities committed against people who now lived in other countries or separate in-country entities and with whom they were unlikely to ever live together again. The empirical evidence from the former Yugoslavia, therefore, fundamentally questioned the strong premise about domestic demand for justice that much of transitional justice scholarship has historically taken for granted.
International Institutions and Domestic Social Change
As a consequence of this multiple and unsettled transition, transitional justice in the former Yugoslavia was carried out in a political context very different from the one existing human rights scholarship envisaged. Responding to international institutional pressures, Yugoslav successor states did indeed implement various mechanisms of transitional justice. All states were required to cooperate with the international war crimes tribunal at The Hague, all were also strongly urged to carry out war crimes trials in front of domestic courts, some states instituted a truth commission (Serbia in 2001, while Bosnia debated but decided against it), some carried out lustration projects (Macedonia), and all addressed past violence through some form of memorialization (usually, however, of one’s own victimization). Transitional justice in these states, however, was propelled by very narrow political motives: to eliminate domestic political opponents, to secure international financial aid, or to obtain admission to the European Union. As post-conflict justice became “hijacked” for such local political strategies, it produced a domestic backlash, deepened political instability, and even created pernicious and politicized versions of history. 16
The social demand for justice and truth about the violence and its perpetrators was consistently low and was concentrated very narrowly within the community of immediate victims. Larger society—in all Yugoslav successor states—showed very little interest in revisiting the crimes of the past. In fact, with every year that has passed, and with a number of different transitional justice mechanisms introduced (truth commission, international trials, domestic trials), the public interest has waned, not increased. 17
Further, again in contrast with the expectations of much human rights scholarship, the introduction and implementation of transitional justice institutions did not lead to an increase in the overall respect for human rights. 18 Across the post-Yugoslav space, even with the saturation of various transitional justice models, human rights abuses remain rampant. Exclusionary discourse and policies against ethnic minorities have now been replaced with exclusionary discourse and policies against other groups—the Roma, the LGBT community, the non-existent Jewish community, foreigners, women, NGOs, and various “others.” 19
Perhaps the most dramatic example of this fungible quality of human rights abuse is the extremely high level of homophobic prejudice and social tolerance of homophobic violence. 20 And while homophobia is often understood as a generational issue that will “go away” as the society ages and liberalizes, the opposite trend has been the case in the former Yugoslavia. 21 It is very difficult to see how these entrenched illiberal values will change any time soon in a political environment saturated with intolerance and exclusion. This problem is particularly acute in Serbia, as this country has received a favorable signal for pursuing its EU membership candidacy, which means decreased and not increased EU pressure on the human rights front. The EU has already shown a very mechanical and bureaucratized measurement of human rights compliance—arrest of war crimes suspects, signing of human rights treaties, promise of judicial system reform—and has not demonstrated any sustained interest in monitoring the quality and substance of human rights practice. 22 The irony that just months after joining the EU, Croatia held a referendum banning same-sex marriage without much noise from Brussels further reinforces this point. 23
The continuing human rights struggles in the region indicate a need to understand the nature of the international institutional effect on domestic social change in a much more comprehensive way. Human rights abuse and intolerance are fungible: if they are not dealt with directly through sustained and meaningful transitional justice framework, they will pop out in a new place, over a new issue, and there will be no political safety net to deal with them adequately.
The lessons from the former Yugoslavia indicate that the emphasis on fulfilling international institutional requirements—such as, for example, cooperating with international war crimes tribunals—when carried out under conditions of low domestic demand for justice can lead to perverse outcomes, where the more the state cooperates internationally, the worse its domestic human rights practice becomes. International institutional leverage may be much weaker and have a much shorter shelf life than human rights scholarship envisaged. Once international institutional conditionality ends, there may be very few mechanisms of international pressure on states to improve their human rights practice. For example, while Croatia was under sustained international pressure to cooperate with the ICTY, as well as improve its domestic war crimes justice, throughout its EU accession talks, as soon as it was admitted to the EU in July 2013 much of the domestic war crimes prosecution stalled and there was a visible spike in hate crimes and overt intolerance against the Croatian Serb minority, such as the destruction of Cyrillic street and place names across Croatia. 24 By tying the Croatian human rights record exclusively to the very narrow issue of international criminal tribunal cooperation, the EU has lost significant leverage as an actor for domestic social change in the sphere of human rights.
The very mixed record—at best—of international institutional pressure on former Yugoslav states serves as a good corrective to both the expansive literature on international conditionality 25 and to the scholarship on human rights. 26 International institutions, like all bureaucracies, are much better at issuing rewards or punishment for specific and easily identifiable policy benchmarks (e.g., how many individuals did a country arrest and transfer to an international court) than at effecting deep social change, such as the profound normative transformations necessary for consistently strong human rights practice. Expecting international institutions to be the catalyst of change in the domestic human rights sphere is often naïve and can lead to many perverse political outcomes that are difficult to roll back.
Politicization of Communist Violence Remembrance
Two contributions to this volume discuss novel ways of evaluating and measuring legacies of communism in Eastern Europe. While Pop-Eleches is interested in adjudicating the difference between a Jowett-ian and a Janos-ian approach to the significance of Leninism versus pre-communist development to post-communist legacies, 27 Kopstein and Bernhard explore the impact of revolutionary violence on post-communist transitions. 28 My interest in communist legacies, however, lies primarily in the way in which contemporary remembrance of communist violence in the former Yugoslavia has been used as a “screen memory” 29 to color and shape the memory of the more recent violence of the 1990s. This process of memory replacement has significant consequences for the larger study of transitional justice because it points to the danger inherent in politicization of past violence for contemporary political purposes.
The significance of the study of communist violence to wider transitional justice scholarship is that the multiplicity and overlapping quality of Yugoslav transitions meant that transitional justice efforts to deal with one criminal regime (the nationalist criminality of the 1990s) eclipsed efforts to deal with the legacies of an earlier criminal regime (communism 1945–1991). In comparison to the scholarship on communist violence across the rest of Eastern Europe, the scholarly interest in and professional study of communist violence in Yugoslavia has been quite sporadic. The lack of sustained serious transitional justice analysis of Yugoslav communist-era violence has allowed for a renewed cycle of contemporary historical revisionism that glorifies, in discourse as well as policy, all anticommunist movements—even anticommunist fascist collaborators during World War II. 30
The memory of communism in the former Yugoslavia, however, was already being politically instrumentalized in the late 1980s, as the Yugoslav federation began to fall apart along its seams. Communist crimes were used for nationalist mobilization in the 1990s and beyond, and were purposefully triggered for clear nationalist purposes: to solidify the narrative of one’s own victimization, to justify civil war as a solution to communist oppression, and to build the post-communist state on a fundamental rejection of communism by promoting expressions of identity suppressed under communism, such as those of nationalism and religion. 31 Communist remembrance, in other words, became fundamentally ethnicized.
This political use of communist crimes continued after the wars of the 1990s. The postwar legitimacy of the newly independent post-Yugoslav states was based on not only a complete rejection of communism but also a renewed connection with the pre-communist, mythically “nationally pure” character of states. This is why across the post-Yugoslav space, but especially in Serbia and Croatia, the new democratic elites insisted on rehabilitating many anticommunist public figures, including many pro-fascist allies. The goal behind this national project was to sidestep the communist past as a legitimate period of the countries’ histories and institute a clear historical connection with the pre-communist Yugoslav states, as inspirational models for the contemporary manifestation of ethnic statehood.
A recent high-profile official transitional justice project in Serbia is a good illustration of this dynamic. In April 2014, the Serbian Historical Museum in Belgrade put up a highly publicized multimedia exhibition called “In the Name of the People—Political Repression in Serbia 1944-1953,” which promised to display new historical documents and evidence of communist crimes, ranging from assassinations, kidnappings, detentions in camps, to collectivization, political trials, and repression. 32 What the exhibition actually showed, however, were random and completely decontextualized photographs of “victims of communism,” which included innocent people but also many proven fascist collaborators, members of the quisling government, and right-wing militias. The exhibition made no effort to clarify the political context in which these crimes were committed other than to group them all under the heading of “communist terror.” 33
Clearly modeled after the Hungarian “House of Terror” in Budapest, 34 the purpose of such a transitional justice project is not only to criminalize and delegitimize the entire communist past but also to present it as worse than the fascist past that preceded it. This transitional justice project, therefore, does not acknowledge that the principal ideological motivation of Yugoslav communism was anti-fascist struggle. Instead, Yugoslav communism, “in the name of the people,” is presented as an example of Stalinist totalitarianism, which oppressed and was intent on destroying the entire Serbian liberal bourgeoisie. This interpretation, then, is significant for contemporary Serbian state building, as it justifies continuing Serbian nationalism as a bridge to the mythical “golden era” of Serbian liberal democracy, brutally crushed by the communist onslaught.
The significance of such a transitional justice approach—sanctioned by the state—is to first construct, and then institutionalize, a particular hegemonic public memory of past violence that serves as a “screen memory,” replacing the public memory of the more recent past. Such transitional justice projects serve very contemporary political purposes and are quite removed from the normative goals of transitional justice—pursuit of truth, justice, and reconciliation. The former Yugoslavia is not the only region where political elites use transitional justice for contemporary political needs, but it provides rich evidence of the subtle processes of memory replacement and construction of a dominant version of the past that should give pause to transitional justice scholars advocating for all transitional justice, all the time. Not all transitional justice projects are designed to serve the same normative goals, and a careful analysis of the political architecture behind them would greatly improve our understanding of transitional justice theory and practice. Sometimes, no transitional justice is the best transitional justice.
Conclusion
As Milada Anna Vachudova has noted, East European scholarship has a Yugoslavia problem. 35 It cannot account for its unique trajectory because it has not adequately dealt with the varieties of communism and their divergent outcomes. The political and social gains that the rest of Eastern Europe has enjoyed since 1989 have not been shared in the Yugoslav space. While Poland or the Czech Republic were busy liberalizing their economies and worrying about the most efficient political party systems, Bosnia was engulfed in genocide. It is therefore simply impossible to agree with Grzegorz Ekiert’s sweeping judgment that “the past twenty years were the best years Eastern Europe ever had.” 36 While this might be plausible to claim in some countries, Bosnians and Kosovars would beg to disagree.
Theoretically, this uniqueness of the Yugoslav transition—or whatever we choose to call the 1990s with more analytical accuracy—and the place it had within the larger Eastern European post-communist transition produced very different transitional justice outcomes than a broader human rights literature predicted. Using extensive data from the Yugoslav cases and comparing them with other Eastern European transitional justice processes, recent work has begun to challenge the scholarship on international norm diffusion, introducing new theoretical arguments about domestic use and appropriation of international rules generally, and human rights norms specifically. 37
A few specific theoretical findings from Yugoslav cases are important for future theory building in human rights and transitional justice. First, domestic political elites use international institutions, such as institutions of post-conflict justice, as resources for political mobilization in the context of domestic contention. Second, when states adopt transitional justice in the absence of broad domestic demand for normative change, this become a strategic, sometimes even subversive, choice for those states that do not wish to invest political capital in human rights policy change. Finally, which political elites take on a transitional justice project matters a great deal in both the implementation of a transitional justice mechanism as well as in its normative interpretation. Transitional justice projects are important, difficult, and traumatic enterprises. They ask a lot of citizens and of political and intellectual leaders. When they are carried out for instrumental reasons by cynical political actors, they are not only ineffective but can easily fuel a new cycle of conflict and violence.
Empirical research on East European transitions and the multiple human rights challenges they presented has introduced many new important variables to theories of transitional justice, political change, and democratic consolidation. This research tempered much of the optimism that stemmed from an outpouring of domestic demand for change in South Africa and a number of countries in Latin America. East European transitions were not linear processes. They were overlapping, nested transitions, transformations that in many ways went backward, and not only forward. Adding this complexity of the lived experience of democratic and post-conflict transitions makes human rights scholarship richer.