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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
International Journal
of Rule of Law, Transitional Justice And Human Rights
Volume 1, December 2010
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Authors:
Amina Alijagic Konrad-Adenauer-Stiftung e.V.
Ana Ljubojevic Tiergartenstraße 35
Azra Somun D-10785 Berlin
Cristian Gherasim Germany
Andreea Cristina Nowak Phone: +49 30 269 96 453
Elena Atzen Fax: +49 30 269 96 555
Francesca Capone Website: www.kas.de
Ian Bausback
Marjolein Schaap Rule of Law Program South East Europe
Milos Bogicevic Konrad-Adenauer-Stiftung e.V.
Nicola Sibona 50 Plantelor Street
Noemie Turgis Sector 2
Stela Nenova RO-023975 Bucharest
Teresa Fernández Paredes Romania
Vera Riffler Tel.: +40 21 323 31 26
Fax: +40 21 326 04 07
For the Publisher: e-mail: office.rspsoe@kas.ro
Almin Škrijelj Website: www.kas.de/rspsoe
CIP Cataloguing in Publication Data available from National and University Library of Bosnia
and Herzegovina.
ISSN: 2232-7258
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CONTENTS
PREFACE ................................................................................................................................................................ 7
SOME ASPECTS OF THE GENOCIDE CASE AND THE (NON) ACHIEVEMENT OF TRANSITIONAL JUSTICE
BY AMINA ALIJAGIĆ............................................................................................................................................... 31
IS PLEA BARGAINING IN INTERNATIONAL WAR CRIMES TRIBUNALS AN EFFECTIVE TOOL IN THE PROCESS
OF RECONCILIATION?
BY MILOŠ BOGIĈEVIĆ............................................................................................................................................ 45
CITIZENS‟ PARTICIPATION WITHIN THE LEGISLATIVE PROCEDURE OF THE OFFICE OF THE HIGH
REPRESENTATIVE OF BOSNIA AND HERZEGOVINA IN LIGHT OF ARTICLE 3 PROTOCOL 1 TO THE ECHR
BY MARJOLEIN SCHAAP ......................................................................................................................................... 69
“TOMORROW PEOPLE, WHERE IS YOUR PAST?”TRANSITIONAL JUSTICE MECHANISM AND DEALING WITH
PAST IN SERBIA AND CROATIA
BY ANA LJUBOJEVIĆ ............................................................................................................................................. 81
15 YEARS OF WALKING BUT HOW MANY STEPS?TRANSITIONAL JUSTICE AND THE ROLE OF THE PRINT
MEDIA IN BOSNIA AND HERZEGOVINA
BY STELA NENOVA ................................................................................................................................................ 89
LUSTRATION LAW IN POST-COMMUNIST ROMANIA CASE STUDY: COUNCIL FOR THE STUDY OF SECURITY
ARCHIVES
BY CRISTIAN GHERASIM .......................................................................................................................................139
THE EUROPEAN UNION AND SECURITY SECTOR REFORM IN THE DEMOCRATIC REPUBLIC OF CONGO
BY IAN BAUSBACK ...............................................................................................................................................157
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PREFACE
The international work of the Konrad-Adenauer-Stiftung aims at, inter alia, promoting the
establishment and consolidation of democratic states based on the rule of law. This holds
particularly true for the foundation‘s work in countries which transition from
authoritarian/totalitarian regimes to pluralistic democracies, and/or which are challenged
with post-conflict reconstruction. The countries of South Eastern Europe (SEE), in
particular the successor states of the former Yugoslavia, are among such countries in
transition. For their endeavor to establish and consolidate a democratic state based on the
rule of law two factors are key: Firstly, countries in transition need to face their past since
there is no sustainable consolidation of democracy without a true confrontation with the
past. And secondly, highly motivated and talented young people need to be supported since
they are the ones who will shape their countries‘ future.
The International Summer School Sarajevo (ISSS) targets both. It is for this reason that the
Konrad-Adenauer-Stiftung – through its regional Rule of Law Program South East Europe –
supported the ISSS from its very beginning in 2006: The Summer School is not only the
product of a small group of outstanding former law students from one of the most conflict-
ridden countries in South Eastern Europe, i.e. Bosnia and Herzegovina; it also brings
together highly qualified young scholars from the SEE region, other parts of Europe, and the
US with experienced professionals to receive first hand insight into crucial aspects of human
rights and transitional justice through a unique blend of theory, practice and experience.
This happens with the aim to empower future decision makers to work to establish the rule
of law in transitional countries, and to influence changes in transitional countries towards
sustainable rule-of-law governance.
The articles published in this book reflect both the seriousness with which the students
participated in the Summer School, and the high quality of their work. The authors not only
analyze the difficult challenges countries in transition face when dealing with their past, but
also offer solutions for transitional justice. I would like to congratulate the editors and
authors of this valuable collection of essays. I wish the publication a great success: May it
not only be used as a source of inspiration for students, academics, practitioners in the field
of rule of law, transitional justice, and human rights alike, as well as for politicians and
other opinion-makers, but also contribute to the further strengthening of peace and
democratic stability in the countries of South Eastern Europe. It is my hope that the
countries of the region, after a decade of post-war reconstruction and two decades of post-
communist/-socialist system transformation finally come to terms with their (recent) past.
The ISSS with its important publication can partly contribute to this.
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PREFACE
The idea of having an international summer school in Sarajevo for social science students
was born in 2006. A pilot project, which would become the International Summer School
Sarajevo (ISSS), was a response to the limited freedom of movement that most countries of
South East Europe region suffered from. At that time, it was very difficult to travel outside of
your country even for educational purposes.
The main idea of ―Pravnik‖ was to create an annual event that would attract students from
both EU and non EU countries and offer a high quality program that would be accessible to
all interested students. Five years later we are proud to say that the pilot project evolved
into a highly competitive academic event which takes place every year in Sarajevo during the
summer. Previous editions of the summer school brought together young people from
Europe and the US and finally beating its own diversity record in 2010 with 22 countries
represented by 30 students.
Such accomplishments would not have been possible without the Konrad-Adenauer-Stiftung
Rule of Law Program South East Europe which has been a valuable partner and support in
the creation of a very demanding and challenging academic atmosphere that allowed ISSS
alumni to present their ideas and share new concepts with their fellow students and leading
experts in the field of rule of law, transitional justice and human rights. Of course, the great
dedication of all ISSS lecturers, who shared their valuable knowledge and expertise year
after year, has played a great role in the success of the ISSS project.
As the freedom of opinion and expression have been values carefully nurtured by project‘s
partners, this publication represents a patchwork of different thematic discussions that
have been initiated during the summer school. These young people, ISSS alumni whose
works are being shared with you through the Journal, represent a new wave of thinkers set
free from boundaries in their hunt for knowledge and intellectual challenges. They are
current and future academics, policy makers, lawyers and teachers.
The Association ―Pravnik‖ is honored to have the opportunity to share their work and ideas
with the wider public. In the years ahead we can only hope that International Summer
School Sarajevo will host additional generations of alumni with the aim to promote
democratic values and human rights across South East Europe and further afield.
Lana Ačkar,
Co- President of Association ―Pravnik‖
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Transitional and post-conflict nature of many countries around the globe makes them new
democracies, facing the transition process which always foresees big changes in a legal
system that requires results in its effectiveness and efficiency in the aspect of rule of law.
Transitional justice today is a diverse and vibrant field. As it has grown, it has found
common ground with social justice movements, as well as the fields of conflict resolution,
peace-building, and historical memory and other aspects of this multi-faceted process. The
ISSS represents a perfect forum for discussions in this field.
Nevertheless, the role of the ISSS does not stop there; as part of its program, or more
precisely, as its direct output, students are requested to apply the knowledge they gained
through interactive discussions and lectures provided by prominent experts in the area of
transitional justice into an essay where they analyze and elaborate on various segments of
transitional justice, including the inter-relation between different human rights in the
context of transitional justice, problems related to human rights in transitional societies and
even specific transitional justice mechanisms in particular societies.
The selection of a topic is usually the first indicator of quality of the essay. Additionally, the
extent to which the authors elaborate on a particular topic indicates the knowledge they
gathered during the summer school, combined with their previous knowledge they had
brought to the school and thus contributed to the quality of its program.
The first thing that strikes the reader of the essays is the richness of the carefully selected
topics and areas covered by the authors. Its richness is reflected in a number of ways: the
authors elaborate on various globally open questions that go beyond transitional justice per
se, such as the impact of trading justice for peace on global scale, reconciling the retributive
to restorative justice, contribution of transitional justice to the maintenance of international
peace and security, as established in the universally accepted norms such as the United
Nations Charter and many more. While doing so, the authors explore the most diverse
examples of local contexts where individuals are affected by global ideas and norms or lack
of their existence in their day-to-day lives.
Before a reader indulges into the rich elaborates on the development of transitional justice
in various contexts, it is necessary to establish a few common ground points, which,
needless to say, have been the starting point for all the authors of this publication.
Firstly, regardless of how critical one might be of a particular transitional justice process, it
is necessary to step back and see the process from a different angle: when reading about
criticisms of a transitional justice process in a particular country, one has to keep in mind
that previous regimes or conflicts encompassed a number of gross, widely-spread human
rights violations of individuals that as a result took away many lives and brought many
individuals into a situation of an almost irrepairable despair. If this human side is taken
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into account, it is clear that transitional justice was an inevitable process. It is from this
angle that the authors explore and critically review various transitional justice processes. In
other words, rather than exploring whether or not the particular transitional justice process
should have taken place, they explore how well the process has been done and how its
quality might be or might have been improved. Silence to injustice is never the answer, since
it can lead to new conflicts, as it was rightly brought up in one of the brilliant essays in this
publication.
Another common ground in the essays is that fighting impunity, and leaning towards
international criminal law has always been assumed, and was never meant to be put into
question. One of the authors rightly reminded us that ―injustice is human, but more human
is to fight injustice‖. The issue that was elaborated on throughout several essays instead was
how criminal justice is necessary, how its absence can cause further violations of
individuals‘ rights, how it can combat denial and help communities come to terms with their
recent history and finally, how criminal justice could contribute to other parallel processes
in a society: peace, stability and reconciliation, to name a few.
Finally, when we look carefully into the international human rights law, in fact we talk
about a number of norms established over the years and commonly accepted by the states,
ultimate duty-bearers of the human rights protection at the national level. At this point, it is
important to stop and think of an important question in this process: are the norms created
in order to be implemented in practice, or is it the practice instead that creates the norms?
A number of essays in this publication prove once again that the latter is the case, and as
such, this is where their outstanding contribution primarily lies. In other words, all the
essays have one thing in common: their extraordinary contribution to the development of
transitional justice through the application of international human rights law, rule of law
principals and principals of contemporary democracy.
The principal feature of this publication is its originality and its creativeness. It is followed
by the feature called the response to skeptics that the human rights protection does make a
difference and finally that human rights, rule of law, democracy and eventually international
law is a movement, an evolving process that reaches the individual and its basic rights
provided to him or her at birth:
"Where, after all, do universal human rights begin? In small places, close to home - so close
and so small that they cannot be seen on any maps of the world. Yet they are the world of
the individual person; the neighborhood he lives in; the school or college he attends; the
factory, farm, or office where he works. Such are the places where every man, woman, and
child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless
these rights have meaning there, they have little meaning anywhere. Without concerted
citizen action to uphold them close to home, we shall look in vain for progress in the larger
world."1
And thus, as simple as that, the logical cycle of this process gets closed and wrapped up.
This publication is intended primarily for those who believe and want to believe in
international human rights law as an asset of making the world a better place.
Lejla Hadţimešić
1 Eleanor Roosevelt, on the occasion of the adoption of the Universal Declaration of Human Rights
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WHAT IS TRANSITIONAL
JUSTICE?
By Noémie Turgis*
ABSTRACT
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of law and transitional justice, he noted Justice, one of the main NGO‘s working
that ―there is a multiplicity of definitions on the subject: ―Transitional justice is a
and understandings of such concepts‖9. A. response to systematic or widespread
Boraine made the same remark a few violations of human rights. It seeks
years later: ―Despite the fact that recognition for victims and to promote
‗transitional justice‘ has become a widely possibilities for peace, reconciliation and
accepted term, there nevertheless remains democracy. Transitional justice is not a
confusion about this concept‖10. special form of justice but justice adapted
There is, broadly speaking, a to societies transforming themselves after
common understanding of what the a period of pervasive human rights
expression transitional justice relates to. abuse.‖13. But are these definitions
And unquestionably, there are some enough? What is the risk of allowing the
definitions that are more often referred to, still-expanding field of transitional justice
and that act as point of reference. Thus, without a common definition? Do we
the definition provided by the Secretary- really need a definition?
General of the United Nations in its 2004
report is one of the most cited. In this It seems that, like in any field of
report, ―Transitional justice‖ refers to ―the research, it is requisite to determine what
full range of processes and mechanisms a concept designates before studying it.
associated with a society‘s attempts to The following section therefore seeks to try
come to terms with a legacy of large-scale to determine what elements distinguish
past abuses, in order to ensure transitional justice from other kinds of
accountability, serve justice and achieve justice. It we try to sum up the elements
reconciliation. These may include both generally proposed to define the scope of
judicial and non-judicial mechanisms, this young field of study, three elements
with differing levels of international stand out and appear to be its main
involvement (or none at all) and individual features. Transitional justice is indeed
prosecutions, reparations, truth-seeking, always referred to through its context, its
institutional reform, vetting and objectives and the type of mechanisms
dismissals, or a combination thereof‖ 11. used. If we rely on the many processes
Another quite commonly acknowledged and mechanisms called transitional
definition is the one from R. Teitel, justice and the definitions given by the
according to which, ― t ransitional justice scholars and civil society, transitional
refers to the view of justice associated justice can be identified based on five
with periods of political change, as criteria.
reflected in the phenomenology of - Systematic and/or grave
primarily legal responses that deal with violation of human rights
the wrongdoing of repressive predecessor - State sponsorship in the
regimes‖12. As a third definition, it is commission of those violations
useful to highlight the one offered by the - Transition, political
International Center for Transitional transformation, constitutional
rearrangement
- Treatment by a specific
9 Report of the Secretary-General on the Rule of Law mechanism or a measure
and Transitional Justice in Conflict and Post-Conflict specific to the transition of
Societies, UN Doc S/2004/616, 24 august 2004,, p.
4.
those violations, by the state or
10 Boraine, A., L., ―Transitional justice: a holistic with its direct support
interpretation‖, International affairs, Vol.60., Issue 1, - The direct goals are to achieve
2006, p. 17. accountability, truth and
11 Report of the Secretary-General on the Rule of Law
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Bibliography
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QUANTITATIVE IMPACT
ASSESSMENT IN TRANSITIONAL
JUSTICE RESEARCH:
NO SINGLE TRUTH IN PLACE?
By Vera Riffler*
ABSTRACT
Transitional Justice (TJ) mechanisms have seen a rise both in
number and popularity. The so called ―Justice Cascade‖ is marked
by a proliferation of TJ mechanisms worldwide. TJ as a tool to deal
with a past of mass human right violations and intends via a
number of mechanisms (trials, truth commissions, reparations,
amnesties, vetting, etc…) to come to terms with the past, to reconcile
society, to bring justice to the victims, to strengthen the rule of law
and democracy and to establish accountability. The debate on the
intended impacts of TJ however has been conducted largely on a
theoretical basis or on the grounds of qualitative research. Only
lately there have been a number of quantitative studies on large
scale cross country impact assessment of TJ mechanisms.
Nevertheless research results are very mixed and do not leave
space for clear conclusions. This paper explores the debate on TJ
impacts as well as the state-of-the-art of quantitative research and
results. Further a number of shortcomings and necessary
improvements are highlighted. The study provides an overview of
the field of quantitative research in the realm of TJ underlines the
importance of qualitative and quantitative impact assessment and
provides a short outlook on needed future research.
* Vera Riffler studied Politics & Administration in both Konstanz and Barcelona, where
she specialized in ―European Integration and International Organizations‖. Parts of this
specialized training included courses on conflict analysis and crisis intervention,
participation and poverty reduction in international development co-operations, and
peacemaking and building. Her master thesis was a quantitative study on the impact of
Transitional Justice on civil violence. After completing her studies Vera participated in a
postgraduate course at the German Development Institute in Bonn. As an element of
this course she was working as part of an interdisciplinary research team in South
Africa on the topic of Black Economic Empowerment and its contribution to overcoming
the legacy of ―economic Apartheid‖ and to enhancing social peace. Following she was
working as researcher at the German Development Institute on the topic of Corporate
Social Responsibility in Latin America and its impact on the socio-economic
improvement of the region. At the moment Vera is working for the German Technical
Cooperation in Quito, Ecuador.
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Introduction and politics. The advocacy of TJ
mechanisms has focused its discussion on
The famous quote of the South African the positive impact of different TJ
cleric Desmond Tutu ―No future, without mechanisms on democratization, human
forgiveness‖ reflects in a simple manner rights, promotion of peace and
the causality that researchers often reconciliation. Within the debate there is
ascribe to a lack of transitional justice also a discussion on the question which
mechanisms after transition processes. TJ mechanism is most adequate for
However the causality in TJ research is dealing with the past and thereby has the
not as crystal clear as the quote implies. most beneficial impact. Whereas TJ
There are still a number of questions yet opponents see no or a negative causality
to answer: Does transitional justice (TJ) between truth, justice and peace and
promote forgiveness? Is there an inherent some even expect that TJ undermines a
effect of transitional justice mechanisms peace process.
on peace and the spread of democracy? Research has mainly focused on single
Will different types of mechanisms have case studies or qualitative comparative
the same positive effect on political case studies and the examination of
stability and will they prevent society from effects of single mechanisms. Only in the
taking up arms? Are TJ mechanisms past few years has there been research on
beneficial for societies in transition at all? quantitative analyses and large scale
Transitional justice ―is commonly cross-country statistical assessments on
understood as a framework for the impact and effectiveness of TJ
confronting past abuse as a component of mechanisms. However, also quantitative
a major political transformation. This impact assessments on TJ mechanisms
generally involves a combination of have failed to offer substantial answers to
complementary judicial and non-judicial the discussion and to reveal a clear
strategies‖ (The Encyclopedia of Genocide causality between TJ mechanisms and
and Crimes Against Humanity 2004: p. societal and political change. Even though
1045) such as human right trials truth quantitative analysis of TJ constitutes
commissions, reparations or vetting. only one piece of the research puzzle it is
TJ mechanisms have seen a rise, not only nevertheless important in order to identify
in number but also in popularity. The certain systemic effects and impacts in
democratization processes in Latin general and to formulate implications for
America in the 1980‘s marked the end of policy makers in the field of TJ.
the politics of impunity (de Greif 2008: pp. The purpose of this paper is to give an
30) and truth commissions and other overview of the results of quantitative
mechanisms of TJ for the clarification and impact assessment of TJ mechanisms and
prosecution of grave human right abuses discuss the academic void in effectiveness
and mass atrocities started to spread. and impact analysis of TJ research.
Based on this development the so called Chapter 2 will reflect shortly the current
―Justice Cascade―18 took off and TJ- debate and state-of-the-art of the
mechanisms have been applied in almost discussion on TJ impacts and
half of all transitions (Sikkink and Walling effectiveness. Chapter 3 is dedicated to
2006: pp. 9). quantitative studies on TJ mechanisms
Since then there has been major debates and its results. Subsequent to the chapter
around the questions of impacts and beforehand the void in academic
effectiveness of TJ mechanisms on society quantitative research is discussed. Finally
in Chapter 5 a conclusion will be drawn.
18 Sikkink und Walling (2006) investigate in their
empirical work „Errors about Trials: The Emergence
and Impact of the Justice Cascade―the development
of the continuously rising number of TJ-mechanisms
(Human Right Trials and Truth Commissions) after The Transitional Justice Debate on
regime change. They label the phenomenon of steady
growth in number as the „Justice Cascade―.
Impact and Effectiveness
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Finally a number of authors doubt or which single case study results can be
neglect the impact of TJ on concepts such generalized underline the necessity and
as reconciliation or retribution and they importance of quantitative research as a
question the causality between truth, complement to qualitative research and
justice and peace in general (Mendeloff findings.
2004; Baehr in Hughes et al. 2007). The comprehensive comparative study of
Whereas other critical voices see even a de Brito et al. (2001) marked the start of a
negative correlation between TJ and number of studies that evaluated the
peace. They argue that ―the cornerstones impact of TJ mechanisms at large scale.
of justice and truth are normative – often De Brito et al. investigate the impact of
imported – constructs, which will trials, truth commissions and lustration
encounter in the respective post-conflict on democratization and rule of law in a
societies to a lesser extent a promoting qualitative, comparative study of 19
then rather a conflict intensifying countries in transition. The authors
minefield‖ (translation after Buckley-Zistel identify mixed results, as the mechanisms
2008: p.19) . do not have a clear impact on
The expectations on TJ mechanisms and democratization but seem to trigger
their impact are mixed in the literature. reform processes in some cases and in
Although there are different schools of addition they improve regime legitimacy.
thought the majority do not neglect the The first quantitative studies in the field of
positive impacts of TJ mechanisms one TJ can be found from year 2003 on. 19 The
way or the other. Nevertheless some impact assessment focuses largely on the
questions remain unanswered: Is there an institutional level. The most examined
inherent overall positive of TJ field of research is therewith the impact of
mechanisms on society and institutions? TJ on democratization and human rights
Is there a different impact of different TJ practice. Brahm (2006) takes a look on the
mechanisms or are they all in a similar influence of truth commissions on the
way beneficial? Is there a certain timing human rights situation in 78 countries by
and combination which makes TJ assuming that the implementation of a
mechanisms more effective? truth commission will have a positive
The next chapter examines the impact on the human rights situation in
quantitative research in TJ impact the following years. His hypothesis is
assessment and outlines the results and rejected as the results do not show any
certain answers to the risen questions. statistical significance. Whereas Sikking &
Walling (2006) come in there simple
Quantitative Impact Assessment of bivariate statistic to the conclusion that
Transitional Justice there is a positive effect of truth
commissions on human right practices.
Comparative and quantitative studies Kim (2007) affirms the finding through his
regarding TJ mechanisms have been analysis of all transitions between 1974
neglected by the TJ discourse for quite and 2004, where he identifies that having
some time. The majority of studies focus a human rights trial in comparison to not
on single case studies or qualitative having one decreases the degree of
comparative studies. The reliability, repression about the half. Also Olsen et al.
validity and generalization of these (2008) find evidence for causality between
findings are very limited. Conclusions trials and human rights in their
drawn by these studies cannot easily be multivariate analysis. They further find
transferred to other countries and that trials have a positive impact not only
contexts? ―Individual case studies help us on the human rights situation but also on
to understand contexts and build democracy indicators and on the rule of
theories, but to provide broad guidance,
they must be tested on other cases to
determine their scope and generalizability‖ 19For a summarized overview please see Table I:
Quantitative studies on transitional justice
(Paris et al. 2008: p. 42). The low degree to mechanisms, p. 11-13
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law (operationalised by the Governance that lies within the endogenity problem is
Data of the World Bank), whereas neither that given conditions determine the types
trials and truth commissions nor of TJ mechanisms implemented.
amnesties have a significant impact on Consequently the measurement of the
violence in their analysis (measured by impact of certain TJ mechanisms might be
the homicide rate of each countries). biased as the impact measured might not
Studies that examine the effect of TJ on be the result of the mechanism applied
democratization also have varying results. but the result of the circumstances
Kenney and Spears (2005) for example beforehand. Therewith recent quantitative
find in their study on the impact of truth research has also focused on the problem
commission on democracy values in a of endogenity (Binningsbo et al. 2005,
sample of 16 countries over a period of 20 Brahm 2007, Dancy and Poe 2006, Kim
years that there is a positive correlation 2007). Different findings come to the
between truth commission in place and conclusion that there is a certain
democracy indicators. The study of Snyder relationship between the type of transition
and Vinjamuri (2003) does not find a and the TJ mechanism applied. Trials
systematic relation between tend to be more often implemented when
democratization and TJ mechanisms in there was a clear victory of one side and at
contrast to the former results. the same time a clear victory contributes
Other studies further focus on the to a prolongation of peace in statistical
effectiveness of TJ on peace. Long and analysis (Binningsbo et al. 2005). Hence
Brecke (2003) investigate the effect of one can not answer easily whether trials
reconciliation-events on civil wars and prolong the peace period or whether the
intra-statal conflict. The authors identify a peace duration endures because there has
positive relationship between been a clear victory. In contrary to these
reconciliation and peace after civil war, as findings truth commissions seem to be
they argue that the confrontation with the more often applied as a result of a
past restores the legitimacy and humanity negotiated agreement and if the regime
of the antagonized groups, defines new exhibits already to some extent
roles of the groups and constitutes the democratic features (Dancy and Poe
middle course between justice and 2006). This finding implies that
impunity (2003: pp. 148). Binningsbo et democratization is not necessarily an
al. (2005) examine in a very outcome of TJ but rather a perquisite.
comprehensive quantitative study the Further there are consistent results
effect of different TJ mechanisms (trials, regarding the diffusion factor of TJ. The
truth commissions, reparations, implementation of TJ thus is more likely if
lustrations, amnesties and exile) on the there has been TJ in the region already
duration of peace in post-conflict (Dancy and Poe 2006, Kim 2007). Even
countries. The authors come to the though results on selection effects are
conclusion that only trials have a mixed the factor of regional diffusion,
statistically significant positive effect on regime type after transition and type of
the duration of peace. transition seem to play a certain role
All studies nevertheless somehow confront whether or not TJ and what type of TJ is
the problem of endogenity. Endogenity implemented.
refers in this case to the question of
causality. The crucial problem is whether
TJ mechanisms like truth commissions
and trials are established because a The Knowledge Gap in Quantitative
democratization process takes place or the Transitional Justice Research
improvement of the human rights
situation or vice versa where the ―Transitional justice moves from the
democratization and human right scores exception to the norm to become a
are improving because of the TJ paradigm of rule of law‖ (Teitel 2003: p.
mechanisms in place. The assumption 71). Nevertheless there is still uncertainty
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about impacts of TJ. Qualitative and demonstrated that most of the studies
quantitative studies have discussed and focus on institutional factors such as
examined possible effects of TJ on society democratization and human right scores.
and institutions but results have been Most of the studies are conducted on a
mixed. macro-level especially through cross-
One major problem in TJ literature is the country analysis. The levels of analysis
number of assumption on TJ impacts that are countries and the exception is the
are not backed up by theoretical clear individual - besides the very
causalities and hence a ―black box‖ is comprehensive statistical country study of
created. For example the link between the Gibson (2004) in which he conducted a
implementation of a truth commission representative survey that was statistically
and the initiation of reconciliation process evaluated in South Africa. In order to
is not well-grounded on an empirical analyze more concrete how truth, justice
basis, as stated in the literature: ―(…) it and reconciliation are interwoven certainly
remains for the time being an open a closer look on the micro level is
question whether finding the ―truth‖ will necessary. The question on how concepts
always contribute to reconciliation‖ like reconciliation and forgiveness, moral
(Hughes et al. 2007: p. 18). What is and normative justice could be
lacking in case of the ―black box‖ communicated and adapted by the society
phenomenon is the identification of a clear and how the adaptation of these concepts
micro-macro-relationship in congruence contribute to peace and stability remains
with the ―Coleman Bathtub‖ (Coleman unanswered. Therewith, Further
1994), otherwise research on the impact of quantitative in-country studies are
TJ will face the problems in urgently needed.
operationalizing indicators into Furthermore, the majority of analysis
measurable variables. Furthermore one examine the impact of single TJ
―must distinguish carefully between moral mechanisms and therewith the effect that
and legal rationales, which are often might be caused by different mechanisms
undeniable, and poorly tested taking place at the same time or with a
assumptions about salutary (or harmful) time lag is left out. Those studies can not
effects. (…). the TJ field must move from capture the impact that TJ mechanisms
„faith-based― to ―fact-based― discussions have in a certain combination or
of transitional justice impacts (…)‖ (Paris sequence. Whether or not TJ mechanisms
et al. 2008: p. 45). interplay and whether they cause similar
There is a number of further problems and complementing or contrary effects has
related specifically to quantitative been unexplored up to now. Yet another
research besides the lack of theoretical shortcoming is caused by the fact that
foundation and the micro-macro-level some studies merely focus on the length of
attribution. Quantitative transitional a peace period or the re-occurrence of
justice research faces many technical war. A lack of reconciliation and justice,
problems, such as data issues, as well as weak institutional structures do
methodological design, operationalization, not necessarily end up in another civil
etc… It would go beyond this paper to war, nevertheless the lack might exist as a
discuss these issues more in depth. result of an absence of TJ or despite TJ. If
Nevertheless one has to be aware of the further research is interested in finding
shortcomings of quantitative data analysis out more about the effectiveness of TJ,
as well.20 In addition to rather technical then this problem has to be addressed as
problems related to the research design, well. Finally the knowledge gap of
the short literature overview on research on effectiveness of TJ has to be
quantitative research in chapter 3 filled. The question of effectiveness has
almost not been part of the research
debate at all. This would be a further
20 For father discussion on short comings of point for quantitative but also qualitative
quantitative analysis in transitional justice research
please see: Paris et al. 2008, pp. 42
research. It is important not only to
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Page 25
Table I: Quantitative studies on transitional justice mechanisms (in alphabetical order) 21
Author Investigati Hypotheses Res Dependent Variable Independent Variables Control Variable (Dataset)
(Year of on Units, ults (Dataset) (Dataset)
Publication Time 22
) Frame
Binningsbo 291 - Trials, truth commissions, reparations m.r. - Duration of Peace in - Trial, truth - End of conflict: victory, negotiation,
et al. (2005) conflict- and lustration positive impact on days (data generated by commission, reparation cease fire (data generated by the authors)
and peace- duration of peace the authors) and lustration dummy: - Duration of the conflict (data generated
periods, - Amnesties and exile of perpetrators - Event-Variable which TJ mechanism took place by the authors)
1946-2003 negative impact on duration of peace - indicates whether there - Amnesties and exile - Regime type before the conflict (Polity
was another conflict - Recipient of TJ: IV)
(data generated by the government or opposition - Economic situation after conflict (GDP
authors) from World Bank)
- Conflict type: over territory/over
government (data generated by the
authors)
- Intensity of conflict: number of deaths
(Lacina&Gladditsch data set)
Brahm, Eric 78 truth commissions positive impact on N.S - Human rights indicator - Truth commissions - Democracy (Polity IV)
(2006) countries in human rights (Cingranelli and Richards dummy: every year after - National Wealth (World Bank
democratic Human Rights Data Set) a report published Development Indicator)
transitions, - Population size (World Bank)
1980 - - Participation in a War (Uppsala Conflict
Page 25
2003 Data)
Dancy and 77 cases of - The more truth commissions applied in n.s. - Truth commission - Diffusion count - Economic Development
Poe (2006) state time and/or region the more likely /+ country-year-dummies: (geographical data) - Population size
failure, further truth commissions are truth commissions taking - UN negotiation or UN
1976-2003 implemented after transition place a given year in a peacekeeping activity (UN
- If UN is involved in negotiation process, given country (after data)
if transition is negotiated, + Priscilla Hayner) - Transition process
if transition is ended by power-sharing + - Transition Agreement
agreement, n.s. (Keesing‘s Record of
the more ethical fragmentized World Event)
and/or the more democratic n.s. - Ethical Fragmentation
institutionalized a country, the more + - Number of Muslims
likely truth commissions are (Insurgency, and Civil
implemented after transition War project data)
- The more Muslims living in the country - Presence of elections
less likely truth commission is +
implemented after transition
Kenney and 16 post- Truth commissions positive impact on + - Democracy - Truth commission - Economic Factors (UNDP Statistics on
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Author Investigati Hypotheses Res Dependent Variable Independent Variables Control Variable (Dataset)
(Year of on Units, ults (Dataset) (Dataset)
Publication Time 22
) Frame
Spears authoritari democracy (Polity IV, Freedomhouse dummies: truth GDP per capita)
(2005) an Political Rights Score, commission taking place, - Development Factors (Human
countries, UNDP Electoral truth commission ended, Development Indicator of UNDP)
1978 - Democracy Index) truth commission report
2003 published
Kim (2007) Democratic - The more TJ mechanisms have been - Trials and truth - % of countries - Economic development (GDP per capita
transitions, applied (in time/region/cultural similar + commission country- implementing TJ every and GDP growth by Worldbank)
1974 - setting) the more likely TJ year-dummies: trials and year
2004 mechanisms are implemented after truth commission taking - % of countries
transition + place a given year in a implementing TJ per
- The more democratic a country, - given country region
the more international standards on - % of countries with the
human rights are signed, n.s. same religion/culture
the more human rights NGOs in a n.s. implementing TJ
country , the more alternative TJ - Democracy (Polity IV)
mechanisms in place (reparation, - Repression (Political
lustration, etc…) the more likely TJ Terror Scale by
mechanisms are implemented after n.s. Cingranelli and Richards)
transition + - Ratification status of
- The more repressive a country and/or human right treaties
countries with British common law - Number of human right
Page 26
tradition the less likely TJ NGOs
mechanisms are implemented after + - Legal Tradition
transition + - Type of Transition
- Transition type influences TJ - - Alternative TJ
mechanism (state failing TJ, mechanisms
democratic transition TJ,
reestablishment of country no TJ)
Kim and Democratic - Trials and truth commissions less + - Human rights violation - Transitional human - Human rights violation before transition
Sikkink transitions, human right violations (Physical Integrity Rights rights trials country- (Physical Integrity Rights Index by
(2009) transitions - Trials during ongoing civil conflict - Index by Cingranelli and year-dummies: trials Cingranelli and Richards)
after civil more human rights violation Richards) taking place a given year - Democracy (Polity IV)
war and - Trials in the region less human rights m.r. in a given country - International wars and Civil wars
transitions violations - Economic Situation (GDP per capita
due to and GDP growth
creation of - British Common Law Tradition
new states, - Population size and growth
1974-2004 - Region
Olsen et al. Democratic - Implementation of TJ-mechanisms in + - Democracy (Polity IV) - Trials, truth - Economic Performance (GDP per capita
(2008) transitions, general positive impact on democracy, - Human Rights (Physical commissions, amnesty by Worldbank)
1970 - human rights and rule of law Integrity Index by and de-facto amnesty - Number of neighboring countries
2004 - trials, truth commissions or amnesties Cingranelli and Richards) dummies: trials, truth - Time since transition
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Author Investigati Hypotheses Res Dependent Variable Independent Variables Control Variable (Dataset)
(Year of on Units, ults (Dataset) (Dataset)
Publication Time 22
) Frame
positive impact on democracy, + - Rule of Law commission and amnesty - Repression prior to the Transition
human rights + (Governance date World took place (Polity IV)
and rule of law - Bank and homicide rate
of the UN)
Sikkink and 14 - Trials and truth commissions less + - Human rights abuses - Trial-country-years and None (simple bivariate analysis)
Walling countries, human rights abuses (Political Terror Scale truth commission-
(2006) 1979-2004 Dataset) country-years: : trials
and truth commission
taking place a given year
in a country
Snyder and 32 cases of - Weak political institutions and strong - Democracy (Polity IV - Trials, truth None (simple comparison of value
Vinjamuri civil war, spoilers and Freedomhouse) commissions, amnesty changes of the dependent variable)
(2003) 1989-2003 if trials / amnesties negative impact + / - dummies: trial, truth
on peace commission took place
if truth commissions positive impact +
on peace
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
LONG, W.J. and BRECKE, P., 2003. War and reconciliation: reason and emotion in
conflict resolution. Cambridge, Mass. i.e.: MIT Press.
MARIEZCURREN, J. and ROHT-ARRIAZA, N., 2006. Transitional justice in the
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MENDELOFF, D., 2004. "Truth-Seeking, Truth-Telling, and Postconflict
Peacebuilding: Curb the Enthusiasm?" International Studies Review 6 (3), 355-380.
MILLER, J., and KUMAR, R., 2007. Reparations: Interdisciplinary Inquiries. Oxford
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NEIER, A., 1998. War crimes: brutality, genocide, terror, and the struggle for justice.
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OLSEN, T., PAYNE, L. and REITER, A., 2008. Does Transitional Justice Work? Paper
presented at the annual meeting of the ISA's 49th ANNUAL CONVENTION, BRIDGING
MULTIPLE DIVIDES, 26. March.
PARIS, R., RON, J. and TOMS, O., 2008. Does Transitional Justice Work?
Perspectives from Empirical Social Science.
ROTBERG, R. and THOMPSON, D., 2000. Truth v. Justice. Princeton University
Press.
SHELTON, D. The Encyclopedia of Genocide and Crimes Against Humanity. 2004.
Macmillan Reference USA.
SIKKINK, K. and WALLING, C.B., 2006. Errors about Trials: The Emergence and
Impact of the Justice Cascade. Presented at the Princeton International Relations
Faculty C, 27. March.
SNYDER, J.L. and VINJAMURI, L., 2003. Trials and Errors: Principle and
Pragmatism in Strategies of International Justice. International Security 28(3), pp. 5-
44.
TEITL, R., 2003. Transitional Justice Genealogy. Harvard Human Rights Journal, Vol
16, pp. 69-94.
TORPEY, J.C., 2003. Politics and the past on repairing historical injustices.
Lanham, Md. i.e.: Rowman & Littlefield.
Transitional justice; 1. General considerations. 1995. 1. publ edn. Washington, DC:
United States Institute of Peace Press.
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
ABSTRACT
The focuses of this analysis are the issues regarding the rules of
attribution and the legal consequences, both in the light of the
Genocide case. From the transitional justice point of view, the
judgment was regrettable in that it left thousands of victims
without judicial redress and compensation, and this is unfortunate.
* Amina Alijagić is a 5th year student on Faculty of Law University of Rijeka and is
going to obtain the qualification of Master of Laws in 2011. For four years she has
been a student assistant (demonstrator) on Constitutional Law. She has
participated in: two international conferences; Summer School of Human Rights;
Winter School of Sustainable Development; International Humanitarian Law Moot
Court Competition; Course from Transitional Social Rights and European Law. She
wrote two scientific papers in co-authorship with her professors: ―Creation of Laws
– Challenge to Achieve Social Rights‖ and ―Anti-Jewish and Racist Legislation in
Fascist Italy, Nazi Germany and NDH‖. Since 2007 she is a reporter and member of
the editorial board of the monthly magazine „Preporodov Journal―/―Journal of the
Society Renaissance―. In 2010 she became the member of the Main Board of the
society ―Preporod‖/‖Renaissance‖ (seated in Zagreb) and secretary of the
Association of Young Bosniaks and Friends of B&H (seated in Rijeka).
E-mail: amina.alijagic@gmail.com
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did not violate international law (Accordance with Tehran (United States of America v. Iran),
international law of the unilateral declaration of Jurisdiction and Admissibility, Judgment of 24 May
independence in respect of Kosovo, Jurisdiction and 1980, (1980) ICJ Rep., para. 56
Admissibility, Advisory Opinion of 22 July 2010, 28 Obviously, the Court considered it to be important
(2010) ICJ Rep., para. 123, point 3), but Serbia did to seize the moment and elaborate on the various
not and probably will not change its name. legal requirements of the prohibited forms of
24 Case Concerning the Application of the Convention genocide. Considering the outcome of the case and
of the Prevention and Punishment of the Crime of the negative answer given to the attribution question
Genocide (Bosnia and Herzegovina v. Serbia and this would not have been the case if attribution had
Montenegro), Jurisdiction and Admissibility, been addressed first. And there may also have been
Judgment of 27 February 2007, (2007) ICJ Rep., considerations of practicability: against the
para. 471, points 2-4, (hereinafter: the Genocide background of quite broad claims the relevant acts
case) had to be identified before the question of attribution
25 Genocide case, para. 471, points 5-7 was addressed.
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Yugoslavia (SFRY), prior to its break-up, The FRY Council consisted of the
maintained a national Yugoslav People‘s highest-ranking political and military
Army (JNA). During the break-up of the officers of the FRY and was the
SFRY the political leadership in the Serb- constitutionally highest authority over the
controlled region of Bosnia and military during the events in question. 34
Herzegovina formed its own entity called During oral arguments, counsel for
the Serb Republic of Bosnia and Bosnia and Herzegovina argued that the
Herzegovina (subsequently named unredacted versions of the minutes of the
Republika Srpska, RS).29 On 12th May FRY Council meetings could be expected
1992 the Army of Republika Srpska to show orders given by the FRY to armed
(hereinafter: VRS) was formed. Pursuant forces in Bosnia and Herzegovina and
to a UN Security Council resolution, 30 the payment by the FRY to officers in the
FRY formally withdrew JNA forces from VRS35 – both of which would have been
Bosnia and Herzegovina on 19 May central to proving that the FRY exercised
1992.31 However, FRY merely transferred ―effective control‖ over the actions of the
the troops of Bosnian Serb origin from the VRS at Srebrenica. Regrettably, Bosnian
JNA into the VRS and maintained control team did not: (i) insist vigorously enough
over the VRS.32 The extent of that control that these documents be produced; (ii)
became a critical issue for the ICJ in make it sufficiently clear to the Court that
Genocide case as it tried to determine the documents were central to its case;
whether the acts of the VRS and other (iii) make its request early enough. 36
groups of Bosnian Serbs could be For its part, Serbia (i) refused to
attributed to the Serbian state. provide these documents, stating that
they contained sensitive national security
Issue of Unredacted Documents information and that the request itself
had not been made in a timely manner;
The Court stated at the outset of (ii) argued that the ICTY Trial Chamber
its analysis that Bosnia and Herzegovina had ordered the documents to be held
has the burden of proof in establishing its secret, and that by providing these
case and proving the facts it asserts. 33 documents it would violate the binding
Bosnia and Herzegovina accepted this as confidentiality order of the ICTY. 37 It is, of
a general proposition, but put forth the course, rather cynical of Serbia to argue
argument that the burden should be that the disclosure of the documents
reversed on the specific question of would violate an ICTY order when it was
whether acts of genocide could be precisely Serbia who had asked for this
attributed to Serbia. Its rationale for this confidentiality order to be made, and
request was that Serbia had refused to when it is precisely Serbia in whose
provide full transcripts of several favour the privilege exists and Serbia who
meetings of the FRY‘s Supreme Defence can waive it.
Council (hereinafter: FRY Council), which
had already been disclosed by Serbia to
the ICTY in the Milošević case.
34 Marko Milanović, ‗State Responsibility for
Genocide: A Follow-Up‘, European Journal of
International Law (EJIL) Vol. 18 No. 4 (2007), 677,
note 34
29 ―The Republika Srpska never attained international 35 Genocide case, Oral arguments, Merits, CR
recognition as a sovereign state, but it had de facto 2006/30, 18 April 2006 (Softić and van den Biesen),
control of substantial territory, and the loyalty of large para. 19
number of Bosnian Serbs.― (Genocide case, para. 235) 36 Bosnian team asked for the documents only two
30 UN Doc. S/RES/752 (1992), para. 4 months prior to the oral hearings, although the
31 Genocide case, para. 238 existence of these transcripts was known well
32 Prosecutor v. Tadic (Tadic Trial Chamber case), beforehand, at least in 2003.
Opinion and Judgement, Case No. IT-94-1-T, Trial 37 Genocide case, Oral arguments, Merits, CR
Chamber II, 7 May 1997, paras.113–118 2006/43, 4 May 2006 (Fauveau-Ivanović), para. 57-
33 Genocide case, para. 204 59
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
The basic problem here is not so had available to it.43 The unredacted
much Serbia‘s conduct, but rather the documents were not available to Bosnia
ICJ‘s long-entrenched general passivity in and Herzegovina from the ICTY because of
fact-finding. We do realize that it is not a confidentiality order imposed by the
the usual practice in ICJ litigation to Tribunal at Serbia‘s request.44
summon witnesses or engage in other
direct forms of fact-finding, but that is Conclusion Regarding the Issue of
exactly the point – the Genocide case was Unredacted Documents
not an ordinary case.38 In what has since
become one of the most controversial Given that the Court found
parts of the Court‘s judgment,39 the Court insufficient evidence to attribute the
not only (i) refused to request unredacted genocide at Srebrenica to Serbia, the
versions of the documents from Serbia, Court‘s failure to request unredacted
because then Serbia would have no versions of documents that may have
objective reason for making them been probative on the issue is likely to
available to the ICTY and not to the ICJ; 40 damage the legitimacy of the Court‘s
it also (ii) refused to draw any inferences judgment in the eyes of many. Of course,
on account of Serbia‘s failure to provide only Serbia, the judges of the ICTY trial
unredacted versions of those chamber, and some members of the ICTY
documents.41 If Serbia had failed to abide Office of the Prosecutor know how
by the Court‘s order, the Court would probative the unredacted versions of the
have been able to have much greater FRY Council documents actually are.
recourse to inferences in order to However, it is not an unreasonable
establish Serbia‘s knowledge of the
genocide. 43 Richard J. Goldstone, Rebecca J. Hamilton,
In attempting to justify its ‗Bosnia v. Serbia: Lessons from the Encounter of the
International Court of Justice with the International
decision, the Court noted that Bosnia and Criminal Tribunal for the Former Yugoslavia‘, Leiden
Herzegovina had ―extensive documentation Journal of International Law Volume 21 (2008), 108
and other evidence available to it, 44 It is interesting to mention on this place that the
especially from the readily accessible ICTY former counsel for the prosecution in the Milošević
case, Geoffrey Nice, publicly accused the ICTY Chief
records‖.42 This is hardly persuasive, Prosecutor Carla Del Ponte of making a deal with the
given that Bosnia and Herzegovina‘s Serbian Government to keep the FRY Council
reason for requesting unredacted versions minutes confidential, even though he initiated
of these documents was that it believed subpoena proceedings against Serbia before the
Milošević Trial Chamber in order to produce these
these documents would provide evidence documents in open court. (This allegation was first
on the issue of attribution that was not made in a letter from Mr. Nice to a Croatian
clear from the documentation it already newspaper: O. Obad, ‗Carla Del Ponte nagodila se s
Beogradom‘, Jutarnji List, 14 April 2007). According
to Nice, this deal allowed Serbia to hide its
involvement in Srebrenica from the ICJ. Ms Del
Ponte, however, vigorously denied that any such
38 Ruth Teitelbaum, ‗Recent Fact-Finding deal was made, stating that protective measures on
Developments at the International Court of Justice‘, confidentiality could have been made and were made
Law and Practice of International Courts and solely by the Trial Chamber, at Serbia‘s request.
Tribunals Vol. 6 No. 1 (2007), 119 (ICTY Press Release, Statement of the Office of the
39 See, e.g., R. Wedgwood, ‗Slobodan Milosevic‘s Last Prosecutor, 16 April 2007.) It is impossible to
Waltz‘, International Herald Tribune, 12 March 2007; establish the truth of any of these claims without
M. Simons, ‗Genocide Court Ruled for Serbia being privy to confidential ICTY documents. It is
Without Seeing Full War Archive‘, New York Times, 9 certain, though, that a confidentiality order was
April 2007 indeed made by the Trial Chamber in the Milošević
40 The Court acknowledged that it has the authority case, though the decision itself is also confidential.
to do so through its proprio motu powers under The Trial Chamber made at least 13 decisions
Article 49 of the Statute of the ICJ and Article 62 of pursuant to Rule 54bis. Two of these, although not
the Rules of the Court. (Genocide case, para. 44, 205 available at the ICTY‘s website, are referred to by the
and 206) Second Decision on Admissibility of Supreme Defence
41 Genocide case, para. 206 Council Materials, 23 September 2004, which is
42 Ibid., para. 206 publicly available.
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assumption that Serbia‘s argument that it evidence presented by the parties.46 Since
cannot provide unredacted versions on Serbia had not admitted responsibility for
the grounds of its national security genocide at Srebrenica, the ICJ could
interests, almost 15 years after the period have found Serbia responsible only if it
in question, is simply a veil to keep concluded that the acts of those who
hidden evidence of a more explicit link committed the massacres were
between the FRY and the acts taken by attributable to Serbia. The procedure to
the VRS at Srebrenica. The unredacted be followed in this respect, set out by the
documents may have also provided ICJ, reads as follows:
evidence of the specific-intent element „First, it should be ascertained whether the
that the ICJ failed to find regarding the acts committed at Srebrenica were
commission of genocide in other areas of perpetrated by organs of the Respondent,
Bosnia and Herzegovina.45 i.e., by persons or entities whose conduct
Even if, in actuality, the is necessarily attributable to it, because
unredacted versions of the documents they are in fact the instruments of its
would not have provided an explicit link action. Next, if the preceding question is
between the FRY and genocide at answered in the negative, it should be
Srebrenica, the perception of unfairness ascertained whether the acts in question
generated by the Court‘s refusal even to were committed by persons who, while not
ask for the documents is a sad legacy. At organs of the Respondent, did
best, an international judicial process has nevertheless act on the instructions of, or
the potential to lay contested issues to under the direction or control of, the
rest, thereby allowing those affected to Respondent.―47
move into a phase of healing and a more The ICJ followed this outline
stable form of coexistence, if not complete strictly and addressed first, with reference
reconciliation. By refusing, without any to Article 4 of the ILC Articles, the
plausible justification, to request attribution rule concerning de jure
unredacted versions of the documents, organs.48 As none of the persons or
the Court undermined its potential to play groups involved in the massacres at
this much needed role in the region. Srebrenica (official army of the FRY,
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political leaders of the FRY, RS, VRS, ―effective control‖, as provided for in the
General Mladić, the ―Scorpions‖) were Nicaragua decision,58 it discussed whether
found to have held the status of officially the standard of ―overall control‖ applied
entitled organs under the internal law of by the ICTY in the Tadić Appeals Chamber
what was at that time the FRY, the Court case59 was preferable. This idea of
denied attribution for actions of de jure operating with the less restrictive
organs.49 standard of ―overall control‖ was
Still under the heading of Article 4 dismissed on two grounds: first, the test
of the ILC Articles, the Court proceeded, had been suggested by the ICTY with
however, by raising the question of respect to the question of determining
whether the acts (of RS, VRS, as well as whether an armed conflict was
the paramilitary militias known as international and not with regard to the
―Scorpions‖, ―Red Berets‖, ―Tigers‖, and different issue of state responsibility; 60
―White Eagles‖) could be attributed to secondly, in any case the test would have
Serbia as acts committed by de facto overly broadened the scope of state
organs.50 In this respect the Court, with responsibility.61 Some authors agree with
reference to the Nicaragua case,51 applied this Court‘s reasoning,62 while others
a test of ―complete dependence‖. 52 consider it doubtful.63
According to the ICJ this test required In its application of Article 8 of the
proof that ‗the persons, groups or entities ILC Articles and in particular the effective
act in ―complete dependence‖ on the State, control test, the Court denied that Serbia
of which they are ultimately merely the had ―effective control‖ over the actors at
instrument‘.53 In applying this test the Srebrenica because of the absence of
Court concluded that no such evidence of instructions from the FRY to
relationship existed between the FRY and commit the massacre.64 However, it is
the various examined groups of Bosnian exactly such instructions that Bosnia and
Serbs.54 Furthermore, it stated that Herzegovina claimed were likely to be
―differences over strategic options between found in the unredacted versions of the
Yugoslav authorities and Bosnian Serb FRY Council documents.
leaders‖ were evidence of ―some qualified,
but real, margin of independence‖ (sic!).55 (Non) Responsibility for the
The Court then turned to the “Scorpions”
subsidiary question which arose, namely
whether the Srebrenica genocide could be The evidence of the involvement of
attributed to Serbia on the basis of the ―Scorpions‖, a paramilitary group
direction or control.56 While the Court from Serbia, in the Srebrenica massacre,
understood the notion ―control‖ within is considered almost en passant in the
Article 8 of the ILC Articles57 to signify
in fact acting on the instructions of, or under the
49 Genocide case, paras. 386–389 direction or control of, that State in carrying out the
50 Ibid., paras. 390–395 conduct.‖
51 Military and Paramilitary Activities in and Against 58 Nicaragua case, para. 115
Nicaragua (Nicaragua v. United States), Jurisdiction 59 The Prosecutor v. Tadic (Tadic Appeals Chamber
and Admissibility, Judgment of 27 June 1986, case), Judgement, Case No. IT-94-1-A, Appeals
(1986) ICJ Rep., para. 109, (hereinafter Nicaragua Chamber, 15 July 1999, para. 137
case) 60 Genocide case, para. 405
52 Genocide case, para. 391 61 Ibid., para. 406
53 Ibid., para. 392 62 Jörn Griebel, Milan Plücken, ‗New Developments
54 Ibid., paras. 394-395 Regarding the Rules of Attribution? The
55 Ibid., para. 394 International Court of Justice`s Decision in Bosnia v.
56 Ibid., para. 396-397 Serbia‘, Leiden Journal of International Law Volume
57 Ibid., para. 398; Article 8 of the ILC Articles, 21 (2008), 618
entitled ‗Conduct directed or controlled by a State‘, 63 Antonio Cassese, ‗The Nicaragua and Tadić Tests
reads as follows: ―The conduct of a person or group of Revisited in Light of the ICJ Judgement on Genocide
persons shall be considered an act of a State under in Bosnia‘, EJIL Vol. 18 (2007), 655
international law if the person or group of persons is 64 Genocide case, para. 413
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Court‘s ―neat‖ analysis. This group is during the war remains unclear. They
known to have committed serious crimes were claimed by the Belgrade prosecutors
in the Trnovo area, located close to not to have been a unit of the Serbian
Srebrenica, where members of this group army or (secret) police,68 even though
are shown on film (which they made some members of this unit did join the
themselves) executing several teenage Serbian police forces in 1996 and 1999.
boys from Srebrenica.65 This deeply This qualification has now been accepted
disturbing video was procured by an by the war crimes chamber of the
NGO, the Humanitarian Law Centre in Belgrade District Court.69
Belgrade, led by Ms. Nataša Kandić, from The Humanitarian Law Centre in
a member of the ―Scorpions‖. It was Belgrade criticized the Belgrade District
shown at the Milošević trial before the Court‘s judgment in this regard, claiming
ICTY, as well as on Serbian TV, producing that the lack of motivation on the part of
an intense reaction among the Serbian the Belgrade prosecutors and the
public.66 The film was also shown to the judiciary to explore the relationship
judges of the ICJ during the oral between the ―Scorpions‖ and Serbia was
arguments in the Genocide case, while directly related to the proceedings before
members of the ―Scorpions‖ themselves the ICJ.70
were arrested by Serbian authorities and
have been convicted in 2007 for war Non-attribution as de jure organs
crimes before the District Court of
Belgrade.67 For its part, Bosnia and
What was not conclusively Herzegovina produced several documents
established before any court, however, before the ICJ, namely military dispatches
was the exact position of the ―Scorpions‖ from the RS Ministry of Interior (MUP)
in relation to Serbia. While most of the headquarters to the police commander in
members of the Scorpions are known to the Trnovo area, and vice versa. Though
have resided in Serbia and worked for the these documents certainly implicate
Serbian police after the war, their exact Serbia in the Srebrenica genocide, the ICJ
relationship with Serbian authorities did not view them as being fully
conclusive: ―In two of the intercepted
65 The video as presented at the Milošević trial is documents presented by the Applicant
available at: (the authenticity of which was queried –
http://jurist.law.pitt.edu/monitor/2005/06/srebre see paragraph 289 above), there is
nica-killings-video-icty.php. reference to the ‗Scorpions‘ as ‗MUP of
66 The official declaration made by the Serbian
Council of Ministers on 15th June 2005, as a Serbia‘ and ‗a unit of Ministry of Interiors
reaction to the video, was dismissed by the ICJ as a of Serbia‘ (…)‖.71 It is interesting to
political statement (Genocide case, para. 376), compare this with the testimony of Mr.
although legal weight is attached to such statements Tomislav Kovač before the Belgrade
in previous Court jurisprudence (Nuclear Tests
Judgment (New Zealand v. France), Jurisdiction and
Admissibility, Judgment of 20 December 1974,
(1974) ICJ Rep., para. 51). Of equal note is the
Court‘s failure to address its decisions in Nicaragua 68 They were alleged, for example, to have been
(Nicaragua case, para. 64 and para. 71) and Armed formed as the security forces of an oil company in
Activities on the Territory of the Congo (Democratic the Republika Srpska Krajina (the Croatian Serb
Republic of the Congo v. Uganda), Jurisdiction and separatist republic), and then incorporated into
Admissibility, Judgment of 19 December 2005, Croatian Serb armed forces which were put at the
(2005) ICJ Rep., para. 61) — both of which were disposal of the Bosnian Serbs in 1995 after the fall
invoked in the Applicant‘s pleadings on this subject of Krajina to the Croatian army.
(Oral arguments, Merits, CR 2006/11, 7 March 2006 69 The judgment itself is not available online, but has
(Condorelli, Pellet and Franck), para. 1-16). Concise been extensively reported in the Serbian press. See,
explanation of the neglected case-law can be found e.g., T. Tagirov, ‗Presuda Škorpionima: Istina, ali
in: Genocide case, Dissenting opinion of Vice- samo Pravosudna‘, Vreme No. 849, 12 April 2007
President Al-Khasawneh, paras. 56-61 70 ‗HLC: Scorpions Verdict Politically Motivated‘,
67 ‗Jail for Serb Video Death Squad‘, BBC News, 10 B92, 12 April 2007
April 2007 71 Genocide case, para. 389 (emphasis added)
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District Court in 2006,72 who was the would still be unattributable to Serbia.
Deputy Minister of the Interior of the RS Indeed, the documents themselves show
in 1995 and to whom and from whom that the Scorpions were put at the
these dispatches were sent. Although his disposal of the Republika Srpska and
testimony contains a lot of were acting on its behalf, but it is
contradictions,73 he at no point challenged questionable whether the legal rule that
the authenticity of the documents. the Court announced was the appropriate
ICJ concluded that: ―neither of one.
these communications was addressed to The Court simply took Article 6 of
Belgrade. Judging on the basis of these the ILC Articles,75 which deals with the
materials, the Court is unable to find that situation of an organ of one state being
the ‗Scorpions‘ were, in mid-1995, de jure put at the disposal of another state, and
organs of the Respondent. Furthermore, changed the references from this second
the Court notes that in any event the act of state to some other ―public authority‖. It
an organ placed by a State at the disposal is doubtful that the rule in Article 6 can
of another public authority shall not be truly be expanded to cover non-state
considered an act of that State if the organ actors in such an off-hand way as the
was acting on behalf of the public Court did. There is certainly very little
authority at whose disposal it had been state practice to rely on, and the Court
placed.‖74 It is one thing to say that there provides no justification or reasoning for
is insufficient evidence to find Serbia using such an analogy.76 Some authors
directly involved in Srebrenica only on the have rightly criticized the ILC for using
basis of two inconclusive documents, such analogies with rules applicable
though there was absolutely nothing solely to states in respect of international
preventing the Court from asking for organizations, as not all international
further evidence on the matter proprio organizations are the same.77 This
motu, for instance by ordering Serbia to criticism rings even more loudly when it
produce the persons named in these comes to non-state actors, as international
documents, including Tomislav Kovač, as organizations are at least generally
witnesses. It is something else, however, considered to possess some legal
when in the following sentence the Court personality under international law.
says that even if the documents could Indeed, the Bosnian agent before
conclusively establish that the Scorpions the Court has publicly stated several
were de jure organs of Serbia, their acts times that Bosnia and Herzegovina might
ask for revision of the judgment if new
evidence would come to light until 2017. 78
72 Milanović, ‗State Responsibility‘, 675. Milanović It should be noted, though, that any
quoted the verbatim transcript of hearings held on 3 request for revision would not only
July 2006, from the page: www.hlc-
rdc.org/storage/docs/14bbddabba275714fe99c682b
e5853d9.pdf, but this link is no longer active.
73 He testified that the documents deliberately falsely 75 Article 6 of the ILC Articles, entitled ‗Conduct of
referred to the Scorpions as a unit of the Serbian organs placed at the disposal of a State by another
MUP, with the purpose of raising the battle morale of State‘, reads as follows: „The conduct of an organ
the troops in the field, since this ruse would lead placed at the disposal of a State by another State
them to believe that Serbia was supporting them, shall be considered an act of the former State under
when Serbia was at the time actually blockading the international law if the organ is acting in the exercise
Republika Srpska and denying it assistance of elements of the governmental authority of the
(Milanović, ‗State Responsibility‘, 675, note 25, i. e., State at whose disposal it is placed.“
Transcripts at 32– 33, 38). This is, of course, a 76 The ILC does not mention any such cases even
rather ridiculous explanation – as if soldiers in the hypothetically – see ILC Articles, pgs. 43-45
field were privy to confidential dispatches between 77 José Alvarez, ―International Organizations:
their own commanders and the highest Bosnian Accountability or Responsibility?‖, address to the
Serb police officials, and as if a couple of references Canadian Council on International Law, 27 Oct.
in these documents to the Serbian MUP could 2006.
somehow magically improve the soldiers‘ morale. 78 A. Alijagić, ‗Otvorena Pitanja‘, Preporodov Journal
74 Genocide case, para. 389 (emphasis added) Vol. 88, February 2007, 31
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FRY army chief of staff, are still at trial.85 Bosnian economy and environment … in a
Thus the question lingers as to whether a sum to be determined by the Court.‖88
more expeditious trial in these ICTY cases This request was concretized and
could have provided evidence for ICJ that amplified in the reply, where Bosnia and
the ―Scorpions‖ were ―completely Herzegovina made it clear that the FRY is
dependant‖ on the FRY, thereby required to pay and Bosnia and
generating a potentially different outcome Herzegovina is entitled to receive ―full
in the Genocide case. The ICJ seems to compensation for the damages and
have been aware of this possibility, and it losses caused, in the amount to
does say that it is basing its decision only determined by the Court.‖89 It would be
on the evidence currently before it. 86 This hard to contend that the scope ratione
almost explicitly leaves open to Bosnia materiae of these formulations is so
and Herzegovina the possibility to ask for narrow as not to include monetary
a revision of the Genocide judgment if new compensation under the head of
evidence of ―complete dependence‖ satisfaction. It is true that Bosnia and
between the ―Scorpions‖ and the FRY is Herzegovina did not explicitly mention
made public in the Stanišić and Simatović that concept. But the moral injury
or in the Perišić case. suffered by Bosnia and Herzegovina is
clearly encompassed by the phrase
Conclusion from Transitional Justice ―damages and losses‖.
Point of View To see what a missed opportunity
this decision on the remedies represented,
Using a fairly misleading one need not look very far as another
formulation, the Court pointed out that court, besides the ICJ and the ICTY, dealt
Bosnia and Herzegovina ―itself suggested‖ with the consequences of the Srebrenica
that a declaration finding that Serbia had genocide: the Human Rights Chamber of
―failed to comply with the obligation Bosnia and Herzegovina. It ruled, in a
imposed by the Convention to prevent the number of applications submitted by the
crime of genocide‖ was the most family members of those slaughtered at
appropriate form of satisfaction. 87 ICJ Srebrenica, that the RS was indeed
wanted to create the impression that no responsible, and ordered it to pay
one else other than Bosnia and approximately two million Euros for the
Herzegovina confined itself to requesting construction of the genocide memorial in
such a declaration and that its wishes did Potočari, near Srebrenica, as well as to
not go any further. Even a superficial conduct an effective investigation into the
reading of the submissions of Bosnia and massacre.90
Herzegovina, however, shows that Bosnia This order of the Chamber,
and Herzegovina sought to obtain full coupled with intense international
reparation for any kind of the damage pressure, caused the Government of the
which had been inflicted upon it. In its RS to form a special commission of
application, Bosnia and Herzegovina had inquiry on Srebrenica, and to
already requested ―reparation for damages acknowledge, for the first time, its
to persons and property as well as to the responsibility for the massacre, even
though it was not labelled as genocide.91
Exhibits, Case No. IT-03-69, Trial Chamber I, 23 ―Srebrenica Cases‖), Decision on Admissibility and
August 2010; Prosecutor v. Perišić, (Trial) Decision Merits, CH/01/8365 et al., 7 March 2003, para 220,
on Request to Make Certain Documents Public, Case points 8, 10, 11
No. IT-04-81, Trial Chamber I, 26 July 2010 91 The RS Government Commission‘s Report on
86 Genocide case, para. 395 Srebrenica, as well as the apology of the RS
87 Ibid., para. 463 Government issued on 10 November 2004, was soon
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Bibliography
Legal documents
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law , UN Doc. GA/RES/60/147 (2005)
Draft Articles on the Responsibility of States for Internationally Wrongful Acts - with
commentaries, Report of the ILC on the Work of its Fifty-third Session, UN Doc. A/56/10
(2001), available at:
http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf
UN Doc. S/RES/752 (1992)
1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS
277, entered into force 12 January, 1951
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Journal Articles
Milanović, Marko, ‗State Responsibility for Genocide: A Follow-Up‘, EJIL Vol. 18 No. 4
(2007), 669-694
Teitelbaum, Ruth, ‗Recent Fact-Finding Developments at the International Court of
Justice‘, Law and Practice of International Courts and Tribunals Vol. 6 No. 1 (2007),
119-158
Richard J. Goldstone, Rebecca J. Hamilton, ‗Bosnia v. Serbia: Lessons from the
Encounter of the International Court of Justice with the International Criminal Tribunal
for the Former Yugoslavia‘, Leiden Journal of International Law Vol. 21 (2008), 95-112
Griebel, Jörn, Plücken, Milan, ‗New Developments Regarding the Rules of Attribution?
The International Court of Justice`s Decision in Bosnia v. Serbia‘, Leiden Journal of
International Law Vol. 21 (2008), 601-622
Cassese, Antonio, ‗The Nicaragua and Tadić Tests Revisited in Light of the ICJ
Judgement on Genocide in Bosnia‘, EJIL Vol. 18 (2007), 649-668
Gill, Terry D., ‗The ―Genocide‖ Case: Reflections on the ICJ‘s Decision in Bosnia-
Herzegovina v. Serbia‘, Hague Justice Journal Vol. 2 (2007), 43-47
Further Reading:
Hazan, Pierre, ‗Measuring the Impact of Punishment and Forgiveness: A Framework for
Evaluating Trasitional Justice‘, International Review of the Red Cross Vol. 88 No. 861
(2006), 19-47
Rajković, Nikolas, ‗On ―Bad Law‖ and ―Good Politics‖: The Politics of the ICJ Genocide
case and Its Interpretation‘, Leiden Journal of International Law Vol. 21 (2008), 885-910
Page 43
INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Dimitrijević, Vojin, Milanović, Marko, ‗The Strange Story of the Bosnian Genocide Case‘,
Leiden Journal of International Law Vol. 21 (2008), 65-94
Gattini, Andrea, ‗Breach of the Obligation to Prevent and Reparation Thereof in the ICJ‘s
Genocide Judgment‘, EJIL Vol. 18 No. 4 (2007), 695-713
Kreβ, Klaus, ‗The International Court of Justice and the Elemnets of the Crime of
Genocide‘, EJIL Vol. 18 No. 4 (2007), 619-629
Gaeta, Paola, ‗On What Conditions Can a State Be Held Responsible for Genocide?‘, EJIL
Vol. 18 No. 4 (2007), 631-648
Newspaper Articles:
Wedgwood, Ruth, ‗Slobodan Milosevic‘s Last Waltz‘, International Herald Tribune, 12
March 2007, available at:
http://www.nytimes.com/2007/03/12/opinion/12wedgwood.html?_r=1
Simons, Marlise, ‗Genocide Court Ruled for Serbia Without Seeing Full War Archive‘,
New York Times, 9 April 2007., available at:
http://www.nytimes.com/2007/04/09/world/europe/09archives.html
Obad, Orlanda, ‗Carla Del Ponte Nagodila se s Beogradom‘, Jutarnji List, 14 April 2007,
available at: http://www.jutarnji.hr/carla-del-ponte-nagodila-se-s-beogradom/170393/
‗Jail for Serb Video Death Squad‘, BBC News, 10 April 2007, available at:
http://news.bbc.co.uk/2/hi/europe/6540645.stm
‗HLC: Scorpions Verdict Politically Motivated‘, B92, 12 April 2007, available at:
http://www6.b92.net/eng/news/crimes-
article.php?yyyy=2007&mm=04&dd=12&nav_id=40642
Tagirov, Tatjana, ‗Presuda Škorpionima: Istina, ali samo Pravosudna‘, Vreme No. 849, 12
April 2007, available at: http://www.vreme.com/cms/view.php?id=494573
Alvarez, José, ‗International Organizations: Accountability or Responsibility?‘, Luncheon
Address, 35th annual conference on Responsibility of Individuals, States and
Organizations, Canadian Council of International Law, 27 October 2006, available at:
http://www.asil.org/aboutasil/documents/CCILspeech061102.pdf
Alic, Anes, ‗Bosnia vs. Serbia: The Evidence Scandal‘, ISN Security Watch, 24 April 2007,
available at: http://www.isn.ethz.ch/isn/Current-Affairs/Security-
Watch/Detail/?id=53188&lng=en
‗Serbian Declaration on Srebrenica Massacre an Imperfect but Important Step‘, ICTJ, 9
April 2010, available at: http://www.ictj.org/en/news/features/3619.html
‗Bosnian Serbs Block Srebrenica Massacre Resolution‘, IWPR, April 11 2010, available at:
http://iwpr.net/report-news/bosnian-serbs-block-srebrenica-massacre-resolution
‗Some Still in Denial over Massacre in Srebrenica‘, ICTJ, April 26 2010, available at:
http://www.ictj.org/en/news/coverage/article/3667.html
Alijagić, Amina, ‗Otvorena Pitanja‘, Preporodov Journal Vol. 88, February 2007
Alijagić, Amina, ‗Još Više Otvorenih Pitanja‘, Preporodov Journal Vol. 90, April 2007
List of Websites
The video of Trnovo execution, as presented at the Milošević trial, available at:
http://jurist.law.pitt.edu/monitor/2005/06/srebrenica-killings-video-icty.php
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IS PLEA BARGAINING IN
INTERNATIONAL WAR CRIMES
TRIBUNALS AN EFFECTIVE
TOOL IN THE PROCESS OF
RECONCILIATION?
―Mercy and truth are met together; righteousness and peace have kissed each other‖
Psalm 85:10
By Miloš Bogičević*
ABSTRACT
This essay explores the role that international war crime tribunals
have in the process of reconciliation and restoration of peace. In
this paper, particular focus shall be placed on the role of the
International Criminal Tribunal for the Former Yugoslavia (ICTY) in
achieving these goals and the appropriateness of the current Rules
of Procedure for reaching the goal of reconciliation. It explores the
meaning of reconciliation and shows that truth about past events is
a prerequisite for it. It shows that plea bargaining distorts the truth
and therefore may impede with the process of reconciliation.
* Miloš Bogičević holds advanced degrees in both law and political science. After
graduating from the Faculty of Law, University of Novi Sad, Serbia he has served as
an expert associate for the protection of human rigts in the Office of Human Rights
Ombudsman of Vojvodina, Serbia. During his work in the Office he investigated
human rights abuse cases and represented the Office in several international
conferences. He has received a Chevening Scholarship from the UK‘s Foreign and
Commonwealth Office and was included in the ―1000 Young Serbian Leaders‖
programme organised under the auspices of the President of the Republic of Serbia.
His professional interests include human rights, international law and conflict
resolution.
E-mail bogicevic.milos@gmail.com
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What is the role of International War mercy to meet, where concerns for
Crimes Tribunals? exposing what has happened and
for letting go in favor of renewed
It should be mentioned at the very relationship are validated and
beginning that there is a clear distinction embraced. Third, reconciliation
between the purpose of a criminal court recognizes the need to give time
and that of other institutions that may and place to both justice and
deal with post conflict environments, such peace, where redressing the wrong
as truth and reconciliation commissions. is held together with the
One could argue that the process of envisioning of a common,
reconciliation, although important, should connected future.98
be left to other institutions and that Consequently, reconciliation is
criminal procedure does not provide the seen as a place where truth, justice,
appropriate framework for such an mercy and peace meet.
endeavor. The thesis presented here is, Looking at war crime tribunals
however, that international war crime from the perspective of reconciliation we
tribunals can have a significant role in the must ask ourselves this fundamental
process of reconciliation and that the way question: What elements of reconciliation
in which their procedures are set up is can we hope to find in the work of these
the crucial factor in succeeding in that tribunals? In order to answer that
role. question, the role of the International
Why is it important to have war Criminal Tribunal for the Former
crime tribunals? What roles do these Yugoslavia will first be presented in brief.
tribunals have in dealing with the After receiving continuing reports
challenges of post-conflict justice? If we of widespread violations of international
look at the stated goals of the tribunals humanitarian law occurring within the
we can conclude that their main purpose, territory of the former Yugoslavia, the
their raison d‘être, is to prosecute those International Criminal Tribunal for the
responsible for the crimes committed. Former Yugoslavia (ICTY) was established
Even though establishing individual by the United Nations‘ Security Council to
criminal responsibility is their primary ―put an end to such crimes and to take
goal, it is often declared that international effective measures to bring to justice the
tribunals can contribute to the process of persons who are responsible for them‖ 99
reconciliation97. War crimes tribunals are so that it may contribute to restoring and
(or should be if they are not envisaged as maintaining the peace.
such) only a part of a larger effort for […] Stated otherwise, its mission is
reconciliation in post-conflict societies. In to promote reconciliation through the
exploring the meaning of reconciliation, prosecution, trial and punishment of
John Paul Lederach says: those who perpetrated war crimes,
[…] reconciliation promotes an crimes against humanity and
encounter between the open genocide. By ensuring that people
expression of the painful past, on are held individually responsible for
the one hand, and the search for the crimes they committed, the
the articulation of a long-term, International Tribunal must prevent
interdependent future, on the other entire groups – be they national,
hand. Second, reconciliation ethnic or religious – from being
provides a place for truth and
98 Building Peace: sustainable reconciliation in
97 Reconciliation as a goal is specifically mentioned divided societies / John Paul Lederach, United
in Security Council resolutions 1329 (2000), para 3, States Institute for Peace Press, 1997., page 31.
1534 (2004) para 5, with regards to ICTY and 99 United Nations Security Council Resolution 808
International Criminal Tribunal for Rwanda (ICTR) (1993), p 1, 2.
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stigmatized and must ensure that The ICTY defines its role as
others do not resort to acts of follows:
revenge in their search for justice. It […] The Tribunal has laid the
must neutralize the major war foundations for what is now the
criminals and preclude them from accepted norm for conflict resolution
sustaining a climate of hatred and and post-conflict development across
virulent nationalism which will the globe, specifically which leaders
inevitably lead to future wars. By suspected of mass crimes will face
hearing the voices of the victims in a justice. The Tribunal has proved that
solemn but public forum, it must efficient and transparent
assuage their suffering and help international justice is possible. The
them to reintegrate into a society Tribunal has contributed to an
which has been reconciled. Finally, indisputable historical record;
by establishing the legal truth100 combating denial and helping
on whose basis society can take communities come to terms with their
shape, the International Tribunal recent history. Crimes across the
must prevent all historical region can no longer be denied. For
revisionism.‖101 example, it has been proven beyond
Looking at these two statements, reasonable doubt that the mass
we can draw the conclusion that from the murder at Srebrenica was
time the Tribunal was founded its main genocide103."
goals were not only to prosecute While the traditional approach of
individuals but also to ―hear the voices of war crime tribunals is to focus on the
the victims in a public forum‖ and to need to punish offenders, the role of
―establish legal truth‖ in order to ―prevent restorative justice is to give both victims
historical revisionism‖. By proclaiming and offenders the opportunity to tell their
these goals, the Tribunal moved beyond stories of how the crime affected their
the scope of a traditional criminal court lives, to find out the truth, and to resolve
which has the classical goals of special any questions they feel need to be
deterrence, punishing war criminals, and answered. It is evident that when
general deterrence, preventing the crimes explaining the role of the Court the
from recurring. By aiming to establish emphasis is put equally on the individual
―legal truth‖, to ―hear the voices of responsibility of the perpetrators (leaders
victims‖, and to ―prevent revisionism‖ the will face justice) and establishing the
Tribunal stepped into the arena of truth about what has happened (crimes
restorative justice102 similar to the role of across the region can no longer be
truth and reconciliation commissions. denied). Even from this brief analysis of
the Tribunal‘s mandate, we can conclude
100 Emphasis added
that all elements of reconciliation can be
101 ―The ICTY and the Truth and Reconciliation found in its proceedings. Two of the four
Commission in Bosnia and Herzegovina‖ ICTY elements of reconciliation – truth and
President Claude Jorda‘s speech made on 12 May
2001 in Sarajevo; ICTY Press Release The Hague, 17
May 2001 JL/P.I.S./591-e
102 Restorative justice can be defined as ―a broad search of solutions that promote repair,
term which encompasses a growing social movement reconciliation and the rebuilding of relationships.
to institutionalize peaceful approaches to harm, Restorative justice seeks to build partnerships to
problem-solving and violations of legal and human reestablish mutual responsibility for constructive
rights. These range from international peacemaking responses to wrongdoing within our communities.
tribunals such as the South Africa Truth and Restorative approaches seek a balanced approach to
Reconciliation Commission to innovations within the the needs of the victim, wrongdoer and community
criminal and juvenile justice systems, schools, social through processes that preserve the safety and
services and communities. Rather than privileging dignity of all‖ Suffolk University, College of Arts &
the law, professionals and the state, restorative Sciences, Center for Restorative Justice, What is
resolutions engage those who are harmed, Restorative Justice?
wrongdoers and their affected communities in 103 http://www.icty.org/sections/AbouttheICTY
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justice – are the prerequisite and the […] (a) establishing as complete a
result of the Tribunal‘s work. picture as possible of the causes,
To better understand the nature and extent of the gross
distinction between international criminal violations of human rights which
tribunals and truth and reconciliation were committed during the period
commissions a short overview of the work from 1 March 1960 to the cut-off
of the Truth and Reconciliation date, including the antecedents,
Commission of South Africa (TRC) will be circumstances, factors and context of
presented. Over the past three decades, such violations, as well as the
truth and reconciliation commissions perspectives of the victims and the
have been set up in countries as diverse motives and perspectives of the
as Uganda, South Africa, Guatemala, persons responsible for the
Argentina and Sierra Leone. However, the commission of the violations, by
work of the TRC is probably most well conducting investigations and
known and it served as a role model for holding hearings; (b) facilitating the
many similar institutions that were granting of amnesty to persons who
subsequently established. In the words of make full disclosure of all the
Richard Wilson: relevant facts relating to acts
[…] Truth commissions have associated with a political objective
fascinated international audiences and comply with the requirements of
and led to a voluminous literature this Act; (c) establishing and making
acclaiming their promises of truth and known the fate or whereabouts of
restoration, mostly from law, political victims and by restoring the human
science and moral philosophy. The and civil dignity of such victims by
South African truth commission, as granting them an opportunity to
the largest and most ambitious in relate their own accounts of the
scope, is perhaps the zenith of this violations of which they are the
trajectory, and has attracted the most victims, and by recommending
attention and discussion so far. The reparation measures in respect of
literature evaluating the achievements them (d) compiling a report providing
of truth commissions has mostly been as comprehensive an account as
positive and laudatory, claiming these possible of the activities and findings
commissions heal the nation by of the Commission contemplated in
providing therapy for a traumatized paragraphs (a), (b) and (c), and which
national psyche. They break a regime contains recommendations of
of official denial of atrocities by ending measures to prevent the future
the public silence on violence and violations of human rights105.
violations. They expose the excesses In short, the focus and the main
of the previous political order and so purpose of the TRC were to establish the
discredit it, aiding in democratic truth as an authoritative record of the
consolidation104. past and to promote reconciliation across
The TRC was established under social, political, and ethnic divisions.
the Promotion of National Unity and Granting amnesty (mercy) or prosecuting
Reconciliation Act, No. 34 of 1995, and those responsible for crimes was a goal
was based in Cape Town. The objectives that was only secondary to establishing
of the Commission were to promote the truth. By granting amnesty to those
national unity and reconciliation by: who told the truth about their
involvement in the crimes, some justice,
or rather retributive justice was sacrificed
in order for the truth to be found. In fact,
104Wilson, Richard A., (1964) The politics of truth
and reconciliation in South Africa: legitimizing the
post-apartheid state, Cambridge University Press, p 105Promotion of National Unity and Reconciliation Act,
18-19. No. 34 of 1995, Article 3
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TRC had no mandate to impose sentences important one is whether the adversarial
on those who were not granted amnesty, (common law) or inquisitorial (civil law)
those cases being left to the courts. It system is employed. This is closely linked
should be noted that out of 7112 with the practice of plea bargaining – a
petitioners for amnesty, only 849 were negotiation in which the defendant agrees
granted and 5392 refused amnesty, and to enter a plea of guilty to a lesser charge
that amnesty was never guaranteed to and the prosecutor agrees to drop a more
those who apply for it, even if they would serious charge. Plea bargaining is
tell the whole truth. frequently used in common law countries
According to the TRC report: and to a lesser extent in civil law
[…] the various participants countries. It comes about in two forms:
experienced the Amnesty Committee sentence bargaining – where a lenient
process differently. Victims who sentence is recommended by the
attended hearings had to contend, prosecutor in exchange for a guilty plea
generally speaking, with the and sometimes cooperation provided by
reopening of old wounds. Their the defendant (e.g. promise to testify in
responses varied from strongly other cases etc.); and charge bargaining –
opposing to supporting applications dropping the charges in return for a guilty
for amnesty; from opposing the plea.
principles underlying the amnesty The most significant benefit of plea
process to embracing them; from bargaining for the accused is to take away
frustration with perceived non- the uncertainty of a criminal trial and to
disclosure by perpetrators to avoid the maximum sentence. The
satisfaction at having learnt the facts; benefits from plea bargaining for the
from animosity towards applicants to prosecution and the court are that
embracing them in forgiveness and agreements lessen time and costs
reconciliation. Often they merely necessary to reach a judgment and
stated that they had learnt the truth victims and witnesses are relieved from
and now at least they under-stood giving evidence in court and potentially
how and why particular incidents had re-living their trauma. On the other hand,
happened106. with the use of plea bargaining the
Courts and truth and victims lose the opportunity to have their
reconciliation commissions serve voices heard, many facts of the case are
different, but compatible roles in ensuring not determined, and the complete picture
accountability and bringing about of the crime is not given. By failing to
reconciliation. While regular criminal establish the forensic truth in cases which
courts do not always place the ultimate end in a plea bargain, the court fails to
priority on finding the whole truth, the establish the judicial historical record –
imperative of finding the whole truth in the legal truth, proclaimed to be one of
war crime cases does seem to be a the functions of ICTY107. In addition,
necessity. This conclusion can especially charge bargaining distorts the truth even
be drawn in the light of the work of the further as those who are initially charged
abovementioned TRC in reaching the goal with many serious crimes end up being
of reconciliation. sentenced for only one or a few of them,
but not the gravest ones.
Plea bargaining in war crime cases Is plea bargaining compatible with
the unique functions of international
How much emphasis is placed on
finding the truth in criminal procedure
depends on several elements. The most 107It should be noted that finding the truth about a
certain historical event through criminal proceedings
is additionally hampered by the fact that the scope
106 Truth and Reconciliation Commission of South of such proceedings is limited to the actions of a
Africa Report, Section 1, Chapter 5, para 35 particular perpetrator(s).
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criminal courts? Does plea bargaining the end of 2001, six accused had pled
contribute to the process of reconciliation guilty before the Tribunal. This lead to a
or does it make it even more difficult? change in Rules of Procedure and
From the time the ICTY was first Evidence where Rule 62ter was added110:
established, its judges were aware of this […] The Prosecutor and the defense
quandary. First president of the ICTY, may agree that, upon the accused
Judge Antonio Cassese, argued against entering a plea of guilty to the
the use of plea bargaining: indictment or to one or more counts of
[…] The question of the grant of the indictment, the Prosecutor shall do
immunity from prosecution to a one or more of the following before the
potential witness has also generated Trial Chamber: (i) apply to amend the
considerable debate. Those in favor indictment accordingly; (ii) submit that
contend that it will be difficult enough a specific sentence or sentencing
for us to obtain evidence against a range is appropriate; (iii) not oppose a
suspect and so we should do request by the accused for a particular
everything possible to encourage sentence or sentencing range. (B) The
direct testimony. They argue that this Trial Chamber shall not be bound by
is especially true if the testimony any agreement specified in paragraph
serves to establish criminal (A). (C) If a plea agreement has been
responsibility of those higher up in the reached by the parties, the Trial
chain of command. Consequently, Chamber shall require the disclosure
arrangements such as plea- of the agreement in open session or,
bargaining could also be considered in on a showing of good cause, in closed
an attempt to secure other convictions. session, at the time the accused
However, we always have to keep in pleads guilty in accordance with Rule
mind that this Tribunal is not a 62 (vi), or requests to change his or
municipal criminal court but one that her plea to guilty.
is charged with the task of trying Has plea bargaining been a
person accused of the gravest possible successful strategy in the work of the
of all crimes. The persons appearing ICTY? Has it advanced, or offended the
before us will be charged with objective of reconciliation? There is no
genocide, torture, murder, sexual prevailing opinion so far. Alain Tieger and
assault, wanton destruction, Milbert Shin argue that:
persecution and other inhumane acts. […] Even if the documentation
After due reflection we have decided accompanying plea agreements lacks
that no one should be immune from the details of a full trial record, the
prosecution for crimes such as these, efficiency of the plea agreement
no matter how useful their testimony process results in a greater number
may otherwise be.108‖ of completed cases and, therefore,
Although judges initially rejected more additions to the historical
plea bargaining as incompatible with the record. Plea agreements can
goals of the Tribunal, a guilty plea therefore make up in breadth what
resulting from the plea bargaining process they may lack in depth111.
came about in 2001 in Simić et al.109. By Michael P. Scharf is of the opposite opinion:
[…] In light of the unique objectives of
international justice in cases of
108 Statement made by the President Made at a
Briefing to Members of Diplomatic Missions, IT/29,
charge bargaining, the Tribunal
11 February 1994, reprinted in V. Morris and M.P.
Scharf, An Insider‘s Guide to the International
Criminal Tribunal for the Former Yugoslavia, Vol. 2 110 Rules of Procedure and Evidence, IT/32/Rev. 44.
(Irvington-on-Hudson, New York: Transnational 10 December 2009., Article 62ter.
Publishers, Inc., 1995), at 649,652. 111 Alan Tieger and Milbert Shin, Plea Agreements in
109 Prosecutor v. Stevan Todorović Case No. IT-95- the ICTY, Purpose Effects and Propriety, Journal of
9/1-S, Sentencing Judgement, 31 July 2001. International Criminal Justice 3 (2005) ,666-679
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Concluding remarks
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Bibliography
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
* Elena Atzeni holds a Master‘s Degree with honors in Law from the University of Torino,
School of Law. She is now a Ph.D. Candidate in International Law at the University of
Torino, researching specifically on the prohibition of torture and inhuman or degrading
treatment, as well as on matters relating to international criminal law and humanitarian
law. From January 2011 through August 2011 Elena has been a Fulbright Visiting Scholar
at UC Berkeley, School of Law In 2006 she obtained a Diploma in Humanitarian
Emergencies and Assistance from ISPI (Istituto per gli Studi di Politica Internazionale) –
Milan. In 2008 Elena worked as a legal intern at the Extraordinary Chambers in the Court
of Cambodia, the UN-backed tribunal set up to judge former Khmer Rouge leaders.
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The War Crimes Chamber was established context of trials before the War Crimes
within the Court of Bosnia and Chamber before February 2008, despite
Herzegovina114 (BiH) and officially began the fact that this possibility was provided
its operations on 9th March 2005. It was for in the Criminal Procedure Code. 117
set up pursuant to a series of reforms Between February 2008 and May 2008
involving the Bosnian legal system, albeit plea agreements were agreed to with four
a significant role in its creation was defendants, as a likely result of a change
played by the ICTY completion strategy of strategy within the prosecution.
drafted in 2002. The latter provided for
partnership and cooperation with local The examination of the plea agreement‘s
jurisdictions in -pursuing the tribunal‘s sentence against Dušan Fuštar is
objectives, while rethinking the instrumental in gauging whether any
relationship between primacy and disadvantages of plea bargaining in war
complementarity among ICTY and crimes trials within the State Court of BiH
national jurisdictions.115 The 2003 BiH may exist, while keeping in line with the
Criminal Code and Criminal Procedure practice of the ICTY on this matter.
Code gave the State Court of BiH, and in Dušan Fuštar was held accountable for
certain instances cantonal and district persecution as a crime against humanity
courts, jurisdiction over war crimes and for the events which took place at the
selected international crimes. Keraterm concentration camp, in the
From September 2005 to June 2008 the Prijedor municipality between June and
War Crimes Chamber tried 84 accused August 1992. He was sentenced to nine
and rendered 32 trial judgments.116 years of imprisonment on 21st April
2008.118
The purpose of this essay is to examine
how plea agreements between defendants Two aspects of the ruling are of interest:
and the prosecution may impact the the first issue relates to the charges of
reconciliation process in BiH, which is active participation in the killings or
one of the most relevant objectives maltreatment of inmates, which was
pursued by internationalized and dropped by the Prosecution as a
international tribunals in trying war consequence of the Plea Agreement. This
crimes and crimes against humanity. No brings us to analyze the practice of
plea agreements had been made in the ―charges‖ rather than ―sentence‖
bargaining between the Prosecutor and
114 The Court of BiH was established in 2002,
the defendants in war crimes trials. The
through a law imposed by the High Representative, second facet under scrutiny involves the
subsequently approved by the BiH Parliamentary mitigating circumstances to which the
Assembly. See Law on the Court of Bosnia and Chamber attached a considerable weight
Herzegovina, ―Official Gazette‖ of Bosnia and
Herzegovina, 29/00, 16/02, 24/02, 3/03, 37/03,
in evaluating what sentence would have
42/03, 4/04, 9/04, 35/04, 61/04, 32/07 been appropriate vis-à-vis the charged
115 Pursuant to Rule 11bis of ICTY Rules of crimes.
Procedure and Evidence (RPE), a case can be
referred by the Tribunal to the authorities of a State,
having considered also the gravity of the crimes
As for the first aspect, it is worthwhile to
charged and the level of responsibility of the point out the difference between charges
accused. See Rule 11bis, ICTY Rules of Procedure
and Evidence, available at
http://www.icty.org/x/file/Legal%20Library/Rules_ 117 Article 231, Criminal Procedure Code of
procedure_evidence/IT032_Rev42_en.pdf. See also Bosnia and Herzegovina, ―Official Gazette‖ of Bosnia
United Nations, Security Council, International and Herzegovina 3/03, 32/03, 36/03, 26/04,
Tribunal for the former Yugoslavia and International 63/04, 13/05, 48/05, 46/06, 76/06, 29/07, 32/07,
Tribunal for Rwanda, UN Doc. S/RES/1503 (2003). 53/07, 76/07, 15/08, 58/08, 12/09, 16/09.
116 See Ivanišević, Bogdan. The War Crimes 118 Court of Bosnia and Herzegovina, Section I
Chamber in Bosnia and Herzegovina: From Hybrid to for War Crimes of the Criminal Division of the Court,
Domestic Court, International Centre for Transitional Prosecutor v. Dušan Fuštar, Sentencing Judgment,
Justice, 2008, p. 10. 21 April 2008.
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the ICTY case law on this merit,124 the judicial process are understood by
constitutes an important contribution to victims and that truths are accepted. This
the process of societal reconciliation since purpose can be achieved through an
it represents an acceptance of effective outreach program, which in the
responsibility for the crimes committed; at case of BiH War Crimes Chamber can
the same time it increases the efficiency of benefit from the proximity of the
proceedings and reduces the costs. The population. Also, trials remain one of the
second element is the public expression of few effective tools existing to deter mass
remorse at the main trial: the real crimes at international level; it follows
challenge in this case is to be able to that judges should be wary of delivering
distinguish between real expressions of excessively low sentences: a clear
remorse and those that are forged to message needs to be sent.
manipulate the judges into imposing a
lesser sentence. Third element is the
readiness of the accused to cooperate with
the prosecution, which is deemed
valuable in terms of efficiency and
contribution to the work of the court in
prosecuting certain crimes. Lastly, the
Chamber considered the fact that Dušan
Fuštar was a family man and had no prior
convictions: concerning this issue, judges
should be careful in estimating the value
of these circumstances, especially in
contexts where a large part of the civilian
population had been involved in
committing crimes.
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Bibliography
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
REPORTS ON THE
TRANSITIONAL JUSTICE
EXPERIENCE IN BOSNIA AND
HERZEGOVINA
By Azra Somun*
ABSTRACT
15 years have passed since the signing of the 1995 Dayton Peace
Agreement which ended the war in the former Yugoslavia.
However, the Agreement was not only signed to stop the hostilities,
but also to lay down the requirements for a durable peace through,
among other things, the process of reconciliation. In order to achieve
that goal, different transitional justice mechanisms have been set
up. This paper is a short review of the main transitional justice
mechanisms put in place in Bosnia, a review that will show the
political tensions that are in the background of the process of
reconciliation. Thus, the trials, national and international will be
analyzed; followed by a description of different truth seeking
mechanisms; and finally a quick examination of the vetting process
of public officials will be given.
* Azra Somun was born on April 30, 1987 in Sarajevo, Bosnia and Herzegovina
where she attended to the International Baccalaureate Diploma Program in
Sarajevo's Second Gymnasium. In 2005, she enrolled at the University Robert
Schuman in Strasbourg and graduated in June 2008 in Law and European
studies. She spent the 1st year of her master's studies at King's College London
before returning to the University of Strasbourg in order to finish her studies. She
completed her European Law master's degree in September 2010. She has
participated in several international programs, amongst which are: the
International Summer School Sarajevo in 2008 and 2009, the London Model United
Nations 2009 and the National Model United Nations 2009 in New York City.
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same time, a process of vetting public years to catch one of the most notorious
officers took place in order to ensure the Serb politicians Radovan Karadţić, and
independence of the police and judiciary that Ratko Mladić is still a fugitive.
(III).
Thus, we will try to analyze one by one Thus, even though the ICTY has done a
the different strategies put in place, lot of work in trials, it is not enough to
starting of course with the main one, ensure reconciliation. Indeed, the
being the trials. Tribunal is not a proper place for the
victims to voice their stories, and as has
I. Trials been said, the Tribunal is perceived
It seems that a great focus was put on the differently within the country. Its
trials, especially with the ICTY (A). mandate will most likely end in 2014 133;
However, prosecutions also took place that is why the ICTY is transferring more
locally, in BiH Courts (B). and more cases to the War Crimes
Chamber of the Court of BiH.
A. The International criminal
Tribunal for the Former B. Local trials
Yugoslavia (ICTY)
Local trials, meaning trials within BiH,
The ICTY is a United Nations Court of law have taken place since the beginning of
established in 1993 to deal with war the war, by the ordinary jurisdiction of
crimes that took place during the conflicts the country. But in 2002, the Court of
of the 1990‘s in the Balkans. The Tribunal BiH was created, and one of its Chambers
has contributed to the fight against the is dedicated to War Crimes (1). There was
culture of impunity, to combat denial and another transitional justice organ in BiH
help communities come to terms with that does not exist anymore but has
their recent history.131 The ICTY‘s impact helped the reconciliation process, namely
in BiH was profound, but was and still is the Human Rights Chamber (2).
perceived differently in the Federation and
in the RS. Indeed, it appears that in the 1. The War Crimes Chamber in the
Federation, the Tribunal has achieved a Court of BiH
certain level of trust, even though the
condemnations are seen as being too soft. ―The state of BiH presents the classic
However, this same Tribunal is perceived dilemma in the area of transitional
in the RS as a biased, anti-Serb body. justice: it is a context marked by an
This is probably the case because the unusually high demand for justice and an
most significant number of cases heard unusually low capacity or willingness to
by the Tribunal dealt with alleged crimes deliver it.‖ 134 However, criminal justice
committed by Serbs and Bosnian efforts, especially at the domestic level,
Serbs.132 are an essential component of any
comprehensive transitional justice
The ICTY has nonetheless dealt with the strategy.135
high-ranking politicians and military man
showing that an individual‘s high position 133―Brammertz: Tribunal will work until 2014‖. B92.
cannot protect him from prosecution. We 19.05.2010.
have to keep in mind that it took twelve <http://www.b92.net//eng/news/politics-
article.php?yyyy=2010&mm=05&dd=19&nav_id=672
34>. 19.11.2010.
131 ―About the ICTY‖. ICTY – TPIY. <
http://www.icty.org/sections/AbouttheICTY>. 134 ―BiH: Selected developments in transitional
19.11.2010. justice.‖ International Center for Transitional
132 Ibid. See also the key figures : ―Key figures‖. Justice. October 2004.
ICTY-TPIY. <http://www.ictj.org/images/content/1/1/113.pdf>
<http://www.icty.org/sections/TheCases/KeyFigure . 19.11.2010.
s>. 19.11.2010. 135 Ibid.
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Conclusion
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
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―Brammertz: Tribunal will work until 2014‖. B92. 19.05.2010.
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CITIZENS‟ PARTICIPATION
WITHIN THE LEGISLATIVE
PROCEDURE OF THE OFFICE OF
THE HIGH REPRESENTATIVE OF
BOSNIA AND HERZEGOVINA IN
LIGHT OF ARTICLE 3
PROTOCOL 1 TO THE ECHR
By Marjolein Schaap*
ABSTRACT
*Marjolein Schaap holds an LL.M. in International and European public law from Erasmus
University Rotterdam, Netherlands, with a thesis on the subject of ‗Regulating the powers of
the High Representative‘. Presently Marjolein works as a lecturer Public International Law
at Erasmus University Rotterdam teaching mainly undergraduate courses in public
international law. Her research interests are contemporary issues of public international
law relating to international administrations and human rights within the context of
conceptualizing the rule of law. She is currently in the preparatory stage of a Ph.D. on
participation in the decision-making process of an international administrator focusing on
Bosnia and Herzegovina. If interested in this research, you are encouraged to contact
Marjolein m.schaap@law.eur.nl
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decisive for the legitimacy of an was not anticipated,167 and secondly, that
international administration. The the OHR does not have the exclusive
legitimacy will be based on to what extent authority to govern.168 Originally, the
the international administrator is able to OHR‘s mandate was to solely facilitate
incorporate the will of the people into the and coordinate the implementation of the
decision-making process.164 In order to do DPA, whereas as of 1997, the OHR had
so, some form of involvement of the local the power to adopt binding decisions,
actors and citizens is necessary within the which subsequently became known as the
decision-making process. Participation in ‗Bonn powers‘. The OHR exercises
the context of international authority through intervention into the
administrations implies often power- domestic legal order when it is deemed
sharing arrangements between local necessary for the implementation of the
actors and the international DPA.
administration,165 but it also implies
involvement of local actors representing The legislative activities of the OHR
citizens or direct involvement of citizens and the theory of functional duality
within the decision-making process of the
international administration. Involvement In order to decide on the applicability of
within the legislative activities of the OHR Article 3 Prot. 1 to the ECHR to the
could be realized through various forms legislative activities of the OHR it is
and degrees of participation. This article necessary to have a good understanding
will focus on two phases which can be of the scope of the powers of the OHR.
identified in the process of participation; Furthermore, it is important to
the actual participation within the understand the notion of functional
decision-making process and the duality which the Constitutional Court
possibility to enforce the right to developed in order to create competence
participation in case citizens feel that to review legislative activities of the OHR
their right has been limited or interfered on compatibility with the Constitution of
by the authority, i.e. access to justice. 166 BiH.
Participation is in BiH even more The mandate of the OHR and its power
pertinent in comparison to other to legislate
administrations considering the fact that,
firstly, the governmental role of the OHR The UN Security Council endorsed the
establishment of the OHR through
Practice, p. 718; Also see UN GA Res. 2248 (1968), resolution 1031 adopted under Chapter
para. 1(a). VII of the UN Charter.169 As of 1997, the
164 B. Knoll, The Legal status of territories subject to
OHR has the power to adopt binding
administration by international organizations,
Cambridge: Cambridge University Press, 2008, p.
decisions,170 which means that the OHR
297.
165 C. Stahn, ‗Governance Beyond the State‘, 2
International Organizations Law Review 9 (2005), 46; 167 It seems that this explains why no official power
The importance thereof was reflected in the power- sharing arrangement or other forms of participation
sharing arrangements in the mandates of have been arranged structurally and institutionally
international administrations in Kosovo and East- from the beginning.
Timor. For Kosovo see SC Res. 1244 (1999), para. 168 Nevertheless, the international administrations as
10-11. For East Timor see SC Res. 1272 (1999), para in Kosovo and East-Timor are comparable in most
8; In both cases the international administration elements with regard to the need for participation
had full authority as of the beginning of the and the standards applicable to it.
administration and gradually conferred powers upon 169 See Paragraph 2 of Annex 10 to the DPA; UNSC
the local authorities based on the arrangements as Res 1031 No. 26, 27.
stipulated in the mandates. 170 The re-interpretation of the powers of the High
166 J. Ebbesson, ‗Public Participation‘ in D. Representative took place at the meeting of its
Bodansky, J. Brunneé and E. Hey (eds.) The Oxford supervising body, the Peace Implementation
Handbook of International environmental law, Council. PIC Bonn Conclusions (8/12/1997), para.
Oxford: Oxford University Press 2007, p. 681. XI, available at http://www.ohr.int/. The Security
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
has the power to dismiss or remove severely.176 E.g. there are no procedural
persons from holding public office when rules for the legislative acts adopted by
they work against the spirit of the DPA, 171 the High Representative even though
and the power to legislate when the there are strict rules for the Parliamentary
Parliamentary Assembly of BiH is not able Assembly to adopt legislation. 177
or not willing to adopt legislation deemed Furthermore, the legislation adopted by
necessary for effective implementation of the OHR contains a paragraph which
the DPA.172 The difficulties encountered instructed the Parliamentary Assembly to
by the Parliamentary Assembly in adopt the law in due form without any
adopting necessary legislation or amendments or conditions attached.178
amendments can be explained through The OHR exercised the power to legislate
the designed decision-making mechanism and to amend laws extensively: between
in the Constitution with equal ethnic 1998 and 2010, 339 laws and/or
representation within state institutions amendments were imposed in this
and a veto power for the three ethnic manner.179 There are several examples
groups.173 The (new) Constitution of which illustrate the exercise of legislative
BiH174 was agreed on within the drafting authority by the OHR; e.g. on November
process of the DPA and entered into force 12, 2000, one day after the Parliamentary
as an annex to the DPA. 175 Assembly elections, the OHR adopted
The authority to legislate and the exercise eight laws and three amendments
thereof by the OHR have been criticised concerning various subjects from
establishing institutions to laws deciding
on weights and measures.180 Moreover, in
some cases the OHR also initiated laws by
Council endorsed the reinterpretation in UN SC Res. giving orders to the Parliament to adopt
1144 (1997). laws on a certain area within a set
171 This paper will not address the authority of the
CDL-AD (2005)004, para. 87; European Court of are published in the Official Gazette of Bosnia and
Human Rights, Sejdic and Finci v. Bosnia and Herzegovina as are the legislative acts adopted by
Herzegovina (application nos. 27996/06 and the Parliamentary Assembly.
34836/06) 2009. 178 See e.g. High Representative, Decision Enacting
174 The Constitution of BiH is unique to the extent the Law on Changes and Amendments to the Law on
that it was not adopted by the domestic legislator the Council of Ministers in Bosnia and Herzegovina
but annexed to an international treaty. Furthermore, (October 19,2007) available at http://www.ohr.int/.
till this day the official version of the Constitution 179 See http://www.ohr.int/.
not available in one of the official languages of BiH 180 It is quite questionable if the new Parliamentary
(only in English). See for more information on the Assembly was unable or unwilling to adopt these 8
Constitution and its provisions Steiner and laws and three amendments. For decisions of the
Ademović (Eds.), Constitution of Bosnia and OHR see http://www.ohr.int/.
Herzegovina. 181 See e.g. the legislative program of the OHR as
175 Annexes 4 and 10 to the DPA are the most addressed to the Parliamentary assembly in which
relevant Annexes with regard to this paper, where 10 pledges and 69 pledges were stipulated ‗Justice
Annex 4 comprises the Constitution of BiH and and Jobs‘, available at http://www.ohr.int/. Also see
Annex 10 deals with the civilian implementation of Knaus and Martin, ‘Lessons from Bosnia and
the DPA. Herzegovina‘, 60.
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
legislation.182 Even though most laws adopted by the OHR in case U 9/00. The
adopted by the OHR were vital for BiH to decision in question concerned the
move forward because of the impasse validity of a law creating a border service
within the Parliamentary Assembly, the for BiH, adopted by the OHR after failure
intrusion into the domestic order is of the Parliamentary Assembly to do so. 186
nevertheless extensive.183 Furthermore, Various members of the BiH House of
for a long time it was considered that Representatives challenged this law,
legislative activities of the OHR were not because the procedure set forth in the
subject to review,184 until the Constitution was not followed, i.e. the
Constitutional Court delivered their OHR did not have the power to enact a
judgment in case U 9/00. law in the absence of a vote by the
Parliamentary Assembly, and additionally,
The Constitutional Court and the because the law was unconstitutional on
theory of functional duality other grounds.187 The Constitutional
Court argued that they were not
The OHR has a dual role; as international competent to deal with a question of
actor, responsible to the international authority of the OHR due to the immunity
community and as national actor, of the OHR. However, the Constitutional
responsible to the people of BiH. 185 The Court argued that they were competent to
OHR enjoys immunity. Article III (4) of review the legislation because the OHR:
Annex X to the Dayton Peace Agreement ... intervened in the legal order
accorded the same immunities to the of Bosnia and Herzegovina by
OHR as to a diplomatic mission and the substituting himself for the
diplomatic agent; consequently the OHR national authorities. (…) he
enjoys immunity rationae materiae and therefore acted as an
immunity rationae personae. This implies authority of Bosnia and
that the BiH courts do not seem to have Herzegovina and the law
jurisdiction to review decisions taken by which he enacted is in the
the OHR. The Constitutional Court nature of a national law and
developed a theory of functional duality in must be regarded as a law of
order to review legislative activities of the Bosnia and Herzegovina.188
OHR to solve (partly) the accountability According to the Court, ‗such situation
problem. The Constitutional Court amounts to a sort of functional duality: an
reviewed for the first time legislation authority of one legal system intervenes in
another legal system, thus making its
functions dual.‘189 The acts of the OHR are
182 See e.g. the law on the Council of Ministers of ‗acts of two distinct legal persons
Bosnia and Herzegovina and the OHR decision simultaneously‘, the international actor
enacting the law on the Council of Ministers of
Bosnia and Herzegovina, all available at
http://www.ohr.int/.
183 Venice Commission, ‗Opinion on the 186 OHR, ‗Decision imposing the Law on State Border
Constitutional Situation‘; European Stability Service of Bosnia and Herzegovina‘ (13/1/2000),
Initiative, Reshaping international priorities in Bosnia available at http://www.ohr.int/; Constitutional
and Herzegovina – Part II International Power in Court of Bosnia and Herzegovina, U 9/00 (3
Bosnia (Berlin: European Stability Initiative 2000) November 2000), para. 5, available at
available at <www.esiweb.org> <www.ccbh.ba> (accessed July 10, 2009).
184 See for the criticism of the unchecked role of the 187 The applicants claimed that article III.5 (a) of the
HR especially Knaus and Martin, ‘Lessons from Constitution was not followed by the Presidency of
Bosnia and Herzegovina‘, who compared the OHR the BiH, i.e. asking for prior consent to the entities
with the ‗European Raj‘. before drafting this law. The Court concluded that
185 C. Stahn, ‗Accountability and Legitimacy in there was no violation of the Constitution.
Practise: Lawmaking by transitional administration‘, Constitutional Court of Bosnia and Herzegovina, U
11 International Peacekeeping: the Yearbook of Peace 9/00, para. 10 et seq.
Operations 81 (2006), 102. This concept has been 188 Constitutional Court of Bosnia and Herzegovina,
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
review under Article III of the Constitution. and Political Rights, available at
196 Constitutional Court of Bosnia and Herzegovina, http://untreaty.un.org/cod/avl/pdf/ha/iccpr/iccpr
U 26/01 (September 28, 2001; Constitutional Court _e.pdf.
of Bosnia and Herzegovina, U 16/00 (February 2, 199 General Comment 25, HRC, Article 25 (1996), UN
at http://www.ccbh.ba/ (accessed July 10, 2009); Bosnia and Herzegovina – Commentary, Berlin:
the Human Rights Chamber produced similar case Konrad Adenauer Stiftung, 2010, p. 437.
law: R. Everly, ‗Assessing the Accountability of the 201 Report of the Commission, ‗The Greek case‘, 5
High Representative‘, in D.F. Haynes (ed.), November 1969 (1969), Yearbook 12, p. 179.
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Assembly.202 Article 3 Prot. 1 to the ECHR vote and, passively through the right to
has been developed into a classical stand for elections to the legislature, i.e.
human right;203 it comprises two the Parliamentary Assembly in BiH. 208
subjective political human rights, ‗the The legislation adopted by the OHR is
right to vote‘ and ‗the right to stand for regarded as national legislation on the
election to the legislature‘, which together basis of the theory of functional duality,
embraces the right to participate in to which the same legal framework is
political life.204 As said by the applicable as to legislation adopted by the
Constitutional Court Article 3 Prot. 1 Parliamentary Assembly. This implies that
implies that states may not limit the the OHR in its decision-making process of
freedom of participation to the extent that legislation has to comply with the
it will impair its very essence and deprive Constitution and the ECHR and its
it of its effectiveness.205 In order to Protocols. Concluding, article 3 Prot. 1 to
examine if citizens have a right to the ECHR is applicable to the legislation
participation within the OHR legislative adopted by the OHR.
procedure and if they can enforce their
right in the domestic courts it is Now it has to be examined if citizens can
important to look at the applicability and enforce their right to participation at the
enforceability of article 3 Prot. 1 to the domestic level when they believe their
ECHR at the national level.206 right to participation has been violated or
unjustifiably limited due to the legislative
Applicability of article 3 Prot. 1 to the procedure of the OHR. Therefore, the next
ECHR paragraph will examine if the BiH courts
have the competence to review legislation
The ECHR has a special status within of the OHR on compatibility with article 3
BiH, which provides for far-reaching Prot. 1 to the ECHR.
human rights protection.207 The ECHR is
directly applicable within BiH and the
ECHR supersedes conflicting national
law. When the OHR intervenes and adopts Enforceability of article 3 Prot. 1 to the
legislation instead of the Parliamentary ECHR at the domestic level
Assembly the question arises whether
article 3 Prot. 1 to the ECHR is applicable As argued, on the basis of the theory of
to this legislation. The right to functional duality the Constitutional
participation for citizens in BiH means Court has the competence to review
that they have the right to participate in legislative activities of the OHR on
political life; actively through the right to compatibility with the Constitution of BiH
and with the ECHR. So far the
202 F.G. Jacobs, R.C.A. White and C. Ovey, The
Constitutional Court has only reviewed
European Convention on Human Rights, 3rd edition, the legislation adopted by the OHR on
Oxford: Clarendon Press, 2002, p. 331. compatibility with the Constitution. 209
203 Steiner and Ademović (Eds.), Constitution of
However, the Constitutional Court has the
Bosnia and Herzegovina - Commentary, p. 437.
204 AP 952/05 in conjunction with EComHR, X. V. competence to review it on compatibility
Belgium, Application No. 1028/61 (1961). with the ECHR if presented with a
205 Constitutional Court, Case AP-35/03 (2005), question thereupon. For instance, in the
para. 42. Kalinic case the Constitutional Court
206 This paper will not address the possible
evaluation of the issue at hand at the regional level
concluded that there was no effective legal
by the ECtHR. See for more discussion on this and
thereby the discussion on extra-territorial
application of human rights to international 208 AP 952/05 in conjunction with EComHR, X. V.
administrations Knoll, The Legal status of territories Belgium, Application No. 1028/61 (1961); Steiner
subject to administration by international and Ademović (Eds.), Constitution of Bosnia and
organizations at 360. Herzegovina - Commentary, p. 437.
207 Article II (I) of the Constitution. 209 Article II (1) (2) of the Constitution.
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
outcome of a case on participation before the 213 Venice Commission, ‗Opinion on the
Constitutional Court, therefore the possible Constitutional Situation‘, para. 87.
justifications and the margin of appreciations of 214 This is a question of justification and margin of
states will not be addressed within this article. appreciation of states, which requires more research
212 Venice Commission, ‗Opinion on the in order to have a proper conclusion and solution to
Constitutional Situation‘, para. 89. this problem.
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the OHR, as citizens have within a purely of article 3 Prot. 1 ECHR217 by the OHR
national legislative procedure. Citizens considering that they have the
can enforce their right at the domestic competence to do so on the basis of the
courts in BiH. However it would be concept of functional duality.
unrealistic to expect from the OHR to
create a form of participation similar to
the domestic level, due to the major
discrepancy between the legal situation
and its demands on the one hand and the
political reality and its consequences on
the other hand.215
Nevertheless, it is essential for a
country that acceded to the Council of
Europe in 2004 to look ahead. The OHR
needs to take human rights provisions
into account in his decision-making
process, especially when he adopts
decisions directly affecting individuals in
BiH. As international administrator, it is
essential that he exercises his functions
in accordance with the principles of good
governance and thereby in accordance
with the right to participate. On the basis
of article 3 Prot. 1 to the ECHR, the OHR
has an obligation to let citizens
participate in the decision-making
process in order to create some form of
democratic legitimation. Even though,
due to the situation it is sometimes
necessary for the OHR to adopt
legislation, democratic rights should
always be taken into account within the
legislative procedure including some form
of participation.
215 Even though this is a highly interesting question, 217This line of argumentation leaves aside the actual
it falls outside the scope of this article. review by the domestic courts and the fact if the
216 Venice Commission, ‗Opinion on the courts will or will not conclude that the OHR has
Constitutional Situation‘, para 88. unjustifiably breached Article 3 Prot. 1 to the ECHR.
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
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Utrecht: Eleven International Publishing, 2009
Knoll, B., The Legal status of territories subject to administration by international
organizations Cambridge: Cambridge University Press, 2008
Schaap, M., Regulating the powers of the High Representative – reality and preferable
situation, Erasmus University Rotterdam, Master‘s thesis, 2009
D.S. Smyrek, Internationally administered territories – International protectorates?,
Berlin: Duncker and Humblot, 2006
Stahn, C., The Law and Practice of International Territorial Administration: Versailles
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Mission Never Went Away, Oxford: Oxford University Press, 2008
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Jacobs, F.G., White, R.C.A. and Ovey, C., The European Convention on Human
Rights, 3rd edition, Oxford: Clarendon Press, 2002
Haynes, D.F. (ed.), Deconstructing the Reconstruction, Burlington/Aldershot:
Ashgate, 2008
Steiner, C., Ademović, N. (eds.), Constitution of Bosnia and Herzegovina –
Commentary, Berlin: Konrad Adenauer Stiftung, 2010
Articles
Bodanksy, D., ‗The Concept of Legitimacy in International Law‘, (2007) University of
Georgia School of Law Research Paper No. 07-013
Cox, M., ‗The Dayton Peace Agreement in Bosnia and Herzegovina: A Study of
Implementation Strategies‘, British Yearbook of International Law 69 (1999), 201
J. Ebbesson, ‗Public Participation‘ in D. Bodansky, J. Brunneé and E. Hey (eds.) The
Oxford Handbook of International environmental law, Oxford: Oxford University Press
2007
Everly, R., ‗Assessing the Accountability of the High Representative‘, in Haynes, D.F.
(ed.), Deconstructing the Reconstruction, Burlington/Aldershot: Ashgate, 2008, 79
Knaus, G., Martin, F., ‗Lessons from Bosnia and Herzegovina- Travails from the
European Raj‘, Journal of Democracy 14 (2003), 60
Knoll, B., ‗Beyond the Mission Civilisatrice: the properties of a normative order within
an internationalized territory‘, LJIL 19 (2006), 275
Marko, J., ‗Five Years of Constitutional Jurisprudence in Bosnia and Herzegovina: A
First Balance‘, European Diversity and Autonomy Papers 16 (2004), available at
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Parrish, M., ‗The Demise of the Dayton Protectorate‘, Journal of Intervention and
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Stahn, C., ‗Accountability and Legitimacy in Practise: Lawmaking by transitional
administration, International Peacekeeping 11 (2006), 81
Wilde, R., ‗The complex role of the legal adviser when international organizations
administer territory‘, ASIL Proceedings (2001), 251
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Case Law
AP 952/05 in conjunction with the EComHR, X. v. Belgium, Application No. 1028/61
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The Greek case, Report of the Commission, 5 November 1969, Yearbook 12 (1969),
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Constitutional Court of Bosnia and Herzegovina, U/900 (November 3, 2000),
available at http://www.ccbh.ba/
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Bilbija i Dragan Kalinić, available at http://www.ccbh.ba/
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Conflicts in Bosnia and Croatia from 1991 to 1995 have left a huge
impact on the political and economical systems of successor
countries of the former Yugoslavia. At present, almost 15 years
after the end of war, society is still intensively trying to deal with
the past.
Societies in transition from war a ravaged reality to democracy are
using various mechanisms of transitional justice, such as war
crimes trial, truth commissions, lustration and reparation. In 1993,
a UNSC Resolution established the International Criminal Tribunal
for the former Yugoslavia. The Dayton peace agreement obliged all
post-Yugoslav states to collaborate and extradite alleged war
criminals. The transfer of cases to domestic Special Courts for war
crimes started with back referral and completion strategy. Regional
cooperation on some cases highly influenced success of the later
ones. The problem of reconciliation as one of the most pressing in
post-conflict societies, is made possible only by systematic,
persistent, long-lasting confrontation with past in order to create a
democratic environment.
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
agreement) requires full cooperation with First Successful Step in Campaign for Better
Understanding of the ICTY in the Former Yugoslavia,
all organizations involved in
20 October 1998
225 Cibelli, Kristen and Guberek, Justice Unknown,
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
former Yugoslavia have demonstrated a War Crimes and Human Rights Abuses, 2004
232 Assessment and Report of Judge Theodor Meron,
willingness to try war crimes. So called President of the International Criminal
―completion strategy‖ or the transfer of Tribunal for the Former Yugoslavia, Provided to the
intermediate or lower rank indicted Security Council Pursuant to Paragraph 6 of
persons from the ICTY to competent Security Council Resolution 1534 (2004), UN Doc.
S/2005/343, 25 May 2005, para. 12.
national jurisdictions, is where the 233
international community expects the http://test1.icty.org/x/file/Legal%20Library/Rules_
procedure_evidence/IT032_Rev43_en.pdf
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domestic courts, for a total of 13 accused. and the renewed trial of officers of the
Ovčara trial was the first case that ICTY military police for the war crime against
referred to Serbian justice system. prisoners of war at the military prison
War Crime Council of the Special Lora indicate a break with the practice
Department of the District Court in prevailing in Croatia to exclusively indict
Belgrade was created on 1st October 2003. and try Serbs. In the course of the trial,
It has jurisdiction over crimes against Serbian victims testified for the first time.
humanity and international law This has contributed to recognition of this
established in Criminal code of Republic trial by the victims. This participation by
of Serbia, as well as for grave breaches of Serbian victims resulted from cooperation
international humanitarian law, of the Public Prosecutor‘s Offices from
committed on the territory of the former Croatia and Serbia.
Yugoslavia from 1991. If ICTY referrers One of the main obstacles for the
the case to Serbian Special Court for War beginning of trials is certainly the
Crimes, the prosecutor applies domestic prohibition in the Serbian and Croatian
law during the criminal proceeding. Constitutions to extradite their citizens.
As opposed to the Office of the War This limitation was not relevant for
Crimes Prosecutor which acts as a transfer of the accused to the ICTY in The
governmental institution, and not as a Hague, but creates problems if the trials
part of the judicial system, the War are held in the country where the crime
Crimes Trial Chamber of the Belgrade had been committed. In general, trials
District Court performs its judicial duty in held in the country of the accused are
war crimes trials professionally and rarely successful, as the witnesses are
impartially. However, as provided by the often unwilling to travel to the country of
law, judges are unable to amend and the former enemy. One of the most radical
correct the indictments, which constitute propositions was to abolish right of dual
a serious danger that some of the court‘s citizenship.
rulings, as may happen in the Scorpions Regional cooperation between
case, will be contradictory to the already- Serbia and Croatia started officially on
established truth in the cases tried before 13th October 2006 by Agreement for
the ICTY. prosecution war crimes, crimes against
In Croatia, no special chamber has humanity and genocide, signed by Office
been established and war crimes trials are of the War Crimes Prosecutor from Serbia
mainly held before district courts. Four and State Bar Association of Croatia. This
investigative units are formed within agreement allows transfer of the war
district courts of Zagreb, Rijeka, Osijek crimes trials in the country of the
and Split that are specialized for accused, which is not necessarily the
prosecution of alleged war criminals. country where the crime has been
During the last few years, legislation committed.
related to war crimes trials as well as We already said that war crimes
procedures and trial proceedings has trials offer proper human rights response,
improved, mainly due to the EU accession but there is no broader strategy in
process. Still, ethnically biased implementing other transitional justice
prosecutions and convictions in absentia mechanisms such as truth-seeking,
are prevalent. Those proceedings involved reparations and institutional reform. The
approximately 75 percent Serbs, many of main problem Yugoslav successor states
them returnees, and 17 percent Croats 234. are facing is the decisive switch from
The trial of General Mirko Norac before retributive to restorative justice.
the Regional Court in Rijeka for war Restorative justice, as the final stage of
crimes against Serbian civilians in Gospić transition, should involve all layers and
structures in society.
234OSCE Mission to Croatia 2005. Background
Report: Domestic War Crime Trials 2004
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
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conflict society, thus impeding the healing effort of media cooperation with the goal
process. to raise awareness about the past. The
network publishes a weekly journal, the
―Justice Report‖ which focuses on the
The Case of Bosnia and Herzegovina‟s work of the Bosnian War Crimes
print media chamber.244
With one of the major objectives of
3.1. Print Media Overview media being to create comprehensive
narratives about the past without
Media played an important role in excluding anybody based on ethnicity or
inciting the conflict in the Balkans in the residency, it is important to look at the
1990s with media outlets focusing present structure of the media market in
exclusively on propaganda activities and order to judge whether there is enough
news becoming a ―patriotic duty.‖241 As potential and appropriate conditions to
the director of SENSE agency Mirko ensure that media are independent and
Klarin said, ―Media in former Yugoslavia could serve this function in society
were like nuclear reactors manufacturing without fostering further divisions.
hate, prejudice, and especially fear.‖ 242 The Bosnian print media market
During the conflict, investigating offers more than 600 public print media
reporting emerged. The magazines Dani products, but the number of readers has
and Slobodna Bosna, and the daily been declining recently due to economic
newspaper Oslobodjenje started criticizing restraints and lower quality of the
the atrocities committed by the BiH army media.245 Print media continues to be
during the war in public disucssions, largely divided along ethnic lines and this
such as the attack on the Croatian has prevented it from reaching higher
Grabovica and exposing the truth about popularity in the state by only targeting
war criminals. Currently, the audience specific ethnic groups, which has
continues to be highly divided along arguably had a negative effect on the
ethnic group lines, and there are no efforts of unification and finding common
strong initiatives to appeal to an audience ground among ethnic groups.
from other ethnic groups since many Six major daily newspapers are
newspapers owners are also very close to published in the country. Four of them
political elites. are in the Federation of Bosnia-
Some independent journalists Herzegovina: Dnevni Avaz, Oslobodjenje
however suffered from voicing their and San in Sarajevo, and Dnevni List in
opinions on the war: after the editor-in- Mostar. Nezavisne Novine and Glas
chief of Rupublica Srpska‘s independent Srpske are published in Banja Luka in the
magazine Nezavisne Novine, Ţeljko Republic of Srpska.
Kopanja, wrote about the executions of Dnevni Avaz daily, published by the
Bosniak population in Prijedor in 1999, NIK Avaz publishing company, has the
he lost his legs in an attack against his highest circulation numbers in BiH. The
life.243 newspaper is very influential on the
The Balkan Investigative Reporting country‘s political life. It started to play a
Network (BIRN) has been a wide regional major role after the War in 1995 in close
proximity to the then ruling Party of
Democratic Action. The owner of the
241 Šajkaš, Marija. 2007. Transitional Justice and
the Role of the Media in the Balkans. ICTJ.
http://www.ictj.org/images/content/8/3/833.pdf 244 Šajkaš, Marija. 2007. Transitional Justice and
242 Šajkaš, Marija. 2007. Transitional Justice and the Role of the Media in the Balkans. ICTJ.
the Role of the Media in the Balkans. ICTJ. http://www.ictj.org/images/content/8/3/833.pdf
http://www.ictj.org/images/content/8/3/833.pdf 245 Jusić, Tarik. Media landscape: Bosnia and
243 Šajkaš, Marija. 2007. Transitional Justice and Herzegovina.
the Role of the Media in the Balkans. ICTJ. http://www.ejc.net/media_landscape/article/bosnia
http://www.ictj.org/images/content/8/3/833.pdf _herzegovina/
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newspaper has become over time a Glas Srpske to signify its affiliation with
successful entrepreneur founding his own the Republic of Srpska. The newspaper
political party in 2009. The newspaper was privatized in 2008 and sold to
targets a primarily Bosniak audience, and Nezavisne novine from Banja Luka and it
has a more tabloid character with short is known as a daily with strongly
texts and numerous photographs, with nationalist rhetoric. During the war, it
contributions often left anonymous and was portrayed negatively Bosniaks and
criticizing violations of the journalist Croats. After the war, Glas Srpske has
codes, but it remains one of the most continued to be strongly nationalist and
highly rated newspapers by readers (35%) targeting an exclusively Serbian audience
according to research estimates. 246 in Republica Srpska despite the fact that
Oslobođenje, which was at one time a it was bought by the owner of the more
very popular newspaper, has nowadays liberal and professional Nezavisne novine.
lost most of its audience‘s and has not Nezavisne novine was established
been a serious competitor to Dnevni Avaz with the help of the international
after the War. The bigger part of the community to counteract the nationalist
newspaper is owned by the Sarajevo rhetoric of the Republica Srpska‘s Glas
business group MIMS, whose owners have Srpske. Nezavisne novine has been
had a negative reputation following targeting the entire BiH population with
privatization processes after the War in offices in Sarajevo and Mostar as well. It
Bosnia. The newspaper has retained its was the first media outlet in Republica
multiethnic character but without too Srpska to touch upon the question of
much success among other groups except crimes against Bosniaks and Croats thus
the Bosniak audience and remains seen supporting to a certain extent the
as mostly a Bosniak newspaper even transitional justice mechanisms in BiH. 247
though it does not identify itself as such. However, the newspaper continues to be
San is a private daily from Sarajevo read mostly by Bosnian Serbs. With the
owned as well by the Sarajevo business change of government of Republica
group MIMS. The paper is not particularly Srpska in 2006, the newspaper leaned
influential. towards a more nationalist rhetoric in
Dnevni list is a private newspaper in support of political parties that came to
Mostar. It was created after the war with power and in support of Milorad Dodik.
the aim to address a primarily Croatian A recent GfK research on the print
audience in BiH and deals mostly with media in Bosnia and Herzegovina shows
Croatian political issues. Although it that the print media are still strongly
targets a specific national group, the divided along ethnic lines, especially the
newspaper remains distant from the daily newspapers. According to the study,
nationalistic rhetoric of some other more than 70% of Dnevni Avaz readers
dailies. are from regions where the majority group
Glas Srpske newspaper was founded is Bosniacs. Glas Srpske, Večernje novosti,
during the World War II by national Nezavisne novine and Blic are mostly
liberation parties. Originally named Glas, popular in predominantly Serb areas.
the newspaper was based in Banja Luka Večernji list and Jutarnji list target mostly
and during the Yugoslav era it had a the Croatian population and are very
regional character until it became a popular in areas mostly populated by
Serbian paper in its content and target Croats. 248
audience and shortly before the War and
was renamed Glas Srpski and eventually
247 ―Nezavisne novine.‖ 2007. http://www.ex-
yupress.com/neznov/neznovindex.html
246 ―Dailies in B&H.‖Press Release, GfK BH. 248―Dailies in B&H.‖Press Release, GfK BH.
23.02.2006. 23.02.2006.
http://www.gfk.ba/imperia/md/content/gfkbh/pr_ http://www.gfk.ba/imperia/md/content/gfkbh/pr_
eng/gfk_pr_02-2006_-_daily_newspaper.pdf eng/gfk_pr_02-2006_-_daily_newspaper.pdf
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Bibliography
Šajkaš, Marija. 2007. Transitional Justice and the Role of the Media in the Balkans.
ICTJ.
Jusić, Tarik. Media landscape: Bosnia and Herzegovina.
http://www.ejc.net/media_landscape/article/bosnia_herzegovina/
―Nezavisne novine.‖ 2007. http://www.ex-yupress.com/neznov/neznovindex.html
Gilboa, E. 2007. Media and International Conflict: A Multidisciplinary Approach.
Journal of Dispute Resolution. Vol. 2007, No.1, 229-237.
Laplante, L. and Kelly Phenicie. 2009. ―Mediating Post-Conflict Dialogue: the Media‘s
Role in Transitional Justice Processes.‖ Media in Transitional Justice Journal. 251-
284.
―Inzko and Kelly deplore pressures on media freedom.‖ OSCE Press Release. April 2,
2010. http://www.oscebih.org/public/print_news.asp?id=2419
Lisa J. Laplante and Kelly Phenicie. ―Media, Trials and Truth Commissions:
‗Mediating‘ Reconciliation in Peru's Transitional Justice Process.‖ International
Journal of Transitional Justice 2010 4(2):207-229.
Price, Monroe. 2000. ―The Experience of Intergovernmental and Non-Governmental
Organizations.‖ A Background Paper for the UNESCO World Press Day Conference
in Geneva, May 2000. http://archiv.medienhilfe.ch/Reports/cojcr-kos.htm
―Dailies in B&H.‖Press Release, GfK BH. 23.02.2006.
http://www.gfk.ba/imperia/md/content/gfkbh/pr_eng/gfk_pr_02-2006_-
_daily_newspaper.pdf
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
ABSTRACT
As it has been pointed out M.Cherif Bassiouni from the mid 20th
century to the present, wars, insurgencies, ethnic unrest and the
repressive actions of authoritarian regimes have produced
enormous human suffering and the deaths of tens of millions, the
majority of whom have been civilians.260 A consistent part of those
civilians, killed or injured, are children. What happen to the
children in the aftermath of these heinous crimes? International law
provides a range of remedies for victims of gross human rights
violations and serious violations of international humanitarian law.
According to article 39 of the Convention on the Rights of the Child,
child-victims should also benefit from those remedies, in particular
from reparations programs and efforts set up by the State. The aim
of the present contribution is twofold: it is meant to provide first the
readers with a general overview of the right to reparation for child-
victims and then it will focus on the implementation of the right to
education in the Bosnian context as a form of rehabilitation for the
children directly or indirectly involved in the war which occurred in
BiH.
* Francesca Capone earned her JD cum laude in international law from the
University of Naples Federico II in 2008. Since January 2009 she is a Ph.D.
candidate in Politics, Human Rights and Sustainability at the Sant‘ Anna School of
Advanced Studies, Pisa, Italy. Her Ph.D. thesis, entitled the right to a remedy and
reparation for war-affected children, will be defended by January 2012. After a
research period spent as visiting fellow at the International Victimology Institute in
Tilburg (INTERVICT), she is currently lecturer in children‘s rights at Leiden
University, the Netherlands.
Email: f.capone@sssup.it, f.capone@umail.leidenuniv.nl
260 M.Cherif Bassiouni, Facing atrocity: the importance of guiding principles on post-conflict justice, introduction
to the Chicago Principles on post-conlfict justice, International Human Rights Institute, Chicago, 2007.
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261Decisions of regional human rights bodies play an 262Please see Redress Report on ―Rehabilitation as a
important role in setting expectations. In Latin form of reparation under international law‖,
America, for example, decisions of the Inter-American December 2009, available at
Court of Human Rights have been crucial not only for http://www.redress.org/smartweb/reports/reports:
providing redress to individual victims, but also for There is a lot of discussion about rehabilitation as a
motivating States parties to establish reparations form or reparation but so far, no one has been able to
programmes for other victims. The incentive effect of define it properly. This lack of agreement about its
these decisions is, however, a result of the level of meaning could be partly explained by the fact that in
compensation that they provide. This level is seldom its nature, rehabilitation requires multidisciplinary
met by broader programmes, but this decisions do and interdisciplinary work to secure a holistic
raise expectations among the victims. See Rule of Law treatment of victims. Doctors, social workers,
Tools for Post-Conflict States: Reparations educators, psychologists, lawyers, the survivors
Programmes, Office of the United Nations High themselves and other stakeholders are all vital to
Commissioner for Human Rights, New York 2008. such a dialogue.
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the normative framework of the right to that a breach of international law has
reparation, both its developments and occurred, has jurisdiction to award
shortcomings, consequently, it will define reparations. Only in the aftermath of the
who are the child-victims. As it has been second world war, with the adoption of
pointed out by the work of several TRCs, the Universal Declaration of Human
especially the one set up in Sierra Leone Rights and the International Covenants
until 2004, the reparation programs 263 on Human Rights, the international
promoted so far to help and support the community recognized that the wrongs
reintegration of the child-victims have committed by a State against its nationals
been mainly focused on their right to were more than just a matter of domestic
education, assuming that this law and, hence, that the violations
fundamental right, when fully satisfied, committed by a State against the
enables the child-victims to became active nationals of another State could give rise
members of the societies they live in. In to claims not only by the State, but by
BiH no reparation program has been individuals and groups themselves. The
designed so far and no actions have been legal basis of the right to reparation are,
taken to promote and spread a child- thus, rooted in the customary
sensitive approach: on the contrary the international law and in the
education reforms implemented in the jurisprudence of the ICJ, moreover, as
past years have been upgrading Pablo de Greiff has recently underlined,
fragmentation and internal divisions. The the right to reparation has a dual
last part of this contribution will be dimension under the international law: a
dedicated to a brief analysis of the current substantive dimension to be translated into
education system in BiH, followed up by the duty to provide redress for harm
some conclusive remarks. suffered in the form of restitution,
compensation, rehabilitation, satisfaction
The right to a remedy and reparation and, in case it may be, guarantees of non-
and its normative framework repetition; and a procedural dimension as
instrumental to securing this substantive
Traditionally in international law the redress.265 Its procedural dimension in
States are identified as the main subjects. particular shows that the right to
As the Permanent Court of International reparation is playing a crucial role in the
Justice pointed out in the Chorzow transition out of conflicts or toward
Factory case: It is a principle of democracies, because, while criminal
international law that the breach of an justice per se is a struggle against
engagement involves an obligation to make perpetrators, reparation is an effort on
a reparation in an adequate form. behalf of the victims and represents a
Reparation therefore is the indispensable tangible and concrete manifestation of the
complement of a failure to apply a liability of the offenders, states or
convention and there is no necessity for individuals, to repair the harms caused.
this to be stated in the convention itself.264 The best example of how the
This oft-quoted passage of the sentence implementation of the right to reparation
clarified, once for all, that every violation can have a strong impact on transitional
of an international obligation creates a justice process can be found in the
duty to make reparation and that an jurisprudence of the Inter-American Court
international tribunal with jurisdiction of Human Rights. The Court‘s decision in
over a dispute, once it has been proven
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challenge to let the voices of the women including the means for as full
affected speak for themselves, but the rehabilitation as possible. In the event of
same thing, for too many reasons doesn‘t the death of the victim as a result of an act
happen when we talk about child-victims of torture, his dependents shall be entitled
of gross human right violations 273. to compensation.
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BiH, one for each of the two entities Covenant on Economic, Social and
established by the Dayton agreement, the Cultural Rights, hereinafter the ICESCR,
Republic of Srpska and the Federation of ratified by BiH in 1993, the right to
Bosnia and Herzegovina, ten ministries education shall promote understanding,
for the ten cantons which compose the tolerance and friendship among all nations
latter entity and one for the District of and all racial, ethnic or religious groups, in
Brčko. The complexity of this situation other words it is the most effective tool
affects beyond any reasonable doubt the that the mankind has to ensure the
linearity and the efficiency of the acceptance and the reintegration of
education system, fomenting the ethnic different people, especially in post-conflict
divisions and hindering the dialogue societies. The Committee on Economic,
amongst different cultures. According to Social and Cultural Rights in its General
the article 13278 of the International Comment No13 pinpoints that education
is both a human right in itself and an
Srpska is responsible for education policy, legislation
indispensable means of realizing other
and assurance in RS. The same constitutional human rights. As an empowerment right,
responsibilities in the field of education rests with the education is the primary vehicle by which
ten cantons in the Federation of Bosnia and economically and socially marginalized
Herzegovina, while the role of the Ministry of
Education and Science of the Federation of BiH is
adults and children can lift themselves out
similar to that of the MoCA at the state level. of poverty and obtain the means to
278Article 13: participate fully in their communities.
1. The States Parties to the present Covenant Moreover it stresses that the education
recognize the right of everyone to education. They
agree that education shall be directed to the full
must be characterized by four main
development of the human personality and the sense features: availability, accessibility,
of its dignity, and shall strengthen the respect for acceptability and adaptability; in
human rights and fundamental freedoms. They particular when we talk about
further agree that education shall enable all persons
to participate effectively in a free society, promote
acceptability we have to consider three
understanding, tolerance and friendship among all interrelated dimensions. The first one in
nations and all racial, ethnic or religious groups, the non-discrimination in the sense that
and further the activities of the United Nations for education must be accessible to all,
the maintenance of peace.
2. The States Parties to the present Covenant
especially the most vulnerable groups, in
recognize that, with a view to achieving the full law and fact, without discrimination on
realization of this right:(a) Primary education shall any of the prohibited grounds. The second
be compulsory and available free to all; (b) and the third dimensions are physical
Secondary education in its different forms, including
technical and vocational secondary education, shall
accessibility and economic accessibility,
be made generally available and accessible to all by the latest establishes that education must
every appropriate means, and in particular by the be accessible to all and that secondary
progressive introduction of free education; (c) Higher and higher education need to become
education shall be made equally accessible to all, on
the basis of capacity, by every appropriate means,
progressively ―free to all‖, while primary
and in particular by the progressive introduction of education should be already available and
free education; (d) Fundamental education shall be costless for all the citizens of the state
encouraged or intensified as far as possible for those parties. According to the Report
persons who have not received or completed the
whole period of their primary education; (e) The
submitted to the General Assembly by the
development of a system of schools at all levels shall Special Rapporteur on the right to
be actively pursued, an adequate fellowship system
shall be established, and the material conditions of
teaching staff shall be continuously improved. 3. The with their own convictions. 4. No part of this article
States Parties to the present Covenant undertake to shall be construed so as to interfere with the liberty
have respect for the liberty of parents and, when of individuals and bodies to establish and direct
applicable, legal guardians to choose for their educational institutions, subject always to the
children schools, other than those established by the observance of the principles set forth in paragraph I
public authorities, which conform to such minimum of this article and to the requirement that the
educational standards as may be laid down or education given in such institutions shall conform to
approved by the State and to ensure the religious such minimum standards as may be laid down by
and moral education of their children in conformity the State.
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nowadays in BiH are nothing more than guidelines on the right to a remedy and
the proof of how far the country is from reparation and refer to them as a tool to
reaching a sustainable development. More implement victim-oriented policies.
than to the international covenants Regarding the child-victims, in particular
ratified, the country is internally bound to it‘s important to support their
the necessity to wipe out all the participation in the reconciliation process,
discrimination factors and boost the promoting their involvement in every
rehabilitation of the war-affected children. related discussion and, most importantly,
In order to achieve these goals, significant considering the education reform as a
changes need to be made both at the substantive part of a highly desirable
national and at the local levels. The national reparation program.
struggle to eliminate the discrimination
which affects children in BiH nowadays is
inmost coupled with the need to
effectively ensure them the enjoyment of
the right to education not only through
the fulfillment of the four criteria
pinpointed by the international treaties,
but also recognizing them as the most
vulnerable victims of a cruel conflict,
entitled to be fully rehabilitate and re-
integrated into the Bosnian society. In
such a case the aim of the institutions
and the other actors involved must be to
overcome the minimum standard drawn
by the international law and go beyond
providing the child-victims with ad hoc
measures able to concretely bias the
quality of their lives, placing a special
emphasis on the restoration of their
human dignity. While under international
law, gross violations of human rights and
serious violations of international
humanitarian law give rise to a right to
reparations for victims implying a duty on
the State to make reparations,
implementing this right and corresponding
duty is in essence a matter of domestic law
and policy. In this respect, national
Governments possess a good deal of
discretion and flexibility.289 Albeit the
discretion is intrinsically coupled with the
principle of state sovereignty and
therefore is not going to be spoiled by the
imposition of a pre-packaged model, the
Governments should follow the Van
Boven and Bassiouni principles and
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Bibliography
Arts Karin, Popovski Vesselin, International Criminal Accountability and the Rights of
Children, (The Hague: Asser Press, 2005):
Bassiouni Cheriff, Post-Conflict Justice (Ardsley: Transnational Publishers, 2002);
De Greiff Pablo, The Handbook of Reparations, International Center for Transitional
Justice eds., (New York: Oxford University Press, 2006);
Rubio-Marin Ruth, What Happened to the Women?, The International Center for
Transitional Justice eds., (New York: Social Science Research Council, 2006);
Shelton Dinah, Remedies in International Human Rights Law (New York: Oxford
University Press, 1999);
Shelton Dinah, ‗The United Nations Draft Principles on Reparation for Human Rights
Violations‘, in Out of the Ashes: Reparation for Victims of Gross and Systematic
Human Rights Violations, Marc Bossuyt, Paul Lemmens, Koen de Feyter and
Stephan Parmentier, eds. (Antwerp: Intersentia, 2005);
Van Boven Theo, ‗The Position of the Victim in the Statute of the International
Criminal Court‘, in Reflections on the International Criminal Court: Essays in Honour
of Adriaan Bos, H.von Alen et al. eds.(The Hague: T.M.C. Asser Press, 1999);
Van Bueren Geraldine, ‗The International Law on the Rights of the Child‘,
(Dordrecht: Martinus Nijhoff Publishers, 1995);
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
ACCOMMODATING SOCIAL
JUSTICE INTO TRANSITIONAL
JUSTICE MECHANISMS
THE CASE OF NORTHERN
UGANDA
By Andreea Cristina Nowak*
ABSTRACT
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
‗social justice‘ to refer to ‗a combination of challenging and in the same time requires
equality and decent standards in the a strand of discussions. There is much to
fulfilment of the idea of freedom from elaborate on the issue of the possibility of
want‘293. expanding the current scope of human
Despite the importance of this category rights courts or even international
of rights, transitional justice theorists criminal law so as to address gross
tend to marginalize social justice, basing violations of economic and social rights296.
their reasoning on either the assumption This paper is intended to analyze this
that the pursuit of economic and social possibility and the necessity of this
justice is related more to the development phenomenon in northern Uganda. Does
and post-reconstruction field or on the the political, socio-economical context in
belief that positive obligations (socio- this region require a new approach to the
economic rights, for instance) require time transitional mechanisms? Why are the
and resources so as to be implemented294. actual mechanisms not satisfactory?
However, in post conflict societies, What can be done in order for these
there is indisputably a need for using a mechanisms to be more victims-oriented?
holistic approach of transitional justice What we know in advance is that
that delivers a broader understanding of attention should be given to violations of
the past violations, their roots and the human rights, whether they are of
mechanisms employed in order to combat political, economic, social or cultural
and prevent the reoccurrence of such nature. There should be no hierarchy of
events and to trigger the reconciliation rights when dealing with post-conflict
and rehabilitation process295. When societies.
addressing the past, I argue, mechanisms
of replacing the former injustices with an Northern Uganda: the Conflict -
equitable future should be implemented Poverty Trap
and promoted, going beyond the crimes
and atrocities committed, towards The conflict in Uganda originates in a
practices that not only rehabilitate victims rebellion of the Ugandan People‘s
and provide them with reparations, but Democratic Army (UPDA) – initially
also have a critical contribution to their formed by army officers that fled from
socio-economic development, in order to Kampala when president Museveni 297
prevent vulnerability and instability to came to power - that gradually turned
reoccur. into a highly organized rebel group and
The advancement of the argument eventually took the name of Lord‘s
according to which social justice should Resistance Army (headed by Joseph
be integrated into transitional justice Kony)298. With support from the Sudanese
mechanisms in post-conflict societies is government in Khartoum and despite the
scarce public support, the group started
293 L. Arbour, 'Economic and Social Justice for to instil terror, attacking Ugandan
Societies in Transition', International Law and civilians (especially the Acholi tribe in the
Politics (2007), 5
294 Arbour argues that ‘we would be mistaken to
north); they were killed or subject to
believe that these policies are better left solely to the ‗abductions, forced marriage, and horrific
responsibility of development actors. To the
contrary, it is justice that is at stake, justice in its
deepest sense. (Ibidem, 20) 296 Rights such as access to food, health care, or
295 As Shedrack and Agbakwa put it, ‘The non- drinkable water. Note that this paper will not focus
recognition...of economic and social rights potentials on cultural rights, as these can be the subject of
and/or possible role in triggering many another debate.
conflicts...makes these conflicts more pervasive and 297 Yoweri Museveni was then the leader of the
intractable than they would have otherwise been‘ National Resistance Army/Movement (NRA/M)
Agbakwa Shedrack, 'A Path Least Taken: Economic 298 Z. Lomo and Lucy Hovil, Behind the Violence:
and Social Rights and the Prospects of Conflict Causes, Consequences, and the Search for Solutions
Prevention and Peace Building in Africa', Journal of to the War in Northern Uganda, Refugee Law Project
African Law (2003), 38-40 Working Paper no.11, February 2004.
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
299 M. Otim and M. Wierda, Uganda: Impact of the 303 United Nations Fund for Population,
Rome Statute and the International Criminal Court, http://countryoffice.unfpa.org/uganda/2009/09/10
The Rome Statute Review Conference, Kampala, /1283/information/
June 2010, 1 304 Northern Uganda Social Action Fund, supra n 12,
300 Ibidem, 2 at vii
301 Northern Uganda Social Action Fund, 305 C.M., Fombad, Transitional Justice in Africa: The
Environmental and Social Management Framework, Experience with Truth Commissions, New York:
Kampala, 2009, 4 Hauser Global Law School Program, New York
302 Ibidem University School of Law, 2008, online version
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arrest LRA members since they were root) being the most common process311.
outside the Ugandan territory306. Prior to Here elders act as neutral arbitrators of
this, the Amnesty Act dating back in disputes. This use of traditional practices
2000 established the Uganda Amnesty for achieving both reconciliation and
Commission (for the actions committed in justice has been documented, apart from
January 1986), as a reconciliation Uganda, in countries like Rwanda, East
mechanism that was supposed to open Timor, Sierra Leone, Guatemala (Baines,
the debate on the Amnesty law, to Quinn312). It has been argued that the
promote 'dialogue and reconciliation', to restorative character of the process
provide 're-insertion support', 'tackle with promotes ‗principles of truth,
amnesty applications and advance 'long- acknowledgement and accountability and
term social and economic compensation and culminates in the
reintegration'307. According to Fombad, reconciliation of the parties through
although 'more than 15,300 combatants symbolic traditional ceremonies‘313 and
and abductees had received amnesty', it that tradition-based mechanisms, despite
turned out that merely 4000 of them were their male domination, bring victims and
provided with resettlement packages (‗a perpetrators face to face and makes
lump sum of US $ 150, a mattress, accountable more personal than remote
blanket, hoe and some seeds due to a courts do 314.
shortage of funds‘)308. In his work Mark Freeman315 argues
The transitional process in Uganda that mass abuses cannot bring about
was also marked by investigations against complete justice in transitional societies.
Joseph Kony and his commanders of the Mass abuses, countless victims and
LRA, starting with July 2000, with the perpetrators, corrupt political system, a
first arrest warrant against Kony and four constant wield of power, a failing justice
others being issued on 8 July 2005 309. system – all these account for a fragile
The process was stifled, as the justice delivery. In this frame, traditional
Government of Uganda which initiated the mechanisms that stand for victim‘s
process had to resume its action due to rehabilitation are sometimes preferred, at
LRA's warning that no peace agreement least on the local level. The risk for taking
will be signed as long as arrest warrants these measures lays in people‘s
are in place310. However, charges against unawareness about the atrocities caused
LRA remain in place, while amnesty for during the conflict, in their lack of
LRA members was granted in exchange education regarding transitional justice
for the cessation of the rebellion. mechanisms and their effectiveness for
At local level there is acknowledged the transitional process. To that extent,
support for traditional Acholi justice there where this type of approach proves
mechanisms – usually applicable to to be unable to deal with the extensive
murder crimes-, mato oput (drinking bitter
311 M. Otim, Challenges in the pursuit of transitional
justice: A case of northern Uganda, Justice and
306 This is a rather rare event, that a leader referred Reconciliation Project, Gulu District NGO Forum,
the country situation to the ICC, in order to ‗attack‘ April 2007, 2
the adversaries. The problem here becomes the 312 E. K. Baines, ‗The haunting of Alice: Local
politicization of the ICC and the advancement of the approaches to justice and reconciliation in northern
assumptions according to which the ‗ICC eagerly Uganda‘, International Journal of Transitional Justice,
became an instrument of the Ugandan government‘s 2007; J.R. Quinn, ‗Social reconstruction in Uganda:
counterinsurgency so as to ensure Uganda‘s The role of customary mechanisms in transitional
cooperation with its prosecution of the LRA‘ (Adam justice‘, Human Rights Review, 2007
Branch, ‗What the ICC Review Conference Can‘t Fix‘, 313 Otim, supra n 22 at 2
In Oxford Transitional Justice Research. Debating 314 L. Huyse, Traditional justice and reconciliation
International Justice in Africa, 2010, 33) after violent conflict: Learning from African
307 Fombad, supra n 16 experiences, 2008, 188-191
308 Ibidem 315 M. Freeman, (2006) Truth commissions and
309 Ibidem procedural fairness. New York: Cambridge University
310 Ibidem Press
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number of abuses and crimes, national 29, 2007321) enabled talks to continue. On
strategies become a preferred March 2010, The Parliament passed the
alternative316. International Criminal Court Act, giving
The questions remain, of course, the High Court jurisdiction over Rome
whether Western transitional justice Statute crimes322.
mechanisms are suitable for the African The problem seems more complex and
context or whether the final goal to complicated as the national legal system
achieve peace (through dialogue and is thought to lack capacity and
amnesty) is hampered by fight against impartiality when dealing with the cases.
impunity (through the ICC). On one hand Major violations of human rights have
amnesty granted to LRA commanders been caused by the soldiers of the
goes against international law, argues the Ugandan People‘s Defence Forces (UPDF)
international community, as it acquits (wilful killing, torture, and rape of
violators from serious international civilians) or by the government itself
crimes (like genocide, war crimes and (forcibly displacing the civilians of
crimes against humanity). But on the Acholiland into camps, on the pretext of
other hand, people often feel that they are protecting them from the LRA). Many
just ―footnotes‖ in the entire court people in northern Uganda either believe
process317. Civil society in Uganda and that the ICC has no jurisdiction over the
critics agree that prosecutions might cases and that Western traditions should
negatively influence the peace talks and not hamper the local mechanisms or they
undermine the Amnesty Act and that the are strongly dissatisfied by the ways in
ICC‘s involvement in Uganda was which the government deals with them 323.
inconsistent with the Amnesty Act and In a survey conducted in northern
Acholi principles of traditional justice318. Uganda, 29 percent of the interviewed
Yet, the ICC does not recognize the people preferred the ICC to deal with the
Amnesty Act and it is up to it to decide LRA, whereas 28 percent agreed with the
the retraction of the accusations against work to be done by the Ugandan national
the LRA commanders if this prevents the courts324.
achievement of peace, under article 53 of Different cultures and political
the Rome Statute319. contexts makes it all the more difficult to
The Amnesty Act brought another issue account for a universal formula for
on the table, namely the debate on transitional justice325. Apology,
complementarity. This began at the Juba reparations, restitution,
Peace talks in 2006 with a proposal to acknowledgement, prosecutions and other
adopt national procedures to deal with transitional mechanisms delineate the
the LRA, which would allow the country multidimensionality of the justice field. As
to challenge the admissibility of the ICC Katherine Southwick noticed326, the
case against the LRA leaders320. The later
decision to follow the national solution
(materialized in the Agreement on 321 Note that a final peace agreement was not signed
Accountability and Reconciliation, signed by the LRA, due to the ICC arrest warrants against
them
by the government and the LRA on June 322 Otim et al, supra 9 at 4
323 For a detailed debate on the complementarity
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rights set out in the Covenant. This way, the Timor-Leste Truth Commission endorse this
states are required to take steps in the affirmation regarding the interdependence and
universality of human rights. In addition, the
progressive realization of these rights (to
Commission showed that many actions of the
the maximum extent possible), in Indonesian authorities had an enormous, negative
accordance with the available resources, impact on the socio-economic conditions of the
but also to provide for basic needs, such people in Timor-Leste and that the state failed to
realise the socio-economic rights to the maximum
as food, shelter, basic medical care and
extent possible, providing non-retrogressive, non-
basic education. Thus, the niche for discriminatory measures. The whole report can be
states to get away with such requirements read here: http://www.cavr-
when it comes to socio-economic rights is timorleste.org/chegaFiles/finalReportEng/07.9-
Economic-and-Social-Rights.pdf
in place. 330 Banjul Charter (entered into force on 21 October
1986), available at
http://www1.umn.edu/humanrts/instree/z1afchar.
327 Arbour, supra n 4 at 7-8 htm
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utmost concern for the people living in the by the improvised Constitutional Court
region. (the Court of Appeal). Mubangizi 334
In the case of Uganda, the Bill of elaborates on the judicial power in
Rights included within the supreme law of Uganda, naming some other institutions
the country enacted in 1995, introduces that are responsible for the enforcement
Chapter Four, entitled ‗Protection of of human rights, such as: Uganda Human
Fundamental and other Human Rights Rights Commission, the Office of the
and Freedoms‘. Yet, there is minimal Inspector-General of Government, the
attention paid to the socio-economic Electoral Commission and the National
rights331, despite Uganda‘s obligation to Planning Authority. Invoking, inter alia,
the International Covenant on Economic, two cases in which the right to education
Social and Cultural Rights (ICESCR) to has been violated, the author reaches the
which it is party. conclusion that the Commission can be
Other initiatives regarding the socio- more innovative and assertive in the
economic rights are mentioned in the enforcement of third-generation rights
National Objectives and Directive Principles situations, which marks the inability of
of State Policy: ‗protection of the aged; the appointed Court of Appeal to deal with
provision of adequate resources for the cases as such and thus making it difficult
various organs of government; prioritizing for people in Uganda to rely on such
the right to development; recognition of rights335.
the rights of persons with disabilities; Although the arguments above are
promotion of free and compulsory basic limited to the presentation of few
education; ensuring the provision of basic situations and despite the vastness of the
medical services; promotion of a good area of socio-economic rights in Uganda
water management system; and that is to be explored, one can notice the
encouraging and promoting proper difficulty of addressing socio-economic
nutrition and food security‘332. Rights that rights as a means of achieving social
relate to access to water, healthcare, food, justice. Even if integrated to some extents
natural resources, education or in the official documents of the state,
development are provided in this section. when it comes to the question of who
In spite of the mentioning of these should interpret them and how, or how to
rights, the problem arises at the develop a case-law in this field of these
implementation level, as the courts in rights, they still represent a sad and failed
Uganda enjoy a rather marginal role and reality.
a specialized Constitutional Court that
can deal exclusively with constitutional
and human rights litigation is absent,
being replaced with a Court of Appeal that
actually enjoys the power of enforcing
human rights333.
Judgements regarding socio-economic
rights, scarce as they are, often lead to 334Ibidem, 14
335 In Dimanche Sharon v. Makere University the
regretful results, when the cases are dealt Court ruled out that the Seventh Day Adventist
student was not subjected to violation of the right to
education when he was expected to attend school
331 In this category of rights, the Ugandan Bill of events on Saturdays, as the school‘s policy did not
Rights includes the protection from deprivation of prohibit him from attending religious activities. On
property, the right to education, the right to work the contrary, in Emmanuel Mpondi v The Chairman,
and participate in trade union activity and the right Board of Governors, Ngwana High School and Others,
to a clean and healthy environment (J.C. Mubangizi, the Commission admitted the presence of the right
'The Constitutional Protection of Socio-Economic to education, when severely punished by some
Rights in Selected African Countries: A Comparative professors; a student is obliged to leave school, as
Evaluation', African Journal of Legal Studies, 2006 his sponsors refuse to pay him unless punishment
332 Mubangizi, Idem, 12-13 or other specific actions are taken against the
333 Ibidem, 13 teachers. See Mubangizi, supra n 38 at 14
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IDPs, justice will open its eyes; one eye which makes the process become victim-
will scan the past (by employing oriented at the same time more
transitional justice mechanisms); the responsive to the real needs of the victims
other eye will scan the time to come (implying as well an active involvement of
(being more victim-friendly and in the all stakeholders). Yet again, the issue of
same time more pragmatic, it will focus providing reparations becomes debatable
more on the socio-economic development). when it comes to the resources involved.
This means, in broad terms, anchoring In this paper, I argued that national
economic and social rights in the laws and strategies that address the
domestic legal system, starting with the socio-economic problems of a society
constitution (a state's obligation to fulfil recovering from conflicts and gross
the international human rights standards) human rights violations should ideally
and continuing with legislation that come in line with transitional justice
includes state accountability with regards mechanisms. Let alone, transitional
to the socio-economic situation340. These mechanisms, however country- or region-
are the basic, ideal steps I have in mind specific, they cannot act as binding
for a post-conflict society to follow mechanisms on state‘s authorities, nor
throughout the transitional period. can they act like warrants of human
development. What one should learn from
Concluding Remarks this paper is that post-conflict societies
must not only look to the atrocities, but
In the extensive discussion on should search for means of recovering
transitional justice one cannot be silent from them and start building a safer
on the economic issue. Not the economic future. As Rosemary Nagy noted, in the
boundary that accounts for the limited contemporary debate on transitional
resources available for the transitional justice the question has become ‘not
mechanisms, but the economic boundary whether something should be done after
of people who live in extreme poverty, who atrocity but how it should be done‘341.
have their civil, political, social and
economic rights violated is what interests We have advocated the expansion of
us here. the scope of transitional justice in order
Transitional justice mechanisms used to widen our horizons; that is, to be able
in northern Uganda can be regarded as a to finally draw our eyes from the past, to
rather passive means of solving out the the future; to look to the atrocities
problems related to human rights caused, to means of rehabilitating and
violations. Truth Commissions, for compensating the victims and sanctioning
instance, usually resort to the the perpetrators but in the same time to
identification and investigation of the make sure that those who suffered will be
ones responsible for the massive able to live in dignity in the future.
violations and crimes committed. An Transitional justice will be lost sight of
answer to this challenge is, of course, when a more democratic regime is in
providing the victims with reparations, place, whilst social justice will not be a
matter of history until social inequalities
340Arbour advocates for such a step that can at least are annihilated; and this is not likely to
be the ground on which a more responsible regime happen in the near future.
can be build: 'If judicial resistance makes it difficult
at first to offer appropriate judicial redress for
massive violations of economic, social, and cultural
rights, the demands of justice, as part of the
transition to a peaceful society, would at the very
least require that protective constitutional,
legislative, and institutional measures be put in
place to ensure that these violations will not be 341 Rosemary Nagy, ‗Transitional Justice Global
perpetuated in the future. See Arbour, supra n 4 at Project: Critical Reflections‘, Third World Quarterly
26. (2008) 276
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Bibliography
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Commissions, New York: Hauser Global Law School Program, 2008, available at:
http://www.nyulawglobal.org/globalex/Africa_Truth_Commissions.htm
Huyse, L., and M. Salter (eds.), Traditional justice and reconciliation after violent
conflict: Learning from African experiences, (Stockholm: Institute for Democracy and
Electoral Assistance, 2008)
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Beaton, J.Paulson, L. Kemunto Bosire, P. Clark, J. Winter (eds), Oxford Transitional
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2010, (Oxford: The Centre for Socio-Legal Studies, 2010), pp. 32-34
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Ends: A Population-Based Survey on Attitudes about Peace, Justice and Social
Reconstruction in Northern Uganda, (Human Rights Center, University of California,
Berkeley, Payson Center for International Development, and ICTJ, 2007), 50 pp.
Darehshori, Sara and Elizabeth Evenson, ‗Peace, Justice and the International
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northern Uganda‘, International Journal of Transitional Justice, 1 (2007), pp. 91–114
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International Affairs 60 (2006), pp. 17-27
Mubangizi, John Cantius 'The Constitutional Protection of Socio-Economic Rights in
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Studies 1 (2006), pp.1-19
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TRANSITIONAL JUSTICE IN
DEMOCRATIZATION
PROCESSES: THE CASE OF
SPAIN FROM AN
INTERNATIONAL POINT OF
VIEW
ABSTRACT
The Spanish transition took place from 1975 to 1982 and was
achieved with the consensus of all political parties to not talk about
the past (Pact of Oblivion). It turned out that Spain peacefully
developed into a strong and consolidated democracy where it
seemed the problems of the past were solved. However, recently,
different organizations are criticizing the way the transition was
conducted and are demanding justice for the victims. This essay
will analyze the measures taken during the Spanish transition to
determine to what extent they complied with international
transitional justice standards. Among other arguments, some
examples of transitional justice processes in Chile and Argentina
will be used, without an attempt to go into a deep comparative
study of the three countries.
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the sole political party during the Dictatorship until Justicia Transicional: ¿Qué papel juega el
the end of it in 1975. ordenamiento jurídico internacional en un proceso de
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http://www.unhchr.ch/tbs/doc.nsf/0/6924291970
754969c12563ed004c8ae5?Opendocument 349 Ibid.
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division of Cyprus. The European Court death sentences in trials without basic
found here that a violation of Articles 2, 3, guarantees as due process.354
and 5 of the Convention on the right to Following a report prepared by the
life, the prohibition against torture or Commission of Political Affairs of the
inhuman or degrading treatment or European Parliament, the official total
punishment, and the right to liberty and number of casualties during the Civil War
security of person, respectively, were amounted to 500,000- 1 million people
committed, because of the following killed. But the violence continued after
reasons: the victory of the Nationalist band, led by
- Article 2 because Turkish Francisco Franco. A martial law against
authorities failed to conduct an effective all those who had supported the Republic
investigation into the whereabouts and provoked the following violations, among
fates of the missing; others:355
- Article 3 for the failure to - Summary military trials against
determine the fates of the missing regime ―opponents‖, which applied
constitutes continuous inhuman to anyone who had fought for the
treatment of the relatives, and; Republican side or had shown a
- Article 5 because the missing support to the Republic. Those
had been deprived of their liberty at the trials, which lasted until 1962,
time of their disappearance, and Turkish stripped the defendants of all legal
authorities failed to conduct an effective guarantees and rights and
investigation into that disappearance. normally resulted to death
This case is interesting because Turkey sentences (especially during the
was condemned for the forced first years after the end of the war)
disappearances that took place in that or long imprisonment sentences of
country before the European Convention 20-30 years.
on Human Rights entered into force. - During the 1940s there was also a
large political prisoner population.
To summarize, Spain is required to According to official resources,
comply with its international obligations that historians considered
which are, among others, those of underestimated, it reached
investigating human rights violations and 300,000 out of a population of
provide effective remedies to the victims. 25.9 million.356 The condition of
the prisons and forced labour
Account of the Francoist regime camps357 did not comply with the
human rights abuses and crimes
A ―coup d‘état‖ started by a sector of the 354 Jorge Errandonea, Estudio Comparado de la
anulación de sentencias injustas en España,
military army against the democratically International Center for Transitional Justice, 18 July
elected government of the II Republic, led 2008, page 4.
to a Civil War that lasted from 17th July 355 It is interesting to read the report titled ―Need for
1936 to 1st April 1939. From then on, a international condemnation of the Franco regime‖
also known as ―Brincart report‖, done by the
dictatorial regime presided by General Commission of Political Affairs and available in:
Francisco Franco carried on until his http://assembly.coe.int/Mainf.asp?link=/Document
death on 20th November 1975. s/WorkingDocs/Doc05/EDOC10737.htm:
356 The report ―Brincart‖ that estimates that the
During both the Civil War and the
number of prisoners per 100 000 inhabitants in
Dictatorship, gross and mass violations of 1940 was nearly as high as a corresponding figure in
human rights were committed, such as Nazi Germany (respectively 1158 and 1614).
forced disappearances, extrajudicial 357 Thousand of people, including women and
killings, attacks on the civilian children, were re-educated in forced labour camps,
where they were used as slave labourers. For
population, political arrests, torture and example, the ―Valle de los caídos‖ (Valley of the
Fallen), and impressive basilica made in honour of
Franco´s victory and his supporters dead during the
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recent years, that the project ―Biopsyche of Marxist Determinants of attitudes towards transitional justice
fanaticism‖ done by Franco´s chief psychiatrist, an empirical analysis of the Spanish case, Working
Antonio Vellejo Nagera has been made public. Paper 2009/243, June 2009, page 3.
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The impact of the recent transitional with.364 Against it, two Spanish right-wing
justice movements in Spain by some groups, ―Manos Limpias‖ and ―Falange
sectors of civil society Española de las JONS‖365, brought a
criminal suit before the Supreme Court
The ―Ley de la Memoria Histórica‖ (Law of against the ruling of Judge Garzón. They
the Historical Memory) was sanctioned in accused him of ―prevaricación‖ (i.e. breach
October 2007, incorporating necessary of legal obligations/abuse of power as a
measures extending the rights of those judge). The Supreme Court accepted the
who suffered prosecution or violence, 32 suit brought by the complainants and
years after the end of the Francoist established the existence of substantive
Regime. Regardless of the multiple flaws grounds to believe a crime of
of this law, its content indicates that this ―prevaricación‖ could have been
is a first step towards justice. committed. Garzón will sit on the dock in
But this Law and its impact continue to a criminal trial to respond to his actuation
cause resentment among some sectors of regarding this issue. Many international
society. A good example is the case actors have expressed that it is at least a
opened against Judge Baltasar Garzón. paradox that the Judge who helped
Challenged with a complaint submitted by bringing justice to the victims of
some victims of Franco´s repression, the dictatorships similar in character to the
Judge of the ―Audiencia Nacional‖ used Spanish regime, such as Pinochet Regime
the principles, custom and norms of in Chile, is now being prosecuted for
international law to establish the trying to do the same in his own
competence of the tribunal to investigate country.366
the case. Judge Baltasar Garzón limited it
to locating and exhuming the bodies of TRANSITIONAL JUSTICE MEASURES
the victims, categorizing them as crimes
against humanity and genocide, but not Transitional Justice and International
to prosecute those responsible for the Law
deaths. One of his main arguments was
that crimes against humanity committed Following the words of the International
during the Francoist Regime did not have, Centre for Transitional Justice,
following the jurisprudence of some Transitional Justice ―is a response to
International Tribunals363, a political systematic or widespread violations of
nature, and therefore, could not be human rights. It seeks recognition for
included in the Amnesty Law of 1977 victims and to promote possibilities for
which applied to ―all the acts of political peace, reconciliation and democracy.
nature that were categorized as crimes or Transitional justice is not a special form
offences before December 15th, 1976.‖ In
the end, Garzón´s ruling was appealed 364 EQUIPO NIZOR, ‗Statement concerning the status
inside the ―Audiencia Nacional‖ and sent of the criminal lawsuits pertaining to the victims of
to the ordinary regional courts to be dealt Francoism that were filed with the Audiencia
Nacional‖, September 30, 2008.
http://www.derechos.org/nizkor/espana/doc/bgen.
363See Inter-American Court of Human Rights, Case html (acceded 21 July 2010)
Barrios Altos de Peru, March 14, 2001, which denied 365 ―Manos Limpias‖ is a right-wing organization and
the admissibility of amnesty laws towards grave ―Falange Española de las JONS‖, gathered during
human rights violations, such as torture, summary, the dictatorship the fascist movement, it was also
arbitrary and illegal executions as well as forced known as the ―National Movement‖ and could be the
disappearances. In the same vein, Inter- American Spanish equivalent to the National Socialist party in
Court on Human Rights, Caso Mascare de Mapiripan Germany. Since the democratization it remains as a
v. Colombia, September 5, 2005; Argentinean small political party
Federal Criminal Court, Judgment Turco Julian, 366 See José Miguel Vivanco, Americas director at
August 11, 2006; Appeals Chamber Special Tribunal Human Rights Watch, declarations on
for Sierra Leone, Case Kondewa, May 25, 2004; http://www.hrw.org/en/news/2010/03/19/spain-
South-African Constitutional Court, case Azapo and end-amnesty-franco-era-atrocities (last time acceded
others v. President of the Republic of South Africa. 30th August 2010)
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Institute of Global and Area Studies, page 5 military that was expelled from it for trying to spread
375 Ibid. democracy among the military forces from 1974
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―restoring the legal situation that had principles, values and constitutional
been affected by illegitimate decisions liberties.‖381
made with the protection of an unfair Among the most important provisions, the
rule.‖378 following should be mentioned:
The problem of the aforementioned laws is - Summary Trials: the wording of the law
that they did not distinguish among averred the ―radical unfairness of all the
victims or sides and did not bring justice convictions, penalties and personal
to certain collectives or demand pardon violence caused by political, ideological or
for those who suffered for fighting in religious reasons during the Civil War, as
support of the Republic. In recent years, well as those suffered by the same
Associations of Victims started putting reasons during the dictatorship.‖ 382
pressure on the Government to develop Furthermore, all those tribunals, juries
new legislation on reparations focusing and any other criminal organs created
this time on the situation suffered by the during the Civil War or afterwards
victims. In this sense, the Governmental because political, ideological or religious
Act 1891/2004 (Real Decreto) of 2004 379 beliefs are considered illegitimate.383
that orders the creation of an Inter- - Reparations: Victims or their heirs can
ministerial Commission to analyze the ask for a ―declaration of repair and
situation of victims of Civil War and the personal acknowledgement.‖384 In the
Francoist regime, should be mentioned as same way the amount and scope of
it includes important innovations: for the material reparations (pensions,
first time ―victims‖ were described as pharmaceutical and medical-social care
―those suffering repressive acts as a for widows, children and other relatives,
consequence of their support to compensations etc.) has been
democracy‖; second, it states the need of increased.385
moral satisfaction and compensation for - Location and exhumations: Public
the victims of the Civil War who fought for authorities will facilitate to the relatives of
the legally established democracy‖380 the victims, under their request, the
b. Law of Historical Memory location, identification and exhumation of
The Law of the Historic Memory was the missing persons who disappeared
approved by the Spanish Parliament on during the Civil War and the
the 31st of October, 2007 under the Dictatorship.386
socialist government of Jose Luis - Establishment of the ―Centro
Rodríguez Zapatero. Its objective was that Documental de la Memoria Histórica y
of ―recognizing and extending rights for Archivo General de la Guerra Civil‖
those who suffered persecution or violence (Documental Center for the Historic
for their political, ideological, or religious Memory and General Archive about the
ideas during the Civil War and the Civil War) with the main objectives of
Dictatorship, to promote moral reparation ―retrieving, collecting, organizing and
and restoration of their personal and making available to everyone the
family memory, and additional measures documents and secondary sources that
designed to remove elements of division may be of interest to study the Civil War,
among the citizens, all in order to promote the Franco dictatorship, guerrilla
cohesion and solidarity between different resistance against it, the exile, the
generations of Spanish people around the
381 Law 52/2007, of 26 2007, ―Ley de la Memoria
378 Paloma Aguilar, Transitional Justice in the Histórica‖, available at:
Spanish, Argentinean and Chilean Case, page 8 http://leymemoria.mjusticia.es/paginas/es/ley_me
379 The text of the Governmental Act can be found in moria.html
the following link 382 Ibid. Art.2.1
Spanish, Argentinean and Chilean Case, page 9 386 Ibid. Arts. 11-14
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memoria. Apuntes para un balance, page 18 and it was ―recycled‖ during the anniversary of the
published in Generaciones y Memoria de la represión crowning of the King to pay tribute to all the fallen
franquista: Un balance de los movimientos por la during the Civil War and before.
memoria, Revista de Historia Contemporánea. 394 Paloma Aguilar, Transitional Justice in the
Número 6 (2006) http://hispanianova.rediris.es Spanish, Argentinean and Chilean Case, page 11.
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and El Ferrol were not pulled down until rejecting the dictatorship and the abuses
2005, 2006, 2008 and the current year committed during this period of time.
(2010) respectively. The removing of a Neither any members of the Military or
statute in Melilla is still under discussion. the Catholic Church400 in Spain have ever
These recent measures are in accordance apologised for the atrocities committed
with the new Law of Historic Memory, and their participation on them.401
specifically in its article 15.1-2395. Since A clear difference can be seen from the
this law entered into force, the Ministry of measures taken by Spain and those taken
Defence, has removed 355 of the 408 by the two countries used in comparison.
monuments that are officially in their Both in Argentina and Chile, different
facilities.396 The same measure has slowly measures have been taken in order to
started concerning the names of the remember the past and the atrocities
streets. In most of the churches and committed as well as paying tribute to the
cathedrals around the country, there victims:
were, and still are, lists of the people dead In Argentina, the ―Federal Network of
on the nationalist side, under the Places of Memory‖ was created to manage
sentence ―fallen for God and Spain‖, which the different ―memory sites‖ throughout
give an excessive tribute only to these the country. For example, commemorative
victims in comparison to the ones dead on sites were established, such as the
the republican side.397 ―Parque de la Memoria en el Río de la
With regards to the mortal remains of the Plata‖ (Memory Park on the bank of the
democratic president illegally and forcibly De La Plata River) a place with an
deposed by Franco‘s forces, Manuela important symbolic value as many people
Azaña, lays in a small cemetery in France were thrown from planes into the river
and no Head of State or Spanish during the dictatorship. This park was
President has ever rendered a visit to pay inaugurated in 2007. In the city of
tribute to his tomb.398 Rosario a Museum was opened, ―Museo
Concerning the official acts to condemn de la Memoria‖, honouring the victims of
the dictatorship, some motions were forced disappearances and condemning
passed in the Spanish Parliament terrorism. Furthermore in this country
condemning the victims who died during only a few symbols from the dictatorship
the Civil War and Dictatorship. However, remain, mainly name of streets or plaques
one of the two main political parties, the in memory of the fallen in small cities or
Partido Popular (right wing) has always barracks.402 On 24th March 2004, the
rejected them and denied to officially President of Argentina, Nestor Kirchner,
condemn the military coup of 1936 and converted the clandestine detention centre
the Dictatorship that follows it. known as ―ESMA‖ (the Navy Mechanics
Furthermore, no Head of States have ever School) into a ―Place of Memory and
asked the victims of the war and Franco‘s Promotion of the Defence of Human
Regime for forgiveness on behalf of Spain, Rights‖. Many other clandestine detention
as was done by President Aylwin in Chile centres have been restored, especially, in
on the 4th of March 1991.399 Also in the City of Buenos Aires and the province
Argentina several laws have been passed of Cordoba. On a national level, the
―National Memory Archive‖ was created in
December 2003 with the goal of
395 The law of Historic Memory is available in the ―obtaining, centralising and preserving
following website:
http://leymemoria.mjusticia.es/paginas/es/ley_me
moria.html (last acceded July 23, 2010)
396 400 Which during the Civil War and the following
http://www.larepublica.es/spip.php?article19606 Dictatorship supported the national movement
397 Paloma Aguilar, Transitional Justice in the 401 Paloma Aguilar, Transitional Justice in the
Spanish, Argentinean and Chilean Case, page 13. Spanish, Argentinean and Chilean Case, page 14
398 Ibid. at page 11. 402 Paloma Aguilar, Transitional Justice in the
399 Ibid. at page 13. Spanish, Argentinean and Chilean Case, page 10-12
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The Spanish and Chilean Amnesties are which prepared a report named ―Never
still in force today. However it is Again‖, where, even if the names of the
interesting to mention another important oppressors were not included, a careful
aspect. Contrary to Spain410, in Chile the and detailed list of people ―disappeared‖
legitimation of this law was publicly and the horrors committed in the secret
discussed as well as the issue that detention units was documented. 413
admitting that a general amnesty covers Therefore, the aim of this Truth
human rights violations will undermine Commission was not determining criminal
the international norms. In this sense, responsibility but disclosing the truth, as
some judges in Chile decided to start the Amnesty Laws remained in force.
investigations in cases of torture and However, the information they gathered is
forced disappearances, even if, because of an important basis for future judicial
the Amnesty law, they were obliged to not cases. ―Truth Trials‖ have been taking
condemn the culprits. place in this country from 1999 in federal
chambers all over the country. The aim of
Truth commissions these trials was not to sentence the
perpetrators but to guarantee the rights to
Contrary to Chile and Argentina, the truth and to pay tribute to the victims by
transitional mechanism of Truth continuing with the investigations started
Commissions was not used in Spain, as by the CONADEP.414
the strategy was that of ―oblivion‖.
However, in the two Latin-American Conclusion
countries their governments decided to
establish official commissions to This essay highlights the insufficiency of
investigate and clarify the human rights transitional justice policies during the
violations that took place during their Spanish transition process. Chile and
dictatorships.411 Argentina, countries that took the
On February 1991, the Chilean ―National Spanish transition as an example to
Commission for Truth and Reconciliation‖ achieve a peaceful democracy as strong
disclosed the information about the and stable as the one reached in Spain.
crimes committed, the name of the However, developed much more concrete
victims and the recommended actions complying with international law.
reparations, while maintaining in secret Both Latin-American countries
the name of the perpetrators in a established Truth Commissions and other
document known as ―Retting Report‖. truth-seeking mechanisms right after the
Recently, in 2003, a ―National end of their Dictatorships and their
Commission on Political Prison and governments firmly and publicly
Torture‖ has been established to condemned the abuses of human rights
investigate only those crimes related to committed during the said military
torture and political imprisonment. 412 dictatorships. As was seen before in Chile,
In Argentina, the ―National Commission a country where the Amnesty Law is still
on the Disappearance of Persons‖ in force, the judiciary power has
(CONADEP, in Spanish) was created, challenged the international legitimacy of
this law. None of those measures have
been taken in Spain.
410 As it was seen before, the decision of Judge It is true that Spain managed to move on
Baltasar Garzón to declare itself competent to
investigate the crimes against humanity committed
and that a democracy was undoubtedly
in Spain during the Francoist regime as they were established but the new developments
not covered by the Amnesty Law, have lead to a from civil society and some judiciary
criminal case of abuse of power (―prevaricación‖ in
its Spanish terms) against him.
411 Ulrike Capdepón, ―Historical Memory and 413 Paloma Aguilar, Transitional Justice in the
Democratization in Chile and Spain‖, page 6. Spanish, Argentinean and Chilean Case, page 12.
412 Ibid. at page 7 414 Ibid. at page 17.
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Bibliography
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violations of human rights violations perpetrated during the last military dictatorship
(1976-1983), page 13, published in Reparations for Victims of Genocide, War Crimes
and Crimes against Humanity Systems in Place and Systems in the Making, Martinus
Nijhoff Publishers, 2009.
Council of Europe - Commission of Political Affairs, ―Need for international
condemnation of the Franco regime‖, November 2005.
Javier Chinchón Álvarez, ―Transición Española y Justicia Transicional: ¿Qué papel
juega el ordenamiento jurídico internacional en un proceso de transición? A propósito
de la coherencia, buena fe y otros principios de derecho internacional postergados en la
transición política en España.‖ Entelequia. Revista interdisciplinar: Monográfico, nº7,
septiembre 2008.
Jo Labanyi, ―Memory and Modernity in Democratic Spain: The Difficulty
of Coming to Terms with the Spanish Civil War‖, Duke University Press.
Jorge Errandonea, ―Estudio Comparado de la anulación de sentencias injustas en
España‖, International Center for Transitional Justice, 18 July 2008.
Louis Bickford, ―Transitional Justice‖ inside ―The Encyclopedia of Genocie and Crimes
Against Humanity‖, vol. 3
Margalida Capella i Roig, ―La Recuperación de la memoria histórica desde la perspective
jurídica e internacional‖. Entelequia. Revista Interdisciplinar: Monográfico nº7,
septiembre 2008.
Omar G. Encarnacion, ―Reconciliation after Democratization: Coping with the Past in
Spain‖, Political Science Quaterly, Volume 123, Number 3, 2008.
Pablo F. Parenti, La jurisprudencia argentina frente a los crímenes de derecho
internacional, Lateinamerika Analysen 18, 3/2007, S. 61-93. Hamburg: ILAS
Paloma Aguilar, Transitional Justice in the Spanish, Argentinian and Chilean Case,
Study ―Workshop 10 – Alternative Approaches to Dealing with the Past‖
Paloma Aguilar, Laia Balcells and Héctor Cebolla, ―Determinants of attitudes towards
transitional justice an empirical analysis of the Spanish case‖, Working Paper
2009/243, June 2009.
Ulrike Capdepón, ―Historical Memory and Democratization in Chile and Spain: Between
local Discourses and international Norms‖, GIGA German Institute of Global and Area
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Websites
www.derechos.org/nizkor/
www.ictj.org
www.oosa.unvienna.org
www.ilsa.org
http://www.icrc.org
www.larepublica.es
www.echr.coe.int
www2.ohchr.org
www.corteidh.or.cr
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
By Cristian Gherasim*
ABSTRACT
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
prisoner, the design of the proposal was that had tried to stand against the
continued by a parliamentary draft Communist Party. Also, persons holding
version. As Mark S. Ellis mentions in his any of the positions mentioned in the
1997 study, the Romanian Parliament draft law must submit a statement
proposed a draft law on Access of Former attesting that they did not collaborate
Communist Officials and Members of the with the former communist regime.
Totalitarian Regime to Public and Political ‗Members of the Romanian Intelligence
Positions. Service, the ministry of Internal Affairs, or
‗Major positions within the Communist other selected government institutions
Party include members of the Central must answer within thirty days upon
Committee, members of government, being notified.‘421
members of the government, members of Article 2 of the Law No. 187 gives
the judiciary, officers of the Securitate, Romanian citizens the possibility of
and officers of the army‘419. Also, obtaining the names of the police agents
members of the judiciary cannot, for the and collaborators who contributed in
next eight years, hold the following giving information to their secret files 422.
positions: prime minister, member of the Citizens can read and obtain copies their
government, public prosecutor, president files at the Council. Also, those
of the court, governor, governor deputy, dissatisfied with the response of the
director of the national television Council for the Study of Security Archives
company, or ambassador. In addition, may petition the Court of Appeals for a
these people cannot be elected for the review. Civil society has criticized the
Constitutional Court, Supreme Court, Council for the Study of Security Archives
Superior Council of Magistrates, because of the fact that the so called list
Romanian Academy, of the Audio-Visual of ―positions of responsibility‖ does not
Media National Council. include members of the secret services.
The draft law also mentions that persons So, candidates elected to or nominated for
who, irrespective of their positions, were almost every position of responsibility in
‗arrested, convicted, or suffered any other the state at central and local levels and
consequence due to ―anti-soviet‖ or ―anti- who, by the occupations they had,
communist‖ opinions between March 6, qualified as subjects of Lustration must
1945 and December 22, 1989 are withdraw or renounce the post within
exempted from the provisions of the fifteen days of the beginning of an
proposed law.‘420 This provision could also investigation. Regarding the investigation
act as rehabilitation mechanism for those process, it is stated that ordinary citizens
that became victims of the changes which as well as members of the press, political
occurred during the communist regime. parties, civic organizations, and public
So, when the Romanian communist administration bodies must be informed,
regime decided to make a transition from on request, of any collaboration with the
internationalist communism to a more Securitate by elected or nominated
nationalist approach, a cleansing and candidates.
physical removal of those who were The law defines the political police as
formerly internationalists took place. including all Securitate agencies whose
However this provision of the draft law activities infringed on fundamental
can‘t be considered as a form of amnesty human rights and liberties. A secret agent
given the fact that most of the former high is defined as a person who worked overtly
ranking officials are all ready dead. So, or covertly for the political police between
the law only refers to non party members
421Draf law
419 Draft law regarding the access of the former 422Gabriel Andreescu, Law 187/1999 and the First
communist officials and members of the totalitarian year of Activity of the National Council for the Study
regimes to public and political positions, 1996 of Securitate Archives, The Romanian Magazine for
420 Draft law Human Rights, no 20 (2001): 38-56
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1945 and 1989, when Romania was it difficult to differentiate victims and
under communist rule. Actually, the law perpetrators.
distinguishes several kinds of informers Some reliable estimates regarding the
but does not recognize degrees of number of informers is placed around
involvement, for everyone involved with ‗700,000, 0f whom 100,000 were
the Securitate, regardless of the nature of Communist Party members.‘423 Another
the involvement, must be indentified analysis regarding the number of
publicly. In article 5 a collaborator is informers and their background was
defined as a person who received an offered by Ticu Dumitrecu. According to
honorarium, was a Securitate resident, - one socio-economic analysis Dumitrescu
not qualified and trusted yet to be a full- said that for 3,007 new informers, 39
time collaboratorwas enlisted by the percent had university education, and
secret political police to offer information another 37 percent high school education,
that infringed on human rights, or 18 percent were engineers, researchers, or
facilitated in any way the transmission of scholars, 17 percent were professionals,
such information. Collaborators are those 19 percent public servants, and 32
who had decisional, juridical, or political percent military officers, workers or
responsibilities, whether at the central or peasants. Around 97 percent had been
local level, related to the activities of the recruited voluntarily because of their
Securitatea or other totalitarian ‗political and patriotic sentiment‘424, 1,5
structures of representation. percent though offers of financial
While the law does not clearly distinguish compensation, and 1,5 percent were being
different types of Securitate employment, blackmailed with compromising evidence.
the political police are known to have The Council for the Study of Securitate
employed both full-time officers and part- Archives, an autonomous public agency
time informers. A simple informer would under parliamentary supervision, serves
become a collaborator upon joining the as custodian of the archive and ultimate
Communist party, then a paid judge of the involvement of Romanian
collaborator, and finally a paid referent citizens with the communist political
and finally a paid referent contemplating police. The council is led by an eleven-
promotion to the rank of Securitate member college whose members,
officer. An officer‘s identity could be nominated by the legislature, can serve
uncovered, partly covered, or completely for two six-year terms. Civil-society
covered, with the latter being the highest groups object to the college, arguing that
honor within the Securitate organizational the council should be independent of the
structure. Add to this the largest network politicians whose past it is supposed to
of informers in Eastern Europe, believed investigate. The balance of forces in the
to have included some 600,000 to upper chamber of the Romanian
700,000 people from a total of 23 million. parliament determined the composition of
Monetary and non-monetary perks alike the college in the spring of 2000. The
were available for informers. Romanians government won the right to nominate
in all walks of life enrolled as Securitate seven members of the college, including
informers in hope of being granted a the president and the deputy president,
passport, permission to work abroad, while the opposition nominated the
transfer to a big city or a better job. Of remaining four.425
course, not all collaborations were
voluntary and opportunistic, but it is 423 Silviu Brucan, Generaţia irosită: memorii (Wasted
simply impossible to say how many generation), (Bucharest: Editura Univers, 1992),
informers spied out of fear, revenge, or p.142
424 Ticu Dumitrecu, ‗Ticu Dumitrescu Report‘, Ziua,
blackmail. To further complicate things,
21 January 2002, 7
some of the victims who were reported on 425 The seats were divided as follows: the Christian
were themselves spying on others, making democrats, social democrats, and main government
and opposition party got three seats each; the
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By law candidates must not have been someone is absent and the vote is split,
Securitate agents, cannot be members of the meeting chair, usually the council
any political party, and cannot be chair breaks the tie. Collaborator verdicts
occupants of a state office when are based on evidence from files and,
nominated. But despite protests by the when the files are missing or incomplete,
opposition, the parliamentary majority on written documents submitted by
ignores these restrictions, nominating interested parties. The council‘s personnel
philosopher and former foreign minister are public servants who must preserve
Andrei Pleşu and the former dissident the secrecy of the information contained
poet Mircea Dinescu. Both men had in the files even after retiring of
surrendered their Communist Party cards transferring to another job. Destroying,
more than twenty year earlier, but the falsifying, or concealing Securitate files
taint of past membership remained. and documents is punishable with a two-
The council has access to everything in year prison term. Leaking or
the Securitate archive except files whose misrepresenting information in the files is
release might jepordize the vague concept punishable with a prison term of six
of ―national security‖. Before they referred months to five years. Publishing false
to the council in late 2001, the Securitate information to slander a person‘s life,
files had been scattered throughout the dignity and reputation is punishable with
country in the archives of the Ministry of three moths the three years. The law and
Defense, the Ministry of Justice, the the statutes, however, do not clearly
Romanian Information Service, and the specify the punishments applicable to
External Information Service. Nobody regular council employees and to the
knows exactly how many files the college members, and there is no
Securitate produced, how many were provision for dismissing college members
destroyed and whether the council now found guilty of misconduct.
has custody of all the exact files. Since its
inception in 1990, the Information Council for the Study of Security
Service, which housed the bulk of the Archives: moral judge or instrument of
Securitate files in its Bucharest political revenge?
headquarters and forty country branches,
has offered contradictory information on To carry out its mission, the National
the number and contents of the files and Council for the Study of Securitate
refused to grant public access to them. In Archives must hand down well-
1993, according to Information Service researched verdicts based on as much
date obtained by Ticu Dumitrescu, there information as possible, including
were 1,901,503 Securitate files. Whether archival and non-archival materials and
the files realized to the council are personal interviews with suspected
authentic or were fabricated since Securitate collaborators. Before publicly
December 1989 by unknown hands eager labeling someone as an informer it should
to compromise local luminaries is still an clearly explain any limitations on the
open question. investigation. To fend off possible
The college meets twice weekly in closed – criticism, and be faithful to the spirit of
door session, works with a quorum of at the law, the council should list the
least eight of its eleven members, and archives it consulted and should identify,
makes decisions and gives verdicts with a in general terms, the documents
simple majority of those present. 426 If supporting a guilty verdict. More
generally, it should clearly spell out, for
its members if not for the public, the type
Democracy Party, a junior ruling partner , got two; of materials that would prove beyond any
and the National Liberal Party , the Democratic
Union of Magyars in Romania, and the Greater
doubt a person‘s involvement with the
Romanian Party, one each political police. And the council should
426 Monitorul Oficial al Romaniei, June 2, 2000
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realize that its verdicts and its work in engage in political police activities.‘427 But
general, will be taken seriously only to the as head of a Securitate service
extent that it takes seriously the legal supervising dissident activities abroad
stipulations governing its activities, during the 1980s, Priboi had ordered the
especially regarding the interview and monitoring and the physical assault of
appeal procedures. some Radio Free Europe collaborators.
During its first year, the council Two council employees pursuing
undoubtedly worked under tremendous advanced research degrees, Mircea
pressure to demonstrate the utility of its Stanescu and Gabriel Catalan, were fired
existence and justify the public money it after divulging the intimidation they had
spent. The late adoption of Law No. 187 been subjected to by unnamed persons
delayed the appointment of college both inside and outside the council. The
members. When the time came to launch college, however, refused to discuss the
the candidate verifications, the council dismissal of Mircea Dinescu, a member
had too few personnel, no office space, who had openly supported a presidential
and no official access to the archive. But candidate despite regulations barring
the many reversals, the careless and college members from political activity.
contradictory remarks made by many of
its members, and the fundamental Some of the council‘s problems stem from
mistakes it could have easily avoided shed the legal framework governing its
serious doubt about the council‘s activities. The law lists several categories
competency. The strategy of shifting the of Securitate agents and informers, failing
blame to the Information Service, the to recognize that more often than not
conservative political parties, the electoral there was no clear-cut difference between
candidates, the press and even the informers and those informed upon.
general public, combined with the hasty Furthermore, individual actions on behalf
excuses its leaders came up with every of the Securitate are difficult to categorize,
time their verdicts were questioned, and neither the law nor the council‘s
denote an unexplainable lack of statutes distinguishes between actions in
responsibility. terms of the damage they caused their
Some cases analyzed by the council had victims. As Gabriel Andreescu points out,
provoked criticism. For example candidate ‗a measure of the council‘s performance is
Mircea Bleahu complained about not its capacity to identify the presence of the
being interviewed before his name was political police in those cases when that
made public. Another candidate labeled a presence is not apparent.‘428
Securitate informer pointed out that he Probably the most serious legal
had a different middle name that the difficulty is the absence of clear guidelines
person design by the council. When the regarding the type of written documents
Caras-Severin press published documents that could attest to collaboration. Does
indicating that certain Social Democrat collaboration rest in the quantity or the
and Liberal candidates running in local quality of the information given to the
elections had been associated with the political police? If both matter, is one
secret police, the council refused to label more important than the other? Was a
them as Securitate informers, claiming person who signed a pledge of allegiance a
that the documents were inconclusive. Securitate informer? In some cases such
Similarly, it refused to name as an officer pledges were not followed by active
of the political police Ristea Priboi, the involvement, while in others information
head of the parliamentary committee in
charge of supervising the activity of the
427Ziua,February 13, 2001
Information Service, on grounds that ‗the 428Gabriel Andreescu, ‗Legea 187/1999 şi primul an
institutions housing the Securitate de activitate a Consiliului Naţional pentru Studierea
archives reported that Priboi did not Arhivelor Securităţii‘, Revista Română de Drepturile
Omului ,no.20 (2001), 38
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was given to the political police even in definitive verdicts. Instead of erring on the
the absence of a written pledge. Then was side of caution and employing materials
a person who periodically signed from a variety of sources, the council set a
information reports a Securitate informer? dangerous precedent of sloppy research
Often these contained worthless and contradictory declarations, forgetting
information already in the public domain. that any moral reform must start with the
What about someone who was praised by council itself.
the secret police for the quality of his or
her collaboration? An automatic guilty Conclusion
verdict in such cases would mean that the
council was giving up its function as During these last pages we tried to
ultimate judge and deferring to identify the reasons why lustration cannot
evaluations made by the very political proceed as it was supposed to. After
police whose evildoings it is supposed to underlining the shortcomings of the
undo. Even more important, can the Council for the Study of Security
archive be trusted? What guarantee is Archives, we should, in the end, offer a
there that materials in the files are more holistic approach to the whole
authentic and were not altered after the process of legal accountability and moral
collapse of the Ceauşescu regime? cleansing. The post-totalitarian Romanian
Perhaps the greatest challenge facing society seems to be reluctant to sanction
transitional justice in Romania is the those with criminal culpability for the
delay that occurred before the Securitate crimes of the former regime. One of the
archive was transferred to the custody of main arguments upholding this kind of
an independent agency. Because of the ethical and legal approach is the so called
delay, Romania was the only East ‗power vacuum‘ theory. By and large, it is
European country where the destruction assumed that communism as a hole had
of political police files continued after the simply disappeared. Because of that, the
demise of communism. old state structures and former political
elites don‘t have to be changed as they
The verdicts handed down by the council have already vanished. The so called
seem more provisional than the agency is regime change was in fact closely followed
ready to admit. As the two cases detailed by continuity at individual level. As of
here suggest, neither a guilty nor a non- that former party officials and activists
guilty verdict is ever definitive. Part of the had switched sides, becoming over night
blame rests with the elusory relationship democracy enthusiasts. These new
between reality and recorded material. advocates of democracy immediately
Archival verifications do not uncover an renounced communism just after the
individual‘s real involvement with regime fell. This was a means of denying
Securitate, but only whether an archive the very fact that their public careers had
heavily altered during the last decade lists began before the fall of communism and
him or her as an informer. Over the years, had been tightly linked to upholding and
press reports have documented the overtly declaring allegiance to the
buying and selling of files on the Communist Party and to state socialism.
Bucharest black market, and the more or Due to these reasons, post-communist
less skillful addition and subtraction of politicians and present day intellectuals
archival materials. But most of the blame are quite motivated to create an abstract
rests with the council itself and the way and distorted interpretation of
in which it misunderstands its mission. communism. They are favored by an
Fearful of being unable to justify their explanatory model of communism seen as
expensive headquarters and lavish wages, a foreign political phenomenon which was
the council‘s leaders hurriedly published imposed in Romania by force and
the results of incomplete investigations as brutality.
Page 146
As of that, nobody can be culpable in other Romanian can be found responsible
communist atrocities and, aside from of such deeds.
Ceauşescu and few high party officials, no
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Bibliography
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
By Nicola Sibona*
ABSTRACT
The present paper aims at describing the need for a reform of the
Dayton Constitution, given the prospective accession of BiH to the
European Union. Notwithstanding the signing in June 2008 of the
Stabilization and Association Agreement with the European Union,
the country is still threatened in its unity and in its political life by
ethnic nationalism; moreover, its inefficient and cumbersome
institutional framework requires heavy intervention from the
international community in order to function, through the Office of
the High Representative, thereby impeding the development of
proper self-government. The only possible solution which would not
endanger the unity of the state seems to consist in a federalist
choice, which could go beyond the ―institutional racism‖ enacted by
the Dayton Constitution, without risking jeopardizing the
considerable autonomy enjoyed by the cantons and entities. Such a
solution has to be reached with the utmost urgency, because an
efficient state based on European perspectives and values is not an
overly ambitious goal, which could be pursued once the political
situation is finally stabilized, but it rather represents one essential
condition to allow Bosnian society to develop, rejecting nationalism
and ethnic hatred.
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The Dayton Constitution and its limits declare themselves as belonging to one of
the three if they want to participate to the
As a result of the implementation of the public life of the country, this
Dayton constitution, the institutions of institutional framework is clearly in
Bosnia and Herzegovina (―BiH‖) appear as contrast to the development of a sense of
follows. The State is composed of two public interest among the population.
Entities, the Republika Srpska and the Indeed, the ethnic partitioning
Federation of Bosnia and Herzegovina, to contributes to keeping the public interest
which it should be added the peculiar as a rather neglected concern for the
situation of the Brcko District. The population, much weaker if compared to
Republika Srpska includes territories the sense of ethnic belonging.435 For this
which after the war were occupied by the reason, the system has represented and
Serbian Army, now having an ethnic-Serb continues to represent the ideal habitat
majority. The Federation was originally for the most nationalistic and extremist
conceived as an independent federal state, political forces, which can cultivate their
including territories inhabited mostly by political support along ethnic lines, and
ethnic Bosniaks and Croats, and is be rewarded for their most extremist
composed of 10 Cantons. Finally, the positions.
Brcko District has been declared a
District of BiH following the result of an With respect to this, it should be noted
arbitrate, prescribed by the DPA and that a recent judgment from the
finally delivered in 1999. European Court of Human Rights436 has
also condemned BiH because of its
The Dayton Constitution has shaped the constitutional structure, which leads to
country following political criteria which citizens who do not identify themselves
were not necessarily led by the overriding with one of the three ―constituent peoples‖
target of efficiency and long term being ineligible to stand for election to the
governability of the country‘s institutional House of Peoples and for the Presidency.
structure. In this sense, the most striking Following the application of two citizens,
feature of the Dayton Constitution is that, Mr. Sejdić and Mr. Finci, respectively of
according to it, many institutions of the Roma and Jewish origin, the Court
BiH choose its members according to a decided that their ineligibility for the two
form of ‗institutional racism‘: 434 for above-mentioned constitutional bodies
instance, the Presidency is a three constituted a violation of the European
member-institution, whose members are Convention on Human Rights, which at
chosen by the citizens divided along its article 14 states that ―the enjoyment of
ethnic lines among Bosnia‘s three the rights and freedoms set forth in this
constituent ethnic groups, so that each Convention shall be secured without
citizen votes only for the member of the discrimination on any ground such as sex,
Presidency corresponding to its ethnicity. race, colour, language, religion, political or
other opinion, national or social origin,
This partition along ethnic lines is clearly
the source of several problems for the
country, because it means that the 435 Sebastian, Sofia, Leaving Dayton Behind:
institutions represent the citizens only as Constitutional Reform in Bosnia-Herzegovina,
members of one of the three ethnicities Fundacion par las Relaciones Internacionales y el
Dialogo Exterior (FRIDE), 2007, pag. 2, available at:
(―Constituent People‖ in the Dayton http://www.fride.org/publication/291/leaving-
Constitution). Moreover, without dayton-behind-constitutional-reform-in-bosnia-and-
mentioning the fact that people who are herzegovina
not part of those ethnicities need to 436See European Court of Human Rights, judgement
of 22 December of 2009 in case of Sejdić and Finci v.
434The expression is of ROSSINI and SIGHELE, cit., Bosnia and Herzegovina (applications nos. 27996/06
pag. 105 and 34836/06).
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political forces. 441 The Conclusions of the Meeting are available at:
439 Council of Europe Parliamentary Assembly, http://www.ohr.int/pic/default.asp?content_id=518
―Honouring of Obligations and commitments by 2#11
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without the High Representative having SAA, would not have been possible
taken the lead‖442. These methods, without the role played by the OHR.
however effective, are not exempt from
side effects: as noted by Rupnik, the A federalist proposal for BiH
major contradiction of the protectorate
lies in the wish to ensure the environment Even after having achieved a historical
for the emergence of a democracy by target such as the signing of the SAA, BiH
applying authoritarian methods.443 and the international community should
think carefully about the future of the
Aware of this paradox, and convinced that country, in order for Bosnia to pursue
the use of the Bonn powers was successfully its road towards a functional
counterproductive to the creation of a and democratic state, within the
functional democracy, Mr. Christian framework of the European Union. To do
Schwarz Schilling, appointed as High so, BiH urgently needs to review the
Representative on 31 January 2006, institutional framework designed by the
decided that he would not make use of Dayton Constitution, and adopt a more
the Bonn powers unless they would prove efficient structure which is respectful of
necessary to maintain peace and stability. the interests of all the ethnic groups, and
Moreover, he set as a target the at the same time makes it possible for all
progressive downsizing of the OHR in of them to cooperate within the
order to leave Bosnia‘s politicians to sort framework of a unitary construction. An
out their own problems.444 Nonetheless, enhanced model of a federal state seems
maybe due to the unfeasibility of that to be the only possible structure able to
project, or rather to the abruptness of the fulfill those conditions. 446
withdrawal plan, which did not take into
consideration the ―dependency culture‖445 An interesting proposal in this sense is
developed by several years of massive worth of note. According to the
interventions by the OHR, the intentions provocative proposal of the European
of Mr. Schwarz Schilling had to be Stability Initiative,447 a radical reform
radically revised, and his successor, Mr. could be pursued by simply abolishing
Miroslav Lajcak had to go back to the the Federation, while conserving all the
previous interventionist strategy, other existing structures: the Republika
although not as extensively as his Srpska and the Brcko district would
predecessors. It is commonly recognised become cantons of this newly established
that many recent reforms of BiH, federalist structure, together with all the
including the police reform, which were other ten cantons of the Federation. This
necessary conditions for the signing of the plan would have the advantage of being
able to be put into effect rather easily,
because it would not require major
442 Venice Commission of the Council of Europe, institutional changes. Moreover, this
Opinion on the Constitutional Situation in Bosnia and structure would radically cut the
Herzegovina, 11 March 2005, available at: institutional costs and the complexity of
http://www.venice.coe.int/docs/2005/CDL-
AD(2005)004-e.pdf
BiH‘s structure, by eliminating an entity,
443 RUPNIK, Jacques, ―Les Balkans et la Pax
Europea : Entre Protectorats et Intégration‖, in
RUPNIK, Jacques (ed.), Les Banlieues de l‘Europe : Les 446 MRDUILJASE, Sasa and Marin SOPTA, ―Una, due,
Politiques de Voisinage de l‘Union Européenne, Paris, tre Bosnie‖, in Limes Online – Rivista Italiana di
Sciences Po, 2007, pag. 143 Geopolitica, available at:
444 INTERNATIONAL CRISIS GROUP, Ensuring Bosnia‘s http://limes.espresso.repubblica.it/2008/04/01/un
Future: A New International Engagement Strategy, 15 a-due-tre-bosnie/?p=545
February 2007, pag. 6, available at: 447 EUROPEAN STABILITY INITIATIVE, Making Federalism
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
the Federation, whose tasks could be The state resulting from this reform would
given, according to the principle of then be perfectly in line with the requests
subsidiarity, either to the cantons or to of the European Union and of the Council
the federal state. of Europe, and would avoid any drastic
sequence of events, which are possible in
On the other hand, the main weakness of the precarious framework of the DPA and
this plan would be that both Bosnian which could complicate and slow down
Serbs and Croats may view with suspicion Bosnia‘s path towards European
a central state in which they would be integration. Moreover, the federalist
minorities, and, for the Bosnian Serbs, in model, by concentrating all possible
which they would have to renounce part decisions at cantonal level, would render
of the autonomy acquired by the recourse to ethnic nationalist parties less
Republika Srpska. These objections and and less appealing, triggering a virtuous
reluctances are however rebutted by the cycle, from which the governance of the
supporters of the proposal, who note that country cannot but benefit.
the federalist model is the perfect model
where differences can coexist and be In the absence of an agreement on a
respected by a ―minimal‖ central constitutional reform, the risk of
government: in this sense, Switzerland secession of the Republika Srpska from
can serve as an example. BiH is becoming more and more present:
many signs are now leading to the
The Swiss Constitution is indeed the suspicion that the Republika Srpska,
product of a complex history of conflict under Prime Minister Milorad Dodik, is
and cooperation. This system, which has taking steps to prepare the international
been developed by the Swiss over community to the fact that its
centuries for dealing with the diversity of independence would not just be an
a country with strong local identities inevitable but also, ultimately, a desirable
based on different languages and dialects, outcome. Mr. William Montgomery, former
and different political traditions, perfectly US ambassador to Belgrade, has qualified
integrates very different realities; for this strategy as the ―Montenegro
instance, Italian, French and German- Strategy‖.449 According to Mr.
speaking cantons peacefully coexist, as to Montgomery, the strategy includes, on the
urban and rural areas, or to protestant international level, a relationship of
and catholic communities. Moreover, in collaboration with the EU and with the
Switzerland there is no conflict between international community, and, on the
strong municipalities (communes) and national level, a sort of ―passive
autonomous cantons. It can be argued resistance‖ which is functional to the
that this model works because establishment of a parallel quasi-state; in
Switzerland is a wealthy country: the long term, the international
however, this argument cannot be used to community will be presented with
put into doubt the applicability of the evidence of a de facto independent state
model, given that, in that country, the and will have to accept the independence
federal model predates the present of the Republika Srpska as a reasonable
affluent economic condition by centuries. and even desirable outcome.
In the case of Switzerland, ―it was not
wealth that generated federalism, rather
federalism which provided the stability
that enabled Switzerland to prosper‖.448
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Bibliography
OTHER ACTS:
Conclusions of Peace Implementation Meeting of 10 December 1997, Bonn, available at:
http://www.ohr.int/pic/default.asp?content_id=5182#11
Council of Europe Parliamentary Assembly, ―Honouring of Obligations and commitments
by Bosnia and Herzegovina‖, Report Doc 10200, 4 June 2004, available at:
http://assembly.coe.int//main.asp?link=http://assembly.coe.int/documents/Working
Docs/doc04/EDOC10200.htm
Council of the EU, General Affairs Council Conclusions, 29 April 1997, available at:
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/gena/028a00
57.htm
EU Western Balkans Summit Declaration, Thessaloniki, 21 June 2003, available at:
http://ec.europa.eu/enlargement/enlargement_process/accession_process/how_does_a
_country_join_the_eu/sap/thessaloniki_summit_en.htm
Final Declaration of the Zagreb Summit of 24 November 2000, available at:
http://ec.europa.eu/enlargement/enlargement_process/accession_process/how_does_a
_country_join_the_eu/sap/zagreb_summit_en.htm
Venice Commission of the Council of Europe, Opinion on the Constitutional Situation in
Bosnia and Herzegovina, 11 March 2005, available at:
http://www.venice.coe.int/docs/2005/CDL-AD(2005)004-e.pdf
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
By Ian Bausback*
ABSTRACT
* Ian Bausback graduated from the University of California, San Diego in 2009 with
a BA degree in International Studies (Political Science) and History. As an
undergraduate he also studied German language and history at Freie Universität,
Berlin for a semester in 2008. He is currently pursuing an MA degree in
International Relations at the University of Kent‘s Brussels School of International
Studies.
E-mail: ikb2@kent.ac.uk
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Reconstruction of the Security Sector, eds. Alan ‗What is Transitional Justice?,‘ (2008) 1.
Brydan and Heiner Hänngi (Münster: LIT, 2004) 5-6. 457 OHCHR, ‗Rule-of-Law Tools,‘ 3.
454 UK Presidency in conjunction with the European 458 James Katorobo, ‗Democratic Institution Building
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The security sector in the DRC: The agreement included an entire chapter
Historical context on the issue of SSR. It established an
integrated national army to bring the
The DRC has been racked by instability main rebel movements in the DRC under
for the last two decades and has a one umbrella and formed a Superior
precarious legacy extending even further Council of Defense to oversee SSR.
back, which has been detrimental to the However, a lack of political will coupled
development of its security sector. Having with insufficient funding and logistical
gained its independence from Belgium in support made for slow progress. In the
1960, the DRC experienced a military absence of a clear and comprehensive
coup in 1965 that plunged the country plan, the process largely ground to a
into some thirty years of dictatorship halt.464 This in part reflected the
under General Mobutu. The security politically sensitive nature of SSR and the
services became tools of repression under reluctance of international actors to
the firm control of the presidency and engage in such efforts concertedly.465
matters of security and defense were the Moreover, ―the sheer magnitude of SSR in
exclusive prerogative of the executive the DRC, as well as the number and
power. Parliament and other civilian variety of donors involved, made any SSR
institutions – not to mention civil society – effort daunting.‖466 Harmonization of
completely lacked oversight of the security donor activities has been a real problem,
sector. Accountability and transparency one detrimental to the reform process.
were wholly absent, which created a rift The major international actors involved
between the dominant security forces and are as wide-ranging as the UN, World
the civilian population.460 Bank, US, Angola, South Africa, China,
and, of course, the EU.467
Such was the status of the security sector
in the DRC when the country descended The EU and security sector reform in
into chaos in the 1990s. An opposition the DRC: Steps taken
movement within the military launched a
seven-month war that ended with the Since the establishment of the DRC
overthrow of Mobutu‘s regime in 1997, 461 transitional government in 2003 the EU
resulting in the total collapse of the state has been working to support its
security forces. The situation further institutions in a number of ways, 468
deteriorated when a second war broke out perhaps most notably with regards to
in 1998, involving the armies of SSR. Although it has engaged in all main
numerous African countries, rebel areas of the security sector – police,
movements, and militias.462 The war was defense, and justice – it has placed
not brought to an end until the signing of overwhelming emphasis on the former
the General and All-Inclusive Agreement two. As such, this paper will focus on the
late in 2002 and the formation of a
transitional government the following year
consisting of the leaders of the three
Challenging Environments, eds. Hans Born and
major armed groups in the DRC.463 Albrecht Schnabel (Münster: LIT, 2009) 91.
464 Ibid. 91.
465 Chris Ferguson, ‗Police Reform, Peacekeeping and
460 Dylan Hendrickson and Missak Kasongo, SSR: The Need for Closer Synthesis,‘ Journal of
‗Security Sector Reform in the Democratic Republic Security Sector Management 2.3 (2004) 8.
of the Congo: Strategic Issues,‘ African Security 466 Clément, ‗Forward to the Past,‘ 93.
Sector Network, Issue Paper No. 4 (2009) 3. 467 Laura Davis, ‗Justice-Sensitive Security System
461 Laura Davis, ‗Small Steps, Large Hurdles: The Reform in the Democratic Republic of Congo,‘
EU‘s role in promoting justice in peacemaking in the Initiative for Peacebuilding (2009) 27.
DRC,‘ Initiative for Peacebuilding (2009) 8. 468 Hans Hoebeke, Stéphanie Carette and Koen
462 Hendrickson and Kasongo, ‗Strategic Issues,‘ 4. Vlassenroot, ‗EU Support to the Democratic
463 Caty Clément, ‗Security Sector Reform in the Republic of Congo,‘ Centre D‘Analyse Stratégique
DRC: Forward to the Past,‘ Security Sector Reform in (2007) 3.
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EU‘s efforts in police and defense reform participated in the CNP census and
in the DRC. recording operation, as well as the Mixed
Reflection Group on the Reform and
The EU made reform of the police sector a Reorganization of the CNP (GMRRR).
priority area for its involvement in the During the 2006 electoral period the
DRC from the outset. The Political and mission became a ―police coordination
Security Committee of the EU decided to support element‖ to ensure a proper
provide support for the establishment of response by the Congolese crowd control
the Integrated Police Unit (IPU), a units in Kinshasa in case of
specialized unit of the Congolese National disturbances.473 EUPOL Kinshasa was
Police (CNP) charged with protecting the succeeded in 2006 by the EU Police
transitional institutions and reinforcing Mission for the Democratic Republic of
the internal security system.469 As an Congo (EUPOL DR Congo), which was
integrated unit, its officers were recruited given a broadened mandate to focus on
from among the various political factions overall structural reform of the CNP and
of the transitional government.470 The EU strengthen its links to the justice
provided technical assistance, trained the sector.474 This mission has, for instance,
officers, and monitored the provided its expertise to the Auditing
implementation of the IPU‘s mandate. Inspectorate, the body of the DRC
The provision of technical assistance and Ministry of the Interior that covers any
training was undertaken by the EU criminal, administrative, or financial
Commission. Financed by both the offenses committed by the police.475
European Development Fund and
member state contributions, nearly 9 In terms of defense reform, the
million Euro was spent to rehabilitate a Commission has pledged a considerable
training center and provide basic amount of financial aid to support the
operational equipment such as weapons project of army integration in the DRC. It
and law enforcement gear for 1,050 IPU made an initial contribution of 20 million
officers and 40 Congolese trainers. The Euro to the Multi-Country Demobilization
Commission also rehabilitated the IPU and Reintegration Program of Central
operational base in Kinshasa for an Africa, which aims at demobilizing ex-
additional 1.05 million Euro. combatants and reintegrating them either
within the Armed Forces of the DRC
The EU Council took charge of the task of (FARDC) or back into society.
monitoring, namely through a European Additionally, it financed the renovation of
Security and Defense Policy (ESDP) several brassage centers where ex-
civilian mission, the first to be deployed in combatants are integrated into newly
Africa.471 Launched in 2005, the EU formed brigades of the FARDC.476 The
Police Mission in Kinshasa (DRC) (EUPOL Commission has also assisted the families
Kinshasa) accompanied the IPU‘s of soldiers through ‗flanking measures,‘
deployment to ensure that they acted such as rehabilitating housing and
according to the standards of their improving access to clean water and
training as well as international best sanitation.477
practices in the field.472 It also
473 Hoebeke, Carette, and Vlassenroot, ‗EU Support,‘
469 Ibid. 9. 9-10.
470 Natalie Pauwels, ‗EUPOL ‗Kinshasa‘: testing EU 474 Quentin Weiler, ‗The European Union and
co-ordination, coherence and commitment to Africa,‘ Security Sector Reform in Africa: a Leader in Theory,
European Security Review 25 (2005) 2. a Laggard in Reality?,‘ Bruges Regional Integration
471 EU Council Secretariat, ‗EU Police Mission for the and Global Governance Papers (2009) 17.
DRC (EUPOL RD Congo),‘ EUPOL RDC/08 (2010). 475 EU Council Secretariat, ‗EUPOL RD Congo‘.
472 International Crisis Group, ‗Security Sector 476 Weiler, ‗Laggard in Reality?,‘ 16-17.
Reform in the Congo,‘ Africa Report No. 104 (2006) 477 International Crisis Group, ‗SSR in the Congo,‘
8. 20.
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government the opportunity to ‗cherry coherent SSR policy. The problems that
pick‘ between the various donor aid can arise from such a divergence were
programs in the interest of its own demonstrated by the delay in launching
agenda.489 It is difficult to convince the EUPOL Kinshasa, which reflected internal
DRC authorities of the necessity for a disagreement over the mission‘s form.
more integrated approach to SSR when The Commission favored a small mission
international coordination is itself with a longer-term mandate, while the
lacking.490 Council preferred a rapid crisis-
management approach, and it took nearly
The EU, for its part, has gone some way 15 months for the dispute to be resolved
in addressing this issue. One success of and for the mission to be deployed.495
EUSEC DR Congo is its occupation of a
strategic position among the various To complicate the matter, tension between
international actors involved, which member states has further fragmented the
enables it – certainly to a higher degree EU‘s approach to SSR policy. Although
than any other actor – to prevent from the outset police reform was
blockages in the process and take generally seen quite favorably, some
advantage of opportunities for action.491 members were reluctant to become
At the domestic level, advisors from involved in defense reform. As a result,
EUSEC DR Congo liaise with all of the two separate ESDP missions – EUPOL
competent government institutions, and EUSEC – were launched in the DRC
allowing for enhanced coordination and and have operated in parallel.496 This has
the development of increased coherency come at the expense of taking a more
among the various domestic bodies integrated approach to SSR.497
dealing with defense reform.492
In the DRC, the EU has at least made
The EU has, however, faced its own noticeable progress in coordinating the
internal problems of coordination. The divergent strategies of the Commission
Commission and the Council, despite and the Council. Though still lacking
their mutually reinforcing activities in the structural coordination, personal contacts
field, have tended to diverge considerably between actors on the ground – such as
when it comes to the development of a the EU Special Representative, the
strategic vision for SSR. The Commission Commission Delegation, and the Heads of
takes a longer-term view of the situation, Mission – have filled an operational gap.
focusing on good governance and This has enhanced mutual support
transparency, while the Council is more between the crisis management
concerned with short-term capabilities of the Council and the
accomplishments, being operationally reconstruction capacities of the
driven by the need for immediate Commission.498
stabilization.493 Each rely on their own
analyses produced by different sources Despite these internal difficulties, positive
and thus lack a common ―situational developments have been seen as a result
awareness,‖494 which clearly has a of EU efforts. In defense reform, rather
negative impact on the development of a than limiting its engagement to training
and equipping, the EU has identified the
major weaknesses of the FARDC and has
489 Weiler, ‗Laggard in Reality?,‘ 21.
490 Hendrickson and Kasongo, ‗Strategic Issues,‘ 9.
developed schemes to address them 499 –
491 Hoebeke, Carette, and Vlassenroot, ‗EU Support,‘
11.
492 International Crisis Group, ‗SSR in the Congo,‘ 495 Ibid. 10.
19. 496 Clément, ‗Forward to the Past,‘ 104.
493 Hoebeke, Carette, and Vlassenroot, ‗EU Support,‘ 497 Katorobo, ‗Democratic Institution Building,‘ 13.
14. 498 Weiler, ‗Laggard in Reality?,‘ 14.
494 Ibid. 14. 499 Clément, ‗Forward to the Past,‘ 109.
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noteworthy for being the first ―at which considerable strides to remedy this in the
police reform in the DRC was discussed area of defense reform. EUSEC DR Congo
publicly outside of the police broadened its framework document for
organization.‖507 It had a noticeable effect SSR in 2006 to include a cooperation
given that ―civil society representatives strategy at the international level,
were [subsequently] invited to become focusing on developing closer working ties
permanent participants in the process.‖508 with other international actors so as to
improve coordination. The mission has
The EU has thus made notable progress been able to assume a strategic position
in tackling the challenges facing SSR in the reform process that enables it to
efforts in the DRC. Through its EUSEC enhance donor harmonization and its
and EUPOL missions it has enhanced routine involvement in the meetings of the
coordination in the field at both the various international and domestic actors
national and international level. It has has made it perhaps ―the best informed
begun to deal with its internal problems security sector reform institution‖ in the
regarding inter-institutional cooperation DRC.509 The mission has employed this
and coherency. It has also taken context- advantage at the national level by
specific measures to address the needs of regularly liaising with the competent DRC
the DRC, thus moving beyond more authorities, which has allowed for the
traditional – and largely ineffective – development of increased coherency
approaches to SSR. In the case of the among the various domestic institutions
DRC, therefore, it seems that the EU is involved. The impact of these
taking steps in the right direction coordination efforts has been noticeable.
regarding SSR policy. Indeed, it has been reported that prior to
EUSEC DR Congo‘s arrival international
Conclusion actors were unable to coordinate
effectively with the DRC institutions
Reforming the security sector in responsible for defense reform.510 The EU
transitional societies is a formidable task, has thus stepped into an important
particularly in post-conflict settings. The coordinating role in DRC defense reform.
process is not immune from a range of It has also made progress in dealing with
pitfalls, including ineffective coordination, its own issue of internal coherency. The
superficial reforms, and lack of local differing competencies of the Council and
ownership. All these obstacles have the Commission, tension between
confronted SSR efforts in the DRC and member states, and lack of a unified
the persistence of the EU has allowed it to strategic vision have hampered the
make headway on addressing these development of a coherent SSR policy. In
issues. the case of the DRC, the EU has begun to
tackle this issue via ad hoc measures.
The EU has taken steps to streamline the While no structural coordination such as
various efforts of the numerous SSR that which exists in Brussels has been
actors in the DRC, at both the national achieved, the development of personal
and international level. The number of contacts between various Council and
international actors involved and the Commission representatives has at least
accompanying problems of coordination improved the dialogue between the two
has been a severe weakness for the SSR bodies. Not as much can be said though
process, given that it affords DRC for the prospect of merging the two ESDP
authorities the opportunity to exploit missions into one SSR-driven mission –
differences among the actors for their own political disagreements between member
purposes, and the EU has made
509 International Crisis Group, ‗SSR in the Congo,‘
507 Ibid. 4-12. 20.
508 Ibid. 12. 510 Ibid. 19.
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On the issue of superficial reform It has also been more active than others
approaches, the EU has become a driving in supporting local ownership of the SSR
force in the DRC for moving SSR beyond a process. Those who prefer to engage with
traditional training and equipment the DRC authorities on the bilateral level
approach that focuses narrowly on the tend to push their own interests while
operational aspects of the security sector ignoring those of the DRC.515 The EU,
and has little impact on underlying perhaps because it operates at the
structural concerns. The DRC multilateral level, has taken steps to
government has been fairly reluctant to bolster local ownership and civilian
implement the structural components of participation, most evidently in police
SSR, such as oversight and command reform. It sought to make the GMRRR
mechanisms, which has been all the more transparent and advocated for the
easier to avoid given that many donors involvement of civil society. The
prefer bilateral dealings that center on the Commission provided the financial
provision of training and equipment. The support to convene an unprecedented
main advocate of structural reform in the national seminar on police reform, which
DRC has been the EU,512 most noticeably initiated the participation of civil society
in defense reform. The Commission‘s in the process. The EU has thus set a
‗flanking measures‘ target the basic needs precedent for engaging civilians and
of soldiers and their families; EUSEC DR promoting local ownership of SSR in the
Congo has taken on the issues of DRC.
oversight and command through its
‗chain of payments‘ project, biometric To be sure, much work remains to be
census, and operational audit; and the done to effectively reform the security
mission‘s advisors, rather than simply sector in the DRC and there is a great
provide external support, have been deal of room for the EU to improve as an
embedded in the FARDC administration SSR actor. Donor harmonization is still
to monitor and drive the process from far from smooth, oversight continues to
within. This does not mean that the EU be a major obstacle in defense reform,
has not engaged in the traditional local ownership needs to be further
approach. The IPU, which the EU trained strengthened, and the EU‘s internal
and equipped, had the explicit objective of coordination and coherency in SSR policy
safeguarding transitional government remains wanting. Yet it must be noted
officials prior to the elections rather than that the EU is undergoing a capacity
protecting ordinary civilians.513 In the building process of its own in the DRC. It
run-up to the elections the security of the is a relatively young transitional justice
electoral process was made the priority. actor and is still gaining the know-how
Though necessary to support democratic and experience needed in foreign
governance in the DRC, the overwhelming missions. That said, the EU has indeed
emphasis placed on operational measures been making progress on addressing the
such as forming crowd control units issues facing SSR in the DRC and the
benefits this brings to the process should
not go unnoticed.
511 Weiler, ‗Laggard in Reality?,‘ 18.
512 Hans Hoebeke, Henri Boshoff and Koen
Vlassenroot, ‗Assessing Security Sector Reform and
its Impact on the Kivu Provinces,‘ Institute for
Security Studies, Situation Report (2008) 4. 514 UK Presidency, ‗Developing a common,‘ 5.
513 Pauwels, ‗EUPOL ‗Kinshasa‘‘. 515 Clément, ‗Forward to the Past,‘ 103.
Page 165
Bibliography
Documents and Reports
Bendix, Daniel and Ruth Stanley, ‗Security Sector Reform in Africa: The Promise and the
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Congo,‘ Initiative for Peacebuilding (2009).
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peacemaking in the DRC,‘ Initiative for Peacebuilding (2009).
Davis, Laura, ‗The European Union and Transitional Justice,‘ Initiative for Peacebuilding
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EU Council Secretariat, ‗EU Mission to provide advice and assistance for security sector
reform in the Democratic Republic of Congo (EUSEC DR CONGO),‘ EUSEC RDC/08
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EU Council Secretariat, ‗EU Police Mission for the DRC (EUPOL RD Congo),‘ EUPOL
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4 (2009).
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and its Impact on the Kivu Provinces,‘ Institute for Security Studies, Situation Report
(2008).
Hoebeke, Hans, Stéphanie Carette and Koen Vlassenroot, ‗EU Support to the Democratic
Republic of Congo,‘ Centre D‘Analyse Stratégique (2007).
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Edited works
Clément, Caty, ‗Security Sector Reform in the DRC: Forward to the Past,‘ Security Sector
Reform in Challenging Environments, eds. Hans Born and Albrecht Schnabel, Münster:
LIT, 2009.
Hänggi, Heiner, ‗Conceptualising Security Sector Reform and Reconstruction,‘ Reform
and Reconstruction of the Security Sector, eds. Alan Brydan and Heiner Hänngi, Münster:
LIT, 2004.
Journals
Ferguson, Chris, ‗Police Reform, Peacekeeping and SSR: The Need for Closer Synthesis,‘
Journal of Security Sector Management 2.3 (2004), 1-13.
Pauwels, Natalie, ‗EUPOL ‗Kinshasa‘: testing EU co-ordination, coherence and
commitment to Africa,‘ European Security Review 25 (2005), 1-3.
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