EXECUTIVE SUMMARY OF TJ GUIDEBOOK FOR BIH by UNDP in BiH

TRANSITIONAL JUSTICES GUIDEBOOK

FOR BOSNIA AND HERZEGOVINA

EXECUTIVE SUMMARY 2

United Nations Development Programme

TRANSITIONAL JUSTICES GUIDEBOOK FOR BOSNIA AND HERZEGOVINA Executive Summary Portfolio Manager for Justice and Human Rights. . . . . . . . . Alma DEDIĆ Project Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . John P. FURNARI Reviewers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Armin SIRČO, Assistent Resident Representative for Programme

Alma DEDIĆ, Portfolio Manager for Justice and Human Rights

Author. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dragan M. POPOVIĆ, Transitional Justice Analyst Editorial Team. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prof. dr Zoran PAJIĆ, Lejla HADŽIMEŠIĆ, Goran BUBALO, Alma DEDIĆ, John P. FURNARI, Nela POROBIĆ ISAKOVIĆ

The opinions stated herein do not necessarily reflect the official position of the United Nations Development Programme (UNDP).

PreFACE In post-conflict Bosnia and Herzegovina (BiH), the challenge of dealing with the past touches upon multiple dimensions of justice and human rights: how to bring war criminals to justice, how to do justice to war victims and survivors, and how to reweave a war-torn society and regain trust amongst its peoples. The framework within which the past may be properly addressed - referred to as transitional justice - includes a variety of mechanisms designed to recognize and remedy past abuses through criminal prosecutions, truth-finding endeavours, memorials and reparation programs, but also to prevent future abuses by building strong democratic institutions and vetting public figures from government service if their actions during a prior regime so require. The establishment of key BiH Institutions in 2005 - such as the BiH Court, the BiH Office of the Prosecutor, and the BiH Ministry of Justice - gave the BiH government its first real opportunity to lead local government and civil society in a process of building transitional justice capacity and commencing dialogue about facing the past. Meanwhile, UNDPâ&#x20AC;&#x2122;s public

survey - Justice and Truth in BiH: Public Perspectives (2005) provided convincing evidence that if BiH government would open a dialogue about how best to address the past, most citizens of BiH were interested in participating. Thus, in October of 2007, the BiH Ministries of Justice and Human Rights and Refugees joined UNDP in the launch of the project - Supporting National Capacities for Transitional Justice in BiH. The Project was designed to build transitional justice knowledge in BiH, to facilitate BiH government outreach to all communities, and to begin a discussion among and between BiH State and Entity governments and BiH citizens about what must still be done to address the past. The BiH government and UNDP identified a wide range of government and non-government stakeholders to participate in BiHâ&#x20AC;&#x2DC;s first government-led, national transitional justice Consultation Process in May and June 2008. Despite the sensitive and emotional nature of the topics presented, participants exercised substantial goodwill and mutual respect, and delivered a concrete set of

transitional justices recommendations captured in a Transitional Justice Consultation Report which is now provided in the electronic portion of this publication. The transitional justice Consultation process clearly left a positive impression on the BiH government. Shortly after the event, BiH government acted to recognize the crucial role of transitional justice mechanisms in its broader Justice Sector Reform Strategy for BiH - thus officially calling for BiH to develop a comprehensive transitional justice strategy. We are now working together to facilitate the creation of a BiH government Transitional Justice Working Group responsible for developing a Transitional Justice Strategy for BiH which will be guided by the public concerns and recommendations contained in the Transitional Justice Consultation Report and future consultations. Within this context, we have worked together to publish this Transitional Justice Guidebook - the first such book of this nature in BiH. This Guidebook is, first and foremost, a practical guide intended to inform and support victims of war in their pursuit of justice and individual human rights. In addition, the Guidebook is being published at a critical moment - a period in which the BiH government has awakened to its responsibility to lead in the development of a transitional justice strategy for BiH. In this regard, the Guidebook may be viewed as a tool to inform and guide the members of the BiH government’s Transitional Justice Working Group

- as well as civil society leaders - as they work in partnership to build a transitional justice strategy for BiH. Such a strategy must place victims first by identifying mechanisms that will enable BiH state and entity institutions to harmonize, and improve the quality and fairness of reparations programs. Such a strategy will also strike an appropriate balance between retributive and restorative justice in BiH so that responsibility for the conflict may be placed upon individuals, and documented facts about the conflict may replace the myths that continue to divide the peoples of BiH. Chapter 1 of the Transitional Justice Guidebook is designed to deepen the reader’s understanding of the theory of transitional justice, and to introduce the “pillars” or “mechanisms” of transitional justice as they have been used to face the past in other post-conflict environments. While the phrase “transitional justice” may be foreign to many, the fact remains that BiH has used transitional justice mechanisms to tackle many critical post-conflict matters related to the mass human rights abuses of the past. Thus, Chapter 2 carefully sets out the many transitional justice mechanisms and activities which BiH and local authorities, as well as private citizens have implemented in order to “deal with the past” through retributive and restorative justice. Though the Transitional Justice Guidebook does not judge any of BiH’s post-conflict attempts to address human rights violations, discerning readers will surely find ample opportunity in these pages to

learn from past transitional justice activity in BiH. One will find many inspirational achievements, but may also recognize flaws or omissions in this body of work - particularly when one considers how the unfinished business of the past is affecting daily lives in BiH. In this regard, we believe the Transitional Justice Guidebook will inspire new legislative initiatives which BiH government and citizens should pursue in order to complete BiH’s Transitional Justice journey. The final chapter of the Guidebook is dedicated to the growing number of Civil Society Organizations that has dedicated their work to the area of Transitional Justice. Whether Civil Society Organizations have been collecting documentation about the past conflict, providing witness support at war crimes trials, or administering to the

needs of survivors and the return community, Civil Society Organizations are playing active, individual roles in BiH’s current efforts to deal with the past. As the BiH government considers a transitional justice Strategy, Chapter 3 serves as an index of transitional justice active Civil Society Organizations. The BiH government would do well to harness and direct this Civil Society Organizations energy and experience in its efforts to design and implement a transitional justice strategy. At the same time - to paraphrase one of the key recommendations set out in the Transitional Justice Consultation Report - Civil Society Organizations must build a coalition of transitional justice practitioners willing to partner with, and influence the manner in which the BiH government pursues and implements a transitional justice strategy.

Bariša Čolak

Christine McNab

Minister Ministry of Justice BiH

Resident Representative UNDP BiH

content Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CHAPTER I - Official Initiatives (Government Institutions Activities) in the Field of Transitional Justice. . . . . . . . . . . 15 I Criminal Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2. The Work of the International Criminal Tribunal for the Former Yugoslavia (ICTY). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3. War Crimes Prosecution Before Courts in BiH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

3.1. Co-operation of Courts With Public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

3.2. Legislation of the Most Direct Impact on War Crimes Cases Prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

3.2.1. BiH Criminal Legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

3.2.1.1. Inovations Established by the BiH Criminal Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

3.2.1.2. Different Criminal Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

3.2.2. Laws Regulating the Area of Witness Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

3.3. National War Crimes Prosecution Strategy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

II Documenting of War Crimes and Truth Telling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 2. Initiatives for Setting up the BiH Truth and Reconciliation Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 3. Fact-finding Investigative Bodies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 4. Solving the Fate of Missing Persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 5. Institute for Research of Crimes Against Humanity and International Law of the Sarajevo University . . . . . . . . . . . . . . . . . . . . 32 III Reparations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Restitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1. Implementation of ANNEX VII of the Dayton Peace Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Compensations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1. Reparations on the Basis of Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1. Financial Sustainability, Similarities and Differences Between Entity Laws Regulating the Status of Civilian War Victims and Controversies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2. Activities of Camp Inmates Associations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3. Reparations on the Basis of Court Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1. Activities of Camp Inmates Associations of FBiH and RS on Pursuit of Reparations Through Court Cases. . . . . . . . 3.3.2. Genocide Lawsuit against the Former Federal Republic of Yugoslavia (FRY) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Various Forms of Satisfaction 4.1. Memorials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1. Memorial Centre in PotoÄ?ari. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33 34 34 36 36 38 41 42 44 45 45 46

IV Institutional Reforms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 2. Establishment of Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

2.1. Establishment of the Court of BiH, the Prosecutorâ&#x20AC;&#x2122;s Office of BiH and the Registry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

3. Institutional Reform. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 4. Adoption of Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 5. Verification of Integrity and Capacity of Civil Servants: Vetting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 CHAPTER II - The Role of Civil Society in the Transitional Justice Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 2. Support of Civil Society Organisations to War Crimes Trials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 3. Activities of Civil Society in the Area of War Crimes Documenting and Truth Telling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 4. Activities of Civil Society in the Area of Reparations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 5. Activities of Civil Society in the Area of Institutional Reforms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 6. Activities of Civil Society in the Area of Reconciliation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Introduction At the beginning of October 2008, the United Nations Development Agency (UNDP) in Bosnia and Herzegovina, Office in Sarajevo, commenced the development of the Transitional Justice Guidebook for Bosnia and Herzegovina (Guide) with the aim to: 1. inform the BiH public, institutions at all levels of government as well as individuals and civil society organisations1 about transitional justice as a theory, about specific mechanisms and activities conducted in this area since the end of the armed conflict until the present day, and about all government institutions and civil society organisations that have implemented these activities;

2. provide a useful auxiliary tool for government institutions, individuals and civil society organisations, as well as for wider audience, in developing future strategies and programmes and conducting daily activities toward meeting their own needs. In order to achieve that goal, in the period between the beginning of October and the end of December 2008, more than 70 representatives of civil society and institutions at all government levels have been interviewed and voluminous documentation has been used including various laws, strategies and reports of local institutions, analyses conducted by local and international human rights institutions as well as by international government institutions, resolutions of the UN Security Council and General Assembly, archival records and other documents with the aim of completing information and acquiring necessary references.

The term â&#x20AC;&#x153;civil societyâ&#x20AC;? in the context of this document and the Transitional Justice Guidebook for Bosnia and Herzegovina includes all those formal and informal groups i.e. organisations which are traditionally regarded as interested in the promotion of transitional justice mechanisms (criminal justice, truth-telling, reparation and institutional reform). Those are primarily human rights CSOs, religious groups, associations of missing and killed civilian war victims and disabled war veterans, associations of camp inmates, war veterans associations, returnees, professional journalism associations, youth associations, representatives of academic and legal community, artists and individuals interested in dealing with the issue of transitional justice.

The Transitional Justice Guidebook for Bosnia and Herzegovina was published in May 2009. Having in mind that the Guide has been printed as a limited edition and that it has not been translated into English language in its entirety, there is an objective obstacle for an unedited hard copy to be distributed to and read by a broader group of interested persons whether they be from the local community, or representatives of international community. Accordingly,

UNDP has prepared this Executive Summary of the Transitional Justice Guidebook for Bosnia and Herzegovina (Summary), published in both the Local and the English languages. However, the structure of the Guide is somewhat different from that of the Summary. Specifically, the Guide comprises three Chapters and an Annex (CD): Chapter I provides a definition of transitional justice and its mechanisms, determines the social context in which it is realised, defines its objectives, dilemmas and risks and clarifies roles of different stakeholders involved in the process, such as political elite or civil society. Chapter II provides information on activities of government institutions and the international community undertaken in the area of transitional justice, as well as practical information and instructions on rights of certain groups of population and ways in which those rights can be exercised. These activities are referred to as â&#x20AC;&#x153;formal initiativesâ&#x20AC;?, because they were either initiated or implemented by the authorities. However, this Chapter also notes several informal initiatives undertaken by civil society organisations or individuals. These civil society initiatives were included into this Chapter due to their specific nature or due to their uniqueness, as well as due to the fact that they have had a decisive impact on the direction and

development of transitional justice in BiH and shaped public opinion. In addition, this Chapter illustrates some controversies that have resulted from these activities, and defined problems in such a way as may prompt the reader to consider potential actions that may be taken to overcome these problems. Chapter III provides information on informal activities, or to be more precise, on civil society initiatives, which aim to inform the public and institutions on how certain organisations can be of assistance to them in exercising their rights and in designing and implementing strategies. Activities implemented by civil society organisations in this area represent pioneer undertakings in many ways; however, certain problems have also been identified in their operations. In addition, this Chapter also contains a list of civil society organisations (including data) which are either presently involved in implementation or have been involved in implementation of activities in the area of transitional justice, either through implementation of their strategic objectives, or through short-term projects. Annex (CD) contains a report on the subject of the consultation between representatives of all governmental levels and individuals and civil society organisations, which were jointly organised by the Ministry for Human Rights and Refugees and the Ministry of Justice of the Council of Ministers of BiH and UNDP, in Fojnica, in June 2008. In contrast, this Summary of the Transitional Justice

Guidebook for Bosnia and Herzegovina consists of two chapters and an Annex (CD), as follows: Chapter I of the Summary encompasses activities undertaken by government institutions of BiH at all levels, and activities undertaken by the international community in the area of transitional justice.2 Chapter II of the Summary provides information on civil society initiatives in this area that were implemented and are still being implemented in BiH.3 The Annex (CD) of the Summary consists of four documents, specifically: Full version of the Transitional Justice Guidebook for Bosnia and Herzegovina, Report of the consultation held in Fojnica, as well as the following documents translated into English: Chapters II and III of the Guide4, Report of the consultation held in Fojnica. 2

Chapter II of the Transitional Justice Guidebook for BiH.

Chapter III of the Transitional Justice Guidebook for BiH.

Chapter I of the Transitional Justice Guidebook for BiH (introduction and theory of transitional justice as a discipline, its mechanisms, risks, dilemmas, etc.) is not prepared in English, because such information in English can be found in academic treatise, professional magazines as well as on different web pages of organisations dealing with transitional justice issues, such as the web page of the International Centre for Transitional Justice (ICTJ), and other such organisations.

Transitional justice is a method applied in societies troubled by the heritage of severe, massive and systematic violations of human rights and international humanitarian law and it represents a response to those violations, with the purpose of accomplishing the rule of law, implementing activities to alleviate consequences of crimes committed and creating conditions for promotion of peace and democracy, and perhaps some form of reconciliation, all aimed at preventing a repetition of the past. It is important to note that the Summary of the Transitional Justice Guidebook for Bosnia and Herzegovina gives a brief overview of the topics, main problems and controversies, as well as a brief analysis of formal and informal activities and initiatives that were undertaken in the area of transitional justice in Bosnia and Herzegovina from the date of signing the General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement) in 1995 until the end of December 2008. All such information can be found in much more detailed form in the Guide; therefore, the Summary should not be considered a document separate from the Guide. Instead, the Summary and the Guide

should be observed as a single document. To sum up, the Summary of the Transitional Justice Guidebook for Bosnia and Herzegovina represents a detailed introduction, while the overview of the problems of transitional justice in BiH and other necessary analyses and references are detailed in the Guide itself. Finally, it needs to be noted that there are probably both formal and informal initiatives that have not mentioned in this document, nor have they been

noted in the Transitional Justice Guidebook for Bosnia and Herzegovina. Meanwhile, those initiatives that have been noted were not, perhaps, elaborated upon in detail or were presented in more general terms due to a lack of data. However, these documents will still serve their purpose and help start new initiatives, both formal and informal, that will build upon past initiatives in order to overcome the consequences of crimes, accomplish a more complete sense of justice, and prevent repetition of the past.

The BiH public insists that courts address the crimes committed during the armed conflict between 1992 and 1995. For that reason, capacities were strengthened for the purpose of prosecuting war crimes cases and as a result, in 2003 and 2004, war crimes chambers were established within the Court of BiH and the Prosecutorâ&#x20AC;&#x2122;s Office of BiH and in December 2008, the National War Crimes Prosecution Strategy was adopted. However, problems that cannot be addressed through prosecution of war crimes cases still persist: there are different interpretations of truth in BiH; the number of victims remains the subject of political manipulation, since there are still no formal activities aimed at establishing circumstance and facts regarding crimes committed; about 13,000 persons are still registered as missing; there is no comprehensive programme of reparation; the public is remains unsatisfied with the reform of institutions, and many other issues. All this requires a broader approach to transitional justice, through integration of judicial and non-judicial mechanisms, as underlined in the Justice Sector Reform Strategy in Bosnia and Herzegovina which was adopted in June 2008, as well as the National War Crimes Prosecution Strategy. It is concluded both in the Executive Summary for the Transitional Justice Guidebook and the Transitional Justice Guidebook that the success of the process can only be guaranteed through a comprehensive approach to the problem of transitional justice, through integration of judicial and non-judicial mechanisms, to enable all citizens of BiH to have a full sense of justice.

CHAPTER I official Initiatives (Government Institutions Activities) in the Field of transitional Justice 15

I Criminal Justice 1. Introduction Processing war crimes committed during the BiH armed conflict has been conducted at four levels: 1. international (before the International Criminal Tribunal for the Former Yugoslavia and before third country courts, in line with the principles of universal jurisdiction); 2. state (before the Court of BiH’s War Crimes Chamber); 3. local (before 5 District and 10 Cantonal courts and the Brčko District’s Basic Court); and 4. regional level (primarily before the War Crimes Chamber at the District Court in Belgrade, Serbia).1 According to the National War Crimes Prosecution Strategy, adopted in December 2008, the Court of BiH’s War Crimes Chamber shall process cases of higher level sensitivity and complexity, the so-called “very sensitive cases”, whereas the 5 District and 10 Cantonal courts and Brčko District’s Basic Court shall process cases of lower level sensitivity and complexity, the so-called “sensitive cases”.2 It can be concluded that the 1

Within this document and, generally, within the Transitional Justice Guidebook (see CD Annex), only the past and current trials before International Criminal Tribunal for the Former Yugoslavia and the BiH justice system have been analysed.

National War Crimes Prosecution Strategy empowers the Court of BiH to perform the sensitivity assessment of war crimes cases.

primary burden of war crimes processing shall, actually, fall within the jurisdiction of entity courts and prosecutor’s offices, which is why special focus has been placed upon building capacities of these institutions while developing the Strategy as well as all other institutions which contribute to more efficient investigations and trial organisation.

2. The Work of the International Criminal Tribunal for the Former Yugoslavia (ICTY) One of the most important mechanisms to establish individual responsibility for committing war crimes is the ICTY.3 This tribunal has established jurisdiction for prosecuting individuals with the highest level of responsibility for the commission of four categories of criminal offences: 1. Grave breaches of the Geneva Conventions of 1949; 2. Violations of the laws or customs of war; 3. Genocide; and 4. Crimes against humanity. The establishment of the ICTY was particularly significant having in mind the fact that local judicial systems were initially unprepared to process war crimes cases. Essentially, ICTY acted as a surrogate forum responsible for beginning 3 The ICTY was established by the UN Security Council 827 of 25 May 1993, aimed at prosecuting individuals who have committed grave breaches of the international humanitarian law during the armed conflict in the former Yugoslavia, starting from 01 January 1991.

the battle against impunity by delivering justice and appropriate punishment to those individuals most responsible for violating international humanitarian law. ICTY also afforded victims an opportunity to feel that justice had been served, while at the collective level, socially unacceptable conduct was condemned and civic consensus was reached that persons committing such crimes would not go unpunished. In addition, the work of the ICTY had a decisive impact on raising the professional level of BiH ‘s judicial institutions by establishment of the Rules of the Road Unit at the ICTY Prosecutor’s Office in early 1996, and by publishing the ICTY Completion Strategy in 2002. However, information about the work of the ICTY has not been sufficiently disseminated to the BiH public, which has triggered the possibility for a number of controversies. The ICTY’s role became more prominent before the public only upon setting up the Hague Tribunal Liaison Offices in the region, and the development of a common international community policy to condition the possibility of European integration of post-Yugoslav states (primarily BiH, Croatia and Serbia) upon cooperation with ICTY. Despite this policy of conditional integration and the use of the Tribunal to encourage commitment of states and societies to deal with their past, ICTY was not accepted generally or perceived as an institution that brings justice. One of the key reasons lay in the fact that the Hague Tribunal was not located in the region where the crimes under its jurisdiction had been

committed. In addition, ICTY’s Outreach Programme was not developed until several years after its work had commenced. In the end, inadequate media coverage of ICTY’s work and mandate and a negative attitude of the political elite in the region toward this institution have contributed to a distorted perception that the Hague Tribunal had been formed to prosecute only one people and to diminish crimes committed against that same group of people. Representatives of victims associations and NGOs were also initially critical toward the work of the ICTY, though they have developed partnerships with this institution over the years. Their criticism primarily referred to the punishment strategy, as they felt that trial chambers were pronouncing different sentences for identical or similar crimes. In this regard, a particularly negative attitude developed toward the process of plea bargaining. This legal institution satisfies two elements of justice: retributive and restorative. The purpose of retributive justice is punishment for a crime committed and deterrence from future crimes. On the other hand, restorative justice, in its broadest terms, consists of the following three elements, which if implemented, would render valid the restorative segment of the plea bargain institution: 1) convicted person fully understands and accepts consequences of his acts and feels responsible; 2) convicted person clearly expresses readiness to remedy the damage inflicted and 3) convicted person fully accepts the punishment. In cases where plea bargains occurred, the general BiH public is of the belief that trial chambers

have not been sufficiently mindful that sentencing after plea agreement should be proportional to the crimes committed by reflecting the gravity of the criminal offence, the suffering inflicted upon the victims and the degree of responsibility of the perpetrators. As such, they did not carry the appropriate weight of a punishment for a committed crime and were not sufficiently strict in order to serve as a deterrent (restorative justice). In addition, the individual behaviour of persons accepting guilt via plea agreements has not reflected remorse for crimes committed and acceptance of responsibility. Nor has their behaviour after the pronouncement of the sentence demonstrated a readiness to take part in activities that would help restore trust and reconciliation (restorative justice).4 4

It is believed that those punishments have taken the character of amnesty and that the accused persons agree to plea bargains only to shorten their potential imprisonment sentences, which is why victims and the public believed that the justice was not served. Specifically, in 2004, the production house XY Films Sarajevo produced a documentary film entitled „Blind Justice“, showing how one part of BiH public perceives the work of the Hague Tribunal and, inter alia, the implementation of plea bargaining processes before the Court. Protagonists of the film are Edin Ramulić and Munira Subašić, representatives of victims associations, Emir Suljagić, journalist, Mirsad Tokača, President of the Research and Documentation Centre and others. All of them agree that sentences to follow the implementation of plea bargains have taken the character of an amnesty for crimes committed, at the same time ignoring the retributive aspect necessary for deterring similar crimes in the future.

3. War Crimes Prosecution before Courts in BiH War crimes cases began to be prosecuted before judicial institutions in BiH immediately after the armed conflict had begun; and such prosecutions intensified after the Dayton Peace Agreement signing in December 1995. However, all such local processes faced serious challenges. Trials were taking place under enormous political pressure. Troughout the country, local judicial institutions lacked sufficient prosecuting capacities and accused persons were typically members of minority ethnic groups, while members of the majority ethnic community were exempt from prosecution. Some of the indictments raised were not grounded in hard evidence. Rather mere accusations that a war crime had been committed would lead to apprehension and detention. Thus, in early 1996, the Rules of the Road Unit was formed within ICTY’s Prosecutor’s Office in order to halt such arbitrary detentions, to avoid the process of politicisation, and enhance freedom of movement in BiH. These rules required judicial authorities in BiH to deliver all files referring to investigated war crimes cases to this Unit for assessment. No person could be apprehended under any accusation regarding the commission of a war crime unless and until the ICTY’s Prosecutor’s Office had received the case file, reviewed the evidence, and verified the legitimacy of such a detention. This practice not only acted as a check on local

judicial institutions, but also directly built capacities of local judicial institutions to remove politics and rumour as basis for detention. The entire process lasted until 2004 when it was transferred to the Prosecutor’s Office of BiH. However, the exit strategy of the Hague Tribunal published in 20025 and procedures of police certification and judicial reappointment6 were of crucial importance to fully professionalize the work of courts and prosecutor’s offices in BiH. The ICTY Completion Strategy informed and resulted in two UN Security Council Resolutions: Resolution 1503 of 28 August 20037 and Resolution 1534 of 26 March 20048. These documents emphasise that building capacities of judicial authorities in the region in terms of war crimes processing 5

Under the Strategy, all investigations should be completed by the end of 2004, all first-instance trials should be completed by the end of 2008 and all final and binding sentences pronounced by the end of 2010.

Information on police certification and judicial re-appointment process contained further in the text.

7 S/RES/1503 (2003) http://daccessdds.un.org/doc/UNDOC/GEN/N03/481/70/PDF/ N0348170.pdf?OpenElement 8 S/RES/1534 (2004) http://daccessdds.un.org/doc/UNDOC/GEN/N04/286/29/PDF/ N0428629.pdf?OpenElement

was a part of the Hague Tribunal’s exit strategy and that the ICTY would focus on individuals with the highest level of responsibility for crimes committed, whereas national judicial systems would focus on persons of mid- and lowerlevel responsibility. In regard to capacity building, Resolution 1503 prescribes that the High Representative in BiH (OHR) set up a special War Crimes Chamber (WCC) at the Court of BiH. Special war crimes departments before Court of BiH and Prosecutor’s Office of BiH were established in 2003, and commenced with their work on 9 March 2005

3.1. Co-operation of Courts with Public According to analyses carried out by numerous local human rights organisations and international organisations such as the OSCE, trials before the WCC have been conducted in line with fair trial standard and the WCC truly represents one of the most important efforts BiH invested into establishing criminal responsibility of all individuals against whom there is reasonable doubt that they have committed grave breaches of international humanitarian law between 1992 and 1995. However, the broader BiH public has not been sufficiently informed about the work of the WCC or other courts which process war crimes cases, thus enabling the development of a number of controversies. Essentially, courts throughout BiH do not have specialised public relations

offices. There is one such office within the Court of BiH, but it has insufficient capacity to inform BiH citizens of court processes in an appropriate manner. Meanwhile, courts are in a difficult position because they remain responsible for this lack of openness to the public even though it is quite clear that judges themselves have a duty not to discuss their cases with the public.9 Through the NGO Support Network, additional efforts have been invested specifically into making the work of the Court of BiH available to the public; however, this project, too, has proved insufficiently successful. Media also bear partial responsibility for inadequately informing the public of the work of courts and prosecutor’s offices in this area. So far it has been evident that they have not expressed much interest in monitoring or analysing trials, except in order to sensationalize some cases. Also, different media outlets frequently publish conflicting reports about the same case, creating confusion among the public. In general, journalists have not been educated adequately about either violations of international 9

Specifically, Code of Judicial Ethics establishes restrictions in terms of public appearance of judges: A judge shall not give any comment publicly or privately in connection with either the case he/she is presiding or might be presiding over, which might cast reasonable doubts on his/her capacity to act impartially. Code of Judicial Ethics, Article 2.4 http://hjpc.ba/coe/?cid=2158,2,1

humanitarian law or existing case law on the subject of war crimes to be able to professionally report on the work of judicial institutions at all. The sole media outlet in BiH to possess capacities and to systematically analyse and monitor war crimes trials is the BIRN Agency. Finally, one more positive note, people who have accepted Internet as a new means of communication may acquire full information on the work of these institutions, of verdicts, indictments, etc. by simply searching through the web pages of the Court of BiH or Prosecutor’s Office of BiH.

3.2. Legislation of the Most Direct Impact on War Crimes Cases Prosecution 3.2.1. BiH Criminal Legislation Criminal legislation reform commenced on a smaller scale with the adoption of the new criminal legislation in the Federation of BiH (1998), in RS (2000) and in the Brčko District (2001). A comprehensive approach to this reform was not taken until 2002, when activity to pass criminal regulations began at all levels, with the assistance of OHR in particular. In 2003, the BiH Criminal Procedure Code (BiH CPC) was adopted followed by the subsequent harmonisation of entity CPCs, as well as the BiH Criminal Code (BiH CC).

3.2.1.1. Innovations Established by the BiH Criminal Legislation Since the new BiH CPC came into effect in 2003, it has raised discussions and controversies related to two new developments under the criminal law of Bosnia and Herzegovina, namely the “abolishment” of investigative judges as a part of criminal proceedings, and Guilty or not Guilty Plea (Article 229 and 230) in particular as it allows for the “plea bargaining” (Article 231) process. The primary reason for incorporating these new measures, which are a feature of Anglo-Saxon, or so called,“common law”, was the dramatic increase in organised crime in BiH during and immediately after the war, as well as a huge backlog resulting from delays related to the processing of cases. This reality, as well as international community demands, triggered a search for democratic methods to combat crime. Even though this shift toward common law methods has been met with criticism, it turns out that BiH’s criminal procedure reforms have reflected a wider trend in countries that have been loyal to the European legal tradition for centuries but now are not hesitating to accept the experiences of the common law system if those should prove to be more efficient in fighting crime. Nevertheless, moments crucial for acceptance of these innovations of the BiH CPC were the positive examples of the Hague Tribunal’s jurisprudence.

Plea Bargaining. The BiH CPC introduced the institution of plea bargain regulated by Articles 229 and 230 (Guilty or not Guilty Plea) and Article 231 (plea bargaining). Victims and the BiH public primarily have been introduced to this process through the activities of the Hague Tribunal, where a considerable number of accused individuals pled guilty to counts concerning either the direct commission of specific crimes or bearing responsible for them during the wars in the former Yugoslavia.10 Though mindful of the controversies related to guilty pleas, one should point out the advantages of this process. From the perspective of the Prosecutor’s Office, a guilty plea represents, among other things, a means of saving time and resources, particularly in terms of the financial and scheduling implications related to a full trial. Such pleas render trials unnecessary, allowing the court to proceed directly to a sentencing hearing and pronouncement of the sentence. During the bargaining process, both parties may request a specific sanction. Court approval of a successful plea agreement is considered valuable to prosecutors because it may lead to the defendant’s future testimony against higher-ranking individuals, thus improving the prospects for criminal convictions against the highest ranking offenders. It also may relieve witnesses of the stress of standing 10

The plea bargain was implemented, for example, in Plavšić, Erdemović, Deronjić, Nikolić, Obrenović, Banović and other cases.

to testify before the court. Finally, allegations in the indictment get confirmed through this process, and also open the possibility of establishing facts which were unknown until that moment (i.e. locating individual or mass graves, thus shedding light upon the fate of missing persons). Controversies over Plea Bargaining within the BiH Criminal Legislation. Article 231 of the BiH CPC (plea bargaining) prescribes that the prosecutor may propose a lesser sentence, below the legally prescribed minimum, for a suspected criminal offence and the suspect or accused may not appeal against the proposed sentence, thus regulating partially the aspect of retributive justice. However, in general terms, the controversy concerns the restorative segment of the agreement. Specifically, the BiH Criminal Code does not provide for a control mechanism ensuring that the agreement will be fulfilled, or that a defendant’s cooperation will provide assistance in other proceedings, or the future use of the defendant as a witness.11 Furthermore, Article 231 of the BiH Criminal Procedure Code foresees that the final judgement will be 11

Despite the fact that testifying is a legal obligation and that the Court is authorised to issue a warrant to force an individual to testify (the subpoena rule), this does not seem to be a sufficient mechanism to ensure cooperation. Specifically, this was the ICTY experience in the case of Biljana Plavšić who, although having signed the agreement, refused to testify in the case against Momčilo Krajišnik.

pronounced not later than three days as of the date when the court accepts the agreement. Based on this, it can be concluded that, following the final judgement, there are no ways to ensure that the defendant will actually cooperate in other proceedings as stated in the plea agreement, should he/she decide not to do so. However, the law clearly states that the judge has a final say. Without his/her decision, the court cannot accept the plea agreement, or the proposal of the prosecutor and defence about the penalty, due to the discretionary right of the trial chamber to determine the penalty, or even reject the agreement in its entirety. This, in principle, makes any „deals behind closed doors” between the prosecutor and the defendant impossible. However, generally speaking, practice of processing war crimes cases in BiH shows that plea bargaining have not been implemented sufficiently. The first such plea bargain before the Court of BiH was implemented only in February 2008.12

3.2.1.2. Different Criminal Policies Over the years of war crimes processing in BiH, different case law has been developed in different jurisdictions due to the application of distinct laws and due to differing legal positions taken by entity courts and the Court of BiH regarding the fairness of prosecuting defendants according to criminal laws 12

So far, four cases tried before the Court of BiH have been closed by application of the plea bargain institution: Idhan Sipić, Veiz Bjelić, Dušan Fuštar and Paško Ljubičić cases.

not in force at the time the alleged crime was committed. For these reasons, identical or similar crimes have been assigned different legal qualifications leading to different sanctions. The primary problem lay in the fact that the RS continues to apply the Criminal Code of the former Yugoslavia from 1977 as its applicable law, while the Court of BiH is applying the new Criminal Code of BiH adopted in 2003.13 One of the reasons for the application of the former Yugoslav Criminal Code is the general principle of criminal law to apply the code which was in effect at the time of the commission of the criminal offence, and which is more favourable for the defendant.14 This “inherited” legislation (Criminal Code of the former Yugoslavia), stipulates a prison sentence from 13

Criminal Codes of the Federation BiH and the Brčko District prescribe similar sanctions for the gravest criminal offences, identical to the Criminal Code of BiH. Namely, the Federation of BiH Criminal Code (Article 38) provides for a prison sentence between 20 and 40 years for the gravest criminal offences, while the Brčko District Criminal Code (Article 43) also provides for 20 to 45 years imprisonment.

This approach is based on the principle of the Roman law that a penalty which was not regulated by the law at the time the criminal offence had been committed (nulla poena sine lege i reformatio in peius) and in this specific case the law is truly more favourable for the perpetrator. However, the former Yugoslavia and BiH are two different countries and there are no examples from practice that one state applies the laws of another state before its courts.

5 to 15 years, and 20 years in lieu of the death penalty, for criminal offence of war crimes. Given that the death penalty was not pronounced in the former Yugoslav countries in the last twenty years or so, and is prohibited by the European Convention, the maximum sentence in actuality is that of 15 or 20 years imprisonment. The Court of BiH is processing war crimes pursuant to more recent BiH legislation (2003) which is harmonised with international standards and argues that the application of such laws to criminal offences committed in 1992 is acceptable and allowed as it is in the interest of justice, international humanitarian law and ICTY case law. Pursuant to the Criminal Code of BiH, imprisonment for war crimes ranges between 10 and 45 years.

3.2.2. Laws Regulating the Area of Witness Protection The BiH legislative framework providing for witness protective measures consists of two laws: the Law on Protection of Witnesses under Threat and Vulnerable Witnesses15 and the Law on Witness Protection Programme in Bosnia and Herzegovina16, as national instruments regulating this area.

15 The Law was passed in 2003 and adopted at the level of BiH, Entities and Brčko District. 16

The Law was passed in 2004 and adopted at the level of BiH.

The Law on Protection of Witnesses under Threat and Vulnerable Witnesses prescribes a lower level of protection including witness psychological support and protection of identity and privacy through different measures, such as testifying via video link, non-disclosure of witness identity, testifying without the presence of defendant, voice distortion and other measures. Meanwhile, the Law on Witness Protection Programme in Bosnia and Herzegovina provides for a protection programme involving physical protection, safe houses, relocation, identity change and other measures. According to the aforementioned Laws, during investigation and upon request submitted by a potential witness, the BiH Prosecutorâ&#x20AC;&#x2122;s Office may submit a proposal on protection measures to the Court of BiH. Then, the Court assesses the proposal and passes decision on necessary measures which can range from lower protection measures to those involving the full use of a witness protection programme. The objective of such measures is to mitigate risks which may arise from testifying in terms of traumatisation or security threats to witnesses and their families. Thus far, all measures of physical protection have been enforced by the Witness Protection Department at the State Investigation and Protection Agency (SIPA). SIPA activities, under the Law on Protection of Witnesses under Threat and Vulnerable Witnesses, Law on Witness Protection Programme and Law on the State Investigation and Protection

Agency, primarily refer to protection of witnesses testifying before the Court of BiH. However, SIPA gets involved sometimes in the process of protecting witnesses to testify before lower instances, upon requests by those courts if subsequently approved by the Court of BiH. Justifications for such approach include the jurisdiction of SIPA over the entire BiH territory and lack of adequate mechanisms to provide witnesses with the protection at lower levels of authority (absence of laws, adequate police units and other mechanism).

3.3. National War Crimes Prosecution Strategy Although steps have been taken to improve the work of all BiH judicial institutions, major problems are still visible in war crimes prosecution. Specifically, the exact number of perpetrators is still unknown; identity of victims is still unknown; ethnic origin of victims is still unknown; potential witnesses are still unknown; number of ongoing war crimes investigations is still unknown; number of indictments raised is still unknown; complexity of those cases is still unknown, etc. Furthermore, there are no functional solutions to psychological or physical protection of witnesses and victims, primarily at the level of entities. Judicial and law enforcement institutions at district and cantonal levels as well as at the level of the BrÄ?ko District are encountering major problems in terms of inadequate capacity, and an unsatisfactory level of regional co-operation in the area of

war crimes prosecution (primarily of BiH, Serbia and Croatia) mostly due to bans on extradition of their citizens established either by constitution (Croatia) or criminal legislation (Serbia and BiH).17 In addition, judicial and other institutions active in the area of war crimes prosecution at all level of authority are facing major financial problems. Currently, only the Court of BiH and Prosecutor’s Office of BiH have required capacities in professional, technical and financial terms. They have special divisions for war crimes, sufficient number of associate staff, advisors, investigators, etc. The same applies to law enforcement authorities at the state level, such as SIPA, which, under the Law on the State Investigation and Protection Agency, conducts investigations into criminal offences falling within the jurisdiction of the Court of BiH and Prosecutor’s Office of BiH, including, inter alia, war crimes. Ultimately, the laws regulating the area of witness protection are fully applied only before the Court of BiH, whereas their application at the level of cantonal and district courts and at the level of the Brčko District is questionable.

objective of the Strategy to end the most complex trials with the highest level of sensitivity in 7 years and all other war crimes cases in 15 years.18 During the year 2009, the Ministry of Justice of BiH and Ministry of Finance and Treasury of BiH ought to develop two strategic documents: 1) a review and analysis of material and technical capacities of all institutions dealing with war crimes cases in order to implement the Strategy recommendations, 2) a fifteen-year financial plan for the period of 2009 - 2024 to provide funds for solving war crimes cases.

All that has triggered the need for developing and adopting the National War Crimes Prosecution Strategy in December 2008, prescribing steps to be taken in addressing these problems in order to achieve the overall 17 Practically, the current collaboration among prosecutor’s offices in the region has been brought down to material documentation exchange, witness hearing and process status data exchange.

For more information, please refer to the Transitional Justice Guidebook contained in the document’s Annex (CD).

II DocumentING of War Crimes and Truth Telling 1. Introduction After signing the Dayton Peace Agreement, several initiatives were launched in BiH with the aim of establishing facts about the past events. At the same time, civil society organisations have been carrying out documenting and truth-telling activities related to war crimes as well as taking actions to protect relevant documentation in order to preserve the truth for future generations. As noted, some of these initiatives have proven unsuccessful, and the results of these working bodies (i.e. commissions), some of which are still functioning, are generally considered insufficiently influential to change the dominant position of the public expressed in different interpretations of truth. The reasons are manifold and range from insufficient readiness of political elites to initiate the process of addressing the past, to the generally reserved attitude of the public, especially associations of victims, towards a non-judicial mechanism whose mandate would be to determine the facts on the armed conflict in BiH. However, despite this, interest in the truth is generally growing in BiH and even - save for certain

reservations - interest in a special body with a mandate to determine the facts on the armed conflict. In Fojnica during June 2008, a large group of BiH citizens reached similar conclusions regarding the need to establish an institution to document facts about the BiH armed conflict at official consultations convened by the BiH Ministry of Human Rights and Refugees and BiH Ministry of Justice, with the support of UNDP.19 One of the most significant recommendations is that there is a need for setting up an investigative authority as a nonjudicial mechanism to deal with fact-finding about the BiH armed conflict because judicial institutions are not able to meet the need of BiH citizens for truth. Although the need for such an investigative authority was emphasised at these consultations, it does not automatically follow that the BiH public would be ready to approve its operations. Citizens have several concerns about the mandate of such an institution. For example, would the potential 19 This event, unique in many ways, gathered for the first time in Bosnia and Herzegovina since the end of the 1992-1995 war civil society organisations and representatives of all levels of authority coming from all ethnic communities to discuss openly and equally in the ambience of consensus all burning issues concerning transitional justice. The full Transitional Justice Consultation Report produced as a result of this consultation, and may be found in the Annex (CD).

investigative authority deal with historical causes to the war or with fact-finding about crimes committed in the period between 1992 and 1995? What crimes would be considered, or, would the focus be placed upon specific locations? Who would be the members of such a body, and how would they be selected. What would fall within their jurisdiction, and how would such a body’s mandate relate to those of BiH’ judicial authorities? Answers to all these questions are best arrived at through facilitated discussions and negotiations between major stakeholders including government institution, organisations and civil society representatives, so that some level consensus may be reached. Without such a transparent process, the public are more likely to be unhappy with solutions reached, which will most certainly lead to diminishing support for the work of any such authority. In any case, it is of paramount importance to apply a transparent approach in order to reach a general consensus for the purpose of setting up either an investigative authority at state level or several investigative bodies at local level including municipal and regional levels.

2. Initiatives for Setting up the BiH Truth and Reconciliation Commission Two initiatives have been launched in BiH for setting up a Truth and Reconciliation Commission. Both initiatives were supported by the United States Institute of Peace (USIP).

The first initiative was launched back in 1997 with the aim of gathering a broad coalition of organisations and individuals from civil society around the idea of setting up such a body. Activities undertaken to that end led to a major international conference held in Sarajevo in 2000, and attended by representatives of more than 100 civil society organisations from BiH and international practitioners in the area of transitional justice. This event reiterated the need for establishing a Truth and Reconciliation Commission through interventions to be carried out by the NGO, Citizens’ Association for Truth and Reconciliation (CATR). The initiative also resulted in the development of a draft Law on the Truth and Reconciliation Commission that was submitted to the Parliamentary Assembly of BiH for consideration and adoption. However, the draft Law has neither entered parliamentary procedure nor had it been considered. The second initiative was launched in late 2005, after USIP had contacted the three chairmen of the Parliamentary Assembly of BiH and urged them to initiate talks amongst eight parliamentary political parties with the aim of developing a draft law similar to CATR’s 2003 draft law concerning the establishment of the Truth and Reconciliation Commission (TRC) in BiH. A working group was set up and held several meetings under the auspices of the NGO, Dayton Project in close collaboration with USIP. The working group worked in a constructive and conciliatory

atmosphere and drew up amendments to the aforementioned draft law in an attempt to clarify certain matters, such as defining a procedure for appointing members to the Commission, defining the concept of a victim, etc. However, in May 2006, all talks concerning the formation of this body were suspended. It is very important to note that the wider public has never accepted these initiatives, stressing the lack of transparency as a central criticism. Although a part of the public has been aware of the objectives of those initiatives, the CATR and the Dayton Project have never organised extensive consultations on crucial issues which needed to be addressed in order to allow such an institution to be established, and subsequently to have its ultimate findings accepted as credible by the wider public. In the past, victims associations have been opposed to establishing such an institution. Specifically, the victims have insisted upon punishment of the responsible individuals as the only acceptable solution in terms of crimes committed. They strongly believed that the TRCâ&#x20AC;&#x2122;s supported by CATR and the Dayton Project would undermine war crimes case prosecution for they assumed that the Commission would be authorised to grant amnesty to the perpetrators, as had been the case with a similar commission in the Republic of South Africa. The same fears were shared by judicial institutions, primarily by the ICTY. However, it is important to note that the aforementioned TRC draft laws explicitly stated that the

Commission would not be authorised to grant amnesty. While this clarification influenced a change in opinion at ICTY, this misunderstanding regarding amnesty has largely continued to negatively influence public perceptions concerning the idea of a TRC.

3. Fact-finding Investigative Bodies In addition to the aforementioned initiatives for the establishment of a Truth and Reconciliation Commission, three investigative bodies have been established and mandated to deal with war crimes committed in specific locations within BiH. Those institutions have been established either by state, entity and municipal governments. In chronological order, they include the Commission for Investigation of the Events in and around Srebrenica between 10 and 19 July 1995 (Commission for Srebrenica), the Commission for Investigating the Truth Regarding Sufferings of the Serbs, Croats, Bosniaks, Jews and Others in Sarajevo in the period between 1992 and 1995 (Commission for Sarajevo) and the Truth and Reconciliation Commission of the Municipal Assembly of Bijeljina. The Commission for Srebrenica has completed its work. The Commission for Bijeljina is still working, while the Commission for Sarajevo has, in essence, never commenced its work. It is important to point out that the mandates of these 3 investigative bodies have not provided victims an opportunity to speak in public about their suffering.

The Commission for Srebrenica. The Commission for Srebrenica was formed pursuant to a decision passed by the Government of Republika Srpska on 15 December 2003 as an investigative body to take over all investigative activities aimed at establishing facts about events which had taken place in and around Srebrenica in the abovementioned period. The RS Government formed this body, on the one hand, in response to the instruction passed by the Human Rights Chamber in reference to the case of Selimović and others vs. Republika Srpska and, on the other hand, to satisfy OHR requests expressing support for enforcement of decisions passed by this official body.20 The main task of the Commission was to locate scaffolds and mass graves and determine the identity of all victims. The Commission shed substantial light upon events at Srebrenica by reconstructing the involvement of military and police units of RS and drafting up lists of potential perpetrators. It also discovered 32 unknown graves and established that a total of 7,779 persons went missing in the 20

Selimović and others v. Republika Srpska (CH01-8365 from 2003) http://www.hrc.ba/DATABASE/decisions/CH01-8365%20SREBRENICA%20Admissibility%20and%20Merits%20B.pdf As indicated in Paragraph 1 of the Decision, this case consists of the total of 49 charges raised. “These applications are a part of some 1800 similar applications currently pending before the Chamber - all related to the Srebrenica events.”

period between 10 and 19 July 1995. However, the Commission stressed that the number of missing persons was not final and that the investigation had to be continued. The Commission for Sarajevo. The Commission was established by a decision passed by the Council of Ministers in late 2006. The initiative had been launched by members of Serb parties at the Parliamentary Assembly of BiH, upon a request filed by the RS victims association back in 2003. The initial request referred to establishing an institution to examine facts about the suffering of Serbs in Sarajevo during the armed conflict. However, it was dismissed by the Parliament by a decision indicating that Serb suffering could not be separated from the suffering of all other citizens of Sarajevo, regardless of their ethnic background. In early 2004, the Parliamentary Assembly submitted a request to the Council of Ministers to form an investigative authority to establish facts about the sufferings of the citizens of Sarajevo during the armed conflict. However, the decision had not been passed until two years later, leaving plenty of room for politicisation. At one point, Serb members even left both Houses of the Parliamentary Assembly, thus blocking the work of the state parliament. The composition and unclear mandate of the Commission also contributed to politicisation. In terms of the composition, the public had been dissatisfied with the Commission

member selection process due to lack of consultation, and was also dissatisfied with the final membership of the Commission, believing several members to be biased. A major controversy was triggered by the discussion on the mandate. It was unclear whether the Commissionâ&#x20AC;&#x2122;s investigative authority would extend only to the suffering of the citizens of Sarajevo or would also include material damages incurred in Sarajevo. This disagreement was never resolved, and therefore the Commission has never commenced its actual work. As a result, the only significant product from this initiative has been the design of a scientific research methodology, subsequently approved by the Commission, which was intended to guide the Commissionâ&#x20AC;&#x2122;s fact finding efforts. The Truth and Reconciliation Commission of the Municipal Assembly of Bijeljina. The initiative for the establishment of a body to deal with investigating crimes committed in the Municipality of Bijeljina was based on the report submitted by the International Mediator for BiH in September 2004. However, the Commission was not established until mid-2008. In early 2009, the Commission submitted its report to members of the Municipal Assembly for consideration and adoption, but the report was not adopted. There are a number of controversies and questions surrounding the manner in which this body was established, particularly in regards to its mandate, its process

for selection of members and operations. Such concerns have been fuelled by the fact that the process had been conducted completely out of public view. Consequently, a number of civil society organisations from the region have been very critical of the work of the Commission, including primarily associations of Bosniac and Serb victims and human rights NGOs. However, the Commission is supported by municipal authorities, including the Bijeljina Mayor, and certain civil society organisations, such as the Truth and Reconciliation NGO from Tuzla, which has signed a cooperation protocol with the Commission. Experience in regards to the work of the Commission for Bijeljina (and Commission for Sarajevo) generally implies that it is necessary to apply a far more transparent approach when establishing such investigative bodies, including open consultations within the civil society and between the civil society and government institutions in order to reach, for example, an agreement on the Commissionâ&#x20AC;&#x2122;s membership and definition of mandate which would be broadly accepted, thus building confidence in the credibility of such an institution.

4. Solving the Fate of Missing Persons After the end of the armed conflict in BiH, around 30,000 persons were registered as missing. In 2001, the House of

Representatives of the Parliamentary Assembly of BiH adopted a Resolution expressing its discontent with the slow process of determining the fate of missing persons and requesting more active involvement by the BiH Presidency and the Council of Ministers in addressing this issue. Victims associations have, in the meantime, kept constant pressure on authorities to shed light upon the fate of their closest family members and to grant them the status of victim. To that end, the Ministry of Human Rights and Refugees of BiH set up a working group in 2003 tasked with drafting a Law on Missing Persons, which was adopted in 2004. Article 7 of this Law establishes the Missing Persons Institute (MPI). The MPI was founded in 2005 by the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina, signed by the Council of Ministers and International Commission on Missing Persons (ICMP).21 The MPI is mandated by the Agreement to investigate into individual and mass graves, exhume and identify bodily remains and establish an accurate register of missing and identified persons. Until the founding of the MPI, the mandate for elucidating the fate of the missing persons was in the hands of entity 21

The Missing Persons Institute was originally registered in 2000. Its founder was the International Commission on Missing Persons. However, until the adoption of the Law on Missing Persons and signing the Agreement on Assuming the Role of Co-founders it had remained only an initiative at the level of the ICMP project.

commissions for missing persons, specifically the Commission for Tracing Missing and Detained Persons of the Republika Srpska and the Federal Commission for Missing Persons as well as of the State Commission on Tracing Missing Persons. Their mandate was geographically limited within the borders of entities. These institutions took an ethnic approach in trying to shed light on the fate of the missing: The Commission for Tracing Missing and Detained Persons of the Republika Srpska was looking for Serbs, while the Federal Commission for Missing Persons and the State Commission on Tracing Missing Persons searched for missing Bosniaks and Croats. One of the original reasons for the adoption of the Law on Missing Persons and the establishment of the MPI was to, in a more organized way, approach the process of finding a solution for the fate of the missing so that missing persons are no longer searched for and identified on the basis of ethnicity. Entity commissions for missing persons were officially dissolved in 2006. However, the MPI itself did not become operational until 1 January 2008. Current Identification Results. The Commission for Tracing Missing and Detained Persons of the Republika Srpska was searching for about 5,180 persons after the war had ended. Until the official transfer of jurisdiction to the Missing Persons Institute in 2006, the Commission exhumed around 3,500 bodies, of which 2,900 were

identified. As regards the Federal Commission for Missing Persons and State Commission on Tracing Missing Persons, they were searching for around 27,000 missing persons. Until their dissolution in 2006, they exhumed around 20,000 posthumous remains of approximately 17,000 bodies. Around 12,000 missing persons have been identified out of that number. Since 1 January 2008 when the MPI became fully operational, around 1,000 missing persons were identified. These remains were exhumed by Entity Commissions and State Commission on Tracing Missing Persons. During the time of its full function, the Institute has exhumed 445 sets of complete remains and 1,400 partial remains. Currently, there are more than 4,000 unidentified individual human remains in mortuaries throughout BiH. Approximately 13,000 persons are still listed as missing in BiH.

5. Institute for Research of Crimes Against Humanity and International Law of the Sarajevo University The Institute was founded in 1992 and has been operating as a legal entity at the University of Sarajevo ever since. This is the only scientific institution in Bosnia and Herzegovina where the emphasis of study is on crimes against humanity

and international humanitarian law. The Institute is engaged in documenting these violations in an interdisciplinary manner, covering historical, legal, sociological, demographic, political and other aspects in order to comprehensively investigate crime and its consequences. This Institute collaborates with all relevant institutions in BiH and abroad, as well as with local and international NGOs in achieving its goals. It pays particular attention to collaboration with judicial institutions. Specifically, the ICTY’s Prosecutor’s Office has used documentation and findings of this Institute, in particularly those referring to the suffering of citizens of Sarajevo in the cases of Stanislav Galić and Slobodan Milošević.

III Reparations 1. Introduction BiH has not yet developed a strategy that would comprehensively and systematically regulate the issues of individual and collective material and non-material reparation through compensation22, restitution23, rehabilitation24, and various forms of satisfaction25 as well as a guarantee of non-repetition 22

Compensations represent material satisfaction of victims through granting of one-time, monthly or other period-based monetary compensation on the basis of laws and by-laws as well as through criminal and civil procedures on account of material or non-material damage inflicted at the time of a human rights violation.

Restitution represents restoration of victims to their original condition before the violations of human rights occurred: release from detention, return of civil rights and freedoms previously withheld, repossession of property, return to original places of residence, etc;

Rehabilitation represents providing psychological and other support (medical) due to war-inflicted mental trauma or physical injury;

Various forms of satisfaction represent symbolic methods to diminish the damage inflicted: addressing the fate of missing persons and various forms of symbolic reparations, such as apologies, erection of memorials, fact-finding about crimes, etc;

of past human rights violations26. All these manners of reparation can be found in the UN General Assemblyâ&#x20AC;&#x2122;s Resolution from 2006 entitled 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. The basic method of reparation is compensation through administrative provisions set out in laws on civilian victims of war and disabled war veterans, adopted at the entity level. These laws fail to provide systemic solutions with regards to compensations but rather deliver compensation narrowly through mere individual monthly payments for bodily injuries, i.e. payments to the families of the killed, deceased or missing person, or payments to the victims of sexual abuse or rape. The only national instrument regulating the payment of compensation is the Law on Missing Persons. Meanwhile, a number of court rulings - including those of the Human Rights Chamber and the Human Rights Commission, and decisions of other courts based claims from individuals or groups of victims - led to the payment of compensation for the infliction of non-material damage 26 Guarantee of non-repetition represents the establishment of procedures to guarantee non-repetition of human rights violations: demobilisation, dismantling paramilitary formations, weapons destruction, civil control of security services, security services reform, judicial reform, etc.

Another, equally significant form of reparation in BiH is restitution, typically illustrated through various property return processes made possible via the implementation of Annex VII of the Dayton Peace Agreement. Finally, the third form of reparation entails implementation of activities aimed at providing symbolic gratification to the victims, such as, for example, building memorial centres.

2. Restitution 2.1. Implementation of ANNEX VII of the Dayton Peace Agreement It is estimated that during the armed conflict in BiH around 2.5 million persons became refugees and that around one million of them have returned. Currently, the database of the Ministry of Human Rights and Refugees of BiH lists around 50,000 families who wish to return and around 150,000 housing units in need of reconstruction. History. Annex VII foresees return and reconstruction of property, including financial compensation for the damaged or destroyed property and return (physical and sustainable return), and introduces an obligation for all authorities to create all necessary preconditions for the implementation of this Annex. Until the establishment of the Ministry of Human

Rights and Refugees and transfer of the authority for the implementation of Annex VII within its jurisdiction, the Return and Reconstruction Task Force (RRTF) within the OHR had co-ordinated the process of return of refugees and displaced persons. The RRTF acted to facilitate the return process through different initiatives focused on the provision of housing (return and reconstruction) with the intention to provide a roof over every head and sustainable socio-economic conditions for returnees (sustainable return), such as non-discriminatory access to jobs, education, public utilities and healthcare as well as representation and access to governmental and judicial institutions. The process of property reconstruction and return of refugees was not running as planned, and required a strategy of co-ordinated activity tasking several key international organisations in the matter of return: OHR, UN High Commissioner for Refugees (UNHCR), Organisation for Security and Co-operation in Europe (OSCE), UN Mission in BiH (UNMIBH) and Commission for Real Property Claims of Displaced Persons and Refugees (CRPC). These internationally driven efforts resulted in the development of the Property Laws Implementation Plan (PLIP) created in order to depoliticise the reconstruction of property and the process of return, and to have the civil rights of individuals placed before all political interests. In order to support such an approach it was of paramount importance, as outlined in PLIP, to reform police and judicial systems as a means to providing secure conditions for return, by investigating and processing cases

related to obstruction of return and by enforcing eviction orders against illegal occupants of property. Immediately upon the adoption of PLIP, all property laws were also adopted to fully regulate this area and allow original and rightful owners to completely reclaim their property in almost all cases. These laws are still in effect. BiH Strategy for Implementation of Annex VII of the Dayton Peace Agreement. The BiH Strategy for Implementation of Annex VII of the Dayton Peace Agreement was developed in 2002 representing the first common framework document at the level of BiH State government defining goals and planned actions and reforms toward the final implementation of Annex VII. However, notwithstanding government efforts to address all major issues in regard to the full implementation of Annex VII through this Strategy, some citizens have not received full access to all property rights. As a result, the government revised the Strategy in late 2008. During the revision, particular attention was paid to the matter of compensation prescribed by Annex VII. Working group members had differing interpretations of the term compensation and sought OHR legal assistance in the matter. In his response, The High Representative limited the meaning of the term compensation to be read only in terms of property return indicating that the goal of Annex VII was to ensure the right of displaced persons and refugees freely to return to their homes of origin pointing out that this right may only

be exercised by persons deprived of their property during the war in BiH. Finally, it was pointed out that the term property, defined by Annex VII, refers to housing locations regardless of whether privately or socially-owned. Such an interpretation was supported by the fact that the substantial implementation of Annex VII had been planned for 2010 and, therefore, it would be unrealistic to expect that compensation within Annex VII might be implemented by that date. However, the High Representative emphasised in this manner the existence of other compensatory mechanisms within local legislation and internationally recognised human rights protective instruments, which have not been annulled by this Strategy. Return Process Perception by Returnees. It is widely held that the current result of the return process has been limited. Returnees are of the opinion that it has not been chosen adequate approach to implementation of Annex VII (property return and reconstruction), and that activities have neither been planned nor executed properly. They believe that the return and reconstruction process should have been approached through the construction of functional housing accommodation (room and bathroom), but also by using funds to invest primarily into developing infrastructure and returnee region economies, so as to provide returnees with jobs allowing for them to stay and reintegrate (sustainable return). The inadequacy of the current approach can be seen in the reality that many reconstructed houses have remained uninhabited.

All returnees encounter similar problems. While the lack of job prospects is the primary obstacle, returnees cite other reasons such as inadequate school curricula, and feelings of insecurity. For this reason, the largest group of returnees is elderly people, whereas young people mainly do not wish to return for the reasons stated and because they have completed education and found jobs and friends in new environments.

some of the rights prescribed by entity laws fall exclusively within the jurisdiction of cantons and largely depend upon financial resources of the cantons.

3. Compensations

The common practice of all these laws is to provide monthly monetary compensation to civilian war victims and disabled war veterans on the basis of suffering endured as a result of the conflict - whether it be bodily injury that limits or prevents people from being able to work, the loss of family members including fallen soldiers or killed or missing persons, as well as victims of torture, sexual abuse and rape. Both entities have applied the same principle in developing draft laws and regulating status and rights of these groups. Throughout BiH, civilian war victims are treated differently than disabled war veterans. For example, in both entities a veteran acquires the status of “disabled war veteran” when reaching a minimum of 20% disability27, whereas other citizens acquire the status of a “civilian victim of war” only after reaching a minimum of 60% bodily disability. This latter standard is in line with world standards for prescribing limited work ability. Once identified as either a

3.1. Reparations on the Basis of Laws The dominant form of reparation in BiH is compensation provided through entity laws on civilian war victims and disabled war veterans. In the Federation of BiH those laws include the Law on Principles of Social Protection, Protection of all Civilian Victims of War and Protection of Families with Children, Law on the Rights of War Veterans and their Family Members and Law on the Rights of Demobilised Soldiers and their Family Members. In Republika Srpska they include the Law on Protection of Civilian War Victims of Republika Srpska and Law on the Rights of Veterans, Disabled War Veterans and Families of Soldiers Fallen in the Defensive and Fatherland War of Republika Srpska. Lower level authorities – such as municipalities in RS and cantons and municipalities in the Federation of BiH – prescribe additional rights for these two population groups. As regards the Federation of BiH,

The only such law at the state level is the Law on Missing Persons- which regulates the right of civilian victims of war to compensation.

Or 40% disability in RS if the bodily injury was illness-related instead of war-inflicted.

civilian war victim or a disabled war veteran, each group receives different monthly compensations on the basis of their respective bodily disability. The compensatory rights of civilian war victims are linked to the rights prescribed by the laws regulating the rights of disabled war veterans. The basis for payment of monthly compensations to civilian war victims with 100% disability who are in need of medical assistance (1. category) is 30% less that of a disabled war veteran facing the exact same situation (1. category). The practical result is that a civilian war victim with the same category of disability as that of a disabled war veteran (in this case of 1. category) receives 70% of the amount paid to the war veteran. Payments to civilian war victims with lower levels of disability are subject to the same payment principle. Disabled war veterans also benefit from a wider body of rights in comparison to civilian war victims. This approach is based upon the recognition of service to ones “own” military and police units’ in the conflict whether it be the fatherland war (RS), defensive war (Federation of BiH-Bosniacs) and the fatherland war (Federation of BiH–Croats). Such an approach was inherited from the former Yugoslav legislation regulating the rights of the members of the antifascist movement during World War II where the rights of war veterans and disabled war veterans are characterised as benefits. In contrast, the rights of civilian war victims (the so-called non-war disabled persons) fall within the category of social welfare, and are treated by the entities as having the same rights as the broader disabled community.

This unequal treatment of civilian war victims and disabled war veterans prompted the UN Office of the High Commissioner for Human Rights (OHCHR) to develop recommendations for BiH in 2006. The OHCHR stressed that relevant authorities in BiH should introduce the following amendments to their legislation: 1. Pass an appropriate law at the state level and subsequently harmonise the entity laws in this area; 2. Ensure that victims of torture acquire the status of civilian war victims and involve victims of torture in all decision-making processes; 3. Equalise the amount of disability pensions in two entities; 4. Equalise rights and amounts of disability pensions of disabled war veterans, civilian war victims and all other persons with disability; 5. Legally assign the status of a civilian war victim to all victims of sexual violence and violence committed during the armed conflict of the 1992-1995 period, and provide funds for adequate social benefits for such victims including health insurance and accommodation as well as involve victims of sexual violence in all decision-making processes.

In accordance with these recommendations, the Federation of BiH defined victims of sexual abuse and rape as civilian war victims in its latest set of amendments to the Law on Basic Social Welfare, Protection of Civilian War Victims and Families with Children of September 2006. The law states that victims of sexual assault are not required to demonstrate a certain percentage of bodily injury because evidence of sexual violation itself is sufficient for acquiring the status of a civilian war victim. The 2006 amendments also recognize and provide for victims of torture and other forms of inhumane or humiliating treatment as well as for persons unlawfully punished and detained in camps. In order to exercise their rights on the basis of the civilian war victim status, such victims must have a minimum of 60% bodily disability. Regarding the Republika Srpska, the Law on Protection of Civilian War Victims has always granted the status of a civilian war victim to victims of torture and sexual abuse and rape. However, the Law treats these two groups the eligible groups, thus requiring victims of sexual abuse and rape to have a minimum of 60% bodily disability in order to be assigned the status of a civilian war victim, though this is not strictly enforces (i.e. case by case). Post-traumatic Stress Disorder (PTSD) has not been recognised by a single law as a basis for determining disability, though mental trauma experienced during the war has

inflicted lasting psychological injury upon some persons, which sometimes manifests itself in bodily injuries as well. However, entity laws do differ from each other in terms of the level of general openness to mental injuries. Specifically, while the RS law does not leave any room for PTSD, the FBiH law does make a distinction between civilian war victims and persons with assigned status of a civilian war victim thus creating a narrow basis for a legal recognition of PTSD. Civilian war victims, under the FBiH law, may include all persons who suffered injuries inflicted within legally defined circumstances and may have even a higher or lower level of mental disability. Meanwhile, the status of a civilian war victim may only be granted to persons with a minimum of 60% bodily disability (including families of killed and missing persons, victims of sexual abuse and rape for whom a bodily disability is not determined).

3.1.1. Financial Sustainability, Similarities and Differences Between Entity Laws Regulating the Status of Civilian War Victims and Controversies In 2002, the World Bank (WB) initiated negotiations with entity governments to adjust current budgetary allocations for social benefits as a prerequisite for BiH to have access to WB financial programmes. On that occasion, the WB insisted upon limiting the rights and benefits of disabled war

veterans in order to harmonise them with those of civilian war victims. During these negotiations, the WB gave the following recommendations to entity governments: the minimum percentage of bodily disability should be increased from 20 to 50 in terms of exercising the rights for disabled war veterans; entities should not prescribe rights which they cannot meet so as to avoid the growth of internal debts; and a maximum of 20% of the total budget should be allocated for social benefits, as a standard (including benefits for civilian war victims and disabled war veterans). The RS Government has implemented several of the World Bankâ&#x20AC;&#x2122;s recommendations and the efforts have been in general assessed as successful. However, the FBiH Government has failed to implement the World Bankâ&#x20AC;&#x2122;s recommendations. As a result, negotiations ended unsuccessfully in 2004 preventing both entities the access to financial programmes. In general, RS has been more restrictive than the FBiH in prescribing rights. Such restrictiveness primarily refers to the rights of civilian war victims. Through these restrictive measures, the RS Government has managed to bring down the social benefits to about 30% of the total budget. On the other side, the FBiH has not attempted to limit the existing rights of either disabled war veterans or civilian war victims. Moreover, considerable monthly amounts allocated to disabled war veterans have remained high, even as related benefits have increased. In this context, it is very important to note that monthly allocations, on the

basis of rights of disabled war veterans and civilian war victims, were incomparably higher in the FBiH than those in RS in the period immediately after the armed conflict. The tendency in the FBiH has been to equalize the rights of civilian war victims with those of disabled war veterans. This policy led to approximately 50% of budgetary funds of the FBiH being allocated for social benefits. However, it must be acknowledged that the number of right holders (disabled war veterans and civilian war victim) is much higher in the Federation of BiH, according to its laws, than in the RS. The main reasons for this cost disparity between entities are that FBiH law not only recognizes the rights of more victims, but as compared to RS law, FBiH also pays out considerably higher benefits. This was particularly so in the years immediately following the war. Meanwhile, the RS law has placed limitations in its own law such as a 5 year deadline for applying for status as a civilian war victim. The 5 year period runs from the date of entering into effect of the law, or the date of the injury infliction, or the date of the end of circumstances stated in the law which caused the victimâ&#x20AC;&#x2122;s bodily injury. In general, this period expired in June 2001. On the other hand, the Federation of BiH does not provide for a time limit for applying for status as a civilian war victim. However, this discrepancy in the number of beneficiaries was influenced by other factors as well. For example, one must consider the problem of exercising rights by beneficiaries

(civilian war victims) under the laws of the FBiH and RS from the perspective of the returnees. The RS requires all beneficiaries to be citizens of the RS in order to exercise their rights under RS law. In contrast, FBiH law prescribes that such rights may be exercised by all citizens of BiH. In reality, however, the FBiH law contains a residency requirement that results in almost the same limitations contained in the RS law. For example, a number of displaced persons residing in FBiH started exercising their rights under the FBiH Law on Principles of Social Protection, Protection of all Civilian Victims of War and Protection of Families with Children. After returning to the RS and changing the place of residence, they lost their beneficiary rights under the FBiH law because they no longer had a place of residence registered in FBiH. In this instance, the returnees faced two problems: a limited deadline for applying for civil victim of war status in the RS, and loss of rights in FBiH. Problems like this led to negotiations between entity governments during 2006. One of the key conclusions reached was that each relevant ministry should monitor its “own” beneficiaries. Specifically, it meant that those who started exercising their rights under the FBiH law may continue to do so upon returning to the RS as if they have stayed in the Federation of BiH and vice versa. In light of this accord, it was also necessary to amend the existing laws. This agreement was memorialized in Article 33(1) of the Law on Amendments to the FBiH Law on Principles of Social

Protection, Protection of all Civilian Victims of War and Protection of Families with Children: “Upon returning to previous places of residence in the Republika Srpska or the Brčko District of Bosnia and Herzegovina, civilian victims of war and members of their families with a temporary residence on the territory of the Federation of BiH shall have the same rights that they had in their temporary places of residence.” There are two interpretations of this Article: 1) FBiH should monitor all those who have applied for benefits under the FBiH law and who have returned to RS after the adoption of the amendments to the Law in September 2006; 2) The FBiH should monitor all those who have applied for benefits under the FBiH law, notwithstanding whether they returned to RS before or after the September 2006 amendments. Pursuant to the 2006 amendments of the Law on Basic Social Welfare, Protection of Civilian War Victims and Families with Children, the FBiH only provides payment to those who have returned to the RS or Brčko District after the adoption of the amendments. Regarding the RS, results of the agreement were incorporated into Article 2 (36a) of the Law on Amendments to the RS Law on Protection of Civilian Victims of War. Having in mind that many potential beneficiaries were unable due to limited application deadline to exercise their rights on the basis of the RS Law on Protection of Civilian Victims of War, the deadline was extended until 31 December 2007 pursuant to amendments to the Law adopted in July 2007. However, the aforementioned Article included the following

provision as well: “A person who acquired a right as a civilian war victim or member of the family of the civilian war victim under the regulation of the Federation of BiH or any of those neighbouring countries, shall not be entitled to apply for recognition of a right regulated by this Law.” Interpretations of this provision are varied. Under one interpretation, only persons who have applied for benefits regulated by RS law for the first time may exercise the right on condition that they have never exercised such rights arising from the status of a civilian war victim in FBiH or elsewhere, to a somewhat more lenient interpretation that a person may not exercise this right under RS law if they are simultaneously, or still, exercising the right in a second territory whether it be FBiH or another country. In spite of this provision, the RS did receive a number of applications during the deadline extension which were submitted by persons who had previously exercised their rights under the FBiH law prior to their returning to RS. In any case, the practical effects of this provision remain unknown since no decisions have been passed in reference to applications filed within the extended deadline covering the period from 1 July 2007 to 31 December 2007. It is also important to note that relevant Ministries of FBiH and RS have been interpreting the 2006 agreement differently. Namely, the interpretation of the Federal Ministry of Labor and Social Policy reads that this Ministry is responsible only for those returnees from FBiH who have returned to RS upon the adoption of the Law on

Amendments to the Law on Principles of Social Protection, Protection of all Civilian Victims of War and Protection of Families with Children in September 2006, while the RS is responsible to compensate persons returning to the RS prior to September 2006 and who have lost the right under the FBiH law due to change of place of residence. The Ministry of Labour, Veterans and Disability Protection of RS is of the opinion that the FBiH is responsible to pay compensation notwithstanding the person’s date of return to RS if that person has already started exercising the right on the basis of the FBiH Law on Principles of Social Protection, Protection of all Civilian Victims of War and Protection of Families with Children. In that regard, it should be noted that the RS Government has been applying their interpretation in regards to monthly payments to persons according to the RS law notwithstanding the year of their return to the Federation of BiH.28

3.2. Activities of Camp Inmates Associations Camp inmates associations, primarily the Association of Concentration-Camp Detainees BiH and Association of Camp 28

Interview with Radomir Graonić, Assistant Minister of Disabled Veterans Protection, Ministry of Labour and War Veterans Affairs of RS. Interview with Dobrica Jonjić, Assistant Minister of Disabled Persons and Civilian War Victims Protection, Federal Ministry of Labor and Social Policy

Inmates of RS, have not been satisfied with the manner in which the entity laws treat their status and they insist upon the regulation of their rights through a separate law. Currently, they are able to exercise their rights either as civilian detainees pursuant to the laws regulating the rights of civilian war victims, or as military detainees pursuant to laws regulating the rights of disabled war veterans. However, camp inmates believe that the bodily disability standards used in these laws do not appropriately recognize the character of their suffering and the nature of the human rights violations they endured, such as the mental trauma of confinement itself. Like victims of sexual abuse and rape, camp inmates believe the existence of such trauma should be the basis for granting disability. Besides insisting upon recognition of trauma as a cause of disability, some camp inmates associations, such as the Association of Concentration-Camp Detainees BiH, are of the opinion that a percentage of disability should be in proportion to the time spent in confinement.29 Attempts have been made to pass the Law on Civilian War Victims and Victims of Torture at the state level, and to consequently amend entity laws to bring them in line with such a state law. The aim of developing this Law is to define the rights of camp inmates and victims of sexual 29

Status of camp inmate would be granted upon provision of evidence that the person spent a minimum of three days in confinement, which would translate to a 20% disability.

abuse and rape and to develop procedures and criteria for assigning status as victims, and respective levels of disability. However, a draft law has not been developed yet.

3.3. Reparations on the Basis of Court Decisions A relatively small number of claims have been filed which request compensation for material and non-material damage inflicted during the armed conflict. The primary reason for this lay in the fact that victims are typically unaware of their right to sue or what legal body (i.e. entity or state) would be the appropriate party to sue. At the same time, socially vulnerable groups such as victims and returnees are discouraged from pursuing justice before courts because existing legislation regulating the area of legal aid is not sufficiently developed to handle all the needs of BiH citizens including adequate legal representation of exemption from payment of court fees, etc. Thus far, all such laws30 addressing the matter of legal aid - in the RS, the cantons of FBiH31, and BrÄ?ko District - have applied the principle of setting up separate government institutions 30

There is a draft Law on Free Legal Aid in Civil Matters at the state level, but it still needs to be adopted.

The stance of the Federation of BiH is that the issue of legal aid should be regulated by cantonal laws.

to provide legal aid with regulated and limited assistance from CSOs. CSOs have largely opposed this approach. These organisations believe that lawyers who will start providing legal aid do not possess any experience in this area and are guided in the course of their activities primarily by their commercial motivations. In such cases, such lawyers are not motivated to work for their clients (state/entity/ canton/district) because such authorities do not pay their fees on a regular basis. The CSOs also stress that citizens are more trustful of independent institutions which have not been controlled by the authorities, such as CSOs, which are recognised as victimsâ&#x20AC;&#x2122; advocates, possessing more experience gathered over the years of work in this area. That is why CSOs insist upon being recognised as partners by legislators as well as having their role legally regulated as separate institutions providing legal aid. It is also important to note that both entities have passed laws which prohibit the entities from paying compensation based on court decisions upholding material or non-material damage claims and enable debt record-keeping. According to these laws, entities do not commence payments until several decades after the court decision is final. Finally, it is widely held that in spite of the relatively successful judicial reappointments of 2002 through 2004, the BiH public has limited confidence in judicial institutions and believes that they still operate under political pressure.

Appeals against Human Rights Violations. BiH citizens have mainly lodged appeals against human rights violations with the Human Rights Chamber and Office of the Ombudsman of BiH as well as with the Constitutional Court itself, while a number of appeals have been lodged with regular courts. Indemnification procedures are instituted before neighbouring countries as well including Serbia, Croatia and Montenegro. In the end, upon exhausting all legal remedies in BiH, a number of citizens - discontent with the decisions of BiH institutions or weak enforcement mechanisms â&#x20AC;&#x201C; have initiated proceedings before the European Court of Human Rights. The Human Rights Chamber was established with the aim of dealing with appeals against violations of human rights guaranteed by the European Convention on Human Rights. This institution ceased to exist in late 2003 and all appeals were transferred to the Human Rights Commission for deliberation. However, the Commission was not mandated to receive new appeals. As a result, in early 2004, the Constitutional Court received a significant increase in the number of appeals filed. Since the closure of the Human Rights Commission at the end of 2006, the Constitutional Court has taken over all remaining appeals. Concerning the work of the Human Rights Chamber and Commission as well as of the Constitutional Court of BiH, appeals and decisions regarding the resolution

of the fate of missing persons have been of particular importance. Such decisions contained orders to entities or the state to pay indemnification32 and to conduct a swift and efficient investigation aimed at determining the fate of a missing person or persons. However, those decisions were only partially enforced. Court decisions ordering indemnifications were generally heeded, but both entities and the state have not responded to orders for swift and impartial investigations.33 With the adoption of the BiH CPC and CC in 2003, mechanisms were established that were supposed to ensure more efficient enforcement of BiH Constitutional Court decisions. For example, pursuant to Article 239 of the CC, the Constitutional Court is authorised, in case of the failure of enforcement of its decision, to pass a decision which will be forwarded to the Prosecutor’s Office of BiH for deliberation. In theory, this solution affords the possibility of criminal charges pursuant to 32

The Human Rights Chamber and Commission were mandated to award compensation, whereas the Constitutional Court may only ensure efficient function of existing institutions and compensation mechanisms, through its decisions.

An exception represents the establishment of the Commission for Investigation of the Events in and around Srebrenica between 10 and 19 July 1995.

the BiH CPC by providing grounds for the Prosecutor’s Office of BiH to initiate an investigation.34

3.3.1. Activities of Camp Inmates Associations of FBiH and RS on Pursuit of Reparations Through Court Cases The Association of Concentration-Camp Detainees BiH sent an open invitation to all its members to address local municipal branches of the Association in order to acquire detailed information on initiating proceedings for indemnification of non-material damage and torture inflicted on them in camps in RS and the Federation of BiH. This initiative resulted in over 16,000 lawsuits during 2007 and 2008 against entities (predominantly against RS). On the other hand, the Association of Camp Inmates of RS 34 Specifically, when decisions of this kind issue from the Constitutional Court, the Council of Ministers and entity governments must inform the Constitutional Court of BiH of actions undertaken within six months of the delivery of the decision. In reality, such reports are not delivered to the Constitutional Court by relevant institutions. On the other hand, the Constitutional Court itself does not pass decisions on enforcement failure in all cases in a timely manner. Finally, the Prosecutor’s Office of BiH, generally speaking, has not initiated investigations, thus leaving the decisions of the Constitutional Court still insufficiently observed.

filed 536 lawsuits against the Federation of BiH. According to the representatives of this Association, one lawsuit is filed against each camp to which Serbs were confined. If these representative lawsuits are ruled in favour of inmates, the Union intends to encourage other inmates to file lawsuits. The goal of filing these lawsuits by both Associations is primarily to inform the public of the existence of camps, achieve recognition of inmates as victims in order to finally regulate the status of this group of population and to point out to the responsibility of both entities for their confinement. Independently from the mentioned activities of both Associations a small number of inmates has separately filed similar suits.

3.3.2. Genocide Lawsuit against the Former Federal Republic of Yugoslavia (FRY) BiH filed a lawsuit in 1993 against FRY for violating the Convention on the Prevention and Punishment of the Crime of Genocide with the International Court of Justice in The Hague. The Court confirmed its jurisdiction in 1993 and 2004. The BiH strategy was to prove that the FRY had committed aggression and genocide in order to claim reparation afterwards as a victim state of aggression and genocide. The ruling was passed on 26 February 2007. The Court had established that

a crime of genocide took place in Srebrenica, but that the FRY (Republic of Serbia at the time of the ruling) was not directly responsible for it, however, did nothing to prevent the crime from happening. The Court also could not confirm with certainty that the genocide would have been prevented had the FRY reacted in accordance with the obligation to prevent the crime. Therefore, the Court is of the opinion that compensation is not the appropriate form of reparation for violating the obligation of preventing the genocide from happening. However, the Court emphasised that the Republic of Serbia had the obligation to collaborate with the ICTY and deliver all persons accused of committing the genocide (directly mentioning Ratko MladiÄ&#x2021; in that context).

4. Various Forms of Satisfaction 4.1.Memorials Memorials which have already been erected or are being erected at the moment in BiH are built in a non-selective manner and there is a lack of a co-ordinated approach to this matter at the state level. They are almost completely built along ethnic lines with a small number of examples of supranational monuments or monuments erected upon initiatives launched by two peoples. There is a tendency of building monuments without establishing detailed facts about what has really happened at a certain location or in a certain region. In addition, there is not a single monument

in BiH devoted to victims in a universal manner. Erection of monuments in BiH is a political matter and they largely carry a message about who was the victim and who the perpetrator; who was the aggressor and who the defender. However, a number of memorials in BiH has been given a form of a memorial only with engraved names, dates of birth and dates of death of the victims. Some of them have an insignia based on which it may be seen if the victim was a civilian or military troop. Such monuments do not carry any kind of judgement or affiliation or ethnic background insignia and they can be found mainly in the Federation of BiH. In Sarajevo itself there are monuments which surpass the ethnic character, such as “roses of Sarajevo”. It is a term used to describe craters in the concrete created as a result of bomb-shelling of Sarajevo. The citizens wanted to turn them into memorials in remembrance of all the civilians killed in Sarajevo by painting them in red. One of the rare examples of building a monument in cooperation with municipal authorities from both entities is the initiative of building a monument at Korićanske stijene as a remembrance of over 200 killed Bosniacs. However, this project has not been implemented yet, because families of the victims, large number of whom is still enlisted as missing, primarily insist upon finding and identifying the bodies of the killed.

4.1.1. Memorial Centre in Potočari The High Representative passed in 2000 the decision on the construction of the memorial and burial site of “Srebrenica-Potočari”. The purpose of this memorial, as underlined in the decision by the High Representative, was to create a dignified place for burying the persons who have died as a result of the events which took place in Srebrenica. The following year, the OHR passed the decision on setting up the “Srebrenica-Potočari Memorial and Cemetery” Foundation with the aim of its construction and maintenance and raising funds for that purpose. It is important to note that in its decision regarding the Selimović and others v. Republika Srpska case (Srebrenica case), which represents a basis for setting up the Commission for Srebrenica, the Human Rights Chamber additionally ordered Republika Srpska, as responsible for the crime, to pay four million BAM on the account of the Foundation “for the collective benefit of all the applicants and the families of the victims of the Srebrenica events.”

IV Institutional Reforms 1. Introduction Each country must protect the rights of its citizens. In case of a failure to do so, it must take all necessary steps in order to mitigate the effects of the violation and prevent its repetition in the future. To that end, the country must conduct a swift and impartial investigation to bring perpetrators to justice, ensure reparation programmes and initiate all necessary institutional reforms in order to rebuild public trust. One of the most important institutional activities in this regard is to carry out an assessment of the integrity and capacity (vetting) of those employed, or interested in being employed in public institutions. However, while vetting is a key to building public trust in government personnel, it is also necessary to carry out other reforms at the same time. These more structural changes include the termination or reformation of inherited institutions which the public often hold responsible for committing crimes. The challenge is to create new institutions that will gain public trust by performing operations in line with the highest human rights standards. On the other hand, in order to achieve all these goals, that is, to support reform and set up new institutions, it is vital

to adopt new regulations, primarily those that will regulate the area of criminal legislation and witness protection as well as other areas. All these activities are currently underway in BiH. However, concerning reforms at the state level, they have largely not been initiated by government authorities in BiH, but rather prescribed by the Dayton Agreement or subsequently produced as a result of international community efforts. Once in place, such reforms are implemented by local political elites in co-operation with OHR.

2. Establishment of Institutions35 Establishment of the Council of Ministers and its Ministries. The Council of Ministers of Bosnia and Herzegovina (CoM) was established directly by the Constitution of Bosnia and Herzegovina and assigned the role and function of the government of the State of Bosnia and Herzegovina only in those matters in which entities did not have exclusive authority. Those areas have been enumerated in the Constitution of BiH. On the basis of such powers, three ministries were formed: the Ministry of Foreign Affairs, Ministry of Foreign Trade and Economic 35 Only those institutions in the most direct connection with transitional justice are listed.

Relations and Ministry of Civil Affairs36, whose ministries, along with one chair person, were supposed to constitute the CoM of BiH. The Constitution of BiH stipulated that the chairperson of the CoM shall be appointed by the BiH Presidency with the approval of the Parliamentary Assembly of BiH. However, the very first appointment triggered tensions along inter-entity lines which resulted in dismissing the proposal of one chair person, i.e. representative of only one people. The ruling parties reached a compromise requiring the appointment of two co-chairs - one from the Federation of BiH and one from RS –but this too led to a standstill in the work of this authority which lasted until 2002. As a result, later in 2002, Parliament adopted the Law on the Council of Ministers providing for one chairperson and two co-chairs (deputies), with each position being permanent (i.e. not “rotating”). This new Law on the Council of Ministers also considerably increased the number of ministries to a total of one chair person and eight ministers, including ministers of foreign affairs, foreign trade and economic relations, finance and treasury, communications and transport, civil affairs, human rights and refugees, justice and minister of security. In 2003, the Law on Amendments to the Law on the Council of Ministers and Law on Ministries stipulated that the membership 36 “Civil Affairs” were actually a substitute for all those competences of the BiH Institutions that could not be placed within jurisdictions of other two Ministries.

of the CoM shall include the Minister of Defence as well, which brings the current total of ministries to nine.37 This growth in CoM ministries reflects the fact that during the past several years, many entity matters originally under exclusive authority of the entities have been transferred to the state level. Human Rights Chamber, Ombudsman, Human Rights Commission. Annex VI of the Dayton Agreement formed the Human Rights Commission comprised of both the Human Rights Chamber and the Ombudsman. The original mandate of the Ombudsman required it to address appeals from public lodged in regard to violations of human rights and fundamental freedoms, but this mandate was subsequently transferred over to the Human Rights Chamber. As part of the transfer, the Ombudsman was authorised to forward every significant case to the Human Rights Chamber so that it could pass a final and binding decision. The Human Rights Chamber was mandated to rule upon claims alleging violations of human rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) and discrimination 37 Ministry of Foreign Affairs, Ministry of Foreign Trade and Economic Relations, Ministry of Communications and Transport, Ministry of Finance and Treasury, Ministry of Human Rights and Refugees, Ministry of Justice, Ministry of Security, Ministry of Civil Affairs and Ministry of Defence.

against exercising the rights protected by other international instruments enlisted in Annex I of the Constitution of Bosnia and Herzegovina. This institution also had an international character for it included both national and international judges, advisors and practitioners. The Constitutional Court of Bosnia and Herzegovina, established by Annex IV of the Dayton Agreement, also has had appellate jurisdiction over claims of human rights violations. However, few individuals filed such cases with the Constitutional Court. Rather, claimants tended to submit such claims to the Human Rights Chamber for as long as the Chamber was functioning. The Human Rights Chamber ceased to exist in late 2003 and all appeals were transferred to the Human Rights Commission for deliberation. The Commission was not mandated to receive new appeals, so in early 2004 the Constitutional Court began receiving appeals with greater frequency. Finally, when the Commission on Human Rights closed at the end of 2006, the Constitutional Court took over all remaining appeals.38

of BiH adopted in 2004. This Law has provided for a single, state level, procedure for the appointment of judges and prosecutors in the country, which commenced with the active support of the Independent Judicial Commission (IJC). The mandate of the HJPC is to preserve an independent, impartial and professional judicial system of BiH. It is empowered to appoint all judges of all courts and prosecutorâ&#x20AC;&#x2122;s offices in BiH, except for the election of judges of the Constitutional Court of Bosnia and Herzegovina. It also assesses their work, conducts disciplinary procedures, establishes disciplinary responsibility, and pronounces disciplinary sanctions. The HJPC also supervises professional development of prosecutors and judges and participates in planning annual budgets for courts and prosecutorâ&#x20AC;&#x2122;s offices. The Council comprises 15 national and one international member.

High Judicial and Prosecutorial Council (HJPC). The single High Judicial and Prosecutorial Council (HJCP) of Bosnia and Herzegovina is an independent and standalone institution whose operations are based on the Law on HJPC

Missing Persons Institute (MPI). The MPI has been registered as a legal entity in 2000. It was founded by the International Commission on Missing Persons (ICMP). In 2004, the MPI was established by Article 7 upon adoption of the Law on Missing Persons. In 2005, the CoM of BiH became the co-founder of the Institute along with the ICMP. The Institute is mandated to investigate into individual and mass graves, exhume and identify bodily remains and establish an accurate register of missing and identified persons by establishing and operating the Central Records of Missing Persons (CEN).39

More information in Chapter I, Section III, Reparations

More information in Chapter I, Section II, Truth Telling

Civil Service Agency of BiH. During the process of consolidation of BiH governmental institutions, the need arose for a single criteria for the assessment, appointment, and training related to work of civil servants in order to instil integrity into these government bodies. The International Community insisted upon introducing the term “civil servant” to define government workers who would operate under the Constitution, laws and other existing legislation, rather than per instructions from political/national leaders. To this end, the Council of Ministers established the Civil Service Agency of BiH in June 2002, pursuant to the Law on Civil Service in the Institutions of Bosnia and Herzegovina. In addition, agencies with similar competences now exist at the level of entities and Brčko District. In the Federation of BiH it is the Civil Service Agency FBiH and in Republika Srpska it is the Civil Service Agency of RS. In the Brčko District, such competencies are entrusted to the Employment Board.

2.1. Establishment of the Court of BiH, the Prosecutor’s Office of BiH and the Registry The Court of BiH was established in 2000, under the provisions of the Law on the Court of BiH, “…in order to ensure the effective exercise of the competencies of the State of Bosnia and Herzegovina” and the respect of human rights and the rule of law in the territory of this State. Pursuant to the Law,

the Court of BiH is a judicial institution which has jurisdiction to process the most serious crimes defined under the Criminal Code of BiH which, among other things, relate to organised crime, economic crime, corruption and war crime. Following the adoption of the Law on Prosecutor’s Office of BiH by the Parliamentary Assembly of BiH, the Prosecutor’s Office of BiH was established in October of 2003, as an institution having special competence for prosecuting such crimes before the Court of BiH, as defined under the provisions of the Law on the Court of BiH. Section I for War Crimes operating within the Court of BiH and Special Department for War Crimes operating within the Prosecutor’s Office of BiH. Acting in line with the recommendations noted in the Resolution 1503 of the UN Security Council in 2003, the Presidency of BiH and the OHR have initiated establishment of War Crimes Chambers within the Court of BiH and the Prosecutor’s Office of BiH. The establishment of war crimes chambers was supported by the ICTY. The newly established bodies operate as so called internationalized, hybrid institutions since, in addition to local judicial and prosecutorial staff, a certain number of international judges, prosecutors and associates are serving within them for a limited time period.40 The purpose of such 40 By the end of 2009, The Court of BiH and the Prosecutor’s Office of BiH should become completely nationalised, with domestic judges, prosecutors and expert associates.

mixed composition of staff was to ensure transfer of knowledge regarding specific types of criminal cases and procedures considered relatively new to domestic experts, and to ensure more successful prosecution of war crimes cases. Ultimately, the establishment of the special war crimes chambers within the Court of BiH and the Prosecutor’s Office of BiH was based on the necessity for the state to establish its competence in addressing fundamental matters that undermine the very foundation of the state, such as the prosecution of the most serious crimes including war crimes. In a sense, the chambers may be seen as symbols of state sovereignty for BiH. The Registry. The Registry was established on 1 December 2004, on the basis of “the Agreement between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on Establishment of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organized Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina”, as a special project under international leadership. The purpose of establishment of this body was to provide necessary administrative, legal and technical support to the Court of BiH and the Prosecutor’s Office of BiH to ensure that trials could be run efficiently and professionally.

In line with this Agreement, the newly established Registry was envisaged to function for five years, at which point it was to be transformed and the local staff of the Office integrated within domestic institutions, namely the Court of BiH, the Prosecutor’s Office of BiH and the Ministry of Justice of BiH, as set forth in a subsequent Agreement of 26 September of 2006, signed between OHR and the Presidency of BiH. The process of transition is underway and it is being implemented very successfully. Since March of 2006, the positions of the Registrar and the Deputy Registrar have been held by BiH nationals.

3. Institutional Reform Police Reform. UNMIBH’s International Police Task Force (IPTF), an agency established under the provisions of Annex XI of the Dayton Agreement, initiated police reform by registering, authorizing and eventually certifying police officers. The IPTF also provided technical police training as well as human rights training to all police officers. During the course of the process in 2002, the State Border Service was established, and the institution of Police Director was introduced in BiH entities. Police directors were professionals responsible for all operational and professional aspects of police work, in contrast with the policy function of the Minister of Interior, whose appointment was political. Organisationally speaking, the Federation Ministry of Interior operates at the

level of the Federation of BiH, while all 10 cantons also have their own ministries of interior covering their respective territory. In Republika Srpska, the structure of the police is centralised, with only one entity ministry of interior. Over the years, other institutions have been established at state level, such as the State Investigation and Protection Agency (SIPA), Intelligence and Security Agency of BiH (OSA), among others. In 2007, police reform continued as one of the conditions for signing of the Stabilisation and Accession Agreement with the European Union. In September of 2007, a decision was made that all legislative and budgetary competencies would be transferred to the state level, while the operational command would retain its local character. In addition, it was decided that the Directorate for Police Coordination headed by a Police Director would be established to coordinate operations within the Ministry of Security of BiH. In addition, the BiH Border Police, the Centre for Forensic and Technical Expertise, and the Department for Standards in Education are other police structures formed at the state level. Defence Reform. The culmination of many years of gradual defence reform occurred in 2005 with the adoption of the Law on Defense of BiH which establishes one unified military force with a single defence policy under the leadership of the BiH Ministry of Defence. The Law requires the BiH Armed Forces to consist of members of all constituent peoples as well as representatives of other ethnicities. Following adoption of

that law, in 2006, entity ministries of defence and entity armies ceased to exist and the process of integration of existing units into a single Armed Forces of BiH began. Defence reform is believed to be one of the most successful reform efforts in BiH.

4. Adoption of Laws The passage of new legislation has driven institutional reforms in a variety of subject matters related to postconflict recognition of human rights. With regard to efficient prosecution of war crimes, the Criminal Procedure Code of BiH and the Criminal Code of BiH have been instrumental, as have the laws regulating the area of witness protection such as the Law on Protection of Witnesses under Threat and Vulnerable Witnesses and the Law on Witness Protection Programme, all of which are expanded upon in the Criminal Justice chapter of this publication. Also noteworthy are the Law on Missing Persons and the Election Law among many others. The Law on Missing Persons. The Law on Missing Persons was adopted in 2004, and intended to shed light on the fate of the missing and to put an end to each entityâ&#x20AC;&#x2122;s practice of searching only for missing persons of a particular ethnicity. This is the first such law in the world. It also introduced the Institute for the Missing Persons in BiH, which replaced entity committees on missing persons, established The Central Records of Missing Persons in BiH and Fund for

Support to the Families of Missing Persons of BiH.41 Election Law. Election Law of BiH was adopted in 2001. It deals in detail with “the principles which apply to elections at all levels in BiH”, as stipulated by the provisions of Article 1.1 of the Law. In addition, the provisions of articles 1.6, 1.7, 2.9 and 2.13 address the issue of vetting, or screening eligible candidates for positions within the state administration, once the final vote count confirms their respective eligibility.42 Finally, the Election Law deals with the issue of temporary and permanent residence, which is directly related to the issue of return of displaced persons and thus generally, to political relations within BiH. 41

For more information, see Chapter I, Section II, under the title: Truth Telling. 42 According to the provisions of Article 1.6 of the Election Law of BiH, no person who is serving a sentence imposed by the International Tribunal for the former Yugoslavia, and no person who is under indictment by the Tribunal and who has failed to comply with an order to appear before the Tribunal, may register to vote or stand as a candidate or hold any appointive, elective or other public office in the territory of Bosnia and Herzegovina. This rule also applies to political parties: As long as any political party or coalition maintains such a person on its candidates’ list, that party or coalition shall be deemed ineligible to participate in the elections. Article 1.7 defines a similar measure, but it applies to the Court of BiH, cantonal courts in the FBiH and district courts in the RS and the Court of Brčko District of BiH. The Central Election Commission of BiH is the body responsible for vetting of candidates.

5. Verification of Integrity and Capacity of Civil Servants: Vetting43 At the moment, there are several laws and institutions in BiH regulating and implementing vetting activities. All these institutions base their authority upon a narrow standard, based on international humanitarian law, which has been set out in Item IX.1 of the Constitution of BiH within Annex VI of the Dayton Agreement: no person who has been convicted of war crimes or who is under indictment for war crimes and who has failed to comply with an order to appear before the Tribunal, may run for public office. Specific laws 43 The term vetting is often confused with the term lustration. However, there are important differences between the methodologies involved in the two processes. The process of vetting is an investigate process intended to verify the integrity and capacity of a certain person in order to determine whether he/she is qualified to perform a certain function within the public administration. On the other hand, during lustration, there is no investigative process and the verification of one’s integrity or capacity. Rather, the matter to be verified is simply whether the individual is affiliated with a certain political group or institution believed to be involved in violation of human rights. In the context of post-conflict BiH, all such verification activity has constituted vetting. Nevertheless, BiH vetting processes have popularly been referred to as lustration, in part due to a lack of understanding of the different terms, and in part due to the lack of an adequate translation for the term vetting into local languages, save for the local word lustration.

applying this standard are the Election Law, the Law on the Civil Service in Institutions of Bosnia and Herzegovina, the Law on the State Agency for Investigation and Protection and the Law on the High Judicial and Prosecutorial Council. The institutions mandated under these laws to address the process of vetting are, respectively, the Central Election Commission, the Civil Service Agency, SIPA and the HJPC. In addition, OHR also has competency to vet persons found to be in violation of provisions of the Dayton Agreement. However, the High Representative has only used this authority in exceptional cases. The process of vetting was conducted in the police and judicial sectors in an organised manner. Chronologically speaking, vetting first occurred within police forces and lasted from 1999 to 2002, while in the judicial sector the process commenced in 2002 and ended in 2004. The processes implemented in these two structures were marked by significant differences in terms of the methodology employed: the vetting of the police was focused on review of responsibility of police officers during the time of systematic violation of human rights, with emphasis on finding whether a certain person was competent to serve as a police officer. The burden of proof was on the committee which reviewed the competence of the individuals. On the other hand, the process of vetting in the judicial sector was focused on reemployment and reappointment placing the burden on applicants to compete for the posts. In fact, all judicial positions

(judge and prosecutor) were advertised to the public, thus allowing all eligible candidates to apply on equal terms with the judges and prosecutors currently holding the posts. Within this process, in addition to background verifications of candidates, the emphasis was put on verification of aptitude to perform the judicial or prosecutorial function. The burden of proof in this case was on applicants. The process of vetting in the police was conducted by UNMIBH/IPTF, while the process of reappointment within the judiciary sector was led by an internationally-led High Judicial and Prosecutorial Council, with substantial support from the Independent Judiciary Commission acting as HJPCâ&#x20AC;&#x2122;s secretariat. Vetting in the police. The process of certification was implemented in three phases, specifically, the phase of registration, the phase of issuance of temporary work permit and the phase of certification. At the beginning of the process of certification, about 24,000 police officers were registered. The process of registration itself, included provision of information on qualifications to do the job, duties performed by a particular police officer registering as well as provision of information on the role played during the armed conflict. Temporary authorization was issued to those who met minimum criteria for work, such as the appropriate educational background, training in specific police duties, age, citizenship etc. The third step in the

process was focused on the activity of certification, in other words, the process of issuance of permanent authorization to work in the police. Police officers who received temporary authorization underwent the process of verification. During the course of verification, for instance, the Hague Tribunal was consulted. IPTF would send lists with names of police officers to the ICTY to check if those names appeared in documentation of the court as perpetrators of war crimes. Those who successfully completed the process of verification received certificates to work. The process of certification of police officers was implemented in an atmosphere of constant pressure and opposition to the process by political elites. Other problems included the lack of harmony between entity regulations and UNMIBH/IPTFâ&#x20AC;&#x2122;s established criteria for the process of certification. Due to the urgency of IPTFâ&#x20AC;&#x2122;s procedure to professionalize the police and its parallel responsibility to immediately strip police officers who violated the law of their right to perform police work, IPTF was unable to conduct verification in any great depth or detail. This was particularly the case regarding alleged human rights violations where IPTF lacked time and resources to obtain detailed evidence needed to ascertain that a particular person violated the set criteria for certification. In the time that elapsed since certification, certain police officers who received certification have been indicted and convicted for war crimes. In addition, the process

of decertification was also heavily criticised by domestic and international professionals involved in protection of human rights, since decertified police officers were not allowed to appeal against the decision to decertify them, in addition to other problems noted. Vetting in the judiciary sector. This process was initiated by the Independent Judiciary Commission established in 2001. It had three main responsibilities, specifically: a) to restructure the network of courts and prosecutorsâ&#x20AC;&#x2122; offices; b) to lay the foundation for independent appointment of all judges and prosecutors in the country in the future and c) to implement the procedure of reappointment of all judges and prosecutors, with verification of their professional and ethical competence. The mandate of the commission ended with establishment of a single High Judicial and Prosecutorial Council, and the commission officially stopped its operation on 31 December of 2003. Of the three responsibilities listed above, the process of reappointment of judges and prosecutors was the most ambitious and the most delicate one. Within its competence, the Commission developed a strategy for reappointment of judges and prosecutors, using criteria which required applicants to prove their competence to perform judicial functions. In parallel with the process of reappointment, this Commission started implementing the process of restructuring the networks of courts and

prosecutorsâ&#x20AC;&#x2122; offices, which had direct influence on the process of vetting. The restructuring process was based on the three main criteria, specifically: the number of cases, the number of citizens living on the territory covered by the court and the proximity of other courts of the same level and competence. Following completion of the process, a decision was made according to which it was found that 953 positions for judges and prosecutors in BiH was optimum. As pointed out above, the application process was â&#x20AC;&#x153;openâ&#x20AC;? to all eligible candidates, and not just to those who held current judge or prosecutor posts. All applicants were

required to present their assets, as well as their current property disclosure documents in order to demonstrate that they were not in violation of the property laws (i.e. illegally occupying property). They were also required to present information on their participation in the war (whether they were serving in the army, the police, paramilitary units, etc.). It needs to be noted that the public is generally displeased with the process of reappointment, since they perceived, among other things, that political or ethnic-based judicial actions (i.e. indictments, acquittal, sentences) were not taken as a criterion for disqualification of applicants for the positions of judges and prosecutors.

CHAPTER II the role of Civil society in the transitional Justice Process 57

1. Introduction Civil society organisations (CSO) in BiH are generally recognised as organisations which oppose denial of crimes by presenting facts obtained through implementation of their programme activities, primarily research activities. There is general public agreement in BiH that without CSOs, the process of documenting violations of human rights and war crimes would not even exist. Even during the heat of the armed conflict, and also after it, civil society organisations succeeded in crossing entity barriers and getting the conflicted ethnic communities to interact with one another. They have giving enormous contribution to war crime trials by providing access to relevant documentation and encouraging witnesses, especially victims, to testify. CSOs are generally very active in providing psycho-social support to all traumatised persons, which include potential witnesses. In addition, they implement a range of activities directed at encouraging displaced persons to return, with a special emphasis on facilitating sustainable return. Some of those activities have included provision of psychological support to displaced persons and returnees as well as to refugees placed into collective centres. The aim of such activities is to integrate returnee and domicile communities, initiate self-sustainable business ventures, etc. A number of CSOs place strong emphasis on the reform of education as a crucial issue and a central element of comprehensive reform in all areas of the society. To that end, they have

initiated different programmes of education insisting on topics such as non-violence, interethnic and interreligious communication or breaking stereotypes. They have also pushed strongly for these topics to be included into the official curricula. However, CSOs do not implement their activities in the area of transitional justice strategically, or as a part of their programmatic orientation. Most of them implement short term projects focusing only on certain social groups selected on the basis of their status, their gender or their ethnicity. Finally, it is important to recognise the difficult climate in which CSO are implementing projects in the area of transitional justice. The climate is hindered by a lack of trust among political elites involved in political processes in BiH. There is an insufficient level of cooperation among CSOs, which is sometime due to political affiliation of some civil society organisations. Also CSO programmes are often not sustainable due to limited funding, which implies a lack of interest among donors in projects of this type. All of these factors make it difficult to create the climate in BiH that would initiate debate about crimes of the past and make victims feel comfortable speaking about their anguish. Almost all CSOs involved in transitional justice (TJ) issues are located in large urban centres. As between the entities, a large majority of these organisations is located in the Federation of BiH. When it comes to the geographic distribution of their activities, when one excludes the

activities of victims’ associations, the greatest amount of TJ activity occurs in the areas of central Podrinje and northeast of BiH, and the area around Mostar and Sarajevo, while the municipalities of Višegrad and Goražde are covered to a limited degree. With the exception of some organisations in Zenica, Donji Vakuf/Uskoplje and Maglaj, Bosanska Krajina, Cazinska Krajina, Canton 10, the CSOs of central BiH, western and eastern Herzegovina, and the upper basin of the Drina River are mainly not involved in transitional justice issues. In addition, the TJ activities of CSOs are primarily focused on the regions within the vicinity of their respective offices. The Research and Documentation Centre (RDC) is only one CSO in BiH that systematically has involved itself in issues of Transitional Justice. RDC is located in Sarajevo and covers the entire territory of BiH. The Role of the Media. The general impression of the BiH public toward the media is that it is under the control of political/ethnic elites and that their reporting is not professional, but rather politically/ethnically biased. In addition, the majority of the media in BiH are not interested in transitional justice issues. Even when they do get involved in these issues, their approach is sensationalistic and they insist on showing negative examples of interaction between different communities. Meanwhile, positive examples of inter-ethnic cooperation - whether they are examples of cooperation and mutual

support between ethnic groups during the war, or postconflict examples of such harmony between associations of victims from different communities – get insufficient media attention. It is generally believed that journalists are not educated enough about transitional justice mechanisms and on international humanitarian law to be able to professionally engage in investigative journalism in this field. Finally, it should be stressed that the media do not have sufficiently close cooperation with the specialised services of courts and prosecutors offices responsible for public relations, and as a result rarely obtain official reports. The media’s discord with the judiciary as well as non-judicial processes renders it ignorant of international humanitarian law, of transitional justice mechanisms, and of detailed information about past or current criminal cases, all of which perpetuates the public displeasure with their reporting. The exception to this general view has been the reporting of BIRN agency, which among other things, specialises in monitoring and reporting about war crimes trials. For all these reasons, some CSOs have initiated a series of training events to bring more professionalism into reporting of journalists. These training events aim at training journalists in investigative journalism, human rights and ethical reporting practices. Other Elements of Civil Society. When it comes to other elements of civil society, such as academic or religious communities, with isolated exceptions, they

have generally demonstrated a lack of interest transitional justice issues. With regard to religious communities, their collective inactivity is particularly disconcerting given their great influence and potential for supporting TJ mechanisms. It is precisely their community role which makes them potentially compatible partners within truth telling mechanisms, rehabilitation of victims, veterans and disabled veterans as well as in the process of reconciliation. However, generally speaking, the public has a very negative attitude toward the activities of religious communities, since they are perceived as overly conservative and their role in the process of transitional justice is believed to be controversial, because there have been examples where they used their authority to deny responsibility of members of their respective communities.

2. Support of Civil Society Organisations to War Crimes Trials During the course of their work, CSOs have acquired extensive documentation on war crimes, as well as on possible perpetrators, crime scenes, witnesses, victims, etc. However, such documentation is collected through unofficial, less formal methods. Thus, judicial bodies in BiH are reluctant to make use of such documentation, as no legislative framework regulates the status of that material wealth of evidence. Nevertheless, ICTY has been much

more open to information provided by civil society. The Prosecutor’s Office in The Hague has either 1) based many of its indictments on CSO documentation or 2) has used such documentation to reinforce its indictments or 3) has submitted such documentation into evidence before the Court. When it comes to local prosecutors’ offices, it needs to be noted that the Prosecutor’s Office of BiH as well as the War Crimes Chamber operating under Cantonal Prosecutor’s Office in Tuzla Canton have expressed interest in analysing this documentation. These organisations have gained the trust of victims and witnesses and have encouraged them to cooperate with prosecutors and testify. In fact, some have developed programmes for the provision of legal and psychological support to victims, some of whom have gone on to testify in court, thus providing a crucial element of war crimes prosecution. In addition, some CSOs representatives have testified as expert witnesses, either in local courts or in the Hague Tribunal. Finally, a number of CSOs monitor war crimes case trials at the state and entity level. The aim of these activities is to analyse trials and give recommendations for improvements to the overall process. This activity also enables CSOs to inform the public of trials in order to improve citizen access to the daily operations of courts and prosecutors’ offices.

3. Activities of Civil Society in the Area of War Crimes Documenting and Truth Telling

specific method of truth telling is memorialising and commemorating anniversaries of crimes. Associations of victims are most active in this area.

Some CSOs have acquired extensive documentation as the result of research undertaken in the area of violations of human rights and war crimes. These are primarily associations of victims, but also a limited number of CSOs. This documentation contains information on crimes, victims, potential witnesses, possible perpetrators, chain of command, locations of alleged mass graves, etc. The dominant methods used to obtain such information have been the holding of interviews and oral history. However, the majority of CSOs target specific groups in terms of their status, their gender and their ethnicity.

Regional initiatives for the establishment of mechanisms for war crimes documenting and truthtelling. There is a group of CSOs in the region of the former Yugoslavia that believe that transitional justice and truth telling processes should also be an interstate, regional pursuit due to the character of the conflict and the fact that many victims are located on one side of the border, while perpetrators are located on the other, that persons displaced from one country have found refuge in another and that the truth of their demise is not heard in the countries they fled, which, among other things, causes all parties/states in the conflict to develop their own insular, and thus imperfect, interpretation of the truth. For that reason, Research and Documentation Centre (Sarajevo)44, Humanitarian Law Center (Belgrade) and Documenta (Zagreb) have initiated the process of establishment of a coalition under the name: REKOM (regional commission). So far, this initiative has been supported by about 200 organisations and individuals in the region.

Other CSOs approach the process of finding facts on the past in a comprehensive manner by including all groups within society in the process of documenting war crimes. They use their documentation to tell the truth about crimes. In addition, implementing their activities of record keeping, they keep the truth alive. CSOâ&#x20AC;&#x2122;s have pursued truth-telling about the past using a variety of methods such as organising round table discussions to mark anniversaries of certain events, promoting the truth declared in court decisions or by enabling victims to address the public openly. One

This organisation has left the initiative, primarily due to disagreement about the concept of development of the idea and also due to possible mandate of REKOM.

The coalition under the name “Igman Initiative” which consists of over 140 organisations and individuals form the so-called “Dayton Triangle” (BiH, Croatia and Serbia) also supports a regional approach to transitional justice and the establishment of truth and truth telling. This coalition believes that searching for the truth is a matter of process and that public consultations are of great importance to the process. These consultations should be organised in the form of debates attended by representatives of all communities and which would incite public debate not only on the subject of crimes, but also on the challenges that directly influence the process of establishing facts about crimes committed, such as intolerance, interethnic and interreligious dialogue and so on.

4. Activities of Civil Society in the Area of Reparations In terms of reparations, most activities implemented by CSOs focus on rehabilitation and restitution. Speaking of rehabilitation, they primarily focus on female victims of war and veterans. Organisations started establishing day centres, and so-called veterans’ clubs and beneficiary associations where they employ different therapeutic methods and training in the area of mental health, war-time trauma, help and self-help programmes, different forms of therapy, etc.

A limited number of such organisations provide free legal aid primarily to civilian war victims. Free legal aid mostly includes the provision of assistance in the writing of submissions, appeals, claims etc., for the purpose of getting of particular types of documentation from relevant institutions. However, very few CSOs in BiH actually represent such clients in court. This especially applies to victim representation in court proceedings for compensation of material and non-material damage caused during the armed conflict in BiH. Nevertheless, such proceedings are ongoing in Serbia, Croatia and Montenegro, because the rights of citizens of BiH were violated on the territory of those states, as well. With regard to gender issues in the area of transitional justice, it is important to note that CSOs have raised public awareness regarding the high number of women who suffered sexual abuse and rape during the conflict. In addition, these organisations have also directed attention of the public to the problem of post-traumatic stress disorder and they are building their capacities in order to provide treatment for persons affected by this disorder.

5. Activities of Civil Society in the Area of Institutional Reforms This transitional justice mechanism is not sufficiently

covered by CSO activities. They have not invested enough effort into putting pressure on institutions to ensure implementation of necessary reforms, adoption of new laws, or establishment of new institutions. As noted earlier, the documentation amassed by CSOs through victim interviews or by employing the method of oral history contains names of possible perpetrators or those who supported actions committed in violation of human rights. However, these organisations are almost completely failing to use their own documentation in order to initiate the process of vetting of candidates considered for public offices. In addition, government institutions are also not sufficiently interested in using the documentation to open investigation of their own. The most widespread activities implemented by CSOs within this mechanism relate to education of staff of public institutions, such as judges, prosecutors, police officers, social workers, journalists etc. Finally, some organisations are actively lobbying for adoption of important legislation or initiating activities to put together drafts of certain laws.

However, almost all CSO activities are currently not implemented in systematic manner and they depend on programmatic orientation of each particular CSO.

6. Activities of Civil Society in the Area of Reconciliation A number of civil society organisations in BiH are trying to implement activities focused on initiating a process for reconciliation. These activities mainly include projects of education on non-violent communication, stereotypes, human rights and peace activism, as well as projects which encourage interethnic and interreligious dialogue. Beneficiaries of these projects include all categories within the population. However, CSOs primarily target young persons, since they believe they do not carry the weight of the past and that they can create an atmosphere of reconciliation and reshape the future. They also target veterans. Some religious communities are particularly active in the area of building trust. These communities implement their activities to promote the fundamental postulates of all religions, such as tolerance, understanding and mutual trust among people.

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