Peacebuilding Compared in the former Yugoslavia: rethinking war, crime and regulation

Aleksandar Marsavelski

Aleksandar Marsavelski is an Assistant Professor at the Faculty of Law, University of Zagreb, Croatia.

Contact author: aleksandar.marsavelski@pravo.hr.

1. Introduction to Peacebuilding Compared

Peacebuilding Compared is probably one of the biggest projects in social sciences today. It is a 25-year project led by John Braithwaite, funded by the Australian Research Council since 2004, designed to follow all major wars around the world since the end of the Cold War. The Peacebuilding Compared codes more than 700 variables for each of the 80 wars covered by the project until 2030. The most impressive aspect of this project is, however, neither its length nor the amount of data it collects. What it seeks to discover is one of the most pressing needs of humanity – sustainable peace – and its primary research method involves fieldwork with precious human contact. More than 5,000 people around the world have been interviewed by John Braithwaite with his project members and collaborators as part of the Peacebuilding Compared.[1]
In the former Yugoslavia, we conducted a total of 281 interviews between 2013 and 2017. Almost all of the interviews have been conducted by two interviewers to improve data validity (Bechhofer, Elliott & McCrone, 1984; Braithwaite, 1985). Among the interviewees are nine former presidents or prime ministers of Yugoslavia or its successor states or sub-states, victims and their NGO representatives, convicted and acquitted defendants, attorneys, international and domestic prosecutors, judges, police, trial witnesses and other actors who participated in the process that we consider the world’s peak in transitional justice (Marsavelski & Braithwaite, 2020).

2. Fragments of previous impact of Braithwaite’s work in the region

Before we started the Peacebuilding Compared fieldwork in the former Yugoslavia, John Braithwaite’s work on reintegrative shaming and restorative justice was known among the leading local victimologists (e.g. Nikolić-Ristanović, 2003) and criminologists (e.g. Ignjatović, 2009). In 2001, the leading victimological journal in the region, Temida, published two of his papers in the Serbian language (Braithwaite, 2001; Braithwaite & Daly, 2001). One is a translation of the paper Braithwaite wrote with Kathleen Daly on Masculinities, violence and communitarian control (Braithwaite & Daly, 1994), and the other one is his translated paper on restorative and responsive regulation of world peace, which would be published as a chapter in his book Restorative justice and responsive regulation (Braithwaite, 2002). In the latter paper, he characterised the disintegration of Yugoslavia as an example of ‘ethnic political-military elites filling a power vacuum … by offering protection from other ethnic groups, thereby furthering the disintegration’ (Braithwaite, 2001: 8; 2002: 181).
The co-founder and former president of the World Society of Victimology, Zvonimir Paul Šeparović, who was also the founder of the Yugoslav and Croatian Society of Victimology (Turković et al., 2009: XI-XII), was the one who introduced me to John Braithwaite in 2013. That year the new Criminal Code of Croatia entered into force, and I was a member of the Law Commission that drafted it. I remember Braithwaite’s work was cited in one of the papers (Turković, 2004: 999) decisive for developing the new criminal policy, and in many aspects this Criminal Code is an example of responsive and restorative regulation. The Code was drafted in a process of unparalleled legislative transparency in Croatia with the involvement of all relevant actors in the field, and it introduced a number of restorative-type alternative sanctions allowing offenders to avoid prison sentences and reintegrate into the society by fulfilling special obligations or community work imposed by courts, while at the same time allowing the courts to meet the victims’ needs. If we put specific areas of this criminal law reform in the context of broader regulatory reforms in Croatia just before the accession to the European Union in 2013, we can discover many positive effects. For example, the main research on the decline of reported corporate environmental crime in Croatia (which dropped by 82 per cent in the period between 2011 and 2016) suggests that the variety of introduced responses corresponding to those in the Braithwaite’s regulatory pyramid was the main reason why this regulatory framework was such a success (Marsavelski, 2017). Braithwaite’s concepts sometimes directly and sometimes indirectly impacted this law reform, which was part of the justice reform needed for the Croatian accession to the EU.

3. Peacebuilding Compared in the former Yugoslavia

The EU played a key role in the transitional justice processes in Croatia, which was the first country in which we did our interviews. In many ways, Croatia is a success story of networked governance in a developing economy (Braithwaite, 2006) because it had a vibrant NGO sector that helped in speeding up the EU’s positive impact to introduce standards of developed countries in the period of transition.
Other countries in which we did our Peacebuilding Compared fieldwork – Serbia, Kosovo and Bosnia-Herzegovina – are still far from completing their transition. In these three countries, at a certain point of time, peace was achieved with decisive international intervention – by US support to the use of force in the Operation Storm in Croatia, followed by NATO’s and UNPROFOR’s Operation Deliberate Force in Bosnia-Herzegovina and later by NATO’s bombing of Serbia. But is such peace sustainable? While the use of force solved ‘the problem’ in Croatia, the military operations left Bosnia-Herzegovina, Serbia and Kosovo with serious problems to deal with (refugees, war criminals, victims, etc.), and a constitutional framework that put them in a political stalemate. On the example of Kosovo’s non-violent resistance during the wars in Croatia and Bosnia-Herzegovina, the Peacebuilding Compared research suggests far better long-term results of non-violent campaigns in conflict resolution (Marsavelski, Sheremeti & Braithwaite, 2018). If there was stronger international support for non-violent solutions, countries of the former Yugoslavia would have avoided the war, perhaps with a more sustainable peace than the current one – still so burdened with nationalistic tensions.
As noted before, the human contact dimension of the Peacebuilding Compared research has been of utmost importance, but not just for the research itself. During our conversations with the interviewees, we could see that some of the restorative justice concepts that John introduced as questions, such as offering a model of a reconciliation process between offenders and their victims as an alternative to the criminal trials, often left our interviewees surprised. For some, it even amounted to a kind of catharsis – including for myself. It seems that the strong anti-impunity campaign in war crimes cases shaped these societies in a way that they forgot to think about the alternatives. Despite the strong victimological school of thought in the former Yugoslavia, these concepts were replaced with a far less efficient and far more deficient retributive criminal justice administration of war crimes cases. In addition to this, the disintegration of Yugoslavia resulted in a disintegration of the Yugoslav academia, especially in the area of victim studies. For example, the Croatian Society of Victimology became a far-right NGO focused only on acknowledging the status of ethnic Croat victims (Croatian war veterans as victims of war, Croatian victims of communism and Croatian civilian victims in the war), while entirely neglecting the victims of the Croatian armed forces. Perhaps our fieldwork for the Peacebuilding Compared impacted the transitional justice actors and made them think more about the victims’ needs in their work. For example, in war crimes trial judgments in Bosnia-Herzegovina now there are instances of victim compensation orders, which was unprecedented before (Meškić, 2017).
Working on Peacebuilding Compared with John changed the way I think about war, crime and regulation. I remember the first email discussions John and I had before our first fieldwork took place. While I was seeking solutions on how to improve international criminal justice to send to prison as many war criminals as possible, John was focused on how to make alternative restorative justice mechanisms work to meet as many victims’ needs as possible. I was very sceptical about whether these mechanisms could contribute to peace and reconciliation without convicting the perpetrators first. Not only did I realise I was wrong – as I underwent a catharsis myself – but his visions of restorative justice even inspired me as an academic adviser in the Legal Clinic of the Zagreb Law Faculty to initiate the Law on the rights of victims of sexual violence during the war in Croatia. In cooperation with a local NGO ‘Sunčica’, we collected transcripts of interviews from fourteen women and one man who were raped in the war. Based on these testimonies we proposed a compensation scheme for the victims, as well as access to a variety of other services such as psychosocial assistance, legal aid, special healthcare treatment and health insurance. On behalf of the Legal Clinic, we wrote a draft of this Law and submitted it as a legislative initiative to the Croatian Government, which founded a Law Commission that revised our draft and the Law was finally passed in 2015. As of August 2019, 163 victims of sexual violence in the war received status recognition along with the accompanying rights (Opačić, 2019), regardless of whether the perpetrators of these crimes are known or held accountable.

4. Conclusion: the bright future for Braithwaite’s ideas

These diverse areas of Braithwaite’s impact are just small steps in comparison with his likely impact on this region in the future. In my view, the reason why many of his theoretical concepts have largely been undiscovered in this region, apart from the instances analysed in this article, has been partially a language obstacle. It is difficult to translate ‘responsive regulation’,[2] ‘reintegrative shaming’[3] and even ‘Peacebuilding Compared’ in this region traditionally impacted by social science coming from German, French and Italian literature. Braithwaite’s enormous global impact in social science has yet to reshape the practices in the countries of the former Yugoslavia. I am confident that implementing many of his ideas can speed up the remaining transitional processes[4] and reintegrate the remaining countries, of course in the European Union. Everyone who has read John’s work and has gotten to know him in person realise that he is one of those people who make the world a better place.

Notes

[1] See the official project’s website: regnet.anu.edu.au/research/research-projects/details/534/peacebuilding-compared-project. Further description, materials and publications can be found on John Braithwaite’s personal website: johnbraithwaite.com/peacebuilding (last accessed 14 January 2020).

[2] While ‘regulation’ is an internationally used word of Latin origin appearing in similar forms across languages, it is harder to find an appropriate translation of the term ‘responsive’. In doing so, one can seek translations of the responsive regulation theory in other Slavic languages. It appears that no Slavic language has an accurate translation of that word. I found the Russian term ‘Чуткое регулирование’ (sensitive regulation), and in Polish there are a variety of translations ‘regulacja dostosowana/interaktywna/responsywna’ (adaptive/interactive/responsive regulation); in Czech or Slovak there is something like ‘reactive regulation’. In my view, the closest translation to Bosnian, Croatian, Montenegrin and Serbian would be ‘odgovarajuća regulacija’.

[3] Again ‘reintegrative’ is an internationally accepted word of Latin origin, but ‘shaming’, locally known as ‘posramljivanje’ or ‘postiđivanje’, is sometimes confused with ‘defamation’ (‘sramoćenje’).

[4] For combating political corruption in North Macedonia with responsive regulation, see Маршавелски (2019), and for restorative justice in Bosnia-Herzegovina, see Begović Bektašević (2017).

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