simply, a prominent ICTY defense attorney, Michail Wladimiroff, who defended Dušan Tadić in the first ICTY trial,20 remarked that “if the states of the former Yugoslavia would properly prosecute their own perpetrators of war crimes and crimes against humanity and do so with the same quality of fair trial, there would be no need for the International Tribunal for the Former Yugoslavia.”21
However much the inactivity of domestic courts may have provoked the formation of ICTY, it was not designed simply to substitute for domestic courts. ICTY began to define its unique role beginning in 1998. At that time, after a series of trials of low-ranking figures like Dušan Tadić and Dražen Erdemović, ICTY adopted a policy of restricting its focus to major perpetrators. In 2000 and 2001 this became apparent (and possible) with the arraignments of some formerly senior political actors: Momčilo Krajišnik,22 Biljana Plavšić,23 and of course Slobodan Milošević. In relation to Croatia, it filed its major indictments against generals (the two politicians most likely to be charged, Franjo Tudjman and Gojko Šušak, died in the meantime, as did Bosnian HDZ leader Mate Boban). Here the model adopted was not to substitute for domestic jurisprudence, but rather to engineer widely publicized demonstration trials, along the lines of the International Military Tribunal in Nuremberg. At the same time, although the ICTY statute foresaw “primacy” over national courts, ICTY rarely exercised this primacy in individual cases. This led to considerable leeway, as well as considerable potential for abuse, on the part of courts in Croatia and Kosovo.24 In some instances referral of cases took on a political character, as it seemed that Croatia was rewarded for cooperation with the promise that cases like the Gospić case, involving violations committed by Croatian forces, would be referred to domestic jurisdiction.25
In the period since the regimes whose behavior sparked the establishment of ICTY left power, the states of the former Yugoslavia have been the site of several innovations and experiments in transitional justice. Aside from the founding of the first UN tribunal, the region has seen the first regional system of special prosecutors and special courts for violations of international humanitarian law, the first invocation of “confronting the past” as a principle of conditionality, and the first efforts in the civil sector to develop cooperative approaches to reconciliation.
Since the successor states to the former Yugoslavia are nonrevolutionary states, some expectations placed on transitional justice conflicted with one another. States were expected to transform institutions that had been complicit in deeds that were now to be punished, but not to destroy them to the degree that they could not function or integrate with international organizations.26 Taking the difficulties faced by the states into account, the fact that transitional justice initiatives have produced a mixed record might be less noteworthy than that they have occurred on a meaningful scale at all.
There were always compelling reasons for preferring domestic over international trials. Controversies around issues of sovereignty and perceptions of bias have led to the development of a political current that rejects ICTY, while the distance of the court’s seat in The Hague from the publics in the region has contributed to difficulties in communication. At the same time, the challenge of prosecuting such cases successfully has been understood by many in the domestic legal profession as an opportunity for prosecutors and courts to demonstrate their capacity to operate independently and contribute to a resolution of humanitarian law issues from within the country rather than without. In addition to their importance in developing local institutional capacity, several recent domestic cases have also contributed to the development of cooperative relationships between judicial and law enforcement institutions across borders, particularly between Serbia and Croatia.
When ICTY completes the trials currently before it the issue of international versus domestic prosecution will be moot: all prosecutions will be domestic.27 In terms of political efficacy, local courts enjoy greater grounds for legitimacy than ad hoc tribunals, and their work is less likely to be perceived as an imposition from outside. In terms of gathering evidence and receiving accusations, too, there may be advantages of geographic proximity to victims, perpetrators, and crime scenes (these could be disadvantages in cases where witnesses might be intimidated). Since many of the most important suspects are people who played roles in domestic politics, too, domestic courts offer the possibility of trying them for both domestic and international offenses. Finally, if there is to be anything like a comprehensive approach to war crimes, a major role for national courts is inescapable simply because ICTY never had the intent or capacity to investigate and try anywhere near the number of people who could potentially be charged, nor did it ever have authority to try people for crimes not delineated in its statute.
Serbian courts entered the post-2000 period burdened with considerable difficulties. First among these was their poor reputation. The independence of the courts from political agencies was questionable in the Communist period, and worsened rather than improved during the period of nationalist authoritarianism. Both judicial personnel and judicial processes were subject to political instrumentalization. The Milošević regime frequently produced judicial decisions as political weapons: the independent newspaper Borba was shut down, the results of the 1996 and 2000 elections were overturned, and political opponents were harassed and intimidated through the courts. Judges who declined to allow their courts to be used for such purposes were fired.28
Consequently judicial institutions in Serbia received consistently low measures of public confidence in surveys. A 1996 survey found 57 percent of respondents declaring lack of trust in judicial institutions, with 37 percent expressing trust.29 This was less than the level of distrust displayed toward representative institutions such as the federal parliament (62 percent), the federal government (61 percent), the Serbian parliament (62 percent), the Serbian government (60 percent), and political parties (71 percent). However, among law enforcement, administrative and civic institutions, only the Serbian police (57 percent) and state-owned media (65 percent) received equal or higher ratings of distrust.30 This put the judicial system on a level of public esteem comparable to that of some of the most despised and reviled institutions in Serbia.
There would have been good reason to expect levels of trust to be lower still with regard to the ability of courts to try humanitarian law cases, considering the record the Serbian judiciary compiled from 1991 onward. Particularly controversial would have been the large number of dubious convictions on terrorism charges, principally against Kosovo Albanians.31 The most widely publicized of these was the conviction of 143 ethnic Albanians from Djakovica, despite a lack of evidence connecting any single one of them to any terrorist acts or attempts. The presiding judge in the case, Goran Petronijević,32 admitted that there was no evidence of guilt, but justified the verdict with an interesting innovation in legal theory: “It was not possible to demonstrate individual guilt, but for the essence of the crime of terrorism that is not necessary.”33 The precedent established by this case degraded the reputation of Serbian courts for competence to try crimes of this type, as well as presenting an inconvenience for political authorities who argued for a principled rejection of concepts of collective guilt.
The task of enabling judicial organs to function independently and capably got to a slow start after the change of regime in 2000. A record of pressure from the executive on the judicial authorities, from ordering verdicts to altering personnel, left a deep effect. The material situation of the courts was also difficult, as their budgets for office and trial space, investigation, and salaries of judges and other officials remained below levels in other parts of government. For capable attorneys, the financial compensation for judicial work could not compete with the potential rewards of private practice.34 Shortly after being named to preside over the Supreme Court of Serbia, Leposava Karamarković described the situation in an address to judges:
For decades in this country the principle of utilitarianism (svrsishodnost) dominated instead of the principle of legality, and it reached its shameful height during the previous regime. Legal pragmatism occupied the place of the legal system. In pursuing its goals, the oligarchy did not want its
