A talk with Mr. Michael Davenport, Head of the Delegation of the European Union to the Republic of Serbia, published in the bulletin through ACCESSION towards JUSTICE.

What is the EU’s standpoint with regard to the issue of resolving the legacy of armed conflicts and systematic human rights violations – which encompasses the official recognition and acknowledgment of responsibility of states for atrocities committed in the past, the prosecution of responsible individuals, material compensation of damages and support to the victims, institutional reform and other mechanisms for truth-seeking and truth-telling about the past – for a state which strives to become an EU member? How important is resolving open issues with regard to the legacy of armed conflicts and systematic human rights violations for the EU as an entity and for member states, as well, bearing i mind their historical experiences and internal relations?

Transitional justice in the Western Balkans has been crucial in the EU integration/accession process.

The European Union was created with the motto: “never again”, which laid the first post war foundations of European integration on which we have been building ever since. Twenty years ago, a key element was added: the Copenhagen Criteria which are now enshrined in the Treaty. The Copenhagen Criteria clearly set out the rules of the game, firmly anchoring conditionality in the accession process.
With the Copenhagen criteria, key elements that later became chapters 23 (judiciary and fundamental rights) and 24 (justice, freedom and security) were formally included in the accession process. The use of opening and closing benchmarks in the negotiations of chapter 23 has proved to be a powerful tool in pushing reforms in this area within the enlargement process and throughout the whole pre-accession period.

The European Union develops its relations with Western Balkan countries within a special framework known as the Stabilisation and Association Process (SAP). SAP conditionality includes co-operation with the International Criminal Tribunal for the Former Yugoslavia (ICTY) and regional cooperation/good neighbourly relations.

These conditions are also an integral part of the Stabilisation and Association Agreements (SAAs)

This conditionality translates into effective Transitional Justice in several ways.

First and foremost there has been an impact through bringing war criminals to justice. Cooperation with ICTY applies as a condition to all countries.

Furthermore, local war crimes must also be properly investigated and prosecuted.

Processing war crimes cases in the Western Balkans is a key regional priority. Truth and reconciliation in the region can be consolidated only by guaranteeing justice, for the victims, their families and more broadly for all affected communities. In the absence of extradition agreements for war criminals, cooperation between prosecutors is crucial and we have seen significant improvements in this respect

From a wider perspective, I should underline the need for judicial systems to be professional and transparent. The Commission has a new approach to the hard issues of organised crime and corruption and judicial reform. They are tackled early in the accession process. In addition, countries have to draw up action plans which form the basis for opening negotiations on these issues. The objective is that countries should demonstrate a solid track record of implementation.

But transitional justice is not only a justice matter; it is also about knowing the past and telling the truth in the wide sense. And this is where NGOs play an invaluable role in documenting human rights violations for this and future generations and in assisting victims and promoting multi-ethnicity.

Finally there are other crucial issues which must be addressed in striving for genuine transitional justice and reconciliation: missing persons and refugee returns.

On missing persons more needs to be done across the region to bring closure to the suffering of the tens of thousands of families with missing relatives.

This depends fundamentally on stepping up regional co-operation in this area. Meeting the needs of refugees and displaced persons is a key step toward reconciliation between countries in the region. The renewed commitment to the Sarajevo Process (which aims at finding durable solutions for the hundreds of thousands of refugees and displaced persons by all participating states) is very welcome. It is a clear sign that the region wishes to leave the past behind, without forgetting it, and move on towards the future – and I would say: “towards their European future” – as good neighbours.

What is the significance of the negotiation process with Serbia for the process of reconciliation alone and for establishing responsibility with regard to the armed conflicts in the former Yugoslavia? Is the perspective of the negotiations such that it may contribute to the deepening and spreading of initiatives and processes aimed at the dealing with the past?

My previous answer makes clear how significant the negotiation process can be for Serbia in fostering reconciliation. Let me stress that, while it is important to face up to the past, it is even more important to build for the future. Reconciliation and shared regional truth are ultimate goals, but in the meanwhile we should also pursue realistic objectives, such as achieving peaceful coexistence and dialogue between different interpretations of mutually acknowledged events. Our final goal is to assist countries in the region to come to terms with difficult legacies of the past and to enable them to construct their future together, in Europe. 

In this respect, on bilateral issues, there have been great improvements. Serbian President Tomislav Nikolic and Croatian President Ivo Josipovic have turned a new page in relations between their countries. Ties between Serbia and Bosnia and Herzegovina have normalised to a considerable extent and the historic agreement reached by Belgrade and Pristina is further proof of the power of the European Union perspective and its role in healing history’s deep scars.

Cross border cooperation programmes between Western Balkan countries should also be used more fruitfully. Regional cooperation is a central element in our efforts to drive forward reform processes in the Western Balkans and help the region to achieve economic prosperity and political stability.

Is there a possibility for the EU, due to certain political and economical issues and serious reform that Serbia is facing, to put out of focus during the negotiations issues such as rights of victims, prosecution of perpetrators and institutional reform?

I would say it is quite the contrary. Processing of War Crimes cases is important for EU integration for many reasons, including in particular strengthening of the Rule of Law and the judicial cooperation in criminal matters, and ensuring Protection of Human and Fundamental Rights. These areas are covered by two specific chapters in the EU accession negotiations, and form a significant part of the EU’s dialogue with regional jurisdictions.

As the ICTY approaches the end of its mandate, national and local prosecutors and judges become even more key. They have a vital role in bringing war criminals to justice, not least with the aim of supporting the reconciliation process and bringing sustainable peace and security in the region.

The recommendations in the Screening Report for Chapter 23 relating to war crimes contain only recommendations relating to war crimes trials. Do you think that the prosecution of individuals responsible for war crimes is sufficient for accepting and dealing with the legacy of armed conflicts and systematic human rights violations within a society and the establishing of good-neighbors relations in the region?

Justice has to do its job. However, civil society can play perhaps the main role in moving from transitional justice to reconciliation. I hope that their efforts combined with those of government and backed by continuous support and engagement by the European Union, will allow countries in the region to come to terms with their past and construct their future, anchored in the European Union.

Despite the fact that relevant regulations do exist, the Screening Report does not encompass the recommendations for material compensation to victims of war crimes and other serious violations of human rights committed during the 1990’s and other types of reparation. Is it possible that, despite the fact that they have not been explicitly recommended in the Screening Report, they still can be subject to harmonization and in which manner?

Victim compensation is a wider issue when it comes to the Serbian judicial system and it is duly outlined in the Progress Report. On the part related to access to justice we specifically mention that the system of awarding compensation to victims of crimes through criminal or civil proceedings is not functional. When it comes to war crimes, the PR explicitly states that few victims of war crimes have access to effective compensation under the current legal framework.