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
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INTERNATIONAL SUMMER SCHOOL SARAJEVO
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
Volume 1
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
Editorial board: and

Lana Ačkar
Adnan Kadribašić Association "PRAVNIK"
Porodice Ribar 49
Redactor: Sarajevo , 71000
Lejla Hadţimešić Bosnia and Herzegovina
e-mail: info@pravnik-online.info
Proofreading: Website: www.pravnik-online.info
Caleb Waugh
Print run: 300
Sarajevo, December 2010
CIP Cataloguing in Publication Data available from National and University Library of Bosnia
and Herzegovina.
ISSN: 2232-7258
The present publication is distributed free of charge.

The responsibility of the content of this publication lies exclusively with the authors.
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CONTENTS
PREFACE ................................................................................................................................................................ 7
A WORD FROM THE REDACTOR ......................................................................................................................... 10
WHAT IS TRANSITIONAL JUSTICE?

BY NOÉMIE TURGIS............................................................................................................................................... 12
QUANTITATIVE IMPACT ASSESSMENT IN TRANSITIONAL JUSTICE RESEARCH: NO SINGLE TRUTH IN

PLACE?
BY VERA RIFFLER ................................................................................................................................................. 19
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
CRIMINAL PROSECUTION AND TRANSITIONAL JUSTICE:DOES PLEA BARGAINING HELP IN FOSTERING

RECONCILIATION?PLEA AGREEMENTS BEFORE THE BOSNIA AND HERZEGOVINA WAR CRIMES CHAMBER
BY ELENA ATZENI ................................................................................................................................................. 53
REPORTS ON THE TRANSITIONAL JUSTICE EXPERIENCE IN BOSNIA AND HERZEGOVINA

BY AZRA SOMUN................................................................................................................................................... 59
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
THE RIGHT TO REPARATION FOR WAR-AFFECTED CHILDREN SPECIAL FOCUS ON BIH

BY FRANCESCA CAPONE ........................................................................................................................................ 97
ACCOMMODATING SOCIAL JUSTICE INTO TRANSITIONAL JUSTICE MECHANISMS THE CASE OF

NORTHERN UGANDA
BY ANDREEA CRISTINA NOWAK ..............................................................................................................................110
TRANSITIONAL JUSTICE IN DEMOCRATIZATION PROCESSES: THE CASE OF SPAIN FROM AN

INTERNATIONAL POINT OF VIEW
BY TERESA FERNÁNDEZ PAREDES ..........................................................................................................................123
LUSTRATION LAW IN POST-COMMUNIST ROMANIA CASE STUDY: COUNCIL FOR THE STUDY OF SECURITY
ARCHIVES
BY CRISTIAN GHERASIM .......................................................................................................................................139
BIH FROM DAYTON TO THE EUROPEAN UNION

BY NICOLA SIBONA ..............................................................................................................................................149
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.
Dr. Stefanie Ricarda Roos, M.A.L.D.

(Ms. Roos was the director of the Konrad-Adenauer-Stiftung's Rule of Law Program South East
Europe from April 2006 - May 2010)
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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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A WORD FROM THE REDACTOR

International Summer School of Sarajevo (ISSS) is a summer school established in 2006 and
intended for graduate and postgraduate students interested in human rights and
transitional justice. Over a period of two weeks, students have an opportunity to receive a
first hand insight into the contemporary discussion on the issue of human rights and
transitional justice through a unique blend of theory, practice and experience with the aim
to empower future decision makers by bringing together experienced professionals and
young scholars from all over the world (with a particular focus on South-East Europe) and
thus contributing to the global discussion on the issue of human rights and transitional
justice.
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
The idea that, to reconstruct a peaceful and stable basis for a

society that went through massive violations of human rights, it is
necessary to use a form of justice designed to face the past, which
is now widely accepted and promoted. The debate on transitional
justice has not dried up and remains more than ever a pertinent
question. Nonetheless, no formal work has yet been able to
precisely define the meaning of the concept. In the following pages, I
argue that, keeping in mind the difficulties encountered when
coining a definition, it is necessary to define and identify the
objectives of such a concept. I however argue that to keep
broadening the scope of transitional justice could be dangerous.
* Noémie Turgis (noemieturgis@gmail.com) is preparing a PhD on Transitional

Justice in International Law (supervisor:Professor J-M Sorel) at the University Paris I
Panthéon-Sorbonne. She is also a teacher assistant at the University Paris I
Panthéon-Sorbonne, currently in position at the Collège juridique franco-roumain at
the faculty of law of Bucharest (Romania) where she organises seminars on
International law, European law, Administrative law and Comparative
Constitutional law. She holds a Master degree on International law from the
University Paris I Panthéon-Sorbonne and a law degree from the University of Kent
(UK). During her studies and research, she was led to do an internship at the
French embassy in Japan and at the Centre for the Study of Violence and
Reconciliation (CSVR) in Johannesburg where she assisted on the development of
projects on the issue of ex-combatants and on the politics of memory.
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What is Transitional Justice? Ruti Teitel, designate the same phenomenon,

one of the most authoritative writers on researchers use for example terms such
the question, recently qualified as ―post conflict justice‖7 or ―post-
transitional justice as being ―globalized‖2. oppression or post-violence justice8‖.
And it is indeed true that the discourse on This difficulty put aside, one
the question of transitional justice is important question still needs to be
much more general and systematic than it answered: what is transitional justice? To
has ever been in the past. The field of what does transitional justice specifically
transitional justice has undeniably relate? Does it represent an extraordinary
experienced an exponential growth over form of justice? Is it the justice system
the last two decades. Its development has itself that is in transition? Does it refer to
been extremely fast. The creation of the any kind of ‗justice‘ associated with
―International Journal of Transitional periods of political change? There is no
Justice‖3, the existence of several shared and accepted definition of what
institutes of research4, the growing transitional justice is. There is of course a
interest of NGO‘s5 and the organization of global and consensual perception that it
summer schools dedicated to the study 6 of refers to situations in which a society has
this field speak for itself. Transitional to deal with a history of massive violations
justice has become an autonomous of human rights during a period of
branch of research and practice and political transition. But is this enough?
arouses many questions studied as a The fact that most authors and
coherent and systematic matter. And yet practitioners do not particularly attempt
nobody precisely knows what transitional to define it anymore, and take the
justice is. existence of a systematised field or
concept of transitional justice for granted,
Coining a definition for an is striking. It seems that is does not even
expression such as transitional justice is raise any more doubts that transitional
not an easy challenge, as nobody fully justice can be studied as a comprehensive
agrees on its implications. The lack of domain that raises specific questions to
consensus on the material content of this with general answers can be given. The
new field finds an echo in the fact that the object here is absolutely not to contest the
expression itself is called into question. To existence of such an autonomous field but
to highlight the hypothetical
2 « Transitional justice globalized » is the name of the
consequences of its elusiveness.
introductory lecture given by Ruti Teitel at the In most of the literature dedicated
conference « Taking Stock of Transitional Justice » to the study of transitional justice,
organized by the Oxford Transitional Justice Research authors describe the phenomenon
Group lon the 26-28 june 2009. Ruti Teitel is one of
the most authoritative writer on the subject and is
through its mechanisms. The method
the author of Transitional justice, Oxford University commonly used consists of enumerating
Press, 2000, 292 p. all the measures agreed to be constitutive
3 International Journal of Transitional Justice, Oxford
of some form of transitional justice, in
journals, available at http://ijtj.oxfordjournals.org/
4 See, for example, the Transitional Justice Institute, order to try to give a global picture of what
University of Ulster (UK) at transitional justice refers to. Scholars and
http://www.transitionaljustice.ulster.ac.uk/ (12 even the Secretary-General of the United
october 2009), the Oxford Transitional justice Nations have continuously pointed out
Research Group, University of Oxford (UK),
http://www.csls.ox.ac.uk/otjr.php (12 october 2009)
this lack of a shared understanding.
5 The most relevant being the International Center Talking about the concepts of justice, rule
for Transitional Justice,
http://www.ictj.org/en/index.html (12 october 2009)
6See the Annual summer school organized by the 7 Bassiouni, M. C., (ed.), Post-conflict justice, 2002,
Transitional Justice Institute of the University of Ardsley, NY: Transnational, International and
Ulster (http://www.transitionaljustice.ulster.ac.uk/) comparative criminal law series, 850 p.
and the International Summer School Sarajevo 8 Mihai, M., ―Transitional Justice and the Quest for
(http://www.pravnik- Democracy: A Contribution to a Political Theory of

online.info/cms/index.php?international-summer- Democratic Transformations‖, Ratio Juris, 2010, Vol.
school-sarajevo-2009) 23, n°2, p. 184.
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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
and Transitional Justice in Conflict and Post-Conflict

reconciliation in order to
Societies, UN Doc S/2004/616, 24 august 2004, p.
4.
12 Teitel, R., ―Transitional justice in a new era‖, 13 International Center for Transitional Justice,
Fordham international law journal, 2003 Vol. 26, « What is transitional justice? », 12 October 2009,
issue 4, p. 893. http://www.ictj.org/en/tj/ .
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promote a transition toward the difficulties. Victims of human rights

consolidation of peace, the violations are entitled to claim for
guarantee of stability, the reparation for the harm they suffered to
reinforcement of democracy their government. The existence of such a
and the rule of law, and right guaranteed by international law is
reconciliation. increasingly acknowledged14 in the
If an institution is set up in the context, international community. But those
and to achieve the objectives identified, it international standards are in reality, and
is a mechanism of a transitional justice depending on each context, extremely
process. In those five elements, two major hard to implement. The State has just
categories of indices are noticeable: all the gone (or is still going through) a
contextual elements which are giving birth transition. Considering its usual lack of
to a situation requiring some form of resources in such a period and its
transitional justice on one side and the multiples priorities in the perspective of a
elements which allow us to determine long-term reconstruction, the capacity of
whether a mechanism has effectively been the government to provide such
set up. Those elements are again part of reparations can be highly limited15.
the ―common understanding‖ category. The goal is to find a balance between
Nonetheless, they reflect this global the objectives pursued, the necessity to
perception of what transitional justice is. respect some ‗standard minimum‘ in order
to draw a visible line between the ancient
Despite the fact that it is not entirely regime and the new one and, lastly, the
possible (yet?) to define precisely and to necessity to maintain peace and stability,
fix the meaning of the concept, it seems which usually had been hard to obtain, in
that a few more elements have to be the considered region. Transitional justice
emphasized as particular features of this is then a delicate compromise between a
domain. Above all, transitional justice is a heavy heritage, the determination to make
process. It is impossible to define a some norms and ideals respected and
mechanism withdrawn from its context as objectives sometimes incompatible. The
being some form of transitional justice. An lack of common understanding is not
instrument, usually not considered as helping in the determination of the right
being usually part of the transitional balance in a particular context.
justice field, can be qualified as such Lastly, and as a third element of
when it is used within its specific context distinction, transitional justice is
and serves its objectives. The purpose is multidisciplinary. The answers sought to
to identify the exercise of transitional strike the right balance between all the
justice and not the quality of a imperatives of the society or to answer the
mechanism as specifically being a many problems of the new governments
transitional justice body. are a combination of a multidisciplinary
Second of all, transitional justice is a search. Transitional justice involves law,
bargain or the result of a bargain. There is political science, sociology, psychology,
no need to study for a long time the history, ethics and morals and tries to
potential risks of a non-adapted bridge the gap between all those different
application of the law and the conduct of a domains of studies to offer the most
normal process of justice in such a period appropriate answers to the particular set
of political instability to understand the of dilemmas identified as being part of the
imperative necessity to put in the balance
the demands of the victims and the whole
society and the political and strategically 14 See De Feyter, Parmentier, Bossuyt, Lemmens
(eds), Out of the ashes : reparation for victims of gross
constraints faced by the new government. and systematic human rights violations, 2005,
The effective implementation of State Antwerpen [etc.] : Intersentia, 522 p.
obligations is then a subject of 15 The selection of the victims entitled to claim for
controversy. The application of reparation such reparations is also a high subject of

controversy, the notion of victim lacking a universal
programs gives an example of these or agreed definition.
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transitional justice field. The several reconciliation is above all a matter of

questions examined through the lens of individual will on which no institution can
transitional justice are common to have a real impact. The same observation
multiple fields of studies that propose can be made on many of the declared
different analysis. Transitional justice goals of transitional justice16. Even the
seeks to reassemble and coordinate those relationship between these objectives has
answers. This commitment to find the raised a lot of dilemmas even though,
answers and overcome the chirurgical nowadays, they are much more presented
separation between distinct academic as being complementary.
fields of studies constitutes one of the At the early stage of its development,
features of transitional justice. transitional justice was expressly linked to
Nonetheless, transitional justice has to the democratization processes, even in the
be kept under the umbrella of United Nations discourse surrounding
international law, which sets up the their ―peacebuilding activities‖. What soon
appropriate standards for the protection of became the ―paradigmatic transition‖ of
human rights and clarifies the priorities transitional justice, that is to say the
that the new governments have to focus journey from a non-democratic
on. The transition is not a circumstance government to the establishment of a
that exonerates a State from its democratic one, is now contested and
international obligations. Transitional called into question17. First of all this label
justice is interdisciplinary and its cannot encompass the variety of
implementation is the result of a transitional situations this form of justice
compromise between the many seeks to support (like the transition from
imperatives of transitional societies, conflict to peace, the most frequent
identified through several angles of contemporary form of transition).
perspective. But the transitional State is Secondly, the process of democratization
still under the obligation to respect its itself has raised a lot of criticism, relying
obligations, especially relating to human on the non-exportability of the western
rights. liberal model of democracy and underlying
the emergence of a form of neo-
A lot of questions still need to be colonialism or neo-imperialism through
answered in the transitional justice measures imposed from abroad. As a
debate. More than the definition of the consequence, the rhetoric around the
expression itself, the elements being destination of the transitional journey has
described as the goals of any process of progressively shifted to now emphasize
transitional justice are still controversial. implementation of the rule of law
Nearly all the stated objectives of principle, and of the protection of human
transitional justice have been criticised. rights, perceived as universal aims of
The question of reconciliation is a good every society, as the goals of the transition
example: at the early stage of the debate, that transitional justice seeks to facilitate.
it was argued that transitional justice
mechanisms and justice measures in 16 For example, if the search for ―truth‖ is not really
general, were threatening the possibility of contested, the meaning and the kind of truth looked
reaching a state of national reconciliation for is much more debated: can a tribunal deliver
in a country. Soon, providing healing for truth? Is it the role of a commission to deliver a ful
historical account? These are two symptomatic
victims and their family and promoting interrogations over this question. See Bronwyn, A.
peaceful coexistence became the main L., « The Irreconcilable Goals of Transitional
objectives of those institutions, most of Justice », Human rights quarterly, Vol. 30, issue 1,
the truth commissions even being called pp. 95-118.
17 See CAROTHERS, T., ―The end of the transition
‗truth and reconciliation commission‘. paradigm‖, Journal of Democracy, Vol.13, n°1, 2002,
Today, seeking reconciliation through pp. 5-21. The author argues that ―The continued use
those official bodies is still controversial, of the transition paradigm constitutes a dangerous
partly because of its religious roots, but habit of trying to impose a simplistic and often
incorrect conceptual order on an empirical tableau of
also because it is increasingly argued that considerable complexity.‖.Ibid, p. 15.
Page 16
The discourse is also now much more

victim centred than it was at the
beginning.
The issues that the domain of
transitional justice continues to raise are
far from being settled. This is maybe one
of the first reasons why it can be
dangerous to broaden the scope of the
objectives of transitional justice to
extremely ambitious and varied
aspirations, going from peace building to
economic development. It is obviously a
good thing if transitional justice can
facilitate and promote other ambitions of a
particular society. But transitional justice
should not be used and thought of as a
kind of magic wand. It cannot do
everything and it could even lead to
nothing if its primary goals are not well
established and remembered. The risk of
broadening the meaning of the concept is
to dilute it and turn it into something
meaningless. This is why it is important to
bear in mind why the discourse on
transitional justice has been developed in
the first place. Whether it is even possible
to give a precise definition of what is
meant by transitional justice is another
question. Transitional justice is especially
designed to help a society turn into
something different from what it had
known in relation to violations of human
rights, through different kinds of goals.
Considering this transformative purpose,
transitional justice is maybe only what it
takes to make sure victims of atrocious
human rights violations will find a certain
compensation for their suffering and,
above all, that they will not be subject of
such violations again. The core element of
transitional justice is here: offering a
―toolbox‖ filled with elements designed to
deal with the violations of human rights
from a predecessor regime to form the
basis of an order able to prevent their
reoccurrence. It took a long time to
acknowledge that, in order to facilitate a
transition and establish a good basis for
peaceful development, some form of
accountability is needed. It is therefore
natural that defining what this justice
means and what its objectives are takes a
long time too.
Page 17
Bibliography
Boraine, Alexander L., ―Transitional justice: a holistic interpretation‖, Journal of

International Affairs, 2006, vol. 60, Issue 1, pp. 17-27.
Bohl, Kristin, ―Breaking the rules of Transitional Justice‖, Wisconsin International
Law Journal, 2006, pp.557-585.
Burgorgue-Larsen, Laurence et Úbeda de Torres, Amaya, Les grandes décisions de
la Cour interaméricaine des droits de l'homme, Bruylant, 2008, 995 p.
Freeman, Mark et Marotine, Dorothée, Qu‘est ce que la Justice Transitionnelle?,
International Center for Transitional Justice, 19 novembre 2007, 17p.
Freeman, Mark, Truth commissions and procedural fairness, Cambridge University
Press, 2006, 400 p.
Gray, David, ―An excused-centered approach to transitional justice‖, Fordham law
review, 2006, pp. 2621-2693.
Harper, Erica, ―Delivering justice in the wake of mass violence: new approaches to
transitional justice‖, Journal of Conflict & Security Law, 2005, pp.149-185.
Hazan, Pierre, Juger la guerre, juger l‘Histoire, PUF, 2007, 252 p.
O‘Neil, Barry, Kaminski, Marek M. et Nalepa, Monika, ―Normative and Strategic
Aspects of Transitional Justice‖, Journal of Conflict Resolution, 2006, vol.50, n°3, pp.
295-302.
Orentlicher, Diane F., ―Settling Accounts‖ Revisited: Reconciling Global Norms with
Local Agency‖, The International Journal of Transitional Justice, vol. 1, 2007, pp.10-
22.
Posner, Eric A. et Vermeule, Adrian, « Transitional Justice as Ordinary Justice »,
Harvard law review, 2004, pp. 761-825.
Ruiz Fabri, Hélène ; Della Morte, Gabrielle ; Lambert Abdelgawad, Elizabeth et
Martin-Chenut, Katia, La clémence saisie par le droit. Amnistie, prescription et grâce
en droit international et comparé, UMR de droit comparé de Paris I, 2008, 644 p.
Teitel, Ruti G., Transitional justice, Oxford University Press, 2000, 292 p.
Teitel, Ruti G., ―Transitional Justice Genealogy‖, Harvard Human Rights Journal,
vol. 16, 2003, pp. 69-94
Page 18
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.
Page 19
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
Page 20
justice strengthens on the long run the

Transitional Justice is a multifaceted judicial system and the rule of law (Snyder
concept which not only includes a number & Vinjamuri 2003). Whereas the
of different sometimes complementary and proponents of restorative justice argue
sometimes divergent instruments, like from the standpoint of the victims and at
truth commissions, human right trails, the same time they focus on the
amnesties, reparation and vetting but restoration of the social order and the
which is also analyzed from different reconciliation of formerly antagonized
multidisciplinary angles. Transitional groups. The comprehensive discourse of
justice can be looked from a legal, the past, the official acknowledgement of
political, moral, sociological and even massive violations and of the victims, as
theological perspective and depending on well as the chance for reconciliation and
the respective angle the answers that will forgiveness will contribute to the
be found and the conclusions that will be reduction of resentments in the society
drawn will not be able to construct a and to the promotion of a peaceful
complete picture. However, apart from the interaction in their point of view. The
theoretical and normative analysis and measures of restorative justice will also
understanding of TJ, a driving and enable a compromise between the
connecting issue between different areas antagonized groups and provides an
of study has been the question of impact incentive for all parties involved to allow
and effectiveness of TJ. for a peaceful transition. Furthermore it is
The debate on the impact of TJ argued that respect for human rights and
mechanisms has been focused largely on the legitimacy of the state is fostered and
the distinction between retributive and hence, the democratization process is
restorative justice. The former refers to the furthered (Hayner 1994 & 2001; Lederach
conviction of perpetrators and 1997; Minow 1998). Reparations are also
comprehensive measures like national or seen as beneficial for reconciliation as the
international human right trials as well as victims are enabled to restore their
lustration and vetting. The latter aims at dignity, reintegrate in society and to
coming to terms with the past, restoring rebuild their trust into institutions and
the relationship between perpetrator and society (Brooks in Torpey 2003: pp. 110;
victim and reconciling the society by de Greiff in Miller & Kumar 2007).
implementing truth commissions, The more recent debate on TJ has not so
reparations or compensations for the much focused on the question of ―truth
victims. The differentiation between the vs. justice‖ or ―restoration vs. retribution‖
two ethical concepts has also largely anymore but rather on the increasing use
shaped the debate on impacts of TJ. The and interplay of various mechanisms at a
opponents of restorative justice assume, time. The main question in that debate
that retaliatory measures are needed in centers on the adequate combination and
order to bring justice to the victims and sequencing of mechanisms and possible
that adequate punishment will be outcomes of different modes and their
deterring future deeds due to utility combination. Therewith the debate not
expectations of the yet-to-be perpetrator only concentrates on the impact of TJ but
(Elliot 2001; Kritz 2001; Neier 1998; also on the effectiveness of TJ due to
Rotberg & Thompson 2000). The lack of different combinations of implementation
retributive justice is seen as destabilizing (Barahona de Brito et al. 2001; Hafner &
for the state and society as hate and anger King 2007; Hughes et al. 2007;
of the victims will be fueled and revenge Mariezcurren & Roht-Arriaza 2006).
will be carried out by arbitrary law. At the Mariezcurren and Roht-Arriaza (2006: p.
same time the deficient development of 8) point out that „only by interweaving,
the judicial system will not only allow for sequencing and accommodating multiple
further atrocities in the future but will pathways to justice could some kind of
also send the wrong signals to spoilers larger justice in fact emerge‖.
and society. It is assumed that retributive
Page 21
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
Page 22
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
Page 23
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
Page 24
evaluate the impact of TJ but also its implementation of better TJ designs as

effectiveness regarding the questions how well as to the achievement of desired
effective TJ was in the scope of impact results through TJ such as rule of law,
and if the TJ impact reached its targets. democracy, peace and reconciliation and
to the formulation of concrete polity
recommendations. And finally to the all
and overarching aim of transitional justice
Conclusions for society and the state:
The paper has given a short overview of Never again!

the state-of-the-art of quantitative Nooit weer nie!
analysis on TJ research and has Ngeke futhi!
highlighted some of the problems and Ga reno tlola!-
knowledge gaps in the literature. - Desomond Tutu -
The rising number of TJ mechanisms in
place and the growing extent of debate
underline the importance of research also
on impacts and effectiveness of TJ. For a
long time most of the research has
focused on single case studies or
comparative qualitative case studies. Only
lately some researchers have also focused
on quantitative impact assessment of TJ
on society and institutions. Nevertheless
quantitative research in comparison to the
vast number of qualitative research on TJ
is still under evaluated. Many essential
questions of TJ research remain
unanswered and causality is still not
clearly identified. Most impacts have been
evaluated on the institutional level, like
the impact on democracy and human
rights. The studies analyses structural
changes but fail to look at the individual
level. Further the results still remain very
mixed and hence are difficult to interpret
or to be even considered for polity
implications and recommendations. The
short discussion of this paper has shown
that there are still many problems to be
tackled in quantitative research of TJ.
―Given the growing reliance on transitional
justice mechanisms and the serious
knowledge gaps identified (…), there is a
critical need for data collection and
systematic analysis of the empirical effects
of different TJ mechanisms‖ (Paris et al.
2008: p. 46). The field of quantitative
research just emerged and further
research and better efforts are needed.
Nevertheless robust results of quantitative
data combined with well-grounded
qualitative research and a sound
theoretical basis can contribute to the
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
21 source: authors own representation

22 n.s = no statistical significant results
m.r = mixed results
- = negative correlation of the hypothesized relation
+ = positive correlation of the hypothesized relation
Page 26
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
Page 27
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
Page 25
Page 28
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Page 30
SOME ASPECTS OF THE

GENOCIDE CASE AND THE (NON)
ACHIEVEMENT OF
TRANSITIONAL JUSTICE
By Amina Alijagić*
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
Page 31
Introduction (hereinafter: ILC) raises first, the question

of attribution in order to define whether a
After 14 years of arduous litigation certain act is an ―(international) act of the
the formal proceeding of Bosnia and State‖, one which is of relevance under
Herzegovina v. Serbia came to a juridical international law. Only in a second step is
close on 27 February 2007 with the it asked whether this act of the state runs
release of the 171-page Genocide contrary to international law and
judgment by the International Court of therefore an ―internationally wrongful act
Justice (hereinafter: ICJ, the Court). In its of a State‖. This order is emphasized not
ruling the ICJ held that the Republic of only by the ILC in Article 2 of the ILC
Serbia23 was not responsible for genocide, Articles on State Responsibility26 but also
the conspiracy to commit genocide, or the in the ICJ‘s judgment in the Teheran
incitement of genocide pursuant to the Hostages case.27 That the ICJ in the
Genocide Convention of 1948.24 However, Genocide case proceeded differently, first
the Court did find that Serbia was addressing the question of the genocide
responsible for two lesser claims: failing and only afterwards the attribution
to prevent genocide at Srebrenica in 1995 matter, shall not be of further concern in
and failing to co-operate adequately with this paper.28
the International Criminal Tribunal for There is no easy rule that defines
the former Yugoslavia (ICTY), i.e., the requirements for attribution. In order
apprehend and extradite the Bosnian to determine the required link between
Serb commander, General Ratko Mladić. 25 the state and the acting natural person,
Since attribution rules played a different rules apply in different
significant role in this judgement, it is situations. The ILC has proposed
important to understand that their altogether eight different attribution rules
function is to attribute to the state the within Articles 4–11 of the ILC Articles.
conduct of persons who have acted Despite their apparent concreteness, the
against international law. For the purpose standards stated in some rules involve
of determining whether a breach of important ambiguities, and their
international law has occurred, the application will often require significant
International Law Commission fact-finding and judgment.
Furthermore, short clarification is
23 The respondent in the case went through three also needed regarding the factual
transformations while the case was pending: it was background of the Genocide case. Namely,
first called the Federal Republic of Yugoslavia (FRY),
following the break-up of the Socialist Federal
the Socialist Federal Republic of
Republic of Yugoslavia (SFRY) in 1992; it then
changed its name to Serbia and Montenegro after
the overthrow of Milošević in 2000; while it is now 26 Draft Articles on the Responsibility of States for
Serbia, since Montenegro declared independence in Internationally Wrongful Acts - with commentaries,
2006. Fourth territorial transformation of Serbia Report of the ILC on the Work of its Fifty-third
happened one year after the Genocide judgement, on Session, UN Doc. A/56/10 (2001), Art. 2, p. 34
17 February 2008, when Kosovo declared (hereinafter: ILC Articles)
independence. The ICJ founded that the declaration 27 United States Diplomatic and Consular Staff in
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.
Page 32
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
Page 33
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.
Page 34
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,
46 We do not have enough place to show how the ICJ

The ICJ‟s Concept of Attribution in the drew inferences not only from the findings of guilt
Genocide Case made by the ICTY, but also – problematically – from
the absence of certain ICTY convictions, and even
charges, in order to find that genocide had not
Having refused Bosnia and occurred in Bosnia in any region other than in
Herzegovina‘s request to demand Srebrenica. For instance, the Court implied that
unredacted versions of the FRY Council ―had Milošević survived trial and been convicted of
documents from Serbia, the Court the crimes for which he was indicted, or had Karadžić
and Mladić been arrested and brought to trial, then
assessed the question of attribution on the Court might have reached a different
the basis of the redacted versions of the outcome...‖ (Goldstone, Hamilton, ‗Bosnia v. Serbia‘,
FRY Council documents and other 105-106)
47 Genocide case, para. 384
48 Ibid., paras. 385–389; Article 4 of the ILC Articles,
entitled ‗Conduct of organs of a State‘, reads as

follows:
45 In the course of the Milošević trial, the Trial ―1. The conduct of any State organ shall be
Chamber of the ICTY concluded that ―there is considered an act of that State under international
sufficient evidence that genocide was committed law, whether the organ exercises legislative,
in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, executive, judicial or any other functions, whatever
Kljuc and Bosanski Novi‖ (Prosecutor v. Slobodan position it holds in the organization of the State, and
Milosevic, Decision on Motion for Judgement of whatever its character as an organ of the central
Acquittal, Case No. IT-02-54-T, Trial Chamber III, 16 Government or of a territorial unit of the State. 2. An
June 2004, para. 289). This statement of course organ includes any person or entity which has that
does not carry the evidentiary weight of a final status in accordance with the internal law of the
judgment. State.‖
Page 35
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
Page 36
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)
Page 37
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
Page 38
(probably) be obstructed by the Bosnian The answer to this is in the

Serb member of the Presidency of Bosnia affirmative; it does matter if one can hold
and Herzegovina,79 but the new evidence a state directly responsible based on
would have to be exceptionally strong. attribution or, as the ICJ states, only
Because the Court chose to apply the rule indirectly, by basing responsibility on acts
in Article 6 of the ILC Articles by analogy like instructions or control. Had the
to the relationship between Serbia and requirements for Article 8 been fulfilled in
the Republika Srpska, it would not suffice this case one would, following the ILC,
for Bosnia and Herzegovina to prove that have regarded Serbia as the ―author‖ of
the Scorpions were a de jure or de facto the massacres of Srebrenica, while the
organ of Serbia. Bosnia and Herzegovina ICJ would have concluded that Serbia
would actually have to prove that (i) the gave instructions or exercised control
―Scorpions‖ were not put at the disposal of regarding a genocide committed by
the Republika Srpska, but were still somebody else.82 There is a difference as
acting on behalf of Serbia itself; or that (ii) to whether one can regard a state as a
Serbia knew that the ―Scorpions‖ would mass murderer or merely as an accessory
be used for genocide when it put them at to somebody else‘s mass murder.
the disposal of the RS. Needless to say, it
is unlikely that this kind of evidence will Furthermore, the differentiation
ever come to light, but we should be affects the ―instrumental consequences‖
aware that a request for revision is (e.g. countermeasures)83 and the
possible, in no small part due to the ―substantial‖ ones (e.g. forms of
internal politics in Bosnia and reparation: restitution, compensation,
Herzegovina.80 satisfaction).84 If an act is seen as
attributable, the state is responsible for
Non-attribution as de facto organs all the damage based on this act. Where
the state is merely responsible for
The Court then turned to the instructions or control exercised over
question whether the ―Scorpions‖ were somebody else‘s acts, not all the
acting as de facto organs of Serbia. The consequences of the ultimate act
standard of requirements for holding a necessarily fall within the state‘s
state directly responsible for acts of de responsibility. This shows that there can
facto organs is extremely high, or, to put be differences following the two
it in the words of the ICJ, ‗to equate conceptions, which in certain cases may
persons or entities with State organs when have an enormous relevance. The legal
they do not have that status under internal consequences ascribed to Article 8 of the
law must be exceptional‘.81 Accordingly, ILC Articles are therefore not a marginal
the ICJ denied that the requirements for question.
the application of Article 8 of the ILC The evidence before the Court, and
Articles had been met. However, what if particularly the evidence coming from the
the Court had found Article 8 of the ILC ICTY, was not sufficient to prove Serbia‘s
Articles to be applicable according to its direct involvement in the Srebrenica
conception? Is it generally of any genocide. This is so not only because (i)
relevance if responsibility is based on the Milošević trial was not completed, but
instructions or exercised control and not also because (ii) the proceedings against
on an attributable act? Jovica Stanišić and Franko Simatović, the
chief and deputy-chief of the Serbian
secret police, and Momčilo Perišić, the
79 A. Alic, ‗Bosnia vs. Serbia: The Evidence Scandal‘,
ISN Security Watch, 24 April 2007
80 A. Alijagić, ‗Još Više Otvorenih Pitanja‘, 82 Griebel, Plücken, ‗New Developments‘, 610
Preporodov Journal Vol. 90, April 2007, 14-15 83 See ILC Articles, Art. 49
81 Genocide case, para. 393 84 See ILC Articles, Art. 31 and 34-9
Page 39
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
85 Prosecutor v. Stanišić and Simatović, (Trial) 88 Ibid., para. 64 (r)

Decision on Prosecution Motion for Admission of 89 Ibid., para. 65 (7) (emphasis added)
Redacted Copies of Confidential Exhibits as Public 90 Ferida Selimović et al. v. the Republika Srpska (The
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
Page 40
The single time the word ―genocide‖ is reparation by means of a simple

used is when quoting from the Krstić declaration in the judgment as a form of
judgment to the effect that the accused satisfaction seems to have been quite
was convicted of ―aiding and abetting rushed, and unfortunately gives the whole
genocide‖.92 The Commission does not, judgment a flavour of half-heartedness.
however, take a position in the matter and Not only that such decision does not help
expressly notes that it is not a judicial the transitional justice process, but in
body and lacks a mandate to deal with times they stand on its way obstructing
legal issues.93 them.96
We believe that something similar
would have been the most appropriate
form of reparation for Serbia‘s breach of
one of its most fundamental obligations.
Such a remedy would have captured the 96 On March 31, 2010, the Serbian parliament
essence of Serbia‘s wrong, i.e., its failure adopted a declaration ―condemning in strongest
to prevent, and its ―collective‖ dimension. terms the crime committed in July 1995 against
One could have also thought of the Bosniac population of Srebrenica‖ and apologizing to
financing of some programmes for the the families of the victims. The inflammatory
atmosphere during the 13-hour debate that
benefit of the survivors and the relatives preceded parliamentary approval - and the
of the victims of Srebrenica, such as continued denial of Srebrenica and other atrocities
measures of rehabilitation and psycho- during the war - raises questions about whether the
therapeutical treatment.94 resolution actually offered a genuine
acknowledgement and apology to victims. Many
In conclusion, even if the Court‘s members of parliament failed to attend the vote -
decision not to grant financial and some voted against the resolution - so it passed
compensation might have been motivated by a small majority. Much of civil society considers
by the intent of sending a message to the the apology insufficient, as it does not explicitly
recognize the massacre as an act of genocide
parties to look to the future and attempt (Serbian Declaration on Srebrenica Massacre an
to reconcile,95 on the whole the Court‘s Imperfect but Important Step, ICTJ, 9 April 2010).
decision to dispose of the matter of Dusan Bogdanovic, an analyst with the Lawyers'
Committee for Human Rights in Belgrade, said: ―The
lack of the word genocide could be viewed as a
largely forgotten and it became practically diplomatic technicality in a normal political climate,
unavailable in electronic or printed form. We have where it is sufficient to mention the ruling of the
managed to find the Report on only one web-page: ICJ and everyone ... can know what it means. But,
http://www.srebrenica- here it is used purposely to mitigate the
project.com/DOWNLOAD/Izvestaj_komisije_o_Srebr responsibility of Serbia.‖ Bogdan Ivanisevic, a
enici_oktobar_2004.pdf, Izvestaj komisije o consultant for the ICTJ, said that ―many in Serbia
Srebrenici, October 2004. are still not able to cope with the weight that this
92 Prosecutor v. Krstic, Trial Judgment, Case No. IT- word carries.‖ He said that the text also left out
98-33, 2004, Trial Chamber I, 2 August 2001; other important details, such as the number of
Prosecutor v. Krstic, Appeals Chamber Judgment, people killed and forcibly displaced - figures that
Case No. IT-98-33, 2004, Appeals Chamber, 19 April were included in the ICJ decision and the Srebrenica
2004 declaration passed by the European parliament in
93 ‗Izvestaj‘, p. 5 2009 (‗Some Still in Denial over Massacre in
94 The examples are taken from: Basic Principles and Srebrenica‘, ICTJ, April 26 2010). Sinan Alic, acting
Guidelines on the Right to a Remedy and Reparation president of the Helsinki Committee for Human
for Victims of Gross Violations of International Rights in Bosnia, thinks that ―the political
Human Rights Law and Serious Violations of establishment of Republika Srpska sees the
International Humanitarian Law, UN Doc. resolution as endangering the existence of the
GA/RES/60/147 (2005), para. 22 entity‖. Sulejman Tihic, the leader of Bosnia‘s Party
95 ―Under the circumstances, it was – on balance – of Democratic Action, SDA, noted that ―awareness
probably the wisest thing to put the case to rest after and acknowledgement of Srebrenica had been
fourteen years of litigation and trust to future considerably higher during the previous RS
developments to provide any additional form of administration, which actually completed a report in
admission of responsibility and possible 2004 on the massacre and issued an apology to
compensation as part of the process of reconciliation.‖ victims. Now, however, tensions are such that it
(Terry D. Gill, ‗The ―Genocide‖ Case: Reflections on seems to observers as if those steps had never been
the ICJ‘s Decision in Bosnia-Herzegovina v. Serbia‘, taken.‖ (‗Bosnian Serbs Block Srebrenica Massacre
Hague Justice Journal Vol. 2 (2007), 47) Resolution‘, IWPR, April 11 2010)
Page 41
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
Case Law of ICJ:

Accordance with international law of the unilateral declaration of independence in respect
of Kosovo, Jurisdiction and Admissibility, Advisory Opinion of 22 July 2010, (2010) ICJ
Rep., available at: http://www.icj-cij.org/docket/files/141/15987.pdf
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Uganda), Jurisdiction and Admissibility, Judgment of 19 December 2005, (2005) ICJ
Rep., available at: http://www.icj-cij.org/docket/files/116/10455.pdf
Case Concerning the Application of the Convention of the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Jurisdiction
and Admissibility, Judgment of 27 February 2007, (2007) ICJ Rep., available at:
http://www.icj-cij.org/docket/files/91/13685.pdf
Dissenting opinion of Vice-President Al-Khasawneh, http://www.icj-
cij.org/docket/files/91/13689.pdf
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2006 (Condorelli, Pellet and Franck), available at: http://www.icj-
Oral arguments on behalf of Bosnia and Herzegovina, Merits, CR 2006/30, 18 April 2006
(Softić and van den Biesen), available at: http://www.icj-
Oral arguments on behalf of Serbia and Montenegro, Merits, CR 2006/43, 4 May 2006
(Fauveau-Ivanović), available at: http://www.icj-cij.org/docket/files/91/10797.pdf
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States),
Jurisdiction and Admissibility, Judgment of 27 June 1986, (1986) ICJ Rep., available at:
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Jurisdiction and Admissibility, Judgment of 24 May 1980, (1980) ICJ Rep., available at:
Nuclear Tests Judgment (New Zealand v. France), Jurisdiction and Admissibility,
Judgment of 20 December 1974, (1974) ICJ Rep., available at: http://www.icj-
Case Law of ICTY:

Prosecutor v. Stanišić and Simatović, (Trial) Decision on Prosecution Motion for Admission
of Redacted Copies of Confidential Exhibits as Public Exhibits, Case No. IT-03-69, Trial
Chamber I, 23 August 2010, available at:
http://www.icty.org/x/cases/stanisic_simatovic/tdec/en/100823.pdf
Prosecutor v. Perišić, (Trial) Decision on Request to Make Certain Documents Public, Case
No. IT-04-81, Trial Chamber I, 26 July 2010, available at:
http://www.icty.org/x/cases/perisic/tdec/en/100726.pdf
Page 42
Prosecutor v. Slobodan Milosevic, Decision on Motion for Judgement of Acquittal, Case

No. IT-02-54-T, Trial Chamber III, 16 June 2004, available at:
http://www.icty.org/x/file/Legal%20Library/jud_supplement/supp50-e/milosevic.htm
Prosecutor v. Milosevic, Second Decision on Admissibility of Supreme Defence Council
Materials, Case No. IT-02-54-T, Trial Chamber III, 23 September 2004, available at:
http://www.icty.org/x/cases/slobodan_milosevic/tdec/en/040923.htm
Prosecutor v. Krstic, Appeals Chamber Judgment, Case No. IT-98-33, 2004, Appeals
Chamber, 19 April 2004, available at:
http://www.icty.org/x/cases/krstic/acjug/en/krs-aj040419e.pdf
Prosecutor v. Krstic, Trial Judgment, Case No. IT-98-33, 2004, Trial Chamber I, 2 August
2001, available at: http://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf
The Prosecutor v. Tadic (Tadic Appeals Chamber case), Judgement, Case No. IT-94-1-A,
Appeals Chamber, 15 July 1999, available at:
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Prosecutor v. Tadic (Tadic Trial Chamber case), Opinion and Judgement, Case No. IT-94-
1-T, Trial Chamber II, 7 May 1997, available at:
http://www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf
Case Law of Human Rights Chamber of Bosnia and Herzegovina:

Ferida Selimović et al. v. the Republika Srpska (The ―Srebrenica Cases‖), Decision on
Admissibility and Merits, CH/01/8365 et al., 7 March 2003, available at:
http://www.hrc.ba/DATABASE/decisions/CH01-
8365%20Selimovic%20Admissibility%20and%20Merits%20E.pdf
List of Documents and Declarations

Izvestaj komisije o Srebrenici (The RS Government Commission‘s Report on Srebrenica),
October 2004, available at: http://www.srebrenica-
project.com/DOWNLOAD/Izvestaj_komisije_o_Srebrenici_oktobar_2004.pdf
ICTY Press Release, Statement of the Office of the Prosecutor, 16 April 2007, available at:
http://www.icty.org/sid/8879
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
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
Page 44
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
Page 45
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.
Page 46
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
Page 47
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
Page 48
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).
Page 49
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
Page 50
should require that the defendant

append a signed document detailing
the facts underlying the original
charges (not just the reduced charges
as in the Plavšić case). Similar to the
full admissions that were required as
a condition for receiving immunity
from prosecution by the South Africa
Truth and Reconciliation
Commission112.
Concluding remarks
Establishing a historical record or a

judicial truth of the crimes that took
place during a war is an important
function of any international criminal
tribunal. Establishing the truth is a
prerequisite for any hope of
reconciliation and prevention of
historical revisionism which can lead to
new conflicts. Even though plea
agreements are a useful tool in dealing
with domestic crimes, their employment
in international war crime tribunals
may lead to a distortion of truth,
particularly in the case of charge
bargaining. By sacrificing or trading
truth for efficiency, international
criminal tribunals may fail in reaching
the goal of reconciliation and thus fail to
fulfill their mandate of ―restoration and
maintenance of peace113‖.
112 Michael P. Scharf, Trading Justice for Efficiency:

Plea Bargaining and International Tribunals, Journal
of International Criminal Justice 2 (2004), 1070-
1081.
113 United Nations Security Council Resolution 827,
25 May 1993., para 6.
Page 51
Bibliography
Lederach, John Paul, (1997) Building Peace: sustainable reconciliation in divided

societies /, United States Institute for Peace Press
Morris V. and Scharf M.P., An Insider‘s Guide to the International Criminal Tribunal
for the Former Yugoslavia, Vol. 2 (Irvington-on-Hudson, New York: Transnational
Publishers, Inc., 1995).
Scharf, Michael P., (2004) Trading Justice for Efficiency: Plea Bargaining and
International Tribunals, Journal of International Criminal Justice 2
Tieger, Alan and Shin Milbert, (2005) Plea Agreements in the ICTY, Purpose Effects
and Propriety, Journal of International Criminal Justice 3
Truth and Reconciliation Commission of South Africa Report
Wilson, Richard A., (1964) The politics of truth and reconciliation in South Africa:
legitimizing the post-apartheid state, Cambridge University Press
Page 52
CRIMINAL PROSECUTION AND

DOES PLEA BARGAINING HELP
IN FOSTERING
RECONCILIATION?
PLEA AGREEMENTS BEFORE THE BOSNIA
AND HERZEGOVINA WAR CRIMES
CHAMBER
By Elena Atzeni*
ABSTRACT
This essay expounds on the advantages and disadvantages of plea

bargaining in war crimes trials, notably in the context of BiH War Crimes
Chamber. The ruling about Dušan Fuštar will be taken as a case in point
for essentially two merits: first, it illustrates the difference existing
between ―charges‖ bargaining and ―sentence‖ bargaining. In so doing, I
will illustrate why an agreement on the scope of the sentence should be
preferred to one involving dropping charges. Secondly, I will assess the
rationale behind the court‘s mitigating of the sentence and thereby will
draw some final remarks as to the most apt way to deal with plea
agreements in the context relevant to this study.
* 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.
Page 53
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.
Page 54
and sentence bargaining. While both wording of this article, notably

these practices fall within what is paragraphs (1) and (2),120 suggests a
commonly defined ―plea bargaining‖, in preference for an agreement which
the context of BiH the application of involves the scope of the sentence to be
bargained justice in the form of sentence imposed, rather than the number and
bargaining would seem more appropriate. type of charges. Furthermore, other
This conclusion stems, first of all, from arguments support this conclusion: those
the provision of Article 231 of the BiH who endorse bargained justice often
Criminal Procedure Code itself.119 The underline the advantages of the
defendant‘s cooperation, a scenario that
may help establishing historical truth as
well as the gathering of evidence
119 (1) The suspect or the accused and the otherwise hard to obtain. However, for the
defense attorney, may negotiate with the Prosecutor sake of a balance between advantages and
on the
conditions of admitting guilt for the criminal
disadvantages, one must keep in mind
offense with which the accused is charged. that the objective of historical truth can‘t
(2) In plea bargaining with the suspect or the be overestimated: the truth pursued
accused and his defense attorney on the through a judicial process is likely to be
admission of guilt pursuant
to Paragraph 1 of this Article, the Prosecutor
incomplete, even more so if certain
may propose an agreed sentence of less than the charges are being dropped. Thus the
minimum consequences of dropping charges are
prescribed by the Law for the criminal offense(s) easy to comprehend when one considers
or a lesser penalty against the suspect or the
accused.
that the purpose of a trial is to ascertain
(3) An agreement on the admission of guilt shall facts that might be key to determine if the
be made in writing. The preliminary hearing accused committed or not the crimes for
judge, judge which he is being tried. Likewise, it needs
or the Panel may sustain or reject the agreement
in question.
to be considered that dropping of specific
(4) In the course of deliberation of the agreement charges, for instance genocide, might also
on the admission of guilt, the Court must ensure lead to further denial by alleged
the perpetrators.
following:
(a) that the agreement of guilt was entered
voluntarily, consciously and with understanding, To ensure that plea bargaining elicits
and that the positive effects (i.e. contributing to
accused is informed of the possible reconciliation through acknowledgment of
consequences, including the satisfaction of the
claims under
guilt by perpetrators, contributing to
property law and reimbursement of the expenses establish the truth, etc.) and that its
of the criminal proceedings; shortcomings are curbed, a number of
(b) that there is enough evidence proving the criteria must be met. Firstly, no
guilt of the suspect or the accused;
(c) that the suspect or the accused understands
agreement should be made between the
that by agreement on the admission of guilt he Prosecution and the Defense prior to
waives confirmation of the indictment. 121
his right to trial and that he may not file an
appeal against the pronounced criminal
sanction. proceeding and the defense attorney about the
(5) If the Court accepts the agreement on the rejection and say so in the record. Admission of
admission of guilt, the statement of the accused guilt
shall be given before the preliminary proceeding judge,
entered in the record. In that case, the Court preliminary hearing judge, the judge or the Panel
shall set the date for pronouncement of the is
sentence inadmissible as evidence in the criminal
envisaged in the agreement referred to in proceeding.
Paragraph 3 of this Article within three (3) days (7) The Court shall inform the injured party
at the latest. about the results of the negotiation on guilt.
(6) If the Court rejects the agreement on the 120 Ibid.
admission of guilt, the Court shall inform the 121 For the agreement to be entered
parties to the voluntarily, consciously and with understanding, the
Page 55
Secondly, in a view of fostering most sensitive issue relates to the right to

reconciliation, in-court confessions be presumed innocent. This presumption,
should be preferred to agreements in fact, can only be overridden by
reached before the trial in private and establishing proof of guilt beyond
then presented to the judges for reasonable doubt; this means that the
approval.122 Lastly, judicial review of the confession of an accused cannot be the
agreement plays a crucial role in the sole basis for a conviction. Therefore
system. It is critical that the fair and where the prosecution has presented its
transparent achieving of justice is case and the accused, assisted by a
perceived as such by the population, and counsel and duly informed about the
that evidence supporting the plea scope of its declaration, decides to plead
agreement is thoroughly reviewed by the guilty, it doesn‘t seem incompatible with
judicial bench. his rights recognized under the European
Convention on Human Rights.
Furthermore, it is necessary that the
procedure involving plea bargaining is The second point that this paper takes up
carried out in compliance with the are the mitigating circumstances to which
guarantees set out in various human the Judges attached considerable value in
rights treaties, especially those provided determining the appropriate sentencing.
for by Article 6 of the European In assessing the gravity of the crimes
Convention on Human Rights.123 The committed, judges typically weigh the
abstract gravity, the concrete gravity of
the facts, the level of intent and level of
defendant must have a complete knowledge of the participation of the accused. To establish
charges against him and the fact supporting these the reduction that they may warrant in
charges. case a plea agreement is presented, the
122 Agreements are not binding on the judges
in reaching their final decision about the sentence to
judicial bench needs to strike a balance
be served. between the gravity of crimes perpetrated
123 Article 6 – Right to a fair trial and the number of mitigating
1. In the determination of his civil circumstances.
rights and obligations or of any criminal
charge against him, everyone is entitled to
a fair and public hearing within a In the case of Dušan Fuštar the Chamber
reasonable time by an independent and mainly took into consideration four
impartial tribunal established by law. elements. First of all, the same fact of
Judgment shall be pronounced publicly but
the press and public may be excluded from
pleading guilty which, also pursuant to
all or part of the trial in the interests of
morals, public order or national security in
a democratic society, where the interests of
juveniles or the protection of the private life
of the parties so require, or to the extent c. to defend himself in
strictly necessary in the opinion of the person or through legal assistance
court in special circumstances where of his own choosing or, if he has
publicity would prejudice the interests of not sufficient means to pay for
justice. legal assistance, to be given it free
2. Everyone charged with a criminal when the interests of justice so
offence shall be presumed innocent until require;
proved guilty according to law. d. to examine or have
3. Everyone charged with a criminal examined witnesses against him
offence has the following minimum rights: and to obtain the attendance and
a. to be informed promptly, examination of witnesses on his
in a language which he behalf under the same conditions
understands and in detail, of the as witnesses against him;
nature and cause of the e. to have the free
accusation against him; assistance of an interpreter if he
b. to have adequate time cannot understand or speak the
and facilities for the preparation of language used in court.
his defence;
Page 56
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.
To draw some conclusions, first of all it

must be said that efficiency appears the
strongest element in support of plea
bargaining. Despite this fact, guilty pleas
may well have the potential to contribute
to societal reconciliation and to the
maintenance of peace. To this end a
number of criteria must be met in the
process of plea bargaining, so as to avoid
perception among victims that the
accused is eluding punishment and to
confer legitimacy to the final judgment;
the latter objective can be met by reaching
the judgment in respect of procedural
levels of society and from every part of the
fairness. Since trials are still considered country see putting war crimes suspects on trial
the most legitimate and credible way to as a necessity with no serious alternative. The
deal with war criminals and past mass overwhelming opinion is that those who
atrocities,125 it is crucial that aspects of committed war crimes must be brought to
justice, and that trials are the most legitimate
and credible way to do so‖. See United Nations
124 See Sentencing Judgment, Erdemović (IT- Development Programme (UNDP), Transitional
96-22), Trial Chamber, 29 November 1996 and also Justice in Bosnia and Hercegovina: Situation
(Sentencing Judgment, Plavšić (IT-00-39&40/1-S), Analysis and Strategic Options ^ Mission Report
Trial Chamber, 27 February 2003. for UNDP, August 2005 (Sarajevo: UNDP, 2005)
125 ―The people of BiH overwhelmingly identify 1^43, at 14.
criminal justice as the most legitimate response,
if not the only response, to crime. People at all
Page 57
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Page 58
REPORTS ON THE
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.
Page 59
Introduction entities: the Federation of BiH (the

Transitional justice is a way to address Federation) and the Republika Srpska
widespread violations of human rights. It (RS) and of a region called Brčko District.
seeks to promote possibilities for peace, The Constitution of the country, which
reconciliation and democracy.126 happens to be the Annex 4 of the Dayton
Transitional justice mostly refers to four Agreement, established a central
specific areas: truth-seeking, criminal government with a bicameral legislature,
prosecutions, reparations to victims and a three-member presidency (consisting of
institutional reform.127 It is impossible to a Bosniak, a Bosnian Croat and a
achieve the goal of transitional justice Bosnian Serb), a council of ministers, a
unless all of these pillars are inter-linked constitutional court, and a central bank.
and fulfilled.
This paper covers only parts of criminal However, the Dayton Agreement was not
justice, truth-telling and vetting. only signed to stop the hostilities, but also
Reparations to victims are a very complex to lay down the requirements for a
field that requires its own research. durable peace through the process of
Though much has been done in Bosnia reconciliation and different transitional
and Herzegovina (BiH) regarding justice mechanisms have been set up as a
reparations, this issue will not be treated result. It is hard, and maybe useless to
in this paper. try to paint a clear and coherent picture
15 years have passed since the signing of of the different transitional justice
the 1995 Dayton Peace Agreement which initiatives in BiH. Indeed, there is no
ended the war in the former Yugoslavia. global strategic vision that leads to the
The war devastated the whole region, but introduction of a new politic of
especially BiH, where the death toll, reconciliation; we thus have to look closer
although hard to estimate is more than at what is really going on inside the
100.000128. Moreover, there were country, on the ground. This paper is a
approximately 2 million displaced persons short review of the main transitional
according to the UN Refugee Agency 129. It justice mechanisms put in place in BiH, a
is important to mention that there are no review that will show the political tensions
official figures on death tolls in BiH, thus that are in the background of the process
figures are often used by BiH politicians of reconciliation.
for manipulation purposes. The number As has already been said, in order to
of deaths that occurred during the war insure a lasting peace and reconciliation,
should be identified as these figures are different transitional justice mechanisms
needed for transitional justice purposes. were introduced. It seems that a great
The Dayton Agreement established a focus was put on trials (I), especially with
complex political structure to the International criminal Tribunal for the
accommodate Bosnian Muslims Former Yugoslavia (ICTY), though not
(Bosniaks), Bosnian Serbs and Bosnian forgetting prosecutions in local courts and
Croats. BiH is thus composed of two in the specialized War crimes Chamber in
the Court of BiH. The Human Rights
126 ―What is transitional justice?‖. International
Chamber, created by the Dayton
Center for transitional justice. Updated December Agreement, led to important judgments
2008. <http://www.ictj.org/en/tj/>. 19.11.2010. that paved the way for the creation of
127 ―What is transitional justice?―. Office of the High
truth seeking commissions (II), as the so
Commissioner for Human Rights. 12.04.2007.
<http://nepal.ohchr.org/en/resources/publications
called Srebrenica. Later on, the Sarajevo
/TJ%20brochure_E.pdf>. 19.11.2010. commission was established according to
128 ―The former Yugoslavia Conflicts―. ICTY – TPIY. a Council of Ministers‘ decision 130. At the
<http://www.icty.org/sid/322>. 19.11.2010.
129 ―Briefing Note on UNHCR and Annex 7 in BiH‖.
UNHCR Representation in BiH. October 2007. 130 Vijeće Ministara BiH.

<http://www.unhcr.ba/protection/DPsbackgroundn <http://www.vijeceministara.gov.ba/akti/odluke/?i
ote.pdf>. 19.11.2010. d=84 >. 19.11.2010.
Page 60
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.
Page 61
would have provided for the extension of

Because of the attention being focused on the mandate of international judges and
the ICTY for so long, BiH‘s justice system prosecutors.139 However, by an imposed
has suffered from neglect, and there is a Decision of the High Representative in
fear that the judiciary is still under the BiH, the mandate of international judges
influence of executive, nationalist and prosecutors was extended. 140
elements, and political parties. 136
However, as will be analyzed later on, Unfortunately, however needed and
steps have been taken to reform the wanted is the justice at the national level,
judiciary (see III). it is said that even if all the Courts in BiH
would only deal with war crimes cases, it
That is mainly why the Court of BiH was would take up to 50 years to wrap up all
created. The Law concerning this Court the trials. Even though, the War Crimes
was adopted in July 2002 by the Strategy was adopted in December 2008,
Parliament of BiH and promulgated in and provides for the ―prosecution of the
November 2002 by the High most complex and top priority war crimes
Representative in BiH.137 The ICTY is now cases within 7 years and other war crimes
transferring cases involving intermediate cases within 15 years from the time of
and lower-rank accused to this court. adoption of the Strategy‖141; it seems that
The cases transferred fall into two these goals are unachievable. Indeed, the
categories of the so-called Rule 11bis Strategy foresees the transfer of less
cases, where the indictment has already complicated cases to local courts; but the
been issued and confirmed, and cases slow pace of referring war crimes cases to
still under investigation in which no lower courts is totally jeopardizing the
indictment has been issued, where the possibility of meeting the 15 years goal set
local prosecutor will finish the down by the Strategy.142
investigations and if appropriate, issue
the indictments.138 There is however a relatively positive story
in the area of justice in BiH, that of the
The Court of BiH which has jurisdiction Human Rights Chamber which has
over both entities and the special War wielded some positive results.
Crimes Chamber are composed of both
international and national judges and
prosecutors.
In 2009, both Houses of the BiH

Parliament rejected the amendments to 139 ―Court and Prosecutor's Office of BiH on the
the Law on the Court of BiH and the Law decision of the BiH Parliament‖. Court of BiH.
02.10.2009.
on the Prosecutor‘s Office of BiH which <http://www.sudbih.gov.ba/index.php?id=1387&jez
ik=e>. 19.11.2010.
140 ―Support for the Decision of the High
136 ―BiH‘s 2010 Progress Report‖. European Representative in BiH on the extension of mandates
Commission. 09.11.2010. of international judges at the Court of BiH‖. Court of
< BiH. 15.12.2009.
http://ec.europa.eu/enlargement/pdf/key_documen <http://www.sudbih.gov.ba/index.php?id=1461&jez
ts/2010/package/ba_rapport_2010_en.pdf>. ik=e>. 19.11.2010.
19.11.2010. 141 ―National war crimes strategy‖. Geneva Academy
137 Court of BiH. of International humanitarian law and human
<http://www.sudbih.gov.ba/?opcija=sadrzaj&kat=7 rights. December 2008. <http://www.adh-
&id=15&jezik=e>. 19.11.2010. geneva.ch/RULAC/pdf_state/War-Crimes-Strategy-
f-18-12-08.pdf>. 19.11.2010.
138 ―BiH: Selected developments in transitional 142 Dzidic, Denis. ―Slow Transfer of Cases
justice.‖ International Center for Transitional Undermines War Crimes Strategy‖. Balkan
Justice. October 2004. Investigative Report Network. 05.01.2010.
<http://www.ictj.org/images/content/1/1/113.pdf> <http://www.bim.ba/en/200/10/24791>.
. 19.11.2010. 19.11.2010.
Page 62
2. Human Rights Chamber revisionist accounts.145 A second initiative

to establish a TRC led by the US Institute
The Chamber was set up as part of the of Peace and NGO Dayton Project failed
Human Rights Commission under the at the end of 2005.146
Dayton Agreement and was composed of
international and national jurists. Its For better or worse, there is still no TRC
jurisdiction covered cases involving in BiH. The obstacles to its creation
violations of the European Convention for surely lie at the national level.147 However,
the Protection of Human Rights and it is possible to notice that so far there is
Fundamental Freedoms (ECHR) and other no space in BiH for a TRC. Indeed, a TRC
human rights treaties. Its decisions were may not be the most suitable model of
final and binding upon all three levels of truth telling in BiH. Anyhow, transitional
BiH government.143 justice standards to not require the
existence of a truth commission per say,
Many of the cases involved wartime there might be other suitable truth telling
violations of human rights that local mechanisms.
courts were unable or unwilling to
resolve. Indeed, the constant rise in A few commissions were created, but the
applications during the Chamber‘s years success of their work is doubtful. Thus,
of operation suggests that, for many in the Srebrenica (A), Sarajevo (B) and
BiH, the Chamber represented the best or Bijeljina (C) commissions will shortly be
last recourse for obtaining some form of mentioned. After that, the new coalition
justice.144 As it was provided for in the for RECOM (D) will be pointed out.
Dayton Peace Agreement, the Chamber
was disbanded and the backlog of cases A. The commission for
was transferred to, the largely unprepared investigation of the events in
BiH Constitutional Court. and around Srebrenica between
10 and the 19 July 1995
Among other decisions, the Chamber
issued important decisions in cases of The Chamber of Human Rights was
unresolved disappearances, in which the confronted with cases being brought by
families had no information about their the family of the victims of Srebrenica. It
loved ones. These decisions led to the ordered in March 2003 to the government
creation of the Srebrenica Commission. of RS to launch an investigation into the
events that happened in Srebrenica in
II. Truth seeking mechanisms July 1995, and to share all the
information that it had in its possession.
In 1997, a proposal was developed by the The commission for investigation of the
US Institute of Peace to discuss the events in and around Srebrenica between
establishment a Truth and Reconciliation 10 and the 19 July 1995 was established
Commission (TRC), which, could help by RS in December 2003, in accordance
establish the facts about the nature and with an Office of the High Representative
scale of past violations and serve as a
safeguard against nationalist or
145 ―Vodič kroz tranzicijsku pravdu u BiH‖.
Ministarstvo Pravde BiH.
<http://www.mpr.gov.ba/userfiles/file/Publikacije/
143 Human Rights Chamber for BiH. Vodic%20kroz%20tranzicijsku%20pravdu%20u%20
<http://www.hrc.ba/ENGLISH/DEFAULT.HTM>. BiH.pdf>. 19.11.2010.
19.11.2010. 146 Ibid.
144 ―BiH: Selected developments in transitional 147 ―BiH: Selected developments in transitional
justice.‖ International Center for Transitional justice.‖ International Center for Transitional
Justice. October 2004. Justice. October 2004.
<http://www.ictj.org/images/content/1/1/113.pdf> <http://www.ictj.org/images/content/1/1/113.pdf>
. 19.11.2010. . 19.11.2010.
Page 63
mandate ―aiming to establish lasting Jews and Others in Sarajevo in period

peace and build confidence in BiH‖148. 1992- 1995.
This included investigating the crimes,
discovering who committed and ordered This commission‘s mandate is to pursue
them, and locating the mass graves. the truth concerning the killings,
The commission received approximately incarcerations, rapes, expulsions, missing
1,800 applications and 32 mass graves and other violations of the Geneva
were discovered. In June 2004 it Convention during the siege of Sarajevo.
published its final report and an But since its creation, the commission is
addendum was added in October 2004. 149 not progressing in its work and its
The conclusion states in unambiguous members no longer meet. The commission
terms that on July 10–19, 1995, several is heavily criticized by civil society, the
thousand Bosniaks were ―liquidated‖ and media, political parties as well as
the perpetrators and others ―undertook international actors.151
measures to cover up the crime‖ by It seems that the idea behind the
moving bodies away from the killing commission has been over-politicized.
site.150 Thus, no results can be achieved. Despite
these problems, a third commission was
The government of RS took into account nevertheless created a few years ago.
the report of the Srebrenica Commission,
and without delay, Serbian political C. The Bijeljina Commission
figures and family of victims started a
campaign for the creation of a The Bijeljina Commission is unfortunately
Commission for Sarajevo that would a failed truth commission, which was set
investigate crimes against Serbs up in 2007 by a decision of the
committed during the war. municipality of the town of Bijeljina. It
was meant to have a four-year mandate.
B. Commission for investigating of The commission started its work and two
Sufferings of Serbs, Croats, public hearings were held in 2008.
Bosniaks, Jews and Others in Nevertheless, in March 2009, without
Sarajevo in between 1992-1995 being formally disbanded, the commission
ceased to work. A lot of factors lead to this
The birth of the Sarajevo commission is situation: a lack of funding,
indivisible from the existence of the disagreements among the members of the
Srebrenica commission. The Sarajevo commission, and the presence in the
Commission was created in June 2006 by commission of the commander of the
a decision of the Council of Ministers, notorious Batković detention camp. 152
after long lasting political delays but is
called the Commission for investigating of
Sufferings of Serbs, Croats, Bosniaks,
148 ―Commission for Investigation of the Events in

and around Srebrenica between 10 and 19 July 151Buljugic, Mirna. ―No progress for Sarajevo Truth
1995‖. Justice in Perspective. Commission.‖ Balkan Investigative Reporting
<http://www.justiceinperspective.org.za/index.php? Network. 20.02.2007.
option=com_content&task=view&id=54&Itemid=100 <http://www.bim.ba/en/51/10/2327/>.
>. 19.11.2010. 19.11.2010.
149Ibid. 152 ―BiH - Submission to the Universal Periodic

150 ―BiH: Selected developments in transitional Review of the UN Human Rights Council‖.
justice.‖ International Center for Transitional International Center for Transitional Justice. 8
Justice. October 2004. September 2009.
<http://www.ictj.org/images/content/1/1/113.pdf> <http://www.ictj.org/static/Publications/UPR_BiH_
. 19.11.2010. Sep2009.pdf>. 19.11.2010.
Page 64
D. The Initiative for Establishing a To conclude on truth seeking

Regional Commission for Truth- mechanisms, a quote often attributed to
seeking and Truth-telling About Winston Churchill seems relevant here: ―If
War Crimes (RECOM) you have a problem that you do not want
to solve, create a commission‖.156 Indeed,
The Coalition for RECOM is a network of it appears that the commissions which
nongovernmental organizations (NGOs) were created are the fruits of political
and associations, who represent the decisions taken in accordance with
initiative for establishing a regional, political circumstances. Thus, a
independent, impartial, and official commission created by men in power will
commission with a mandate to not establish the truth simply because
investigate, establish, and publicly there is no political will for that. So,
disclose the facts about serious human sometimes there is no will to create a
rights violations, including war crimes, commission and the commission is
committed in the past on the territory of created due to political reasons and the
the former Yugoslavia. results are often disappointing.
The founding of the Coalition occurred Finally, last but not least, the vetting of
after a two-year long process of public officials was conducted in BiH.
consultations with civil society about
mechanisms for addressing the legacy of III. Vetting of public officials
the armed conflicts in the 1990‘s.153 This
commission is to be established on the In the past few years, police officers,
basis of the common will of the judges and prosecutors in BiH had to
governments of BiH, Croatia, Kosovo, undergo a vetting process. Indeed, firstly
Macedonia, Montenegro, Serbia, Slovenia, police officers were reviewed and around
and with the support of the United 24.000 of them were vetted between 1999
Nations and the European Union.154 and 2002.157 Secondly, between 2002 and
2004 all judges and prosecutors had to
Although the idea of such a commission is reapply for their positions and thus went
welcome, it appears that the probability through a vetting process. In fact, three
that it will start working is slim. Indeed, it High Judicial and Prosecutorial Councils
is difficult to bring all the governments to screened the appointments of
such an agreement and the practicalities approximately 1.000 judges and
of its structure and members are certainly prosecutors during the period and
hard to determine in order to please rejected about 200 of them.158
everyone.
Moreover, since its creation, the coalition
for REKOM lost the support of some key
NGOs and victim‘s group. Amongst them
is the Research and Documentation
center which was one of the founders of 156 Jonhanneau, Cécile. "« Si vous avez un problème
que vous ne voulez pas régler, créez une
the coalition.155 Besides, there has still
Commission ». Les commissions d‘enquêtes locales
been no support of any governments dans la Bosnie-Herzégovine d‘après-guerre."
towards this initiative. Mouvement des idées et des luttes March – May
2008: 166-174.
157 ―BiH: Selected developments in transitional
153 Ibid. justice.‖ International Center for Transitional
154 Koalicija za REKOM. Justice. October 2004.
<http://www.korekom.org/webpage/1>. <http://www.ictj.org/images/content/1/1/113.pdf>
19.11.2010. . 19.11.2010.
155For further details: ―Odgovor REKOM-a 158 ―The Former Yugoslavia‖. International Center for
organizacijama koje su istupile iz Koalicije‖. Transitional Justice.

Peščanik. 01.06.2010. http://www.ictj.org/en/where/region4/510.html>.
<http://www.pescanik.net/content/view/5102/61/ 19.11.2010.
>. 19.11.2010.
Page 65
Conclusion
The main transitional justice mechanisms

put in place in BiH were analyzed in this
paper. Indeed, apart from the reparations
to victims which were set aside, the
national and international trials, the
different truth seeking mechanisms and
the vetting process of public officials were
examined. It seems that the trials that
took place at international and national
level were not enough to ensure
reconciliation and that a TRC could not
be established until now. Indeed, it
appears that there is no place for such a
Commission in BiH. As for the other
commissions that we created, only the
Srebrenica commission gave some results.
Concerning the institutional reforms,
some vetting of public officials took place
in the past few years.
Nonetheless, in January 2010, the BiH
Council of Ministers adopted a decision
on the establishment of a Working Group
tasked with drafting a National strategy
on transitional justice. According to the
results of consultations that took place in
the country, the future strategy will be
divided in 3 pillars: 1. Determining the
facts, 2. Reparations and memorials, 3.
Institutional reform.159
Once drafted, this strategy will be sent to
the BiH Council of Ministers, the
Federation, the RS and Brčko District for
adoption. Hopefully, this strategy will
enable BiH to finish its transitional justice
process.
159 ―Informacija o procesu izrade strategije

tranzicijske pravde u BiH‖. Ministarstvo Pravde BiH.
<http://www.mpr.gov.ba/userfiles/file/Projekti/20_
10_10%20HJ%20Informacija%20o%20STP%20u%20
BiH.pdf>. 19.11.2010.
Page 66
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Page 68
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
The concept of an international administration has lead to a significantly

constrained state sovereignty and affects the lives of millions of people
directly. The authority exercised by international administrators as in
Bosnia and Herzegovina is extensive, including the power to legislate. It is
vital for an international administration‘s domestic legitimacy that its
authority is justified through participation of citizens within a polity. The
right to political participation is recognized as a fundamental right in
article 3 Prot. 1 to the ECHR. Therefore, the author examines if article 3
Prot. 1 to the ECHR is applicable to the legislation adopted by the
international administrator and thereby if citizens of Bosnia and
Herzegovina enjoy the right to participate in the legislative procedure of
the High Representative. This will be analyzed at the national level in light
of the theory of functional duality as developed by the Constitutional Court
of Bosnia and Herzegovina. Lastly, the paper examines if citizens can
enforce their right to participation which will be examined by analyzing if
the Constitutional Court has the competence to review the legislation of the
High Representative on compatibility with article 3 Prot. 1 to the ECHR.
*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
Page 69
Introduction arose on the applicable standards to these

legislative acts.
The concept of an international
administration160 has lead to a One possible standard is article 3 Prot. 1
significantly constrained state sovereignty to the European Convention for the
and affects the lives of millions of people Protection of Human Rights and
directly. The authority exercised by Fundamental Freedoms (hereafter
international administrators as in Bosnia ‗ECHR‘), which ensures a democratic
and Herzegovina (hereafter BiH) is society through protecting political
extensive, including the power to legislate. participation in the decision-making
It is vital for the domestic legitimacy of an process of governmental authorities,
international administration that its thereby ensuring free election of the
authority is justified through participation legislative body and the functioning
of citizens within a polity.161 thereof.
The international administrator in BiH, Therefore, this paper examines whether or

the Office of the High Representative not the citizens of BiH have a right to
(hereafter OHR), is responsible for the political participation within the
civilian implementation of the Dayton legislative procedure of the OHR, more
General Framework Agreement for Peace specifically whether article 3 Prot. 1 to the
in Bosnia and Herzegovina (hereafter ECHR is applicable to the legislative
DPA).162 The domestic authorities retained activities of the OHR, and if so, whether
full sovereignty in BiH; the OHR has the citizens can enforce this right within BiH‘s
power to intervene in the domestic legal domestic courts.
order when it is deemed necessary. For
some time it was unclear how legislation In order to answer these questions, firstly
adopted by the OHR should be qualified the importance of participation will be
and thereby reviewed. The Constitutional addressed in light of the functioning and
Court of BiH (hereafter ‗Constitutional mandate of the OHR. Thereafter, the
Court) developed the theory of functional applicability of the provision to the
duality in order to review legislation legislative activities will be assessed in
adopted by the OHR on compatibility with light of the theory of functional duality as
the Constitution of BiH. With the developed by the Constitutional Court,
development of this theory as a means to subsequently it will be examined if the
hold an international administrator Constitutional Court has the competence
accountable domestically when adopting to review the compatibility of legislative
domestic legislative acts, new discussions activities of the OHR with article 3 Prot. 1
to the ECHR. The article will conclude
with placing this topic in its legal and
160 Stahn defined an international administration as political context in BiH.
‗the exercise of administering territory by an
international entity for the benefit of a territory that The role of participation in an
is temporarily placed under international
supervision or assistance for a communitarian
international administration and more
purpose‘. C. Stahn, The Law and Practice of specifically in BiH
International Territorial Administration: Versailles to
Iraq and Beyond, Cambridge: Cambridge University The importance of participation within
Press, 2008, pp. 2-3.
161 Bodanksy defined legitimacy as relating to ‗the international administrations was already
justification and acceptance of political authority‘ D. acknowledged in 1968 by the United
Bodanksy, ‗The Concept of Legitimacy in Nations.163 The degree of participation is
International Law‘, (2007) University of Georgia
School of Law Research Paper No. 07-013, at 1.
162 The Dayton General Framework Agreement for 163The General Assembly of the United Nations
Peace in Bosnia and Herzegovina 10 December addressed the importance of participation in light of
1995, available at http://www.ohr.int/. the administering Namibia; See Stahn, Law and
Page 70
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
Page 71
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
OHR to remove persons from holding public office.

timeframe and a given context. 181 In other
172 See PIC Bonn Conclusions. See for further instances, the OHR drafts the legislation
explanation M. Schaap, Regulating the powers of the instead of the Parliamentary Assembly
High Representative, Erasmus University Rotterdam, with participation of parties‘
Master‘s thesis, 2009, p. 49; See for comments R.
Wilde, ‗The complex role of the legal adviser when
representatives and adopts the
international organizations administer territory‘,
ASIL Proceedings 251 (2001), p. 253.
173 The three constituent people are Bosniaks, Serbs 176 This paper will not look into the authority to
and Croats. For a critical review of this legislate by an international administrator. See for
Constitutional provision see European Commission criticism e.g. G. Knaus and F. Martin, ‗Lessons from
for Democracy through Law of the Council of Europe Bosnia and Herzegovina- Travails from the European
(Venice Commission), Opinion on the Constitutional Raj‘, Journal of Democracy 14 (2003), p. 60; Schaap,
Situation in Bosnia and Herzegovina and the Powers Regulating the powers of the High Representative.
of the High Representative (Venice, 11 March 2005), 177 However, all legislative acts adopted by the OHR
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.
Page 72
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,
applied to various international administrations, U 9/00, para 5.

such as East Timor and Kosovo. 189 Ibid. (emphasis added by author).
Page 73
and the national actor.190 The

Constitutional Court has the competence However, in 2006, the Constitutional
to review legislation of the Entities and Court had proven that its competence to
other domestic legislation if referred to the review legislative activities of the OHR was
Constitutional Court for review by any of not merely based on ‗tacit consensus
the other courts in BiH.191 Additionally, between the Court and the OHR‘ as
the Constitutional Court has appellate argued in 2004 by a former judge of the
jurisdiction ‗over issues under this Constitutional Court.197 In case U 6/06
Constitution arising out of a judgment of the Court concluded that for the first time
any other court in BiH‘. 192 Confronted that legislation adopted by the OHR was
with a question of review of legislation, incompatible with the Constitution.
the Court will examine the legislation on
compatibility with the Constitution and Assessing the applicability and
with the ECHR and its Protocols.193 As enforceability of article 3 Prot. 1 ECHR
mentioned the legislation imposed by the to the legislative activities of the OHR
OHR has the same constitutional status
as ordinary legislation and is therefore The right to political participation is a
subject to review by the Court on vital right in a democratic society. It
compatibility with the Constitution and requires state authorities to have some
with the ECHR and its Protocols. 194 The form of democratic legitimation. 198
interpretation of the Court on its Individuals have the right to participate in
competence to review legislative acts processes constituting the conduct of
adopted by the OHR has also been public affairs.199 Within the ECHR
referred to as the ‗Bosnian version of ... participation is protected by Article 3
Marbury v. Madison‘.195 In most cases the Prot. 1 to the ECHR. 200 The provision
Court concluded that laws and legislative ‗presupposes the existence of a
amendments adopted by the OHR were representative legislature, elected at
compatible with the Constitution.196 reasonable intervals, as the basis of a
democratic society.‘201 The essence is that
the political power to legislate should be
190 R. Wilde, ‗The accountability of international
organizations and the concept of function duality‘, in
subject to a freely elected legislature, as
W.P. Heere (Ed.), From Government to Governance, in the case of BiH the Parliamentary
Proceedings of the Sixth Hague Joint Conference, The
Hague: T.M.C. Asser, 2004, pp. 164-167.
191 Constitution of BiH, annex 4 to the Dayton Peace
Agreement, article VI (III) (1) (b) and (3).

192 Ibid., Article VI (III) (2). Deconstructing the Reconstruction,
193 Ibid. Burlington/Aldershot: Ashgate, 2008, p. 104. Also
194 B. Knoll, ‗Beyond the Mission Civilisatrice: the see Human Rights Chamber of Bosnia and
properties of a normative order within an Herzegovina, Case No. CH/02/12470, Decision on
internationalized territory‘, LJIL 19 (2006), 296; D.S. the Admissibility and Merits (October 10, 2003) and
Smyrek, Internationally administered territories – Case No. CH/02/9130, Decision on the Admissibility
International protectorates?, Berlin: Duncker and and Merits (January 6, 2003).
Humblot, 2006, p. 152. 197 J. Marko, ‗Five Years of Constitutional
195 Ibid; Supreme Court of the United Stated of Jurisprudence in Bosnia and Herzegovina: A First
America, Marbury v. Madison (1803), in which the Balance‘, European Diversity and Autonomy Papers
Supreme Court of the United States of America 16 (2004), 18.
defined their competence to exercise of judicial 198 C. Tomuschat, International Covenant on Civil
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
2001); Constitutional Court of Bosnia and Doc. CCPR/C21/Rev.1/Add.7.

Herzegovina, U 25/00 (March 23, 2001), all available 200 Steiner and Ademović (Eds.), Constitution of
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.
Page 74
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.
Page 75
remedy available against decisions of the legitimation of the decision-making

OHR removing a person from holding process. As mentioned earlier,
public office, thereby violating article 6 of participation can take various forms and
the ECHR.210 Thus, theoretically degrees. As said by the Venice
speaking, the Constitutional Court has Commission, the right will be deprived of
the competence to review legislative its content if a parliamentary assembly
activities of the OHR on compatibility with elected by the people will not be the
article 3 Prot. 1 to the ECHR, the question legislative body adopting the legislation. 213
arises whether the immunity of the OHR It is obvious that we cannot expect the
will result into a bar to review by the OHR to have a democratically elected
Constitutional Court.211 legislature because it would be
contradictory to the reason d‘être of the
The OHR‟s Immunity – a bar to review? OHR.214 Nevertheless, article 3 Prot. to the
ECHR should be interpreted in such a
As discussed previously, the legislative manner that it is applicable to the
activities of the OHR constitute legislative activities of the OHR and that it
simultaneously an act of an international set democratic standards for the
as well as a national actor. The OHR legislative activities in regards to
enjoys immunity for those decisions taken involvement of citizens.
in the capacity as international actor.
According to the Constitutional Court this Therefore, it can be argued that the Court
implies that the OHR‘s authority to has the competence to review the
legislate is not subject to review, whereas legislation of the OHR on compatibility
the product of the authority, the with article 3 Prot. 1 to the ECHR; it
legislation, is subject to the review as any should not barred by the immunity of the
other national legislative act. As OHR. In principle the right to
mentioned, in case U 9/00 the participation is enforceable, citizens could
Constitutional Court argued that it will go the domestic courts to enforce their
not review the procedure of the OHR to right, and however time will tell how the
adopt a law without a vote on it from the Constitutional Court will deal with this
Parliamentary Assembly, because it was question if confronted with it.
barred to do so due to the immunity of
the OHR. Consequently, the Court did not Conclusion
assess if it was justified for the OHR to
act instead of the democratically elected As often mentioned, the situation in BiH
Parliamentary Assembly.212 is complex; there is an OHR with
legislative power intervening into the
However, article 3 Prot. 1 to the ECHR is domestic legal order of BiH who enjoys
a classical right applicable to the immunity from court proceedings when it
legislation and to the legislator. This concerns his conduct as international
article sets the standards for participation actor. At the other end, there is a
into the legislative activities and is Constitutional Court which sets up a
thereby meant to serve as democratic system of review of the conduct of the
OHR when he acts as national actor. As
argued, citizens in BiH have a right to
210 Constitutional Court of Bosnia and Herzegovina, participate in the legislative procedures of
AP-954/05, Milorad Bilbija i Dragan Kalinić
(8/7/2006), available at http://www.ccbh.ba/.
211 This article does not address the possible
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.
Page 76
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.
Therefore, in order for citizens to enforce

their right to participation, the
Constitutional Court should take a
broader approach to the legislative
activities of the OHR and apply the
provisions of the ECHR to his legislative
activities. BiH as a member of the Council
of Europe is responsible ‗for commitments
in respect to the [Council of Europe] and
this responsibility has to be fulfilled by
the country and not by the [OHR]‘. 216
Consequently, the domestic courts need
to provide for a remedy against a violation
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.
Page 77
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Page 80
“TOMORROW PEOPLE, WHERE

IS YOUR PAST?” 218
Transitional Justice Mechanism

and Dealing with Past in Serbia
and Croatia
By Ana Ljubojević*
ABSTRACT
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.
* Ana Ljubojevic is currently involved in a PhD programme in Political Systems and

Institutional Change at IMT Institute for Advanced Studies Lucca, Italy. During the
academic year 2010/2011 she is Visiting Researcher Fellow at the Centre for the
Study of the Balkans at Goldsmiths College, University of London. Her research
area is transitional justice in Western Balkan countries, with a special interest in
reconciliation process. Recently, she concluded a regional "shared
narratives"project on political mythmaking in ex Yugoslavia after 1945 and
participated on numerous conferences where she presented her research work.
Mail: ana.ljubojevic@imtlucca.it and hss03al@gold.ac.uk
218 Ziggy Marley
Page 81
A combination of economic decay starting Transitional justice may include

in the 1980s, political illegitimacy of the either judicial and non-judicial
communist system and a failure to create mechanisms, with differing levels of
a common historical narrative led to the international involvement (or none at all)
outbreak of wars in Croatia and Bosnia. and individual prosecutions. Its
Almost a decade of war and violence mechanisms consist of criminal justice
devastated the economic and political oriented policies such as trials for war
systems of the former Yugoslav republics crimes or lack of trials. In addition
and had a huge impact on the social transitional justice mechanisms are
fabric. addressed to institutional reform (vetting
Mutually excluding ―truths‖ about and lustration), reparations and truth
these wars and the atrocities committed telling (truth commissions).
quickly developed, and were used in the A milestone document that defines
creation of new national identities, state obligations in case of great breaches
reinforcing at the same time the of human rights is the judgment in the
fragmentation of post-war societies. Velásquez Rodrigues vs Honduras case
The clash between ―us‖ and ―them‖ brought before the Inter-American Court
was strongly underlined, and each group of Human Rights. It clearly defines the
had a tendency to see their own country objectives of transition justice asserting
or nation or group as the victim of a that ―the State has a legal duty to take
conspiracy organized by other nation or reasonable steps to prevent human rights
group. Gellner argued that the national violations and to use the means at its
sentiment that relies on the relation and disposal to carry out a serious
the comparison with the others would be investigation of violations committed
politically more effective if nationalists within its jurisdiction, to identify those
had as fine a sensibility to the wrongs responsible, to impose the appropriate
committed by their nation as they have to punishment and to ensure the victim
those committed against it219. adequate compensation‖.
One of the most difficult questions In case of the successor states of
to be answered by a country in transition the former Yugoslavia traumatic legacies
from past conflicts to a democracy based of the past have to be dealt with in order
on the rule of the law is how the society to build a stable future; that special
shall deal with the atrocities and attention should go to the needs and
injustices of the past. Both legal and rights of people including in victims in
political developments of measures particular; and that only a comprehensive
concerning human rights gave as result approach will rebuild trust among citizens
notion of transitional justice. and between citizens and the state.
In the UN report ―The rule of law So far, apart from seldom attempts
in conflict and post-conflict societies‖ of truth commissions and lustration, the
transitional justice is described as ―the focus has been on prosecution of war
full range of processes and mechanisms crimes. Transition towards stable
associated with a society‘s attempts to democracy and strengthening of the rule
come to terms with a legacy of large-scale of law in all post-Yugoslav states was not
past abuses, in order to ensure possible without justice and
accountability, serve justice and achieve accountability for the committed crimes.
reconciliation‖220. The International Criminal
Tribunal for the former Yugoslavia (ICTY)
was established by United Nations
Security Council resolution 827221. This
219 Ernest Gellner, Nations and Nationalism, Cornell
University Press, 1983
220 Report of the Secretary General Kofi Annan, The 221 Full text of UNSC Resolution 827:
rule of law in conflict and post-conflict societies, http://daccessdds.un.org/doc/UNDOC/GEN/N93/
United nations Security Council, 2004 306/28/IMG/N9330628.pdf?OpenElement
Page 82
resolution was passed on 25 May 1993 in implementation of the peace settlement,

the face of the serious violations of including the ICTY223.
international humanitarian law Consequently, the EU made this
committed in the territory of the former an important condition of its accession
Yugoslavia since 1991, and as a response policy vis-à-vis the Western Balkan
to the threat to international peace and countries concerned, making the start of
security posed by those serious violations. negotiations contingent on full
Among the aims of the ICTY, as cooperation with the ICTY.
reported in its Statute, appear statements For the ICTY to fulfil its broader
such as: mandate of contributing to peace and
Bringing a sense of justice to war- reconciliation it had to ensure that its
torn places; ―investigative and judicial work … [is]
Re-establishing the rule of law; known and understood by the people in
Providing a sound foundation for the region.‖224 Unfortunately, during the
lasting peace; first six years of the ICTY‘s work, the lack
Bringing response to victims and of resonance within the affected
providing an outlet to end cycles of communities due to the lack of any kind
violence and revenge; of community outreach programs,
Demonstration that culpability is resulted in broad misconceptions and
individual and not the understanding of the Tribunal‘s work. The
responsibility of entire groups; and legal professionals either took public
In a didactic mode, explanations relations for granted or as not being their
about what caused the violations, concern; they were also mainly interested
and illustrate particular patterns of in the development of International
violation222. Humanitarian Law; that is in ―the rules of
The task of the ICTY is to the game‖ instead of ―the actual content
understand the development of of the game‖. Even ten years after creation
international criminal justice within a of ICTY over 60% of the population in
political context and not to detach justice former Yugoslav Republics did not know
from politics. The fact is that there can what laws govern war crimes and 66%
never be a complete separation between had not received any information about
law and policy. No matter what theory of the kind of crimes for which one can be
law or political philosophy is professed, indicted225.
the inextricable bounds linking law and One of the main tasks of the media
politics must be recognised. Transitional is to attempt to paint comprehensive
justice, although situated at the niche of narratives about the past atrocities, to tell
human rights, represents its political stories that include everybody, regardless
development in many of its of his or her ethnicity or current
manifestations. residency. It is obvious that print media,
In the case of ICTY, the link radio and television may either aid the
between the law and the politics is process of truth seeking and
unusually close and transparent. It was
only in 1995 that the states created after
the dissolution of Yugoslavia had an
obligation to accept cooperation with the
223 Full text of Dayton Peace Agreement:
http://daccessdds.un.org/doc/UNDOC/GEN/N93/
ICTY. Article IX of the ―General framework 306/28/IMG/N9330628.pdf?OpenElement
agreement‖ (also known as Dayton 224 Judge McDonald, Outreach Symposium Marks the
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,
Justice Unsatisfied? Bosnian NGOs Speak about the

222 Statute of the ICTY: International criminal Tribunal of the Former
http://www.un.org/icty/legaldoc-e/index-t.htm Yugoslavia, 2000
Page 83
reconciliation, or be a major obstacle on happened. In the successor states of

that path. Yugoslavia national identities came to be
In the Balkan‘s region there are defined dialectically, in relation to one
multiple versions of the truth that build another. In terms of responsibility of war
new national narrative traditions. The crimes, issue raised was the existence of
detainees‘ ―shows and performances‖ in double standards for ―ours‖ and ―theirs‖.
courtrooms are creating postmodern Accused compatriots though still enjoy
myths in ex-Yugoslav society. Those the status of public heroes. It is necessary
myths have been created together with to outline that failing to raise a voice
the myths of rebirth of nationalism and about the committed crime is as if the
their impact is huge although their crime never happened. Therefore, the
appearance on the political scene is quite work of Tribunal is to be legal, political
recent226. and moral catalyst.
It may seem to be a paradox, One of the frequently stated goals
although one that can easily be explained, of prosecuting individuals for violations of
that in the times of Milosevic and international humanitarian law through
Tudjman, the Tribunal had more support the ICTY is to lift the burden of collective
in Serbia and Croatia than it has now 227. guilt from the nations in whose names
This had nothing to do with the violations were carried out, by tying the
opposition parties accepting the necessity violations to specific individuals who bear
of facing the bloody past and assigning criminal responsibility. Still, clear
personal responsibility in order to avoid distinction between collective
being saddled with collective guilt, but responsibility and collective guilt should
because the Tribunal was seen exclusively be made. Every nation in conflict is
as an instrument of political pressure bearing collective responsibility for the
which could be wielded to overthrow the acts its individuals committed in helping
regime. or not preventing them of doing it, while
Nevertheless, criminal justice no nation can be named criminal
intervention had, as former ICTY Chief nation229. All the criminals are individuals
Prosecutor Louise Arbour stated, ―a or are taking part of the criminal group or
weapon in the arsenal of peace‖228. They organization.
realized it only after they had exhausted This raises two important political
all other weapons in the traditional peace questions. Firstly, do legal institutions in
building armoury: diplomacy, conflict general offer an appropriate arena for the
management, bilateral and multilateral resolution of issues relating to national
negotiations and pressure, political and identity and guilt? Secondly, is the way in
economical sanctions and more or less which the ICTY functions effectively
credible threats. decoupling national identities from the
Social reactions to past war crimes notion of collective responsibility?
and human rights abuses are today
becoming more oriented towards
establishing truth and punishing 229 ―Zločinačkih naroda i nikada, baš nikada, ne
perpetrators. At present, almost 15 years moţe cijeli jedan narod biti odgovoran i kriv za ono
after the end of the war there is very little što su počinili pojedini njegovi pripadnici, ili
consensus among the former republics on organizirane skupine – ma kako velike i brojne bile.
official narratives about what actually Postoje individualni zločinci, postoje i zločinačke
skupine i organizacije, ali – kaţem još jednom –
zločinačkih naroda nema‖. (―There are no criminal
nations and never, absolutely never, an entire nation
226 Sabrina P. Ramet, The Dissolution of Yugoslavia: can be responsible for acts of some of its nationals
Competing Narratives of Resentment and Blame, or organized groups – no matter how large they were.
2007 There are individual criminals, there are criminal
227 Report by SENSE News Agency, 21 April 2002 groups and organizations, but – I‘ will repeat- there
228 Mirko Klarin, Tribunal Update, No. 141, are no criminal nations‖) Croatian President Mesić‘s
September 1999 speach on 8th February 2007
Page 84
The reply to this question may be former warring parties to demonstrate

searched by looking towards another their membership of the group of
International Tribunal. At the democratic countries and their
International Court of Justice (ICJ), a ―capability‖ of acceding to the EU 230. In
permanent court of United Nations, only order for the ICTY to refer proceedings it
states are eligible to appear before the must be sufficiently assured of the
latter in contentious cases. The issues of domestic judiciary‘s capability of
sentences between ex-Yugoslav republics, conducting the proceedings fairly and
seems though not to contribute to the adhere to internationally accepted
sense of collective responsibility. The case standards.
of Bosnia and Herzegovina against In general, national courts have a
Federal Republic of Yugoslavia greater impact on the society and its
represented for the first time that a court values and benefits than international
had adjudicated whether a sovereign state tribunals. Through national proceedings,
could be held responsible for genocide in societies more directly face their own
almost sixty years since the convention on problems and mistakes and learn from
the prevention and punishment of the them. It has been argued that for
crime of genocide was unanimously example, national proceedings had a
approved by the General Assembly of the much stronger psychological and moral
UN. The widely commented sentence that impact on population and contributed
basically acquitted Serbia of genocide more to the denazification of Germany
turned the attention back to a group of than Nuremberg and other international
individuals, mostly members of trials231.
paramilitary units. At present, the ICTY is applying
Apart from preventing war-time the back referral which is aimed at
leaders from continuing their political enhancing ―the essential involvement of
careers, the ICTY trials play a crucial role national governments in bringing
in establishing truth. They are essential reconciliation, justice and the rule of law
for initiating the process of truth-telling in the region‖232. Domestic institutions
and acknowledgment by rendering denial are carrying out the restoration of the rule
impossible. In that sense, the ICTY does of law in the region, since UN Security
represent an important source for writing Council resolutions 1503 and 1534
history and for collective memory. The project the end of Tribunal‘s
truth established by the ICTY in its investigations in 2004, the closing-down
verdicts against indicted individuals is a of trials in 2008/2009, and the
court-established truth, which is not completion of the appeal processes by
questionable by some other court, or 2010.
challengeable by historical, political or According to Rule 11bis of the
moral tests. ICTY Rules of Procedure and Evidence 233,
In addition to the ICTY trials, so far 8 cases have been transferred to
domestic trials are a very important step
towards the rehabilitation of renegade 230 Louis Aucoin and Eileen Babbitt, Transitional
states, which can thus prove their justice: Assessment Survey of conditions in the former
willingness to establish the rule of law. In Yugoslavia, June 2006
this context all states on the territory of 231 Ivan Šimonović, Dealing with the Legacy of Past
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
Page 85
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
Page 86
Public opinion in Croatia is still Yugoslav region, guided by Humanitarian

divided, even almost 15 years after the Law Centre from Belgrade, Documenta
end of the war. Political discussion about from Zagreb and Research and
past two wars (World War II and 1991- Documentation Centre from Sarajevo, are
1995 war in Croatia and Bosnia) is working on a regional approach for
manipulated and polarized about establishing the truth. Regional approach
questions of domestic criminals and war and cooperation (RECOM) should give
heroes. The process of dealing with the more chance to deal with the past than
past means changing a narrow and the national level perspective. RECOM
myopic historical narrative which refuses certainly will not be able to operate
to criticize fellow citizens. without full support from the states,
The situation in Serbia is not which are still not ready to give secret
much different. Diffused public opinion documents about the past.
about the past war is that Serbia was not The author of this text is strongly
responsible for the break-up of Yugoslavia convinced that only by explaining the past
and that only paramilitary units were from all the possible points of view; we
involved in fights. On one side some claim can hope to mark the decisive step
that it is a myth that the war in towards the reconciliation. In our search
Yugoslavia was a civil war; others that it for the role in future reconciliation and
is a myth that it was a war of aggression. integration processes, we must consider
Indeed, dealing with the past means numerous international cases in the past
facing the role of proper nation in war (Nuremberg, Tokyo, Rwanda, Sierra Leone
dynamics. etc.). To this horizontal timeline has to be
Throughout the region no public joint also vertical one which investigates
debate about the past has been cited impact and mirco-marco linkages
undertaken. This fact has a great impact between individual identities, group
on everyday life and provokes constant behaviour and institutional structures.
―delay of grieving‖ and discrimination of The problem of reconciliation is
the victims. In the successor states of the one of the most important in post-conflict
former Yugoslavia, there is still not a societies, and is made possible only by
single official body that would systematic, persistent, long-lasting
systematically try to establish the fact confrontation with past in order to create
about war crimes and other gross human a democratic environment. If we don‘t
rights violations. face the past, if the perpetrators of war
National legal instruments are not crimes are not brought to justice, there‘s
enough in order to achieve truth telling a great probability that the past will
and truth seeking. There is an obvious repeat itself.
need for a regional level public agreement
about the mechanisms for establishing
and telling the facts about the past.
The regional dimension of the wars
on the territories of former Yugoslavia and
the subsequently established borders add
a specific challenge to dealing with the
past processes: on the one hand, certain
very concrete and pressing issues, such
as identifying missing persons, war
crimes prosecution and witness
protection, can only be addressed by
taking a regional approach.
Since the end of 2005,
representatives of the civil society for ex
Page 87
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Resentment and Blame, 2007
Minna Schrag, Lessons Learned from ICTY Experience, 2004
Carsten Stahn, The Geometry of Transitional Justice: Choices of Institutional
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Statute of the International Criminal Tribunal for the former Yugoslavia
United Nations Security Council, Resolution 827, 1993
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Page 88
15 YEARS OF WALKING BUT

HOW MANY STEPS?
TRANSITIONAL JUSTICE AND
THE ROLE OF THE PRINT
MEDIA IN BOSNIA AND
HERZEGOVINA
By Stela Nenova*
ABSTRACT
Despite 15 years of major domestic and international peacekeeping
and stabilization efforts, there are still major obstacles to state
building in BiH. One of the clear signs of the internal divisions and
tensions has been the recent alarming trend of efforts to curtail the
development of free and independent media in the country to
support the process of reconciliation with the past and the growth
of a strong civil society. What has been the role of the media in BiH
in the process of transitional justice? Have the print media
encouraged a constructive social dialogue about the past or they
have contributed to further divisions among BiH citizens? This
paper looks at the role of print media in the process of transitional
justice in BiH. The study investigates the role of the media as a
unifying or dividing factor in the process of transition in Bosnia and
Herzegovina. The paper then looks more in depth into the case of
BiH and the print media‘s role for transitional justice‘s successes
and failures so far. It argues that the print media have had a more
negative impact on the processes of transitional justice in BiH
because of the persistent nationalistic rhetoric creating a divided
image of Bosnian society.
* Stela Nenova is completing her MA in Public Policy in Central European University,

Budapest, Hungary with a specialization in International Public Policy and in Media,
Information and Communications. She has a Bachelor of Arts with a double major in
European Studies and Economics from Mount Holyoke College, South Hadley, MA, USA. She
is originally from Bulgaria but she has studied and worked in 5 different countries (Bulgaria,
USA, Belgium, France and Hungary). Her areas of professional interest include EU integration
and foreign and security policy, good governance, energy policy and sustainability, media,
democratization and civil society in South East Europe. In the future, she hopes to work in the
area of policy consulting and development.
Page 89
Introduction instrument in the hands of politicians

that may both encourage or impede
The High Representative and EU reconciliation and constructive dialogue
Special Representative Valentin Inzko said in a post-conflict society, either promoting
about media freedom in BiH at a meeting peace or bringing more tension between
in Sarajevo on April 2, 2010235 :―In recent different ethnic groups.
weeks, there have been attempts to What has been the role of the media in
curtail the ability of media to report freely, BiH in the process of transitional justice?
accurately, and fairly from all parts of the Have the print media encouraged a
country. Particularly alarming are efforts constructive social dialogue about the
led by elected officials to deny certain past or they have contributed to further
media access to information or to divisions among BiH citizens? This paper
influence their editorial policies.‖ This looks at the role of print media in the
dark assessment of the OHR on the media process of transitional justice in BiH. It
environment in BiH brings up a number argues that the print media have had a
of questions about the road of democratic more negative impact on the processes of
development in the country. Fifteen years transitional justice in BiH because of the
after the bloody conflict in Bosnia and persistent nationalistic rhetoric creating a
Herzegovina, the country continues to be divided image of Bosnian society.
deeply divided over differing conceptions The first part of the paper makes an
of its past and the war in the 1990s. overview of the concept of transitional
Various mechanisms of transitional justice in post-conflict societies such as
justice have been implemented to varying the BiH case and of the role of the media
degrees of success as a means to as a unifying or dividing factor in the
reconcile the people with the past and to process of transition. The paper then
keep moving forward together. The role of looks more in depth into the BiH case and
the media is essential in the process of the print media‘s role in transitional
transition and democratization. The way justice‘s successes and failures so far.
the media chooses to portray transitional
justice mechanisms (truth commissions,
trials etc) is essential in building certain The Concept of Transitional Justice
perceptions among society members in a and the Role of the Media
post-conflict situation and in shaping the
public opinion. ―Failure to take into The concept of transitional justice has
account the importance of public opinion gained particular importance and
during transitional justice processes relevance in the post Cold war period in
carries the risk of societal divisions being issues related to state building, dealing
reinforced.‖236 Thus it is important to take with the past and with victims of conflicts.
appropriate steps to ensure that adequate Usual mechanisms of addressing crimes
media reforms and development would of the past and the demand for justice
lead to a positive and constructive social have been truth commissions, seeking to
dialogue that possibly enhances a build a consensus on the past among
common collective memory among other divided societies, criminal trials exposing
things. The media is a powerful the truth about wrong deeds of the past,
reparations and institutional reforms with
235 ―Inzko and Kelly deplore pressures on media
the aim to promote reconciliation among
freedom.‖ OSCE Press Release. April 2, 2010. divided societies, state building, the rule
http://www.oscebih.org/public/print_news.asp?id= of law and democratization, as well as
2419 peaceful reconstruction.237 Reconciliation
236 Lisa J. Laplante and Kelly Phenicie. ―Media, Trials
and Truth Commissions: ‗Mediating‘ Reconciliation

in Peru's Transitional Justice Process.‖ International 237Laplante, L. and Kelly Phenicie. 2009. ―Mediating
Journal of Transitional Justice 2010 4(2):207-229. Post-Conflict Dialogue: the Media‘s Role in
Page 90
refers generally to the process of As the media provides a platform for

development of mutual conciliatory social debate on conflicting issues in
agreement between opposing persons or divided societies, it has significant
groups. Further it is viewed as a social influence over the mediation of difficult
contract to address marginalized and conflicts. Because of their major role in
suffering groups as a result of armed shaping the public opinion in society, the
conflicts through the incorporation of media and journalists have the
these groups or persons into society‘s responsibility not only to report
democratic transformation processes information truthfully, but also to analyze
through mechanisms to preserve peace. it and frame it in a way which will
As Eytan Gilboa points out: influence the audience in a specific
The distinction between resolution and manner. The way mass media depicts
reconciliation is based on the given issues is vital in shaping the public
assumption that even if parties to a opinion and the development of societies
conflict reach a peace agreement, it is in transition, thus affecting largely the
only an agreement between leaders, processes of transitional justice and
not between peoples, and that to be reconciliation with the past. The media
effective it must be fully implemented can serve various purposes in society and
and respected over time. Successful it can both mediate and dilute conflicts or
conflict resolution ends with a formal provoke extremist positions within divided
peace agreement (negative peace), societies without a commonly agreed
while successful reconciliation ends perception on their past of conflicts. As
with a positive or stable peace.238 such, the media also directly influences
the public perception of transitional
The role of media in post-conflict justice mechanisms such as truth
societies has not been explored deeply commissions, trials, and reforms.
especially in connection with transitional [T]he choices journalists make
justice processes. Media can influence about how to cover a story from
reconciliation processes in post-conflict the words, phrases, and
societies but it might also impede them images they convey to the
and promote further conflicts. As the broader ― angle they take on a
Organization for Security and Co- controversy — can result in
operation in Europe (OSCE) underlined, substantially different
―building a free and independent media is portrayals of the very same
integral to creating an open and civil event and the broader
society as well as fostering peace and controversy it represents. These
reconciliation.‖239 Thus an independent alternative portrayals, or
media is vital to promoting active social frames, can exert appreciable
dialogue on issues of justice and human influence on citizens‘
rights and ensuring a more engaging perceptions of the issue and,
process of reconciliation in divided ultimately, the opinions they
societies. express.240
Through the representation of events
and stories, the media can create a bridge
Transitional Justice Processes.‖ Media in between divided societies or it can
Transitional Justice Journal. 255. increase the abyss between different
238 Gilboa, E. 2007. Media and International
Conflict: A Multidisciplinary Approach. Journal of
perceptions of the past and the current
Dispute Resolution. Vol. 2007, No.1, 229:232. identity of different groups within a post-
239 Price, Monroe. 2000. ―The Experience of
Intergovernmental and Non-Governmental
Organizations.‖ A Background Paper for the 240Laplante, L. and Kelly Phenicie. 2009. ―Mediating
UNESCO World Press Day Conference in Geneva, Post-Conflict Dialogue: the Media‘s Role in
May 2000. Transitional Justice Processes.‖ Media in
http://archiv.medienhilfe.ch/Reports/cojcr-kos.htm Transitional Justice Journal. 274.
Page 91
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/
Page 92
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
Page 93
The general conditions of conflict state-building process in Bosnia.

underdevelopment and low popularity of In the 1990s after the war, major steps
the print media has been seen as a were taken to change the ownership of
consequence of Bosnia‘s poor economic media and remove state-owned media
performance and the limited revenues enterprises from the power of nationalist
from advertisements with only 6% of parties in order to develop more
advertising investments going to print independent, objective and self-sufficient
media annually which is not enough to media. The international community
foster a competitive print media (OSCE, OHR) and other organizations
market.249 The majority of print media is (OSI, USAID) supported strongly the
still highly dependent on donations for creation of adequate legislative and
survival and the lack of foreign direct regulatory framework to ensure the
investments has limited the ability of the development of media.
print media market to develop further. 250 The Communications Regulatory Act
The Federation of Bosnia- (CRA) was created to monitor and enforce
Herzegovina News Agency (FENA) existing the regulatory framework for broadcast
since October 2001 after the merger of the media.253 The Law on Free Access to
BHPRESS and HABENA news agencies Information and the Law on Libel and
from the early 1990s by the Bosniak and Defamation from 2001, as well as the Law
the Croat parties, is one of major news on the Basis of the Public Broadcasting
agencies in the country. 251 The Serb News System and on the Public Broadcasting
Agency (SRNA) was established by the Service of Bosnia and Herzegovina from
Republica Srpska Government in 1992. 2002 were important achievements to
ONASA, the most influential private news stabilize and enhance media development
agency and the SENSE News Agency, and to attract more foreign investments to
registered in Sarajevo and covering the strengthen the media sector. 254
entire South Eastern European region An official Press Code has been
with a special focus on following and developed in 1999 for journalists to
reporting from the Hague tribunal, are enhance their performance and ensure
also very important media outlets. 252 highest ethical standards, as well as
citizens‘ rights to impart information
3.2. Mechanisms for Supporting freely. The Press Code underscores the
Independent Democratic Media and importance of journalists and media to
Transitional Justice respect the truth, the rules of factual and
fair reporting, the right to privacy and
The reconstruction and the children protection, and to avoid
independent and free development of intolerance, hate speech and
media has been a major part of the post- discriminatory practices. In 2000, the
Press Council was created as an
institution to defend the interests of both
249 Jusić, Tarik. Media landscape: Bosnia and the media and the audience by reviewing
Herzegovina. complaints against the press, resolving
http://www.ejc.net/media_landscape/article/bosnia
_herzegovina/
disputes etc.
250 Jusić, Tarik. Media landscape: Bosnia and Common challenges that journalists
Herzegovina. face are the fast ―tabloidization‖ of print
http://www.ejc.net/media_landscape/article/bosnia
_herzegovina/
251 Jusić, Tarik. Media landscape: Bosnia and 253 Jusić, Tarik. Media landscape: Bosnia and
Herzegovina. Herzegovina.
http://www.ejc.net/media_landscape/article/bosnia http://www.ejc.net/media_landscape/article/bosnia
_herzegovina/ _herzegovina/
252 Jusić, Tarik. Media landscape: Bosnia and 254 Jusić, Tarik. Media landscape: Bosnia and
Herzegovina. Herzegovina.
http://www.ejc.net/media_landscape/article/bosnia http://www.ejc.net/media_landscape/article/bosnia
_herzegovina/ _herzegovina/
Page 94
media, obstacles to real editorial and

financial independence, and an audience Conclusions
which is not so interested in issues of war
crimes and prosecution topics which do The timing of transitional justice
not ensure enough revenue for magazines actions and reflections within the media
and newspapers to survive.255 This leaves matters. If there are people connected to
out of the public sphere to a great extent the conflict who are still in power and
the investigative reporting practices. 256 influence the media and decision-making
The question of freedom and processes, public opinion and perceptions
independence of the media is also very on transitional justice, shaped by the
important when determining whether a media, will continue to be contradictory
story will be published in a newspaper. and counterproductive to social dialogue
With some Bosnian print media still being and reconciliation.
largely financially dependent on political The print media continues to be a
interests, advertising, donors, it is even divisive factor rather than a unifying one
more challenging to promote transitional in Bosnia and Herzegovina and this has a
justice practices through truthful and negative impact on the process of
objective storytelling about the past and transitional justice and reconciliation with
the current investigations. While during the past in the country. As long as
the war the main focus was on showing nationalistic rhetoric continues to prevail
the stories of victims and survivors, in the mass media, this can aggravate
nowadays the media need to investigate divisions within society instead of using
and present stories within a broader and the power of the media to unite people
more complex context.257 For the editor of along a common purpose of stabilization
BIRN‘s Justice Report, Nidţara and reconstruction.
Ahmetašević, it is important for
journalists to know about and keep in
mind the influence media can have on the
public opinion and on victims of the
conflict because journalists ―can make an
impact on our surroundings and even
bring some changes into society.‖258
Contemporary press and journalists
needs to also have knowledge and
understanding of international law and
tribunals in order to be able to
successfully convey the real meaning of
war crime trials and prosecutions. 259

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Page 95
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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
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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
Page 96
THE RIGHT TO REPARATION

FOR WAR-AFFECTED CHILDREN
SPECIAL FOCUS ON BIH
By Francesca Capone*
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.
Page 97
Introduction more obvious: many monuments have

been unveiled after the conflict, most of
According to many authoritative them dedicated to the youngest victims,
scholars and to the new victim-oriented but whilst the symbolic forms of
trend adopted by both international reparation have been granted all the other
tribunals and regional human rights remedies identified by the international
bodies261, reparations have primarily law have been ignored: the range of those
strive to give victims a sense of remedies includes access to justice,
recognition in order to help them to face reparation stricto sensu and access to
their trauma and overcome it. The relevant information concerning violations
children affected by human rights and reparation mechanisms. According to
violations also have to be recognized as the Secretary-General where transitional
individuals who are entitled to demand justice is required strategies must be
and obtain specific reparations, but they holistic: reparation programs are part of a
are often included in a broader group of transitional justice process and therefore
vulnerable people and they don‘t gain a they need to be implemented taking into
relevant and uniform identity; the need account other contingent circumstances
for a uniform identity become even more and factors. Bearing in mind the entirety
essential when we talk about post-conflict of the process, is it undeniable that the
states tear to pieces by ethnical divisions, potential impact of a reparation program
like BiH. While the main goal of this in a post-conflict society can affect
article is to provide an overview of the efficaciously the whole population and,
most salient issues to be considered with particularly, the victims; especially when
respect to the right to reparation in many of them are calling for reparations
general and how it applies to child- and it‘s impossible to redress their claims
victims, it doesn‘t claim to provide a only through individual cases brought
comprehensive evaluation of either the before international or local courts.
legal or the social actions undertaken or When we talk about child-victims
neglected with regard to this specific we must consider that they are vulnerable
group of victims. In the Bosnian context above all in regard to their age and
the role played by public institutions in immaturity, moreover their mental
granting any kind of reparation to victims attitude is influenced by their inability to
has so far been irrelevant. In none of the speak for themselves and act
judicial mechanisms triggered both at the independently from adults. Therefore the
international and at the local level is it best way to ensure their rehabilitation 262
possible to detect redress mechanisms and reintegration into the society should
and the State itself never launched a be the implementation of the education
victim-friendly reparation program. When system and all the other activities related
it comes to child-victims in BiH the lack to their physical and psychological care.
of reparations and remedies becomes even The present work will start introducing
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.
Page 98
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
263 Ibidem, p.3: Reparations programmes are

designed from the outset as a systematically 265On this point see Rule of Law Tools for Post-
interlinked set of reparations measures. Conflict States, Reparation Programmes. Office of the
264 Factory at Chorz´ow, Merits, Permanent Court of United Nations High Commissioner for Human
International Justice, Ser. A, No. 17 (1928). Rights, author: Pablo de Greiff, New York, 2008.
Page 99
Velázquez-Rodríguez266 marked a sea Recent developments

change in human rights jurisprudence.
The innovative reparation framework On the purpose to provide the
crafted by the Court over the last two international and the local actors with an
decades can be traced to that decision267; exhaustive tool entirely focused on the
the Court imposed to the State of right to reparation, the UN General
Honduras the adoption of measures Assembly in December 2005269 adopted
which express its emphatic condemnation and proclaimed the Basic Principles and
of the facts that gave rise to the Court's Guidelines on the Right to a Remedy and
judgment: in particular, it should be Reparation for Victims of Gross Violations
established that the Government has an of International Human Rights Law and
obligation to carry out an exhaustive Serious Violations of International
investigation of the circumstances of the Humanitarian Law; notwithstanding their
disappearance of Manfredo Velásquez and soft law status, the Basic Principles
bring charges against anyone responsible represent a huge step forward in the
for the disappearance―. The Court went struggle for the implementation of the
even further granting to the victim‘s wife human rights worldwide: they highlight
and children of other financial benefits, which are the victims‘ needs and in the
such as pension and scholarship, and the same time they strengthen the rule of law
payment to Velasquez ‗s family of a cash and deter the culture of impunity. The
amount corresponding to the resultant access to justice for thos-e who suffered
damages, loss of earnings, and emotional abuses trough acts or omissions that
harm suffered. Today the Court, through constitute violations of international
its mandate to grant reparations human rights law is strictly related to
contained in article 63268 of the American their identification as victims; according
Convention, has creatively developed the to the Rome Statute and its RPE once an
law of reparations within the Americas applicant has been recognized as a victim,
and its work reflects the undeniable need in the sense that all the criteria indicated
to improve worldwide a solid victim- in Rule 85270 are met, the participation in
oriented approach. the proceedings is still uncertain because
it has been left to the discretion of the
judges. Although the ICC, compared to
the ICTY and the ICTR, has concretely
promoted the participation of victims in
the trials, so far only 89 people have been
granted with the status of victim and only
266Velásquez Rodríguez Case, Judgment of July 21, one has claimed for reparations.
1989, Inter-Am. Ct. H.R. (Ser. C) No. 7 (1989). Furthermore, according to Article 79(1) of
267 C. Grossman, Reparations in the Inter-American
the Rome Statute, on 9 September 2002 a
System: A Comparative Approach, 56:6 AM. U. L. Trust Fund for Victims has been
REV. 1375, 1376 (2007). established under a Resolution of the
268 ―If the Court finds that there has been a violation
Assembly of States Parties. The goal of the
of a right or freedom protected by this Convention,
the Court shall rule that the injured party be
ensured the enjoyment of his right or freedom that 269Resolution 60/147 of 16 December 2005.
was violated. It shall also rule, if appropriate, that 270Rule 85: For the purposes of the Statute and
the consequences of the measure or situation that the Rules of Procedure and Evidence: (a) ‗Victims‘
constituted the breach of such right or freedom be means natural persons who have suffered harm
remedied and that fair compensation be paid to the as a result of the commission of any crime within
injured party. 2.In cases of extreme gravity and the jurisdiction of the Court; (b) Victims may
urgency, and when necessary to avoid irreparable include organizations or institutions that have
damage to persons, the Court shall adopt such sustained direct harm to any of their property
provisional measures as it deems pertinent in which is dedicated to religion, education, art or
matters it has under consideration. With respect to a science or charitable purposes, and to their
case not yet submitted to the Court, it may act at historic monuments, hospitals and other places
the request of the Commission.‖ and objects for humanitarian purposes.
Page 100
TFV is: to support programs which general definition of victim referred to in

addresses the harm resulting from the this contribution is the one contained in
crimes under the jurisdiction of the ICC by the above mentioned Basic Principles and
assisting the victims to return to a dignified Guidelines on the Right to Remedy and
and contributory life within their Reparation: victims are persons who
communities. In agreement with the data individually or collectively suffered harm,
diffused by the ICC itself, in 2007/8 there including physical or mental injury,
were 42 proposals submitted to the TFV emotional suffering, economic loss or
for consideration and 34 of this were substantial impairment of their
diverted to the Chambers of the ICC for fundamental rights, through acts or
approval. These projects should involve in omissions that constitute gross violations
the immediate future at least 380,000 of international human rights law, or
direct and indirect victims. As it stated in serious violations of international
the ICC website: The current TVF humanitarian law. Where appropriate, and
reparations Reserve is 1,000,000 euro, in accordance with domestic law, the term
depending on how the ICC defines ―victim‖ also includes the immediate family
reparations (individual or collective) it or dependants of the direct victim and
would be possible to reach 200,000 persons who have suffered harm in
beneficiaries with the current reserve if the intervening to assist victims in distress or
same modalities for delivering the TFV to prevent victimization. The formulation of
assistance are applied271. The concrete the latter sentence clearly highlights that
limits that such a fund face are connected there must be a direct causal link
to the purely monetary nature which between victims and harms suffered: only
marks the reparation granted. As it has whether this link exists and it is provable
been already pointed out, the kind of before the courts the right to reparation
remedies recognized by the international arises, when, instead, the connection
law which fall within the definition of requirement is not fully accomplished the
reparation are far from being reducible to acquisition of the status of victim will
payments of lump sums. According to the entirely depend on variable factors, such
Van Boven-Bassiouni Principles and as the domestic laws of the different
Guidelines reparations include, besides countries. It is, indeed, a matter of fact
compensation, restitution, satisfaction, that many reparations programs aim to
guarantees of non-repetition and prioritize women‘s redress, especially in
rehabilitation. The latter in particular is post-conflict countries were the female
the target of this contribution, since I am population usually constitutes the only
personally convinced that the resource left to the nation.272 There is a
implementation of the right to education widely recognized need to conceptualize in
is an indefeasible aspect of the a proper way in the reparation debates
rehabilitation of war-affected children. the many forms of violence that target or
affect women‘s reproductive function or
Who are the child-victims? capacity, because these kinds of wrongful
acts commonly fall within the broader
The notion of reparation is intrinsically idea of rape or sexual abuses. Across the
coupled with the idea of victim. According world currently a lot of non-judicial
to the article 1 of the Convention on the bodies such as truth and reconciliation
Rights of the Child entered into force in commissions (TRC) are facing the
September 1990: child is every human
being below the age of eighteen years 272 For instance in Rwanda after the 1994 genocide
unless under the law applicable to the there were twice as many women as men and while
child, majority is attained earlier. The the gap has since narrowed, more than a third of
households are still headed by women. According to
the Rwandan Commerce Minister Monique
271For further information and data please visit the Nsanzabaganwa, actually women make up 55% of
ICC website: www.icc-cpi.int the workforce and own about 40% of businesses.
Page 101
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.
There are many provisions which

The long path towards a child-sensitive embody the right to a remedy and
approach reparation in general, but there is only
one that de-als specifically with child-
The right to a remedy is clearly a part of victims. According to Article 39 of the
international law and therefore it is Convention on the Rights of the Child:
contained in global and regional human States Parties shall take all appropriate
rights treaties. Article 8 of the Universal measures to promote physical and
Declaration of Human Rights (hereinafter psychological recovery and social
UDHR) provides that: ..everyone has the reintegration of a child victim of: any form
right to an effective remedy by the of neglect, exploitation, or abuse; torture or
competent national tribunals for acted any other form of cruel, inhuman or
violating the fundamental rights granted degrading treatment or punishment; or
him by the constitution or the laws.. The armed conflicts. Such recovery and
International Covenant on Civil and reintegration shall take place in an
Political Rights (ICCPR) copes with the environment which fosters the health, self-
necessity to regulate and guarantee the respect and dignity of the child. This
right to reparation in a more provision represents a key legal tool and
comprehensive way. It evidences three also the first step for the implementation
different articles on remedies, addressing of the right to reparation for children,
in article 2(3) the right to access to an taking into account the fact the almost all
authority competent to afford remedies the countries of the world are States
and the right to an effective and Parties of the Convention. There are of
enforceable remedy, whilst providing in course also other instruments which
article 9(5) and 14(6) that everyone provide a certain support in order to
unlawfully arrested, detained or convicted guarantee a crescent number of positive
shall have an enforceable right to results in this sensitive field, e.g. The
compensation or to be compensated Guidelines on Justice for Child Victims
according to law. Provisions on the right and Witnesses of Crimes adopted by the
to a remedy are present also in the article ECOSOC resolution 2005/20, that
6 of the Convention on the Elimination of establish a set of principles which
Racial Discrimination and in article 2(c) underlines the urgency to adopt a child-
on the Convention on the Elimination of sensitive approach in the proceedings.
All Forms of Discrimination against These guidelines are mostly directed at
Women. The UN Convention against professionals and others responsible for
Torture establishes in its article 14 that the well-being of the children and their
each State Party shall ensure in its legal main goal is to ensure justice for child-
system that the victim of an act of torture victims and witnesses trough
obtains redress and has an enforceable implementing ad hoc procedures and
right to fair and adequate compensation adequate training in both formal and
informal justice systems. As it has been
clearly stressed, the efforts made to
promote the growth of knowledge and
273A remarkable enhancement has been achieved in practice on the purpose to assist properly
this sense by the Sierra Leonean TRC which
presented in December 2004 the child-friendly
the child victims before, during and after
version of its final report. the trials need to achieve further
Page 102
developments. The children who bring a formal complaint before the

experienced human rights violations and Committee when the rights protected in
war crimes represent the most sensitive the convention are violated by the State
part of a deeply affected society, in a Parties. This lacuna can be seen as a
context characterized by weak serious act of discrimination against
institutional capacity, fractured social children and it is often justified through
relations, very low levels of trust and a claiming that children are not able to act
scarcity of financial resources 274 the only according to their best interest. The
way to redress the highest number of intervention of adult representatives is
victims is to design a reparation program also rejected since it might entail a
which can address not only material manipulation of the children‘s will. Taking
needs, such as restitution of properties part in this complex debate goes far
and compensation, but also the need for beyond the goal of this contribution,
health and education. although the issue of children
participation is highly connected to the
concrete impossibility for child-victims to
Child-victims in BiH independently ask and obtain remedy and
reparation in the aftermath of a heinous
The awful civil war that occurred in BiH conflict.
has caused more than 100.000 deaths Unfortunately sensitive developments in
and 2 millions of displaced persons, in ensuring the access to justice to child-
alone Sarajevo 5410 children lost one of victims are still far from being achieved,
their parents and almost 400 lost both of nonetheless the range of remedies
them. In an ideal world these children provided by the international law is not
should be able to claim their right to a limited to the possibility to take part in
remedy and reparation before both the the criminal proceedings, but it goes
ICTY and the domestic courts, in much further enabling the victims to
particular the Court established early in benefit from different types of
2005.275 Instead child-victims are mostly reparation276. Although the main actors
left behind when it comes to legitimately
promote their active participation and 276 According to the Basic Principles and Guidelines:
intervention in issues related to their Restitution should, whenever possible, restore the
wellbeing. An example of this sad victim to the original situation before the gross
condition is the absence of a complaints violations of international human rights law or
serious violations of international humanitarian law
mechanism to the Convention on the occurred. Restitution includes, as appropriate:
Rights of the Child. The CRC, in fact, is restoration of liberty, enjoyment of human rights,
the only international human rights treaty identity, family life and citizenship, return to one‘s
with a mandatory reporting procedure place of residence, restoration of employment and
return of property. Compensation should be provided
which doesn‘t include a complaints or for any economically assessable damage, as
communication mechanism on the appropriate and proportional to the gravity of the
purpose to allow individuals or groups to violation and the circumstances of each case,
resulting from gross violations of international
human rights law and serious violations of
274 See Rule of Law Tools for Post-Conflict States: international humanitarian law, such as: (a)
Reparations Programmes, Office of the United Physical or mental harm; (b) Lost opportunities,
Nations High Commissioner for Human Rights, New including employment, education and social
York 2008. benefits; (c) Material damages and loss of earnings,
275 The NGO Women Victims of War campaigns for including loss of earning potential; (d) Moral
the rights of women victims of rape and other crimes damage; (e) Costs required for legal or expert
committed during the Bosnian war, the association assistance, medicine and medical services, and
took over from the government the responsibility to psychological and social services. Rehabilitation
collect evidences form the women injured by the should include medical and psychological care as
conflict and provides key testimonies in the well as legal and social services. Satisfaction should
proceedings before the Court of Bosnia & include, where applicable, any or all of the following:
Herzegovina, for further info please check (a) Effective measures aimed at the cessation of
http://www.zena-zrtva-rata.ba/news.php continuing violations; (b) Verification of the facts and
Page 103
involved in this process should be the reintegration of child-victims adopting

local and national institutions providing appropriate measures and setting all the
to the children all the support and the premises for the creation of a peaceful
help that they need, in the reality the environment suitable for their recovery.
most effective efforts are made by different Since the States are required to ensure
stakeholders, such as NGOs and private that their domestic law is consistent with
foundations. This situation is clearly in their international legal obligations and
contrast with the already quoted article since the basic principles and guidelines
39 of the CRC, which indicates the State on the right to a remedy and reparation
as being responsible for promoting the identify mechanisms, modalities
procedures and methods for the
full and public disclosure of the truth to the extent implementation of existing legal obligations
that such disclosure does not cause further harm or under international human rights law and
threaten the safety and interests of the victim, the international humanitarian law, one of the
victim‘s relatives, witnesses, or persons who have
intervened to assist the victim or prevent the
main goals of a post-conflict State should
occurrence of further violations; (c) The search for be to foster the health, self-respect and
the whereabouts of the disappeared, for the dignity of the child; outcome which can be
identities of the children abducted, and for the reached only through an implementation
bodies of those killed, and assistance in the
recovery, identification and reburial of the bodies in
of the education system. According to
accordance with the expressed or presumed wish of article 29 of the CRC amongst the aims of
the victims, or the cultural practices of the families education there is the preparation of the
and communities; (d) An official declaration or a child for responsible life in a free society, in
judicial decision restoring the dignity, the reputation
and the rights of the victim and of persons closely
the spirit of understanding, tolerance,
connected with the victim; (e) Public apology, equality of sexes and friendship among all
including acknowledgement of the facts and people, ethnic, national and religious
acceptance of responsibility; (f) Judicial and groups and persons of indigenous origin.
administrative sanctions against persons liable for
the violations; (g) Commemorations and tributes to
In the aftermath of a cruel civil war grasp
the victims; (h) Inclusion of an accurate account of the proper meaning of this provision
the violations that occurred in international human becomes even more important: the
rights law and international humanitarian law commitment to teach children how to be
training and in educational material at all levels.
Guarantees of non-repetition should include, where
tolerant must be one of the top-priorities
applicable, any or all of the following measures, of a society which is struggling for a new
which will also contribute to prevention: (a) national identity and wants to overcome
Ensuring effective civilian control of military and the adversities.
security forces; (b) Ensuring that all civilian and
military proceedings abide by international
standards of due process, fairness and impartiality;
(c) Strengthening the independence of the judiciary; The right to education
(d) Protecting persons in the legal, medical and
health-care professions, the media and other related
professions, and human rights defenders; (e)
In BiH there are 14 ―Ministries of the
Providing, on a priority and continued basis, human Education‖277, one in charge of the entire
rights and international humanitarian law education
to all sectors of society and training for law
enforcement officials as well as military and security 277 The term Ministries of education is not precise,
forces; (f) Promoting the observance of codes of but emphasizes the fragmentation of the education
conduct and ethical norms, in particular system, according to the 2009 Report by UNICEF
international standards, by public servants, Divided Schools in BiH: At the state level the Ministry
including law enforcement, correctional, media, of Civil Affairs of BiH(MoCA) is the only administrative
medical, psychological, social service and military authority with competency over education. In
personnel, as well as by economic enterprises; (g) accordance with its legally specified competencies
Promoting mechanisms for preventing and within the field of education the MoCA is responsible
monitoring social conflicts and their resolution; (h) for the coordination of activities within education.. In
Reviewing and reforming laws contributing to or addition, there are ministries of education at the level
allowing gross violations of international human of both BiH entities: Republika Srpska (RS) and the
rights law and serious violations of international Federation of BiH (FBiH). In accordance with
humanitarian law. constitutional responsibilities in the field of education,
the Ministry of Education and Culture of Republika
Page 104
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.
Page 105
education in May 2008 as the outcome of developed by OSCE282 in 2007 underlines

his mission in BiH, there are two main that in each of the ten cantons of the
issues affecting the enjoyment of the right Federation the dominant majority
to education: the excessive fragmentation determines the contents of the education
and politicization of the education system program283 and the same thing applies to
and the segregation between ethnic the Republic of Srpska where the Serbs
groups. This statement underlines the are the foremost ethnic group. This leads
defects of the system and especially its to the negation of the ethnic and linguistic
lack of accessibility, considered in all of peculiarity of the weaker culture and its
its three overlapping levels. In particular silent assimilation284 and feeds in
when it comes to the non-discrimination particular the discrimination285 and the
it‘s self-evident that the existence of many marginalization of the children of the
different curricula279 it‘s an obstacle to most vulnerable ethnic groups, like the
the mobility of the pupils and the dialogue Roma.
amongst cultures. Subjects such as math On 30 June 2003 the State Parliament
and sciences are almost entirely covered adopted the Framework Law on Primary
by the common curriculum, while and Secondary Education, the adoption of
language, literature, history, geography, such a law was an outcome of the
nature and society and religious pressure exerted by the international
instruction are almost completely different, community on BiH, which had to make
depending on the area of the country some commitments on its accession to the
where they are taught and the ethnic Council of Europe. The Law aims to
majority280, the gravity of this setting is regulate the principles of preschool,
even more detectable if we consider the elementary and secondary education;
importance of the education in a post- according to its text the goal of education
conflict context. The child-victims should
be first enroll in a good school program 282 OSCE Mission to BiH, Background report:
and introduced in a finally safe and Education in BiH: A neglected security issue,
protected environment, where the Vienna, 28 June 2007, p. 4.
283 Ibidem: five cantons are said to be Bosniak
possibility to gain a collective memory
majority cantons, three are Croat majority cantons,
about the war occurred should be far and two are mixed and effectively divided among
from being a utopia281. A report Bosniaks and Croats.
284 Please see the 2009 report by UNICEF: Divided
schools in BiH, available at

http://www.unicef.org/bih
285On this point see the Report of the Special
Rapporteur, Vernor Muñoz (A/HRC/8/10/Add.4 27

279 On this point see the Report of the Special May 2008) p.22: Non-discrimination is a
Rapporteur, Vernor Muñoz (A/HRC/8/10/Add.4 27 fundamental human rights principle, enshrined in
May 2008): There is a variety of curricula in Bosnia article 26 of the Universal Declaration of Human
and Herzegovina. Each ministry of education decides Rights and reaffirmed in many other treaties,
which curriculum should be taught in the schools including the International Covenant on Economic,
under its jurisdiction. The Framework Law on Primary Social and Cultural Rights, in which it is stated that
and Secondary Education attempted to address this the rights enunciated in the Covenant are to be
situation, with the provisions of a common core exercised without discrimination of any kind as to
curriculum (arts. 42 and 43). The objective was to race, color, sex, language, religion, political or other
ensure that students across the country learn a opinion, national or social origin, property, birth or
minimum of common elements and to facilitate the other status. With regard to the right to education, the
mobility of pupils. Nevertheless it has not been specific issue of equal rights in education is
implemented in all schools of Bosnia and addressed in different human rights instruments,
Herzegovina, in spite of its adoption in 2003. such as the Convention against Discrimination in
280 Ibidem p.18 Education, the Convention on the Elimination of All
281Ibidem note 55: there is another project of the Forms of Racial Discrimination and the Convention on
canton of Mostar, jointly with the OSCE, aimed to the Rights of the Child. The right to education is also
issue history textbooks, which reflects different noted and protected by the First Protocol to the
views on BiH‘s history, including representatives of European Convention for the Protection of Human
constituent nationalities. However, due to a lack of Rights and Fundamental Freedoms, equally binding
consensus these textbooks skip the war period. on Bosnia and Herzegovina.
Page 106
is to contribute to the creation of a society core of a wider and comprehensive

based on the rule of law and respect of reparation program on the purpose to
human rights through the optimum help the reintegration of the youngest and
intellectual, physical and social weakest victims of the conflict. On the
development of the individual, according to contrary the policies adopted by the BiH
each one‘s potential and abilities. Another governments, referring to both the
peculiarity of the education system in BiH national and the locals, seem to
is the sad phenomenon of ―two schools discourage the process of reconciliation
under one roof‘‘: before the war BiH was and, instead, embitter the hostilities
famous for its multi-ethnic character and making the children even more
multiculturalism and therefore the vulnerable.
education system was a mirror of this
society, after the 1992-1995 war, political, Conclusion
nationalist and ideological pressures
made segregation the main feature of the Authorities should not disregard
new trend. According to this practice their obligation to repair victims by only
children belonging to different ethnicities providing them basic socioeconomic rights
are attending the same school, but they that every citizen is entitled to, and specific
are taught different curricula and they go efforts should be made to improve the
to class at separate times. The Minister of conditions of victims, individuals and
Education of the Central Bosnian canton communities… After the exclusion suffered
in 2007 gave a shocking statement during by victims, expressed through violence and
an interview about ―two schools under denial of their basic rights, societies have
one roof‖, according to her ―the project to make concrete efforts to make them feel
won‘t be suspended because you cannot included.288 As Mr. Correa pointed out,
mix apples and peers. Apples with apples enabling the citizen of a post-conflict state
and peers with peers.‖286 Such a way of to fully enjoy their fundamental rights
thinking and dealing with ethnic doesn‘t automatically fulfill their right to a
discrimination is even more dangerous remedy and reparation under
when located in a post-conflict society international law. The BiH case is even
where the risk of fomenting old hatreds is more challenging since the war, which
already extremely high, not mentioning occurred almost 15 years ago, has left
the issue of re-victimizing children deep scars in the country: the present
already affected by the war and eager to children are indirect victims of what
start a normal life and overcome the happened and their families got
trauma suffered. In other words: not only devastated by the war, many places have
the access to primary and secondary been ethnically cleansed and when people
school should be ―available‖, or costless started coming back to their homes they
for all the children as it is stated in the found a new hostile majority there ready
international conventions ratified by BiH, to impose on the minorities their culture.
but in order to satisfy, at least, the very The only option left to the parents or the
basic principles on the right to reparation foster families is to passively except the
the education should be encouraged and lack of any integration process and the
supported by the government287 as the segregation deriving from phenomena like
―two schools under one roof‖. The
different books of history that circulate
286 This sadly famous statement has been given by
Mrs Greta Kuna, Minister of education of Central
Bosnian canton and member of the Croatian
Democratic Union party. 288 Mr Cristian Correa, Senior Associate with the
287 State should endeavour to establish national Reparation Unit of the International Centre of
programmes for reparation and other assistance to Transitional Justice, New York, interview available at
the victims in the vents that the parties liable for the http://www.ictj.org/en/news/coverage/article/1966
harm suffered are unable or unwilling to meet their .html, UNDP Development Times, No 17.Year IV-
obligations. Sarajevo-Bosnia and Herzegovina-September 2008.
Page 107
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
289See Rule of Law Tools for Post-Conflict States:

Reparations Programmes, Office of the United
Nations High Commissioner for Human Rights, New
York 2008, p.7.
Page 108
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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);
Page 109
ACCOMMODATING SOCIAL
JUSTICE INTO TRANSITIONAL
JUSTICE MECHANISMS
THE CASE OF NORTHERN
UGANDA
By Andreea Cristina Nowak*
ABSTRACT
This article advances the idea that post-conflict societies encounter a

twofold challenge in the transitional context; the first challenge is the past
– how to heal the wounds, whilst the second challenge is to look forward
and provide solutions for a sustainable future, where human rights are
promoted and respected. I argue that the complex legal, political, economic
and social situation in northern Uganda requires the reconciliation
between past, present and future, by merging transitional justice (past-
oriented) with economic and social justice (future-oriented), so as to meet
the victims‘ needs and in the same time secure a stable transitional
regime. The first section of the article will deal with the interplay between
conflict and poverty in Uganda and the governmental measures taken in
this regard. The following two sections will briefly examine the various
transitional justice mechanisms employed here as well as the unfortunate
situation relating to socio-economic rights. Based on the arguments
advanced in the previous sections, the final part outlines some measures
to accommodate economic and social rights within transitional justice
mechanisms, suggesting that the later must be part of a broader set of
policies for socioeconomic development and reconciliation.
*Mrs. Andreea Nowak is a BA student in Political Science at University of Bucharest and

graduated a 45 ECTS- Exchange Programme at Umeå University (Sweden). She is currently
working for the Romanian Association for International Cooperation and Development as a
Project Assistant for the Annual International Conference. Additionally, she is enrolled in a
Research Fellowship Programme offered by the University of Bucharest (2010-2011), writing
on transitional justice and development in Kenya, Sudan and Uganda. Mrs. Andreea Nowak
is, since 2008, a Konrad Adenauer Stiftung fellow and has interned at United Nations
Development Programme (Romania) and Romanian Forum for Refugees and Migrants. She
has also volunteered for Amnesty International Sweden, Swedish Association for Foreign
Affairs and European Institute for Participatory Democracy, Romania. Contact:
andreea.nowak@gmail.com
Page 110
Introduction prosperous rest of the country, traditional

leaders had an important voice in the
Recognizing the interdependence of peaceful cessation of the conflict, insisting
human rights has become a crucial point on the adoption of local solutions,
to depart from when speaking about the dialogue and the reintegration of the
development of a society, be it in a combatants. Thus, the transitional
process requiring transitional justice process here demands different
mechanisms or in a period of fighting approaches than in the rest of the
against poverty. Accordingly, we now see country. Massive violations of human
poverty as a violation of a human right rights, their source and effects on the
(even if it refers to a socio-economic right). population in northern Uganda require a
The ethical proposition that all humans careful and closer look at ways in which
are entitled to a certain standard of living, political and economical issues can be
to access of basic needs, seems to be integrated in the peace and justice
conceptually strong and even persuasive project.
for many, as it implies social inclusion Tensions in this part of the country
and much concern directed towards the have been now reduced and the
vulnerable. government has begun introducing the
The rights based approach focuses policy of phasing out the camps of the
more on entitlements than on needs; it internal displaced people (IDPs). But
refers more to realizing needs than human rights violations by the Lord‘s
meeting them and lastly, it implies Resistance Army (LRA) rebels and the
obligations and responsibilities. But one military remain in place, which makes the
of the most important points that the situation in the region instable. If one can
rights based approach makes is probably say that peace has been settled290 and
the necessity to address the root causes of there is no need to look for solutions
human rights violations. And here is anymore, talks on justice have gained a
where transitional justice mechanisms lot of momentum, as the population has
employed in a society can intervene in continuously expressed its dissatisfaction
order to guarantee a sustainable future with the government‘s measures to
(stable politics, accountability, rehabilitate and compensate them291.
reconciliation and ultimately growth). In this paper, socio-economic rights
Transitional justice can contribute to (such as rights to education, food, health,
achieving these broader objectives by land, water, environment, social security,
addressing the spectrum of violations housing, etc292) are considered part of the
(political, civil, economic, etc) in an overall fight against social inequality and
integrated and interdependent manner, poverty. Economic and social justice
emphasizing the universality and essence refers here to both economic security and
of human rights. social equality, with human dignity put in
The end of a conflict does not mean the the forefront. Louis Arbour uses the term
establishment of perpetual peace, sudden
democratization or well-being of citizens. 290 ‗Peace‘ in northern Uganda has been understood
It means the beginning of a laborious by the locals as absence of violence, freedom from
work of reconciliation, rehabilitation and abduction, human development or return to the
recovery. It implies setting up a complex home village. See P. Pham, P. Vinck, E. Stover, A.
and complicated mechanism that allows Moss, M. Wierda, and R. Bailey, ‗When the War
Ends: A Population-Based Survey on Attitudes about
society to take up the safest path towards Peace, Justice and Social Reconstruction in
development. Northern Uganda‘, Human Rights Center, University
The events that occurred in the past of California, Berkeley, Payson Centre for
two decades in northern Uganda highlight International Development, and ICTJ, (December
2007), p.36
the need of such an understanding. In 291 Ibidem
this region, compared to the rather 292 For a more comprehensive list, see the main
international human rights instruments
Page 111
‗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.
Page 112
mutilations including amputating limbs (UNFPA)'s emergency reproductive health

or cutting of ears, noses, or lips‘299. It has project is implemented in Kitgum Amuru,
been documented that up to 75,000 have Amolatar, Lira, Oyam, Dokolo, Apac,
been abducted during the conflict and in Kotido, Kaboong, Nakapiripirit, Moroto,
2005 the World Health Organization and Abim districts303. The Recovery and
estimated ‗an excess mortality rate of Development Plan issued for the northern
1,000 a month‘300. Support from the region by the Government of Uganda in
government was little and sometimes order to respond to the reconstruction
contradictory (an oscillation between needs of the region aims at resettling the
military solutions and peace talks), whilst IDPs, and at investing in the
reliance on international humanitarian infrastructure, water and the sanitation
action was tremendous. sector, in the re-establishment of health
Following two decades of rebellions and and education facilities304. However, this
civil strife, Northern Uganda faces plan has not yet been evaluated.
economic stagnation and serious toll on Despite these developments, the
the population living in the region; about difficulty lays in the fact that even in the
1.6 million people ended up in camps. In aftermath of the Juba peace process,
a document prepared by the Office of the despite the dialogue between the LRA and
Prime Minister in Kampala, the costs of the Government of Uganda (GoU), the
the conflict has been estimated at $ 1.3 parties still have hard times in agreeing
billion (1986-2002), meaning 3 per cent of upon what the origin of the conflict is,
the overall annual gross domestic product who started it, who committed the war
(GDP) to the national economy 301. crimes and the crimes against civilians.
Northern Uganda remains the poorest In addition to this lack of consensus
region in the country - ‗the gap between that blurs the heavens of peace, the high
the national and northern poverty levels‘, levels of rural poverty and increasing
states the report, ‗widened from 17% in inequality suggest the need for a holistic
1992 to 30% in 2005/6, with poverty in approach to poverty reduction in the post-
the north falling by less than any other conflict northern Uganda, an approach
region in the early 1990s‘302. The post that should be reached by the
conflict environment is now characterized implementation of a national mechanism
by lack of or poor access to and utilization that involves the LRA, GoU and the
of social services (health, safe water, broader civil society.
education), unemployment, low local
governmental capacities, customary land Transitional Justice Mechanisms in
tenure, sexual violence, high infection Uganda
among the displaced population in the
north. Thus far Uganda has experienced
The governmental development agenda several transitional processes305, the most
reflected in The Poverty Eradication Action recent of which is president Museveni‘ s
Plan (PEAP) is meant to improve the request to the International Criminal
quality of life of over 28 million Ugandans, Court (ICC) to investigate the war crimes
concentrating on 13 districts. In northern committed in northern Uganda by the
Uganda, United Nations Populations Fund LRA, as the government was unable to
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
Page 113
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
Page 114
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
issue in Uganda, see Otim et al, supra 9

316 Huyse, supra n 25 324 See P. Pham, supra n 1
317 H. Zehr, ‗Retributive justice, restorative justice‘. 325 D. Orentlicher, ‗Settling accounts revisited:
In G. Johnstone (Ed.), A restorative justice reader: Reconciling global norms with local agency‘,
Text, sources, context, 2003, 69 International Journal of Transitional Justice, (2007),
318 Sara Darehshori and Elizabeth Evenson, ‗Peace, 10 – 22
Justice and the International Criminal Court‘, In 326 Katherine Southwick, ‗Investigating War in
Oxford Transitional Justice Research. Debating Northern Uganda: Dilemmas for the International
International Justice in Africa (2010) 38 Criminal
319 Otim, supra n 22 at 3. Court‘, Yale Journal of International Affairs, 2005,
320 Otim et al, supra 9 at 3 113-114.
Page 115
difficulties faced in such post conflict Transitional mechanisms that should

societies remains at the level of contribute to societal transformation and
identification, distinguishing, and to the prevention of conflict reoccurrence
merging the approaches to justice and to should not be translated only in terms of
admit the importance of each other‘s role building solid, stable and transparent
in the transitional process. But while institutions (that bear the mark of
debates like the ones on arrest warrants development towards a more democratic
or complementarity augment, people society), or ensuring accountability for the
leaving in or out of the camps get affected past gross violations of human rights.
by both the political and economic According to the Committee on Economic,
situation in the region. The question on Social, and Cultural Rights (CESCR), ‗full
how to design a system that gets closer to realization of human rights can never be
the victims gains ground against any achieved as a mere by-product, or
other transitional justice mechanism. fortuitous consequence, of some other
developments, no matter how positive‘328.
Economic and Social Rights in Conflicts that occur throughout the world
Northern Uganda have political as well as socio-economic or
cultural roots. Political rights are closely
Post-conflict recovery in a country connected with social, economic and
affected by serious human rights cultural rights and violations of the
violations implies the recognition of the former are linked to violations of the
universality, as well as the importance of later329.
the indivisibility and interdependence of When it comes to the African
human rights, as expressed in the continent, the African Charter on Human
Universal Declaration of Human Rights and Peoples‘ Rights (the Banjul Charter)
and reaffirmed in the Vienna World addresses the universality of rights,
Conference on Human Rights in 1993, recognizing in its preamble that the
and later Summits of Heads of State and ‗satisfaction of economic, social and
Government. Thus, economic, social and cultural rights is a guarantee for the
cultural rights (or 'third generation rights') enjoyment of civil and political rights‘330.
included in later Treaties, become part of However, mapping the conflicts and their
the 'binding law'327. roots on the continent as well as the gross
The United Nations Covenant on human rights violations, one can see that
Economic, Social and Cultural Rights economic and social rights become of
recognizes the progressive realization of
these types of human rights, given the
different stages of economic development 328 World Conference on Human Rights, Preparatory
Committee, Apr. 19-30, 1993. See Arbour, supra n 4
on which countries situate themselves
at 10
and their inability to fully realise all the 329 Arbour, supra n 4 at 8. As well, the findings of
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
Page 116
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
Page 117
Integrating Economic and Social rights violations bearing in mind a holistic

Justice into Transitional Justice approach, whether they have economic,
Mechanisms social or political roots.
Of course, the integration of socio-
It might be argued that reaching economic rights and the promotion of
economic and social justice in Africa, these can be sometimes considered a
particularly in post-conflict societies such burdensome and costly process, which is
as Uganda is a story to dream about, but highly dependent on the resources
not to make it happen. But we are not in available in the country and therefore
search of means of completely eradicating might be sometimes rather disregarded
poverty or levelling the standards on the and left outside the promotion of political
continent. Solidarity and the satisfaction rights debate. Arbour explicitly elaborated
of basic needs (the right to living, access on the most handy interpretation of
to education, healthcare, water, etc) add political rights as freedoms 'in relation to
to the purpose of social justice. The which violations can be found' and the
development of the events in northern tendency to see economic, social, and
Uganda enables us to keep things in cultural rights as 'entitlements, which
perspective. Getting closer to the victims‘ depend on available resources and are
situation we can realize the importance of provided by states over time, subject to
explaining the present by invoking the priorities established in the political
past and of reconciling the past, the arena' or as ' merely aspirational goals
present with the future by merging whose achievement no one can be held
transitional justice with economic and accountable for'337. This leads to the
social justice. disregard of this category of rights when
As a result of the conflict, communities identifying and adjudicating violations of
in northern Uganda have been gravely social, economic or cultural and of the
affected and presently live in extreme development of jurisprudence that is
poverty. As we have seen, socio-economic focused on these types of rights.
conditions are not viewed from a rights When endorsing the idea of integrating
perspective. The challenge is how to these rights in the complex and
design a mechanism that meets in the complicated system that addresses past
same time victims‘ compensation and violations so as to avoid the occurrence of
expectations. Inequality and new ones, one has to bear in mind that
discrimination, if not addressed in the processes brought to the court are usually
right time and with the right tools, can time consuming and as well very
further lead to the development of new expensive (either if it means the forming
hostilities and clashes between the two of national or hybrid judicial regimes or if
parties. Therefore, the issue of social it involves the trials themselves). Noting
justice must not be disregarded when this, investing in the health or the
invoking transitional justice mechanisms. educational infrastructure might turn out
The argument that I am trying to make to be more efficient and effective for post-
here has been formerly formulated336 and conflict societies or developing societies.
it puts forward the importance of non- One has to take a look at the costs and
sequencing the addressing of human the results achieved (are they directly
rights violations; that means that one proportional?) as well as to the target
should not categorize violations of group whose needs should be met (do the
political rights as the most important measures taken respond to the real needs
violations (and therefore concentrate the of the population?).
attention on finding solutions just for this Another problem that is raised
issue), but one should address human when it comes to realization of socio-
336 See Arbour, supra n 4 337 Arbour, supra n 4 at11
Page 118
economic rights in the context of According to the same survey

transitional justice is the employment of mentioned before, that has been
individual or collective conducted in northern Uganda in 2007,
measures/reparations. Who should among people‘s priorities (after peace)
benefit from reparations? Is it politically were: ‗health (45%), education for the
and economically healthy to adopt children (31%), and livelihood concerns
measures that satisfy the whole (including food, 43%; agricultural land,
community of victims? In the case of 37%; money and finances, 35%). Building
northern Uganda, the IDPs, whose socio- a sustainable peace involves both
economic rights had been violated (cases defusing the LRA security threat and
of landlessness, uncertain tenure, dealing with the structural inequalities
plunder of resources, etc), account for the that create a climate conducive to
necessity of adopting such collective conflict‘. But as peace has at least
measures338. formally been settled, there is a strong
When they do address economic need for projects and programs that must
issues, transitional justice mechanisms address emerging issues like education,
refer to compensation and reparations to employment, local leadership, land rights,
victims belonging to certain groups. But and reconciliation339.
this rarely happens, due to the costs The solution to the real enjoyment of
involved. Yet, when they are adopted, they socio-economic rights in northern Uganda
do not guarantee that the victims will no is, I argue, the implementation of long
longer be subjected to further human term socio-economic policies that aim to
rights violations, that social equality will redress the victims (compensations within
start blossoming or that extreme poverty the reparations schemes) and prevent
that has drawn forth or instilled the widespread inequalities and
conflict will be eradicated once the peace discrimination. That is, the formulation at
talks started. the national level, of national agendas -
But a radical agenda of massive strategies and action plans - that can
redistribution, compensation, state meet the basic needs of a population that
expropriation, and confiscation is highly experienced serious violations in the past,
unlikely and unrealistic. Political and thus contribute to the eradication of
constraints, as well as limitations put by extreme poverty.
the international regime require for other Initiatives that should address the
types of solutions that are equally achievement of social justice goals and
directed towards the population who has thus eliminate the structural inequalities
previously suffered human rights that lead to violence in northern Uganda
violations. An alternative would be, of imply the focus on sectors like health
course, the focus on economic and social (building of hospitals, providing them with
rights, linked to fair and equitable specialized personnel and medicines),
economic and social capabilities. water supply (valley tanks, small valley
dams, sewerage system), education
338This
(schools, teachers, sanitation facilities,
argument can easily be debated, as the
problem of measuring the decent shelter or the basic
water facilities), roads sector (community
education arises. However, the aim of this paper is roads, bridges), draining facilities, re-
just to give an insight on the possibility of forestation, land husbandry, agricultural
considering social justice as part of transitional production, etc.
justice mechanisms in post-conflict societies,
encouraging further debate on the topic. Moreover,
After the cease of the conflict, the
the realization of socio-economic rights in any signing of peace agreements (including
country is indirectly influenced by the level of its commitments to human rights
economic development. This is because, as protection) and the resettlement of the
mentioned earlier, these rights have important social
and economic dimensions as most of them reflect
specific areas of basic needs or delivery of basic
goods and services. 339 P. Pham, et al, supra n 1, 46
Page 119
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
Page 120
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http://countryoffice.unfpa.org/uganda/2009/09/10/1283/information/
South African Constitution (1996), available at
http://www.info.gov.za/documents/constitution/index.htm
Timor-Leste Truth Commission Findings
Page 121
http://www.cavr-timorleste.org/chegaFiles/finalReportEng/07.9-Economic-and-
Social-Rights.pdf
Lomo, Zachary, and Lucy Hovil, Behind the Violence: the War in Northern Uganda,
Refugee Law Project Working Paper No. 11, Pretoria: Institute for Security Studies,
2004
Northern Uganda Social Action Fund, Environmental and Social Management
Framework, Kampala, 2009
Otim, Michael, Challenges in the pursuit of transitional justice: A case of northern
Uganda, Justice and Reconciliation Project, Gulu District NGO Forum, Liu Institute
for Global Issues Transitional Justice and Peace Negotiations, 16-18 April 2007
Otim, Michael, and Marieke Wierda, Uganda: Impact of the Rome Statute and the
International Criminal Court, The Rome Statute Review Conference, Kampala, June
2010
Page 122
TRANSITIONAL JUSTICE IN
DEMOCRATIZATION
PROCESSES: THE CASE OF
SPAIN FROM AN
INTERNATIONAL POINT OF
VIEW
By Teresa Fernández Paredes*
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.
* Currently practicing as a criminal lawyer, Teresa Fernández Paredes holds a dual

degree in Law and Political Science and Public Administration from Universidad
Carlos III (Madrid). Prior to her current work, Teresa Fernández specialized in
European Union Law at the Université Montesquieu- Bordeaux IV and the
Université Libre de Bruxelles and was a scholarship holder and LL.M student at
Washington College of Law (US) where she focused in International Law and
Human Rights. After her Masters of Law, Teresa did different traineeship at the
Inter-American Human Rights Court (San José, Costa Rica), the International
Criminal Court (The Hague, The Netherlands) and Human Rights Watch (Brussels,
Belgium).
Page 123
Spain, while briefly comparing them with

―Injustice is human, but more human is to fight those done in the Southern Cone
injustice.‖ (Argentina and Chile).
Bertolt Brecht
Spanish transitional process
Introduction
the Spanish transition has been said to be
This paper will present a descriptive and a ―model‖ example to those transitions
short analysis of the Spanish transition to that later took place in Latin America. It
democracy. The Spanish democratization covers the period from General Francisco
process was characterized by a pact Franco343‘s death in 1975 to the election
among all the political parties to not talk of the Socialist government in the
about the past. It was in fact the reformist democratic elections of 1982. It was
sector of the Francoist regime which led implemented thanks to the ―pacto del
the first years of transition under the olvido‖ (pact of oblivion), meaning that all
presidency of Adolfo Suarez, who was the the political parties, including those
first democratically elected president of reformists coming from the fallen
Spain and previous Secretary General of dictatorship, agreed to forget the civil war
the ―Movimiento Nacional‖342 (National and the dictatorship in order to reach a
Movement). ―consensus‖.344 The maxim ―never again‖,
Spain has yet to implement transitional common in almost all transition
justice measures to establish processes, had the concrete meaning here
accountability for past human rights of preventing the past from happening
abuses. However, a democracy has been again but understood as the confrontation
peacefully established and there is no among Spanish nationals, instead of
doubt at the present time that a strong referring to the acts of injustice inflicted
democracy has been consolidated. by the Francoist regime to part of the
Nevertheless, in the past few years, population.345 In other words, the main
associations of victims and other objective was to equalise the rights of the
members of civil society started a two sides without recognizing the
campaign in order to clarify what has unfairness and injustice lived by the
been silenced for years and to pay tribute victims of the Francoist regime or without
to the victims. paying moral tribute to their sufferance.
Is Spain then an example that transitional In this way, a ―Law of Amnesty‖ was
justice measures are not necessarily the approved on 15th October 1977, by the
best or only option when moving from an first democratic Parliament after 40 years
authoritarian system to a democratic one? of authoritarian regime. It established
Or do recent events, which have reopened amnesty for all the political crimes,
the debate about the crimes committed whatever their result, committed before
during Franco‘s regime, prove that sooner 1976.346 It was a ―full stop‖ law that
or later the past must be addressed?
This paper is divided into two parts. The
first part offers a brief introduction to the 343 Spanish military general and head of state of
Spain from October 1936 until his death
violations committed in Spain from the 344 Jo Labanyi, Memory and Modernity in Democratic
end of the Civil War to the establishment Spain: The Difficulty of Coming to Terms with the
of democracy and the way the transition Spanish Civil War, Poetics Today, 28:1, 2007, page
to democracy was conducted. The second 93.
345 Paloma Aguilar, Transitional Justice in the
part focuses on the degree of success of Spanish, Argentinean and Chilean Case, Study
the transitional justice approaches in ―Workshop 10 – Alternative Approaches to Dealing
with the Past‖, Crisis Management Initiative, 2007,
pages 2-25.
342Movimiento Nacional was the body that served as 346 Javier Chinchón Álvarez, Transición Española y
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
Page 124
guaranteed the impunity of the Francoist treatment or punishment, which

regime, as no perpetrator could be provides that ―the aim of the
prosecuted. provisions of article 7 of the
This law remains in force despite the International Covenant on Civil
important number of international and Political Rights is to protect
treaties, ratified by Spain, which bind both the dignity and the physical
States to provide those who have suffered and mental integrity of the
human rights violations with effective individual. It is the duty of the
reparations. Among others, the following State party to afford everyone
ones can be mentioned: protection through legislative and
- The International Covenant on other measures as may be
Civil and Political Rights347: in its necessary against the acts
article 7 avers that ―no one shall prohibited by article 7, whether
be subjected to torture or to cruel, inflicted by people acting in their
inhuman or degrading treatment official capacity, outside their
or punishment. In particular, no official capacity or in a private
one shall be subjected without his capacity.‖ The prohibition in
free consent to medical or article 7 is complemented by the
scientific experimentation.‖ Of positive requirements of article 10,
special interest is the Human paragraph 1, of the Covenant,
Rights Committee‘s General which stipulates that ―all persons
Comment 20348, concerning deprived of their liberty shall be
prohibition of torture and cruel treated with humanity and with
respect for the inherent dignity of
the human person‖. Finally, this
transición? A propósito de la coherencia, buena fe y general comment also mentions
otros principios de derecho internacional postergados
en la transición política en España‖, Entelequia,
the issue of amnesties, specifically
Revista interdisciplinar, Monográfico, nº7, 2008, asserting that ―amnesties are
page 347. generally incompatible with the
The article 2 of the Amnesty Law is of special duty of states to investigate such
relevance as to the extend that it includes in the
amnesty the crimes committed by the authorities,
acts; to guarantee freedom from
civil servants and state agents on the occasion of the such acts within their jurisdiction;
investigation and prosecution of the acts included in and to ensure that they do not
the law; as well as the crimes committed by state occur in the future. States may not
agents and ―functionaries‖ against the rights of
people. This wording clearly violates international
deprive individuals of the right to
norms as the International Covenant on Civil and an effective remedy, including
Political Rights, that was in force in Spain at the compensation and such full
moment of passing the Amnesty law, and which rehabilitation as may be
states that 2.3 each State Party to the present
Covenant undertakes:
possible.‖349
(a) To ensure that any person whose rights or - The Convention on the Rights of
freedoms as herein recognized are violated shall have the Child: Article 39 prescribes
an effective remedy, notwithstanding that the that ―States Parties shall take all
violation has been committed by persons acting in
an official capacity; (b) To ensure that any person
appropriate measures to promote
claiming such a remedy shall have his right thereto physical and psychological
determined by competent judicial, administrative or recovery and social reintegration of
legislative authorities, or by any other competent a child victim of: any form of
authority provided for by the legal system of the
State, and to develop the possibilities of judicial
neglect, exploitation, or abuse;
remedy; (c) To ensure that the competent authorities torture or any other form of cruel,
shall enforce such remedies when granted. inhuman or degrading treatment
or punishment; or armed conflicts.
347 http://www2.ohchr.org/english/law/ccpr.htm
348
http://www.unhchr.ch/tbs/doc.nsf/0/6924291970
754969c12563ed004c8ae5?Opendocument 349 Ibid.
Page 125
Such recovery and reintegration party to the aforementioned treaties, it

shall take place in an environment should comply with all their provisions.
which fosters the health, self- With respect to them all, the issue of
respect and dignity of the child.‖ ratione temporis needs to be outlined. It is
- The International Convention on true that many provisions of these treaties
All forms of Racial Discrimination cannot be invoked post festum if the treaty
lays down in article 6 that ―States was ratified by the state after the crimes
Parties shall assure to everyone were committed. However, in the present
within their jurisdiction effective case, if the crime is limited to the issue of
protection and remedies, through ―right to remedy‖, there is an ongoing
the competent national tribunals violation which started after the Civil War
and other State institutions, but that is still taking place because no
against any acts of racial judicial response has been given to the
discrimination which violate his victims and their families due to the
human rights and fundamental Amnesty Law. In the same sense, enforced
freedoms contrary to this disappearance is also an ongoing violation
Convention, as well as the right to to the extent that the relatives of the
seek from such tribunals just and victims still do not know the fate of their
adequate reparation or satisfaction missing relatives. Following this
for any damage suffered as a argument, different judgements from the
result of such discrimination350.‖ Inter-American Court on Human Rights
- The Convention against Torture 351 should be mentioned as the Court found
establishes in article 2 that ―each that enforced disappearances ―may be
State Party shall take effective prolonged continuously or permanently
legislative, administrative, judicial until such time as the victim‘s fate or
or other measures to prevent acts whereabouts are established‖353
of torture in any territory under its Furthermore, from a regional perspective,
jurisdiction‖ and, in article 4 that the European Convention on Human
―1. each State Party shall ensure Rights should be mentioned. Article 13
that all acts of torture are offences states that ―everyone whose rights and
under its criminal law. The same freedoms as set forth in this Convention
shall apply to an attempt to are violated shall have an effective remedy
commit torture and to an act by before a national authority
any person which constitutes notwithstanding that the violation has
complicity or participation in been committed by persons acting in an
torture. 2. Each State Party shall official capacity.‖ This has an outstanding
make these offences punishable by relevance, as it means the violations
appropriate penalties which take committed in Spain could be justifiable
into account their grave nature.‖ before the European Court on Human
Thus, all these articles ensure legal and Rights (hereinafter European Court).
effective remedies to the victims of human In this sense, it is interesting to mention
rights violations, and, to the extent that the European Court case Varnava v.
Spain is a ―monist‖ country352 as well as a Turkey, a case concerning the
disappearance of nine individuals as a
result of Turkish military operations in
350 http://www2.ohchr.org/english/law/cerd.htm July and August 1974 and the continuing
351 http://www.hrweb.org/legal/cat.html
352 For the monist system, international law and
national law are part of a single legal order and the
treaties become part of domestic law upon 353Inter-American Court on Human Rights: Blake v.
ratification352, effectively, Art. 96 of the Spanish Guatemala, 2 July 1996, Preliminary Objections, §
Constitution352 establishes that ―Validly concluded 39. See also Serrano- Cruz Sisters v. El Salvador
international treaties once officially published in (judgment of 23 November 2004, Preliminary
Spain shall constitute part of the internal legal Objections, § 95 and Heliodoro Portugal v. Panama of
order‖ 12 August 2008
Page 126
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
Page 127
minimum human rights debate.359 No political actor or

guarantees, and situations of organisation from the civil society
hunger, massive overcrowding, demanded accountability for these abuses
diseases, acts of torture, rape and of rights. It was believed that only in this
sexual violence on the female way could a peaceful move towards
detainees, experiments conducted democracy be achieved.360
by Military psychiatrists on However, the ―model‖ character of the
prisoners trying to find the ―red Spanish transition can be challenged. In
gene‖358 and other inhuman acts the past few years, different associations
and conditions were endured by and international organizations such as
political prisoners. the ―Asociación para la Recuperación de
- Violence against the defeated was la Memoria Histórica‖ and Amnesty
not limited to imprisonment, International, started denouncing the
torture and execution; those who existence of mass graves and insisted on
had supported the Republic were the right of the relatives of the victims to
deprived of property, public exhume their corpses and the right of
employment and access to families to know the fate of the
university (for them and their disappearance of their relatives361, as well
children). However, under the idea as pressing the Government to adopt
of ―child protection‖, the Francoist measures for the moral retribution of the
regime sent a huge amount of victims and their heirs as well as
children born in republican triggering a social and political debate
families and working class families concerning the flaws in the measures of
to ―state institutions‖ as the Transitional Justice taken. 362 However,
regime considered their families this topic generally continues to be
unable to raise them. ―taboo‖ in Spanish society.
Furthermore, most of the children
of female republican prisoners
were taken from them and adopted
into regime families, who changed
their names and identities.
Kidnappings of refugee children,
sent to France to flee from the war 359 It is true that both sides committed horrendous
and the repression, were crimes during the Civil War, however, as it was seen,
the ―Republicans‖ were prosecuted during the
repatriated by Francoist services dictatorship and condemned. The judicial and other
and placed into those ―state measures taken during the Dictatorship to condemn
institutions‖. and those who fight for the Republic can bee seen in
the compilation ―España franquista: Causa general y
actitudes sociales ante la dictadura‖, Colección
To conclude, the way in which the Estudios, Universidad Castilla de la Mancha, 1993,
transition in Spain took place meant that page 23 and et sqq."
violations which occurred under the 360 Paloma Aguilar, Transitional Justice in the
Francoist Regime stayed out of public Spanish, Argentinean and Chilean Case, page 4.
361 This is Article 32 of the Protocol I to the Geneva
Conventions, which was later on inserted into the

2006 International Convention for the Protection of
civil war outside Madrid, was done using prisoners. All Persons from Enforced Disappearance, in its art.
It is interesting to mention that this monument as 24: ―Each victim has the right to know the truth
well as Franco´s grave are still in place. regarding the circumstances of the enforced
358 The Republicans were also known as the ―reds‖. It disappearance, the progress and results of the
was believed by the Francoist regime that having a investigation and the fate of the Disappeared person.
socialist or communist ideology could be an illness Each State Party shall take appropriate measures in
due to a genetic issue, and that, therefore, finding this regard.‖
the gen will enable their recovery. It was just in 362 Paloma Aguilar, Laia Balcells and Héctor Cebolla,
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.
Page 128
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)
Page 129
of justice but justice adapted to societies Commentaries to the draft articles

transforming themselves after a period of on Responsibility of States for
pervasive human rights abuse.‖367 internationally wrongful acts
Since the 20th century a growing adopted by the International Law
consensus has been reached among Commission at its fifty-third
scholars about the basic framework of session (2001). Article 1
transitional justice at a national level to Responsibility of a State for its
confront past human rights abuses in internationally wrongful acts:
post-conflict situations. Contemporary Every internationally wrongful act
international law has established a of a State entails the international
concrete mechanism of justice and responsibility of that State. Article
human rights obligations to be taken into 30 Cessation and non-repetition:
account while starting the transitional The State responsible for the
process of peace from authoritarian internationally wrongful act is
regimes. Bickford mentions some of under an obligation: (a) to cease
them:368 prosecution of perpetrators by that act, if it is continuing; (b) to
national, hybrid or international courts; offer appropriate assurances and
creation of truth commissions or other guarantees of non-repetition, if
national efforts; establishing reparations circumstances so require. Article
policies; remembering and honouring 31 Reparation: 1. The responsible
victims through different methods; State is under an obligation to
reconciliation initiatives and reforming make full reparation for the injury
institutions, which have a history of caused by the internationally
abusive behaviour. wrongful act Article 32
It is interesting to recall again that States Irrelevance of internal law: The
have the obligation to comply with the responsible State may not rely on
international treaties they have signed the provisions of its internal law as
and ratified. Concerning our topic here, justification for failure to comply
the duty to investigate and repair the with its obligations under this
individual victims, the following Part.371
international principles are worthy of Principles of Nuremberg: Any
being mentioned369: person who commits an act which
UN General Assembly Resolution constitutes a crime under
2625 (XXV) ―Declaration on international law is responsible
principles of international law therefore and liable to
friendly relations and co-operation punishment.372
among states in accordance with
the charter of the United Nations‖: Transitional Justice in Spain
―…All States shall comply in good
faith with their obligations under In order to analyze in a clearer way the
the generally recognized principles public treatment of the dictatorial past in
and rules of international law…‖370 Spain, the different measures taken will
be categorized into three groups, following
the division of political analyst Aguilar373:
A) Material reparations to the victims
367 http://www.ictj.org/en/tj/ (last time acceded 21 (pensions, pecuniary compensations and
July 2010)
368 Louis Bickford, Transitional Justice inside ―The
Encyclopedia of Genocie and Crimes Against 371
Humanity‖, vol. 3, pp. 1045-1047. www.ilsa.org/jessup/jessup06/basicmats2/DASRco

369 Javier Chinchón Álvarez, Transición Española y mm.pdf
Justicia Transicional, page 339-340. 372 http://www.icrc.org/ihl.nsf/full/390
370 373 Paloma Aguilar, Transitional Justice in the
http://www.oosa.unvienna.org/oosa/en/SpaceLaw/ Spanish, Argentinean and Chilean Case, pages 9-16.
gares/html/gares_25_2625.html
Page 130
any other type of assistance); B) Symbolic

reparations (monuments, public and A. Material reparations
official pardons to victims, condemnation
of the past…); C) Criminal justice, Material reparations were provided in
amnesties and pardons. Spain through legislation since 1975. In
However it is necessary to first explain order to present a clearer presentation,
some features that have probably affected they will be organized in two groups. First
the way the Spanish transition was of all, the general rules approved during
managed in comparison with other the first years of the transition and
transitional justice processes as the ones second, the recently adopted Law of the
that took place in Chile and Argentina. Historical Memory.376
First of all, the length of the Spanish a. Material reparations from 1975-
authoritarian regime as oppose to that in 2007
Chile and Argentina must be considered. Apart from the Amnesty Law of 1977
Franco‘s Regime was the longest one, other legislative measures were taken in
lasting almost 40 years (from 1936 to the first years of the transition. First of
1975) while the military dictatorships in all, in 1978 a Governmental Act (Real
Chile and Argentina lasted from 1973 to Decreto) granted retirement pensions to
1990 and 1976 to 1983, respectively. The both members of the military and the
issue of time is important as the time Republican forces, or their heirs. The
elapsed from the extreme repression to same year, another Government Act was
the end of the regime in the case of Spain passed extending the amnesty to officials.
was much longer. The climax of violence Second, one year later, pensions, medical
in Spain took place in the immediate care and social assistance were
years after the end of the Civil War. guaranteed to widows of those who had
Therefore, once the regime ended, thirty died during the war because of political
years after the cruellest violations, most of activities, when the death was not the
the victims and perpetrators were dead consequence of the execution of a
and a generational change had taken sentence. Third, in 1984, two new laws
place.374 On the contrary, in Chile and were enacted, one recognising the years
Argentina the dictatorships lasted less spent in prison as years contributing to
than 20 years, in the case of Argentina Social Security, and the other extending
seven years, a small period in comparison this guarantee to those who had joined
with the Spanish dictatorship. This the army or public order forces during the
obviously implied that both victims and war. Finally in 1986 those who had been
perpetrators were still alive and the members of the UNM377 were permitted to
memory of the violence suffered still very be reincorporated into the Army. During
much present.375 the 90s some laws were passed with
Secondly, the human rights ‗system‘ has regard to the payment to those who had
increasingly become more prevalent spent some time in prison during Franco‘s
during the last two decades (1980s), regime. However, the first reference to the
creating a human rights network of local, unfairness of the situation suffered to
national and international human rights those who fought for democracy during
organizations that have been influential in and after the Civil War only appeared in a
the democratization processes in different law in 1998, that, in the context of the
countries. This international pressure did restitution of confiscated goods, speaks of
not exist during the Spanish transition.
376 The Law of Historical Memory introduces

374 Ulrike Cadpdepón, ―Historical Memory and provisions that address the other categories of
Democratization in Chile and Spain: Between local reparations, but will be explained in this section.
Discourses and international Norms‖, GIGA German 377 Democratic Military Union, a sector of the
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
Page 131
―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
http://www.derechos.org/nizkor/espana/doc/decre 383 Ibid. Art. 3
tocivf.html 384 Ibid. Art.4

380 Paloma Aguilar, Transitional Justice in the 385 Ibid. Arts. 5-10
Spanish, Argentinean and Chilean Case, page 9 386 Ibid. Arts. 11-14
Page 132
detention in concentration camps during of the disappeared and to indemnify those

World War II and the transition; and, subject to discrimination on political
―promoting historical research about the grounds.391 In the same vein, in Chile
Civil War, the Franco Regime, the exile economic reparations have been given to
and the Transition, and to contribute to victims, detainees, their families and the
the dissemination of the results.‖387 children born of mothers in captivity. An
This law has been strongly criticized by ―Office of Repatriation‖ was also created to
different sectors of society, as well as help those persons forced to go into exile
political parties. For example Mariano to return to Chile.392
Rajoy the leader of the ―Partido Popular‖
(People‘s Party)388 criticized it, not only B. Symbolic reparations
because of its flaws, but because he
believes these measures will just reopen During the transition process and until
hate and quarrels from the past at the the present time, no monuments have
same time as divide the society. been built in Spain to pay tribute to the
However, until this moment, the Law of victims of both sides, with the exception
the Historical Memory is being slowly of a small and recycled one in a square of
implemented. Many NGOs from different Madrid.393 The case of the ―Valle de los
regions in Spain complaint that the Caídos‖ (the Valley of the Fallen) that was
families of the disappeared are not built by republic prisoners to honour the
receiving enough institutional support nationalists dead during the civil war, is
and worthy recognition of the missing. 389 very significant. This monument, ordered
Therefore, even if the government has by Franco, remains exactly as it was
heard the requests from different during the Dictatorship, as a legacy and
organizations (such as Amnesty important symbol from this period. 394
International, Equipo Nikzor, among Even more, it is the place where
others) the balance is negative, there nationalist demonstrations and
remain many things to do, and should be celebrations honouring and enhancing the
done quickly, as an important number of Dictatorship and Franco‘s figure have
the people who can benefit from the been taking place. However, since the Law
measures of the Law of the Historical of the Historic Memory entered into force,
Memory are elderly persons. 390 these acts are forbidden.
Similar reparations were provided in the In the same way, other monuments or
Southern Cone. In Argentina from 1991 to symbols from the Dictatorship (statues of
2004 different laws were passed to Franco, names of streets and squares) are
guarantee that economic assistance was still standing today or have been removed
provided to political detainees at the time recently. The main equestrian statutes of
of the dictatorship as well as the relatives Franco of Madrid, Zaragoza, Santander
387 Ibid. Art. 20 391 Andrea Ugalde – Natalia Luterstein, The

388 The right-wing Popular Party is now the largest Argentinean Reparations programme for grave
opposition party at the Parliament. violations of human rights violations perpetrated
389 The ―Asociación por la Recuperación de la during the last military dictatorship (1976-1983), page
Memoria Histórica en Aragón‖ (Asociation for the 13, published in Reparations for Victims of
Historic Memory in Aragón, brought all these Genocide, War Crimes and Crimes against Humanity
complaints to the Comission on Human Rights of the Systems in Place and Systems in the Making,
Autonomical Parliament in Aragón. Martinus Nijhoff Publishers, 2009.
http://www.cortesaragon.es/Nota_de_Prensa.364.0. 392 Paloma Aguilar, Transitional Justice in the
html?tx_ttnews%5Btt_news%5D=2251 Spanish, Argentinean and Chilean Case, page 15- 16
390 Ángeles Egido León, La historia y la gestión de la 393 It is located in the ―Plaza de la Lealtad‖ in Madrid,
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.
Page 133
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
Page 134
information, testimonies and documents 1982, respectively. The main difference

on the violations of human rights and among these two and the one in Spain is
fundamental freedoms.‖403 that the Spanish one was democratically
In Chile, among the many monuments voted, once the authoritarian regime was
built to pay tribute to the victims, a few finished while the Chilean and
can be mentioned. In 1991, the Argentinean were adopted by the Military
government, in cooperation with two just before the regime ended, as a ―shield
associations for the disappeared and of impunity‖ to them.405 Furthermore, in
executed, built a mausoleum and Argentina, during the first democratic
memorial in Chile‘s general cemetery to government two laws were passed also
pay tribute and give a dignified burial to granting amnesties. These were the ―Ley
the victims of the Pinochet Regime. In the de Punto Final‖ (The Final Stop Law) in
same way, in 2003 the ―National Stadium‖ 1986; and the ―Ley de Obediencia Debida‖
that was used as a centre of illegal (The Law of Due Obedience) in 1987. 406
detention and torture was declared a In December 1990, the president at the
national monument. Furthermore, the time, Carlos Saúl Menem, granted a
corpse of the previous President of Chile, presidential pardon to the Military
Salvador Allende, who was killed in the Juntas.407 Finally, at the end of 1983 the
―coup d‘état‖ of Pinochet, was transferred new democratic government, presided by
from its private grave to the Chilean Alfonsín, revoked the Auto-Amnesty law
General Cemetery, the place where most passed by the Military, however the ―Final
of the democratic presidents of the Stop Law‖ and the ―Law of Due
country rest.404 Regarding the naming of Obedience‖ remained until the law No
streets, in the capital of Chile, there is 25.779 was adopted, declaring null and
still a public avenue named after the date void the aforementioned laws and
Allende‘s government was overthrown, reopening the possibility of prosecuting
―Avenida 11 de Septiembre.‖ those who had committed horrendous
crimes.408 The main arguments to nulify
C. Criminal justice, Truth these laws were that they went against
Commissions, amnesties and pardons. the Inter-American Human Rights
Convention, the International Convention
Amnesties on Civil and Political Rights, the
Convention Againts Torture and the
As it was mentioned before, the first state´s duty to prosecute crimes agaisnt
democratic Parliament in Spain after the humanity409 (these same arguments could
Civil War voted an Amnesty Law in 1977, be applied in the case of the Spanish
approved by both the Francoist´s Amnesty Law.)
reformists and the democratic opposition,
which gave amnesty to all the crimes
committed during the Dictatorship and 405 Ulrike Capdepón, ―Historical Memory and
the Civil War. This Amnesty put at the Democratization in Chile and Spain‖, page 6.
same level victims and victimizers but 406 Andrea Ugalde – Natalia Luterstein, The
Argentinean Reparations programme for grave
denied the option of punishing the violations of human rights violations perpetrated
perpetrators of human rights violations. during the last military dictatorship (1976-1983), page
In Chile and Argentina, Amnesty Laws 2.
407 Ibid.
were passed as well, the first 1978 and 408 Andrea Ugalde – Natalia Luterstein, The
Argentinean Reparations programme for grave
403 Andrea Ugalde – Natalia Luterstein, The violations of human rights violations perpetrated
Argentinean Reparations programme for grave during the last military dictatorship (1976-1983), page
violations of human rights violations perpetrated 2.
during the last military dictatorship (1976-1983), page 409 Pablo F. Parenti, La jurisprudencia argentina
13. frente a los crímenes de derecho internacional,

404 Paloma Aguilar, Transitional Justice in the Lateinamerika Analysen 18, 3/2007, S. 61-93.
Spanish, Argentinean and Chilean Case, page 11. Hamburg: ILAS, page 27 et seq.
Page 135
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.
Page 136
forces asking for justice, was just a matter

of time.
Transitional justice measures are
necessary in order to rebuild social trust,
without any resentment from the past.
And the core element to achieve this is
justice. Victims in Spain have not
obtained justice yet, and the transition
process will not finish until this justice is
completely brought to them. It is just a
question of humanity towards part of our
population which thus far has been
ignored. Probably measures such as
Truth Trials or Commissions are
disproportionate in the current context of
Spain, but other forms of justice definitely
must be taken. The Law of Historical
Memory is a good start, but this law has
many flaws that should be improved and
the fear of part of the population
overcome. Furthermore, both the national
government and the different regional
governments should make more efforts in
enforcing the provisions established by
this law. It should not be seen as attempt
to open ―wounds already closed‖ but an
act of justice to those who did not get it
when they should have. ―Wounds will not
close until they are properly clean‖. As
Walter Benjamin said ―la memoria abre
expedientes que el derecho considera
archivados‖ (memory opens records law
considers archived).
Page 137
Bibliography
Articles
Andrea Ugalde – Natalia Luterstein, The Argentinean Reparations programme for grave
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
Studies
Websites
www.derechos.org/nizkor/
www.ictj.org
www.oosa.unvienna.org
www.ilsa.org
http://www.icrc.org
www.larepublica.es
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Page 138
LUSTRATION LAW IN POST-

COMMUNIST ROMANIA
CASE STUDY: COUNCIL FOR
THE STUDY OF SECURITY
ARCHIVES
By Cristian Gherasim*
ABSTRACT
After the demise of communism the question of ethical and juridical

responsibility arose. Romanian society seems to be reluctant to sanction
those with criminal culpability for the wrongdoings of the former
communist regime. Also, when trying to overcome this reluctance, policy
makers were facing another dilemma as Romania‘s secret police files are
used more to fight current political battles rather than to expiate the crimes
of the totalitarian regime. A sample of the moral cleansing mechanisms,
use for less than moral political purposes, is offered by the 2000
Romanian presidential elections and The Council for the Study of Security
Archives ambiguous actions towards the leading presidential candidate,
Ion Iliescu. Instead of erring on the side of caution and employing
materials and evidence from a variety of sources, the Council set a
dangerous precedent of sloppy research and contradictory declarations,
forgetting that any moral reform must start within the Council itself.
In 2008 The Romanian Constitutional Court ruled against the laws
governing the functioning of the Council, declaring them unconstitutional.
A major setback, the constitutional aspect has raised questions about the
decisions previously taken by the Council. Normally, such decisions would
lack relevance as they were made according to a law that acted against
the state constitution.
* Cristian-George Gherasim, 25, Romania, is currently studying for a Master‘s Degree in

―Romanian and European Politics‖ at the Faculty of Political Science, University of
Bucharest. His interests include political philosophy, European policies, electoral systems,
transitional justice mechanisms, etc.
Email: gherasim_crstn@yahoo.com
Page 139
Introduction administrative practice. A bureaucratic

understating of power explains ‗the ease
It appears that the post-communist with which the ex-communist renounced
Romanian society has compelled a total their ideological belief and manage to
amnesty, both moral and legal. Nobody attain success in post-communist
seems to be really responsible. This lack politics‘.415
of ethics has been mirrored by the actions
of present day politicians. So, the grind of A question of ethical indifference
transition and the lack of economic
efficiency are seen as unaccountable The fall of communism and emergence of
facts. It is only the fault of communism a democratic nation-building process was
itself, and communism itself is portrayed seen by many as an opportunity to
as an artificial experiment, something reinvent the state on the principles of
that comes from nowhere and ends on freedom and political accountability. As
December 1989, taking with it all its Daniel Barbu points out, in the case of
caretakers, leaving behind a new-born Italy and West Germany after World War
and innocent nation. Second, the method of ‗historic ignorance
Following this line of thought, the only was a means by which Germans and
ones responsible for the regime‘s crimes Italians hoped to break the alliance
are the Romanian Communist Party, an between state and nation, in hope of
ideological construct, and the supreme redeeming the nation and rebuilding the
leader, Nicolae Ceauşescu. Nothing could state on whole new principles‘416. This
be further from the truth. We have to mechanism allowed them to condemn
understand that the communist regime post factum the totalitarian state without
existed and acted through the will and incriminating the nation. That was the
actions of the Romanian people. The few desired and accepted effect: to built with
Romanians that were arrested, executed, the help of a once compliant nation a new
persecuted and exiled, approximately six state. That wasn‘t the case in post-
percent of the total population, weren‘t communist Romania. ‗Nobody here
executed and persecuted by impersonal bothered to declare that he didn‘t know
courts. They were the victims of other what had happened, nobody here acted
Romanians who accepted collaboration surprised. The general feeling was that
with the regime, acting on behalf of their the past didn‘t matter and a debate
own individual or collective interest. concerning individual and collective
Political utopia can deceive, but not kill, responsibility would be a waste of time‘ 417.
ideology can lie, but not maim and The experience of the communist regime
humiliate. Only people can do that. All didn‘t seem to have left any noticeable
these people were killed by other people. marks in the collective conscience of the
It is a truism, but one that seem to be Romanian people. Nobody hoped for a
elusive, consciously, the reasoning of thorough debate on the responsibilities of
today‘s anticommunists. the new state. Nobody wanted a total
Also, we might note that the so called brake with the past. Most of today‘s
crypto-communists, the present political politicians and many of the famous
elite in Romania, are none other than intellectuals, who now criticize the
former Communist Party members. But
today, they managed to fill the same high 415 Anna Grzymala-Busse, Redeeming the Communist
ranks of power as they did in the past. Past. The Regeneration of Communist Parties In East
They power doesn‘t reside in the existence Central Europe, (Cambridge: Cambridge University
of one particular political party or Press 2002), p.256
416 Daniel Barbu, Republica absentă. Politică şi
ideology. Their power resides in what societate în România postcomunistă (Bucureşti:
Anna Grymala-Busse called Nemira 2004), p24
417 Barbu, Republica absentă., p.25
Page 140
current administration and want to be authoritarian Latin America‘.418 Again, the

seen as champions of the civil society, limits of the culpability establishing
were members of the Communist Party. process became the focal point of debate.
Regardless of their present stance, all of Using the Hirschmanian model of thought
them seem to be in denial not only of their we might say that the way in which the
communist past but of communism itself. post-communist society dealt with its past
They can‘t accept the fact that their can be trace to two variables, two types of
carriers and prestige were determined by transition that a society undergoes: the
the loyalty they showed to the Communist ―exit‖ strategy can be assimilate to the
Party, stating that their position of passive act of emigration; the ―voice‖
dominance was only determined by their strategy is the proactive approach of
personal qualities and merits. criticizing politicians and official policies.
Communists and neo-communists Regardless of the chosen strategy, the
accepted as scapegoats for their actions ousting of former communist and high-
notions of indefinite abstraction, both to ranking secret police officers was
consolidate power and to doge determined by the efficacy of the new
responsibility. If the communist turned to legislation and the political will to
Marxist-Leninist, the Communist Party implement it. This has inevitably led to a
and the Supreme Leader, the process of political bargaining.
anticommunist, actually collaborationists Studies of lustration falsely presume that
and former nomenklatura members, the enactment of laws and the building of
claimed that communism was something research institutions and other
of foreign origin, something that was enforcement mechanisms are the
enforced through will of outside powers. outcomes of a successful moral cleansing
So, they decided that privately they process. But rarely is the question asked:
should hold in abhorrence the regime, but Are the verdicts handed down by these
in public to collaborate with it. agencies correct? Can we establish
It appears that we are dealing with a historical truth only on these kinds of
society that was totally absent during the decisions? Also, there are no reasons to
communist regime, only to reemerge, believe that the transitional-justice laws
clueless of what had happened, after have equal success in addressing the
December 1989. Without any victims or problem of moral cleansing in post-
villains, the post-communist society communist countries.
found itself lacking any social and
collective trauma. Their total disinterest The Legal Framework
in resisting the communist regime had
found its correspondent in the ignorance Romania was a late comer to the whole
which governs present day Romania. transitional justice process, adopting the
Totalitarianism, as a political regime, necessary legal framework well after other
can‘t be prosecuted, only people can. The countries of Eastern Europe. The Social-
problem of guilt rests in the idea that Democrat Party stayed in power from the
every man is responsible for the way he is fall of Ceausescu until 1996 and, being
governed. The question of ethical made up of former communist officials,
responsibility gave way to a hotly debate had tried to block the transition and
regarding the extent to which a ban on transitional justice from coming to
the political accession of former Romania. First proposed as a draft by
communist members can be applied. The Ticu Dumitrescu, a former political
process of uncovering the truth and
developing reconciliation in the countries
of the former communist bloc has tried, to 418Daniel Nina, Learning from Experience of the
Past: Reflections on the Truth and Reconciliation
some degree, mimicking ‗the process of Commissions in Latin America and the Situation in
transitional justice played out in post- Eastern Europe (Cape Town: University of Cape
Town, 1994), p 74
Page 141
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
Page 142
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
Page 143
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
Page 144
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
Page 145
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
Page 147
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Editura Univers), p.142
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Draft law regarding the access of the former communist officials and members of the
totalitarian regimes to public and political positions, 1996
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democracy and the rule of law in Central and Eastern Europen, ZAagred: Political
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(Cape Town: University of Cape Town, 1994), p 74
Ziua, February 13, 2001
Page 148
BIH FROM DAYTON TO THE

EUROPEAN UNION
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.
* Nicola Sibona is a lawyer specialised in EU law. Nicola carried out his

undergraduate studies in European and Comparative Law at the University of
Turin and at the University of Maastricht, and he obtained a degree in European
Legal Studies (LL.M.) from the College of Europe (Bruges). After professional
experiences in international law firms and in the European Commission, Nicola is
currently collaborating with a Brussels-based law firm, where he assists clients on
EU law matters.
nicola.sibona@coleurope.eu
Page 149
Introduction In view of this, the instrument for the

development of the integration process is
When the Dayton Peace Agreement identified in the Stabilization and
(hereinafter, the ―DPA‖) was signed in Association Process (―SAP‖). The SAP
1995, in an American military base in elaborates on the basic requirement to
Ohio, by Slobodan Milosevic, representing respect the Copenhagen criteria, adding
the Serbs, Franjo Tudjman for the Croats other conditions specifically tailored for
and Alija Izetbegovic for the Bosniacs, 429 it the needs of Western Balkan countries.
had the ambition to represent more than These conditions are partly common to all
a simple peace treaty for the territory of the countries of the region and partly
Bosnia and Herzegovina: indeed, in specific to each State: for Bosnia and
addition to the usual content of a peace Herzegovina, the document mentions the
treaty (cease-fire, definition of the establishment of functioning institutions
borders, army control), it tried to lay down among the fundamental conditions for the
the basis of the Bosnian State. The actual future relations between Bosnia and
Constitution of Bosnia and Herzegovina, Europe.433
contained in Annex IV to the DPA, cannot
be fully understood if it is not collocated On 16 June 2008, by signing the
in that framework, where the institutional Stabilization and Association Agreement
compromise reached also tried to (SAA), Bosnia and Herzegovina made an
represent on a political level the important step in its march towards
equilibrium reached on the battlefield by integration in the European Union.
the armies:430 the result is a byzantine However, the process of integration of the
institutional framework, divided along Western Balkans into the EU necessarily
ethnic lines, which has proven to be requires Bosnia to undertake a deep
successful at maintaining peace but process of institutional reforms, and faces
which still requires constant international Europe with new and unexplored
tutelage. challenges. For the first time since its
establishment, the European Union
With the turn of the century, the action in the Western Balkans will
European Union enlargement strategy has necessarily imply a certain extent of state
started considering the Western Balkans building and Bosnia and Herzegovina
countries as potential candidates for represents the most relevant and,
accession to the European Union: 431 with unfortunately, thorny example of this
the two ‗Eastern enlargements‘, completed statement.
in 2004 and 2007 respectively, the
Western Balkans became even more a In the frame of this paper, we will in turn
strategic territory for the European Union. analyse the most relevant issues related
The prospective of an accession to the EU to the Dayton Constitutional framework,
for all the countries of the region is in order to be able to have a prospective
officially stated for the first time at the outlook on the future expectations, risks
Zagreb Summit of 24 November 2000 432. and challenges which pave Bosnia‘s way
towards institutional reforms and
429 This term is used with reference to Bosnian European membership.
Muslims.
430 ROSSINI, Andrea Oskari and Davide SIGHELE, ―La
Bosnia dopo Dayton‖, in LIMES - Rivista Italiana di

Geopolitica, supplement to no. 4/2005, pag. 105 http://ec.europa.eu/enlargement/enlargement_proc
431 EU Western Balkans Summit Declaration, ess/accession_process/how_does_a_country_join_th
Thessaloniki, 21 June 2003, available at: e_eu/sap/zagreb_summit_en.htm
http://ec.europa.eu/enlargement/enlargement_proc 433 See Council of the EU, General Affairs Council
ess/accession_process/how_does_a_country_join_th Conclusions, 29 April 1997, available at:

e_eu/sap/thessaloniki_summit_en.htm http://www.consilium.europa.eu/ueDocs/cms_Data
432 A text of the final declaration of the Summit is /docs/pressdata/en/gena/028a0057.htm
available at:
Page 150
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).
Page 151
association with a national minority, citizens. This huge public machinery

property, birth or other status.‖.437 absorbs about 60 percent of the GDP of
the whole state, which increases to 70
To comply with the decision of the Court, percent if we only consider the
the authorities of Bosnia and Herzegovina Federation:440 this means that only 30-40
must implement a constitutional reform. percent of the GDP can be spent on
However, two subsequent attempts of the services and infrastructures, which is
Bosnian political forces to agree on clearly unsustainable.
institutional reforms have failed to reach
the expected results.438 In this framework,
the recent parliamentary elections of The failure of the OHR „devolution‟
October 2010 have been governed by the
same rules already condemned by the Annex X of the DPA provides for ―a High
Court in Strasbourg, leading to the result Representative to facilitate […] mobilise
that the country representatives in the […] and, as appropriate, coordinate the
institutions have been selected once more activities of the organisations and
in violation of the Convention. agencies involved in the civilian aspects of
the peace settlement‖. It designates the
In addition to this, BiH as a result of the holder of that office as ―the final authority
Dayton Constitution is an extremely in theatre regarding interpretation of this
complex and cumbersome state, which Agreement on the civilian implementation
comprises two entities, a special district of the peace settlement‖. With the Peace
(Brcko), fourteen prime ministers, over Implementation Meeting of 10 December
180 ministers, 760 members of legislative 1997, held in Bonn,441 the Office of the
bodies, 148 municipalities, five levels of High Representative was granted very
authority, three official languages and two effective powers to enhance the
alphabets,439 all in a country of 4 million institutional framework of BiH and isolate
the most extremist elements: these
powers included the power to impose
legislation and remove public officers
437 This article has been taken in consideration by
the Court in conjunction with Article 3 of Protocol
which could endanger the peace process,
No. 1, according to which ―The High Contracting and they have been used extensively by
Parties undertake to hold free elections at reasonable all the people covering the charge. In the
intervals by secret ballot, under conditions which will period between 1998 and 2005, 119
ensure the free expression of the opinion of the people
in the choice of the legislature‖, and with Article 1 of
public officers were removed and 286 laws
Protocol No. 12 to the Convention, which provides or amendments to laws passed: according
for a general prohibition of discrimination, and reads to the Venice Commission of the Council
the following: ―1. The enjoyment of any right set forth of Europe many achievements
by law shall be secured without discrimination on
any ground such as sex, race, colour, language,
accomplished by BiH in that period, such
religion, political or other opinion, national or social as the setting up of a court at BiH level
origin, association with a national minority, property, and the transfer or assumption of
birth or other status. 2. No one shall be discriminated responsibilities in the fields of defence,
against by any public authority on any ground such
as those mentioned in paragraph 1.‖
intelligence, judiciary power and indirect
taxation ―were unlikely to have happened
438 We refer to the so-called ―Butmir process‖, which
consisted in high-level meetings on the future of
Bosnia, and which took place at the military base of Bosnia and Herzegovina‖, Report Doc 10200, 4 June
Butmir, on the outskirts of Sarajevo, in the autumn 2004, available at:
of 2009. Previously, another package of reforms http://assembly.coe.int//main.asp?link=http://ass
called the ―April 2006‖ package, from the date in embly.coe.int/documents/WorkingDocs/doc04/ED
which the discussion process was initiated, did not OC10200.htm
manage to raise the necessary consensus among all 440 ibid.
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
Page 152
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
http://www.crisisgroup.org/library/documents/eur Work – A Radical Proposal. For Practical Reform. 8

ope/balkans/180_ensuring_bosnias_future.pdf January 2004, available at:
445 Venice Commission of the Council of Europe, cit., http://www.esiweb.org/pdf/esi_document_id_48.pdf
pag. 22
Page 153
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
449 MONTGOMERY, William, A role model for the

Bosnian Serbs, in B-92, 13 July 2008, available at:
http://www.b92.net/eng/insight/opinions.php?yyyy
448 ibid.,. p. 9 =2008&mm=07&nav_id=51876
Page 154
Conclusions by the current political leaders, or if the

occasional meetings only constitute an
When Mr. Schwarz Schilling tried his opportunity to pay lip service to the
experiment for OHR ‗devolution‘, he hoped intention of reforming the Dayton
that the BiH could emancipate itself from Constitution, hiding the intention,
the support provided by the international especially for the Serbian leaders, to
community, and start benefiting from the pursue the ―Montenegro strategy‖.
‗pull‘ of the prospective of European
integration. As we have seen, his forecast The recent elections which took place in
has shown to be largely too optimistic, 450 October 2010 have shown some positive
but his intuition regarding the needs of and encouraging progress by the non-
Bosnia has proven valid. nationalistic political forces. Although it is
at this stage too early to understand if
The need for Europe has wrongfully been these positive developments would be
portrayed as a far-off prospective for sufficient to re-launch a process of
Bosnia, provided with a rather economical constitutional reforms, what is beyond
and technical character: on the contrary, every doubt is that if BiH wants to
the need for Europe is, at this phase, continue its way towards European
much more urgent, and political and integration, civil and economic growth,
social in kind. Its benefits go beyond without renouncing to the unity of the
those provided by economic integration, country, action has to be taken now to
and include, most importantly, much reform the Dayton Constitution.
tangible elements such as visa
liberalization, university exchanges for its Such action needs to be undertaken in
students and cultural reunification with first place by the national political
the rest of Europe. In order to achieve leaders, because only in this way would
this, Bosnia needs to continue on the the new institutions benefit from the
European path with determination and precious legitimacy before the citizens
pursuing its race, which is also a race that an externally imposed reform, by its
against the time, provided that the more very nature, would lack. In this sense, the
the Dayton Constitution remains in place proposal of a federalist model could be the
with its current limits, the more the right basis for a new departure of the
problems affecting its society (division negotiations, as it could be able to win the
along ethnic lines, nationalism, economic hesitations of the national leaders,
stagnation) will worsen. reassuring them and the Bosnian
population that the specificity and the
In the last years the political scene in needs of each entity would continue to be
Bosnia has shown contradictory signs respected, without the need to renounce
with respect to a possible shared plan to a properly functioning state and to the
among the main political leaders for legitimate aim of integrating Bosnia into
reforming the existing Dayton the European Union.
Constitution, in order to make the
institutional framework of BiH more
efficient, in full respect of the ECHR, and
able to function autonomously without
the need for international tutorage. It is
difficult to establish if a real step towards
the future of the country can be pursued
450 MAGANZA, Florian, EU Conditionality and State-

Building in Bosnia: An Uneasy Relationship, Master
Thesis, College of Europe, Bruges, 2008, pag. 25
Page 155
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Page 156
THE EUROPEAN UNION AND

SECURITY SECTOR REFORM IN
THE DEMOCRATIC REPUBLIC
OF CONGO
By Ian Bausback*
ABSTRACT
In recent years the Democratic Republic of Congo (DRC) has

attracted a considerable amount of attention from international
actors with regards to security sector reform (SSR). The conflict-
ridden state has been engaged by a wide array of players in the
field, but perhaps none more so than the EU. The organization has
recognized a role for itself in transitional justice processes and has
been increasing SSR efforts outside its borders. The case of the
DRC, where the EU has established a substantial presence,
presents a particularly challenging environment for reform of the
security sector. This paper examines the effectiveness of EU efforts
in the DRC and its development as an SSR actor.
* 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
Page 157
Introduction EU efforts in the DRC and its

development as an SSR actor.
Security sector reform (SSR) – the process
of reforming abusive institutions in The SSR approach to transitional justice
transitional societies, in particular the focuses on institutional reform and
army, police, and judiciary – plays a key supports one of the core purposes of a
role for other processes of transitional transitional justice policy – preventing the
justice. Indeed, it has been suggested recurrence of human rights abuses.455 In
that SSR is a ―necessary pre-condition‖ societies in which state institutions were
for transitional justice endeavors to past tools of repression and corruption,
succeed as a whole.451 The Organization reform of these institutions is necessary
for Economic Cooperation and to instill integrity and the notion of public
Development‘s (OECD) Development service.456 The security sector is crucial
Assistance Committee determined in its in this regard, as its institutions are
SSR concept that the aims should be: ―the responsible for ensuring the rule of law
establishment of effective governance, and domestic accountability for past
oversight and accountability in the human rights violations. Unreformed
security system…improved delivery of institutions threaten efforts to build peace
security and justice needs…development and the rule of law, and without reformed
of local leadership and ownership of state security institutions efforts to
reform processes…[and] sustainability of provide domestic criminal accountability
justice and security service delivery.‖452 for past abuses may prove futile. 457
Pivotal to effective institutional reform in
Post-conflict environments, in which a post-conflict setting is the reintegration
security is a key problem, present of ex-combatants and the involvement of
perhaps the most challenging context for domestic actors. The success of
the implementation of SSR.453 One such disarmament and demobilization rests on
environment is the Democratic Republic having a credible reintegration program
of Congo (DRC). Given its recent past and and local ownership of the reform process
current state of affairs, the DRC is a provides a more legitimate basis for
compelling case for the necessity of citizens to regain trust in the
effective SSR in post-conflict transitional institutions.458 The challenging nature of
societies. The EU has been one of the post-conflict situations means that the
most prominent SSR actors in the DRC, international community can play a
having identified reform of the security valuable role in institutional reform, as
sector as a precondition to establish international actors can ―bring the
lasting peace and stability in the necessary leverage and impartiality‖ to
country,454 and has launched several ensure the effectiveness of the process. 459
SSR-driven missions there that shed
considerable light on EU policy regarding
this area of transitional justice. This
paper seeks to analyze the effectiveness of
451 Laura Davis, ‗The European Union and

Transitional Justice,‘ Initiative for Peacebuilding 455 Office of the UN High Commissioner for Human
(2010) 9. Rights, ‗Rule-of-Law Tools for Post-Conflict States:
452 Ibid. 11. Vetting: an operational framework,‘ HR/PUB/06/5
453 Heiner Hänggi, ‗Conceptualising Security Sector (2006) 1.
Reform and Reconstruction,‘ ‘ Reform and 456 International Center for Transitional Justice,
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
Commission, ‗Developing a common security sector in Post-Conflict Societies,‘ UNDESA Commissioned

reform strategy for the EU,‘ Safer World and Paper (2003) 10.
International Alert, Post-seminar paper (2005) 3. 459 OHCHR, ‗Rule-of-Law Tools,‘ 7.
Page 158
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.
Page 159
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.
Page 160
staff in administration, which involved the

The Council has paralleled the rehabilitation of a Non-Commissioned
Commission‘s efforts in defense reform, Officer Training School. 485
launching a second ESDP mission in the The EU has thus undertaken considerable
DRC in 2005 – the EU Mission to provide efforts to reform the security sector in the
advice and assistance for security sector DRC, particularly its police and defense
reform in the DRC (EUSEC DR Congo). institutions. This has been carried out
Focusing on the FARDC, its initial through the parallel activities of the
mandate was to support the integration of Commission and the Council – the
the army and carry out a ‗chain of provision of financial support in the case
payments‘ project.478 The placement of of the former and the launching of ESDP
EU military personnel within the missions in the case of the latter.
administration has enabled the mission to
closely monitor the reform process. 479 It The EU and security sector reform in
has directly provided the competent DRC the DRC: Evaluating its effectiveness
authorities with technical expertise in
areas such as command and control, The process of reforming the security
training, accountancy, and budgetary and sector in the DRC presents a number of
financial management.480 It has also challenges for all those involved. Donor
worked to separate the FARDC chain of harmonization, superficial reform
command from the chain of payment.481 approaches, and lack of local ownership
In doing so, it has addressed one of the of the process have particularly plagued
key sources of corruption in the FARDC – efforts. For the EU, the situation has
the embezzlement of soldiers‘ salaries by been further complicated by its own
senior officers and the use of ‗ghost internal difficulties regarding SSR policy.
soldiers‘ by commanders to inflate salary
payments.482 To ensure increased The large number of national and
transparency in financial flows the international actors involved in the SSR
mission has been supervising the process in the DRC has created
disbursement of soldiers‘ wages,483 which substantial difficulties and donor
has been complemented by higher-level harmonization has been an issue
efforts to reform the central throughout.486 The size of the country
administration in charge of the payroll. 484 and the magnitude of the problems it
In conjunction with the ‗chain of faces in its security sector make it hardly
payments‘ project, the mission provided possible for any donor to tackle the issues
technical, financial, and logistics support on its own, yet given the particularly
to conduct a biometric census and an sensitive nature of SSR the various
operational audit of the FARDC, both donors have been reluctant to cooperate.
necessary tasks for the reform of They often have differing SSR doctrines
personnel administration and defense and are averse to sharing information
spending. Most recently, it has launched concerning the security sector. 487 This
a ‗training of trainers‘ scheme for FARDC situation hinders effective coordination
and makes it tempting for DRC
478 EU Council Secretariat, ‗EU Mission to provide authorities to exploit the differences
advice and assistance for security sector reform in between international actors. 488
the Democratic Republic of Congo (EUSEC DR Operating on a bilateral basis offers the
CONGO),‘ EUSEC RDC/08 (2010).
479 Weiler, ‗Laggard in Reality?,‘ 17.
10-11. 485 EU Council Secretariat, ‗EUSEC DR Congo‘.

481 Clément, ‗Forward to the Past,‘ 102. 486 Hoebeke, Carette, and Vlassenroot, ‗EU Support,‘
482 Hoebeke, Carette, and Vlassenroot, ‗EU Support,‘ 11.
11. 487 Clément, ‗Forward to the Past,‘ 98.
483 EU Council Secretariat, ‗EUSEC DR Congo‘. 488 Hoebeke, Carette, and Vlassenroot, ‗EU Support,‘
484 Weiler, ‗Laggard in Reality?,‘ 17. 11.
Page 161
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
490 Hendrickson and Kasongo, ‗Strategic Issues,‘ 9.
developed schemes to address them 499 –
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.
Page 162
the ‗flanking measures‘ financed by the presents a considerable challenge when

Commission target the poor living the state is unstable and unwilling to
conditions of soldiers; the ‗chain of implement reform.504 Coupled with the
payments‘ project has tackled corruption EU‘s internal difficulties regarding SSR
in the command structure; and the policy, this helps to explain why the
biometric census and operational audit of results have been limited.505
the FARDC dealt with the lack of
centralized information. Limited though it may be, the positive
impact of EU efforts remains. In police
In this regard, the EU has made reform, local ownership of the process has
constructive contributions to SSR in the been a particular challenge and the EU
DRC by moving it beyond the ―traditional has been able to achieve some progress
‗training and equipment‘ approach.‖ 500 As on the issue. The GMRRR – established
Clément notes, ―without centralised in 2005 to deal with the reform and
information on human resources, funding reorganization of the CNP – was
allocation and, most importantly, comprised of both Congolese and foreign
weapons allotment, oversight is virtually police officers, as well as representatives
impossible.‖501 The biometric census and of international institutions. Of the
operational audit were thus crucial tasks twenty-three members, three were from
for addressing the issue of oversight in EUPOL DR Congo and two were from the
the DRC defense sector. A further Commission. Only six of the total were
concrete step was the implementation of Congolese and their participation was
the ‗chain of payments‘ project, which weak, as they took a back seat while the
provided oversight where none had international members dominated the
previously existed. Unfortunately, debates. Civilian participation was also
embezzlement in the army has merely lacking, with only four civilian
shifted to other budget lines, namely food participants and none of them
rations and logistical support,502 but the Congolese.506
EU can hardly be blamed for this
unintended consequence encountered in The EU made commendable efforts
the course of taking necessary measures concerning civil society participation and
to address corruption. local ownership. Of the four civilians that
did participate, two were from the EU –
Indeed, it must be noted that the EU has one from the Commission and one from
to deal with a government that is often EUPOL DR Congo. The EU
reluctant to engage in meaningful SSR. representatives pushed for a more
The DRC government prefers instead to transparent and inclusive national
place other domestic priorities ahead of consultation for the reform proposals,
institutional reform, such as military advocating for the participation of civil
operations against rebel movements in society. They were in favor of convening a
the eastern part of the country. Such national seminar involving
prioritizing is understandable given that Parliamentarians, civil society, media, the
continuing conflict creates obvious CNP, and other government departments.
difficulties for SSR, but it has come at the In the end, it was the Commission that
expense of the long-term reform provided the financial support for the
process.503 Enforcing a ‗post-modern‘ seminar to take place and the event was
SSR rationale based on transparency and
accountability in a ‗pre-modern‘ state
505 Ibid. 18.
500 Ibid. 112. 506 Janine Rauch, ‗Donor-Promoted SSR: Early Steps
501 Ibid. 102. Towards Police Reform in the Democratic Republic of
502 Ibid. 102. Congo,‘ Global Consortium on Security
503 Hendrickson and Kasongo, ‗Strategic Issues,‘ 1. Transformation, Working Paper No. 3 (2008) 4-12.
Page 163
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.
Page 164
states continue to thwart any attempt to represented a diversion of resources from

do so.511 Still, in certain regards the EU long-term SSR efforts.514 Still, the EU has
has made promising moves forward on been the firmest promoter of structural
the issue of internal coordination. SSR in the DRC.
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.
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
Practice of a New Donor Approach,‘ The African Centre for the Constructive Resolution of
Disputes, Occasional Paper Series 3.2 (2008).
Davis, Laura, ‗Justice-Sensitive Security System Reform in the Democratic Republic of
Congo,‘ Initiative for Peacebuilding (2009).
Davis, Laura, ‗Small Steps, Large Hurdles: The EU‘s role in promoting justice in
peacemaking in the DRC,‘ Initiative for Peacebuilding (2009).
Davis, Laura, ‗The European Union and Transitional Justice,‘ Initiative for Peacebuilding
(2010).
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
(2010).
EU Council Secretariat, ‗EU Police Mission for the DRC (EUPOL RD Congo),‘ EUPOL
RDC/08 (2010).
Hendrickson, Dylan and Missak Kasongo, ‗Security Sector Reform in the Democratic
Republic of the Congo: Strategic Issues,‘ African Security Sector Network, Issue Paper No.
4 (2009).
Hoebeke, Hans, Henri Boshoff and Koen Vlassenroot, ‗Assessing Security Sector Reform
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).
International Center for Transitional Justice, ‗What is Transitional Justice?,‘ (2008).
International Crisis Group, ‗Security Sector Reform in the Congo,‘ Africa Report No. 104
(2006).
Katorobo, James, ‗Democratic Institution Building in Post-Conflict Societies,‘ United
Nations Department of Economic and Social Affairs Commissioned Paper (2003).
Office of the UN High Commissioner for Human Rights, ‗Rule-of-Law Tools for Post-
Conflict States: Vetting: an operational framework,‘ HR/PUB/06/5 (2006).
Rauch, Janine, ‗Donor-Promoted SSR: Early Steps Towards Police Reform in the
Democratic Republic of Congo,‘ Global Consortium on Security Transformation, Working
Paper No. 3 (2008).
UK Presidency in conjunction with the European Commission, ‗Developing a common
security sector reform strategy for the EU,‘ Safer World and International Alert, Post-
seminar paper (2005).
Weiler, Quentin, ‗The European Union and Security Sector Reform in Africa: a Leader in
Theory, a Laggard in Reality?,‘ Bruges Regional Integration and Global Governance Papers
(2009).
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.
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commitment to Africa,‘ European Security Review 25 (2005), 1-3.
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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS

INTERNATIONAL SUMMER SCHOOL SARAJEVO

INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND

Editorial board: and

Print run: 300

Sarajevo, December 2010

The present publication is distributed free of charge.

A WORD FROM THE REDACTOR ......................................................................................................................... 10

WHAT IS TRANSITIONAL JUSTICE?

QUANTITATIVE IMPACT ASSESSMENT IN TRANSITIONAL JUSTICE RESEARCH: NO SINGLE TRUTH IN

CRIMINAL PROSECUTION AND TRANSITIONAL JUSTICE:DOES PLEA BARGAINING HELP IN FOSTERING

REPORTS ON THE TRANSITIONAL JUSTICE EXPERIENCE IN BOSNIA AND HERZEGOVINA

THE RIGHT TO REPARATION FOR WAR-AFFECTED CHILDREN SPECIAL FOCUS ON BIH

ACCOMMODATING SOCIAL JUSTICE INTO TRANSITIONAL JUSTICE MECHANISMS THE CASE OF

TRANSITIONAL JUSTICE IN DEMOCRATIZATION PROCESSES: THE CASE OF SPAIN FROM AN

BIH FROM DAYTON TO THE EUROPEAN UNION

Dr. Stefanie Ricarda Roos, M.A.L.D.

A WORD FROM THE REDACTOR

The idea that, to reconstruct a peaceful and stable basis for a

* Noémie Turgis (noemieturgis@gmail.com) is preparing a PhD on Transitional

What is Transitional Justice? Ruti Teitel, designate the same phenomenon,

(http://www.pravnik- Democracy: A Contribution to a Political Theory of

and Transitional Justice in Conflict and Post-Conflict

promote a transition toward the difficulties. Victims of human rights

controversy. The application of reparation such reparations is also a high subject of

transitional justice field. The several reconciliation is above all a matter of

The discourse is also now much more

Boraine, Alexander L., ―Transitional justice: a holistic interpretation‖, Journal of

justice strengthens on the long run the

evaluate the impact of TJ but also its implementation of better TJ designs as

The paper has given a short overview of Never again!

21 source: authors own representation

BARAHONA DE BRITO, ALEXANDRA Et Al. 2001. The politics of memory

SOME ASPECTS OF THE

Introduction (hereinafter: ILC) raises first, the question

46 We do not have enough place to show how the ICJ

entitled ‗Conduct of organs of a State‘, reads as

(probably) be obstructed by the Bosnian The answer to this is in the

85 Prosecutor v. Stanišić and Simatović, (Trial) 88 Ibid., para. 64 (r)

The single time the word ―genocide‖ is reparation by means of a simple

Case Law of ICJ:

Case Law of ICTY:

Prosecutor v. Slobodan Milosevic, Decision on Motion for Judgement of Acquittal, Case

Case Law of Human Rights Chamber of Bosnia and Herzegovina:

List of Documents and Declarations

should require that the defendant

Establishing a historical record or a

112 Michael P. Scharf, Trading Justice for Efficiency:

25 May 1993., para 6.

Lederach, John Paul, (1997) Building Peace: sustainable reconciliation in divided

CRIMINAL PROSECUTION AND

This essay expounds on the advantages and disadvantages of plea

and sentence bargaining. While both wording of this article, notably

Secondly, in a view of fostering most sensitive issue relates to the right to

To draw some conclusions, first of all it

ICTY Manual on Developed Practices, UNICRI (2009), Turin.

Introduction entities: the Federation of BiH (the

UNHCR Representation in BiH. October 2007. 130 Vijeće Ministara BiH.

would have provided for the extension of

In 2009, both Houses of the BiH

2. Human Rights Chamber revisionist accounts.145 A second initiative