20 березня, 2018

Randall Puljek-Shank

peacebuilding practitioner, political scientist (Sarajevo, Bosnia and Herzegovina)

It is a daunting task to summarize what has happened in Bosnia related to transitional justice (TJ), let alone to draw lessons from it. In the 1992-1995 Bosnian war, ca. 100,000 people were killed and half of the Bosnian population became displaced or refugees. The nature of the war (aggression vs. civil war), and the constitution as written in the Dayton Agreement today remain hotly contested issues among the Bosnian population. Transitional justice can be defined as, ‘criminal prosecutions of perpetrators, truth-seeking efforts to determine the extent and nature, of past abuses, reparations for victims, reconciliation programmes within divided communities, and institutional reform to prevent the recurrence of abuses’ (OECD-DAC, 2007: 107). TJ touches on important questions for any society recovering from war since the wounds and loss are felt deeply on both an individual and collective level. In the Bosnian case this is particularly complicated because transition held multiple simultaneous meanings including the transition from war to peace and from one-party socialism to multi-party democracy.

4 pillars of TJ in the Bosnian case

In this section I will briefly describe the institutions and processes which have occurred in each of the ‘4 pillars of transitional justice’. This will necessarily focus on the practices and their outcomes instead of the extensive theory of what they should have been. The first predominant pillar is criminal justice focused on individual accountability for war crimes. A UN Security Council resolution in 1993 established the International Criminal Tribunal for the former Yugoslavia (ICTY) and led the way for other tribunals in Rwanda and Cambodia.  Although only 161 people were indicted, they included the first sitting head of state indicted for war crimes Slobodan Milošević and many other top military and political leaders. War crimes were also prosecuted by the Court of BiH which was established in 2000 (14 years after the Dayton Peace Agreement) with both Bosnian and foreign judges and prosecutors. The work of both courts remains highly contested for Bosnians around questions of bias, the benefit given the money invested (the operations of ICTY cost ca. US$2 billion or US$14 million/trial) and whether the resulting sentences up to 25 years after the crimes served the needs of the victims and society.

The second approach often included within transition justice is establishing the facts. It is worth mentioning that the most thorough accounting of the victims of the Bosnian war was done by a non-governmental organization called the Research and Documentation Center with little government support. Establishing the facts by recording individual victims so that family members could both report their lost ones and verify that they were included was crucial. This can be seen since even so, the numbers of victims and their stories continue to be used and contested in public discourse. Bosnia pioneered the search for missing persons and identification of the remains of the dead and this process is still ongoing.   At least two proposals were made to address the ongoing contestation and denial of the facts by establishing truth commissions to establish the facts in a transparent and accepted way, but neither was ever implemented. More recently, the coalition for RECOM (Regional Commission for Establishing the Facts About Victims of War in Former Yugoslavia) has worked to create public pressure on governments in the region to support a truth-telling process. Finally, many civil society initiatives worked on ‘dealing with the past’ on an informal and less institutional scale and which enabled alternative narratives and space.

The third pillar of TJ is the question of making reparations for what was lost. Reparations can address the socioeconomic aspects of justice. However a holistic approach was rejected by the ICTY which only addressed the criminal aspects and assumed that reparations would be dealt by Bosnia’s justice system. Although formally included in the Dayton Agreement, on a practical level it was limited to a focus on the return of property. The effort invested in return and restoration of houses was unprecedented compared to other wars with refugees and internally displaced persons. However, the returns process formally achieved its goal of property return (establishing one form of just result) but with little return of displaced people and restoration of pre-war communities which was often framed as its goal. Although social welfare payments were not justified as reparations, they were used for key groups such as veterans to ensure social peace. Smaller and less well organized groups such as concentration camp survivors, the families of missing persons, and victims of sexual violence were left on the margins, despite efforts to organize and strengthen them. Reparations can also include symbolic acknowledgement of what was lost in the form of memorials. Promising moments included an initiative to create a joint memorial for all the children lost in Sarajevo on all sides which failed in the end. However, memorials remain divided and marked by ethnic and military symbols which reinforce the sense of being victims rather than supporting common experiences of loss.

The final pillar of TJ is the question of institutional reforms with the stated goal of returning trust in the police and courts. Here again Bosnia pioneered in the process of certifying police with the intention of removing those who had participated in wartime crimes. Extensive efforts aimed to strengthen the independence and professionalism of the court system (judges and prosecutors). However, these institutional reforms were actively opposed by those political forces that support the ethnic status quo.

Lessons learned

This discussion will of necessity be brief and only reflects the opinion of the author.

  • I subscribe to the view that the retributive approach of punishing the perpetrators which lie at the heart of criminal justice need to be weighed against a restorative approach focused on re-establishing a political and social community. There is no one correct way to address these difficult questions, rather these are political decisions which each society should be able to make for itself. This process was, in my opinion, cut short by the international intervention in these questions with long-lasting and in many cases negative consequences.
  • The main premise of the ICTY and of the retributive justice approach is that it would individualize guilt and avoid collective blaming, creating a space that could contribute to a reconciliation process. Yet there is no empirical evidence of people accepting this individualization, as collective victimhood and collective blaming remains common in interethnic relations.
  • Much was invested in transitional justice as criminal justice but much less in economic and social justice. TJ was in its essence part of a top-down and internationally driven process of ‘liberal peace’ focused on democratic governance, civil society, and capitalism. Everyday experiences of the ‘Dayton era peace’ have been much more about injustice than justice in this broader sense. TJ initiatives have struggled to engage with this everyday perspective, and focused instead on limited constituencies and narrow mandates.
  • The Bosnian experience repeatedly showed the importance of political support for the success of reform and implementation of unpopular decisions. To name one prominent example, despite a process which included broad participation by victims and other stakeholders, an internationally led effort to create a national TJ strategy never led to its finalization and adoption.
  • Court decisions have done little to prevent repetition of divided narratives about the war by political actors. This was exacerbated because the ICTY only belatedly realized the need for outreach to explain and educate about the court processes and decisions. This left an open space for claims of bias which undermined the legitimacy of the ICTY. The prevalence of hate speech, genocide denial and the glorification of war criminals as local heroes is evidence of the lack of acceptance of the messages of transitional justice and the ICTY.
  • Several of these learnings point to the weaknesses and limits that come with international support. Transitional Justice was frequently promoted as an agenda and ‘flavor of the month’ rather than driven by locally felt needs. The design of the RECOM is based on the learning that a political restoration of both regional and inter-ethnic relations based on an honest accounting of the past needs to be a decision made by political actors. Any observer familiar with the self-reinforcing dynamic of division and the entrenched interests that they engender will know that this is a difficult and generational process.

Finally, thanks go to Dr. Louis Monroy Santander for his helpful comments and additions.

Links to learn more

 

Науковий блог опубліковано у рамках проекту Школи права УКУ “Перехідне правосуддя та примирення в Україні”. Погляди автора не обов’язково відображують погляди Школи права Українського католицького університету.