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 Justice Compliance

Jelena Suboti c

Abstract1
This article explores a fundamental paradox of international justice compliance. Under conditions of strong international pressures and low domestic demand for justice, domestic 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 political 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 actors 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).

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Introduction
Over the past 20 years, a global norm of international justice has emerged prescribing the appropriate way for states to deal with crimes of the past.2 This international norm presents a set of expectations for transitional governments to fulll 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 genocide, 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,
1

Assistant Professor, Department of Political Science, Georgia State University, USA. Email: jsubotic@gsu.edu I am grateful to the United States Institute of Peace and the American Council of Learned Societies for nancial support to carry out this research. I thank Michael Barnett, David Leheny, Leigh Payne, Jon Pevehouse, participants in the panel on transitional justice at the International Studies Association annual conference in San Francisco, CA, 2630 March 2008, and the anonymous reviewers and editorial team at IJTJ for comments and suggestions, as well as Shannon Jones for research assistance. Some of the material in this article appears in a different form in my book, Jelena Suboti , Hijacked Justice: Dealing with the Past in the Balkans (Ithaca, NY: Cornell University c Press, 2009). Ruti Teitel, The Law and Politics of Contemporary Transitional Justice, Cornell International Law Journal 38(3) (2005): 837862.

C The Author (2009). Published by Oxford University Press. All rights reserved. For Permissions, please email journals.permissions@oxfordjournals.org.

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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 codied with the establishment of ad hoc tribunals 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, according 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 international organizations, which pressure countries into holding human rights abusers 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 consideration has been given to the question of how exactly states go about complying 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 to change their policies.9 Instead, this article examines how compliance with international justice often faces signicant 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

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4 5 6 7 8

This is Hannah Arendts famous statement: For these crimes, no punishment is severe enough. It may well be essential to hang G ring, but it is totally inadequate. That is, this guilt, in contrast to o all criminal guilt, oversteps and shatters any and all legal systems. That is the reason why the Nazis in Nuremberg are so smug. Quoted in Lotte K hler and Hans Saner, eds., Hannah Arendt/Karl o Jaspers Correspondence, 19261969 (New York: Harcourt Brace Jovanovich, 1992), 54. Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford: Oxford University Press, 2001). On the history of international criminal tribunals, see Gary Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, NJ: Princeton University Press, 2000). See Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia: University of Pennsylvania Press, 2005). See for example, Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003). 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 for State Cooperation (Cambridge: Cambridge University Press, 2008). Margaret E. Keck and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics (Ithaca, NY: Cornell University Press, 1998).

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fact continuing human rights violations at home.10 The ndings 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 specic domestic political conditions that inuence how states will go about complying with international demands. Finally, I illustrate the theoretical model with empirical evidence from international justice efforts in Serbia and Croatia.

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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 domestic constituencies 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 justice. Under such conditions, compliance with international justice creates domestic political backlash as it is unpopular with segments of society that supported past policies, 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 possibilities 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 unresponsive, international actors will use conditionality (tying compliance with international justice to rewards such as foreign aid and investment or membership of
10 11

12 13

Sonia Cardenas, Conict and Compliance: State Responses to International Human Rights Pressure (Philadelphia: University of Pennsylvania Press, 2007). I understand the concept of justice to be multidimensional and not reduced to a juridical denition. 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. Thomas Risse-Kappen, Steve C. Ropp and Kathryn Sikkink, The Power of Human Rights: International Norms and Domestic Change (New York: Cambridge University Press, 1999). Jack L. Snyder and Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies of International Justice, International Security 28(3) (2003): 544.

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international organizations) to effectively coerce the state into complying with international 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 benets. It also produces perverse domestic political 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 benets 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 conict. 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. They also want to be perceived as legitimate international players.14 In states with a strong desire for international membership and recognition, international actors will use symbolic pressure 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 they signify, because of their symbolic and normative properties.15 International justice compliance, however, is still driven by external incentives appeals to legitimacy 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.

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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 compliance. Under conditions of low domestic demand and strong international pressures, compliance with international justice is shaped by the balance of power between two domestic political coalitions: international justice opponents and instrumental supporters. International justice opponents are domestic elites who are
14 15

Martha Finnemore, National Interests in International Society (Ithaca, NY: Cornell University Press, 1996). Paul DiMaggio and Walter W. Powell, The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields, American Sociological Review 48(2) (1983): 147 160.

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ideologically, politically or pragmatically opposed to international justice. They are often afliated 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 conicting tensions, these actors will pursue cosmetic changes to their domestic practices and make tactical concessions in order to obtain international benets 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 opponents 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 produce specic 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 benet themselves politically at home by, for example, using acquired international benets as proof of policy success during an election campaign. Instrumentalists are more attuned to symbolic pressures. They are dening themselves domestically as pro-internationalist, reform forces that make lasting coalitions with international partners on whom they depend for continuing support. They are motivated to comply not just to obtain material benets, but also to gain approval of the international community as forces that can be counted on to promote international policies at home. International pressures and domestic political actors therefore inuence 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 different 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.

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Serbia
The period 19872000 more than a decade of Slobodan Miloevi s rule of s c Serbia was marked by brutal ethnic conicts 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 paramilitary groups were directly involved in the ghting in both Croatia and Bosnia. Throughout the wars of the 1990s, Serbian forces committed unimaginable atrocities 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 ghting 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 ee.17 The Kosovo conict ended with the NATO aerial bombardment campaign in 1999. In 2000, Miloevi was nally ousted from power by a surge of s c popular unrest following his refusal to accept the results of the presidential election. Conservative Vojislav Kotunica was elected president and moderate Zoran s -c indi became prime minister.

International and Domestic Conditions

In the aftermath of Miloevi s ousting, the international pressure on Serbia to cos c 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 arresting 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, nancial 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, Miloevi s policies s c were supported by a signicant majority of the Serbian electorate, especially in the rst 10 years of his rule. Miloevi s rule was not simply imposed on unwilling s c oppressed people; for a long time, his leadership and policies were rooted in a national 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 difcult to maintain than if the atrocities had been committed by Serbs against other Serbs. The weakness of these appeals was compounded by the character
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NATO air strikes hit Serbian targets in Kosovo, as well as in Serbia proper in 1999. Human Rights Watch, Weighing the Evidence: Lessons from the Slobodan Miloevi Trial (December s c 2006). Belgrade Center for Human Rights, An Analysis of a Public Opinion Survey on the ICTY with Comments and Recommendations (2005). See regular reports by the Strategic Marketing Research Agency, Belgrade, at http://www.smmri .co.yu.

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of the postwar settlement, which institutionalized ethnic divisions and separated warring groups, who now live in different countries or in highly segregated incountry ethnic entities without any incentive to cooperate or even interact with one another.20 This ethnic quality of both the crimes committed and the postconict solution made the search for justice that much more distant and less urgent.21 Finally, the post-Miloevi government was a hodgepodge alliance of nationalists s c and reformers who were deeply split on the idea of international justice.22 The nationalists grouped around President (and later Prime Minister) Kotunicas s 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, they had to resist international justice, because this scored them valuable domestic political points and secured their unchallenged place on the right of the political spectrum. -c In contrast, Prime Minister indi positioned his Democratic Party as the party of European integration, reform and internationalism, juxtaposing it to the re-c actionary and anti-European party of President Kotunica. indi used justice at s The Hague as a domestic political wedge issue, a dening difference between two -c opposing political groups. In other words, indi s reformers were instrumental supporters of international justice; they would invoke the international norm not only to justify institutional and policy change, but also to delegitimize the preferences of their domestic political opponents.

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Serbia and The Hague

For the ICTY, and for powerful international actors such as the US and the EU, the rst order of business in post-Miloevi Serbia was the arrest and transfer s c
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21

22

23

Huma Haider, (Re)Imagining Coexistence: Striving for Sustainable Return, Reintegration and Reconciliation in Bosnia and Herzegovina, International Journal of Transitional Justice 3(1) (2009): 91113. This low social demand for transitional justice is evident in results of systematic public opinion surveys. For example, in a 2005 survey, 81 percent of respondents answered that Serbs suffered the most during the Yugoslav wars and 74 percent believed that Serbs committed the fewest crimes of all ethnic groups in the former Yugoslavia. Strategic Marketing Research Agency, Public Opinion in Serbia: Views on Domestic War Crimes Judicial Authorities and the Hague Tribunal (April 2005), report on le with author. In a similar survey conducted in 2006, 64 percent of respondents believed that facing the crimes of the past is important, but of these respondents 35 percent believed this is important in order to vindicate the Serbs from false accusations of war crimes. Organization for Security and Cooperation in Europe (OSCE), Public Opinion in Serbia: Views on Domestic War Crimes Judicial Authorities and The Hague Tribunal (Belgrade, December 2006). -c The Kotunicaindi division was also exacerbated by the structural divisions in Serbian politics, s -c with Kotunica heading the Federal Republic of Yugoslavia (Serbia and Montenegro) and indi s heading Serbia. Kotunicas disdain of the ICTY is well documented. He often publicly denigrated the ICTY, s once famously referring to the tribunal as the last hole on [his] ute. B92, 1 February 2002. (Unless indicated otherwise, B92 refers to the website of the Belgrade-based B92 broadcast network, http://www.b92.net.) Kotunica also argued that his stomach turns at the thought of the tribunal, s but that he had to, in a way, digest this institution (B92, 2 April 2002).

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of Miloevi himself. The new Serbian government, however, was deeply split s c on what to do with Miloevi . Unlike President Kotunica, who vigorously ops c s posed transferring Miloevi to The Hague and was ambiguous about offering s c Miloevi amnesty in response to stepping down peacefully,24 Prime Minister s c -c indi advocated investigating Miloevi for abuses of power, but not for war s c crimes, and proceeding with the arrest and a domestic trial.25 Worried that Kotunicas continuing reluctance to arrest Miloevi would undermine inters s c -c national donors pledges of support, indi decided to circumvent the president and had Miloevi arrested on 31 March 2001, the US-set deadline for continuing s c s c economic aid.26 Miloevi 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 -c Even though indi single-handedly pushed for and orchestrated Miloevi s s c arrest, he chose not to use the arrest as an opportunity to ignite a public debate about the past. Instead of approaching international justice as an issue of morality, -c as the right thing to do, indi justied cooperation with the ICTY using rst the language of international prestige: Miloevi was not exchanged for money, but s c s c for [international] credibility;28 Miloevi s 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 Miloevi would lead to s c the suspension of nancial aid, which would bring the country to the brink of economic collapse, complicate the repayment of foreign debt, and prevent Serbias membership in international nancial institutions.30 Other government ofcials were even more blunt in justifying Miloevi s sudden arrest and extradition: We s c -c wanted American money, we wanted EU money.31 While indi s rhetorical strategy was to couch international justice compliance as a purely pragmatic decision, this approach had signicant 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
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30 31 32

Kotunica Meets Miloevi , BBC News, 14 January 2001. s s c Miloevi To Face Justice, BBC News, 24 December 2000. s c This also happened to be the day that Kotunica was out of the country on a state visit and was s unable to intervene and block the arrest operation. B92, 29 June 2001. -c Nenad Stefanovi , Zoran indi , srpski premijer: Nisam najmo niji covek u Srbiji [Zoran c c -c indi , Serbias prime minister: I am not the most powerful man in Serbia], Vreme, 26 July 2001. -c -c Zoran indi , premijer Srbije, odgovara na 50 pitanja o prvih 100 dana svoje vlade [Zoran indi , Serbias prime minister, answers 50 questions about the rst 100 days of his government], Nedeljni telegraf, 9 May 2001. B92, 28 June 2001. Cedomir Jovanovi , deputy prime minister, later president of the Liberal Democratic Party, interc viewed on B92 TV, 19 April 2005. Bogdan Ivanievi , Softly-Softly Approach on War Crimes Doesnt Help Democracy in Serbia (New s c York: Human Rights Watch, August 2004). Most citizens support cooperation for utilitarian reasons, either to avoid international sanctions or because it is a requirement for international integration. These results have remained remarkably steady over time, ranging from 7080 percent of the Serbian population. See, OSCE, supra n 21.

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-c indi s 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, -c strongly indicating that indi was murdered to end further ICTY investigations 34 and extraditions. -c indi s assassination marked a pivotal moment in Serbias transition and its attitude toward international justice. His death left a huge power vacuum, which was immediately lled by Kotunicas conservative DSS and by the extreme nas -c tionalist Serbian Radical Party (SRS). The rst post-indi 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 Kotunica went back to his entrenched position of noncompliance. s The high-prole assassination created a domestic political crisis of major proportions, and the instability that followed signicantly 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 -c However, the indi assassination did not ease pressures from the ICTY. In 2003, 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
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36 37 38

Ofcially titled the Special Operations Unit, this group was formed as a paramilitary unit in 1990 to stir up Serbian rebellion in Croatia. Its members are accused of committing some of the most heinous atrocities in the Yugoslav wars. After the end of the war, Miloevi ofcially merged the Red s c Berets with regular security forces, and they remained part of ofcial police forces after Miloevi s c was ousted from power, making them much more difcult to disband and prosecute. See Dejan Anastasijevi , Ko su Crvene beretke? [Who Are the Red Berets?], Vreme, 19 October 2000. c Testimony of Zvezdan Jovanovi , one of the alleged assassins, during the assassination trial proceedc -c -c ings. D. Curuvija, Ubio sam indi a iz patriotskih razloga [I Killed indi for Patriotic Reasons], Glas javnosti, 26 December 2003. The 2003 parliamentary elections featured three indicted war criminals Slobodan Miloevi , s c s Vojislav Seelj and Neboja Pavkovi at the top of the electoral lists of their respective parties (the s c Socialist Party of Serbia, the SRS, and the Socialist Peoples Party), while two generals indicted for war crimes, Vladimir Lazarevi and Sreten Luki , gured on the Liberal Party election list. c c B92, 6 March 2004. B92, 30 March 2004. International Crisis Group, Serbia: Spinning Its Wheels (23 May 2005).

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In response, the Kotunica government instituted a new strategy of voluntary s surrenders. In the spring of 2005, after much public bluster, the government arrested and transferred three of the four generals to the ICTY, while one remained at large. Two days before the EU was to conrm a favorable feasibility study for Serbias accession, the Serbian government announced that one of the four accused generals, Neboja Pavkovi , would surrender. Pavkovi s voluntary surrender was s c c a huge media event, and the Kotunica government gave a statement highly s praising [Pavkovi s] decision, considering it in the best interest of the country, c and as his moral, responsible and patriotic attitude towards the country and the people.39 Another of the four generals, Vladimir Lazarevi , had an even more VIP sendc off. After deciding to voluntarily surrender, Lazarevi was met by the Patriarch of c the Serbian Orthodox Church and Prime Minister Kotunica, who both praised s Lazarevi s heroic decision to surrender to the ICTY. Kotunica went so far as to c s say, The general acted in line with a long-standing tradition of the Serbian army, namely that our ofcers ght for the interests of the people and country until the c c bitter end.40 As in the case of Pavkovi , Lazarevi s surrender was cast as an act of supreme patriotism, as a difcult decision in the interest of the homeland.41 Lazarevi was own to The Hague in a government jet, accompanied by the justice c minister.42 The government made repeated claims that these transfers were opening doors for the country to join the EU, an issue that the Kotunica government made the s centerpiece of their 2007 election campaign.43 The government did not make any effort to inform the public of what crimes these individuals were indicted for, how these crimes came about, who the victims were, the scope of abuse or any other details regarding the substance of the indictments. Instead, masked in the guise of voluntary surrenders, dealing with the past was repackaged as acts of patriotism for which the state is grateful. Thus the stepped-up pressure from the ICTY and other international actors did not translate into any substantial changes in Serbias understanding of its own past, nor in any attempt to address past abuses in a systematic way. In contrast to the policy of voluntary surrenders, there are numerous examples of Serbian justice policies differing sharply from the increased enthusiasm to cooperate with the ICTY. In early 2005, at the height of the voluntary surrenders, nongovernmental organizations discovered evidence of new mass graves in Serbia containing bodies of Kosovo Albanian civilians killed in 1999. Rather than open an investigation, the relevant Serbian ministries interior, justice and security
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B92, 22 April 2005. Lazarevi ide u Hag [Lazarevi to The Hague], Glas, 29 January 2005. c c B92, 2 February 2005. International Crisis Group, supra n 38. Illustrative of this governments line is the statement by Rasim Ljaji , president of the National c Council for Cooperation with the ICTY, that the voluntary transfer [of General Lazarevi ] is a c great step toward the EU, because it has facilitated the positive EU Feasibility Study. B92, 29 January 2005.

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services sought instead to cover up the ndings. They began a campaign of silencing and intimidating witnesses, forcing them to sign statements on spiritual peace and afrmations that they do not feel psychological pressure to disclose what had happened . . . in May 1999.44 Local police also threatened to le criminal charges for disclosure of state secrets against any police ofcers 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 Karad i and especially Ratko Mladi , who was widely believed to be zc c hiding 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 apprehension Serbia was relegated to the back of the EU accession line, with decreasing nancial assistance and a steadily weakening bargaining position on the future of Kosovo.47 In May 2006, EU negotiations on Serbias accession were ofcially suspended because of Serbias failure to deliver Mladi . The US also suspended c nancial aid as punishment for Serbias continuing lack of cooperation with the ICTY. 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 requirement 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 commitment to achieve full cooperation with the ICTY.49 What clear commitment meant was left unspecied, but it was obvious that the government was no longer obliged to arrest Mladi and Karad i as a condition for SAA talks.50 Even more surprising c zc
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Helsinki Committee for Human Rights in Serbia, Human Rights and Collective Identity: Serbia 2004 (Belgrade: HCHRS, 2005), 150. Humanitarian Law Center (Belgrade), Report on Transitional Justice in Serbia, Montenegro and Kosovo, 19992005 (5 December 2006). Personal interview with Biljana Kova evi Vu o, director of the Lawyers Committee for Human c c c Rights, Belgrade, 29 September 2005. International Crisis Group, supra n 38. NATO continued to publicly insist on Serbias full cooperation with the ICTY. NATO Summit Declaration press release, Riga, Latvia (29 November 2006). European Commission, Serbia 2007 Progress Report (Brussels, November 2007). 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 arresting 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 Mladi to the tribunal was a violation of the Genocide Convention and c ordered Serbia to cooperate fully with the ICTY.51 The EU ofcially resumed SAA negotiations with Serbia in June 2007, after the Serbian 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 remaining 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 EU conditionality stood a chance of making Serbia act.54 Against serious objections by Belgium and the Netherlands, the EU nally 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 Democratic Party at the expense of the hard-line DSS and SRS on the eve of parliamentary elections scheduled for May 2008.56 In fact, Javier Solana, EUs High Representative for the Common Foreign and Security Policy, said openly that the SAA should be offered to Serbia before parliamentary elections to support proEuropean 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 working on the arrest of fugitives are well coordinated; and Serbia grants full access to documents and les. General Affairs and External Relations Council, EUSerbia Troika, Brussels, 6 March 2007. On 26 February 2007, the International Court of Justice ruled that Serbia breached its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by failing to prevent the 1995 genocide at Srebrenica or to punish those responsible. It also found that Serbias continuing failure to transfer Mladi to the ICTY amounts to an ongoing violation of its c obligations under the Genocide Convention. This is the rst time the ICJ has ruled that a country was in violation of the Genocide Convention. International Court of Justice, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment (26 February 2007). The suspects in question were Bosnian Serb general Zdravko Tolimir and Serbian former police - c general Vlastimir ordevi . See, for example, Human Rights Watch, Dont Compromise on Mladi: EU Should Insist on Full c Cooperation with Yugoslav Tribunal (6 November 2007). Del Ponte Urges EU Serbia Caution, BBC News, 31 January 2007. B92, 29 April 2008. International Crisis Group, Serbias New Government: Turning from Europe (31 May 2007). Javier Solana, address to the Committee on Foreign Affairs of the European Parliament, Brussels, 8 April 2008.

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51

52 53 54 55 56 57

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twist, the reformist Democratic Party was forced to invite Miloevi s Socialists to s c 58 join the government. 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 international observers and The Hague tribunal itself by arresting Radovan Karad i in zc zc Belgrade in July 2008.59 The government wasted no time in placing Karad i s 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 Karad i s arrest to make an even larger pozc 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 Mirko Cvetkovi made this link very clear: Serbia respects international law in every rec 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 specically to pressure the Serbian government to recognize Kosovo. As the new crisis regional instability following Kosovos declaration of independence loomed large, the issue of international justice in Serbia became ever more obsolete.

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Croatia
Since declaring independence in 1991, Croatia was immersed in a war against its sizeable Serbian minority, who responded to hardening Croatian nationalism under President Franjo Tudman with armed rebellion. In many ways the rebellion was not a homegrown effort, but an uprising that was coordinated, nanced and managed from Belgrade.63 The war started in 1991 and lasted in full force until 1992, when an even more brutal conict erupted in Bosnia. Croatia suffered many casualties in the beginning of the war, as the JNA, as well as volunteer and
58 59

60 61

62 63

Dejan Anastasijevi , Serbian Voters Spurn Nationalists, Time, 12 May 2008. c Karad i s arrest, however, while intensely covered in the Serbian media, revealed that the Serbian zc society is still uncertain about its past and ways to deal with its legacy. An opinion poll conducted after the arrest showed that 54 percent of Serbians did not approve of Karad i s transfer to The zc Hague, while 42 percent approved. A third saw Karad i as a hero, and only 17 percent viewed zc him as a war criminal, while the overwhelming majority, 86 percent, believed that the ICTY was biased against the Serbs. The survey was conducted by the Strategic Marketing Research Agency for the National Council for Cooperation with The Hague Tribunal. Results were published on B92, 25 July 2008. B92, 22 July 2008. B92, 2 August 2008. Kosovo, a former province of Serbia, unilaterally declared independence in February 2008. Serbia has vigorously opposed Kosovos independence, claiming it is in violation of international law. B92, 26 July 2008. Human Rights Watch, supra n 17.

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paramilitary groups from Serbia, supported the Serb rebels and carried out atrocities against Croatian civilians. As the Bosnian war raged on, Croatia became more deeply involved by arming and supporting Bosnian Croats. In the course of the conict, Croatian troops and paramilitaries and their Bosnian proxies also carried out atrocities against Bosniacs. Finally, in 1995, as Serb troops were beginning to lose ground in Bosnia, the Croatian army regrouped and carried out two complex military operations Flash and Storm which effectively retook control of most Serb-held territory, but in the process also deported or ethnically cleansed some 200,000 people.64
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International and Domestic Conditions

After years of tense relationships between Croatia and the international community, Croatias international reputation greatly improved following Tudmans death in 1999. In the 2000 elections, Stjepan Mesi , former high-prole commuc nist ofcial and defector from the Croatian Democratic Union (HDZ),65 won the presidency, and the parliament was placed under the control of the left-leaning six-party coalition led by the Social Democratic Party (SDP) of Prime Minister Ivica Ra an and the Croatian Social Liberal Party (HSLS) led by Dra en Budia. c z s Post-Tudman Croatia began to receive generous rewards such as membership in NATO and the World Trade Organization for its regime-change efforts and moves to correct its human rights reputation. The new government also received signicant nancial packages from the EU and the US. Most importantly, Croatia received promising signals regarding its chances for joining the EU, especially after the early signing of the SAA in October 2001. The worlds embrace of the new Croatia was accompanied by great expectations for the proper way in which the country should deal with the legacy of its recent violent past. However, unlike Serbia, the post-Tudman Croatia was expected to be a much easier case, and less in need of hands-on international guidance. In many ways, international justice policies followed a general international attitude toward Croatia, which manifested a profound relief at having in power a democratic government and a reliable international partner after years of Tudmans 66 autocracy. As in Serbia, the international community instituted a policy of conditionality with Croatia, where each step toward fulllment of ICTY cooperation requirements would be awarded with another door opened for Croatia on its path toward EU membership. However, international pressure was focused more on symbolically accepting Croatia within the European fold and less on straightforward coercion. Foreign ofcials routinely scolded Croatia for lackluster cooperation with the ICTY,
64

65 66

Croatian Helsinki Committee for Human Rights estimates that the casualty toll of Operation Storm was approximately 700, and up to 22,000 houses were burned. Croatian Helsinki Committee for Human Rights, Military Operation Storm and Its Aftermath (2001). These gures are still disputed by the Croatian government and are portrayed as overblown by much of the Croatian media. Mesi was the last president of the former Yugoslavia. He left the HDZ in protest over its role in the c armed conict between Bosniacs and Croats in the Bosnian war. International Crisis Group, Croatia: Facing Up to War Crimes (16 October 2001).

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but nonetheless approved nancial aid to set the country on the path to European integration.67 EU ofcials continued to call for Croatias cooperation, but stopped short of issuing an ultimatum in case Croatia reneged on its promises.68 This toothless conditionality reected an understanding among international actors that the international community should be sensitive to domestic political realities in Croatia and also be careful not to destabilize pro-Western government support and potentially empower HDZ nationalists.69 In many ways, then, the international belief that Croatia had the foundation of democratic normalcy suited the domestic lack of appetite for seriously addressing the crimes of the past. The domestic demand for justice in Croatia has consistently been low. The very character of the Croatian war as understood locally has made accepting international justice difcult for Croatia. The 19911995 war is referred to as the homeland war in Croatia a war of independence, or a state-building war. It is the war that nally made Croatia independent from communist rule, but more importantly from the Yugoslav federation, historically perceived in Croatia as a Serb-dominated autocracy that crushed Croatian national interests. And, as in Serbia, the character of the committed crimes directly inuenced Croatian social and political responses. Crimes committed against non-Croats were interpreted domestically as either crimes against domestic insurgents or terrorists (Croatian Serbs) or foreign enemies (Bosnian Muslims). As in Serbia, compliance with international justice was a powerful domestic political issue that pitted distinct political coalitions against each other. While each coalition had clear preferences for dealing with Croatias past, what made Croatia much different from Serbia was the overarching strategy of Europeanization a vision shared by virtually all segments of Croatian society and the political elite. This shared goal superseded any ideological differences Croatian elites may have had about the legacy of the Croatian war, and allowed Croatia to pool all societal resources into achieving the national mission: bringing Croatia into the EU. Croatian justice opponents included members of the HDZ, other smaller nationalist parties, the military, the Catholic Church and most of the Croatian media. Consistently very vocal, this coalition has often disrupted or signicantly slowed down Croatias international justice processes. Unlike in Serbia, however, Croatian justice opponents were never in full control of government in the postTudman era. By the time the HDZ returned to power in 2003, the party was led by a moderate, Ivo Sanader, who made it his goal to rid the HDZ of its reactionary image and work full-force toward taking Croatia into the European fold by way of respecting international institutions and demands.
67

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68 69

A clear example of inconsistencies in the issue-linkage strategy is a 2002 British call for the indicted Croatian general Ante Gotovina to surrender to The Hague, immediately followed by the announcement of a 5 million donation for Croatia to carry out economic, legal and educational reforms. Victor Peskin and Mieczyslaw P. Boduszynski, International Justice and Domestic Politics: Post-Tudman Croatia and the International Criminal Tribunal for the Former Yugoslavia, Europe Asia Studies 55(7) (2003): 11171142. EU Mission Monitors Croatias Progress, Southeast European Times, 21 October 2002. International Crisis Group, supra n 66.

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The interesting aspect of the Croatian elite strategy is that the real political ghts occurred within the second bloc instrumental supporters, who in different party incarnations have dominated Croatian politics since 2000. The rst post-Tudman government of Ivica Ra an consistently walked a tightrope between appeasing nac tionalist constituencies suspicious of Ra ans communist background and pleasing c Croatias international sponsors who demanded that Croatia respect international justice. Unlike his predecessor Ra an, Sanader had unquestionable nationalist crec dentials and could easily cash in on his nationalist political capital. His strategy was to maintain the outward appearance of a tough stance against international justice by praising ICTY indictees as Croatian war heroes while at the same time working behind the scenes to fulll ICTY obligations. Croatias political environment was further shaped by President Mesi s continued rhetorical support for international c justice. In his weekly addresses to the nation, Mesi took on a mission, a permanent c campaign70 to educate the Croatian public and implore them to respect international law as the foundation of the liberal democratic order that Croatia wants c to join.71 Using rhetoric similar to Serbias pro-internationalist reformers, Mesi claimed that nationalist mobilization against the ICTY is anti-European and antidemocratic.72 As in the case of Serbias reformers, complying with international justice was justied in the name of European identity and desired membership in the elite club of liberal democracies.

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Croatia and The Hague

Croatias commitment to transitional justice has for many years been best described as one step forward, two steps back. The Croatian government has mostly cooperated selectively, reluctantly and insufciently with The Hague tribunal. The pressures exerted by the ICTY and by the US and the EU have created deep divisions within the Croatian state, with the issue of the tribunal dominating domestic political debates and pitting strong domestic interest constituencies against one another. The rst major crisis regarding international justice hit the post-Tudman government in February 2001, when a local court acted on ICTY evidence and indicted Croatian General Mirko Norac for war crimes against Serbian civilians in 1991. Croatias right-wing parties and veterans groups quickly mobilized to organize massive street demonstrations throughout Croatia. The protesters were angered not only by Noracs indictment, but also by the governments new policy of cooperation with the ICTY, which they saw as unscrupulous and giving in to international pressures.73 The government was at rst taken aback by this massive outcry of public support for an indicted war criminal, and made futile appeals to the public that
70 71 72 73

Personal interview with Tomislav Jaki , President Mesi s foreign policy adviser, Zagreb, c c 22 November 2005. Ivica iki , Domovinski obrat: Politicka biograja Stipe Mesia [Homelands Turn: Political Biograc c phy of Stipe Mesi ] (Zagreb: VBZ, 2004). c Mesi s address to the nation, 25 September 2002, Zagreb. c Croatian Rally Protests U.N. and Demands Early Elections, New York Times, 12 February 2001.

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these demonstrations were hurting Croatias international reputation and its appeal as a destination for foreign commerce and tourism.74 The government then regrouped and countered the right-wing mobilization, accusing it of using the veterans to advance their own political goals. Prime Minister Ra an reiterated that c the government would not give in to the right-wing pressure to end cooperation with the ICTY. The stakes, he argued, were too high: domestically, the crisis threatened to undermine Croatias democratic legal order and judicial independence; internationally, it risked isolating Croatia following the honeymoon it had enjoyed c in the aftermath of Tudmans death.75 In other words, Ra an presented the issue of justice for war crimes as a central part of establishing the rule of law and consolidating democracy in Croatia, and as necessary for Croatias European aspirations. President Mesi also had harsh words for the nationalists, whom he accused of c manipulating the crisis for their own political gains.76 The crisis was nally diffused with a compromise: ICTY prosecutor Carla Del Ponte agreed not to investigate the Norac case for the time being and deferred it to the Croatian judiciary. Norac then surrendered to Croatian authorities and insisted that he never intended to undermine Croatias nascent democracy: Fighting for the country, I also fought for its legal institutions.77 In diffusing the crisis, the Ra an government was also helped by the ICTY c prosecutors sensitivity to Croatias domestic political turmoil and willingness to compromise and defer the controversial case to Croatian courts. It is possible that, at least in part, the reason for the ICTYs softer approach was a sense among international actors that exerting too much pressure on Croatia while the new Serbian government was enjoying the post-Miloevi international honeymoon s c would be politically inappropriate, especially since Serbia was not showing any signicant improvement in the realm of international justice.78 This early leniency by the ICTY was soon to be replaced by a much harsher stance toward Croatias continuing reluctant cooperation. Again, the impetus for a shift in international policy toward Croatia was inuenced by events in Serbia. After Miloevi was transferred to The Hague in June 2001, the ICTY prosecutor s c turned her attention to Croatia and stepped up pressure on the Ra an government c to improve its lackluster cooperation with the tribunal. In July 2001, the ICTY prosecutor issued indictments against high-ranking Croatian generals, including Ante Gotovina, a famed war general now accused of participating in a joint criminal enterprise of forced deportation and murder of Croatian Serbs during Operation Storm in 1995.79
74 75 76 77 78 79

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Croatians Rally to War Crimes Suspect, BBC News, 11 February 2001. B92, 10 February 2001. Croatian Protesters Lift Blockade, BBC News, 12 February 2001. B92, 22 February 2001. International Crisis Group, supra n 66. The strongly worded indictment read, in part, Between 5 August 1995 and 15 November 1995, Croatian forces committed numerous acts of killing, arson, looting, harassment, terror and threat of physical harm to person and property. By these acts, Croatian forces intimidated and coerced

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The Gotovina indictment sent shock waves through Croatia and caused the Ra an government much more headache than any previous altercation with the c ICTY. The fact that the indictment labeled Operation Storm a joint criminal enterprise enraged Croatian ofcials and put the Ra an government in a particularly c precarious position. If the government acted on the indictments and arrested the suspects, it not only would anger Croatian nationalists, but would also have a hard time explaining this move to the Croatian public, which understood Operation Storm to be the nal act of Croatias liberation against Serbian rebels and therefore the military maneuver that made todays independent state of Croatia possible. In the view of the Croatian government, to criminalize Operation Storm was, in effect, to criminalize the Croatian state itself. However, if the government ignored ICTY indictments or refused to act on them, it risked angering international friends, freezing international aid and seriously jeopardizing Croatias dream of joining the EU. While his opposition to the indictments was clear, Ra an nonetheless made a c rhetorical commitment to cooperate with the ICTY. He did not, however, actually act on the indictments in any serious manner. This delay has, by many accounts, allowed Gotovina to go into hiding.80 The parliamentary elections of November 2003 brought a change of government. Ra ans SDP was replaced by the HDZ. While the international community c expressed concern at the return of HDZ to power and expected its leader Sanader, a hardliner on international justice, to be even more reluctant to cooperate with the ICTY than a weakened Ra an, Sanader surprised almost everyone in Croatia c and abroad with his businesslike approach to ICTY cooperation and a renewed energy to bring Croatia closer to Brussels by way of The Hague. When in February 2004 the ICTY indicted Croatian generals Ivan Cermak and Mladen Marka for crimes against humanity committed during Operation Storm, c Sanaders reaction was markedly different from that of his predecessor. For one, both Cermak and Marka immediately surrendered to the tribunal. Six other c ICTY indictees were transferred on 5 April 2004, two weeks before the European Commission was to issue an opinion on Croatias bid for EU membership. The ICTY, however, continued to pressure Croatia to arrest Gotovina. In early 2005, citing the ICTY prosecutors negative report on Croatias cooperation in the Gotovina case, the EU briey suspended accession negotiations with Croatia. The pressure on the government was mounting. Then, on 7 December 2005, after a massive international manhunt, Ante Gotovina was arrested in the Spanish Canary Islands. The Croatian government was ecstatic. Not only was it vindicated in its claims that Gotovina was not hiding in Croatia, but also his arrest closed the nal chapter of Croatias relationship with the ICTY. With his arrest, there were no more formal obstacles to Croatias EU accession.

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Krajina Serbs into leaving their villages, hamlets and homes. Prosecutor v. Ante Gotovina, Case No. IT-0145-I (8 June 2001), counts 6 and 7. Personal interview with Ivica iki , war crimes investigative reporter for Feral Tribune, Zagreb, c 4 November 2005.

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Equally signicant for the Croatian government, with the last suspect in custody, Croatia was to begin the comprehensive project it had long hoped to undertake: to individualize alleged crimes against non-Croat populations and exonerate the Croatian state. Indeed, in January 2006, Prime Minister Sanader met with the defense lawyers of the indicted Croatian generals to discuss a joint strategy for their defense before the ICTY. The government also hired respected Croatian lawyers and historians to work together on the defense project, whose main purpose was to refute the ICTY prosecutions claim that Operation Storm was a joint state criminal enterprise aimed at removing the entire Serb population from Croatia.81 Finally, in June 2006, the Croatian parliament adopted a comprehensive declaration on Operation Storm, which states that Operation Storm . . . should be remembered in history not only as victorious and decisive, but also as the last Croatian battle.82 The signicance of this statement is that it further afrms Operation Storm the military action that rid Croatia of almost its entire Serb population as the foundational battle of the war, as the battle that made Croatia. Croatian ofcial policy is to treat Operation Storm historically as glorious and victorious, and not as controversial and problematic. Thus, the clearest evidence of Croatias cooperation with the ICTY the arrest of Ante Gotovina was used to buttress Croatian nationalist claims and exonerate the Croatian state from charges of ethnic cleansing or other serious war crimes. International justice here did not serve the purpose of opening up the debate about the past, but in effect closed it. Since Gotovinas transfer to The Hague was the last requirement Croatia had to fulll on its path to EU membership, international actors no longer have much leverage in terms of inuencing Croatian debates about past crimes. By fullling international institutional requirements, Croatia in fact managed to use them to perpetuate nationalist mythology and advance its state interests. At the same time, instrumental compliance allowed Croatia to reclaim its international legitimacy as a global citizen and elevate its international reputation and status.

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Conclusion
The cases of Serbia and Croatia show that the manner and sustainability of international pressures on target states make a profound difference on international justice outcomes. Different types of international pressures coercive and symbolic paid different kinds of political dividends. In Serbia, as long as international actors relied on coercion, the compliance was incomplete, stalled and created more domestic resistance. When pressure became symbolic as when Serbia was offered a path toward EU membership in anticipation of government compliance this strengthened reformers, who then acted quickly to demonstrate their reliability as partners who can be counted on to comply with international demands.
81 82

Zeljka Vuj i , Croatia: Gotovinas Last Battle?, Transitions Online 1(17) (2006), http://www.tol.cz. cc Croatian parliament, Deklaracija o Oluji [Declaration on Operation Storm], 30 June 2006, Narodne novine, 76/2006.

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In Croatia, international pressure was less pronounced. In fact, international actors made a point of protecting Croatian reformist elites from the burden of international sanctions, thus propping them up politically at times of domestic political turmoil. This softer approach allowed reformers to deal more harshly with veto players and spoilers, as they had international backing for action and did not fear a coup or reversal of power as was the case in Serbia. Since Croatia cared mostly about international legitimacy and joining the society of European states, a favorable international environment and measured international pressure allowed the elites to sail more or less smoothly toward that goal. Thus, international pressures to comply with justice requirements vary in their consistency, reliability and sustainability. They are not always internally coherent, nor do they always contain clear sanctions for violations. They are also not uniformly pro-justice, nor are they devoid of political considerations. Different types and degrees of international pressure allow domestic political actors to use international requirements in a variety of ways, including to pursue goals very much removed from international justice intentions. While this article focuses on international justice compliance in the former Yugoslavia, the paradox the article identies has occurred in other, very different political environments. In Cambodia, after years of international pressure and domestic stalling, the government nally established in 2006 the Extraordinary Chambers in the Courts of Cambodia (ECCC) to prosecute the former leaders of the Khmer Rouge. The ECCC, however, has been very controversial both within Cambodia and among international justice experts because of the perceived lack of impartiality of the Cambodian judiciary, profound corruption and inadequate legal capacity and training.83 In a political calculation similar to that of Serbian and Croatian elites, the Cambodian government complied with international justice requirements to set up a special court, but did so in order to maintain control over the judiciary and the domestic political process.84 The government had a direct interest in holding as few trials as possible, claiming to the international community that it has complied with international requirements while at the same time curtailing future prosecutions that might implicate current members of the government, some of whom were Khmer Rouge soldiers themselves.85 More transparently, the timing of the start of the trials was coordinated to overlap with the 2008 elections and give an added boost to the long-serving prime minister, Hun Sen. The trials were expected to whitewash his personal complicity in the genocide (he was a Khmer Rouge soldier) and to build his appeal as the leader who nally brought the Khmer Rouge to justice.86 Instead of delivering justice to the Cambodian victims of genocide, this political exploitation of Cambodias past may in fact produce exactly the opposite result.
83 84 85 86

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Human Rights Watch, Cambodia: Events of 2007 (January 2008). Human Rights Watch, Cambodia: Government Interferes in Khmer Rouge Tribunal (December 2006). Sara Colm, Killing Field Trials, Bangkok Post, 3 March 2008. Christina Larson, Festival of the Dead, New Republic, 7 May 2008.

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In Uganda, the government invited the ICC in 2004 to investigate crimes committed by the Lords Resistance Army (LRA), a rebel force engaged in a prolonged ght with the government. Uganda was the rst state to refer an investigation on its territory to the ICC, and the government hoped that the ICC indictments would discredit its political enemies while presenting Uganda as a respectful state that valued international law and institutions of justice. While the LRA crimes are certainly hideous and the indictments painstakingly document the extent of LRA brutality, it is also quite obvious that the Ugandan government has used the international court as a tool in a domestic political ght. The ICC has investigated only atrocities committed by the LRA, even when faced with evidence that government forces have also committed many atrocities. In fact, victims of the Ugandan civil war have indicated that they see both parties as equally guilty for their suffering.87 The ICC, however, is reluctant to alienate the Ugandan government, on which it depends for its continuing in-country investigations. Many Ugandan civil society leaders are very critical of the role the ICC has played in Ugandan domestic politics; in the words of a local politician, The ICC has become [President] Musevenis political tool.88 The paradox of international justice compliance is therefore not unique to the former Yugoslavia, nor is it unique to specic institutional models of justice. Domestic actors are able to use different international justice mechanisms in very different political contexts and for various local reasons: to get rid of domestic political opponents; to ingratiate themselves with the international community; to pre-empt genuine international justice processes by holding sham domestic trials; or, perhaps most seriously, to acquire an international shield of legitimacy for continuing justice impunity at home. However, a few caveats are in order. It is certainly possible that each time a state complies with international justice obligations, regardless of motives, the international justice regime as a whole is strengthened. As leaders in Serbia and Croatia discovered, once they complied with international justice requirements, the expectation for further compliance was harder, not easier, to resist. This article, therefore, does not call for the weakening of the international justice regime, nor does it advocate less international intervention on issues of justice. The perspective presented here is of a maximalist interpretation of transitional justice, which asks for more international and domestic involvement with legacies of past violence, not less. The paradox of international justice compliance explored here occurs when the complex issue of dealing with past crimes becomes reduced through international pressure and domestic responses to a question of how many suspects were arrested, by what date, and what was offered in return. The aftermath of past
87

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United Nations Ofce of the High Commissioner for Human Rights, Making Peace Our Own: Victims Perceptions of Accountability, Transitional Justice and Reconciliation in Northern Uganda (Geneva: OHCHR, 2007). Quoted in Phil Clark, Law, Politics and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo and Uganda, in Courting Conict? Justice, Peace, and the ICC in Africa, ed. Nicholas Waddel and Phil Clark (London: Royal African Society, 2008), 42.

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violence and the question of state and societal complicity in mass atrocities are issues too complex and fraught with moral hazard to be compressed into such a banal exchange. Whether or not a country cooperates with an international tribunal or sets up a domestic war crimes court is not the only, or even the best, indicator of a states commitment to dealing with the past. When international actors reduce the quest for justice to compliance with rigid international requirements, the domestic acceptance of other mechanisms of transitional justice can become undermined. A better strategy is for international actors to put equally strong efforts into parallel pressures or initiatives that would encourage deeper reckoning with the past such as strengthening local promoters of transitional justice, media professionalization and education reform, and cultivating a true political culture of human rights. Different international and domestic actors have different roles to play. The key is harmonizing these efforts so that they complement one another and open avenues for a sustained, comprehensive and substantive addressing of violent legacies of the past.

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