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Commissioner Mijatović: A visible setback in the process of dealing with the past in the region

Almost thirty years after the wars of the 1990s that led to the collapse of the former Yugoslavia, it is high time to achieve effective justice, reparations and truth for the victims, it is highlighted in the thematic report of the Council of Europe Commissioner for Human Rights Dunja Mijatović, entitled “Dealing with the Past for a Better Future – Achieving justice, peace and social cohesion
in the region of the former Yugoslavia.”

Mijatović points out that close to three decades after the wars that tore the region of the former Yugoslavia (the region) apart in the 1990s, time is pressing to achieve effective justice, reparations, and truth for the victims. Reconciliation and social cohesion remain elusive and even peace seems threatened.

“There is a visible setback in the process of dealing with the past, which coincides with a more extensive decline in the level of respect for human rights and the rule of law in several countries in the region,” Mijatović pointed out.

A decade after the first Issue Paper on this topic produced by the Office of the Council of Europe Commissioner for Human Rights, this current Issue Paper analyses the achievements and shortcomings of the processes to deal with the past in the region and analyses the factors that stand in the way of a more positive impact.

In the report, Mijatović recognizes several innovative practices, such as efforts to ensure criminal responsibility for war crimes and solving the issue of missing persons, then the role of civil society, which is crucial in supporting the process of dealing with the past through advocacy and innovative projects, and especially emphasizes the importance of dealing with war sexual violence and a gender-sensitive approach.

“International support is important, but shortcomings in the engagement of the international community have reduced their influence in this process,” Mijatović pointed out.

Regardless of progress, Mijatović says that the legacy of the past continues to linger in the region with many transitional justice processes at a standstill or unresolved.

“Almost three decades after the end of the wars, with victims, witnesses and suspects growing old and passing away and evidence less readily available, time is running out for the realization of justice through domestic prosecutions. Thousands of suspects have yet to be prosecuted. Notwithstanding this backlog, the deceleration of justice efforts continues, with national war crimes strategies remaining unimplemented,” warned the commissioner.

National prosecutors are not proactive and often only proceed with cases transferred from other countries, against low-level perpetrators, or against perpetrators who belong to the ‘other’ ethnic groups. The current climate of denial of war crimes and glorification of war criminals is not conducive to effective national accountability.

The protection of witnesses and amnesty laws remain ongoing challenges. One key impediment to justice is the minimal or non-existent judicial cooperation between certain countries, including their continued refusal to extradite their own nationals who continue to enjoy impunity, sometimes through holding dual nationality of countries of the region.

This has resulted in an increase of trials in absentia, the impact of which is limited in terms of securing justice given that the perpetrators continue to enjoy impunity.

Mijatović also warns that many civilian war victims in the region remain without access to effective and adequate reparations. None of the countries concerned have adopted comprehensive reparations programs in line with the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation.

Some compensation has been awarded through social benefit schemes; however, these are generally more favorable for veterans and through various requirements they exclude many civilian war victims. As a result, these benefits are perceived as selective and instead of recognizing and honoring the suffering of all victims equally, they feed divisive discourse about ‘our’ versus ‘other’ victims.