Justice and Reconciliation in Bosnia-Herzegovina:Analysis of Past Efforts to Restore Peace and Hope for the Future

Alicia TutiniPHIL 470: Independent Study

13 May 2015

Introduction

The war in Bosnia-Herzegovina ravaged the country and the people

within, rendering the nation ethnically divided and reluctant to reconcile. Nearly

two decades after the implementation of the Dayton Peace Agreement, Bosnia-

Herzegovina struggles to establish itself as a country recovered from war, still

battling extreme ethnic politics and polarization in all areas of society. This paper

strives to illustrate a fraction of the complex picture of Bosnia-Herzegovina’s

journey towards justice and reconciliation. The time frame covered in this paper

spans from the early 1990’s to 2014, with a concentration on events in the wake

of international intervention, particularly the Dayton Peace Agreement (DPA).

First, historical context will be provided, briefly describing the 1992-1995 war

and what spurred the eventual intervention from international actors. Second, an

analysis of the Dayton Peace Agreement will be presented. Following the details

of the DPA, the focus of the paper will shift to efforts towards justice in the

country, specifically the International Criminal Tribunal for the Former

Yugoslavia (ICTY). After examining the strengths and shortcomings of the ICTY,

an explanation of societal problems, particularly within the Bosnian government,

will provide context for further measures of justice and reconciliation. Finally,

this paper presents an argument for a truth commission as a possible method of

achieving an impartial assessment of the past to progress Bosnia and

Herzegovina’s long journey towards reconciliation and forgiveness.

Historical ContextEthnic Tensions Lead to War

The ethnic groups within the region share a deep and entangled history,

reaching back many centuries. Ample literature dissecting the region’s complex

history provides credible reports on the subject matter, and this paper will not

attempt to repeat their analysis.1 The events and tensions presented in this paper

will pertain only to the most recent war, specifically events that spurred

international intervention through the Dayton Peace Agreement and the

International Criminal Tribunal for the former Yugoslavia. However, it is worth

noting that the war from 1992-1995 is not an isolated event within the region;

periods of conflict have erupted many times as tensions between the ethnic groups

boil over.2 It has been argued that these violent outbreaks are unavoidable in

Bosnia-Herzegovina. By peering into the periodic conflicts, analysts contend that

Bosnia-Herzegovina endures only because its peoples have never truly been free

to choose their own destiny.3

Bosnia-Herzegovina is a relatively new state, emerging from the breakup

of Yugoslavia in the beginning of the 1990’s. Within only a couple decades, the

country has undergone drastic changes, politically and socially. Prior to the

breakup, Bosnia-Herzegovina constituted one of the six Republics of the Socialist

Federative Republic of Yugoslavia, functioning as a communist socialist

dictatorship under Josip Tito. The Communist Party propagated the slogan 1 Robert D. Kaplan, Balkan Ghosts: A Journey Through History, (London: Picador, 2005). 2 Steven L. Burg and Paul S. Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention (New York: M.E. Sharpe, Inc., 1999), pp. 16-613 Steven L. Burg and Paul S. Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention (New York: M.E. Sharpe, Inc., 1999), pp. 20

“Brotherhood & Unity” amongst the republics, a sentiment especially strong

within Bosnia-Herzegovina: a poll conducted before the 1990 elections showed

that 74% of the population in Bosnia-Herzegovina favored the banning of

nationalist parties.4 The signs of economic and social deterioration of Yugoslavia

seeped into political rhetoric, fuelling ethno-nationalism and resulting in the

dissolution of the federation. This presented several questions to be addressed,

namely the issue of rights – should they be vested in individuals or collective

groups? – and determining who would have control over the state and the rights

within – who has the right to claim titular status?5 Finally, there is the issue of

whether a separate state of Bosnia-Herzegovina should exist at all. In the wake of

Yugoslavian disintegration, generally, within Bosnia-Herzegovina, Bosniaks and

Croatians favored secession, while the Serb population wished to remain

connected to its “parent state,” Serbia.6 The struggle for identity and power fuels

the animosity of the ethnic groups. “The essence of ethnic conflict is the struggle

between mobilized identity groups for greater power – whether it be for equality

within an existing state, or the establishment of a fully independent national

state.”7

Ethnicity in the 1992-1995 Conflict

4 Timo Kivimaki, Marina Kramer, and Paul Pasch, “The Dynamics of Conflict in the Multi-ethnic State of Bosnia and Herzegovina” Friedrich-Ebert-Stiftung (2012), pp. 165 Steven L. Burg and Paul S. Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention (New York: M.E. Sharpe, Inc., 1999) pp. 56 Timo Kivimaki, Marina Kramer, and Paul Pasch, “The Dynamics of Conflict in the Multi-ethnic State of Bosnia and Herzegovina” Friedrich-Ebert-Stiftung (2012), pp. 167 Steven L. Burg and Paul S. Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention (New York: M.E. Sharpe, Inc., 1999) pp. 4

The conflict was characterized by extreme nationalism and brutal

violence. Powerful political figures encouraged and invigorated the ethnic

divisions, namely Republic of Serbia President, Slobodan Milosevic, and

Republic of Croatia President, Franjo Tudman. Both leaders utilized nationalism

rhetoric to embolden their respective groups to support partition of the region

along ethnic lines. During the conflict, all groups committed war crimes, but

Bosniaks suffered the majority of casualties, which “further strengthened the

Bosniak sense of ownership of the unity of the country, as partition is now

associated with the atrocity of violent ethnic cleansing.”8

Events Leading to Dayton

Initially, the international community brushed off the conflict as a civil

war where all parties were considered warring factions, equally responsible for

the war. U.S. Secretary of State, James Baker, aptly specified the stance of the

international community when he said, “We don’t have a dog in this fight.”9 With

arguments from scholars and historians claiming that ancient hatreds caused the

war, and consequently that outside efforts would prove entirely futile, the

international community refused to intervene. Opinions changed after a series of

events which diplomat, Richard Holbrooke, deemed “the brutal stupidity of the

Bosnian Serbs.”10 The United Nations dispatched troops – UN Protective Force –

to the area to act as impartial peacekeepers. To deflect a military response from

the international community, in May 1995, Bosnian Serbs took hostage several

8 Timo Kivimaki, Marina Kramer, and Paul Pasch, “The Dynamics of Conflict in the Multi-ethnic State of Bosnia and Herzegovina” Friedrich-Ebert-Stiftung (2012), pp. 169 As quoted in “Back to Bosnia: Charlemagne” in The Economist, 2005.10 Richard Holbrooke, To End a War (New York: Random House, 1998), 23.

hundred of the peacekeepers as collateral, conveying the impotence of the

international community. Additionally, the July 1995, massacre of 8,000 Muslim

men and boys within Srebrenica, indicated that the Bosnian Serbs were the

primary aggressors of war crimes. The massacre was extensively broadcasted,

horrifying the world. These events illustrated to the international community,

particularly the United States, the pressing need for a peace agreement.11

Dayton Peace AgreementAnalysis of Dayton Peace Agreement

The ultimate agreement negotiating persistent peace for the region

emerged from Dayton, Ohio, in December 1995. The negotiations at Wright-

Patterson Air Force Base ended the nearly four-year war that ravaged Bosnia and

Herzegovina. The main participants from the region were President of the Federal

Republic of Yugoslavia Slobodan Milosevic, President of Croatia Franjo Tudman,

and President of Bosnia and Herzegovina Alija Izetbegovic, accompanied by his

Foreign Minister. The importance of the peace agreement cannot be understated –

beginning with the fact that all parties signed the document, an arrangement that

not a single one of them liked.12,13 Previous years of negotiations had gained no

traction, as cease-fires were ignored and violence continued. Thus the cessation of

ethnic cleansing is a notable success of the peace agreement, as a fundamental

11 Adriana Camisar, Boris Diechtiareff, Bartol Letica, and Christine Switzer, “An Analysis of the Dayton Negotiations and Peace Accords” (The Fletcher School of Law and Diplomacy, 2005), pp. 5-612 Steven L. Burg and Paul S. Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention (New York: M.E. Sharpe, Inc., 1999), pp. 317-38713 Adriana Camisar, Boris Diechtiareff, Bartol Letica, and Christine Switzer, “An Analysis of the Dayton Negotiations and Peace Accords” (The Fletcher School of Law and Diplomacy, 2005), pp. 11

purpose of the agreement, as stated by President Clinton, was “to give all the

people of Bosnia a much greater stake in peace than war, so that peace takes on a

life and a logic of its own.”14 The signatures were attained largely due to pressure

from the international community, and particularly the United States, who utilized

Richard Holbrooke as negotiator to press the parties to sign. This negotiation

process marked the first time the United States took charge, utilizing intense

diplomacy and the threat of force to enact “a new era in Balkan Diplomacy.”15 As

detailed in “An Analysis of the Dayton Negotiations and Peace Accords,”

Holbrooke faced an immense challenge in heading negotiations: he was tasked

with ending the war, safely withdrawing the UN peacekeepers, and finding an

acceptable division of territory that would not lead to partition or further conflict.

Moreover, psychological barriers further complicated negotiations as parties

displayed extremely low levels of trust for each other. Finally, the road to peace

was obstructed by an obvious stalemate, as all parties felt they were unfairly

targeted to accept unwanted compromise.16,17 The pressure to end violence

resulted in a complicated system, saturated with concessions that purportedly

symbolize compromise amongst the three ethnic parties, but in reality were hardly

14 William J. Clinton, “Address to the Nation on Implementation of the Peace Agreement in Bosnia-Herzegovina,” 27 November 1995. In Public Papers of the Presidents, William Jefferson Clinton, vol. 2 (Washington, D.C.: Government Printing Office, 1996). 15 Adriana Camisar, Boris Diechtiareff, Bartol Letica, and Christine Switzer, “An Analysis of the Dayton Negotiations and Peace Accords” (The Fletcher School of Law and Diplomacy, 2005), pp. 616 Adriana Camisar, Boris Diechtiareff, Bartol Letica, and Christine Switzer, “An Analysis of the Dayton Negotiations and Peace Accords” (The Fletcher School of Law and Diplomacy, 2005), pp. 16-1717 Steven L. Burg and Paul S. Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention (New York: M.E. Sharpe, Inc., 1999), pp. 317-387

accepted willingly.18,19 The seemingly obscure location was selected purposefully;

mediators wanted to remove the parties from their comfort zone, as previous

attempts to establish permanent peace were disastrous. In addition to the primary

aim of ending the war, the Dayton Peace Agreement provided guidelines for the

reconstruction of a war-torn society. Scholarly proponents of the agreement argue

that it dictated positive standards for a society looking to rebuild through

“peaceful conflict resolution, protection of human rights and minority rights,

equality, political representation, good governance and the rule of law.”20

Academic and diplomatic criticisms of the Dayton Peace Agreement

vastly outnumber its praises.21,22 Fundamentally, those who condemn the

agreement believe that rather than solving Bosnia’s problems, it sustained them

by cementing the ethnic divides in a constitution.23 The DPA split the nation into

two entities, and the population dynamics of the two entities reflects ethnicity, as

visualized by Graph A.

18 Steven L. Burg and Paul S. Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention (New York: M.E. Sharpe, Inc., 1999), pp. 317-38719 Adriana Camisar, Boris Diechtiareff, Bartol Letica, and Christine Switzer, “An Analysis of the Dayton Negotiations and Peace Accords” (The Fletcher School of Law and Diplomacy, 2005), pp. 14-1820 Hasan Korkut and Muhidin Mulalic, “Implications of Dayton Peace Agreement on Current Political Issues in Bosnia-Herzegovina” SDU Faculty of Arts and Sciences Journal of Social Sciences, (2014), pp. 11021 Kori Schake, “The Dayton Peace Accords: Success or Failure?” Studies in Contemporary History and Security Policy, Vol. 3 (1999), pp. 288-29322 Patrice C. McMahon and Jon Western, “The Death of Dayton: How to Stop Bosnia from Falling Apart” Council on Foreign Affairs (September/October 2009).23 Kori Schake, “The Dayton Peace Accords: Success or Failure?” Studies in Contemporary History and Security Policy, Vol. 3 (1999), pp. 288

Recalling that the Bosniak attitude generally embraced a unified nation, as

partition became associated with ethnic cleansing, it can be deduced that dividing

the country along the newly forced ethnic lines gave Bosniaks the impression that

the Bosnian Serbs were being rewarded for their perpetration of ethnic

cleansing.24 This is perhaps the sharpest criticism of the DPA, as analysts argue

that it actually compensated those who committed ethnic cleansing, legitimizing

the results of the practice by enforcing borders that echo its effects.25,26,27

Critiques of the Dayton Accords frequently express a tone of frustration,

as it is strongly possible that codifying the three ethnic groups “may have been

24 Hasan Korkut and Muhidin Mulalic, “Implications of Dayton Peace Agreement on Current Political Issues in Bosnia-Herzegovina” SDU Faculty of Arts and Sciences Journal of Social Sciences, (2014), pp. 112.25 Hasan Korkut and Muhidin Mulalic, “Implications of Dayton Peace Agreement on Current Political Issues in Bosnia-Herzegovina” SDU Faculty of Arts and Sciences Journal of Social Sciences, (2014), pp. 112-113.26 Kori Schake, “The Dayton Peace Accords: Success or Failure?” Studies in Contemporary History and Security Policy, Vol. 3 (1999), pp. 288-289.27 Gerald Toal, “’Without Brussels there can be no Bosnia-Herzegovina?’ Managing BIH’s Geopolitical Challenges” in “The Tenth Anniversary of the Dayton Accords and Afterwards: Reflections on Post-Conflict State- and Nation-Building” ed. Nida Gelazis. (The Woodrow Wilson International Center for Scholars, 2005), pp. 33.

necessary to gain agreement.”28,29 Given the express purpose of ending violence,

the agreement was effective: the brutal ethnic cleansing that occurred during the

conflict ceased. But the pressure to end the bloodshed did not address the

underlying problems that caused the war, namely the conflicting goals of the

ethnic groups. The history of Bosnia-Herzegovina is saturated with territorial

disputes; the conflict after the collapse of Yugoslavia is another instance of

disagreements over how the region should be divvied up.30 Constitutionalizing the

three ethnic groups added electoral competition to the animosity, making the

agreement

tailor-make for those who wish to stoke ethnic antagonisms for political gain. These ethnic chauvinists…preach to their respective constituencies and pledge to ‘protect’ their groups. This, in turn, weakens moderates who advocate greater national unity and civic, rather than ethnic, identities.31

The DPA sustained ethnic identification, codifying and thus perpetuating the

problems that spurred war in the first place. The persistent and reinforced ethnic

identity split all levels of society, allowing divisive politics to reign in place of

national unity. But even this claim conveys a deeper problem: is the idea of

national unity an idealistic projection of a cohesive and successful society? The

region has an extensive history of animosity, and the most recent war antagonized

this into full-fledged hatred and complete distrust. Dividing the country along

28 Kori Schake, “The Dayton Peace Accords: Success or Failure?” Studies in Contemporary History and Security Policy, Vol. 3 (1999), pp. 28929 “The Tenth Anniversary of the Dayton Accords and Afterwards: Reflections on Post-Conflict State- and Nation-Building” ed. Nida Gelazis. (The Woodrow Wilson International Center for Scholars, 2005).30 Steven L. Burg and Paul S. Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention (New York: M.E. Sharpe, Inc., 1999), pp. 16-6131 Patrice C. McMahon and Jon Western, “The Death of Dayton: How to Stop Bosnia from Falling Apart” Council on Foreign Affairs (September/October 2009).

ethnic lines, while maintaining the notion of a unified state, conveys the hope that

the country would reconcile its differences, but still recognizing that such a goal

could not be attained.

Resultant State

The state created by the Dayton Peace Agreement is massively

complicated,32 though its complexity is arguably merely a byproduct of its

comprehensive approach to securing a solution. The government can be illustrated

in layers, five in total. The state of Bosnia-Herzegovina is comprised of two

entities: the Federation of Bosnia and Herzegovina (mostly Bosniaks and Croats),

and Republika Srpska (mostly Serbs). Each entity composes roughly half of the

state’s territory, and each is considered autonomous, able to carry on parallel

relationships with other nations. As each entity is essentially self-governing, both

have promulgated their own constitutions, which enforce different administrative

and political systems.33 To clarify, here is a sketch of the entity structures: within

the Federation, the entity is apportioned into 10 cantons and 74 municipalities.

The cantons are granted their own substantial amount of autonomy, and are

allowed to adopt laws so long as they do not contradict laws at the entity level.

The legislature within the Federation includes a House of People and a House of

Representatives, as well as an executive branch with a President, vice-president,

and necessary ministries. Within Republika Srpska, there are 63 municipalities,

with no intermediary between the entity and municipalities. The legislature within

32 The Dayton Peace Accords, U.S. Department of State, Washington, D.C. 1996. 33 Thierry Domin, “Political System of Bosnia and Herzegovina” SFOR Informer (2001).

Republika Srpska has only a National Assembly, as well as an executive branch

with President, vice-president, and necessary ministries.34

Shared institutions in the executive branch are the tri-partite Presidency

and Council of Ministers, within the parliamentary legislative branch are the

House of Representatives (42 members directly elected from the entity), and the

House of Peoples (15 members selected by the Parliamentary Assemblies) within

the respective entities. State-level power was purposefully limited, in charge of

military, diplomatic, and foreign affairs, as well as the budget of state-level

institutions.35 At the top of the governmental pyramid is the Office of the High

Representative, a structure created by the DPA. The primary and strongest

purpose of the High Representative is to ensure civilian peace implementation,

and can do so by removing government officials who obstruct reform. The High

Representative has made many efforts to dismiss obstructionist politicians, but its

influence has diminished as the office has become characterized as undemocratic,

skirting around the process of allowing the public to select who remains in

office.36

The state created by the Dayton Peace Agreement was well intended, but

shortsighted. The thorny government and distrustful constituencies sustained

conveys that,

after all, the Dayton agreement did not create a workable state, but instead ended the war by creating a system of lots of checks and little balance, in

34 Thierry Domin, “Political System of Bosnia and Herzegovina” SFOR Informer (2001). 35 Thierry Domin, “Political System of Bosnia and Herzegovina” SFOR Informer (2001). 36 Roland Kostic, “Ambivalent Peace: External Peacebuilding Threatened Identity and Reconciliation in Bosnia and Herzegovina” (Department of Peace and Conflict Research: Uppsala University, issue 78, 2007), pp. 192.

which anyone can black any proposal, thereby creating an institutional structure that could accomplish nothing.37

Ending the ruthless violence was the primary purpose of the agreement, and

formatting a complicated state may have been a consequence of this goal. But, as

the country continues to wallow in ethnic animosity and struggles to overcome its

differences, the notion that peace is more than the absence of war appears quite

apt.

International Criminal Tribunal for the Former Yugoslavia

The ICTY was created in 1993 by the U.N. Security Council as a response

to the atrocities perpetrated in the former Yugoslavia. The incremental process to

establish the ad hoc tribunal commenced in the wake of widespread media

coverage of the atrocities perpetrated in the area, and the repeated failures to

ascertain a peace agreement.38 The Security Council passed a number of

resolutions, both affirming its abhorrence of the atrocities and to institute a

“competent, independent, and impartial” court to address serious violations of

international law. For the sake of brevity, only two of the many resolutions will be

addressed here. The Security Council passed Resolution 808 early in 1993, stating

its determination to end the crime of ethnic cleansing and other violations of

international humanitarian law.39 To address the violations, the Security Council

decided that an international tribunal should be established for the prosecution of

37 Robert Hayden in “The Tenth Anniversary of the Dayton Accords and Afterwards: Reflections on Post-Conflict State- and Nation-Building” ed. Nida Gelazis. (The Woodrow Wilson International Center for Scholars, 2005), pp. 16 38 Virginia Morris and Michael Scharf, An Insider’s Guide to The International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis (New York: Transnational Publishers, 1995), pp. 17-3539 U.N Security Council Resolution 808 (February 1993).

individuals responsible for serious violations of international law committed in

former Yugoslavia since 1991 – later known as the International Criminal

Tribunal for the former Yugoslavia. The resolution requested that the Security-

General submit a report detailing the specifics of the tribunal, including its legal

foundation. This report was unanimously adopted, without revision, in Resolution

827. The resolution determined that the atrocities continuing in the former

Yugoslavia, particularly Bosnia-Herzegovina, constituted a threat to international

peace and security, and that an international tribunal that prosecuted the

responsible individuals would address the violations of law.40 Under Chapter VII

of the U.N. Charter, the Security Council is authorized to maintain international

peace and security, allowing the body to “determine the existence of any threat to

peace, breach of the peace, or act of aggression.”41 The tribunal’s legal basis

stemmed from international conventions, customary law, and laws of war – in

particular the Nuremberg Charter, the 1949 Geneva Conventions, and the

Genocide Conventions.42 Drawing from the Nuremberg Charter, the Security

Council confirmed jurisdiction with respect to war crimes, including murder and

ill-treatment of civilian population, plundering public or private property, and

devastation not justified by military necessity.43 From the 1949 Geneva

Conventions, the Security Council affirmed jurisdiction with respect to grave

40 U.N. Security Council Resolution 827 (May 1993).41 United Nations, Charter of the United Nations (October 1945). 42 Virginia Morris and Michael Scharf, An Insider’s Guide to The International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis (New York: Transnational Publishers, 1995), pp. 61-8843 Virginia Morris and Michael Scharf, An Insider’s Guide to The International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis (New York: Transnational Publishers, 1995), pp. 374

breaches of the convention, including torture or inhumane treatment, unlawful

deportation or transfer or unlawful confinement of a civilian, and taking civilians

as hostages.44 From the Genocide Convention, the Security Council asserted

jurisdiction with respect to genocidal acts

committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such, namely: killing members of the group, causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.45

With the signatures of Security Council members, the first truly international war

crimes court became a reality.

Achievements of the ICTY

The tribunal was formed for the purpose of establishing individual

criminal responsibility, contributing to the ongoing international efforts to end

leadership impunity in the wake of war. Like any judicial process, the purpose is

to establish criminal responsibility according to the fixed definitions of crimes

and rules of procedure. Permissible information must pertain strictly to

identifying the defendant as responsible for criminal actions, where responsibility

is defined, broadly speaking, as either direct commission of a crime or as a responsibility that ensues on the basis of a person’s failure to prevent or punish crimes by others which he or she knew or should have known about.46

44 Virginia Morris and Michael Scharf, An Insider’s Guide to The International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis (New York: Transnational Publishers, 1995), pp. 371.45 Virginia Morris and Michael Scharf, An Insider’s Guide to The International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis (New York: Transnational Publishers, 1995), pp. 377.46 Jelena Pejic, “The Yugoslav Truth and Reconciliation Commission: A Shaky Start” Fordham International Law Journal, vol. 25 issue 1 (2001), pp. 3.

The purpose of the international tribunal focused on holding leaders accountable,

affirming the notion that impunity is not an option, regardless of authority. As

noted by the ICTY, indictments were issued for heads of state, prime ministers,

army chiefs-of-staff, and government ministers, conveying to other possible

offenders that positions of leadership are not immune to criminal accountability.

Holding authority figures responsible for the criminal behavior in an international

court has a ripple effect, as it brings justice to the victims of atrocities, portraying

to the community that the violence was brutally criminal and not to be tolerated.

The process of convicting defendants requires irrefutable evidence, including the

testimonies of victims – hundreds of stories retracing horrific experiences of

torture, sexual assault, forced displacement, and witnessing murder. “People of all

walks of life – farmers, doctors, housewives, local politicians, mechanics,

students, school children, and many others” recounted their traumatic experience

within the impartial environment.47 Confirming beyond a reasonable doubt the

crucial facts directly related to crimes committed in the former Yugoslavia

provides both the local region and the international community with a reputable,

albeit inconclusive, truth. “The Tribunal’s judgments have contributed to creating

a historical record, combatting denial and preventing attempts at revisionism and

providing the basis for future transitional justice initiatives in the region.”48

The initial establishment of the tribunal, as expressed by the Security

Council, contributed to the credibility of international bodies to enforce peace by

making

47 United Nations, “Tribunal’s Achievements” http://www.icty.org/sid/32448 United Nations, “Tribunal’s Achievements” http://www.icty.org/sid/324

it possible to bring to justice the persons responsible for “ethnic cleansing” and other violations of international humanitarian law and would thereby contribute to the restoration and maintenance of international peace and security. The effective prosecution of such persons by a neutral international body would deter further atrocities and break the cycle of violence and retribution by providing a credible threat of punishment.49

Additionally, the effective implementation of the ICTY allowed for systematic

development of international humanitarian law. The first truly international war

crimes tribunal, and the first tribunal established under Chapter VII of the U.N.

Charter, the ICTY greatly contributed to the evolution of international justice. As

detailed by the Tribunal, notable developments include

Identifying a general prohibition of torture in international law which cannot be derogated from by a treaty, internal law or otherwise; Specifying crucial elements of the crime of genocide, in particular the definition of the target of this crime; Significant advances in international humanitarian law pertaining to the legal treatment and punishment of sexual violence in wartime; Determining that enslavement and persecution constitute crimes against humanity; Applying and strengthening the doctrine of command responsibility, removing uncertainty about the level of knowledge to be expected from a superior whose subordinates were about to commit crimes or actually committed them; Contributing to procedural law in areas of protective measures for witnesses.50

Since the formation of the ICTY, a number of other ad hoc courts have been

successfully created, proving that “efficient and transparent international justice is

viable.”51 And finally, the ICTY encouraged judiciaries within the former

Yugoslavia to reform and to take ownership of prosecuting those responsible. The

Tribunal initiated a so-called Rules of the Road system, through which the ICTY

Prosecution reviewed over 900 investigations files from prosecutions offices in

49 Virginia Morris and Michael Scharf, An Insider’s Guide to The International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis (New York: Transnational Publishers, 1995), pp. 4450 United Nations, “Tribunal’s Achievements” http://www.icty.org/sid/32451 United Nations, “Tribunal’s Achievements” http://www.icty.org/sid/324

Bosnia-Herzegovina to verify their soundness, thereby preventing the likelihood

of arbitrary arrests.52

Weaknesses of the ICTY

While the ICTY has been praised as an advancement of international law,

its internal influences on Bosnian society are not so profound. Turning back to the

early stages of the Tribunal, it began staggeringly slow, as the lack of co-

operation from the states of the former Yugoslavia, particularly in providing

evidence and delivering those indicted, persisted.53 A fascinating tension emerges

through criticisms of the Tribunal, as they directly reflect and refute the

achievements claimed by the ICTY. Generally, the ICTY is not popular, is

regarded as anti-Serb by the Bosnian Serb population, while criticized as not

prosecuting enough Serbs by the Bosniak population.54 The perceptions of the

ICTY mean that public acceptance of the ‘truth’ established by the tribunal is

rather dubious. Additionally, judicial bodies have many guidelines and

limitations, which allows for a tribunal to maintain a sharp focus, but also

restrains the tribunal to prosecuting only those with substantial evidence

supporting their involvement.55 And, as the purpose of the Tribunal is to establish

individual criminal accountability and convict those responsible, providing a

voice to the victims of crimes is secondary. The victims are welcome to state their

testimony, but it is less to offer them an opportunity for sharing their personal

52 United Nations, “Tribunal’s Achievements” http://www.icty.org/sid/32453 Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (New Jersey: Princeton University Press, 2000), pp 255-26054 Jelena Pejic, “The Yugoslav Truth and Reconciliation Commission: A Shaky Start” Fordham International Law Journal, vol. 25 issue 1 (2001), pp. 3-4.55 Jelena Pejic, “The Yugoslav Truth and Reconciliation Commission: A Shaky Start” Fordham International Law Journal, vol. 25 issue 1 (2001), pp. 3-4.

experience and feelings towards it, and more to determine if that experience

substantiates criminal responsibility. The positive impression purportedly

provided by the Tribunal to victims from the conflict is difficult to digest, as the

ICTY prosecutes only a minimal number of war criminals, leaving tens of

thousands of victims not addressed by the court. Furthermore,

the prolonged implementation date and lack of progress may have provided a false sense of hope resulting in frustration or anger for the victims and their families. It may be more damaging to know there is a court that has the potential to hold perpetrators responsible for the crimes, but is unable to do so. 56

This experience of false hope has been documented with victims of rape and

sexual assault.57 Moreover, Determining the political and moral responsibility of

societal power structures that enabled or allowed the commission of crimes is

outside the scope of a tribunal, as is providing detailed recommendations that aim

to prevent such crimes from being repeated.58

Failure to ReconcileDenying Responsibility

Among the greatest impediments to reconciliation in Bosnia is a continued

denial of suffering, from downplaying the damage to communties to outright

rejections of the atrocities. Milorad Dodik, the President of Republika Srpska, told

a pre-election rally held in Srebrenica in 2010 that,

56 Corene Rathgeber, “Truth and Reconciliation in Bosnia and Herzegovina” M.A. thesis, Katholieke Universiteit Leuven, 2000), pp. 2257 Corene Rathgeber, “Truth and Reconciliation in Bosnia and Herzegovina” M.A. thesis, Katholieke Universiteit Leuven, 2000), pp. 23-2458 Jelena Pejic, “The Yugoslav Truth and Reconciliation Commission: A Shaky Start” Fordham International Law Journal, vol. 25 issue 1 (2001), pp. 3

[u]nborn Serb children cannot be held responsible for something that happened 15 years ago. They cannot and they will not be. And genocide that not take place here. We will not accept claims that what happened here was genocide, because it was not.59

Understanding his comment within context, utilizing the denial of genocide, an

act that the ICTY explicitly determined to have occurred, as a political tool to

garner support during a campaign, serves as an ominous testimony to the state of

ethnic reconciliation. Legislative efforts to criminalize genocide denial have been

squandered; opponents, primarily members of the Serb political party, dispute the

necessity of such a law. The president of the political party argued that such a law

“would cause disagreement and even animosity.”60

Lack of Political Will

There is an obvious need for reconciliation, but the demand lacks; an

absence of political will obscures the possibility of an enduring peace amongst the

constituent groups in Bosnia. This is perhaps the most prevalent form of a failure

to reconcile, as the groups refuse to take ownership of their differences or move

beyond divisive rhetoric, and the government continues to enjoy the political

benefits of a deeply divided constituency.

The Dayton accords have failed in the essential task of creating a political community that takes responsibility for resolving its problems, which is perhaps the most damning evidence that a peace, with a life and a logic of its own, has not been creating in Bosnia-Herzegovina.61

59 Dzenana Halimovic, “Genocide Denial Concern in Bosnia” Institute for War & Peace Reporting (2010).60 Dzenana Halimovic, “Genocide Denial Concern in Bosnia” Institute for War & Peace Reporting (2010).61 Kori Schake, “The Dayton Peace Accords: Success or Failure?” Studies in Contemporary History and Security Policy, Vol. 3 (1999), pp. 291

Sharp criticisms of the absence of political will is a common thread amongst

authors analyzing the Bosnian conflict and subsequent efforts at justice and

reconciliation.62,63 The nonexistence desire to resolve the ethnic divisions

manifested harshly into actual efforts to impede reconciliation – poignantly

exemplified by enforcing “administrative, legal, even physical obstacles” to

refugees/displaced persons returning to their homes.64 The DPA did include

explicit provisions on the return of refugees to their pre-war address:

All refugees and displaced persons have the right freely to return to their homes of origin…The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina.65

However, implementation of returning refugees to their homes is noticeably

lacking, and even obstructed, as areas seek to remain homogeneous.

Frustration is expressed towards the consistent interferences of international

actors, arguing that a relationship of reliance has formed, and the Bosnian people

are not convinced to take responsibility for their problems.

There continues to be an expectation by Bosnians that the international community will resolve their problems, and therefore they themselves do not have to participate…Unless solutions grow indigenously out of the political culture of Bosnia, they are unlikely to be respected by the population once the international community leaves.66

62 Kori Schake, “The Dayton Peace Accords: Success or Failure?” Studies in Contemporary History and Security Policy, Vol. 3 (1999), pp. 29163 Patrice C. McMahon and Jon Western, “The Death of Dayton: How to Stop Bosnia from Falling Apart” Council on Foreign Affairs, September/October 2009.64 Kori Schake, “The Dayton Peace Accords: Success or Failure?” Studies in Contemporary History and Security Policy, Vol. 3 (1999), pp. 28765 The Dayton Peace Accords, U.S. Department of State, Washington, D.C. 1996.66 Kori Schake, “The Dayton Peace Accords: Success or Failure?” Studies in Contemporary History and Security Policy, Vol. 3 (1999), pp. 291

The absence of political will to reconcile is an unpromising sign for reform within

Bosnia-Herzegovina, a problem compounded by the active denial of events that

occurred during the conflict.

Corruption in Bosnia-Herzegovina

Bosnia and Herzegovina is undergoing three great transformations,

moving from wartime to stable peacetime, shifting from a centrally controlled

economy to a free market economy, and changing from a socialist style

government to a democracy.67 These societal swings each lend themselves to

corruption; the combination of these forces compounds its likelihood, a situation

exemplified by Bosnia and Herzegovina. The post-war context remains

characterized, as noted by a 2009 Transparency International report, by the

“politicization of the public sector, complicated power structures and fragmented

administration…converging to create a fertile ground for corruption.”68 That same

year, Bosnia-Herzegovina scored 3.0 on a scale of 0 (highly corrupt) to 10 (highly

clean) in a Transparency International Corruption Perceptions Index, and has only

marginally improved to a 3.9 score in 2014.69 Corruption is rampant in Bosnian

society, affecting all levels of society. This paper will address two forms: political

corruption, and judicial corruption.

Bureaucratic/Political Corruption67 Nedim Kahvedzic & Samir Losic, “Corruption in Bosnia and Herzegovina: Causes, Consequences and Cures” (M.A. thesis, University of Linkoping, 2010) pp. 3068 Marie Chene, “Corruption and Anti-Corruption in Bosnia and Herzegovina” Transparency International (2009). 69 Francesco Bosso, “Bosnia and Herzegovina: Overview of Political Corruption” Transparency International (2014).

The complicated and fragmented government structures and systems, and

the competing ethnic groups heavily enable political corruption. The public sector

is considerably bloated, consistently accounting for over half of the country’s

GDP since the implementation of the Dayton Peace Agreement.70 In the wake of

the conflict, appointments to newly formed administrative institutions were made

according to political allegiances. “Almost every public office…is allotted

according to an ethnic quota, a spoils system that has led to extensive patronage

networks, corruption and inefficiencies.”71 Wages within government are

astronomically high, with members of Parliament (legislature) earning about 10

times more than the average civilian.72 The numerous levels and layers of

government facilitates confusion over competencies, with overlapping legislation

and government structures that “lacks transparency, undermines citizen

accountability, and provides many opportunities for abuse of office and diversion

of public funds.” The public perception of the government is rather dismal,

finding the structures polarized and egocentric: a 2013 Transparency International

Global Corruption Barometer reported that “more than two-thirds of respondents

said that the government is run entirely or to a large extent by a few big entities

acting in their own self-interest.”73

70 Patrice C. McMahon and Jon Western, “The Death of Dayton: How to Stop Bosnia from Falling Apart” Council on Foreign Affairs (2009).71 Patrice C. McMahon and Jon Western, “The Death of Dayton: How to Stop Bosnia from Falling Apart” Council on Foreign Affairs (2009). 72 Ana Baric, “Bosnia Boils Over: An Upheaval Two Decades in the Making” Organized Crime and Corruption Reporting Network (February 2014). 73 Francesco Bosso, “Bosnia and Herzegovina: Overview of Political Corruption” Transparency International (2014).

Political parties also suffer from high amounts of corruption, and thus low

levels of public trust. Findings from the 2013 TI Global Corruption Barometer

report that respondents in Bosnia-Herzegovina “identify politicians as the most

corrupt institutional actors, with a staggering 77 per cent of those interviewed

feeling that politicians are corrupt or very corrupt.”74 As the public sector remains

ethnically divisive, and is among the highest paying employment opportunities,

the individuals attracted to the positions tend to be easily corruptible, and

opportunities for exploitation are frequent. Political party financing and

expenditures remain opaque, and the political elite “entertains close ties with both

criminal and informal economic networks.”75 Furthermore, electoral campaigning

is fraught with divisive rhetoric, and the 2010 elections were characterized as “the

hardest, the harshest, and the most inappropriate to the individual politicians and

political parties…with a range of negative attitudes promoted in the media that are

not part of democratic process.”76 In 2002, the Office of the High Representative

imposed the Law on Conflict of Interest in the Institutions of Government, which

established strict measures to prohibit elected officials, executive office holders

and advisors from carrying out any official action that “would directly affect

private enterprises in which they, or their close relatives, had a financial

interest.”77 The punishment for violations of the law would result in fines and

74 Francesco Bosso, “Bosnia and Herzegovina: Overview of Political Corruption” Transparency International (2014).75 Marie Chene, “Corruption and Anti-Corruption in Bosnia and Herzegovina” Transparency International (2009).76 Hauke Kramm, “Bosnia’s Failure in Creating a Truth Commission – How Institutions and Functions Encourage Post Conflict Countries to Create a Truth Commission” (Universiteit Twente, 2012), pp. 2177 United Nations, “Law on Conflict of Interest in the Institutions of Government” Article 7-9 of UN Convention against Corruption (August 2012).

ineligibility to run for elected office for a four-year period. This legislation was

widely unpopular among ruling politicians who, in a rare display of cross-ethnic

parliamentary consensus, amended the legislation to remove the ineligibility

clause, redefine close relative to only include members of the same household,

and actually increase the monetary limit on contracts for personal services of

public officials.78

Though the Office of the High Representative later amended this

egregious agreement,79 the behavior of government officials displays a poor effort

concerning political reconciliation, undermining crucial aspects towards of a

functioning post-conflict society.

Judiciary in Bosnia-Herzegovina

The judiciary within Bosnia-Herzegovina is another example of the

complex system of governmental institutions implemented by the Dayton Peace

Agreement. At the state level, there are two courts: the Constitutional Court of

Bosnia and Herzegovina, and the Court of Bosnia and Herzegovina. The Court of

Bosnia and Herzegovina has jurisdiction over matters of the state, including

terrorism, war crimes, human trafficking, and organized and economic crimes.

The court has a criminal department, an administrative department, and an

appellate department. The Constitutional Court of Bosnia and Herzegovina has

jurisdiction over constitutional matters, and is tasked with the protection of human

rights and fundamental rights of Bosnian citizens. Within the entity Federation of

78 Francesco Bosso, “Bosnia and Herzegovina: Overview of Political Corruption” Transparency International (2014). 79 United Nations, “Law on Conflict of Interest in the Institutions of Government” Article 7-9 of UN Convention against Corruption (August 2012).

Bosnia-Herzegovina, there are four courts: The Constitutional Court of Federation

of Bosnia and Herzegovina, the Supreme Court of Federation of Bosnia and

Herzegovina, Cantonal Courts, and Municipality Courts. Within the entity

Republika Srpska, there are four courts: The Constitutional Court of Republika

Srpska, the Supreme Court of Republika Srpska, District Courts, and Basic

courts.80,

Judicial Corruption

The judiciary, along with political parties, is perceived to be the most

corrupt institutions and actors within the country, with 65 per cent of households

considering the judiciary to be ‘corrupt’ or ‘extremely corrupt’ in 2013.81 The

sluggish effort or failure to prosecute politically connected individuals or major

criminals conveys to the general public that the judiciary is both ineffective and

untrustworthy. Studies convey that the judiciary struggles to maintain independent

and impartial when confronted of political influence, with a

legacy of control by political parties, ethnic bias, weak professional standards, and corruption. Respect for basic political, civil, and human rights tends to be selective and independent judges have reportedly faced various forms of threats and intimidation.82

Nationalist political parties heavily influence the judiciary, with strong pressure

from the both the executive branch and from local political figures. “Court files

containing letters from politicians about specific cases,” with judges reacting

80 Mirela Rozajac-Zulcic, “A Guide to Legal Research in Bosnia and Herzegovina” Globalex (2014). 81 Francesco Bosso, “Bosnia and Herzegovina: Overview of Political Corruption” Transparency International (2014). 82 Marie Chene, “Corruption and Anti-Corruption in Bosnia and Herzegovina” Transparency International (2009).

accordingly thus rendering the judiciary itself highly politicized.83 During 1998-

2000, the Judicial System Assessment Program found that “the judges were not

independent, did not consider themselves independent and were not treated as

independent by other institutions.”84 Judges responded to powerful influences by

adjourning cases, or stalling the case by calling for more witnesses and

unnecessary expert testimonials.85 As the judiciary is largely an entity

responsibility, progress towards equality before law within Bosnia-Herzegovina is

slow-moving. The lower-level judicial bodies particularly display of weak

professional standards, though the lack of impartiality seeps into all levels of the

judiciary.86 The effect of inconsistent rulings, non-transparent legal processes, and

politicized prosecutions have far-reaching effects in Bosnian society, as citizens

and businesses believe the judiciary and the rule of law enforced to be highly

subjective.87

Judicial Reform

Effort towards reforming the judiciary has seen moderate progress in

attempts to create a more accountability, efficient, and impartial judicial system.

Improvements have been made to increase the sheer number of individuals within

the judiciary, as the country’s courts were experiencing a severe overload of cases

83 Nedim Kahvedzic & Samir Losic, “Corruption in Bosnia and Herzegovina: Causes, Consequences and Cures” (M.A. thesis, University of Linkoping, 2010) pp. 3184 United Nations “Judicial System Assesssment Program” UN Mission in Bosnia and Herzegovina, 2009-2013.85 United Nations “Judicial System Assesssment Program” UN Mission in Bosnia and Herzegovina, 2009-2013. 86 Francine Friedman, Bosnia and Herzegovina: A Polity on the Brink, pp. 64-65. 87 The Human Rights Center and the International Human Rights Law Clinic, “Justice, Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutions” Berkeley Journal of International Law, vol. 18, issue 1, (2000), pp. 3

in the wake of the conflict. According to a 2014 EU “Bosnia and Herzegovina

Progress Report,” each court has enacted a backlog reduction program, and courts

saw a 9% increase in productive from 2012 to 2013.88 Addressing the lack of

professionalism, training is provided by entity Judicial and Prosecutorial Centres,

and all candidates entering the judicial field must pass a newly structured system

of written examinations and interviews, which is “expected to increase the

objectivity and transparency of recruitment, based on merit and qualifications.”89

Politicization of rulings remains a looming problem, however, as political

influences continue to interfere with legal processes, particularly in cases of

corruption and prosecuting war crimes.90

Strengthening the rule of law is a necessary step for an impartial society,

as distrust in its applicability and enforcement convey to the general public and to

businesses that the rulings are easily manipulated. Furthermore, failing to

prosecute war crimes cases that are within the country’s jurisdiction conveys an

unwillingness to punish those responsible for committing crimes during the

conflict, thus illustrating to the public that the rule of law is not neutral, which

could have a detrimental effect on how the public perceives the rulings made at

the ICTY.91

Education and Reform Efforts

88 European Commission, “Bosnia and Herzegovina Progress Report”, (October 2014), pp. 13 89 European Commission, “Bosnia and Herzegovina Progress Report” (October 2014), pp. 1390 European Commission, “Bosnia and Herzegovina Progress Report” (October 2014), pp. 12-1391 European Commission, “Bosnia and Herzegovina Progress Report” (October 2014), pp. 12-13

The structure of the education system within Bosnia was determined in the

Dayton Peace Agreement – in the haste to end the brutal violence, insuring a

stable future through objective and consistent education dropped down the

priority list. Well-intended, but shortsighted, the provisions outlined in the peace

agreement disseminated power to the three constituent groups, including

education. The result is divided institutions: three separate schooling systems

composed of three different curricula.92 Within Republika Srpska, education

remains centralized at the entity level; however, within the Federation of Bosnia-

Herzegovina, authority over education was doled out to local cantonal

governments, resulting in over 50 schools drawn along ethnic lines. Curricula

were to be designed for the ethnicity of the canton’s territory, but for more

heterogeneous areas, the approach became more complicated. The disunion of

curricula has resulted most poignantly in the phenomenon of “two schools under

one roof” in the Federation of Bosnia-Herzegovina, wherein Bosniak and Croat

school authorities have segregated the students and classrooms according to their

ethnic identity.93 Fragmentation of the region that solidified – rather than rectified

– the political and social cleavages provided an educational framework that

encouraged three different curricula, enforcing “separation of ethnicity, culture,

history, instead of aiming to a common identification as Bosnians and

Herzegovinians.”94 The initial purpose of the separation was to temporarily

92 Zlatko Custovic, “Segregation, Education and Nationalism: Two Schools Under One Roof System in Bosnia and Herzegovina” Politheor (October 2014).93 Zlatko Custovic, “Segregation, Education and Nationalism: Two Schools Under One Roof System in Bosnia and Herzegovina” Politheor (October 2014).94 Zlatko Custovic, “Segregation, Education and Nationalism: Two Schools Under One Roof System in Bosnia and Herzegovina” Politheor (October 2014).

encourage refugees and displaced persons to return to their previous addresses

without fear of traumatic encounters.95 However, the gentle reserve to protect the

vulnerable has devolved into political rhetoric, transforming into a tenant of

identification. Valery Perry’s “Reading, Writing and Reconciliation: Education

Reform in Bosnia and Herzegovina” details a particular school that was “divided

into Bosnian Croat and Bosniak sections, separating students by floor, with piles

of chairs and desks serving as barriers in the corridors and separate entrances for

each group.” Today, most of Bosnia’s 2,200 public primary and secondary

schools utilize mono-ethnic curriculums: Serb-dominated schools use textbooks

produced in Serbia, Croat-dominated schools use textbooks from Croatia, and

Bosniak-dominated schools use textbooks developed in Bosnia. In response to

the approach to education, a high school teacher within Bosnia-Herzegovina told

journalists that the system of alienation has produced “a generation of young,

intolerant, ethnically isolated and ethnically overfed pupils who are being used as

weapons of nationalist politicians.”96 A formidably true statement, the tensions

between students have erupted into violence. Students recall games and rallies

where the flag of Croatia was raised, and in response students waved the flag of

the United Islamic Community (representing 1,7000 mosques in Bosnia).

Students called each other Ustase, Croatian Fascist, or Balija, a derogatory term for a Turkish descendant of the Ottoman Empire. They gestured with Sieg Heil salutes and an open hand representing five centuries of Ottoman domination. Fights ensued.97

95 Zlatko Custovic, “Segregation, Education and Nationalism: Two Schools Under One Roof System in Bosnia and Herzegovina” Politheor (October 2014).96 Aida Cerkez-Robinson, “Bosnia’s Schools a Study in Intolerance” Associated Press, 2009. 97 Susan E. Reed, “Bosnia’s Segregated Schools” Boston Globe, May 2014

A considerable factor in continued segregation is a fear of erasure –

families fear that teaching their child in an environment that does not align

completely with their ethnic identification will allow for their culture and history

to be removed from the curriculum, therefore delegitimizing the ethnic group.

Reinforcing this notion is the presence of three separate recognized languages,

which “can easily be exploited by those who want to keep the current, very

segregated educational system by simply stressing the importance for children of

different ethnicities to be taught in ‘their language.” The actual lingual differences

are minimal, but the officially recognized status of the languages provides an

additional symbolic sentiment. As Zlatko Custovic notes in his analysis on

education and nationalism in Bosnia, the languages serve the purpose of

symbolically retaining autonomy through upholding cultural values, political

goals – the existence of three languages belonging to the three groups allows for

individuals to assert loyalty.

Integrating the ethnic groups has proven to be a massive obstacle within

Bosnia-Herzegovina. The “two schools under one roof” program was originally

implemented to protect returning refugees, as well as to assuage the sharp contrast

in historical perspectives. However, overcoming the discrepancies is a rocky

process: academically, textbook reviewers struggle to agree on crucial aspects of

the region’s history. Politically, the Croatian Democratic Union minister in the

Central Bosnia Canton was removed in 2005 for failing to implement laws for

integration. His replacement has opted to continue the obstruction, and she

responded to questions about ‘two schools under one roof’ by stating that the

project “will not be suspended because you can’t mix apples and pears. Apples

with apples and pears with pears.”

Attempts to reform the curricula have been made by the United Nations

Educational, Scientific and Cultural Organization (UNESCO) and the

Organization for Security and Cooperation in Europe: Mission to Bosnia and

Herzegovina (OSCE). Both conclude that education modification is crucial for

successful recovery and actively pursue routes to apply tolerance to teaching. The

progress is slow, but present. Efforts to unite the three different curricula in a

common framework by UNESCO ultimately failed, though “many of its

principles were addressed during subsequent curriculum revision processes.”98

OSCE succeeded by addressing textbook content and teaching methodology,

developing “Guidelines for Textbook Writing and Evaluation of History

Textbooks for Primary and Secondary Schools in BiH.”99 This series of

recommendations, which strives to implement impartiality, was adopted by both

entities and addresses both teachers and textbook authors. As youth are

susceptible to only “learning what their parents tell them,” these guidelines enable

an attempt at objectivity in Bosnian education.100 The recommendations for

history textbooks include the following provisions:

2.1 When writing textbooks, the authors should decrease the quantity of information relating to political history, in order to enable the provision of more information which students would also receive through other aspects

98 “Drafting a Common Curriculum: Framework, Bosnia and Herzegovina.” UNESCO. 2010.99 “Curricular Reform.” Organization for the Security and Co-operation in Europe: Mission to Bosnia and Herzegovina. 100 Quote from Denis Džidić at BIRN. Mr. Divjak, from Education Builds Bosnia and Herzegovina, also noted that “parents influence their children in a very bad way.”

of history, such as cultural, social, economic, and the history of everyday life.2.2 Textbooks should be scientifically based and objective and aimed at building mutual understanding, reconciliation and peace in Bosnia and Herzegovina2.3 When writing textbooks, authors should apply the principle of multi-perspectivity, in order to enable the pupils to learn tolerance. The principle of multi-perspectivity should be present in all aspects of the textbooks: in the texts, illustrations, and sources…2.7 Sensitive issues/controversial themes should be stated in the textbooks, in order to be opened up for discussion…101

Detailing these provisions sets parameters for the structure of education in Bosnia

and Herzegovina, though they provide ambiguous or arguably contradictory

limitations, by stating that textbooks should both discuss sensitive/controversial

issues but also decrease the quantity of information relating to political history.

These parameters are largely symbolic, as the recent conflict is still avoided in the

current curriculum.102 Other international efforts to integrate communities are

partially successful, in that there are US-sponsored programs (e.g., Tolerance

Through English) offering Bosniak and Croatian students a joint English class and

summer camp.103 The introduction of a third language could facilitate a more

comfortable environment to discuss touchy issues, as well as provide a broader

global perspective.104

While strenuous efforts have been exerted, traction is moderate. There

exists no foundation for common truth, as students study only their respective

101 “Guidelines for Writing and Evaluation of History Textbooks for Primary and Secondary Schools in Bosnia and Herzegovina.” April 2005. The Commission for the Development of Guidelines for Conceptualizing New History Textbooks in Bosnia and Herzegovina. 102 Susan E. Reed, “Bosnia’s Segregated Schools” Boston Globe, May 2014103 International “Teaching Tolerance Through English” Summer Academy. Embassy of the United States (2014). 104 Zlatko Custovic, “Segregation, Education and Nationalism: Two Schools Under One Roof System in Bosnia and Herzegovina” Politheor (October 2014).

language, history, and geography. Details of the most recent war are

conspicuously omitted from textbooks, as

teaching controversial issues from the recent past involves strong emotions and invokes painful and traumatic memories; many often feel that their sufferings are not sufficiently emphasized in the condensed accounts necessary for a textbook.105

Thorough education reform is essential for the harmonization of upcoming

generations, teaching tolerance to the children of war victims, and forgiveness to

children who were war victims. Thawing the frozen conflict is a responsibility

that will inevitably be passed on to the children of the war; objectively educating

youth is indispensable for peace.

Truth and Reconciliation The Need for Truth

Having peered into the depths of Bosnian society, it is clear that a

common truth is needed. The country was divided along ethnic lines, solidifying

the tension between groups. Now, the upcoming generations are in the process of

learning three different histories, the political groups continue to minimize or

deny the suffering caused during the war, and the government is ripe with

corruption. Political will to reform, to reconcile, to forgive – is absent.

Establishing a common, shared truth is essential for the country to overcome its

traumatic past and reconcile with the differences among perceptions and

experiences. It has been stated by a Bosnian leader that, “if we keep going along

this path, fifty years from now our grandchildren will fight over which one is

105 A quote from Snjezana Koren in Susan E. Reed, “Bosnia’s Segregated Schools” Boston Globe, May 2014

correct.” To address this complex problem, this paper contends that a prospective

truth commission constitutes the most comprehensive solution for cohesion.

Prospect of Truth Commission

It is generally agreed there is a need for further reconciliation in the

region, though efforts to achieve this either stumble along or collapse completely.

Proponents of a truth commission for reconciliation contend that the unstable

peace established by the Dayton Peace Agreement and subsequent tribunal will

not provide the country with the “big picture,” and thus “it is essential the people

of Bosnia are exposed to the ‘different truths,’ and to the ‘real truths’ in order to

create a ‘common truth.’”106 These truths primarily involve perceptions of

victimhood, as all sides of the conflict experienced ethnic cleansing.107 Goran

Basic’s explains in “Stories After the Bosnian War: Competition for Victimhood”

that victimhood has transformed into a desirable status. As the conflict was

characterized by brutal violence among all parties, and the people within Bosnia

underwent a traumatic and divisive conflict that affected all factions within the

country, there is no clear of well-defined “perpetrator” of the atrocities. The

conflict was experienced in a myriad of ways that was much dependent upon the

location of the individual at the time of the conflict.108 Additionally, as the conflict

advanced, some people fled or were displaced, and others opted to stay. This is

106 Corene Rathgeber, “Truth and Reconciliation in Bosnia and Herzegovina” M.A. thesis, Katholieke Universiteit Leuven, 2000), pp. 27.107 Goran Basic, “Stories After the Bosnian War: Competition for Victimhood” Proceedings of the 1st Annual International Conference on Forensic Sciences and Criminalistics Research (Global Science and Technology Forum, 2013). 108 Goran Basic, “Stories After the Bosnian War: Competition for Victimhood” Proceedings of the 1st Annual International Conference on Forensic Sciences and Criminalistics Research (Global Science and Technology Forum, 2013), pp. 75.

resulted in feelings of contempt among groups, as those who selected to stay feel

that their victimhood is more deserved. On a broader scale, feelings of jealousy

towards the success of certain areas has reinforced notions that particular groups

were unfairly treated in the post-war rebuilding efforts.109

The conflict stems from deeply rooted ethnic tensions, and the Dayton

accords decentralized the Bosnian government in almost all major institutions and

functions, delineating power to the three major ethnic groups. This has allowed

for the three groups to take ownership of three separate histories, each compelled

by a deep connection to their ethnicity and a desire to have their experience with

abuse recognized and recorded. Creating a truth commission, supporters argue,

should be seen as a necessary and “assertive step toward reconciling such

different conceptions of truth and history” that would allow Bosnians “to find

common ground and ease tensions between the three groups.”110

As Priscilla Hayner noted in her comprehensive book on truth

commissions, Unspeakable Truths, the bodies typically share four characteristics:

(1) truth commissions focus on the past; (2) they investigate a pattern of abuses over a period of time, rather than a specific event; (3) a truth commission is a temporary body, typically in operation for six months to two years, and completing its work with the submission of a report; and (4) these commissions are officially sanctioned, authorized, or empowered by the state.111

109 Goran Basic, “Stories After the Bosnian War: Competition for Victimhood” Proceedings of the 1st Annual International Conference on Forensic Sciences and Criminalistics Research (Global Science and Technology Forum, 2013), pp. 76. 110 Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, 2001), pp. 112.111 Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, 2001), pp. 6.

Within these characteristics, countries may sharpen the focus of a commission.

For Bosnia and Herzegovina, the emphasis would concentrate on the victims,

providing them with a respectful and safe environment that can respond to their

needs. “As Bosnians are searching for a forum to tell their story, this is what is

important to them, there is healing when a victim can tell their story.”112 The false

hope addressed earlier conveys the absence of victim satisfaction in the criminal

prosecutions – a truth commission can provide a platform for all victims, not only

the ones tethered to the most serious violators of international law. As a truth

commission would allow all individuals to become involved in and contribute to

the process, it could “contribute to conflict resolution and societal healing at the

community level.” 113 Additionally, the commission could establish a common

truth, determining the institutional and systematic perpetration of atrocities from

all facets within the state, providing a credible report of the broad political forces

that plunged the country into war. Furthermore, the truth commission could

potentially restore trust in the government, particularly political parties and the

judiciary, as it investigates their involvement and influence in the conflict.114

Finally, a truth commission would arguably be held in higher regard among

Bosnian people than the ICTY, as it would be a local body with accessible

proceedings and tangible results.115

112 Corene Rathgeber, “Truth and Reconciliation in Bosnia and Herzegovina” M.A. thesis, Katholieke Universiteit Leuven, 2000), pp. 30.113 Corene Rathgeber, “Truth and Reconciliation in Bosnia and Herzegovina” M.A. thesis, Katholieke Universiteit Leuven, 2000), pp. 28.114 Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, 2001), pp. 6.115 Corene Rathgeber, “Truth and Reconciliation in Bosnia and Herzegovina” M.A. thesis, Katholieke Universiteit Leuven, 2000), pp. 26-31.

Possibility of Truth Commission

The prospect of a truth commission is currently unlikely, as efforts to

establish an official inquiry into the truth have faltered and failed. While many

groups and representatives have voiced support for a truth commission, traction is

mediocre at best. Attempts to establish a truth commission in the former

Yugoslavia have failed, arguably for the exact reasons that have undermined

success in other areas of Bosnian reconciliation: a fundamental disagreement over

goals coupled with a lack of political will to reach consensus or compromise, a

feeling of underrepresentation, and a sense that particular groups are blamed

disproportionately. The most strenuous effort to enact a truth commission was

organized by the U.S. Institute of Peace in 2002, which succeeded in securing a

presidential decree for a truth commission within Serbia and Montenegro, with a

mandate to “research the social, inter-communal and political conflicts in the

period from 1980 to 2000, [and] documents its work.”116 The commission was,

however, disbanded, due ultimately to a lack of support, as the commission “was

not perceived as an impartial body within the country and even less across the

region.”117

Obstacles to implementing a truth commission fundamentally stem from

the same obstructions to reform: a lack of political will to move beyond divisive

rhetoric and find common understanding. In Hauke Kramm’s “Bosnia’s Failure in

Creating a Truth Commission – How Institutions and Functions Encourage Post-

Conflict Countries to Create a Truth Commission,” it is detailed that post-conflict,

116 “Truth Commission: Serbia and Montenegro” United States Institute of Peace, 2003. 117 “Truth Commission: Serbia and Montenegro” United States Institute of Peace, 2003.

a structure of government power-sharing is a strong determining factor of

successful implementation of a truth commission.118 However, power is a

desirable commodity within Bosnia, and willingness to cooperate across ethnic

lines is a rare occurrence. Yet, the future is promising, and the possibility of

cross-ethnic efforts remains: Kramm’s analysis notes that societies facing a future

of co-existence together are more willing to implement a truth commission to

create a stable and understanding coexistence.119 Nearly two decades since the

enactment of the Dayton Peace Agreement, the population could conceivably

reconcile with a traumatic and entangled history, conveying that, for Bosnia-

Herzegovina, perhaps it is the simple passage of time that will soften the hard

experiences of the past.120

Reconciliation for Bosnia-Herzegovina

Ascertaining reconciliation amongst the peoples of Bosnia has proven to be a

tumultuous process. The war in Bosnia-Herzegovina ravaged the country and the

people within, rendering the nation ethnically divided and reluctant to reconcile.

Nearly two decades after the implementation of the Dayton Peace Agreement,

Bosnia-Herzegovina struggles to establish itself as a country recovered from war,

still battling extreme ethnic politics and polarization in all areas of society. The

118 Hauke Kramm, “Bosnia’s Failure in Creating a Truth Commission – How Institutions and Functions Encourage Post Conflict Countries to Create a Truth Commission” (Universiteit Twente, 2012), pp. 20.119 Hauke Kramm, “Bosnia’s Failure in Creating a Truth Commission – How Institutions and Functions Encourage Post Conflict Countries to Create a Truth Commission” (Universiteit Twente, 2012), pp. 22 120 Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, 2001), pp. 6.

need for reform is obvious; however, the lack of political will compounds the

existing divides between the Bosnian peoples, with examples of failures to

implement amendments to the government, or reorganize the education system

convey how challenging this process to establishing an equal and accepting

society. There remains a drastic need for societal and communal reconciliation,

and an understanding of others’ experiences during the conflict. Without a

common truth shared amongst the people, it seems unlikely that the conflict’s

resulting animosity will calm for understanding and forgiveness to emerge.

A positive perspective on reconciliation in Bosnia can be extracted from

recent activities within the population, showing that process has not grinded to a

complete halt, and the Bosnian community appears willing to place pressure on its

politicians, exemplified by the 2014 protests that spread across the country.121 The

demonstrations displayed a justified public anger, albeit through violence in

certain instances, over continued politicization within the government and the

economy. The outrage of the public shows that while political will is absent at a

government level, it is certainly present at the civilian level. Non-governmental

organizations, scholars, victim’s associations, and civilians have gathered many

times over the last decade in attempts to gather momentum for a truth

commission.122 But, without government support and cooperation, a “bad

commission could be worse than not having one at all.”123 There remains

significant work to be completed in the strides towards reconciliation and

121 Tim Judah, “Bosnian Protests: A Balkan Spring?” BBC News, February 2014. 122 Alan L. Heil Jr., “A Truth and Reconciliation Commission for Bosnia and Herzegovina?” Washington Report on Middle East Affairs, June 2000, pp. 86123 Alan L. Heil Jr., “A Truth and Reconciliation Commission for Bosnia and Herzegovina?” Washington Report on Middle East Affairs, June 2000, pp. 86

understanding within Bosnia-Herzegovina, most poignantly the need to inspire

political will, encouraging political cross-ethnic collaboration and ensuring that

impartiality is enforced within society. Truly, during a Security Council meeting

this May, it was stated that, “a great deal can be achieved in 2015 if there is

renewed commitment within the country and among its political leaders to pull

together and work together, to work as one.”124

124 “Bosnia and Herzegovina Must Take ‘Fresh Chance’ It has been Given, Security Council Told” UN News Centre, May 2015.

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