Although more than 20 years have past since the end of the war in Bosnia and Herzegovina (BiH) to date, there is no societal consensus on either the violence that took place during the war 1992 – 1995, or the future of the country. First elections after the Dayton Peace Agreement (DPA) were held already in 1996. Considering the fact that the peace agreement did not contain any restrictions on the eligibility of nationalist parties who actively participated in the war, and the fact that the Election law was shaped for exclusive ethno-nationalistic division of power, the very same nationalistic political elites won. This meant that the political will for building peace, let alone a sustainable one, did not exist, or existed only to the extent where the “peace” was built within the realms of ethno-national politics driven by the need for self-preservation.

 

It is within the parameters of the already set political, economic, ethnic, territorial and other divisions[1] that many activities within the domain of transitional justice were implemented in BiH.[2] Even though transitional justice was not known as a concept in BiH immediately after the war it was nevertheless partially introduced through activities such as initiatives aiming at establishment of truth commission or war crime trials. Many of the activities that were initiated were met with suspicion, unfamiliarity and a certain level of discomfort. However after a while (some 10 years after the war) the concept has become adopted (and widely used) by peace activists and non-governmental organizations.

 

Looking back one could say that transitional justice in BiH, as part of the peace-building process, was somewhat of an experiment, usually brought in from the outside and on an ad hoc basis. Some of these attempts failed, some were more successful than the others, some more alluring for the public and some less, some passed unnoticed, other were fiercely fought against. The international donors and their local partners drove some of them; others were driven by grass root civil society, primarily victim associations. What they all had in common was the absence of a decisive and unfaltering acknowledgment of responsibility to deal with the past by the state of Bosnia and Herzegovina. The activities were not sufficiently informed by the BiH context and they all lacked a thorough gender analysis of the conflict, of the peace agreement, of the political economy, and of the process that came as part of the transition from war to peace and from one political system into another.

The Bosnian “experiment” must also be put in the context of how transitional justice has evolved over time. The concept as such became widely recognized in the aftermaths of the political changes in Latin America and Eastern Europe during late 1980s and early 1990s, primarily as a driver for transition from authoritarian regimes to liberal democracies, introducing concepts such as rule of law and procedural democracies. It is only lately that this concept started to be used as an integral part of postwar peace-building efforts.[3]

Commonly understood TJ is a set of judicial and non-judicial mechanisms that initiate the process of facing the past in societies coming to terms with legacy of massive human rights violations. The mechanisms that are used span from individual prosecutions at both national and international levels; various forms of truth-telling initiatives such as truth commissions and inquiry bodies; reparations programmes that can include financial compensations, return of property or reinstatement to job positions, as well as symbolic types of reparations such as public apologies, renaming of streets and memorialization activities. Transitional justice mechanisms also include institutional reforms such as vetting, adoption of new laws or reformation of the existing ones, abolishment of organizations or institutions as well as establishment of new ones.[4]

The Bosnian and Herzegovinian Transitional Justice Experiment

Judicial and non-judicial mechanism – the quest for truth

In Bosnia and Herzegovina some of the earliest activities within the domain of transitional justice took place already during the war, although at that time the concept was unfamiliar for the Bosnian society. Early activities were in particular related to question of prosecution of war crimes as the International Criminal Tribunal for Former Yugoslavia (ICTY) was formed already in 1993 following adoption of the resolution 827 by the UN Security Council. Other activities were also being implemented during the war, primarily in the cities of Zenica and Tuzla where larger numbers of internally displaced people were seeking refuge. Local groups, primarily women groups, organized to provide humanitarian aid and later on psycho-social support to the civilian victims of war and more specifically to survivors of sexual violence.

When it comes to criminal justice and truth-telling the relationship between the two in Bosnia and Herzegovina has been somewhat constrained.  Immediately after the war (and to a certain extent even during the war) civil society organizations, primarily the associations of survivors insisted on establishing the truth about the committed crimes, with the main aim of having the perpetrators arrested, prosecuted, and convicted. Apart from that there was little understanding or demands for truth-telling[5] outside the format of formal justice institutions. Justice was primarily understood in relation to the activities of judicial institutions and adjudication of war crimes.

The war crime trials were conducted even during the war. However, many of the war crime cases in courts in Bosnia and Herzegovina conducted during the war and immediately after the war were marked with allegations of the arbitrary arrests and unfair trials.[6] During the war, upon the pressure exerted by peace activists across the globe, the ICTY was formed in The Hague, Netherlands, by the United Nations. The ICTY got the mandate to try the individuals most responsible for mass atrocities committed during the wars in the former Yugoslavia, in period 1991 – 2001. Nevertheless, soon after the war in BiH, it became clear that certain cases would have to be tried in Bosnia and Herzegovina both so that the justice and truth would not remain distant from the society, and due to the fact that the ICTY would not be able to handle huge number of cases. However, before allowing for the war crime trials to be tried in Bosnia and Herzegovina, measures were made to secure the fairness of such trials. Under the supervision of the ICTY (for the first several years) the cases were reviewed before sent to Bosnia for prosecution.

The war crimes prosecutions in BiH have been taking place since 2005. First they were tried only at the War Crime Section of the Court of BiH,[7] with participation of international judges and prosecutors, in addition to national judges and prosecutors. With time the international judges’ and prosecutors’ mandates expired and War Crime Section of the Court of BiH and Prosecutor’s Office of BiH transformed from hybrid institutions to national ones. Given that in the late 2000s the number of cases to be tried as war crimes was estimated in thousands the most complex and top priority war crimes cases were assigned for prosecution at the Court of BiH while the rest is distributed between judiciaries of the entities and of District Brčko.[8]

With respect to war crime trials significant achievements have been made, both on the international and domestic levels. Compared to other post-war countries and situations, this issue was approached systematically and with significant dedication reflected in both human and financial resources. However, due to the massiveness of the violations, not all war criminals will be prosecuted. Also, in the ethnically divided society of BiH the war crime trials are contested by the political elites, leading to a situation where adjudicated cases, proven beyond reasonable doubt, are being contested in the public political narratives and those that are found guilty for war crimes are celebrated as heroes in their ethnic groups. To this the disproportion between adequate sentence and the gravity of the crimes committed must be added. The sentences have been perceived to be low. Adding to that is the poor socioeconomic status many victims find themselves in.[9] This can be contrasted to the situation of many of the accused perpetrators who get paid defense lawyers, and whose families get financial aid from entity institutions or private supporters. After serving the sentences (usually 2/3 of the sentence as an unofficial rule established by ICTY) the war criminals return to the society as fully rehabilitated citizens and are able to participate in political life (run for elections).  Following that, the sense of justice with the surviving victims and families of victims, as well as the larger society, is lost and the ability of formal justice institutions to deliver justice is questioned.

Parallel to criminal justice mechanisms being established (as described above) BiH saw early on initiatives taking form with respect to non-judicial truth-telling mechanisms. The introduction of non-judiciary truth-telling mechanism came almost exclusively from international organizations and donors through a top-down, copy-past approach. First two attempts to establish a truth and reconciliation commission were initiated by the United States Institute for Peace (USIP). Whilst the first initiative, founded in 1997, was focused on civil society, linking various actors together, the second one in 2005 turned its focus to political parties and members of the parliament. The 1997 initiative drafted a Law on Truth and Reconciliation Commission, but the draft was never adopted, and has by now been forgotten. The second initiative made small amendments to the initial draft Law but never came out with other tangible results. Both initiatives lacked broad public support, and were mainly perceived as “elite” or “private” initiatives.[10]

The biggest criticism towards the initiatives came from victim associations who were concerned over the lack of transparency (there were no broad consultations with the public on issues such as what would be the mandate of the Commission, who would be the members, what authority would they have, how would the relationship between the Commission and the judiciary look like etc.). The second initiative raised additional concerns that the focus on political parties and members of the parliament isolated the civil society from the initiative and that the negotiations about the Commission were conducted behind closed doors. The biggest fear raised by victim associations was that the work of the Commission would undermine the work of the judiciary in relation to prosecution of war crimes. In this sense the South African model with amnesties was frequently used as something that under no circumstance should be repeated in Bosnia and Herzegovina (the fear for the “South African model” was also partially based on lack of understanding of the model in question).[11]

A more serious approach to establishment of an inquiry body came as a result of the decision from the Human Rights Chamber. In 2003 the Commission for Investigation of the Events in and around Srebrenica between 10 and 19 July 1995 (Srebrenica Commission) was formed as a temporary body to undertake investigation and establish the truth about what happened in and around Srebrenica during these 9 days. The Srebrenica Commission was established by a decision taken by the government of Republika Srpska (RS) after Office of the High Representative (OHR) applied pressure on the RS politicians to implement the Decision of the Human Rights Chamber in the case of Selimovic and others vs. Republika Srpska.[12] The findings of the Srebrenica Commission were in many respects historical in that a formal government body established facts about the killings, the missing persons, mass graves and all of the events that led to the Srebrenica genocide.[13] However, the work of the Commission, as well as the findings themselves, was deeply politicized by the ruling elite and its effect on the public opinion was minimal. To date the negation of the genocide taking place in Srebrenica and surroundings is still part of the mainstream discourse in Republika Srpska.

There have been other attempts to set up commissions or bodies of inquire, such as The State Commission for Investigating the Truth Regarding the Sufferings of the Serbs, Croats, Bosniacs, Jews and others in Sarajevo in the period between 1992 and 1995 (2006) or locally established The Truth and Reconciliation Commission of the Municipal Assembly of Bijeljina (2008).  While the first one never even started to work properly the latter came out with one interim report that was never adopted. Both attempts were followed by controversies related to the transparency of their work, unclear mandates and the lack of transparency in the selection of the members.[14] Most importantly their work was driven by ethno-national agendas rather than the desire to establish the facts over the events it was set to investigate. Furthermore, the establishment of these commissions did not came about as a result of public recognition that such an approach was adequate and needed, and there were no specific set of ideas as to how the results of their work would be used.

Civil society organizations from Bosnia and Herzegovina have also during the years been part of various regional initiatives. One that attracted most attention was RECOM – a regional commission for the establishment of facts about war crimes and other serious violations of human rights committed in the former Yugoslavia from January 1, 1991 until December 31, 2001.[15] The process for establishment of the RECOM was initiated in 2006 by Humanitarian Law Center from Serbia, the Research and Documentation Center from BiH, and Documenta from Croatia. The Coalition for RECOM (gathering a variety of civil society organizations from former republics of Yugoslavia) has organized numerous consultations and roundtables with civil society, including human rights organizations, victims, families of victims and missing persons, refugees, veterans, inmates, lawyers, artists, writers, journalists and other prominent individuals. The outcome of these consultations provided the basis for the Draft Statute of RECOM and the Initiative for establishment of RECOM launched a campaign for collecting signatures in support to the establishment. By the end of 2014, more than 580,000 people from all over former Yugoslavia supported the initiative.[16] To this date the commission has not been set up yet.

Apart from the abovementioned initiatives, civil society organizations have also individually or in collaboration with each other engaged in various forms of truth-telling initiatives through which they have attempted to provide alternative platforms for survivors of war crimes to speak about their experiences. Some organizations have engaged in documentation of narratives of the experiences of the survivors as a way of nurturing a culture of remembrance. Some of them have very actively engaged in memorialization activities by raising memorials, organizing collective burials and visits to memorials and known places were crimes were committed (such as concentration camps). Many victim associations come togather in commemorative activites on days such as the international day of missing persons. Victim associations also continously organize discussions, conferences, round tables, and various protests and sit-ins as both a way of remembering and applying pressure on political institutions and politicians to provide solutions for the many problems they face.

As stated above the attempts to create formal bodies of inquire, including truth commissions (apart from RECOM) have all lacked proper consultative approaches that could generate popular support and understanding for these initiatives. Furthermore, these attempts were not sufficiently linked to other parts of transitional justice such as reparations, institutional reforms or even the judicial system. The establishment and work of these truth-telling initiatives was also marked with unclear procedures – who was forming the body (was it locally driven by CSOs/government, was it driven by the international community), why was it being formed, what would be the mandate of such a body etc. – as well as high levels of political pressure. In some of the local initiatives the initiators came from the civil society. In cases where the international community and/or civil society were the initiators there was a lack of state accountability, while in the cases where government authorities were behind the initiative the civil society was insufficiently represented. Most importantly, the crucial aspect related to the inclusion of the victims, was insufficiently present in any of the approaches.

From a gender perspective, the approach to truth-telling initiative in Bosnia and Herzegovina has at the best been gender blind. If considered that truth telling activities offer mechanisms for public acknowledgement of the violations that took place, and that they provide a platform for the survivors to testify, then it is pivotal to ensure that the narrative about the violations that took place is an inclusive one, and that it covers the experiences of both women and men. The challenge is to design a truth telling mechanism that takes into consideration existing power structures, gender inequalities and root causes of gendered violence. In the activities that were implemented in Bosnia, the experiences of women have been largely silenced – unless they were focused on rape. The most prominent understanding of the gender dimension in the Bosnian society and within the civil society is in relation to sexual violence while gendered experiences of other types of violations that took place in BiH, such as forced detention or displacement, remain unknown.

The traditional understanding of truth commissions or other types of investigative bodies within the concept of TJ is that their mandate is limited to certain events and that their focus is on “severe and widespread violations, usually those involving violations of bodily integrity”.[17] As valuable as this approach is with respect to determining the facts surrounding specific events it lacks the necessary tools that countries such as BiH need. It lacks the tools to look into the broader context in which countries are thrown into war, and the processes that enfold in the postwar period as a direct result of the militarization of the society. Without the analysis of the processes that allowed for the destruction of the entire BiH societal fabric the facts determined by such a mechanism remain only partial and insufficient for the overall peace building agenda. Instead, the war is treated as an isolated event that hasn’t anything to do with either the processes taking place prior to the war, or the processes that enfold after the war.

An attempt has been made to introduce a more holistic understanding of the events that occurred. Women’s International League for Peace and Freedom facilitated a process in Bosnia and Herzegovina during the fall of 2015 during which a number of local women organizations met to discuss how a gender sensitive reparations programme for BiH would look like. The outcome of these discussions is definition of 13 different harms grounded in the experiences of Bosnian women and men. One of the harms defined is “forced militarization of the society”. The definition of this harm, as offered by the group includes forced ethnicization of society, destruction and plundering of social, economic, and ecological systems and resources, as well as of political organisations, distortion of secular social principles, introduction of misogyny, chauvinism, homophobia, nationalism, racism, militarism and fascism into everyday life, removal of mechanisms for peaceful resolution of social conflicts, and arming and mobilising individuals and groups with the aim of bringing the society to a state of war. [18] The harm defined in such a way, focusing on society (societal harm) has a potential to be the missing link between specific events and broad processes.

Repairing the harms and beyond

According to the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law^[19] reparations should include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

BiH never dealt with the issue of reparations in a systematic and holistic manner, or had a serious process of defining the harms and human rights violations that took place during the war. Following that, it has been impossible to identify full range of potential beneficiaries or to define adequate reparative measures as response to those violations and harms. Instead, the right to reparations[20] has been handled through a set of detached processes targeting certain collectives of victims with “one-size-fits-all” approach.

The most dominant form of reparations in BiH is compensation. The victims that are currently recognized in the BiH legislation, and thus eligible to compensations and other forms of benefits, are “persons that have suffered at least 60% bodily damage[21]and this requirement is similar in both entities and District Brcko”. [22] An exception to 60% bodily damage is made for the survivors of sexual violence and rape in Federation of BiH and District Brcko. They are considered to be a special category and therefore do not need to prove bodily damage (this is not the case in Republika Srpska as victims of sexual abuse or rape are not recognized as a separate category in that entity). Similar situation is with families of missing persons who are recognized in accordance with their relations to missing persons (in accordance with the BiH Law on Missing Persons).^[23] Other victim collectives such as persons imprisoned in camps (victims of forced detention), if not able to prove 60% of bodily damage, are not encompassed by any of the laws and are thus not entitled to any of the rights.

Those that do live up to the criteria described above are entitle to monthly payments (usually referred to as “pensions”) which is the closest to compensations that BiH gets, but are also according to the laws entitled to other rights, such as compensation for care and help by another person, orthopaedic compensation, vocational training, priority in employment and housing, psychological and legal aid and so forth.[24] It is important to underline that even thought the laws prescribe these additional rights, rarely any are being implemented, and rarely anyone has access to them.

Families of missing persons have their own separate law through which they are entitled to compensations but do not actually receive them as the law is only partially implemented. The Law stipulates establishment of a Missing Persons Fund through which compensations should be paid out. However, the Fund was never established, and one of the reasons behind that is the lack of political agreement as to how that Fund would be financed.

The segmented approach to reparations such as this one does not ensure meaningful and effective reparations. This particular approach in BiH has resulted in both vertical and horizontal discrimination. For example, a survivor of sexual violence living in Federation of BiH has different entitlements and easier access to the benefits than a survivor living in Republika Srpska; and a former camp detainee who cannot prove 60% bodily damage compared to those that can is completely left out of the system. The whole mechanism is poorly thought through and rests on a complex and highly conditioned social welfare benefits. The placement of these limited reparative measures within the scope of the social welfare, combined with economic, social and political instability of the post-war Bosnia and Herzegovina, puts the measures continuously under threat of being cut, exacerbating the vulnerable position the survivors already find themselves in.

The positive aspects of the current situation are limited, but yet there are some. For example BiH is one of the first (if not the first) country that has granted a special status to the survivors of sexual violence. This special status allows for the survivors of sexual violence (men and women) to be recognized as civilian victims of war without proving the 60% bodily damage. This change in law came in 2006 as a result of a campaign driven by the civil society organizations, primarily those organizations that worked with the survivors of these crimes. Also through the provision of this law some of the civilian victims of war have been able to have health insurance, or resolve their housing issue – as part of the benefits directly tied to their status of civilian victims of war. But these measures are not implemented systematically, nor are they available across Bosnia and Herzegovina. Additionally this approach puts the right to reparations due to massive human rights violations in the context of social welfare. Conceptually, social welfare and the right to reparations are two different things. Every country is obliged to ensure social protection to socially vulnerable citizens, independent of whether they’ve gone through periods of violence or not, aiming at fighting poverty, ensuring basic income to somebody who cannot earn a livelihood for different reasons and so forth. On the other hand, the international law requires the states to ensure reparations in situations of serious human rights violations and violations of international humanitarian law. The purpose of reparations is to ensure satisfaction for the harms suffered independent of the social status of the person who suffered the crime, while social welfare is a type of assistance for disadvantaged groups in society.

Another form of reparation that exists in BiH is restitution. This is also the only form of reparations stipulated by the Dayton Peace Agreement in its Annex VII (Agreement on Refugees and Displaced Persons). Annex VII foresees return and reconstruction of property, including financial compensation for damaged or destroyed property. It also introduces an obligation for all authorities to create the necessary conditions for the implementation of this Annex. The necessary conditions are, among other things, freedom of movement and security, resolving the issues of missing persons, abolishment of laws that might discriminate against a person on account of their ethnic origin, religious belief, or political opinion.[25] However, even if the statistics shows that more than 1 million people have returned to Bosnia and Herzegovina[26] these numbers have to be put in a context of sustainable return. If the return is measured in number of returned properties we might end up with a false positive picture about the return, as is the case in BiH. It only takes traveling through BiH to see that many of those houses, even if reconstructed, stand empty while their owners live (most often) abroad.

Even if the return was stipulated by the DPA it was to begin with a very slow process. First and foremost the security situation was not at a satisfactory level; the reform processes within the security forces and the police, as well as within the judiciary, were not completed; the speed with which war criminals were being prosecuted was not acceptable and many alleged perpetrators were not just walking freely but some of them also held political positions or were civil servants; and discriminatory laws were still in effect. It was only when the process of certification of police and reappointment of judges and prosecutors started in 1999 and 2002 respectively, along with adoption of Property Law Implementation Plan in 2002 (PLIP) [27] that a proper environment for return was created. In addition, the High Representative had to use Bonn powers[28] in order to introduce new laws that would facilitate the return process. With all these mechanisms put in place the pace of the return process remained unsatisfactory, generating the adoption of the Strategy for Implementation of Annex VII of the Dayton Peace Agreement in 2002, and the drafting process of the revision of this Strategy in 2010 (the drafting process actually started in 2008 but due to political problems the revised strategy was adopted only in 2010).

It was only in the revision of the initial strategy that the sustainability of the return, and the integration of the returnees came into focus. Up until then the return process was all about the return of property, in other words ensuring that the returnees had a roof over their heads – but not much more. However, the return is not only about the return of property but also ensuring that the access to economic and social rights – such as health, employment, education and so forth – is ensured. The people that have returned and now live in their pre-war locations have said that the approach to the return has not been informed by the real needs. The return of the property itself is not sufficient for people to be able to organize their lives in a sustainable matter. They are lacking proper investments in the infrastructure, creation of workplaces etc.

As for rehabilitation, as the third form of reparations, these measures have almost exclusively been implemented by a handful of women organizations while a systematic response from the state has not taken place yet. Because of state indolence over the past 20 years Bosnian NGOs have effectively taken over the provision of services, such as medical assistance and psychosocial support to civilian victims of war. This resulted in survivors today getting support only through a handful of NGOs, which remain dependent on foreign donor support to continue their vital work.[29] In a way many donors also chose to provide support to NGOs and not public health institutions with respect to creating capacities for provision of these highly specialised services. While public health institutions, even if in poor conditions, have a network of health facilities throughout the country the NGOs are clustered in few bigger cities in BiH. This has led to access to services being ad hoc, dependent on existance of donor funding, unevenly distributed throughout the country and not institutionalized in the country’s support system.

With respect to satisfaction and guarantees of non-repetition, several activities have taken place in BiH but not all of them have necessarily been publicly recognized as an attempt to deal with past human rights violations. Many of them, in particular those related to institutional reforms, have passed under processes that are usually referred to as democratization, improvement of the efficiency of the public sector, introduction of rule of law, or as part of the EU pre-accession requirement etc.

With respect to satisfaction prosecution of war crimes, search for the whereabouts of the disappeared and killed, commemorations and tributes to victims have all taken place in BiH. The activities that stand out as perhaps most successful is the search for the whereabouts of the disappeared and killed ones. By the end of the war an estimated 31,500 persons were missing. To date, approximately 70% of persons reported missing have been accounted for, which is comparably to other post-conflict countries, the highest rate of resolved cases ever in a post-conflict country.[30] The process of finding and identifying persons reported missing under the war is spearheaded by the International Commission for Missing Persons (ICMP), established at the initiative of the US President Bill Clinton in 1996 with an initial mandate to help account for the missing persons in the conflicts in former Yugoslavia, vast majority of them in BiH.[31] At a later stage ICMP helped develop and pushed for adoption of the Law on Missing persons (2004) and establish a domestic Missing Persons Institute.[32]The ICMP has a crucial role in this area. While both the Law on missing persons and the BiH Missing Persons Institute remain heavily politicized and misused by ethno-national political elites, ICMP as an international agency, has remind above that and able to fulfill its task professionally and efficiently.

Guarantees of non-repetition is a form of reparations that is closely tied to institutional reforms. While the Bosnian state has been in a constant state of reforms more concerned with transitioning the political and economic system into a liberal democracy, few institutional reforms were, while being conducted, directly linked to gross human rights violations from 1992 -1995 period. Still some processes (certification of police officers and reappointment of judges and prosecutors) as well as establishment of some institutions can be seen as post-war interventions.

The vetting procedure conducted within the police force took place between 1999 and 2002 and was looking into the responsibilities of individual police officers in relation to the period when human rights violations were taking place, and their potential role in those human rights violations. The investigation also looked into their overall eligibility to work within the police force. The certification (vetting) process was led by the International Police Task Force (IPTF), which was formed as part of the UN Mission in BiH. Apart from the fact that according to IPTF the number of police officers in BiH at the time of certification was 3 times the pre-war size, the reason behind such a process was that the police was also deemed inefficient, especially with respect to investigation of crimes against returnees and war crimes. The certification of police was part of the overall police reform programme conducted by IPTF and took place in a context of ethnical and political polarization. It was popularly believed that many key positions within the police were held by people responsible for violation of human rights and war crimes, and that their ineffectiveness to investigate war crimes and crimes against returnees was due to internal obstructions.[33] The intention of the process was to send a clear message “to the BiH society that the new, post-conflict, police force would enjoy a high standard of competence, integrity and loyalty to the new administration.”[34]

The process related to certification of police officers was heavily criticized as it later became evident that many of the police officers that received certification were later indicted for war crimes.[35] These “omissions” indicated poor functioning of the process and undermined its overall goal, which was to restore the citizens’ trust into the police force. The procedural aspects of this process were also criticized. The main concern was in relation to the possibilities of the decertified individuals to challenge the IPTF decision. Not having an appropriate legal remedy to IPTF’s decisions was particularly problematic as the decision was “for life”. Critics also claimed that some of the IPTF’s decisions were arbitrary leading to suitable and innocent police officers being decertified while others that had criminal background received a certificate. Allegation were also made that in same cases IPTF had simply misidentified persons. After the vetting procedure was finalized groups of decertified police officers filed complaints towards different domestic and international mechanism and all of them pointed out towards the fact that the lack of a proper review possibility created a serious human rights problem.[36]

The second process was the reappointment of judges and prosecutors that lasted between 2002 and 2004. That process was initially conducted by the Independent Judicial Commission, but was finalized by the High Judicial and Prosecutorial Council once established in 2003. The reappointment of judges and prosecutors involved assessment of their professional capacities as well as moral credibility. Unlike the process conducted within the police where the burden of proof was with the IPTF all judges and prosecutors were made to re-apply for their current posts and the burden of proof was thus laid on them. The reappointment aimed not only to ensure the quality of judges and prosecutors but was also part of the wider process, namely the restructuring of the court system, reducing its size and ensuring ethnic representation.[37] By the end of the process, 30% of first instance courts were closed, the number of judges was reduced by 30%, while the number of prosecutors was cut by 1%.[38]

Although both of this processes made a step forward in terms of improvement of the efficiency of these institutions both processes were criticized. The criticism was not so much about the need to conduct these processes but about how they were conducted.

Along with reformation and restructuring of old institutions various institutions were formed in post-war BiH in relation to what can be see as part of the guarantees of non-repetition. The post-war was considered as a transitional period in which enjoyment of human rights would still not be fully secured as it would have been in peace. As a response to this assumption the DPA, along with guarantees for protection of human rights post-war, proposed forming of three institutions – the Human rights chamber, the Constitutional Court of BiH, the Human Rights Ombudsman of BiH. Even though having jurisdiction for protection of human rights post war, these institutions adjudicated cases arising from violations stemming from war, such as issues connected to obligation of the state to provide information regarding the fate of the disappeared persons, and property returns.

Human Rights Chamber’s mandate was, in accordance to Annex VI of the DPA, to decide on complaints regarding the violation of basic human rights, guaranteed under the Convention for the Protection of Human Rights and Fundamental Freedoms. It consisted of 6 domestic judges and 8 international judges (international judges were appointed by the Committee of Ministers of the Council of Europe), and its mandate expired on the 31 December 2003.[39] The Human Rights Chamber was of temporary character established to help with expected high number of human rights violations in the post-war period. The Annex IV of the DPA provided for establishment of an institution with similar jurisdiction, namely the Constitutional Court of BiH. The jurisdiction of the Constitutional Court of BiH is to uphold the Constitution of BiH that contains the European Convention of Human Rights. The Constitutional Court of BiH consists of 6 domestic and 3 international judges (international judges are appointed by the Committee of Ministers of the Council of Europe).[40] In addition to these two institutions Annex VI of the DPA provides for formation of the Ombudsman for human rights. The first appointed Ombudsman on the state level was an international Ombudsman. In addition to the state level Ombudsman, there were two Ombudsman offices at the entity level. The Ombudsmen offices merged and three State Ombudsman ere appointed in December 2008 and since then The Institution for Human Rights Ombudsman of BiH functions as an independent domestic institution dealing with protection of rights of citizens and legal entities in accordance with the Constitution of BiH and international human rights instruments appended thereto.[41]

Unlike the decisions of the Constitutional Court of BiH and Human Rights Chamber, which are compulsory, the Ombudsman issue recommendations to the authorities and official institutions. Regardless of the level of obligation for the implementation of the decisions of the aforementioned institutions, the divided structure of the government, both administratively and ethnically, enables obstructions in the implementation of the decisions. For example, even though non-implementation of a decision of the Constitutional Court is considered a criminal act numerous decision of the Court towards the government have not been implemented for several years now.

At the level of government a Ministry of Human Rights and Refugees (MHRR) was established in 2000, mandated to monitor and implement Annex VII of the DPA – namely the return process – and to protect the human rights. However, this ministry is formed on the state level and has limited powers over the entities and District Brcko.

With respect to demobilization, demilitarization and reintegration the DPA provided for international community overseeing the process. The demobilization activities were segmentally implemented, starting with a first round in 1996, and again in 2001, 2002 and 2004. Following the demobilization of three separate armies the integration of them was finalized in 2005 resulting in one professionalized joint armed forced for BiH. The professionalization of the army also meant that the institute of conscription was removed. While this development was a logical outcome of the demobilization the abandoning of the conscription would not have taken place if there were no calls from the civil society.

Due to poor financial state of the BiH, and lack of understanding for the necessity of reintegration processes for demobilized soldiers, many of them were thrown into poverty, and some of them with severe psychological traumas. In 1996 the World Bank’s International Development Agency (IDA) initiated the Emergency Demobilization and Reintegration Project (EDRP), aimed primarily at assisting the ex-soldiers, and secondarily refugees, war victims, widows, disabled and unemployed in both entities of Bosnia and Herzegovina. 23,323 individuals who, on average, received US$352 in the form of short-term training, educational services, subsidized employment and job search assistance received the assistance. This can be compared to the 300 000 soldiers that were demobilized until mid-1996. After the 2002 demobilization round the armed forces provided severance packages to some of their departing soldiers.[42] What we have now is high rates of unemployment among former soldiers, many of them being unemployed for 20 years now.

What does Bosnian experiment teach us?

In Bosnia and Herzegovina, as in many other countries, the concept of transitional justice has been introduced as something neutral, apolitical and undisputable desirable, packaged in “one-size-fit-all” models. The reality is something completely different. Countries that are in the process of conceptualizing their transitional justice mechanisms must be aware that there are no ready-made recipes for successful implementation of various transitional justice mechanisms, and that they are neither neutral nor apolitical. The mechanisms used must be carefully and transparently planned, contextualized, and corroborated by a thorough gender analysis of the processes that took place prior to the conflict as well as those taking place after the conflict.

In order to do that all of the society must have a role in the post-conflict peace-buidling process in general and in implementation of transitional justice mechanisms in particular. In particular victim associations and individual victims have a huge role to play – one could almost say pivotal. It was them that opened up many difficult questions in BiH while the political and social establishment tried to push them aside. Togahter with them, CSO that provide support and services to the victims, as well as other organizations that work on human rights issues, have a very important role in defining and designing transitional justice mechanism. By finding the link and connecting these two segments it is possible to create capacities for properly informing the design process of the various TJ mechanism. An inclusive approach, and an approach that is not drive by “what we (theoretically) know about TJ” but instead informed by “what the society needs” is crucial if transitional justice is to have an impact in the peace building process. Institutional support to transitional justice mechanisms is inevitable if we want to see them have an effect. Political structures, as well as legislative and executive powers must be part of the process but their participation, as with other stakeholders, demands an understanding of their own role within it. Their role is not to bring in politics into the process (as is the case in Bosnia) but to bring in accountability.

Nela Porobic–Isakovic

Women’s International League for Peace and Freedom

Project coordinator

Bosnia and Herzegovina

 

[1] Mlinarevic, G. Introduction to the Dayton Peace Agreement in Feminist (re)interpretation of the Dayton Peace Accords – an intimate dialogue on how societies transit from war to peace and how feminist approach to peace building can help create strong and long-lasting peace. WILPF. 2016

[2] In order to fully understand the political, economic and social consequences of the war and the subsequent Dayton Peace Agreement in Bosnia and Herzegovina, and to be able to understand the effects of some of the transitional justice initiative that took place, it is important to know the constitutional set up of the country. BiH is today divided between a state level government, two entities (Republika Srpska and the Federation of Bosnia and Herzegovina), and District Brcko. The two entities, and to a limited extent District Brcko, have their own constitutions and governments, and far reaching competencies that are greatly influential with respect to access to human rights, social, economic and cultural rights, as well as political and civil rights.

[3] Sharp, Dustine N. (2014). Emancipating Transitional Justice from the Bonds of Paradigmatic Transition in International Journal of Transitional Justice, pg. 1-20.

[4] For further reading please see the Secretary General’s report on the rule of law and transitional justice in conflict and post-conflict societies (S/2004/616); Kritz, N. (ed.) Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Washington, DC: US Institute for Peace Press, 1995; Web page of International Centre for Transitional Justice www.ictj.org.

[5] Truth-telling, as one of transitional justices “tools” or mechanisms finds its support in the right to truth about violations that have taken place as enshrined in the human rights law and is an inalienable and autonomous right closely linked with obligation of the state to protect and guarantee human rights, to conduct effective investigations and to guarantee effective remedy and reparations. Truth-telling as a mechanism has variety of forms, some of which are: declassification of archives, investigations into the missing and disappeared, establishment of different forms of inquiry bodies, including truth commissions and so forth. For more information see Office of the United Nations High Commissioner for Human Rights (2006c). Study on the right to truth. E/CN.4/2006/91.

[6] OSCE, Mission to Bosnia and Herzegovina, War Crime Trials Before the Domestic Courts of Bosnia and Herzegovina:  Progress and Obstacles, March 2005, page 4, available at http://www.oscebih.org/documents/1407-eng.pdf

[7] The Court of Bosnia and Herzegovina was established in 2000. Primary aim for the establishment of the court was not war crime trials but addressing the organized crime. It took almost five years from the establishment of the Court until the first war crime trial. At the beginning the Court of BiH was envisioned as primarily national court, but in January 2003 the possibility for election of international judges as part of transitional period was introduced. The transitional period was suggested to last no longer than 5 years, that was later prolonged.

[8] War crime strategy of BiH (2008). Can be found at http://www.geneva-academy.ch/RULAC/pdf_state/War-Crimes-Strategy-f-18-12-08.pdf

[9] Unresolved housing issue, lack of health insurance while at the same time many of them suffer from deteriorating health conditions and psycho-social problems, no job opportunities, etc.

[10] Popovic, Dragan (2009). Transitional Justice Guidebook for Bosnia and Herzegovina. UNDP.

[11] ibid.

[12] In the decision, among other things the Chamber orders the RS Government to carry out a quick and impartial investigation and publish all information pertaining to the disclosure of the fate of the missing relatives of the claimants   and to disclose the locations of mass graves (paragraph 212); Furthermore, the Chamber orders RS to make a lump sum contribution to the Foundation of the Srebrenica-Potocari Memorial and Cemetery for the collective benefit of all the applicants and the families of the victims of the Srebrenica events in the total amount of 4 Million Convertible Marks (paragraph 217). Human Rights Chamber Decision on Admissibility and Merits adopted on 15 December, 2003; CH/01/8365 et al.

[13] The report can be found at http://www.justiceinperspective.org.za/images/bosnia/Srebrenica_Report2004.pdf

[14] Popovic, Dragan (2009). Transitional Justice Guidebook for Bosnia and Herzegovina. UNDP.

[15] For more information visit website for the Initiative for RECOM http://www.recom.link

[16] http://www.recom.link/about-us-2/sta-je-rekom/

[17] Freeman, Mark (2007). Truth commissions – facts and myths. Excerpt from the Mark Freeman’s speech

on the Second Regional Forum Establishing the Truth about War Crimes and Conflicts.

[18] Concept and framework for development of a gender sensitive reparations programme for Bosnia and Herzegovina. WILPF 2015

[19] Resolution 60/147 (2006).

[20] For further in-depth reading please see de Greiff, Pablo (2012). Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence; Chinkin, Christine (2009). The Protection of Economic, Social and Cultural Rights Post-conflict; UN General Assembly, Human Rights Council resolution A/HRC/21/46; Kritz, Neil J. (1995) ed. Transitional Justice – How Emerging Democracies Reckon with Former Regimes. Volume II. Country Studies. United States Institute for Peace Press. Washington D.C.; Manjoo, Rashida (2010). Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights including the Right to Development, UN General Assembly, Human Rights Council A/HRC/14/22.; Orentlicher, Diane (2005), Promotion and Protection of Human Rights – Impunity, Report of the independent expert to update the Set of principles to combat impunity, E/CN.4/2005/102/Add.1.; Rubio-Marín, Ruth ed. (2008) What Happened to the Women? Gender and Reparations for Human Rights Violations. Social Science Research Council, New York.; United Nations General Assembly Resolution 60/147 (2006). Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.

[21] As comparison we can look at the requirements set for the disabled veterans. The minimum level of disability required for disabled veterans is 20%.

[22] The Law on the Fundamentals of Social Welfare, Protection of Civilian Victims of War and Families with Children in FBiH; the Law on Protection of Civilian Victims of War in RS, and the Decision on the Protection of Civilian Victims of War in Brčko District.

[23] BiH Law on Missing Persons is only partially implemented. The establishment of the Missing Persons Institute enabled access to certain rights for families of missing persons, such as the right to truth and the right to compensation of burial/funeral costs. Missing Persons Fund was never established and thus it is impossible to access the right to financial compensation, legal aid, and other rights conditioned by the establishment of the Fund.

[24] The Law on the Fundamentals of Social Welfare, Protection of Civilian Victims of War and Families with Children in FBiH; the Law on Protection of Civilian Victims of War in RS; and the Decision on the Protection of Civilian Victims of War in Brčko District. The right to the recognition of status in RS was limited by a legal deadline that expired on December 31, 2007, which is contradictory to the right to reparations.

 

[25] Annex VII of the Dayton Peace Agreement, can be found at http://www.ohr.int/?page_id=63261

[26] http://www.unhcr.org/news/latest/2004/9/414fffba4/bosnia-herzegovina-welcomes-1-million-returnees.html

[27] The document was developed by Office of the High Representative, UNHCR, OSCE, UN Mission in BH and Commission for Real Property Claims. The document can be found at http://www.oscebih.org/documents/osce_bih_doc_2000101511402819eng.pdf

[28] In December 1997 the Peace Implementation Council met in Bonn and granted additional power to Office of the High Representative, giving him, among other things the authority to adopt binding decisions when local parties seem unable or unwilling to act.

[29] Porobic Isakovic, N., Mlinarevic G., and Rees, M. “If women are left out of peace talks” Forced Migration Review, September 2015. To access article directly please go to http://www.fmreview.org/mlinarevic-isakovic-rees.

[30] Statistics presented by the International Commission for Missing Persons (ICMP). http://www.icmp.int/where-we-work/europe/western-balkans/bosnia-and-herzegovina/

[31] http://www.icmp.int/about-us/history/

[32] ibid.

[33] Popovic, Dragan (2009). Transitional Justice Guidebook for Bosnia and Herzegovina. UNDP.

[34] Hammarberg, T.  Commissioner for Human Rights of the Council of Europe. Special Mission to Bosnia and Herzegovina (2006) – Issue of Decertified Police Officers in Bosnia and Herzegovina. Document prepared by the Office of the Commissioner for Human Rights.

[35] Popovic, D. (2009). Transitional Justice Guidebook for Bosnia and Herzegovina. UNDP

[36] Hammarberg, T.  Commissioner for Human Rights of the Council of Europe. Special Mission to Bosnia and Herzegovina (2006) – Issue of Decertified Police Officers in Bosnia and Herzegovina. Document prepared by the Office of the Commissioner for Human Rights.

[37] Vetting Public Employees in Post-conflict Settings, Operational Guidelines, UNDP, Bureau for Crisis Prevention and Recovery, New York, 2006.

[38] Vetting Public Employees in Post-conflict Settings, Operational Guidelines, UNDP, Bureau for Crisis Prevention and Recovery, New York, 2006.

[39] http://www.hrc.ba/ENGLISH/DEFAULT.HTM

[40] http://www.ccbh.ba

[41] http://www.ombudsmen.gov.ba/Default.aspx?id=10&lang=EN

[42] https://www.ictj.org/sites/default/files/ICTJ-DDR-Bosnia-CaseStudy-2009-English.pdf