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«Martina Fischer/Ljubinka Petrović-Ziemer Forschung DSF Nº 36 Dealing with the Past and Peacebuilding in the Western Balkans1 Martina ...»

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The REKOM Initiative The Documenta Center (Zagreb), the Research and Documentation Centre (Sarajevo) and Humanitarian Law Center (Belgrade) established cross-border cooperation on dealing with the past in 2004. In 2006, they initiated a campaign to establish a regional fact-finding mechanism for the countries of the former Yugoslavia. After a two-year consultation 29 The video was presented in evidence at the Hague Tribunal; it was broadcast by all public TV stations in BosniaHerzegovina and also disseminated in (then) Serbia-Montenegro, triggering debates (Kandić 2008, 64).

process (with regional forums held in Sarajevo, Zagreb, Belgrade and Prishtina), 108 local CSOs and 77 individuals from various countries signed an agreement in October 2008 and in March 2011, a statute proposal was agreed by members of the coalition that proposes the establishment of a “Regional Commission for Establishing the Facts about War Crimes and other Gross Violations of Human Rights Committed on the Territory of the Former Yugoslavia in the period from 1991-2001”.30 The coalition aims to gather one million signatures to be delivered to the governments together with a request to pass a decree on establishing a commission. At the time of writing, 542,000 individuals have signed up in support of the initiative and 1,800 groups and individuals are members of the coalition. The initiative is also supported by the Prime Ministers of Kosovo and Montenegro, by the Presidents of Serbia (Tadić) and Croatia (Josipović), by 188 artists, and by a variety of international organisations such as the United Nations Development Programme (UNDP), the UN High Commissioner for Human Rights, the European Commission and European Parliament, and the Council of Europe.31 IGOs and INGOs addressing the legacies of the wars of the 1990s In all three countries, the EU and OSCE32 maintain departments that monitor democratisation and legal and institutional reforms. Their mandates are closely related to the EU accession process and the Dayton Peace Accords (DPA) that obliges the governments of all three countries to cooperate with the Hague Tribunal and across the region. EU delegations monitor the governments’ cooperation with the ICTY and their efforts to deal with issues related to human rights, minorities, refugees, justice, and home affairs. In Bosnia, the Office of the High Representative (OHR) is also involved in this area of activity. The OSCE’s mandate in all three countries includes war crimes prosecution monitoring. It maintains war crimes sections and departments dealing with law enforcement and rule of law, human rights, organised crime and corruption. The OSCE oversees judicial and police reforms, monitors elections, and implements activities to enhance interaction of courts, ministries, media and civil society.

UN organisations are also involved in processes related to the implementation of the DPA.

The United Nations Development Programme (UNDP) supports transitional justice processes, provides support for vulnerable people, refugees and IDPs and cooperates with victims’ and war veterans’ groups. UNDP also assists institutions and civil society to develop strategies for transitional justice. The United Nations Refugee Agency (UNHCR) supports refugees and IDPs, monitors return and reintegration and facilitates cooperation between governments to find durable solutions for these groups. UNHCR also maintains close cooperation with NGOs.

Apart from the above-mentioned international and regional organisations, government departments (embassies or ministries) are also active in bilateral programmes.

Furthermore, INGOs, political foundations and private donors are engaged in initiatives that focus on dealing with the legacies of the past. Their activities range from support for democratisation and civil society building, education for tolerance, facilitation of relationship-building in divided communities, and inter-religious dialogue, to human rights monitoring and war crimes prosecution monitoring. IGOs and INGOs have also actively supported cross-border engagement of CSOs for dealing with the past in the region;

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

31 See www.zarekom.org/RECOM-Initiative-Voice/RECOM-Initiative-Voice-1/2011.en.html;


32 At the end of 2011, the OSCE declared the mandate in Croatia successfully completed and closed its office in Zagreb.

examples are the regional cooperation among the documentation centres that were established in Sarajevo, Zagreb and Belgrade, and the REKOM campaign over recent years.

Governments and state institutions Although by signing the Dayton Peace Agreement in 1995, the governments committed themselves to dealing with the legacies of the war and to cooperation with the Hague Tribunal, in practice there have been differences in terms of their willingness to cooperate with the ICTY in the years that have passed. Above all, Croatia and Serbia’s policies regarding the extradition of suspected war criminals or evidence material related to such cases have at times given cause for complaint.33 Recent assessments by the ICTY state that this policy has improved. The arrests and extraditions of the fugitive Ante Gotovina, and, finally, Ratko Mladić and Goran Hadžić are considered a “milestone” in this respect.34 However, the official politics of remembrance in all three countries have for a long time focused on the selective commemoration of war victims, each generally characterising its own “constituency” as the main victim.35 These discourses were largely determined by varying interpretations of the recent past, as well as by experiences and narratives from the Second World War, or ancient myths (Popović 2003). Only in recent years, moderate politicians from RS in Bosnia-Herzegovina, Serbia (or, until 2006, Serbia-Montenegro) and Croatia have made public apologies (Fischer 2008a). Public gestures that show empathy with the victims of the “other” side are still rare and continue to be controversial.

Governments’ activities to trace the fate of the missing persons in the first years after the wars were organised either at a national level or, in the case of Bosnia, at entity level.

Later on, in Bosnia, a Missing Persons Institute (MPI) was created in 2000, in response to an initiative launched by the OHR for a “Joint Exhumation Process” that permitted the three former warring parties to conduct exhumations relevant to their own missing persons on the “opposing side’s” territory.36 The International Commission on Missing Persons (ICMP) was tasked to facilitate cooperation between the respective entity authorities, and in 2005 the Council of Ministers of BiH took on the role of co-founder of the MPI. Through ICMP, cooperation was also enhanced on a regional level to some extent, with the Commission for Missing Persons of the then Federal Republic of Yugoslavia and the Office for Detained or Missing Persons in Croatia. On 25 January 2012, the EU announced that it will continue funding exhumation activities in the Western Balkans for another two years.37 Apart from allowing the establishment of legal bodies and searching for the missing, governments and parliaments have not been very proactive in supporting further factfinding initiatives in the region. Initiatives to set up commissions on a national level have been either half-hearted or have received very little political support.38 Facilitated by international organisations (i.e. UNDP and OSCE), in recent years some initiatives were launched to link activities for transitional justice with confidence building. In Bosnia, in 2008 the Council of Ministers of BiH agreed on a Transitional Justice Strategy and is cooperating on its implementation with legal institutions, parliamentarians, journalists and experts from civil society. In 2008 and 2009, consultations were held in Fojnica, Brčko and 33 See Zoglin 2005; McMahon/Forsythe 2008; Subotić 2009.

34 Letter by ICTY President Patrick Robinson to the UN Security Council, see United Nations Security Council 2011.

35 See Kuljić 2009; Ramet 2007; Teršelić 2008.

36 See http://www.ic-mp.org/icmp-worldwide/southeast-europe/bosnia-and-herzegovina.

37 See http://www.ic-mp.org/press-releases/eu-and-icmp-donation-agreement/#more-1493.

38 See Mirna Buljugić, No Progress for Sarajevo Truth Commission, http://www.bim.ba/en/51/10/2327/. See http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/europe/2828173.stm; Hatschikjan 2005.

Mostar, in order to enhance dialogue on TJ issues together with victims’ and veterans’ organisations, women’s groups, youth organisations, peace and human rights NGOs, and representatives of academic institutions and faith communities.

As a result of participants’ recommendations, the Council of Ministers issued a decision on forming an Expert Work Group for drafting a Strategy on TJ in BiH and an Action Plan for its implementation. Three pillars were defined: 1) verifying facts, 2) reparations and memorials, and 3) institutional reforms.39 39 For more details, see UNDP 2009; UNDP 2008a.

2. Theoretical Approaches and Research Design (by M. Fischer) Transitional justice, reconciliation and conflict transformation40 2.1.

The concept of transitional justice (TJ) was introduced by the international human rights movement. At first it referred to the judicial process of addressing human rights violations committed by dictatorial regimes in the course of democratic transition. Later, the term also came to be used for dealing with war crimes and massive human rights abuses committed in violent conflicts (Kritz 1995; Minow 1998, 2002; Teitel 2000). The concept has been widely discussed by peacebuilding agencies engaged in war-torn societies during the past two decades, and along the way, it has gradually extended its meaning. Today it covers the establishment of tribunals, truth commissions, lustration of state administrations, settlement on reparations, and also political and societal initiatives devoted to fact-finding, reconciliation and cultures of remembrance.41 Alexander Boraine (a former member of the South African Truth Commission and founder of the International Center for Transitional Justice, ICTJ) has made an important contribution to the discussion by suggesting that retributive justice should be complemented with restorative justice.

Holistic understanding of transitional justice Boraine strongly advocates a holistic interpretation based on five key pillars: accountability,

truth, reparations, institutional reform and reconciliation (Boraine 2006, 19-25):

Accountability derives from the fact that no society can claim to be free or democratic without strict adherence to the rule of law; there are mass atrocities and crimes that have been so devastating that civilisation cannot tolerate their being ignored. Yet in cases of large-scale human rights violations such as those which occurred in the former Yugoslavia, Rwanda or Sierra Leone, it is impossible to prosecute everyone. Given the limits to the law and prosecution, and although criminal justice is important, additional activities are needed that focus on documenting the truth about the past.

Within truth recovery, four different notions are covered: objective or forensic truth (evidence and facts about human rights violations and missing persons), narrative truth (story-telling by victims and perpetrators and communicating personal truths and multilayered experiences to a wider public), social or dialogical truth (truth of experience that is established by interaction, discussion and debate) and healing or restorative truth (documentation of facts and acknowledgment to give dignity to the victims and survivors).

In this context, reparations also play an important role, as they belong to the few efforts undertaken directly on behalf of the victims. Nevertheless, reparations need to be closely connected to other processes aimed at documenting and acknowledging truth; otherwise they could be interpreted as being insincere.

Institutional reforms, according to Boraine, form a prerequisite both for truth recovery and reconciliation. In particular, truth commissions should not focus only on individual hearings but also on institutional settings, and call to account those institutions directly responsible for the breakdown of a state, repression or human rights violations.

40 An extended version of the overview of the debate on TJ and reconciliation has been published in the Berghof Handbook for Conflict Transformation (see Fischer 2011b).

41 For an overview of the state of research, see van der Merwe et al. 2009; Thoms et al. 2008; Backer 2009.

Reconciliation is seen as a long-term process that must be accompanied by acknowledgment of the past, the acceptance of responsibility and steps towards (re-)building trust. Its starting point depends on the specific situation in a society. Although the concept is ambivalent and regarded with scepticism, due to its Christian connotation, Boraine sees a need to achieve “at least a measure of reconciliation” in a deeply divided society by creating a “common memory that can be acknowledged by those who created and implemented an unjust system, those who fought against it, and the many more who were in the middle and claimed not to know what was happening in their country” (ibid., 22).

As both practitioners and academics have emphasised, a holistic approach requires, furthermore, a “gender lens”. The ICTJ has therefore added gender justice to its agenda, alongside criminal prosecutions, truth commissions, reparations programmes, security sector reform and memorialisation efforts. Given the experience of the systematic rape as part of warfare in the Balkans and other regions, feminist researchers and women’s rights activists have pushed forward the debate on gender-specific war crimes (Allen 1996;

Stiglmayer 1992) and focused on the question of how legal standards have to be modified in order to end impunity in relation to violence against women (Pankhurst 2008).

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