Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (33 page)

The conflict came to an end through the Dayton General Framework Agreement for Peace (Dayton Peace Accords, DPA). The Agreement aimed to establish the framework of a long-term sustainable peace by including provisions on political structure, security, physical and economic reconstruction of the country, and the new Constitution. Since 1995 an army of international and non-governmental organizations have worked to build a stable, multi-ethnic, and viable democratic country, whilst at the same time establishing institutions to provide justice for the atrocities committed during the conflict. In Bosnia and Herzegovina peacebuilding and justice for the human rights violations committed during the conflict have run parallel from the beginning. In fact, the establishment of justice institutions, mainly the International Criminal Tribunal for the Former Yugoslavia (ICTY), was directly linked to the goal of achieving peace in the region and in the country. The creation of the Tribunal meant the resurgence of justice for war crimes as an interest of the international community, as well as an acknowledgement that justice needed to play an important role in the building of peace. The international intervention in Bosnia therefore marked not only a new era in peacebuilding and international justice but also a transformation of transitional justice. This can be seen as a transformation from nationally driven processes and mechanisms dealing with past atrocities in the context of political transitions to democracy towards internationally led post-conflict (or even during conflict)
justice.
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Bosnia has functioned as an experimental field for peacebuilding as well as for post-conflict justice. This chapter analyzes these processes and mechanisms and discusses how peacebuilding and transitional justice have evolved in the context of the reconstruction of Bosnia and to what extent they have impacted on each other.

Peacebuilding and Governance Challenges in Post-Conflict Bosnia

The peace negotiation process, hosted by the USA, brought together the leaders responsible for the extreme nationalistic rhetoric that drove the conflict. The DPA effectively consolidated the ethnically divided territories created by the war through a political structure which included two main entities of roughly the same size (along the wartime front lines): the Federation of BiH, mainly composed of Bosniaks and Bosnian Croats, and Republika Srpska, mainly composed of Bosnian Serbs. A third separate political entity, Brko District, has autonomous status. At state level every institution has to have the necessary representation of the so-called three constituent people, including a shared presidency. The institutional structure is particularly complex as the institutions at state level share competences with the entity institutions. Each entity has its own President, Prime Minister, government, Assembly, and court system, which includes a Supreme Court each and lower-level courts. The Federation is further divided into ten cantons. The institutional fragmentation has undermined the possibilities of building a strong central state.

The need—and urge—to guarantee the end of hostilities and stability led to a power-sharing agreement based on the fragmentation of state power and granting warring factions their quota of power. This effectively provided each ethnic group a share of political power, maintained the external influence of Serbia and Croatia, and allowed for leaders, some of them with war crimes records, to consolidate themselves in powerful positions. Soon after the signature of the DPA the international community rushed to hold elections which cemented the power bases of the ethnically segregated nationalist parties and legitimized their leaders.
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In subsequent elections moderate cross-cutting parties have failed to gain enough political representation, whilst nationalist parties still enjoy great popular support.
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All these factors have impeded the ethnic reintegration of previously plural territories, perpetuated the lack of social and political cohesion brought by the war, and encouraged an inefficient, extremely expensive, and dysfunctional governance system which often comes to paralysis at the state level.

The DPA created lead roles for multiple intergovernmental organizations but did not draw a comprehensive strategy for peacebuilding, and at the beginning of the peacebuilding process the agencies were deployed in an uncoordinated manner.
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The DPA also created the post of an internationally appointed high representative to monitor the implementation of the accord and coordinate the activities for the other agencies. The High Representative (HR) was granted extraordinary powers, including the authority to remove elected officials, enact
legislation, and establish new institutions and has used them robustly to erode the power of nationalist and corrupt spoilers. These powers have been particularly instrumental to guarantee refugee return and property restitution and to accelerate the pace of judicial and police reform.

Since 2002, the HR is also the EU Special Representative (EUSR). Once the Office of the HR closes, the EUSR will remain, with the ultimate goal to lead Bosnia to EU membership.
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The possibility of integration in the EU has made this peacebuilding process relatively different to others analyzed in this volume given the leverage that the international community has been able to assert over the different parties involved. The steps forward and backward on the road to membership to the EU have very often been linked to political negotiations to advance in areas of internal reform, such as police reform, and very significantly to cooperation with the ICTY.

Coming Back Home: Ex-Combatants, Armed Forces, and Refugees

One of the main priorities of the DPA was to reverse the impact of the wartime ethnic cleansing policies through the return of refugees and internally displaced persons to their pre-war homes and municipalities. Whilst the agreement contained detailed provisions and mechanisms for such return, provisions on the demobilization of ex-combatants and the reform of the security sectors were scaroe. The way these activities were conducted has had a significant impact on other aspects of peacebuilding as well as on transitional justice initiatives.

DDR and SSR

The DPA generally called for all the parties to disarm and disband all civilian armed groups. NATO’s Implementation Force (IFOR), which later became the Stabilisation Force (SFOR), was tasked with the supervision of this process.
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Right after the war, combatants demobilized in a chaotic way as the armed forces were disintegrating and a large number of irregular combatants were returning home, with no international organization assuming a leadership role for DDR.
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An estimated 300,000 combatants voluntarily disarmed in 1996 without any assistance, and had to be absorbed by local towns and communities in a form of emergency demobilization.
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The former combatants re-entered Bosnian society largely unprepared for such a transition, often lacking education and skills and suffering from post-traumatic stress disorder.
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They returned to their communities in a post-war environment that offered a virtually non-existent economy and no employment opportunities.
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During this first wave of demobilization, there was no assistance from either the state institutions, which lacked capacity at the time, nor the entity authorities. The help of the international community was limited to the support provided by the World Bank through the Emergency Demobilization and Disarmament Project.
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Meanwhile, the three ethnic armies
remained active, with entity authorities making no formal efforts to downsize them.
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From 1998, following pressure from the international community, military expenditure was cut by 40 percent and national authorities started to focus on planned demobilization.
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It was only from 2002 that reintegration became an important focus of the process. The International Organisation for Migration (IOM) provided severance packages, provision of livestock, basic kits to establish business or start agricultural production, vocational training, etc., as well as basic civic education courses which included human rights and democracy among its curricula.
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But it was not until 2005, after much negotiation between the international community and national authorities, that the three armies were replaced by a single, multinational, and professional force, under the authority of the President of the country.
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In 2007 the final phase of demobilization was considered completed.

Police reform was overseen by the UN Mission (UNMIBH) and its International Police Task Force, and later assumed by the EU Police Mission (EUPM) in 2003. It proved very difficult to reform the three mono-ethnic police forces, each having its own territorial jurisdiction.
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Bosnian and Croatian forces merged without the intervention of the international community, but it was the pressure from the EU that triggered the participation of Republika Srpska. The EU Stabilisation and Association Agreement in 2008 was made dependent on advances in police reform, mainly to guarantee its direction at state level and to free it from political interference.
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The demobilization and security sector reform processes were not linked to any transitional justice initiative, and they were held independently of the larger efforts to seek justice.
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This had an important effect, especially with regard to the police, who had been key instruments of ethnic cleansing during the war. During peacetime, they continued to play an important role in supporting nationalist and separatist agendas. Entity police forces refused to cooperate with each other and tended to favor their own ethnic groups in the enforcement of the law, especially in Republika Srpska and the Croatian areas of the Federation.
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As a consequence of lack of coordination between UNMIBH and EUPM, a large number of police officers remained unvetted.
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This meant that war criminals remained in the forces, contributing to a climate of impunity and insecurity and obstructing refugee return.
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Both domestic war trials and cooperation with the ICTY were severely affected by this situation. In addition, only limited attention and funds were dedicated to reintegration of those demobilized, leading some veterans’ associations to assume the role of social security networks. This has given them unprecedented power and political influence.
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They have also managed to secure important funds from private sources, nationalistic political parties, and the governments of the entities.
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These associations have played an important role in supporting ethnically based authorities and discourses and have negatively influenced the progress towards strengthening the role of the state, vocally protesting against prosecutions, undermining some other transitional justice initiatives, and competing with civilian victims in reparation schemes.
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Refugee and IDP Return

Refugee and internally displaced person (IDP) return was conceived of as instrumental to reversing ethnic cleansing and reconstituting wherever possible the multi-ethnic composition of the country. The mechanisms and institutional provisions for refugee return were established in Annex 7 of the DPA, which states the rights of refugees and displaced persons as well as the obligation for national authorities in each territory to create the political economic and social conditions conducive to the voluntary return and harmonious reintegration of refugees and displaced persons, without any preference for a particular group (art. 2.1). It also establishes the responsibility to prevent activities within their territories which would hinder or impede the safe return of refugees and displaced persons. To achieve this, it obliges local public officials to repeal domestic legislation and administrative practices with discriminatory intent or effect (art. 1.3.a) and to prosecute, dismiss, or transfer those responsible for serious violations of the basic rights of persons belonging to ethnic or minority groups (art. 1.3.e).

Early on, refugee and IDP return was identified on a technical level with property restitution. In this regard Bosnia is often cited as a success, in which the international community managed to overcome strong domestic political resistance and facilitate the return of over 200,000 claimed properties to their pre-war residents.
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The process, which was considered concluded in 2004, was full of challenges. The properties left vacant by those who had perished, fled, and in most cases been forcibly displaced had been allocated to the use of IDPs of the new majority ethnicity. However, they were also given to those not necessarily displaced but simply politically well connected: young families, war veterans, and the families of fallen soldiers.
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In this way, a new ethnic distribution was being consolidated. Local nationalist leaders and local police forces played an important role in obstructing the process of return. Local authorities encouraged members of their own ethnic group not to leave the areas where they had settled after the war and created barriers to the return of the original inhabitants of the territory under their control, whom they referred to as “aliens.”
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Police refused to evict new residents in certain municipalities.
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The HR had to make use of his powers to repeal discriminatory laws and even remove obstructive public officials from office in order for the process to be completed. Equally, UNMIBH suspended police officers who failed to assist local authorities.
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The success on property return did not automatically mean success in refugee and IDP return, nor did it have an immediate impact on reversing the ethnic cleansing effect. Access to property was not the only obstacle to return. In many cases, security and discrimination concerns prevented families from returning to municipalities where they were no longer the majority ethnic group or where public officials and police were openly hostile to them and where little of the prewar ties remained. Equally, employment prospects and lack of education opportunities played an important part in the lack of return, with many refugees settling in the host countries, especially in Serbia and Croatia, and IDPs staying in their new municipalities.
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But, as Nettelfield points out, for many the
selectivity of prosecutions meant that those who had perpetrated crimes against them or their families had not been removed from their municipality, and “they found themselves living literally next door to the same people who raped, murdered and forcibly expelled” them.
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Many chose to reclaim their property to sell it, while others kept their former homes but were reluctant to come back to live in them and establish permanent residence.
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Even if an estimated half of the displaced population has returned to their pre-war homes,
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the country has not gone back to the pre-war original ethnic distribution.