norms. So it expressed contempt for the law and for legal form, and recognized it only to the extent that it was useful.
That led to the worst possible consequence for the legal system of any country—the legal system collapsed, fell apart, and life went on in spite of it and outside it. And so a schizophrenic reality developed in which everybody was (declaratively) in favor of legality, while everybody knew that real life was in another category, in which interests are realized, and while the existing legal system simply postulated some idealistic and unattainable relationships.
The masters of manipulation brought fear into the courtroom, ordering up not only trials but sentences as well. Judges were reduced to minimal pay and a humiliating position, probably because it was believed that it is easier to direct and rule poor people without interference.
Few judges in the legal system managed to remain upright and oppose such methods, and when somebody did, and suffered because of it, and eventually lost their job, most other judges remained silent and acted as if it was not their problem. That indicates that some of the responsibility for their current state is borne by the judges themselves, who did not react when in the dissolution of Yugoslavia cities were destroyed, people were killed and shocking ethnic cleansing was carried out.
If more judges had resisted the influence and demands of the executive branch, the results might have been different.35
Even given the best of wills there existed considerable obstacles—tasks of extensive reform, replacement of personnel, and internal accounts of responsibility—before courts could take on the obligations of a credible and independent judiciary. Branislav Tapušković, president of the Society of Lawyers of Serbia, offered a pessimistic prognosis in 2001: “I am very familiar with the situation in the judiciary, I know how many people there are who have already violated many principles, and who do not deserve to be in the judiciary, but who is going to replace them? It takes at least a decade to make a good judge, and I simply cannot see how it is possible to get out of this vicious circle.”36 The challenge was further complicated by the uncertain political situation: reconstructing the judiciary depended not only on the extent of the damage done by the old regime, but also on the uncertain intentions of the new one.
An early illustration of institutional competition and confusion is provided by the law federal president Vojislav Koštunica proposed in 2001 to regulate the cooperation of the Yugoslav government with ICTY. The law was intended as an alternative to direct adoption of the ICTY statute, the course eventually taken; it would have guaranteed the involvement of domestic courts in actions against people indicted by ICTY, and provided greater guarantees of the rights of indicted suspects.37 Facing an unsuccessful vote, the government withdrew the law from parliament and adopted it instead as a decree. Milošević’s lawyers appealed to the Federal Constitutional Court for a ruling finding the decree unconstitutional, and on 28 June received a suspension of the decree pending a ruling. The republican government of Serbia acted quickly to circumvent judicial delay by adopting the ICTY statute, which requires suspects to be delivered to the tribunal, as domestic law.38 Milošević was immediately afterward transferred to ICTY, leading to a debate (which divided the governing parties) over the legality of the act. But the legality of the constitutional court’s action was also unclear.
Shortly after the protracted legal conflict, Omer Karabeg’s radio program Most featured an exchange on the topic between Dragor Hiber, chair of the judiciary committee of the Serbian parliament, and Slobodan Samardžić, a political scientist and advisor to Koštunica. Hiber contested the court’s action:
The session of the Federal Constitutional Court held on 28 June was called by the presiding judge of that court, or a person who represented himself as such, a judge of the court, Dr. Milutin Srdić, whose term on the court ended by law two weeks earlier. When that fact became public, Srdić said, well, because the court was in need he would stay in office a bit longer, but would go into retirement anyway to maintain legality. That day he established that his term of office had ended, and so the session was called, the quicker the better, by the oldest, that is the most senior, member of the court. So two things are possible.
The first is that the Federal Constitutional Court did not know who was or was not a member of the court, which means that it was not in a condition to apply the constitution to the question of its own composition. If it cannot do that, how can it apply the constitution to any other question. The other possibility is that the court knew, but nonetheless permitted its session to be called by a self-declared presiding judge. If that is the case, then it is no longer a constitutional court, but a group of citizens with suspicious intentions.39
Samardžić disagreed with Hiber’s dismissal of the court’s intervention, but nonetheless agreed that the credibility and legitimacy of judicial institutions were not clear. He argued:
To begin with, the fact is that from 5 October until now the constitutional court has not been reformed. That means that the political forces which govern this country have made a very sensitive omission. That has to be done as soon as possible, if we want to create a new legal system. The constitution is another matter. Serbia is stuck there, because in order to change its own constitution it has to wait for a new federal constitution, and that is not being created for reasons which are familiar to everybody.40
The issue whether the Federal Constitutional Court or the Serbian government acted legally is bound to remain controversial. Regardless of this specific issue, the incident demonstrates that the new authorities in Serbia faced a situation in which the legitimacy of legal institutions and even basic legal documents remained open to debate. This offered at best an unstable framework for extensive engagement on the part of judicial institutions.
The capacity for domestic prosecution was enhanced after 2000, when the last of the wartime regimes left power. Vladimir Vukčević became the first special prosecutor for war crimes in Serbia in 2003. Bosnia-Herzegovina’s War Crimes Chamber was established in December 2004 and began work in March 2005. While the Croatian parliament had made a declaration on the legitimacy of the state’s military efforts in 2000,41 in response to pressure from the European Union special war crimes chambers were designated and the first cases began to be referred to them in 2005.
Throughout the region credible domestic prosecution started slowly. Early prosecutions in Croatia had been widely perceived as being selective.42 With the establishment of special chambers major cases began to be tried on a larger scale by domestic legal institutions, with a shift away from a balance that favored prosecutions of Croatian Serbs for violations committed as members of rebellious paramilitary forces, and an increasing number of cases involving violations by Croat forces against civilians. The periodic OSCE report raised concern about systematic bias as late as 2006.43 But dramatic instances of impunity in Croatia, including the longstanding untouchable status of such former paramilitary commanders as Tomislav Merčep and Branimir Glavaš, began to be aggressively addressed following the accession of Ivo Josipović to the presidency in 2010.44 Nonetheless, concern remains that many cases that could be referred to the specialized war crimes chamber remain instead in the regular courts.
The special chamber for war crimes was established in Bosnia-Herzegovina in 2005, and 122 cases had begun to be heard by 2009.45 The number of cases hardly corresponds, and probably never can do so, to the number of people who could potentially be charged with offences. Some barriers to prosecution were imposed by basic political structures like the Dayton Peace Agreement, while there are also persistent issues of jurisdiction arising from the simultaneous operation of three different judicial systems, as well as from ongoing confusion as to whether the applicable law derives from the Criminal Code of Yugoslavia, which was in force at the time of the conflict, or from the Criminal Code of Bosnia-Herzegovina, which addresses issues of war crimes in greater detail but did not come into force until 2003.46
Serbia faces both a
