Transitional Justice Beyond EU Conditionality: Post-Accession Backsliding in Croatia from a Rational Institutionalist Perspective

The EU’s capacity to help war-affected countries deal with their violent legacies was tested in the Western Balkans, when EU for the first time made transitional justice (TJ) one of the political conditions for membership. Trying to avoid fast deadlock in this regard, EU operationalized its TJ condition exclusively in terms of “full cooperation with the ICTY”, hoping that its prosecution of those most responsible for war crimes would also foster reconciliation in the region. Nevertheless, such optimistic assumptions drastically shattered in 2013, when Croatia’s entry to EU revealed that the willingness of the governing elites to solve multiple unresolved TJ issues waned upon the expiry of EU conditionality, while the tendencies towards relativisation of war crimes and past criminal regimes reappeared. The progress in TJ therefore did not continue upon Croatia’s entry to EU, but stalled and even reversed. In explaining why the EU-induced progress in TJ fails to endure the termination of EU conditionality, this paper proposes a model of post-accession redistribution of power between main coalitions in domestic TJ arena – justice instrumentalists, justice resisters and justice true believers (typology proposed in Subotic 2014) – which operationalizes and temporally extends the rational institutionalist approach to Europeanisation. The hypothesized model argues that EU’s narrow, top-down, retributive TJ approach privileges a small group of central governments who were in the best position to win the “two-level game” and instrumentalize the TJ process in accordance with currently dominant incentives – external demands for TJ during the pre-accession and domestic opposition to TJ in the post-accession period. While their pre-accession instrumental compliance with EU demands could not be vetoed by justice resisters (i.e. right-wing and veteran associations) whose bargaining position was temporarily weakened by EU membership leverage, their post-accession non-compliance cannot be vetoed by justice true believers (i.e. liberal civil society) whose power is decisively crippled by the expiry of the EU leverage. Therefore, not only that the EU’s narrow TJ approach allowed resisters to survive and revive upon Croatia’s entry to EU, but it undermined already weak position of the civil society, leaving their demands for further progress in TJ to seem more like caprice instead of governments’ political and legal obligations. Combining single case study and process-tracing, the model is tried through the analysis of data published by international and Croatian human rights organizations, government institutions and media. Demonstrating that EU TJ conditionality not only failed to uproot dangerous denial of accountability for war crimes in the Western Balkans, but produced adverse effects, this study advances our understanding of EU’s peacebuilding capacity. Equating post-conflict transformation with governments’ cooperation with ICTY, EU allowed these countries to turn the EU’s main tool for inducing TJ progress – the prospect of membership – against its post-accession furthering. This issue is particularly important since the EU membership leverage does not expire only when a country joins EU, but it can vanish if a country stops believing of ever becoming an EU member, which the rise of Euroscepticism in the “Restern Balkans” warns about.