Transitional Justice Between the Individual and the State: Criminal Trials, Historical Record, Societal Responsibility

Abstract

The paper responds to Jelena Subotić’s claim that societal responsibility is a missing pillar in current transitional justice frames. The paper accepts that the criminal justice approach exemplified by the International Criminal Tribunal for the Former Yugoslavia (ICTY) cannot deliver societal accountability for past atrocities. But because of the connections between micro-, meso- and macro-levels in complex atrocity crimes, exploring individual guilt in an open trial process inevitably provides resources for examining societal responsibility in its diverse forms. The paper advances in four steps. First it extends Subotić’s account of societal responsibility, breaking it down into individual (micro-), corporate (meso-), and political and communal (macro-) dimensions of societal responsibility. Second, it sets out the role of the historical record in accounts of transitional justice, particularly in terms of truth and memory. Third, claims for the ICTY as a ‘court of historical record’ are presented. Fourth, the paper examines the trial of Radoslav Brđanin for evidence of corporate-societal responsibility using the example of the Serbian Orthodox Church. The detailed reading demonstrates corporate-societal responsibility of the Church through the actions of bishops, failure to stand against atrocity crimes, meaningful participation in support of atrocity policy, and in benefitting from atrocity crime. The paper finishes by looking forward to the possibility of translating legal resources into processes of societal reckoning.

Keywords: Transitional Justice, Societal Responsibility, ICTY, Law, Criminology