Right to Information about Past Human Rights Violations and Measures of Uncovering the Facts

[1]

INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS

2


3

INTERNATIONAL JOURNAL OF RULE OF

LAW, TRANSITIONAL JUSTICE AND

HUMAN RIGHTS

Year 5, Volume 5

ISSN 2232-7541


4

INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS Year 5, Volume 5 Authors: Marta Szczepanik Martina Gornik Kaja Nanut Cuneyd Er Wasja Rijs Renata Ribežl Kathleen Hassemann Višnja Šijačić Martina Orlandi Anna Gopsill Srđan Vidačković Enarda Cuni Nina Mirosavljević Catalina Saracutu Aleksandar Todoroski For the Publisher: Almin Skrijelj Editors: Lana Ackar Adnan Kadribasic Print run: 400 Sarajevo, December 2014

Konrad-Adenauer-Stiftung e.V. Tiergartenstraße 35 D-10785 Berlin Germany Phone: +49 30 269 96 453 Fax: +49 30 269 96 555 Website: www.kas.de Rule of Law Program South East Europe Konrad-Adenauer-Stiftung e.V. 5 Franzelarilor Street Sector 2 RO-020785 Bucharest Romania Tel.: +40 21 302 02 63 Fax: +40 21 323 31 27 e-mail: [email protected] Website: www.kas.de/rspsoe and Association "PRAVNIK" Porodice Ribar 49 Sarajevo, 71000 Bosnia and Herzegovina e-mail: [email protected] Website: www.pravnik-online.info

CIP Cataloguing in Publication Data available from National and University Library of Bosnia and Herzegovina ISSN 2232-7541 The present publication is distributed free of charge. The responsibility of the content of this publication lies exclusively with the authors.

http://www.kas.de/

tel:%2B40%2021%20302%2002%2063

mailto:[email protected]

http://www.pravnik-online.info/


5

CONTENTS FOREWORDS ............................................................................................................................... 7

THE HUMAN RIGHTS DISCOURSE AND THE QUESTION OF POWER: APPLICATION OF CRITICAL

DISCOURSE ANALYSIS TO THE STUDY OF THE HUMAN RIGHTS LANGUAGE

BY MARTA SZCZEPANIK* .................................................................................................. 13

RIGHT TO INFORMATION ABOUT PAST HUMAN RIGHTS VIOLATIONS AND MEASURES OF

UNCOVERING THE FACTS

BY MARTINA GORNIK * ..................................................................................................... 25

SEEKING JUSTICE WHILE NEGOTIATING PEACE: AN ESSAY ON THE (IN)COMPATIBILITY OF

TRANSITIONAL JUSTICE MEASURES AND PEACE NEGOTIATIONS

BY KAJA NANUT * ........................................................................................................... 35

‘COUNCIL OF EUROPE’ AND ‘ORGANIZATION OF ISLAMIC COOPERATION’ JOINT PROJECTS

FOR THE TRANSITION IN ARAB SPRING COUNTRIES

BY CÜNEYD ER * ............................................................................................................ 43

STATE RESPONSIBILITY FOR THE CONDUCT OF UN FORCES– CONSEQUENCES FOR FUTURE

UN MISSIONS? LESSONS FROM THE DUTCH RULINGS ON LIABILITY OF THE NETHERLANDS

FOR ACTS OF DUTCHBAT DURING THE UNPROFOR MISSION IN SREBRENICA

BY WASJA RIJS* ............................................................................................................. 51

»WE ARE SORRY«: THE TRUTH AND RECONCILIATION COMMISSION OF CANADA

BY RENATA RIBEŽL* ........................................................................................................ 67

THE YUGOSLAV SUCCESSOR STATES ON THEIR WAY TO EUROPEAN INTEGRATION: LESSONS

FROM PREVIOUS ENLARGEMENTS AND ONGOING CONFLICTS

BY KATHLEEN HASSEMANN* .............................................................................................. 79

PRIJEDOR 1992: VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW - CASE STUDIES:

CONCENTRATION CAMP OMARSKA, CONCENTRATION CAMP KERATERM AND

CONCENTRATION CAMP TRNOPOLJE

BY VIŠNJA ŠIJAČIĆ* ........................................................................................................ 91

TELLING THE TRUTH IN A DIVIDED SOCIETY: THE RECOM INITIATIVE IN BOSNIA AND

HERZEGOVINA

BY MARTINA ORLANDI * ................................................................................................. 105

FORGOTTEN VICTIMS: MALE SURVIVORS OF SEXUAL ABUSE IN THE AFTERMATH OF

CONFLICT IN BOSNIA AND HERZEGOVINA

BY ANNA GOPSILL* ........................................................................................................ 117

VICTIMS OF RAPE IN RWANDA AND BOSNIA AND HERZEGOVINA AND TRANSITIONAL JUSTICE

BY SRĐAN VIDAČKOVIĆ * ................................................................................................ 129

HUMAN RIGHTS VIOLATION IN KOSOVO: THE CONSEQUENCES OF KOSOVO CONFLICT AND

THE FUTURE OF COUNTRY

BY ENARDA CUNI * ........................................................................................................ 145

THE ROLE OF THE EUROPEAN UNION IN PROMOTING TRANSITIONAL JUSTICE IN THE

WESTERN BALKANS: PAST LESSONS AND FUTURE CHALLENGES

BY NINA MIROSAVLJEVIĆ* .............................................................................................. 157

MECHANISMS FOR GUARANTEEING HUMAN RIGHTS

BY CĂTĂLINA SĂRĂCUŢU* ............................................................................................... 167

HUMAN RIGHTS AND THE RIGHT TO LIFE

BY ALEKSANDAR TODOROSKI* ......................................................................................... 179


6


7

FOREWORDS More often than its inhabitants probably like it the name of the city of Sarajevo was mentioned in international publications and news media in 2014 because a century earlier, to be precise on 28th June 1914, the assassination of Franz Ferdinand, the heir to the Habsburg throne and, by accident, his wife duchess Sophie, in Sarajevo triggered the First World War, the causes of which are deeply complex. When Gavrilo Princip fired those fatal shots he had no idea what consequences this act would have. As the British Foreign Secretary Sir Edward Grey was to say, the lamps now began going out all over Europe. Austria-Hungary issued an ultimatum against Serbia which it expected the Serbs to reject, thus giving the empire the excuse it needed to attack and punish it. When Serbia refused to accept one of the conditions, Austria-Hungary declared war, prompting Serbia´s ally Russia to mobilise. Germany, allied to Austria-Hungary, viewed this as tantamount to a declaration of war, and so declared war on Russia. France, allied by treaty to Russia, was thus dragged into war with Germany, which then invaded Belgium, which in turn invoked a treaty from 1839 committing Britain to come to its defence. A month after Princip fired his shots, war had begun. Why were there no strong efforts to limit the crisis to a regional one by diplomatic means? Why were on the contrary political steps taken with the clear intent to escalate the crisis? While it is true that Gavrilo Princip was a Serbian nationalist and nationalism was powerful in the Balkans it must be mentioned that this was not at all different in other European countries. In Germany the outbreak of the war was greeted with rejoicing and enthusiasm. The war was called a “cleaning steel bath of the nation” and even intellectuals fell into the choir of the agitators. Max Weber said that this war was a great and wonderful one and how lovely it was to still to live to see it but very bitter not to be able any more to fight at the front. In a declaration signed by more than 3000 German professors you will find the clause “that it is our faith that the whole culture of Europe is linked to the victory, that the so-called German militarism will accomplish the discipline, loyalty and sacrifice of a united and free German people.” And also the Christian Churches in Germany did not call for peace but joined in the general nationalistic jubilation. When the war ended in November 1918 more than 17 million people, both soldiers and civilians, had been killed. Let me mention another historic event that affected Europe as a whole but also this country and this region: The collapse of socialism and the fall of the iron curtain 25 years ago. While for many European countries and peoples this meant freedom, the end of fearing a war between East and West and the beginning of a path to prosperity, in former Yugoslavia it meant the beginning of a series of wars that would cost another large number of victims, alone in Bosnia and Herzegovina more than 100,000 men and women died. And do not let us forget that the longest siege in the 20th century was the one of Sarajevo. It started on 5th April 1992 and lasted until 29th February 1996. During this 44 month siege snipers and mortars fired from the hills that surround the city, killing 11,541 people, among them more than 1,500 children.


8

What lessons can be learned from South-East Europe for Global peace and Security? The source of so many wars and endless suffering was a blind and fanatic nationalism which must never be confused with patriotism. As a German conscious of the history of his country and as a Christian Democrat I fully subscribe to the words of a German Social Democrat, Willy Brandt: “A good German cannot be a nationalist”. And I believe that this is true for every nation. Will we and future generations live in peace? Have we learned the right lessons from the past and will we be able to solve conflicts peacefully? The Alumni of the International Summer School Sarajevo are future leaders and decision makers and it is also their responsibility to answer these questions and to promote the right values, the respect for other countries and peoples, the respect for human and for minority rights, democracy and the rule of law and above all the uncompromising will to solve conflicts peacefully. Thorsten Geissler Director Rule of Law Program South East Europe Konrad-Adenauer-Stiftung


9

FOREWORDS Association “Pravnik”

For the last eight years the ISSS has attracted over two hundred young people from Europe, US and Asia. As we look back now, we are proud to see some of our alumni teaching at universities, working for governments of their respective countries or even establishing similar summer programmes abroad. Every year a new generation of students comes to Sarajevo, Bosnia and Herzegovina to learn more about different topics, such as the rule of law, transitional justice and human rights. We never wanted to have a programme for lawyers or political scientists only, as we have always believed in interdisciplinary approach. As our participants had different backgrounds, so did our lecturers. It was that group of people, composed of professors, NGO activists, politicians, diplomats, aid workers, journalists, and historians, which greatly contributed to the quality of the programme. Dozens of them came to teach, some of them coming back even several times, to transfer their knowledge and skills to our alumni. Almost exactly 100 years ago a young man has fired a shot which has started the World War I. Unfortunately this war was not the last war we saw since 1914. For the next 100 years wars and conflicts have ravaged our world. During the last century this region suffered massive consequences and failure to address root causes of conflicts has ignited conflicts which ravaged this region in the last decade of the millennium. Unfortunately, unlike many other post conflict societies and regions the nations and the regions in Western Balkans have not taken significant steps to deal with our most recent past. Political elites in these countries still use inflammatory rhetoric and hate speech to deepen gaps in societies in these regions. And instead of using the collapse of humanity from the conflicts in the 1990s as a motive for building sustainable peace they continue to create social tensions and continue to exploit radicalisation and fear for political gain. ISSS has since 2009 recognised the need to focus on the topic of transitional justice as a new approach in dealing with past atrocities and a strategy for sustainable approach to justice, rule of Law, reconciliation and peace building. And by empowering young professionals with the necessary skills we believe that we have made a difference and that we have contributed to the overall efforts to make this strategy work. Over the years, we have witnessed how ISSS contributed to lives of our alumni. It was not just the fact that some of them decided to pursue a career in human rights but it was also their dedication to continue raising awareness on violations of human rights and importance of rule of law though their work. Proof to that are articles presented in the fifth edition of the Journal of Rule of Law, Transitional Justice and Human Rights. Variety of topics selected by authors is indeed inspiring as it ranges from violations of rights of individuals to the group rights. Furthermore, some articles look at past events to be able to respond to future reconciliation efforts and at upcoming EU future as a precondition for more successful reforms in Bosnia and Herzegovina. With the fifth edition of the Journal in front of you, we hope to that you will recognize new generation of voices from the field suggesting alternative and critical approaches to contemporary challenges of transitional justice. Just like its first four editions, the Journal will be open for public as it represents the ISSS’ contribution to global efforts in analyzing, understanding and teaching about the rule of law, transitional justice and human rights.


10


11


12


13

The Human Rights Discourse and the Question of Power: Application of Critical Discourse Analysis to the

Study of the Human Rights Language

By Marta Szczepanik *

ABSTRACT

The idea of possible applicability of critical discourse analysis (CDA) to the study of the human rights language draws on the inseparable character of relationships between language, power and politics. In international politics of last decades human rights have become a globally accessible moral and legal language applied to express universal claims and to measure development. It has been used to legitimise political actions such as external interventions for regime change as well as to counteract cultural practices if they violate the rights of individual persons or reflect gender inequalities. This rhetoric has also served to establish a powerful perspective relating to the present and past collective experiences of injustice, violence or exclusion.

* Marta Szczepanik holds a MA degree in Psychology from the University of Warsaw and is currently a PhD student at the Graduate School for Social Research of the Polish Academy of Sciences. Since 2010 professionally involved with the Helsinki Foundation for Human Rights in Warsaw, currently as Project Coordinator and Research Officer in the Legal Assistance for Refugees and Migrants Programme. She gained experience with the International Organization for Migration, Polish Red Cross, Amnesty International and Polish Embassy in Washington D.C. Her research interests include relations between human rights and social phenomena, situation of minority and immigrant groups in Europe, multiculturalism and its critique, transition and reconciliation processes and formation of collective memory.


[14]

Introduction Critical discourse analysis as a research approach aims to deconstruct the discourse through which concepts and notions are being expressed in order to reveal hidden power relations. It may serve as an analytical tool for the study of the human rights rhetoric and its most prominent concepts (i.e. ‘democratisation’ or ‘international community’) through the critical examination of political decisions, legal regulations and agendas of national and supranational political actors that take human rights as a point of reference. Although human rights enjoy great publicity, their language often lacks conceptual clarity, what makes it vulnerable to abuse and tolerant to double standards, leading, as a result, to the loss of meaning. This article tries to look in a critical manner at the way human rights language operates, taking as example the discourse(s) surrounding (1) external interventions, (2) regulation of cultural practices and so-called (3) memorial legislation. Disclosure of perpetuating mechanisms and structures behind the human rights language which is the effect of such analysis, reveals the politicized nature of the concept and hidden relations of domination of Western-centric, neo-colonial and anachronic character entangled in the human rights regime. Critical Discourse Analysis (CDA) as an Approach Critical discourse analysis (CDA) is an approach in the humanities and social sciences in which texts of culture are examined in order to discover mechanisms and underlying assumptions that have made that culture dominant1. CDA was developed by the Lancaster school of linguists under the chairmanship of Norman Fairclough. The approach draws on several disciplines, such as critical linguistics and social theory (including works of Michel Foucault, Pierre Bourdieu and Jürgen

1 T.A. Van Dijk, ‘Principles of critical discourse analysis’, Discourse and Society April 1993 vol. 4 no. 2, pp. 249-250.

Habermas). It views language as a form of social practice and a useful lens through which the production of knowledge and meaning can be explored. It focuses on the ways social and political domination are reproduced in the discourse. Discourse(s) in Foucauldian understanding denote: ‘Ways of constituting knowledge, together with the social practices, forms of subjectivity and power relations which inhere in such knowledges and relations between them. Discourses are more than ways of thinking and producing meaning. They constitute the ‘nature’ of the body, unconscious and conscious mind and emotional life of the subjects they seek to govern’2. CDA serves as a means to examine ideologies and power relations involved in discourse. What is ‘critical’ in CDA is the commitment to intervene on the side of dominated and oppressed groups and against dominating ones. Proponents of CDA are convinced that language is not neutral as such, and therefore they agree that CDA cannot be neutral as a method3. Language connects with the social through being a domain of ideology and a site of struggles for power. CDA implies a normative commitment to social change through the efforts of disclosing power abuse and social inequality. It is more than a method, it is more an approach, way of thinking that is cross-disciplinary and involves different methods. A comprehensive analysis which involves deconstruction of underlying structures and assumptions reveals perpetuating mechanisms that sustain relations of power and produce social hierarchy. Fairclough also argues that discourses include not only representations of how things are and have been, but also imaginaries – representations of how

2 C. Weedon, Feminist Practice and Poststructuralist Theory, B. Blackwell (Oxford, UK and New York, NY, USA), 1987. 3 Van Dijk, ‘Principles of critical discourse analysis’.


[15]

things might or should be, projections of possible states of affairs4. CDA can be a useful approach for investigation in the field of political science and international relations, focusing on how political relationships are reflected in the language produced by different political actors. According to Anne Karine Jahren, discourse is a crucial component of the production and reproduction of power within international relations as modern forms of exercising power have significantly shifted from elementary recourse to force to the sort of power exercised in the cognitive sphere5. Why to Critically Analyse Human Rights? Legal and political developments reflecting humanity’s traumatic experience of the World War II, in particular of the Holocaust, have resulted in the establishment of the human rights regime as a powerful frame of reference in international politics expressed in a number of declarations, conventions and treaties. During the subsequent post-war decades human rights have become a globally accessible moral and legal language applied to express universal claims and to measure development: respect and compliance with human rights has become a standard imposed on developing countries, a requirement of successful post-conflict state building and political transformation. Human rights have been increasingly evoked to justify political actions such as support of democratisation processes worldwide or external interference in the affairs of sovereign states for the sake of ‘protection of human rights’ of their populations. In addition to that, human rights have been used as practically synonymous with the

4 Fairclough, N., The Dialectics of Discourse, Textus XIV.2 2001a, pp. 233-234. 5 A. K.. Jahren, ‘Use and Abuse of Human Rights Discourse’, International Relations Students E-IR, 27 October 2013, http://www.e-ir.info/2013/10/27/use-and-abuse-of-human-rights-discourse, date of access: 09.05.2014.

concept of justice and applied even to events distant in space and time. As human rights have become an instrument of international politics and its language has dominated political discourse, there is a legitimate need to reflect on the nature of the power mechanisms contained therein. The concept of human rights enjoys great publicity and support from various groups across the world, yet there is a lack of conceptual clarity about the actual meaning of its key concepts, such as ‘democracy’, ‘individual freedom’ or ‘autonomy’ or ‘liberty’ as well as about its origin and status (rather political or natural). As Mark Hannam puts it: ‘We are, today, far more likely than our ancestors to be sympathetic to arguments based on the premise that human rights must count for something, even though we might not be able to say precisely how much they should count for and why’6. Human rights have also become a subject of suspicion. One of the reasons is its false claim of universalism: even though the human rights tradition originated in the post-1945 Western reality and is based on Western values it has been widely applied to non-Western contexts7. This process has been reflected in the development of a specific language. For example, the phrase ‘international community’ has been coined in international relations to refer to a broad group of peoples, governments and international organisations that constitute a higher instance of moral and political authority entitled to assess the level of compliance of different actors with the human rights standards and, if necessary, authorise enforcement mechanisms. It is an essential term deriving from the claim of universality assuming that all the actors in a globalised and interdependent

6 M. Hannam, ‘On Human Rights’, Democratiya, 15 (2008), http://www.dissentmagazine.org/wp-content/files_mf/1390434123d15Hannam.pdf, date of access: 10.05.2014. 7 A. K.. Jahren, ‘Use and Abuse of Human Rights Discourse’.

http://www.e-ir.info/2013/10/27/use-and-abuse-of-human-rights-discourse



http://www.dissentmagazine.org/wp-content/files_mf/1390434123d15Hannam.pdf



[16]

world share the same values and implying, as a consequence, the existence of common duties and obligations. This provokes concern about Western power being exercised under the disguise of ‘human rights protection’ especially in postcolonial societies8. According to Noam Chomsky, the term ‘international community’ has already taken on a more specific meaning: it is regularly used to describe the United States and its allies9. The grave problem connected with the fact that universality of Western-created and conceptualised values is a delusion, is the lack of alternative concepts and the moral conflict related to a possibility of some states pursuing a non-democratic path where human rights are not only not observed, but do not at all exist in the political imagery. The claim of universality of human rights is the primary source of the human rights language abuse. This moral, political and, above all, legal framework has been elaborated in Western context at a particular moment of history. However, it has been gradually applied to other cultural and political contexts, in space – both externally (‘humanitarian intervention’, ‘export of democracy’, ‘war on terror’,) and internally (with regard to the representatives of other cultures residing in the territory of Western states), as well as in time (development of so-called ‘memorial legislation’ in which even some remote historical events are being contemporarily recognised according to the post-World War II definitions of ‘genocide’ or ‘crimes against humanity’). These three fields of application of the human rights discourse will be further analysed in detail. Possible Fields of Study Humanitarian intervention, democratisation and war on terror

8 Hannam, ‘On Human Rights’. 9 Chomsky, N., ‘The Crimes of ”Intcom”’, Foreign Policy, September 2002, http://www.chomsky.info/articles/200209--.htm, date of access: 10.05.2014.

In international politics, the concept of ‘international community’ provides for legitimisation of any coercive action undertaken to prevent or counteract massive human rights violation in countries that have failed to protect their own citizens. It is necessary to explain why in particular situations state sovereignty and the principle of non-intervention which constitute the basis of international relations can be breached. These kinds of interventions can take place only in a situation when all other means – diplomatic efforts or economic sanctions – have been exhausted. ‘Humanitarian interventions’, denoting military and coercive action, should be differentiated from ‘peacekeeping operations’ – military action in cooperation with the state which is therefore consensual. ‘Humanitarian aid’, ‘assistance’ or ‘relief’ all refer to the non-military actions and would mostly be used as synonymous, although ‘aid’ suggest more state-led (governmental) system, ‘assistance’ – provided by the wide variety of entities, NGO’s etc., ‘relief’ – a direct emergency response10. Some scholars argue that certain notions, like ‘humanitarian intervention’, are already contradictory at their core, as what it is actually meant by it is more a ‘humanitarian war’11. According to the principles of international law, humanitarian intervention is a concept that allows military action in a situation when the UN Security Council cannot pass a resolution under Chapter VII of the United Nations Charter12 due to veto by a permanent member. Therefore, the

10 J. Pattison, Humanitarian Intervention and the Responsibility To Protect: Who Should Intervene?, Oxford University Press, 2010. 11 A. De Waal, R. Omaar, ‘Can Military Intervention be “Humanitarian”?’ Middle East Report, 187/188 (March-June 1994): 2-8. 12 Chapter VII allows the Security Council to take action in situations where there is a ‘threat to the peace, breach of the peace or act of aggression’. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, http://www.refworld.org/docid/3ae6b3930.html, date of access: 25.05. 2014.

http://www.chomsky.info/articles/200209--.htm

http://www.refworld.org/docid/3ae6b3930.html


[17]

concept is criticised for serving to circumvent the UN Security Council authorisation in the case of dissenting votes13. In addition to that, as noted by Marjanovic: as at any given time numerous states are involved in human rights violations, ‘the principle of humanitarian intervention taken to its logical conclusion is a recipe for endless war’14. Humanitarian intervention also allows a state to launch a war under motivations that substantially differ from the true aim of the war and is followed by a long-lasting foreign military, political and economic presence in the regions subjected to intervention and their de facto reduction to a quasi-colonial status15. For this reason Western states have faced charges from the non-Western leaders for executing contemporary crusades and new forms of colonialism, under the guise of human rights protection. Jahren is interested in exploring the reasons why the human rights discourse is so attractive in foreign policy and prone to rhetorical abuse by policymakers. She has argued that: ‘It is the combination of emotional appeal and lack of conceptual clarity that makes human rights immensely effective as a rhetorical tool: it is difficult to disagree with arguments that are, if only in a rhetorical sense, grounded in ethical considerations of human rights’16.

Jahren later traces how the use of human rights as a rhetorical tool can be seen in speeches made by George W. Bush administration in relation to the ‘war on terror’. President used this phrase in September 2001 in his official addresses that followed the 9/11 attacks. On 16

13 Pattison, Humanitarian Intervention and the Responsibility To Protect: Who Should Intervene?, 14 M. Marjanovic, Is Humanitarian War the Exception? 4 April 2011, http://mises.org/daily/5160/Is-Humanitarian-War-the-Exception, date of access: 10.05.2014. 15 Ibid. 16 A. K.. Jahren, ‘Use and Abuse of Human Rights Discourse’

September 2001, at Camp David, he first spoke of ‘a crusade – war on terrorism’ that ‘was going to take a while’17 and on 20 September 2001, during a televised address, he stated that ‘our “war on terror” begins with al-Qaeda, but it does not end there, it will not end until every terrorist group of global reach has been found, stopped and defeated’18. In Bush’s State of the Union Address of 29 January 2002 he introduced another term, later often repeated throughout his presidency – ‘axis of evil’ which was used to refer to governments of Iran, Iraq and North Korea accused by the American administration of supporting terrorism and accumulating weapons of mass destruction, common enemies of the United States in the ‘war on terror’19. Richard Jackson notes that the ‘war on terror’ has, alongside with the set of actual practices — wars, covert operations, interrogations, agencies, and institutions, an entire discursive dimension – assumptions, beliefs, justifications, and narratives20. It is in fact also a rhetorical war with a specific language being used to deliberately manipulate public anxiety about terrorist threats to gain support for military actions. This was possible mainly because of the diffuse and unclear character of the concept of ‘war on terror’. Jackson further refers to the statement of John Ashcroft, former US Attorney General that ‘the attacks of September 11 drew a bright line of demarcation between the civil and the

17 K. R. Bazinet, ‘A Fight Vs. Evil, Bush And Cabinet Tell U.S’, New York Daily News, 17 September 2001, http://www.nydailynews.com/archives/news/fight-evil-bush-cabinet-u-s-article-1.919650, date of access: 09.05.2014. 18 CNN, Transcript of President Bush’s address of 20 September 2001, http://edition.cnn.com/2001/US/09/20/gen.bush.transcript, date of access: 10.05.2014. 19 Bush, G. W. ‘State of the Union Address’ (The White House, Washington, D. C., 29 January 2002), http://georgewbush-whitehouse.archives.gov/news/releases/2002/01/20020129-11.html, date of access: 10.05.2014. 20 R. Jackson, Writing the War on Terrorism: Language, Politics and Counter-terrorism, Manchester University Press, 2005.

http://www.euforbih.org/

http://www.euforbih.org/

http://en.wikipedia.org/wiki/High_Representative_for_Bosnia_and_Herzegovina

http://en.wikipedia.org/wiki/High_Representative_for_Bosnia_and_Herzegovina

http://mises.org/daily/5160/Is-Humanitarian-War-the-Exception


http://www.nydailynews.com/archives/news/fight-evil-bush-cabinet-u-s-article-1.919650


http://edition.cnn.com/2001/US/09/20/gen.bush.transcript

http://edition.cnn.com/2001/US/09/20/gen.bush.transcript

http://georgewbush-whitehouse.archives.gov/news/releases/2002/01/20020129-11.html




[18]

savage’. The language of administration officials’ was a language of dehumanisation of the enemy in which terrorists were depicted as hateful, barbarous, perverted, inhuman, and evil. Americans, in contrast, were described as brave, generous, heroic, and respectful of human rights. Furthermore, according to Peck, the Bush administration’s discourse has integrated ‘war on terror’ with the aims of democratisation, human rights and regime change. As such, military operations in Iraq and Afghanistan have been said to be ‘couched in the ethical language of caring for others rather than merely the narrow pursuit of the interests of state’21. Responses to ‘Illiberal Cultures’22 CDA can be applied to the study of moral legitimacy of Western states to interfere in minority practices that collide with the notion of equality, individual freedom and the right to choose that are at the core of the liberal system of values. Western societies, on the one hand, have granted their minorities the right to enjoy their own culture, practice their own religion and use their own language, as well as the right to be protected from discrimination, hatred and violence. On the other hand, these societies find some cultural or religious practices, such as rites of passage performed on child’s body (male circumcision, female genital mutilation23), arranged marriages or constraint on public education of girls to interfere with their fundamental values. As to regulations of family life, Western public opinion expresses strong criticism towards cultural practices reflecting gender inequalities (arranged early marriages, polygamy, honour killings, and some

21 J. Peck, Ideal Illusions, New York, Metropolitan Books, 2011 23 For more information see: M. Szczepanik, ‘Should male circumcision be made illegal in Europe? The 2012 German court decision in the European debate on toleration and “illiberal practices”’. In: M. Fagasiński, M. Szczepanik (eds.), Between incentives and restrictions – responses to 21st century migration challenges in selected European countries. Helsinki Foundation for Human Rights, Warsaw 2014.

aspects of Sharia law). In addition to that, the rights of animals have also recently become a bone of contention, as several states under the pressure of animal rights activists debated the legality of ritual slaughter, traditional way of providing meat in Judaism in Islam24. Legal solutions and policy measures which have been adopted to respond to cultural conflicts are ambiguous and reveal cross-culture hypocrisy. For example, the right to dispose of one’s own body has been approached in a culturally biased manner, when in the 2012 ruling the German court in Cologne condemned the religious practice of male circumcision performed in Muslim and Jewish communities as ‘violating the integrity of the body’ and ‘imposing a religious identity on a child without his or her consent’25. At the same time practices such as plastic surgery and tattooing have not faced any criticism. Moreover, even in Christianity, when baptising a child, the parents pre-construct his or her religious position without obtaining informed consent and without involving him or her in the decision process. To give another example, Western societies do not accept gender-based inequalities in ‘illiberal cultures’ but their own struggle for gender equality is incomplete and ongoing. It is very doubtful too that they are treating animals in a humane way (allegedly better than communities practicing ritual slaughter). Critical analysis of Western states’ responses to ‘difficult diversity’ of minority cultures reveals the problem of the moral right of Western states to interfere in minority practices as their own 24 BBC Europe News, Polish ritual slaughter illegal, court rules, 28 November 2012, http://www.bbc.co.uk/news/world-europe-20523809, date of access: 07.05.2014 and A. Withnall, ‘Denmark bans kosher and halal slaughter as minister says “animal rights” come before religion’, The Independent, 18 February 2014, http://www.independent.co.uk/news/world/europe/denmark-bans-halal-and-kosher-slaughter-as-minister-says-animal-rights-come-before-religion-9135580.html, date of access: 11.05.2014. 25 S. Evans, ‘German circumcision ban: Is it a parent's right to choose?’ BBC News Magazine, 12 July 2012, http://www.bbc.co.uk/news/magazine-18793842, date of access: 10.05.2014.

http://www.bbc.co.uk/news/world-europe-20523809


http://www.independent.co.uk/news/world/europe/denmark-bans-halal-and-kosher-slaughter-as-minister-says-animal-rights-come-before-religion-9135580.html




http://www.bbc.co.uk/news/magazine-18793842



[19]

adherence to norms and values they appeal to is often questionable. Memorial Legislation26 The notion of memorial legislation refers to the progression of legal measures of national and supranational nature that aim to introduce norms of desired social conduct in relation to the past events. It reflects the development of an intensified and complicated dialogue between law and collective memory. This dialogue in several countries has resulted in the introduction of measures intended to combat acts of revisionism, including the negation of crimes against humanity, in particular of the Holocaust, laws on the recognition of genocide, guidelines on the interpretation of slavery and colonialism, as well as in the establishment of the days of remembrance. Legal measures that address today the question of protection of the collective memory are rooted in and derive from post-war legal, political and social developments that responded to the mass atrocities committed during the war and revealed in Nuremberg Trials. This record of heinous crimes, unimaginable and yet committed by the mankind, constituted a legacy that forced the decision-makers of the time to introduce adequate preventive measures so that ‘it can never happen again’. These measures included, among others, the establishment of the legal definition of the crime of genocide and its subsequent penalization in the international law27.

26 This subchapter contains some ideas that I have previously covered in the article: M. Szczepanik, ‘Can law save memory? Rethinking the role of legal measures in collective denial, forgetting and remembrance’, Acta Humana – Human Rights Periodical of the National University of Public Service, Budapest 2014. 27 It was largely the effect of advocacy work performed by Raphael Lemkin, who coined the term ‘genocide’ in 1944 (Lemkin, 1944) and continued to campaign internationally until in 1948 the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide that entered into force in 1951.

The international human rights regime and rule of law that aimed at protecting populations and preventing genocide were a part of the ‘never again’ pursuit. It developed in parallel with the reflection on the genesis and mechanisms of genocide and genocide denial as its inherent part28. The last 20 years have witnessed increasing calls for an equal recognition of atrocities that had been committed long before the legal and academic reflection on genocide took place. In 1990s and 2000s a series of retroactive memory laws was adopted in several states in attempt of coming to terms with the painful past. More than 20 countries recognised the massacre of Armenians committed by the Ottoman Empire in 1915–1923 as genocide29. In 2001 it was recognised by France (Loi ‘Arménie’ of 29 January 200130) which in the same year passed a law recognizing slave trade and slavery itself practised from the 15th century as crimes against humanity and requiring that a respective information be contained in history textbooks (Loi ‘Taubira’ of 21 may 200131). In 2007, Spanish Congress of Deputies adopted the Historical Memory Law (Ley de Memoria Histórica32) in which

28 G. H. Stanton, The 8 Stages of Genocide, originally presented as a briefing paper at the US State Department in 1996, http://www.genocidewatch.org/images/8StagesBriefingpaper.pdf, date of access: 10.05.2014. 29 Armenian National Institute, International Recognition of Armenian Genocide – Encyclopedia, http://www.armenian-genocide.org/recognition.html, date of access: 10.05.2014. 30 Loi ‘Arménie’ of 29 January 2001 (Loi n°2001-70 du 29 janvier 2001 relative à la reconnaissance du génocide arménien de 1915), http://www.assemblee-nationale.fr/11/dossiers/genocide.asp, date of access: 09.05.2014. 31 Loi ‘Taubira’ of 21 may 2001 (Loi nº 2001-434 du 21 mai 2001 tendant à la reconnaissance des traites et des esclavages comme crime contre l'humanité), http://www.assemblee-nationale.fr/11/dossiers/esclavage.asp, date of access: 09.05.2014. 32 Ley de Memoria Histórica, LEY 52/2007, de 26 de diciembre, por la que se reconocen y amplían derechos y se establecen medidas en favor de quienes padecieron persecución o violencia durante la Guerra Civil y la Dictadura. (BOE nº 310, de 27/12/2007),

http://www.genocidewatch.org/images/8StagesBriefingpaper.pdf


http://www.armenian-genocide.org/recognition.html


http://www.assemblee-nationale.fr/11/dossiers/genocide.asp


http://www.assemblee-nationale.fr/11/dossiers/esclavage.asp



[20]

the state recognises victims on both sides of the Spanish Civil War of 1936-1939 and the subsequent dictatorship of General Francisco Franco, and gives rights to victims and their descendants. Memorial regulations provoke a debate on the role that law should play in defining history and in shaping the narrative of collective memory. It also calls for a reflection on the reasons why we do now

have a need to legally recognize inhumane acts from remote history as crimes against humanity and place them in the post-World War II legal framework. The problems of recognition of genocides or crimes against humanity involve variety of often conflicting interests: search for recognition of historical truth, dignity of affected communities and political agendas of states and parties. It is often due to a long-lasting advocacy work of particular groups, such as minority groups or diasporas, that particular historical event receives international recognition. This was for example the case of the Armenian genocide where the recognition in 1990s and 2000s was the result of intense activity of Armenian diasporas, in particular in France and in the United States33. For the same reasons Porajmos – the genocide of Roma people has not received such a recognition; due to the lack of significant collective memory and documentation of the genocide among the Roma, a consequence both of their oral traditions and illiteracy, widespread poverty, social inequalities and discrimination as well as to the culturally determined reluctance among Roma themselves to acknowledge victimization, there were no conditions for such an activism to develop34. State’s official

http://www.boe.es/boe/dias/2007/12/27/pdfs/A53410-53416.pdf, date of access: 09.05.2014. 33 H.S. Gregg, ‘Divided They Conquer: The Success of Armenian Ethnic Lobbies in the United States’, Working paper 13, Rosemary Rogers Working Paper Series, http://web.mit.edu/cis/www/migration/pubs/rrwp/13_divided.pdf/, date of access: 05.10.2013. 34 I. Hancock, ‘True Romanies and the Holocaust: A Re-evaluation and an overview’, The Historiography of the Holocaust, New York, Palgrave Macmillan, 2005, pp. 383–396.

position in relation to the past can become an important factor in international relations, especially when it becomes part of conditionality policy of international bodies and institutions towards their members or membership candidates. For example, the recognition by Serbia of the country’s role in the 1995 Srebrenica massacre of Bosnian Muslim men and boys has become an important postulate from the part of the European Union, as a necessary condition for a durable reconciliation and peacekeeping effect in the Balkans35. Critical analysis of the political mechanisms underlying ‘memory laws’ reveals the discretionary and ideological character of the phenomenon of memorial legislation that frames the past so that it responds to collective expectations of the present. Secondly, it draws attention to the question of separation between the order of law (which is one of crime and punishment) the order of memory, as well as of the limits of responsibility of a historian and of a legislator in front of people and communities. Lastly, it reveals the problem of anachronism of memorial legislation and of the danger that the ‘boundless retroactivity of the law’ may lead to the victimisation of the past, when laws that had been elaborated in the aftermath of the World War II are being applied to the context where they do not belong. For, as Pierre Nora argues, ‘history is nothing but one long series of crimes against humanity’36.

35 V.P. Zimonjić, A. McDonald-Gibson, ‘Serbian President asks for pardon over Srebrenica massacre’, The Independent, 25 April, 2013, http://www.independent.co.uk/news/world/europe/serbian-president-asks-for-pardon-over-srebrenica-massacre-8588828.html, date of access: 08.05.2014. 36 P. Nora, Historical identity in trouble, Liberté pour l’histoire, CNRS Editions, 2008, http://www.lph-asso.fr/index.php?option=com_content&view=article&id=152%3Amalaise-dans-lidentite-historique&catid=61%3Apierre-nora&Itemid=182&lang=en, date of access: 14.05.2014.

http://www.boe.es/boe/dias/2007/12/27/pdfs/A53410-53416.pdf


http://web.mit.edu/cis/www/migration/pubs/rrwp/13_divided.pdf/


http://www.independent.co.uk/news/world/europe/serbian-president-asks-for-pardon-over-srebrenica-massacre-8588828.html



http://www.lph-asso.fr/index.php?option=com_content&view=article&id=152%3Amalaise-dans-lidentite-historique&catid=61%3Apierre-nora&Itemid=182&lang=en






[21]

Conclusions CDA, as applied to the study of the human rights language, permits to examine the relationship between human rights, power and language. It relies on Foucauldian assumptions that ideology is embedded in language. It serves as a tool to trace underlying asymmetrical relations between the actors of international politics entangled in the powerful discourse of human rights that conceals actual political interests. As it was argued, what enables political actors such a misuse and abuse of the human rights language is the lack of conceptual clarity over its essential notions. Rhetoric of human rights has become widespread but the meaning of the language remains vague and obscure. As such, it becomes prone to discretionary interpretations and manipulation, so that it can correspond to hidden agendas of political actors. Another factor is the explicit claim of universality assuming that all the actors in a globalised world share the same values and implying the imposition of common duties and obligations. This gives grounds for concerns of postcolonial societies about Western power being exercised under the disguise of ‘human rights protection’. Furthermore, power relations underlie the attempts to apply human rights framework to historical context where remote historical events are (selectively) recognised as ‘genocides’ and ‘crime against humanity’. What CDA also reveals is the weakness of human rights language as such. The ambiguity of its definition and the false premise of universalism are the key reasons for the failure of the human rights language to become a unifying discourse in international politics.


[22]

BIBLIOGRAPHY

Armenian National Institute, International Recognition of Armenian Genocide – Encyclopedia, http://www.armenian-genocide.org/recognition.html, date of access: 10.05.2014. Bazinet, K. R., ‘A Fight Vs. Evil, Bush And Cabinet Tell U.S’, New York Daily News, 17 September 2001, http://www.nydailynews.com/archives/news/fight-evil-bush-cabinet-u-s-article-1.919650, date of access: 09.05.2014. BBC Europe News, Polish ritual slaughter illegal, court rules, 28 November 2012, http://www.bbc.co.uk/news/world-europe-20523809, date of access: 07.05.2014. Bush, G. W. ‘State of the Union Address’ (The White House, Washington, D. C., 29 January 2002), http://georgewbush-whitehouse.archives.gov/news/releases/2002/01/20020129-11.html, date of access: 10.05.2014. Chomsky, N., ‘The Crimes of 'Intcom'’, Foreign Policy, September 2002, http://www.chomsky.info/articles/200209--.htm, date of access: 10.05.2014. CNN, Transcript of President Bush’s address of 20 September 2001, http://edition.cnn.com/2001/US/09/20/gen.bush.transcript/, date of access: 10.05.2014. De Waal, A., Omaar, R. (1994). ‘Can Military Intervention be “Humanitarian”?’ Middle East Report, 187/188 (March-June): 2-8. Evans, S. ‘German circumcision ban: Is it a parent's right to choose?’ BBC News Magazine, 12 July 2012, http://www.bbc.co.uk/news/magazine-18793842, date of access: 10.05.2014. Fairclough, N., Critical Discourse Analysis, Boston: Addison Wesley, 1995. Fairclough, N., Holes, C., Critical Discourse Analysis: The Critical Study of Language. Longman, 1997. Fairclough, N., The Dialectics of Discourse, Textus XIV.2 2001a, pp. 231-242. Foucault, M. ‘The Subject and Power’, Critical Inquiry, 8 (1982). Gregg, H.S., ‘Divided They Conquer: The Success of Armenian Ethnic Lobbies in the United States’, Working paper 13, Rosemary Rogers Working Paper Series, http://web.mit.edu/cis/www/migration/pubs/rrwp/13_divided.pdf/, date of access: 05.10.2013. Hancock, I., ‘True Romanies and the Holocaust: A Re-evaluation and an overview’, The Historiography of the Holocaust, New York, Palgrave Macmillan, 2005, pp. 383–396.

Hannam, M. ‘On Human Rights’, Democratiya, 15 (2008), http://www.dissentmagazine.org/wp-content/files_mf/1390434123d15Hannam.pdf, date of access: 10.05.2014. Jackson, R., Writing the War on Terrorism: Language, Politics and Counter-terrorism, Manchester University Press, 2005. Jahren, A. K., ‘Use and Abuse of Human Rights Discourse’, International Relations Students E-IR, 27 October 2013, http://www.e-ir.info/2013/10/27/use-and-abuse-of-human-rights-discourse, date of access: 09.05.2014. Lemkin, R., Axis Rule in Occupied Europe: Laws of Occupation – Analysis of Government - Proposals for Redress, Carnegie Endowment for International Peace, Washington D.C., 1944. Ley de Memoria Histórica, LEY 52/2007, de 26 de diciembre, por la que se reconocen y amplían derechos y se establecen medidas en favor de quienes padecieron persecución o violencia durante la Guerra Civil y la Dictadura. (BOE nº 310, de 27/12/2007), http://www.boe.es/boe/dias/2007/12/27/pdfs/A53410-53416.pdf, date of access: 09.05.2014.







http://www.chomsky.info/articles/200209--.htm

http://edition.cnn.com/2001/US/09/20/gen.bush.transcript/








[23]

Loi ‘Arménie’ of 29 January 2001 (Loi n°2001-70 du 29 janvier 2001 relative à la reconnaissance du génocide arménien de 1915), http://www.assemblee-nationale.fr/11/dossiers/genocide.asp, date of access: 09.05.2014. Loi ‘Taubira’ of 21 may 2001 (Loi nº 2001-434 du 21 mai 2001 tendant à la reconnaissance des traites et des esclavages comme crime contre l'humanité), http://www.assemblee-nationale.fr/11/dossiers/esclavage.asp, date of access: 09.05.2014. Marjanovic, M., Is Humanitarian War the Exception? 4 April 2011, http://mises.org/daily/5160/Is-Humanitarian-War-the-Exception, date of access: 10.05.2014 Nora, P., Historical identity in trouble, Liberté pour l’histoire, CNRS Editions, 2008, http://www.lph-asso.fr/index.php?option=com_content&view=article&id=152%3Amalaise-dans-lidentite-historique&catid=61%3Apierre-nora&Itemid=182&lang=en, date of access: 14.05.2014. Oddone, E., Heneghan T., Char, P., ‘German court bans circumcision of young boys’, Reuters, 27 June 2012, http://www.reuters.com/article/2012/06/27/us-germany-circumcision-idUSBRE85Q19Y20120627, date of access: 09.05.2014 Pattison, J., Humanitarian Intervention and the Responsibility To Protect: Who Should Intervene?, Oxford University Press, 2010. Peck, J., Ideal Illusions, New York, Metropolitan Books, 2011. Stanton, G. H., The 8 Stages of Genocide, originally presented as a briefing paper at the US State Department in 1996, http://www.genocidewatch.org/images/8StagesBriefingpaper.pdf, date of access: 10.05.2014. Szczepanik, M. ‘Can law save memory? Rethinking the role of legal measures in collective denial, forgetting and remembrance’, Acta Humana – Human Rights Periodical of the National University of Public Service, Budapest 2014.

Szczepanik, M., ‘Should male circumcision be made illegal in Europe? The 2012 German court decision in the European debate on toleration and “illiberal practices”’. In: Fagasiński, M., Szczepanik, M. (eds.), Between incentives and restrictions – responses to 21st century migration challenges in selected European countries. Helsinki Foundation for Human Rights, Warsaw 2014. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, http://www.refworld.org/docid/3ae6b3930.html, date of access: 25.05. 2014. Van Dijk, T.A., ‘Principles of critical discourse analysis’, Discourse and Society April 1993 vol. 4 no. 2, pp. 249-283. Weedon, C., Feminist Practice and Poststructuralist Theory, B. Blackwell (Oxford, UK and New York, NY, USA), 1987. Withnall, A., ‘Denmark bans kosher and halal slaughter as minister says “animal rights” come before religion’, The Independent, 18 February 2014, http://www.independent.co.uk/news/world/europe/denmark-bans-halal-and-kosher-slaughter-as-minister-says-animal-rights-come-before-religion-9135580.html, date of access: 11.05.2014. Zimonjić, V.P., McDonald-Gibson, A., ‘Serbian President asks for pardon over Srebrenica massacre’, The Independent, 25 April, 2013, http://www.independent.co.uk/news/world/europe/serbian-president-asks-for-pardon-over-srebrenica-massacre-8588828.html, date of access: 08.05.2014.








http://www.reuters.com/article/2012/06/27/us-germany-circumcision-idUSBRE85Q19Y20120627

http://www.reuters.com/article/2012/06/27/us-germany-circumcision-idUSBRE85Q19Y20120627


http://www.refworld.org/docid/3ae6b3930.html






[24]


[25]

Right to Information about Past Human Rights Violations and Measures

of Uncovering the Facts

By Martina Gornik *

ABSTRACT

The disintegration of the former Yugoslavia was followed by a series of wars during the nineties, marked by serious human rights violations. The legacy of violence in the past still hovers over the region and threatens human rights and social cohesion.

The purpose of this essay is to emphasize that the right to information about past human rights violations remains fundamental to achieving national reconciliation and also, it aims to survey the wide range of means whereby this can be achieved.

“When considering the question should we remember? It is very important to firstly ask, has

any victim forgotten? Could they ever forget? Secondly we should ask, who wants to forget? Who benefits when all the atrocities stay

silent in the past? ” (Roberto Cabrera – Guatemalan human rights activist)

* Martina Gornik: Martina Gornik is currently pursuing a Master Degree in law at the University of Zagreb. She spent one semester studying law and languages in Dunkerque, France. She speaks fluent English and French and is learning German. She is currently working on her thesis on the subject of "Right to access to information". In addition, she is very active in civil society organisations. So far, she has actively participated in international conferences, summer schools and projects.


26

Introduction In order to be effective, transitional justice measures should be approached holistically. Such measures include criminal prosecutions, truth commissions, reparations programs and various kinds of institutional reforms. Truth-seeking includes initiatives that can allow actors in one country to investigate past abuses and seek redress for victims, to enable societies to make peace with past and human rights violations in order to prevent their recurrence. These initiatives help create documentation that prevents repressive regimes from rewriting history and denying the past. They can also help victims obtain closure by knowing the truth about what actually happened to their families, their friends, their loved ones and understanding the atrocities they endured. Truth-seeking measures may include freedom of information legislation, declassification of archives, investigations, and truth commissions. Article 1937 of the Universal Declaration of Human Rights, in its guarantee of access to information, included the right to facts about past human rights violations. We can reasonably consider that the “right to truth” about past human rights violations derives from the more general right of access to information. This should be applied on situations where past violations have been on a massive and systematic scale, though the principal concern here is the right of victims of human rights violations or their families and relatives to information about what has happened to them. Information about past violations is today usually seen from a number of perspectives: • Bringing the perpetrators of human rights violations to justice;

37 Article 19 states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

• Bringing about reconciliation or resolving conflict between different groups; • Providing compensation or restitution for the victims of human rights violations; • Providing public acknowledgement of the suffering of victims of human rights abuses.38 The right to seek, receive and impart information, recognized as important in the promotion of democratic accountability and participation, also places an obligation upon governments to facilitate the uncovering of information about past human rights violations. It requires governments not just to establish their own means of establishing the truth about past violations, but to co-operate with civil society initiatives to the same end. The way the argument on truth and reconciliation originally proceeded was as follows: at moments of transition, human rights activists argued for a thorough investigation of past violations. Governments replied that they would like to carry out this investigation, but their prime concern was reconciliation. The problem was that they would also point out that they relied upon a security apparatus that was itself implicated in abuse and could not risk testing its loyalty. Then the human rights lobby responded that proper reconciliation is not possible without uncovering the truth: you cannot ask people to reconcile unless they know what they are reconciling with39. To conclude, the right to truth about past human rights violations is an important aspect of the publics' wider ''right to know''. The right to know is not absolute so it means that governments are not 38 „WHO WANTS TO FORGET? Truth and Access to Information about past Human Rights Violations“, p. 7, online at: http://www.article19.org/data/files/pdfs/publications/freedom-of-information-truth-commissions.pdf 39 „WHO WANTS TO FORGET? Truth and Access to Information about past Human Rights Violations“, p. 42, online at: http://www.article19.org/data/files/pdfs/publications/freedom-of-information-truth-commissions.pdf


27

required to provide every individual with any information. For example, the question of privacy will sometimes be raised. Any restrictions on the freedom of information should be clearly and narrowly drawn and subject to strict public interest tests. There should be a clear presumption in favour of the right to information about serious human rights violations and the authorities should justify their refusal to make information available on request. Truth Commissions Considering freedom of information, truth commissions include a number of investigative steps such as: protecting evidence, compiling archives, interviewing victims and key political actors, opening and publishing state information, and producing reports and recommendations. To start, Truth Commissions are fundamentally to do with the publics' ''right to know'' rather than with achieving their right through the courts. In the context of transition from the complicated internal conflicts to a more democratic society it is difficult to avoid certain ''trade-offs'' between truth and justice. In these situations, it is legitimate to consider whether some form of “trade-off”, however undesirable, may be in some circumstances “less bad” than the other options that are available. The early truth commissions were to do with uncovering facts that had been denied. Most obviously this applied to the phenomenon of “disappearances”: a form of human rights violation that by its very nature is to do with concealment.40 The main advantage of truth commissions over other truth-seeking measures is their official status. They are established for the purpose of uncovering facts about the past and their result is a definitive statement of the historical record. Thus,

40 „WHO WANTS TO FORGET? Truth and Access to Information about past Human Rights Violations“, p. 41, online at: http://www.article19.org/data/files/pdfs/publications/freedom-of-information-truth-commissions.pdf

truth commissions have been a popular option. Opening the Files Some countries took a different path and did not go with the truth commission model. It sometimes involved opening the records of the old regime to public. In its most sophisticated form, as in the former East Germany, this has involved setting up by statute a mechanism to allow the public access to the files held on them by the former secret police. The process of opening the files was most thoroughly achieved in Germany. There were two main reasons for this. First, the East German secret police, the Statsi, was arguably the most assiduous and comprehensive of the Communist intelligence agencies. The second reason is that the East German state did not simply collapse, as other Communist states did, to be followed by an awkward transitional period.41 This is a set of historical circumstances that are unlikely ever to be repeated. For example, even two decades after the war in Croatia ended, there is still no unique, publicly accessible and verifiable list of Croatian citizens who were either killed or went missing during the war. Such a situation still enables ideological and political manipulation of the number of victims and it doesn't help in easing the effects of the war nor does it enable opening of the space for building trust and sustainable peace. The wars which were fought on the territory of former Yugoslavia during the 1990s resulted in extremely hard consequences which lead to different forms of suffering. In the 1990s wars, some 130.000 were killed. Almost 20.000 people on the territory of former Yugoslavia went missing and the number

41 „WHO WANTS TO FORGET? Truth and Access to Information about past Human Rights Violations“, p. 46, online at: http://www.article19.org/data/files/pdfs/publications/freedom-of-information-truth-commissions.pdf


28

of refugees was around one million.42 That also means that even though establishing the facts is not a small challenge, even bigger one is finding ways to get the facts thoroughly and clearly presented to the public. Parliamentary debate and the contents of textbooks in Serbia, Croatia and Bosnia-Herzegovina, in the part in which they are referring to the period of the armed conflict of the 1990s, all illustrate the problem of official truth about this period as one-sided or focused on an idealized representation of their people and blaming others that participated in this war. Ad hoc International Tribunals and Permanent Documentation The international community has no choice: documentation of the tribunals must be preserved and protected and made available. It is necessary to create international tribunals' archives as well as the standards for the selection, care and management of the documents. These documents might be the key resource for victims, civic activists, academics, journalists, educators and successors of the current judges. Also, there should be clear rules on access to these documents. The rules on access to documents of temporary international criminal tribunals must reflect the publics' right to have an insight into the functioning of the court and the right of individuals to protect the information about them from potentially harmful disclosure of such data to the public. The rules on access to documents must indicate the access of which information may be restricted in what situations. The fact that about one third of the data in the judicial database of the International Criminal Tribunal for the Former Yugoslavia is confidential indicates the complexity of problems concerning the right of access to documents that must be solved.

42 „Working on dealing with the past“, Slaven Rašković, Documenta, 2012, p. 64., online at: http://www.documenta.hr/

Organizations of historic significance deliver important documents. The purpose of keeping the documentation is that it is used. As a former prosecutor of the International Criminal Tribunal for the former Yugoslavia, Louise Arbour wrote: “If we want to fully exploit the potential of criminal proceedings for war crimes, it should be done partly in order to punish, partly to prevent recurrence but, mostly, for understanding.“43 The archives provide this understanding. Freedom of Information Laws Another neglected mechanism for gaining access to information about past human rights abuses is access to information laws themselves. Any freedom of information law implies a balance between the interests of openness and those of privacy. The Act tries to resolve these questions by distinguishing between various categories of applicants who may have access to the records, as well as various types of person about whom information may be held. The categories of people or institutions who may have access to the files are individuals, public and private bodies and those carrying out political or historical research. In principle, there is no reason why a similar approach should not be adopted anywhere where the repressive apparatus has been characterized by systematic recordkeeping. The general reluctance on the part of governments to do this derives, perhaps, from two reasons – one legitimate, the other not. The first is that the information contained in the files of repressive apparatus is not necessarily accurate. The second reason why the authorities are reluctant to open the files is the same as their customary opposition to freedom of information legislation: the citizens are not trusted with access to official information. The potential weaknesses of freedom of information laws to gain access to

43 „Forum za tranzicionu pravdu“, Fond za humanitarno pravo, p. 81, Beograd, 2007.


29

information about past violations are twofold. First, most such laws are to do with allowing individual members of the public, rather than the public, access to information. However, the fact that the queries are individual, that under most freedom of information acts, means that they will not provide the same broad account of the past as a truth commission. But if the act is well drafted, the scope may still be wide. The second limitation on the use of a freedom of information act will derive from the exemptions that are drawn too broadly, encompassing all information held by security agencies. In practice, of course, many human rights violations are committed in the name of “national security”. Only by making the question of national security a matter of public scrutiny it will cease to be used as an effective cover for abusive behaviour. The Media The importance of the media in uncovering past human rights violations is usually underrated, but they may also be vital in documenting past abuses. Free and independent media are the foundation stone of active democratic society. They have a potentially crucial role in promoting intercultural understanding and reconciliation. In the region of Balkans, implementation of the liberal media laws remains problematic. Moreover, in some countries of former Yugoslavia, violence, ranging from murder to harassment and intimidation, particularly directed against journalists, is the usual phenomenon, which threatens freedom of expression and the publics' right to be informed about everything that is of interest to them. All countries should guarantee that violence against journalists will be treated as a crime aimed at undermining public order and democratic government. After the war, it seemed that there was almost no attempt of the media in the region in contributing to the process of truth-seeking. After Slobodan Milosevic had ousted in 2001, Serbia's state

television broadcasted a BBC documentary about Serbian atrocities in Srebrenica, which provoked a negative reaction of the general public. A similar response was provoked in 2005 in Croatia, when one of the most popular dialogue programs addressed the question of war crimes committed by Croats and the role of the late President Tuđman in them. National Television of Bosnia and Herzegovina and Serbia broadcasts trials before The Hague Tribunal, but even such programs are not a guarantee for the public to obtain the necessary information about the crimes of the past and the role of the Tribunal. Biased information, often marketed through news programs, are the cause of which public lacks basic knowledge about objects, the Tribunal for the Former Yugoslavia in Hague and the past. News mainly detail the sentence imposed, not the cruelty of human rights violations, human rights victims and duties on behalf of companies that were involved in the conflict.44 Museums Museums are, in part, a public memorial intended to influence popular perceptions of the past. It makes sense to distinguish between the process of fact-finding and that of truth-telling. Some institutions, such as truth commissions or criminal proceedings clearly entail an investigation of the past. Yet this may not fully diminish the rights of the victims or the public at large to receive that information. Other types of institutions may also be involved in the process of making information about human rights violations accessible to the public. In discussions of investigating or remembering the past, the role of museums is often neglected. This is

44 ''Poslijeratna pravda i trajni mir u bivšoj Jugoslaviji“, Council of Europe Publishing, p.38., 2012., online at: www.commissioner.coe.int


30

slightly surprising, since so many ordinary people use museums as a way of forming their view of the past – far more than read history books, for example. And museums have been a common way of both teaching and commemorating a history of human rights violations. Museums have their role to play, not only in general public education, but also in providing information to the relatives of victims. The most obvious examples are the many Holocaust museums. There is also an example of a prison transformed into a museum - Robben Island in South Africa. Robben Island was for many years symbolic of the apartheid system. Plans were publicly aired to turn it into a nature reserve or a holiday resort. The prisons' most famous inmate, Nelson Mandela, was objected to plans that would turn the island into a “circus” that would exploit Mandelas' popularity. In the end, the involvement of former Robben Island prisoners in developing the museum has been important in avoiding the worst excesses and ensuring that it has an educative role. Memorials In each post-conflict society which comes into existence and develops after traumatic events, such as wars and other forms of physical violence, there are attempts to suppress the memory of those events in order to move on and to leave the past behind us. However, memory is instinctive and cannot be suppressed just like that. For this reason, in an attempt to master the violent past, we are often faced with a challenge how to best use our memory with the aim of learning from past events so that they would never be repeated again. Memorials usually have a common purpose which includes drawing attention to facts that had been denied. Memorials can play a very important function in building national identity and reinforcing

that identity which a given community has chosen.45 Purposes of building a memorial are various. From the perspective of a civil society, the purpose of a memorial is in acknowledging of suffering of victims in a public space and in initiating a public dialogue within a society about what happened in the past, why it happened and what we can do in order for these events never to occur again. Such a dialogue, if lead in the right way, can contribute to granting victims of violence their rights to acknowledging their suffering, as well as to peace-building and democratisation processes. However, attempts to erect memorials can also present a danger for post-conflict peace-building, because memorials erected without public discussion and without engaging certain actors often commemorate only certain victims, while others are forgotten. In this way, they acknowledge and accept only the suffering of that group which constitutes a majority in a given community, which deepens the already existing divisions and prolongs tensions and mistrust between different groups. Successful memorialization uses the knowledge and experience of experts from many different fields, such as transitional justice, history, sociology, museology, anthropology, pedagogy, art history, human rights. In the Republic of Croatia, erecting monuments in the memory of civilians and soldiers who died during the war in the 1990's is regulated in the Act on marking the sites of mass graves of the Homeland War victims. According to this law, which was adopted back in 1996, victims of the Homeland war are defined as “Croatian defenders and civilians who died in mass executions during the

45 „Culture of remembrance: The role of memorials and commemorative practices in post-conflict social recovery“, Tamara Banjeglav, p. 41., Documenta, Zagreb, 2012.


31

Serbian Montenegrin chetnik aggression and aggression of the Yugoslav National Army on the Republic of Croatia”46. This definition, which stands in one of Croatian laws, shows why marking of memory of the Homeland War victims in Croatia is problematic and limited. If only soldiers and civilians who died during “the Serbian Montenegrin chetnik aggression and aggression of the Yugoslav National Army on the Republic of Croatia”47 are considered to be victims, then not only victims who were killed by Croatian army forces are not considered to be victims at all, but, under the same logic, they also do not hold a right for their suffering to be marked and commemorated in public space. Monuments to victims of Serbian nationality are erected exclusively after the initiative of associations of citizens, local governments and victims’ families. Rare monuments erected in the memory of Serbian civilians who died during the war in Croatia are regularly surrounded with tensions and controversies. Visits to sites of memory are also one of the ways how to learn about past events, ones' own home-town and local commemorative events. During visits to sites of memory, it is important to learn about historical facts about the events that happened in these places. It is also important, if possible, to include in these visits the persons who have either survived or witnessed the events in the places which are visited and to learn from their first-hand experience about what had happened. Cultural practices in relation to the dead do not differ so much from continent to continent. Memorial aims to commemorate the victims of repression by a variety of means. These include the building of physical monuments, as well as historical research, newspaper articles and assistance to the victims of repression

46 Act on marking the sites of mass graves of the Homeland War victims (NN 100/1996), article 3 47 Act on marking the sites of mass graves of the Homeland War victims (NN 100/1996), article 3

and their families. It might be said that memorials are more to do with the commemoration of accepted facts than the process of investigating the past. NGOs and Civil Society Initiatives Uncovering and truth-telling about the mass atrocities committed in the past provides building equitable, stable and democratic future in transitional societies. In doing so, civil society initiatives have common characteristics: focusing on uncovering the facts about human rights violations, which is only a part of the broader strategy of determining accountability in their efforts they resemble the official truth commissions established in different countries they were initiated by civil society, led by human rights organizations, victims' associations, universities and are not run by government institutions they can be the forerunners of a truth-commission, due to their specific design, but also because of unpredictable development.48 Civil society in the region of former Yugoslavia, along with groups of experts and victims, encourage the search for truth and clarify the fate of missing persons from the end of the conflict. NGOs collect evidence, reveal stories that have long been hidden, organize round tables and provide forums in which victims have the opportunity to publicly tell their stories. Human rights NGOs compile reports on continuing human rights violations as part of their daily work – whether at the local, national, regional or international level. These are drawn from a number of sources: media reports, publicly available material, such as court documents, confidential communications from trusted sources on the ground and first-hand interviews with victims or witnesses of human rights violations. Yet human rights violations are, by their

48 „Poslijeratna pravda i trajni mir u bivšoj Jugoslaviji“, Council of Europe Publishing, p.36., 2012., online at: www.commissioner.coe.int


32

nature, often surrounded in secrecy, and occur in places where human rights monitors have no access: prisons, police stations or parts of the country where travel is restricted. Political and social situation in Croatia in the 1990s were marked by war, authoritarian tendencies of the political system and various human rights violations. Different non-governmental organizations, i.e. human rights organizations worked on documenting, warning and raising the awareness about mass human rights violations. These organizations do not have the chance to investigate allegations of abuse when these occurred, but at the moment of transition they may set about documenting them for a number of purposes: so that the crimes of the old government may be fully exposed; so that the perpetrators may be brought to justice; so that the victims may be compensated; and to strengthen the argument for setting up a more comprehensive investigatory mechanism, such as a truth commission. There are several reasons why such work is needed to complement the work of a formal inquiry. First, in a situation where there has been widespread violation of human rights, a single centrally-organised investigation is never going to get to the bottom of everything that happened. Local in-depth inquiries will always be needed to supplement that. Conclusion This essay aimed to do two things: to stress that the victims and survivors of human rights violations have a

fundamental right to information about what has happened to them and that this right is to be exercised by society at large, not only by individuals. Secondly, while emphasizing the importance of official commissions as a means of uncovering hidden facts, the report has explored other means which can complement formal commissions. In situations where criminal prosecutions are not possible, the public exposure and a truth process may itself be a form of justice. Truth processes may also help to promote measures of financial and symbolic compensation. Logically, obtaining information about the past precedes other steps, such as the award of compensation. Governments have the obligation to facilitate these means by freedom of information measures and access to government records; through museums and memorials; through and by a variety of other actions. NGOs and community organizations are also important. They can be the most effective guarantors that efforts to uncover the facts about past human rights directly respond to the wishes and needs of the victims. This essay has not even taken into account other more personal means of uncovering the past – for example through fiction, poetry, autobiography or music.


33

BIBLIOGRAPHY

Universal Declaration of Human Rights, 1948 Forum za tranzicionu pravdu, Fond za humanitarno pravo, Beograd, 2007. Culture of remembrance: The role of memorials and commemorative practices in post-conflict social recovery, Tamara Banjeglav, Documenta, Zagreb, 2012. Croatian Act on marking the sites of mass graves of the Homeland War victims (NN 100/1996) WHO WANTS TO FORGET? Truth and Access to Information about past Human Rights Violations, online at: http://www.article19.org/data/files/pdfs/publications/freedom-of-information-truth-commissions.pdf

Working on dealing with the past, Slaven Rašković, Documenta, 2012, online at: http://www.documenta.hr/ Poslijeratna pravda i trajni mir u bivšoj Jugoslaviji, Council of Europe Publishing, 2012., online at: www.commissioner.coe.int

http://www.article19.org/data/files/pdfs/publications/freedom-of-information-truth-commissions.pdf

http://www.article19.org/data/files/pdfs/publications/freedom-of-information-truth-commissions.pdf

http://www.documenta.hr/

http://www.commissioner.coe.int/


34


35

Seeking Justice while Negotiating Peace: An Essay on the

(In)Compatibility of Transitional Justice Measures and Peace

Negotiations By Kaja Nanut *

ABSTRACT

Much of the 'Peace vs. Justice' debate revolves around the question whether transitional justice measures pose an obstacle to peace negotiations and endanger durable peace or the opposite, whether they enable peace negotiations and in the long-term contribute to durable peace in conflict-affected societies. A strong focus on justice can hinder the peace process and fuel conflict, while sacrificing justice in the hope of securing peace can fail to discourage future severe human rights abuses. In this essay I discuss prosecuting war crime suspects through national and international courts while negotiating peace and consider the legitimacy of measures associated with abstaining from post-conflict justice, such as amnesty and exile.

For there can be no healing without peace,

there can be no peace without justice; and there can be no justice without respect for human rights and the rule of law.

- Kofi Annan * Kaja Nanut is a MA candidate in Diplomacy at the University of Ljubljana, Slovenia. She graduated in European Studies and completed two semesters at the University of Leipzig and one semester at the Humboldt University of Berlin. During her studies she gained professional experience in international and political affairs in Germany, Sweden and Belgium. She currently works at a public affairs consultancy in Brussels.


36

Introduction The questions, whether peace negotiations and transitional justice measures can go hand in hand, which of those should have a priority and which of those can more significantly contribute to durable peace in conflict-affected societies is highly controversial amongst academia and practitioners.49 Some argue that the possibility of prosecution poses a dangerous and unfortunate obstacle to peace efforts,50 because warring parties will fear prosecution and will consequently refuse to lay down their weapons51 while others point out that international law obliges countries to prosecute serious international crimes (genocide, crimes against humanity, and war crimes)52 and that there should be no amnesties for those responsible for severe human rights violations.53 However, some authors also believe that, occasionally, societies have to choose between peace and justice54, due to the incompatibility of peace and justice

49See for instance Dicker, Richard, Peace and Justice, The World Today, 2010; Human Rights Watch, Selling Justice Short: Why Accountability Matters for Peace, New York, 2009; Simpson, Graeme, Transitional Justice and Peace Negotiations, International Center for Transitional Justice; Melander, Erik, Justice or Peace? A Statistical Study of the Relationship between Amnesties and Durable Peace, Lund University, 2009; Lie, Tove Grete, Helga Malmin Binningsbo and Scott Gates, Post-Conflict Justice and Sustainable Peace, Center for the Study of Civil War, PRIO and Norwegian University of Science & Technology, 2007; Williams, Paul R. And Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia, Maryland, 2002, etc. 50Dicker, Richard, Peace and Justice, The World Today, 2010, p. 16; Human Rights Watch, Selling Justice Short: Why Accountability Matters for Peace, New York, 2009, p. 1. 51Lie, Tove Grete, Helga Malmin Binningsbo and Scott Gates, Post-Conflict Justice and Sustainable Peace, Center for the Study of Civil War, PRIO and Norwegian University of Science & Technology, 2006, p. 1. 52Human Rights Watch, Selling Justice Short: Why Accountability Matters for Peace, New York, 2009, p. 10. 53Ibid, p. 1–2. 54Lie, Tove Grete, Helga Malmin Binningsbo and Scott Gates, Post-Conflict Justice and Sustainable Peace, Center for the Study of Civil War, PRIO and Norwegian University of Science & Technology , 2007, p. 2.

goals.55 This essay seeks to answer the question, whether conflict-affected societies have to choose between peace and justice. More specifically, this essay investigates, whether transitional justice measures pose an obstacle to peace negotiations and endanger durable peace or the opposite – enable peace negotiations and in the long-term contribute to durable peace. The main objective of this essay is to answer this research question on the case study of Bosnia and Herzegovina, a country marked by the gravest legacy of war crimes in the region. Transitional Justice Measures and Peace Negotiations The primary objective of transitional justice measures is to gain some level of justice for victims. However, long-term transitional justice measures also aim to establish the conditions for the development of democracy, rule of law and peace.56 Before further analysis of the conflicting approaches of transitional justice measures and peace negotiations it is important to address the question of who is indictable according to the international law or in other words, when does a duty exist to prosecute. In the case of international armed conflicts, such as the one in Bosnia and Herzegovina,57 the Geneva Convention's Article 49 states that parties are to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering the commitment of any of the

55Simpson, Graeme, Transitional Justice and Peace Negotiations, International Center for Transitional Justice, p. 1. 56United Nations, What is transitional justice? A backgrounder, 2008, p. 1. 57The question of clasification of the war in Bosnia and Herzegovina as an international armed conflict is important, because international humanitarian law distinguishes between international and non-international armed conflicts. International armed conflict are subject to a wider range of rules, including the grave breaches provisions of the Geneva Conventions for the Protection of Victims of War.


37

grave breaches of the conventions.58 Grave breaches are defined as "wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully".59 Additionally, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was given the power to prosecute persons committing or ordering the compulsion a prisoner of war or a civilian to serve in the forces of a hostile power, wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial, unlawful deportation or transfer or unlawful confinement of a civilian and taking civilians as hostages'.60 Moreover, the Statute of the ICTY grants the tribunal the power to prosecute violations of the laws or customs of war, genocide and crimes against humanity.61 As the previous paragraph shows, according to international law countries are obliged to ensure respect of international law and prosecute war crime suspects, which is perhaps the most obvious reason in favour of prosecution in conflict-affected societies. By prosecuting war crime suspects, countries and the international community show moral understanding, which helps to restore victims' dignity. Citizens will also trust the law enforcement more if the perpetrators are brought to justice. Prosecuting leaders responsible for violations of international humanitarian law is necessary as well, in order to discourage future human rights abuses,62 since accountability provides a

58Article 50 of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Froces in the Field. 59Ibid. 60 Article 2 of the Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, 2009. 61Ibid., Article 3–5. 62 Scharf, Michael, From the eXile Files: An Essay on Trading Justice for Peace, Washington and Lee Law Review, 2006

deterrent against future abuses.63 Impunity is also perceived as one of the main reasons for the continuation of grave violations of human rights throughout the world. By not prosecuting war crime suspects or granting them amnesty or exile, countries and the international community send a signal to future perpetrators of human rights violations – you can always bargain away your responsibility for crimes by agreeing to peace. Some scholars argue that the failure of the international community to prosecute Pol Pot (Cambodia), Idi Amin (Uganda), Saddam Hussein (Iraq), and Mohammed Aidid (Somalia) encouraged the Serbs to begin with their policy of ethnic cleansing, expecting never to be held accountable for their crimes.64 In certain cases indictment to international court enables peace negotiations, which is another argument that speaks in favour of the prosecution of war crime suspects. The war in Bosnia and Herzegovina lasted from 1992 to 1995 and was characterized by severe human rights violations such as mass killings, rapes, widespread destruction, and displacement of populations. In 1995 the parties associated with the conflict agreed to attend peace negotiations. Prior to the beginning of the negotiations and once again during the negotiations the International Criminal Tribunal for the former Yugoslavia indicted Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. This move was criticized by a number of politicians and political commentators who suggested that the court was getting in the way of peace.65 However, as Williams and Scharf point out, had they not been indicted for crimes of genocide, the Bosnian government

63International Council on Human Rights Policy, Negotiating Justice? Human Rights and Peace Agreements, 2006, p. 6. 64Williams, Paul R. And Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia, Maryland, 2002, p. 33. 65Human Rights Watch, Selling Justice Short: Why Accountability Matters for Peace, New York, 2009, p. 26.


38

would have reacted by threatening to boycott the peace talks.66 The case of Bosnia and Herzegovina proved that transitional justice measures, in this case prosecution, can have a positive effect on the peace negotiations. Since Radovan Karadzic was isolated and brought to the International Criminal Tribunal for Yugoslavia he was not able to participate in the Dayton peace talks, which ended the war in Bosnia.67 Despite strong moral and political arguments in favour of prosecuting war crime suspects, there are also arguments against prosecution. Working on peace while prosecuting the people with whom you negotiate peace with does not always work in favour of peace efforts. Contrary to the case of Bosnia and Herzegovina where the indictment of Radovan Karadzic had a positive effect on peace negotiations, threats of prosecution can have negative effects on the peace process. In the 'From the eXile Files: An Essay on Trading Justice for Peace' Michael Scharf reflects the reality of past decades and points out some cases where the 'Napoleonic Option'68 was used and perpetrators of international crimes were granted amnesty, exile and asylum.69 These measures immunize the perpetrator from domestic prosecution (amnesty) or put the perpetrator out of the jurisdictional reach of domestic prosecution (exile and asylum in a foreign country).70 At this point it is important to

66Williams, Paul R. And Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia, Maryland, 2002, p. 159. 67Dicker, Richard, Peace and Justice, The World Today, 2010, p. 17. 68'Napoleonic Option' refers to the treatment of French emperor Napoleon Bonaparte who was exciled to St. Helena rather that trialed (Scharf, Michael, From the eXile Files: An Essay on Trading Justice for Peace, Washington and Lee Law Review, 2006). 69Scharf, Michael, From the eXile Files: An Essay on Trading Justice for Peace, Washington and Lee Law Review, 2006 70Such measures were used in the following cases: Ferdinand Marcos fled the Philippines for Hawaii; Baby Doc Duvalier fled Haiti for France; Mengisthu Haile Miriam fled Ethiopia for Zimbabwe; Idi Amin

note that international law prohibits amnesties for severe human rights violations and international crimes.71 Scharf points in his essay to the core issue of the question, by stating that "it is not realistic to expect them to agree to a peace settlement if, directly following the agreement, they would find themselves or their close associates facing potential life imprisonment".72 In this case, there are measures that enable the perpetrators to seek amnesty73 or asylum and leave the country unprosecuted. The South African case stands as a success story of 'justice-for-peace' trade.74 After the settlement was negotiated in 1995, the South African Parliament created a Truth and Reconciliation Commission. In accordance with the settlement, amnesty would only be granted to individuals who personally applied for it and who disposed the facts of their apartheid crimes fully.75 Contrary to popular belief 'justice-for-peace' trade does not always mean the absence of accountability. Amnesties can namely be perceived as a less invasive accountability mechanism than domestic or international prosecution and can come with parallel mechanisms, such as monetary reparations to the victims, documenting of abuses and lustrations, potentially contribute to prevention, deterrence,

fled Uganda for Saudi Arabia; General Raoul Cedras fled Haiti for Panama; and Charles Taylor fled Liberia for exile in Nigeria (Scharf, Michael, From the eXile Files: An Essay on Trading Justice for Peace, Washington and Lee Law Review, 2006). 71European Union External Action, Transitional Justice in the Context of Peace Mediation, 2012, p. 3. 72Scharf, Michael, From the eXile Files: An Essay on Trading Justice for Peace, Washington and Lee Law Review, 2006 73Under international law amnesties are impermissible for serious international crimes, including genocide, crimes against humanity, grave breaches of humanitarian law, war crimes, torture and enforced disappearances (International Council on Human Rights Policy, Negotiating Justice? Human Rights and Peace Agreements, 2006 p. 7). 74Scharf, Michael, From the eXile Files: An Essay on Trading Justice for Peace, Washington and Lee Law Review, 2006. 75Ibid.


39

punishment and rehabilitation. There are, however certain limitations to this success story, which are pointed out by Human Rights Watch in 'Selling Justice Short: Why Accountability Matters for Peace'.76 Firstly, there was no blanket amnesty, as a result most amnesty requests were denied. Secondly, initially trials were held and after a high-ranking official was acquitted fewer officials applied for amnesty which resulted in lower effectiveness of the commission. Transitional Justice Measures, Peace Negotiations and Durable Peace A review of the literature reveals that there is a lack of empirical research on the long-term effects of transitional justice measures or processes associated with abstaining from justice in conflict-affected societies. The (lack of) success of transitional justice measures is rather analysed with in-depth case studies.77 These are valuable in terms of examining causal mechanisms, however they are not intended to help us generate findings.78 As a result, it is difficult to generalize which measures are more likely to lead to durable peace in conflict-affected societies. The research project 'Post-Conflict Justice and Sustainable Peace', conducted by the Centre for the Study of Civil War at the Peace Research Institute in Oslo and Norwegian University of Science and Technology in 2007 investigated the long-term effects of post-conflict justice on the duration of peace and found that transitional justice measures do indeed lead to a more durable peace. The most important findings are that trials contribute to peace duration and amnesties increase the risk of peace 76Human Rights Watch, Selling Justice Short: Why Accountability Matters for Peace, New York, 2009, p. 7–8. 77See for instance Hayner, Priscilla, Negotiating Peace in Sierra Leone: Confronting the Justice Challenges, Center for Humanitarian Dialogue and International Center for Transitional Justice, 2007. 78Melander, Erik, Justice or Peace? A Statistical Study of the Relationship between Amnesties and Durable Peace, Lund University, 2009, p. 4.

failure.79 Eric Melander from the Lund University conducted statistical research on the relationship between amnesties and durable peace in 2009.80 He found that amnesties have a positive effect on durable peace in authoritarian states and lesser effect in more democratic states. These two examples of recent relevant empirical researches are important for the future 'Peace vs. Justice' debate, which continues to invoke mixed feelings. However, there appears to be some agreement amongst scholars about how to contribute to the effectiveness of transitional justice and peace negotiating measures. They propose a more holistic approach with several measures complementing each other to achieve durable peace.81 In essence, conflict-affected societies require a case-by-case approach and despite the lessons learned from previous conflicts and empirical researches indicating what approach might be more effective, each situation is different. After all, there are differing regime types, actors involved, negotiating readiness and many other factors that influence peace negotiations. Nevertheless, the limitations with regards to international law should always be taken into account. Conclusion Foreign policy practitioners and scholars have traditionally perceived peace and justice in conflicting terms.82 The review of the literature reveals that 'no peace without justice' is a popular phrase and is often referred to in the debates regarding

79Lie, Tove Grete, Helga Malmin Binningsbo and Scott Gates, Post-Conflict Justice and Sustainable Peace, Center for the Study of Civil War, Prio and Norwegian University of Science and Technology, 2007, p. 17. 80Melander, Erik, Justice or Peace? A Statistical Study of the Relationship between Amnesties and Durable Peace, Lund University, 2009, p. 17. 81European Union External Action, Transitional Justice in the Context of Peace Mediation, 2012, p. 2. 82Williams, Paul R. And Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia, Maryland, 2002, p. 29.


40

the compatibility of peace and justice. In this essay I sought to address the importance of understanding this relationship between transitional justice measures and peace negotiations with regards to durable peace. In concluding remarks I summarize the discussion with following findings. Firstly, prosecution can advance peace, however it is questionable to what extent prosecution enables durable peace. There are numerous other factors that contribute to the duration of peace in post-conflict societies, such as the type of settlement, length of conflict, regime characteristics, etc.83 Moreover, due to the lack of empirical research on the long-term effects of transitional justice measures and processes associated with abstaining from post-conflict justice we cannot generalize and claim that transitional justice measures or more precisely which transitional justice measures contribute more significantly to durable peace. Secondly, the case of Bosnia and Herzegovina shows that prosecutions can advance peace processes, since the arrest of the key protagonists boosted peace negotiations. This is possible in a context where only one individual plays a very important role in the conflict. The case of Bosnia and Herzegovina also teaches us an important lesson about the lack of political will that results in war crimes suspects holding important positions in the country long after the war has ended. The International Crisis Group's Report 'War Criminals in Bosnia's Republika Srpska: Who are People in Your Neighborhood' raises an important issue of individuals who are alleged to have participated in war crimes but have never

83Lie, Tove Grete, Helga Malmin Binningsbo and Scott Gates, Post-Conflict Justice and Sustainable Peace, Center for the Study of Civil War, Prio and Norwegian University of Science and Technology, 2007, p. 3.

been indicted.84 The indictment of Radovan Karadzic should not have been a one-off event, but rather a signal for remaining war criminals. To conclude, ending a conflict at whatever cost with abstention from post-conflict justice is a questionable approach in conflict-affected societies. It is inappropriate to make an 'exile-for-peace' offer which seriously undermines the Geneva Conventions and the Genocide Convention, according to which alleged offenders must be prosecuted without exception.85 Nevertheless, there are cases that prove that 'justice-for-peace' trade is legitimate and is in some cases better suited to achieving the aims of justice.

84International Crisis Group, War Criminals in Bosnia's Republika Srpska: Who are the People in Your Neighbourhood, 2002, p. 68. 85Scharf, Michael, From the eXile Files: An Essay on Trading Justice for Peace, Washington and Lee Law Review, 2006.

[41]

BIBLIOGRAPHY

Dicker, Richard, Peace and Justice, The World Today, 2010, p. 16–17. European Union External Action, Transitional Justice in the Context of Peace Mediation, 2012, p. 1–7. Available at: http://eeas.europa.eu/cfsp/conflict_prevention/docs/2013_eeas_mediation_support_factsheet_transitional_justice_en.pdf. Hayner, Priscilla, Negotiating Peace in Sierra Leone: Confronting the Justice Challenges, Center for Humanitarian Dialogue and International Center for Transitional Justice, 2007, p. 1–37. http://www.hdcentre.org/uploads/tx_news/90NegotiatingpeaceinSierraLeone-ConfrontingtheJusticechallenge.pdf. Human Rights Watch, Selling Justice Short: Why Accountability Matters for Peace, New York, 2009. Available at: http://www.hrw.org/sites/default/files/reports/ij0709webwcover_1.pdf. International Council on Human Rights Policy, Negotiating Justice? Human Rights and Peace Agreements, 2006, p. 1–16. Available at: http://www.ichrp.org/files/summaries/29/128_summary_en.pdf. International Crisis Group, War Criminals in Bosnia's Republika Srpska: Who are the People in Your Neighborhood, 2002, p. 1–80. Available at: http://www.crisisgroup.org/~/media/Files/europe/Bosnia%2039.pdf. Lie, Tove Grete, Helga Malmin Binningsbo and Scott Gates, Post-Conflict Justice and Sustainable Peace, Center for the Study of Civil War, Prio and Norwegian University of Science and Technology, 2007. Available at: http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2007/04/09/000016406_20070409111614/Rendered/PDF/wps4191.pdf . Melander, Erik, Justice or Peace? A Statistical Study of the Relationship between Amnesties and Durable Peace, Lund University, 2009, p. 1–18. Available at: http://www4.lu.se/upload/LUPDF/Samhallsvetenskap/Just_and_Durable_Peace/Workingpaper4.pdf. Scharf, Michael, From the eXile Files: An Essay on Trading Justice for Peace, Washington and Lee Law Review, 2006, p. 339–376. Simpson, Graeme, Transitional Justice and Peace Negotiations, International Center for Transitional Justice, p. 1–25. United Nations, What is transitional justice? A backgrounder, 2008, p. 1–5. Available at: http://www.un.org/en/peacebuilding/pdf/doc_wgll/justice_times_transition/26_02_2008_background_note.pdf.

Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, 2009. Available at: http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf. Williams, Paul R. And Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia, Maryland, 2002. 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Available at: http://www.icrc.org/eng/assets/files/publications/icrc-002-0173.pdf .

http://eeas.europa.eu/cfsp/conflict_prevention/docs/2013_eeas_mediation_support_factsheet_transitional_justice_en.pdf

http://eeas.europa.eu/cfsp/conflict_prevention/docs/2013_eeas_mediation_support_factsheet_transitional_justice_en.pdf

http://www.hdcentre.org/uploads/tx_news/90NegotiatingpeaceinSierraLeone-ConfrontingtheJusticechallenge.pdf

http://www.hdcentre.org/uploads/tx_news/90NegotiatingpeaceinSierraLeone-ConfrontingtheJusticechallenge.pdf

http://www.hrw.org/sites/default/files/reports/ij0709webwcover_1.pdf

http://www.ichrp.org/files/summaries/29/128_summary_en.pdf

http://www.crisisgroup.org/~/media/Files/europe/Bosnia%2039.pdf

http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2007/04/09/000016406_20070409111614/Rendered/PDF/wps4191.pdf



http://www4.lu.se/upload/LUPDF/Samhallsvetenskap/Just_and_Durable_Peace/Workingpaper4.pdf

http://www4.lu.se/upload/LUPDF/Samhallsvetenskap/Just_and_Durable_Peace/Workingpaper4.pdf

http://www.un.org/en/peacebuilding/pdf/doc_wgll/justice_times_transition/26_02_2008_background_note.pdf

http://www.un.org/en/peacebuilding/pdf/doc_wgll/justice_times_transition/26_02_2008_background_note.pdf

http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf

http://www.icrc.org/eng/assets/files/publications/icrc-002-0173.pdf


42


43

‘Council of Europe’ and ‘Organization of Islamic Cooperation’ Joint Projects

for the Transition in Arab Spring Countries

By Cüneyd Er *

ABSTRACT

The revolutionary events that have collectively dubbed ‘the Arab Spring’ in the Middle East had started in December 2010. Even though some turmoil continues in the region, it is a fact that the Arab Spring has paved the way to a transitional justice era – at least – for some of the countries. This piece defends that the Organization of the Islamic Cooperation (OIC), the second-largest public international organization after the United Nations, shall take an active part during the transition period of the Arab Spring countries. It is highlighted that the OIC could implement joint projects in cooperation with some other public international organizations that have experience in implementing democracy, rule of law and human rights programs in some Muslim dominant European countries.

* Cüneyd Er, LL.M. is a Ph.D. candidate at Leiden University’s Faculty of Law in the Netherlands. He already holds LL.M and LL.B degrees from Istanbul Bilgi University’s Faculty of Law. He was a staff member of the Council of Europe for several years. Besides the law and the international organization experience, he has a past work experience in the information/communication technology media with the posts promoted in time from editor to editor-in-chief for the Turkish editions of some leading IT magazines of the USA. Aside from ongoing Ph.D. studies, he edited several books and penned two. Er occasionally writes columns and op-ed articles both in English or Turkish for newspapers mainly on international politics but usually in light of a legal perspective. He can be followed from Twitter: @CuneydEr


44

Introduction December 17, 2010 was the date of Mohamed Bouazizi's setting himself on fire,86 which also ignited a series of revolutionary events collectively dubbed the Arab Spring87. From today, we can say that the outcome of young man’s move has also paved the way to a transitional justice era in some Middle Eastern states, which are now also known as Arab Spring countries. The rationale behind Mr. Bouazizi's decision to set himself on fire was in protest of the confiscation of his wares (the straw that broke the camel's back) as well as the harassment and humiliation that had been continuously inflicted on him by the municipal police. It was reported that Mohamed was mistreated and targeted for years. It really makes our hearts sour to know today that it was never necessary to hold a permit for someone selling wares from a handcart in his town.88 However, seeking non-required documents was not the sole problem, as there is another “fact” that can be seen among the primary problems in many underdeveloped countries: bribery.89 It has been reported by many sources that those who did not have sufficient funds to bribe the police were not allowed to sell their wares in the streets in Bouazizi's town. For these reasons, Mohamed, who was a humble, ordinary Tunisian with a very low income and, as reported by Al

86 Rania Abouzeid, ‘Bouazizi: The Man Who Set Himself and Tunisia on Fire’, TIME, January 21, 2011. 87 Marc Lynch, ‘Obama’s Arab Spring’?’, Foreign Policy, January 6, 2011. Accessible at: http://mideastafrica.foreignpolicy.com/posts/2011/01/06/obamas_arab_spring 88 John Thorne, ‘Bouazizi has become a Tunisian protest ‘symbol’’, The National, January 13, 2011. Accessible at: http://www.thenational.ae/news/world/bouazizi-has-become-a-tunisian-protest-symbol 89 Peter Beaumont, ‘Mohammed Bouazizi: the dutiful son whose death changed Tunisia’s fate’, The Guardian, January 20, 2011. Accessible at: http://www.theguardian.com/world/2011/jan/20/tunisian-fruit-seller-mohammed-bouazizi

Jazeera English, was an extraordinarily generous young man known for providing free food to poor families,90 went berserk and lost his senses. He was put into a fearful rage and burnt himself with a can of gasoline. This incident was a tragic result of the systematic humiliation of a street vendor suffering immense levels of poverty and the consequent accumulation of broken feelings. When he experienced the above-mentioned difficulties, Mohamed gave signals of what he may take as the next step. As was reported by Rania Abouzeid of TIME magazine and Bob Simon of CBS News,91 the poor man turned to the governor's office to request the return of his tools and goods and to be able to talk with the governor regarding all these matters. However, his application was rejected. If it had not been, maybe the Arab Spring would have been delayed for several more decades. Even though he was showing signals of attempting something crazy, state officials never minded him. As was reported by the same and similar sources, he even shouted: “If you do not listen to me, I am going to burn myself!” Later, he did. The State’s Obligation: Ensuring the Right to Life Besides all it should be remembered that the state should – at least – respect minimum human rights standards -- at least minimum of them, which were set and declared by the United Nations (UN) and the Organization of Islamic Cooperation (OIC) within several texts. It should be remembered that any form of maltreatment, cruelty or indignity by its state officials – certainly including the municipal police – should not be permitted by any state, Tunisia in this

90 Yasmine Ryan, ‘The tragic life of a street vendor’, Al Jazeera English, January 16, 2011. Accessible at: http://www.aljazeera.com/indepth/features/2011/01/201111684242518839.htm 91 Bob Simon, ‘How a slap sparked Tunisia’s revolution’, CBS News, February 22, 2011. Available at: http://www.cbsnews.com/news/how-a-slap-sparked-tunisias-revolution-22-02-2011/


45

case, as Mohamed sadly experienced. Secondly, the state should at least listen to the problems of a person who has complaints. It may be impossible to find a concrete solution quickly. However, the complainant should be able to reach somebody to speak about his/her problem. To find an interlocutor who at least listens to the complainant is something vitally important. It is understandable that the governor may not have been available at that moment to listen to Mohamed. However, for both a psychological solution and as a way of serving the people, there could be deputies or assistants assigned to listen to the complaints of the people. Bouazizi had applied to various agencies and authorities to solve his problems and to be able to complain about relevant agents of the municipality. But unfortunately, it was even impossible for him to find somebody who would “only listen” to him. In this case, this deadlock made him mentally ill. Being a young man who needed to provide a decent income for his family's minimum needs for life and trying to survive in this deadlock was really insufferable for him. Reuters reported that his sisters had complained about the repression experienced by their brother. As you can understand, it is not easy to imagine or describe Mohamed's repression during his fight for life not only for himself, but also for his mother and two sisters. The result of this repression delivers us a tragic summary of all. “What kind of repression forces a young man to do this?” was his siblings' cry to Reuters reporters.92 The repression and such occurrences were the final unacceptable acts. As described in an Arab proverb, the straw broke the camel's back. The weight of repression had overcome the strength of resistance. But after that occurrence, it was too late 92 Lin Noueihed, ‘Peddler’s martyrdom launched Tunisia’s revolution’, Reuters Africa, January 19, 2011. Available at: http://af.reuters.com/article/libyaNews/idAFLDE70G18J20110119

for either Mohamed or then-President Zine El Abidine Ben Ali, when the latter visited the former at the hospital.93 Last, but not least, this can be considered as the common principle of the right to life as set out by international judicial bodies:94 “The state should take preventive operational measures to protect the individual whose life is at risk.” We believe that the same should be applied to individuals who disclose signs of being a suicide risk as an obligation of the state. That risk was clear in Bouazizi’s case as he had expressed it himself publicly. It is a fact that like other primary religions, Islam views suicide as one of the greatest sins. However, some interpret that a decision made at a time of mental illness can be an exception, citing insanity. However, no one should use this interpretation in favour of suicide bombers. Bouazizi's incident harmed only himself, so no one can read this comment as a pleasant interpretation or feeling of sorrow for suicide bombers, who are terrorists killing innocent people. As we have subsequently expressed about the same topic, “as a result of severe burns of 90 percent of his body, ‘an ordinary man who triggered Arab Spring’, Mohamed Bouazizi passed away on Jan. 4, 2011.” As Al Jazeera English reported, the Progressive Democratic Party of Tunisia declared Mohamed a martyr. Many wish the same for him since he triggered the Arab Spring by setting himself on fire as a result of the great repression he, as well as his society, experienced and he did it during a time of mental aberration caused by the same repression steadily manifested by the authoritarian administrations under Habib Bourgiba and Zine El Abidine Ben Ali, now former presidents of Tunisia. The Arab Spring

93 Yasmine Ryan, ibid. 94 Helene Lambert, ‘Positions of Aliens in Relation to the European Convention on Human Rights’, Council of Europe, January 1, 2001, p. 34.


46

The first strong domino to fall was Tunisia in the 2010-2011 revolts in the Middle East.95 As a result of the domino effect, Egypt96, Libya97, Syria98, Yemen99 and many others followed suit. No doubt when we analyze these countries one by one we will see there are differences between the revolts. The only significant common feature is that they were civil unrests. We have to try to understand their situation: These millions of people from various Middle Eastern states were under the pressure of corrupt governments, economic problems and dictatorships which are/were ruling the countries for many decades. Of course all these factors bring about human rights violations as well. Overall, we can define it as a general thirst for democracy, human rights and the rule of law. Nevertheless, some people sincerely believe that all these incidents occurred as a result of secret plans of some Western powers. In our opinion, we should realize that the consequences are a kind of “all-in-one package”, with advantages and disadvantages for different parties and different regions.

95 Yasmine Ryan, ibid. 96 Scott Peterson, ‘Egypt’s revolution redefines what’s possible in the Arab world’, Christian Science Monitor, February 11, 2011. Available at: http://www.csmonitor.com/World/Middle-East/2011/0211/Egypt-s-revolution-redefines-what-s-possible-in-the-Arab-world 97 Richard Spencer, ‘Libya: civil war breaks out as Gaddafi mounts rearguard fight’, The Daily Telegraph, February 23, 2011. Available at: http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8344034/Libya-civil-war-breaks-out-as-Gaddafi-mounts-rearguard-fight.html 98 ‘’It Will Not Stop’: Syrian Uprising Continues Despite Crackdown’, Der Spiegel, March 28, 2011. Available at: http://www.spiegel.de/international/world/it-will-not-stop-syrian-uprising-continues-despite-crackdown-a-753517.html 99 Nada Bakri; J. David Goodman, ‘Thousands in Yemen Protest Against the Government’, The New York Times, January 27, 2011. Available at: http://www.nytimes.com/2011/01/28/world/middleeast/28yemen.html?_r=0

Current Members of Venice Commission from Middle East At this stage, even though some turmoil continues in the region, we should at least think about a transition and normalization process in line with the standards requested by the people in the countries with a smooth sailing. We believe Algeria, Morocco and Tunisia’s membership (as well as Palestine with a special status) in the Venice Commission of the Council of Europe100 is an advantage for their further modernization and transition in the fields of constitutional reform. That would cover the protection of fundamental rights (which includes freedom of assembly and association), a functioning judiciary, a functioning parliament as well as the protection of minorities and the prohibition of discrimination.101 Since the very beginning of the Arab Spring, we believe that the Organization of the Islamic Cooperation (OIC), the second-largest public international organization after the United Nations102, shall take an active part during the transition period. It can run joint projects with the Council of Europe (CoE) as it has been implementing for and with its member states, including but not limited to, Turkey, Bosnia and Herzegovina, and Azerbaijan to facilitate and support legal and institutional reforms. For this purpose, the CoE may organize training courses, conferences, workshops and seminars with the financial support of the OIC, similar to ongoing CoE/European Union (EU) joint projects, with the

100 ‘Members of the Venice Commission’, Venice Commission, Council of Europe Web Portal. Retrieved: August 13, 2014; available at: http://www.venice.coe.int/WebForms/members/countries.aspx 101 ‘The Commission’s Activities’, Venice Commission, Council of Europe Web Portal: Retrieved: August 13, 2014; available at: http://www.venice.coe.int/WebForms/pages/?p=01_activities 102 ‘About OIC’, Organisation of Islamic Cooperation Permanent Observer Mission to the United Nations in New York Web Site. Retrieved: August 14, 2014; available at: http://www.oicun.org/2/23/


47

expertise of the CoE in several Eastern European countries.103 That cooperation between two international organizations would also be an opportunity for the dissemination of development standards to North Africa and to a large part of Asia. We should note that most of those standards -- standards on prison rules, detention conditions and standards regarding the training of judges, prosecutors and law enforcement personnel (police, gendarmes and prison guards), for example -- could be customized according to the needs and conditions of Middle Eastern societies, but again according to the minimum standards of human rights and rule of law. It should again be underlined that the CoE already has such an experience with its relationship with Algeria, Morocco, Tunisia and Palestine. That practice can be extended in close cooperation with the OIC. We wish for such efforts to provide fruitful opportunities for the future of the Middle East. Some readers may argue that the laws and rules of the OIC (namely Islamic standards) and the CoE are not compatible. However, many people who have a wise vision would agree that the people of the Middle East also deserve similar standards that they (the Westerners) do already benefit from in their daily lives. We are aware that it is not possible to disseminate all standards, rules and treaties of the CoE like a copy and paste application to the countries of the Middle East. For that reason, the standards could be customized according to the needs and conditions of Middle Eastern societies, but again, according to the minimum standards of Europe. We should urge a very important point: We do not mean disseminating European standards “on merit” in Middle Eastern

103 ‘Joint Programmes between the Council of Europe and The European Union’, Joint Programmes Internet Site. Retrieved: August 14, 2014; available at: http://www.jp.coe.int/default.asp

countries, but at least reaching and setting minimum common standards. For example, we do not have a background or any expertise on Islamic theology. However, we know that torture is prohibited in Islam. It is a shame that in Middle Eastern Muslim states many people who participated in the 2011 uprisings complained about severe torture and inhumane treatment in police custodies. Besides that, there are many other minimum requirements in Europe that can be applied to Middle Eastern countries, which would also meet the needs of the people: for example, standards on freedom of assembly and freedom to demonstrate. The administrations of Middle Eastern states should be aware that freedom to demonstrate would help release their people’s possible anger. Positive Impacts in the Estimation of the Public In this context, we do not claim that these standards are being applied perfectly in Turkey, the country of origin of this article’s author. However, similar projects that include in-service trainings have had some successful outcomes. Similarly, standards on detention and prison conditions in the Middle East can be customized and improved according to European standards, while police stations can be renovated to ‘serve’ the people in better conditions. That includes the size of the cells and rooms of both prisons and places of detention and the rights and conditions of the detainees and prisoners. We highlight again that such European standards can be adopted by Middle Eastern countries without any contradiction of their own local or religious norms. They would certainly bring very positive impacts in the estimation of the public. When we skim the ongoing and completed joint programs of the CoE and the EU, we see that many of them can be customized and implemented again by the CoE, this time in cooperation with the OIC. For example, we again urge that programs


48

such as (1) Assistance to the Preparation of Comprehensive Constitutional reform; (2) Police, Professionalism and the Public; (3) Project on Ethics for the Prevention of Corruption; (4) Support to Court Management Systems; (5) Judicial Modernization and Penal Reform; and (6) Program Against Corruption, Noney Laundering and Terrorist Financing; and many others can be implemented according to the needs, expectations and conditions of the beneficiaries. It is a real fact that such joint projects also would not be easy; it would take years, probably decades. However, that depends on the will of the people, in particular the administrations and the bureaucracy. We know the fundamental principle: “If there is a will, there is a way.” The people of the Middle East have clearly showed their will and we believe that they will support progressive transitional justice projects implemented by international organizations in cooperation with their democratically elected administrations. Why CoE and OIC Joint Projects? At this point, one may wonder why we proposed the probable projects to be financed by the OIC and implemented by the CoE for the Middle East. First of all, as we have highlighted above, some member states of the CoE with high Muslim populations (Albania is 58,79 percent Muslim,104 Azerbaijan 95 percent,105 Bosnia and Herzegovina 54 percent,106 Kosovo 95,6 percent107 and

104 ‘Presentation of the main results of the Census of Population and Housing 2011’, The Institute of Statistics of Albania Web Site, Available at: http://www.instat.gov.al/media/177358/njoftim_per_media_-_fjala_e_drejtorit_te_instat_ines_nurja_per_rezultatet_finale_te_census_2011.pdf 105 ‘Mapping the Global Muslim Population – October 2009’, Pew Research Center, Avaialable at: http://www.pewforum.org/files/2009/10/Muslimpopulation.pdf 106 ‘The World’s Muslims: Religion, Politics and Society’, April 30, 2013, Available at: http://www.pewforum.org/files/2013/04/worlds-muslims-religion-politics-society-full-report.pdf 107 ‘Kosovo Population and Housing Census 2011’, The Republic of Kosovo Agency of Statistics,

Turkey 96,4 percent108) are already beneficiaries of the CoE projects. They are already benefitting from above-mentioned or similar projects and many others. This means that relevant staff members and experts who may deliver training would be aware of the sensitivities of a Muslim society. Hopefully, Middle Eastern states, which will have “post-Arab Spring administrations” as potential beneficiaries, would choose to participate in such programs since their people are going to benefit from the projects in the long term. Secondly, we should remember that the CoE member states are not logistically far from potential beneficiary states. Consequently, it would not be hard for the CoE’s short-term experts to travel to relevant venues to deliver seminars or attend events. In our opinion, citizens of Turkey who have been trained under different “training of trainers” programs would be ready-to-work trainers cut out for the needs of the relevant beneficiary countries. Accordingly, Turkey should take a role in this transitional period, not as an imposing party, but as a cooperating friendly nation that will improve on its current expertise on these topics, while delivering training on them. We can state that this would be a different approach to the win-win policy in line with the ongoing foreign policy standards of Turkey. Conclusion We are proposing the probable OIC and CoE partnership for common projects in the transition of “settled Arab Spring countries” due to the above listed reasons. The OIC also recognizes the importance of international cooperation and highly values its already existing partnerships.109

Available at: http://esk.rks-gov.net/rekos2011/repository/flipbook/2/Final%20Results_ENG 108 ‘Country: Turkey’, Joshua Project, Retrieved: August 31, 2014; available at: http://joshuaproject.net/countries/TU?page=1 109 ‘Cooperation – United Nations (UN)’, Organisation of Islamic Cooperation Web Portal.


49

We have to be aware of a fundamental reality: the opinions, expectations, targets, imaginations and dreams of the young people of North Africa about multiparty democracy, the rule of law and respect for human dignity are not actually different than the people who are already given those opportunities by their administrations and their systems.

Retrieved September 13, 2014; accessible at: http://www.oic-oci.org/oicv2/page/?p_id=77&p_ref=46&lan=en


50


51

State Responsibility for the Conduct of UN Forces – Consequences for future UN Missions? Lessons from the Dutch

Rulings on Liability of The Netherlands for Acts of Dutchbat during the

UNPROFOR Mission in Srebrenica.

By Wasja Rijs*

ABSTRACT

This article describes how Dutch courts in three civil cases came to render the Dutch State responsible for the conduct of Dutchbat leading to the deaths of 320 men during the Srebrenica genocide. The cases address two questions: 1) Is the conduct of the Dutch troops acting under UN mandate attributable to the State? 2) Was the conduct of Dutchbat wrongful? This article describes the courts use of the ‘effective control’ test and the possibility of ‘dual attribution’ to both UN and Member State as legal mechanisms for attribution. In the conclusion the question is raised: if Member States could be held accountable for actions which their forces carried out under UN mandate, would this affect their willingness to contribute forces to future UN missions?

* Wasja Rijs ([email protected]) is a criminologist from The Netherlands intrigued by the questions: What enables people to commit the most atrocious crimes? And how could these crimes be prevented? In 2010 she graduated cum laude as a Master of Science in International Crimes and Criminology at the VU University Amsterdam and worked for both the Amsterdam Police Force and the Amsterdam Municipality. Currently, Wasja raises awareness for law of armed conflict as Coordinator of the International Humanitarian Law Network Amsterdam of the Netherlands Red Cross. Her research interests include International (Humanitarian) Law, War Crimes, Genocide, Crimes against Humanity and the Training of Armed Groups.



52

Introduction Ever since the Cold War the UN has deployed forces – voluntarily contributed by Member States – on a growing number of peace operations. While contexts of these Peace Support Operations (PSO) have become more complex, tasks and goals of UN forces expanded. The likelihood that UN peacekeepers and enforcers in these dangerous and volatile contexts become involved in the use of force increased concurrently110. But what if these powers are used wrongful or have damaging consequences? Who is responsible for the conduct of UN troops: the UN which has ‘command and control’ or the State that provides the ‘blue helmets’? And what legal mechanisms are available to attribute this conduct and keep the actors liable? As questions like these have rarely been addressed in court, there is no legal or academic consensus yet on how to deal with these issues in the practice. Such matters on the attribution of responsibility in peace support operations have recently been examined in Dutch Court. In three civil law cases (Nuhanović, Mustafić and Mothers of Srebrenica) relatives of victims of the Srebrenica genocide filed claims against The Netherlands regarding the acts of Dutchbat during their deployment in Srebrenica. The impugned acts concern the eviction of 320 men that had sought refuge on the compound of Dutchbat, which subsequently lead to the killings of these men by Mladić’ forces. In all three cases the courts held The Netherlands liable for the deaths of these men. The proceedings shed new light on the possible ‘dual attribution’ of the wrongful conduct to both the UN and a Troop Contributing Nation (TCN) and a practical implementation of the ‘effective control’ test in order to determine who was responsible. This article explores the rationale behind the judgment of the Dutch courts and

110 ICRC, “Multilateral Forces.”

exemplifies a practical view on the attribution of conduct by forces acting under the auspices of the UN. Furthermore, it touches upon the possible consequences of accountability on States’ willingness to contribute forces to future UN missions. I - What Happened? A Sketch of the Concurrences before and after the Fall of Srebrenica After the fall of the Republic of Yugoslavia in 1991, the declaration of independence of both Slovenia and Croatia was followed by heavy fighting. As a response and to protect the civilian population, the UN Security Council established the United Nations Protection Force (UNPROFOR) in February 1992111. Not much later, after the secession of Bosnia Herzegovina from the Republic of Yugoslavia in March 1992 and declaration of independence of Republika Srpska, the fighting expanded through the region. Consequently, with Resolution 758, the mandate of UNPROFOR was broadened to the territory of Bosnia Herzegovina. Both Bosniaks (Bosnian Muslims) and Bosnian Serbs lived spread throughout the country, while each of these groups was higher represented in one area more than the other. The village of Srebrenica, located in a predominantly Serb-populated area in the east of Bosnia Herzegovina, originally accommodated a large Muslim population. During the fighting between the Bosnian Government Army (ABiH) and the Bosnian Serb forces (VRS) led by General Mladić, the area of Srebrenica formed an enclave where a great part of the Bosniak population from the surroundings sought shelter. I.1. - Proclamation of a ‘Safe Area’ and the Deployment of Dutchbat When peace negotiations had failed in 1993, the international community was facing a dilemma. Acknowledging the turbulent history in this region, the international community was reluctant to intervene with strong force and risk to get

111 Resolution 743, February 1992.


53

caught up a quagmire of never-ending full-scale war112. However, while the Bosnian Serb forces – with support from Serbia – quickly gained ground, the signs of ethnic cleansing of their acts couldn’t be ignored. Meanwhile, the humanitarian situation in the region – especially in the enclaves – was becoming dreadful. Something had to be done. This resulted, willy-nilly, in the following compromise113: to protect the Muslim minority from threats of ethnic cleansing and violence by the Bosnian Serb forces, the UN declared the city of Srebrenica and its surroundings as a ‘safe area’114. All parties to the conflict were asked to respect this as an area of relief for the population and were urged to withhold from any warring activities. The proclamation of a ‘safe area’ wasn’t a favourable solution: the feasibility was doubtful from the beginning115. On top of that, creating a ‘safe area’ could be considered to facilitate rather than prevent ethnic cleansing as it created an isolated ‘ghetto like’ area where the Muslim minority was assembled. Yet, it was the least bad option116. To fulfil the objectives of the Security Council – to protect the population and defend the ‘safe area’ – means of war were required. There was, however a lack of political will and the international community was divided. As a result, the mandate for the UN forces in the ‘safe area’ became an ambiguous ´masterpiece of diplomatic drafting´ full of inherent contradictions117. Moreover, it proved difficult to find the necessary troops. According to the original estimate of General Walhgren (former UNPROFOR Commander) 34.000 troops were needed to effectively deter attacks from these safe areas. Most Western 112 Honig and Both, Srebrenica. Reconstructie van een Oorlogsmisdaad. 113 Ibid. 114 Resolution 819, 16 April 1993. 115 Klep, “‘Srebrenica. Who Cares?’ De Nasleep in Nederland,” 95. 116 Honig and Both, Srebrenica. Reconstructie van een Oorlogsmisdaad. 117 Tharoor, “The Changing Face of Peace-Keeping and Peace-Enforcement.”

countries, as France, the UK and the United States, refused to put their military personnel at risk on a mission that – according to their military assessment – had little chance of success118. Only the Dutch Government, acting almost exclusively on moral outrage thus ignoring the feasibility of the mission, made a lone commitment. It offered the UN a battalion of the airmobile brigade119 – Dutchbat – with approximately 776 military personnel120. In June 1993 the UN authorized a ‘light’ mission that was aimed to provide a ‘basic level of deterrence’ in Srebrenica and the other five safe areas. This mission was based on a number of 7.600 promised troops121 and close air support122, of which only just over half actually arrived123. From March 1994 until July 1995 Dutchbat I to III were subsequently deployed in the Srebrenica enclave. Most troops were located in an industrial compound in Potočari, just outside the city of Srebrenica124. They acted as peace keepers under the authority of the UNPROFOR mandate125. In order to prevent being perceived as an intervention force, the troops were only lightly armoured with just the necessary means for self-protection. Dutchbat was assigned four tasks: 1) to deter attacks against the area and to monitor the cease-fire; 2) to promote the withdrawal of (para)military units other than those of the Bosnian Government; 3) to occupy some key points on the ground and 4) to participate in the

118 Honig and Both, Srebrenica. Reconstructie van een Oorlogsmisdaad. 119 Ibid. 120 Nederlands Instituut voor Militaire Historie, United Nations Protection Force (UNPROFOR) and the United Nations Peace Forces (UNPF). 121 Resolution 844, 18 June 1993. 122 Resolution 836, 4 June 1993. 123 Nederlands Instituut voor Militaire Historie, UNPROFOR and the UNPF. 124 The Hague Appeals Court, “Nuhanović v The Netherlands, Appeal Judgment, 5 July 2011,” 2.11; The Hague Appeals Court, “Mustafić v The Netherlands, Appeal Judgment, 5 July 2011,” 2.11. 125 Nederlands Instituut voor Militaire Historie, UNPROFOR and the UNPF.


54

delivery of humanitarian relief126. The mere presence of ‘blue helmets’ in the ‘safe area’ was supposed to have a restraining effect on the occurrence of gross human rights violations127. Force was only to be used ‘in self-defence’ or as a response to armed attacks on -, incursion into the ‘safe area’, or the obstruction of humanitarian convoys or the UNPROFOR personnel128. Note that the mandate carefully avoided the words ‘defend’ or ‘protect’129, which made it therefore not implementable as an operational directive130. Due to the lack of military resources, the peacekeepers only had limited impact on the situation. This ‘light’ option presumed the consent and cooperation of the warring parties for the presence of the troops and the permission to move convoys with military and humanitarian supplies through their territories. At first, the warring parties respected the ‘safe area’131. Broadly interpreting their instructions, Dutchbat demilitarized the city of Srebrenica (not the whole area) and the Bosnian Serb forces withdrew from its surroundings. Around 50.000 people from the surrounding areas sought refuge at the enclave, which in fact only had adequate facilities for around 15.000 people132. I.2. - The Military Stalemate and the Fall of Srebrenica In February 1995, the situation worsened when the Bosnian Serbs started to obstruct the arrival of convoys, carefully keeping military and humanitarian supplies to a minimum. Food and medical stocks got scarce and the hygienic

126 Resolution 836, paragraph 5, 4 June 1993. 127 Honig and Both, Srebrenica. Reconstructie van een Oorlogsmisdaad. 128 Resolution 836, paragraph 9, 4 June 1993. 129 Honig and Both, Srebrenica. Reconstructie van een Oorlogsmisdaad, 178. 130 Tharoor, “The Changing Face of Peace-Keeping and Peace-Enforcement”; Honig and Both, Srebrenica. Reconstructie van een Oorlogsmisdaad. 131 Honig and Both, Srebrenica. Reconstructie van een Oorlogsmisdaad. 132 Ibid.

situation amongst the civilian population deteriorated quickly. By July 1995, when the fighting in the surroundings intensified, Dutchbat suffered from a severe lack of fuel and possessed only 16 per cent of their operational ammunition requirement. Logistics proved to be the Achilles’ heel of the ‘safe area’133. The ‘blue helmets’ ‘found themselves in the untenable position of having to call in air strikes on the very people amongst whom they were deployed and on whose co-operation they were dependent for their daily survival.’134 Hence, the use of air support could have major drawbacks: it might put UNPROFOR’s neutrality to question within the warring factions, it could jeopardize their consent and cooperation and posed a serious risk of becoming a party to an all-out war, which consequently entailed huge risks for UNPROFOR personnel elsewhere135. To prevent escalation, a cumbersome and lengthy decision-making process was set up to assure that air support wouldn’t conflict with national interests of any of the TNC’s136. The Bosnian Serb forces started to close in on the Bosnian Army and the ‘safe area’. The vaguely formulated boundaries of the ‘safe area’ now functioned as front lines, where the UN forces unintentionally acted as a shield for the Bosnian Army (which was exempted from demilitarization in the surroundings of the city of Srebrenica). The deterring effect of the mere presence of Dutchbat in the ‘safe area’ was limited. The Bosnian Serbs didn’t waive the commitment of war crimes – they simply concealed these by setting up extensive security at apparent sensitive locations and by preventing

133 Ibid. 134 Tharoor, “The Changing Face of Peace-Keeping and Peace-Enforcement,” 420. 135 Honig and Both, Srebrenica. Reconstructie van een Oorlogsmisdaad; Blom et al., Srebrenica - A “Safe” Area. Reconstruction, Background, Consequences and Analyses of the Fall of a “Safe” Area. 136 Honig and Both, Srebrenica. Reconstructie van een Oorlogsmisdaad.


55

patrols of Dutchbat137. On several occasions Dutchbat requested for Close Air Support. Most of these, however, were denied. The two instances where the requests were honoured, the air support wasn’t sufficient to make the Bosnian Serb forces draw back. Contrarily, it triggered the Bosnian Serb forces to further undermine the authority of the UN: they took many Dutchbat soldiers hostage and chained some of them to possible future targets138 as a reprisal for NATO’s air strikes. It became clear that the mandate – aimed at peacekeeping – was inadequate to achieve acceptable living conditions in the ‘safe area’. Boutros-Ghali, the former Secretary-General of the UN, reported to the Security Council that the UN forces couldn’t possibly act as a peacekeeper, when there was no ‘peace’ to keep139. However, ideas for broader mandate or the withdrawal and regrouping of the UN forces were rejected. In the end, the Security Council didn’t come up with any response to this stalemate140. A month later, after slow and long political discussion the UN agreed to form a Rapid Reaction Force. Unfortunately, the solution came too late. The Bosnian Muslim forces and Dutchbat in Srebrenica couldn’t endure the attacks any longer. On 11 July 1995 – the day the Rapid Reaction Force left for Bosnia – Srebrenica enclave fell141. I.3. - After the Fall: Evacuation and the Srebrenica Genocide As the Bosnian Serb Army had taken over the city, the Dutch troops were rendered powerless and retreated to the compound in Potočari. What followed was a massive stream of civilians seeking shelter in the surroundings of the compound. An estimated number of 20.000 to 30.000

137 Blom et al., Srebrenica - A “Safe” Area, 2063. 138 Nederlands Instituut voor Militaire Historie, UNPROFOR and UNPF; Honig and Both, Srebrenica. Reconstructie van een Oorlogsmisdaad. 139 Blom et al., Srebrenica - A “Safe” Area, 1369. 140 Ibid., 1371. 141 Ibid., 1386.

refugees were accommodated at this improvised ‘mini safe area’. Around 5000 of them were admitted at the premises of the compound142. The majority consisted of women, children and elderly people143, as most of Srebrenica’s men of military age had fled to the woods in a desperate attempt to break through the frontlines of the Bosnian Serb army144. The situation amongst the refugees deteriorated rapidly: temperatures were high, there weren’t enough sanitary facilities and due to a lack of water, medical supplies and hygiene the risk of epidemical diseases grew. The factory halls were overcrowded and the situation was very chaotic: women were spontaneously giving birth whereas others were dying from exhaustion145. Meanwhile, the UNPROFOR command understood that Dutchbat’s mission had failed and ‘decided that there was no sense in using any further violence’146. On 11 July 1995, the Dutch Government and the UN made a joint decision to withdraw the Dutch forces, but only after the blue helmets had accompanied the evacuation of civilian population, as these people couldn’t be left to the Serbs alone147. This decision marked the start of a transition period, in which, Dutchbat – in close consultation with both the UN and the Dutch Government – started to prepare the evacuation of the refugees and the withdrawal of the Dutch troops148. When former Dutchbat Commander Karremans negotiated the terms of the evacuation with the Bosnian Serbs, Mladić offered to provide transportation149 142 The Hague District Court, “Mothers of Srebrenica v The Netherlands, Ruling in First Instance, 16 July 2014,” 4.205. 143 Ibid., 4.206. 144 Ibid., 4.100 – 4.101. 145 Ibid., 4.209, 4.210. 146 Court of Appeal of The Hague, “Nuhanović v The Netherlands" and “Mustafić v The Netherlands", Appeal Judgment, 5 July 2011, 2.19, 5.11. 147 The Hague District Court, “Mothers of Srebrenica,” 4.85 – 4.87. 148 The Hague Appeals Court, “Nuhanović” and “Mustafić,” 5.17. 149 The Hague District Court, “Mothers of Srebrenica,” 4.212.


56

and announced that his troops would screen the men of fighting age on war crimes beforehand150. On 12 July, when the first buses arrived, a wave of people ran towards the buses desperately trying to get in151. To prevent that the refugees would trample one another underfoot and to prevent the Serbs from panicking because of this chaos, the Dutchbat decided to line up the crowd and let the people enter the buses in dosed groups152. While waiting in line, the Bosnian Serb soldiers separated around 1000 able-bodied men from the women in the ‘mini safe area’153. These men were brought to a building nearby and were later carried off in separate buses154. The former Dutch Minister of Defence Voorhoeve instructed Dutchbat to – under no circumstances – cooperate with the separate treatment of the men155. In the evening of 12 July, after many refugees from outside the compound had already been carried off, Dutchbat soldiers had started to raise concerns about the fate of the Muslim men: the busses with the men had never arrived with the women and children at Kladanj. Stopping the evacuation at the borders of the compound, though briefly considered, wasn’t regarded as an option, as the compound was overcrowded and the majority of women and children wouldn’t last much longer. However, in the hope that registration and publication would protect the men, a list was drawn up to identify the approximately 320 men on the compound156 (‘anonymous victims are no victims’157). Subsequently, in the late afternoon of 13 July all refugees (except

150 Ibid., 2.40. 151 Ibid., 4.213. 152 Ibid., 4.215. 153 Ibid., 4.206. 154 Ibid., 4.217 – 4.218. 155 Dutch Supreme Court, “The Netherlands v Nuhanović, Final Appeal Judgment, 6 September 2013”; Dutch Supreme Court, “The Netherlands v Mustafić, Final Appeal Judgment, 6 September 2013”, 3.2 (x). 156 Ibid., 4.244 – 4.248. 157 The Hague District Court, “Mothers of Srebrenica,” 4.248.

twenty-nine local personnel that would be evacuated along with Dutchbat) were evicted from the compound158. The majority of the women and children from the ‘mini safe area’ was brought into safety and was successfully evacuated from an increasingly untenable situation159. The men, however, including those from the compound, would never reach their destination. After being stripped from their personal belongings, including their passports, they were physically abused during interrogations and afterwards killed in mass executions160. Around 6000 men that had fled to the woods fell into the hands of the Bosnian Serb Army and found the same fate161. In total approximately 7000 men were killed by the Bosnian Serb forces – many of them in mass executions – during the days after the fall of the enclave in what’s now known as the Srebrenica genocide162. The failed mission of Dutchbat in Srebrenica became a permanent stain on the reputation of the United Nations and the Dutch Government163. II - Civil Cases against the Netherlands: Nuhanović, Mustafić and Mothers of Srebrenica Various courts, such as the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia have examined the events that occurred in and around Srebrenica in July 1995 and confirmed that they amounted to genocide164. In addition, family members of victims of the

158 Dutch Supreme Court, “Nuhanović" and "Mustafić," 3.2 (ix). 159 The Hague District Court, “Mothers of Srebrenica,” 4.303. 160 Ibid., 4.212, 4.220, 4.245 – 4.246. 161 Ibid., 4.101. 162 Dutch Supreme Court, “Nuhanović" and "Mustafić," 3.2 (xvi). 163 Brockman-Hawe, “Questioning the UN’s Immunity in the Dutch Courts: Unresolved Issues in the Mothers of Srebrenica Litigation; The Hague District Court, “Mothers of Srebrenica,” 4.13. 164 Brockman-Hawe, “Questioning the UN’s Immunity.”


57

Srebrenica genocide have filed civil claims in an attempt to hold the UN and The Netherlands accountable for what Dutchbat failed to prevent in Srebrenica. Recently, Dutch Courts have ruled in three cases on this matter, all examining the same questions: 1) Is the conduct of the Dutch troops acting under UN mandate attributable to the State? and 2) Was the conduct of Dutchbat wrongful? On 6 September 2013 in two quasi-identical judgments in the cases Nuhanović and Mustafić the Dutch Supreme Court held the Dutch State accountable for the deaths of three civilians that were killed by the Bosnian Serbs after they were excluded from the Dutch compound in Potočari on 13 July 1995. Mustafić relates to an electrician who worked for the Potočari municipality and was assigned at the compound of Dutchbat. Because he wasn’t directly hired by the UN, his name wasn’t put on the list of local staff that was to be evacuated along with Dutchbat. In the early evening of 13 July he was evicted from the compound. Nuhanović, who worked as an interpreter for Dutchbat, did make it to the list of local staff. His family (mother, father and brother), however, were denied to stay on the compound. The reasoning in these cases that led to the accountability of the Netherlands is very similar. Even though the Dutch soldiers were working under UN mandate, the Supreme Court ruled that the conduct of these troops could be attributed to both the UN as the TCN (dual attribution). The court reasoned that the Dutch State had been exercising ‘effective control’ over the conduct of its troops during the transition period – starting from the moment the Dutch Government and the UN jointly agreed to terminate the mission after it had failed165. As the authority of Dutchbat on the premises of the compound was respected by the Bosnian Serb Army166

165 Dutch Supreme Court, “Nuhanović" and "Mustafić," H5. 166 Ibid., 3.17.3, H7.

and the Dutchbat soldiers, by that time, should have known that able-bodied men ran the risk to be killed or subjected to inhuman treatment167, the court argued that Dutch State, through Dutchbat, could have prevented the deportation and deaths of the three men by adding them to the UN local staff list and allowing them to stay on the compound168. Hence the Supreme Court affirmed the earlier judgement and held the Dutch State responsible for the damages following from this wrongful conduct. Building on these decisions, the foundation Mothers of Srebrenica subsequently filed a more wide-ranging claim that includes the deaths of all men from the ‘safe area’ before, during and after the fall of Srebrenica, both in and outside the compound. On 16 July 2014 the District Court of The Hague ruled on this claim in first instance. In examining the attribution of the concerned conduct, the District Court followed the same reasoning as in the first two cases in which the ‘effective control’ of the Dutch State is limited to the ‘transition period’ after the fall of the enclave. Unlike deportation of the men outside the compound, the court considered that – bearing in mind what was known at the time – Dutchbat could have prevented the eviction of the 320 men within the compound, if it had stopped the evacuation at that point. Thus, the District Court held the Dutch State liable for the deaths of these men. These judgements set an important precedent (at least under Dutch law): a TCN could now be held accountable for actions that its forces carried out under UN mandate169. The assessment of this attribution is elaborated further in the section hereafter.

167 Court of Appeal of the Hague, “Mustafić" and "Nuhanović,” 6.7. 168 The Hague Appeals Court, “Mustafić,” 6.14 – 6.18. 169 Nudd, “Case Watch - Peacekeepers, Liability and the Srebrenica Massacre.”


58

III - Who was in Charge? UN Immunity, Dual Attribution and the ‘Effective Control’-Test Who is to blame for possible misconduct by peacekeeping troops under the flag of the UN: the UN, the TNC (and in case of multinational forces: which particular one) or the individual soldier? For reasons of compliancy and legitimacy of the UN and its missions, it is of the utmost importance that there are adequate mechanisms available to ensure accountability and address the consequences of impugned conduct on a mission170. This section describes how the Dutch courts came to render the Dutch State responsible for the conduct of Dutchbat during the UNPROFOR mission. The legal term ‘responsibility’ is a subset of the notion of accountability and denotes the legal consequences – liability and reparations – of the breach of an international legal obligation171. The assessment can be divided in two parts: 1) whether the disputed conduct is attributable to the State, and 2) whether the attributable act or omission is unlawful. III.1. - The ‘Effective Control’-test: Who was in Control? The basic principle when it comes to the assessment of responsibility is that each actor bears responsibility for its own conduct172. However, due to the characteristic complex and multi-layered authority structure of UN Peacekeeping Operations, the allocation of responsibility isn’t very straight-forward173. The UN has to rely on the voluntarily contribution of troops by (often several) Member States to carry out its Peace Support Operations. To prevent restrictions stemming from national interests of these TNC’s174 and to 170Gill, “Legal Aspects of the Transfer of Authroity in UN Peace Operations,” 40. 171 Ibid., 51–52. 172 Direk, “Responsibility in Peace Support Operations: Revisiting the Proper Test for Attribution Conduct and the Meaning of the ‘Effective Control’ Standard,” 9. 173 Ibid. 174 Leck, “International Responsibility in United Nations Peacekeeping Operations: Command and

ensure that the mandate is carried out in an impartial manner, the UN takes over operational control during its missions and is primarily responsible for implementing the mandate. By providing troops, a State agrees to transfer part of the authority to the UN within the limits of 1) a specific mandate, 2) an agreed period of time and 3) a specific geographical area. Yet, the UN doesn’t operate in a vacuum: a participating State often has some degree of influence on the mission, the mandate and the Rules of Engagement175. Moreover, the TCN does retain some of its powers. The TCN is required to ensure its troops comply with international law during peace support operations176 and therefore preserves the exclusive right to take disciplinary measures or start criminal proceedings. In addition, the TCN maintains the strategic authority to withdraw its forces from a mission, provided that adequate prior notice is given. In examining the allocation of responsibility, the Supreme Court followed the sets of draft rules that it considers a reflection of unwritten law177: the Draft Articles on the Responsibility of States for International Wrongful Acts (DARS) and the Draft Articles on the Responsibility of International Organizations (DARIO) as described by the International Law Commission (ILC) of the UN. Accordingly, the Supreme Court argued that conduct can be attributed to the State if Dutchbat should be considered as an organ of the State (art. 4 (1) DARS178) or if the Dutch

Control Arrangements and the Attribution of Conduct.” 175 Zwanenburg, Accountability under International Humanitarian Law for United Nations and North Atlantic Treaty Organization Peace Support Operations, 40; Gill, “Legal Aspects of the Transfer of Authroity,” 39. 176 Jackson, “IHL and Multinational Forces II: Dick Jackson Weighs in.” 177 The Hague District Court, “Mothers of Srebrenica,” 4.33. 178 Article 4 DARS Conduct of organs of a State (1): ‘The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the


59

troops acted under the instructions or control of the Dutch State (art. 8 DARS179). However, as explained above, Dutchbat was placed at the disposal of the UN and functioned as a contingent of UNPROFOR180. Consequently, the Supreme Court applied the ‘effective control’ test – formulated in article 7 DARIO181 – as the proper criteria for the attribution of conduct: determining who exercised effective control over the Dutch troops at the time of the impugned conduct indicates who is to be held accountable182. In all three cases, the claimants charged both the UN and the Dutch State. The Dutch courts, however, declared themselves incompetent to judge the UN, due to the immunity183 the organization enjoys for every form of legal process before any domestic court184. This functional immunity is aimed to ensure the UN’s effectiveness and independence185. Yet, even if the UN would have been in control over the Dutch troops, the Supreme Court assumes that more than one party can have effective organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.’ 179 Article 8 DARS Conduct directed or controlled by a State: ‘The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.’ 180 The Hague District Court, “Mothers of Srebrenica,” 4.37. 181 Article 7 DARIO Conduct of organs of a State or organs or agents of an international organization placed at the disposal of another international organization: ‘The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct’. 182 Dutch Supreme Court, “Nuhanović" and "Mustafić," 5.2. 183 Grounded in article 105 (1) of the UN Charter. 184 Dutch Supreme Court, “Mothers of Srebrenica v The Netherlands and the UN, Final Appeal Judgment, 13 April 2012”, ECLI/NL/HR/2012/BW1999. 185 Dankers-Hagenaars, “De Srebrenica-Arresten: Een Doorbraak Met Grote Gevolgen?,” 28.

control186, opening the way to ‘dual attribution’. This notion – that the same act of UN peacekeeping troops could be attributed to both the UN and the contributing State – is ground breaking as it is rarely elaborated upon in practice.187 Due to UN immunity, the court suffices by examining only whether The Netherlands exercised effective control. The court interprets ‘effective control’ as the actual say or ‘factual control’ over the specific actions of the troops. To meet this criteria, it is not required that the State gave direct instructions or orders to Dutchbat or that these orders conflict (ultra vires) with the UN chain of command. It is merely about determining if the State had the power (either by authority or influence) by which it could and should have prevented the concerned conduct. ‘It comes down to the actual say over specific actions whereby all of the actual circumstances and the particular context of the case must be examined.’188

During the implementation of the UN mission – which lasted at least till the fall of Srebrenica – the State agreed to transfer operational command to the UN and thus was not competent to ‘exercise its say about Dutchbat whether via the Dutch officers in the UN chain of command or directly’189. In other words, the mere presence of national officers on high ranking positions within the UN chain of command and their reports to the Dutch Government aren’t enough to constitute effective control. Also, even though contact between the nationals in the UN chain of command and the Dutch State intensified in the period leading up to the fall of the enclave, the court labelled this as a heightened exchange of information that is not unusual during a mission190.

186 Dutch Supreme Court, “Nuhanović" and "Mustafić," 3.9.4, 5.2. See also article 48 DARIO. 187 Direk, “Responsibility in Peace Support Operations.” 188 The Hague District Court, “Mothers of Srebrenica,” 4.46. 189 Ibid., 4.40. 190 Ibid., 4.47 – 4.54; 4.131.


60

An exemption is found when Dutchbat was preparing to take position on the building blocks to prevent the further advance by the VRS in the direction of Srebrenica and the former Dutch Minister of Defence, Voorhoeve gave Dutchbat on 9 July 1995 the direct instruction to take measures to avoid unnecessary casualties. The Court argued that Voorhoeve, by this instruction, interfered in an operational matter over which UNPROFOR had the say. Here the State did exercise effective control over the specific actions surrounding the blocking positions191. Notwithstanding this, the Court reasoned that it is uncertain whether a hypothetical, more robust approach by Dutchbat on the blocking positions would have saved lives. Accordingly, the Court determined that the outnumbered Dutch at the blocking positions had no ‘better’ alternative than the way they acted under threat of the Bosnian Serbs192. The situation changed, however, when the enclave fell. During a decision-making process at the highest level of both the UN and the Dutch Government, both acknowledged that the mission had failed and mutually agreed that Dutchbat would only leave simultaneously with or after the evacuation of the refugees193. As stated before, every TCN has the right to withdraw its forces. The Dutch Government, however, didn’t only utilize this power, but it also tied the implementation of this power to the operational matters regarding the evacuation of the refugees from the ‘mini safe area’. This decision marks the beginning of a transitional period – different from the normal situation in which troops function under the command of the UN194 – in which the State exercised effective control over Dutchbat195.

191 Ibid., 4.66. 192 Ibid., 4.190 – 4.193. 193 Ibid., 4.83. 194 Dutch Supreme Court, “Nuhanović" and "Mustafić," 3.12.2. 195 The Hague District Court, “Mothers of Srebrenica,” 4.85 – 4.87.

III.2. - Was the Conduct Wrongful? The attribution of Dutchbat’s actions to the State – in the ‘mini safe area’ after the fall – is the first step towards liability. Subsequently, the court examined whether these actions were unlawful. In other words: could and should the Dutch State, through Dutchbat, have acted differently and would this have changed the outcome of the events? To establish an unlawful act, two elements must be satisfied: 1) the conduct must be contrary to a standard of care, 2) the actions must have a causal link to the concerned damage196. Regarding the standard of care the court determined that the positive obligations of the Dutch State to protect the right to life and physical integrity – arising from article 2 and 3 ECHR and article 6 and 7 ICCPR – should be applied by extraterritorial jurisdiction to the people on the compound197. About the second element the court stated: ‘The requirement of a causal link (conditio sine qua non) is present if it can be established with a sufficient degree of certainty that without the unlawful actions the damage would not have occurred’198. At the outset it must be stated that the evacuation of the women and children is regarded as just. Keeping them any longer in this miserable situation was not a realistic option199. In contrast, during the evacuation, Dutchbat’s observations of inhumane treatment, suspected execution firing and the fact that the busses with men didn’t arrive in Kladanj indicated that the separation of men wasn’t merely for ‘screening’ on war crimes200. Based on the following, the court concluded that on the evening of 12 July Dutchbat could have suspected and on 13 July (after seeing a pile of identity papers being burned) should have known that the men ran a real risk of being killed by the Bosnian Serbs201. However, due to the fact that

196 Ibid., 4.182. 197 Ibid., 4.151 – 4.161. 198 Ibid., 4.182. 199 Ibid., 4.325. 200 Ibid., 4.231, 4.246 – 4.254. 201 Ibid., 4.254.


61

Dutchbat was outnumbered to both the Bosnian Serbs and the number of refugees and the fact that there weren’t enough supplies to take care of the population any longer, the court ruled that the Dutch soldiers couldn’t reasonably have acted differently. The necessary causal link between the conduct and the damage is therefore absent. Yet, these justifications don’t hold ground when it comes to the men located on the compound. The court ruled that Dutchbat had full control over the enclosed compound and the Bosnian Serbs respected Dutchbat’s authority over it202. Moreover, there were sufficient resources left to take care of the men on the compound a little longer203. Considering what was known to Dutchbat at the time about the fate of the men, the court concluded that Dutchbat should have reassessed ‘the situation and all interests concerned prior to the evacuation of the refugees from the compound and that it should have decided to let the male refugees stay at the compound’204. If they had done so, the court considers it beyond reasonable doubt that these men would have probably survived205. As the State exercised effective control over this conduct of Dutchbat at the time, the court assumes that Dutchbat would have acted differently, if the State had instructed accordingly. Consequently, the court held the State liable for the damages resulting from the cooperation of Dutchbat in the afternoon of 13 July 1995 to the deportation of the 320 men on the compound that were subsequently killed by the Bosnian Serbs206. Consequences of state Accountability These cases point out that States aren’t alleviated from their international obligations when participating in peace missions and are obliged to assure that its 202 Ibid., 4.322. 203 Ibid., 4.291. 204 Ibid., 4.326. 205 Ibid., 4.330. 206 Ibid., 5.1.

contingents abide by such obligations. As explained above, a States always retains the power to withdraw its forces, provided this is done with adequate prior notification. However, in the situation of Dutchbat the ‘effective control’ of the State in the transition period is strongly linked to the utilization of this power to withdraw. It is to be expected that a TCN wouldn’t withdraw its forces without any reason or within a flash. It is plausible that future situations – in which withdrawal might be considered – are just as complex, unstable and volatile, with all the risks such situations may entail. This raises the following question: if a sending state can be held accountable for acts by their forces – while these are acting in good faith, under difficult circumstances, under the auspices of the UN, for a cause beyond national concern – will this have impact on the willingness of States to contribute troops to future UN missions? According to the Dutch State, the answer is affirmative. Earlier during trial, the State followed this logic and requested the courts to apply judicial restraint in the Dutchbat cases207. The Supreme Court, however, declined arguing that a possible adverse effect of their ruling should not ‘prevent the possibility of judicial assessment in retrospect of the conduct of the relevant troop contingent’. Otherwise there would ‘be virtually no scope to assess the consequences of conduct […] in the context of a peace mission’. Nonetheless, it remains interesting to investigate if this ruling would make Member States more reticent to support or join a UN peacekeeping mission, especially considering that the main troop contributors are countries of the developing world (of which many have poorly professionalized armies208). The USA and countries of the EU provide only

207 Dutch Supreme Court, “Nuhanović" and "Mustafić," 3.18.1. 208 Sotomayor, “2014 - The Year the UN Could Make Its Troops Fully Accountable for Their Actions.”


62

5% of the troops for UN missions209. On a more positive note, it could also have the opposite effect: i.e. that States take more effort (in training210 and disciplinary measures) to ensure compliance of their contingents to international law or it could lead to homogenized and quality standards for UN peacekeeping training and forces211. This article attempted to clarify the rationale behind the rulings of the Dutch Courts and the use of the ‘effective control’ test in the practice of peace keeping missions. It goes beyond the scope of this article to examine whether these rulings will have an adverse effect on the contribution of UN troops to future missions. Almost twenty years after the Srebrenica genocide the final word on this has not yet been spoken. Meanwhile, the discussion has gained interest of lawyers worldwide212. On 9 October 2014 the Dutch State submitted an appeal against the judgment of the District Court of The Hague, again stating that this ruling ‘sets a precedent’ that could form a risk for future missions of Dutch military personnel213. To be continued.

209 See http://www.un.org/en/peacekeeping/resources/statistics/contributors.shtml (status October 2014). 210 Minister of Defence, “Antwoorden Op de Vragen over Aansprakelijkheid van de Staat Tijdens Inzet in VN-Operaties. 11 March 2014.” 211 Sotomayor, “The UN Could Make Its Troops Fully Accountable.” 212 BBC, “Dutch Srebrenica Ruling: The Wider Impact.” 213 NOS, “Srebrenica: Staat in Beroep.”


63

BIBLIOGRAPHY

Joint-author listings Honig, Jan Willem, and Norbert Both. Srebrenica. Reconstructie van een Oorlogsmisdaad.

Utrecht: Het Spectrum, 1996. (English version: Srebrenica: Record of a War Crime. London: Penguin Books, 1996.) Klep, Christ. “‘Srebrenica. Who Cares?’ De Nasleep in Nederland.” In Somalië, Rwanda, Srebrenica. De Nasleep van Drie Ontspoorde Vredesmissies, 79–98. Amsterdam: Boom, 2008.

Journal articles

Brockman-Hawe, BE. “Questioning the UN’s Immunity in the Dutch Courts: Unresolved Issues in the Mothers of Srebrenica Litigation.” Washington University Global Studies Law Review. Rev. 10, no. 4 (2011): 727–48. http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/wasglo10&section=29. Dankers-Hagenaars, D.L.M.T. “De Srebrenica-Arresten: Een Doorbraak Met Grote Gevolgen?” Maandblad Voor Vermogensrecht 24, no. 2 (2014): 27–35. http://www.bjutijdschriften.nl/tijdschrift/maandbladvermogensrecht/2014/2/MvV_1574-5767_2014_024_002_001.pdf. Direk, Ömer Faruk. “Responsibility in Peace Support Operations: Revisiting the Proper Test for Attribution Conduct and the Meaning of the ‘Effective Control’ Standard.” Netherlands International Law Review 61, no. 01 (April 24, 2014): 1–22. doi:10.1017/S0165070X14001016.

Gill, Terry D. “Legal Aspects of the Transfer of Authroity in UN Peace Operations.” In Netherlands Yearbook of International Law 2011, edited by I.F. Dekker and E. Hey, 42:37–68. The Hague, The Netherlands: T. M.C. Asser Press, 2012. doi:10.1007/978-90-6704-849-1. Leck, Christopher. “International Responsibility in United Nations Peacekeeping Operations: Command and Control Arrangements and the Attribution of Conduct.” Melbourne Journal of International Law 10, no. 2004 (2009): 346–64. http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/meljil10&section=20. Tharoor, Shashi. “The Changing Face of Peace-Keeping and Peace-Enforcement.” Fordham International Law Journal 19, no. 2 (1995): 408–26. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2227&context=ilj.

Websites ICRC. “Multilateral Forces.” Www.icrc.org, 2014. https://www.icrc.org/en/war-and-

law/contemporary-challenges-ihl/multinational-forces/overview-multilateral-forces.htm. Jackson, Richard B. “IHL and Multinational Forces II: Dick Jackson Weighs in.” Intercross Blog ICRC. Date: 29 July 2013, 2013. http://intercrossblog.icrc.org/blog/ihl-and-multinational-forces-part-ii-dick-jackson-weighs . Nudd, Eva. “Case Watch - Peacekeepers, Liability and the Srebrenica Massacre.” Open Society Justice Initiative: October 4 2013, 2013. http://www.opensocietyfoundations.org/voices/case-watch-peacekeepers-liability-and-srebrenica-massacre . Sotomayor, Arturo C. “2014 - The Year the UN Could Make Its Troops Fully Accountable for Their Actions.” JHU Press Blog. Date: 13 January 2014, 2014. http://jhupressblog.com/2014/01/13/2014-the-year-the-un-could-make-its-troops-fully-accountable-for-their-actions/.


64

Reports Blom, JCH;, P; Romijn, N; Bajalica, G; Duijzings, T; Frankfort, BGJ; de Graaff, AE; Kersten, et al. Srebrenica - A “Safe” Area. Reconstruction, Background, Consequences and Analyses of the Fall of a “Safe” Area. Amsterdam: NIOD (Dutch Institute for War, Holocaust and Genocide Studies), 2002. http://publications.niod.knaw.nl/publications/srebrenicareportniod_en.pdf. Nederlands Instituut voor Militaire Historie. United Nations Protection Force (UNPROFOR) and the United Nations Peace Forces (UNPF). Historical Missions, 2009. http://www.defensie.nl/english/topics/historical-missions/documents/leaflets/2009/05/01/united-nations-protection-force-unprofor-and-the-united-nations-peace-forces-unpf.

Case Law Dutch Supreme Court. “Mothers of Srebrenica v The Netherlands and the UN, Final

Appeal Judgment, 13 April 2012,” ECLI/NL/HR/2012/BW1999. http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2012:BW1999 ———. “The Netherlands v Mustafić, Final Appeal Judgment, 6 September 2013,” ECLI/NL/HR/2013/BZ9228. http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2013:BZ9228 ———. “The Netherlands v Nuhanović, Final Appeal Judgment, 6 September 2013,” ECLI/NL/HR/2013/BZ9225. http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2013:BZ9225 The Hague Appeals Court. “Mustafić v The Netherlands, Appeal Judgment, 5 July 2011,” ECLI:NL:GHSGR:2011:BR5386. http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHSGR:2011:BR5386. ———. “Nuhanović v The Netherlands, Appeal Judgment, 5 July 2011,” ECLI:NL:GHSGR:2011:BR5388. http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHSGR:2011:BR5388. The Hague District Court. “Mothers of Srebrenica v The Netherlands, Ruling in First Instance, 16 July 2014,” ECLI:NL:RBDHA:2014:8748. uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2014:8748. News reports BBC. “Dutch Srebrenica Ruling: The Wider Impact.” 16 July, 2014. http://www.bbc.com/news/world-europe-28329189. NOS. “Srebrenica: Staat in Beroep.” 9 October, 2014. http://nos.nl/artikel/707945-srebrenica-staat-in-beroep.html.

Documents Minister of Defence. “Antwoorden Op de Vragen over Aansprakelijkheid van de Staat

Tijdens Inzet in VN-Operaties. 11 March 2014,” 2014. https://zoek.officielebekendmakingen.nl/dossier/29521/kst-29521-235.html. Zwanenburg, MC. Accountability under International Humanitarian Law for United Nations and North Atlantic Treaty Organization Peace Support Operations, 2004. http://www.leidenuniv.nl/archief-wetenschapsagenda/content_docs/proefschriften_2004/februari_zwanenburg.doc.


65


66


67

»WE ARE SORRY«: The Truth and Reconciliation Commission of Canada

By Renata Ribežl*

ABSTRACT The essay examines the Truth and Reconciliation Commission in Canada (the Commission), which was established in order to examine, gather and file testimonials of the victims of the Indian Residential School system. After providing a brief theoretical frame about truth and reconciliation commissions, the author describes the Truth and Reconciliation Commission of Canada. The article provides recent historical developments and the actions that led to the establishment of the Commission. It also describes the structure, mandate and mission of the Commission. As the Commission of Canada is unique in comparison with other commissions, its differences are also highlighted. The final report of the Commission is yet to be published, therefore the article summarises some of the findings and interim recommendations made by the Commission. The conclusion brings some of the author’s personal hopes for the Commission and others to be followed around the world.

* Renata Ribežl is a PhD student of the Diversity Management and Governance program at Law Faculty, University of Graz in Austria. During her doctoral studies she was a guest student at various universities (Arthur V. Mauro Centre for Peace and Justice, University of Manitoba in Canada; Faculty of Political Science, University of Sarajevo in Bosnia and Herzegovina and Law Faculty, University of Zagreb in Croatia). She also interned with the Institute for Development and International Relations in Zagreb, Croatia. Her research interests include multiculturalism, diplomacy and indigenous peoples. She is currently writing her doctoral thesis on connection between multiculturalism and cultural diplomacy in Canada, under the mentorship of prof. dr. Mitja Žagar.


68

Introduction

Canadians grow up believing that the history of their culture is a story of cooperative venture between people who came to Canada to find a better life and those who, at their arrival, were already settled there (Regan, 2010). As a European, it is not hard for me to share this believe, as I can admit that Canada has always been projected as an ideal model of respectful relationship between ethnic groups and a “promised” land of immigrants, searching for a better life. While the words Aboriginals and Indians have been used more often in the context of Australian Aboriginal peoples and American Natives, we are also misled to believe that Eskimos leave peacefully in their eternal ice up north214. It is no wonder that it came as a surprise when the Canadian Prime minister officially apologised on behalf of Canada and its people for its assimilation policy in 2008. He stated that the policy of assimilation: “was wrong, has caused great harm, and has no place in our country215 (Canada). To observers, in that time not familiar with Canadian history, this came as a surprise and left us wondering if we perhaps perceived Canadian ideal multiculturalism wrong. The apology came as part of a package of actions following the long negotiations between the victims of Canadian assimilation policy and Canadian Government. This essay will examine the Truth and Reconciliation Commission in Canada (the Commission) that was established in order to examine, gather and file testimonials of the victims of Indian Residential School system. After providing a brief theoretical frame about truth and reconciliation commissions, it 214 The expresions used in this paragraph are not meant in any discrespectful way. They are used only as an ilustration of a general perception of indigeneous peoples in United States of America, Canada and Australia by authors experiences. 215 Government of Canada. “Statement of Apology,” 2008.

will describe the Commission of Canada. In the first part, the Commissions structure, mandate and missions are described. As the Commission of Canada is a unique case within other truth commissions this paper will also highlight its differences. Its international dimensions will also be briefly highlighted. As the final report of the Commission is yet to be published, the article will summarise some of the findings and interim recommendations made by the Commission. The conclusion brings thinking about evaluation of successes and failures of truth commission and offers some of author’s personal hopes for the Commission of Canada and others to be followed around the world. Truth and Reconciliation Commissions Truth Commissions are independent bodies, established by state governments. They are established with the intention to investigate and gather facts about past atrocities. Truth commissions are primarily investigative bodies, with a time-limited term, which focus on individuals affected by the serious violations of human rights on local, regional or national level. It is important to understand that the Truth commissions are not court trials and they do not pass judgement on guilt. However in some cases, amnesty is offered to the witnesses who are ready to speak about their wrongdoings. One of the most significant values of the truth commission is the ability to establish safe surroundings for a civil dialogue between two sides, usually involved in a protracted conflict (Freeman, 2007). Truth commissions usually emerge in transitional countries, where the transition is marked with serious atrocities and violations of human rights. They are established either through legislation or presidential decree and are dissolved once the reports of their findings are published (Lerche, 2000).


69

One of the most controversial aspects of truth commissions is the granting of amnesty. As amnesty, given to the perpetrators for exchange for testimonials and information, is not a general rule or criteria of truth commissions, it does play a significant role in discovering the truth behind the crimes. For example in the case of Chile where the military under former Head of State General Pinochet only accepted the Truth commission on condition of amnesty and a compromise in which the truth about “disappearances” could be reported, but judgments on the justification of deaths was left to individual discretion (Green in Lerche, 2000). Another example of troubled process of awarding amnesty can be seen two decades after the South African commission finished its work. Despite that scholars mostly agree that amnesty was a necessary compromise, it feels it was not made clear that it was an “evil compromise”. Looking at the Truth and Reconciliation Commission of South Africa and the reparations that they recommended it almost seems that the perpetrators got more out of amnesty then victims got from reparations (Lerche, 2000). It must be noted that the truth commissions are usually evident in transitional countries who suffered from a weak justice system prior to the transition. Top down transitions do not have, as illustrated in Chilean case, the institutional capacity to right the wrongs of the past through rule of law. Truth commissions therefore represent an imperfect but politically viable, alternative way to give a “voice” to the people and examine the shortcomings in the human right practice (Lerche, 2000). Perhaps the clearest description of difference between the truth commission and the court is given by South African lawyer Richard Penwill (in Lerche, 2000) when he states: “The Truth and Reconciliation Commission is not, and was not intended

to be a court of law. It was not created to make a judgement, it was created to help ventilate the evidence, establish the truth and bring about reconciliation”. Amnesty cannot be discussed as a general rule in truth commissions, as it differs from case to case. As we will see in following paragraphs, in the Canadian case the amnesty discussion was not needed because the Canadian Commission did not have legal jurisdiction. The Truth and Reconciliation Commission of Canada The Truth and Reconciliation Commission Canada is an independent body that oversees the process of sharing individuals’ experiences in a safe and cultural way regarding the Residential Schools System and its former students including those who have been affected by it (families and communities)216. The Commission of Canada is primarily focused on Indigenous children and its purview spans more than 150 years of systematically governmentally forced assimilation. It is also the first commission established as a part of judicially supervised negotiated agreement, rather than by legislation or executive order. The court plays an on-going role in the implementation and supervision216 of the commission. When established in 2009, the Commission had a five year mandate and seven main tasks: (1) to create an accurate and public historical record of the past regarding the policies and operations of the former residential schools; (2) complete a public report that will include recommendations to all parties of the Settlement Agreement concerning the Residential School System; (3) host seven national gatherings in regions across Canada; (4) support a

216 Truth and Reconciliation Commission of Canada. Backgrounder. Winnipeg, Manitoba.


70

Commemoration Initiative that will fund initiatives that pay tribute to the survivors; (5) support community events; (6) establish a national research centre that will be a permanent resource for all Canadians; (7) guide and inspire Aboriginal peoples and Canadians in a process of truth and healing on a path leading toward reconciliation and renewed relationship217. It is crucial to explain that the Schedule N227 especially set out what the Commission of Canada could not do within its mandate. Schedule N clearly stated, that the Commission of Canada must not hold any formal hearings, does not have subpoena powers and cannot publicly name the perpetrators. The wording of Schedule N, that the Commission “shall not hold formal hearings, nor act as a public inquiry, nor conduct a formal legal process” parties of the Settlement agreement makes it very clear for the Commission cannot duplicate criminal or civil court proceedings (Stanton, 2011). History Leading up to the Establishment of the Truth and Reconciliation Commission Canada The Residential Schools System began in Canada in 1840s and was active up until the 1990s, with the last Residential School closing in 1996. There were around 130 residential schools operating throughout the country. The Canadian government, in partnership with number of Christian churches, forcefully tried to assimilate indigenous children into the Canadian ‘mainstream culture’ with complete elimination of parental and community involvement in their up-bringing. More than 150.000 indigenous children (First nations, Inuit and Metis) went through residential schooling, where they were forbidden to speak their own language and to engage in their cultural and spiritual practices. While their parents were excluded from their childhood, and with harsh, almost military

discipline, the children were not able to develop parenting and social skills217. Today, around 80.000 of former students are believed to be still alive. Because the residential school system was active for more than a century, its effect spill over generations of indigenous communities. The legacies of disrupt education create dysfunctional social skills, which in turn result in many social problems, health issues and low educational success rate in indigenous communities217. In 1993, after a former school supervisor was sentenced to eleven years in prison, the Native Residential School Task Force was set to investigate allegations of criminal abuse. In the next seven years they have received more than 3000 complaints against 170 suspects with only five people charged. Bringing criminal proceeding was also difficult due to the large amount of perpetrators no longer being alive. The first cases brought to the court showed that the civil litigation process itself re-victimised witnesses and dehumanised people who filed claims. Civil litigation also made it hard for the victims to fully describe their experiences that were not directly connected to the abuse, but had a significant impact upon them. Thus individually based claims, the collective and inter-generational harm - such as loss of language and culture, could not be addressed in the civil litigation217. In 1996 Canadian Royal Commission on Aboriginal Peoples (RCAP) together with various other reports documented the emotional, physical and sexual abuse that many children experienced during their school years217. In 2001, the federal Office of Indian Residential Schools Resolution Canada was established to manage and resolve the

217 Truth and Reconciliation Commission of Canada. Truth and Reconciliation Commission of Canada: Interim Report. Winnipeg, Manitoba: Truth and Reconciliation Commission of Canada, 2012.


71

large number of abuse claims filed by former students against the federal government217. The civil lawsuits from 1990s acted as a base for several large class-action lawsuits that were resolved in 2007 with the implementation of the Indian Residential Schools Settlement Agreement218 (the Settlement Agreement), which includes the establishment of Truth and Reconciliation Commission of Canada with budget of 60 million US dollars and five year mandate217. It is important to note, who and which schools were included in the Settlement Agreement. As the Commission notes in its interim report217, several schools in Labrador were not included. Also, the students who attended the same schools by day but not lived in residences, hostel students219 in Northern Territories, students who attended boarding schools, where operation of residence and the care of the children was not responsibility of the government and students, students who attended non-residential schools, as directed by the federal government, but were also subjected to cultural denial, and hash emotional and physical treatment217 were all not included in reparation mechanisms of the Settlement Agreement. Establishing the Truth and Reconciliation Commission of Canada

218 The Settlement Agreement includes five different elements to address the legacy of Indian Residential Schools, namely: (1) A Common Experience Payment (CEP) for all eligible former students of Indian Residential Schools; (2) An Independent Assessment Process (IAP) for claims of sexual or serious physical abuse; (3) Measures to support healing; (4) Commemorative activities; and (5) The establishment of a Truth and Reconciliation Commission (TRC). (Government of Canada, 2010) 219 Hostel students were students, for whom community preprared housing as their parents were away making their traditional living. As some hostels are included and others not, there is no clear criteria, why this distinction. (Truth and Reconciliation Commission of Canada, 2012)

The Truth and Reconciliation Commission of Canada (TRC Canada) was established in June 2008 as a result of the Settlement Agreement. It faced several problems from its inception which lead to loss of time and momentum. While the first appointed, Justice Harry LaForme (chair of the Commission) resigned with claim that the commission independence has been compromised, in the following months also two other members (Claudette Dumont-Smith and Jane Brewin Morley) of commission board resigned. It was not until July 2009 that the new chair Justice Murray Sinclair, Chief Wildon Littlechild and Marie Wilson have taken the mandates. A ten member Indian Residential School Survivor Committee (made out of former students of residential schools) was appointed as an advisory body to the Commisioners217. Because the Commission was established as a federal government department it faced significant problems regarding the staffing and other establishing procedures, as it had to follow rigorous rules meant for large-scale governmental agencies with significantly larger budget. While the Residential Schools System operated throughout Canada, the majority of schools were located in the West and North. According to this geographical spread, the Commission put his head office in Winnipeg; a smaller office was opened in Ottawa, and satellite offices in Hobbema, Alberta and Yellowknife, Northwest Territories. To extend the Commission’s reach, and as also required by the Settlement Agreement, seven regional liaison workers have been hired to work in Quebec and Atlantic Canada, Ontario, Manitoba, Saskatchewan, Alberta, British Columbia, and the Yukon and Northwest Territories. Also, in recognition of the unique cultures of the Inuit, the Commission established an Inuit Sub-Commission, with a mission to gather statements in remote, isolated Inuit Communities and among Inuit people throughout Canada. Interestingly, as of July 1, 2011, the Commission employed


72

seventy-five people, including forty-eight Indigenous people217. The Mission of the Truth and Reconciliation Commission of Canada The most straightforward objective of truth commission is to establish an accurate record of a country’s past, clarify uncertain events, lift the voice of silenced people and expose the denial of contentious and painful period of history (Hayner 2001, 25). The mission of the Commission of Canada follows the basic concept of truth commissions - its objectives can be summarised in seven major missions. In order to provide some sort of dignity restoration with acknowledgment of experiences of about 80.000 living survivors of Residential School System, the TRC Canada’s task of statement gathering (1) was not to be underestimated. Hearings were held in the National Research Centre, as well as recorded on National and community events. Trained statement gatherers also added stories and resources. Gatherers were provided an option of professional therapist, health support worker or cultural support worker to accompany and assist them during discussions with victims. All experiences were shared on a voluntary base, and it was up to the victim to decide either to do it in a public sharing circles or private settings. By June 2011, the Commission collected 1157 individual statements, with additional 649 statements given at the Sharing Circles and public hearings217. The Settlement Agreement stated that the parties to the Agreement would provide the Commission with all relevant documents in their possession or control. A team of historical researchers has also been gathered in order to assist in collection of documents (2), which would lead to development of a fully functional and secure database. Despite that the Federal Government was aware that it would have to hand in all relevant documentation, unfortunately the amount

of relevant documentation handed to the commission was very limited. The Federal Government of Canada took a position that it has no obligation to identify and provide documents held by Library and Archives Canada as it also denied access to Settlement Agreement and Dispute (SADRE) database, which contains all the residential school research files of Aboriginal Affairs and Northern Development Canada. They also did not disclose the records that they hold and were provided by the churches in response to specific court cases. Despite that most of the churches were cooperative, individual church archivist sought to impose several limitations and conditions220 before transferring records to the commission217. In December 2009, the Commission held a meeting with Aboriginal and non-Aboriginal scholars and practitioners with research expertise in various areas of Commission’s work to work together on research and report preparation (3). Several documents, including brochures on history of residential schools, a short history of the system, slide shows, posters and regional maps identifying the scale of affected communities, have been issued. The final report of the Commission is scheduled for 2015217. The Commission is mandated to establish a National Research Centre (4), which would provide the information of Commissions work to the public. The University of Manitoba was chosen as a host of National Research Centre, where it will house thousands of video and audio records and statements of survivors and others affected by residential schools and their legacy221.

220 Such limitaitons included how the Commision should caption photographs, limitations on the Commissions use of photographs, distinctions between internal and external, and restrictive and unrestricted recors, and restrictins how the Commission can use records in different categories. 221 University of Manitoba, 2014. NRC for Truth and Reconciliation.


73

The Missing Children and Unmarked Graves project was established as part of commemoration task (5) of the Commission. The Missing Children project is supposed to research the Aboriginal children who never returned from the Residential schools217. The Settlement Agreement required the Commission to hold seven national events (6) within the first two years of the commission work, however national events were held throughout entire five-year mandate222. National Events presented a mechanism through which the truth and reconciliation process supposed to engage the Canadian public and provide education about the Residential school system223. Local communities were encouraged to organise community events (7) in order to respond to the needs of former students and their families. Recent Development of the Commission

On November 14, 2013 the Honourable Bednard Valcourt, Minister of Aboriginal Affairs and Northern Development issued a statement that the Government of Canada will work with the Truth and Reconciliation Commission, the parties to the Indian Residential Schools Settlement Agreement, as well as the Ontario Superior Court to provide the Commission with one-year extension to its operating period, until June 30, 2015224. This year (2014) following the given extension the

222 National Events were held in Winnipeg, Manitoba in June, 2010; in Inuvik, Northern Territories in June-July 2011; in Halifax, Nova Scotia in October 2011; in Saskatoon, Saskatchewan in June 2012: in Montreal, Quebec in April 2014; in Vancouver, British Columbia in September 2013 and in Edmonton, Alberta in March 2014 (Truth and Reconciliation Commission of Canada, 2014. National Events). 223 Truth and Reconciliation Commission of Canada (concept paper). 2011. “Northern National Event”. Inuvik, Northern Territories. 224 Government of Canada, 2013. Statement by the Honourable Bernard Valcourt on the Mandate of the Truth and Reconciliation Commission.

Commission entered the final stage of producing its final report, which is going to be based on more than 6500 statements gathered in more than 300 communities around Canada225. Canadian uniqueness Looking at the working definitions in the beginning of this paper, we can argue that the Truth and Reconciliation Commission of Canada does fit in the general criteria of truth commissions. It is an independent, government founded body, with limited mandate and clear focus on the atrocities that have been performed in the past. It also follows criteria that it is established in Canada with special focus on indigenous people’s settlement areas. However Canadian Commission differs from other truth commissions in several ways: It is the first truth commission mandated by a Western, developed government. What makes it an interesting example is the fact, that the Commission of Canada was established following the court agreement (the Settlement Agreement). It is also not established in the process of a transition from non-democratic to democratic regimes or used as a transitional tool. Some might categorise the Commission of Canada as “historical truth commission”226, as it is used as a tool to address historical grievances. The lack of judicial power to employ punitive measures seems to be the most obvious difference from other truth commissions. Despite that the organisations, namely churches who acted on behalf of the government and the government apologised to the victims, the names of individuals involved in the

225 International Center for Transitional Justice. 2014. “Canada TRC Enters a New Stage: Preparing the Final Report.” 226 Fehr, Nicole Enns. 2010. “Locating Canada’s Truth and Reconciliation Commission in Global Trends.”


74

process could not be publicly known and shamed in a process of truth commission227. So instead of having to discuss the amnesty criteria, the Commission of Canada faced a problem of perpetrators not showing up for hearing, since there is no official prosecution, based on the work of the Commission threatening them. In the case of the Commission of Canada, the government and the churches have acknowledged that abuses occurred and that the Indian Residential Schools system was harmful. Therefore the evidence gathering process to the Commission was not serving a purpose of convincing the Commissioners that the abuses occurred. The commission was also established separately from the reparations process and other elements of the Settlement Agreement (Stanton, 2011). International Influence The work of Commission of Canada has been carefully observed by the international community as a potential model for addressing historical injustices affecting Indigenous peoples around the world228. It will be very interesting to see developments following the publishing of the official final report and the actions by other developed countries such as the United States of America, Australia and New Zealand. The Testimonials of Victims and Others Affected by the Residential School System in Canada As the final report has not yet been published229 the Interim Report217 reports some summaries of the testimonials gathered by now. Children were forcefully removed from their parents and communities, and upon 227 “Schedule N: Mandate for the Truth and Reconciliation Commission.” 2007. In Indian Residential Schools Settlement Agreement. 228 Regan, P., 2010. Unsettling the Settler Within: Indian residental schools, truth telling and reconciliation in Canada, Vancouver: UBC Press. 229 The paper was written in October 2014.

arrival to residential schools were separated from their siblings, following a gender separation. During their stay in schools they were not allowed to interact or communicate with the opposite sex. Their traditional farewell gifts and memoirs from their families were confiscated and usually thrown away. Boys’ long hair was cut and they were deloused with lye and chemicals regardless of whether they had lice. Their identities have been systematically destroyed from the beginning with a change of their names, sometimes replacing it with just a number. Students were placed in loveless institutions with military discipline. The food provided was in limited supply, often spoiled and rotten. The curriculum portrayed their indigenous ancestors as savages responsible for deaths of priests and their spiritual practices belittled and ridiculed. Some students even testify that instead of schooling their primary occupation in schools was manual labour to support the school. The discipline measures often crossed the line of abuse where boys were beaten like adult men, and girls being severely whipped. Testimonials show that even children were forced to beat other children. Sexual abuse was present and executed from staff and other older students. Upon return from the residential schools, students did not connect with their parents anymore and were often ashamed of their traditions and customs. Students who did not return home on a regular basis eventually forgot the native language and were therefore unable to communicate with their parents, as they often did not speak the English language. Students of residential schools were stuck in-between their culture, which they were taught is primitive and shameful, and the mainstream Canadian culture that did not accept them because of their heritage. In this identity confusion, many of them submitted to alcohol and drugs and were unable to establish social connection with others which lead to very high level of domestic violence and abuse within the indigenous communities217.


75

In its Interim Report217 the Commission has already identified some clear issues concerning the survivors of residential schools that affect them after the closing of Residential School System. Affected students spoke about the difficulties in claiming compensation under the Settlement Agreement; the lack of support for the healing process, especially in the remote areas where any kind of health services is almost non-existent; the lack of support in regaining and reintroducing traditional parenting practices. One demand especially stood out during the testimonials. It was the introduction of the truth about the residential schools in all children’s curriculum as the reconciliation is expected to come through the education of future generations217. The Interim Recommendations by the Commission As of October 2014 the final report has not yet been published. However the testimonials and issues presented by the publishing of Interim Report217 have been so powerful and clear that the Commission agreed to publish interim recommendations. The commission recommended that each provincial and territorial government revise the curriculum materials and include the themes concerning residential schools; develop age appropriate materials to use in public schools and to develop public-education campaign to inform the general public about the history and impact of residential schools. As regarding to language and traditional knowledge the Commission recommended that the Government of Canada and churches establish the on-going cultural revival fund, to fund projects promoting the traditional heritage of the Aboriginal peoples of Canada. As mentioned before, due to strict communication regime in school and disconnection of parent-child bonds, the development of social skills were limited in many cases. The commission recommended that all levels of government develop culturally appropriate early childhood and parenting

programs to assist parents and families affected by residential schools. Regarding the extension and enhancement of health support services the Commission made recommendations on a structural and long-term support to all communities affected by residential schools, especially to the remote communities where by now no or in a limited amount, permanent and structural health counselling have been provided. The Commission also recommended that the parties to the Settlement Agreement identify and implement the earliest possible means to address legitimate concerns of former students who were unfairly left out of the Settlement Agreement217. Instead of conclusion – A Thought about Success or Failure of Truth and Reconciliation Commissions and the Canadian Commission It is difficult to define the criteria to evaluate the success or failure of commissions due to several reasons. As Ivanišević (2009) identifies two problems, namely difficulties establishing direct link between the changes happening after commission’s work and commission itself; and secondly it is very hard to define progress caused by the work of commissions. To explain a bit further, even if some of the changes (reparations, judicial procedures) are measurable, they alone cannot show the success or failure of the commission. I would like to add to these two boundaries two also very important things we have to keep in mind when trying to evaluate commission’s work. As we know every commission is a unique case, modelled after a specific situation. We therefore cannot expect a set of pre-defined measurements or criteria that we can use for measuring the success. Before setting measurements, we have to take into the consideration the goals of the commission, the situation and environment where it was set, and, to my opinion, the most important aspect of commission’s work, the time factor. With the time factor I have in mind that it would be utopian to expect some


76

immediate changes, especially in a sense of reconciliation. However, taking all the above-mentioned things into consideration, we can agree by saying that truth commissions had a positive effect in the environments where they were established, and even beyond those borders. Scholars agree that public hearings are a huge step in re-establishing the dignity of the victims. They also help opening a floor to public debates and dialogues, which were previously mostly ignored or even forbidden. Perhaps the most significant effect is establishing of the (historical) facts that are published in a report. This report also tends to include the recommendations, which can serve as a basis for success evaluation criteria. The most problematic evaluation of truth commission is definitely the evaluation of reconciliation, where setting the criteria would be almost impossible. Some commissions even stopped using reconciliation as their goal or even abandoned the use of the term in their name. We could write a separate paper or even a book on the topic of reconciliation, so I will not go more into the details of the term at this point. So looking at these absences of clear definitions and sets of criteria, we can conclude that the successes and failures of truth and reconciliation commissions cannot be evaluated in immediate time after the publishing of the report, and even after publishing, time has to pass in order to see effects of the commission. Canada is often portrayed as an ideal model of respectful country with high standards of human rights. It is therefore crucial that the Commission focuses its work and report on the recommendations for the future education and promotion of the truth behind the human rights violations that were committed upon the indigenous peoples. It is almost impossible to judge the success or failure of the Commissions’ work at the moment

due to the above-mentioned reasons and the report yet to be published in 2015. As the commission surely did not have an easy job of covering the atrocities that span over a century with most of the victims passed on, I do however hope that the Commission managed to gather the huge extent of the systematic destruction of indigenous culture. I do agree with Fehr (2010), that Canadian Commission is a significant step in the development of truth commission throughout the world, since it is used beyond just transitional justice usage. As a unique case of the truth commission being established by a developed state’s government, it is crucial for the Commission to set the high standards of human rights protection and gathering the testimonials for other countries. For we can only wish, that the same voice, would be given also to the Native Americans in the United States of America, the Aboriginals in Australia, the Maori people of New Zealand, the Sami people of Scandinavia and all other indigenous peoples whose basic human rights have been violated in the name of superiority of others.

[77]

BIBILIOGRAPHY

Fehr, Nicole Enns. Locating Canada’s Truth and Reconciliation Commission in Global Trends, 2010. Freeman, Mark. “ Komisije za istinu – činjenice i mitovi.” Beograd: Fond za humanitarno pravo - dokumentovanje i pamčenje, 2007. Government of Canada. “Settlement Agreement,” 2010 Government of Canada. “Statement by the Honourable Bernard Valcourt on the Mandate of the Truth and Reconciliation Commission,” 2013. Government of Canada. “Statement of Apology,” 2008. Hayner, Priscilla B. Unspeakable Truths: Confronting State Terror and Antrocity. New York: Routledge, 2001. International Centre for Transitional Justice. “Canada TRC Enters a New Stage: Preparing the Final Report,” 2014. Ivanišević, Bogdan. “ Komparativna studija o efektima komisija za istinu.” Beograd: Fond za humanitarno pravo – dokumentovanje i pamčenje, 2009. Lerche, Charles O. III. “Truth Commissions and National Reconciliation: Some Reflections on Theory and Practice.” A Journal of The Network of Peace and Conflict Studies 7, no. 1 (2000): 1 – 20. Regan, Paulette. Unsettling the Settler Within: Indian Residential Schools, Truth Telling and Reconciliation in Canada. Vancouver: UBC Press, 2010. Schedule N: Mandate for the Truth and Reconciliation Commission. In Indian Residential Schools Settlement Agreement, 2007.

Stanton, Kim. “Canada’s Truth and Reconciliation Commission: Settling the Past?” The International Indigenous Policy Journal 2, no. 3 (2011). Truth and Reconciliation Commission of Canada (concept paper). Northern National Event. Inuvik, Northern Territories, 2011. Truth and Reconciliation Commission of Canada. “Backgrounder.” Winnipeg, Manitoba. Truth and Reconciliation Commission of Canada. Truth and Reconciliation Commission of Canada: Interim Report. Winnipeg, Manitoba: Truth and Reconciliation Commission of Canada, 2012. University of Manitoba. “NRC for Truth and Reconciliation,” 2014. http://umanitoba.ca/admin/indigenous_connect/nrc.html


78


79

THE YUGOSLAV SUCCESSOR STATES ON THEIR WAY TO EUROPEAN

INTEGRATION: Lessons from Previous Enlargements and Ongoing conflicts

by Kathleen Hassemann*

ABSTRACTWith the 2004, 2007 and 2013 enlargements, the European Union has taken a far reaching effort in (re-)uniting the post-Cold War continent. Not only did many countries of East, Central and Eastern Europe become members, but with Slovenia and Croatia two successor states of former Yugoslavia have gained full access to the EU. Another three former Yugoslav States are on the list of candidates, namely Montenegro, the Former Yugoslav Republic of Macedonia and Serbia. Bosnia and Herzegovina and Kosovo fall under the category of potential candidate countries. However, with ongoing ethnic and political tensions in the Western Balkan region, the path to EU accession for the six remaining countries has to be laid down carefully. This paper will discuss the lessons learned from previous enlargements with regards to the subsequent consequences for the negotiations between (potential) candidates of the Western Balkans and members.

* Kathleen Hassemann is a Master student of European Studies at the Global and European Studies Institute at University of Leipzig, Germany. She is currently concluding her degree with her thesis on EU's Common Security and Defence Policy in the Western Balkans with a special focus on Bosnia and Herzegovina. Before she moved to Leipzig, she obtained a Bachelor degree in German Studies, Business Administration and Cultural Studies from the University of Mannheim. During her studies, Kathleen spent also time at the University of Queensland in Brisbane, Australia as well as Charles University in Prague, Czech Republic. E-Mail: [email protected].



80

Introduction With the 2004, 2007 and 2013 enlargements, the EU has taken a sizeable effort in (re-)uniting the post-Cold War continent. Not only did many countries of East Central and Eastern Europe become members of the European integration project, but with Slovenia in 2004 and Croatia in 2013, two successor states of the former Socialist Federal Republic of Yugoslavia (SFRY) have gained full membership access to the EU. Another three former Yugoslav States are on the list of candidates, namely Montenegro, the Former Yugoslav Republic of Macedonia (FYROM) and Serbia. Lastly, Bosnia and Herzegovina and Kosovo230 fall under the category of potential candidate countries. However, with the ongoing ethnic and political tensions in the Western Balkan (WB) region231, the path to EU accession for these five remaining countries has to be laid down carefully by the twenty-eight member states. This paper will discuss the experiences the EU has made with previous enlargements with regards to the subsequent consequences for the negotiations with WB countries. Important questions for the assessment of this issue will be, for example: What are the lessons-learned from the accession of so far two of the Yugoslav successor states for the other five, still on their path to accession? Which problems and conflicts could arise or be deepened by letting those countries enter the EU at different points in time? What are the implications of cases like the admission of the Republic of Cyprus that is still engaged in a territorial conflict on the Cyprian island with Turkey, another EU candidate country?

230 This designation is without prejudice to positions on status, and is in line with UNSCR 1244 and the ICJ Opinion on the Kosovo Declaration of Independence. 231 In this paper, the term “Western Balkans” is used for the countries that have evolved on the territory of the former SFRY. Albania, although part of the EU definition of the term, does not constitute a part of it here.

In order to illustrate (potential) conflict situations regarding the granting of EU membership to the respective countries at different paces, three country-to-country relationships will be examined exemplary: the border dispute between Slovenia and Croatia, the quarrel over the name of Macedonia with Greece and the recognition of Kosovo. Judging by these still unresolved inter-state and inter-ethnic issues that are paradigmatic for the complex conflict potential in the region, the EU enlargement process even runs the risk of deepening existing tensions further yet. Western Balkan Countries on their Way to EU Accession In order to do the WB region justice as a rather exceptional set of countries aiming at joining the EU, the Union has established a three-stage policy that eventually leads to full membership which is different from previous enlargement scenarios. The so-called Stabilisation and Association Process (SAP) was introduced in 2000 because the respective former Yugoslav Republics did not only have to go through a transitional phase in terms of abolishing planned economy as well as state socialism and adopting market economy plus democratic structures; but also, the region simultaneously saw three heavy civil wars on the territory of former Yugoslavia throughout the 1990s, mostly between different ethnic groups. The SAP’s aim of stabilising a potential candidate country economically and democratically is achieved via bilateral contracts called Stabilisation and Association Agreements (SAA) which marks the first formal stage of accession for WB countries giving them the prospect of becoming a member state in the future. After fulfilling the goals set out in the contract, the respective country can be granted candidate status and actual accession negotiations with the EU can be commenced. At the end of that second stage lies full membership in the EU which is the final and third stage of the lengthy and straining accession process. According to their performance in complying with SAP all seven Yugoslav successor states are currently at different


81

stages of the process, which is essentially dependent on the domestic political and civil will, the maturity level of statehood232 as well as the countries’ economic strength. The first WB country to join the EU was Slovenia as part of the ‘big bang’ enlargement in 2004 when ten mostly Central and Eastern European (CEE) countries became member states.233 Croatia has managed to become a member of the Union on 1 July 2013. To date, these two countries remain the only former Yugoslav countries to gain full membership. Three other WB countries, namely Montenegro, Serbia and FYROM were granted the status of ‘candidates’, of which Serbia and Montenegro have actually started accession negotiations. Lastly, Bosnia and Herzegovina as well as Kosovo remain ‘potential candidates’ and “were promised the prospect of joining when they are ready”234. However, even though Kosovo was promised this prospect of membership and has been included in the SAP from the beginning, no contractual relationships between the country and the EU have yet been entered.235 In the following chapters, three exemplary conflict situations will be examined more closely in order to illustrate the problems the EU faces as a result of “differentiated integration”236 in a region still ridden by

232 cf. Tanja A. Börzel, ‘When Europeanization Hits Limited Statehood: The Western Balkans as a Test Case for the Transformative Power of Europe’, KFG Working Paper Series 30 (2011), 5. 233 In 2007, it even became the first country among the new member states to adopt the Euro as its national currency. 234 European Commission, Enlargement, http://ec.europa.eu/enlargement/countries/check-current-status/index_en.htm (accessed: 22.09.2014). 235 cf. Adnan Kadribašić, Rule of Law Reforms within Kosovo’s European Integration Process: Progress and Remaining Challenges, In: Marko Kmezić (Ed.), Europeanization by Rule of Law Implementation in the Western Balkans (Skopje: Institute for Democracy SOCIETAS CIVILIS Skopje, 2014), 91-134, here 109. 236 Daniela Blaga and Mircea Brie, ‘Differentiated Integration – From Theory to Practice. Determiners in the Integration Process of the Western Balkans: Ethnicity’, Annals of the University of Oradea -

the legacies of its violent past, ongoing inter- and intra-state disputes as well as inter-ethnic confrontations. The Border Dispute between Slovenia and Croatia Slovenia and Croatia both unilaterally declared their independence from SFRY on 25 June 1991. However, while in Croatia a bloody civil war raged on until 1995, the secession battles in Slovenia lasted only ten days. This left Slovenia, which was and still is to a large extent an ethnically homogeneous country, in a much lesser economically damaged and socially unhinged state especially when compared to Croatia, Serbia and Bosnia and Herzegovina where the war was fuelled along ethnic conflict lines for years to come. Therefore, hopes for a joint approach towards the European Community, as it was predominantly the case in CEE countries, were dashed and Slovenia began its accession process together with those CEE countries and not with its fellow former Yugoslav neighbours. Blaga and Brie argue that Slovenia’s path to EU accession was perceived more favourably by member states not only because of its ability to comply with the Copenhagen criteria but also due to “the general belief that Slovenia is a central European state and not a Balkan one”237. It finally joined the EU on 1 May 2004 in the course of the so-called ‘big bang’ Eastern enlargement as the first of the states that emerged from the former Yugoslav federation. Not until more than two years later, on 12 June 2006, were the accession negotiations formerly opened with Croatia. The subliminal conflict potential of differentiated integration came to light soon after, when Slovenia began to hinder Croatia’s way of becoming EU member over a border dispute that had begun more than ten years earlier. The most contentious issues of the quarrel about

International Relations and European Studies (2013), Suppl. 2013, 173-185, here 175. 237 ibid, 180.

http://ec.europa.eu/enlargement/countries/check-current-status/index_en.htm



82

both land and maritime borders seem to be the claim of the Bay of Piran in the northern Adriatic Sea and the closely related High Sea access for Slovenia. As early as 2004, Devetak identified the problematic constellation of a member state having an open dispute with a candidate country as an impediment to EU enlargement policy and its policy towards the WB states in general.238 This is due to the fact that candidate countries can only receive full membership status after a unanimous decision has been reached by the European Council. Indeed, Slovenia did not shy away from using its veto power in order to block Croatia’s accession process in 2008 and 2009 hampering EU’s leverage during negotiations.239 However, according to Romac, Slovenia’s actions were not only motivated by the border dispute with its neighbour country, but also by economic advantages it enjoyed as the ‘gateway to the WB’. This role would fall most likely on Croatia after its accession.240 Only upon the pressure of EU member states and the mediation of the European Commission (EC) the two countries consented to decouple the matter of the border dispute from Croatia’s accession negotiations via an Arbitration Agreement in late 2009.241 Both governments referred the case to an Arbitral Tribunal at the Permanent Court of Arbitration in The

238 cf. Silvio Devetak, ‘Slowenien und Kroatien: Eine problematische Nachbarschaft (mit komödiantischen Elementen)’, OST-WEST Europäische Perspektiven, vol. 5, issue 4 (2004), 288-295, online accessible here: http://www.owep.de/artikel/428/slowenien-und-kroatien-eine-problematische-nachbarschaft-mit-komoediantischen-elementen (accessed: 19.09.2014). 239 cf. Gergana Noutcheva and Senem Aydin-Düzgit, ‘Lost in Europeanisation: The Western Balkans and Turkey’, West European Politics, vol. 35, issue 1 (2012), 59-78, here 64. 240 cf. Nenad Kreizer, ‘Slowenien bremst Kroatiens EU-Beitritt’, Deutsche Welle, 4 February 2013, http://www.dw.de/slowenien-bremst-kroatiens-eu-beitritt/a-16570616 (accessed 19.09.2014). 241 2009 Arbitration Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia, entered into force 29 November 2010, online accessible here: http://www.esiweb.org/pdf/croatia_slovenia_arbitration-agreement_2009.pdf (accessed 23.09.2014).

Hague in order to receive a binding and undisputable settlement on the matter. The Agreement specifically calls for a mutually unimpeded progress of accession negotiations and obliges the “Republic of Slovenia [to] lift its reservations as regards opening and closing of negotiation chapters where the obstacle is related to the dispute”242. Subsequently, negotiations were resumed and could be concluded on 30 June 2011. After another conflict about defunct Slovenian lender Ljubljanska Banka (LB) briefly threatened to halt Croatia’s accession preparations once again in 2013, the country was finally allowed to join the Union with the consent of all twenty-seven member states the same year.243 At least two lessons learned derive from the Slovenian-Croatian case for EU enlargement policy. Firstly, it is a very delicate issue to grant membership to a country that has still unresolved border disputes with other non-member states, even more so with countries that are likewise on their way to EU integration and already fulfil the formal Copenhagen criteria for accession. Another current example is the unresolved conflict between Cyprus and Turkey which is heavily influencing Turkish accession negotiations. Cyprus has been a member of the EU since 2004 whereas Turkey still holds the status ‘candidate country’, which it was awarded in 1999. Particularly the veto power each member state ultimately holds in the European Council over the accession decision can prolong and complicate the negotiation and accession phase of a candidate country. The second lesson the EU has learned is to invest in its conflict resolution ability. By pressuring Slovenia and Croatia to find

242 Article 9, ibid. 243 Zoran Radosavljevic, ‘Croatia reaches deal with Slovenia to unblock EU entry’, Reuters, 7 March 2013, http://www.reuters.com/article/2013/03/07/us-croatia-slovenia-eu-idUSBRE9260M620130307 (accessed 23.09.2014).

http://www.owep.de/artikel/428/slowenien-und-kroatien-eine-problematische-nachbarschaft-mit-komoediantischen-elementen



http://www.dw.de/slowenien-bremst-kroatiens-eu-beitritt/a-16570616


http://www.esiweb.org/pdf/croatia_slovenia_arbitration-agreement_2009.pdf


http://www.reuters.com/article/2013/03/07/us-croatia-slovenia-eu-idUSBRE9260M620130307



83

an agreeable solution, it eventually succeeded in separating the accession negotiations on one side from the longstanding dispute on the other side. The result was that the negotiations could carry on unimpededly while the border issue was simultaneously being settled through a process independent from the EU.244 While this was certainly a success for EU’s inter-state mediation and expedient conflict resolution capacity, in this case there was no ethnic dimension to the dispute. Matters get far more sensitive when an inter-ethnic element exacerbates the situation (as it is also the case between Turkey and Cyprus). The Name Dispute between Greece and Macedonia The dispute about the name of the Republic of Macedonia has been going on for over twenty-three years with no end in sight. Officially it started when Macedonia declared its independency from SFRY on 17 September 1991 and Greece in turn refused to recognize it, even imposing an economic blockade on the new state in 1994. After the EC exerted pressure on Greece by bringing the matter before the European Court of Justice, because it did not see a valid justification of the embargo under Article 224 of the EEC Treaty245, both countries decided to come to a provisional agreement known as the Interim Accord. While it did little in terms of resolving the name dispute, it obliged Greece firstly to recognize Macedonia as an independent and sovereign state and secondly not to hinder Macedonia’s accession to international, regional and multilateral organisations246, which it had

244 The final ruling is expected to be presented in early 2015. 245 cf. Peter Kittelmann, Report on the Commission proposal for a Council Regulation (EEC) amending Regulation (EEC) No 3906/89 with a view to extending economic assistance to the former Yugoslav Republic of Macedonia, (COM(93) 0402 final - C4-0507/95 - 95/0814(CNS))) (1996), at B.7. 246 Articles 1(1) and 11 of the Interim Accord (with related letters and translations of the Interim Accord in the Languages of the Contracting Parties), Greece – the former Yugoslav Republic of Macedonia,

previously done in the case of the former’s application to the UN. With regards to the name issue it merely stated that Greece would recognize Macedonia only with the prefix ‘the former Yugoslav Republic of’ (thereby leading to the internationally used acronym FYROM) and that both parties would continue negotiations under the UN auspices.247 In 1996, Kittelmann considered this provisional construct, rather naively, as a success and was even tempted to claim that “the bilateral problems between Greece and the new republic have been more or less cleared up”248. However, almost twenty years later, a solution has not been found leaving the Interim Accord still effective today. So, what is the reason that this long-running dispute could not be solved thus far even with EU/UN pressure and mediation? One of the main problematic elements of this conflict seems to be its ethnic dimension which was, for example, absent in the case of Slovenia and Croatia. Therefore, the roots for the Greek-Macedonian name dispute which erupted on the surface only in 1991, after the Macedonian declaration of independence can be traced back to the Greek civil war in the late 1940s. Skordos explains how the ideological tensions between communists and nationalists became ethnisiced as members of the Slavic minority in the northern Greek region of Macedonia joined the communist army. Simultaneously, in the newly founded neighbour country SFRY, Tito promoted Pan Slav politics with the goal of obtaining the Macedonian territories of Greece for Yugoslavia. After their defeat by the Greek nationalists, ten thousands of Hellenic and Slavic communists fled to the North and sought refuge within the Eastern bloc states and SFRY. In the following decades, the Greek government engaged in heavy anti-communist entered into force 13 October 1995, 1891 U.N.T.S. I-32193; 34 I.L.M. 1461. 247 Articles 1(1) and 5(1) of the Interim Accord. 248 Kittelmann, ‘Report on the Commission proposal for a Council Regulation (EEC)’, at B.10.


84

propaganda, which translated into anti-Slavic propaganda, especially in its Macedonian region. Memories of ancient Macedonian history, and in particular of Alexander the Great, strengthened the national Greek identity.249 Frčkoski provocatively calls these efforts “almost a schizophrenic obsession with construction of ethnically homogenous Greek society having a single and unique culture”250. In light of that, Greece’s argumentation concerning the name dispute becomes a bit more comprehensible, which is not only about the likelihood of confusion of the Republic of Macedonia and the Greek region of Macedonia or even the usage of symbols.251 Indeed, Greece maintains that FYROM still pursues irredentist motifs ultimately aiming to claim Greek Macedonian territories including the regional capital Thessaloniki. In turn, Macedonia justifies its name with reference to their language and identity, but clearly states that it has no claim to any of its neighbouring countries’ territories, which it has subsequently even incorporated in its constitution.252 Repeated requests by the EU as well as the international community to resolve the issue have borne no fruits so far. Quite the contrary, in 2008, Greece blocked FYROM’s application to NATO which caused the latter to bring the case before the International Court of Justice (ICJ). In 2009, the EC found that FYROM was

249 cf. Adamantios Skordos, ‘Makedonischer Namensstreit und griechischer Bürgerkrieg. Ein kulturhistorischer Erklärungsversuch der griechischen Makedonien-Haltung 1991’, Südosteuropa Mitteilungen, issue 4 (2011), 36-55, here 42ff. 250 Ljubomir D. Frčkoski., ‘The character of the name dispute between Macedonia and Greece’ (Skopje: Progres Institute for Social Democracy, Skopje, 2009), 10. 251 For example, according to Article 7(2) of the Interim Accord Macedonia had to cease to use the symbol of the ancient Macedonian Vergina Sun on their national flag. 252 cf. Anja Czymmeck, ‘Internationaler Gerichtshof stärkt Position Mazedoniens’, Länderberichte (Skopje: Konrad-Adenauer-Stiftung Auslandsbüro Mazedonien, 2011), 2.

finally ready to open accession negotiations and recommended to do so to the European Council where the decision was once again blocked by Greece. Even though the ICJ ruled in 2011 that Greece clearly breached its obligations under the Interim Accord by objecting to FYROM’s NATO candidacy253, neither its NATO accession nor EU negotiations have made any significant advances since. In the case of EU integration, the Macedonian willingness to undergo further reforms has rather faltered since its previous efforts have been left unrewarded due to the ongoing Greek objection even though the EC has renewed its recommendation for opening negotiations four times. In order “to inject new dynamism in the EU accession reform process”254, the EC launched a High Level Accession Dialogue (HLAD) with Skopje. According to Stratulat, the process is “an ingenious effort to mitigate Greece’s bloc” and “could also help to create the context in which to possibly resolve the name issue”255. In addition to that, the European Parliament has adopted a resolution firmly calling upon the Council to start accession negotiations with FYROM so as to not jeopardise the credibility of the EU enlargement process as well as regional stability. Moreover, it questions the current (UN) framework in which the name dispute has been tried to resolve for nearly twenty years, and sees more leverage with the EU and such tools as the Presidency of the EU and enhanced neighbourly relations.256

253 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Judgment of 5 December 2011, I.C.J. Reports 2011, 644, at 693, para. 170. 254 Republic of Macedonia, Ministry of Foreign Affairs, High Level Accession Dialogue Final Conclusions, http://mfa.gov.mk/?q=node/886&language=en-gb (accessed 24.09.2014). 255 Corina Stratulat, ‘EU enlargement to the Balkans: the show must go on’, Commentary (Brussels: European Policy Centre, 2012), 1. 256 European Parliament resolution of 6 February 2014 on the 2013 progress report on the former Yugoslav Republic of Macedonia (2013/2883(RSP)), P7_TA-PROV(2014)0103, 112, at 113, para. 1, 2 and 5.

http://mfa.gov.mk/?q=node/886&language=en-gb


85

With the analysis of the Greek-Macedonian name dispute it becomes clear that settlement of inter-state conflicts becomes much more difficult once an ethnic dimension is added to it. In this case, the quarrel is not only fought over a name, but the recognition of an individual Macedonian people which, at least according to Greek concerns, could translate into territorial claims. Furthermore, the example shows quite distinctly the limits of EU conflict resolution ability when the prospect of membership loses its credibility for the accession candidate on one hand and practicable coercion measures for the member state are lacking on the other. Through new instruments such as HLAD EU aims at creating a positive environment in which the dispute could be settled. However, this year’s Greek Presidency did not address the matter in any significant way, which raises doubts that previous mediation attempts had a lasting impact. The following example will show that the EU is determined to prevent such a stalemate in its enlargement policy due to bilateral conflicts in the future. The Recognition Dispute between Serbia and Kosovo The Serbia-Kosovo case is one of the most challenging situations for EU policies towards WB. The war in Kosovo in 1998 and 1999 was the third and last civil war on the territory of former SFRY which even turned into an international conflict after NATO decided to intervene with a military operation. In the aftermath of this violent decade, EU decided to change its policy towards WB. Previously, focus was on the provision of humanitarian assistance and fostering regional cooperation while after 1999 EU increased its efforts to transform the region by active integration.257 However, while the new SAP policy which was launched in 2000

257 Fatma Sel Turhan, ‘The Europeanization of the Western Balkans: Is It Just A Dream?’, SETA Policy Brief, No. 54 (Ankara: SETA Foundation for Political, Economic and Social Research, 2011), 3.

was applicable to all WB countries and gave them the prospect of joining EU as full members in the future, the process was based on bilateral agreements between EU and each WB nation. The initial result was not a collective socialisation of all seven Yugoslav successor states but rather a differentiated integration approach that led to enhanced relationships with EU and weakened regional cooperation causing the EU to set regional cooperation as a key prerequisite for membership.258 The Kosovar unilateral declaration of independence from Serbia in 2008 has made this condition for accession one of the main obstacles for both countries’ paths to EU integration since Serbia does not recognize Kosovo as a sovereign state. On the part of EU, the development has not only affected its engagement in the region but divides the Union internally as well since only twenty-three member states have recognized the new country thus far. Therefore, EU’s sphere of influence is limited not just because both countries are not yet member states. Rather, due to the fact that not all twenty-eight members currently recognize a sovereign Kosovar state, EU is forced to act status neutral. Nevertheless, determined to avoid a stalemate situation once either one of the two countries joins as member state, the EU has always emphasised the importance of good neighbourly relations in order for both to move on with their paths to accession. This is obviously a crucial factor for the stability of the WB region as a whole but it is also a prerequisite for future smooth functioning of EU institutional structures where both countries will need to work closely together. In order to enhance relationships between Serbia and Kosovo as well as their EU-compatibility, the EU has been acting as an important mediator facilitating both the Belgrade-Pristina Dialogue as well as the Brussels Agreement (2013), marking a notable

258 cf. ibid., 6ff.


86

milestone since the violent conflict had ended. As a reward for this achievement, accession negotiations with Serbia and SAA negotiations with Kosovo officially commenced in January and respectively, July this year.259 When it comes to regional and cross-border cooperation, however, it is very important to notice that in the case of WB countries state borders do not necessarily represent ethnic conflict lines.260 In the current case, it becomes most obvious in the northern part of Kosovo where Serbs form the ethnic majority. A societal division along ethnic lines has become visible by the development of parallel state structures that even extend to the judicial sector.261 Needless to say that the SAP is an ill-equipped set of tools to address such a situation in a potential candidate country since this is first and foremost an inter-ethnic rather than an intra-state conflict. Luteijn and Mathias point out that fostering regional cooperation on the bilateral state level between Serbia and Kosovo is not enough to appease the situation, especially in the northern Kosovar municipalities, because ethnic groups instead of state actors there are the important protagonists.262 Therefore, in order to function as an effective peacebuilding instrument EU conflict resolution has to address the intra-state ethnic, social and religious conflict lines as well as high-level representatives. Lutein and Mathias thus call for a “conflict-sensitive, low-level and people-owned EU integration approach”263 that prevents government institutions and politicians from exploiting and mobilizing

259 European Union External Action Service, Serbia and Kosovo reach landmark deal, http://eeas.europa.eu/top_stories/2013/190413__eu-facilitated_dialogue_en.htm (accessed 25.09.2014). 260 cf. Geert Luteijn and Katharina Mathias, ‘Disembedding conflicting identities in the Western Balkans. Conflict Sensitivity in the EU Integration Tools’, Analytical Journal, vol. 4, issue 2 (2011), 30-44, here 35. 261 cf. Kadribašić, ‘Rule of Law Reforms’, 93. 262 cf. Luteijn and Mathias, ‘Disembedding conflict identities’, 36. 263 ibid., 40.

along said conflict lines. For example, citizens at the grass-roots level should be included in the design of state structures since state-building and consolidation are among EU’s main concerns in WB countries. Furthermore, financial assistance should be allocated expediently for inter-ethnic rather than necessarily cross-border programs.264 Conclusion This article set out to identify important lessons-learned from previous EU enlargements and how they are applied regarding accession negotiations with WB countries. The most important one seems to stem from the stalemates caused by accepting new member states that are still involved in bilateral disputes with other candidate or potential candidate states as seen in the cases of Slovenia and Croatia. While in cases where the conflict is not predominantly based on an ethnic dimension, EU resolution capacity as part of enlargement policy was found to work sufficiently well. However, as soon as the conflict involves questions of ethnicity (Greece-Macedonia) or is even controlled by ethnic groups as main actors (Serbia-Kosovo), EU conflict resolution with the help of its current set of integration instruments reaches its limits. Nevertheless, EU remains committed to the goal of eventually uniting WB countries under its common roof. For that purpose, it has been functioning as a relentless mediator between disputing states, complementing its enlargement tools by instruments like HLAD. Still, effective conflict-sensitive measures that aim at the grass-roots level are missing from its ‘integration toolbox’. Not only inter-state but also inter-ethnic and -religious mediation is necessary in order to have a lasting effect on peacebuilding and reconciliation. With Serbia among the countries next in line to join the EU and Kosovo on its (still rather long) way to candidate status, it remains to be seen how sustainable the current high-level achievements really are in the long run.

264 cf. ibid., 41.

http://eeas.europa.eu/top_stories/2013/190413__eu-facilitated_dialogue_en.htm



87

BIBLIOGRAPHY Single-author Börzel, Tanja A., ‘When Europeanization Hits Limited Statehood: The Western Balkans as

a Test Case for the Transformative Power of Europe’, KFG Working Paper Series 30 (Berlin: Freie Universität Berlin, 2011). Czymmeck, Anja, ‘Internationaler Gerichtshof stärkt Position Mazedoniens’, Länderberichte (Skopje: Konrad-Adenauer-Stiftung Auslandsbüro Mazedonien, 2011).

Frčkoski, Ljubomir D., ‘The character of the name dispute between Macedonia and Greece’ (Skopje: Progres Institute for Social Democracy, Skopje, 2009). Sel Turhan, Fatma, ‘The Europeanization of the Western Balkans: Is It Just A Dream?’, SETA Policy Brief, No. 54 (Ankara: SETA Foundation for Political, Economic and Social Research, 2011). Stratulat, Corina, ‘EU enlargement to the Balkans: the show must go on’, Commentary (Brussels: European Policy Centre, 2012).

Compilations Kadribašić, Adnan, Rule of Law Reforms within Kosovo’s European Integration Process:

Progress and Remaining Challenges, In: Marko Kmezić (Ed.), Europeanization by Rule of Law Implementation in the Western Balkans (Skopje: Institute for Democracy SOCIETAS CIVILIS Skopje, 2014), 91-134.

Journal Articles Blaga, Daniela; Brie, Mircea, ‘Differentiated Integration – From Theory to Practice.

Determiners in the Integration Process of the Western Balkans: Ethnicity’, Annals of the University of Oradea - International Relations and European Studies, Suppl. 2013, 173-185. Devetak, Silvio, ‘Slowenien und Kroatien: Eine problematische Nachbarschaft (mit komödiantischen Elementen)’, OST-WEST Europäische Perspektiven, vol. 5, issue 4 (2004), 288-295, online accessible here: http://www.owep.de/artikel/428/slowenien-und-kroatien-eine-problematische-nachbarschaft-mit-komoediantischen-elementen (accessed 19.09.2014). Luteijn, Geert; Mathias, Katharina, ‘Disembedding conflicting identities in the Western Balkans. Conflict Sensitivity in the EU Integration Tools’, Analytical Journal, vol. 4, issue 2 (2011), 30-44. Noutcheva, Gergana; Aydin-Düzgit, Senem, ‘Lost in Europeanisation: The Western Balkans and Turkey’, West European Politics, vol. 35, issue 1 (2012), 59-78.

Skordos, Adamantios, ‘Makedonischer Namensstreit und griechischer Bürgerkrieg. Ein kulturhistorischer Erklärungsversuch der griechischen Makedonien-Haltung 1991’, Südosteuropa Mitteilungen, issue 4 (2011), 36-55.

News articles Kreizer, Nenad, ‘Slowenien bremst Kroatiens EU-Beitritt’, Deutsche Welle, 4 February

2013, http://www.dw.de/slowenien-bremst-kroatiens-eu-beitritt/a-16570616 (accessed 19.09.2014). Radosavljevic, Zoran, ‘Croatia reaches deal with Slovenia to unblock EU entry’, Reuters, 7 March 2013, http://www.reuters.com/article/2013/03/07/us-croatia-slovenia-eu-idUSBRE9260M620130307 (accessed 23.09.2014). Riegert, Bernd, ‘Turkey stumbles over Cyprus on way to EU’, Deutsche Welle, 5 November 2013, http://www.dw.de/turkey-stumbles-over-cyprus-on-way-to-eu/a-17204257 (accessed 23.09.2014).






http://www.dw.de/turkey-stumbles-over-cyprus-on-way-to-eu/a-17204257

http://www.dw.de/turkey-stumbles-over-cyprus-on-way-to-eu/a-17204257


88

Websites European Commission, Enlargement, http://ec.europa.eu/enlargement/countries/check-current-status/index_en.htm (accessed 22.09.2014). European Stability Initiative, Macedonia's dispute with Greece, http://www.esiweb.org/index.php?lang=en&id=562 (accessed 23.09.2014). European Union External Action Service, Serbia and Kosovo reach landmark deal, http://eeas.europa.eu/top_stories/2013/190413__eu-facilitated_dialogue_en.htm (accessed 25.09.2014). Republic of Macedonia, Ministry of Foreign Affairs, High Level Accession Dialogue Final Conclusions, http://mfa.gov.mk/?q=node/886&language=en-gb (accessed 24.09.2014).

Documents 1995 Interim Accord (with related letters and translations of the Interim Accord in the Languages of the Contracting Parties), Greece – the former Yugoslav Republic of Macedonia, entered into force 13 October 1995, 1891 U.N.T.S. I-32193; 34 I.L.M. 1461. 2009 Arbitration Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia, entered into force 29 November 2010, online accessible here: http://www.esiweb.org/pdf/croatia_slovenia_arbitration-agreement_2009.pdf (accessed 23.09.2014). Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Judgment of 5 December 2011, I.C.J. Reports 2011, 644. European Parliament resolution of 6 February 2014 on the 2013 progress report on the former Yugoslav Republic of Macedonia (2013/2883(RSP)), P7_TA-PROV(2014)0103, 112.

Kittelmann, Peter, Report on the Commission proposal for a Council Regulation (EEC) amending Regulation (EEC) No 3906/89 with a view to extending economic assistance to the former Yugoslav Republic of Macedonia, (COM(93) 0402 final - C4-0507/95 - 95/0814(CNS))) (1996).


http://www.esiweb.org/index.php?lang=en&id=562


http://mfa.gov.mk/?q=node/886&language=en-gb




89


90


91

Prijedor 1992: Violations of International Humanitarian Law - Case studies: Concentration camp Omarska,

Concentration camp Keraterm and Concentration camp Trnopolje

By Višnja Šijačić*

ABSTRACT The work seeks to present what happened in Prijedor, in the period after Serbian forces took over the control of the municipality and replaced the non-Serbs, Bosnian Croats and Muslims from positions of responsibility, in the night of the 29/30 April 1992. Through three substantial case studies - Concentration camp Omarska, Concentration camp Keraterm and Concentration camp Trnopolje, the work focuses mostly on six cases tried before the International Criminal Tribunal for the former Yugoslavia in which final judgments had been rendered, during which suspects were found guilty for the forced transfer of civilians to detention camps and for crimes committed in the camps. Beside of these judgments, the work covers also the trial of Biljana Plavšić, that pleaded guilty to persecution on political, racial and religious grounds, a crime against humanity, which is a case related to the Prijedor area.

* Višnja Šijačić is graduate lawyer, working in a law office. She is currently on her master studies: International humanitarian law and human rights law at the University of Belgrade Faculty of Political Sciences. From 2008 she is also active in the NGO sector, working as a project manager at the Youth centre CK13 in Novi Sad, Serbia. Her academic interests include International Law, International Humanitarian Law, Transitional Justice and Human Rights. The views and opinions expressed herein are those of the author. E-mail: [email protected]



92

Introduction This essay will particularly focus on the story of the town Prijedor, reflecting on the events which have marked the war in this town and its surrounding. The aim is to shed light on the recent wartime past of this town, to raise knowledge about what happened in this town just some twenty years ago, which is left as an irretrievable legacy on which the future of this town has to be build. In the process of researching this topic, while reading about the testimonies of survivors and getting to know facts established by the ICTY, different questions came up. How was it possible that neighbours establish camps for their neighbours? What was the intention of this cruelty that undoubtedly was reminiscent of the World War II? The takeover of Prijedor, civilian deportations, detention camps, widespread killings, numerous tortured people, systematic and well planned crimes - were the atrocities committed in Prijedor 1992 opening events to what followed later in the war in Bosnia? Were those crimes acts of genocide? The atrocities in Prijedor were committed before the world public - British journalists filmed footages of Omarska and Trnopolje detention camps and the story about concentration camps around Prijedor was published – and those images went all over the world and they evoked memories of the Second World War. After the world faced the existence of concentration camps in Prijedor, UN investigated the situation and the investigation has led to the establishment of the International Criminal Tribunal for the former Yugoslavia, the first tribunal that was established to investigate and prosecute war crimes after the Second World War. This paper will present cases tried before the International Criminal Tribunal for the former Yugoslavia in which final judgments had been rendered, during

which suspects were found guilty for the crimes committed in the camps. Beside these judgments, the work covers also the trial of Biljana Plavšić, that pleaded guilty to persecution on political, racial and religious grounds, a crime against humanity, which is a case related to the Prijedor area. Historical Background When the dissolution of Yugoslavia began, in the early 1990s, ethnic tensions started to increase. After Slovenia and Croatia declared their independence from Yugoslavia, on 25th June 1991, followed by Macedonia, Bosnia had done the same on 3rd March 1992265. The disintegration of Yugoslavia was followed by conflicts, first with a ten day war in Slovenia, then with a four year war in Croatia extending to the war in Bosnia-Herzegovina. The war that raged from April 1992 through to November 1995, when a peace deal was initialled in Dayton, claimed the lives of an estimated 100,000 people and displaced two million more266. Prijedor – Demographic picture Prijedor is a town in north-western Bosnia and Herzegovina (now within Republika Srpska). In the document “Final Report of the United Nations Commission of Experts”267, in Annex V: “Prijedor Report”,

265Morrow, Ed, “How (not) to Remember, War Crimes, Memorialisation and Reconciliation in Bosnia-Herzegovina”, MA Cultural Heritage Management Department of Archeology, University of York, 2012, page 3. 266 http://www.icty.org/sid/322 267 “Final Report of the United Nations Commissions of Experts Established pursuant to Security Council Resolution 780 (1994). Annex V: The Prijedor Report”: “The Commission of Experts has been mandated to examine and analyze information gathered and to pursue actively its investigations with regard to, in particular, the practice of "ethnic cleansing"", para. 37. http://www.icty.org/cx=006919660147320107200%3A463yclbljl4&cof=FORID%3A10&ie=UTF-8&action=gsearchresults&q=Final+Report+of+the+United+Nations+Commissions+of+Experts+Established+pursuant The report is also known as “Bassiouni Commission Report”. It is important to mention that the task of this document was to provide a special, very detailed document that would “...establish the

http://www.icty.org/sid/322

http://www.icty.org/cx=006919660147320107200%3A463yclbljl4&cof=FORID%3A10&ie=UTF-8&action=gsearchresults&q=Final+Report+of+the+United+Nations+Commissions+of+Experts+Established+pursuant






93

it says that according to the 1991 census, Prijedor had a total population of 112,470 people: 44 per cent were Muslims, 42.5 per cent were Serbs, 4.5 per cent Croats, 5.7 per cent “Yugoslavs” and 2.2. per cent others (Ukrainians, Russians and Italian). The demographic picture significantly changed in the next two years. According to the above document, which refers to the Serbian-controlled media, the population count from June 1993 shows a dramatic reduction of non-Serb population:

1991 1993 Reduct

ion

New

arri

vals

Serbs 47, 754 53, 637 - - - 5,

892

Musli

ms 49, 454 6, 124

43,

330 - - -

Croats 6, 300 3, 169 3, 131 - - -

Others 8. 971 2, 621 6, 350 - - -

After the war started in Croatia, ethnic tensions started to increase among Serb, Croat and Muslim population in Prijedor. As it can be seen in the above mentioned statistic, Serb population was in inclining as refugees started to come from Croatia and Slovenia, while on the other side, fearing for their safety, Croats and Muslims started to leave. Political Climate in 1992 in Prijedor Growing sense of insecurity was a consequence of the political climate that has radically changed since the beginning of 1992. As stated in the United Nations Commission of Experts to the Security Council report, Serbs formed their own administration, a Assembly of the “Serbian People of the Municipality of Prijedor”, parallel to the legitimate authorities in Prijedor that have been

nature of this ethnic cleansing as a violation of International Humanitarian Law.” Quotation according to: http://prijedorgenocide.com/justice-in-the-balkans-the-ethnic-cleansing-of-prijedor/

lawfully elected. Dr. Milomir Stakić, from the SDS Party268, was elected President of this Assembly269. This parallel administration that was created included a Serbian police force with secret service functions, so that by the end of April 1992 more than 1,500 armed man were ready to take the power270. Beside of this, between 21 and 28 March 1992, the television transmitter on the Kozara Mountain, which broad-casted the TV signal from Sarajevo and Zagreb, was overtaken by a Serbian paramilitary unit called the “Wolves of Vučjak”271. From that point only television program from Belgrade and Pale, (later also from Banja Luka) could be received, which insinuated that non-Serbs threatened the Serbs. A lot of propaganda was broadcast. Referring to the crimes against Serbs committed during the Second World War, media have propagated the idea that Serbs had to arm themselves. Much nationalist propaganda was spread in the media. The media claimed that in the area around Prijedor dangerous Muslim extremist are preparing genocide against the Serbs. The propaganda war was launched which contributed to the segregation of the population by nationality. Parallel to this, in early 1992 many JNA272 soldiers withdrew from Croatia to north-western Bosnia, and they were deployed to control regional roads, together with the police forces and territorial defence units (TO)273which was crucial to close the entrances to town274.

268 SDP - Serbian Democratic Party 269 “Dr. Stakić was identified as the “mayor” of Prijedor, a title that usually denotes a position of great political authority.” Quotation taken from: Prosecutor v. Stakić (IT-97-24), Summary Judgment, para. 38, 270 Prosecutor v. Stakić (IT-97-24), Summary Judgment, para. 7. 271 http://prijedorgenocide.com/justice-transition-ethnic-cleansing-prijedor/ 272 JNA – Yugoslav National Army 273 TO – Territorial defense forces, an integrated part of the SFRY military system 274 All listed facts have been taken from “Final Report of the United Nations Commissions of Experts

http://prijedorgenocide.com/justice-in-the-balkans-the-ethnic-cleansing-of-prijedor/


http://prijedorgenocide.com/justice-transition-ethnic-cleansing-prijedor/

http://prijedorgenocide.com/justice-transition-ethnic-cleansing-prijedor/


94

These steps lead to a power change of the legitimate authorities in Prijedor that were lawfully elected. In the night of 29/30 April 1992, Serb forces took control of the municipality. In the morning of 30 April 1992, Serbian flags were on all official buildings in Prijedor. Simultaneously, non-Serbs, Muslims and Bosnian Croats were removed from positions of responsibility. In all key functions, such as in the local administration, the vacant positions were taken over by Serbs. By now the controlled media275 announced that Serbs took control of the municipality in order to “protect” the region from attack by forces in Sarajevo.”276 After the power change, Serbs formed a “Crisis Committee277”. Members of the “Crisis Committee” were military commanders and other district leaders including the president of the Red Cross in Prijedor278. The trial Chamber in the Milomir Stakić case found that the takeover of Prijedor was an illegal coup d’état, which had been planned and coordinated for months, and which had as its final goal the creation of a Serbian municipality eventually to form part of an envisaged pure Serbian state.279

Further, the trial Chamber held that the common goal on the Prijedor level can be found in the expression of Radovan Karadžić’s six strategic goals of the Bosnian Serb leadership in Bosnia and Herzegovina280 which defined as the first goal the separation of Serbs from “the

Established pursuant to Security Council Resolution 780” (1994). Annex V: The Prijedor Report. 275 Prijedor had two main local media: Radio “Prijedor” and the newspaper “Kozarski Vjesnik”. 276 http://prijedorgenocide.com/justice-in-the-balkans-the-ethnic-cleansing-of-prijedor/ 277Crisis Commission - “Krizni Štab Srpske Opštine Prijedor” 278 “Final Report of the United Nations Commissions of Experts Established pursuant to Security Council Resolution 780 (1994). Annex V: The Prijedor Report”, para. 29. 279 Prosecutor v. Stakić (IT-97-24), Summary Judgment, para. 44 – 84. 280

http://www.balkaninsight.com/en/article/six-strategic-goals-of-bosnian-serbs

other two national communities”.281 As stated above, the takeover had been planned for couple of months (at least six months), since Serbians proclaimed a parallel administration “Serbian People of the Municipality of Prijedor”. On 31 May 1992282, a decree was issued by the Bosnian Serb authorities in Prijedor: All non-Serb had to mark their houses with white flags or sheets and to wear a white armband if they were to leave their houses. Furthermore, those who were leaving the district had to sign over their property rights to Serbs and accept never to return, being told that their names simultaneously would be deleted from the census283. The most senior perpetrator who the Tribunal found guilty of crimes committed in Prijedor was Dr. Milomir Stakić. Stakić faced charges of genocide or alternatively complicity in genocide, murder as a violation of the laws or customs of war, and the following crimes against humanity: murder, extermination, persecutions, deportation and other inhuman acts (forcible transfer), in relation to events that took place in the Municipality of Prijedor between 30 April and 30 September 1992284. The trial Chamber has not found atrocities against Muslims in Prijedor in 1992 to be a case of genocide, but he was found guilty of crimes committed in Prijedor. The Tribunal sentenced Milomir Stakić to 40 years’ imprisonment for his responsibility in exterminating, murdering

281 Prosecutor v. Stakić (IT-97-24), Summary Judgment, para. 23. 282

http://stopgenocidedenial.org/2012/05/15/remembering-prijedor-massacre/ 283 “Final Report of the United Nations Commissions of Experts Established pursuant to Security Council Resolution 780 (1994). Annex V: The Prijedor Report”, para. 28. 284Prosecutor v. Stakić (IT-97-24), Summary Judgment, para. 3.





http://stopgenocidedenial.org/2012/05/15/remembering-prijedor-massacre/

http://stopgenocidedenial.org/2012/05/15/remembering-prijedor-massacre/


95

and persecuting thousands of non-Serb civilians in the municipality285. Concentration Camps The majority of the crimes which were tried before the Hague Tribunal were committed after Serb forces took control of the municipality. Non-Serbs were attacked and killed in front of their houses, in the villages around Prijedor and in the town. The survivors of this attacks that managed to escape, and those who were rounded up by Serbian forces, were divided in two groups very soon: Female, children including boys under the age of sixteen (sometimes even younger) and elderly people and adult men (men over the age of sixteen years). The first group, which mainly consisted of females, was put on convoys and send to the Trnopolje camp, while males were send to Keraterm and Omarska camps. No women were kept in Keraterm, but thirty-seven educated and professional women were detained in Omarska to be raped and executed286. The atmosphere of fear and insecurity in Prijedor culminated in the establishment of Omarska, Keraterm and Trnopolje camps. Just one month after the control of the municipality had been taken, detention camps were set up, as a result of expelling non-Serbs from the Prijedor municipality. Already since May 1992 civilians were deported in the camps. Thousands of non-Serb civilians were confined in the Omarska, Keraterm and Trnopolje camps. These camps were not built with the intention to be detention camps, there were in use for civilian purposes before the war started – Keraterm was a ceramic tile factory, Omarska was a mining complex, and Trnopolje was a school. All three camps were very near the town (Trnopolje and

285 http://prijedorgenocide.com/justice-transition-ethnic-cleansing-prijedor/#sdfootnote1sym 286Gontcharov, Igor, Report on The Genocide in Prijedor, Bosnia & Herzegovina, Institute for Research of Genocide Canada, 2012

Omarska) or even in the town (Keraterm). Omarska and Keraterm were closed in August 1992. Trnopolje was closed in November 1992. Omarska Camp The Omarska camp was established in late May 1992, primarily as a camp for non-Serbs that were captured in the ethnic cleansing. Although there were some Serb persons held within the camp, they were in the minority. It is difficult to estimate the exact number of prisoners, but according to a statement of Simo Drljača (chief of Serbian secret police and a member of Crisis Committee) 3,334 detainees were kept in Omarska and more than 6,000 informative talks were held. Most of the detainees were male, but also thirty-seven women were detained287. The order to set up the Omarska camp was issued in accordance with the Decision of the Crisis Committee presided over by Milomir Stakić. The order was signed by Simo Drljača, the Chief of Police who represented the police forces in the Crisis Committee. In one interview Milomir Stakić stated that the existence of camps Omarska, Keraterm and Trnopolje were “a necessity in the given moment”. He confirmed that these camps “were formed according to a decision of civilian authorities in Prijedor”288. Omarska was termed as an "interrogation centre"289 where detainees were investigated and accused of "paramilitary activities", even if no criminal charges were ever filed against any person detained at Omarska290.

287 “Final Report of the United Nations Commissions of Experts Established pursuant to Security Council Resolution 780 (1994). Annex V: The Prijedor Report”, para. 345, 350 and 352. 288Prosecutor v. Stakić (IT-97-24), Summary Judgment, para. 28. of the Summary Judgment 289 Helsinki Watch, “War Crimes in Bosnia-Herzegovina”, Volume 2, New York: Human Rights Watch, 1993, Page 88. 290 Gontcharov, Igor, Report on The Genocide in Prijedor, Bosnia & Herzegovina, Institute for Research of Genocide Canada, 2012, page 17.

http://prijedorgenocide.com/justice-transition-ethnic-cleansing-prijedor/#sdfootnote1sym




96

The Trial Chamber in the case of Prosecutor v. Miroslav Kvočka, Milojica Kos, Mlađo Radić, Zoran Žigić and Dragoljub Prcać: “...found that the Omarska camp functioned as a joint criminal enterprise: the atrocities committed therein consisted of a broad mixture of serious crimes committed intentionally in order to persecute and subjugate non-Serbs detained in the camp.”291

It could be defined that the main aim of the concentration camps, especially Omarska but also Keraterm, was to eliminate the most prominent citizens of Prijedor, including political and administrative leaders, academics and intellectuals, religious leaders, officials from the courts, business people, artist and athletes. Above listed is a class of citizens that could be characterised as a non-Serbian leadership. The exact number of these people who were killed could not be determined292. Large numbers of crimes were committed in this camp: murders, rape, torture and maltreatments, illegal arrest of civilians, displacement of people because of political, national or religious reasons. Even if the camp was not surrounded by 291 Prosecutor v. Kvočka et al. (IT-98-30/I) “Omarska, Keraterm & Trnopolje Camps”, para. 2. of the Appeals Judgment 292 In his work about elitocide in Bosnia and Herzegovina, Denis Gratz discusses the theoretical concept of elitocide as “a systematic elimination of leading figures of a society or a group” on the example of the war in Bosnia and Herzegovina 1992–1995. He concludes that elimination of leadership results in neutralization of the elites’ influence on their respective group which effects the power of the group. Later on, Gratz defines elitocide as “a temporally and spatially connected, systematically and intentionally conducted neutralization of influence of the elite segments of an ethnic, racial, national or religious group, with the purpose of making the rule over those groups possible.” According to Gratz the experience of elitocide in Bosnia and Herzegovina indicates that elitocide is “an instrument of the policy of ethnic homogenization”. See: Gratz, Dennis, “Elitocide in Bosnia and Herzegovina and its impact on the contemporary understanding of the crime of genocide”, Columbia University, New York, USA, 2011, pages 1, 6 and 11.

barbed wire, armed guards wearing police and army uniforms, who shifted three times a day, were organised around the camp and anti-personnel land-mines were set. According to witnesses, the police were located inside the camp, where the detainees were293. The camp authorities used the offices on the ground floor as their headquarters where they interrogated and tortured prisoners. Omarska was an old iron mine, with industrial facilities so the prisoners were imprisoned in different buildings: the administration building where prisoners were investigated and were killings took place, the crammed hangar building, the “white house” were executions took place, and “pista”, a concrete backyard between the buildings where prisoners were also tortured and were mass killings were perpetrated. Because the camp buildings were almost completely full some of the detainees had to be held on “pista”. There was another small building, known as the "red house", where prisoners were sometimes taken in order to be summarily executed. During the day the woman were in a restaurant but they slept in the interrogations rooms, which they had to clean every day as the rooms were covered in blood and remnants of skin and hair after brutal beating of detainees. Living conditions in Omarska were appalling and the prisoners were constantly mistreated. Detainees were kept in inhumane conditions, discriminated by inhuman acts and cruel treatments, in an atmosphere of extreme psychological and physical violence. The food (one meal a day) that the prisoners received was usually spoiled. Meals were often accompanied by beatings. There were no toilet facilities. Since it was summer it was usually very hot, and there was too little water provided. As the camp was overcrowded, prisoners had to stand,

293 Prosecutor v. Stakić (IT-97-24), Summary Judgment, para. 35 of the Summary Judgment


97

as there was hardly space to lie down. Murder, torture, rape, sexually sadistic torture, castration of men and abuse of prisoners was happening every day294. The first person that was prosecuted for crimes committed in the Omarska camp was Duško Tadić295. Tadić directly took part in a series of “increasingly inhuman acts against Bosnian Muslims”296. He was charged with participation in creating death lists of Muslim intellectuals, collecting and forcibly transferring civilians. The most serious charges were related to crimes committed in the camp Omarska. Witnesses testified that he was in the camp almost each night, from May to August 1992, although he did not have an official position within the camp structure. Tadić was daily involved in the beatings and torture of prisoners, using knives, truncheons, and metal rods. The detainees were beaten with fists, rifle butts and wooden and metal sticks. Prisoners were tortured to the point of unconsciousness. Tadić presented an alibi in defence, claiming that he was living in Banja Luka. The Chamber found his claims untruthful. The Judges found him guilty of cruel treatment and inhumane acts297. Other indicted who stood trial and were convicted before the Tribunal for crimes committed in the camps were Miroslav Kvočka, duty officer at Omarska, Milojica Kos and Mlađo Radić, shift commanders in Omarska, Dragoljub Prcać, camp administrator in Omarska and Zoran Žigić who had no official position but was found guilty of crimes committed in all three camps, Omarska, Keraterm and

294 Helsinki Watch, “War Crimes in Bosnia-Herzegovina”, Volume 2, New York: Human Rights Watch, 1993, Page 87. 295 Prosecutor v. Tadić (IT-94-1) 296 Watson, Geoffrey R., The Humanitarian Law of the Yugoslavia War Crimes Tribunal: Jurisdiction in Prosecutor v. Tadic, The Catholic University of America, Columbus School of Law, 1996. 297 Opinion and Judgment, Prosecutor v. Tadić, (IT-94-1), para. 726 and 730.

Trnopolje298. Although the Chamber found that none of them was responsible for the conception of the camps, it found that they were aware of what was happening in the camp and that they actively participated in persecution. Kvočka was found to be co-perpetrator of the joint criminal enterprise of the Omarska camp. He was found guilty of co-perpetrating persecutions, murder and torture and he was sentenced to five years. Kos was found individually responsible and guilty as a co-perpetrator of persecutions, murder and torture and sentenced to five years. Further, the Trial Chamber found that Prcać was an administrative aid to the commander of Omarska, and that because he was able to move through the camp he too had some influence over the guards. Due to these facts, the Trial Chamber concluded that Prcać had knowledge of what was happening within the camp. He was found guilty for co-perpetrating persecution, murder and torture, as well. For the crimes for which he was convicted, Prcać was sentenced to a sentence of five years imprisonment. The Trial Chamber found that Radić had a considerable role in Omarska. He had a substantial authority over the guard in his shift, and as the Trial chamber noted “the guards on his shift were particularly brutal” and he “...also personally committed sexual violence against female detainees”. He was found guilty of co-perpetrating persecutions, murder and torture and he was sentenced to twenty years. Žigić was given the longest term - he was sentenced to 25 years. He delivered supplies and worked in Keraterm camp for a short time, but he was also allowed to enter Omarska and Trnopolje camps. With regards to Omarska, the Trial Chamber found that Žigić came regularly to the camp to abuse prisoners with pronounced

298 Prosecutor v. Kvočka et al. (IT-98-30/I) “Omarska, Keraterm & Trnopolje Camps”


98

aggressiveness which led to the conclusion that he was a co-perpetrator of the joint criminal enterprise of the Omarska camp. Žigić was also charged for crimes committed in Keraterm and Trnopolje camps. “The Trial Chamber found that Žigić committed persecutions, torture and murder in Keraterm and that these crimes were part of widespread or systematic attack against non-Serbs detained there, constituting crimes against humanity.”299 The Trial Chamber also found that Žigić abused detainees in Trnopolje camp300. Keraterm Camp The Keraterm camp was a death camp where male detainees were kept. The number of prisoners in Keraterm may have been about half of the number of prisoners detained in Omarska. The Keraterm camp was a smaller but probably equally brutal and deadly as Omarska. Keraterm was formerly used as storehouses at the ceramic tile factory where prisoners were kept in four halls. Around 1,200 Bosniaks and Bosnian Croats were imprisoned here, by late June 1992301. The prisoners were male, mostly between the ages of 15 and 60. In mid-July 1992, approximately 12 to 15 Bosniak women were brought to Keraterm, were they were raped and transported further to Omarska camp302. In relation to crimes committed in Keraterm, ICTY prosecutor indicted Dušan Sikirica, Damir Došen and Dragan Kolundžija303. Sikirica was a Commander

299

Ibid., para. 7. 300Quotation according to: Prosecutor v. Kvočka et al. (IT-98-30/I) “Omarska, Keraterm & Trnopolje Camps”, para. 6. of the Appeals Judgment 301 Gontcharov, Igor, Report on The Genocide in Prijedor, Bosnia & Herzegovina, Institute for Research of Genocide Canada, 2012, page 16. 302 http://prijedorgenocide.com/keraterm-death-camp/ 303Case Mejakić et al. “Omarska and Keraterm camps” (IT-02-65) referred by the ICTY to the State Court of Bosnia and Herzegovina, regarding Prijedor:

of Security at the Keraterm camp in June and July 1992. Došen was a shift leader in the camp from early June till early August, as well as Kolundžija304. By pleading guilty and the expressing remorse for what they have done in the summer of 1992 or what they failed to do, Sikirica, Došen and Kolundžija got significantly less penalties for crimes against humanity in which, by their own admission, they have participated. It would lead one to anticipate that they would have received much longer sentences if they did not plead guilty. Sikirica pleaded guilty to crimes against humanity and was sentenced to a jail term of fifteen years. Došen admitted that he permitted persecutions and violence against prisoners, including murders, beatings, sexual assaults and harassment. He was sentenced to five years imprisonment for pleading guilty. Kolundžija was sentenced to three years after pleaded guilty to the inhuman conditions in which detainees were held in Keraterm, and participation in the persecution of his prisoners on political, racial and religious grounds. Predrag Banović, a former guard in Keraterm camp also pleaded guilty to committing crimes in the camp305. Banović pleaded guilty to 25 charges, admitting that he participated in five murders, beating twenty-five detainees and shooting two others at the camp. He

Željko Mejakić was found guilty for the criminal offense of Crimes against Humanity and sentenced him to the long-term imprisonment of 21 years. Momčilo Gruban was found guilty for the criminal offense of Crimes against Humanity and sentenced him to the long-term imprisonment of eleven years. Duško Knežević was found guilty of the criminal offense of Crimes against Humanity and sentenced him to a long-term imprisonment of 31 years. After pleading guilty, Dušan Fuštar was also found guilty for the criminal offense of Crimes against Humanity and sentenced to nine years imprisonment. For further information see: http://www.sudbih.gov.ba 304Prosecutor v. Duško Sikirica et al. "Keraterm Camp" (IT-95-8) 305Prosecutor v. Predrag Banović “Omarska and Keraterm Camps” (IT-02-65/I)

http://prijedorgenocide.com/keraterm-death-camp/

http://prijedorgenocide.com/keraterm-death-camp/

http://www.sudbih.gov.ba/


99

also admitted that he knew of the system of ill-treatment at the camp and participated in mistreating, beating and killing detainees in order to further it. He was sentenced to eight years’ imprisonment. Crimes committed at the Omarska, Keraterm and Trnopolje camps must be considered within a widespread and systematic campaign. The former president of Republika Srpska, Biljana Plavšić306, the highest ranking Bosnian Serb politician that was sentenced, pleaded guilty to participating in developing and implementing a campaign that led to separation of ethnic groups. In relation to crimes committed in Prijedor, she admitted that killings and beatings occurred at Omarska and that its detainees were treated inhumanely. The Trial Chamber sentenced Biljana Plavšić to eleven years in prison, dropping the genocide charges. The international media discovered the camp’s existence in July 1992 after a team of British journalists filmed footage of Omarska and Trnopolje. Roy Gutman, the journalist of the New York paper “The Newsday”, published his first story about the concentration camps around Prijedor on 19 July 1992. In August 1992, Radovan Karadžić, President of Republika Srpska in that time, granted British TV “ITN” permission to go to Prijedor to investigate violations of human rights in camps in this area. The film crew had the opportunity to talk to the prisoners and to ask them about conditions in the camp. Ed Vulliamy of “The Guardian”307, Penny Marshall and Ian Williams from the

306Plavšić, (IT-00-39 & 40/1) "Bosnia and Herzegovina" 307 Vulliamy, Ed, “Shame of camp Omarska”, The Guardian, 7th August 1992, http://www.theguardian.com/itn/article/0,,191240,00.html

British TV company “ITN”308 actually exposed the existence of the camps in Europe. This footage was shown around the world causing public outrage which led to the closure of the camps and acceleration of a UN effort to investigate war crimes committed in the conflict. This footage was introduced in almost every case that the Tribunal tried relating to the Omarska camp. The camp was closed less than a month after images were broad-casted. Trnopolje Camp Trnopolje camp was established in the village of Trnopolje, a predominantly Muslim village, near Prijedor town. In this camp primarily female groups were deported (women, boys under the age of sixteen and elderly man)309that were found "innocent" after “investigation”. Those who were found “guilty” were seny to other Prijedor camps. Serb forces claimed that Trnopolje is “an open camp” for Muslims who were “hiding from Muslim extremists”310. The number of persons detained varied from four thousand to seven thousand311. In the Human Rights Watch report from 1993312, based on conducted interviews, three categories of imprisoned can be distinguished. The first category consisted of people that were kept at the camp after Serbian forces attacked and forcibly transferred the non-Serb population in the area of Prijedor Municipality. The second group includes men who were transferred to Trnopolje after Omarska and Keraterm camps were closed down. The third group included non-Serbs that voluntarily

308 http://www.youtube.com/watch?v=w6-ZDvwPxk8 309 http://prijedorgenocide.com/trnopolje-death-camp/ 310 Helsinki Watch, “War Crimes in Bosnia-Herzegovina”, Volume 2, New York: Human Rights Watch, 1993, Page 139. 311 http://prijedorgenocide.com/justice-in-the-balkans-the-ethnic-cleansing-of-prijedor/ 312 Helsinki Watch, “War Crimes in Bosnia-Herzegovina”, Volume 2, New York: Human Rights Watch, 1993, Page 139.

http://www.theguardian.com/itn/article/0,,191240,00.html


http://www.youtube.com/watch?v=w6-ZDvwPxk8

http://www.youtube.com/watch?v=w6-ZDvwPxk8

http://prijedorgenocide.com/trnopolje-death-camp/

http://prijedorgenocide.com/trnopolje-death-camp/




100

abandoned their homes in villages on territories that were under the control of Serbian forces, thinking that it was more safe to remain in the camp where they will be registered by ICRC313. The regime was not that brutal as it was in Omarska and Keraterm, and the camp was monitored by the local Serbian Red Cross, to a certain extent. Despite of that, killings, beatings and rapes were not uncommon. Killings were notably less frequent in this camp, but rapes were widely reported. Rapes were most common crimes committed in Trnopolje, a night terror that was going on. Harassment and starvation was a permanent state for all imprisoned. Most approximately Trnopolje camp could be described as a concentration camp, while Omarska and Keraterm were death camps314. In some cases, detained women were immediately deported by bus or released after a few days, due to lack of space in the camp. The majority of deportees were transported in buses and onto military trucks and sent towards Travnik. These deportees had to walk almost 30 kilometres, to reach non-Serbian-held areas in central BiH. A few were deported the safer way to Bosanska Gradiška315. Acting upon the Bosnia v. Serbia Genocide Case316, the International Court of Justice in its Judgment examined atrocities committed in detention camps, including Trnopolje, in relation to Article II (b) of the Genocide Convention stated: “Having carefully examined the evidence presented before it, and taken note of that

313 ICRC - International Committee of the Red Cross 314Gontcharov, Igor, Report on The Genocide in Prijedor, Bosnia & Herzegovina, Institute for Research of Genocide Canada, 2012, page 17. 315 “Final Report of the United Nations Commissions of Experts Established pursuant to Security Council Resolution 780 (1992). Annex V: The Prijedor Report”, para. 25. 316 Full case name: The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, ICJ General List No. 91, Decided 26 February 2007.

presented to the ICTY, the Court considers that it has been established by fully conclusive evidence that members of the protected group were systematically victims of massive mistreatment, beatings, rape and torture causing serious bodily and mental harm during the conflict and, in particular, in the detention camps. The requirements of the material element, as defined by Article II (b) of the Convention are thus fulfilled. The Court finds, however, on the basis of evidence before it, that it has not been conclusively established that those atrocities, although they too may amount to war crimes and crimes against humanity, were committed with the specific intent (dolus specialis) to destroy the protected group, in whole or in part, required for a finding that genocide has been perpetrated.”317 318 Conclusion Srebrenica genocide is the most known, widely recognized case of genocide in the Bosnian War, happened in July 1995. Even if the atrocities committed in Prijedor were not recognized by International Criminal Tribunal for the former Yugoslavia (ICTY) as a case of genocide, after presenting what happened in Prijedor it is hard not to ask a questions: How can it be that it was not possible to demonstrate genocide charges? Was it possible to foresee in which direction the war in Bosnia and Herzegovina will continue to run, on the basis of the atrocities committed in Prijedor in 1992? The most infamous aspect of crimes against humanity in Prijedor was the existence of concentration camps Trnopolje, Keraterm and Omarska. Media reports about massacres of thousands of

317“Application of the Convention on the Prevention and Punishment of the Crime of Genocide”, International Court of Justice, para. 119, 26 February 2007. 318 Full Judgment can be found on the official web site of the International Court of Justice: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=91&p3=4

http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=91&p3=4




101

civilians, rape and torture in detention camps, moved the UN in late 1992 to establish a Commission of Experts to examine the situation on the ground319, which led to the establishment of the International Criminal Tribunal for the former Yugoslavia, known as the ICTY. The impact of that reportage - the discovery of the existence of these camps may have been decisive for establishment of the ICTY. In six cases, in which final judgments had been rendered, for the forced transfer of civilians to detention camps, for murders and for crimes committed in the camps thirteen suspects were found guilty320. The Tribunal's judgments against other perpetrators establish a host of harrowing facts about the suffering of many thousands of victims, including killings on a massive scale in the Omarska, Keraterm and Trnopolje camps, all of which were part of this comprehensive pattern of atrocities. Although the prosecution failed to prove that atrocities committed in Prijedor sine 30 April 1992 constitute genocide, it does not diminish the horrors committed against the Non-Serb population. It is not questionable that the events in Prijedor are Crimes against Humanity.

319 “Final Report of the United Nations Commissions of Experts Established pursuant to Security Council Resolution 780 (1994). Annex V: The Prijedor Report 320The cases in relation to crimes committed in Prijedor: Milomir Stakić, "Prijedor" (IT-97-24); Duško Tadić, “Prijedor” (IT-94-1); Miroslav Kvočka et al. "Omarska, Keraterm & Trnopolje Camps" (IT-98-30/1); Duško Sikirica et al. "Keraterm Camp" (IT-95-8); Predrag Banović, “Omarska and Keraterm Camps” (IT-02-65/I); Biljana Plavšić, "Bosnia and Herzegovina" (IT-00-39 & 40/1).


102

BIBLIOGRAPHY

Books and articles Final Report of the United Nations Commissions of Experts Established pursuant to Security Council Resolution 780, Annex V: The Prijedor Report, 1994. Gontcharov, Igor, Report on The Genocide in Prijedor, Bosnia & Herzegovina, Institute for Research of Genocide Canada, 2012. Gratz, Dennis, “Elitocide in Bosnia and Herzegovina and its impact on the contemporary understanding of the crime of genocide”, Columbia University, New York, USA, 2011 Helsinki Watch, “War Crimes in Bosnia-Herzegovina”, Volume 2, New York: Human Rights Watch, 1993. Morrow, Ed, “How (not) to Remember, War Crimes, Memorialisation and Reconciliation in Bosnia-Herzegovina”, MA Cultural Heritage Management Department of Archeology, University of York, 2012. Vulliamy, Ed, “Shame of camp Omarska”, The Guardian, 7th August 1992. Watson, Geoffrey R., The Humanitarian Law of the Yugoslavia War Crimes Tribunal: Jurisdiction in Prosecutor v. Tadic, The Catholic University of America, Columbus School of Law, 1996.

Legal acts: Convention on the Prevention and Punishment of the Crime of Genocide, 1948. http://legal.un.org/avl/ha/cppcg/cppcg.html ICTY cases Banović, "Omarska and Keraterm Camps” (IT-02-65/1) Kvočka et al. "Omarska, Keraterm & Trnopolje Camps" (IT-98-30/1) Plavšić, "Bosnia and Herzegovina" (IT-00-39 & 40/1) Sikirica et al. "Keraterm Camp" (IT-95-8) Stakić, "Prijedor" (IT-97-24) Tadić, “Prijedor” (IT-94-1) ICJ case Application of the Convention on the Prevention and Punishment of the Crime of

Genocide International Court of Justice, 2007. Websites http://www.icty.org/ http://www.icj-cij.org/ http://www.sudbih.gov.ba http://prijedorgenocide.com/ http://www.balkaninsight.com/ http://stopgenocidedenial.org/ http://www.theguardian.com/

http://legal.un.org/avl/ha/cppcg/cppcg.html

http://www.icty.org/

http://www.icj-cij.org/

http://www.sudbih.gov.ba/

http://prijedorgenocide.com/

http://www.balkaninsight.com/

http://stopgenocidedenial.org/



103


104


105

TELLING THE TRUTH IN A DIVIDED SOCIETY: the RECOM Initiative in

Bosnia and Herzegovina By Martina Orlandi *

ABSTRACT The idea of a “holistic approach” to transitional justice suggests that different strategies for dealing with the past such as truth-telling, criminal accountability, memory work, reparations and institutional reform, interact and complement each other. Their timing, sequencing and interrelation remain contentious though. In the specific case of Bosnia and Herzegovina, the deep divisions embedded in the State structure and polity have been hindering dialogue across ethnic and political lines for the past decades. In addition, criminal accountability has been the predominant mechanism for dealing with the past. As a matter of fact, no official truth commission has ever been successfully established; while the panorama of non-official truth-telling initiatives has always been characterized by a certain degree of disarray. The challenge ahead is to find a strategy that matches Bosnia and Herzegovina’s specificity and priorities.

* Martina Orlandi is a young professional from the field of Human Rights. She holds an MA degree in International Relations from the University of Bologna, Italy. Her professional and research interests include transitional justice, gender-based violence in conflict zones, as well as the contribution of women to peace-building and reconstruction processes.


106

Introduction “Forgiving and being reconciled to our enemies or our loved ones are not about pretending that things are other than they are. It is not about patting one another on the back and turning a blind eye to the wrong. True reconciliation exposes the awfulness, the abuse, the pain, the hurt, the truth. It could even sometimes make things worse. It is a risky undertaking, but in the end it is worthwhile, because in the end only an honest confrontation with reality can bring real healing. Superficial reconciliation can bring only superficial healing.” - Desmond Tutu321 In the wake of armed conflicts or dictatorial regimes, societies and individuals have the right to know about gross human rights violations occurred in the past while States bear the legal obligation to guarantee such right. Telling the truth is a component of the wider strategy of dealing with the past, which allows societies to set the record straight and empowers victims to claim their rights. What differentiates truth-telling from other mechanisms of transitional justice such as criminal accountability is the victim-centred approach. Too often indeed those who suffered the most from past atrocities are neglected in the pursuit of political stability and peace. In addition, post-conflict societies that do not share a common and non-contradictory narrative of the past are more vulnerable to manipulation and, ultimately, reoccurrence. This holds particularly true for Bosnia and Herzegovina, where truth-telling initiatives have proved so far very unsuccessful for a number of reasons, including the deep ethnical divisions embedded in the State structure and polity. The purpose of this article is to answer the following questions: can truth-telling initiatives contribute to sustainable peace,

321 D. TUTU, “Truth and Reconciliation”, in Greater Good: the Science of Meaningful Life, Online journal, 1 September 2004.

democracy, the rule of law and ultimately reconciliation? Given its own very specific and unique context, what makes sense for Bosnia and Herzegovina? I will begin with describing the meaning and purposes of truth-telling as well as its interrelation, timing and sequencing with other transitional justice mechanisms. Then, I will explore the significance and role of truth-telling in the specific context of Bosnia and Herzegovina through the presentation of a case study: the RECOM Initiative. I argue that, despite criticism and many challenges ahead, this civil society-based initiative might effectively contribute to the process of reconciliation in the region as well as in Bosnia and Herzegovina given its high level of local ownership and its comprehensive mandate. What is Truth-Telling? A comprehensive definition of truth-telling refers to “processes through which States and societies tell the stories of a past period of trauma, such as war or conflict, as part of a general approach to dealing with the past that is meant to contribute to redressing wrongs and building a better future”322. Truth-telling is a component of the wider process of dealing with the past, which might as well include other elements of transitional justice such as criminal accountability, memory work, reparations and institutional reform. Therefore, the goals of truth-telling must be investigated in relation to the goals of the other components.

322 G. SIMPSON, E. HODZIC, L. BICKFORD, “Looking back, looking forward”: promoting dialogue through truth-seeking in Bosnia-Herzegovina, Sarajevo: UNDP, 2012, p. 42. Only for the purpose of this article, the term “truth-telling” will be used to encompass also those processes that fall within “truth-seeking”. This simplification reflects the limited scope of the article, rather than an a-critical interpretation of the conceptual differences between the two terms. For an interesting insight into these concepts in relation to Bosnia and Herzegovina, please consult: E. MINOR, “ORG in Conversation: Mirsad Tokača and truth-seeking, truth-telling and truth-keeping in Bosnia”, 1 May 2011.


107

First, truth-telling can be regarded “as a primary step in the effort to seek more comprehensive justice” for it is essential to know the truth about gross human rights violations occurred in the past in order to make sound reparation proposals and, eventually, pursue institutional reform323. Second, truth-telling serves the purpose of “setting the record straight in order to strengthen victims’ capacity to demand their rights”324. If victims are able to approach their States and societies with an objective account of what happened in the past, they will be empowered to demand their rights as well as granted effective support from their own societies. Very often indeed those who suffered the most from past atrocities are neglected or failed to be acknowledged as individual recipients of rights, particularly when transitional justice is discussed in the course of a peace negotiation or in the rush of establishing a new political regime 325. From a psycho-social perspective, truth-telling may eventually lead to some form of healing at personal or societal level. Inter alia, the transformative power of truth has been acknowledged by Daly and Sarkin326. They argue that telling the truth enables victims to become survivors by transforming their relationship with perpetrators, and it turns deeply divided societies into communities by fostering dialogue. From a legal perspective, truth-telling is linked to the “right to truth” which may be interpreted as a legal obligation for post-conflict States. Diane Orentlicher defines it as the “inalienable right to know the truth” and links it to a general obligation for States to combat impunity and to 323 INTERNATIONAL CENTRE FOR TRANSITIONAL JUSTICE, Program Report: “Truth and Memory”, 2014, p. 1. 324 Ibid., p. 1. 325 In addition, marginalized voices (e.g. women, national minorities) should be taken into account and their positions further explored.

326 E. DALY, J. SARKIN, Reconciliation in Divided Societies: Finding Common Ground, Philadelphia:

University of Pennsylvania Press, 2006, pp. 140-179.

protect their citizens against repetition; she also recognizes that truth commissions and other commissions of inquiry play a fundamental role in this respect327. In its narrowest interpretation, the right to truth constitutes the individual right to receive factual information about the fate of loved ones; in its broadest one, it encompasses the collective right to know and teach non-revisionist history as well as the individual right to uncover the truth about all gross human rights violations occurred in the past328. However, it is never a “right to guaranteed results”329. Therefore, both the State and civil society should ensure their full support to victims who embark in the challenging quest for truth. Essentially telling the truth requires the creation of appropriate forums where facts can be established, a common and non-contradictory narrative of the past constructed, the voices and humanity of the victims, witnesses and observers respectively heard and acknowledged by their fellow citizens. As a result, truth-telling encompasses a wide range of both official/state-led and non-official/civil society-based initiatives. They may include: declassification of archives, legislative measures to guarantee freedom of information, investigations into the missing and disappeared, the creation of non-official commissions of inquiry tied to specific war crimes or the establishment of official non-judicial commissions such as truth commissions. The latter have become an essential component of transitional justice efforts since their first establishment in Latin America in the 1980s. In the event that national

327 D. ORENTLICHER, Report of Diane Orentlicher, independent expert to update the Set of principles to combat impunity - Updated Set of principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 2005. 328 G. SIMPSON, E. HODZIC, L. BICKFORD, Looking back, looking forward, p. 59. 329 INTERNATIONAL CENTRE FOR TRANSITIONAL JUSTICE, Report: “Challenging the conventional: Can Truth Commissions Strengthen Peace Processes?”, 2014, p. 8.


108

governments have not been able or willing to establish truth commissions, a series of non-official initiatives have been launched by civil society, victims associations or other official institutions such as Ombudspersons. Truth-Telling and Other Mechanisms of Transitional Justice: Interrelation, Sequencing and Timing A “holistic approach” to transitional justice suggests that different mechanisms such as truth-telling, criminal accountability, memory work, reparations and institutional reform interact and complement each other330. Nevertheless difficulties arise “when efforts to develop an integral approach to transitional justice are understood to mean simultaneous implementation”331. Questions over interrelation, sequencing and timing arise and answers are obviously not univocal but depend greatly on the context. What is, for example, the optimal relation between truth commission findings and criminal justice proceedings? Are truth and justice two mutually exclusive concepts? Is there a window of opportunity for a truth-telling initiative to be launched and successfully implemented? The work of truth commissions and tribunals can be considered complementary, inasmuch as the concepts of truth and justice do not necessarily exclude each other. On the one hand, tribunals are tasked with ascertaining individual responsibility for criminal actions rather than investigating root causes of conflicts332. During trials the focus is on the alleged perpetrator rather on the victim. Furthermore, absolution does not necessarily imply that facts have never happened, for the main task of tribunals is administering justice

330 G. SIMPSON, E. HODZIC, L. BICKFORD, Looking back, looking forward, p. 62. 331 INTERNATIONAL CENTRE FOR TRANSITIONAL JUSTICE, Challenging the conventional, p. 8. 332 E. AMATI, V. CACCAMO, M. COSTI, E. FRONZA, A. VALLINI, Introduzione al diritto penale internazionale, Milano: Giuffrè Editore, 2010, p. 27.

rather than creating accurate historical records. On the other hand, truth commissions represent designated forums where central agency is conferred to victims: they can tell their stories without the burden of the proof under cross-examination; they are provided with the opportunity to make their voices heard and be acknowledged as human beings. In brief, this is the core difference between juridical truth that can be ascertained in courtrooms and historical truth that contributes to the construction of a common and non-contradictory narrative of the past333. In addition, it is necessary to dispel a couple of long-standing myths related to the work of truth commissions. First, the process of truth-telling is not necessarily intertwined with amnesty, pardon and forgiveness. Second, it is not the only mechanism which can ensure the respect of the victim’s right to truth. In fact, often resistance to the establishment of truth commissions has arisen on the ground of these assumptions. In particular, “[r]esistance to sequencing may respond to a fear that truth commissions would be the only response to impunity, shortchanging victims and possibly postponing measures of criminal justice indefinitely. […] However, truth commissions that can operate effectively may also mobilize victims, educate the citizenry, and establish and authoritative account of past atrocity, thereby creating better conditions for further measures of justice”334. Although it is seemingly impossible to strike a balance between urgency and flexibility, empirical evidence shows that about one third of the 40 truth

333 The dichotomy between truth and justice has been analyzed throughly by many authors. As an example of the ongoing debate on this matter, please consult A. VON HIRSCH, J. ROBERTS, A.E. BOTTOMS, K. ROACH, M. SCHIFF, Restorative Justice & Criminal Justice: Competing or Reconcilable Paradigms?, Portland: Hart Publishing, 2003. 334 INTERNATIONAL CENTRE FOR TRANSITIONAL JUSTICE, Challenging the conventional, p. 8.


109

commissions created since 1983 have been created within one year and about a half in the first two years; while the rest were created within 23 years of the key transitional event335. These figures seem to suggest that there is indeed a window of opportunity for the establishment of a truth commission. If created in the immediate aftermath of the conflict, a truth commission might interact with and also provide legitimacy to other mechanisms of transitional justice such as criminal accountability and reparations. If momentum is lost, either the pursuit of stability and peace or the normalization of the political agenda might hinder the process of dealing with the past. Truth-Telling Initiatives in Bosnia and Herzegovina Almost two decades after the wake of the conflict, no official truth commission has been successfully established in Bosnia and Herzegovina yet, whilst the panorama of non-official truth-telling initiatives has been characterized by a certain degree of disarray336. Among other official initiatives, a truth commission was established by the then Prime Minister of Serbia Vojislav Koštunica shortly after Milošević was ousted from power. Given the fact that this initiative assembled a group of staunch nationalists – including the founder himself – it was clear that it would have produced no truth, let alone reconciliation. Therefore, it resulted in a complete failure. In 2000, the president of the Jewish community in Bosnia and Herzegovina, Jakob Finci, established the “Association of Citizens for Truth and Reconciliation”, a group of civil society organizations and individuals tasked with

335 Ibid., p. 7-10. 336 For an accurate insight into truth-telling initiatives in Bosnia and Herzegovina, please consult G. SIMPSON, E. HODZIC, L. BICKFORD, Looking back, looking forward, Chapter 2, pp. 65-92; and INTERNATIONAL CENTRE FOR TRANSITIONAL JUSTICE, Fact Sheet: “Transitional Justice in the Former Yugoslavia”, 2009.

discussing the creation of a formal commission and a drafting a law to establish it. Despite having gained the support of the ICTY, this initiative was hampered by the fact that Serb representatives never attended any meeting. Beside official truth telling initiatives, there have been also a few unsuccessful attempts to create non-official commissions of inquiry tasked with investigating and establishing facts tied to specific war crimes. The Commission on the Siege of Sarajevo is a case in point: it was established in 2006 and produced no results by the end of its mandate. So far, both official and non-official truth-telling initiatives in Bosnia and Herzegovina proved to be unsuccessful for a number of reasons. Inter alia, two major structural elements deserve attention. On the one hand, the General Framework Agreement (GFA) for Peace in Bosnia and Herzegovina of 1995 had the merit to stop the war. Yet it institutionalized deep ethnic divisions into the resulting State structure and polity, which have had direct implications on truth-telling efforts ever since. In fact, each side of the conflict has been able to perpetuate their own version of the truth without being either challenged or subjected to criticism. On the other hand, the task of restoring justice on a regional level has been carried out primarily by the “International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991” (ICTY). Individuals responsible for genocide, ethnic cleansing, gross human rights violations and war crimes have been brought to justice. Yet criminal justice proceedings have not been able to completely heal the wounds left by the war, to fulfil victims’ demands for acknowledgement, let alone build a common narrative of the violent past. Nevertheless, the need for acknowledgement across ethnic and political lines seems to be present in


110

Bosnia and Herzegovina. The idea of creating a truth commission came from the non-governmental sector and was rooted in the conviction that the ICTY somewhat failed to contribute its findings to the construction of a common and non-contradictory narrative of the past337. Not only would the support of a large segment of the population but also the approval of the political leadership be direly needed in order to ensure the establishment and effective work of a truth commission in Bosnia and Herzegovina. According to Sanela Basic, there are two main reasons why the politicians from Bosnia and Herzegovina have stubbornly opposed to the establishment of a truth commission338. Once again, the deep ethnic divisions embedded into the State structure and polity have contributed to the creation of different and contradictory narratives of the past. Second, the existence of incompatible narratives has allowed each ethnic group to claim for exclusive ownership over the truth, thus hampering dialogue and reconciliation across ethnic and political lines. The prevalence of this situation has allowed Bosnian politicians to play the “ethnic card” in order to deepen anger and hatred any time it was needed for political purposes. A Regional Approach: the RECOM Initiative A regional approach to truth-telling has been taken by three research and documentation centres based in Serbia, Croatia and Bosnia and Herzegovina. In 2004, the Humanitarian Law Center (Serbia), Documenta (Croatia) and the Research and Documentation Center (Bosnia and Herzegovina) formed a coalition in order to create a record of all

337 S. BASIC, “Bosnian Society on the path of Justice, Truth and Reconciliation”, in Martina Fischer (ed.) Peace Building and Civil Society in Bosnia and Herzegovina. Ten Years after Dayton, Münster: Lit. Verlag, 2006, p. 372. 338 Ibid., p. 378.

victims of the Yugoslav wars339. Their “Human Losses Project” aimed at preventing historical revisionism and helping victims as well as civil society at large to resist political manipulation of the past. The coalition also advocated for a regional approach to transitional justice in the Western Balkans. At the First Regional Forum on Transitional Justice held in Sarajevo in May 2006, the coalition launched a joint initiative to establish a Regional Commission tasked with reconstructing the facts about all victims of war crimes and other gross human rights violations committed on the territory of the former Yugoslavia from 1991 to 2001. A number of different stakeholders (e.g. women, youth, artists, media, human rights NGOs, victims, associations of victims and associations of war veterans) participated in a broad regional consultation process which took place between May 2006 and October 2008. In the meantime, two additional forums were held in Zagreb and Belgrade. At the Fourth Regional Forum on Transitional Justice held in Priština in October 2008, more than 100 organizations (e.g. human rights NGOs, media associations, victim associations, associations of citizens and other civil society groups from across the regions) and individuals came together to form the regional Coalition for RECOM340. The following phases have been characterized by a growing level of complexity, also given the attempt to gain the support of State institutions. In 2011, the Coalition for RECOM launched a campaign and collected a total of 500,000 signatures (out of the planned 1 million) in favour of the Initiative. In the following months, copies of the petitions were

339 INTERNATIONAL CENTRE FOR TRANSITIONAL JUSTICE, Transitional Justice in the Former Yugoslavia, p. 2. 340 For a deeper insight into the development of the RECOM Initiative described in this chapter, please consult Coalition for RECOM, Process RECOM: May 2006 – October 2011, Belgrade: Humanitarian Law Center, 2011.


111

handed over to the Presidents of Croatia, Montenegro, Macedonia and Kosovo, to the Presidency of Bosnia and Herzegovina as well as to the former Serbian President Boris Tadić. In addition, the Initiative gained the support of a number of foreign diplomats and State representatives341. On 26 March 2011, the Coalition for RECOM approved a draft Statute which defines mandate, timeframe, objectives, competencies and powers of the Regional Commission as well as the obligations of State institutions towards it342. The draft Statute also provides definitions for “civilians”, “combatants” and “victims” (ex art. 1) in order to avoid politicized interpretation of these terms. However, the RECOM Initiative has not been immune to criticism343. As Damian Etone points out, it certainly still faces a number of challenges that might undermine its successful outcome344. First, the RECOM Statute seems to be overly ambitious in terms of expected results and timeframe. In fact, investigating crimes that occurred over a decade might take more than the expected three years (ex art. 3.1 of the Statute). This holds particularly true if States obstruct the work of the Commission or fail to accomplish their financial obligations towards it. Second, the RECOM Statute proposes that the Commission shall ensure reparations to victims, while it is at the discretion of the States whether or not to abide by the recommendations of the Commission (as set out by art. 47 of the Statute). Therefore, the risk that victims’ 341 Further information on the institutional support gained by the initiative for RECOM is available at: http://www.zarekom.org/press/Institutions-Support/index.en.html. 342 See: RECOM STATUTE, Proposed RECOM Statute adopted at the Coalition for RECOM Assembly Meeting, 26 March 2011. 343 Further information on the criticism directed at the RECOM Initiative is available at: http://www.zarekom.org/press/Criticism-of-RECOM-Initiative/index.en.html. 344 D. ETONE, The prospects and potential advantages of a regional truth-seeking mechanism in the Western Balkan Region, University of Wales, Bangor (UK), 2014, pp. 5-7.

expectations and needs might be eventually left unaddressed is likely. Third, the RECOM Initiative has not yet managed to gain the full support of the media. In the past years, it has been targeted with harsh critiques that have always been dismissed as ad hominem attacks by its advocates. This circumstance reiterates the importance of the media in shaping public opinions and how crucial it might be for the success of the RECOM Initiative to gain their support. In addition, some criticism has arisen even from civil society. Izabela Kisić reports that civil society representatives have questioned the RECOM Coalition’s regional approach to transitional justice, which seems inadequate to investigate the wider context, causes and perpetrators of the war in former Yugoslavia. They argue that by overlooking the policy at the origin of such gross human rights violations and war crimes, the RECOM statute is virtually granting amnesty to the State, institutions and political as well as intellectual élites of Serbia345. To conclude on a more positive note, what would the Regional Commission be able to do had it been successfully established? Inter alia, it would establish facts regarding war crimes and other gross violations of human rights committed on the territory of the former Yugoslavia between 1 January 1991 and 31 December 2001; it would provide an account of victims, combatants and missing persons; acknowledge the status and rights of victims; hold public hearings and thematic sessions; compile a final report with findings and recommendations; suggest reparations measures to the States; and it would make archive and database materials (except for classified ones) available to the

345 I. KISIĆ, The Core Elements at the First Level – Truth, Reconciliation and Compensation, Belgrade: Helsinki Committee for Human Rights in Serbia, 2013, p. 59.

http://www.zarekom.org/press/Institutions-Support/index.en.html

http://www.zarekom.org/press/Institutions-Support/index.en.html

http://www.zarekom.org/press/Criticism-of-RECOM-Initiative/index.en.html

http://www.zarekom.org/press/Criticism-of-RECOM-Initiative/index.en.html


112

States and the wider public upon the expiry of its mandate346. Conclusions Dealing with a legacy of gross violations of human rights and war crimes is common feature to post-conflict societies. Yet strategies to address this legacy may vary greatly depending on the specific context and priorities at stake. In Bosnia and Herzegovina, for example, dealing with the past at regional level has occurred primarily in the courtrooms of the ICTY. The need to make victims’ voices heard and their rights acknowledged is nevertheless present in the country as well as in the region, and it is a driving force towards the establishment of a different forum to deal with the past: a truth commission. In this respect, the RECOM Initiative is a good case in point. Despite criticism and many challenges ahead, the RECOM Initiative seems to be well-equipped to succeed where other official and non-official truth-telling initiatives have failed in the past. First, because the local ownership of this initiative provides it with legitimacy and support from wide segments of the population. Second, because there is a clear understanding of the fact that not only popular but also institutional support is needed in order to proceed further. Finally, because this initiative addresses the current lack of a common and non-contradictory narrative of the past in the region as well as within Bosnia and Herzegovina. Although we have already explored the root causes of this phenomenon, it is important to stress once more the role that a Regional Commission might play in this respect. In the wider process of dealing with the past, truth-telling is one of many mechanisms of transitional justice such as criminal accountability, memory work, reparations and institutional reform. Yet it is a fundamental one, since truth can be

346 See: RECOM STATUTE, Proposed RECOM Statute adopted at the Coalition for RECOM Assembly Meeting, 26 March 2011.

regarded as both a prerequisite and a complement to justice. Should RECOM be successfully established, it will contribute to cast a light on the violent past and empower victims to claim for their rights. Its establishment alone is obviously not a precondition for guaranteed results. However, RECOM will provide victims with a forum to make their voices heard and their rights acknowledged, it will represent a platform to build a common and non-contradictory narrative of the past and perhaps it will foster some form of healing at personal and societal level. In this respect, RECOM could be considered a step forward on the difficult path leading to sustainable peace, democracy, the rule of law and ultimately, reconciliation. As there is no sustainable peace if a shared understanding of the past is not fostered and the risk of reoccurrence eradicated; no democracy if the most vulnerable category of citizens is not entitled to the full enjoyment of their rights to truth and reparations; no rule of law without justice; and, ultimately, no reconciliation if not all mechanisms of transitional justice are fully implemented. In fact, as Marijana Toma has wisely pointed out: “transitional justice is not a ‘menu’ where you can choose and pick what you want. The only thing you can compromise about is the sequencing of its mechanisms”347. .

347 M. TOMA, Centre for Humanitarian Law Belgrade, Lectures on: “Transitional Justice Mechanisms: Successes and Failures in SEE”, held at the 2014 International Summer School Sarajevo on 21-22 July 2014.

[113]

BIBLIOGRAPHY

AKMAN B.H., “Tribunal vs. Truth: ICTY and TRC in Case of the Former Yugoslavia”, HUMSEC Journal, Issue 2, 2014; Available at: http://www.humsec.eu/cms/index.php?id=356 [accessed September 02, 2014]. AMATI E., CACCAMO V., COSTI M., FRONZA E., VALLINI A., Introduzione al diritto penale internazionale, Milano: Giuffrè Editore, 2010.

BASIC S., “Bosnian Society on the path of Justice, Truth and Reconciliation”, in Martina Fischer (ed.) Peace Building and Civil Society in Bosnia and Herzegovina. Ten Years after Dayton, Münster: Lit. Verlag, 2006, pp. 357-386. CASSESE A., International Criminal Law, New York: Oxford University Press, 2008. COALITION FOR RECOM, Process RECOM: May 2006 – October 2011, Belgrade: Humanitarian Law Centre, 2011. DALY E., SARKIN J., Reconciliation in Divided Societies: Finding Common Ground, Philadelphia: University of Pennsylvania Press, 2006. ETONE D., The prospects and potential advantages of a regional truth-seeking mechanism in the Western Balkan Region, University of Wales, Bangor (UK), 2014; Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2492934 [accessed September 12, 2014]. INTERNATIONAL CENTRE FOR TRANSITIONAL JUSTICE, Article: “Truth and Memory”, 2014; Available at: http://www.ictj.org/fr/node/53 [accessed September 12, 2014]. INTERNATIONAL CENTRE FOR TRANSITIONAL JUSTICE, Fact Sheet: “Transitional Justice in the Former Yugoslavia”, 2009; Available at: http://ictj.org/publication/transitional-justice-former-yugoslavia [accessed September 12, 2014]. INTERNATIONAL CENTRE FOR TRANSITIONAL JUSTICE, Program Report: “Truth and Memory”, 2014; Available at: http://www.ictj.org/news/ictj-program-report-truth-and-memory [accessed September 12, 2014]. INTERNATIONAL CENTRE FOR TRANSITIONAL JUSTICE, Report: “Challenging the conventional: Can Truth Commissions Strengthen Peace Processes?”, 2014; Available at: http://www.ictj.org/sites/default/files/ICTJ-Report-KAF-TruthCommPeace-2014.pdf [accessed September 12, 2014]. KISIĆ I., The Core Elements at the First Level – Truth, Reconciliation and Compensation, Belgrade: Helsinki Committee for Human Rights in Serbia, 2013; Available at: http://www.bmlv.gv.at/pdf_pool/publikationen/transitional_justice_sr_11_2013_05_i_kisic.pdf [accessed August 25, 2014].

MINOR E., “ORG in Conversation: Mirsad Tokača and truth-seeking, truth-telling and truth-keeping in Bosnia”, 1 May 2011; Available at: http://www.oxfordresearchgroup.org.uk/publications/other_media/org_conversation_truth_seeking_truth_telling_and_truth_keeping_bosnia [accessed August 18, 2014]. ORENTLICHER D., Report of Diane Orentlicher, independent expert to update the Set of principles to combat impunity - Updated Set of principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 2005; Available at: http://ap.ohchr.org/documents/alldocs.aspx?doc_id=10800 [accessed August 16, 2014]. PETRIČUŠIĆ A., CYRIL BLONDEL C., “Introduction - Reconciliation in the Western Balkans: New Perspectives and Proposals”, in Journal of Ethnopolitics and Minority Issues in Europe, Vol. 11, No. 4, 2012, 1-6; Available at: http://www.ecmi.de/fileadmin/downloads/publications/JEMIE/2012/Petricusic.pdf [accessed August 18, 2014]. RECOM INITIATIVE, !Voice, Issues 1/2011 – 18/2014; Available at: http://zarekom.org/RECOM-Initiative-Voice/index.en.html. [accessed September 02, 2014].

http://www.humsec.eu/cms/index.php?id=356

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2492934

http://www.ictj.org/fr/node/53

http://ictj.org/publication/transitional-justice-former-yugoslavia

http://www.ictj.org/news/ictj-program-report-truth-and-memory

http://www.ictj.org/news/ictj-program-report-truth-and-memory

http://www.ictj.org/sites/default/files/ICTJ-Report-KAF-TruthCommPeace-2014.pdf

http://www.bmlv.gv.at/pdf_pool/publikationen/transitional_justice_sr_11_2013_05_i_kisic.pdf

http://www.bmlv.gv.at/pdf_pool/publikationen/transitional_justice_sr_11_2013_05_i_kisic.pdf

http://www.oxfordresearchgroup.org.uk/publications/other_media/org_conversation_truth_seeking_truth_telling_and_truth_keeping_bosnia

http://www.oxfordresearchgroup.org.uk/publications/other_media/org_conversation_truth_seeking_truth_telling_and_truth_keeping_bosnia

http://ap.ohchr.org/documents/alldocs.aspx?doc_id=10800

http://www.ecmi.de/fileadmin/downloads/publications/JEMIE/2012/Petricusic.pdf

http://zarekom.org/RECOM-Initiative-Voice/index.en.html


114

RECOM STATUTE, Proposed RECOM Statute adopted at the Coalition for RECOM Assembly Meeting, 26 March 2011. Available from: http://www.zarekom.org/documents/Proposed-RECOM-Statute.en.html [accessed September 11, 2014]. SIMPSON G., HODZIC E., BICKFORD L., “Looking back, looking forward”: promoting dialogue through truth-seeking in Bosnia-Herzegovina, Sarajevo: UNDP, 2012. STOJANOVSKA M., “RECOM Initiative aims at confronting region’s past”, in South East European Times, Skopje, 16 May 2011; Available at: http://www.setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/articles/2011/05/16/reportage-01 [accessed September 12, 2014]. TOMA M., Centre for Humanitarian Law Belgrade, Lectures on: “Transitional Justice Mechanisms: Successes and Failures in SEE”, held at the 2014 International Summer School Sarajevo on 21-22 July 2014. TUTU D., “Truth and Reconciliation”, in Greater Good: the Science of Meaningful Life, Online journal, 1 September 2004; Available at: http://greatergood.berkeley.edu/article/item/truth_and_reconciliation [accessed September 07, 2014]. VON HIRSCH A., ROBERTS J., BOTTOMS A.E., ROACH K., SCHIFF M., Restorative Justice & Criminal Justice: Competing or Reconcilable Paradigms?, Portland: Hart Publishing, 2003.

http://www.zarekom.org/documents/Proposed-RECOM-Statute.en.html

http://www.setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/articles/2011/05/16/reportage-01

http://www.setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/articles/2011/05/16/reportage-01

http://greatergood.berkeley.edu/article/item/truth_and_reconciliation


115


116


117

Forgotten Victims: Male Survivors of Sexual Abuse in the Aftermath of

Conflict in Bosnia and Herzegovina

By Anna Gopsill*

ABSTRACT

During the wars in the former Yugoslavia in the 1990s, sexual assault was a widespread phenomenon. The sexual abuse and rape of women has been recognised as being perpetrated on a systematic, genocidal scale. Alongside this, sexual assault of men was widely perpetrated in detention centres and concentration camps but is much less recognised or acknowledged than assault against women. The International Criminal Tribunal for the Former Yugoslavia (ICTY) directly addressed the sexual assault of both men and women and in particular focused on the question of who was responsible for the perpetration of the abuse. This essay examines the treatment of the sexual assault of men at the ICTY and the provisions in place for male survivors of sexual abuse within the region of the former Yugoslavia.

* Anna Gopsill holds an MA degree from the University of St Andrews in Modern History and received an MA in Holocaust and Genocide Studies from the University of Amsterdam in 2014. Her academic focus has been on genocide and ethnic cleansing in the former Yugoslavia, with a specific focus on the history of sexual violence during conflict and how sexual violence was addressed at international criminal tribunals. Email: [email protected]


118

Introduction to Sexual Abuse during the Conflict in Bosnia and Herzegovina Sexual assault and rape have been recognised, both in historical discussion and contemporary analysis as a calculated and systematic aspect of the war and accompanying ethnic cleansing within the Former Yugoslavia. The International Criminal Tribunal for the Former Yugoslavia (ICTY) termed the period of war in Bosnia as a “sexual war”348 symbolising the widespread and unprecedented nature of the sexual abuse. In response to the prevalence of sexual violence within the former Yugoslavia, the ICTY was the first international criminal tribunal to list rape as a crime against humanity and prosecute it, establishing a precedent for future international tribunals. One critical development implemented by the ICTY was the introduction of a genderless mandate regarding sexual assault, which meant that alleged perpetrators could be indicted and charged for crimes of sexual violence committed against either men or women. This was a landmark ruling in international criminal justice; the move equated men and women and deconstructed the gender divide in the concept of victimhood, dispelling the notion of the male perpetrator and female victim. During the war in Bosnia and Herzegovina, rape and sexual assault were perpetrated as a systematic weapon of war. The abuse was targeted in a calculated way against women of a defined ethnic or religious group with the aim of detaining the women and raping them until they became pregnant.349 This formed a coherent policy of “genocidal rape”, which is defined by Beverly Allen350 348 ‘Sexual Violence and the Triumph of Justice’ ICTY New Media Documentary, 2012 http://www.youtube.com/watch?v=HZ4EM6iiq0k 349 Todd A Salzman, “Rape Camps as a Means of Ethnic Cleansing: Religious, Cultural and Ethical Responses to Rape Victims in the Former Yugoslavia,” Human Rights Quarterly 2, no.2 (May 1998):349. 350 Beverly Allen is a professor at Syracuse University, she acted as consultant to the ICTY after

in Rape Warfare: The Hidden Genocide in Bosnia-Hercegovina and Croatia as “a military policy of rape for the purpose of genocide”.351 During the war in Bosnia, rape and sexual assault were coupled with intense sexual intimidation, and public attacks were perpetrated alongside secret camps, torture centres and “rape houses”.352 The main perpetrators were the Bosnian Serb military who attacked the Bosnian Muslim women in a systematic assault motivated by religious and ethnic identity.353 The total number of women sexually assaulted and raped during the years of the Bosnian war remains unknown, however, estimates usually vary between 20 000 and 50 000 women.354 Allegations of mass violence and sexual abuse began to emerge from Bosnia and Herzegovina in 1992 and in direct response, the UN Security Council established the UN Commission of Experts to investigate and verify these reports. According to their final report, published in 1994 while the conflict was ongoing, there were 162 detention centres in the region of the former Yugoslavia in which both men and women were detained and sexually abused.355 This was the first report that spoke to the large number of victims of sexual assault and recognised the widespread perpetration of sexual violence within Bosnia.

writing her investigative book examining rape in the Balkans. 351 Beverly Allen. Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina. (Minneapolis: University of Minnesota Press, 1996), 62. 352 Salzman ,“Rape Camps as a Means of Ethnic Cleansing,” 358. 353 Salzman, “Rape Camps as a Means of Ethnic Cleansing,” 349. 354 Ruth Seifert, “War and Rape: A Preliminary Analysis,” in Mass Rape: The War Against Women in Bosnia-Herzegovina ,Ed. Alexandra Stiglmayer (Minneapolis: University of Minnesota Press, 1994), 58 355 United Nations Security Council, Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)or ‘The Bassiouni Report,’ Volume V, Annexes IX-XIII United Nations Security Council, May 2, 1994: 7.

http://www.youtube.com/watch?v=HZ4EM6iiq0k


119

In contemporary analysis of the conflict, the sexual assault of women in the region has been widely addressed. The sexual abuse of men, however, is a phenomenon that has not received the same attention but was also prevalent during the conflict. The abuse was predominantly perpetrated in camps and detention centres throughout the region and was often a form of highly personal violence incorporated into a regime of torture. According to a study carried out by the UN Population Fund in 2002 it is estimated that of 6000 detention centre and prison camp inmates in the Sarajevo Canton, eighty percent of men had been raped or sexually assaulted, predominantly through severe genital mutilation and forced incestuous acts.356 This report speaks to the widespread nature of the sexual abuse of men in the region. The typology of the abuse perpetrated was varied and the sexual assault of men was not restricted to penetrative rape; rather, castration, genital mutilation, incestuous acts, forced fellatio and psychosexual torture were commonly perpetrated forms of sexual assault incorporated into a systematic and efficient regime of torture within detention centres. The prevailing intention behind the sexual assault of men perpetrated in Bosnia and Herzegovina was inherently different to that of the rape and sexual abuse of women. Unlike with the abuse of women, the sexual assault of men was not perpetrated with a genocidal intent; rather, men were predominantly sexually assaulted during a regime of torture, with the intention of humiliating and emasculating both the individual and the enemy group. Demoralisation and destruction of the enemy on an individual and group level is often a key aim during war, and sexual violence perpetrated 356 United Nations Population Fund The Impact of Conflict on Women and Girl: A UNFPA Strategy for Gender Mainstreaming in Areas of Conflict and Reconstruction cited in Lara Stemple “Male Rape and Human Rights” Hastings Law Journal 60 p.614

against men fulfils this aim. The abuse also destroys the patriarchal structure of society as men are often left emasculated or ‘feminised’ by the nature of the abuse and the fact that it is often perceived as a ‘female’ crime. Thus, men who are abused are often excluded and ostracised from their families, friends and communities.357 While the reasons for the lack of acknowledgement and discussion of the sexual abuse of men are complicated, they are predominantly due to that the fact that sexually assaulted men often enter a conspiracy of silence and do not speak of the torture perpetrated against them.358 This leads to a lack of acknowledgement in the international academic, political and NGO spheres of the nature and prevalence of the abuse perpetrated. The International Criminal Tribunal for the Former Yugoslavia and Male Sexual Assault To date, there is no internationally accepted or recognised definition of sexual violence within international humanitarian law. Instead, sexual violence and assault are defined on an ad-hoc basis either case-by-case and by temporary tribunals or are encompassed into another category of war crimes or ‘crimes against humanity’. This lack of definition causes a stumbling block for ad-hoc tribunals, as each tribunal must first define the parameters of sexual assault in their own terms. The ICTY followed the definition outlined by its sister tribunal, the International Criminal Tribunal for Rwanda (ICTR). Rape and sexual assault were defined by the ICTR in the case of the Prosecutor v. Jean-Paul Akayesu, 1998 as: Physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is 357 Mladen Lancar, Neven Heningsberg and Pero Hrabac “Mental Health Consequences in Men Exposed to Sexual Abuse” Journal of Interpersonal Violence (July 2009) 358 Ibid


120

considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive. This act must be committed: (a) as part of a widespread or systematic attack; (b) on a civilian population; (c) on certain catalogued discriminatory grounds, namely: national, political, racial or religious grounds359 While this is an extremely useful definition, it only addresses rape and sexual assault on a mass or systematic scale and does not account for acts committed against an individual victim by an individual perpetrator. In 1992, the UN Commission of Experts attempted to define sexual assault within the Bosnian context. They define sexual assault as: …a crime of violence of a sexual nature against the person. This characteristic of sexual violence also applies to other forms of sexual assault against women, men and children when the activities are performed under coercion or threat of force and include sexual mutilation360 The above definition is extremely broad definition of rape and sexual abuse as it does not outline the parameters of “violence of a sexual nature”. However, in the absence of a more cogent definition it was adopted as the working definition of sexual assault by the UN Commission of Experts. Currently, the majority of discourse regarding the sexual abuse of men within conflict relies on gender-neutral documents that address torture and civil and political rights, such as the UN Convention on Torture or the Geneva

359 Jennifer L Green, “Uncovering Collective Rape: A Comparative Study of Political Sexual Violence,” International Journal of Sociology 34,1 (Spring 2004) ,100. 360 United Nations Security Council, Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)or ‘The Bassiouni Report,’ United Nations Security Council, May 2, 1994, 27.

Conventions.361 However, the UN Commission of Experts acknowledged the widespread sexual violence perpetrated against men and by doing so, was the first international commission to publicly acknowledge the systematic use of sexual violence against men in the Bosnian context: Violent crimes of a homosexual nature are not explicitly mentioned in international humanitarian law, but protection against rape and other sexual assaults is also applicable to men on the basis of equality and non-discrimination.362 This statement was an extremely important development within international law and in the context of wars in Bosnia and Herzegovina. The ICTY followed this legacy and directly addressed the sexual assault of men in a number of cases, including the Tadić case and the Čelebići case (The Prosecutor v Mucić et al), both of which will be used as case studies within this article. In both the Tadić and Čelebići cases, the sexual abuse of men within detention centres formed a key component of the indictments and subsequent trials. The two trials provide an interesting comparison between the concepts of Joint Criminal Enterprise (JCE) and Command Responsibility and also the distinction that can be made between them in the setting of detention centres, particularly with regard to sexual assault. In 1999, Duško Tadić was ultimately found guilty of torture and acts of sexual violence in his capacity as camp commander of Omarska camp.363 In contrast, the Čelebići case indicted four individuals for torture and sexual assault perpetrated at Čelebići camp. The indictment intertwined the dual concepts 361 Lara Stemple “Male Rape and Human Rights,”Hastings Law Journal 60 (2009) 637. 362 United Nations Security Council, Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)or ‘The Bassiouni Report,’ United Nations Security Council, May 2, 1994, 75. 363 Prosecutor v. Duško Tadić, “Prijedor”, Sentencing Judgement, Case No. IT-94-1-I, 11 November 1999 p.10


121

of JCE and command responsibility and also addressed the command structure of the camp and levels of responsibility for the sexual assault of the detainees. The Statute of the ICTY The ICTY released their initial statute on May 25, 1993. The statute states that the ICTY will indict and charge crimes of genocide, complicity in genocide, genocidal activity and crimes against humanity.364 Article seven of the ICTY statute explicitly addresses responsibility and complicity in genocide and war crimes, stating: Article 7 Individual Criminal Responsibility 1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. 2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. 3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if

364 United Nations: ICTY “Updated Statute of the International Criminal Tribunal for the Former Yugoslavia” UN, September 2009 p.6

the International Tribunal determines that justice so requires365 In practical terms, this article states that the direct perpetrator of a crime is individually responsible for the act and the person who orchestrated or organised a crime, or contributed to conditions in which a crime may be committed, is criminally responsible for the act. Article seven is important as it means that even in situations in which the camp commander was not directly involved in the perpetration of a crime, they can still be held accountable for the crime in accordance with the ICTY Statute. Camp commanders are viewed to be in control of the conditions in the camp they are responsible for and the conditions that led to torture and death of inmates. Thus, the camp commanders are ultimately responsible for the crimes perpetrated in the camps under their control. The Čelebići Case: Torture and Abuse Perpetrated by Čelebići Camp Guards The Čelebići case (The Prosecutor v Mucić et al)366 addressed the concept of command responsibility in a large amount of detail. The trial examined acts of torture perpetrated at the Muslim run Čelebići camp located in central Bosnia and is directed at four men involved in the organisation of the camp: Zdravko Mucić, Hazim Delić, Zejnil Delalić and Esad Landzō, who were each responsible for the camp for different periods of time during its operation. The judge in the Trial Judgement stated: …a superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates. This information need not be such that it by itself was sufficient to compel the

365 United Nations: ICTY “Updated Statute of the International Criminal Tribunal for the Former Yugoslavia” UN, September 2009 p.6 366 Prosecutor v. Mucić et al, “Čelebići”, Trial Judgement, Case No. IT-96-21, 16 November 1998 p.146


122

conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, or, in other words, that it indicated the need for additional investigation in order to ascertain whether offences were being committed or about to be committed by his subordinates367 The above statement emphasises one of the key principles of the ICTY: in order for a commander to be held responsible for the actions of his subordinates, he needs to be aware of information of the alleged crimes. Consequently, if the commander knows that crimes are being committed by his subordinates and does not act on this information or condone the acts, he is considered to be complicit in the crime and responsible for the acts. In turn, this means that in each case of violence and torture within detention centres is the ultimate responsibility of the camp commander as they are in control of the camp and therefore, ought to know what is being perpetrated in the camps. Central to the case were allegations of the sexual assault of men, particularly incidents of forced fellatio between brothers and other degrading sexual acts that were incorporated into a regime of torture. The judgement in the Čelebići case clearly reflects the command hierarchy that was operative within the camp. Zdravko Mucić was the commander of Čelebići from approximately May 1992 to November 1992 and was sentenced to nine years imprisonment for his part in the maintenance of inhumane conditions for the Bosnian Serb prisoners. Hazim Delić was the deputy commander of Čelebići and then became commander of the camp from November 1992 to December 1992; he was sentenced to eighteen years imprisonment for both his own actions and the actions of his subordinates.368 Both Mucić and Delić were ultimately

367 Ibid p.146 368 Prosecutor v. Mucic et al “Čelebići Camp”, Judgement Summary, Case No. IT-96-21, 21 February 2001

found guilty of the crimes perpetrated in Čelebići as they were believed to have known about the actions perpetrated by their subordinates and should have intervened to prevent the acts. According to the indictment in the case, Mucić and Delić: …knew or had reason to know that persons in positions of subordinate authority to them were about to commit those acts resulting in the inhumane conditions, or had already committed those acts, and failed wither to take the necessary and reasonable steps to prevent those acts or to punish the perpetrators after the acts had been committed369 The judgement echoed the recognition in the indictment that both Zdravko Mucić and Hazim Delić were aware of the acts committed and took no move to prevent the perpetration of crimes. In accordance with the statute of the ICTY, Mucić and Delić were therefore responsible for the acts perpetrated under their command. Duško Tadić: Torture and Abuse of Men and Women in Omarska Camp The Tadić case was the first case addressed at the ICTY and opened on May 7, 1995. The case focused on his time as camp commander of Omarska camp where Tadić allegedly detained and abused both men and women. During the trial process, Tadić was identified as camp commander and according to witness and survivor testimony was often present during the perpetration of abuse but was not usually the main perpetrator of the torture and violence. The transcript from the first day of the trial states: The evidence will show that he was permitted to enter camps almost at random and to carry out assaults, murders, rapes and sexual assaults on the prisoners that he had selected. It seems that he was also permitted to bring his accomplices with him in order to assist him with his rampage of violence

369 Prosecutor v. Mucic et al, “Čelebići Camp”, Initial Indictment, Case No. IT-96-21, 19 March 1996, 2


123

and terror. He, along with many others who performed these tasks, were seen with lists of names in their hands, which lists they consulted before calling out their victims especially selected for torture.370 The above extract demonstrates the systematic nature of the perpetration of torture and that specific men were targeted to be tortured each day. It is acknowledged that Tadić was not the sole perpetrator and instead was one member of a large group of individual perpetrators. Tadić, however, was recognised as being in a commanding role within the camp and therefore, was considered the most responsible for the acts perpetrated as he was the sole person who could have condemned or prevented the abuse. Military Responsibility Within a number of trials carried out at the ICTY there are mentions of the perpetrators of abuse within detention centres wearing police and military uniforms. The wearing of uniforms is indicative of an organised and systematic nature to the abuse as it implies that the police and military were directly involved in the perpetration of the abuse, and in turn that the abuse was condoned by upper authority. A key example of this is found in the Tadić case where military uniforms were mentioned a number of times during the trial process. The following extract comes from the prosecution testimony presented by Miss Hollis: On 18th June 1992 the accused went to Omarska camp with a group of Serbs dressed in camouflage uniforms. They were there to call out the non-Serb men who were policemen or well-known members of the community in opstina Prijedor, in Kozarac371

370 Prosecutor v. Duško Tadić, “Prijedor”, Trial Transcript, Case No. IT-94-1-I, 07 May 1995) p.34 371 Prosecutor v. Duško Tadić, “Prijedor”, Trial Transcript, Case No. IT-94-1-I, 25 November 1996 p.8461

Sexual violence was also addressed in the cases of high-level perpetrators, such as Slobodan Milošević and although he denied that he had anything directly to do with the sexual assault, the perpetration of the abuse by military personnel implicated him in the activity as he was in control of the military. Another piece of evidence that speaks to the systematic nature of sexual assault was the form of abuse perpetrated. A large majority of men reported blunt instrument trauma to their genitals and genital mutilation as the dominant method of abuse within detention facilities. In 2009, a report entitled Mental Health Consequences in Men Exposed to Sexual Abuse During the War in Croatia and Bosnia was conducted by Mladen Lancar, Neven Heningsberg and Pero Hrabac372 their analysis of the abuse alludes to a systematic organisation of the torture and abuse perpetrated as the sexual abuse was similar between the camps. This is indicative of an unofficial link between the abuses in the camps, even if it is not explicitly systematic. The Role of Transitional Justice and Civil Society Organisations At present, and since the end of the war in Bosnia, there is very little in the way of a transitional justice process to aid the recovery of society and the individual in the aftermath of male sexual violence. A key problem is that there is a lack of recognition of the prevalence and impact of the sexual assault of men both in international law and in civil society. The sexual abuse of women has been widely acknowledged and recognised by international and domestic aid agencies, governments and NGOs, however, the sexual assault of men has been largely overlooked due to lack of resources, knowledge and witnesses. An Amnesty International report of March 2012 that addressed the long term legacy of rape perpetrated during the wars in Bosnia states “the organization believes…that research focusing on male survivors would

372 Lancar, Henigsberg and Hrabac, “Mental Health Consequences in Men Exposed to Sexual Abuse” 6


124

be of significant value”.373 Despite this acknowledgement, the focus of Amnesty International remains on the female victims and they do not have the resources to expand their efforts to incidences of male sexual violence. One of the few NGOs that directly address the sexual assault of men in its reports is the World Health Organisation (WHO). In 2000, the WHO released a guide for sexual health programme managers working in the field. The explicit intention of the guide, entitled Reproductive Health During Conflict and Displacement: A Guide for Programme Managers374 aimed to address technical issues related to reproductive health including, but not limited to, pregnancy and childbirth; protection of civilians from sexual abuse; incidences of HIV/AIDS and family planning. Within the document, the WHO, in an unprecedented move, discussed incidences of sexual violence against men: While some legal and social networks, however rudimentary, may exist for women and girls who have been sexually attacked, there is rarely anything comparable for male victims. In some countries, the legally defined crime of rape may only apply to women. Like women, men may experience profound humiliation, and they may also experience a sense of confusion about their sexuality. In addition, in societies where men are discouraged from talking about their emotions, they may find it even more difficult than women to acknowledge what has happened to them. For these reasons, it is suspected that the reported cases of sexual violence against males are a fraction of the true number of cases.375

373 Amnesty International, Old Crimes Same Suffering: No Justice for Survivors of Wartime Rape in North-East Bosnia and Herzegovina, Amnesty International, March 2012. 374 World Health Organisation, Reproductive Health During Conflict and Displacement: A Guide for Programme Managers, World Health Organisation, 2000, 111 375 Ibid, 111.

The WHO recognised the differences between the male and female experiences of rape, specifically with regard to the aftermath of sexual abuse. The report was one of the primary NGO reports to address sexual abuse against men with the explicit instruction to treat it equally to the sexual assault of women and girls. The document is a practical one, directly addressing how the sexual abuse of men should be treated by medical and support staff. It does not focus on a specific region, but rather, it broadens the discussion to be applicable to a number of different case studies. Following the precedent set by the WHO in their report, in 2002, the UN High Commission for Refugees (UNHCR), in partnership with the Refugee Law Project (RLP) released a document entitled Working With Men and Boy Survivors of Sexual and Gender-Based Violence in Forced Displacement.376 This was another practical document outlining the problems faced by international humanitarian organisations when addressing male sexual assault in warfare. The recognition that the experiences of male and female victims of sexual assault are inherently different is the predominant message through the documents and they collectively initiate the concept of male victimhood. Within the context of the former Yugoslavia, there is very little that has been done to address the prevalence and nature of the sexual abuse of men both during and in the aftermath of conflict. NGOS and civil organisations are not equipped to deal with the unique needs of sexually abused men. This is a huge oversight that is yet to be adequately addressed by civil society organisations and NGOS working to promote reconciliation and rehabilitation in the region.

376 United Nations High Commissioner for Refugees, Working with Men and Boy Survivors of Sexual and Gender-Based Violence in Forced Displacement, UNHCR, 2012.


125

Conclusion The ICTY were successful in addressing acts of sexual violence committed both by upper level perpetrators and organisers and by low level, individual perpetrators. The ICTY laid a precedent for future international tribunals by recognising that rape and sexual assault were not just perpetrated by men, against women. Rather, that men could also be victim of sexual assault and rape, the ICTY also recognised that the typology and intent of the abuse of men was inherently different to the sexual abuse of women. The recognition of the individuality of male victimhood is a development of paramount importance that is required both in international law and in civil society. In order for the sexual abuse of men to be adequately addressed in the aftermath of conflict, provision in both law and within civil society must be implemented to promote rehabilitation and reconciliation to enable the individual transition from victim to survivor. The focus on men as perpetrators and women as victims is a tautology ingrained into analysis of sexual assault in warfare. It alienates male victims of sexual assault through its denial of their victimhood and identity. Acceptance of men as potential victims of sexual assault is essential in developing the field and in addressing the concept of wartime rape as a whole. The notion of men as implausible victims of sexual assault has been prevalent since the first examinations of wartime and domestic rape. The UN High Commissioner for Refugees, in their 2012 document Working With Men and Boy Survivors of Sexual and Gender-Based Violence in Forced Displacement

recognised that “entrenched gender norms combined with cultural and religious taboos, and scarce services, make it very difficult for males to disclose that they are survivors of sexual violence”.377

377 United Nations High Commissioner for Refugees Working with Men and Boy Survivors of Sexual and

The International Criminal Tribunal for the former Yugoslavia took a huge step forward in addressing the concept of male victims of sexual violence and in breaking the barrier of impunity. This work must continue through the work of the International Criminal Courts and male sexual violence must be perceived as an act of which the consequences will be faced.

Gender-Based Violence in Forced Displacement UNHCR, 2012 p.4


126

BIBLIOGRAPHY

Allen, Beverley, Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina (Minneapolis: University of Minnesota Press, 1996)

Green, Jennifer L, - Uncovering Collective Rape: A Comparative Study of Political Sexual Violence, International Journal of Sociology, Spring 2004, Volume 34, Issue 1

Mladen Lancar, Nevin Heningsberg and Hrabac, - Mental Health Consequences in Men Exposed to Sexual Abuse During the War in Croatia and Bosnia Mudrovcic, Zeljka, - Sexual and Gender Based violence in Post-Conflict Regions: the Bosnia and Hercegovina Case, The Impact of Armed Conflict on Women and Girls: A Consultative Meeting on Mainstreaming Gender in Areas of conflict and Reconstruction, 2001, UNFPA Salzman, Todd A, - Rape Camps as a Means of Ethnic Cleanisng: Religious, Cultural and Ethical Responses to Rape Victims in the Former Yugoslavia, Human Rights Quarterly, May 1998, Volume 2, Issue 2, pp. Seifert, Ruth, - War and Rape: A Preliminary Analysis, The War Against Women in Bosnia-Herzegovina Ed. Alexandra Stigylmayer (Minneapolis: University of Minnesota Press, 1994) Stemple, Lara, - Male Rape and Human Rights, Hastings Law Journal

Media Sources ICTY New Media Documentary – Sexual Violence and the Triumph of Justice, 2012

http://www.youtube.com/watch?v=HZ4EM6iiq0k Cited Case Law Prosecutor v. Mucić et al, “Čelebići”, Initial Indictment, Case No. IT-96-21, 19 March 1996 Prosecutor v. Mucić et al, “Čelebići”, Trial Judgement, Case No. IT-96-21, 16 November

1998 Prosecutor v. Mucić et al, “Čelebići”, Judgement Summary, Case No. IT-96-21, 21 February 2001 Prosecutor v. Duško Tadić, “Prijedor”, Trial Transcript, Case No. IT-94-1-I, 07 May 1995 Prosecutor v. Duško Tadić, “Prijedor”, Trial Transcript, Case No. IT-94-1-I, 25November 1996 Prosecutor v. Duško Tadić, “Prijedor”, Sentencing Judgement, Case No. IT-94-1-I, 11 November 1999

Cited International Organisations’ Documents Amnesty International, - Old Crimes Same Suffering: No Justice for Survivors of

Wartime Rape in North-East Bosnia and Herzegovina, March 2012 United Nations: ICTY, - Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, September 2009 United Nations High Commissioner for Refugees, - Working with Men and Boy Survivors of Sexual and Gender-Based Violence in Forced Displacement, 2012 United Nations Security Council, - Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1994), Volume V, Annexes IX-XIII United Nations Security Council, - Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, (September 2009) World Health Organisation, - Reproductive Health During Conflict and Displacement: A Guide for Programme Managers, 2000

http://www.youtube.com/watch?v=HZ4EM6iiq0k


127


128


129

Victims of rape in Rwanda and Bosnia and Herzegovina and Transitional

Justice By Srđan Vidačković *

ABSTRACT

This paper will try to answer on how transitional justice mechanisms address an issue of rape victims in these two countries. In order to accomplish its aim the paper will be divided in four main parts. First part will be dedicated to the crime of rape during the conflict in Bosnia and Herzegovina. Then, it will proceed with the overview and analysis of transitional justice mechanisms response to the needs of victims of rape. The same pattern will be used for the next two chapters that are related to Rwanda and crime of rape. It would be essential to examine transitional justice mechanisms used to help victims of rape, how those people are integrated into society, how they face trauma, fear, shame and influence of traditionally patriarchal societies and how effective transitional justice in healing their wounds is. Also, this would be a good chance to compare situation in which rape victims are in both countries and to compare used mechanisms. This paper will give an overview and analysis of transitional justice mechanisms used in BiH and Rwanda aiming to show how two different countries are coping with the legacy of recent conflicts and which lessons could be learned. .

*Srđan Vidačković is a LL.M. candidate at Sarajevo School of Science and Technology and University of Buckingham. Before starting his LL.M. studies he earned LL.B in University of Sarajevo. Currently he is working in World Vision International Bosnia and Herzegovina on Roma related issues. His interests include international criminal law, humanitarian law, human rights, international public law and transitional justice


130

Chapter I - Crime of Rape in Bosnia and Herzegovina From the beginning of the war Bosnia and Herzegovina was a place in which severe and gross human rights violation were infringed. The most serious ones were committed against civilian population including different forms of sexual violence. "Rape was committed on a large scale by all parties to the conflict, although according to information available, the majority of victims were Bosnian Muslims."378 According to the evidences collected during the war, crime of rape was not just incidental but systematically organized. It was a part of a war strategy and it is often called as a weapon of war or spoils of war379. Most of the crimes of sexual violence and especially crime of rape, happened in the camps or during military attacks and perpetrated by members of organized military forces, police and paramilitary groups and even members of international peacekeeping forces. According to the Helsinki Watch Report from 1993 there was crime of rape happening across Bosnia and Herzegovina „in separate rape camps, in concentration camps, in people's homes and in facilities made appear as brothels“380 by all parties. Rape and other form of sexual violence were used as a part of systematic and wide abuses as well as a mean of ethnic cleansing. Unfortunately there are no reliable data about the number of rape victims during the war but estimated number is in between 20.000381and 50.000382.

378Mazowiecki’s Report, Bosnia-Herzegovina: “Rape and Sexual Abuse by Armed Forces”, 1993 379K.D.Askin, War Crimes Against Women: Prosecution in international War Crimes Tribunal 21, 33-34 (1997). 380Inger Skjelsbaek, Victims and Survivor: Narrated Social Identities of Women Who Experienced Rape During the War in Bosnia and Herzegovina, 16 Feminism & Psychology 373(2006) page 374. 381The Parliamentary Assembly of the Council of Europe 382BiH government

According to the report done by Bosnian Association of Women Victims of War there are 25000 victims of sexual violence.383 This big discrepancy is coming from the fact that victims were not able to report crimes of rape due to different facts, like the fear that their identity could be disclosed, active members of a local police were involved in rape, feel of shame, stigmatisation...Accordingly, there is a big chance that exact number of victims of sexual violence will never be finally determined. Rape and other forms of sexual violence causes mental (post-traumatic stress disorder, nightmares, loss of confidence, depression and suicidal tendencies, anxiety) and physical damages to the victims and many of those damages are long lasting. In analysis done by Physicians for Human rights, rape and other forms of sexual violence are contributing to terrorize civil population, displace population, destroy group bounds, contributing to the agenda of ethnic and cultural cleansing, destruction, and to humiliate and degrade victims, their families and communities.384 In order to illustrate the horror of rape and sexual violence we will briefly go through one of the most astonishing examples of organised and systematic rape committed in Foča (between April 1992 and February 1993), town in southern-east Bosnia, known for the rape camps established soon after Bosnian Serbs took over the town. Attack of Bosnian Serbs was launched in April with the aim to remove the non-Serb population from this area. Most of the Muslim population was removed and great number of them were captured and detained in local schools, local prison, and municipality buildings. Men and women were separated. In all these places 383Women Victims of War Information Phamflet (2010) 384Physicians for Human Rights, Rape as a Weapon of War: Accountability for Sexual Violence in Conflict, (2011) page 2.


131

conditions were terrible. Women and girls were exposed to constant physical and psychological torture including different forms of sexual violence and rape. They were held in several objects that have become known as rape camps in which every soldier had free access and were able to select the girl who they wanted to rape and exposed on other form of cruel and inhumane behaviour. It was not possible for these girls to reject and to resist because they were beaten in front of other women as an example. Muslim women and girls were also locked inside private houses where they were obliged to wash the dishes, clean the house, cook and were raped as well. Some of them were even sold to other soldiers. They have been subjected to daily rape and other kind of torture for months. "Within these rape camps, the frequency of the crimes and the number of soldiers who perpetrated them were both very high. Some of the witnesses stated that they had been sexually violated so many times that were unable to assess with accuracy the number of times they had been raped."385 The ground-breaking case related to systematic and organized rape and sexual violence committed in Foča was against Dragoljub Kunarac, Radomir Kovač and Zoran Vuković. The accused were convicted of rape, not just as a violation of laws or customs of war but also, as a crime against humanity, whose gravity comes just after the crime of genocide, and was the first of that kind before the ICTY. The Trial Chamber found that all of them had raped, tortured, sexually abused and enslaved several Muslim women in the area of Foča as a part of widespread and systematic attack aiming to displace Muslims from Foča. "They knew of the military conflicts in Foča region, because they participated as soldiers in different units. They knew that one of the main purposes of that campaign was to drive the Muslims out of the region. They knew that one way to achieve this was to terrorise the Muslim

385Kunarac at al, Trial Judgement, para. 35.

civilian population in a manner that would make it impossible for them ever to return. They also knew of the general pattern of crimes, especially of detaining women and girls in different locations where they would be raped. Dragoljub Kunarac was sentenced to 28, Radomir Kovač to 20 and Zoran Vuković to 12 years of imprisonment. Victims and witnesses were not satisfied with these sentences and considered them as too lenient. This case represents a step forward in treating rape during the armed conflicts. First of all it would not be accepted as an intrinsic part of war because it was clearly declared as a crime against humanity and may as well constitute torture and instrument of terror. Secondly, this case was just focused on crimes of sexual violence in the times of war. Also this was the first decision by which rape was classified as a crime against humanity. Also this decision led to the convictions for enslavement as a crime against humanity, which was until that time considered as an economic crime. Through Kunarac case and through Furundzija and Delalic et al. cases as well, ICTY has defined rape as an international law crime. By virtue of judgements in those cases crime of rape can be prosecuted as crime against humanity, war crime and as an act of genocide depending on the way that crime is committed. According to the ICTY data, more than seventy persons were charged for the crimes of sexual violence and almost thirty have been convicted so far. Chapter II–Transitional Justice Mechanisms as Answers to Crime of Rape in Bosnia and Herzegovina This part of the paper will try to find the relation in between crime of rape committed during the war and the goals of Transitional Justice like truth, justice, rule of law and reparations, used to heal the wounds of victims. When it comes to establishment of truth, justice and rule of law, we will focus on the work of War Crime Chamber of Bosnia and Herzegovina established in 2005.


132

In relation to International Criminal Tribunal for the former Yugoslavia (ICTY), we can say briefly that the work of this court has contributed a lot to development of international law and understanding and prosecution of crime of rape or sexual violence in general. The reasons for criticism lies in the fact that victims were not satisfied with the adjudicated judgement. Having in mind victims of rape and sexual violence the most common critics are related to very lenient sentences (no preventive character of punishments, many of them said that they testified for nothing), no reparation to victims, very bad experiences of victims who testified before the Court (no support after the completion of testimonies), no support measures for witnesses (lack of proper financial support). Truth, Justice and Rule of Law in Bosnia and Herzegovina As the mandate of the ICTY has been approaching to its end, jurisdiction for the prosecution of war crimes has been transferred to Bosnia and Herzegovina. The creation of the War Crime Chamber (WCC) was the result of ICTY Completion Strategy aiming to foster capacity of domestic court and judiciary system in BiH.386 Even though there is an established judicial system in BiH, impunity still prevails when it comes to crime of rape and other forms of sexual violence. Cases before the WCC can be transferred from ICTY, entity courts and from the State Prosecutors office. Transfer of jurisdiction from ICTY to WCC is followed in obligation for WCC to follow ICTY established standards. One of the problem for prosecuting crime of rape before WCC was that the definition of crime of rape or sexual violence in general, within the chapter XVII of the Criminal Code, not in line with international law. Definition of crime of sexual violence was

386Law on the Court of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, 29/00, 16/02, 24/02, 3/03, 37/03, 42/03, 4/04, 9/04, 35/04, 61/04.

connected with war crime or crime against humanity387. Other problem was that entity courts and Brčko District Criminal Code used SFRY Criminal Code which didn’t have any provision related to crimes against humanity and war crimes. All this has contributed to law prosecution of cases related to sexual violence. “The inconsistency with the definition of sexual violence and the decentralized legal system makes it easier for perpetrators to avoid prosecution for sexual violence crimes.”388 In sum “111 cases involving conflict-related sexual violence have been addressed by the criminal justice system in BiH”389 Until the end of 2013 Court of BiH has concluded 36 cases and confirmed indictments in 18 new cases. Within those 36 cases, 33 perpetrators have been convicted and 12 people acquitted. Having in mind a number of victims of war-related sexual violence, these numbers makes the victims frustrated and unsatisfied. In order to speed up trails related to crimes committed during the war, National Strategy for War Crime Cases Processing was adopted by Council of Ministers in 2008 with the main task to share the responsibility in between the State and entity courts. Despite of the great significance and contribution of the Strategy in solving war crime cases it has not influenced a prosecution of crime of sexual violence as expected. The main problem with entity courts prosecuting

387Definition of sexual violence according to the BiH Criminal Code according to Article 172: „coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a person close to him, to sexual intercourse or an equivalent sexual act (rape), sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity“. 388A.Muslija, The Forgotten Survivors: A Case Study on Access to Justice and Remedies for Victims of Sexual Violence in Bosnia and Herzegovina,2012, page 25. 389OSCE Mission to Bosnia and Herzegovina,Combating Impunity for Conflict-Related Sexual Violence in Bosnia and Herzegovina: Progress and Challenges, An analysis of criminal proceedings before the Court of Bosnia and Herzegovina between 2005 and 2013, February 2014, page 5.


133

war crime cases is related to the fact that all of them have been using Criminal Code of the former Socialist Federal Republic of Yugoslavia and that has serious consequences on prosecuting crime of rape and other form of sexual violence. One of them is that the same crime is treated and punished differently on the state and on entity levels. For example, the highest penalty that perpetrator can get before the entity court is 20 years while before the State Court is 45. This dualism is against international law. Also the capacity of entity courts and prosecutor is very questionable having in mind the question of fair and effective trials. Prosecutors are working with not sufficient resources (not even able to buy a tape recorder for recording testimonies...), they are not skilled enough to deal with complex war crime cases, there are no specialized investigators and that’s why prosecutors must work with the member of local police. This fact is very problematic because there was no lustration and many members of local police were directly or indirectly involved in crimes committed during the war or not involved at all but hide evidence or were involved in concealment of evidence. For the victims this situation is very discouraging since they have to give their testimonies before the people who were involved in crimes and above all they are mostly male policeman which makes it more difficult for victims to give their testimonies. In relation to protection of witnesses the situation is almost the same as for the witnesses before the ICTY. Due to the lack of proper protection and functional system of witness support, witnesses are very reluctant to testify. Because of their refusal to appear before the Court sometimes the Court imposed fines that make their situation even worse since many of them do not have any regular income. This is very problematic and unfair having in mind lack of state systematic support for this population in general and especially for those who are willing to testify. Most of the help for those people is coming from NGO sector. In

order to increase the number of prosecuted persons, State should think of sustainable economical and psychological support for witnesses in order for them to be prepared for testimonies and not to be manipulated by perpetrators. Additionally, successful testimonies and trials can help victims to heal better and faster but not to be re-traumatized in the place in which their sufferings and traumas should be recognized and punished. How important it is for victims to testify is obvious from this statement:” My biggest wish is that the case is prosecuted. That would be the moment of my great happiness! I cannot live normally until it happens. This person is guilty of all bad things that have happened in my life... He raped me... I want them to arrest him so that I could be at peace again... You know how it feels when you are just a kid and they take you away in front of your parents. It was so hard and I felt so ashamed...And every day it is worse and worse... I cannot erase that from my memory...Until they arrest them...”390 Witness support before the entity courts does not exist since only NGOs are providing necessary help. There are no any technical protection mechanisms like voice distortion or video link at any entity courts. Io order to succeed in prosecuting war crime cases state “should double their efforts to find financial resources and to improve the legal framework in order to increase the capacity of the entity courts to deal with war crimes cases. This should include ensuring the existence of the highest standards of witness protection and support”391. Reparations for Victims of Sexual Violence According to the General Assembly Resolution from 2005 entitled Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of 390Amnesty International interview with Aida, FBIH, March 2009. 391Amnesty International, Whose juatice? The Women of Bosnia and Herzegovina are still waiting,2009 page 35.


134

Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, states are obliged to provide support and reparations for victims of gross human rights abuses. In this part intention is to illustrate how Bosnia and Herzegovina has supported victims of rape through the measures of restitution, compensation, guarantees of non-repetition and satisfaction. Restitution Victims of rape and other forms of sexual violence suffered from other forms of human rights violations during the war, like forceful displacement and were illegally discharged from work. So, when talking about restitution in BiH, two most important measures are restitution of property and employment. Restitution of property was seen as a means of reconciliation and as a means of deletion of ethnic cleansing.392 Many of the victims of rape, who were forcibly expelled, enjoyed the status of Internally Displaced People (IDP). According to the entity laws as soon as the conditions for “safe and dignify” return are fulfilled IDP have to come back to their previous communities. This caused a lot of problems for victims of rape since they were afraid to come back, due to the fact that many perpetrators still lived there and some still exercised function in local police forces or in local government. Additionally, the issue of return was not just about the giving back the property, but was more complex than that. Agencies involved in returnee programs did not take care about these very important issues but focusing their work on assistance to men mostly. Restitution of employment was a crucial condition for safe, dignified and sustainable return for the victims of rape.

392H. Haider. “(Re)Imagining Coexistence: Striving for Sustainable Return, Reintegration and Reconciliation in Bosnia and Herzegovina”, International Journal of Transitional Justice, Vol. 3. 2009, p. 92.

We have two different approaches by entity governments. In Federation of Bosnia and Herzegovina (FBiH), civilian victims of war (victims of rape and other forms of sexual violence) are entitled to preferential treatment in employment and vocational trainings in order to make them more competitive on the labour market. Even though the law exist, it is not implemented due to the lack of financial resources. In Republic of Srpska these rights are not recognized. The crucial thing for this population would be that FBiH implement the law and in Republic of Srpska to change the existing law and enable victims of rape to successfully integrate into society. Compensation This issue is regulated differently in BiH entities but the common thing is that both laws discriminates women survivors of crimes of rape and other forms of sexual violence during the war. The status of rape victims in RS is regulated by the Law on the Protection of Civilian Victims of War. According to this law victims of rape are not recognized as separate category of victims. They are entitled to receive monthly payments in amount between 100 KM and 350 KM. In FBiH victims of rape are recognized as a special category of victims. Beside the monthly payment in amount of 563,00 KM they have priority in housing and employment. This leads to conclusion that victims of rape are treated unequally in entities. According to the United Nations Committee on Economic, Social and Cultural Rights (CESCR), women survivors are discriminated in comparison to war veterans when talking about benefits provided by state authorities. Committee has concluded “with deep concern the extent of the discrepancy between the significant budget allocations for financing the pensions of military victims of war and the comparatively low resources allocated to social protection [...]” for civilian victims of war”.393 This can be seen through the fact that for obtaining the status of war

393CESCR, Concluding Observations, para. 18.


135

veteran, 20% of bodily damage must be established, while for the civilian victims of war, 60% of bodily damage must be established in both entities. Situation is not better when it comes to compensation from perpetrators. First of all, victims are uncertain to whom to sue, perpetrator or state. And if decide to sue the state, the question is which entity to sue.394 Rehabilitation Bosnia and Herzegovina has a duty to provide different measures of rehabilitation to the victims of rape according to the UN Basic Principles and International Covenant on Economic, Social and Cultural Rights. Regardless of this, there is no systematic and organized medical or psychological assistance to the victims. In order to fulfil international standards above mentioned services should be available, accessible, and acceptable and be of certain quality. None of these conditions are fulfilled in BiH. Guarantees of Non-Repetition The most important precondition for non-repetition is public acknowledgement of crime of rape and public apology for crimes. This would mean recognition of victims and would have a great symbolic meaning for them and for the whole society. What is lacking is strategy in supporting victims of rape. The problem also lies in the fact that victims of rape are often stigmatized by the society and that fact is influencing their reintegration. Recommendations for Bosnia and Herzegovina Firstly, Bosnia and Herzegovina has to define the crime of rape in accordance with International Criminal Law and international law standards. Further it has to increase the number of adjudicated cases of rape and other forms of sexual violence before the courts in BiH. In relation to that it has to provide better

394Documenta – Center for Dealing with the Past; Humanitarian Law Center; Research and Documentation Center, “Transitional Justice in Post-Yugoslav Countries. Report for 2006”, p. 57.

support for the witnesses and develop gender sensitive approach to them, and have more prosecutors specialized in war crime cases, educate investigators and equip entity courts with necessary equipment for testimonies. State has to adopt a strategy in order to provide victims with long-lasting and sufficient support (psychological, economic and social support) and to equalise victims in both entities and it should provide restitution, compensation satisfaction and non-repetition in accordance with international standards. Also, state has to provide financial support for the NGO dealing with this issue. Chapter III -Crime of Rape in Rwanda As for BiH, this Chapter will give an overlook on crime of rape during the four months of genocide. Rwanda is a small country in central part of Africa usually called tropical Switzerland of Africa. Most of the population of this country belongs to Hutu ethnic group 85%, and the rest is Tutsi and Twa. For 600 years two ethnic groups Tutsi and Hutu shared their business, culture, language and nationality. Tutsi were more landowners and Hutu the people who worked on land. At the beginning of the colonial ruling of Belgium, colonial administrators, as part of their usual practice to select the group to be privileged and educated, chose the Tutsis group to be the privileged one. Their role was to be a bond in between colonial rule and the local population. As a direct consequence of this some of the Tutsis began to consider themselves as aristocrats while on the other side Hutus started to feel inferior. Political tensions started and lasted for years, long before the massacre in 1990s. Ethnic hatred culminated in genocide that happened in 1994. Between April and July 1994 between 500.000 and one million Rwandans were killed. Most of the killings were done by hand, using machetes and clubs and motivated by political cause. Victims were killed by the people they knew, their neighbours, their friends, their relatives. Tutsi men, women and children were killed in schools, even


136

in churches. Over the radio the killers were incited to continue with killing. The whole propaganda was focused on the achievement of the aim - wipe out the Tutsis. What was also astonishing is sexual torture of Tutsi women. Sexual violence and rape were a central part of Rwandan genocide. Women were targeted because they were the key of the survival of ethnic group and they are always to be considered as a special target during the campaign of genocide. The policy was - if you destroy the women, you destroy the whole ethnicity. But the attack was not just about that. As we mentioned before Tutsi had been the royalty and considered themselves as an upper class of Rwandan society. Tutsi women were too good for Hutu man. That was the usual way of thinking. Tutsi women are considered to be prettier than Hutu ones. "Hutu women were made for work, to be servants. Tutsi women were made for sexuality and beauty. That's how we were educated. People from the north wanted to take Tutsi as mistress because they were forbidden to have them. Tutsi women were seen as spies because they know how to present themselves to whites and to Hutu man... Hutu understands the propaganda. It was time for revenge.”395 Since there is no accurate data the estimated number of rapes are in between 250.000 and 500.000 during the period of genocide. In a case of Rwanda, it was shown that rape can be an act of genocide. As it is known from the definition of the genocide there should be intent to destroy ethnic, racial or religious group to commit certain act as genocide. "Acts of rape and other forms of sexual violence can fall into the categories of prescribed act under the Genocide Convention. Where it can be shown that perpetrators committed such acts causing serious bodily or mental harm with the intent to destroy, in whole or in part, a group identified by the terms of the convention, crimes such as rape,

395Human Rights Watch, Shattered Lives, Sexual Violence during the Rwandan Genocide and its Aftermath, 1996

sexual mutilation and sexual slavery may be prosecuted under subsection (B) of Article ".396 In the aftermath of the Rwandan genocide in October 1994, the International Criminal Tribunal for Rwanda (ICTR) was established. It is located in Arusha, Tanzania. One of the groundbreaking cases related to rape was Jean Paul Akayesu case. The Indictment was submitted in February 1996. He was accused of genocide, crime against humanity and violations of Article 3, common to the Geneva Conventions for individual criminal responsibility as the one "who plans, instigates, orders, commits or otherwise aids and abets in planning, preparation or execution of any of the crimes referred to in Articles 2 to 4 of the Statute of the Tribunal"397 He was charged for encouraging the sexual violence, beatings and murders by his presence during the commission of those crimes. "In particular, Akayesu, through his speeches, orders and actions, had demonstrated a specific intent to destroy Tutsi as an ethnic group. Thus, he was found guilty of genocide for actually participating in beatings, killings and rapes of Tutsi in some instances, and encouraging, abetting or ordering such acts in others.”398 By this verdict the act of rape was established as an act of genocide because the victims were chosen according to their group identity, with the aim to weaken the group as a whole and with the intent to destroy in whole or in part a protected group through attacks on women as a vulnerable part of the community. Chapter IV - Transitional Justice Mechanisms as Answers to Crime of

396Ibid 397Akayesu et al. 398Prosecutor vs Akayesu


137

Rape in Rwanda: Truth, Justice and Rule of Law in Rwanda Twenty years after the genocide in Rwanda, most of the victims of sexual violence are still searching for the justice. Effects of genocide are still present and have devastating and long lasting consequences. As a party to several important international treaties (International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Convention on the Rights of the Child...) Rwanda has an obligation to provide an effective remedy for the victims of rape and sexual violence and to provide them with highest possible standards in health assistance. Besides that, it has the obligation to investigate, prosecute and punish perpetrators.” Rwanda’s justice system was devastated after the genocide. “By the end of the genocide, Rwanda counted only twenty judicial personnel responsible for criminal investigations and only nineteen lawyers”.399 In 1997 they were 448 judges400 that have to deal with 120.000 persons waiting for trial. This actually led to the establishment of gacaca courts, community based conflict resolution mechanism. Gacaca courts have dealt with all cases that were not transferred to Tribunals of First Instance that were responsible for “organizers or leaders of genocide, notorious killers, and persons who committed “acts of sexual torture”401 before March 15, 2001. Beside the trials, Rwanda established a truth and justice commission aiming to establish the truth about events that led to genocide in

399 International Crisis Group, Five Years After the Genocide: Justice in Question, ICG Report Rwanda No. 1, April 7, 1999, p. 34. 400Human Rights First (formerly The Lawyers’ Committee for Human Rights), Prosecuting Genocide in Rwanda: A Human Rights First Report on the ICTR and National Trials, July 1997, [online] at http://www.humanrightsfirst.org/pubs/descriptions/rwanda.htm (retrieved April 20, 2004). 401Genocide Law, art.2.

1994.402 All these mechanisms proved to be very limited in providing justice for the thousands of victims of the genocide. The situation is worse when taking into account prosecutions of rape…”genocide trials involving rape fall far short of the estimated tens of thousands of acts of sexual violence during the genocide”403. The reason for small number of adjudicated crimes of rape lies in the fact that victims are reluctant to report rape and if they do that then very few of them are ready to testify. This unwillingness to report crime of rape lays in the fact that many victims believed that they have to prove the act of rape. Actually the burden of proof was on the shoulder of accused. Many of them didn’t know who raped them since the crime did not occur in public and usually all family members were killed so there were no witnesses. Also, there was a fear of stigmatisation, re-traumatisation and inadequate protection of victims (there were cases in which victims were killed before their testimony). The reason for low number of prosecuted crimes of sexual violence lays in the fact that investigators, prosecutors and judges have not been trained to deal with such a sensitive victims and cases; there was no privacy and confidentiality (in some cases victims of rape had to testify before 100 community members). Additionally, many victims were killed during the genocide and also died from HIV/AIDS. Reparations International law puts an obligation on states to provide reparations for the victims of severe and gross human rights violations. In Rwanda, two main pillars of

402Rwanda: The Preventable Genocide (2000) Report of International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda, available at the National Commission on Unity and Reconciliation website; Interviews with representatives of non-governmental organisations like IBUKA, Association des Veuves du Genocide (AVEGA), 403S. Eftekhari, Rwanda, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda, Human Rights Watch, September 2004, Vol. 16, No. 10 (A), page 20.


138

reparations are criminal accountability for committed crimes and material needs of victims. Restitution First response of the state (in 1998) was the creation of National Assistance Fund for Needy Victims of Genocide and Massacres Committed in Rwanda (FARG) between 1 October 1990 and 31 December 1994. This Fund was created to provide assistance in main areas like education, housing, health/rehabilitation and income generation programmes. This comprehensive set of measures until 2008 assisted in paying school fees for 51.091 kids, 12.596 houses were constructed and has provided medical care to 271.684 war survivors. Also, it provided psycho-social counselling for 4864 beneficiaries. FARG provided grant for 9.304 income generation projects. The main criticism related to FARG was that it was not able to repair irreparable harm. The Law on succession allows women to inherit property but social patriarchal norms are still the biggest obstacle for that. Compensation Right to compensation for victims of sexual violence is another disappointment for this population. This is one of the examples how Rwanda has failed to provide adequate support for the victims. Until now, financial compensation hasn’t been given to victims of genocide. There is still a strong resistance of government to provide financial compensation. According to J.P Muginareza “Reparations could be detrimental to the already fragile social cohesion in a country where there is still a Hutu majority and in whose name the genocide was committed”404. From my point of view such an attitude of government might be more dangerous for true reconciliation and for sustainable peace, than to provide compensation, since only acknowledgment of what

404J.P Mugiraneza,http://www.transconflict.com/2013/10/rwandan-case-possible-truly-compensate-victims-genocide-210/

happened and adequate treatment of the victims is a guarantee of non-repetition. Claims for compensation were pursued only in situations in which victims knew that perpetrator is capable to pay. Most of the perpetrators are indigent. The proper answer to this problem would be to set up national reparation programme which will include material compensation as well. Rehabilitation “Access to appropriate health care is a primary concern for victims of genocide and post-genocide sexual violence.”405 During the genocide many medical facilities were destroyed. Access to health assistance is especially difficult for rural population. According to UNICEF 88% of women in Rwanda is more than one hour of walking distance from medical centre.406 The situation is especially difficult for women living with HIV/AIDS, since they have to take therapy in district or national medical centres which are usually very far from their place of living. Stigma reduces women to go and test themselves on HIV/AIDS in a fear that result will be positive. FARG Fund provides financial help for opportunistic infections but not for ARV therapy. There is another government program that covers these costs for the poorest victims but they are not aware of its existence. Additionally, great poverty is an obstacle for access to health care since many victims live in such poor conditions that they cannot afford regular meals for them and their children, not to mention transportation costs to medical centres. Recommendations for Rwanda One of the most important issues and recommendations is related to more organized and systematic answer on access to medical assistance. State should provide more funds and to collaborate with existing NGOs in providing direct assistance to victims of rape especially

405Ibid, page 38. 406UNICEF, „Rwanda:Facts and Figures“ onine at http://www.unicef.org/infobycountry/20289_20292.html (retrieved April 23, 2004)


139

those ones living with HIV/AIDS, like provide transportation to medical centres. For the sake of better witness protection Rwanda must educate and include more women as investigators, prosecutors and judges for such sensitive crime. Also, witnesses should be provided with trauma counsellors and psychological help, in order to prepare the witnesses for testimonies, to be support during the testimonies and in period after the trials. Additional recommendation is the creation of national financial compensation programme. Differences and Similarities between Bosnia and Herzegovina and Rwanda Having in mind all the above said facts about the treatment of victims of rape in Rwanda and Bosnia and Herzegovina one can conclude, that in general both countries have difficulties in treatment of victims of rape in a proper way and their approach differs only in details. In some aspects one country is in advantage while in another aspect is facing more problems. When speaking of restitution both countries are facing financial means to address the real needs of those victims. However, Rwanda is in advantage since there is a state funded, more comprehensive assistance to victims which seems to be more advanced than in Bosnia and Herzegovina where we could find no such extensive set of measures and inequality in treatment of victims in different state entities. In one, Federation of BiH, victims of sexual violence have preferential treatment in employment and housing projects while in Republic of Srpska there is no such approach. This discrimination in between the same group of victims could not lead to sustainable integration of those victims in the whole state. In the sense of compensation Bosnia and Herzegovina, even though there is an inadequate treatment of victims of sexual violence in state entities, still provides monthly compensation. In Rwanda situation is different in a sense that compensation is sacrificed for the sake of preservation of very weak social cohesion

in between Hutu and Tutsi which is from my point of view a very narrow minded approach. Rehabilitation is a measure in which both countries haven’t provided a proper answer to the victim’s needs. Bosnia and Herzegovina does not fulfil any of the conditions set in UN Basic Principles and in International Covenant on Economic, Social and Cultural Rights. On the other hand in Rwanda there is a very limited access to medical centres. Both countries have very strong stigma towards the victims of sexual violence. Similarity between those two states in sexual victims’ treatment is visible in achieving truth, justice and in rule of law. In both countries victims are not satisfied with the attainment of justice since very few perpetrators were found guilty and punishments are very lenient. Treatment of victims before the courts is also very similar since they are not enjoying adequate protection as witnesses. Very important is that investigators, prosecutors and judges have not been trained to deal with such a sensitive cases and lack of proper funding for prosecutors is very limiting factor in achieving justice. Additionally both countries have to improve gender approach to victims. Conclusion Bosnia and Herzegovina and Rwanda unfortunately share the same tragic consequences of recent war and genocide. Both states failed in providing the victims of rape with adequate response to their basic needs. Recommendations given in this essay are just the tip of the iceberg. Unfortunately many states that have suffered gross violations of human rights are not capable to cope with such a tragic legacy. We can just mention few of them such as South Sudan, Afghanistan, Central African Republic, Syria, Nigeria... Therefore, UNWOMEN together with Office of the High Commissioner for Human Rights (OHCHR) launched Guidance Note of the Secretary General, Reparations for Conflict-Related Sexual Violence. This will hopefully mark the end of impunity for


140

perpetrators of sexual violence and provide victims of these crimes with redress, right to a remedy, reparation, recognition and re-socialisation. It is up to the countries now to adopt

recommendations from Guidance and to help in building a better world for victims of this heinous crime. How this Guidance will be recognized and implemented is to be seen.


141

BIBILIOGRAPHY

Amnesty International, Old Crimes Same Suffering, No Justice for Survivors of Wartime Rape in North-East Bosnia and Herzegovina, Amnesty international Publications, March 2012. Amnesty International, Whose Justice? The Women of Bosnia and Herzegovina Are Still Waiting, Amnesty International Publication, 2009. Inger Skjelsbaek, Victims and Survivor: Narrated Social Identities of Women Who Experienced Rape During the War in Bosnia-Herzegovina, Feminism and Psychology 16(4): 373–403, 2006. Maja Šoštarić, Impunity Watch, War victims and Gender Sensitive truth, Justice, Reparations and Non- Recurrence in Bosnia and Herzegovina, 2012. P.V. der Auweraert, I. Cvetkovski, Reparations form Wartime Victims in the Former Yugoslavia: In Search of the Way Forward, International Organization for Migration (IOM), 2013. T.Teodorova, Giving Memory a Future. Confronting the Legacy of Mass Rape in Post-conflict Bosnia-Herzegovina, Journal of International Women’s Studies, Volume 12, Issue 2, 2011. OSCE, Combating Impunity for Conflict-Related Sexual Violence in Bosnia and Herzegovina: Progress and Challenges, An analysis of criminal proceedings before the Court of Bosnia and Herzegovina between 2005 and 2013, 2014. R.G Teitel, Transitional Justice, Oxford University Press, 2000. R. Cryer, H. Friman, D. Robinson, E. Wilmshurt, An introduction to International Criminal Law and Procedure, Cambridge University Press,2010. D. Fleck, The Handbook of International Humanitarian Law, Oxford University Press, Second Edition, 2009. H.Steiner, P. Alston, R. Goodman, International Human Rights in Context, Law, Politics and Moral, Oxford University Press, Third Edition, 2007. R.Rubio-Marin, What happened to the Women?: Gender and Reparations for Human Rights Violations, International Center for Transitional Justice, Social Science Research Council, 2006. S. Eftekhari, Rwanda, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda, Human Rights Watch, vol. 16. No. 10(A), 2004. C. Cochran, Transitional Justice: Responding to Victims of Wartime Sexual Violence in Africa, The Journal of International Policy Solutions, Vol. 9, 2008.

Online resources Amnesty International, Still No Justice for Women Survivors of wartime Rape in

Bosnia and Herzegovina, 2012, from http://www.amnestyusa.org/news/news-item/still-no-justice-for-women-survivors-of-wartime-rape-in-bosnia-and-herzegovina. A. Nedzi, Are Bosnian and Herzegovinian Victims of Wartime rape Finally Being Given Constructive Attention?, 2012, from https://www.opendemocracy.net/5050/aleksandra-nedzi/are-bosnian-and-herzegovinian-victims-of-wartime-rape-finally-being-given-cons. J. Ryan, Rwanda’s Long Road to Justice, Law Dragon, Issue 14, from http://www.lawdragon.com/wp-content/uploads/2013/10/Rwanda-Long-Road-to-Justice.pdf. A.N. Kubai, Between Justice and Reconciliation, The Survivors of Rwanda, Africa Watch, from http://www.issafrica.org/uploads/ASR16_1KUBAI.PDF.


142

C. Nagarajan, An Appraisal of Rwanda’s Response to Survivors Who Experienced Sexual Violence in 1994,2012 from http://journals.cortland.edu/wordpress/wagadu/files/2014/02/Nagarajan.pdf S. KaHon Chu, A.M. de Brouwer, Rwanda’s rape Victims Speak out,2011, fromhttp://www.herizons.ca/node/263 J.P Mugiraneza, The Rwandan case- is it possible to truly compensate victims of genocide?,2013, from http://www.transconflict.com/2013/10/rwandan-case-possible-truly-compensate-victims-genocide-210/


143


144


145

Human Rights Violation in Kosovo: The Consequences of Kosovo Conflict

and the Future of Country

By Enarda Cuni*

ABSTRACT Human rights are basic to humanity. They apply to all people everywhere. An understanding of human rights is important part of our individual status as human beings and of our collective status as members of the global community of humankind. One of the fundamental bedrocks of human rights is the principle that all human beings are born free and equal in dignity and rights. Discrimination and prosecution on the grounds of race and ethnicity are clear violation of this principle. Racial discrimination can take many forms from the most brutal and institutional form of racisms - genocide and apartheid, to more covert forms whereby certain racial and ethnic groups are prevented from enjoying the same civil, political, economic, social and cultural rights as other groups in society. This article will address the case of Kosovo on human rights violation during the armed conflict and its consequences, as well as the future of the country in human rights promotion and protection. Also, the paper will emphasize the recognition of Kosovo as a fundamental right for a state and if this recognition will happen one day in the entire world.

*Enarda holds a Master Degree in Intercultural Human Rights from St. Thomas University, Miami, Florida, USA. She is a lawyer graduated in Albania. She has worked as Research Assistant in USA in “Protection of Minority Rights in Balkan” and she was a lecturer and assistant to the Dean of Law Faculty in the European University of Tirana. Enarda has published in the field of human rights inside and outside of Albania.


146

Introduction In the aftermath of the Balkan wars that were fought in the 1999, Kosovo unilaterally declared independence from Serbia in 2008. However, this independence is contested by Serbia and tensions between the Albanian majority and Serb minority in the country remain extremely high. After the death of the President Tito of Yugoslavia in 1980, pressure for independence of the Kosovo province was growing within the Kosovo Albanian population, who felt that the Serb authorities discriminated against them. Serbia did not permit Kosovo Albanian to be taught in the schools, and there was no Kosovo Albanian representation in the Serb parliament.407 Kosovo’s independence movement was violently suppressed by Serb troops under Slobodan Milosevic, the leader of Serb nationalism, who advocated creation of a “Greater Serbia,” that would include part of Bosnia and Croatia, as well as Kosovo. When a passive resistance movement in the 1990s failed to secure independence, a rebel movement, the Kosovo Liberation Army (KLA) left the path of non-violent resistance and started to attack Serb targets in the mid-nineties. Meanwhile, the Serbian forces started an “ethnic cleansing” (forced displacement) campaign against the Kosovo Albanians. They used genocidal massacres of entire villages as a terror tactic to drive over 800.000 Kosovo’s into Albania before the NATO intervention. In 1999, NATO decided to intervene and NATO bombings of Serbia began. After the Serb Army was driven out of Kosovo, NATO and the UN took over the administration of Kosovo. Justice for the atrocities during the war came through The International Criminal Tribunal for the Former Yugoslavia, which charged Milosevic with crimes against humanity. However, in March 2006 after a four-year trial, Milosevic was found dead in his cell

407 Genocide Watch, Country Profile: Kosovo, April 2012, Available at: http://genocidewatch.net/2013/03/21/country-profile-kosovo/

from a heart attack. Other trials for crimes against humanity and war crimes have been heard in international courts established in Kosovo. In 2008, Kosovo Albanians declared their country independent from Serbia, but Serbia refuses to recognize this independence. Kosovo is a parliamentary democracy. The Constitution and laws provide for the authorities and responsibilities of the freely elected unicameral national Assembly, the Assembly-approved government and the Assembly-elected president. The country declared the independence after accepting the Comprehensive Settlement Plan (CSP), which provide for internationally sponsored mechanisms, including EU Rule of Law Mission (EULEX), to support the government. Kosovo is still deeply polarized between the Albanian majority and the Serb minority, which mainly lives in the northern corner of the country. While the Serbs hate the Kosovo Albanians because they have taken part of what they consider Serbia, the Albanians won’t forget, nor forgive the atrocities committed by Serbs during Milosevic’s rule. The most important human rights problems during the year included roadblocks established in the northern part of the country by Kosovo Serbs hardliners, restricting basic rights including freedom of movement and movement of goods. During the series of wars and ethnic conflicts with serious human rights violations and ethnic cleansing in ex-Yugoslavia in the 1990s, the international community reacted through crisis management. Nevertheless, the EU is still faced with unresolved problems such as the “final status" of Kosovo, and the question of how to deal with the problem of accommodating ethnic and territorial claims in order to prevent spill-over effects in forms of new conflicts and refugees in the region itself and into the EU. I. Human rights violations and the various types of violations


147

The struggle for peace and the struggle for full respect of universal human rights, as defined by UN Declaration on protection of human rights, are interdependent and non-separable. Violations of sovereignty and territorial integrity, military interventions, aggressions and occupations go hand in hand with massive violations of the basic human rights. There is now near-universal consensus that all individuals are entitled to certain basic rights under any circumstances. These include certain civil liberties and political rights, the most fundamental of which is the right to life and physical safety.408 Human rights are the articulation of the need for justice, tolerance, mutual respect, and human dignity in all of our activity.409 Speaking of rights allows us to express the idea that all individuals are part of the scope of morality and justice. To protect human rights is to ensure that people receive some degree of decent, humane treatment. To violate the most basic human rights, on the other hand, is to deny individuals their fundamental moral entitlements. It is, in a sense, to treat them as if they are less than human and undeserving of respect and dignity. Examples are acts typically deemed "crimes against humanity”, including genocide, torture, slavery, rape, enforced sterilization or medical experimentation, and deliberate starvation. Because these policies are sometimes implemented by governments, limiting the unrestrained power of the state is an important part of international law. Underlying laws that prohibit the various "crimes against humanity" is the principle of non-

408 Michelle Maiese, “Human Rights Violation”, July 2003, Available at: http://www.beyondintractability.org/essay/human-rights- violations 409 Helena Kennedy, " Conflict Resolution and Human Rights: Contradictory or Complementary?" INCORE, 1.

discrimination and the notion that certain basic rights apply universally.410 During the war in Kosovo a lot of typical acts of crimes mentioned before have occurred such as genocide, rape, torture, violation of right to life etc. a- GENOCIDE and its Relation with Human Rights. Does Genocide Violate an Absolute Right? Genocide is the deliberate and systematic eradication or mass killing of a group or large population identified by the perpetrators. It is the large scale violation of human rights. Genocide is the most heinous crime that can be committed against a human population. In the famous words of the UN General Assembly, genocide “shocks the conscience of mankind.”411 In the International Convention of the Prevention and Punishment of the Crime of Genocide the UN definition of the crime of genocide is set as the following: Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such: a- killing members of the group; b- causing serious bodily or mental harm to members of the group; c- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or part; d- imposing measures intended to prevent births within the group; e- forcibly transferring children of the group to another412. According to the ICTY Prosecutor, the FRY and Serbia reacted by intensifying their systematic campaign of persecutions, deportation and murder waged against the ethnic Albanians in Kosovo. On 22 May 1999, the ICTY issued its most significant

410Don Hubert and Thomas G. Weiss “The Responsibility to Protect: Supplementary Volume to the Report of the International Commission on Intervention and State Sovereign, Canada: International Development Research Centre, (2001), pg.144. 411 General Assembly. Res. 96(I), United Nation. 1st Sess., pt. 2, U.N. Doc. A/64/Add.1 (1947). 412 The International Convention of the Prevention and Punishment of the Crime of Genocide,Article 2, December 9, 1948, General Assembly Resolution 260 A, UN.

http://www.beyondintractability.org/essay/human-rights-violations

http://www.beyondintractability.org/essay/human-rights-violations


148

indictment thus far, when it charged a sitting head of State and several other high-level officials of the governments of the FRY and Serbia with war crimes and crimes against humanity in relation to the conflict in Kosovo.413 The indictment is the first in the history of this Tribunal to charge a head of State during an ongoing armed conflict with the commission of serious violations of international humanitarian law. On other hand a mandate for genocide prevention and punishment has been enshrined in a widely-ratified multilateral treaty.414 Genocide’s status as a jus cogens or customary norm of international law from which no derogation is permitted under any circumstances, is broadly accepted.415 It nearly goes without saying that the right of a people to be free from wholesale slaughter would top any such list. Given the near-universal consensus that the taking of innocent life is a moral wrong, genocide stands alone as a wrong that actually multiplies a wrong, magnifying its infamy. The essence of genocide’s power is that it denies the very right to exist to entire groups of people based solely upon their identity, making it at once selective in practice and universal in scope416. Today, genocide is increasingly seen as part of human rights and international humanitarian law. The International Humanitarian Law, as a permanent tribunal, prosecutes individuals for genocide, crimes against humanity, war crimes, and crimes of aggression. The individual perpetrator will be punished whether they are constitutionally

413 Pursuant to Sub-Rule 55 (D) of the Rules and Procedures of Evidence of the ICTY 414 Convention on the Prevention and Punishment of the Crime of Genocide opened for signature Dec. 9, 1948, art. 1, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) 415 James D. Fry, Terrorism as a Crime Against Humanity and Genocide: The Backdoor to Universal Jurisdiction,(2002) vol.7,UCLA J. Int’l L. & Foreign Aff. Pg.169, 187–88 416 Michael J. Kelly, Can Sovereigns Be Brought to Justice? The Crime of Genocide’s Evolution and the Meaning of the Milosevic Trial, (2002), vol.76, St. John’s L. Review, pg. 257, 262–65

responsible rulers, public officials, or private individuals. As tension and violence increased in Kosovo over the course of 1998-1999, there were signs that reprisal killings of males would be an essential Serb strategy in any full-scale conflict. The outbreak of mass killings in 1998 included a substantial number of women, elderly, and child victims. The assault on the Deliaj clan in September 1998, for example, left "the bodies of 15 women, children and elderly members" of the clan "slumped among the rocks and streams of the gorge below their village ... shot in the head at close range and in some cases mutilated as they tried to escape advancing Serbian forces."417 Among the cases of mutilation was that of a 30-year-old woman, Lumnije Deliaj, "who relatives said was seven months pregnant. Her abdomen had been slit open."418 Six more elderly people (at least four of them male) were shot or burned to death elsewhere in the village of Gornje Obrinje. But four miles away from this clan killing, at Golubovac, a mass murder was being carried out, with the victims selected according to a different and more typical standard.419 b- Torture during the Conflict in Kosovo 'Torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third

417 Allen Richards, NATO v Yugoslavia: Justified or Criminal?, August 2004, Available at: http://www.armchairgeneral.com/forums/showthread.php?t=15744 418 Jane Perlez, New Massacres by Serb Forces in Kosovo Villages”,Sept. 30, 1998, Available at: http://partners.nytimes.com/library/world/europe/093098kosovo-massacre.html 419 Gendercide Watch, “Case Study: Kosovo1998-1999”, Available at: http://www.gendercide.org/case_kosovo.html

http://www.armchairgeneral.com/forums/showthread.php?t=15744

http://www.armchairgeneral.com/forums/showthread.php?t=15744

http://partners.nytimes.com/library/world/europe/093098kosovo-massacre.html

http://partners.nytimes.com/library/world/europe/093098kosovo-massacre.html

http://www.gendercide.org/case_kosovo.html


149

person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”420 From this definition, it can be said that torture is the intentional infliction of severe mental or physical pain or suffering by or with the consent of the state authorities for a specific purpose. Torture is often used to punish, to obtain information or a confession, to take revenge on a person or persons or create terror or fear within a population. Some of the most common methods of torture include beating, rape and sexual assault, burns etc. During the years of 1990 and especially in the war time in Kosovo there were many different ways of torture faced to people. A data given by torture of Serb forces is the issue of Ylli Abdullah Morina from Gjakova, who was the officer of KLA. He was badly wounded in the war front in the village of Gramacel. He was captured by the Serb forces in September 1998. With the intervention of the Red Cross he was sent to the hospital where the Serb doctors and police had mistreated him in the cruellest forms without giving the necessary assistance. Serbian doctors did terrible experiments with his body.421 Lots of other inhuman torture had occurred to the Albanian children at school from the Serb forces. There were 7000 Kosovo Albanian poisoned with the chemical and biological substances, 4000 of whom remain with serious consequences for their life and many

420 United Nation Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), 1987, Article 1, pg.85 421 Fitnete Ramosaj, Krimet serbe në Kosovë – PA APOLOGJI – Me fakte kundër shpifjeve (Serbian atrocities in Kosovo - WITHOUT APOLOGY - Facts against defamation) Anatema, Prishtine, 2008, pg.58

others were treated in the cruellest way from Serb forces.422 Looking at these facts and referring to the definition and other meaning that human rights treaties have given to the torture, definitely we can say that we are before a human rights violation, as well as a violation of human rights treaties. Unfortunately there are many cases of inhuman treatment from Serb forces which are not followed and reviewed by the relevant bodies of Human Rights protection. c- Rape during the Conflict in Kosovo Rape is one of the most predominant forms of violence used towards women. It does not only affect female individuals, but also has devastating effects on societies and communities, as females are suddenly shunned and the community loses its reputation. In the context of the Universal Declaration rape violates a number of basic human rights listed in the charter, specifically now that the UN has declared rape as worthy of being considered a “weapon of war”. A resolutions passed by the UN on the 19th of June 2008 states “…women and girls are particularly targeted by the use of sexual violence, included as a tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group.”423 From such a statement there are clear implications that rape violates Articles 1 and 5 of the Universal Declaration.424 Article 1 implies that all humans should be treated equally and with dignity, however as rape is used to humiliate a sex as well as dominate individuals there is no evidence of dignified treatment. Being born in equal dignity implies that every human is treated with such dignity.

422 Ibid. pg 77 423 UN Security Council, Resolution 1820, June 19, 2008, pg.5 424 Universal Declaration of Human Rights, Article 1, pg.2


150

Rape also violates Article 5425 which is included in those setting forth civil and political rights. Rape does classify as cruel and degrading treatment, and referring back to the UN statement, humiliation is a method used to degrade. Inhuman treatment would mean that one is not treated with dignity and equality, which is a standard that all humans should enjoy. Hence, inhuman treatment is a violation as every human has human rights. Under this aspect women who have been raped or not treated with dignity were of a huge number during the Kosovo war. There are numerous accounts indicating that the organized and individual rape of Kosovo Albanian women by Serbian forces was widespread. For example, Serbian forces systematically raped women in Djakovica and Pec, and in some cases rounded up women and took them to hotels where they were raped by troops under encouragement of their commanders.426 Rape is most likely an underreported atrocity because of the stigma attached to the victims in traditional Kosovar Albanian society. Up to 20.000 women were raped during the war in Kosovo and yet no one has been punished for these crimes.427 There are lots of different testimonies of women who were victims or who have seen this cruel crime in front of them. Women held in buildings throughout Kosovo independently gave remarkably similar accounts of rape, sexual assault, and harassment. After separating women and children from the men, Serbian forces held women hostages in various empty buildings. Women reported being taken out of these holding centres one by one to be "checked." These checks included interrogations and, in some cases, rape

425 Universal Declaration of Human Rights, Article 5,pg.4 426 U.S State Department Report,“ Ethnic Cleaning in Kosovo: An account”, December 1999. 427 The Guardian, Rape victims’ babies pay the price of war, Available at: http://www.theguardian.com/world/2000/apr/16/balkans

and other forms of sexual violence.428 In late April, in a village in the Drenica region that will remain unnamed to protect the women involved, government forces dressed in green camouflage uniforms with green insignia, which suggests they were soldiers in the Yugoslav Army, held a group of twenty-seven women and children in a small barn full of hay. According to five testimonies collected separately, all of which corroborated one another, women were taken out one by one and they were raped by the soldiers of Yugoslav Army.429 From such a perspective we faced with human rights violation from Serb army against Kosovo women which should be reviewed from the relevant bodies for the protection of human rights, especially the NGO-s for women and their rights. II. The aftermath In the aftermath of the war, more than 150,000 Serbs fled Kosovo, fearing vengeance at the hands of the Kosovo Liberation Army. Indeed, hundreds of revenge killings were carried out by KLA and Albanian mafia elements, as well as by Serbs, in the early post-war period. Especially targeted were the weak and the old, those least able to flee -- a phenomenon that Gendercide Watch refers to as "geracide" (from the Greek geras, "old age"),430 and which has a recent precedent in the Croatian invasion of the Serb-dominated Krajina region in Summer 1995, which killed thousands of Serb civilians. The United Nations and KFOR have proved unable or unwilling to police Kosovo effectively, although the murder rate has gradually fallen. NATO’s intervention in Kosovo, in the name of human rights, decimated whole communities throughout the Balkan

428 Human Rights Watch, Gender Based Violence Against Kosovar Albanian Women, Available at: http://www.hrw.org/reports/2000/fry/Kosov003-02.htm#P174_31993 429 Human Rights Watch interview, X. R., village in Drenica region, July 19, 1999. 430 Gendercide Whatch, Case Study: Kosovo 1998-99, Available at: www.gendercide.org

http://www.theguardian.com/world/2000/apr/16/balkans

http://www.theguardian.com/world/2000/apr/16/balkans

http://www.hrw.org/reports/2000/fry/Kosov003-02.htm#P174_31993

http://www.hrw.org/reports/2000/fry/Kosov003-02.htm#P174_31993

http://www.gendercide.org/


151

region. Yet the Western public was given few opportunities by the international media to sympathize with these communities. The besieged people of Serbia — left without electricity, water, transportation, medicine, and food — were driven to the brink of a humanitarian catastrophe. Against the backdrop of war, pogroms against the Roma were carried out on a mass scale, including killing, torture, abductions, looting, and rape.431 Many human rights advocates were having a difficult time deciding what position they should take throughout the war in Kosovo. Most of us believed that when an abusive government engages in gross and systematic human rights violations, the international community must intervene, if necessary, by military force. However, when NATO’s intervention started to cause severe human rights violations because of an irresponsible strategy of bombing from high-flying aircraft, human rights defenders have had a responsibility to appeal for an immediate stop to the bombing. Human rights advocates failed to make human rights count during the war in Kosovo. Their silence was indicative of an ongoing transformation of the political function of human rights around the world. In the past, human rights worked more effectively as a challenge to power structures, oppressive regimes, economic inequalities, and various practices of corruption. Today, citizens and their organizations seem to be — through conscious choice or not — less militant, less confrontational, and more cooperative with democratic governments and intergovernmental organizations than they were a decade ago. I would argue that this is because the human rights discourse and agenda have gradually been usurped by governments and intergovernmental organizations. Many human rights advocates were

431 European Roma Rights Centre, Roma Rights,

1999, no.2, Available at: http://www.errc.org/en-search-results.php?mtheme=6

having a difficult time deciding what position they should take throughout the war in Kosovo. Most of them believed that when an abusive government engages in gross and systematic human rights violations, the international community must intervene, if necessary, by military force. However, when NATO’s intervention started to cause severe human rights violations because of an irresponsible strategy of bombing from high-flying aircraft, the human rights defenders had a responsibility to appeal for an immediate stop to the bombing. Human rights advocates failed to make human rights count during the war in Kosovo. Their silence is indicative of an ongoing transformation of the political function of human rights around the world. In the past, human rights worked more effectively as a challenge to power structures, oppressive regimes, economic inequalities, and various practices of corruption. That governments have taken on human rights is a sign of the great progress made by the human rights movement. However, this progress is a double-edged sword. Nongovernmental advocates of human rights, especially in democratic and transitional societies, are less and less a force of progressive social change. There were no easy solutions to Kosovo. Nevertheless, the NATO “victory” has had a deleterious effect on the credibility of human rights in the Balkans, where human rights discourse was used to morally justify the loss and destruction of thousands of lives. For us in the Balkans, the human rights language, paradigm, and call to action have become problematic. In the aftermath of Kosovo, the soul of human rights is in search of a new embodiment. International Recognition of Kosovo and Its Impact. There has been much debate among politicians and diplomats whether the recognition of the unilateral declaration of Kosovo independence is “unique” or should it be looked as a” precedent” in

http://www.errc.org/en-search-results.php?mtheme=6

http://www.errc.org/en-search-results.php?mtheme=6


152

considering other conflicts and the future political status of de facto states that emerged after the collapse of socialism and federative states. The debate is highly political, and it is not a novelty that major powers have the resources to argue for one principle in a given case, and its opposite in another, based on their interests. What is interesting in the case of Kosovo recognition is the way major powers and international organizations have addressed its case, which will ultimately legitimize and strengthen a set of international principles as well as practices and institutions, and marginalize others. Kosovo independence and its recognition put forward the territorial legitimacy once again, rather than national one.432 The international organizations that have recognized Kosovo have rejected any discussion of a compromise with Belgrade that envisages a partition of Kosovo as a compromise solution, whereby regions with predominant ethnic Serb population would be left under the authority of Belgrade, in return of its recognition of the sovereignty of Albanian inhabitant regions.433 Neither what happened is the self-determination of the Albanian people in the Balkans: in fact one of the motives why EU supported Kosovo independence was its fear of growing Albanian nationalism which could once again destabilize the delicate balance of the political map of south-east Europe. In Kosovo the EU has being arguing that ethnic repression (Serb repression of Kosovo Albanians) justified the legitimacy of a territorial entity and not ethnic

432 Vicken Cheterian, International recognition of Kosovo and Its Impact on the Caucasus Conflict, January 2009, pg.5, Available at: http://www.academia.edu/3757523/International_Recognition_of_Kosovo_and_its_Impact_on_the_Caucasus_Conflicts 433 Dan Bilefsky, Top EU mediator warns against partition of Kosovo, International Herald Tribune, September 2007, Available at: http://www.iht.com/articles/2007/09/06/europe/kosovo.php

separatism or national self-determination.434 It was a big debate from the internationals regarding the principle of self-determination under international law in the case of Kosovo. One potential remedy for persecution is the recognition of an entitlement to “external” self-determination of the group of people who are the victim of such persecution: in the exercise of such a right, the people themselves will be entitled to decide whether or not to remain part of the state within which they are located.435 In international law, a right to make this decision is not accorded to minority groups per se, even if they are understood to be significantly different from the majority population in their state on grounds of language, religion, ethnicity and the like. There is no legal right of external self-determination on this basis.

Self-determination on the Basis of Serious Human Rights Violations? In a nutshell, the right to self-determination gives peoples a free choice that allows them to determine their own destiny. This right can be exercised in a variety of ways, and traditionally a distinction has been made between external and internal self-determination. The external aspect of self-determination developed in the colonial context and resulted in self-determination becoming almost “synonymous” with decolonization and independence.436 The internal aspect of self-determination was first advocated by US President Wilson during WWI and refers to the right of a people to

434 Martii Ahtisaari’s plan entitled “Comprehensive Proposal for the Kosovo status Settlement, March 2007, Available at: http://www.unosek.org/docref/Comprehensive_proposal-english.pdf 435 Chatham House International Law Discussion Group, Kosovo: International Law and recognition, April 2008, pg 10 436 C.Ryngaert, C.Griffioen,” The Relevance of the Right to Self-Determination in the Kosovo Matter: In Partial Response to Agora Paper”,2009, Oxford University Press, pg.5

http://www.academia.edu/3757523/International_Recognition_of_Kosovo_and_its_Impact_on_the_Caucasus_Conflicts



http://www.iht.com/articles/2007/09/06/europe/kosovo.php

http://www.iht.com/articles/2007/09/06/europe/kosovo.php

http://www.unosek.org/docref/Comprehensive_proposal-english.pdf

http://www.unosek.org/docref/Comprehensive_proposal-english.pdf


153

“participate in the decision-making processes of the State”.437 It might be said that subjecting the people of Kosovo to a period of authority under the United Nations Interim Administration Mission in Kosovo (UNMIK) and the NATO Kosovo Force (KFOR) might somehow itself create a right of external self-determination, and thus a right to independence, under the ‘alien domination’ heading. The main challenge to such an idea is that the policy basis for this category of self-determination is that people who were once free from external control had been made subject to it without any meaningful consent on their part, and that this situation has to be brought to an end unless they agreed otherwise.438 The problem in Kosovo is that, prior to the UN administration, the Kosovars were not free from external control — they were part of Serbia. Even if one could argue that the situation in Kosovo at the time of the NATO bombing campaign in 1999 was such as to justify the recognition of a right to external self-determination for the majority of the population of the province on the basis of serious human rights violations, the NATO military campaign and the subsequent UN administration were of course aimed at a radical alteration to this situation, providing autonomy, self-government and the protection of human rights in the province. Thus the factual basis for the recognition of a right to self-determination based on extreme violations of the fundamental rights of part of the population (even accepting that a right to self-determination exists in those circumstances) fell away.439 The underlying rationale for the recognition of the right in these circumstances is that the entitlement to 437 Ibid.pg.7 438 Chatham House international Law Discussion Group, Kosovo: International Law and Recognition, April 2008, p.13. 439 Ibid. pg 15

exercise self-determination in this manner serves as an exceptional device to enable a people to protect itself from destruction. The possibility of the exercise of external self-determination is not intended as a way to provide redress for long-standing grievances based on events that have passed.440 The Kosovo Human Rights Advisory Panel Kosovo’s constitution lists international human rights instruments which are directly applicable in Kosovo and form an integral part of Kosovo’s legal framework. In the aftermath of war, the Venice Commission was concerned by the lack of an independent international mechanism for review with respect to any of the acts of UNMIK, and considered that in the absence of any such international mechanism, it was the responsibility of UNMIK itself to develop its own appropriate mechanism.441 In the short term, it recommended the creation of an independent advisory panel to operate alongside the Ombudsperson to provide the public with a visible sign that UNMIK does not shield its acts from a body of independent members of a human rights panel. In 2006, in accordance with the recommendations by the Venice Commission, UNMIK established the Kosovo Human Rights Advisory Panel. The Panel has three members, and takes a similar form as that of the United Nations Human Rights Treaty Bodies, namely a model of individual complaint from victims

440 C.Ryngaert, C.Griffioen,” The Relevance of the Right to Self-Determination in the Kosovo Matter: In Partial Response to Agora Paper”,2009, Oxford University Press, pg.14 441 European Commission For Democracy Through Law, Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms, Opinion No. 280/2004,October 2004, Available at: http://www.venice.coe.int/docs/2004/CDL-AD(2004)033-e.asp .

http://www.venice.coe.int/docs/2004/CDL-AD(2004)033-e.asp

http://www.venice.coe.int/docs/2004/CDL-AD(2004)033-e.asp


154

of alleged violations of human rights attributable to UNMIK. The applicable law as set out in the Regulations is remarkable; the Panellist entitled to draw upon and directly apply a comprehensive body of international and human rights instruments, most notably including the Universal Declaration of Human Rights (UDHR), making it one, if not the only, body authorized to directly apply the Universal Declaration. However, in practice, the primarily applicable and applied regime is that of the ECHR. The Panel can consider complaints relating to alleged human rights abuses by UNMIK, since 23 April 2005, after all other remedies have been exhausted by the complainants. It has no jurisdiction over alleged human rights violations by KFOR.442 A complaint to the Panel passes through two stages of consideration: first on admissibility, and then, if it meets the admissibility requirements, on its merits. Like the UN Treaty Bodies on which it is modelled, the Panel is not a Court; it is at best quasi-judicial, and can only recommend compensation or other measures. Its recommendations to UNMIK are advisory in nature. Throughout the process, the Panel communicates regularly with the SRSG for UNMIK’s comments with regard to the admissibility and merits of individual complaints, as well as maintaining contact with the complainants in order to seek further information or clarification when necessary. Conclusion The Kosovo war was an armed conflict where many people died, many others were lost and some of them are not found yet. As it is summarized in this article the war in Kosovo brought more destruction to the country in its entirety as well as in people. Many human rights violated during the war are not taken in consideration by state and non-state 442 Chatham House, The Kosovo Human Rights Advisory Panel, January 2012, Available at: http://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/260112summary.pdf

actors. Women who were part of sexual abuse have not taken any support for what happened to them. It was cruel the way they were treated such that it must be better that NGO’s for the rights protection of women should organize something for these women, for example: their integration in various associations for women, pursuing their cases in the court, the engagement of state and society in promoting and protecting human rights etc. Kosovo declared its independence despite that many countries still do not recognize it. Anyway this was the best solution for this country because of such human rights violations that happened there it was necessary that this state be independent from Serbia. More than twelve years after conflict, the judicial system in Kosovo continues to fail to adequately prioritize the adjudication of war crime cases. This failure is contrary to the expectations of public interests of justice and reconciliation. War cases, due to the nature, gravity and their importance on the process of reconciliation were not taken into account properly by judicial institution. The timely delivery of justice in war crimes cases is of particular importance because it alleviates the perception of impunity in these cases.443 Many countries emerging from conflict and transition from war to peace require historical moments of political transformation to accept changes and new values. When a society turns the other cheek or launches a new start, transitional justice mechanisms can facilitate this process. For Kosovo, there are two principles - June 1999 and February of 2008, however, the company is experiencing a prolonged period of chaotic conditions until new infrastructure is being created for education, justice, security and government. The declaration of independence was the most important and historic moment for Kosovo and its future. 443 OSCE report, War Crimes Trials in Kosovo: An Assessment After ten years of war 1999-2009, May 2010,Available at: http://www.osce.org/sq/kosovo/68570?download=true

http://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/260112summary.pdf



http://www.osce.org/sq/kosovo/68570?download=true

http://www.osce.org/sq/kosovo/68570?download=true


155

BIBILIOGRAPHY

Samantha Power, “America in the age of genocide: A problem from hell”, 2007,p.656 Fitnete Ramosaj, “Krimet serbe në Kosovë – PA APOLOGJI – Me fakte kundër shpifjeve”(Serbian atrocities in Kosovo - WITHOUT APOLOGY - Facts against defamation) ,vol. II, Anatema, Prishtine, 2008, pg.442. Michael J. Kelly, Can Sovereigns Be Brought to Justice? The Crime of Genocide’s Evolution and the Meaning of the Milosevic Trial, (2002), vol.76, St. John’s L. Review

Human Rights Watch, “Kosovo: EU should Ensure the Future Mission is Accountable”, 2007, Available at: http://www.hrw.org/news/2007/06/13/kosovo-eu-should-ensure-future-mission-accountable

Dimitrina Petrova, “Human Rights in the Aftermath of Kosovo”, 1999, Available at: http://www.carnegiecouncil.org/publications/archive/dialogue/2_01/articles/605.html Zivadin Jovanovic, “13 years since NATO aggression against Serbia: Violation of Human rights of Serbs in the Province of Kosovo and Metohija”, March 2012, Global Research, Center for Research on Globalization, Available at: http://www.globalresearch.ca/13-years-since-nato-aggression-against-serbia-violation-of-human-rights-of-serbs-in-the-province-of-kosovo-and-metohija/29687 Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Report on “Accountability of International Organizations for Human Rights Violations”, 2013

http://www.hrw.org/news/2007/06/13/kosovo-eu-should-ensure-future-mission-accountable

http://www.hrw.org/news/2007/06/13/kosovo-eu-should-ensure-future-mission-accountable

http://www.carnegiecouncil.org/publications/archive/dialogue/2_01/articles/605.html

http://www.carnegiecouncil.org/publications/archive/dialogue/2_01/articles/605.html

http://www.globalresearch.ca/13-years-since-nato-aggression-against-serbia-violation-of-human-rights-of-serbs-in-the-province-of-kosovo-and-metohija/29687

http://www.globalresearch.ca/13-years-since-nato-aggression-against-serbia-violation-of-human-rights-of-serbs-in-the-province-of-kosovo-and-metohija/29687


156


157

The Role of the European Union in Promoting Transitional Justice in the

Western Balkans: Past Lessons and Future Challenges

By Nina Mirosavljević*

ABSTRACT The article aims to look into the role of the European Union (EU) in promoting transitional justice in the Western Balkans. It seeks to answer the questions of how the EU affected transitional justice processes in the region, what were the outcomes of the EU’s engagement, and what are the opportunities and challenges for the future endeavours of the EU. The author argues that the EU has played an important role since states adopted transitional justice mechanisms not only to meet demands from the EU, but sometimes they also introduced them without being directly pressured in order to show the EU authorities that they respect European values and norms. However, most of the mechanisms lacked a genuine will to reconcile with the past. The EU should, therefore, pay greater attention to the implementation of transitional justice mechanisms in order to prevent eventual abuses that maintain existent ethno-nationalist narratives. Also, it should focus more on the elements of restorative justice, among which the regional truth commission seems to be particularly significant for transitional justice in this war-torn region.

*Nina Mirosavljević holds a Bachelor degree in International Relations from the University of Ljubljana and is currently pursuing her Master degree in South-Eastern European Studies at the University of Graz. She also completed one semester at the Charles University of Prague and two semesters at the University of Belgrade. Her academic interests include human rights, transitional justice, foreign policy, and European integration of the Western Balkans.


158

Introduction Transitional justice as a field of research has emerged in the late 1980s and early 1990s in the context of dramatic political changes that took place in Latin America, parts of Europe and South Africa. A new discourse of international peace and cooperation, democratization, respect for human rights and the rule of law overflew the international community.444 This prompted a question of how to deal with the past authoritarian rule and/or violent conflict as unaddressed past legacies can generate new conflicts and thus threaten stability and security of a society. Therefore, “transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. /It is/ an approach to achieving justice in times of transition from conflict and/or state repression.”445 The most common mechanisms of transitional justice are criminal prosecutions, truth commissions, material and symbolic reparations, and institutional reform. Countries can also take other measures which they find suitable for their political, economic, social and cultural context. However, the best option is to combine them and to approach transitional justice in a holistic manner.446 Only this way can they achieve the goals of transitional justice: to fill the impunity gap, provide justice and dignity for the victims, reveal the truth about past, develop a common historical record, deter from future human rights abuses as well as strengthen the rule of law and democratic institutions. Finally, all this should lead to reconciliation as the

444 Alexander Laban Hinton, “Introduction: Toward an Anthropology of Transitional Justice.” In Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence, Ed. Alexander Laban Hinton, 1–22. (New Brunswick, New Jersey, and London: Rutgers University Press, 2010), pp. 3-4. 445 http://ictj.org/about/transitional-justice 446 Ibid.

ultimate objective.447 As Andrieu put it, the aim of transitional justice is “nothing less than the transformation, or the regeneration, of a whole society.”448 Transitional justice has soon become an important element of various projects concerned with post-conflict reconstruction, peace-building and democratization. Many bilateral and multilateral agreements include transitional justice tools as one of the criteria for development assistance and other benefits. Furthermore, international and regional organizations added transitional justice to the list of the conditions for the membership. On the other hand, there is an increasing number of non-governmental organizations (NGOs) and other civil society groups that promote the process of dealing with the past. To put it differently, transitional justice has been transformed into an international norm that states have to take into consideration as they are not only encouraged, but also expected and sometimes even coerced to follow it.449 The post-Yugoslav space is a case in point. The 1990s Balkan wars which accompanied the break-up of the former Yugoslavia have ended only after the involvement of the international community. In 1993, amidst the conflict, the United Nations Security Council decided to establish the International Criminal Tribunal for the former Yugoslavia (ICTY) in an attempt to end impunity, bring justice to the victims, restore peace in the region and promote reconciliation among different ethnic, national and religious groups.450 However,

447 Jelena Subotić, Hijacked Justice: Dealing with the Past in the Balkans (Ithaca and London: Cornell University Press, 2009), pp. 3-4. 448 Kora Andrieu, ‘Transitional Justice: A New Discipline in Human Rights’, Online Encyclopedia of Mass Violence (2010), 3. 449 Subotić, Hijacked Justice, pp. 4-5. 450 Marlene Spoerri, ‘Justice Imposed: How Policies of Conditionality Effect Transitional Justice in the Former Yugoslavia’, Europe-Asia Studies 63 (2011), 1830.

http://ictj.org/about/transitional-justice


159

the newly-created republics of the former Yugoslavia refused to cooperate with the tribunal. Only after they were promised financial aid or club membership did they begin to arrest and extradite war crime indictees. The European Union (EU) has played an important role in assuring that the Western Balkans countries comply with the ICTY since it set the cooperation with the tribunal as one of the conditions that these countries have to fulfil in order to become members of the EU. Furthermore, the EU has financially supported a range of NGOs in their endeavours to promote respect for human rights, the rule of law and other principles of international law that the EU and its member states are firmly committed to. The civil society groups in the Western Balkans have thus carried out various projects and initiatives related to transitional justice. But also states themselves tried to demonstrate the EU that they have internalized European values and norms. As a result, the past decade saw also domestic criminal prosecution of war crimes, establishment of truth commissions and similar bodies of inquiry as well as different symbolic reparations. This article aims to look into the role of the EU in promoting transitional justice in the Western Balkans, in particular in Bosnia and Herzegovina,451 Croatia, and Serbia as these are the countries that were most involved in the armed conflicts in the former Yugoslavia. The questions that arise at this point are how the EU affected transitional justice processes in the Western Balkans and what are the outcomes of the EU’s engagement.452 The goal of the article is to provide a critical reflection of the past efforts of the EU’s

451 Hereinafter BiH, also Bosnia. 452 The EU performance will be assessed by looking into the implementation of transitional justice tools that states have introduced because of direct or indirect pressure of the EU. More precisely, the article will analyse whether the EU’s engagement helped states to meet the aforementioned transitional justice goals and internalize transitional justice norms.

performance in order to see what were the main strengths and shortcomings. Based on this, the article will try to identify the opportunities and challenges for the future endeavours of the EU with respect to transitional justice in the Western Balkans. Transitional Justice in the Light of European Integration The EU was established as a mechanism to bring long-lasting peace in Europe. It is committed to the promotion of peace and reconciliation and to the protection of the values such as democracy, respect for human rights, the rule of law etc. These are also the values which the EU wants to spread across its borders, especially in the countries and regions that are facing a post-conflict transition and/or transition from repressive regime to democratic rule. Transitional justice can help the EU in supporting and promoting these values, but the EU has not (yet) developed a policy or common approach towards transitional justice. However, that does not mean that transitional justice is absent from the EU policies. In fact, there is a growing awareness of its importance among the European institutions and officials in the recent years. Consequently, a set of goals, guidelines and instruments which specifically focus on bringing justice after mass atrocities and human rights violations is embedded in and promoted through various peace-building projects, mediation efforts, development assistance, enlargement strategies, crisis management and several other programmes and policies of the EU.453 In spite of the lack of a clear transitional justice strategy or policy, the EU has strongly supported transitional justice tools such as the international and domestic tribunals, truth and reconciliation commissions, various kinds of institutional reforms and other 453 Katy A. Crossley-Frolick, ‘The European Union and Transitional Justice: Human Rights and Post-Conflict Reconciliation in Europe and Beyond’, Contemporary Readings in Law and Social Justice 3 (2011), 37-8.


160

initiatives. The EU has also played an important role in promoting transitional justice in the Western Balkans. With the European Instrument for Democracy and Human Rights, the Instrument for Stability and the Instrument for Pre-Accession, the EU has given financial and technical assistance to different projects that deal with transitional justice. Furthermore, within the framework of its Common Security and Defence Policy, the EU has established missions in some of the Western Balkan countries – e.g. European Union Rule of Law Mission in Kosovo (EULEX KOSOVO) – in order to strengthen the rule of law and help with the institutional reforms.454 EULEX KOSOVO has also jurisdiction over the investigation of war crimes. However, perhaps one of the most prominent examples of the EU’s justice efforts in the Western Balkans is the policy of conditionality with regard to the EU integration of the Western Balkans. Besides the Copenhagen criteria, additional specific conditions were set for the Western Balkan countries – they had to demonstrate full cooperation with the ICTY, create real opportunities for the return of refugees and internally displaced persons and show their commitment to regional cooperation and good neighbourly relations.455 Reluctance to extradite war crimes suspects has in some countries proven to be the biggest obstacle on the path towards the EU. The EU even postponed the opening of the accession negotiations with Croatia in 2005456 and it suspended the Stabilisation and Association Agreement with Serbia in 2006 due to the failure to comply with the ICTY.457 Linking EU conditionality with the ICTY compliance was thus crucial for the prosecution of high-ranking officials. The reason why the EU insisted on ICTY conditionality lies in the belief that

454 Ibid., 39-46. 455 Iavor Rangelov, ‘EU Conditionality and Transitional Justice in the former Yugoslavia’, CYELP 2 (2006), 366. 456 Ibid., 367. 457 Spoerri, ‘Justice Imposed’, 1835-6.

impartial proceedings at the international tribunal would allow for individual accountability and thus replace collective guilt. Finally, this should foster reconciliation among different ethnic groups.458 Regional cooperation was another specific condition that the Western Balkan countries had to meet in order to begin the stabilisation and association process. With a desire to advance their accession process, the Balkan states have sometimes initiated transitional justice processes without being directly pressured or conditioned by the EU. Hence, the past years saw official apologies, talks about the fate of refugees, missing persons, mass graves etc. Also, agreements on cooperation in war crimes prosecution were signed between the countries’ prosecutor’s offices. Finally, despite the fact that transitional justice does not make a special chapter of accession negotiations, its goals and certain transitional justice issues are included in some of the chapters. For instance, the EU observes domestic wars crimes trials within the chapter on the judiciary and fundamental rights.459 Moreover, the candidate countries have to accept the acquis communitaire, meaning that they have to adopt legislation on the right to reparation, support and protection for the victims etc.460 On the whole, the EU has through various instruments promoted and supported transitional justice mechanisms in the Western Balkans. The question that appears is how the EU’s engagement affected transitional justice in the region. Did it help the states to reach transitional justice goals and internalize transitional justice norms?

458 Rangelov, ‘EU Conditionality and Transitional Justice in the former Yugoslavia’, 371. 459 Simon Jennings, ‘EU Urged to Boost Balkan Reconciliation Efforts’, Institute for War and Peace Reporting, 26 May 2009, accessible via: http://iwpr.net/report-news/eu-urged-boost-balkan-reconciliation-efforts 460 Ibid.


161

The Effects of the EU’s Engagement on Transitional Justice in the Region Let us first examine the effects of the EU conditionality. As a matter of fact, conditionality clearly bore fruit as it compelled the post-Yugoslav countries to transfer war crimes suspects to the tribunal. As the former Chief Prosecutor for the ICTY, Carla Del Ponte, put it: “Without the strong European support, the process of justice in the Balkans would be a sad failure”.461 However, the problem of linking EU conditionality with ICTY cooperation is that “domestic debates about the past have been ‘Europeanised’”,462 meaning that the countries complied with the tribunal only because they were coerced to do so. Therefore, material gains of the EU integration completely overshadowed the moral concerns. In Serbia, the necessity to cooperate with the ICTY was justified in terms of better standard of living that the EU membership will bring. War crimes that the indictees had been charged with were not a matter of a public debate.463 Contrarily, some of the indictees who voluntarily surrendered had even been praised for patriotism,464 while the ICTY judgments had been interpreted according to the official narrative of the Yugoslav wars.465 Similarly, the Croatian officials presented the need to cooperate with the ICTY as “/issue/ of Europeanization, not of international punishment or painful re-

461 http://www.icty.org/sid/8544 462 Jelena Obradovic-Wochnik, “The role of the ICTY in promoting reconciliation.” In The European Future of the Western Balkans: Thessaloniki @10 (2003-2013), Ed. Eviola Prifti, 93-100. (Paris: European Union Institute for Security Studies, 2013), p. 96. 463 Spoerri, ‘Justice Imposed’, 1838-41. 464 Ibid., 1843-5. 465 For example, Serbia welcomed the acquittals of Momčilo Perišić, Jovica Stanišić, and Franko Simatović, saying that they proved that Serbia did not wage war against BiH and Croatia. On the other hand, Croatia praised the acquittals of Ante Gotovina and Mladen Markač, stating that they demonstrate that Operation Storm was a just, defensive and liberating military operation.

evaluation of Croatia’s past”.466 The cooperation with the ICTY was thus framed as an obligation of the Croatian state in which European values and norms are respected. Any opposition or nationalist mobilization against the tribunal was characterized as anti-European and anti-democratic. But the content of the ICTY indictments had not been discussed and the official narrative remained intact.467 Furthermore, other transitional justice processes that were initiated by states themselves were also marked by the lack of genuine reckoning with the past. Namely, such mechanisms primarily serve to advance the EU integration by demonstrating the commitment to the EU values and/or showing a progress in neighbourly relations and regional cooperation. For example, the Serbian parliament adopted the Srebrenica Declaration in 2010 in which it condemned the crime committed against the Bosniaks in Srebrenica in July 1995. However, the document was adopted primarily to improve the image of Serbia in the internationally community, especially among the EU and its member states as Serbia applied for the EU membership at that time.468 “The declaration was thus not designed for the victims of the Srebrenica genocide or for the citizens of BiH or Serbia, but for the EU.”469 Furthermore, Serbia issued an arrest warrant for the member of the Bosnian wartime presidency Ejup Ganić, accusing him of involvement in war crimes committed against troops of the Yugoslav 466 Jelena Subotić, ‘Europe is a State of Mind: Identity and Europeanization in the Balkans’, International Studies Quarterly 55 (2011), 319. 467 Ibid., 318-9. 468 It was also a reaction to the resolution of the European Parliament on declaring 11 July as a remembrance day for the Srebrenica genocide as well as to another resolution on totalitarian regimes. See Daniela Mehler, ‘Understanding Normative Gaps in Transitional Justice: The Serbian Discourse on the Srebrenica Declaration 2010’, Journal on Ethnopolitics and Minority Issues in Europe 11 (2012), 147. 469 Marijana Toma, in interview with author, 16 June 2014, Belgrade.

http://www.icty.org/sid/8544


162

Army in Sarajevo in May 1992. He was arrested by the British police but the British court refused to extradite him to Serbia as the judge concluded that this was politically motivated case – Ganić was to be used as a bargaining tool to force the Bosnian government to accept the Srebrenica Declaration which would smooth Serbia’s integration into the EU.470 Likewise are public apologies a show for the European public. Political leaders from the republics of the former Yugoslavia have expressed regret and apologized for the crimes committed in the 1990s wars. The latest apology came from the acting Serbian president Tomislav Nikolić who apologized for the crimes in BiH committed in the name of the Serb peoples.471 However, he did not attend the commemoration of the Srebrenica genocide nor did he call the Serbian government to proclaim 11 July a day of remembrance. Furthermore, the Serbian officials and majority of the population still refuses to acknowledge the genocide in Srebrenica. Hence, although apologies by political leaders are definitely important in improving relations between the states, they usually do not spur a wider debate on war crimes nor provide justice or acknowledgment to the victims. As Munira Subašić, the president of the ‘Mothers of Srebrenica’, said: “They are apologizing so Europe can hear them, but they don’t really care about the victims”.472 These and other examples show that transitional justice processes in the Western Balkans have been Europeanised

470 Nidžara Ahmetašević, ‘Ganic Case Shames Serbia's War Crimes Office’, Balkan Insight, 29 July 2010, accessible via: http://www.balkaninsight.com/en/article/ganic-case-shames-serbia-s-war-crimes-office 471 B92, ‘Sva predsednička izvinjenja’, B92, 25 April 2013, accessible via: http://www.b92.net/info/vesti/index.php?yyyy=2013&mm=04&dd=25&nav_id=708359 472 Quoted in Nidžara Ahmetašević, ‘Half-Hearted War Crime Apologies Leave Victims Unmoved’, Balkan Insight, 21 January 2010, accessible via: http://www.balkaninsight.com/en/article/half-hearted-war-crime-apologies-leave-victims-unmoved

to the point at which states initiate transitional justice mechanisms in order to foster their EU integration without changing their perception of the past. Yet in spite of this lack of genuine reckoning with the past, the EU has significantly contributed to transitional justice in the region in that it triggered the introduction of transitional justice mechanisms. Hence, the role of the EU is of great importance since countries undertook measures which they would not if they had not been offered the promise of the EU membership. However, some observers argue that the EU could do more in the field of transitional justice. For example, the EU has urged countries to implement institutional reforms as a way to provide for the rule of law but at the same time it has neglected the vetting processes, which is very important in the Balkans where some of the war crimes suspects still hold public functions.473 Hence, the question that arises at this point is what are future opportunities and challenges for the EU’s role in promoting transitional justice in the Western Balkans? Future Opportunities and Challenges It seems that the EU has focused more on justice-seeking rather than truth-telling initiatives.474 In particular, it has given judicial mechanisms preference over the non-judicial tools. Moreover, the major focus was on the ICTY – an international tribunal which was rejected by the local political elites and local population, and whose indictments and judgements have always been contentiously interpreted. However, according to Marijana Toma, the Deputy Executive Director of the Humanitarian Law Center in Belgrade, the biggest obstacle to successful dealing with the past in the region is “non-existence of a regional body which would establish the facts of what has happened in the past.”475 It is precisely the fact that there

473 Simon Jennings, ‘EU Urged to Boost Balkan Reconciliation Efforts’. 474 Rangelov, ‘EU Conditionality and Transitional Justice in the former Yugoslavia’, 375. 475 Marijana Toma, in interview with author, 16 June 2014, Belgrade.

http://www.balkaninsight.com/en/article/ganic-case-shames-serbia-s-war-crimes-office

http://www.balkaninsight.com/en/article/ganic-case-shames-serbia-s-war-crimes-office

http://www.b92.net/info/vesti/index.php?yyyy=2013&mm=04&dd=25&nav_id=708359

http://www.b92.net/info/vesti/index.php?yyyy=2013&mm=04&dd=25&nav_id=708359

http://www.balkaninsight.com/en/article/half-hearted-war-crime-apologies-leave-victims-unmoved

http://www.balkaninsight.com/en/article/half-hearted-war-crime-apologies-leave-victims-unmoved


163

are several versions of the past – which are being perpetuated by the state authorities – that block the whole process of reckoning with the past.476 Hence, the EU should pay more attention to truth-telling projects. Among these one seems to be particularly important for transitional justice in the region: the initiative aimed at establishing the Regional Commission Tasked with Establishing the Facts about All Victims of War Crimes and Other Serious Human Rights Violations Committed on the Territory of the Former Yugoslavia in the period from 1991–2001 (RECOM), launched in 2008 by a coalition of more than thousands of non-governmental organizations, associations, and individuals from the former Yugoslavia.477 The draft statute of the RECOM has been handed over to the state authorities to ratify it. Therefore, the regional truth commission has not yet been established. That is why the EU support for this initiative is crucial. Namely, it can encourage regional leaders to back the RECOM as this would be well received by the EU representatives. On the other hand, it is also important that the EU develops its own transitional justice policy. In its Strategic Framework and Action Plan on Human Rights and Democracy, the EU has bound itself to develop policy on transitional justice by 2014.478 Even though this goal has not been met yet, it nonetheless shows that the EU is aware of growing significance of transitional justice. Once the EU adopts transitional justice strategy, it will also help the EU to pursue a coherent and systematic policy on transitional justice in the relations with the Western Balkans. This is important given the fact that the Western Balkan states are in different stages regarding the EU integration. This

476 Ibid. 477 Council of Europe Commissioner for Human Rights, Post-war Justice and durable peace in the former Yugoslavia (Strasbourg: Council of Europe, 2012), p. 35. 478 Council of the European Union, EU Strategic Forum and Action Plan on Human Rights and Democracy 11855/12, 25 June 2012, p. 21.

means that candidate countries such as Serbia, Montenegro, and Albania will have to adopt, implement and enforce the EU legislation, including the one related to transitional justice. On the other hand, many of those issues are not included in the relations with potential candidates such as Kosovo, Macedonia, and BiH. A common and elaborated European transitional justice policy would also push transitional justice issues higher on the agenda and signalize Western Balkan countries that they should take a more serious approach to such issues. Conclusion The EU has certainly played an important role in promoting transitional justice in the Western Balkans. It has financially and technically supported official and non-official mechanisms and initiatives that pursue transitional justice goals. However, the most prominent example of the EU’s involvement in transitional justice in the region is the ICTY conditionality which compelled the Western Balkan countries to arrest and extradite persons accused of having committed war crimes and other severe human rights violations. Furthermore, states have sometimes themselves introduced transitional justice mechanisms in order to demonstrate the EU that they respect European values and standards as well as to show progress in good neighbourly relations. This way the Balkan states hoped to accelerate their EU integration. But the problem is that most mechanisms that were implemented lacked a genuine will to come to terms with the past. On the contrary, they were mostly misused for various purposes, including for the advancing their EU accession. Past lessons thus indicate that the EU is perhaps in the best position to urge regional leaders to address transitional justice issues. However, past lessons also showed that the EU preferred criminal justice as a response to gross human rights violations at the expense of non-judicial transitional justice tools. Here is the opportunity for the EU’s future endeavours: to


164

concentrate not only on domestic war crimes prosecution but also on the elements of restorative justice. In particular important seems to be the regional initiative to form the RECOM. Regional truth commission would establish facts that could not be easily rejected by the local population. However, the RECOM has not been established yet as all post-Yugoslav states need to ratify the draft statute. This is also why the EU support is of extreme importance as it would encourage regional leaders to back the regional truth commission. In addition, the EU should continue supporting local initiatives and projects – in other words, domestic transitional justice processes – that encourage the

process of dealing with the past. At the same time, it should pay attention not only to the adoption of such mechanisms, but also to their implementation in order to prevent eventual abuses that maintain the existent ethno-nationalist narratives. Last but not least, transitional justice should be placed higher on the agenda when it comes to the EU’s relations with the Western Balkans. Namely, transitional justice mechanisms can only help the region to achieve goals such as stable democratic institutions, respect for human rights, the rule of law, and ultimately reconciliation which is in the interest of the EU as well.


165

BIBILIOGRAPHY

Ahmetašević, Nidžara, ‘Ganic Case Shames Serbia's War Crimes Office’, Balkan Insight, 29 July 2010, accessible via: http://www.balkaninsight.com/en/article/ganic-case-shames-serbia-s-war-crimes-office Ahmetašević, Nidžara, ‘Half-Hearted War Crime Apologies Leave Victims Unmoved’, Balkan Insight, 21 January 2010, accessible via: http://www.balkaninsight.com/en/article/half-hearted-war-crime-apologies-leave-victims-unmoved

Andrieu, Kora, ‘Transitional Justice: A New Discipline in Human Rights’, Online Encyclopedia of Mass Violence (2010), 1-37 B92, ‘Sva predsednička izvinjenja’, B92, 25 April 2013, accessible via: http://www.b92.net/info/vesti/index.php?yyyy=2013&mm=04&dd=25&nav_id=708359 Council of Europe Commissioner for Human Rights, Post-war Justice and durable peace in the former Yugoslavia (Strasbourg: Council of Europe, 2012) Council of the European Union, EU Strategic Forum and Action Plan on Human Rights and Democracy 11855/12, 25 June 2012 Crossley-Frolick, Katy A., ‘The European Union and Transitional Justice: Human Rights and Post-Conflict Reconciliation in Europe and Beyond’, Contemporary Readings in Law and Social Justice 3 (2011), 33-57

Hinton, Alexander Laban, “Introduction: Toward an Anthropology of Transitional Justice.” In Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence, Ed. Alexander Laban Hinton, 1–22. (New Brunswick, New Jersey, and London: Rutgers University Press, 2010) Jennings, Simon, ‘EU Urged to Boost Balkan Reconciliation Efforts’, Institute for War and Peace Reporting, 26 May 2009, accessible via: http://iwpr.net/report-news/eu-urged-boost-balkan-reconciliation-efforts Marijana Toma, in interview with author, 16 June 2014, Belgrade. Marlene Spoerri, ‘Justice Imposed: How Policies of Conditionality Effect Transitional Justice in the Former Yugoslavia’, Europe-Asia Studies 63 (2011), 18327-51 Mehler, Daniela, ‘Understanding Normative Gaps in Transitional Justice: The Serbian Discourse on the Srebrenica Declaration 2010’, Journal on Ethnopolitics and Minority Issues in Europe 11 (2012), 127-56 Obradovic-Wochnik, Jelena, “The role of the ICTY in promoting reconciliation.” In The European Future of the Western Balkans: Thessaloniki @10 (2003-2013), Ed. Eviola Prifti, 93-100. (Paris: European Union Institute for Security Studies, 2013) Rangelov, Iavor, ‘EU Conditionality and Transitional Justice in the former Yugoslavia’, CYELP 2 (2006), 365-75. Subotić, Jelena, ‘Europe is a State of Mind: Identity and Europeanization in the Balkans’, International Studies Quarterly 55 (2011), 309-30 Subotić, Jelena, Hijacked Justice: Dealing with the Past in the Balkans (Ithaca and London: Cornell University Press, 2009) http://ictj.org/about/transitional-justice http://www.icty.org/sid/8544


166


167

Mechanisms for Guaranteeing Human Rights

By Cătălina Sărăcuţu*

ABSTRACT The mechanisms for guaranteeing human rights should become the most important institutions of international law. The mechanisms to guarantee human rights and protect those rights are very important. If they do not work or are not able to avoid human rights violations we discuss application of punishments. The two works one in continuation of the other. When they reach the application of punishment it is more than evident that mechanisms for safeguarding the rights of men have not functioned properly. International humanitarian law took its modern form after World War II in order to create a deterrent to the repeat of the horrors that took place in the trenches and concentration camps. Important conventions were agreed on including the European convention on Human Rights, the Genocide Convention, the Universal Declaration of Human Rights and the four Geneva Conventions and Additional Protocols (that protect the civilians and victims of war). By including criminal provisions and obligations for nations these also gave strong notions of a development in international criminal law.

* Cătălina Sărăcuţu is a graduate of law, history and Spanish at the University of Bucharest. She also has a master's in international law and Community law. Her researches are related to the transition from dictatorship to democracy (Spanish Model and Communist dictatorships). Her knowledge of history allow her to form a wide vision of the phenomenon of legal transition considering that most often affect even the historical background of Justice decisions.


168

Introduction It is obvious that nowadays we can call upon a range of mechanisms for the protection of human rights and that they are raised to the rank of principle in many international documents. I would say that this is a big step towards normality and a gain obtained by many countries with a price far too high. Although there are such guarantees with regard to respect for human rights there are still States in which human rights are only a utopia and I remember here not only the countries of the so called "third world" but also other States. In this context, I could not remember that in former Communist countries, human rights had in international documents and citizens not dared even to invoke them in front of the authorities. However there were not only in Romania but also in Poland and in other countries, citizens who have had the courage to invoke the existence of fundamental rights in front of authorities. We called them heroes. In the period in which these people have died to defend fundamental rights there were international mechanisms on human rights, but that seems not to be enough because of political issues. With the same sadness I will continues to say that while hundreds of Romanian died in communist prisons, the Romanian dictators were perceived slips of peace and human rights. I know, it's the perception at the political level, but the reality was, the mechanisms for guaranteeing human rights had their main goal. In this context I wonder if international mechanisms are able to stop and prevent massive violations of human rights. The answer came thinking about what happened since 1992 in the former Yugoslavia began not only as conflict that has resulted in consequential violations of human rights (as we have mentioned those in Communist dictatorships) but

also crimes against peace and humanity and genocide. It looks like what happened in the World WAR II was not just a problem of mentality of one person. Even after the end of World War II, everyone was convinced that there will be no more such events it seems that these crimes are committed on innocent people and children, which means that we cannot speak of progress in protection of human rights. “Never again” was forgotten”. While the law limped lamely along, international crimes flourished. The horrors of the twentieth century are many. Acts of mass violence have taken place in so many countries and on so many occasions it is hard to comprehend. According to some estimates, nearly 170 million civilians have been subjected to genocide, war crimes and Crimes against Humanity during the past century. The World Wars lead the world community to pledge that “never again” would anything similar occur. But the shocking acts of the Nazis were not isolated incidents, which we have since consigned to history. Hundreds of thousands and in some cases millions of people have been murdered in, among others, Russia, Cambodia, Vietnam, Sierra Leone, Chile, the Philippines, the Congo, Bangladesh, Uganda, Iraq, Indonesia, East Timor, El Salvador, Burundi, Argentina, Somalia, Chad, Yugoslavia and Rwanda in the second half of the past century. But what is possibly even sadder is that we, meaning the world community, have witnessed these massacres passively and stood idle and inactive. The result is that in almost every case in history, the dictator/president/head of state/military/leader responsible for carrying out these atrocities – despite in Nuremberg – has escaped punishment, justice and even censure. Not until the world was shocked by the ethnic cleansing in the former Yugoslavia and the genocide in Rwanda could the UN,


169

no longer paralyzed by the Cold War, take action. Nations that had been unwilling to intervene to block the carnage now recognized that some action was essential. For the first time since Nuremberg, a new international criminal tribunal was quickly put in place on an ad hoc basis by the UN Security Council. Under the impetus of shocked public demand, it became possible for the UN Secretariat to draft the statues for the International Criminal Tribunal for Yugoslavia in about 8 weeks – the same time it had taken to agree upon the Charter to the International Military Tribunal at Nuremberg. The ICTY began functioning in 1994. It led to the speedy creation of a similar ad hoc tribunal to deal with genocide and Crimes against Humanity in Rwanda. Up until the present the international community has been very reluctant to enforce international criminal law. It has only been done a couple of times in history, without doubt due to the specific circumstances and the political climate at the time. The processes taking place in front of the Tribunal were people who had over 11 counts. The processes are underway just as these people accused of genocide have all guarantees for the respect of the right to a fair trial. In this context it seems that even in 2014, these people are not convicted finally, and thus we can ask if these guaranties are effective. I wonder if these mechanisms are sufficient to stop the events that lead to genocide or crimes against humanity. Effective Mechanisms to Guarantee Human Rights Most international human rights conventions obligate states parties to take certain measures with regard to the provisions contained therein, whether by domestic legislation or otherwise. Several treaties require states parties to make periodic reports. The number of treaties establishing committees specifically to oversee the implementation of particular conventions, however, is not large,

although increasing, while relatively very few provide for the right of individual petition, although consideration is now being given to the possibility of extending the right of individual petition to the Economic, Social and Cultural Rights Committee. The question of consistency in view of the increasing number of human rights bodies within the UN system has been partially addressed by the establishment of an annual system of meetings between the chairpersons of the treaty bodies. Issues of concern have been discussed, ranging from the need to encourage states to ratify all human rights treaties, concern about reservations made to human rights treaties to establish that successor states are automatically bound by obligations under international human rights treaties from the date of independence irrespective of confirmation. The Nuremberg and Tokyo trials were founded on the wish that atrocities similar to those that had taken place during the Second World War would “never again” recur. In 1948 the U.N. General Assembly adopted a resolution reciting that “in the course of development of the international community, there will be an increasing need of an international judicial organ for the trial of certain crimes under international law.” Initiatives to create such an institution were taken as early as 1937 by the League of Nations that formulated a convention for the establishment of an international criminal court, but the Cold War led to deadlock in the international community and the matter fell into oblivion. Sadly we realize that the cruelties during World War II were not isolated incidents. Genocide has since Nuremberg taken place in Uganda, in Cambodia, in Rwanda, in Somalia, in Bosnia, and the list could go on. Not until the world was shocked by the ethnic cleansing in the former Yugoslavia and the genocide in Rwanda, could the UN, no longer paralyzed by the Cold War, take action. In response the Security Council, basing its decisions on Chapter


170

VII of the UN Charter, commissioned two ad hoc international criminal tribunals (the ICTY for the former Yugoslavia and the ICTR for Rwanda) to investigate alleged violations and to bring the perpetrators to justice. Without doubt, these courts have significantly contributed to the development of international criminal law, but they have not been entirely successful. Their biggest problems have been the lack of formal means of enforcement to seize indicted criminals. After the Cold War tensions had dissolved the world community showed a renewed interest in creating an international criminal court. On December 4, 1989, the United Nations General Assembly adopted a resolution that instructed the International Law Commission (the ILC) to study the feasibility of the creation of a permanent ICC. Four years later, and obviously pleased with the ILC’s report, the General Assembly called on the Commission to commence the process of drafting a statute for the court. This statute was presented in 1994. The following year a preparatory committee was established to further review the substantive issues regarding the creation of a court based on the ILC report and statute. The aim was to prepare a convention for the ICC that had the prospects of being widely accepted globally. International crimes, particularly war crimes and Crimes against Humanity, have been, regrettably, all too common. Ongoing violence and widespread civil unrest continue in numerous situations, and those responsible for atrocities have rarely faced justice. With a substantially increased risk of further terrorist attacks in the aftermath of the September 11th terrorist attacks and the Bali bombings, the development of appropriate legislative and institutional responses to international crimes has acquired a new urgency. For more than four decades after the establishment of the Nuremberg and Tokyo tribunals the enforcement of international criminal law remained an

exclusively national responsibility and the report card is appalling. The abject failure of an exclusive reliance on national courts and legal processes to rein in impunity for the perpetration of atrocities is the single most compelling argument for an effective international criminal law regime. This is not to suggest that the international community needs an effective international regime to replace or supplant national courts and processes. Rather, the suggestion here is for an effective international supplement to national structures and processes – a multilateral institutional framework to hold some key individuals to account while simultaneously providing a catalyst for more effective national enforcement of international criminal law. I believe that national courts should be the ones to protect and to punish violations of human rights. In this way we do not find ourselves in situations where it puts in question the competence of the international tribunal and last but not least, political involvement. If an instance is found in the internal situation to judge violations of human rights can be guaranteed adequate separation of powers works in the State. At the same time these incidents would not have to be viewed internationally as situations to be handled by international bodies and guaranteeing respect for contrary human rights is an obligation of any State. It should not just be a formal obligation but with results. It is obvious that we have the situations in which national courts cannot handle such cases and here we have in mind cases in which the defendant is a head of State. The Nuremberg Tribunals were a precedent and a promise. As part of the universal determination to avoid the scourge of war, legal precedents were created that outlawed wars of aggression, war crimes and Crimes against Humanity. The implied promise held forth to the world was that such crimes would be condemned in future, wherever they occurred and that no person or nation would be above the law. After half a


171

century, it now seems possible that the promise may yet to be fulfilled. International criminal law is undergoing a rapid transformation. One of the most important events in this evolution was the coming into force of the Rome Statute of the International Criminal Court (the “ICC”) on July 1, 2002. There is no doubt that the international community is entering a new era in which perpetrators of international crimes will no longer enjoy impunity. The creation of the new international Criminal Court will prove a catalyst for states to take the national enforcement of international human rights law much more seriously than has hitherto been the case. Many states, recognizing the potential scope of the International Criminal Court’s jurisdiction – particularly in relation to the so-called “principle of complementarity” – have already enacted broad-ranging criminal legislation to ensure that all the crimes within the Rome Statute are covered by domestic penal law. The overwhelming motivation for this unprecedented criminal law reform is to maximize the potential benefits of the principle of complementarity in the event of allegations against a State’s own nationals. The Rome Statute is one of the sources of international criminal law. The pre-existing sources on which the Statute was built not only include rules of international humanitarian law, and in particular those contained in the Geneva Conventions and their additional protocols, but also the rules and categories established under the Nuremberg and Tokyo War Tribunals – “war crimes,” “Crimes Against Humanity,” and the crime of “aggression.” Another important source includes the experience gained from the ad hoc tribunals created by the UN Security Council – the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In the early 1990s, the Cold War had ended, and most formerly Communist

nations were beginning the difficult transition to democracy and capitalism. The end of tight Communist control in Eastern Europe also unleashed long-suppressed nationalism among ethnic groups. In 1991, two of Yugoslavia’s four republics, Slovenia and Croatia, declared independence. Ethnic-based conflict broke out almost immediately, prompted largely by the resistance to independence of large Serb minorities in Croatia. In 1992, the Security Council established a Commission of Experts to investigate evidence of violations of humanitarian law in the territory of the former Yugoslavia. The accounts of atrocities in the early years of the Bosnian Civil War prompted the creation of the first international war-crimes court since Nuremberg and Tokyo. In May 1993, the U.N. Security Council formally established the ICTY (Res. 827). The new court, with its seat in The Hague was given responsibility for prosecuting crimes that violated the Geneva Conventions, including genocide and Crimes against Humanity. For the first time ever, rape was recognized as a crime against humanity when it was included in the ICTY’s mandate. The ICTY’s first indictment was handed down in November 1994. As of September 1997, a total of 78 individuals have been publicly indicted by the Court. Fifty-seven of those indicted are Serbs, 18 are Croats and 3 are Muslims. The court handed down its first sentence in November 1996, sentencing Drazen Edemovic, a Croat who served in the Bosnian Serb Army, to ten years in prison for his role in the Srebrenica. Although there are mechanisms which supervises and guarantees human rights they have not been able to prevent and discourage the massive violations of human rights. In this context we can ask whether these mechanisms work properly.


172

The Council of Europe was founded in 1949 as a European organization for encouraging and developing intergovernmental and inter-parliamentary co-operation. Its aim as laid down in article 1 of the Statute is to achieve a greater unity between member states for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress. The principles of the Council of Europe as established in article 3 of the Statute include pluralist democracy, respect for human rights and the rule of law. The demise of the Soviet Empire in Eastern and Central Europe has been the primary reason for the great increase in member states over the last few years. The process of joining the Council of Europe has provided the Council with some influence over prospective members and this has led both to expert advice and assistance being proffered and to commitments being entered into in the field of human rights by applicants. 479

479 Parliamentary Assembly Opinion No. 190 on the Application of Ukraine for Membership, ibid., p. 373, and Opinion Nos. 183 (1995) on the Application of Latvia for Membership, 188 (1995) on the Application of Moldova for Membership and 189 (1995) on the Application of Albania for Membership, HIINF (95) 3 pp. 77 ff. Note that under Recommendation 1055 (1995), the Assembly decided to suspend the procedure concerning its statutory opinion on Russia's request for membership in the light of the situation in Chechnya. However, Russia joined the Council of Europe in early 2 . Assembly Order 508 (1995). The Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (known as the Monitoring Committee) commenced operations in April 1997 under the authorisation of Assembly resolution 11 15 (1997). This Committee is responsible for verifying the fulfilment of the obligations assumed by the member states under the terms of he Council of Europe Statute, the European Convention on Human Rights and all other Council of Europe conventions to which they are parties, as well as the honouring of the commitments entered into by the authorities of member states upon their accession to the Council of Europe. It reports directly to the Assembly.

For example, Parliamentary Assembly Opinion No. 191 on the Application for Membership by the Former Yugoslav Republic of Macedonia that the applicant entered into commitments relating to revision and establishment of new laws (for example, with respect to the organization and functioning of the criminal justice system), amendment of the constitution in order to include the right to a fair trial, and agreement to sign a variety of international instruments including the European Convention on Human Rights, the European Convention on the Prevention of Torture and the Framework Convention for the Protection of National Minorities. In addition, the applicant agreed to co-operate fully in the monitoring process for implementation of Assembly Order No. 508 (1995) on the honouring of obligations and commitments by member states of the Council of Europe as well as in monitoring processes established by virtue of the Committee of Ministers Declaration of 10 November 1994. The Council of Europe has also moved beyond agreeing or noting commitments made at the time of application for membership and approval thereof to consideration of how those commitments have been honoured once an applicant has become a member state.² The Committee of Ministers Declaration of 10 November 1994 provides a mechanism for examining state practice in this area and one may expect further developments in this context.' In 1999, the Council of Europe established the office of the Commissioner for Human Rights within the General Secretariat to promote education and awareness in the field of human rights. According to Resolution 787(1992) of the Security Council of United Nations Organization “reaffirms that any taking territory by force or any practice of ethnic is unlawful and unacceptable and will not be permitted to affect the outcome of negotiations on constitutional arrangements for Republic of Bosnia and Herzegovina...” From 1992 till the end of the conflict was a long process. In 1993, Security Council (Resolution 820)


173

condemned once again all violations of international humanitarian law, including in particular the practice of “ethic cleansing” and the massive, organized and systematic detention and rape of woman and reaffirmed that those who commit or had committed or order or had ordered the commission of such acts would be held individually responsible of such acts. Acting under Chapter VII of the Charter of United Nations, Security Council took all necessary measures such as to prohibit the transport of all commodities and products across the land borders or from the ports of Federal Republic of Yugoslavia (Serbia and Montenegro) with special exceptions (Resolution 820/1993). In 1993 (Resolution 827) Security Council decided to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violation of international humanitarian law committed in the territory of former Yugoslavia between 1 January 1991 and a date to be determined by Security Council upon the restoration of peace and to this end to adopt the Statute of International Tribunal. Events in the former Yugoslavia in particular impelled a renewal of interest in the establishment of an international court. The International Law Commission in 1991 provisionally adopted a Draft Code of Crimes against the Peace and Security of Mankind, which was revised in 1996. In 1996 Draft Code provides for individual criminal responsibility with regard to aggression personnel and war crimes. The fact that an individual may be responsible for the crimes in question is demand not to affect issue of state responsibility. The Security Council in two resolutions on the Somali situation in the early 1990’s unanimously condemned breaches of humanitarian law and stated that the authors of such breaches or those who had ordered their commission would be held individually responsible for them.

Yugoslavia experience and the Rwanda massacres of 1994 also led to the establishment of two specific war crimes tribunals by the use of the authority of United Nations Security Council to adopt decisions binding upon all member states of the organization under Chapter VII of the Charter, rather than by an international conference as was to be the case with International Criminal Court. Acting under Chapter VII of the Charter of United Nations, Security Council decided in 2010 to establish the International Mechanism for Criminal Tribunal which should commence functioning on 1 July 2012 (branch for International Criminal for Rwanda) and 1 July (branch for International Tribunal for the former Yugoslavia) and decided to adopt their Statute (Annex 1 of Resolution 1966). They also decided that the Mechanism shall operate for initial period of four years from the first commencement date referred to in the paragraph 1 of Resolution 1966 and to review the progress of the work of the Mechanism, including in completing its functions before the end of this period and every two years thereafter. According to its Statute, the Mechanism shall have the power to prosecute the person indicated by International Criminal Tribunal for Rwanda and International Criminal for Yugoslavia. The International Criminal Tribunal for the Former Yugoslavia was the first war crimes court created by United Nations and the first international war crimes tribunal since Nuremberg and Tokyo tribunal. It has jurisdiction over four clusters of crimes committed on the territory of the former Yugoslavia since 1991: grave breaches of the Geneva Conventions, violations of the laws, genocide, and crimes against humanity. The maximum sentence it can impose is life imprisonment. The United Nations Security Council called upon the Tribunal to finish its work by 31 December 2014 to prepare for its closure and transfer of its responsibilities


174

to the International Residual Mechanism for Criminal Tribunals which began functioning for the ICTY branch on 1 July 2013. Between 2005 and 2007, the Tribunal referred a total of eight cases, involving 13 accused of intermediate or lower rank, to national jurisdictions in accordance with Security Council resolutions 1503 (2003) and 1534 (2004). This reduced the overall workload of Tribunal, making it possible to bring the cases of the most senior leaders to trial sooner than would otherwise have been possible. The referral of those cases to national jurisdictions also increased engagement with national judiciaries in the former Yugoslavia and helped to build the capacity of those jurisdictions in the prosecution of violations of international humanitarian laws, thus reinforcing the rule of law in these new States. The International Tribunal for the Former Yugoslavia and the International Criminal for Rwanda continued to assist the Mechanism in drafting its regular framework for provision of judicial services. The extensive involvement of International Tribunal for the Former Yugoslavia in the drafting process ensured that the lessons learned and the best practices from Tribunal’s 20 years of cooperation, along those of International Criminal Tribunal for Rwanda, are captured in relevant Mechanism documents. In 2013, Security Council decided (Resolution 2130) “to extend the term of office of permanent and ad litem judges at the International Tribunal, who are members of Trial Chambers and the Appeal Chamber until 31 December 2014 or until completion of the cases to which they are assigned, if sooner”. The slow progress with respect to the investigation and prosecution of other war crimes cases, in particular sexual violence cases, also continues to be a source of concern. Little progress has been made in the many cases transferred from Bosnia and Herzegovina State Court to entity-level authorities and it is clear that the authorities of Bosnia and Herzegovina will

not meet the end of 2015 deadline prescribed in the National War Crime Strategy for completing the most complex cases. The Court of Bosnia and Herzegovina reopened 15 cases and has so far issued new sentences in seven of them (three sentences have been enforced). The other defendants are currently in International Criminal Tribunal’s custody, either because no new sentences have been imposed or because their sentences have not yet been enforced. No sentences have yet been imposed for defendants who were convicted of genocide. It is likely that more individuals convicted under the 2003 Criminal Code will take theirs to Constitutional Court of Bosnia and Herzegovina. The international community continues to play an important role of providing incentives for State of former Yugoslavia to cooperate with the Tribunal. The European Union policy of conditionality linking progress in accession to membership to full cooperate with the Tribunal remains an effective tool for ensuring continued cooperation with the Tribunal and consolidating the rule of law in the former Yugoslavia. The Tribunal has now completed almost all its cases; fewer than 10 trials and appeals remain, involving the last 20 defendants and appellants of the 161 indicted. In the particular the Tribunal benefits from assistance of Security Council, the Office of Legal Affairs of the Secretariat and the other United Nations organs, national Governments, non-governmental and translational organizations and other supporters. Guarantees of Human Rights from Theoretical Perspective There are writers who regard the high incidence of non-compliance with human rights norms as evidence of state practice that argues against the existence of structure of human rights principles in international law. Although sight must not be lost of violations of human rights laws such an approach is not only academically incorrect but also profoundly negative.


175

The concept of human rights is closely allied with ethics and morality and this has to be fundamental in national legislation. The applicability of international law should be by way of an exception. Those rights that reflect the values of community will be those with the most chance of successful implementation. Generally speaking about human rights we are associated this with modern state but the natural rights approach of the seventeenth century, associated primarily with John Locke, who founded the existence of such inalienable rights as the right to life, liberty and property upon social contract marking the end of difficult conditions of state of nature. This theory enabled recourse to be had to a superior type of law and thus was able to provide a powerful method of restraining arbitrary power. Although this approach fell out of favour in the nineteenth century due to the problems of non-empirical and diffuse methodology, it proved of immense value last century in the establishment of human rights within the international community as universal principles. Positivism as theory emphasis the authority of state and as such left little place for rights in the legal system other than specific rights emanating from constitutional structure of that system, while Marx’s doctrine (The dictatorship of the proletariat there are no social classes,

the State and other political organizations, the society disappear through self-management. The principle of this doctrine is that under conditions of a wealth of products; Marxist ideology claimed that the dictatorship of the proletariat was a necessary evil, which validated the exploitation of man by man, removes differences and inequalities of economic class, and has a superior organization of the previous forms), although based upon the existence of certain immutable historical laws governing the development of society, nevertheless denied the existence of rights outside the framework of legal order. Modern right theories cover a wide range of approaches and this

clearly emphasizes the need to come to terms with the requirements of evolving legal system that cannot be totally comprehended in terms of that system itself. Human dignity is seen as the key concept in relation to these values and to the ultimate goal of a world community in which a democratic distribution of values is sought. All this theories emphasise the complexity of nature of concept of human rights in the context of general legal and political processes, but also the importance and centrality of such notions. The broad issues are similarly raised within the frame work of international law. The view adopted by the Western world with regard to international human rights law in general terms has tended to emphasise the basic civil and political rights of individuals, that is to say those rights that take the form of claims limiting the power of government over the governed. Such rights would include due process, freedom of expression, assembly and religion, and political participation in the process of government. The consent of governed is seen as crucial in this process. The approach of Soviet Union was to note the importance of basic rights and freedoms for international peace and security but to emphasise the role of state. Indeed the source of human rights principles was seen as the state. G. Tunkin in Theory of International Law480

wrote that the content of principles of respect for human rights in international law may be expressed in three propositions: 1. all states have the duty to respect the fundamental rights and freedoms of all persons within their territories 2. state have a duty not to permit discrimination by reason of sex, race, religion or language 3. states have the duty to promote universal respect for human rights and

480 G.Tunkin, Theory of International Law, London, 1974, pag.74


176

cooperate with each other to achieve this objective. Human rights were not directly regulated by international law and individuals were not subjects of international law. Indeed human rights were implemented by state and matters basically and crucially within domestic affairs of state. As Tunkin emphasized “conventions of human rights do not grant rights directly to individuals”481. Having stressed the central function of the state, the point was also made that the context of the international human rights obligations themselves was defined solely by the state in the light of socio-economic system of the state in question. According, the nature and the context of those rights would vary from state to state depending upon the social system of state in question. It was the particular socio-economic system of state that would determine the concrete expression of an international human rights provision. Concern with the equality and sovereignty of states, together with recognitions of importance of social and economic rights has characterized the Third World View. Such countries have been influenced by decolonization and the struggle to obtain it and by the phenomena of apartheid in South Africa. Of particular interest is the tension between the universalism of human fights and the relativism of cultural traditions. This has led to arguments by some adherents of latter tendency that human rights can only be approached within the context of particular cultural or religious traditions, thus criticizing the view that human rights are universal or trans-cultural.482 Conclusion Analysing the exposed briefly in my presentation, we are entitled to wonder if international mechanisms for safeguarding the rights of men are

481 idem 482 Steiner and Alston, International Human Rights, pag 366

effective. It is obvious that there was and there is progress in this area but they are not sufficient. In events that happen to us we trust and use of mechanisms to guarantee human rights. In all situations where I think we can say that the events of the past will not be repeated and that the future will look different. Efforts to respect and guarantee human rights are considerable. In this context, we can be confident that there is a breakthrough on the whole. Events in certain areas with specific features can identify new challenges for these guarantees. These things allow us to declare that this matter is in continuous progress and we should adapt to the new challenges.


177

BIBILIOGRAPHY

Resolutions of Security Council of United Nations Organizations, UN’ website: 2130(2013), 2081(2012), 2074(2012), 2019(2011), 2007(2011), 1993(2011), 1966(2010), 1954(2010), 1931(2010), 1915(2010), 1900(2009). 1849(2008), 1845(2008), 1786(2007), 1775(2007), 1660(2006), 1639(2005), 1629(2005), 1581(2005), 1567(2004), 1535(2004), 1504(2003), 1503(2003), 1423(2002), 1420(2002), 1396(2002), 1350(2001), 1329(2000), 1247(1999), 1141(1997), 1047(1996), 1034(1995), 1022(1995), 1022(1995), 1021(1995), 959(1994), 958(1994), 877(1993), 871(1993), 870(1993), 869(1993), 780(1992), 769(1992), 760(1992) United Nations Charter, United Nations, website European Convention of Human Rights, CEDO website Universal Declaration of Human Rights, website Assessment and Report of Judge Theodor Meron, President of International Tribunal for the Former Yugoslavia, provided to the Security Council pursuant to paragraph 6 of Security resolution 1534 (2004) and covering the period from 19 November 2013 to 16 May 2014 (YTCY website) Report of Serge Brammertz, Prosecutor of the International Tribunal for the Former Yugoslavia), provided to the Security Council under paragraph 6 of Security resolution 1534 (2004) Civil and Political Rights Covent, 1966; Genocide Convention, 1948; Convention on the Suppression and Punishment of the Crime of Apartheid,1973. Slavery Convention, 1926 Malcom N. Shaw, International Law, Cambridge 2003

George Tunkin, Theory of International Law, 1974 Steiner and Alston, International Human Rights, 2008


178


179

Human rights and the right to life

By Aleksandar Todoroski*

ABSTRACT This essay is going to cover the topic of the human rights in general, the theories surrounding them, the categories of human rights and their position against public interests. A special emphasis will be put on the right to live as ‘… the supreme value in the international hierarchy of human rights…’ 483 especially in the context of the European Convention on Human Rights (Article 2). The sole purpose of the paper is to challenge the readers to think about the essence, philosophy and morality of the human rights and the right to life, in particular. I hope to achieve that by providing a thorough analysis about different aspects of human rights and diverse views on them as well as by pointing out the importance of the right to life. This will have as a result not just a better understanding of the doctrine of human rights (which by itself is nothing more than just a theory) but hopefully it will also give rise in the mind of the reader, to a whole new, better and improved, more ethical view on the world and the people living in it. But, of course, it is up to the reader to decide if this essay is going to influence his opinion and challenge him to think more broadly and from a different, more moral perspective.

* Aleksandar Todoroski is currently a postgraduate student at the University of Edinburgh, School of law, studying European law. He finished his undergraduate studies at the Ss. Cyril and Methodius University, Iustinianus Primus Faculty of law – Skopje, Macedonia. Aleksandar has always found the area of human rights of particular interest to him. In the future, he intends to pursue a legal career. Email: [email protected]

483 Streletz, Kesscer and Krenz v Germany, 2011 – 11; 33 ECHR 751 GC, para 87

[180]

I – Human Rights in General: A Basic Understanding of Human Rights ‘The idea of human rights is one of the most powerful ideas in the contemporary social and political discourse’484. Today’s ideas and views of the majority of people are that, prima facie – everybody has equal and legitimate right to tangible and intangible assets and benefits which are of essential meaning and purpose for the welfare of the people. This is a very powerful concept which has its basis in the rise of the theory of natural rights, liberalism, constitutionalism and of course, internationalism (the last theory is especially powerful in the contemporary world). This in fact means, abandoning the European feudalism that used to rule in Europe in the Middle ages (that had very little, if any, appreciation of the human rights theory) and heading to the new and modern era where human rights are much more appreciated and protected (at least in the majority of countries). Human rights are a strong concept which seeks to overcome the many variations of today’s division and sectarianism and to unite the people coming from different cultural and religious traditions into a single movement which as its objectives has the development and preservation of the human values and the universality of mankind. This is actually happening in time when it is quite obvious that the forces of the economic globalization and globalization in general are threatening those human values and ideals. So, this concept is very important in today’s globalized world because it represents an appeal for unification in order to get to a world that is just, peaceful and sustainable. That is why, in the context of human rights, the process of dialogue and discussion is very important, because it enables mankind to achieve these universal values.

484 Jim Ife, Human rights and social work, Towards Rights based practice, 2012, Revised Edition, Curtin University of Technology, Cambridge University Press, pp .15 .

Now, many authors suggest that the modern idea of human rights is in most parts, a product of the Enlightenment that started in France and England and spread to the other western countries485. Perhaps that is the reason why human rights are so often, if not always, associated with the western thought, philosophy and modern structure. On the other hand, this is also the reason for the critics that the ‘East’ (by this meaning not the East literally) frequently makes that human rights are just another manifestation of the colonial western politics, in order to secure global domination over the other ‘non-European’ countries.486 These critics may go hand in hand with the critics of the modernization theory which say that modernization is actually westernization, because in both cases tradition is the obstacle to achieving a higher protection of human rights and modernizing the societies (which at the end would also include a higher level of human rights protection), respectively. However, I believe that it is inevitable to accept at least some of the western practices (the human rights coming first in the queue) in order to be considered a modern and liberal country. That is because when you consider the essence and purpose of the human rights, and most of all how they are applied and protected in the Western European countries (not only to ‘westerners’) than it becomes so clear that they are to some extent a civilization benefit of all of mankind (which took mankind many centuries to achieve). It is also not true that the human rights are a modern concept that was established and rapidly developed over the last two centuries, having its roots only in the Enlightenment. While it is true that the Enlightenment played a crucial role in the construction of the modern western framework of the human rights, it is also true that the concept of human rights

485 see Wonka 1992, Gatung 1994, Beetham 1995, Bobbio and Perreira 1997, Bauer and Bell 1999 486 Aziz 1999, cited from Jim Ife – Human Rights and social work.


181

exists in the scrolls and documents from very distant times (even the ancient times), although the term ‘human rights’ itself is a recent one. But I believe that that does not make a difference at all. It is the essence and purpose of the scrolls that are relevant to mankind. Consequently, that makes the human rights an old concept that has never been appreciated as much as it is appreciated nowadays (of course, there were differing levels of human rights protection in different periods of the human history). However, even the most persistent human rights protagonists are sometimes left in doubts when they are left to answer the following questions (which are in fact critics to the concept of human rights): 1. The cultural prejudices – human rights can be seen and interpreted in a different manner by different cultures. One cannot expect that the English courts will have the same interpretation of the human rights doctrine as the Saudi Arabia courts or the Russian courts. 2. The statements by the individuals claiming human rights for themselves can be selfish and done only because of their individual self-interests. To put it bluntly, it refers to the selfish phrase ‘I like… this or that’ (for example: the right to possess a car, the right to watch a movie while flying in a fancy airplane). So, seen in this manner, human rights have actually become the new language for consumerism and self-satisfaction which are so characteristic for the capitalism. 3. Human right can also enter into a conflict between each other, for example: the right to express yourself freely contradicts the right to protection from insult or libel. In the XIX century, the right to a ‘humanitarian intervention’ i.e. a military intervention in order to prevent the massive violation of the human rights that was happening, was requested as a norm of the international custom law by the western European countries which were seeking protection for the Christian minorities on the Balkan and on the Near East from the atrocities done by the

Ottoman empire. However, later on, this proved to be a double-edged sword since the same statement was made by Adolf Hitler when he was ‘protecting’ the German minorities in the countries he occupied. In the second half of the XX century, something quite different was happening. In particular, there was a ‘war’ in the academia as a result of which two groups of authors have emerged: 1. The supporters of the idea of the human rights having a privileged status over pretty much everything else 2. The sceptics which although considered the human rights as having a certain value for mankind, the rights nonetheless do not deserve a privileged status over the accomplishment of the collective or public interests/goods487 (see the chapter ‘Human rights versus Public interests’) To conclude, I believe it is notable to mention that although many people today think that the human rights should be of concern only to the judges, lawyers, professors and some other individuals ‘that have nothing else to do’, the human rights affect pretty much everybody, especially the people in the medical profession, social work et cetera. Theories of Human Rights Even though the basic idea of human rights is acknowledged and to a large degree accepted universally, throughout time many theories of human rights have developed, emerging from broader ideologies and views that represent their basis. 1) There are two most common views on human rights: the positivistic view and the dynamic or evolutionary view on the human rights.

487 Steven Greer, The European Convention on human rights, 2006, Cambridge University Press, pp. 10


182

The positivistic view on human rights claims that the human rights somehow ‘exist’ in an objective form and can be identified, ‘discovered’ and empirically measured or verified and that the rights exist regardless of the human behaviour. The other view is that the rights are constructed through the interaction of the people and through the continuous dialogue regarding what should the common humanity of mankind consist of. So, the rights are not static and permanent. On the contrary, they vary over time, in different cultures and in different political surroundings. 2) The theory of natural rights is by far the most commonly accepted (of course not by all) and analysed theory regarding human rights. This natural rights theory has its beginnings in the period of Enlightenment in France, England and after that in the United States of America, in particular in the works of intellectuals such as John Locke, Francis Bacon, Jean Jacques Rousseau, Thomas Jefferson, Benjamin Franklin et cetera. The basis of this natural rights theory is that every person has human rights from the moment he/she is born i.e. from the moment he/she actually becomes ‘a person’. The basis for this is the humanity of mankind, which lies in the essence of the people. In other words, this theory basically says: ‘All of us are equal and we ‘naturally’ have these human rights’. The natural rights are part of the human being and are not just manifestations of the values of a particular culture. John Locke talks about the natural right to life, liberty and property considering them as a single natural right. Regarding the interconnection between these ‘separate’ human rights one cannot blame Locke for putting them all together like this. On the contrary, this natural right is the very essence of what humanity of mankind should be all about. The right also enables welfare of all the people. However, John Locke also talks with the language of the so-called (in the

contemporary literature) patriarchal philosophy, by not including the women in the definition of ‘a person’ and by doing that inflicting considerable damage to the contemporary understanding of the term human rights. Tomas Jefferson is also one of the most famous protagonists of this doctrine and the person who implemented it in the American Declaration of Independence. Not only that, he was also trying to put an end to the slave trade in the United States of America. 3) Through the evolution of the philosophical, legal and economical thought, many other views on human rights have emerged and left a mark in human history because of the sense that they made and because of the arguments that they gave to support those views. 3. The robust Marxist perspective – human rights are nothing but a manifestation of the bourgeois ideology. They do not exist in reality, but are there only on paper, so that the proletariat believes they have something to rely on (which is clearly not the case). 4. Communitarian or cultural-relativistic perspective – human rights do not have universal characteristics. On the contrary, they transcend the views of the particular communities. Feministic perspective – the idea of human rights is in its core a patriarchal one. That is why it cannot be accepted as it currently is. Changes need to be done. 5. Postmodern perspective – the ideal of human rights is just one of the many illusory ‘big narratives’, doomed by the irreconcilable inconsistencies in the language never to acquire an objective status. There were also many authors writing directly against human rights, especially against the concept of natural rights. The conservatives, such as Edmund Burke were strongly opposing the idea of natural rights. ‘The only true rights are the legal rights and they should exist only if they are in accordance with the principle of


183

utilitarianism’ – said Jeremy Bentham. John Stuart Mill shares the same opinion with Bentham, slightly mitigating his robust statements by adding the equal right to freedom. Categories of Human Rights There are two main classifications of human rights categories. The two classifications rely on different criteria. The first classification claims that there are two different kinds of human rights: universal human rights and specific rights. A universal human right would be the right to education. A specific right would be the right of the professor to have a fancy office and a high salary. Obviously, the latter cannot violate the former human rights, since the universal human rights are by far more important than the specific rights. The people on the margins of the society usually require the universal human rights. That is more than enough for them. On the other hand, the rich people demand to have the specific and privileged rights, since they are taking the universal human rights for granted. But, there are also situations where specific rights are required by the socially vulnerable population (such as certain categories of women, children, the people in asylum et cetera). These specific rights, even though they are ‘specific’ by nature, should be regarded in the scope of the universal human rights. The other classification of human rights considers the term ‘human rights’ as a general and broad term encompassing different types of rights. It actually refers to generations of rights, following the evolutionary path towards the status of the human rights that we have today. According to this classification, there are three generations of rights: 6. The first generation of human rights included the so-called ‘blue’ right dealing essentially with liberty and participation in the political life. Logically, these rights include the civil and political rights.

7. The second generation of human rights included the economic, social and cultural rights which began to be recognized by the governments after World War II. 8. The third generation of human rights included the so-called ‘green’ rights which consist of extremely broad spectrum of right (for example: right to healthy environment, natural resources, intergenerational equity and sustainability et cetera). Human Rights versus Public Interests When making a decision, the judges try to balance between the human rights and the collective/public interests or goods. For Jürgen Habermas that is wrong, for Robert Alexy that is inevitable. Some even say that depends on the way you perceive and interpret the concepts of human rights and public interests and that none of them has an advantage over the other one, so there should be a balance between them (the model of balance). However, the result of theories like this is undermining the effort that mankind has made to climb the human rights on the pedestal of the human history. 1. On the other hand, the diametrically opposing solution of accepting the ‘model of advantage’ for the human rights at the expense of public interests has the following weaknesses: 2. The true objectives of the human rights are difficult to ‘discover’ 3. Authors and judges may come across problems involving the strict or broad interpretation of the rights 4. The choice the authors and judges must make between: staying loyal to the ‘purpose of the forefathers’ or interpreting the right in a modern context. However, probably the best approach would be to give privilege to the human rights just for the sake and importance of the concept itself. But, this does not mean accepting the ‘model of advantage’ for the human rights, since the rights are not


184

always and absolutely more valuable than the public interests.488 If the Government does not consider the human rights seriously, then it does not consider the law seriously too.489 I guess this is one more reason why the human rights need to be privileged in most (but not all) of the situations. II – The Right to Life I truly believe that if I want my goal to make the reader think about the human rights concept in depth, to succeed, then I must also provide at least a limited analysis of the right to life as the most powerful human right that has echoed throughout the human history. It is a right that is understandable by itself, a human right per se that I consider cannot be avoided in any discussion involving the importance of human rights, because we may as well say it represents the basis of human right, humanity and human values. Writing about it in this paper will only contribute to increasing the significance of the concept of human rights in the reader’s mind. I will do that mostly by interpreting article 2 of the European Convention on Human Rights. The Right to Life in the European Convention on Human Rights (Article 2) ARTICLE 2 of the European Convention on Human Rights: Right to life 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

488 Greer, The European Convention on Human Rights 489 Ronald Dworkin, ‘Takings rights seriously’, 1 November 1978, pp. 210

(a) in defense of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection The natural rights theorists from the XII and XIII century claimed that because nobody in the ‘state of nature’ (that is, before the ‘civilization’) had a stronger right to life or right to existence than the others, that means that everybody has an equal natural law of existence i.e. right to life. Regulated with imperative norms, the right to life, the prohibition of torture and the prohibition of slavery represent a protection of the physical and moral integrity of the human person.490 In Article 15 of the Convention where it talks about derogation from the human rights in times of emergency, the following is said (art.15 para. 2): ‘No derogation from Article 2, except in respect of deaths resulting from lawful acts of war… shall be made under this provision.’ This only emphasizes the importance of art. 2. The first sentence of article 2 involves the ‘…primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions’.491 That legal and administrative framework actually means enacting criminal laws (substantive and procedural) which regulate all of the aspects concerning this principal and most important human right. In other words, those are laws that

490 Frédéric SudrE, European and international

human rights law, 9edn, june 2008, pp. 291 491 Makaratzis v Greece, 2004-XI, 41 ECHR, para 57 GC

https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CCQQFjAA&url=http%3A%2F%2Fwww.univ-montp1.fr%2Fcontent%2Fdownload%2F49491%2F550082%2Fversion%2F1%2Ffile%2Fcv%2Bfr%25C3%25A9d%25C3%25A9ric%2Bsudre%2Bidedh%2B2013.pdf&ei=xRo3VKmcGsTXyQOa7oHwCA&usg=AFQjCNFXjwZWr5uJuV2sw7LdApSYdyHUnQ


185

forbid the criminal act of killing another person. Article 2 imposes two different obligations on the States: 1. a positive one – to do everything it can do protect the lives of the people 2. a negative one – not to inflict any harm on the individuals, especially not to kill them (except in exceptional circumstances) The machinery for enforcing the laws is an efficient (judicial) system: criminal, civil, administrative and even disciplinary procedures. In Mastromatteo v Italy, the ECHR stated that art. 2 requires a criminal, plus a civil remedy against the State in case of a murder (of course, when the State is liable for that murder). Legal Aspects of the Right to Life Euthanasia – this is a very controversial topic in the legal theory. If you let the person (that is very ill, that is struggling for his/her life or that is certainly going to die within a short period) die by not giving him the needed treatment, it constitutes a passive euthanasia. Article 2 does not say that that is not a crime. When the death is caused by a positive action of another person (not the one who is deadly ill) then that constitutes an active euthanasia. It can be voluntary – when the ill person asks the other person to give him/her a decent death or involuntary – when the other person cannot bear to look at the ill person suffer, so he/she decides to end his/her life without the consent of the ill person. That latter is always a crime, although the moral factors are considered during the criminal proceedings. Belgium and Holland have accepted the voluntary active euthanasia but under strict conditions. Also, consider the following example: person X helps person Y to commit suicide by leaving bunch of pills next to Y’s bed, being previously asked by Y to do that. Is that a criminal act? Suicide – by its very nature, suicide cannot be a criminal act. It is simply not

possible to punish somebody for killing himself. The Right to Die – the European Court of Human Rights in Pretty v UK held that art. 2 cannot be interpreted as permitting a diametrically opposed right, that is the right to die. Nobody has the right to self-determination when it comes to living or dying. To put it bluntly, people do not have the right to kill themselves. Amnesty – in Dujaedin v France, the Commission (now abolished by Protocol 11 of the Convention) stated that giving an amnesty for committed murder is not opposite to art. 2, unless the amnesty is looked upon as a part of a general practice, that has as its objective the systematic prevention of the prosecution of executioners of such offences. Regulating the activities that can represent a risk towards the lives of people – 1. ‘…police officers should not be left in a vacuum when performing their duties, whether in the context of a prepared operation or a spontaneous chase of a person perceived to be dangerous: a legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect.’492 2. ‘States [need] to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients' lives’.493 3. The dangerous industrial activities must also be regulated by acts of the State 494 Preventive Measures – In Oneryildiz v Turkey, the ECHR stated that the

492 Makaratzis v Greece, 2004-XI, 41 ECHR 1092, para 59 GC. The same in Nachova v Bulgaria 2005-VII, 42 ECHR 933, para 99 GC 493 Call Velli and Ciglio v Italy, 17 January 2002 – I, para 49 GC 494 Oneryildiz v Turkey, 30 November 2004 – XII, 41 ECHR 325 GC


186

authorities knew or must have known that there was a real and serious risk of explosion that could easily take the lives of the people living close to the landfill. As a result of that, the Turkish authorities infringed art. 2 by not taking any preventive measures necessary for the protection of the lives of the people (the same reasoning applies to LCV v UK 1998-VIII, 29 ECHR 245). The obligation of the state to take preventive measures will exist under the following conditions: The authorities knew or must have known about the danger to the lives of the people and could have taken a preventive measure that could reasonably be expected to have prevented the loss of lives The obligation must be interpreted in a way that it does not impose an impossible or disproportionate burden on the authorities The police must respect the principles of an equitable proceeding and the guarantees for the other human rights The obligation for the State to take preventive measures also applies to people in custody under serious threat by other people there. It also applies to cases of suicide by the people in custody if that should have been expected by the authorities (Keenan v UK). Health Care – art. 2 can be expended to securing health care by the State. There is State liability when the State puts at risk the life of a person by not providing the normal (available to everybody else) health care. So, the right of life also covers the right of good health. Life of Good Quality – does the right to life encompass in it the right to a life of good quality too? Well, the obvious answer is that nor art.2 nor any other article of the Convention provides the right of financial assistance by the State. But, if the State has the resources to do that, why not do that? There is not a negative reason for the States not to be obliged by art.2 to help these people as

much as its financial resources allow for it. Abortion – in X v UK 8416/78, 19 DR 224(198) and H v Norway No 17004/90, 73 DR 155 the Commission decided that the voluntary abortion is not an infringement of art. 2. However, ‘under certain conditions’ a protection under art. 2 can be given to the nasciturus (the conceived, but unborn baby), but those conditions are not expressly given by the Commission. A statement that the voluntary abortion is an infringement of art. 2 can be given by the ‘victim’, for example the potential father. In the case of involuntary abortion, since ‘…the life of the fetus was intimately connected with that of the mother and could be protected through her’ - the mother can start criminal as well as civil proceedings because of the medical negligence that caused her to lose her baby. Sterilization – there was an opinion by the ECHR that the sterilization may be contrary to art. 2 because it actually takes away the possibility to conceive a baby from a person. However, this opinion was never actually implemented because of the facts of the particular case. Exceptions from Article 2 1. The Death Penalty (art.2 para. 1. limb 2) was part of the criminal codes back in 1950 in Western Europe. Today the provisions regulating it have been abolished. Even in Russia, where the death penalty is still accepted by the legal system, the courts no longer use this penalty as a way of punishing the criminals. Protocol 6 of the Convention demands that the death penalty be abolished in times of peace. Protocol 13 requires the same thing even in times of war. ‘... It also follows from the requirement in Article 2 § 1 that the deprivation of life be pursuant to the 'execution of a sentence of a court', that the 'court' which imposes the penalty be an independent and impartial tribunal… and that the most rigorous standards of fairness be observed


187

in the criminal proceedings both at first instance and on appeal.’495 2. Defence of any Person from Unlawful Violence (art. 2, para. 2-a) – this can include self-defence or defence of another person. Of course, this includes the clash between two instances of the right to life: the right to life of the attacker and the right to life of the victim (or the right not to be subjected to torture or to inhuman or degrading treatment or punishment of the victim). But, the Convention says ‘unlawful’, not ‘fatal’ violence, which means that even if the attacker wants ‘only’ to rape the victim (but not kill her/him) and the victims in defence kills the attacker, that will not be an infringement of art. 2. 3. To effect a lawful arrest or to prevent the escape of a person lawfully detained (art. 2, para 2-b) – In Nachova v Bulgaria, the persons were running because they did not want to get arrested (the cause for that was inadmissible absence from work!), they were unarmed and not dangerous and the police, after warning them to stop running, still shot them and killed them as they were running. Shooting in the air would have been enough in that case. Not only that, they were running for a banal illegal activity. 4. Action lawfully taken for the purpose of quelling a riot or insurrection (art.2 para. 2-c) – these terms (riot and insurrection) are autonomous terms which need to be interpreted in concreto i.e. on a case-by-case basis. *********************** Two principles need to be preserved when a person/State uses these exclusions in order to avoid criminal or civil liability for committing a murder: The principle of proportionality – the used force must be proportionate to the planned objective. It must not exceed

495 Ocalan v Turkey 2005 – IV; 41 ECHR 985, para 166 GC

the minimum level of force that is needed to achieve that objective. The principle of caution – in order to spare the lives of the alleged criminals and the innocent civil population. And, of course, the person/State must prove that the use of force was ‘absolutely necessary’ in the particular circumstances of the case.


188

BIBILIOGRAPHY

Law of the European Convention on Human Rights - Harris, O’Boyle, Bates, Buckley, Oxford University Press, 2009, second edn

The European convention on human rights – Steven Greer, 2006, Cambridge

University Press

European and international law on human rights (Droit européen et international

des droits de l'homme – Frédérick Sudre, ninth edn. 2008

Human Rights and social work – towards rights-based practice – Jim Ife, 2008,

revised edn.

Takings rights seriously – Ronald Dworkin, 1977, Harvard University Press

Cases and materials on international law – Dixon, McCorquodale, William, fifth edn.

2011

Dictionary on Human Rights (Dictionairre des droits de l’homme) – Sudre, Gaudin,

Marguenaud, Rials, 2008, first edn. Presses universitaires de France

Constituional law and political system – Klimovski, Karakamiseva, Deskoska, 2012,

Prosvetno delo

Criminal Law, general part – Marjanovic, Kanevcev, 2010, seventh edn. Prosvetno

delo

Criminal procedure law – Buzharovska, Kalajdziev, 2014, draft version

European Court of Human Rights decisions

European Convention on Human Rights

http://www.echr.coe.int/Pages/home.aspx?p=caselaw&c=#n1367580026604_pointe

r

http://www.echr.coe.int/Pages/home.aspx?p=echrpublications/other&c=#n134752

8850996_pointer

http://www.echr.coe.int/Documents/Convention_ENG.pdf

http://www.europarl.europa.eu/charter/pdf/text_en.pdf

http://www.utwente.nl/cw/theorieenoverzicht/theory%20clusters/media,%20cultur

e%20and%20society/modernization%20theory/

http://en.wikipedia.org/wiki/Modernization_theory

http://avalon.law.yale.edu/18th_century/rightsof.asp

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

http://www.echr.coe.int/Pages/home.aspx?p=caselaw&c=#n1367580026604_pointer

http://www.echr.coe.int/Pages/home.aspx?p=caselaw&c=#n1367580026604_pointer

http://www.echr.coe.int/Pages/home.aspx?p=echrpublications/other&c=#n1347528850996_pointer

http://www.echr.coe.int/Pages/home.aspx?p=echrpublications/other&c=#n1347528850996_pointer

http://www.echr.coe.int/Documents/Convention_ENG.pdf

http://www.europarl.europa.eu/charter/pdf/text_en.pdf

http://www.utwente.nl/cw/theorieenoverzicht/theory%20clusters/media,%20culture%20and%20society/modernization%20theory/

http://www.utwente.nl/cw/theorieenoverzicht/theory%20clusters/media,%20culture%20and%20society/modernization%20theory/

http://avalon.law.yale.edu/18th_century/rightsof.asp


189


190