Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (35 page)

Lack of Attention to Non-Prosecutorial Measures

The emphasis on criminal trials has made it difficult for the development of other transitional justice mechanisms to accompany the peacebuilding process. The focus on criminal prosecutions resulted from the neglect of other mechanisms by both the international community and national authorities, and, until recently, the general public. In this section we explore the initiatives to conduct truth-seeking investigations and reparations. Unfortunately the scope of this chapter does not allow us to devote analysis to smaller-scale community projects, which are, house by house, school by school, village by village, trying to advance reconciliation and better social relations for a peaceful future.
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Truth Seeking

Truth-seeking initiatives have so far failed in Bosnia, including two formal attempts to establish a Truth and Reconciliation Commission in 2000 and 2005.
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The lack of commitment from national authorities played an important role in such failure, as did the lack of support of the international community. In particular, the ICTY was concerned over the potential for a truth commission to act as a parallel rival institution, which would compete with the ICTY’s work and financing.
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But the main concern regarding the establishment of such a body was the potential use of amnesties. The ICTY made it clear that it considered amnesties as infringing on the very mission of the Tribunal.
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Equally, victims were highly suspicious of this possibility.
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At the time of drafting these failed institutions, victims did not believe that truth commissions could help in the process of vindication of their rights.
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The only truth-seeking process that has succeeded has been a much more limited one: the Commission for Investigation of the Events in and around
Srebrenica between 10 and 19 July 1995 (Srebrenica Commission). It was established in 2003 by the Republika Srpska authorities in response to the resolution of the, now extinct, Human Rights Chamber,
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but only after the OHR exercised considerable pressure. The main tasks of the Srebrenica Commission, which did not include victim participation, were to locate mass graves and determine the identity of all victims of the genocide. Its work was quite significant in that it reconstructed the involvement of military and police units of Republika Srpska and drafted lists of potential perpetrators. It also discovered 32 unknown graves and established that a total of 7,779 persons went missing in the period covered by the investigation.
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A similar public investigative body was supposed to establish the events during the siege of Sarajevo, but political obstacles made it impossible.
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The lack of official involvement in truth seeking led several civil society organizations to conduct their own investigations and documentation processes. A remarkable example of this is the work of the Research and Documentation Centre in Sarajevo, which has established the most comprehensive database of events that occurred during the war.
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Since 2005 civil society organizations have been developing a new truth-seeking initiative at regional level: RECOM. The Coalition for RECOM is a coalition of non-governmental organizations from the countries of the former Yugoslavia for the creation of a regional commission for establishing the facts of the conflict. The process of consultation has been impressively wide and detailed.
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Numerous encounters have been organized between victims’ organizations, war veterans’ groups, and civil society in general, as well as media personnel, justice system personnel, government officials, and politicians.
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During the consultations victims have expressed all range of opinions regarding the need for this kind of commission; however, most of those involved seem to agree that a process of this sort is important.
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From the consultation it has become evident that the only possibility for an investigative commission to be considered successful is if it solely focuses on establishing the facts and drops the goal of reconciliation. The investigative body will be constituted as an international regional organization created by agreement of all the countries in the region, and with its main office in Sarajevo.
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The initiative faces multiple challenges, from retaining participation of some of the most resistant victims’ organizations to gaining the necessary legitimacy and regional credibility from the wider public. But importantly, its success depends on the political will in all countries to sign the international agreement, which is politically very difficult. The organizations involved are hopeful that it will succeed, even while recognizing the difficulties. Some of them, such as the leading Humanitarian Law Centre in Serbia and Documenta in Croatia, believe that a process of social reconstruction has already started: at an informal level the process of RECOM has helped to bring individuals together, promoted dialogue in different communities, and facilitated, although in a limited way, processes of sharing experiences of suffering and mutual recognition of victims from different ethnic groups.
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Although several political leaders have supported the initiative, the public reactions to the initiatives are mixed. The results of a recent regional signature-gathering
campaign (April–June 2011) to pressure governments to sign the RECOM agreement are disappointing in Bosnia, with the leadership of some victims’ organizations explicitly boycotting the initiative.
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There are still doubts as to whether the investigative commission will actually come into being, but what the process shows is a determination on the part of certain civil society organizations to face the past and find a common narrative that would overcome the prospects of a divided future that nationalistic rhetoric continues to aspire for.

Reparations

Together with the deficiencies described in regard to truth-seeking initiatives, the lack of a coherent policy on reparations has impacted negatively on the transitional justice process. Even if the property restitution process can be considered positive from a reparations perspective, the process was conceived as a way to reverse ethnic cleansing rather than specifically as a victim-centered reparations program. Beyond property restitution, reparations have been limited and not systematized. At the international level the ICTY does not provide for reparations; however, it did foresee in its own Rules of Procedure and Evidence that victims could rely on its judgments to seek compensation in a different forum (Rule 106). National court proceedings for compensation for human rights abuses have been rare. The WCC has done little to make up deficiencies in other reparations programs by routinely instructing the victim to take civil action after the criminal trial has been completed, although the Criminal Procedure Code provides for direct compensation for victims. The legal complexities and lack of financial resources prevent most victims from initiating civil procedures. The only judicial resolutions at state level regarding financial reparations have been made by the now extinct Human Rights Chambers.

But a more problematic issue has been that of the divide in the consideration of who is entitled to the reparation. This is closely connected to the question posed by García-Godos regarding “Who is the victim?” in terms of reparations for human rights violations.
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As García-Godos explores, identification of the victim is vital, that is, determining who is entitled to whatever form of remedy or benefit is to be provided.
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In Bosnia the legislation enacted and implemented by both territorial entities has emphasized military victims—war veterans and their families—over civilian ones.
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This has left large groups of civilian victims without financial support and psychosocial attention, which is being carried out by civil society organizations. Equally, the territorial entities have considered victims differently and tended to favor the victims of their own ethnic group.
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There is increasing popular support for the equal treatment of all victims, regardless of whether they are military or civilian and regardless of the entity or region in which they live. However, in a recent United Nations Development Programme (UNDP) survey on the matter a third of those interviewed still disagreed that all victims should be treated equally.
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The lack of a comprehensive and victim-centered program of reparations has also brought an even more worrying inequality: that between victims and their perpetrators. As the latest UNDP
survey demonstrates, victims of war crimes and their families have in most cases been left to their own resources, “abandoned” as the survey puts it, with no assistance, whilst the accused have benefited from some kind of practical support and assistance from both the international and national criminal system.
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All surveys show that Bosnian people also find symbolic reparations important: from monuments and commemorations to public apologies.
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Symbolic reparations have included the establishment of the Srebrenica-Potocari memorial and the reconstruction of sites destroyed during the war, such as the Banja Luka Mosques.
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However, the installation of monuments and memorials has been politically charged. The memorial for the genocide in Srebrenica was only established after considerable pressure from the international community.
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Memorials have been the source of grievance aggravation among communities. They have tended to be built along ethnic lines and with underlying political causes. In each village or site of horrific violations people remember the victims of their own group, leaving little option for the commemoration of all victims. Over the last few years there has been a proliferation of public apologies. In 2004 the President of Serbia, Boris Tadi
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, apologized for the crimes committed to the citizens of Bosnia in the name of the Serbian people, and in 2010 the Serbian parliament approved a law apologizing for the massacre in Srebrenica and for not doing enough to prevent it; however, it fell short of calling it genocide. A similar formula had been used earlier by the President of Republika Srpska Miroland Dodik when he apologized to the victims. These apologies have brought mixed reactions, with some believing that it is a way to move on, and others questioning how genuine it may be and the motives behind it, especially as Serbia looks towards integration in the European Union.
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Many in Bosnia have felt insulted by the fact that the word genocide has deliberately been omitted from the apologies, even after the International Court of Justice and the ICTY have both stated clearly that the acts committed in Srebrenica amounted to the crime. The value of these declarations is, in the opinion of this author, limited and it is debatable whether it has a contribution to make to wider reconciliation processes.
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Conclusions

This chapter has explored some of the interactions between peacebuilding and transitional justice in the reconstruction process in Bosnia and Herzegovina. The need to end the war and the compromises acquired during the peace negotiations resulted in a constitutional and institutional framework that has made both peacebuilding and transitional justice particularly challenging. From a peacebuilding perspective a superficial analysis shows initial success. Bosnia has not regressed to violence, half of those displaced have now returned and taken their properties back, there is one single army and one single police force, national institutions represent the three constituent peoples, and the political and economic aspirations of EU membership make war seem even further away. From a criminal justice perspective successes are also obvious: 161 of the highest level
perpetrators will stand trial at the ICTY and a machinery of national courts is in place to deal with the lower-level ones. However, a closer look at the processes and mechanisms implemented in Bosnia shows a more nuanced picture. As this chapter has argued, the deficiencies in dealing with nationalistic political and power structures, as well as with demobilization and reform of the security sector, impacted on the abilities of the national system to provide accountability. Justice institutions involved in prosecutions have contributed to the process of peacebuilding by generating demand from society for accountability norms and proceedings, and helped pave the way to consolidating a culture of rule of law. However, the fact that justice has been mainly driven by the international community did not contribute to the development of complementary, locally driven processes. The reliance on retributive mechanisms, both internationally and at national level, has also made it more difficult for some of the wider transitional justice goals, those of social restoration through truth and reconciliation, to advance.

The case of Bosnia, as a “laboratory of transitional justice,”
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provides a number of lessons. Comprehensive DDR and security sector and judicial reform are of paramount importance, not only for the stability and viability of a future democracy, but also for any justice process to take place. Lack of vetting of former war criminals and failure to dismantle old power structures compromises not only security but also justice and, even 15 years after the end of the conflict, social restoration.

The case of Bosnia also shows the difficulties of dealing with victims in a uniform way. In the Bosnia war, veterans and the families of the military fallen and victims of genocide, ethnic cleansing, concentration camps, and mass rapes, and the families of the missing have battled for resources, accountability, and acknowledgement. Equally importantly, they are still battling for their version of the truth. This highlights the necessity of complementary transitional justice mechanisms in order to respond to the needs of all the victims. Criminal trials have played an important role in removing perpetrators from society, punishing those responsible for horrific human rights violations and establishing the facts of the conflict. However, retributive justice can only play a limited role in restoring social peace and relations and, unfortunately, Bosnia is a clear indicator of this.