Mirroring transitional justice. Construction and impact of European Union ICTY-conditionality

Abstract The European Union (EU) developed a state-building strategy for the aspiring member states in the Western Balkans. Demanding full cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY), the EU made transitional justice part of the accession demands. Scholars have recently criticized the EU’s limited focus on retributive justice as opposed to restorative justice. This paper goes beyond such impact-orientated analyses by asking why the EU engaged with retributive transitional justice in the first place. The EU constructed ICTY-conditionality by mirroring its own post-Second World War experiences to the envisioned post-conflict trajectory of the Western Balkans. The EU therefore expected the court to contribute to reconciliation, democratization and the rule of law. Using Serbia as a case study, this article examines the conditionality’s context, specificities and discursive claims. Finally, it relates these findings to the agenda of a promising regional initiative prioritizing restorative justice (RECOM) and sheds new light on the impact of ICTY-conditionality on transitional justice in the Western Balkans.