transitional justice and democratisation

INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS

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INTERNATIONAL SUMMER SCHOOL SARAJEVO

INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS Year 2, Volume 2

ISSN 2232-7541

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INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS Year 2, Volume 2 Authors:

Print run: 400

Adela Kabrtova Aleksandra Djordjevic Alice Margaria Ardian Adņanela Aydin Atilgan Claire Fernandez Claire Schaepelynck Csuka Márta Dennis Michels Diana-Cosmina Trifu Francesca Capone Leila Mignonne Stehlik-Barry Marjolein Schaap Miloń Bogičević Osiris Hoepel Tomasz Lachowski

Sarajevo, December 2011 Konrad-Adenauer-Stiftung e.V. Tiergartenstraße 35 D-10785 Berlin Germany Phone: +49 30 269 96 453 Fax: +49 30 269 96 555 Website: www.kas.de Rule of Law Program South East Europe Konrad-Adenauer-Stiftung e.V. 50 Plantelor Street Sector 2 RO-023975 Bucharest Romania Tel.: +40 21 323 31 26 Fax: +40 21 326 04 07 e-mail: [email protected] Website: www.kas.de/rspsoe

For the Publisher: Almin Ńkrijelj

and

Editorial board: Lana Ačkar Adnan Kadribańić

Association "PRAVNIK" Porodice Ribar 49 Sarajevo , 71000 Bosnia and Herzegovina e-mail: [email protected] Website: www.pravnik-online.info

Redactor: Marijana Toma Proofreading: Beth Gianulis

CIP Cataloguing in Publication Data available from National and University Library of Bosnia and Herzegovina ISSN 2232-7541 The present publication is distributed free of charge. The responsibility of the content of this publication lies exclusively with the authors.

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CONTENTS PREFACE ................................................................................................................................7 A WORD FROM THE REDACTOR ............................................................................................ 11 THE CONCEPT OF RECONCILIATION IN THE TRANSITIONAL JUSTICE PROCESS MEANING AND CONSEQUENCES.................................................................................................................... 15 By Dennis Michels TRANSITIONAL JUSTICE AS A CONSTITUTIONAL INSTRUMENT IN INTERNATIONAL LAW ....... 27 By Aydin Atilgan CONSOCIATIONAL DEMOCRACY IN POST-CONFLICT SOCIETIES ............................................ 41 By Miloš Bogičević THE STRUCTURAL LIMITATIONS OF THE EU TO ENGAGE IN TRANSITIONAL JUSTICE............ 51 By Osiris Hoepel TRANSITIONAL JUSTICE AND THE COUNCIL OF EUROPE – A SPECIAL EMPHASIS ON THE SEJDIC AND FINCI CASE ....................................................................................................... 61 By Adela Kabrtova TRANSITIONAL JUSTICE AND DEMOCRATISATION: THE CENTRAL AND EASTERN EUROPEAN EXPERIENCE AFTER 1989 – WITH SPECIAL REFERENCE TO POLAND .................................... 73 By Tomasz Lachowski WEARING TOTALITARIAN SYMBOLS: FREEDOM OR RESTRICTION OF EXPRESSION / CASE STUDY BASED ON ATTILA VAJNAI‟S CASE ............................................................................. 85 By Csuka Márta JOINT CRIMINAL ENTERPRISE AS THE TRANSITIONAL JUSTICE MECHANISM ....................... 93 By Aleksandra Djordjevic REFUGEES WITHIN TRANSITIONAL JUSTICE: THE FORGOTTEN ACTORS? ........................... 101 By Claire Schaepelynck EVALUATING A DEMAND FOR INCLUSIONARY GOVERNANCE IN POST-CONFLICT SITUATIONS ........................................................................................................................................... 109 By Marjolein Schaap PARTICIPATION MECHANISMS AT THE LOCAL LEVEL IN KOSOVO: IMPACT ON ROMA, ASHKALI AND EGYPTIANS .................................................................................................................. 123 By Claire Fernandez DISCUSSING THE POTENTIAL ROLE OF TRUTH COMMISSIONS IN ASSESSING REPARATIONS FOR WAR-AFFECTED CHILDREN.......................................................................................... 133 By Francesca Capone TRUTH, RECONCILIATION AND INDIGENOUS RIGHTS IN PERU: THE CASE OF THE TRUTH AND RECONCILIATION COMMISSION........................................................................................... 147 By Diana-Cosmina Trifu THE RIGHT TO “GENETIC TRUTH” OF CHILDREN BORN OF WAR A PARTICULAR FOCUS ON BOSNIA AND HERZEGOVINA ................................................................................................ 159 By Alice Margaria PROVISION OF A CHILD‟S RIGHT TO HEALTHCARE IN THE TRANSITIONAL JUSTICE CONTEXT OF BOSNIA AND HERZEGOVINA ........................................................................................... 173 By Leila Mignonne Stehlik-Barry PETTY CORRUPTION AS A DISCRIMINATING EXPERIENCE – THE CASE OF BOSNIA AND HERZEGOVINA .................................................................................................................... 183 By Ardian Adžanela

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PREFACE One of the main challenges of societies in transition is the establishment of a new social and political order based on the respect for human rights and rule of law principles. In post-conflict or post-authoritarian societies this also involves dealing with the memory of the recent past and restoring justice to those affected by it. As these processes are lengthy and complex, involving the young and educating new elites to take over these processes is a key concern. The International Sarajevo Summer School deals precisely with some of these challenges, with a clear focus on bringing human rights to fore of transitional justice policies and that is precisely why the Rule of Law Program of the KonradAdenauer Stiftung is supporting the implementation of such a project. As KonradAdenauer-Stiftung we support dealing and reconciling with the past through law and legal norms while respecting the limitations that the rule of law imposes. Coping with the past is a precondition in order for former totalitarian and authoritarian regimes to successfully transform into sustainable democracies and constitutional states. As a Christian Democratic foundation the Konrad-Adenauer-Stiftung is committed to fostering democracy and the rule of law, to implementing social and marketeconomic structures and to promoting human rights. On the basis of our Christian responsibility, we work towards a humane, socially conscious Europe, in which human rights and the basic values of peace, justice, freedom, tolerance, participation and solidarity form the guideline. For Christians human dignity and human rights are part of man‘s being God‘s creation. Thus, the State does not create human rights; it merely formulates and protects them. Human rights existed prior to the State and are rights above the State. The Foundation takes therefore particular interest in promoting this conception of human rights in transition democracies of South East Europe, mainly by facilitating regional dialogue. Human rights and transitional justice are inseparable concepts. Two world wars with the loss of millions of lives, one of them tragically linked to the city of Sarajevo, have not created an international consensus that conflicts, whether they are ideological, ethnic, religious or economic, must be settled by peaceful means. A devastating conflict marked the recent history of Europe, reminding Europeans that more emphasis must be put on preserving democratic values and preventing anything like this from happening again. Alone in Bosnia according to the International War Criminals Tribunal 104,731 men, women and children lost their lives during the war between 1992 and 1995. The siege of Sarajevo, lasting from the 5th of April 1992 until the 29th of February 1996 was the longest siege of a capital city in the history of modern warfare. It is estimated that more than 10,000 people were killed, among them over 1,500 children. Am additional 56,000 people were wounded, including 15,000 children. Thus Sarajevo – a city which breathes both the spirit of its cruel past and that of tolerance – became a natural choice for our partner PRAVNIK and we as a location for our International Summer School which celebrated its 5th anniversary in 2011. Page 7


It brings together law students from South East Europe, other European countries and the US with experienced professionals to study, analyze and discuss crucial aspects of human rights and transitional justice. All the participants have outstanding qualities and the potential to be the future elite of their respective countries. It is our sincere wish to support and encourage them to promote reforms and changes in transitional countries towards sustainable rule-of-law governance. I was impressed by the seriousness with which the students participated in the Summer School and the high quality of their work, which reflects in the articles put together in the journal at hand. May this publication serve as a source of inspiration for academics, law practitioners, politicians and other opinion-makers, may it contribute to the further strengthening of peace, democracy, the rule of law and the respect for human rights in all countries and particularly in South East Europe. I wish to express my profound appreciation and gratitude to the editors and the authors of this valuable collection of essays and I wish this publication every possible success. Thorsten Geissler Director of the Rule of Law Program South East Europe of the Konrad-AdenauerStiftung

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PREFACE

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A WORD FROM THE REDACTOR By Marijana Toma

The International Summer School of Sarajevo (ISSS) celebrated its fifth anniversary this year. Established in 2006, the ISSS gathered numerous graduate and postgraduate students from the whole world, but particularly from the South-East Europe, interested in transitional justice and human rights in the previous years. More than 150 young scholars and experienced practitioners have had the opportunity to participate in discussions on different areas of human rights, transitional justice and the struggle against impunity in post-conflict and postauthoritarian societies. ISSS is organised in Sarajevo, the capital of Bosnia and Herzegovina, the city that became one of the symbols of immense suffering during the armed conflicts in former Yugoslavia in the 1990s, which caused the deaths and the disappearances of more than 130,000 people in the whole region. Since the end of the conflicts, countries established in the territory of former Yugoslavia have remained burdened by challenging questions on how to deal with the past abuses that were committed: how to prosecute and deal with those responsible for war crimes, how to break the denial of facts about atrocities, how to achieve acknowledgment in order to begin the process of reconciliation, and what are the sufficient measures to repair suffering of the victims? The region of the former Yugoslavia is not the only region that faces these difficult challenges; countries around the world agonise over the possible answers to these questions. Chile is still thinking about its difficult past under Pinochet. Brasil just established the Truth and Reconciliation Commission with the aim of investigating crimes committed during military rule from 19461988. South Africa‘s most prominent human rights activists are again opening discussions on the implementation of recommendations by the country‘s TRC. Cambodians are watching former Paul Pot‘s associates facing trials at the court. Many countries around the world attempt to find unique ways to respond to their challenges from the past, to build new democracies and societies differing from a previous period by establishing the rule of law, implementing different mechanisms of transitional justice and creating a future free of armed conflicts and the reoccurrence of atrocities. The discussions on how to legally respond to crimes and atrocities, which measures to undertake in order to achieve acknowledgment for those that suffered, and how to establish accountable institutions that would guarantee non-repetition of crimes are the main topics within the ISSS forum. Additionally, ISSS students are required to personally contribute to discussions in the fields of transitional justice and human rights. Through integration of their previous experience and the knowledge they obtained from ISSS lecturers, they write essays in which they discuss and analyse different areas and problems of transitional justice, international law and human rights.

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Their essays present an important contribution to transitional justice and human rights. The essays range from those that discuss the general concept of transitional justice, to those that present valuable case studies, essays that focus on specific issues of transitional justice in one country. While some students attempted to reveal the shortcomings of contemporary scientific literature regarding the concept of reconciliation, others analysed the potential contribution of modes of international criminal law, such as joint criminal enterprise not only on the legal mechanisms of transitional justice but also on broader issues such as the establishment of truth and understanding of the context about armed conflicts and the acknowledgment of crimes and grounds for reform of abusive institutions. Some went even further. Their essays were focused on exploring and identifying new actors in societies, which were of immense importance for transitional justice processes, and suggestions for dealing with the past, so as to be more inclusive, more comprehensive, and thus, more effective. There are several common conclusions that can be drawn from this year‘s publication. Firstly, there is almost a unanimous understanding by all the authors of the reshaped nature of the transitional process based on their analysis of specific cases. Transitional justice mechanisms are not in conflict with each other, but are complementary. The dilemmas on the dominance of one or the other transitional justice mechanism has been shaping the nature of transitional justice for decades. However, since transitional justice is now perceived not only as the process of choice, but also as the process of necessity, there are no more questions about the choice of which transitional justice mechanism shall be implemented. The perception is clear: in post-conflict society you cannot sacrifice or exchange justice for truth or apology to victims and acknowledgment of their suffering in the past for democracy in the future. Another common ground for authors of the essays is that transitional justice is no longer perceived as the ―lesser form‖ of justice. The essays focused on international law. While pointing out the necessity for criminal justice and respect for the norms of international human rights law established over the years, they did, however, understand that the implementation of these post-conflict or post-authoritarian societies are not supposed to be focused only on past, but must present significant grounds for the future. Without these, not only would it be impossible to combat denial about past crimes and properly deal with the legacy of past abuses, but also societies would face enormous obstacles in building sustainable democracies. The most important feature of this publication are its authors. Most of them came from a post-conflict or post-authoritarian society. However, all of them showed great awareness for past injustices that were once part of their societies. Their personal involvement and interest in transitional justice and international law combined with their academic backgrounds are what makes this publication outstanding. Their passion for human rights, the principles of democracy and respect for the rule of law, combined with their fresh perspectives are what makes their contribution to the global discussions on transitional justice extraordinary.

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THE CONCEPT OF RECONCILIATION IN THE TRANSITIONAL JUSTICE PROCESS - MEANING AND CONSEQUENCES By Dennis Michels *

ABSTRACT The article answers the question what reconciliation means as part of the theoretical concept of transitional justice. It reveals the problems of different perspectives of contemporary scientific literature regarding the concept of reconciliation and fills the definitional gap that it spots. Reconciliation is framed from a societal perspective and presented as dealing with the relational aspects between victims and perpetrators. Moreover, the article connects reconciliation with the practical measures of transitional justice like amnesties, tribunals, or reparations in order to assess which measures have a positive impact and which measures have a negative impact on the reconciliation process. * Dennis Michels, 25, is currently finishing his Master‘s degree in International Studies/Peace and Conflict Studies. He studied at the Goethe-University in Frankfurt am Main, Darmstadt University of Technology, both in Germany, and at the University of Southampton, UK. He will very probably obtain his degree in 2012. His thesis is about the impact of local reconciliation mechanisms in transitional justice processes. He obtained his Bachelor‘s degree in Political Science and Sociology at the University of Bonn in 2009. He did internships at the University of Leeds, UK, the European Parliament in Brussels, Belgium and Strasbourg, France and at the German Council on Foreign Relations in Berlin, Germany. He is currently working as a student assistant at the University of Frankfurt am Main. His interests include transitional justice, reconciliation, post-conflict peacebuilding, international law, humanitarian law, human rights, and security policy in the USA and the EU.* Page 15


characterised by the notion of ―global transitional justice‖.5 As Ruti Teitel diagnoses, since the turn of the millennium TJ moved ―from the exception to the norm‖, which reflects an ―expansion of the reach of law in international affairs‖. She explains that because of new realities of conflict, i.e. ―intrastate incidents that occur even in peacetimes”, these new developments in international law occurred, and were accompanied by a new wave of TJ initiatives in post-conflict states. The theoretical debate around TJ gained more and more attention during the 1990s. The theoretical concept emerged as a byproduct of research concerned with transformations following the third wave of democratisation.6 In this context, the article at hand tries to answer the question what reconciliation means as a part of TJ. Whilst TJ is a process consisting of several pieces, I will put a special focus on the ―reconciliation piece‖ because reconciliation is often described as a desired outcome, without reflecting what it really means and how it works. I will stay on a theoretical level and discuss the question by taking a closer look at the concept of reconciliation in scientific literature that deals with TJ. I divided the article into two parts. First (Chapter 2), I will analyse the conceptual shift TJ has already undergone, and show the usage and significance of reconciliation in contemporary TJ literature. In the second part (Chapter 3), I will present a definition of reconciliation by strongly relying on insights from conflict transformation literature. This will be followed by an application to the practical measures of the TJ concept, and an assessment of their usefulness from a theoretical reconciliation perspective. By doing this, I seek to open up a new perspective on reconciliation in the TJ process, which could especially be

1. INTRODUCTION Transitional justice (TJ) is widely understood as ―a concept of justice intervening in a period of political change, characterised by a juridical answer to the wrongs of past repressive regimes‖.1 However, the concept has undergone a profound change since it came into existence in the aftermath of World War II. Having its origins in the Nuremberg and Tokyo trials, which constituted the first appreciation of individual responsibility for war crimes, TJ soon experienced a massive decrease in attention, due to the overarching tension of the Cold War. The concept re-emerged and entered its second phase in the context of political transitions in Latin America and Southern Europe during the 1970s and 1980s, but was by then framed by a ―culture of impunity‖ that led to a series of amnesties, or politically imposed amnesias.2 The dissolution of the Soviet Union paved the way for the transitions of governments in various regions of the world.3 During the 1990s, the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Truth and Reconciliation Commission (TRC) in South Africa marked the next steps of the genealogy of TJ. This fostered a broadening of the concept to include non-juridical elements, e.g. the aim to promote peace and reconcile victims and perpetrators of the former conflict or repressive regime by truth-seeking initiatives.4 The contemporary understanding, which is called the third phase of TJ, is 1 Teitel, Ruti, “Transitional Justice Genealogy”, Harvard Human Rights Journal 16 (2003), 69-94, p. 69. 2 Buckley-Zistel, Susanne, “Transitional Justice als Weg zu Frieden und Sicherheit. Möglichkeiten und Grenzen”, SFG-Governance Working Paper Series, No. 15 (Berlin, 2008), p. 6 (own translation, D.M.). 3 Teitel, Ruti, “The Law and Politics of Contemporary Transitional Justice”, Cornell International Law Journal 38 (2005), 837-862, p. 839. 4 Bercovitch, Jacob and Richard Jackson, Conflict Resolution in the Twenty-first Century. Principles, Methods, and Approaches (Ann Arbor, 2009), p. 151.

5 Teitel, “Contemporary Transitional Justice”, p. 840. 6 Engert, Stefan and Anja Jetschke, “Einleitung: Transitional Justice 2.0 – zur konzeptionellen Erweiterung eines noch jungen Forschungsprogramms”, Die Friedens-Warte. Journal of International Peace and Organization 86 (2011), No. 1-2, 15-43, 21 (own translation, D.M.).

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insightful for scholars with a legal background, as I am writing from a social science perspective.

punishment for past perpetrators was complemented with the idea of creating lasting peace. This was closely connected to the idea of TJ as a long-term project, since justice in the long run meant nothing other than sustainable peace. For the concept of TJ, this meant a shift to measures aiming not only at retributive justice, i.e. legal punishment for crimes, but also at restorative justice, i.e. reconciliation. All in all, the concept became more holistic, using a combination of various instruments, and including the social reintegration of former perpetrators.10 I want to come back to the initially stated definition of TJ that reveals several flaws in light of these conceptual shifts. Following Roht-Arriaza, it becomes clear that the fixed time-frame, as it has been stated by Teitel (―a period of political change‖), can in reality cover a long period of time.11 TJ is a long-time project. This idea is connected to the notion that reconciliation is part of TJ, and can sometimes be an almost never-ending process because of its very nature as a ―social reconstruction‖ process that ―may happen in bouts or waves, as new generations come of age, and as the international context changes‖.12 Furthermore, it has become common to speak of ―post-conflict justice‖, replacing the term ―transitional‖ with ―post-conflict‖, which clearly shows the shift away from the narrow time-frame.13 Moreover, Teitel‘s notion that TJ is ―characterised by a juridical answer‖14 has been criticised. For instance, Naomi RohtArriaza notes that by concentrating on legal aspects of justice, other aspects like ―education, culture and […] distributional justice‖ are omitted.15 Agreeing with this opinion, Susanne Buckley-Zistel states that ―social, economic, and political justice are of equal importance to legal justice, but are not covered by

2. ENTRANCE AND USAGE OF RECONCILIATION IN TRANSITIONAL JUSTICE 2.1. CONCEPTUAL SHIFTS OF TANSITIONAL JUSTICE TJ experienced two conceptual shifts. The first one was the uncoupling of the concept from the narrow time-frame of its application. This was related to the increasing role of international law. There are several practical developments reflecting the expansion of law in international relations after the end of the cold war. To name some, there are humanitarian interventions as expression of the expanding human rights regime, the emergence of the ―Responsibility to Protect‖ (RtoP) as an expression of the altered role of state sovereignty (now being held accountable for the treatment of its citizens), or the establishment of the International Criminal Court (ICC) as an expression of the desire to have a permanent institution that deals with cases of genocide, war crimes, or crimes against humanity.7 The stronger role of the rule of law in international affairs shaped the concept of TJ decisively.8 The emergence of a desire to deal with past atrocities on the international level led to a conceptual shift from the narrow context of a transitional situation to the perception of TJ as a general method of dealing with the past, even when the transition had happened a long time ago.9 The second conceptual shift is related to the ―why‖ and ―how‖ of TJ, i.e. which goal is pursued by dealing with the past, and what measures are suitable to reach that goal. Especially since the second phase of the genealogy of TJ, when Truth and Reconciliation Commissions were introduced as practical measure of TJ, the formerly legally framed goal was broadened. The original goal of

10 ibid. 11 Roht-Arriaza, Naomi, “The New Landscape of Transitional Justice”, Transitional Justice in the Twenty-First Century. Beyond Truth versus Justice (Cambridge, 2006), pp. 1-17, p. 1. 12 ibid., pp. 12-13. 13 ibid., p. 1. 14 Teitel, “Transitional Justice Genealogy”, p. 69. 15 Roht-Arriaza, “Landscape Transitional Justice”, p. 1.

7 Bercovitch and Jackson, Conflict Resolution, p. 152. 8 Teitel, “Contemporary Transitional Justice”, p. 841. 9 Engert and Jetschke, “Transitional Justice 2.0”, p. 21.

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conventional concepts and procedures of jurisdiction‖.16 Different forms of justice can be included in TJ. Coming back to the development of TJ over time, the shift from retributive justice as primary objective of TJ in the aftermath of World War II to restorative justice as complementary goal describes the theoretical development in the most useful way for my concern.17 Including economic or political justice could bring the concept closer to projects of institutional reform. I do not want to dismiss these ideas, but I will not deal with them at this point, as I will concentrate on the narrower definition of TJ that is concerned with how to deal with past repressive regimes on a society level.

of trust in the rule of law, especially equal treatment before the law. The citizens can reconcile when they notice that perpetrators are being punished – now and in the future.19 Social scientists and psychologists often speak of reconciliation from an individual or society perspective, meaning either a reintegration of perpetrators into a community or reconciliation between two individuals or two former conflicting groups.20 Hamber and Kelly note that ―the term has evolved from the individual to the political and policy arenas‖21. Huyse adds that reconciliation takes place through three consecutive steps: replacing fear by non-violent coexistence, building confidence, and developing a sense of empathy towards others.22 I will elaborate on reconciliation as the rebuilding of relationships in the next chapter. Judith Renner notes that most often reconciliation is mentioned in the context of Truth and Reconciliation Commissions, which are presented as being a producer of reconciliation by practitioners as well as by the scientific discourse. Often the South African TRC is used as the only empirical example, and the once created image of ―reconciliation through truth‖ is reproduced again and again without any further comparative research or theoretical conceptualising. Despite its positive connotation, the concept of reconciliation lacks a clear definition. Instead, its necessity is stated referring to the possible contributions of TRCs only.23 In my opinion, both problems (on the one hand, not recognising the importance of reconciliation and, on the other hand, using it as an empty concept without

2.2. RECONCILIATION IN CONTEMPORARY TRANSITIONAL JUSTICE-LITERATURE As the definition of Ruti Teitel suggests, TJ is often presented from a legal perspective, focussing on tribunals and prosecution as the main measures to provide justice in a post-conflict situation. By introducing her genealogy of TJ, I showed how this perception was complemented by initiatives of truthfinding, aiming at reconciliation. However, when it comes to the practical measures of TJ, reconciliation is often described from particular perspectives, depending on the academic background of the author. Sometimes it is incorporated as a secondary goal of tribunals, as a byproduct of retributive justice. It frequently seems to be framed by legal scholars in this way. For instance, Teitel notices that the ICTY‘s ―project of reconciliation remains largely aspirational‖, and after stating that it produced a ―nationalist backlash‖, i.e. the contrary effect from the one it should have produced by aiming at reconciliation, she dismisses the topic.18 It seems that from her perspective, reconciliation can be provided by state institutions through the reestablishment

19 Hamber, Brandon and Gráinne Kelly, “Beyond Coexistence: Towards a Working Definition of Reconciliation”, Reconciliation(s). Transitional Justice in Post-conflict Societies (Montreal 2009), pp. 286-310, p. 288. 20 Hamber and Kelly, “Beyond Coexistence”, p. 286. 21 Hamber and Kelly, “Beyond Coexistence”, p. 290. 22 Huyse, Luc, “The Process of Reconciliation”, David Bloomfield, Teresa Barnes and Luc Huyse, Reconciliation After Violent Conflict. A Handbook (Stockholm, 2003), pp. 19-33, pp. 19-21. 23 Renner, Judith, “‟Versöhnung‟ als leerer Signifikant im Kontext politischer Transitionen: eine diskurstheoretische Konzeptualisierung”, Die Friedens-Warte. Journal of International Peace and Organization 86 (2011), No. 1-2, pp. 245-270, (own translation, D.M.).

16 Buckley-Zistel, “Transitional Justice”, p. 13. 17 Engert and Jetschke, “Transitional Justice 2.0”, p. 21. 18 Teitel, “Contemporary Transitional Justice”, pp. 858-859.

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reflecting its mechanism and causalities) exist because of a lack of a clear definition. I do not refrain from the notion that framing TJ as a holistic approach, including prosecutions, truth-seeking, reparations, and other measures at the same time, is necessary in order to build sustainable peace.24 Furthermore, I agree with Anja Jetschke regarding her opinion that retributive justice, i.e. punishment for perpetrators of past crimes, is morally acceptable, and has a psychological effect on victims and perpetrators.25 Diana Orentlicher also argues that punishment deters future repression and inoculates ―the public against future temptation to be complicit in state-sponsored violence‖26. However, I want to make a contribution to the debate on how to perceive TJ by highlighting reconciliation as a decisive factor within TJ that has an additional value beyond prosecutions, especially on a society level. Orentlicher largely engages the issue of justice from a state versus individual (or community) perspective, which can almost be called typical for legal scholars. I agree with her regarding her argument that the failure to prosecute those most responsible risks undermining the authority of law.27 However, she omits issues of restorative justice on a purely society level. By overlooking the importance of reconciliation, the whole process of TJ can be spoiled, and conflict can break out again. All attempts at retributive justice can fail when a society falls back into violent conflict, and more atrocities are being committed. Furthermore, connecting reconciliation with TRCs only, without understanding what it is, and how it works, can be dangerous, too, as every transitional

society needs its own strategy of how to reconcile successfully. In the next chapter I will explain and define the concept of reconciliation. I will then apply the concept to the practical measures of TJ, which have been used so far, to find out to what extent they respond to the demand of reconciliation, and I will finish with a conclusion. 3. RECONCILIATION: WHAT DOES IT REALLY MEAN? 3.1. DEFINITION As the famous practitioner and scholar of conflict resolution John Paul Lederach states, reconciliation aims at addressing the root causes of a conflict. Furthermore, it takes place on a societal level. What matters most regarding the settlement of conflicts are the ―human dimensions‖, i.e. the core idea of reconciliation is to restore relationships between victims and perpetrators. Conflicts between societal groups (no matter if they are interstate or intrastate) often have long-standing historical roots, and animosity, fear, and prejudices about the other societal groups are locked deeply in the minds of the people. By signing a peace agreement and ending the conflict on the official, diplomatic level, these underlying factors do not disappear. Therefore, the most important point to make is that conflict, as well as reconciliation, is to a large extent about subjective perceptions among different groups of people. Moreover, it is because of this notion that a step into the direction of ―the relational aspects of reconciliation‖ and, more specifically the rebuilding of relationships, is necessary in order to achieve reconciliation.28 People like Lederach, who have worked practically in the field of reconciliation, came to the conclusion that there is something needed beyond the negotiation of interests to make peace last. Sometimes creative and innovative measures are needed to reach the goal of change in people‘s minds about their former enemy.

24 van Zyl, Paul, “Promoting Transitional Justice in Post-Conflict Societies”, Security Governance in Post-Conflict Peace-Building, (Wien/Genf, 2005), pp. 210-230, p. 226. 25 Jetschke, Anja, “Der Kaiser hat ja keine Kleider an! – Strafverfolgung durch hybride Tribunale”, Die Friedens-Warte. Journal of International Peace and Organisation 86 (2011), No. 1-2, pp. 101-130, 106 (own translation, D.M.). 26 Orentlicher, Diane F, “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime”, The Yale Law Journal 100 (1991), No. 8, pp. 2537-2615, 2542. 27 Orentlicher, “The Duty to Prosecute”, p. 2542.

28 Lederach, John Paul, Building Peace. Sustainable Reconciliation in Divided Societies (Washington DC, 1997), pp. 23-24.

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It is important to take into consideration the specific background factors of each conflict that one is confronted with when dealing with specific practical cases. Therefore, where standardised measures turn out to be ineffective, creative projects can make a contribution.29 However, creativity is only one of three defining factors of reconciliation. I will explain these factors after giving an example how creativity can be understood in the context of reconciliation. Konstanty Gerbert uses an example of the Polish-German reconciliation process after World War II.30 Until the 1980s (i.e. more than thirty-five years after the war had ended), the Polish population retained their stereotypical picture of Germans as a primarily self-interested people. As a consequence, the fear of revenge for the expulsions of 3.5 million Germans from what became the new western part of Poland lasted, and even massive humanitarian aid by the Federal Republic could not change this perception. In this seemingly hopeless situation of enmity, it was a creative project that initiated lasting reconciliation. Through the exchange of lists of Polish families in need the Catholic Church and trade unions in both countries encouraged German families to buy additional products of everyday life and send them to those needy Polish families. As Polish families received those products they urgently needed, the stereotypical perception of Germans changed and they recognised the time, effort, and good will of Germans to help those families that they did not even know personally. The example impressively shows how reconciliation can work in practice. I want to come back to theorising the concept now. John Paul Lederach names three factors that underlie reconciliation:31 Conflict is regarded as a system. Systems can only be understood, or even modified, by engaging the relationship between its parts. As relationship is the core factor of

conflict and the resolution of conflict, reconciliation, is about engaging people and bringing them together, rather than isolating, separating, or ignoring them. Reconciliation means the acknowledgement of the past and the envisioning of the future at the same time. On the one hand, acknowledgement is a key factor in the reconciliation process. It can be achieved through giving people space to tell their personal story of suffering in the past. The result of acknowledgement is a personal, emotional reconstruction that forms a precondition for the restoration of relationships to others. On the other hand, reconciliation needs a long-term perspective. It has to be regarded as a process that is directed towards the future, in addition to the fact that it is dealing with the past. Connected to the importance of relationships, this means that people have to envision a shared future with their former opponents in conflict and accept the inevitable fact that they will live in interdependence with them. Konstanty Gerbert supports this view by concluding that the reconciliation process requires accepting ―the continuing existence of the former enemy as an integral part of the desired outcome‖.32 Reconciliation requires innovation. After conflicts, often seemingly contradictory requirements appear, e.g. the longing for justice and peace at the same time, or the claim for truth and forgiveness at the same time. Reconciliation aims at bringing these paradoxes together and combining them creatively, often using socialpsychological and spiritual methods. This factor reflects what has already been described by the German-Polish reconciliation example. In the eyes of Gerbert, reconciliation means the ―redefinition of identities of oneself and of the enemy, ideally through the valorisation of a third identity, which would include both‖.33 Furthermore, he adds that it is the perception of these identities that matters most. His suggestion is to create a shared

29 Lederach, Building Peace, p. 25. 30 Gerbert, Konstanty (2010), “Unsettling Scores. Thinking about violence in Warsaw and Jablanica”, IP Global Edition 11 (2010), No. 6, pp. 9-18, 16-17. 31 Lederach, Building Peace, pp. 26-27.

32 Gerbert, “Warsaw and Jablanica”, p. 12. 33 ibid., p. 12 ff.

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perspective of the future. Especially on the person-to-person level, reconciliation can help to create social bonds that build the basis for sustainable peace. Last, but not least, small projects can make a difference. Especially measures including little material value can be efficient because they avoid the perception of buying forgiveness by focussing on the symbolical interaction. Gerbert aims at the same concept of reconciliation as Lederach. Accordingly, one can summarise that reconciliation is a process aiming at the creation of peace by (re)building relationships between victims and perpetrators of a former conflict, and acknowledging past crimes as well as envisioning and working towards a common future by using creative measures that integrate seemingly contradictory requirements of building peace. I will now assess the practical measures often taken in connection with TJ, and their potential of fostering or spoiling the process of reconciliation.

which approaches the presented measure takes (I) to bring former enemies together/in contact with each other, and (II) to deal with the past and to build a common future, as these are the criteria for a measure having a reconciliatory effect. The third criterion mentioned by Lederach, innovation, cannot be assessed by looking at the standard measures because it has to be understood as a creative modification of these standard measures, in order to work around the unique problems every transition faces. 3.2.1. NONRECONCILIATORY MEASURES Amnesia At one end of the spectrum as to how to deal with perpetrators and victims there is the possibility of choosing a ―fresh start‖, i.e. not to deal with the past at all. Sometimes transitional states choose amnesia to make a peaceful transition possible, i.e. drawing a line of neglect between the past and the future. Often Spain is mentioned as an example of imposed amnesia. After the end of the Franco dictatorship in 1976 the Spanish state moved to democracy without dealing with the past in order not to risk any disturbance of their transition process. Not until 2000 did the claim of victims to deal with the past become loud enough to overcome the amnesia.35 Amnesia constitutes a status of non-justice, and it is highly doubtful if this can be called TJ at all. Amnesia solely serves the interests of the perpetrators because there is no attempt to punish them, and victims are left alone with their pain and loss. In this case there is neither any action directed at past abuses, nor any action directed at the future relationship of perpetrators and victims. The only imaginable advantage for the victims is the transition to a peaceful regime itself. However, there is no attempt to bring former enemies together, or work towards acknowledgement of the past. The common vision of the future is the only

3.2. APPLICATION TO PRACTICAL MEASURES In TJ there is a continuum of possibilities as to how to deal with past conflicts or repressive regimes. At one end of this continuum, there would be a transition to a different political system without any further action regarding past crimes. At the other end, there would be the establishment of a war crime tribunal that engages in prosecution and punishment of war criminals or violators of human rights.34 In the following abstracts I will elaborate on both extreme cases of the continuum, and show how they are related to the establishing of reconciliation. I will argue that both extreme ends of the continuum are inappropriate to improve reconciliation between perpetrators and victims because they follow the narrow interest of one of the groups, respectively. I will then present some other measures of TJ that put a focus on reconciliation. In my analysis of each practical measure of TJ I will put a special focus on the question of

35 Schlee, Beatrice, “Die Konsequenzen jahrzehntelanger Amnes(t)iepolitik in Spanien. Das Fallbeispiel der Kleinstadt Llanes (Asturien)”, Die Friedens-Warte. Journal of International Peace and Organisation 86 (2011), No. 1-2, pp. 45-71, 45 (own translation, D.M.).

34 Engert and Jetschke, “Transitional Justice 2.0”, pp. 27-28.

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strategy of transition in this case. Amnesia suppresses claims for justice in order to achieve peace in the short term, which can lead to renewed conflict at a later point in time. As no reconciliation takes place, the feeling of injustice will live on in the heads of the victims, which makes a reappearance of conflict highly probable.36

that prosecute war criminals or violators of human rights aims at providing justice to the victims by punishing the perpetrators for their crimes. As already mentioned, this constitutes the establishment of legal justice, which has been criticised as being a very limited form of justice that does not serve the goals of TJ completely.39 Making an addition to the claims for different forms of justice, I want to follow Engert and Jetschke with their claim for restorative justice, i.e. rebuilding the relationship between perpetrators and victims. Regarding tribunals, the provided form of justice is not restorative, but retributive. The idea of punishing perpetrators comes ―close to the principle of revenge‖, and therefore primarily serves the interests of the victims.40 Again, I do not want to discredit trials and I highly acknowledge their value for promoting the rule of law on a state level, contributing a lot to stabilising state institutions and fostering a democratic culture41 but, nevertheless, I want to mention their shortcomings regarding the rebuilding of relationships between individuals on a societal level. Tribunals can be satisfying regarding the treatment of the past, but have limited effect on building peaceful relationships between perpetrators and victims in the future. Often it is said that tribunals can make a contribution to a peaceful future by serving as deterrence to future perpetrators, and removing potential spoilers of peace by arresting them.42 However, the strong focus on victims‘ justice creates the danger of one-sided justice and desires of revenge among supporters of the prosecuted war criminals. Tribunals follow the logic of imposing an externally created, hierarchical relationship between perpetrators and victims. Moreover, tribunals create one official version of truth that is often not accepted by some groups of a society that constituted a warring party or the group of supporters

Amnesties Another form of non-justice, in this respect, would be to provide amnesties to perpetrators. Often amnesties are granted to ―buy‖ the acceptance of former perpetrators concerning the transition from one political system to another, or to reach a peace agreement after a period of conflict in the first place. In Argentina, the government passed two amnesty laws after various coup attempts by the military that aimed to prevent further trials against some of its members who had participated in the previous military dictatorship.37 Except for the highly improbable case of an unconditioned forgiveness of the victims, amnesties do not provide any advantages regarding the future relationship of perpetrators and victims. Again, perpetrators‘ interests are served, and victims are left alone with a feeling of injustice. Similar to amnesia, amnesties open up the prospect of an improved future regime after the transition, but do not provide any change in the relationship between victims and perpetrators, let alone acknowledge what went wrong in the past. This again leads to the dangerous situation of a probable renewed conflict later on because there is no attempt to rebuild the relationships of perpetrators and victims.38 Tribunals At the other end of the continuum of how to deal with the past, there is the full focus on perpetrators of former regimes of injustice. The establishment of tribunals 36 Engert and Jetschke, “Transitional Justice 2.0”, p. 28. 37 Sikkink, Kathryn and Carrie Booth Walling, “Argentina‟s Contribution to Global Trends in Transitional Justice”, Transitional Justice in the Twenty-First Century (Cambridge, 2006), pp. 301-324, pp. 306-307. 38 Engert and Jetschke, “Transitional Justice 2.0”, p. 28.

39 Roht-Arriaza, “Landscape Transitional Justice”, p. 13. 40 Engert and Jetschke, “Transitional Justice 2.0”, pp. 28-29. 41 Orentlicher, “The Duty to Prosecute”, pp. 2542-2543. 42 Engert and Jetschke, “Transitional Justice 2.0”, p. 29.

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of the old regime because they have not been part of the truth-finding process.43 Jetschke adds that tribunals do not fulfil their aspiration of ending a culture of impunity because they are influenced by specific power relations. Their creation is dependent on a powerful position of former victims, and their record shows a notion of revenge by limiting the investigation period to a period in which crimes can be assigned clearly to the now inferior party of conflict and, by limiting the indictments to former high-ranking officials who are now without any political power. The result is justice limited to a small group of people, leaving out the majority of perpetrators, specifically those who are part of the politically powerful group in the period the tribunal is created.44 Jetschke concludes that tribunals do not have any reconciliatory effect. By going even further, she states that tribunals can be called a form of victor‘s justice, which can be especially dangerous for the reconciliation process when there is no measure to engage the past crimes of the victors of the former conflict (e.g. a truth commission) at the same time.45 To conclude this, one can say that although tribunals may create a general sense of the benefits of the rule of law, which has a positive psychological effect for many and. even more important, creates a culture of justice based on human rights, there is always the danger of excluding some of the former perpetrators and latently creating the basis for new conflicts – especially in the immediate aftermath of a transition. The feeling of injustice among groups of society can become even more severe if external actors (e.g. after a military intervention) run or support the tribunal, and a feeling of conspiracy against some can emerge. Therefore, it is crucial that tribunals are viewed as being legitimate by a careful choice of their composition, and a fair, inclusive, and communicative way of working.46

All in all, the most critical aspect of tribunals is their coercive character. Without voluntariness no reconciliation is possible. Looking at Lederach‘s criteria for reconciliation, one can see that even if tribunals deal with the past by creating a specific version of ―truth‖ and create a possible vision for the future by removing spoilers of peace, the missing part is the area for social dialogue of victims and perpetrators. Tribunals separate them from each other and create a feeling of antagonism instead of bringing them together, creating a shared vision of living together peacefully in the future. As already mentioned, the ICTY is one example of failing to provide reconciliation and, creating a nationalist backlash instead.47 3.2.2. RECONCILIATORY MEASURES Reparations Providing reparations to victims directly aims at the relationship between perpetrators and victims. The provision of a material compensation is an effort by the perpetrators for the victims that can help to improve their relationship. However, there are several important aspects that have to be taken into account if reparations are to be effective concerning the process of reconciliation. First and foremost, it has to be recognised that there is no price for the pain and loss the victims of conflicts or repressive regimes have experienced. In this sense, it is crucial to interpret reparations as symbolic acts by which the perpetrator accepts his/her guilt and accountability for past crimes. Directly related to this is the precondition of voluntariness. Forced reparations are ineffective for the process of reconciliation as the perpetrator can provide a material good without any feeling of guilt. Hence, it is important that the perpetrator make a credible expression of the acceptance of his/her guilt in order to give reparations a reconciliatory effect, and underline their symbolical meanings. Reparations are directed at the past in the sense that they

43 ibid., p. 30. 44 Jetschke, “Hybride Tribunale”, pp. 104-105. 45 ibid., pp. 125-126. 46 Engert and Jetschke, “Transitional Justice 2.0”, p. 30.

47 Teitel, “Contemporary Transitional Justice”, pp. 858-859.

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constitute an acceptance of guilt, and a remembrance of past events, and they are at the same time directed at the improvement of future relations of perpetrators and victims.48 Depending on the level of engagement, reparations can be provided by a state for a victim or a group of victims, but also, and more importantly for the process of reconciliation, directly by a perpetrator for a victim.

victims. One the one hand, this measure is directed at the past by addressing the events, and finding out what really happened. On the other hand, they can help to build a positive future relationship between perpetrators and victims by establishing a dialogue between them. The discourse itself is said to have a reconciliatory effect. Moreover, truth commissions can help build a common identity by including different points of view to commonly experienced events. In conclusion, this means that the crucial mechanisms of truth commissions are to the same extent the acknowledgement of what happened in the past, and the bringing together of former enemies and creation of a dialogue that can lead to apologies as well.50 4. CONCLUSION In this article I showed what reconciliation means in the TJ process. After having presented the conceptual shifts within TJ, I explained the different perspectives that often occur regarding the usage of the reconciliation concept in TJ literature. By giving an extended definition of reconciliation as a process aimed at the creation of peace by engaging the relations between victims and perpetrators of a former conflict, and acknowledging past crimes, as well as envisioning and working towards a common future by using creative measures that integrate seemingly contradictory requirements of building peace, I tried to fill this gap. The assessment of the practical measures showed how reconciliation is related to those measures, and can be helpful whenever they are used or described in empirical cases. The result was a division into measures that have a rather negative impact on the reconciliation process, like amnesias, amnesties, and the establishment of tribunals, as well as measures that bring forward the reconciliation process, like reparations, apologies, and the establishment of truth commissions. The understanding of the mechanism of reconciliation will help frame the theoretical concept of TJ, especially for scholars with a legal

Apologies Often connected to reparations are apologies. By apologising for past events, the perpetrator or a representative of a group of perpetrators accepts his/her/their guilt, and takes the responsibility for past atrocities. Apologising aims at the publication of a moral renewal of the perpetrator, which makes a change of the relationship to the victims possible. The psychological aspect of the apology is the reversal of power positions between the perpetrator and the victim. The former takes a position of inferiority, and gives the latter the opportunity to accept the apology and forgive the former, or not. Through this decision, the victim gains power over the perpetrator that frees him of his former psychologically inferior role, and makes reconciliation more likely because the perpetrator and the victim can now act at eye level. However, similar to reparations, the apology must occur independently from external influences. The perpetrator has to take the initiative, and apologise voluntarily. Moreover, there has to be a due framework for the apology to give it credibility.49  Truth commissions To generate a common version of the truth about past human rights violations or war crimes, which is supposed to have a healing effect on society, truth commissions are often established in transitional societies. Truth commissions can be characterised as a mediating instrument between perpetrators and 48 Engert and Jetschke, “Transitional Justice 2.0”, pp. 31-32. 49 ibid.

50 Engert and Jetschke, “Transitional Justice 2.0”, pp. 32-33.

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background. Furthermore, it can be used as a theoretical basis for further (comparative) empirical research on the mechanisms and effects of the different practical measures of TJ. 4. CONCLUSION In this article I showed what reconciliation means in the TJ process. After having presented the conceptual shifts within TJ, I explained the different perspectives that often occur regarding the usage of the reconciliation concept in TJ literature. By giving an extended definition of reconciliation as a process aimed at the creation of peace by engaging the relations between victims and perpetrators of a former conflict, and acknowledging past crimes, as well as envisioning and working towards a common future by using creative measures that integrate seemingly contradictory requirements of building peace, I tried to fill this gap. The assessment of the practical measures showed how reconciliation is related to those measures, and can be helpful whenever they are used or described in empirical cases. The result was a division into measures that have a rather negative impact on the reconciliation process, like amnesias, amnesties, and the establishment of tribunals, as well as measures that bring forward the reconciliation process, like reparations, apologies, and the establishment of truth commissions. The understanding of the mechanism of reconciliation will help frame the theoretical concept of TJ, especially for scholars with a legal background. Furthermore, it can be used as a theoretical basis for further (comparative) empirical research on the mechanisms and effects of the different practical measures of TJ.

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5. BIBLIOGRAPHY   

            

Bercovitch, Jacob and Richard Jackson. Conflict Resolution in the Twenty-first Century. Principles, Methods, and Approaches (Ann Arbor, 2009). Buckley-Zistel, Susanne. ―Transitional Justice als Weg zu Frieden und Sicherheit. Möglichkeiten und Grenzen‖, SFG-Governance Working Paper Series, No. 15 (Berlin, 2008). Engert, Stefan and Anja Jetschke. ―Einleitung: Transitional Justice 2.0 – zur konzeptionellen Erweiterung eines noch jungen Forschungsprogramms‖, Die Friedens-Warte. Journal of International Peace and Organisation 86 (2011), No. 1-2, pp. 15-43. Gerbert, Konstanty (2010), ―Unsettling Scores. Thinking about violence in Warsaw and Jablanica‖, IP Global Edition 11 (2010), No. 6, pp. 9-18. Hamber, Brandon and Gráinne Kelly. ―Beyond Coexistence: Towards a Working Definition of Reconciliation‖, Reconciliation(s). Transitional Justice in Post-Conflict Societies (Montreal, 2009), pp. 286-310. Huyse, Luc. ―The Process of Reconciliation‖, Reconciliation After Violent Conflict. A Handbook (Stockholm, 2003), pp. 19-33. Jetschke, Anja. ―Der Kaiser hat ja keine Kleider an! – Strafverfolgung durch hybride Tribunale‖ ,Die Friedens-Warte. Journal of International Peace and Organisation 86 (2011), No. 1-2, pp. 101-130. Lederach, John Paul. Building Peace. Sustainable Reconciliation in Divided Societies (Washington DC, 1997). Orentlicher, Diane F, ―Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime‖. The Yale Law Journal 100 (1991), No. 8, pp. 25372615. Renner, Judith. ―‘Versöhnung‘ als leerer Signifikant im Kontext politischer Transitionen: eine diskurstheoretische Konzeptualisierung‖, Die Friedens-Warte. Journal of International Peace and Organisation 86 (2011), No. 1-2, pp. 245-270. Roht-Arriaza, Naomi. ―The New Landscape of Transitional Justice‖, Transitional Justice in the Twenty-First Century. Beyond Truth versus Justice (Cambridge, 2006), pp. 1-17. Schlee, Beatrice. ―Die Konsequenzen jahrzehntelanger Amnes(t)iepolitik in Spanien. Das Fallbeispiel der Kleinstadt Llanes (Asturien)‖, Die Friedens-Warte. Journal of International Peace and Organisation 86 (2011), No. 1-2, 45-71. Sikkink, Kathryn and Carrie Booth Walling. ―Argentina‘s contribution to global trends in transitional justice‖, Transitional Justice in the Twenty-First Century. Beyond Truth versus Justice (Cambridge, 2006), pp. 301-324. Teitel, Ruti. ―The Law and Politics of Contemporary Transitional Justice‖, Cornell International Law Journal 38 (2005), pp. 837-862. Teitel, Ruti, ―Transitional Justice Genealogy‖, Harvard Human Rights Journal 16 (2003), pp. 69-94. van Zyl, Paul. ―Promoting Transitional Justice in Post-Conflict Societies‖, Security Governance in Post-Conflict Peace-Building, (Wien/Genf, 2005), pp. 210-230.

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TRANSITIONAL JUSTICE AS A CONSTITUTIONAL INSTRUMENT IN INTERNATIONAL LAW By Aydin Atilgan*

ABSTRACT In today‘s world, it is evident that the international legal order‘s roles have increased in many domains where the nation states remain incapable. Settling with the past is one of those domains, which have been dealt by the international community. At this point, where do transitional justice processes fall among the debates on global constitutionalism? This paper questions the influences of transitional justice processes on the international legal order under guidance of the dynamics of global constitutionalisation.

*Aydin Atilgan holds a BA degree in Law from Ankara University and a MA degree from Marmara University EU Institute in Istanbul, Turkey. He practised law for several years and currently is a Ph.D. candidate in Marmara University EU Institute and a DAAD researcher in the University of Bremen. He is writing his dissertation on global constitutionalism and its impacts on international legal order.

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The ―last century‖, and in particular, the ―last three decades‖ are considerably important in the political history of the world by virtue of well-known facts which switched political dimensions throughout the world. The shift in political dimensions, ―transition to democracy‖, which is described as the core of the global trend, the ―third wave of democratisation‖ in the world in Huntington‘s words, brought transition to democracy to at least 30 countries from a non-democratic system between 1974 and 1990. It is one of the most important political facts of the previous century.51 Such transitions were not only central to the new democratisation process but also to savagery and tragic wars. Indeed it is evident that political chaos and atrocity were never intrinsic to the twentieth century, but there was something, which made that period quite different. ―Perhaps more unusual than the facts of genocides and regimes of torture marking this era is the invention of new and distinctive legal forms of response‖.52 That wording obviously indicates a transformation of the basis for justice from national to transnational. The twentieth century became the point of departure for the quest for justice beyond nation states through several experiences. Considering the developments in international relations in last a few decades, it seems that the idea of a transformation of the Westphalian international legal order has largely been adopted.53 Debates on the definition of international legal order stand as a neverending issue among international law scholars and the dimension of such a transformation is also highly contested.

Yet, it is evident that the changes in the international legal order, which came up in the aftermath of the catastrophes of the twentieth century, indicate that the anarchical structure, which has been used to define international order for a long term, has to be left aside, as the international community verified that it does not stand as a battle area in Hobbesian terms. Reserving the mistakes, shortcuts and all challenges, the attempts for international organisations, which basically have been established so as to provide ―peace‖ throughout the world, should be read as an indicator of goodwill by the international community as well as the result of conjectural interests and selfish and egoistical stances to reset and arrange the world order. Such a transformation in international law was described as ―from a law of coordination to a law of cooperation‖ 54 forty years ago and this cooperation has been more intensified by the time of progress, which brought a common concept that is shared by many authors, constitutionalisation of international law.55 It is rather an academic artefact but beyond wishful thinking and constitutes a ―legitimate form of interpretation‖ of the recent developments in the international legal order as an ―ordinary hermeneutic exercise‖. 56 Constitutionalisation in international law is used to indicate the intensity of dependence of states and other actors of international order that goes beyond cooperation to describe a third phase in the transformation of international law in terms of the description above. This phase is about the emergence of a PostWestphalian world order where the statist approaches to international law lose power. As an outcome of globalisation on governance issues, states must cooperate

Özbudun, Ergun. “Demokrasiye Geçiş Sürecinde Anayasa Yapımı”, (Ankara: Bilgi Yay., 1993), p. 9. 52 Minow, Marta. “Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence” (Boston, MA; Beacon, 1998) quoted by Richard Falk, “Trends Toward Transnational Justice: Innovations and Institutions”, draft background paper prepared for UNDP, Human Development Report Office, Occasional Paper, Background paper for HDR (2002), available at hdr.undp.org/en/reports/global/hdr2002/papers/Falk_2002.pdf, accessed 29.08.2011, p. 37. 53 Yalvaç, Faruk. “Devlet”, Devlet ve Ötesi: Uluslararası İlişkilerde Temel Kavramlar, (Istanbul: İletişim Yay., 2010), p. 15. 51

For Wolfgang Friedmann‟s description, Preuß, Ulrich K. “Equality of States – Its Meaning in a Constitutionalised Global Order”, Chicago Journal of International Law 9 (2008-2009), p. 34. 55 Ibid. 56 Peters, Anne. “Global Constitutionalism in a Nutshell”, in Weltinnenrecht: Liber amicorum Jost Delbrück, K. Dicke et al., (Berlin: Deuncker & Humblot, 2005), p. 536. 54

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with transnational bodies to be able exercise governance comprehensively. 57 Because of the changing actors in global order ―the reference to the constitutionalisation of legal order indicates the process of (re-) organisation and (re-) allocation of competence among the subjects of international legal order, which shapes the international community, its value system and enforcement‖.58 It is a very important that the issue of constitutionalisation in international law gains importance in parallel with this rise of the role of subjects of international law in international politics other than states, namely, in international organisations, NGO‘s, multinational companies and individuals. However, this discourse has always been challenged by several approaches that point out that the concept of constitution has been emerged in parallel with the notion of state. Although in first half of the 20th Century, authors like Prelot and Scelle suggested that the concept of constitution cannot be held as merely peculiar to the state. All organised communities may have their own constitutions. Their view was criticised and found very liberal.59 However, in the meanwhile, theoretical studies went too far. They defeated the question as to whether the term constitution is inherent in only states. There have been many examples of constitutions which were built beyond states, such as federal states like Germany and United States. The European Union, without a constitutional demos, and founding treaties of international organisations like the United Nations, the World Trade Organisation, which have features of constitutions are often named as constitutions.60 Today, there is a highly advanced global constitutionalism literature created by

international legal scholars.61 There are also different schools that hold global constitutionalism issues from different perspectives and define global constitutionalism in different ways.62 But, they rely on a liberal democratic thought background in almost all cases.63 As a result, there are many different definitions of global constitutionalism, which rely on different views of the international legal order. Among these different definitions and perspectives, one seems the most suitable to analyse the relationship between global constitutionalism and transitional justice and this article will focus on global constitutionalism from this point of view. According to this view, ―…[g]lobal constitutionalism is an academic and political agenda that identifies and advocates for the application of constitutionalist principles in the international legal sphere in order to improve the effectiveness and the fairness of the international legal order [and] [g]lobal constitutionalisation refers to the continuing, but not linear, process of the gradual emergence and deliberate creation of constitutionalist elements in the international legal order by political and judicial actors, bolstered by an academic discourse in which these elements are identified and further developed.‖64 Apart from this, the term global constitution is used to describe the increasingly integrating international legal order65 and, from this point of view, it becomes appropriate to handle the issues For an introduction to different global constitutionalism perspectives, Schwöbel, Christine EJ “Situating the Debate on Global Constitutionalism”, International Journal of Constitutional Law 8 (2010), pp. 611-635, Kleinlein, Thomas. “On Holism, Pluralism, and Democracy: Approaches to Constitutionalism beyond the State”, The European Journal of International Law 21 (2011), pp. 1075-1084, Fassbender, Bardo. “The Meaning of International Constitutional Law”, Transnational Constitutionalism: International and European Perspectives, (NY: Cambridge University Press, 2007), pp. 307-328. 62 Schwöbel, Christine EJ. Ibid. 63 Ibid., p. 611 64 Peters, Anne. “The Merits of Global Constitutionalism”, Indiana Journal of Global Studies 16 (2009), p. 397. 65 De Wet, Erika. “The International Constitutional Order”, p. 53, However it should be added that such a constitutionalisation process determined by the global constitutionalist works is too far away from the constitutionalisation of well developed societies, Preuß, Ulrich K. “Equality of States” p. 36. 61

Ibid., p. 537. De Wet, Erika. “The International Constitutional Order”, International and Comparative Law Quarterly 55 (2006), p. 51. 59 Göçer, Mahmut. “Uluslararası Hukuk ve Uluslararası Anayasa Kavramı”, AÜSBF Dergisi 57 (2002), p. 2. 60 De Wet, Erika. “The International Constitutional Order”, p. 53. 57 58

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of global constitutionalism and transitional justice as the common concerns of ―global networks of 66 governance‖.

rising tendency.68 Furthermore, it is obvious that transitional justice is a term used in emerging democracies throughout the world and it is the way these newly established regimes reckon with former regimes and the legacy of crimes committed during those regimes.69 Therefore, both concepts overlap during the time in which they have been emerging and that renders such a study possible. As another important point, which facilitates this study, those transformations of states from authoritarian or totalitarian forms to liberal democracies have mostly borne a resemblance to each other as the similar stages of transformations were observed.70 Such a situation also enables questioning if those developments have been formed under similar dynamics and how global constitutionalisation affected these dynamics. From the point of view, transitional justice ―…characterise[d] the choices made and quality of justice rendered when new leaders replaced authoritarian predecessors presumed responsible for criminal acts in the wake of the ‗third wave of democratisation‘‖71 and thereby the ―third wave‖, in Huntington‘s wording, was implied as its source. On the other hand, the opportunities for transitional justice and individual accountability throughout the world also created the opportunity for the idea of global justice. In this context, accompanying the end of the cold war and the other major developments in international relations, one of the most important developments in the global context that provided these opportunities has been ―the relevance of international human rights standards to a series of peaceful transitions from authoritarian rule to constitutional

This article does not aim to investigate whether constitutionalism at the global level exists or not or, or is good or bad, taking into account the current structure of the international legal order. Such a discourse already seems to have found certain conclusions, which stem from different perspectives.67 Therefore, I will skip this question and ask another question, which stands within the borders of the global constitutionalist domain. That is to say, this article is a party to the circle that considers recent evolution of international law a constitutionalist development for reasons that should the subject of another, broader, article. The aim of this essay is to question whether transitional justice processes of the twentieth century may be grounds for global constitutionalisation, which mainly overlap with the era of transitional justice. In other words, does global constitutionalisation involve transitional justice as a dynamic of the process? This question is twofold structure. Firstly, justice, in particular transitional justice, stands as a pillar of constitutional structure, like the fundamental rights. Secondly, it is related to the question of configuring a constitutional structure by mending political systems throughout the world and, therefore, providing a stable base for a constitutional body. Before all, it should be noted that scrutinising such a question is difficult on the grounds that transitional justice, as well as global constitutionalism and constitutionalisation are also concepts that are difficult define absolutely. On the other side, as widely acknowledged, its components have to be sought within the international order, which is defined pursuant to the universal claims for the good of humankind with respect to a

66 67

Turgis, Noemie. “What is Transitional Justice”, International Journal of Rule of Law, Transitional Justice and Human Rights 1 (2010), p. 12. 69 Arthur, Paige. “How „Transitions‟ Reshaped Human Rights: A Conceptual History of Transitional Justice”, Human Rights Quarterly 31, (2009), p. 331. 70 Özbudun, Ergun. “Demokrasi Sürecinde”, p. 111. 71 Arthur, Paige. “How Transitions”, p. 331. 68

Schwöbel, Christine EJ. “Situating the Debate”, p. 617. Kleinlein, “On Holism”, p. 1083.

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democracy‖.72 Nonetheless, a definition of transitional justice, relying on coming to terms with merely the former regimes, may be misguided in some cases. For example, regarding transfer of power in Africa between 1940-1960, it was suggested that breaking with the past should concern dealing with the colonial past, which had a different context from the usual usage of the term transitional justice.73 The Aspen Institute Conference, which was the milestone for debates on transitional justice, was conducted ―to discuss the moral, political and jurisprudential issues that arise when a government that has engaged in gross violations of human rights is succeeded by a regime more inclined to respect those rights‖74 in 1988. The leading topics in the conference were ―whether there was an obligation under international law to punish violators of human rights; whether there was a minimal obligation of states to establish the truth about past violations; whether ‗discretion and prudence‘ should play a role in making decisions about justice measures; and how specifically to deal with human rights abuses by military authorities‖75 During the discussions within this conference, it was broadly agreed that customary international law did not have any instrument to punish people who violated human rights and so, at the outset, there was not any strong legal basis for transitional justice debates.76 However, in the meanwhile, transitional processes in the societies in question were to be so influential in creating new legal instruments at the international level by reason of the facts explained below. ―…‗transitions‘ have mattered to human rights for two reasons: first, human rights practice had to adapt itself to new practical challenges; and second, that political change, understood as a

‗transition to democracy‘ had important effects for the kinds of justice claims that were considered legitimate.‖77 Even though a concrete definition of transitional justice could not be given yet, the main areas that are involved in transitional justice are defined today: prosecutions, truth-telling, reconciliation, reparations, and institutional reforms.78 On the other hand, indications of a global constitutionalisation process can be seen in several aspects of the recent developments in international law in terms of a view based on ―global governance‖. These include the emergence of peremptory norms in international law, changes in law-making in the international legal order, changing the binding effects of treaties, the emergence of ―World Order Treaties‖ which embody universal values and have already been adopted mainly in the areas of human rights, law of sea, international criminal law, environmental law and international trade law, and independent international judicial bodies, along with the changes in the concept of statehood and the rising importance of non-state actors in the lawmaking process.79 In this context, the main question of this article can be asked again in different words: Where is the transitional justice to be situated among all those? On that point, emphasising several points in positive law, such as the peremptory norms, may surely be useful to indicate the basic grounds of global constitutionalist views. Jus cogens was defined by Article 53 of the 1969 Vienna Convention on the Law of Treaties: ―…a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international

72

Falk, Richard. “Trends Toward Transnational Justice”, p. 3. Arthur, Paige. “How Transitions”, p. 342. 74 Henkin, Alice H. Conference Report, in State Crimes, Justice and Society Programme of The Aspen Institute ed., (1989), quoted by Ibid., p. 352. 75 Ibid., p. 352. 76 Ibid., p. 352.

77

73

78

Ibid., p. 357. Boraine, Alex. “Transitional Justice as an Emerging Field”, presentation paper of “Repairing the Past: Reparations and Transitions to Democracy” symposium, Ottawa, Canada, (2004), p. 2. 79Peters, Anne. “Global Constitutionalism”, p. 542-43, Preuß, “Equality of States”, p. 145.

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law having the same character‖. Article 103 of the UN Charter which, includes a jus cogens rule, should be considered superior to other norms: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.‖ This article, like the first and second articles of the Charter, sets the supremacy of the UN Charter over other international treaties and thus can be considered a substantive constitutional provision.80 In this respect, the International Court of Justice found the Security Council decisions superior to Montreal Treaty in the Lockerbie case, on the grounds that, ―…in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention‖81. As conceded by many authors throughout the world, it is already evident that there is an inclination to give shape to international law by international organisations and by the courts and, legal provisions with substantive constitutional characters have been sought to achieve that. Besides the ICJ, international criminal tribunals, such as the International Criminal Tribunals of Yugoslavia and Rwanda also, in their trials, referred to international law beyond their constructive instruments.82 For example, in the Tadic case, the ICTY argued power of Security Council under the ―treaty which serves as a constitutional framework‖ for it and thus finds it subject to ―certain constitutional limitations‖. While concluding the claims of the appellant as the, ICTY was not duly established as it was founded by a

Security Council Resolution instead of a treaty of states and amendment of UN Charter.83 Human rights is considered one of the norms of jus cogens. The existence of an intrinsic relationship between human rights and jus cogens is accepted by a broad range of scholars and people concerned.84 The main norms which are of jus cogens status, like prohibition of genocide, torture, slavery, and racial discrimination are also human rights norms.85 Jus cogens can be seen as an opus of international legal scholars and judicial bodies beginning in the 1990‘s. 86 For instance, The Court of First Instance of the EU found itself ―empowered to check, indirectly, the lawfulness of the resolutions of the SC in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible‖. In the Kadi and Yusuf cases the court used jus cogens norms in a constitutional manner and thereby proved the existence of jus cogens norms within an international public legal order.87 On the other hand, implementation of jus cogens norms, to the extent that customary international law rules were incompatible with the human rights norms under the European Convention of Human Rights, would be invalid in the case law of the European Court of Human Rights.88 International protection of human rights expanded the natural boundaries of international law in the end, but it still does not mean that ICTY IT-94-1-AR72 Prosecutor v. Dusko Tadic a/k/a “Dule”, 2.10.1995, para. 28. 84 Bianchi, Andrea. “Human Rights and the Magic of Jus Cogens”, European Journal of International Law 31 (2009), p.491. 85 De Wet, “The International Constitutional Order” p. 59. 86 Bianchi, Andrea. “Human Rights”, p. 493. 87 Case T – 306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Judgment of the CFI, 21 Sept. 2005; Case T – 315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Judgment of the CFI, 21 Sept. 2005, ibid p. 498. 88 De Wet, Erika. “The International Constitutional Order”, p. 59. 83

Göçer, Mahmut. “Uluslararası Hukuk”, p. 2. “Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie” (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, para. 42. 82 Koskenniemi, Martti. “Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalisation”, Theoretical Inquiries in Law 8 (2007), p. 20. 80 81

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such a situation is already satisfactory, as state discretion is the most important determinant for participation in relevant treaties.89 Jus cogens, which means ―compelling law‖, ranks as the highest among the other norms and principles and therefore jus cogens norms are considered peremptory and non-derogable.90 In international law literature these crimes are deemed to be jus cogens crimes: ―aggression, genocide, crimes against humanity, war crimes, piracy, slavery and slave-related practices, and torture‖. 91 The reason that these crimes affect the interests of the international community is that they are considered threats against humanity. The legal basis to make them jus cogens consists of international pronouncements, or opinio iuris. The ratification of treaties concerning these crimes by large number of states and ad hoc international investigations and prosecutions regarding these crimes bestows upon them a higher rank in international law.92 Three more considerations are suggested by Bassiouni: first, ―…the more legal instruments that exist to evidence the condemnation and prohibition of a particular crime, the better founded the proposition that the crime has risen to the level of jus cogens. The second consideration is the number of states that have incorporated the given proscription in their national laws. The third consideration is the number of international and national prosecutions for the given crime and how they have been characterised.‖93 Finally he states that inherent jurisdiction of a permanent international criminal court over these crimes makes them part of jus cogens and also makes obligations of prosecution and

extradition regarding these crimes erga omnes.94 Such a categorisation of crimes was substantially an outcome of the transitional justice process of twentieth century as can be seen explicitly in the analysis of Bassiouni on the ground that national and ad hoc courts at issue have been the major subjects of transitional processes. Above all, ―…the characterisation of certain crimes as jus cogens places upon states the obligation erga omnes not to grant impunity to the violators of such crimes‖.95 Although this is a very important development in the international legal order in terms of the effects of transitional justice on international law, one point remains questionable: What if this new development conflicts with the classical rule of immunity for the head of the state? State sovereignty and equality, as governed under Article 2(7) of the UN Charter, shaped traditional international relations for the long term. In parallel with this, the Head of the State Doctrine had evolved as defining the head of the state as the absolute authority of the state and immune from any prosecution under international jurisdiction.96 However, in both post-war eras of the twentieth century, exceptions to this international principle were raised. Prosecution of Kaiser Wilhelm II pursuant to the Versailles Treaty of 1919, and the removal of head of state immunity in the 1945 International Military Tribunal Charter and in the International Military Tribunal for the Far East Charter, were other exceptions to the principle in the twentieth century.97 The outcome of these experiences regarding international immunities has been the customary international law principle of ―international immunities do not apply to international criminal prosecutions for

Simma, Bruno and Philip Alston. “The Sources of Human Rights Law: Custom, Jus Cogens and General Principles”, Australian Yearbook of International Law 12 (1992), p. 107. 90 Bassiouni, M. Cherif. “The Need for International Accountability”, in, International Criminal Law: International Enforcement, Bassiouni, M. Cherif. Vol. 3, 3rd Edition (Leiden: Martinus Nijhoff Publishers, 2008), p. 14. 91 Ibid., p. 14. 92 Ibid., p. 15. 93 Ibid., p. 16. 89

Ibid., p. 19. Ibid., p. 13. 96 Hirsh-Allen, Jake. “Bashir‟s Immunity: Arguments in Support of the Prosecution of an Incumbent Head of a Non-State Party by The International Criminal Court”, 15 December 2008, available at http://jake.contemporaryfuture.com/docs/transystemicLaw/Bashi rsImmunity.pdf, accessed on 12.09.2011 , p. 2. 97 Ibid., p. 3. 94 95

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immunity of Milosevic was argued, the Court first and above all put forward the customary international law feature of Article 7(2). In order to underpin that, the Court stated ―[t]he history of this rule can be traced to the development of the doctrine of individual criminal responsibility after the Second World War, when it was incorporated in Article 7 of the Nuremberg Charter and Article 6 of the Tokyo Tribunal Charter. The customary character of the rule is further supported by its incorporation in a wide number of other instruments, as well as case law. As for instruments, the following may be mentioned: Article IV of the Convention for the Prevention and the Punishment of the Crime of Genocide; Principle III of the Nuremberg Principles; Article 6 of the Statute of the International Criminal Tribunal for Rwanda; Article 6, paragraph 2, of the Statute of the Special Court for Sierra Leone; and Article 7 of the Draft Code of Crimes against the Peace and Security of Mankind‖.104 The Court afterwards referred to the Rome Statute of the ICC, which currently, in Article 27, lifts all kind of immunities for the heads of the states and International the Law Commission‘s Draft Code of Crimes against Peace and Security of Mankind and a paragraph from the Nuremberg Judgment, which stated ―[t]he principle of international law, which under circumstances, protects the representative of a State, cannot be applied to acts which are condemned as criminal by international law…‖.105 A similar argument was held about the immunity of Charles Taylor during his trial in the Special Court for Sierra Leone, which rejected such claims pursuant to Article 6(2) of the Statute of the Court which mirrored Article 27 of Rome Statute and Article 7 of ICTY and ICTR

certain international crimes‖98 including war crimes and crimes against humanity, which were to be re-expressed in several international documents, such as ―1945 Control Council Law No. 10, 1948 Genocide Convention, Nuremberg Principle adopted by the General Assembly in 1950 and the Statutes of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR)‖.99 As a result of transitional justice, Rome Statute of International Criminal Court has brought a decline to traditional state sovereignty and head of state immunity by the Article 27.100 In this way, the Rome Statute obstructs the functional immunity or ratione materiae, which stems from performing state activities, in the first paragraph of the article and personal immunity in the second paragraph.101 It is also important to note that all international tribunals in their statutes included provisions, which removed official immunities and thus ensured a step against impunity. In addition, almost all of these tribunals prosecuted former presidents of the states in question, such as Slobodan Milosevic, the former Serbian president, Charles Taylor, the former Liberian president, and Jean Kambanda, former Rwandan president.102 For instance, Article 7(2) of the Statute of the ICTY states that, ―[t]he official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment‖. The most important case where this provision was applied was certainly in Milosevic‘s trial.103 In the part of the trial where the Bassiouni, M. Cherif. Introduction to International Criminal Law, Ardsley, (NY: Transnational Publishers, 2003), quoted by ibid., p. 3. 99 Ibid., p. 3. 100 Ibid., p. 2. 101 Ibid., p. 8. 102 Ibid., p. 8. 103 In this respect, transfer of Slobodan Milosevic to the ICTY is a considerable development in international law, as it reflects the desire of the international community for implementation of emerging international criminal law and also for cooperation 98

against impunity, Aksar, Yusuf. “The Transfer of Slobodan Milosevic to the International Criminal Tribunal for the Former Yugoslavia (The ICTY) and the Turning Point in International Humanitarian Law”, Ankara Üniversitesi Hukuk Fakültesi Dergisi 51 (2002), p. 32. 104 ICTY, Prosecutor v. Milosevic, No. IT-99-37-PT (Nov. 8, 2001), para. 28-30. 105 Ibid., para. 31-32.

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Statutes.106 Today, considering the implementation of law in international criminal tribunals, it can be easily asserted that impunity which stems from the Head of the State Immunity Principle has been overturned by those tribunals.107 Thus, perhaps one of the biggest contributions of transitional justice to the global constitutionalisation process can be read in the words of Lord Millet, which were stated in the House of Lords regarding Pinochet‘s immunity and also referred to by the ICTY in the trial of Milosevic.

and as yet an unclear situation.112 It currently falls within the emergent field of international criminal justice.113 On the other hand, the transitional justice process creates (or must create) a special form of justice that envisages preventing the retaliation of victim groups and stability in the aftermath of ethnic conflicts in post-war regions in accordance with the basic goal of the international community, which is international peace and security.114 In this respect, the basis of international criminal law comes into prominence as it is of a different content from national criminal laws. What makes it different from ordinary criminal law is the geopolitical considerations in international law. The Security Council pursuant to the Chapter VII of the UN Charter created the ICTY and the ICTR to repair collective peace and security through its own initiative, although it did not have any capacity to unilaterally establish any criminal judicial body to judge individuals.115 Such a distinctive situation also exists in case of the International Criminal Court. In Article 13 of the Rome Statute, it is stated that, ―…[t]he Court may exercise its jurisdiction…if…a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the United Nations‖ and thus the Statute enables the Security Council to exercise its authority governed under Chapter VII. At this point it is asked whether the ICC must commence the investigation on the grounds that the referral comes from the Security Council in accordance with the Chapter VII of the UN Charter. In such a case it has also been questioned whether the ICC might turn into an organ of the United Nations as a ―security court‖ and that might mean

―In future those who commit atrocities against civilian populations must expect to be called to account if fundamental human rights are to be properly protected. In this context, the exalted rank of the accused can afford no defence.‖108 What makes international prosecutions mandatory can be explained as the only way to hold leaders and senior officials who may not easily reached within the borders of municipal laws.109 Considering the current consciousness level of humanity and developments in international law, it is suggested that the impunity of international crimes should be seen as a betrayal of humankind against the victims of these crimes.110 At this point, it is stated that ius cogens norms generate an ―international value system‖ associated with erga omnes norms, which are applicable to the all units in a legal community.111 From the point of such a value system, the term ―justice‖ can be held as the greatest of moral values as it stands for a universal and normative aim, whereas the term ―transitional‖ evokes a particular moment

Hirsh-Allen, Jake. “Bashir‟s Immunity” p. 9. Ibid., p. 9. 108 ICTY, Prosecutor v. Milosevic, para. 33. 109 Bassiouni, M. Cherif. “The Need for International Accountability”, p. 21. 110 Ibid., p. 27. 111 De Wet, Erika. “The International Constitutional Order”, p. 62. 106

Ohlin, Jens David. “On the Very Idea of Transitional Justice”, The Whitehead Journal of Diplomacy and International Relations 8 (2007), p. 51. 113 Ibid., p. 51. 114 Ibid.. p. 57. 115 Ibid., p. 61.

107

112

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the capture of criminal law by the international legal order in order to achieve its goals called transnational peace and collective security.116 On the other side, it may be considered a requirement to give the Security Council such an authority to make binding referrals in cases of genocide and war crimes.117 Even though the ICC is bound by the universal principles of criminal law as implemented in domestic courts, apart from the domestic laws, it deals with ―extraordinary‖ crimes, like genocide, war crimes, crimes against humanity, and aggression which have been defined on quite different bases than ordinary crimes as they are inherently collective crimes. Finally, that brings the fact that the ―the ICC is jurisdictionally defined by transitional justice as special justice‖.118

of international humanitarian law‖. The ICC Statute which includes a similar provision in Article 86 also governs the rule of ―surrender of persons to the Court‖ under Article 89 and states that, ―…[t]he Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender‖. Thus, the Rome Statute has brought a vertical mechanism between states and the court and also been defined as ―the most authoritative international humanitarian law instrument.‖123 Transitional justice also brought rapid growth of international humanitarian law, as it is asserted that developments in international humanitarian law have been faster since mass killings began in the former Yugoslavia than in the era of the Nuremberg Trials and the 1949 Geneva Conventions for the Protection of Victims of War.124 INSTEAD OF A CONCLUSION Indications of global constitutionalisation may be found within the developments of the international legal order concerning human rights, world trade issues, the creation of international judicial bodies, the situation of international organisations and international lawmaking. Transitional justice, the instrument for transitions to liberal democracies, appears in parallel direction with global constitutionalisation. In this context, it has brought the universalisation of settlement of accounts with the past throughout the world and led to the emergence of a cosmopolitan memory of humankind.125

The establishment of the ICTY and ICTR was rather innovative considering the usual operation of the Security Council 119 and, the ICC was established as the successor of these courts, which were ad hoc.120 As a result of the conflicts, which brought the idea for establishment of these courts, the source of legitimacy for international criminal courts is the need to restore the post-conflict societies.121 By implementation of the ad hoc ICTY and ICTR courts, instead of extradition law which is applied between two sovereign states, the new term, ―surrender or transfer‖ of suspicious people, appeared. In that case, the states are not bilaterally responsible against each other as they are under extradition law, but they are all bound by the international authority in a vertical relationship.122 For instance Article 29 of the ICTY Statute confirms this situation: ―States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations Ibid., p. 62. Ibid., p. 62. 118 Ibid., p. 63. 119 Aksar, Yusuf. “The Transfer of Slobodan Milosevic”, p. 20. 120 Ohlin, Jens David. “On the Very Idea”, p. 62. 121 Ibid., p. 64. 122 Aksar, Yusuf. “The Transfer of Slobodan Milosevic”, p. 31. 116

Ibid., p. 32. Meron, T. "War Crimes Law Comes of Age", in Theodor Meron, War Crimes Law Comes of Age, Essays, Oxford: Clarendon Press, (1998), p. 297, quoted by ibid, p.20. 125 Sancar, Mithat. Geçmişle Hesaplaşma, 3rd Edition, (Istanbul: İletişim Yay., 2010), p. 82.

117

123 124

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constitutionalism. The questions held in this article may also be asked from the point of constitutionalism‘s contributions to transitional justice. In such a case, it is rightly suggested that global constitutionalist views may be used to reveal the failures of international institutions in governance, as in the Bosnian case.129

On the other hand, the idea of an ―international moral‖ should also be dealt with. Considering influences of suits by the victims, who suffered from crimes against humanity and all debates and developments in this field, it has been asserted that ―a new international morality‖ emerged.126 This morality is underpinned by the willingness of corporations and states to make restitution for the mistakes of the past, which was defined as ―new globalism‖ by Barkan.127 Even though this idea may be easily challenged by another idea like the stance of superpowers against international law obstructing development of the rule of law between states, it is still possible to find several facts in international relations that form a basis for international morality. Since, it is obvious that international law is one of the greatest instruments against global problems, and today it can be explicitly stated that the nation state is incapable of solving problems regarding coming to terms with former regimes as well as many other problems raised in the globalisation era, ―As a consequence, states and public opinion, for functional reasons of effectiveness and psychological reasons of legitimacy, are more inclined to regard global institutional solutions as necessary, and even desirable.‖128 Transitional justice experiences throughout the world brought new dimensions to international life. Those experiences gave birth to uniform implementation on a larger scale. It enabled a high degree of integration of states and regimes and has become a base for the production of normative effects in international law. Thus, it deserves to be considered a constitutional dynamic of the international legal order. Such a consideration will certainly contribute to grasping matters of global ibid, p. 84. Falk, Richard. “Trends Toward Transnational Justice”, p. 23. 128 Falk, Richard A. “The Pathways of Global Constitutonalism”, in The Constitutional Foundations of World Peace, (State University of New York Press, 1993), p. 27. 126 127

129

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Peters, Anne.“Global Constitutionalism”, p. 549.


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hdr.undp.org/en/reports/global/hdr2002/papers/Falk_2002.pdf last visit 29.08.2011 Kleinlein, Thomas. ―On Holism, Pluralism, and Democracy: Approaches to Constitutionalism beyond the State‖, The European Journal of International Law 21 (2011), pp. 1075-1084 Preuß, Ulrich K. ―Equality of States – Its Meaning in a Constitutionalised Global Order‖, Chicago Journal of International Law 9 (2008-2009), pp. 17-49 Aksar, Yusuf. ―The Transfer of Slobodan Milosevic to the International Criminal Tribunal for the Former Yugoslavia (The ICTY) and the Turning Point in International Humanitarian Law‖, Ankara Üniversitesi Hukuk Fakültesi Dergisi 51 (2002), pp. 1933

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CONSOCIATIONAL DEMOCRACY IN POST-CONFLICT SOCIETIES By Miloš Bogičević*

ABSTRACT This paper explores the consociational principle of organising a society which can result in strong centrifugal tendencies and, in some cases, eventually lead to the dissolution of a country. Further this paper will argue that this model is not a desirable design for divided societies as it is likely to facilitate divisions in a society and therefore can be detrimental to post-conflict reconstruction and peace-building efforts. This paper will compare models where consociationalism has been applied in Bosnia and Herzegovina, Northern Ireland, and Macedonia in order to make a case that consociationalism is not a desirable model in divides societies.

* Miloń Bogičević holds advanced degrees in both law and political science. After graduating from the Faculty of Law, University of Novi Sad Serbia he graduated from University College London (UCL) with a Masters in Human Rights. During his work in the Office of Human Rights Ombudsman of Vojvodina, Serbia he investigated human rights abuse cases and represented the office in several international conferences. As a campaigner with the Balkans Team of Amnesty International he was involved in a campaign to end forced evictions in Serbia through, amongst other things, the introduction of legislation putting an end to the practice. In addition, his work focused on the recognition of the rights of the LGBT community and war crimes victims within the region. His professional interests include human rights, international law and conflict resolution.

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making. All (or the most important) groups in the society are included in the decision-making procedures. Countries usually identified as consociational are the Netherlands, Belgium, Switzerland Error! Reference source not found., and, more recently, Macedonia, Northern Ireland, and Bosnia and Herzegovina Error! Reference source not found.. All of the abovementioned countries have all the features of consociational democracy130. However, an evident disparity between those two groups of countries is that in the latter consociational democracy has been applied as a solution (or a part of the solution) following an armed conflict. The model of consociational democracy was formulated by Arend Lijphart131. In his view, the most important characteristics of the model are: 1. a grand coalition of political leaders of important groups in the society, 2. a mutual veto power to protect the minority interests, 3. proportionality in political representation and appointments, and 4. autonomy of segments in internal affairs Error! Reference source not found.. The premise of the consociational democracy is that elites will cooperate in order to counter centrifugal tendencies by accommodating political conflicts through compromise or amicable agreement Error! Reference source not found.. In a divided society institutional engineering can strongly influence the existence of social cleavages. Institutions shape social interactions and the way in which they have been set up influences the dynamics in the society. In a society that is divided along ethnic or religious cleavages designing institutions in order to secure the high level of power sharing is essential. However, democratic power sharing can take many forms, such as coalition governments, guaranteed representation, different forms of electoral

INTRODUCTION In this paper I will argue that the consociational principle of organising a society can result in strong centrifugal tendencies and, in some cases, eventually lead to the dissolution of a country. I will argue that this model is not a desirable design for divided societies as it is likely to facilitate divisions in a society and therefore can be detrimental to postconflict reconstruction and peace-building efforts. I will do this by first giving an account of consociationalism as a principle of organising societies and, second, by arguing that when applied to post-conflict societies in practice it fosters divisions in a society, and even endangers the existence of the state. I will provide arguments and examples that support this assertion by comparing the way consociationalism has been applied in Bosnia and Herzegovina, Northern Ireland, and Macedonia. I will then consider possible responses to my argument and, finally, conclude that the consociational model is not a desirable way of organising divided societies, especially those that are post-conflict. I will take a consociational principle of organising a government to be a government where elites cooperate in order to turn a fragmented political structure into a stable democracy Error! Reference source not found.. In societies where social cooperation does not exist on the mass level, but where elites work in partnership in order to prevent social cleavages from destabilising democracy, consociationalism offers the way for the social segmentation and democracy to coexist Error! Reference source not found.. In many divided societies, and especially post-conflict societies, divisions are so severe that there is very little mobility between social segments. Political competition in these societies would only bolster centrifugal trends, as there is very little crosscutting. If applied, standard models of democratic competition would threaten the very existence of the political system. Consociational democracy is an alternative to majoritarian decision-

With the exception of Macedonia, where autonomy does not exist as a territorial or personal principle. However, remodelling of the constitution increased municipal autonomies. Even though the Ohrid agreement introduced some elements of consociationalism, institutional design in Macedonia does not possess all the main elements of the model, such as a grand coalition, mutual veto, etc. 131 The term consociational is derived from Latin consociatio – a close, firm link. 130

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systems, federalism, various forms of autonomy, etc. Advocates of the consociational model assert that a society can be democratic and have stable political institutions in spite of social fragmentation Error! Reference source not found.. In order to achieve that political stability, societies need to be organised in a way that would provide strong incentives for political leaders to cooperate with their adversaries across the cleavage. The ways in which institutions are designed in such a society has an important role in accomplishing that goal.

not found.. However, elite behaviour in consociational societies does not necessarily follow that premise. In a divided society, leaders of opposing groups have strong incentives to use extremist rhetoric to gain more popular support Error! Reference source not found.. National and religious identities often have symbolic and emotional meaning and political leaders can appeal to them to mobilise their constituency to gain more political power. By doing this, they facilitate the division in the society and boost pre-existing centrifugal processes. Therefore, political systems in divided societies should be designed in a way that would counterbalance those tendencies, promote more cross-cultural cooperation, and shift from sectarian to more inclusive political discourses Error! Reference source not found.. Another criticism of Lijphart‘s model of consociationalism is that the Dutch society (which he used as a model for consociationalism) was never that deeply divided and that religious and class cleavages were actually crosscutting Error! Reference source not found.. In societies that are organised based on the consociational principle, few incentives exist for cross-cultural cooperation. Political leaders in such a society typically represent only one ethnic or national community rather than the interests of the community as a whole Error! Reference source not found.. In many cases, behaviour of political leaders is such that they use the consociational design of institutions to promote secessionism. This is particularly the case for countries where consociationalism is combined with ethnofederalism – the political system where territorial units are intentionally associated with specific ethnicities132 Error! Reference source not found.. For example, the prime minister of Republika Srpska, one of the entities in Bosnia and Herzegovina, is using every available opportunity to question the viability of the state Error!

CRITICISM OF CONSOCIATIONAL MODELS There are several critiques that can be made of this model. Firstly, it seems to suffer from some theoretical inconsistencies. Some critics of Lijphart‘s model of consociational democracy point out that it confuses the solution with the problem and therefore does not represent a theory at all Error! Reference source not found.. According to Lijphart, consociational democracy is defined by a grand coalition (cooperation) and a divided society Error! Reference source not found.. This definition has been criticised as tautological as it does not represent a theory of a cause and effect but a descriptive category Error! Reference source not found.. In addition, it is not clear what the exact role of the crosscutting cleavages is in Lijphart‘s model. He mentions them as favourable conditions for consociational democracy, which seems to be in contrast with the essence of consociationalism. Where cleavages crosscut to a high degree, different groups will tend to feel equal and cross pressure between groups advances moderate attitudes Error! Reference source not found.. Given that there is only a little crosscutting in divided societies, consociational democracy relies almost entirely on elite cooperation (―elite cartel‖ in Lijphart‘s terminology). The premise is that elites are committed to maintaining the system and are aware of the risks of fragmentation Error! Reference source

However, it is argued that these states are viable as long as they do not have a core ethnic region – an ethnic region that has superiority in population. 132

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Reference source not found. and openly suggesting secession of the entity Error! Reference source not found.. The behaviour of group leaders is not independent from institutional design. It has been argued that the way institutions have been set up by the Belfast agreement133 entrenches and encourages divisions in Northern Ireland, and that peacemaking and normalisation efforts by NGOs are thwarted by the sectarian consociational institutions Error! Reference source not found.. Critics point out that power sharing in Northern Ireland fortifies divisions and divides that society into rigid and lasting ethnic blocks which produces permanent instability Error! Reference source not found.. In some cases, even communicating with the other side can be seen as weakness or being disloyal to a community. Therefore, these leaders often mutually avoid each other, creating even more division between them, as they do not explore the possibilities for mutual collaboration. This then leads to a self-fulfilling prophecy of consociationalism. Division and conflict creates more instability and weakening of the state and leaders then use that weakness of the state as an excuse to ask for more segmental autonomy. For example it has been argued that political elites in Bosnia and Herzegovina constantly encourage insecurity, low-level conflict and instability in order to remain in power (Mujkić, 2010, p.69). In addition, consociational democracy clashes with some democratic principles and is, therefore, not democratic enough. By emphasising the representation of groups it hinders individual equality. A design that is group-oriented has the consequence of forcing people to participate in society as a representative of a group, rather than an individual. In a consociational society, its members often have the group identity imposed on them even against their desire. The existence of these identities is often made into a legal requirement. For example, in Bosnia and Herzegovina, a person can run for the office as a member of the Bosniak, 133

Serbian or Croat people. This leaves no space for those who do not wish to identify at all, or to identify exclusively as a member of one of these groups, or those who are not a member of any of the three (e.g. Roma), which effectively excludes those individuals from participating in political life134. In Belgium, where a consociational-federal model has been applied, the three major political parties have all been divided into separate unilingual parties where each party has candidates only in their part of the state. This is even the case for parties whose primary ideology is not, or is not expected to be, ethnically or linguistically determined (Greens, Socialists). There are no parties in Belgium that appeal to votes across the ethno-linguistic cleavage Error! Reference source not found.. Another negative aspect of the consociational principle is that it negates or underestimates other identities people have. It places great weight on an identity that is the most important cause of the division in the society, such as ethnic or religious identity but neglects the variety of other identities, which are present in every person. A person may consider that their identity as a worker, woman, taxpayer, etc. is more important than their ethnic or religious identity. The consociational model fails to provide space for people to associate on the basis of these other identities. By failing to recognise this and by leaving little space for individual autonomy, consociational societies perpetuate existing cleavages by institutionalising them at the political level Error! Reference source not found.. A significant number of people in Bosnia and Herzegovina did not perceive themselves as solely a member of Bosniak, Serb, or Croat ethnicity before the war. The applicants are citizens of Bosnia and Herzegovina who claimed that according to the constitutions they could not be candidates for the Presidency and the House of Peoples of the Parliamentary Assembly since these position are reserved for members of Bosniaks, Serbs and Croats (Sejdić and Finci are Roma and Jewish). The court decided that the applicants‟ continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina breached Article 14 taken in conjunction with Article 3 of Protocol No. 1 of the European Convention for the Protection of Human Rights. (European Court of Human Rights; Sejdić and Finci v. Bosnia and Herzegovina, 2009.) 134

The agreement that created the Northern Ireland Assembly.

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According to the census that took place in 1991 around 260,.000 people, representing over 5 per cent of the population declared themselves as Yugoslavs, which was not an ethnic category Error! Reference source not found.. However, after the end of the war and the signing of the Dayton Peace Agreement (DPA), these identities became so important that they now form the foundation of the political order in the country. This ethnic polarisation cannot only be attributed to the consociational design of the post-war Bosnia and Herzegovina Error! Reference source not found.. The mere fact that the war had been waged between members of different ethnic and religious groups and in the name of ethnicity and religion contributed vastly to this ethnic entrenchment. Constituencies in post-conflict societies are, as a rule, more likely to vote for a political party with strong nationalistic agenda than a moderate one that seeks compromise with former enemies Error! Reference source not found.. In the 15 years of existence of post-Dayton Bosnia and Herzegovina, several developments in political life became apparent. In all of the elections held so far, ethnic political parties won vast majorities of votes. In the most recent elections (2010), political parties who are not associated with any particular ethnicity won a meagre 1-2 percent of votes135. Another important feature of consociational democracies, segmental autonomy, has its drawbacks too. Consociationalism can strengthen segmental cleavages, and, in cases of ethno-federalism, it can create parallel state structures, which in turn can struggle for independence. Advocates of the consociational approaches, however, argue that this approach deals with cleavages by treating them seriously Error! Reference source not found.. By recognising divisions, this approach aims to turn segmental cleavages into

constructive building blocks of democracy Error! Reference source not found.. Consociationalism can even create conditions that mitigate tensions so that cleavages lose their importance136. In many societies, especially in post-conflict ones, people do not wish to participate in political life only as individuals; they actually want to be represented as a member of a group. In many cases people take part in a violent conflict so that their groups would be recognised as separate entities. Those who see themselves as belonging to distinctive groups believe that these groups have collective interests that need to be protected. In addition, many of them believe that their individual interests can only be protected and advanced through the collective to which they belong. When answering the criticism about segmental autonomy as an incentive for partition of the state, Lijphart argues that this does not represent a serious risk and that the same objection could be raised regarding other elements of the model Error! Reference source not found.. However, this argument is problematic because pointing to potential flaws of other components of the model is not a valid defence of the principle. Lijphart offers a more convincing response to the threat of secession: If there were a strong separatist movement in a country, imposition of a unitary state would not be enough to prevent it. Moreover, partition is not always a bad solution. However, when segments are geographically mixed this poses serious problems and can lead to relocation of people and other undesirable consequences. ALTERNATIVES TO CONSOCIATIONALISM If not consociational autonomy/federalism, what would be the desirable model for organising institutions in divided societies? A model that has consociational elements but does not represent ethno-federalism and leaves space for crosscutting

Results are available at the website of the Central Election Commission of Bosnia and Herzegovina http://www.izbori.ba/eng/default.asp (last accessed 05 August 2011.) 135

Advocates of consociationalism argue that this was the case in the Netherlands and Austria. 136

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cooperation could be a good solution. A design that protects the interests of different communities but preserves the civic nature of the state can be found in the Ohrid Agreement137 in Macedonia. It did not create a federal state or introduce a full consociational model of decisionmaking. However, it did end the ethnicbased violence and addressed many of the grievances of both Albanian and Macedonian communities by granting the official status for languages spoken by more than 20 percent of the population and by establishing equitable representation in the administration and a system of double majorities for changes in most important areas of legislation Error! Reference source not found.. Lijphart recognised the danger of a minority veto and the possibility that it could lead to a minority tyranny, but considered this danger not to be as serious at it appears. In his view, the fact that a veto is mutual would counterbalance this danger because the fear of deadlock would make each segment give concessions. In addition, the very fact that the veto is available would grant a feeling of security and therefore the veto would not be used often Error! Reference source not found.. However, this is not always the case. In post-conflict societies, one or more segments in a country is often not equally committed to maintaining the functioning of the country and avoiding the deadlock. Stability in Bosnia and Herzegovina depends, to a large extent, on international military and political pressure, rather than on power-sharing mechanisms Error! Reference source not found.. An example of this is the power of mutual veto that is reserved for representatives of Bosniak, Serb, and Croat people. These veto powers authorize the leaders of these groups to block the enactment of legislation that they deem to endanger the interests of their ethnic groups Error! Reference source not found.. In the first few years after the

signing of the Dayton Peace Agreement, veto powers were used very often to block the functioning of the joint institutions. In order to overcome this situation, the international community provided the High Representative with the power to enact and enforce laws otherwise blocked by ethnic leaders. Most integrationist legislation was introduced by the Office of the High Representative138, often with strong opposition from leaders in the country Error! Reference source not found.. Similarly, it has been argued that stability in Northern Ireland depends greatly on external pressure and that consociational arrangements are not sufficient Error! Reference source not found.. What are the possible alternatives to consociationalism that would maintain participation of all social segments thus avoiding shortcomings of a majoritarian system but at the same time promote individual participation and counter centrifugal tendencies? As it was previously mentioned, people possess more than one identity and belong to more than just one group, even though one or a few of those can be of a greater significance to them. A system that provides a space for other identities to advance as well would mitigate the limitations of consociationalism and create more crosscutting cooperation. In this case, instead of insisting on certain predefined groups (ethnic, religious, linguistic etc.), which are the pillars of the consociational model, other identities could be empowered which would change not just the balance but also the discourse in these societies. CONCLUSION I have shown that consociational democracy has significant shortcomings as a model and that it is not a desirable The Office of the High Representative was set up by Annex 10 of the Dayton Peace Agreement with the mandate to monitor the implementation of the Peace Agreement. One of the key tasks of the OHR is to ensure that the institutions in BiH function effectively. In order to accomplish that, the High Representative has the mandate to remove from office public officials who violate legal commitments and the Dayton Peace Agreement, and to impose laws as he sees fit if Bosnia and Herzegovina‟s legislative bodies fail to do so. 138

An agreement between Macedonian and Albanian political parties signed under the auspices of international mediators in 2001 that ended the ethnic violence in Macedonia. 137

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solution for institutional design in postconflict societies. This does not mean that the model is not valuable and has no practical application. There are examples of societies where employment of consociational democracy mitigated social cleavages or where it provides stable democracy. However, when applied in a society that has recently experienced a violent internal ethnic conflict, it can create more division and potentially lead to the dissolution of the country. Ethnic leaders in those countries are often former political and military warlords who have little incentive to cooperate in order to prevent further dissolution of the society. In these cases, external factors such as the international community have to take responsibility to pressure actors in divided societies to maintain the functioning of consociational democracies, which represents an imposed solution that is not in line with the model.

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BIBILIOGRAPHY

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Andeweg, R. B. (2000). Consociational Democracy. Annual Review of Political Science, 3(1), 509-536. doi: 10.1146/annurev.polisci.3.1.509. Bieber, F. (2005). Partial Implementation, Partial Success: The Case of Macedonia. Power Sharing New Challenges for Divided Societies (pp. 107122). Pluto. Retrieved from http://kar.kent.ac.uk/8333/. Bolte, P. (2007). Consociational Democracy in Multiethnic Societies (p. 64). Norderstedt, Germany: GRIN Verlag. Retrieved February 25, 2011, from http://books.google.com/books?id=jiYTD4xldlcC&pgis=1. Clancy, M.-alice C. (2010). Peace Without Consensus: Power Sharing Politics in Northern Ireland (p. 236). Surrey, UK: Ashgate Publishing, Ltd. Retrieved from http://books.google.com/books?id=4FRZ7tTHPR0C. Cousens, E. M., & Cater, C. K. (2001). Toward Peace in Bosnia: Implementing the Dayton Accords. Lynne Rienner. Deschouwer, K. (2005). The Unintended Consequences of Consociational Federalism: The Case of Belgium. In I. OʼFlynn & D. Russell (Eds.), Power Sharing New Challenges for Divided Societies (pp. 92-93). London: Pluto Press. Hale, H. E. (2010). Institutional STAND Sources of Ethnofederal State Survival and Collapse. World Politics, 56(2), 165-193. Lijphart, A. (1969). Consociational Democracy. World Politics, 21(2), 207225. Retrieved from http://www.jstor.org/stable/2009820. Lijphart, A. (1977). Democracy in Plural Societies (p. 248). London: Yale University Press. Mcmahon, P. C., & Western, J. (2009). The Death of Dayton The Death of Dayton How to Stop Bosnia From Falling Apart. Foreign Affairs, 88(5). Morrow, D. (2005). Breaking Antagonism? Political Leadership in Divided Societies. In I. OʼFlynn & D. Russell (Eds.), Power Sharing New Challenges for Divided Societies (pp. 45-58). Pluto Press. Mujkić, A. (2010). Pravda i etnofederalizam, Centar za ljudska prava Univerziteta u Sarajevu Oberschall, A., & Palmer, L. K. (2005). The Failure of Moderate Politics: The Case of Northern Ireland. In I. OʼFlynn & D. Russell (Eds.), Power Sharing New Challenges for Divided Societies (pp. 77-91). London: Pluto Press. OʼFlynn, I., & Russell, D. (2005). Introduction: New Challenges for Power Sharing. In I. OʼFlynn & D. Russell (Eds.), Power Sharing New Challenges for Divided Societies (pp. 1-11). London: Pluto Press. Reilly, B. (2001). Democracy in Divided Societies: Electoral Engineering for Conflict Management. Book. Cambridge University Press. Retrieved from http://site.ebrary.com/lib/umich/docDetail.action?docID=5008034. Tonge, J. (2006). Northern Ireland (p. 271). Cambridge, UK: Polity Press. Retrieved from http://books.google.com/books?id=gdTESzY_v3EC. Traynor, I. (2009, May). The US is talking tough in the Balkans, and the Europeans donʼt like it. Retrieved February 14, 2011, from http://www.guardian.co.uk/world/2009/may/21/bosnia-and-herzegovinaeu.

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Trbovich, A. S. (2008). A legal geography of Yugoslaviaʼs disintegration (p. 544). Oxford Univ Press. Retrieved from http://books.google.com/books?id=V9qbAAAAMAAJ. Zahar, M.-J. (2005). The Dichotomy of International Mediation and Leader Intransigence: The Case of Bosnia and Herzegovina. In I. OʼFlynn & D. Russell (Eds.), Power Sharing New Challenges for Divided Societies (pp. 123138). Pluto Press.

Court decisions:  Sejdic and Finci v. Bosnia and Herzegovina, Application nos. 27996/06 and 34836/06, Council of Europe: European Court of Human Rights, 22 December 2009, available at: http://www.unhcr.org/refworld/docid/4b44a28a2.html [accessed 26 February 2011].

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THE STRUCTURAL LIMITATIONS OF THE EU TO ENGAGE IN TRANSITIONAL JUSTICE By Osiris Hoepel*

ABSTRACT The European Union undertakes several transitional justice activities. Most specifically, three areas of activities can be identified: conducting peace-keeping missions, supporting the ICTY in providing justice and funding transitional justice activities. Despite these activities, the EU lacks a comprehensive transitional justice policy, which has detrimental effects on the outcome of these activities. Four recommendations are presented that may reverse these effects.

* Osiris Hoepel holds Master‘s degrees both in International Law and Political Science. During his studies, he focused his research on human rights, conflict resolution and transitional justice. He has worked as an intern for the United Nations International Criminal Tribunal for the former Yugoslavia (The Hague, The Netherlands), and as a project assistant for the Human Rights Institute of South Africa (Johannesburg, South Africa). Osiris is currently working for the Hague Academy for Local Governance, where he assists in developing training courses for people involved in local governance. Page 51


illustrates, the two concepts are actually intertwined, for peace can be achieved through justice. Without justice, there can be no peace. Considering that promoting peace and justice is one of the main objectives of the EU, one would expect that it would follow a comprehensive transitional justice policy. Nevertheless, despite the fact that the EU undertakes several transitional justice activities, it lacks such a comprehensive policy. The aim of this paper is to illustrate the negative effects of the absence of a clear policy, and to make several recommendations that could improve the chances of the EU in providing peace and justice.

INTRODUCTION Peace will not come out of a clash of arms but out of justice lived and done by unarmed nations in the face of odds (Mohandas Gandhi) 139 Peace is often considered a simple and clear concept. Nevertheless, its true meaning and substance is actually very complex and the achievement of this paramount goal involves the arduous task of dealing with many actors and a labyrinth of dilemmas. It is pursued by individuals, by states, by organisations and, considering that it is vested in its founding treaties, it is one of the main objectives pursued by the European Union (EU). Re-establishing the peace in a society that is damaged and shattered by a history of massive human rights violations involves the implementation of transitional justice mechanisms that can address these violations and perhaps even prevent the demons of the past from haunting the peaceful progress of the future. Transitional justice mechanisms can be divided into two groups: retributive justice mechanisms and restorative justice mechanisms. The mechanisms of the former group consist of judicial mechanisms, such as tribunals, with the backward-looking goal of holding perpetrators accountable for their crimes. The mechanisms of the latter group consist of non-judicial mechanisms, such as truth commissions, with the forwardlooking goal of providing restorative justice, peace and reconciliation.140 Both forms of transitional justice mechanisms come with their own set of dilemmas, and these raise the question whether justice or peace should be the main objective in a society in need of transitional justice mechanisms. Nevertheless, as the introductory quote by Mohandas Gandhi

The following chapter, Chapter II, discusses the practices the EU undertook with regard to transitional justice, and argues that the EU lacks a clear transitional justice policy. Chapters III, IV and V explore this matter more in depth, clarifying that despite the absence of a clear strategy, the EU has undertaken a set of transitional justice activities. Three specific areas of activities are identified: conducting peace-keeping missions, supporting the ICTY in providing justice, and funding transitional justice activities. Chapter III discusses to what extent transitional justice strategies are taken into account during the planning and executing of peace-keeping missions. Chapter IV discusses EU‘s policy to support the ICTY in providing justice. Chapter V examines EU‘s approach towards funding transitional justice activities. Chapter VI draws several analytical conclusions from chapters III, IV and V, and presents four recommendations that could improve the chances of the EU in providing peace and justice. THE EUROPEAN UNION, LACKING A CLEAR TRANSITIONAL JUSTTICE POLICY The EU has undertaken activities involving transitional justice, but lacks a clear transitional justice policy. The foundational treaties of the EU contain no references to transitional justice as an

139 The Institute for Energy and Environmental Research (2001). http://www.ieer.org/latest/oct2quot.html. (18-11-2011). 140 E.E. Stenrud. “New Dilemmas in Transitional Justice: Lessons from the Mixed Courts in Sierra Leone and Cambodia”, Journal of Peace Research, 146 (2009), pp. 5-15.

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aspect to be developed within the different policies of the EU.141 Nevertheless, the treaties contain several articles that provide a legal framework in which the concept of transitional justice can be situated. Here are three examples:

democracy and human rights146. The foreign policy of the EU shows three lines of actions with regard to transitional justice; conducting peace-keeping missions, applying the ICTY conditionality and funding transitional justice activities.

Article 177.2 of the Maastricht Treaty specifies that European policy in the area of development cooperation shall ―contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms‖.142

PEACE-KEEPING MISSIONS The peace-keeping missions have been carried out within the framework of the European Security and Defence Policy (ESDP), and are aimed at supporting the creation of democratic police forces with the purpose of re-establishing peace and stability.147 In earlier days, these missions had the tendency to prioritise public order over the establishment of the rule of law, but justice gradually gained more attention amongst the EU leaders.148 Although lacking clear transitional justice strategies, these missions have implemented several transitional justice mechanisms, particularly with regard to arresting suspects who are to be prosecuted by international courts.149

Article 11.1 of the Treaty is the legal basis for the Common Foreign and Security Policy (CFSP), and states that its objectives are the safeguarding of common values, preserving the peace, developing and consolidating democracy and the rule of law, and respecting human rights and fundamental freedoms.143 Article 17.2 of the Treaty describes the content of the CFSP and states that this includes ―humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peace-making‖. This article is relevant, considering that transitional justice is applied to states in crisis or in a process of re-establishing peace.144

The implementation of transitional justice mechanisms without the express recognition of transitional justice has made it difficult to obtain optimum results in efforts to achieve peace and stability 150. Both the missions EUPOL PROXIMA and EUPAT in the Republic of Macedonia in the former Yugoslavia, carried out between 2004 and 2006, can serve as examples. These missions had ―the aim to monitor and assess the functioning of the Macedonian police force in the context of rule of law at the level of the Ministry of Internal Affairs and at the level of district police‖.151 Their mandate did not mention the implementation of transitional justice

Furthermore, a general action framework was established, in which the concept of transitional justice would presumably be further developed in its policies towards third countries, such as the CFSP and the development policies.145 In regulation 1889/2006 of the European Parliament, transitional justice is explicitly mentioned as an aspect of the promotion of

146 Regulation (EC) No 1889/2006 of the European Parliament and of the Council, Official Journal of the European Union, L386 (2006), art. 2.1a iii. 147 Petersberg Declaration (1992). http://www.weu.int/documents/920619peten.pdf. (18-11-2011). 148 M. Avello, “European Efforts in Transitional Justice”, FRIDE (2008), p. 6. 149 Avello, “Transitional Justice: a European Perspective”, p. 4. 150 Avello, “European Efforts in Transitional Justice”, p. 6. 151 Avello, “European Efforts in Transitional Justice”, p. 6.

141 M. Avello, “Transitional Justice: a European Perspective”, FRIDE, (2007), p. 3. 142 Consolidated version of the Treaty of the European Union, Official Journal of the European Union, C 321 (2006), art. 177.2. 143 Ibid., art. 11.1. 144 Ibid., art. 17.2. 145 Avello, “Transitional Justice: a European Perspective”, p. 3.

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mechanisms on the ground. The same applied to the EUJUST THEMIS mission in Georgia, that was aimed specifically at the rule of law, the EULEX KOSOVO mission aimed at assisting the Kosovo institutions in their progress towards sustainability and accountability152, and the EUJUST LEX mission in Iraq, aimed at addressing ―the urgent needs in the Iraqi criminal justice system through providing training for high and mid-level officials in senior management and criminal investigation‖.153 While these missions have not expressly included aspects of transitional justice making it difficult to obtain optimum results in efforts to achieve peace and stability in practice, they have provided advice and support for transitional justice strategies.154

a fundamental element in the planning of the missions, and it requires the tailoring of transitional justice mechanisms. In order to do this effectively, ―the EU must generate its own transitional justice expertise; train its personnel in the area of transitional justice to support future crisis management operations; develop guidelines for ESDP missions consistent with UN standards in the area of transitional justice; and integrate transitional justice concerns in the mandates of EU Special Representatives‖.157 ICTY CONDITIONALITY The Stabilisation and Association Process (SAP) for South East Europe of 1999 contains a set of criteria for EU accession. It includes, ―inter alia, full cooperation with the ICTY, respect for human and minority rights, the creation of real opportunities for the return of refugees and internally displaced persons, and a visible commitment to regional cooperation‖.158 Specifically the ICTY conditionality has been working as a carrot and stick approach towards third countries. The EU has adopted the strategy to make the start of negotiations conditional on full cooperation with the ICTY. Nevertheless, despite the fact that ICTY conditionality should be a part of EU‘s strategy to bring forth transitional justice, the EU has placed too much focus on this element, neglecting to adopt a broader strategy that would include other necessary elements of transitional justice, such as truth-seeking and reparations. A broader strategy including various forms of transitional justice mechanisms may induce a more effective result. Prosecuting war criminals in The Hague is a fundamental component to provide justice and reconciliation, but it still remains only a component, and not a substitute for transitional justice. Nonetheless, the role of the ICTY should not be underestimated. The tribunal has not only served as an instrument to bring justice, but the trials

The ESDP is supported by a mixture of structures for civilian crisis management.155 One of the structures is the Political and Security Committee (PSC), a permanent body within the EU. During a 2006 seminar, the Committee explicitly addressed the importance of transitional justice in the context of EU‘s crisis management and peace-building activities. The draft document that emerged from this seminar included the recommendation to cover transitional justice activities in the planning of ESDP missions, including criminal prosecution, truth commissions, reparation programmes and vetting.156 In the planning of ESDP missions, emphasis would have to be placed on the exit strategy and the continuing (peaceful) situation on the ground after completion of the mission. Providing peace should be

152 Council Join Action 2008/124/CFSP, Official Journal of the European Union (2008). 153 Council Joint Action 2005/190/CFSP, Official Journal of the European Union, L 62 (2005), art. 2.1. 154 Avello, “European Efforts in Transitional Justice”, p. 6. 155 K.A. Crossley-Frolick, “The European Union and Transitional Justice: Human Rights and Post-Conflict Reconciliation in Europe and Beyond”, Paper prepared for the Eleventh Biennial International Conference, European Union Studies Association (2009), p. 16. 156 Draft document on “Transitional Justice and ESDP”, in view of the PSC meeting on 20 June 2006. 10674/06 (2006).

157 Ibid., p. 4. 158 I. Rangelov, “EU Conditionality and Transitional Justice in the Former Yugoslavia”, CYELP 2 (2006), p. 366.

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have also brought much of the truth about the wars to the surface. The tribunal‘s role in bringing forth reconciliation can thus not be denied, but it should be acknowledged that for reconciliation to ever occur, merely a judicial intervention is a too limited form of transitional justice to bring forth the desired effect.

Union, and treating Serbia as a ‗special case‖160. The same would apply to the case of Croatia. In 2003, Croatia applied for full EU membership, and the country was considered to join Bulgaria and Romania in the next wave of enlargement, scheduled for 2007. However, in 2004, the EU decided that it would initiate accession negotiations on the condition that Ante Gotovina, the last remaining Croatian ICTY indictee, would be arrested and send to The Hague for prosecution. This clearly indicated that the EU was determined to apply strict ICTY conditionality for third states and, from that moment, the role of Chief Prosecutor Carla Del Ponte would increase in the EU accession processes, as her assessment would be essential in determining a state‘s level of compliance. Once it became clear that the Prosecutor was playing an essential role in the accession process to the EU, the cooperation of the states with the ICTY improved. Nevertheless, governments continued to delay the most sensitive aspects of cooperation, particularly the arrest of high-ranking fugitives and delivering important files.161 Furthermore, EU leaders strengthened their ties with the Prosecutor in order to anticipate her assessments or even influence them. It quickly appeared that EU Member States utilised the ICTY conditionality as a policy tool for political purposes rather than to press for justice. When the Prosecutor‘s assessment could serve their goals, the EU leaders would utilise it as a political tool for pressure on states. When the Prosecutor‘s assessment would not serve their goals, the leaders would either ignore the assessment or interpret it as they desired.162 Without the full support of the EU leaders, the Prosecutor lost some of her credibility, and so did the tribunal. After two years of a higher level of state cooperation with the ICTY, the states started to show reluctance and resistance towards the Tribunal again. The stance of EU Member States diverted from the one of the Prosecutor. ―Full cooperation with

The prospect of having stronger ties with the EU was the main factor ensuring the cooperation of the states established on the territory of former Yugoslavia with the ICTY. Former Chief Prosecutor of the ICTY, Carla del Ponte, stated that, ―90% of all indictees brought to justice [before the ICTY] are a direct result of conditionality applied by the EU‖.159 Without the ICTY conditionality and the international pressure, the reluctance of the states would not have been overcome, and the ICTY would have been unable to fulfil its mandate. In the earlier days of the ICTY, full cooperation was demanded by the EU. Nevertheless, after continued resistance by the states, and with the EU making dilemmatic political decisions, the demand for full cooperation started to become diluted. EU leaders did not show a consistent commitment to apply strict conditionality, as other goals were sometimes prioritised. An illustrative example is the case of Serbia, that continuously failed to fully cooperate with the ICTY. The EU responded by compromising and softening the requirements. It gradually became more apparent that it was not only Serbia who would benefit from closer ties with the EU. Serbia‘s accession was in the interest of the EU as well, as it was hoping to anchor the state more firmly on the European path. This ambiguous approach to the resistance of Serbia was detrimental to the credibility of the EU. ―Since Kosovo independence in February 2008, the EU has come closer than ever to forgetting that impunity for war crimes and genocide is incompatible with the values of the 159 F. Hartmann, “The ICTY and EU Conditionality”, War Crimes, Conditionality and EU Integration in the Western Balkans, (2009), p. 69.

160 161 162

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Ibid., p. 70. Ibid., p. 72. Ibid., p. 72.


the ICTY started being redefined as ‗leading to‘ the arrest of the remaining fugitives, including Mladic and Karadzic – a significantly lower threshold for evaluating Serbia‘s cooperation with tribunal‖.163 Their deviation from the Prosecutor‘s approach to only accept full cooperation had both negative moral and practical implications.

no longer be maintained in light of imminent independence of Kosovo, she altered her previously critical assessment on Serbia‘s cooperation with the ICTY, after a visit to Belgrade where she pressed Prime Minister Kostunica to deliver Mladic to The Hague before the end of the year. Her altered assessment after the visit still criticised Serbia for its minimalistic efforts to capture remaining fugitives, but also praised the state for the progress it had made166. The EU leaders considered this ambiguous assessment as a sufficient justification to provide no objection to offering the prospect of EU membership to a state that, according to a ruling of the International Court of Justice, was in violation of the Genocide Convention due to its failure to deliver Mladic.167

Firstly, the main reason why the EU leaders departed from the principle of full cooperation with the ICTY was not because they believed that full cooperation was unnecessary. The reason was that they wanted to stabilise the region and that the Balkan States would follow the EU‘s path.164 Their political agenda became paramount, instead of the main purpose of the ICTY, namely providing justice. The Tribunal became rather a political instrument, instead of an instrument against injustice in the battle against impunity. The Prosecutor herself even participated in the political game, which can be demonstrated by assessment of the Prosecutor‘s reports that are submitted to the UN Security Council twice a year. These assessments illustrate the political struggle that Carla del Ponte was facing, being the Prosecutor of a ―giant without arms and legs‖ that needs the cooperation of states in order to do its work. In her May 2007 assessment, the Prosecutor heavily criticised the cooperation and commitment of Serbia, and clearly urged the EU to utilise its leverage on Serbia, stating that it was ―the sole effective mechanism compelling Serbia to meet its international 165 obligations‖ . The assessment patently criticised Serbia for its lack of ―true political will‖, for taking no concrete measure or action in seeking the arrest of Radovan Karadzic, and for providing very limited cooperation. Nevertheless, her stance would change that same year. When in October 2007, the Prosecutor feared that EU‘s pressure on Serbia would

Secondly, from a practical perspective, we can see that departing from the full ICTY conditionality weakened the leverage of the EU on the third states for two reasons. Firstly, it divided the EU Member States, with some states still urging for full cooperation and other states accepting lower standards. The lack of consensus amongst the Member States made it more difficult to take a strong stance in foreign policy, and diminished their leverage on the third states. Secondly, the continued offers of compromises took away their credibility to take a strong stance. States in the region opted for resistance and took advantage of the cracks the ICTY conditionality started to show. The repeated compromises weakened the leverage the EU had on the Balkan States. THE FUNDING OF TRANSITIONAL JUSTICE ACTIVITIES In 2006, the EU established the successor of the European Initiative, the European Instrument for Democracy and Human Rights (EIDHR). The EIDHR is ―the concrete expression of the EU's intention to integrate the promotion of democracy and human rights into all of its external

163 Ibid.: 75. 164 Ibid.:74. 165 ICTY Completion Strategy Report of 16 May 2007, UN Doc. S/2007/283 (2007).

166 ICTY Completion Strategy Report of 12 November 2007, UN Doc. S/2007/663 (2007). 167 Hartmann, “The ICTY and EU Conditionality”, p. 76.

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mechanisms for the legal settlement of human rights claims and the assertion and adjudication of property rights, established in accordance with international human rights and rule of law standards‖.175 As a successor programme to the Rapid Reaction Mechanism, the IfS was initiated in 2007 and recognises the link between peacebuilding, conflict prevention and crisis management. During crises, the IfS provides economic and technical support to partner countries, and during normal circumstances, the IfS concentrates on cooperation and capacity building in two areas: ―To address global and transregional threats that can unleash another wave of instability; and to improve state and non-state actors‘ preparedness to address preand post-crisis situations‖.176 In January 2008, transitional justice supporters and promoters achieved a triumph, when the Commission decided to establish a funding facility of €12 million under the IfS framework for ad-hoc tribunals and transitional justice initiatives ―to encourage reconciliation and help build sustainable peace in post crisis situations‖.177 The funding facility enables the Commission to rapidly mobilise resources to provide financial or technical assistance for transitional justice projects. The IfS has supported numerous transitional justice projects and mechanisms, including the ICC, special tribunals and grassroots movement aimed at ending impunity.178 In 2007, the Instrument launched the Peace-Building Partnership, aimed at supporting NGOs in ―developing early-warning systems, providing mediation services and

policies‖168. ―Its aim is to provide support for the promotion of democracy and human rights in non-EU countries‖.169 The Strategy Paper for 2007-2010 of the EIDHR included five main objectives related to the promotion of democracy and human rights, and mentions the importance of transitional justice. Objective 2 calls for ―strengthening the role of civil society in promoting human rights and democratic reform, in facilitating the peaceful conciliation of group interests and in consolidating political participation and representation‖.170 The objective continues, articulating that, ―transitional justice and reconciliation is recognised as helping build consensus on disputed or controversial areas of policy in deeply divided societies‖.171 In a separate section of the strategy paper, the issue of children in armed conflict is discussed, and a clear link is drawn between disarmament, demobilisation and reintegration (DDR) programmes and transitional justice frameworks, such as promoting redress and social integration.172 For the period 2007-2013 the EIDHR has a budget of €1.104 billion173, of which €208 million has been allocated for projects under Objective 2.174 Another critical EU funding programme that supports transitional justice is the Instrument for Stability (IfS), which aims to provide technical and financial assistance for ―international criminal tribunals and ad-hoc national tribunals, truth and reconciliation commissions, and 168 The European Commission (2011a). http://ec.europa.eu/europeaid/what/human-rights/index_en.htm. (18-11-2011). 169 The European Commission (2011b). http://ec.europa.eu/europeaid/how/finance/eidhr_en.htm. (1811-2011). 170 European Instrument for Democracy and Human Rights (EIDHR), Strategy Paper 2007-2010, DG Relex/B/1 JVK 70618 (2006), p. 8. 171 Ibid. 172 Ibid. 173 The European Commission (2011b). http://ec.europa.eu/europeaid/how/finance/eidhr_en.htm. (1811-2011). 174 European Instrument for Democracy and Human Rights (EIDHR), Strategy Paper 2007-2010, p. 13.

175 Regulation (EC) No 1717/2006 of the European Parliament and of the Council, Official Journal of the European Union (2006), art. 3.2d. 176 Crossley-Frolick, “The European Union and Transitional Justice: Human Rights and Post-Conflict Reconciliation in Europe and Beyond”, 14. 177 Press release RAPID, “European Commission Supports Additional Assistance for Reconciliation of Societies Affected by Human Rights Abuses”, IP/08/1057, (2008). 178 Crossley-Frolick, “The European Union and Transitional Justice: Human Rights and Post-Conflict Reconciliation in Europe and Beyond”, p. 25.

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spearheading reconciliation processes in post-conflict situations‖179.

the necessary steps to implement transitional justice strategies as an integral mechanism within the peacekeeping missions. The absence of express recognition for transitional justice has made it difficult to obtain optimum results in efforts to achieve peace and stability. This brings forth the first recommendation.

The EU takes two different stances towards retributive justice and restorative justice. With regard to retributive justice, the EU applies the ICTY conditionality and funds projects, whereas with restorative justice, the EU merely funds projects. The EU has funded several programmes with the purpose of supporting restorative justice. The funding facility of €12 million under the IfS framework is for both retributive and restorative justice projects. The EU has taken an active stance towards retributive justice, taking initiative for the implementation of judicial mechanisms, whereas it has taken a passive stance towards restorative justice activities. The EU‘s approach to transitional justice is far more focussed on retributive justice, with the exclusion of restorative justice, despite the fact that both forms of transitional justice mechanisms are necessary to achieve peace and stability.

Recommendation 1: The European Union needs to make transitional justice strategies as a pivotal integral mechanism during the planning and execution of peace-keeping missions. The tailoring of transitional justice to each specific case is necessary to provide peace and stability. The EU is utilising the ICTY conditionality as leverage to place influence on third countries. Nevertheless, despite the fact that ICTY conditionality could be a part of EU‘s strategy to bring forth transitional justice, the EU has placed too much focus on this element. There is broad consensus that in order for transitional justice to achieve the desired effect, a combination of several transitional justice mechanisms that complement each other is necessary. The EU has neglected to adopt such a broader strategy that would include other necessary elements of transitional justice, such as truth-seeking and reparations. This brings forth the second recommendation.

CONCLUSION The European Union is an important actor in the field of human rights and transitional justice. Although there is no clear policy on transitional justice, and even though the foundational treaties contain no reference to the concept, the treaties do encompass several articles that provide a legal framework in which the concept of transitional justice could be situated. More specifically, the foreign policy of the EU shows three lines of actions with regard to transitional justice: peace-keeping missions, ICTY conditionality and the funding of transitional justice projects.

Recommendation 2: The European Union needs to adopt a broader foreign strategy including various forms of transitional justice mechanisms to induce a more effective result in achieving peace and stability. The ICTY conditionality played a fundamental role in ensuring the cooperation of states with the ICTY. Without it, the ICTY would not have been able to fulfil its mandate. After continued resistance by the Balkan states, the EU‘s strong position on full cooperation with the ICTY began to weaken. EU leaders did not show a consistent commitment to apply strict conditionality, as other goals were sometimes prioritised. Averting from

In earlier days, the focus in peace-keeping missions was placed on establishing public order but this gradually shifted towards establishing the rule of law. Despite the fact that the establishment of the rule of law can be a pivotal element in establishing peace and implementing transitional justice, the EU did not take 179

Ibid., p. 15.

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the previous strong stance had both negative moral and practical implications. Firstly, it became clear that the EU‘s political agenda became paramount, instead of the main purpose of the ICTY, namely providing justice. Secondly, departing from the full ICTY conditionality weakened the leverage of the EU on the third states. This brings forth the third recommendation. Recommendation 3: The European Union should, at all times, hold a strong position on demanding full cooperation with the proper judicial transitional justice mechanisms. This includes the ICTY but should, especially for future purposes, include the ICC as well. The EU has taken two separate stances towards retributive justice and restorative justice. With regard to retributive justice, the EU applies the ICTY conditionality and funds projects, whereas in the case of restorative justice, the EU only funds projects. The EU‘s approach to transitional justice is far more focussed on retributive justice, with the exclusion of restorative justice, despite the fact that forms of transitional justice mechanisms are necessary to achieve peace and stability. This brings forth the fourth and final recommendation. Recommendation 4: The European Union should concentrate equally on implementing forms of both restorative justice and retributive justice.

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BIBLIOGRAPHY     

        

Avello, M. ―Transitional Justice: a European Perspective‖, FRIDE (2007). Avello, M. ―European Efforts in Transitional Justice‖, FRIDE (2008). Consolidated version of the Treaty of the European Union, Official Journal of the European Union, C 321 (2006), pp. 1-331. Council Joint Action 2005/190/CFSP, Official Journal of the European Union, L 62 (2005), pp. 37-41. Crossley-Frolick, K. A., ―The European Union and Transitional Justice: Human Rights and Post-Conflict Reconciliation in Europe and Beyond‖, Paper Prepared for the Eleventh Biennial International Conference, European Union Studies Association (2009), pp. 1-35. Draft document on ―Transitional Justice and ESDP‖, in View of the PSC Meeting on 20 June 2006. 10674/06 (2006), pp. 1-6. European Instrument for Democracy and Human Rights (EIDHR), Strategy Paper 2007-2010, DG Relex/B/1 JVK 70618 (2006), pp. 1-19. Hartmann, F. ―The ICTY and EU Conditionality‖, War Crimes, Conditionality and EU Integration in the Western Balkans (2009), pp. 67-82. Petersberg Declaration (1992). http://www.weu.int/documents/920619peten.pdf. (18-11-2011). Press release RAPID, ―European Commission Supports Additional Assistance for Reconciliation of Societies Affected by Human Rights Abuses‖, IP/08/1057, (2008). Rangelov, I. ―EU Conditionality and Transitional Justice in the Former Yugoslavia‖, CYELP 2 (2006), pp. 365-375. Regulation (EC) No 1889/2006 of the European Parliament and of the Council, Official Journal of the European Union, L386 (2006), pp. 1-11. Regulation (EC) No 1717/2006 of the European Parliament and of the Council, Official Journal of the European Union, L327 (2006), pp. 1-11. Stenrud, E.E. ―New Dilemmas in Transitional Justice: Lessons from the Mixed Courts in Sierra Leone and Cambodia‖, Journal of Peace Research, 146 (2009), pp. 515.

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(2011b). (18-11-


TRANSITIONAL JUSTICE AND THE COUNCIL OF EUROPE – A SPECIAL EMPHASIS ON THE SEJDIC AND FINCI CASE By Adela Kabrtova* ABSTRACT The aim of this essay is to show the importance of the Council of Europe (CoE) and its mechanisms during transitional justice processes in European countries. The CoE can provide a broad measure of what might be called transitional justice assistance to build up a new democratic order, encompassing rule of law, democracy and human rights standards. There will be a special emphasis on Bosnia and Herzegovina (BiH), specifically on one case that appeared before the European Court of Human Rights – Sejdic and Finci v. Bosnia and Herzegovina180. In this case it will be shown how different mechanisms of the CoE, the Venice Commission, the Committee of Ministers and primarily the European Convention on Human Rights181 (Convention) and its ―watchdog‖, the European Court of Human Rights (ECHR) can identify violations of human rights and can actively set up standards of human rights, rule of law and democracy.

* Adela Kabrtova is enrolled in the master‘s programme at Charles University in Prague, Faculty of Law. Her research interests include certain questions of Human Rights, Public International Law and EU Law. E mail:[email protected]

180 181

Sejdic and Finci v. Bosnia and Herzegovina, Application nos. 27996/06 and 34836/06, Decision of 22 December 2009, ECHR. European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5, 213 UNTS 222.

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INTRODUCTION The Statute of the Council of Europe182 (Statute) was adopted in London in 1949 in the aftermath of the Second World War. Its raison d‘être was to promote broad cooperation between its member states and to prevent the atrocities of the previous wars. As it stands in the Statute's preamble, the signatory countries are: “Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy”. In Article 1a Chapter I of the Statute the purpose of the organisation is defined: “The aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.” That shows that the CoE is an international organisation, which promotes in its member states commonly shared values, which are human rights, rule of law and democracy. What does this organisation have in common with transitional justice? Transitional justice is a broad term183, which is not easy to define. Transitional justice helps post-war or post-authoritative regimes, which massively violated human rights to shift to a democratic society with a rule of law and human rights standards. The concepts of transitional justice can be seen from different perspectives – legal, economic, political, social or cultural. In any case, the country‘s policies on how to achieve transitional justice have to be judicialised in order to bring to an end violence and consolidate peace. I will concentrate on the legal perspective of transitional justice, as I think it is the cornerstone and the platform for other methods. That is 182 5 May 1949, ETS No. 001. 183 See: Turgis, N., “What is Transitional Justice?” International Journal of Rule of Law, Transitional Justice and Human Rights, Vol. 1, December 2010, p. 11-17.

why the conception of transitional justice from the International Centre for Transitional Justice will be used in this essay. This conception was inspired by a 1988 decision of the Inter-American Court of Human Rights in the case of Velásquez Rodríguez v. Honduras. The court decided that it is necessary for transitional countries: 1. To take reasonable steps to prevent human rights violations; 2. To conduct a serious investigation of violations when they occur; 3. To impose suitable sanctions on those responsible for the violations; 4. To ensure reparation for the victims of the violations. These four points can be translated into four more general methods of transitional justice: 1. To conduct constitutional and other reforms of the legal system; 2. To set up truth commissions; 3. To conduct criminal and other prosecutions; 4. To set up victim reparation programs. In this paper I will elaborate mainly on point one preventing human rights violations by conducting constitutional and other reforms of the legal system and partly on points three, sanctions, and four, reparations. These points are those where the CoE can contribute mostly to transitional justice. Despite the complexity, this means that transitional justice and the CoE want to achieve the same goals, establishing a system of democracy, human rights and rule of law. That is where they both intersect and that explains why the CoE can be a very useful tool for transitional justice. In this essay I will demonstrate how the CoE, its bodies and the ECHR can contribute to these methods of transitional justice ultimately leading to democracy, human rights and rule of law. CoE‘s mechanisms can especially prevent and stop human rights violations, impose suitable sanctions for those responsible


for the violations via the ECHR and ensure reparations for the victims of violations. This will be demonstrated on the Sejdic and Finci v. Bosnia and Herzegovina case. I chose this case, as BiH is a complex country from the human rights perspective. After the fall of Yugoslavia in 1990 and the armed conflict of 1992–1995 it started undergoing transitional justice processes. At that time, the country started to be in the focus of the CoE, later in 2002 becoming a member of the CoE, which implied numerous obligations.

to respect some basic principles and to be willing to collaborate with the CoE towards a common goal. This approach, that states become members of the CoE before accepting all the principles, is proven by the number of complaints at the ECHR for violations of the rights of the Convention. From the perspective of standard-setting, in my opinion, this approach proves to be more effective than pushing the states to fulfil all the criteria before applying for membership. The CoE works with such mechanisms, such as the ECHR, which prove to be effective tools to make the member states comply with its standards. The membership in the CoE itself doesn‘t ensure the fulfilment of our four transitional justice methods, but it guarantees the will to work towards fulfilling them.

MEMBERSHIP IN THE COUNCIL OF EUROPE The CoE had to and still has to deal with countries undergoing the process of transitional justice. Out of its fortyseven184 member states, more than a half went through a transition of regime after 1989. The membership in the CoE is voluntary. To become a member, conditions of Article 3 Chapter II of the Statute have to be fulfilled: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.” That means that to be invited to become a member of the CoE, the candidate states have to accept the principles of the CoE. It goes without saying that the member states have to ratify the European Convention on Human Rights, which enshrines a number of fundamental rights and freedoms. Furthermore, the member states have to collaborate to achieve the goals of the CoE, democracy, rule of law and human rights. The literal interpretation of this article suggests that the candidates who want to become members already have to accept the principles and they must ensure a certain level of standards. However when we look at reality, the CoE accepts states that have not yet reached the highest level of standards. It is enough

MECHANISMS OF THE COUNCIL OF EUROPE There are different mechanisms in the Council of Europe that can help transitional justice in its member states. I will concentrate on the Venice Commission, Committee of Ministers, European Convention on Human Rights and the European Court of Human Rights. I choose these four mechanisms because they can best demonstrate how the CoE could help transitional justice in Bosnia and Herzegovina and also the extent of this essay does not allow elaborating more on other mechanisms. THE EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) The Venice Commission is “the Council of Europe‟s advisory body on constitutional matters”.185 It was created in 1990 as the first aid assistance for constitutional matters in CoE‘s member countries. This partial agreement was then enlarged and non-members of the CoE can become members (e.g. Tunisia and Mexico in 2010). The Venice Commission is composed of experts on constitutional 185

184

http://www.venice.coe.int/site/main/Presentation_E. asp. 29 August 2011.

As of July 2011.

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matters. Its aim is to spread the core constitutional values of Europe, democracy, rule of law and human rights, while giving advice about constitutional matters.

Council of Europe‘s policy, programme of activities and the budget. Concerning the CoE‘s policy, the Committee adopts recommendations, declarations, decisions and international conventions. It is charged with the supervision of the execution of judgments of the ECHR in the sphere of both legislation and practice. This task is actually the most important challenge facing the protection of human rights in Europe. These instruments (except for conventions) are not binding, but they have a political impact. They can create political pressure on countries to behave in a certain way. Concerning the Sejdic and Finci v. Bosnia and Herzegovina case, the Committee of Ministers is applying constant pressure on BiH to bring its Constitution and certain electoral laws in compliance with the judgment. In March 2011 the Committee at its 1108th meeting adopted a decision where they ―noted with concern that no consensus has been reached among different political stakeholders to bring the country‘s Constitution and its electoral legislation in line with this judgment and the Convention‖.189

It also gives advise about electoral reforms and cooperates with constitutional courts, ombudsmen etc. It played a very important role in the transitional justice process in BiH. The Venice Commission has been closely following the political and legal developments in BiH since 1994. Since then, the Commission has drafted more than one hundred reports and opinions about the situation in BiH.186 Moreover, after Bosnia and Herzegovina became a member of the Council of Europe in 2002, BiH was, according to an opinion187 of the Parliamentary Assembly of the Council of Europe, obliged to ―review within one year, with the assistance of the European Commission for Democracy through Law (Venice Commission), the electoral legislation in the light of Council of Europe standards, and to revise it where necessary‖. BiH was urged to adopt a new non-discriminatory constitution before October 2010 when general elections took place; however, it succeeded in adopting only one amendment188 of the Constitution. Nonetheless, many opinions of the Venice Commission can serve in the future as a source for constitutional and other legislative reforms in BiH.

THE EUROPEAN CONVENTION ON HUMAN RIGHTS The first international convention signed by the member states in the CoE was the European Convention on Human Rights in 1950. Setting up human rights standards, which are a part of a democratic state, is one of the core objectives of transitional justice. The Convention, which summoned the most important civil and political human rights actors, contributed highly to identifying these standards. However, to have these rights on paper is not sustainable if there is no mechanism of supervision. The ECHR provides a means of remedy for victims that suffer from violations of human right that are protected by the Convention. The ECHR also opens a way for possible legislative or

THE COMMITTEE OF MINISTERS The Committee of Ministers is the CoE‘s decision-making body. It is made up of the ministers of foreign affairs of each member state but, most commonly, of their permanent diplomatic representatives in Strasbourg. The Committee of Ministers decides the 186 http://www.venice.coe.int/site/dynamics/N_Series_ef .asp?L=E&S=1. 29 August 2011. 187 See Opinion 234 (2002) of the Parliamentary Assembly of the Council of Europe of 22 January 2002, para. 15 (iv) (b)). 188 For more explanation on the failure of the reform see: Sebastian, S., Leaving Dayton Behind: Constitutional Reform in Bosnia-Herzegovina, available at www.fride.org/publication/291/leaving-dayton-behindconstitutional-reform-in-bosnia-and-herzegovina. 29 August 2011.

189 http://www.coe.int/t/dghl/monitoring/execution/Re ports/pendingCases_en.asp?CaseTitleOrNumber=sejdic&StateCo de=&SectionCode=.,14.7.2011.

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constitutional changes, sanctions to contracting parties and reparations for victims.

As mentioned earlier, the Inter-American Court of Human Rights in the case of Velásquez Rodríguez v. Honduras established a basic transitional justice approach. This approach was followed by the ECHR. That means that the judgment of the court aims at ensuring that compensation is paid to the victims of the violation. It can also reverse decisions of state courts, discontinue proceedings, make the state amend their legislation, alter judicial or administrative practice etc. The parties to a case must follow the judgments of the ECHR and take all necessary measures to comply with them.

THE EUROPEAN COURT OF HUMAN RIGHTS Based on Articles 19190 and 32.1191 of the Convention, the European Court of Human Rights was established. It oversees the engagements taken by the contracting parties and ensures a European supervision of human rights. Even though in early stages there were problems with ratifications192 and it was unclear as to whether individual petitions were viable, it is now a functioning body that deals with petitions either by member states or by individuals193 that claim a violation of human rights guaranteed by the Convention. The ECHR decides on the admissibility and merits of applications and, if necessary, undertakes investigation. The success of the ECHR is such that it is overwhelmed by the number of petitions, which resulted in adopting Protocol 14194 that was ratified by all member states on 1 June 2010, which reformed the ECHR. However the Protocol proved to be insufficient and the reform process is still ongoing in the discussions of the Committee of Ministers.

SEJDIC AND FINCI V. BOSNIA AND HERZEGOVINA In this present judgment we can see the combination of all mechanisms mentioned above (the Venice Commission, Committee of Ministers, European Convention on Human Rights and the European Court of Human Rights) engaged together to help a country undergoing transitional justice processes in pursuing the objectives of human rights, democracy and rule of law. The applications against Bosnia and Herzegovina by Mr. Dervo Sejdic and Mr. Jakob Finci, citizens of Bosnia and Herzegovina, were lodged with the European Court of Human Rights in July and August 2006 and the Grand Chamber decided in December 2009. The applicants complained that they were ineligible to stand for election to the House of Peoples and the Presidency of Bosnia and Herzegovina because of their Roma and Jewish origin respectively. They invoked Articles 3195 (prohibition of inhuman and degrading treatment), 13196 (right to an effective remedy) and 14197 (prohibition of

190 Article 19 – Establishment of the Court – To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as “the Court”. It shall function on a permanent basis. 191 Article 32 – Jurisdiction of the Court 1 – The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47. 192 http://conventions.coe.int/treaty/Commun/ChercheS ig.asp?NT=005&CM=&DF=&CL=ENG, 29 August 2011. 193 Article 33 – Inter-State Cases – Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party. Article 34 – Individual Applications – The Court may receive applications from any person, non governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. 194 http://conventions.coe.int/Treaty/EN/Treaties/Html /194.htm, 29 August 2011.

195 Article 3 – Prohibition of Torture – No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 196 Article 13 – Right to an Effective Remedy – Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. 197 Article 14 – Prohibition of Discrimination – The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex,

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discrimination) of the Convention and Article 3198 of Protocol No. 1 (right to free elections) and Article 1199 of Protocol No. 12 (general prohibition of discrimination)200 to the Convention. The Venice Commission was authorised to intervene as a third party in this case. For the purpose of this essay I will use just the main argumentation of the ECHR as it applies to both applications.

a process implementing mechanisms of transitional justice. The Constitution differentiated between the ―constituent peoples‖ and others (minorities and non-affiliated people). As the judgment remarks, there is no official/objective classification as to how people‘s ethnicity is determined. The selection is based on a self-classification. Based on their ethnicity, the people are elected to these state functions. These specific provisions were adopted because of the fragile after-war situation, which had the objective of restoring stability between these three ethnicities. But the other ethnic groups, such as Romas or Jews, were set aside. The peace-makers, while creating the Constitution, were aware of the possibility of a violation with the Convention, that is why Article II § 2 of the Constitution was inserted: ―The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.‖ This was however contested twice201 by the Constitutional Court of Bosnia and Herzegovina (Constitutional Court), but claimed inadmissible. The third and last case202 was brought before the Constitutional Court in 2006. The claim was refused on merits because the Court of BiH stated that the Constitution and Election Law could be still justified because its goal was to preserve peace in Bosnia and Herzegovina by strengthening the position of the three constituent peoples with the help of this exclusive power-sharing arrangement. The restrictions are still ―proportionate to the objectives of general community in terms of preservation of the established peace, continuation of dialogue, and consequently creation of conditions for amending the mentioned provisions of the

The applicants both held very prominent public positions in the country. Since they do not declare affiliations with any of the ―constituent peoples‖ (they consider themselves to be of Roma and Jewish origin respectively), according to Chapters IV and V of the Constitution of Bosnia and Herzegovina (the Constitution), they are ineligible to stand for election to the House of Peoples (the second chamber of the State parliament) and the Presidency (the collective Head of State). The Dayton Peace Agreement put an end to a bloody international armed conflict that took place between 1992-1995 in Bosnia and Herzegovina between Bosniacs, Serbs and Croats. The Constitution was an annex to the peace agreement, which means that it was not adopted by the BiH‘s Parliamentary Assembly, however, the Parliamentary Assembly was given the powers to amend this Constitution. After the Dayton Peace Agreement the country started to undergo

race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 198 Article 3 Protocol No. 1 – Right to Free Elections – The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions, which will ensure the free expression of the opinion of the people in the choice of the legislature. 199 Article 1 Protocol No. 12 – General Prohibition of Discrimination – 1 The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2 No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1. 200 The general clause of non-discrimination under national law of Protocol No. 12 had to be used as the Presidency of BiH does not fulfil the criteria of a legislative body thus does not fall in the scope of Art 3 Protocol No. 1 in conjunction with Art 14 of the Convention.

201 Decision of the Constitutional Court of BiH U 5/04, 27 January 2006 and U 13/05, 26 June 2006. 202 Decision of the Constitutional Court of BiH AP2678/06, 29 September 2006.

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Constitution of Bosnia and Herzegovina and Election Law.‖203

justified. In paragraph 47 of the judgment it argues that significant, positive changes have taken place in BiH since the Dayton agreement. BiH joined NATO‘s Partnership for Peace in 2006. In 2008 it signed and ratified the Stabilisation and Association Agreement with the European Union. In March 2009 it successfully amended the State Constitution for the first time, and it was recently been elected a member of the United Nations Security Council for a twoyear term beginning on 1 January 2010. The second argument used in paragraph 48 of the judgment was also used in the amicus curiae brief by the Venice Commission. In paragraph 48 the ECHR states: “In addition, while the Court agrees with the Government that there is no requirement under the Convention to abandon totally the power-sharing mechanisms peculiar to Bosnia and Herzegovina and that the time may still not be ripe for a political system which would be a simple reflection of majority rule, the Opinions of the Venice Commission (see paragraph 22 above) clearly demonstrate that there exist mechanisms of powersharing which do not automatically lead to the total exclusion of representatives of the other communities…'”205 The ECHR identified with many of the Venice Commission‘s opinions, showing that it doesn‘t want BiH to totally abandon its ethnic specificity rules and switch to majority rule. The ECHR only states that there are other non-discriminatory ways of power-sharing even in such a complex country as BiH. The Venice Commission, in its amicus curiae brief, has presented a number of arguments as to why the present provisions are not only discriminatory but prove to be inefficient and contra-productive for the country itself because it can never form a strong government. Moreover, the complexity of the Constitution is a tool for extremist parties to maintain the post-war status

The Constitutional Court of BiH claims that, even more than 10 years after the Dayton agreement, the circumstances did not change to such an extent that would provide for delegitimising the restrictions vested in the Constitution. This argument was also used by Bosnia and Herzegovina in the Sejdic and Finci case, arguing that the time is not yet ripe to adopt majorityrules changes. The Venice Commission expressed its opinion on the legitimacy on the Dayton agreement and BiH‘s Constitution: “In the present case, the distribution of posts in the State organs between the constituent peoples was a central element of the Dayton Agreement making peace in BiH possible. In such a context, it is difficult to deny legitimacy to norms that may be problematic from the point of view of non-discrimination but necessary to achieve peace and stability and to avoid further loss of human lives. The inclusion of such rules in the text of the Constitution at that time therefore does not deserve criticism, even though they run counter to the general thrust of the Constitution aiming at preventing discrimination.‖204 The Venice Commission admits that, at the time of Dayton agreement, such discriminatory provisions were justified. The question now is, however, are the discriminatory Constitution and electoral law provisions still objectively and reasonably justified after more than 10 years of peace? Are the special conditions of transition in the country still applicable? The ECHR uses three arguments as to why these discriminatory provisions are no longer objectively and reasonably 203 Ibid., p. 22. 204 Opinion adopted by the Venice Commission at its 62 nd plenary session (Venice, 11-12 March 2005) on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative CDL-AD(2005)004, paragraph 74. http://www.venice.coe.int/docs/2005/CDL-AD(2005)004-e.asp, 29 August 2011.

205 Opinion adopted by the Venice Commission at its 76 th Plenary Session (Venice, 17-18 October 2008) AMICUS CURIAE BRIEF in the Cases of Sejdić and Finci v. Bosnia and Herzegovina, no. 483/2008, CDL-AD(2008)027, (Applications no. 27996/06 and 34836/06), http://www.venice.coe.int/docs/2008/CDLAD(2008)027-e.pdf.

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quo. As a result, ―Dayton‘s constitutional framework failed to redress the causes of war or to create an efficient state trusted by all constituent peoples‖.206

because the country has made significant progress since the Dayton agreement. In the partly concurring and partly dissenting opinion of the judgment Judge Mijovic (joined by Judge Hajiyev) raised the question of whether Bosnia and Herzegovina is ready for such changes and argued that that is not the situation. He asked himself, ―is it up to the European Court of Human Rights to determine when the time for change has arrived?‖ He suggested that the Court had gone too far. Moreover, he cited and identified himself with Judge Feldman of the Bosnia and Herzegovina Constitutional Court in his concurring opinion, ―...[I regard] the justification as being temporary rather than permanent, ...but the time has not yet arrived when the State will have completed its transition away from the special needs which dictated the unusual architecture of the state under the Dayton Agreement and the Constitution of Bosnia and Herzegovina‖.209 In another dissenting opinion of this judgment Judge Bonello argued that the ECHR is not apt to decide when the time is ripe. ―In traumatic revolutionary events, it is not for the Court to establish, by a process of divination, when the transitional period is over, or when a state of national emergency is past and everything is now business as usual. I doubt that the Court is better placed than the national authorities to assess the point in time when previous fractures consolidate, when historical resentments quell and when generational discords harmonise”.

Furthermore the Venice Commission says in its opinion: ―On the contrary, the inclusion of third persons might help to overcome the stalemate in Bosnia and Herzegovina. The long time that has elapsed since the elaboration of the Dayton Peace Treaty proves that the solution found in 1995 does not really help to overcome the problems in Bosnia and Herzegovina. It is not proportionate to nullify rights guaranteed in the Convention in order to preserve a constitutional structure that has not helped to acquire the desired results within a period of about 13 years”.207 The Venice Commission claims that the Constitution failed to redress the ethnic problems in BiH that led to the war and therefore there is no sense in preserving the discriminatory provisions. Lastly, the ECHR argues in paragraph 49 of the Decision that the membership of Bosnia and Herzegovina in the Council of Europe in 2002 and ratification of the Convention and Protocols, even Protocol 12 without reservations, obliged the state to meet Council‘s standards. “Likewise, by ratifying a Stabilisation and Association Agreement with the European Union in 2008, the respondent State committed itself to „amend[ing] electoral legislation regarding members of the Bosnia and Herzegovina Presidency and House of Peoples delegates to ensure full compliance with the European Convention on Human Rights and the Council of Europe postaccession commitments‟ within one to two years...‖208 The most important argument was that discriminatory provisions could not even be objectively or reasonably justified

CONCLUSION The Council of Europe has different mechanisms that can help its member states, which are undergoing the transitional justice processes, the first one being membership in the CoE itself. The Sejdic and Finci v. Bosnia and Herzegovina case that appeared before ECHR, however controversial, proves that

206 Sebastian, S. Leaving Dayton Behind: Constitutional Reform in BiH, p. 16. 207 Opinion no. 483/2008 adopted by the Venice Commission, para. 33. 208 http://eudocitizenship.eu/caselawDB/docs/ECHR%20Sejdic%20and%20Fin ci%20v.%20Bosnia.pdf, para. 49.

209 See: Concurring Opinion of Judge Feldman to the Decision of the Constitutional Court of BiH AP-2678/06, 29 September 2006, http://www.ustavnisud.ba/eng/odluke/povuci_pdf.php?pid =67930,29 August 2011.

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the mechanisms of Council of Europe and the Convention can contribute to targeting human rights violations and finding solutions for transitional countries in Europe. The Convention and the Protocols are the key instruments that were put in place on the platform of the Council of Europe. Ratifying the Convention and Protocols helps to establish a certain standard of human rights protection, democracy and rule of law. The ECHR, as the supervising body, makes this whole convention system effective. In the Sejdic and Finci case the ECHR identified discriminatory provisions in the Constitution of BiH and in the electoral code that caused human right violations (violations of the Convention and Protocols). The responsible party for the violations was the state of Bosnia and Herzegovina because it was capable of undertaking constitutional and electoral This case is controversial and we can disagree with its merits, however, it cannot be doubted that the Council of Europe is a valuable tool to identify key issues related to transitional justice, especially preventing and stopping human rights violations. CoE can, with the help of its mechanisms, make suggestions of constitutional and other reforms of the legal system, impose suitable sanctions for those responsible for violations and ensure reparations for the victims of violations. The CoE and the ECHR can raise awareness about human rights, rule of law and democracy issues and can start

changes to which it was obliged by its membership in the Council of Europe and the Stabilisation and Association Agreement with the EU. The ECHR stated that the special circumstances that led to the provisions of the Constitution were not anymore objectively or reasonably justified, on the contrary these provisions were endorsing ethnic and political divisions. Sanctions were imposed on Bosnia and Herzegovina to ensure reparations for the victims of the violations. The Venice Commission contributed to making suggestions as to how to make the constitution and the legal system comply with human rights, rule of law and democracy standards. The Committee of Ministers is still applying political pressure on BiH to comply with these obligations. a debate on a political level about transitional justice. However, not even the CoE and the ECHR are almighty; it is up to BiH to make an effort and to prove their political will. The Sejdic and Finci case is still high on the political agenda of BiH and its execution is one of the priorities of the country. Bosnian authorities have set up a task force to execute the judgment; however, no changes were achieved before the October 2010 general elections. Now, as there was no government formed after the elections on the state level, there are still no results as to amendments of the constitution and the electoral laws.

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BIBLIOGRAPHY Articles and reports:  Milanovic, Marko. Sejdic and Finci v. Bosnia and Herzegovina (September 6, 2010). American Journal of International Law, Vol. 104, 2010, available at SSRN: http://ssrn.com/abstract=1672883 (as of 29 August 2011).  Sibona, Nicola. BiH from Dayton to the European Union, International Journal of Rule of Law, Transitional Justice and Human Rights, Vol. 1, December 2010.  Turgis, Noémie. ―What is transitional justice?‖ International Journal of Rule of Law, Transitional Justice and Human Rights, Vol. 1, December 2010.



Sebastian, Sofia. Leaving Dayton behind: Constitutional Reform in Bosnia Herzegovina, available at www.fride.org/publication/291/leaving-dayton-behind-constitutionalreform-in-bosnia-and-herzegovina (as of 29 August 2011).

Opinions of the Venice Commission and others:  Krüger, Hans Christian. The Role of the Council of Europe in the New

European Architecture and its Competence in the Field of Human Rights, CDL-JU (2002) 42, Conference on ―Human Rights Protection Systems‖ (Bishkek, 21-22 November 2002), available at 





http://www.venice.coe.int/docs/2002/CDL-JU(2002)042-e.pdf (29 August 2011). Opinion adopted by the Venice Commission at its 62nd plenary session (Venice, 1112 March 2005) on the Constitutional situation in Bosnia and Herzegovina and the powers of the High Representative CDL-AD(2005)004, available at http://www.venice.coe.int/docs/2005/CDL-AD(2005)004-e.pdf (29 August 2011). Opinion adopted by the Venice Commission at its 76th Plenary Session (Venice, 1718 October 2008), AMICUS CURIAE BRIEF in the cases of Sejdic and Finci v. Bosnia and Herzegovina, no. 483/2008, CDL-AD(2008)027, (Applications no. 27996/06 and 34836/06), available at http://www.venice.coe.int/docs/2008/CDL-AD(2008)027e.pdf (as of 29 August 2011). Opinion 234 (2002) of the Parliamentary Assembly of the Council of Europe of 22 January 2002.

Judgments:  Sejdic and Finci v. Bosnia and Herzegovina, Application nos. 27996/06 and 34836/06, Decision of 22 December 2009, ECHR.  Decision of the Constitutional Court of BiH U 5/04, 27 January 2006.  Decision of the Constitutional Court of BiH U 13/05, 26 June 2006.  Decision of the Constitutional Court of BiH AP-2678/06, 29 September 2006. Treaties:  European Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, ETS No. 5, 213 UNTS 222.  Statute of the Council of Europe, May 5, 1949, ETS No. 001. Websites (as of 29 August 2011):  http://www.coe.org.rs/eng/news_sr_eng/?conid=1545  https://wcd.coe.int/wcd/ViewDoc.jsp?id=1744311&Site=CM&BackColorInternet=C3 C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383  http://www.coe.int/t/dghl/monitoring/execution/Reports/pendingCases_en.asp?Ca seTitleOrNumber=sejdic&StateCode=&SectionCode= Page 70


      

http://www.venice.coe.int/site/main/Presentation_E.asp http://www.venice.coe.int/site/dynamics/N_Series_ef.asp?L=E&S=1 http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=005&CM=&DF=&C L=ENG http://www.ustavnisud.ba/eng/odluke/povuci_pdf.php?pid=67930 http://eudocitizenship.eu/caselawDB/docs/ECHR%20Sejdic%20and%20Finci%20v.%20Bosnia. pdf http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=005&CM=&DF=&C L=ENG http://conventions.coe.int/Treaty/EN/Treaties/Html/194.htm

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TRANSITIONAL JUSTICE AND DEMOCRATISATION: THE CENTRAL AND EASTERN EUROPEAN EXPERIENCE AFTER 1989 – WITH SPECIAL REFERENCE TO POLAND By Tomasz Lachowski* ABSTRACT Societies in transition from totalitarian systems to democracy face the basic need to create a national approach to the repressive actions of the former regime and its officials, such as human rights violations and other abuses. One of the main issues is how to organise transitional justice mechanisms in order to set up the process of democratisation and build a ―rule of law‖ state. This paper focuses particularly on the legal dilemmas of the Polish transition to state based on democratic values and rule of law principles after 1989. Although Poland has successfully transformed into a stable European country, a member of the European Union and other international bodies, we can still observe tensions within a society built upon the question of persons (state officials, members of the leading party, members and agents of the secret police) involved in the actions of the former regime and their potential legal (criminal) responsibilities. This paper elaborates on the selected decisions of Polish judicial bodies with reference to the German and Hungarian experiences in that field. * Tomasz Lachowski holds a Master‘s Degree in law. He graduated from the Faculty of Law and Administration, University of Lodz (Uniwersytet Łódzki) in Poland. He is a PhD Candidate at the University of Lodz in The Chair of International Public Law and International Relations (Faculty of Law and Administration). Lachowski is a member of the editorial board of the "Stosunki Międzynarodowe/International Relations" Magazine. He is the coordinator of the ―Academia Iuris‖ Foundation branch in Lodz (Poland) that provides legal aid and services for indigent people. Lachowski is deeply interested in the aspects of international security, state sovereignty (mainly the responsibility to protect (R2P) concept), as well as in peacebuilding and the state and nation-building process in post-conflict societies. Currently Lachowski is preparing a PhD thesis on Transitional Justice in International Law. Page 73


INTRODUCTION The problem of transitional justice, described as a combination of historical, constitutional, administrative and, most significantly, criminal and restorative justice, emerged during the early 1980s as a result of Latin American transitions. The debate concentrated on ―punishment and impunity‖ matters and remained open during the East and Central European transition around 1989 and 1990. The issue is whether the state has a legal or moral obligation to prosecute and punish perpetrators involved in the ancien régime structures. Nonetheless, it is undisputable that transitional justice cannot be seen only as a response to “systematic and widespread violation of human rights” 210, since the second aim of transitional policy is to promote and re-establish (in some cases – establish and build-up) a rule of law system composed by and connected to democratic values.211 Moreover there is, or at least should be, a strict link between transitional justice mechanisms and strengthening the rule of law and the democratisation process. This statement is shared by the UN authorities who suggest a comprehensive approach to the notion of transitional justice including not only truth and reparations programmes but also the “preservation of peace and the building of democracy and the rule of law”. 212 Nevertheless, it is still an ongoing discourse as to type of transitional justice measures should be adopted to deal with the past and to (re)integrate divided postconflict (or post-transitional) societies. We can observe at least three ways of dealing with past evils on the criminal

justice level, which differ by the cultural and historical backgrounds of the countries in transition. G. Kasapas points out these methods of conduct as the elements of restorative justice213 in times of transition: trials (judicial measures), “national amnesias”214 and truth commissions.215 The main dilemma of Eastern European states in transition refers to moral and historical aspects of the judicial mechanisms and, as a consequence, the conduct of criminal trials to evaluate the former regime‟s actions (for instance Poland, Czech Republic, Hungary, reunified Germany). That is why state-judicial bodies in those states (especially constitutional courts, but also supreme courts and others) played significant roles in determining the legal response to past abuses and the reestablishment of the rule of law by setting out clear principles for transitional justice and its measures, such as: trials (the question of possibility of ex post facto punishment), lustration and others. TRANSITIONAL (CRIMINAL) JUSTICE AND THE RULE OF LAW The transitional justice dilemmas are troublesome for every society in the process of transition. That is why the question of application of proper measures – judicial and non-judicial – to deal with the near past and to establish a truthseeking process is primary. However, it cannot be done satisfactorily without considering a holistic model of a national judicial and administrative system, including full implementation of human rights standards (for minorities, vulnerable groups) combined with the increasing capacity of state institutions. Criminal justice mechanisms (trials) can definitely be seen as a contribution to the

See: International Centre for Transitional Justice, “What is transitional justice?”, available at http://ictj.org/sites/default/files/ICTJ-Global-TransitionalJustice-2009-English.pdf (accessed 25 August 2011). 211 N. Turgis sees transitional justice as a tool based on several criteria taken together into account, among which we can point out: “The direct goals...to achieve: accountability, truth and reconciliation in order to promote a transition toward the consolidation of peace, the guarantee of stability, the reinforcement of democracy and the rule of law and reconciliation”. N. Turgis, “What is Transitional Justice?”, International Journal of International of Rule of Law, Transitional Justice and Human Rights, vol. 1, December 2010, 14-15. 212 Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, United Nations Security Council, UN Doc S/2004/616, 23 August 2004, p. 9, para. 25. 210

G. Kasapas, “An Introduction to the Concept of Transitional Justice: Western Balkans and EU Conditionality”, UNISCI Discussion Papers, No 18, Octubre/October 2008, 64. 214 The concept of “not-talking-about-the-past” can be attributed to Spain after transition from the authoritarian system to democracy (1975-1982). 215 Most of them were established outside Europe, for example: Argentina, Bolivia, Chile, Haiti, Honduras, Sierra Leone, South Africa etc. The most significant attempts to create truth (and reconciliation) commissions in Europe come from the former Yugoslavia. 213

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rule of law and as support for the abovementioned goals of transition. R. Teitel argues that transitional criminal measures ―instantiate and reinforce normative change‖, in other words, they are intended to draw a line between a ―liberal and illiberal state‖ or the ―successor and former‖ regime.216 Nevertheless, there is still the risk of overusing criminal law mechanisms by politicising them in order to fulfil ―the victors‘ justice‖ principles and, by doing so, weakening the fragile democracy.217 It is worth mentioning only a few European examples in this particular area such as: Hungarian Volley Cases (possibility of prosecution and punishment of the persons acting against the protesting masses in 1956) and German trials in relation to the acts of state officials under the former GDR regime with the most famous being the ―Berlin Wall Shooters/Border Guards Case(s) - Mauerschützenprozesse‖, which ended before the European Court of Human Rights in 2001. In these cases the domestic judicial systems treated past abuses by presenting different approaches while evaluating the former regimes‘ actions, which will be examined later in this paper. Bearing in mind these facts I will emphasise the legal reasoning of the Polish Supreme Court (Sąd Najwyższy) Decision of 20 December 2007218 barring the criminal responsibility of a former state official. This particular case was rather incidental and remained on the margin of public attention. Nevertheless, it displays the judicial view (with antijudicial reasoning) of the pivotal problem

concerning the role of law in society during the democratisation of the state. Moreover it highlights that, without adopting adequate transitional justice mechanisms, society cannot go through the hard process of transition that consequently leads to ongoing social and political tensions within the nation and, in addition, undermines the process of democratisation. THE POLISH EXPERIENCE: 2007 POLISH SUPREME COURT DECISION On 13 July 2007 the prosecutor of the Institute of National Remembrance 219 (Instytut Pamięci Narodowej) submitted an application to prosecute a retired judge of the Polish Supreme Court for committing a communist crime against Polish citizens (deprivation of liberty - unlawful arrest and detention) by infringing their freedom from retroactive criminal legislation. The decision was based on the decrees of Martial Law enacted in 1981. The validity and content of that act will be presented in this paper. The Supreme Court, finding the application admissible, stated that due to the lack of: (I) constitutional provisions of the nonretroactivity principle, (II) the mechanisms of control of the legality of the statutes with constitution and international law, and (III) the place of international law in the domestic legal system, domestic courts were exempted from compliance with the lex retro non agit principle. It is to be emphasised that Poland220, since 1977, has been a party to the

The Institute of National Remembrance was established by the parliament (Sejm) in 1998. The institute was created to preserve the memory of losses by the Polish nation during World War II and in the post-war time, and to memorialise the national tradition of fighting against Nazis and Communists, and the Polish efforts to gain an independent state. The second main obligation of that institution is to fulfil the duty to prosecute crimes against peace, humanity and war crimes (mainly including Communist and Nazi crimes) and the need for compensation for the damages suffered by people harmed by the repressive actions taken by the state (directly or indirectly). The mandate of the institute covers all crimes commissioned by state officials against the Polish Nation from 17 September 1939 till 31 December 1989. This organisation consists of four departments, one of which is the Special Commission for the Prosecution of Crimes against the Polish Nation. 220 The official name of the state was Peoples Republic of Poland (Polska Rzeczpospolita Ludowa). 219

R. G. Teitel, Transitional Justice, (Oxford: Oxford University Press, 2001), pp. 66-67. 217 This argument is commonly used by the supporters of amnesty programmes mainly in Latin American transitions. Amnesties enabled the start of the process of liberalisation and democratisation, like in Uruguay or El Salvador. See e.g. L. Huyse, “Justice after transition: on the choices successor elites make in dealing with past”, Law and Social Inquiry, vol. 20, No 1, winter 1995. It should be noted that amnesties are also seen not as an instrument of justice, but rather as one, which sacrifices justice in order to restore and maintain peace and put an end to the conflict. See: C. T. Call, “Is Transitional Justice Really Just?”, The Brown Journal of World Affairs, vol. XI, Summer 2004, 103. 218 Polish Supreme Court, Decision No. I KZP 37/07, 20 December 2007. 216

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International Covenant on Civil and Political Rights (ICCPR). This particular decision reopened discussion of the prosecution of former state officials who had acted against members of the anti-communist opposition. Moreover, it put in spotlight significant issues to be resolved beyond the scope of the analysed decision but still within the scope of researchers of Polish international and criminal law science such as: Legitimacy and legacy of state officials‘ actions under the domestic law of the former regime; Recognition of human rights standards and international law principles in the time of the non-democratic state and in the time of transition; Place of public international law in the Polish domestic system before and after transition; The continuity of the domestic legal system after the transformation of the political and economic system.

fact, in breach of the Constitution of the Peoples Republic of Poland of 1952 as, during the session of the parliament (which was held in December 1981), neither the state council nor any other organisation was entitled to pass any legislative act. The second issue concerned the moment that the Martial Law decrees entered into force and, as a result, the legal ground for the prosecution of the criminal acts under this particular decree regime. The Martial Law decrees were promulgated in (The Official) Journal of Laws (Dziennik Ustaw) dated 14 December, effective on the day of enactment, 12 December223 and announced on public television on 13 December, with no legal implications. However, the actual date of the (The Official) Journal of Laws availability was 18/19 December due to the length of the printing and distribution process.224 Eugeniusz R. and Henryk B. were detained and, later on, arrested due to the acts they had committed on 12 December, which at that time, were not unlawful in the Polish legal system. Moreover Poland, since 1977, was the party to ICCPR, which guarantees in Article 9 the right to liberty and security of the person.225 Furthermore, Article 15 states that ―no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed‖, which is a non-derogable law (Article 4). There were 1685 cases of individuals being sent

HISTORICAL BACKGROUND – THE GENERAL OVERVIEW OF THE ANALYSED CASE The question at stake concerned the legality of the institution of criminal proceedings against a retired judge of the Polish Supreme Court (Zdzisław B.) who had adjudicated during the enforcement of the decrees of Martial Law in December 1981 in Poland. The prosecutor indicted Zdzisław B. for the unlawful deprivation of the liberty of Polish citizens (Eugeniusz R. and Henryk B.) who belonged to the national opposition movement ―Solidarity‖ (―Solidarność‖). To have a broad perspective on the case, it is necessary to present a general overview of the historical facts of that particular era of Polish history. On the night of 12 and 13 December 1981 the State Council (Rada Państwa) proclaimed Martial Law in Poland221 by enacting special decrees.222 This was, in

which erupted in Poland in 1981. It was few months after Lech Wałęsa signed, on the behalf of democratic opposition, “Solidarity” (“Solidarność”), a trade union with around 10 millions members and supporters, the August Agreements with state authorities in 1980. (The 1980/1981 period is known as a “Carnival of Solidarity”). The second threat concerned the possibility of a military intervention by Soviet Union army forces. Whether the threat was real or just hypothetical is still an unanswered question. 223 This regulation is internally inconsistent and has nothing in common with the principles of the theory of law and legal logic. 224 The printing of (The Official) Journal of Laws started on 17 December and was accomplished the day after, however it has to be mentioned that some courts did not receive (The Official) Journal of Laws until January 1982. 225 According to article 4 of the ICCPR it is possible to derogate this right under special procedure in a time of emergency.... Whether situation in Poland met these requirements is beyond the scope of this paper.

Martial law (1981-1983) is seen by Poles as comparable to the Hungarian (1956) or Czech (1968 Prague Spring) experiences. 222 Martial Law was proclaimed in response to the huge political crisis (officially to maintain peace and security in the country), 221

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to prison under Martial Law decree regulations, which violated the lex retro non agit principle enshrined in the above cited provision of the covenant.226 As a result two important issues were supposed to be resolved by the 2007 Polish Supreme Court decision: (I) the legacy of the adjudication in the analysed period and (II) the adjudication without legal ground, whether it constituted a crime committed by the adjudicating judges.

community) and international public law in general, and coincidentally justifying the former regime use of the terms and notions of the democratic, rule of law state. J. Zajadło adds that such reasoning would be (or might have been) accepted in the 1980s, but almost 20 years after the fall of the communist regime, it just presented a lack of sensitivity to the change in the philosophy of the law, especially during transitional period.229 It was also claimed that the attitude presented in the decision might have jeopardised the full implementation of the international legal order into the domestic system. Without going into details of the motives of such reasoning, it is perfectly clear that such decision definitely did not accelerate the Rechtsstaat-building process. It is even more perceptible in the context of the experiences of other Central and East European states, which took different approaches (although not homogeneous) to cases concerning the tension between former regime abuses and respect for international human rights law, which is a core part of the rule of law and the democratic state.

THE REASONING OF THE POLISH SUPREME COURT The court‘s decision, which barred criminal prosecution of the former regime‘s judges, was based on the following assumptions: 1952 State Constitution did not contain (expressis verbis) a prohibition of the creation of retroactive provisions; 1952 State Constitution did not include the mechanisms of control of legality of statutes and other acts with domestic and international law;227 As the 1952 Constitution did not pronounce on the place of public international law in the Polish legal system, retroactive penal provisions of the Martial Law decrees did not infringe upon the domestic legal system even though ICCPR (Article 15 read in conjunction with Article 4) stated the contrary. This reasoning was met with overwhelming criticism from Polish scholars.228 It was described as an example of extreme legal positivism, which puts aside the whole branch of international human rights law (universal and, at the time of the presented events, generally accepted by the international

THE CENTRAL AND EASTERN EUROPEAN EXPERIENCE WITH CRIMINAL JUSTICE IN THE TIME OF TRANSITION – SELECTED CASES In the following section, I will examine the experiences of the two Central and Eastern European states facing political transformation similar to Poland‘s and its legal implications, based on an evaluation of the former regimes‘ abuses in Hungary and Germany (after reunification). The fulfilment of the idea of criminal justice was confronted in both situations with the issue of application of international law (human rights) standards in the trials concerning the recent past.

P. Daranowski, “The Rule of (International) Law in Poland – the Sign of Growing Democracy”, available at http://www.grocjusz.edu.pl/Materials/pd_chile_eng.pdf (accessed 25 August 2011). 227 The Constitutional Tribunal was established by the statute of 1985 (as a consequence of the constitutional amendment of 1982) and enforced on 1 January 1986 approximately four years after the events took place. 228 See e.g. J. Zajadło, “5 minut antyfilozofii antyprawa – Glosa do Uchwały SN z dnia 20 grudnia 2007 roku”, available at http://www.rpo.gov.pl/pliki/12100650360.pdf (accessed 25 August 2011). 226

Hungarian VOLLEY CASES The Hungarian state, after transition from the authoritarian system to democracy, faced the legal and political dilemma of Zajadło, “5 minut antyfilozofii antyprawa”, available at http://www.rpo.gov.pl/pliki/12100650360.pdf. 229

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prosecuting and punishing people responsible for the crimes committed during the Communist era, especially during the 1956 revolution. The Volley Cases refer to the crimes committed by state officials (army) against unarmed, peacefully protesting civilians during the Hungarian revolution. Criminal justice mechanisms adopted by the Hungarian authorities were concerned with the possibility of the criminal responsibility of people involved in the alleged breach of Common Article 3 of the Geneva Conventions. At the beginning of 1990s, the political pressure to establish trials against the perpetrators from the 1956 events was rather high, mainly due to the fact that the Hungarian parliament was composed of mostly right-wing parties. Moreover some of the deputies were anti-communist dissidents. As a result, the parliament adopted a new law lifting the statute of limitations for relevant crimes of murder, treason and aggravated assault. Under the legal regime in force at the time of the commission of the Volley Acts, the limitation for murder was 20 years, for high treason was 15 years and for aggravated assault was 8 years. The new statute230 was extremely controversial because, by lifting the statute of limitations, it violated a core principle of the rule of law and, in particular, of criminal law: nullum crimen sine lege and the value of nonretroactivity. Immediately after its adoption it was referred by the state President to the Constitutional Court231, which found the statute 232 unconstitutional. The Court stated that the principle of legality covers every aspect of criminal liability, for instance, changing the statute of limitations ex post facto. Additionally, ―conviction and punishment

can only proceed according to the law in force at the time of the commission of the crime‖. The court identified the principle of the ―security of law‖, which has to be seen as ―protection of rights previously conferred‖ and, in addition, found that ―unjust outcome of legal relations does not constitute an argument against the principle of the security of law‖. The parliament adopted a new law concerning aforementioned matters, which covered and penalised common crimes as well as international crimes (war crimes; crimes against humanity). According to international law, international crimes are exempted from the statute of limitation (UN 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity233; customary law) so people responsible for committing such crimes could be prosecuted by Hungarian judicial authorities. The new statute was referred to the Constitutional Court, which reiterated its first judgement, with exception of the provisions penalising international crimes. It has to be mentioned that this judgement was not free of controversies and it opened a serious constitutional debate among Hungarian scholars.234 T. Hoffmann reminds that Hungarian courts were seriously divided, mainly with reference to the possible existence of the non-international armed conflict and the applicability of international customary law to criminal proceedings235 from 23 October to 4 November 1956, before the Soviet military intervention took place. So only a few trials preceded236. However, those issues are beyond the scope of this paper.

Hungary is the party to the Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity since 1969. 234 T. Hoffmann, Individual Criminal Responsibility for Crimes Committed in Non-International Armed Conflicts – the Hungarian Jurisprudence on the 1956 Volley Cases, Criminal Law Between War and Peace: Justice and Cooperation in Criminal Matters in International Military Interventions, (Cuenca: Ediciones de la Universidad de Castilla-La Mancha, 2009), p. 739. 235 See Hoffmann, Individual Criminal Responsibility, pp. 741-753. 236 Hoffmann, Individual Criminal Responsibility, p. 740. 233

Literally the new law made a reference to crimes committed between December 1944 and May 1990, however, it was designed to enable the prosecutions of the 1956 perpetrators. 231 The petition was based on questions of whether the analysed statute met the requirements of Rechtsstaat: (I) the principle of non-retroactivity; (II) the requirement of predictability; and (III) certainty of law. 232 Hungarian Constitutional Court, Decision No. 11/1992, 5 March 1992. 230

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What conclusions can be drawn from this short summary of the dilemmas of transition in Hungary? It is clear that the Constitutional Court played a significant role in determining the rule of law in Hungary and, like M. Mihai writes, ―established continuity with the previous legal system, but discontinuity with the system‘s practices of abusing the law‖.237 In the view of the court, a rule of law state cannot be created by undermining rule of law principles (in the relevant case: criminal principles and guarantees), especially in the context of moral purges after political transformation. According to the Hungarian experience, rule of law and democracy means legal certainty and compliance with the international law rules and standards (with the highest position of the human dignity in the hierarchy of fundamental rights and freedoms238) rather than seeking for substantive justice (victor‘s justice) and evaluation of the former regime. These particular decisions brought ―acclamation from constitutional lawyers in established democracies‖239 and formed the strong position of the court in the Hungarian legal order.240

the German Basic Law of the reunited Germany and the former GDR law, arose. Public attention was turned towards several trials for killings on the interGerman border – Berlin Wall. Indictments were directed at both: German soldiers (border guards) and state officials (decision-makers) responsible for shooting and killing at least 130 citizens of GDR trying to escape to the western part of Berlin. Convictions were stated by the regional courts and then confirmed by the Federal Court of Justice. Another judicial body, the Federal Constitutional Court, found that these convictions were in compliance with the German Basic Law.241 Subsequently, the European Court of Human Rights decided that these convictions did not violate several provisions of the European Convention on Human Rights (ECHR).242 The main argument presented by the defendants concerned the consistency of their conduct within the GDR legal system. As a consequence, in their view, convictions were in breach with the standards of the non-retroactivity principle (in particular, Article 7 (1) of ECHR – no punishment without law, and Article 103 (2) of the Basic Law – ban of retroactive criminal law) and were against the concept of Rechtsstaat. Under the German Unification Treaty, all acts committed by East German citizens within the territory of GDR shall be evaluated with reference to GDR law.243 The state security policy embodied in GDR‘s People‘s Police Act and State Borders Act (additionally with the instructions and orders policy), justified the use of firearms in case of a threat to the existence of the state and prevailed over the relevant provision of the GDR‘s Criminal Code (crime of murder) as well as the general state obligation to protect the right to life.

GERMANY: BORDER GUARDS CASES After the collapse of the GDR and the reunification of Germany, a great debate about ex post facto prosecutions and convictions commenced. This debate was based not only on political dilemmas but also on legal dilemmas of controversial prosecutions of representatives of the former regime. Together with the question of personal responsibility of alleged perpetrators, another issue, concerning the questions of legitimacy and the legacy of the previous legal order and the relationship between M. Mihai, Transitional Justice and the Quest for Democracy: Towards a Political Theory of Democratic Transformation, (Toronto: University of Toronto, 2010), p. 128. 238 L. Sólyom, “The Role of Constitutional Courts in the Transition to Democracy: With Special Reference to Hungary”, International Sociology, vol. 18, No. 1, March 2003, 153. 239 Mihai, Transitional Justice, p. 133. 240 E. Babus, “The Superego of the Transformation: The First Eight Years of the Constitutional Court”, The Hungarian Quarterly, vol. XL, No. 153, spring 1999. 237

241German

Federal Constitutional Court, Decision of 21 July 1997. European Court of Human Rights, Case of Strelezt, Kessler and Krenz v. Germany, 22 March 2001 (app. nos. 34044/96, 35532/97 and 44801/98); K. – H. W. V. Germany, 22 March 2001(app. nos. 37201797). 243 The law of the Federal Republic of Germany was applicable only if it was more lenient. 242

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As was previously mentioned, German courts allowed criminal prosecutions and did not find it contrary to any domestic and international provisions. In doing so, German courts followed different paths of legal reasoning. Like, M. Rau writes,244 we can point out at least three: (I) the natural law approach, (II) the ―teleological‖ approach and (III) the ―rule of law‖ approach. The last one can be attributed mainly to the reasoning of the European Court of Human Rights. To conclude, German courts were highly inspired by the ―Radbruch‘s Formula‖245 and rejected some parts of the GDR‘s legal order as not meeting the requirements of a rule of law state. The German courts‘ reasoning, however, touching different legal perspectives, was based on a presumption that the observance of fundamental rights makes a clear line between ―formal law‖ and ―justice‖, seen as a moral and legal order taken together into consideration.246 The courts acknowledged that the practice of the GDR‘s security policy was against the basic principles of the human dignity and justice, which are common to all peoples, and are a core part of international law.247 The notion of the rule of law shaped by the German judiciary includes the strong desire for substantive justice, which, especially in so-called ―extreme cases‖248 prevails, over legal security and certainty as compared to the Hungarian case. Retroactive punishment was

justified due conditions.249

to

the

extraordinary

ROLE OF TRANSITIONAL JUSTICE MECHANISMS IN RESTORING THE RULE OF LAW AND ESTABLISHING DEMOCRACY – CONCLUSIVE REMARKS States facing post-communist transitions chose different tools to implement transitional justice mechanisms, especially in conjunction with criminal justice. Aforementioned examples illustrate that only Germany took a comprehensive approach towards past evil abuses and prepared an ambitious transitional justice project consisting of trials, some of which were presented in this paper, parliamentary inquires and few more.250 Other states, like Hungary and Poland, in spite of the presented Supreme Court decision, did not follow the German path and stood somewhere between, but not in the middle, of full clarification of former regime actions and actions of state officials in the courtroom and the ―national amnesia‖ programme.251 Nevertheless, all of those decisions were based on the strong belief in the value of a rule of law state where transitional justice must be supported by particular factors specified by R. Teitel as the role of: (I) social construction, (II) international law, and (III) the rule of law seen as a limit on politics.252 Why did not the Polish Supreme Court decision meet these requirements and cannot be seen as a useful tool in the process of the Rechtstaat-building with democratic values? At least two features can be mentioned: (I) the lack of respect to the international law and human rights standards and (II) inefficiency in the

M. Rau, “Transitional Justice: The German Experience after 1989”, Rechtstaat in Lectures, No. 4, Konrad Adenauer Stiftung, Bucharest August 2009, 10-11. 245 Gustav Radbruch (1878-1949), a German legal scholar (criminal law and legal philosophy), before World War II was the representative of the legal positivism movement. After the cruelty of wartime he turned to natural law theory. His formula was based on a presumption that if the written law does meet the requirements of justice, moral standards and higher order it can be recognised as invalid. See: G. Radbruch, “Five Minutes of Legal Philosophy (1945)”, translated by B. Litschewski-Paulson, S. L. Paulson, Oxford Journal of Legal Studies, vol. 26, No. 1 (2006), 135; G. Radbruch, “Statutory Lawlessness and Supra-Statutory Law (1946)”, translated by B. Litschewski-Paulson, S. L. Paulson, Oxford Journal of Legal Studies, vol. 26, No. 1 (2006), 1-11. 246 Teitel, Transitional Justice, p. 16. 247 The provisions of the GDR‟s law were construed in a “human rights friendly manner”. 248 Teitel, Transitional Justice, p. 17. 244

Obviously, this approach is not free of controversies. It might be seen as an instrument, which fulfils the need for political justice. See: C. Wilke, “Politics of Transitional Justice: German, Hungarian and Czech Decisions on ex post facto Punishment”, The Contours of Legitimacy in Central Europe: New Approaches in Graduate Studies, European Studies Centre, Oxford 2002. 250 Mihai, Transitional Justice, pp. 224-225. 251 The Czech Republic is an interesting case because after the adoption of a strong statute declaring the former regime illegal and illegitimate, upheld by the Constitutional Court. It was not followed by a large number of criminal prosecutions of former regime perpetrators. 252 Teitel, Transitional Justice, pp. 19-22. 249

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clarification of the relationship between the former political and legal landscape with its successor regime. As previously presented, the Hungarian Constitutional Court based its decisions on the valid norms of international law, which were taken into consideration. It is necessary to emphasise that the possibility of ex post facto punishment differs in the analysed circumstances. While German and Hungarian judicial authorities had to decide whether it was possible to prosecute a person whose acts, at least on the defendants argument level: (I) had not constituted a crime in the time of the conduct or (II) had constituted a crime in the time of the conduct but, due to the statute of limitations they were legally cured, the Polish Supreme Court had to deal with the lex retro non agit punishment done by the former regime officials, based on a law, which should be declared invalid under the former constitutional order. Underestimation of international law, which ―offers an alternative construction of law..., its continuous and enduring‖253 and in a time of transition cannot be approved. In addition, the (pseudo) positivistic view taken by the Polish Supreme Court also showed a lack of a clear concept of how to deal with the former regime. It is worth mentioning some new tendencies in recent Polish judiciary. The Constitutional Tribunal (Trybunał Konstytucyjny) in its judgement of 16 March 2011254 found Martial Law decrees as unconstitutional on the grounds of its inconsistency with the 1997 Constitution (Article 7 – The Principle of Legalism) in conjunction with the 1952 Constitution and the ICCPR (Article 15 (1). The significant role of the ICCPR provisions was, as a result, strongly emphasised. The Tribunal emphasised the state‘s obligation to protect human dignity as a core principle of a rule of law state and related this to the basic duty of state authorities to act on the basis and within the limits of the law. Moreover, the Tribunal reiterated

that the 1952 Constitution also guaranteed the right to be protected against state authorities‘ interference without relevant powers (State Council acted in violation of constitutional norms by enacting the Martial Law during the session of the Parliament) and legal ground, especially in the case of the nullum crimen, nulla poena sine lege principle and the prohibition against retroactive criminal legislation. This judgement may lead to re-opening the question of the criminal convictions based on Martial law decrees and several courts decisions that convicted for the acts, which did not constitute a criminal offence at the time they were committed. In other words, it opens the possibility of re-opening criminal proceedings under relevant constitutional provisions. Furthermore, the Tribunal decided255 that the question of criminal responsibility of former state officials, mainly judges, shall be examined individually, case by case, without stating any general clause, so we can expect other indictments in the near future. These judgements, read together with the Constitutional Tribunal judgement declaring the importance of international law in the domestic order256 both material and symbolic, are an example of a proper step in building a rule of law state with the respect to the binding norms of international law. To sum up, it is clear that transitional justice is not a self-contained regime with given solutions to the dilemmas of transition to democracy.257 That is why the role of the judicial bodies, according to European legal culture, is significant in determining a rule of law state and democratisation. As a final conclusion, I would like to emphasise that the implementation of transitional, mostly criminal, justice measures does not Polish Constitutional Tribunal, Decision No. K/10/08, 27 October 2010. 256 Polish Constitutional Tribunal, Decision No. 42/4/A/2005, 27 April 2005, para. 5.5. 257 M. Wasiński, “Sprawiedliwość okresu przejściowego (Transitional Justice)”, Liberte, No. 27, Czerwiec/June 2011, available at http://www.liberte.pl/component/content/article/1813.html?ed= 31 (accessed 25 August 2011). 255

Teitel, Transitional Justice, p. 20. Polish Constitutional Tribunal, Decision No. 10/2/A/2011, 16 March 2011. 253 254

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necessarily mean an open trial policy. But it definitely means the full respect for international law and human rights standards, which cannot be excluded from the legal and social sphere.

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BIBILIOGRAPHY    

             

Babus, E. ―The Superego of the Transformation: The First Eight Years of the Constitutional Court‖, The Hungarian Quarterly, vol. XL, No. 153, spring 1999. Call, C. T. ―Is transitional justice really just?‖, The Brown Journal of World Affairs, vol. XI, Summer 2004. Daranowski, P. ―The Rule of (International) Law in Poland – the Sign of Growing Democracy‖, available at http://www.grocjusz.edu.pl/Materials/pd_chile_eng.pdf. Hoffmann, T. Individual Criminal Responsibility for Crimes Committed in NonInternational Armed Conflicts – the Hungarian Jurisprudence on the 1956 Volley Cases, Criminal Law Between War and Peace: Justice and Cooperation in Criminal Matters in International Military Interventions, Cuenca: Ediciones de la Universidad de Castilla-La Mancha, 2009. Huyse, L. ―Justice after Transition: on the Choices Successor Elites make in Dealing with Past‖, Law and Social Inquiry, vol. 20, No 1, winter 1995. Kasapas, G. ―An Introduction to the Concept of Transitional Justice: Western Balkans and EU Conditionality‖, UNISCI Discussion Papers, No 18, Octubre/October 2008. International Centre for Transitional Justice, ―What is Transitional Justice?‖, available at http://ictj.org/sites/default/files/ICTJ-Global-Transitional-Justice2009-English.pdf. Mihai, M. Transitional Justice and the Quest for Democracy: Towards a Political Theory of Democratic Transformation, Toronto: University of Toronto, 2010. Radbruch, G. ―Five Minutes of Legal Philosophy (1945)‖, translated by B. Litschewski-Paulson, S. L. Paulson, Oxford Journal of Legal Studies, vol. 26, No. 1 (2006). Radbruch, G. ―Statutory Lawlessness and Supra-Statutory Law (1946)‖, translated by B. Litschewski-Paulson, S. L. Paulson, Oxford Journal of Legal Studies, vol. 26, No. 1 (2006). Rau, M. ―Transitional Justice: The German Experience after 1989‖, Rechtstaat in Lectures, No. 4, Konrad Adenauer Stiftung, Bucharest August 2009. Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, United Nations Security Council, UN Doc S/2004/616, 23 August 2004. Sólyom, L. “The Role of Constitutional Courts in the Transition to Democracy: With Special Reference to Hungary”, International Sociology, vol. 18, No. 1, March 2003. Teitel, R. G., Transitional Justice, Oxford: Oxford University Press, 2001. Turgis, N. ―What is Transitional Justice?‖, International Journal of International of Rule of Law, Transitional Justice and Human Rights, vol. 1, December 2010. Wasiński, M. ―Sprawiedliwość okresu przejściowego (Transitional Justice)‖, Liberte, No. 27, Czerwiec/June 2011, available at http://www.liberte.pl/component/content/article/1813.html?ed=31. Wilke, C. ―Politics of Transitional Justice: German, Hungarian and Czech Decisions on ex post facto Punishment‖, The Contours of Legitimacy in Central Europe: New Approaches in Graduate Studies, European Studies Centre, Oxford 2002. Zajadło, J. ―5 minut antyfilozofii antyprawa – Glosa do Uchwały SN z dnia 20 grudnia 2007 roku‖, available at http://www.rpo.gov.pl/pliki/12100650360.pdf.

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WEARING TOTALITARIAN SYMBOLS: FREEDOM OR RESTRICTION OF EXPRESSION / CASE STUDY BASED ON ATTILA VAJNAI‟S CASE By Csuka Márta* ABSTRACT Freedom of expression is essential for citizens in order to exercise their right to vote and take part in decision-making processes. The right to have freedom of expression is so widely-accepted that it appears also in the Universal Declaration of Human Rights (1948). UDHR, Article 19 says: ―Everyone has the right to the freedom of opinion, and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.‖ Nevertheless we should be aware of the fact that freedom of expression and free media can be used also propagating hate speeches and permitting of extremist ideas. Our mission is to find a balance between freedom of expression and protecting other human rights. Freedom of expression can be restricted only in certain circumstances: to protect the rights and reputations of others or to protect national security, public order, public health or morals. The toughest challenge is to find that fine line between what should be allowed what should be restricted. The debate about whether hate speech should be restricted or not is still not closed. This essay tries to present the issue via a Hungarian case from European Court of Human Rights (ECHR). * Csuka Márta is completing her MA in international studies in Budapest, Hungary with a specialization in international human rights and studies also law in general. She has a Bachelor of Arts in Social Studies. Her areas of professional interests are the rights of political participation and particularly franchise, the right to vote. She is currently working on a paper relating the problem: How to ensure the right to vote to people living constantly abroad? She made a traineeship at ACEEEO, an international organization dealing with electoral procedure, election observation missions. Now she is a trainee at the Central Election Commission in Budapest, Hungary. E-mail address: marta.csukaahoo.com Page 85


Introduction The Universal Declaration of Human Rights is considered ―the common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, [...], shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.‖258 The International Covenant on Civil and Political Rights 1966/1976 (signed in 1969 and ratified in 1974 by Hungary) contains freedom of expression, Article 19, one of the most important freedom people can own as a citizen and as a human being.259 Although almost every country in the world signed the document there are still abuses of this freedom. Transitional societies always have to face some challenges during the rebuilding process, one of them is to ensure political and civil rights to their citizens.

creating a society separated from others. Aiming a strong, cohesive base symbols played an informative and very important rule. Symbols express people‘s belief, a commitment. Probably the best-known expert of symbols is C.G. Jung, Swiss psychiatrist, who makes in his works a clear difference between symbols and signs. According to Jung signs refer to the known, the evident, the external manifestation of reality whilst symbols are special signs standing for the unknown, unclear, inexplicable. Using symbols of despotic, totalitarian empires, like the Nazi Germany or the Soviet Union were, are prohibited in some countries also nowadays. Three of those refer also to the use of symbols of the Communist past (Hungary, Lithuania and Poland).260 The case of Attila Vajnai Attila Vajnai, - is a Hungarian national who was at the relevant time VicePresident of the Worker‘s Party (Munkáspárt), a registered Hungarian leftwing political party. He made a speech on 21 February 2003 at a lawful demonstration in Budapest where he was wearing a five-pointed red star on his jacket as a symbol of international workers‘ movement. A serving policeman called on him to remove the symbol and Mr. Vajnai did so. Nevertheless proceedings were subsequently taken against him for wearing totalitarian symbols in public. Hungarian Criminal Code (Act IV of 1978) under section 269/B bans the use of symbols of despotism:

During its long history Europe has experienced wars, epidemics, starvations and if we run back over only the last century we can see dictatorships as well. Just mentioning the most notorious ones, Hitler and Stalin built their own empire with their own ideology, own rules, own army and own symbols. These were the means they could use to rule first a group of people, a party, an ideology, a nation and then half of Europe. Creating and using symbols like the Nazi eagle atop swastika, the SS bolts, the Soviet sickle and hammer or the red star could make a connection between rich and poor, men and women, young and old. These symbols can express their togetherness

“(1) The person who a) distributes; b) uses before great publicity; c) exhibits in public; a swastika, the SS sign, an arrow-cross, sickle and hammer, a five-pointed red star or a symbol depicting the above, -unless a graver crime is realized - commits a misdemeanor, and shall be punishable with fine.

The Universal Declaration of Human Rights. Available at: http://www.un.org/en/documents/udhr/ UN. Accessed on: 10 July 2011 259 International Covenant on Civil and Political Rights, Art. 19 „[…] 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” 258

Prof. Dr. Carlos Closa Montero: Study on how the memory of crimes committed by totalitarian regimes in Europe is dealt within the Member States, Contract No JLS /2008/C4/006. 260

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(2) The person, who commits the act defined in subsection (1) for the purposes of the dissemination of knowledge, education, science, or art, or with the purpose of information about the events of history or the present time, shall not be punishable. (3) The provisions of subsections (1) and (2) do not extend to the official symbols of states in force.

to the European Court of Human Rights (ECHR) on 15 May 2006 claiming the violation of Article 10 of the Conviction (freedom of expression)262. The Court ascertained that there has been an interference with Mr. Vajnai‘s rights enshrined in Article 10 § 1 of the Convention. The Court also found that the interference was prescribed by Hungarian domestic law and pursued legitimate aim. The Court accepted Hungary‘s arguments that former one-party dictatorship caused a lot of suffering to people and symbols like red stars remind them to that time creating unkindly feelings. Finally the Court had to decide whether the sanction against Mr. Vajnai was necessary in a democratic society.263 According to the Government wearing red star reminds people of the former ruling Communist regime which neglected even basic human rights and oppressed every civil initiative. Using totalitarian symbols in public related to identification with ideas of Communism and thus can create fear among people. Secondly the Government referred to the margin of appreciation application which allows states to work out their own methods to handle cases related to former regimes. Generally it ensures time for states in transition to apply the international standards. (In a previous similar case Rekvényi v. Hungary ([GC], no. 25390/94, §§ 44-50, ECHR 1999-III) the Court dismissed the application of a Hungarian police officer who imputed the restriction on certain political rights as they are not allowed to continue political activity or to join any political party. The Court found that the interference fell within the national authorities‘ margin of appreciation.)

In 2000 the Hungarian Constitutional Court analyzed the constitutionality of section 269/B and that time the Court decreed as it follows: ―In Hungary, the memories of both ideologies represented by the prohibited symbols are still alive in the public consciousness and in the communities of those who survived persecution; these things are not forgotten. [...] The use of such symbols recalls the recent past, together with the threats of that time, the inhuman sufferings, the deportations and the deadly ideologies.‖261 With its decision the Constitutional Court affirmed the ban of using every type of totalitarian symbols in public. At that time many experts criticized that decision claiming that it undermines the principle of freedom of expression. According to the relevant section of the Criminal Code Mr. Vajnai was convicted of the offence of using totalitarian symbols. In spring 2004 he appealed to the Budapest Regional Court (Fővárosi Bíróság) which stayed the previous decision and decided to refer the case to the Court of Justice of the European Communities (ECJ). The reason was to reveal if there is any discrimination on the case that not every member states‘ law prohibits the use of totalitarian symbols. On 6 October 2005 the ECJ declared that it had no jurisdiction to answer this question and referred back the case to the Budapest Regional Court which subsequently upheld the conviction against Mr. Vajnai. Thereafter he turned

Article 10 of the Convention: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder ... [or] ... for the protection of the ... rights of others ...” 263 Vajnai v. Hungary (Appl. no. 33629/06) Decision of 8 July 2008, ECHR Reports, para. 29. 262

The Constitutional Court of the Republic of Hungary. Available at: http://www.mkab.hu/admin/data/file/666_14_2000.pdf. Accessed on: 10 July 2011 261

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In contrast, Mr. Vajnai argued that red star as a symbol is not used exclusively by the Communist party, for many people it symbolizes the anti-fascist ideology as Hungary and other Easter European countries had been liberated in 1945 from Nazi occupation by Soviet soldiers wearing red stars on them. Moreover promotion of Communism had not been outlawed by international law. Hungary is not the only contracting state which treats Communist and Nazi symbols as the same and prohibits both of them. Poland and Latvia also has a law banning the use of both Soviet and Nazi symbols at public meetings.264 Poland - which country has similar history and political culture as Hungary - has an explicit indication in its Constitution.: ―Political parties and other organizations whose programmes are based upon totalitarian methods and the modes of activity of Nazism, fascism and communism, as well as those whose programmes or activities sanction racial or national hatred, the application of violence for the purpose of obtaining power or to influence the State policy, or provide for the secrecy of their own structure or membership, shall be forbidden.‖265 In addition the Polish Criminal Code (section 256) mentions also the prohibition of Nazi and other totalitarian symbols.266 However there is an important distinction between Hungarian and Polish regulations namely that the Polish refers only to the propagation of the Nazi, fascist and communist symbols while the Hungarian punishes also the sole wearing in public. The German Criminal code (Strafgesetzbuch (StGB)) has also

regulations against ―unconstitutional organizations‖ in the section 86 and 86/A.267 Lastly according to Mr. Vajnai the sole wearing of such symbols does not mean that he or his comrades want to influence people in a coercive way. In addition since the transition 1989 there was no real fear to take over the power and rule the society by the Communist Party. The Court argued in its judgment that limitation of freedom of expression considered to political speech is only acceptable when a clear, pressing and specific social need arose.268 In this specific case the Court adjudged neither such social need was present nor was any threat from the left-wing political party to restore the Communist dictatorship. Moreover banning the use of red star is too broad considering the multiple meaning of it. Therefore the Court considered the interference of the freedom of expression cannot be justified under Article 10 § 2 and ascertained a violation of the Convention. Hungarian law allows people having a decision from ECHR against the State in a retrial procedure but at the same time there is no automatic procedure under domestic law to modify a statute which violates of the Convention. It follows that there is no chance to amend the decision of local courts. The Hungarian Parliament – and not the Supreme Court- could amend the law in question but it has not done so far. In this precise case Mr. Vajnai had without avail the right to retrial his case, the code under he was convicted remained the same. In June 2011 the Hungarian Supreme Court (Legfelsőbb Bíróság) affirmed the decision of the Budapest Regional Court made 3 years ago and fined Mr. Vajnai 120 000 HUF. He

264Prof.

Michael J. Bazyler: Holocaust Denial Laws and Other Legislation Criminalizing Promotion of Nazism (2006) 9. 265 Constitution of Poland. Available at: http://www.poland.pl/info/information_about_poland/constituti on/ch1.htm. Accessed on: 14 November 2011. Available at: http://legislationline.org/documents/section/criminal-codes. Accessed on: 14 November 2011. Kodeksz Karny, Criminal Code of Poland Art. 256: „Kto publicznie propaguje faszystowski lub inny totalitarny ustrój państwa lub nawołuje do nienawiści na tle różnic narodowościowych, etnicznych, rasowych, wyznaniowych albo ze względu na bezwyznaniowość, podlega grzywnie, karze ograniczenia wolności albo pozbawienia wolności do lat 2.” 266

German Criminal Code: Section 86: Dissemination of propaganda material of unconstitutional organisations and Section 86a: Using symbols of unconstitutional organisations. Available at: http://legislationline.org/documents/section/criminal-codes. Accessed on: 14 November 2011. 268 Vajnai v. Hungary ECHR Reports, para. 51. 267

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wants to turn to ECHR again.269 As Mr. Vajnai states there is a chance in the future that anyone who wants to wear the red star as a symbol of the international workers‘ movement in public in Hungary risks to be convicted. He also warns that later it is possible to proceed ―against a lawful political party which is part of the European left-wing party fighting for a new, socially fair society.‖

belief and the right to live without being bothered by the ghosts of past.271 Thus on the other hand some experts are arguing to ensure for everybody the whole freedom to say, to write, to use what they want no matter what others, for instance so-called leaders say.272 This kind of thinking is the base of a pluralistic society, the opposite of totalitarian ones with generally one-party regimes, without any possibility to be non-conform or to express other points of view. In a pluralistic society citizens are able to express different kind of opinions, even if it is completely opposite of the majority‘s opinion and this makes a society colorful and vibrant. At the same time it provides facilities to confront ideologies and also hurt other people‘s feelings. In such societies‘ political life, left- or right-wing parties, greens, religious or secular and extremist parties can appear as well. That is to say, they all have the possibility to build up a political party and popularize their program in order to gain support and as far as possible to get into the legislation being in a position to make orders.

Freedom of expression is equal with the freedom of using totalitarian symbols? Via this case we can analyze what sort of impacts has the sole wearing a totalitarian symbol which can be considered as a kind of non-verbal hate speech. Those who are against it claim that these symbols remind people the past they wish to forget, an oppressive regime, sufferings they had to survive, deportations, work camps, death of family members and friends. Secondly, in a transitional society, when democracy is young and vulnerable, the new democratic order, the program should be followed by the society is insecure, wearing totalitarian symbols, uniforms, marching groups of people create fear easily. People have to learn how to trust in democratic institution, in authorities, in police forces. Extremist ideology, be it left-, or right-wing, ruins that trust amongst citizens. Supporters of that kind of theory agree on banning of using totalitarian symbols in public though it is a restriction of freedom of expression which is one of the most important and basic right that is laid down in every international conventions or documents.270 One of the most discussed and most sensitive part of expression is the clash of freedom to express someone‘s

Népszava online, Hungarian gazette. Available http://www.nepszava.hu/articles/article.php?id=442321. Accessed on: 10 July 2011. 269

Transitional societies and freedom of expression There is no society where freedom of expression is completely ensured and there is no society without any form of expression. E. g. the USA is frequently called the ―land of dreams‖ which theoretically means that everyone is equal and has the same rights and obeys and thus everyone is able to realize its dreams. But it does not mean in the same time that everyone has the same chance to use these rights as well. But of course has more chance if compared to the so-called last dictatorships in the world like NorthKorea, Cuba, Zimbabwe or Belarus. If we go further it comes that being free and using rights and freedoms depends more

at:

271‟Call

for all totalitarian symbols to be banned in EU‟ EU Observer. Available at: http://euobserver.com/843/18323. Accessed on: 10 July 2011. 272 Available at: http://www.radicalparty.org/en/content/uninternational-experts-condemn-curbs-freedom-expression. Accessed on: 14 November 2011.

The Universal Declaration of Human Rights Art. 19. Available at: http://www.un.org/en/documents/udhr/index.shtml#a19. Accessed on: 14 November 2011. International Covenant on Civil and Political rights Art. 19 and 20. Available at: http://www2.ohchr.org/english/law/ccpr.htm. Accessed on: 14 November 2011. 270

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on the system of society you live in than on the existence of the rights and freedoms itself. In theory every country grants freedom of expression to its citizen. But degree of democracy is showed by the fact how citizens are allowed to use this right. That distinguishes democracies from despotic or totalitarian societies. Dictatorship‘s rules ban people to be themselves, to behave as they could if they lived in a democratic state, and to say what they want to but could not in absence of freedom of expression, thought, conscience and religion. Democracy on the other hand allows people to express their opinion, clash their points, use arguments but no violence. And there is only a narrow line between arguing and using force.

Even so the Hungarian Criminal Code is extremely strict and does not allow to citizens to wear them and it is explained by the brief Fascist and the 40 years lasting Communist past of the nation. It wants to antedate any situations that could help extremist parties to be strengthened. In 1989 Hungarian transition was peaceful after a political round-table where transitional forces get together to count down the Soviet past and open the country for the market economy, change the socialist one-party regime and build a new western-type democracy. A new constitution was adopted, new directions were pointed out, free and transparent elections were held and the new government, elected by citizens of the independent Republic of Hungary, had begun to work.

Some transitional societies lack the ability to handle a situation when extremist groups appear and want to get more influence among citizens in order to work out their base and propagate their views. A real fear emerges from being off the rails of democracy, losing independence or even turns back to previous dictatorships. Transitional societies have no experience of democracy and people have no trust in what they do not know. In a balanced and healthy society people are able to decide if an ideology is harmful or offending thus using totalitarian symbols are allowed as simple symbols of people identifying themselves with a certain political point of view.

Conclusion Central and Eastern Europe made its transition in 1989/90 and after more than 20 years these countries had made lots of changes in their legislation and ensured a wide range of rights that people have not owned or owned only in a restricted way before. In spite of that fact there are still incompleteness as we can see through the studied case. Freedom of expression may clash others right to live in peace. Our task is to work on to correct these defects. Totalitarian symbols can work as certain kind of hate speech that can be punished. But from the studied case we realize that it cannot be automatic the red star cannot be banned only because of the fact that is was used by communists as well. In some cases it could be even absurd: in 1999 in a Hungarian town on the main square standing Christmas tree people thought there were red star shaped ornaments. Because of people‘s protest the town had to get down the ornaments. But of course products like Heineken or Converse can be distributed in the country although

Hungary and transitional justice In the concrete case of Mr. Vajnai the ECHR argued that Hungary is over the transitional period having passed almost 20 years after transition in 1989 from communism to democracy. There is a working market economy; Hungary is a member of the North Atlantic Treaty Organization, NATO (1995) and the European Union (2004). At the precise time there were no real danger to get the power any far-left forces, democracy and the rule of law solidified. Wearing a symbol of the International Workers‘ Party at a lawful demonstration is normally a form of expressing political commitments. Page 90


they have red stars on them as well.273 Wearing totalitarian symbols and making hate speeches are dangerous in every society but it is even more dangerous in transitional societies. Many countries in Europe have been going through transition and many still face its challenges. They also have to be aware to avoid social or ethnic problems.

273 Orbán Zsombor: A véleménynyilvánítás szabadságának korlátozása a büntetőjogban és az önkényuralmi jelképek tiltásának a problematikája Jogi fórum (2007) 29. Available at: http://www.jogiforum.hu/files/publikaciok/orban_zsomborvelemeny_onkenyuralmi[jogi_forum].pdf. Accessed on: 14 November 2011.

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Bibliography     

German Criminal Code: Section 86: Dissemination of propaganda material of unconstitutional organizations and Section 86a: Using symbols of unconstitutional organizations http://echrblog.blogspot.com/2008/07/red-star-judgment.html The ECHR blog, Red star judgment, 9 July 2008 http://euobserver.com/843/18323 EU Observer

http://legislationline.org/documents/section/criminal-codes http://legislationline.org/documents/section/criminal-codes

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Code of the Republic of Hungary 

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Kodeksz

Karny, Criminal Code of 

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_n o=IV-4&chapter=4&lang=en United Nations Treaty Collection, International Covenant on Civil and Political Rights

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A véleménynyilvánítás szabadságának korlátozása a büntetőjogban és az önkényuralmi jelképek tiltásának a problematikája Jogi Fórum (2007) 29. http://www.mkab.hu/admin/data/file/666_14_2000.pdf The homepage of The Constitutional Court of the Republic of Hungary http://www.nepszava.hu/articles/article.php?id=442321 Népszava online, Hungarian gazette

http://www.poland.pl/info/information_about_poland/constitution/c h1.htm Constitution of Poland http://www.radicalparty.org/en/content/un-international-expertscondemn-curbs-freedom-expressionNonviolent Radical Party transnational and transparty, UN, International experts condemn curbs on freedom of expression http://www.un.org/en/documents/udhr/ UN The Universal Declaration of Human Rights László Blutman, „The Use of International Law in Constitutional Interpretation‟, Jogtudományi Közlöny 64 (2009), 312-14. Michal Bobek, A new legal order, or a non-existing one? Some (early) experiences in the application of EU law in Central Europe, Croatian Yearbook of European Law and Policy 2 (2006) 265-298. Poland Prof. Dr. Carlos Closa Montero: Study on how the memory of crimes committed by totalitarian regimes in Europe is dealt within the Member States, Contract No JLS /2008/C4/006 Prof. Michael J. Bazyler: Holocaust Denial Laws and Other Legislation Criminalizing Promotion of Nazism (2006), 9. Vajnai v. Hungary (Appl. no. 33629/06) Decision of 8 July 2008, ECHR Reports, para. 20-55.

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JOINT CRIMINAL ENTERPRISE AS THE TRANSITIONAL JUSTICE MECHANISM By Aleksandra Djordjevic* ABSTRACT This essay is about Joint Criminal Enterprise (JCE) and how it helps bring transitional justice. I will analyse JCE and how it helps some of the basic principles of transitional justice: the right to know, the right to justice, and the right to non-reoccurrence. Genocide, crimes against humanity, and war crimes are supported and carried out by the system. Battling the impunity of those that held high rank positions, who are the ones that were behind the steering wheel, has been a challenge of international criminal law. With the use of the categories, such as common plan and common purpose and knew or should have known, carefully packed into the joint criminal enterprise doctrine, it is possible to make those who had important roles in these kinds of systems responsible before the law. It has become a powerful legal tool that helps in realising the victims' comprehensive rights and the transitional justice principle of the right to justice. Furthermore, assigning criminal liability to individuals for activities carried out by a collective takes into account how widespread and systematic violence occurs and it more precisely depicts the whole story. The victims of these mass atrocities need to know the whole truth and not just certain events taken out of context. JCE has a crucial impact on the process of dismantling institutions that allowed mass atrocities to take place and as a result it helps prevent the repetition of crimes. * Aleksandra Djordjevic ([email protected]) is a human rights activist and a youth trainer from Serbia. She is currently doing her Master thesis at the University of British Columbia Faculty of Law on the topics of international human rights and discrimination. She is also a graduate research assistant at the Centre for Feminist Legal Studies at UBC. She graduated from the Faculty of Law in Nish in 2009 and continued her work on human rights and transitional justice in Belgrade with a regional NGO Youth Initiative for Human Rights. After finishing her internship at the Trial Chambers at ICTY, she attended a two-semester course at the Centre for Feminist Legal studies in Belgrade. Research interests: Human Rights, Transitional Justice, Feminist legal theory, discrimination, LGBT rights, minority rights. Page 93


I.

INTRODUCTION

for the prosecution as it tries to prove its case. In complex crimes, such as genocide, the participants play different roles with regards to the organising, planning, coordinating, and otherwise contributing to the criminal conduct.

Joint criminal enterprise (JCE) is a mode of individual criminal responsibility. It is one of the principal developments in international humanitarian and criminal law. In the aftermath of the Holocaust and many other international crimes since, major efforts have been made to make those who are most responsible for mass atrocities liable. Assigning criminal liability to individuals for activities carried out by a collective takes into account how widespread and systematic violence often occurs and helps to ensure that those most responsible are not protected from prosecution.

Even though the ICTY Statute does not explicitly codify JCE, it was introduced by the Appeals Chamber in its Tadic Judgment.275 Before the Tadic decision, a pre-existing plan to commit a crime and the responsibility of those who participated in a ―common criminal purpose‖ was considered at the ICTY in the Delalic et al.276 However, it was the Appeals Chamber in Tadic that established joint criminal enterprise in customary international law. The Appeals Chamber analysed the relevant post World War II cases, including one referred to as the Essen Lynching case, which most resembles the notion of JCE. Essen Lynching was tried before a British military court and was about three British prisoners of war who had been lynched by a mob of Germans in the town of EssenWest on 13 December 1944. The German captain had given an order, loud enough for everyone to hear, that the German soldiers should not interfere if the civilians should molest the prisoners. The prisoners of war were marched through one of the main streets of Essen-West and eventually lynched by members of the crowd.

The relevance of JCE was explained by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadic case, ―to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act.‖274 The focus of this paper is to analyse JCE as a mode of liability in international criminal law and how it plays a significant role as one of the court-based transitional justice mechanisms. In the first part, I will, using the jurisprudence of the ICTY, analyse the three categories of JCE. In the second section I will focus on the function of JCE as a transitional justice mechanism, which has contributed to the right of the victims to know the truth, the right to justice, and right to nonrecurrence. II.

The Appeal Judgment in Tadic defined three categories of JCE. They all have the same actus reus elements: A plurality of persons who need not be organised in a military, political organisation, or administrative structure. The existence of a common plan, design, or purpose which amounts to or involves the commission of a crime provided for in the statute. There is no necessity for this

ICTY AND THE TADIC CASE

It has been shown to be extremely difficult to determine what the contribution of each individual is in a criminal enterprise. Finding the required evidence against each individual perpetrator is a challenge 274

When dealing with the matter, the Tadic Appeals Chamber traced the concept back to Nuremberg jurisprudence, case law and national legislation, concluding that it is customary international law. 276 Delic et al. Trial Judgement, para. 328. 275

Tadic Appeal Judgement, para. 192.

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plan, design, or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons act in unison to put into effect a joint criminal enterprise. Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.277

known as the category‖.281

―concentration

camp

The third category includes criminal acts that fall outside the common design. The reasoning for this is that some acts are a natural and foreseeable consequence of the common purpose. In this ―extensive‖ category there is a dual mens rea. For the crimes that fall within the common purpose, direct intention is required. However, for those that fall outside the common plan, dolus eventualis is required. It is to be emphasised that this question must be assessed in relation to the knowledge of a particular accused.282 A question that arises relating to the application of JCE is what the required mens rea is when it comes to crimes with specific intent. This is important when considering the crime of genocide, for example, which requires evidence of dolus specialis, in the context of the third category JCE, which only requires dolus eventualis. The differing opinions and interpretations of judges and commentators are most evident with regard to the application of the third category of the JCE.

The mens rea element differs according to the category of common design under consideration.278 The first category relates to cases where the intent to perpetrate a certain crime is shared by all the co-perpetrators. The shared intent can be concluded indirectly on the basis of ―knowledge of the criminal nature of the enterprise and the continued significant participation therein.‖279 In this case, the prosecution need only to prove that the person had a shared intent required for that crime and, if it went beyond the object of the joint criminal enterprise, the prosecution needs to establish that the crime was a possible consequence of that joint enterprise.

In the Brdjanin Decision on Interlocutory Appeal, it was clarified that a participant in a third category JCE can be held responsible for the commission of genocide when the crime of genocide has been committed as a natural and foreseeable consequence of a JCE.283 What is more, this decision confirmed that ―as a mode of liability, the third category of joint criminal enterprise is no different from other forms of criminal liability which do

The second category, known as systemic JCE, requires an organised system with a common criminal purpose.280 With regard to mens rea, personal knowledge of the system of ill-treatment is required as is intent to further it. This category is also

281This

was considered in the Krnjojelac Appeal Judgment para. 97, that it “should have examined whether or not Krnjojelac knew of the system and agreed to it, without it being necessary to establish that he had entered into an agreement with the guards and soldiers - the principal perpetrators of the crimes committed under the system - to commit those crimes”; Kvocka Appeal Judgment para. 118. 282 “A participant may be responsible for such crimes only if the prosecution proves that the accused had sufficient knowledge such that the additional crimes were a natural and foreseeable consequence to him.” Kvocka, Appeal Judgment, para. 86; also in the Stakic case Appeals Chamber confirmed that, “those deaths in the camps were foreseeable to the Appellant, and that he willingly took that risk.” 283 Brdjanin Decision on Interlocutory Appeal paras. 7-10.

Tadic Appeal Judgment, para. 227 Ibid. 279 Kvocka Appeal Judgment, para. 88. 280 The category was derived from concentration camp cases from the Second World War. But in the Kvocka Appeal Judgment the court emphasised: “category known as concentration camps”, the second category of joint criminal enterprise, known as systemic, covers all cases relating to an organised system with a common criminal purpose perpetrated against the detainees. 277 278

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not require proof of intent to commit a crime on the part of an accused before criminal liability can attach.‖284 However, there are many debates that try to emphasise that JCE is not based on the customary international law.285 Some of the critics argue that JCE 3 unnecessarily broadens the scope of liability and brings into it a large number of those that are considered to be ―guilty by association‖.

The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.286 The set of principles for the protection and promotion of human rights through action to combat impunity, updated in 2005, contain four rights of victims, but they serve the society as a whole as well. They are: the right to know, the right to justice, the right to reparation and the right of non-recurrence.

III. JCE AS A TRANSITIONAL JUSTICE MECHANISM Before the JCE doctrine emerged the only way to bringing the perpetrators of mass atrocities to account was by either prosecuting them as the direct perpetrators who committed the crime, for having aided and abided the crime, or by using command responsibility and then looking into the official chain of command. Justice had limited tentacles reaching only superiors, helpers and those who actually ―pulled the trigger.‖ All the others who were part of the criminal plan remained safe even though they contributed. Searching for a legal mechanism that could help render justice started with the Nuremberg Trials. It is there that a legal principle, Nullum crimen, nulla poena sine lege, was broken in order to define crimes against humanity. As Robert Jackson, the Supreme Court Justice at the Nuremberg Trials, explained in his statement:

THE RIGHT TO JUSTICE The joint criminal enterprise doctrine was created as a tool to bring to justice all those who in some way made it possible for the perpetrator physically to carry out a criminal act. The criminal justice system could now act by ensuring that those that are most responsible for serious crimes under international law are prosecuted, tried and duly punished. An important aspect of this form of liability is that it is a higher degree of culpability than aiding and abetting. It is a form of commission of a crime. This was explained in the Tadic Appeal Judgment, but was also confirmed -and clarified by later jurisprudence in the Ojdanic287 and Krnjojelac288 cases. The ICTY and other international and hybrid tribunals have tried and convicted a number of senior political and military leaders.289 The three leaders of the Revolutionary United Front (RUF) were finally convicted in October 2009. The Appeals chamber upheld the finding of the Trial Chamber that:

Brdjanin Decision on Interlocutory Appeal paras. 7-10. 285 Stewen Powels, for example, argues that international criminal law requires clear and certain definitions of the various bases of liability. He further claims that the prosecution had not specifically alleged Tadic‟s culpability in the indictment pursuant to joint criminal enterprise and that they went to JCE as a last resort since the case could not be proved on any other “standard” liability basis. Even though he concludes that the theory has been more developed and accepted since then, he warns that it must be used carefully because the JCE‟s “too broad nature might give rise to unfortunate miscarriage of justice.” Michael G. Karnavas considers JCE as a judge-made mode of liability. On the other part, Verena Haan remarks that there are contradictions about the third category of JCE because “the threshold for attributing liability becomes even lower than the threshold for holding a person responsible as aider and abettor.” For this reason, in the cases where genocide is commited as natural and forseable consequence the person should not be held responsible for genocide on the basis of JCE, but rather as aider and abettor under Art. 7(1) or as complicity to genocide under Article 4(3)(e). 284

Robert Jackson--Opening Statement at Nuremberg Decision on Ojdanic‟s motion challenging jurisdiction: indirect co-perpetration. 288 Krnjojelac Appeal Judgment, para. 73. “The Appeals Chamber accepts the Prosecution submission as justified and points out that it has since been upheld in the Ojdanic case. The chamber views participation in a joint criminal enterprise as a form of “commission” under Article 7(1) of the Statute”. 289 See for example the list of all ICTY judgments available at http://www.icty.org/sections/TheCases/JudgementList (last accessed on November 18th, 2011). 286 287

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…following the 25 May 1997 coup, high ranking AFRC members and the RUF leadership agreed to form a joint „government‟ in order to control the territory of Sierra Leone. The Chamber considers that such an objective in and of itself is not criminal and therefore does not amount to a common purpose within the meaning of the law of joint criminal enterprise pursuant to Article 6(1) of the Statute. However, where the taking of power and control over State territory is intended to be implemented through the commission of crimes within the Statute, this may amount to a common criminal purpose.290

violations. If we look at the ICTY judgements, for example, we can see sections that chronologically and extensively depict events that lead up to the crimes, the crimes themselves, names of places of capture and detention, places of murder or torture, and the location of mass graves. Having this official, judicially approved ―truth‖ published about what happened can be invaluable for the victims. THE RIGHT TO NON-RECURRENCE JCE has a crucial impact on the process of dismantling institutions — including state institutions, the armed forces, structures of regime police units, media that served to spread the hate propaganda, and the judiciary — that allowed mass atrocities to take place. By putting a flag on those responsible and making official records about what happened the potential for a similar conflict occurring again is reduced.

Heads of the states do not remain protected. In the ongoing case against the former president of Liberia, Charles Taylor, the indictment holds that the accused is individually criminally responsible if he ―otherwise aided and abetted or which crimes amounted to or were involved within a common plan, design or purpose in which the accused participated, or were a reasonably foreseeable consequence of such common plan design or purpose”.291 JCE helps even more by capturing a wider number of those who had important roles in the large-scale and systematic commission of international crimes. It discloses their true position and responsibility and results in appropriate punishment in view of the impact of their actions or omissions.

V. CONCLUSION High ranking politicians and military commanders that had roles and responsibilities in certain large scale crimes can be brought to justice with the help of the notion of joint criminal enterprise. Genocide, crimes against humanity, and war crimes are supported and carried out by their system. With the use of the categories — such as common plan and common purpose and knew or should have known — carefully packed into the joint criminal enterprise doctrine, it is possible to make those who had important roles in those kinds of systems responsible before the law. They knowingly participated in the criminal endeavour and sometimes even lead it. The detailed judgements help by hearing all the evidence and setting the official record of truth about of what happened while further abuses are prevented by the dismantling of the system that enabled the joint criminal enterprise.

THE RIGHT TO TRUTH JCE is based on a common plan or purpose and, in trying to prove the existence and the content of the plan and the role of those responsible, it puts a bright light on the truth about what happened. It depicts circumstances and reasons behind the systematic violations and tells a story of the perpetration of those crimes. This inalienable right to know the truth provides a further safeguard against the recurrence of

If we look at Security Council Resolution 808, that established the ICTY, we can find two important statements. The ICTY was established to bring to justice the

Appeals Chamber of the Special Court for Sierra Leone (“SCSL”) Judgment in the case against Messrs Sesay, Kallon and Gbao, para. 484. 291 Prosecution‟s Second Amended Indictment against Charles Taylor, count 33. 290

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persons responsible for the grave crimes committed and to contribute to the restoration and maintenance of peace.292 Furthermore, in the Security Council Resolution related to the Rwanda Tribunal one of the emphasised goals was national reconciliation.293 JCE has made a great contribution to the decisions on genocide, war crimes, and crimes against humanity, but it has also helped render justice. As Professor Mark Osiel, in his work, ―Banality of good‖, pictured it: “The doctrine also tells a darker story about organisational superiors than superior responsibility, for it depicts them not as simply asleep at the wheel, but driving purposively toward disaster.” Of course, JCE is also a part of the variety of mechanisms that help fulfil the rights of the victims. For example, looking forward, the massive archive stored at the ICTY, which includes many cases that would not have been possible without JCE as a mode of liability, could serve as a basis for some future truth commission in the region of the former Yugoslavia.

292 293

SC Resolution 808, 1993. SC Resolution 955, 1994.

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BIBLIOGRAPHY                     

Guide through the Hague Tribunal; regulations and practice, OSCE mission in Serbia, Belgrade, 2007. Haan, Verana. The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the Former Yugoslavia, International Criminal Law Review 5: 167–201, 2005. http://www.icc-cpi.int http://www.sc-sl.org Karnavas, Michael G. Joint Criminal Enterprise at the ECCC, A critical analysis of two divergent commentaries on the Pre-Trial Chamber‘s Decision against the application of JCE. Osiel, Mark. The banality of good: aligning incentives against mass atrocity, 105 Colum. L. Rev. 1751 (2005). Powles, Steven. Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?, 2 J of Intl Crim Justice (2004). Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999. Prosecutor v. Milomir Stakic (Appeal Judgement), IT-97-24-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 22 March 2006. Prosecutor v. Milorad Krnojelac (Appeal Judgement), IT-97-25-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 17 September 2003. Prosecutor v. Milutinovic et al. (Decision on Ojdanic‘s motion challenging jurisdiction: indirect co-perpetration), IT-05-87-PT, International Criminal Tribunal for the former Yugoslavia (ICTY), 22 March 2006. Prosecutor v. Miroslav Kvocka et al. (Appeal Judgement), IT-98-30/1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 28 February 2005. Prosecutor v. Radoslav Brdjanin (Decision on Interlocutory Appeal), IT-99-36AR73.9, International Criminal Tribunal for the former Yugoslavia (ICTY), 11 December 2002. Prosecutor v. Zdravko Mucic aka "Pavo", Hazim Delic, Esad Landzo aka "Zenga", Zejnil Delalic (Trial Judgement), IT-96-21-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 16 November 1998. Sary, Samphan and Thirith, Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE) (Case File No: 002/19-09-2007ECCC-OCIJ), Pre-Trial Chamber, 20 May 2010. Security Council Resolution 808, S/Res/808 (1993). Security Council Resolution 955, S/Res/808 (1994). UN Commission on Human Rights, Updated Set of principles for the protection and promotion of human rights through action to combat impunity, 8 February 2005. van Sliedregt, Elies. Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide. www.ictr.org www.icty.org


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REFUGEES WITHIN TRANSITIONAL JUSTICE: THE FORGOTTEN ACTORS? By Claire Schaepelynck* ABSTRACT Transitional justice is an interesting legal and social concept: to discover the truth, to prosecute and punish responsible perpetrators, to reconcile them with the victims and bring peace within a country, which suffered massive violations of human rights. A lot has been said in the literature regarding transitional justice. Some have pointed out the advantage of transitional justice and some strongly criticised it arguing that it is ―reflective of a legalist tendency within transitional justice to abstract law from its political context‖ 294. However, I would argue that a gap still persists in transitional justice literature since the place, or rather the role, of refugees has never been explored. Refugees are actually part of the people who suffered the most during the conflict. They had no protection; they had to flee, to build their lives somewhere else and, yet, there is nothing said regarding the role they could play or even should play. I would, therefore, argue that a real transitional system, envisaged to bring the truth, justice, and reconciliation to society295 does not really exist as long as refugees, citizens of the wounded country, are not taken into consideration.

*Claire Schaepelynck holds a LLM in International and European Public Law, European Asylum Law. She is currently working in Brussels for the appeal court for Refugees, asylum seekers and migrants. [email protected]

Thomson, Susan and Rosemary Nagy, Law, Power and Justice: What Legalism Fails to Address in the Functioning of Rwanda‟s Gacaca Courts? International Journal of Transitional Justice Vol. 5, 2011, 11-30. doi:10.1093/ijtj/ijq/024, 2010, Oxford University Press, p. 12. 295 “Society” is understood here as “victims and perpetrators” since in some cases, it concerns the entire country such as in Rwanda. 294

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WHAT ROLE SHOULD OR COULD REFUGEES PLAY WITHIN TRANSITIONAL JUSTICE? The legitimate reasons, from a social approach, to include the problem of refugees Transitional justice is supposed to reconcile victims and perpetrators, and bring peace within a society. In this essay, I would define society as the population of a certain country, which suffered from massive violations of human rights.296 If the society tries to set up a transitional justice system but does not take into consideration the refugees it created itself, then it is arguable to think that this system will be incomplete and will not reach the goal of reconciliation. ―Reconciliation, minimally, is the condition under which citizens can trust one another as citizens again (or anew). That means that they are sufficiently committed to the norms and values that motivate their ruling institutions, sufficiently confident that those who operate those institutions do so also on the basis of those norms and values, and sufficiently secure about their fellow citizens‘ commitment to abide by these basic norms and values.‖.297 Indeed if a massive part of the population fled the country, then a reconciliation process can take place only with a part of the population so only with a part of the society, leaving out wounded citizens. From the social perspective of healing a nation, refugees have to be taken into account. Moreover, I would argue the assumption that transitional justice should give a role to refugees because they find themselves within a vicious circle. They left their country and continued to stay away from it because of this lack of justice and Turgis, Noémie. What is Transitional Justice? International Journal of Rule of Law, Transitional Justice and Human Rights, Volume 1, December 2010. 297 de Greiff, P.. “The Role of Apologies in National Reconciliation Processes: On Making Trustworthy Institutions Trusted”, The Age of Apology, Facing up the Past, University of Pennsylvania Press, 2008, p. 126, . 296

inability or unwillingness of the state to give them protection.298 I would argue that a proper transitional justice system has to envisage the issue of refugees and the possibility for them to return and participate in the reconciliation process. Another ―moral‖ reason to include the refugees could be found in the goal of suppressing the international community‘s guilt. If we take the example of Rwanda, it is clear that the objective of setting up the ICTR and the Gacaca was to try to compensate the guilt of the international community of not preventing or intervening during the genocide. However, establishing tribunals, judging the past to try to move forward, is not sufficient. With setting up those tribunals, we enclose the society within a legal frame but do not address the social, economic and historical roots of the problems. It can be argued that if only a legal perspective is envisaged, there is a risk that the conflict might occur again. Indeed, in the Rwanda example, it has to be recalled that colonialism enhanced the differences between Hutu, Tutsi and Twa and considered the Tutsi as superiors.299 That is part of the root problem but it has not been envisaged and we still have people fleeing Rwanda with well-founded fears based on their ―race‖.300 The legal frame presents some gaps because it focuses only on judging to lead to reconciliation but it does not say how to deal with refugees abroad or how to distinguish refugee victims from those who participated in the genocide. It also does not envisage the inclusion of refugees Harris Rimmer, Susan. Reconceiving Refugees and Internally Displaced Persons as Transitional Justice Actors, Centre for International Governance and Justice Issues Paper n°7, April 2009, Australian National University, p 3. 299 Berry, John A. and Carol Pott Berry (eds.) A Review of Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda, Princeton University Press, 2001, p 364. Genocide in Rwanda: A Collective Memory. Washington, DC: Howard University Press, 1999, p 201. http://www.du.edu/korbel/hrhw/volumes/2002/21/magnarella2-1.pdf, 13 November 2011. 300 I used the term “race” in accordance with the criterion of the Geneva Convention relating to the Status of Refugees (adopted 28 July 1951, enforce 22 April 1954) 189 UNTS 137 (Refugee Convention) 73. In this case, we can understand “race” as “ethnicity”. 298

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who would like to come to their country. Indeed, some refugees can be very reluctant to begin the process of repatriation because ―the refugee would need to forego their anonymity and expose the fact that they have sought refuge elsewhere‖.301 Therefore, ―it is important that refugees are able to reconstruct their identity by assuming different social roles and interacting with community members so that they are not seen solely as exrefugees‖.302 Therefore, I think that the social approach dimension with the inclusion of refugees within the society should be primary to the transitional justice system. The legal reasons/grounds to include the issue of refugees I would argue that so far, when a transitional justice system is set up and when the well-founded fear that refugees experienced is suppressed, it confers a particular right to refugees: the right to return. This right has several legal foundations in international law. Under Article 9 of the Universal Declaration of Human Rights, a right of return to one‘s own country is expressly recognised and such right is also expressly recognised in Article 13(2) of the same document.303 Additionally, in Annex Seven of the Dayton Peace Agreement refugees and displaced people ―have a right to freely return to their homes of origin,‖ and states have a duty to ―accept the return of such people who have left their territory, including those who have been accorded temporary protection by third countries‖.304 The International Covenant Harris Rimmer, Susan. Reconceiving Refugees and Internally Displaced Persons as Transitional Justice Actors, Centre for International Governance and Justice Issues Paper n°7, April 2009, Australian National University, p 3. 302 Annan, Jeannie and Ana Cutter Patel, Critical Issues and Lessons in Social Reintegration: Balancing Justice, Psychological Well Being, and Community Reconciliation, May 200. The official website of the International DDR Congress, held in Cartagena de Indias, 4, 5 and 6 May 2009. 303 Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3rd Sess., Supp. No. 3, at 71, U.N. Doc. A/810 (1948), accessed on 13 November 2011, Article 13(2). Reads as follows: “No one shall be subjected to arbitrary arrest, detention or exile”, available at http://www.un.org/en/documents/udhr/., 304 The Dayton Peace Accord, Nov. 21, 1995, Annex Seven, available at 301

on Civil and Political Rights also says in article 12(4) that, ―no one shall be arbitrarily deprived of the right to enter his own country‖.305 ―The ‗right of return‘ to their home countries became an internationally recognised human right that ought to be guaranteed. The exercise of this right of return was envisaged as the cornerstone of the concept of temporary protection‖.306 As such, this right is internationally recognised but it remains a passive right because the main actors are the states. The host state wants to enhance the voluntary or forced return of refugees but, to do so, the country of origin must have a functional judicial system and legal guarantees that create the necessary conditions for a safe return. The refugee does not play a role; he or she is a passive actor. It would therefore be interesting to give a more important role to refugees, shifting from a passive right to an active right. It would also join the argument stated in the social approach, that giving them social roles and interacting with the community allows them to shift away from their solely refugee quality. Indeed, I would argue that transitional justice would win by getting out of a purely legalist frame and including several perspectives in order to bring back peace and reconciliation. If we take the example of Rwanda; it has been member of the United Nations since 1962. As such, it has to follow the United Nations Charter. In Article 8, this charter recognises that everyone has a right to an effective remedy. If I pursue my argument that refugees are part of the citizens who suffered the most, then they should get access to this effective remedy and get reparations, taking into account that this notion is a very problematic one. However, http://www.state.gov/www/regions/eur/bosnia/bosagree.html, 13 November 2011. 305 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966). Article 12(4). 306 Sopf, Davor. Temporary Protection in Europe After 1990: The “Right to Remain” of Genuine Convention Refugees, UNHCR Branch Office, Zagreb, Croatia, Washington University Journal of Law and Policy, Vol.6, 2001.

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I think that the right to an effective remedy should be envisaged as an active right of seeking remedy and therefore making the refugees real actors. Giving them this opportunity would lead to no longer differentiating them from other citizens and, therefore, give them the rights attached to their nationality such as seeking a remedy. Such a possibility could enhance their will to return. CREATING A TRANSITIONAL JUSTICE SYSTEM WHERE REFUGEES HAVE THEIR ROLE TO PLAY Addressing the roots of the problems In the example of Rwanda, what we witnessed is the desire to reconcile divided communities that were devastated by genocide. The Gacaca system appeared to be the best example for judging the perpetrators (except the perpetrator of category one) in order to bring back peace and lead to reconciliation. However, creating Gacaca has been viewed as punishment and not as healing. During the instauration of Gacaca courts, the focus has been on legality.307 However, as seen previously, a focus on legality is near-sighted because it does not address the roots of the problems and the comprehensive need of the victims for truth and reparation. In transitional justice, there is a real need for a comprehensive approach, not only a remedy. The roots of the problems often exist in historical, social, economic and political reasons and in humanity itself. For instance, in the Rwanda example, the historical roots of the problems have been left out whereas: ―During their colonial tenure, the Germans and Belgians ruled Rwanda indirectly through Tutsi monarchs and their chiefs. The colonialists developed the so-called Hamitic hypothesis or myth, which held that the Tutsi and everything humanly superior in Central Africa came from ancient Egypt or Abyssinia. The Europeans regarded Hutu and Twa (about 3% of the population) as inferior to Tutsi. Thomson ,Susan and Rosemary Nagy. Law, Power and Justice: What Legalism Fails to Address in the Functioning of Rwanda‟s Gacaca Courts, International Journal of Transitional Justice, Vol.5, 2011, 11-30, doi: 10.193/ijtj/ijq024, Oxford University Press, p. 13. 307

Sixty years of such prejudicial fabrications inflated Tutsi egos inordinately and crushed Hutu feelings, which coalesced into an aggressively resentful inferiority complex.‖308 Another problem is that ―the field of transitional justice has historically excluded issues of economic inequality, structural violence, redistribution and development‖.309 The focus of transitional justice is to correct the injustices from the past and it is usually focussed on human rights violations and, when ―it does address economic issues, it focuses on reparations or compensation for a victim group defined by the institution‖310. The main problem of not envisaging all the roots of the problems is that it limits the conflict, the violence, and gross violation of human rights. For instance in Rwanda, the transitional justice system sees the problem as an ethnicity issue rather than ―decades of inequity, unequal land distribution and colonial construction‖.311 Therefore, if the transitional justice system does not have a comprehensive approach to the roots of the problems and especially the economic ones, ―it may actively contribute to new outbreaks of violence‖.312 It is also necessary to take into consideration the psychological dimension, the traumas experienced and the human reactions and hard feeling that could result. What is needed, therefore, in transitional justice to make people come back and create peace, is a comprehensive approach. The psychological, human dimension ―Some individuals who participate in or are exposed to violence may suffer from psychological disturbances as well as

Berry, John A and Carol Pott Berry. (eds.), A review of Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda, Princeton University Press, 2001. p. 364; Genocide in Rwanda: A Collective Memory. Washington, DC: Howard University Press, 1999. p. 201. 309 Zinaida Miller, Effects of Invisibility: In Search of the “Economic” in Transitional Justice, International Journal of Transitional Justice, Vol.2, 2008, 226-291, doi: 10.1093/ijtj/ijn022, Oxford University Press. 30 October 2008. 310 Ibid. 311 Ibid. 312 Ibid. 308

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more fundamental identity and spiritual problems‖.313 Therefore, I argue that this dimension should be essential when constructing a transitional justice system. As argued previously, refugees managed to flee the country but their trauma remains. If the goal is to bring back peace, which cannot be done without including the problematic of refugees who are still citizens of a wounded country, the psychological dimension has to be taken into account from the beginning. The state should first demonstrate that the well-founded fear of persecution has disappeared, then that refugees still have enough ties with their country of origin to be willing to come back, construct their lives and participate in the healing process. There might be a desire for revenge and the transitional justice system itself may be used as a tool for revenge as it was in the Gacaca process where the witnesses are usually the only grounds to judge people. Refugees want to see their perpetrators prosecuted so that they can feel a sense of justice. This leads me to the following thought that transitional justice should not be collective but somehow be individual.314 Indeed, transitional justice such as the ICTY, has to choose who to prosecute. Therefore, some will be satisfied that their perpetrators being judged and other will not and see the situation as unfair and this cannot objectively lead to reconciliation. If there is no possibility of reconciliation and no suppression of wellfounded fears, which can be subjective fear as accepted in the case law, then the refugees will return. Moreover, if we take the example of Rwanda, it must be recalled that the population lives together with génocidaires and victims. Therefore a neighbour can be the one who killed the entire family of his/her neighbour. From a psychological point of view, this dimension will affect the human being and does create a desire for Barsalou, Judy. Trauma and Transitional Justice in Divided Societies, , Special Report, United States Institute of Peace, April 2005. 314 Nalepa Monika. Why do They Return? Evaluation the impact of ICTY Justice on Reconciliation, Political Science Rice University Harvard Academy Scholar, 26 January 2007.

revenge or a well-founded fear. Why would refugees go back to live among their perpetrators? It would be interesting to think of this problem when trying to include refugees and creating the conditions for them to come back. THE PROBLEMATIC RWANDA GRACACA CASE: A TRANSITIONAL JUSTICE SYSTEM CREATING REFUGEES The Gacaca courts were the only transitional justice system that actually tried to prosecute everyone responsible for or participating in the genocide. It was argued that it is a good system to fight impunity especially with the rule of non bis in idem. However, the problem with the non bis in idem rule is that there is a risk that someone innocent will be prosecuted again by the same people for the same thing. In some cases I have been dealing with, I observed that people, under pressure, threatened to charge someone in front of the Gacaca. The real reason for persecution most of the time is to seek material compensation, a house, land. In most of my cases, people flee because they are forced to lie and cannot get assistance. They have no choice but to leave the country. My argument would therefore be that this kind of transitional justice system also creates refugees. It does so because, as we have seen, the economic, social and historical reasons have never been envisaged. The Rwanda system is very particular within transitional justice. The supreme goal was to lead the population to reconciliation. It is a good example, which shows that a comprehensive approach to the problem has not been taken into account. ―Gacaca is part of a stateimposed veneer of reconciliation that does little to address the social and political divisions and injustices that underlie mass atrocity and conflict‖.315 This transitional justice system skipped the

313

Thomson, Susan and Rosemary Nagy. Law, Power and Justice: What Legalism Fails to Address in the Functioning of Rwanda‟s Gacaca Courts? International Journal of Transitional Justice Vol. 5, 2011, 11-30, doi:10.1093/ijtj/ijq/024, 2010, Oxford University Press, p, 12. 315

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roots of the problems where genocide cannot be understood apart from the conditions of structural violence, poverty and social exclusion that characterised Rwanda in the 1990s.316 Research done by Susan Thomson and Rosemary Nagy showed that Rwandan citizens were not willing to participate in the Gacaca process. If the people who stayed were not willing to participate, it is even more problematic and complicated to imagine that refugees would return and participate. In some cases I have been dealing with,317 the pressure on some witnesses is really striking. Since the Gacaca is based on a system of truth-telling, I have seen people being threatened or even beaten up in order to coerce them to admit they witnessed others participating in the genocide. They do not have the chance to get any protection so the luckiest manage to escape to other countries and request asylum. In those cases we can argue that this model of transitional justice is far from being a perfect system. It has been criticised for lack of protection of witnesses and the absence of attorneys. The fact that it creates refugees should be considered as a very serious and problematic issue jeopardising the reach of peace and reconciliation even more. It is thus creating the opposite of the goals transitional justice has been set up to fulfil. I do not have a solution to palliate those problems, but it has to be recalled that the Gacaca process should end by December 2011.318 It will be a new challenge for Rwandan society and it will be interesting to observe the consequences of the end of this transitional justice system. However, one might fear that the situation becomes worse since it never addressed the roots of the problems.

Refugees are the forgotten actors of the transitional justice system. For all the reasons pre-cited they should be integrated in the process of peace and reconciliation and they should be able to seek proper remedy for the damages they have suffered. It is necessary to have a comprehensive approach to the transitional system taking into account the roots of the problems, which led to mass atrocities and the psychological dimensions, traumatisms they created. The Gacaca system remains problematic because of lack of proof, lack of attorneys and a lack of international standards. It creates refugees and leads to the opposite of the goals of upholding the transitional justice system. In my opinion, the refugee issue within transitional justice is an important one, which has been totally forgotten and should be seriously envisaged when building transitional justice systems. The future will tell us if the Gacaca system managed to prevent a new conflict but one might fear that the roots of the problems are still underlying.

CONCLUSION

Uvin, Peter. Aiding Violence: the Development Enterprise in Rwanda, Kumarian Press, 1998. 317 Rvv-CCE, n° 65 130, 26th of July 2011, pp. 48 & 336. 318 http://www.lemonde.fr/afrique/article/2011/05/20/lerwanda-annonce-la-fin-des-proces-gacaca-endecembre_1525162_3212.html. 316

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BIBLIOGRAPHY Articles   

      



Triponel Anna. Stephen Pearson, What do you Think Should Happen? Public Participation in Transitional Justice, Pace International Law Review, Volume 22, Issue 1, Article 3, winter 2010. Harris Rimmer, Susan Reconceiving Refugees and Internally Displaced Persons as Transitional Justice Actors, Centre for International Governance and Justice Issue Paper n°7, April 2009, the Australian National University, p. 3. Annan, Jeannie and Ana Cutter Patel. Critical Issues and Lessons in Social Reintegration: Balancing Justice, Psychological Wellbeing, and Community Reconciliation, May 2009, the official website of the International DDR Congress, held in Cartagena de Indias, 4, 5 and 6 May 2009. Barsalou, Judy. Special Report, Trauma and Transitional Justice in Divided Societies, United States Institute of Peace, April 2005. Laplante, Lisa J. Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework, Oxford University Press. Nalepa, Monika. Why do They Return? Evaluation the Impact of ICTY Justice on Reconciliation, Political Science Rice University Harvard Academy Scholar, 26 January 2007. Turgis, Noémie. What is Transitional Justice? International Journal of Rule of Law, Transitional Justice and Human Rights, Volume 1, December 2010. van Zyl, Paul. Promoting Transitional Justice in Post-Conflict Societies, Chapter 10, 2005, ―Security Governance in Post-Conflict Peace-building‖, DCAF, Geneva. Harris Rimmer, Susan. Reconceiving Refugees and Internally Displaced Persons as Transitional Justice Actors, Centre for International Governance and Justice Issues Paper n°7, April 2009, Australian National University p. 3. Thomson, Susan and Rosemary Nagy. Law, Power and Justice: what Legalism Fails to Address in the Functioning of Rwanda‟s Gacaca Courts? International Journal of Transitional Justice Vol. 5, 2011, 11-30, doi:10.1093/ijtj/ijq/024, 2010, Oxford University Press, p. 12. Miller, Zinaida. Effects of Invisibility: in Search of the “Economic” in Transitional Justice, the International Journal of Transitional Justice, Oxford University Press, Vol.2, 2008, pp. 226-291, doi: 10.1093/ijtj/ijn022, 30 October 2008,.

Books:  Berry, John A. and Carol Pott Berry. (eds.), A Review of Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda, Princeton, NJ: Princeton University Press, 2001. p. 364, Genocide in Rwanda: A Collective Memory. Washington, DC: Howard University Press, 1999. p. 201. http://www.du.edu/korbel/hrhw/volumes/2002/2-1/magnarella2-1.pdf  de Greiff, P. ―The Role of Apologies in National Reconciliation Processes: On Making Trustworthy Institutions Trusted‖, The Age of Apology, Facing up the Past, University of Pennsylvania Press, 2008, p. 126.  Uvin, Peter. Aiding Violence: the Development Enterprise in Rwanda, West Hartford, CT: Kumarian Press, 1998. International texts  Universal Declaration of Human Rights, Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., Supp. No. 3, at 71, U.N. Doc. A/810 (1948), available at http://www.un.org/en/documents/udhr/ The Dayton Peace Accord,




Nov. 21, 1995, Annex Seven, available http://www.state.gov/www/regions/eur/bosnia/bosagree.html International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966).

at

Website  http://cartagenaddr.org/literature_press/ART_21.pdf  http://www.du.edu/korbel/hrhw/volumes/2002/2-1/magnarella2-1.pdf  http://rvv-cce.be  http://www.lemonde.fr/afrique/article/2011/05/20/le-rwanda-annonce-la-fin-desproces-gacaca-en-decembre_1525162_3212.html

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EVALUATING A DEMAND FOR INCLUSIONARY GOVERNANCE IN POST-CONFLICT SITUATIONS By Marjolein Schaap* ABSTRACT An international administration of a territory (ITA) can adopt decisions in individual situations while a proper legal framework for regulating transparency, participation in decision-making and access to justice (i.e. inclusionary governance) is lacking. The type of public power exercised by ITAs and its impact on the local level raises serious concerns relating to inclusionary processes in the decision-making procedures of ITAs. Therefore, the principal objective of this paper is to critically analyse whether inclusionary governance can be required from ITAs. In order to do so, the paper will firstly evaluate ITA mandates for inclusionary governance provisions. The author asserts that, while power-sharing arrangements are made between ITAs and local authorities, this does not necessarily amount to inclusionary governance, as the inclusion of the individual is the key. Secondly, the paper discusses the review of international organisations on the inclusion/exclusion of individuals in decision-making by ITAs. Lastly, the paper contends that the exclusion of individuals in decision-making procedures forms a more general problem in international law; therefore, a concise comparison is made between the exercise of public power by ITAs and that by international organisations.

* Marjolein Schaap holds an LL.M. in International and European public law from Erasmus University Rotterdam, Netherlands, with a thesis on the subject of ―Regulating the powers of the High Representative‖. Presently Marjolein works as a lecturer in Public International Law at the Erasmus School of Law, Erasmus University Rotterdam. Her research interests focus on the exercise of public power by international administrations and international institutions within the context of conceptualising the rule of law. She is currently in the initial stage of a Ph.D. on designing inclusionary governance for post-conflict situations by developing a new model for citizens‘ involvement.

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Introduction A temporary international administration of territory (ITA) by an international organisation or a group of states in postconflict situations exercises public power extensively. An international administrator can adopt decisions without engaging in significant consultations with affected individuals. An administrator can, for example, adjudicate property disputes,319 operate/reconstruct public utilities and dismiss people from public office.320 Similarly, several international institutions adopt decisions with direct impact on individuals while these individuals are not quite included in the process of decision-making, for instance the UN Security Council adopting financial sanctions against individuals. The all-encompassing governance by ITAs and the adoption of decisions in individual situations lead, in particular, to a significant constraint of state sovereignty, and directly affect the lives and opportunities of millions of people.321 The exercise of public power in this manner has led various international bodies to raise a claim for inclusionary processes into the decision-making procedures in individual situations of an ITA.322 Given the impact of the adoption of decisions in individual situations by ITAs and the exclusion of the individuals from decision-making procedures by ITAs, the principal objective of this paper is to present a critical analysis of the claim for inclusionary processes into decisionBuyse, A.C. Post-Conflict Housing Restitution. The European Human Rights Perspective, with a Case Study on Bosnia and Herzegovina (Antwerpen: Intersentia, 2008). 320 Knaus, G. and F. Martin. “Lessons from Bosnia and Herzegovina: Travails from the European Raj” Journal of Democracy 14 (2003) 60–74. 321 Buchanan, A and R.O. Keohane. “The Legitimacy of Global Governance Institutions”, Legitimacy in International Law (Berlin, Springer: 2008) 25 at p. 27. 322 European Commission for Democracy through Law of the Council of Europe (“Venice Commission”), Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, CDL–AD (2005) 004 (Venice, 11–12 March 2005) (“Venice Commission OHR”); Parliamentary Assembly of the Council of Europe, Resolution 1384 (2004), available at http://assembly.coe.int/ (7 November 2011); European Stability Initiative, Reshaping international priorities in Bosnia and Herzegovina – Part II International Power in Bosnia (Berlin: European Stability Initiative 2000). 319

making procedures by ITAs. In order to do so, the paper will firstly evaluate ITA mandates for inclusionary governance provisions. Within this assessment the role of human rights standards within ITAs will be taken into account, i.e. whether a claim for inclusionary governance can be further substantiated on the basis of the applicability of human rights standards to the conduct of ITAs. Subsequently, how the functioning of ITAs is assessed by international organisations will be examined; in other words, whether international organisations have identified a lack of inclusionary governance in relation to ITAs and whether they warrant inclusionary governance by ITAs. Lastly, the paper contends that the exclusion of individuals in decision-making procedures forms a more general problem in international law. Therefore, a concise comparison is made between the exercise of public power by ITAs and that by international organisations. Individual decision-making procedures of ITAs An ITA can be defined as the temporary governance of a territory in a post-conflict situation by an international organisation or group of states, such as the UNMIK323 in Kosovo, UNTAET324 in East-Timor and OHR325 in Bosnia and Herzegovina (BiH). ITAs exercise public authority extensively. The missions are argued to: ―…assume all-encompassing authority to exercise public power within a given territory for a temporary period of time and…this authority is ultimate in nature: that is, it supersedes all governing institutions possibly existing at the local – that is, the national – level‖.326

United Nations Interim Administration Mission in Kosovo (UNMIK). http://www.unmikonline.org/. 324 United Nations Transitional Administration in East Timor (UNTAET). http://www.un.org/en/peacekeeping/missions/past/etimor/etim or.htm. 325 Office of the High Representative of the international community, Bosnia and Herzegovina (OHR). http://www.ohr.int. 326 Momirov, A. Accountability of International Territorial Administrations – a Public Law Approach, (Utrecht: Eleven Publishing, 2011). p. 49. 323


The wide range of competences assumed by ITAs is notably described in the Brahimi report: ―[ITAs] [s]et and enforce the law, establish custom services and regulations, set and collect business and personal taxes, attract foreign investment, adjudicate property dispute and liabilities for war damage, reconstruct and operate all public utilities, create a banking system, run schools and pay teachers and collect the garbage‖.327 Among many measures, ITAs adopt several decisions in individual situations, which is the focus of this paper. Decisionmaking in individual situations concerns decisions of an administrative nature which influences the lives of individuals either directly or indirectly, e.g. regarding permits or infrastructure projects, and thus does not concern those procedures that are norm-developing, such as the development of legislation or policy standards.328 ITAs adopt decisions in individual situations, e.g. when removing a person from holding a public office or deciding on an individual case of housing restitution. The question is whether and to what extent individuals are included in these decision-making procedures. Three-dimensional approach to inclusionary governance This research paper adopts as its point of departure a three-dimensional approach to inclusionary governance: transparency, participation in the decision-making procedures and access to justice. It is generally accepted that, for proper inclusion of affected individuals it is these three elements that are paramount.329

The first dimension concerns transparency, implying that there should be free access to information, i.e. the right to seek information and the right to receive information. Transparency is generally considered a prerequisite for meaningful participation.330 The element of transparency builds on the right to freedom of information, which takes various forms within human rights treaties, most often protected through freedom of expression. The second dimension concerns participation in decision-making procedures of a public administrator. Participation can be realised through both formal and informal procedures. Participation in decision-making procedures finds limited reflection in human rights treaties. Nevertheless, various human rights bodies, including the Committee on Economic, Social and Cultural Rights, emphasise the need to mainstream inclusionary processes in decision-making, e.g. in relation to the right of adequate housing.331 The third dimension concerns access to justice in relation to which two separate elements can be identified. Firstly, this dimension focuses on the extent to which individuals directly affected by the decision can request a review thereof before an impartial entity. Secondly, it concerns the possibility of recourse to a remedy when rights protected by the other two dimensions are impaired. Within human rights treaties access to justice is protected by the right to a fair trial. The complementarity between the three dimensions implies that the lack or weakness of one dimension may to some

Report of the Panel on United Nationals Peace Operations (Brahimi report) UN Doc. A/55/305-S/2000/809. p. 21 August 2000, available at http://www.un.org/peace/reports/peace_operations (7 November 2011), para. II.H. The report questions the urge of the UN to classify the ITAs as peace operations and questions whether the UN should be engaged with this kind of mission at all. 328 Hey, E. “International Institutions”, The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007). 749 at pp. 749–759. 329 Ebbesson, J. “Public Participation” in Bodansky, Brunneé and Hey, The Oxford Handbook of International Environmental Law, see above n. 10, 681 p. 684. Global Administrative Law has identified these three principles as the core principles of administrative decision-making, see B. Kingsbury, N. Krisch, R.B. Stewart and

J.B. Wiener, “Global Governance as Administration: National and Transnational Approaches to Global Administrative Law”, Law and Contemporary Problems 68:3–4 (2005) 1–14 and B. Kingsbury, N. Krisch, and R.B. Stewart, “The Emergence of Global Administrative Law”, IILJ Working Paper 2004/1 (Global Administrative Law Series), available at www.iilj.org. Similarly, Multilateral Development Banks rely on these three principles for the decision-making procedures. See: e.g. the Operational Policies and Procedures of the World Bank at http://go.worldbank.org/2G5SSZAET0 (7 November 2011). 330 Boyle, K. “Thought, Expressions, Association and Assembly” in D. Moeckli, S. Shah and S. Sikvakumaran, International Human Rights Law, (Oxford: Oxford University Press, 2010). p. 268. 331 Temperman, J.T. “Public Participation in Times of Privatisation: A Human Rights Analysis” Erasmus Law Review 4:2 (2011).

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extent be compensated by broader protection under the other dimension(s). For instance, a lack of participation in decision-making procedures might be compensated by providing more 332 possibilities of redress. The paper will mainly focus on the concept of inclusionary governance and, only where necessary, will a reference to a specific dimension will be made.333 Contextualising a claim for inclusionary governance by ITAs Practice shows that the regulation and implementation of inclusionary processes in decision-making procedures by ITAs remain deficient.334 However, is there a sufficient ground to claim for inclusionary governance by ITAs? In order to do so, the paper will firstly evaluate ITA mandates for inclusionary governance provisions. Secondly, the paper discusses the review of international organisations on the inclusion/exclusion of individuals in the decision-making by ITAs. Lastly, the paper evaluates whether the exclusion of individuals forms a more general problem in international law by assessing whether and to what extent the exercise of public power by ITAs in individual situations can be compared with the exercise of public power by international institutions. EVALUATING ITA MANDATES INCLUSIONARY PROCESSES

FOR

Power-sharing arrangements between local authorities and ITAs: a basis for inclusionary governance? According to the handbook on UN Multidimensional Peacekeeping operations ITAs were set out to: ―…[administer] a territory for a transitional period, thereby carrying out See in this light e.g. the claim for an ombudsman in BiH and Kosovo due to limited involvement of citizens, whereas in EastTimor such a claim was never made In UNTAET, citizens were involved, both directly and indirectly, as regulated in the ITA‟s mandate. 333 This paper‟s findings are to be part of a doctoral research project. For further research results, please contact the author. 334 Stahn, C. The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge: Cambridge University Press, 2008); Momirov, A. Accountability of international territorial administrations, above n. 8. 332

all the functions that are normally the responsibility of a government‖, which creates a situation in which the international presence is ―responsible for directly managing all aspects of civilian life while simultaneously working to devolve its responsibilities to local authorities‖.335 The responsibility for ITAs to transfer power to local authorities lies at the core of the mandate of the ITAs.336 The longterm objective of ITAs is to ―do themselves out a job‖ by devolving authority back to the local community.337 This would imply close cooperation with the local people. As stated by the UN Panel on Peace Operations, ―effective state-building requires active engagement with the local parties‖.338 In other words, a growing consensus can be identified with the need to strengthen local ownership in the process of peace-building.339 A brief survey of ITA mandates Within the mandates of ITAs, special provisions were adopted in which power sharing arrangements between the ITA and the local authorities were included. As early as 1968, the General Assembly mandated the Council of Namibia to ―administer South West Africa until independence, with the maximum possible participation of the people of the Territory‖.340 A further example is the mandate of the UNMIK in Kosovo. It was mandated to organise and supervise the development of provisional institutions for United Nations, Handbook on United Nations Multidimensional Peacekeeping Operations, Department of Peacekeeping Operations, Peacekeeping Best Practices Unit (December 2003) pp. 2, 35 cited in Momirov, A. Accountability of International Territorial Administrations, above n. 8, pp. 51–52. 336 Momirov, A. Accountability of International Territorial Administrations, above n. 8, p. 153. 337 International Commission on Intervention and State Sovereignty (2011), Report: Responsibility to protect (Ottowa: International Development Research Centre), available at http://www.responsibilitytoprotect.org/index.php/publications (visited 7 November 2011), para. 5.31. 338 Report of the Panel on the United Nations Peace Operations, UN Doc. A/55/305-S/2000/809, above n. 9, para. 37. 339 Report of the Secretary-General of the United Nations, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616, 23 August 2004, para. 17. 340 Stahn. C. The Law and Practice of International Territorial Administration, above n. 18, p. 718; GA Res. 2248 (1968) para. 1(a). 335

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democratic and autonomous selfgovernment by ―transferring, as these institutions are established, its administrative responsibilities while overseeing and supporting the consolidation of Kosovo‘s local provisional institutions‖.341 Similarly, the UNTAET was mandated to exercise its authority ―with a view to…transfer to these institutions to its administrative and public service functions‖.342 In the case of Iraq, the Security Council requested the administrator to cooperate with the Iraqi Council in the exercise of its functions.343 The CPA regulated the cooperation in CPA Regulation No. 6, which stated that, ―the Governing Council and the CPA shall consult and coordinate on all matters involving the temporary governance of Iraq, including the authorities of the Governing Council‖.344 Hence, recent ITA mandates contain more explicit obligation to transfer authority and to cooperate with the local authorities. A short survey of mandates shows that power-sharing arrangements and thereby involvement by domestic authorities became an integral part of the mandate of ITAs.345 Diminishing the effect of the powersharing arrangements: final authority of ITAs However, the promising inclusion of local authorities via power-sharing arrangements in the decision-making by ITAs needs to be mitigated to a certain extent. As is significant with the exercise of public power by ITAs, the final authority stayed with the ITAs for the duration of the administration even after the transfer of powers to the local authorities. One can, therefore, question the effect of these power-sharing arrangements, since at the end the final say remained with the international SC Res. 1244 (1999) art. 11 (c) and (d). SC Res. 1271 (1999) artt. 2(b) and 8. 343 Stahn, C. The Law and Practice of International Territorial Administration, above n. 18, p. 722; SC Res. 1511 (2003) paras 4–6. 344 See section 2 of Coalition Provisional Authority (CPA) Regulation No. 6, 13 July 2003. 345 Stahn, C. The Law and Practice of International Territorial Administration, above n. 18, p. 718.

administrator of territory.346 This complex relation between the local authorities and the ITA can be identified in each of the administrations. To illustrate, UNTAET had a system of ―co-governance‖ in the second phase of the transition, while the ultimate authority stayed with the UNTAET. The Constituent regulations stated that those powers vested in the domestic authorities (power-sharing basis) did not prejudice the final authority of the administrator.347 Furthermore, several executive decisions/powers stayed with the exclusive ambit of the administrator.348 Hence, even though ITA mandates include specific power-sharing arrangements with local authorities, the final authority of the ITAs diminishes the actual involvement of local authorities. Furthermore, ITAs often excluded the local authorities in the decisions to be taken at the executive level. To sum up: can inclusionary governance provisions relating to ITA decision-making procedures be identified? The survey pointed out the importance of power-sharing arrangements and the necessity for ITAs to promote and institutionalise local ownership throughout the mission. Nevertheless, even though power-sharing arrangements were made between the local authorities and the ITAs, this does not necessarily provide a sufficient ground for a claim for inclusionary processes in the decisionmaking procedures in individual situations of ITAs. First of all, concrete provisions, which hint at such inclusionary processes in decision-making procedures, can hardly be identified in the mandates. For instance, within UNMIK, requirements for inclusionary processes can only be identified in relation to the legislative branch, but not in relation to

341 342

Momirov, A. Accountability of International Territorial Administrations, above n. 8, p. 160. 347 UNTAET Reg. 1999/2 (2 December 1999) Section 1 art 1.3 and UNTAET Reg. 1999/3 (3 December 1999) artt. 11.2, 13.2 and 14.2. 348 Momirov, A. Accountability of International Territorial Administrations, above n. 8, p. 160. 346

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the decision-making in individual situations. Secondly, some powers stayed within exclusive competence of the administrator throughout the existence of the ITA, to a large extent consisting of executive powers, e.g. individual decisions. For example, UNMIK kept full competence to decide to remove a person from holding public office without a requirement to involvement local authorities.349 Thirdly, those arrangements made on decision-making procedures were solely between local authorities and ITAs, not with the individual against whom a decision was taken. In other words, on the basis of the survey of the ITA mandates, no role can be identified for the individual to be somehow included in the ITA‘s decisionmaking procedures. The role of human rights when governing ITAs As argued, the regulation of the inclusionary processes in the decisionmaking of ITAs seem to remain deficient. Therefore, this paper turns to the role of the ITAs and their objectives within postconflict situations to examine whether and to what extent a claim for inclusionary governance can be based on the goals and objectives of the ITAs. It is the task of the ITA to promote and guarantee citizens‘ involvement in the decision-making procedures of the domestic government. Within the mandates of UN missions in post-conflict situations we can find specific references to the creation of stable and democratic societies.350 As the Secretary-General pointed out: ―United Nations…peace-builders have a solemn responsibility to respect the law themselves, and especially to respect the rights of the people whom it is their mission to help…the United Nations should reaffirm its commitment to respect UNMIK Reg. 2001/9 “On a Constitutional Framework for Provisional Self-Government in Kosovo”(15 May 2001) as amended by UNMIK Reg 2002/9 (3 May 2002), UNMIK Reg 2007/29 (4 October 2007), UNMIK Reg. 2008/1 (8 January 2008) and UNMIK Reg. 2008/9 (8 February 2008) Chapter 8 Article 8.1. 350 Cambodia, see: E. De Brabandere, Post-Conflict Administrations in International Law (Leiden/Boston: Martinus Nijhoff Publishers 2009) p. 332. 349

adhere to and implement international law, fundamental human rights and the basic standards of due process‖.351 The importance of human rights within a peace-building mission can also be identified on the basis of a short survey of the ITA mandates. The UN SecretaryGeneral interpreted the UNMIK mandate and thereby UNMIK‘s legal framework as follows: ―...[i]n assuming its responsibilities UNMIK will be guided by internationally recognised standards of human rights as the basis for the exercise of its authority‖.352 Furthermore, the protection and promotion of human rights was formulated as one of the main responsibilities of UNMIK.353 Nevertheless, UNMIK officials challenged the applicability of human rights treaties in Kosovo by stating that this did not imply that these treaties and conventions were in any way binding on UNMIK.354 The problem was that the regulation did not state that international human rights standards were directly applicable in Kosovo nor did the regulation provide that such standards form the legal framework within which the administration should function.355 The human rights framework was less problematic within UNTAET. The mandate of UNTAET referred, amongst other things, ―to support capacity building for self-

“Report of the Secretary-General, In Larger Freedom: Towards Security, Development and Human Rights for All”, UN Doc. A/59/2005, para. 113. 352 Emphasis added by author. Report of the Secretary-General on UNMIK, UN Doc. S/1999/779, 12 July 1999, para. 42. See also paragraph 75 in which the Secretary-General states that UNMIK laws should be adapted in accordance with human rights standards. 353 SC Res. 1244 (1999) (11)(j). 354 Momirov, A. Accountability of International Territorial Administrations, above n. 8, p. 120. Human Rights Committee, Report submitted by the United Nations Interim Administration Mission in Kosovo to the Human Rights Committee on the Human Rights Situation in Kosovo since June 1999, Kosovo (Serbia and Montenegro), UN Doc. CCPR/C/UNK/1, 13 March 2006, paras 123–124. See also the criticism by NGOs of UNMIK‟s attitude, e.g., Amnesty International (AI), Human Rights Protection in Post-status Kosovo/Kosova: Amnesty International‟s Recommendations in Relation to Talks on the Final Status of Kosovo/Kosova, EUR 70/008/2006, 24 July 2006, p. 8. 355 UNMIK Regulation No. 1999/24 on the Applicable Law in Kosovo; D. Marshall and S. Inglis, “The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo” 16 Harvard Human Rights Journal (2003) p. 104. 351

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government‖.356 Noteworthy is, however, the omission of any reference to ―promoting and protecting human rights‖ within the mandate of UNTAET. 357 Nevertheless, UNTAET interpreted its mandate as including a human rights component.358 This is further confirmed by one of UNTAET‘s first actions, setting a regulatory framework for the exercise of power in the ITA. Regulation 1999/1 established that, ―international human rights standards would overrule the application of national laws‖359 and that power should be exercised in East-Timor in a manner consistent with international human rights standards.360 It is clear that human rights protection is one of the core objectives of ITAs. However, it cannot be automatically assumed that human rights provisions are applicable to the conduct of ITA officials.361 Nevertheless, it is often argued that human rights standards should be part of the legal framework regulating the conduct of ITA officials. Commonly used reasoning is that the UN administrations should be bound by human rights on the basis of the UN Charter as the over-arching constitution, incorporating human rights protection and acting as legal framework for the

UN SC Res. 1272 (1999) art. (2)e. This is despite the fact that there was a reference to such a function in the report of the Secretary-General on the establishment of UNTAET. A. Devereux, “Searching for Clarity: a Case Study of UNTEAT‟s Application of International Human Rights Norms” N.D. White and D. Klaassen, The UN, Human Rights and Post-Conflict Situations (Manchester: Manchester University Press, 2005) p. 297; UN Doc. S/1999/1024, 4 October 1999. 358 Devereux, “Searching for Clarity”, above n. 42, p. 299. 359 UNTAET Regulation 1999/1 section 3. 360 UNTAET Regulation 1999/1 section 2. 361 Even though this argument can be made on the basis of sound reasoning, due to word limitations, the author will only touch briefly on the question whether human rights provisions are applicable to the conduct of ITAs. Instead, see for a detailed assessment, White and Klaassen. The UN, Human Rights and PostConflict Situations, above n. 39; Legal System Monitoring Section, Organisation for Security & Cooperation in Europe, “Review of the Criminal Justice System in Kosovo 1999–2005” (2005–2006), available at http://www.eulexkosovo.eu/training/material/docs/KR/KR_Material/osce2321.pd f (4 November 2011); Momirov, A. Accountability of International Territorial Administrations, above n. 8, pp. 115f–128. 356 357

missions.362 Furthermore, scholars have argued that human rights are applicable to ITAs on the basis of their legal status, i.e. customary law status or in some cases ius cogens status.363 More clear-cut is the applicability of human rights standards via the constituent documents of the ITAs explicitly stating so. However, the short survey of ITA mandates shows that often an explicit reference to human rights standards as legal framework for the conduct of the ITA is lacking. As noted by Momirov, ―…[ITAs] constituent documents fail to institutionalise international human rights law explicitly as part of the legal framework governing the activities of ITA missions.‖364 The failure to provide a clear legal framework for the governing activities can have tremendous consequences. Abuse of power seems to be the regrettable consequence as argued by Marshall and Inglis regarding UNMIK. ―UNMIK‘s power could be used arbitrarily and unfairly, without accountability, transparency, or predictability – in contravention of the meaning of justice and the rule of law‖.365 Even though the legal framework for ITAs seems to be lacking or insufficient there is, nevertheless, consensus that, ―international administrations cannot pretend to be ―guardians‖ of human rights protection‖ while placing themselves above the law.366 This impasse results in strong criticism for the governing by ITAs and especially criticism for the position shared by most ITAs that human rights only have N.D. White and D. Klaassen, “An Emerging Legal Regime?” in N.D. White and D. Klaassen (eds.) The UN, Human Rights and PostConflict Situations, above n. 143, pp. 1–16, p. 7. 363 Reinisch, A. “Developing Human Rights and Humanitarian Law: Accountability of the Security Council for the Implementation of Economic Sanctions” 95 AJIL (2001) pp. 851– 871. 364 Momirov. A. Accountability of International Territorial Administrations, above n. 8, p. 119. See for a detailed assessment of the lack of institutionalisation and implementation of human rights standards in the justice reform by UNMIK, Marshall and Inglis, “The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo”, above n. 37. 365 Marshall and Inglis, idem, above n. 38, p. 104. 366 Stahn, C. The Law and Practice of International Territorial Administration, above n. 18, p. 749. See also the implicit acknowledgement by the Secretary-General in The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, above n. 23, para. 33. 362

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to be obeyed to a certain extent. The Ombudsperson Institute in Kosovo remarkably argued that: ―It is ironic that the UN, the selfproclaimed champion of human rights in the world, has by its own actions placed the people of Kosovo under control, thereby removing them from the protection of the international human rights regime that formed the justification for UN engagement in Kosovo in the first place‖.367 In other words, while it is not clear to what extent human rights standards are applicable to the conduct of ITAs, one can conclude that the UN has a high responsibility to guarantee and respect human rights when governing a territory; especially, considering the vital role the UN plays in promoting human rights at the local level. Consequently one can argue that ITAs should uphold, at least, a certain minimum level of human rights standards, which further underlines the demand for inclusionary governance in decision-making by ITAs. Assessment of functioning of ITAs – a short survey of critics by the international community This section provides a concise overview of the review by international institutions and bodies of the role of individuals within the decision-making procedures of ITAs. The International Law Association concluded in its report on the accountability of international organisations that there is a general claim to be made that: ―…[international organisations] should incorporate basic human rights obligations into their operational guidelines, policies and procedures, particularly when exercising governmental authority in the conduct of temporary administration over a particular territory[.]‖368

Ombudsperson Institute in Kosovo, Second Annual Report 2001–2002, 10 July 2002, obtainable from www.ombudspersonkosovo.org (5 November 2011) pp. 3 and 7. 368 Emphasis added by the author. International Law Association, Accountability of International Organisations, Final Report, Berlin Conference 2004, available at http://www.ila-hq.org/, p. 23. 367

More specifically, the exercise of public power by ITAs has led various international bodies to raise a claim for inclusionary processes in ITA‘s decisionmaking procedures in individual situations. The Venice Commission of the Council of Europe has criticised the exercise of public power by ITAs for human rights violations. In relation to the removal decisions by the OHR, removing public officials from office,369 the Venice Commission concluded that these decisions represented a serious interference with the officials‘ rights and therefore due process standards should have been followed.370 Furthermore, the addressees of the removal decisions were mainly officials elected by the citizens. The rights of their voters were also affected, and thereby it constituted a de-facto interference with the voters‟ rights to participate via elections (i.e. their elected representative got removed without a voice from the voters).371 In other words, the individuals‘ rights to information was interfered with by not providing the grounds for the removal in due time. Their rights to participate were violated as they had no possibility of participating in the decision-making process. Lastly, they were denied access to justice, because they were not provided a fair hearing or a possibility for appeal. The Venice Commission concluded that the ITA violated the three dimensions of inclusionary processes, which implied that when adopting these decisions in individual situations, in this case removal decisions, ITAs should include the The majority of the removals concerned persons not cooperating with the International Criminal Tribunal for the former Yugoslavia. Others included removals for corruption, mismanagement of public assets or other offences including interference with the judiciary. The officials were, in principle, removed indefinitely unless the imposed ban is lifted by the international administrator. See e.g. the OHR, Decision Removing Dragan Cavic from his Position as a Member of the Newly elected RS National Assembly (8 October 1998) and the OHR, Decision to Lift the Ban on Dragan Cavic's Activities (30 July 1999), both available at www.ohr.int. 370 According to the Venice Commission, the decisions should follow “a fair hearing and be based on serious grounds with sufficient proof and the possibility of a legal appeal. The sanction has to be proportionate to the alleged defence.” Venice Commission OHR, above n. 7, paras 92–97. 371 Venice Commission OHR, above n. 7, para. 97. 369

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individual in the procedure. In relating inclusionary processes to UNMIK the Council of Europe recalled that, despite all power-sharing arrangements, ―…[a]ll legal texts directly applicable in Kosovo, with the sole exception of UN Security Council Resolution 1244, may equally be revised or revoked by an [international administrator] without the need for consultation with any local body or the possibility of any parliamentary or judicial review‖.372 By having the authority to revise or revoke any legal text in Kosovo, UNMIK excludes the local actors from the process of decision-making, whereas inclusion of local authorities into the decision-making by ITAs is required according the Council of Europe. The critique coming from international organisations is based significantly on the all-encompassing authority of ITAs, which is to a large extent comparable with a state exercising public power. In this light, the Venice Commission concluded in relation to UNMIK that: ―In Kosovo UNMIK and KFOR carry out tasks which are certainly more similar to those of a state administration that those of an international organisation proper. It is unconceivable and incompatible with the principles of democracy, the rule of law and respect for human rights that they could act as state authorities and be exempted from any independent legal review‖.373 Concluding, ITAs do not provide sufficient inclusionary processes in the decisionmaking procedures for individual situations. Differently put, often individuals are excluded from the decision-making procedure, which directly affects them. For these reasons various human rights organisations demand inclusionary processes in the decisionmaking procedures by ITAs.

Council of Europe, Protection of Human Rights in Kosovo, Report of the Committee on Legal Affairs and Human Rights, Doc. 10393, 6 January 2005, Section B(i) para. 7. 373 European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms, CDL-DI (2004) 004, (Strasbourg, 8–9 October 2004), pp. 20–21. 372

Excluding the individual from decision-making procedures – a general problem of public international law? While the exercise of public power by international institutions is not all encompassing in comparison with the ITA, international institutions do exercise public power. Several international institutions can adopt decisions that directly or indirectly affect individuals, which make their exercise of public power to a large extent comparable to ITAs‘ public power. Illustrative examples are the recognition of refugee status by the UNCHR,374 UN Security Council sanctions against individuals375 and World Bank decisions on financing projects.376 For instance, in relation to the Security Council many calls for inclusionary processes have arisen.377 As argued by von Bogdandy, Dann and Goldmann: ―…the listing of terrorist suspects by the UN Security Council provides the most dramatic example of governance that would be hardly permissible at the domestic level‖.378 Every listed individual or entity is subject to the sanctions of a freeze of assets, a travel ban and an arms embargo by all UN Smrkolj, M. “International Institutions and Individual Decisionmaking: An Example of UNHCR”s Refuge Status Determination” German Law Journal 9 (2008) 1779–1804; see also R. Wilde, “Quis Custodiet Ipsos Custodes?: Why and How UNHCR Governance of “Development” Refugee Camps Should be Subject to International Human Rights Law” 1 Yale Human Rights & Development Law Journal (1998) pp. 107–128. 375 Feinaugle, C.A. “The UN Security Council Al-Qaida and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the Protecting of Individuals”, German Law Journal 9 (2008) pp 1513–1538. 376 Naude Fourie, A. The World Bank Inspection Panel and QuasiJudicial Oversight (Utrecht: Eleven International Publishing, 2009). 377 Bianchi, A. “Assessing the Effectiveness of the Un Security Council‟s Anti-terrorism Measures: The Quest for Legitimacy and Cohesion” EJIL 17 (2007), pp 881–919. 378 von Bogdandy, A., P. Dann and M. Goldmann, “Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance activities” German Law Journal 9 (2008) p. 1380. See also the declaration made by Liechtenstein at the discussions held at the Security Council at 30 May 2006, UN Doc. S/PV/5446 at 31: The work undertaken by the United Nations over the last six decades to ensure that Governments respect human rights would suffer a great setback were we to allow the Organisation to treat individuals in a manner, which it would qualify as impermissible by states. 374

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members.379 The problem with the listing procedure is, as summarised by Van der Herik: ―…Individuals are not heard at any time either before or after listing and, once listed, individuals do not have a proper avenue to complain directly to the sanctions committee about their listing and about the sanctions that are subsequently imposed‖.380 Similarly, the World Bank and the UNHCR have been criticised for insufficiently including the individual in decisionmaking procedures.381 The UNHCR decision-making procedure in relation to refugee status determination has often been condemned for the lack of judicial review.382 Hence, the exclusion of individuals from decision-making procedures forms a more general problem in international law, which is evidenced by the call for inclusionary governance in these procedures to the extent as they affect individuals. CONCLUSION Inclusionary governance is required when adopting decisions in individual situations by ITAs. This is warranted especially because the public powers normally exercised by local authorities ultimately are transferred to ITAs. Furthermore, the exclusion of individuals has significant negative impact on the accountability and legitimacy of decision-making by ITAs,383 which further warrant inclusionary governance. The assessment made on the basis of a three-dimensional approach to inclusionary governance reveals that the Feinaugle, C.A. “The UN Security Council Al-Qaida and Taliban Sanctions Committee”, above n. 57, p. 1520. 380 van den Herik, L. “The Security Council‟s targeted sanctions regimes” Leiden Journal of International Law 20 (2007) p. 799. See for a thorough assessment the Report “Addressing Challenges of Targeted Sanctions” (2009) which was prepared by the Watson Institute for International Studies, available at http://watsoninstitute.org/project_detail.cfm?id=4 (visited 2 November 2011). 381 E.g. see Smrkolj in relation to the UNHCR, above n. 56; see Naude-Fourie in relation to the World Bank, above n. 58. 382 von Bernstoff. J. “Procedures of Decision-Making and the Role of International Organisations”. German Law Journal 9 (2008) p. 1957. 383 Momirov, A. Accountability of International Territorial Administrations, above n. 8; Stahn, C. The Law and Practice of International Territorial Administration, above n. 18. 379

regulation and implementation of inclusionary processes in decision-making procedures by ITAs remain deficient. The assessment of ITA mandates and objectives reveals that, even though there are power-sharing arrangements between ITAs and local authorities, this does not result in inclusion of the individual in the decision-making procedures of ITAs. No provisions can be identified in ITA mandates referring specifically to inclusionary processes in decision-making by ITAs. This can be explained by the fact that most decisions in individual decisions concern executive decisions. The survey reveals that it is precisely the executive decisions that often stay within the exclusive ambit of the ITA and thereby do not include local authorities or the affected person in decision-making procedures. The exclusion of the individual by ITAs when adopting decisions has resulted in an outcry by international institutions for inclusionary processes. Various human rights oriented organisations have condemned the conduct of ITAs for violating human rights standards when adopting decisions in individual situations. Similarly, other international organisations also adopt decisions with direct impact on individuals while these individuals are not adequately included in the decision-making procedures. Evidently, the exclusion of individuals in decision-making procedures forms a more general problem in international law. In relation to what standards should be required and whether similar standards should be required for international organisations, such as the Security Council adopting decisions affecting individuals or ITAs adopting such decisions, one should look at the impact on the individual. As argued by Bogdandy: ―…the more an international authority impacts an individual, the stronger the assumption is that international principles require legal arrangements which are functionally equivalent to what

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is to be expected in the domestic realm‖.384 The Council of Europe Commissioner for Human Rights came to the same conclusion regarding ITAs specifically: ―…[w]hen international organisations exercise executive and legislative control as a surrogate state they must be bound by the same checks and balances as we require from a democratic 385 government‖. In other words, while decision-making in individual situations by international organisations in general, and ITAs specifically, have a strong impact on individuals, this requires legal standards from an equivalent level as would be expected when domestic authorities adopt such decisions. When ITAs adopt decisions directly affecting individuals they need to include these individuals in the decision-making procedure in accordance with the generally recognised standards. This is also further warranted by the core objective of the ITA, which is to transfer all powers to the domestic authorities after (re-) establishing the rule of law and promoting and institutionalising human rights. Hence, there is a clear demand for inclusionary governance for ITAs adopting decisions in individual situations; its precise criteria have to be substantiated in further research.

von Bogdandy, A. “General Principles of International Public Authority: Sketching a Research Field”, The Exercise of Public Authority by International Institutions: Advancing International Institutional Law (Heidelberg: Springer, 2010) para. 1918. 385 Council of Europe, Commissioner for Human Rights, Thomas Hammarberg, “International Organisations Acting as Quasi-Governments Should be Held Accountable”, Viewpoints 2009, http://www.coe.int/t/commissioner/Viewpoints/090608_en.asp (visited 8 November 2011). 384

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Buyse, A.C. Post-Conflict Housing Restitution. The European Human Rights Perspective, with a Case Study on Bosnia and Herzegovina, (Antwerpen: Intersentia, 2008). De Brabandere, E. Post-conflict Administrations in International Law, (Leiden/Boston: Martinus Nijhoff Publishers, 2009). Momirov, A. Accountability of International Territorial Administrations – a Public Law Approach, (Utrecht: Eleven Publishing, 2011). Naude Fourie, A. The World Bank Inspection Panel and Quasi-Judicial Oversight, (Utrecht: Eleven International Publishing, 2009). Stan, C. The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond, (Cambridge: Cambridge University Press, 2008).

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Bernstoff von, J. ―Procedures of Decision-Making and the Role of International Organisations‖, German Law Journal 9 (2008) pp. 1939–1964. Bianchi, A. ―Assessing the Effectiveness of the Un Security Council‘s Anti-terrorism Measures: The Quest for Legitimacy and Cohesion‖, EJIL 17 (2007) pp. 881–919. Bogdandy von, A. ―General Principles of International Public Authority: Sketching a Research Field‖, The Exercise of Public Authority by International Institutions: Advancing International Institutional Law (Heidelberg: Springer, 2010) pp. 727–760. Bogdandy von, A., Dann, P. and Goldmann, M. ―Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance activities‖, German Law Journal 9 (2008) pp. 1375–1400. Boyle, K. ―Thought, Expressions, Association and Assembly‖, International Human Rights Law, (Oxford: Oxford University Press, 2010) pp. 257–279. Buchanan, A. and Keohane, R.O., ―The Legitimacy of Global Governance Institutions‖, Legitimacy in International Law, (Berlin: Springer, 2008) pp. 25–63 Devereux, A. ―Searching for clarity: a case study of UNTEAT‘s application of International Human Rights Norms‖, The UN, Human Rights and Post-Conflict Situations, (Manchester: Manchester University Press, 2005) pp. 293–322. Ebbesson, J. ―Public Participation‖, The Oxford Handbook of International Environmental Law, (Oxford: Oxford University Press, 2007) pp. 681–704. Feinaugle, C.A. ―The UN Security Council Al-Qaida and Taliban Sanctions Committee: Emerging principles of International Institutional Law for the Protecting of Individuals‖, German Law Journal 9, (2008) pp. 1513–1538. Herik van den, L. ―The Security Council‘s Targeted Sanctions Regimes‖, Leiden Journal of International Law 20, (2007) pp. 797–807. Hey, E. ―International Institutions‖, The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007) pp. 749–769. Kingsbury B., N. Krisch, R.B. Stewart, and Wiener J.B. ―Global Governance as Administration: National and Transnational Approaches to Global Administrative Law‖, Law and Contemporary Problems, 68:3–4 (2005) pp. 1–14. Kingsbury, B., N Krisch and R.B. ―The Emergence of Global Administrative Law‖ IILJ Working Paper 2004/1 (Global Administrative Law Series), available at www.iilj.org Knaus, G. and F. Martin. ―Lessons from Bosnia and Herzegovina- Travails from the European Raj‖ 14 Journal of Democracy (2003) pp. 60–74. Page 120


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Marshall, D. and S. Inglis. ―The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo‖ 16 Harvard Human Rights Journal (2003) pp. 95–146. Reinisch, A. ―Developing Human Rights and Humanitarian Law: Accountability of the Security Council for the Implementation of Economic Sanctions‖ 95 AJIL (2001) pp. 851–871. Smrkolj, M. ―International Institutions and Individual Decision-making: An Example of UNHCR‘s Refuge Status Determination‖ German Law Journal 9 (2008) pp. 1779– 1804. Temperman, J.T. ―Public Participation in Times of Privatisation: A human rights analysis‖ 4:2 (2011) Erasmus Law Review (forthcoming). Wet de, E. ―Holding International Bureaucracies Accountable: the Complementary Mechanisms of Non-Judicial Oversight and Judicial Review‖ German Law Journal 9 (2008) pp. 1987–2010. White, N.D. and D. Klaassen. ―An Emerging Legal Regime?‖, UN, Human Rights and Post-Conflict Situations (Manchester: Manchester University Press, 2005) pp. 1–16. Wilde, R. ―Quis Custodiet Ipsos Custodes?: Why and How UNHCR Governance of ―Development‖ Refugee Camps Should be Subject to International Human Rights Law‖ 1 Yale Human Rights & Development Law Journal (1998) pp. 107–128.

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Report of the Secretary-General, In Larger Freedom: Towards Security, Development and Human Rights for All, UN Doc. A/59/2005, September 2005. Report of the Secretary-General on UNMIK, UN Doc. S/1999/779, 12 July 1999.

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Amnesty International, Human Rights Protection in Post-Status Kosovo/Kosova: Amnesty International‘s Recommendations Relation to Talks on the Final Status of Kosovo/Kosova, EUR 70/008/2006, 24 July 2006. Council of Europe, Kosovo: the Human Rights Situation and the Fate of Persons Displaced From Their Homes, Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, 16 October 2002. Council of Europe, Protection of human rights in Kosovo, Report of the Committee on Legal Affairs and Human Rights, Doc. 10393, 6 January 2005. Council of Europe, Commissioner for Human Rights, Thomas Hammarberg, “International Organisations acting as quasi-governments should be held accountable”, Viewpoints 2009, at http://www.coe.int/t/commissioner/Viewpoints/090608_en.asp. European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms, CDL-DI (2004) 004, (Strasbourg, 8–9 October 2004).

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PARTICIPATION MECHANISMS AT THE LOCAL LEVEL IN KOSOVO: IMPACT ON ROMA, ASHKALI AND EGYPTIANS By Claire Fernandez*386 ABSTRACT The effective participation of minority communities in decisionmaking processes is considered by the international community as an essential element to ensure the conditions for integration without forced assimilation. Public policies targeting Roma, Ashkali and Egyptian communities in Kosovo have not been specific to those communities but rather part of the global strategy to include the biggest minority in Kosovo: the Kosovo Serb community. Roma, Ashkali and Egyptians have been sidelined and have not beneficiated from tailored public policies until recently in the field of participation. Instead, their participation in public affairs at the local level relies on general mandatory and nonmandatory mechanisms not suitable to vulnerable communities. This paper analyses the impact of public policies and legal mechanisms targeting the participation of minorities in the Roma, Ashkali and Egyptian communities at the local level from Fair Share Financing to the recent decentralisation and creation of Kosovo Serb majority municipalities. * Claire Fernandez currently works as an independent human rights consultant, with assignments for the Council of Europe (CoE) and the Organization for Security and Co-operation in Europe (OSCE). Previously working in Strasbourg as an Adviser to the CoE Commissioner for Human Rights, she focussed on countries of the Western Balkans and the human rights of Roma and Travellers. From 2008 to 2010, she served the OSCE in the field in Kosovo, where she advised local authorities on good governance principles and human rights standards. She holds a Master degree in Human Rights from the Robert Schuman University in Strasbourg (France). Her areas of expertise include inter-ethnic mediation, equality and antidiscrimination law, minority rights, economic and social rights, good governance at the local level and matters relating to the Roma communities. [email protected] 386

The views expressed are those of the author and do not reflect the official policy or position of the Council of Europe or th e OSCE.

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INTRODUCTION The effective participation of minorities387 in decision-making processes is one of the most important rights enshrined by international human rights standards. Together with inclusion and consultation, it constitutes the basis of minorities‘ peaceful integration. The Lund Recommendations for the Effective Participation of National Minorities in Public Life and the Framework Convention for the Protection of National Minorities (FCNM) provide core human rights principles shaping public policies with regards to participation of minorities. Minority rights are crucial in Kosovo as the essence of the 1998/1999 conflict is inter-ethnic tensions mainly between the Serbian and the Albanian communities that came to an end with the withdrawal of the Serbian army and police in June 1999. The genesis of minorities‘ participatory mechanisms in post-conflict Kosovo, from the United Nation Mission in Kosovo (UNMIK) protectorate to the self declared independent state, has been developed in line with the abovementioned legal instruments and declarations. As international human rights standards remain rather vague and cannot be applied as such in national legislation, first the UNMIK administration and then Kosovo authorities had to choose concrete mechanisms for implementing international standards. Concretely, participation of minorities at the municipal level has been characterised by specific mechanisms ―imposed‖ by the international community upon public authorities. UNMIK Regulation 2007/30 on the Self-Government of Municipalities in Kosovo foresaw five mechanisms: communities‘ committees, mediation committees, an additional deputy chairperson of the municipal assembly, a municipal community office and the Fair Share Financing System – a financial measure. Communities and mediation committees, comprised of both municipal For political reasons (Kosovo Serbs do not consider that they constitute a minority in Kosovo), minorities in Kosovo are often referred to as “non-majority communities”. In this paper, the terms “minorities”, “minority communities” and “non-majority communities” will be used to name the same groups. 387

assembly members and of communities‘ representatives from all communities present in the municipality, are consultative bodies in charge of making recommendations to the municipal assembly on minorities issues. Some of these mechanisms, such as Fair Share Financing and the mediation committee disappeared after the Declaration of Independence in 2008, while the law on local-self government created new mechanisms. There is now both a deputy chairperson of the municipal assembly and a deputy mayor for communities, in accordance with a 10 percent of communities threshold, which means that these mechanisms are mandatory in municipalities where minority communities represent at least 10 percent of the population (according to municipal estimations, mainly based on the 1991 census). These two appointed figures are in charge of advising, respectively, the chairperson of the municipal assembly and the mayor on issues related to all communities. These measures have not been tailored for Roma and associated minorities, Ashkali and Egyptians.388 Participation measures are rather part of the overall strategy to include the Kosovo Serb community. For political reasons, negotiations on the status of Kosovo and talks with the EU have been based on several conditions, one being the integration of the Serbian minority. Both during UNMIK time and after the Declaration of Independence, participation mechanisms at the local level have had a limited impact on Roma, Ashkali and Egyptians communities. Even in newly created municipalities where These three communities are considered part of the European “Roma” population. However in Kosovo, Roma, Ashkali and Egyptians identify themselves as persons belonging to three distinct communities. Roma have settled in Kosovo since their arrival in the mid 14th century. Their mother tongue is Romani, however most of them are bi- or trilingual and do also speak Albanian and Serbian. The Ashkali community is an Albanianspeaking minority community of Muslim faith. Albanian is their mother tongue and, generally, only the elderly people know Serbian. They claim to be able to trace their roots back to ancient Persia. The Egyptian community speaks Albanian as its first language and its members are of Muslim faith. In the 1990s the community started to declare its identity as Kosovo Egyptian and they regard themselves as a group whose ancestors are originally from Egypt. 388


Kosovo Serbs represent the majority of the population, the ethnic balance has not been more favourable for smaller minorities‘ participation. Based on international inter-governmental and non-governmental organisations' reports, and on the author‘s field monitoring experience, the paper outlines the practices regarding the participation of the Roma, Ashkali and Egyptian communities at the local level. Starting with general obstacles to the participation of Roma, Ashkali and Egyptians, the paper further describes the lack of legitimacy of these mechanisms. Finally, some concrete problems in the functioning of consultative bodies, which have a particular negative effect on Roma, Ashkali and Egyptians, are analysed. LONG-TERM EXCLUSION OF ROMA, ASHKALI AND EGYPTIANS FROM KOSOVO PUBLIC LIFE The first set of structural reasons that can explain the absence of effective participation of the Roma, Ashkali and Egyptians in the local level in Kosovo is due to the fact that these communities have been excluded from public life since before the 1999 conflict. Long-term exclusion from the public sphere is both a cause and a consequence of the obstacle to the enjoyment of their economic and social rights. During the period of SFR Yugoslavia, special efforts were made by the authorities to promote and protect the human rights of Roma. The situation was far from perfect, but the ―official histories included the Romani contribution to the partisan struggle during the civil war Yugoslavs fought under the cover of the Second World War, and Romani newspapers and radio stations flourished, particularly in Serbia, Kosovo and Macedonia‖.389 These facts can explain a certain loyalty to Yugoslavia among Roma, Ashkali and Egyptians, although their attitude towards the regime was complex. ―While some took one side or the other (more often regime-loyalty), others Cahn, Claude. “Justice for Kosovo”, Roma Rights 3-4 2005, European Roma Rights Centre, 31 January 2006. 389

pursued other options.‖390 The fact that some Roma participated in Serbian police operations was clear evidence for Kosovo Albanians that Roma had chosen the other side. ―Albanians regarded these acts as further evidence that Roma and other ―Gypsies‖ had allied themselves with the enemies of the Albanian nation.‖391 During the conflict many entire settlements, such as Roma Mahalla in Mitrovicë/Mitrovica, were destroyed and tens of thousands of Roma, Ashkali and Egyptians had to leave Kosovo. Roma, but also Ashkali and Egyptians, were also deeply isolated after the conflict, because they had been accused of being traitors, pro-Albanian or pro-Serb392. Participation mechanisms were created by UNMIK to answer the international community‘s will to include Kosovo Serbs, at least at the local level. Participation of Roma, Ashkali and Egyptians has not been a priority in Kosovo. The Advisory Committee of the FCNM noted it clearly in its First Opinion on Kosovo in 2005: ―While it is understandable that improving relations between the Serbs and Albanians is largely seen as the greatest challenge in today‘s Kosovo, there is a risk that the situation of other minority communities in Kosovo is not given adequate attention.‖393 Roma, Ashkali and Egyptians have been left out of major negotiation processes in Kosovo. First, they were not part of the negotiation on Kosovo status.394 Unlike Kosovo Serbs, Roma, Ashkali and Egyptians did not have a state to back them up in this process and the Roma civil society was poorly organised. Second, more recently in 2009 and 2010, Roma were not consulted in the implementation of the decentralisation plan – included in Ahtisaari‘s Comprehensive Proposal for the Status

Ibid. Ibid. 392 Galjus, Orhan. “The Roma of Kosovo: The Forgotten Victims”, Patrin, 7 April 1999. 393 Advisory Committee of the Framework Convention for the Protection of National Minorities, Opinion on the Implementation of the FCNM in Kosovo (adopted on 25 November 2005), ACFC/OP/I(2005)004, p. 10. 394 Ibid. 390 391

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Agreement in 2007.395 The plan consisted of the creation of eight new municipalities including five new municipalities in which the Kosovo Serb community would constitute the majority of the population: Gracanica/Graçanicë, Klokot-Vrbovac/ Kllokot-Vërboc, Parteń/ Partesh, Ranilug/ Ranillug and Mitrovica/ Mitrovicë North. In addition, the existing municipality of Novo Brdo/Novobërdë would be enlarged and Kosovo Serbs would constitute the majority of the population. Ahtisaari‘s proposal was rejected by Serbia but it was adopted by Kosovo during the Declaration of Independence in 2008. Seven municipalities have been officially established since, while elections in North Mitrovica/Mitrovicë have been postponed until further notice. There was no Roma member on the Municipal Preparation Teams in charge of preparing the creation of new municipalities where Roma, in some cases, make up an important part of the population, like in Gracanica/Graçanicë. The displacement of Roma, Ashkali and Egyptians and the destruction of entire settlements as a result of the war had a destructive impact on political participation and on civil society organisations promoting the interests and rights of these communities. Even today, the absence of a strong political party for the Roma community is another signal of the weak political conscience of the Roma who are not represented in municipal assemblies. In comparison, the Egyptian party Initiativa e Re Demokratike e Kosovës and the Ashkali party Democratike e Ashkanlive të Kosovës have representatives in the municipal assemblies of respectively Gjakova/ Dakovica and Ferizaj/Urosevac. In most of the municipalities, with the notable exception of Ferizaj/Urońevac where the Ashkali community is large, the Roma, Ashkali and Egyptians are rarely in a position to weigh in on the political game. For example in December 2010, as Available at http://www.unosek.org/unosek/en/statusproposal.html, accessed on 11 September 2011. 395

an indicator of their elected representation in municipal assemblies, of 1,034 municipal assembly members, Egyptians had four seats, Ashkali had three seats and Roma had one representative.396 Even as appointed members of participation mechanisms, Roma, Ashkali and Egyptians remain under represented. Only one Egyptian is a deputy mayor out of eleven is the deputy mayor for communities. There are three Egyptian deputy chairpersons for communities out of the thirteen appointed Kosovo-wide. In analysing the situation for the participation of Roma, Ashkali and Egyptians in public life, one should also keep in mind the sub-standard living conditions of the Roma communities. For example, the Roma in the Novo Brdo/Novobërdë municipality mainly live in a village where the majority are unemployed. No Roma from the village would be qualified for a position with responsibilities within the municipality, which would require having secondary education. Despite the existence of a legal and policy framework against discrimination and for the inclusion of Roma, Ashkali and Egyptians in Kosovo,397 these communities are still overwhelmingly subjected to discrimination, in particular in access to economic and social rights. The lack of budget allocations to special measures foreseen in policy documents reveals the lack of will by Kosovo institutions to engage in the inclusion of Roma, Ashkali and Egyptians in the society.398 Without the fulfilment of economic and social rights, and the overall exclusion of Roma from economic life in Kosovo, it seems difficult to foresee an increase in their participation in public affairs. A recent European Centre for Minorities Issues needs assessment of the Roma community in Gračanica/Graçanicë shows that participation in decision-making OSCE Mission in Kosovo, Communities Rights Assessment Report, Second Edition, December 2010. 397 Law No. 2004/3, The Anti-Discrimination, Strategy for the Integration of the Roma, Ashkali and Egyptian Communities in the Republic of Kosovo, 19 February 2004. 398 OSCE Mission in Kosovo, Implementation of the Action Plan on the Strategy for the Integration of the Roma, Ashkali and Egyptian Communities in Kosovo, May 2011, p.7. 396

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processes is not a priority for Roma, unlike employment and education.399 LACK OF REPRESENTATIVENESS OF PARTICIPATION MECHANIMS Obstacles in the enjoyment of the right to effective participation in public affairs are also found in the lack of representativeness of created mechanisms. The Advisory Committee of the Framework Convention for the Protection of National Minorities recalled in its Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economical Life and in Public Affairs that ―appropriate attention should be paid to the ―inclusiveness‖ and ―representativeness‖ of consultative bodies‖.400 At the local level, participation mechanisms should be legitimate and accepted by the whole community. Attention should also be paid to the diversity within the communities themselves. The more representative and legitimate mechanisms are, the more likely they are to facilitate the effective participation of minorities. However in Kosovo, this is far from being the case. The participation of minorities, and in particular in the case of Roma, Ashkali and Egyptians, has been limited to the consultation of communities‘ leaders, the vast majority of whom have been men with disputable legitimacy within their community. Very few efforts have been made to speak with communities themselves. In 2003 OSCE and UNHCR reported that ―many of the local leaders are self-appointed hence lack a democratic mandate deriving from their constituencies‖.401 During UNMIK time, communities‘ leaders were chosen because they could speak English or because they had a connection with the European Centre for Minorities Issues (ECMI), “Needs Assessment Roma Community Gračanica/Graçanicë”, unpublished. 400 Advisory Committee of the Framework Convention for the Protection of National Minorities, Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economical Life and in Public Affairs, adopted on 27 February 2008, para. 109. 401 OSCE and UNHCR, Tenth Assessment of the Situation of Ethnic Minorities in Kosovo, March 2003, p. 62. 399

international community. Nowadays, the level of cooperation with Kosovo authorities is usually what matters. In addition, the interest of the person concretely engaging with authorities is usually primarily served, rather than the whole community‘s interest. Being a member of one of the participation mechanisms is a way to have a job and to gain prestige in the community. But in concrete terms this means that the positions are usually given, literally distributed, by the mayor to the most influential persons in terms of the support they can get in their community. It also implies recognition of and submission to the majority party‘s ideas for the community representative if he or she wants to work in the municipality. There is then little room for claiming minorities‘ rights. Social prestige associated with one-person positions like deputy mayor or deputy chairperson for communities can create tensions in a community. This is also due to the fact that the law leaves many unanswered questions regarding the criteria of selection to be a member of one of those mechanisms, in particular the communities committee. This leaves that the possibility that the majority and some minority representatives in power will decide who should be included in committees or offices dealing with minorities. For example in Gjilan/Gnjilane, the Roma community has been going through a dispute since the municipality decided to change the representative of the community in the communities committee and ask for ―proof‖ of legitimacy for representation in 2010. It left the Roma community without a representative in the committee for a long time, while decisions affecting the community were still being made. Currently, the old communities committee member was reintegrated in the committee, but some Roma in Gjilan/Gnjilane still contest this decision and intra-community relations are tense. Similarly, Mitrovicë/Mitrovica‘s communities committee members, while establishing the new municipal office for communities and returns, left aside the

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Roma representation, although Roma constitute a large minority in the municipality. Officials in the municipality tend to consider that a single representative is enough to represent Roma, Ashkali and Egyptians, often choosing an Ashkali in this function. This implies a major failure to pay attention to the diversity between and within the Roma, Ashkali and Egyptians communities. Another negative consequence is the lack of gender-balanced representation. The participation of women from the Roma, Ashkali and Egyptian communities through the developed mechanisms has been extremely low since UNMIK time. Roma, Ashkali and Egyptian women, who suffer double discrimination on the ground of their ethnicity and their gender, tend not to impose themselves as ―leaders‖ in their community and to stay outside of public affairs. Although quite active in the civil society sector, Roma, Ashkali and Egyptian women are almost absent from public life. In 2009 for example, the OSCE reported that out of 180 members there were only three Roma, two Ashkali and one Egyptian women member of communities committees in Kosovo municipalities402

MALFUNCTIONING OF PARTICIPATION MECHANISMS The Advisory Committee of the FCNM recommended that, ―the legal status, role, duties, membership and institutional position of consultative bodies be clearly defined. This includes the scope of consultation, structures, rules governing appointment of their members and working methods.‖403 In Kosovo, both UNMIK and the post independence legislation have left room for interpretation in the functioning of OSCE Mission in Kosovo, Protection and Promotion of the Rights of Communities in Kosovo: Local Level Participation Mechanisms, December 2009, Annex 2. 403 Advisory Committee of the Framework Convention for the Protection of National Minorities, Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economical Life and in Public Affairs, op. cit., para. 116. 402

participation mechanisms. Weaknesses in the legal basis and lack of political will in its implementation have affected the participation of minorities, in particular of Roma, Ashkali and Egyptians. This is perceptible in three aspects: the reliance on numerical thresholds, the functioning of Fair Share Financing and the lack of support from the central level in interpreting the law in a minority favourable manner. First, the fact that there was no census conducted between 1991 and 2001 and the lack personal identification documentation among Roma, Ashkali and Egyptians affected their representation at the local level, as many of the participation mechanisms is subject to the achievement of a demographic threshold. Without clear figures, it was hard to establish that one community fulfils the threshold requirement, especially when this group has been affected by displacement. Many mechanisms thus rely on thresholds and on figures that are mere estimates. When minorities do not reach 10 percent of the municipal population, the central level has pushed for a restrictive application of the law and has considered that it was illegal for municipalities to have mechanisms that are not mandatory. In addition, a certain number of Roma, Ashkali and Egyptians from Kosovo, including internally displaced persons and repatriated persons from Western Europe, may have been left out of the April 2011 census, as they cannot always prove they come from Kosovo. This will then lower the figures and impact the representation of these communities in participatory mechanisms. Second, the discontinuation of the Fair Share Financing System in 2008 has left minorities without a financial and reporting mechanism.404 The system aimed to ensure that a set proportion of the municipal budget, corresponding to the estimated proportion of the minority OSCE Mission in Kosovo, Protection and Promotion of the Rights of Communities in Kosovo: Local Level Participation Mechanisms, op. cit., p. 5. 404

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communities‘ population in the municipality, was spent exclusively for the benefit of these communities. Out of the budget ―reserved‖ for minorities, a part went to wages and salaries for the employment of civil servants from minorities, a part was for goods and services, a part for utilities, a part for transfers and subsidies and a large part for capital investment projects. The system also included regular quarterly reporting to the central level on the way funds were allocated. However, during its implementation time, the Fair Share Financing System was often criticised for not impacting enough on smaller communities. Maybe because it was based on vague population estimations, its implementation was undermined. In particular, the reporting on the spending on the municipal budget was carried out in total expenditures for minorities‘ communities, without reflecting how these expenditures were broken down among the different communities. Despite the fact that Fair Share Financing obligated the municipalities to employ a number a minorities‘ members in the municipal civil service, Roma, Ashkali and Egyptians remained underrepresented. Third, the general lack of guidance from the central level on how to interpret the rules governing appointment of members of mechanisms has triggered situations that are usually not favourable for Roma, Ashkali and Egyptians. For example, Article 54.2 of the law on local-self government foresees that ―the post of the Deputy Municipal Assembly Chairperson for Communities shall be held by the nonmajority community‘s candidate who received the most votes on the open list of candidates for election to the Municipal Assembly‖. As the author has seen on the ground, this candidate may not want to assume the function of deputy chairperson, or the municipal leadership may want somebody else. This was the case in Kamenicë/Kamenica where the minority candidate with the most votes (but not enough to be a municipal assembly member) had, in the meantime, found a job and was not interested in the position of deputy chairperson. There is

no guidance on who should then be appointed for the position. A situation related to the nomination of the deputy mayor for communities in Gračanica/Graçanicë gave a clear indication that persons in power can decide minority representation. The law on Local Self-Government indicates that ―the appointment and dismissal of the Deputy Mayor for Communities shall be proposed by the mayor and shall get approval of the majority of the municipal assembly members present and voting and the majority of the municipal assembly members present and voting belonging to the non-majority communities.‖ The members belonging to minorities – even if there is only one member – can then oppose the nomination of one person. This creates a de facto veto power for this/these member(s). In the predominately Kosovo Serb municipality of Gračanica/Graçanicë, where Roma represent more than 10 percent of the population and are the biggest single minority in the municipality, the Kosovo Albanian member of the municipal assembly (the only minority elected member) opposed the nomination of a Roma as deputy mayor for communities. He argued that the Roma community should have been more organised to obtain representation in the municipal assembly. Despite the International Civilian Office, OSCE and municipal officials‘ intervention, there is still no deputy mayor for communities. CONCLUSION Since 1999, public policy and legal mechanisms more or less implemented by Kosovo municipal authorities in order to facilitate the participation of minorities at the local level have had very limited impact on Ashkali, Egyptian and, in particular, the Roma communities. Participation schemes were designed for, and to a certain aspect with, the Kosovo Serbs who could influence Kosovo status negotiations and upon whom depended the success of the decentralisation plan. The international community itself tends to look more at the participation of the

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Kosovo Serbs, maybe as proof that Kosovo as a state could be a place of integration for them. These are solutions that can work for organised communities, which do have political parties for example. It is then clear that a local representative can say he or she is legitimate when he or she is the head of a local branch of a party. This is the case of the Serbian community, the Turkish community and to a certain extent to the Ashkali and Egyptian communities. But it is much more difficult for vulnerable communities which do not have elected representatives and who are divided. It is also unfair to ask the Roma, who are a diverse group, to be united at any price. There are different opinions, different political views and different aspirations regarding whether or not to collaborate with Kosovo institutions, as is still the case with the Kosovo Serbs. How can one (unelected) representative represent a whole community in a village or a town? Here the system of minority participation based on personal position shows its limits. At least, representative collegial consultative mechanisms should be preferred to one-person positions and, selection criteria should be made clearer at the central level in line with the Advisory Committee of the FCNM Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs405. At the municipal level, it should also be complemented by outreach activities and direct consultation with communities. Finally, the Roma, Ashkali and Egyptians remain in a most vulnerable place in Kosovo, despite the existing legal and policy framework. The lack of personal documents remains an important issue which impacts on the exercise of fundamental rights, like the right to vote. The Council of Europe Commissioner for Human Rights noticed, after a visit in Advisory Committee on the Framework Convention for the Protection of National Minorities, Commentary on the Effective Participation of Persons belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, op. cit., p. 29. 405

Kosovo in 2009, that Roma, Ashkali and Egyptians ―face marginalisation and discrimination in the areas of education, social protection, health care and housing. Poverty and unemployment touch them more profoundly than the rest of society. Security remains a concern and, according to a number of sources, ethnically-motivated incidents continue to go unreported‖.406 Roma, Ashkali and Egyptians suffer from unemployment and earn a meagre living with informal employment407. These concerns are shared by the Advisory Committee on the FCNM who noted that, ―Persons belonging to these groups are affected to a much greater extent by poverty and social exclusion than persons belonging to other communities‖.408 As long as their social and economic participation is not ensured, their participation in public affairs will not be sufficient enough to ensure the wellbeing of those communities in Kosovo municipalities.

Report of the Council of Europe Commissioner for Human Rights, Special Mission to Kosovo, 23 – 27 March 2009, Strasbourg, 2 July 2009, p. 23. 407 OSCE Mission in Kosovo, “Communities Profiles”, Second Edition, 2010. 408 Advisory Committee of the Framework Convention for the Protection of National Minorities, Opinion on the Implementation of the FCNM in Kosovo, op. cit., p. 6. 406

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Advisory Committee of the Framework Convention for the Protection of National Minorities, Opinion on the Implementation of the FCNM in Kosovo (adopted on 25 November 2005), ACFC/OP/I(2005)004. Advisory Committee on the Framework Convention for the Protection of National Minorities, Commentary on the Effective Participation of Persons belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, adopted on 27 February 2008. Baldwin, Clive. ―Minority Rights in Kosovo under International Rule‖, Minority Rights Group International, 2006. Cahn, Claude. ―Justice for Kosovo‖, Roma Rights 3-4 2005, European Roma Rights Centre, 31 January 2006. European Centre for Minorities Issues (ECMI) Kosovo, ―Needs Assessment Roma Community Gračanica/Graçanicë‖, unpublished. European Centre for Minority Issues (ECMI) Kosovo, ―Roundtable Decentralisation and the RAE Communities‖, June 2009. International Crisis Group, ―Serb Integration In Kosovo: Taking The Plunge‖, Europe Report N°200, 12 May 2009. Kosovar Institute for Policy Research and Development (KIPRED), ―Decentralisation in Kosovo I, Municipal Elections and the Serb Participation‖, December 2009. OSCE and UNHCR, Tenth Assessment of the Situation of Ethnic Minorities in Kosovo, March 2003. OSCE Filed Assessment Report, From Pilot Municipal Units to Fully-fledged Municipalities: First Year Review, March 2010.

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OSCE Mission in Kosovo, Communities Profiles, Second Edition, 2010. OSCE Mission in Kosovo, Communities Rights Assessment Report, Second Edition, December 2010. OSCE Mission in Kosovo, Department for Human Rights and Communities, Protection and Promotion of the Rights of Communities in Kosovo: Local Level Participation Mechanisms, December 2009. OSCE Mission in Kosovo, Implementation of the Action Plan on the Strategy for the Integration of the Roma, Ashkali and Egyptian Communities in Kosovo, May 2011. Report of the Council of Europe Commissioner for Human Rights Special Mission to Kosovo 23 – 27 March 2009, Strasbourg 2 July 2009. Secretariat of the Framework Convention for the Protection of National Minorities, The participation of Minorities in Decision-making Processes, Expert Study Submitted on Request of the Committee of Experts on Issues Relating to the Protection of National Minorities (DH-MIN) of the Council of Europe by the MaxPlanck Institute for Comparative Public Law and International Law, Heidelberg, November 2000. Strategy for the Integration of Roma, Ashkali and Egyptian Communities in the Republic of Kosovo, December 2008. UNMIK, OSCE and PISG, Assessment of Municipal Communities Committees, 2004.


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DISCUSSING THE POTENTIAL ROLE OF TRUTH COMMISSIONS IN ASSESSING REPARATIONS FOR WAR-AFFECTED CHILDREN By Francesca Capone* ABSTRACT Truth Commissions (TCs) have often been the subject of studies focussed on transitional justice, probably because, amongst all the other possible mechanisms, they seem to best represent the challenges and the difficulties that a post-conflict state has to deal with during the transition towards democracy and reconciliation. Besides their well-known role as truth-finding bodies, TCs can be instrumental in the drafting of national reparations programmes. The reports launched in the past years by the six TCs considered in the present contribution identified children as beneficiaries of reparative measures, both symbolic and material. Therefore, the aim of this article is to understand how the issue of reparations for children has been addressed so far. In particular it will define the key terms adopted, it will dwell on children‘s right to participation in all the matters affecting them, including the activities carried on by the TCs and, of course, it will discuss if and to what extent children‘s right to reparation has been recognised and triggered.

*Francesca Capone earned her JD cum laude in International Law at the University of Naples Federico II, Italy, in 2008. In January 2009 she started her Ph.D. on the right to reparation for war-affected children, and she has been a visiting scholar at Tilburg Law School, Leiden University and Max Planck Institute for Comparative Public Law and International Law. She is currently a Ph.D. candidate in international human rights law at Sant‘Anna School of Advanced Studies, in Pisa, Italy and at INTERVICT (International Victimology Institute), in Tilburg, the Netherlands. Email address [email protected] (SSRN author 1591052)

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1.INTRODUCTION According to Teitel it is possible to define a Truth Commission (TC) as ―an official body, often created by a national government, to investigate, document, and report upon human rights abuses within a country over a specified period of time.‖409 The general aim of a TC is to provide a comprehensive record and analysis of the violations committed during the conflict or the military dictatorship.410 From 1974 to 2007 at least 32 TCs have been established in 28 countries worldwide 411, and, according to Heyner in 2011 they have increased to 40. Although each TC has a different mandate, it is feasible to trace a common pattern. Normally TCs are required to make recommendations to the government to help preventing relapses and further abuses. These recommendations are embodied in a final report, which can also contribute to the establishment of a reparation policy designed for the victims. The relationship between the TC and the people who suffered from the heinous violations tends to be really strong, because the TC represents the first forum where the victims have the opportunity to finally tell their stories and catch a glimpse of justice. States are amongst the actors entitled to award reparations, as they are the recipients of the TCs‘ final recommendations and the ones in charge of implementing them. Although it might be difficult, sometimes impossible, to achieve, in toto, the goals set in the TC‘s report, its content has to inspire and guide the government throughout the institutional reform, fostering reconciliation and, when expected by the TC‘s mandate, the reparation plan. The scope of this contribution is to investigate how and to what extent the work of the R. G. Teitel, “Human Rights in Transition: Transitional Justice Genealogy”, Harvard Human Rights Journal, 16(69)(2003), pp. 69-94. 410 G.G. J. Knoops, “Truth and Reconciliation Commission Models and International Tribunals: a Comparison”, Symposium on The Right to Self-Determination in International Law, organised by Unrepresented Nations and People Organisation (UNPO), 29 September-1 October 2006, The Hague, The Netherlands. http://www.unpo.org/downloads/ProfKnoops.pdf (accessed 18 March 2011). 411 Data available at http://www.amnesty.org/en/internationaljustice/issues/truth-commissions (accessed 18 March 2011). 409

truth and reconciliation commissions can concretely affect the states‘ reparation programmes, especially when they target children.412 It will take into account the outcomes of six of the TCs established worldwide in post-conflict settings in order to verify whether children‘s right to participate in (and benefit from) the transitional justice process has been fulfilled, in particular with regards to reparations. 413 Methodology This contribution is part of a broader research project, namely my Ph.D. thesis, which is about the right to reparation for war-affected children. In the thesis I analyse under which circumstances children who experienced gross human rights violations and serious violations of humanitarian law can claim reparations before local, regional, international tribunals and how they can be substantially included in the states‘ reparations plans. The field of enquiry includes, of course, the identification of the kind of reparations, which might be more suitable for children, taking into account also distinctive factors such as age, gender, and traumatic events experienced. In accordance with the focus of this paper, here I consider only the reparative measures recommended by the TCs, leaving aside reparations as outcomes of criminal proceedings. As for the key aspect of the methodological approach adopted, it is worth noting that a single country study, due to its pure descriptive function, could have been De Greif in the UN Rule of Law Tools for Post-Conflict States Dedicated to Reparation Programmes, underlines the difference between “reparation efforts” and “reparation programmes”: “This publication distinguishes between reparations „efforts‟ and „programmes‟. The latter should be reserved to designate initiatives that are designed from the outset as a systematically interlinked set of reparations measures. Most countries do not have reparations‟ programmes in this sense. Reparations‟ benefits are most often the result of discrete initiatives that come about incrementally rather than from a deliberately designed plan.” 413 The author will consider in particular the work of the TCs in South Africa, Sierra Leone, Liberia, Timor-Leste, Guatemala and Peru, because all of them, adopting different modalities and notwithstanding the limits and the shortcomings, gave space to the complex issue of reparation for war-affected children. This cluster has been identified by a recent study accomplished by UNICEF and the International Centre for Transitional Justice. 412

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useful to determine whether and how a particular TC has dealt with the issue of the right to reparation for child-victims, but my feeling is that this choice doesn‘t lead to valuable conclusions. The option of a few countries comparisons, although anyway more suitable than a single country study, has been also discarded. Instead of focussing on two or three TCs, most likely established in the same region, I decided to look at the TCs who have dealt with child-victims on a global scale. The study of the TCs has been built on the assumption that, as Chapman and Ball pointed out that, ―truth commissions are far better suited to pursue ―macro-truth‖, the assessments of contexts, and the causes and patterns of human rights violations than ―micro-truth‖ dealing with specifics or particular events‖.414 Hence, the work of the TCs selected has been considered at a macro-level, focussing on broad variables such as the extent to which children‘s participation has been encouraged and, therefore, their right to reparation has been triggered by each TC, the techniques used to collect children's statements, the attention paid to the specificity of children's needs and the ―child-friendliness‖ of the recommendations submitted to the government.415 2. DEFINITION OF THE KEY TERMS Definition of a Child Article 1 of the UN Convention on the Rights of the Child (UNCRC) establishes that ―a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier‖. This definition has been embraced also at the regional level. In the Inter American arena, there is no standard definition of the child for legal purposes, therefore both

the Inter-American Court of Human Rights and the Inter-American Commission have stipulated that the definition of the child is based on the provisions of article 1 of the UNCRC.416 The same criterion has been applied within the European and the African Human Rights systems: in particular Article 1 of the European Convention on the Exercise of Children Rights states that it targets everyone who has not yet attained the age of 18 years. The African Charter on the Rights and Well-being of Children, adopted in July 1990, defines as child every human being less than eighteen years of age. War-affected children are, therefore, all the human beings below the age of eighteen who, directly or indirectly, suffer from ongoing and ceased conflicts. Remedies and reparations under international law Amongst the legal consequences arising from gross and serious violations of human rights law and humanitarian law, there is the right to a remedy and reparation. Although the two concepts are often confused, ―remedy‖ and ―reparation‖ are not synonyms. The definition of ―remedy‖ provided by international law includes the right to equal and effective access to justice, the admission to relevant information concerning violations and redress mechanisms, and the right to prompt and adequate reparation.417 According to the Van Boven-Bassiouni Principles and Guidelines, reparations are further divided in five categories: restitution, compensation, satisfaction, rehabilitation and guarantees of nonrepetition.418 In the general discourse on reparations two situations should be compared: the current situation and the Inter-American Court of Human Rights, Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 28 August 2002. Series A No 17, Chapter V. 417 For the purpose of the current work, “redress” is meant as “the act of receiving satisfaction for an injury sustained”. Bouvier's Law Dictionary, Revised 6th Ed. 418 The five categories are listed and explained under paragraph IX of the UN General Assembly‟s Resolution A/RES/60/147, 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. 416

A. Chapman and P. Ball, “The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa and Guatemala”, in Human Rights Quarterly (23) 2001, pp. 1-43 at 41. 415 “The macro-level approach is meant to deal with the bigger picture of how TCs are currently facing the challenge of coping with children's reparations, instead of adopting the so called „who did what to whom methodology‟ which is based on multiple data sources focussed on each and every victim-survivor story.” P.Gready, “Telling Truth? The Methodological Challenges of Truth Commissions”, in Coomans, supra n41 at 15. 414

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hypothetical one that would exist if the gross human rights violations or the serious violations of humanitarian law had not occurred. The gap between the two is bridged by effective and prompt reparation, although, clearly often the restoration of the status quo ante is either not sufficient or even not desirable.419 Definition of victim The notion of reparation is intrinsically coupled with the idea of victim.420 The definition of victim I refer to is the one contained in paragraph five of the Van Boven-Bassiouni Basic Principles and Guidelines.421 ―Victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term ―victim‖ also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation‖. The formulation of the final sentence clearly highlights that there must be a direct causal link between the victim and the harm suffered Only when this link exists does it is prove before the courts the right to reparation arises. When, instead, the connection requirement is not fully accomplished the acquisition of the status of victim will In developing countries, as it is going to be further discussed in the course of the thesis, the restoration of the status quo ante is far from being desirable. In those contexts, in fact, it is very difficult to draw a sharp line between development strategies and reparation programmes. Please see on this point N. Roht-Arriaza and K. Orlovsky, A Complementary Relationship: Reparations and Development, ICTJ Research Brief, July 2009. http://www.ictj.org/static/Publications/Research_Development_ Reparations.pdf (accessed 30 April 2011). 420 On the victim-centred trend adopted by criminal justice, see: D. Garland, The Culture of Control, Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001). 421 The definition of victim contained in the Van-Boven Bassioni Principles is the one entailed in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by UN General Assembly though the Resolution 40/34 9 of 29 November 1985. 419

entirely depend on variable factors, such as the domestic laws of the different countries. This foments a lack of homogeneity that clearly clashed with the assumption that reparations have primarily strived to give victims a sense of recognition in order to help them to face their trauma and overcome it.422As will be further illustrated in the coming paragraphs, the identification of the victims is one of the most challenging tasks that a TC has to face, especially when children are involved. Under international criminal law the crimes committed against children can be divided in three sub-categories: child-specific crimes, in which children are a material element of the crime (e.g. forced transfer of children and imposition of measures intended to prevent births in order to perpetrate genocide, enlistment, conscription and use of children to participate in hostilities); crimes which target children in the way that they are disproportionally victimised in comparison to the adult population (e.g. destruction of schools and hospitals, attacks to humanitarian missions); crimes with particularly serious effects on children, where children, due to their age and development, face more difficulties to be rehabilitated than the adult-victims (e.g. rape and sexual violence).423 If the crimes that affect children need to be identified and require the adoption of specific measures, clearly the same should happen with regard to the kind of reparations designed to overcome their effects. As Mazurana and Carlson pointed out ―it is not possible to fully repair children after they have experienced such harms. It is not possible to recover the years of lost education, or the time that would have been spent developing emotional and spiritual ties to family, friends and communities, as well as the skills to enable children to take pride in R. Rubio-Marin, What happened to the Women? (New York: International Centre for Transitional Justice 2006), p. 32. 423 C. Chamberlein. Legal Adviser at the International Criminal Court. Paper presented at Leiden University on 12 November 2010, on the occasion of the seminar on “Children's Rights before the ICC”, organised within the course on “Children's Rights in International Law”. 422

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contributing to their households‘ 424 livelihoods.‖ Having knowledge of the tough scenario certainly doesn‘t diminish the potential role that TCs in particular can play in fostering children‘s right to reparation. It rather increases the need to evaluate what has been accomplished so far in order to establish more effective reparations plans in the future. Vulnerability War-affected children are usually referred to as a ―vulnerable group‖. Vulnerability is defined as ―the exposure to uninsured risks leading to a socially unacceptable level of well-being‖ and it is measured according to physical and emotional development, ability to communicate needs, mobility, size and dependence.425 Vulnerability is, hence, a common characteristic to all the victims of crimes irrespective of the nature of the crime and its gravity. The exposure to uninsured risks is predominantly a children‘s prerogative, since they are vulnerable above all in regard to their age and immaturity. And, in addition, their mental attitude might be easily influenced by the inability or impossibility to speak for themselves and act independently from the adults.426 As a consequence, in the case of child-victims, in general, the probability of facing ―a social unacceptable level of well-being‖ is higher than the other victims‘.427 With regard to war-affected children, which represents a specific category within the child-victims, D. Mazurana and K. Carlson, “Reparations as a Means for Recognising and Addressing Crimes and Grave Rights Violations against Girls and Boys during Situations of armed Conflicts and under Authoritarian and Dictatorial Regimes”, in R. Rubio-Marin, The Gender of Reparations (Cambridge Ma: Cambridge University Press, 2009) 425 J. Hoogeveen, et al, A Guide to the Analysis of Risk, Vulnerability and Vulnerable Groups, World Bank, 2005. http://siteresources.worldbank.org/INTSRM/Publications/20316 319/RVA.pdf (accessed 10 March 2011). 426 On children's vulnerability in war torn countries please see K. Cheney, De-constructing Childhood Vulnerability, paper series of the Institute of the African Child, Ohio University, December 2010. http://iss.academia.edu/KristenCheney/Papers/366079/Deconstr ucting_Childhood_Vulnerability, (accessed 20, April, 2011). 427 See for instance the UNICEF's study on Child's Vulnerability in Barbados, St. Lucia, St. Vincent and the Grenadines, http://www.unicef.org/barbados/cao_resources_vulnerability.pdf (accessed 2 May 2011). 424

this peril tends to be increased even more and that is why the need to intervene and provide ad hoc redress measures is acutely strong.428 3.CHILDREN‟S RIGHT TO PARTICIPATION AND REPARATION The direct and active involvement of children in the TC‘s work firmly relies on children‘s right to participation. Participation can be defined as ―the process of sharing decisions which affect one's life and the life of the community in which one lives‖.429 According to Ang, an explicit right to participation is not embodied in international human rights law.430 However, elements of participation can be found throughout the rights enshrined in the UNCRC and in particular in Article 12, which is represented as one of the most innovative of the convention. The enforcement of the UNCRC, hence, is responsible for a remarkable shift in the perception of the child, ―from being a vulnerable object in need of protection to an active subject of rights, entitled to full respect and dignity.‖431 The existence and the recognition of a right to participate, which legitimates children‘s inclusion in the activities carried out by the TC, represents a precondition for their exercise of the right to reparation.432 The

G. Machel, UN Report on the Impact of Armed Conflict on Children, A/51/306, 1996.“Armed conflicts across and between communities result in massive levels of destruction; physical, human, moral and cultural. Not only are large numbers of children killed and injured, but countless others grow up deprived of their material and emotional needs, including the structures that give meaning to social and cultural life. The entire fabric of their societies, their homes, schools, health systems and religious institutions are torn to pieces.” 428

R. Hart in UNICEF, The State of World's Children, 2003, Child Participation, quoted by T. Vandewiele, in F. Ang et al. Participation Rights of Children (Antwerpen: Intersentia, 2006), p. 56. 430 Ibid. at 75. 431 L. Hammad, “Rights in Context: Questioning Universality in the Implementation of Children's Rights using Jordan as a Case Study”, in A. Alen et al., The UN Children's Convention: Theory Meets Practice (Antwerpen: Intersentia, 2007), p. 3. 432 Children‟s right to reparation is enshrined also in the “Guidelines on Justice Matters involving Child Victims and Witnesses of Crime” adopted by the Economic and Social Council in its resolution 2005/20 of 22 July 2005, para. 35. “Child victims should, wherever possible, receive reparation in order to achieve full redress, reintegration and recovery. Procedures for obtaining 429

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referential provision for the study of the right to reparation linked to children in general is Article 39 of the UNCRC. According to it ―state parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child‖.433 The article obliges the state parties to take all the appropriate measures in order to promote children‘s ―recovery and reintegration‖ in the aftermath of every traumatic or harmful event, including war. As already stressed, truth commissions, if they are drafting in their reports detailed reparation‘s plans, can guide the governments throughout the challenging task of putting into practice effective and prompt reparative measures able to leave a significant mark on children‘s live. Material vs. symbolic reparations As already stressed, ―it is important that reparations‘ programmes acknowledge children as rights holders who suffered specific violations in light of their vulnerability‖. In order to do so a TC has to identify the kind of reparative measures which best improve children‘s conditions.434 Reparation benefits are usually distinguished between material and symbolic. Material reparations provide a physical benefit or service to victims. As indirect victims, e.g. affected by the loss of a relative, children may receive compensation, for example, in the form of a percentage of a deceased parent‘s pension (as the TC in Chile and enforcing reparation should be readily accessible and childsensitive.” 433 http://www2.ohchr.org/english/law/crc.htm (accessed 20 June 2011). 434 C. Aptel and V. Ladisch, Trough a New Lens: A Child-Sensitive Approach to Transitional Justice, ICTJ August 2011, http://ictj.org/sites/default/files/ICTJ-Children-Through-NewLens-Aptel-Ladisch-2011-English.pdf (accessed 5 September 2011).

recommended to the Chilean government). Also as direct victims children might be awarded cash, scholarships, access to health care and reintegration programmes. Symbolic reparations, instead, may include measures such as public apologies, the creation of public memorials and monuments, artwork, learning centres and museums.435 Since TCs collect important information their contributions can be instrumental to the construction of a collective memory and, it can help improving children human rights education.436 Both material and symbolic reparations can be provided individually or collectively. For example, in Sierra Leone in 2009, the government started individual payments to the most affected victims of the conflict, including children.437 The lump-sum liquidated was the equivalent of less than 100 US dollars, in contrast with the TC‘s report which recommended granting life pensions. The Guatemalan TC (Historical Clarification Commission), rather than focussing on compensation, recommended the government reform the fiscal sector according to La Paz agreement and the National Reparation Plan in order to gain long-term benefits for the entire 438 population, including children. The same collectivistic approach has been shared by the Liberian TC with regards to reparations. In the final report, in fact, the commission states that, ―reparations should aim at repairing the consequences See: “Children and Truth Commissions”, UNICEF and International Centre for Transitional Justice, August 2010, http://www.unicef.at/fileadmin/medien/pdf/truth_commissions_ eng.pdf (accessed 15 July 2011). 436 Ibid. at 52. 437 “Because of the state‟s inability to provide for the needs of all victims, the commission decided to prioritise reparations for certain categories of victims. It used the concept of “vulnerability” to do so, judging that amputees, other war wounded, victims of sexual violence, children and war widows were the victims in most dire need of urgent care.” J. King, “Gender and Reparations in Sierra Leone: The Wounds of War Remain Open.” In Rubio-Marin supra n15 at 5. 438 “Que el Estado costee, poniendo en marcha la reforma tributaria globalmente progresiva establecida en los Acuerdos de Paz, el Programa Nacional de Reparación. Para ese efecto, resulta conveniente una reorientación de los gastos de inversión social y la disminución de los gastos militares. Estas acciones han de constituir sus fuentes principales de financiación.” Guatemala: Memory of Silence, Final Report of the Commission for Historical Clarification, Conclusions and Reccomandations, 63. 435

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of violations borne by children during the Liberian conflict. There should be symbolic and material reparations for Liberia‘s children and young adults. Ideally, any reparation schemes will target entire communities and children as a group rather than single out individual 439 children.‖ 4.TCS AND REPARATIONS FOR WARAFFECTED CHILDREN The six TCs worldwide, which have dealt so far with war-affected children present some common patterns, but also several differences. In the first place one should identify the ―moments‖ when children were involved in the TCs‘ work. As previously pointed out children can be specifically mentioned in the TC mandate and/or they can be listened to as witnesses in the statement-taking process and in the public hearings. However, sometimes their needs and rights are taken into account only during the latest stage of the TC activities, namely throughout the drafting of the final report where they are indicated as recipients of some recommendations and/or 440 beneficiaries of reparations policy. Children included in the TC’s mandate Amongst the TCs which dedicated part of their efforts to the enhancement of children‘s rights, only three adopted a specific focus on children in their mandates. The first TC to include children in its mandate was the one established in Sierra Leone. According to the Truth Commission Act 2000, amongst the TC‘s tasks there was also a commitment ―to work to help restore the human dignity of victims and promote reconciliation by providing an opportunity for victims to give an account of the violations and abuses suffered and for perpetrators to relate their experiences, and by creating a climate which fosters constructive interchange between victims and Appendices to the Liberian TC Final Report, Volume Three: “Children, the Conflict and the TC Children Agenda”. http://TCofliberia.org/resources/reports/final/volume-three2_layout-1.pdf (accessed 7 August 2011), p. 107. 440 See “Children and Truth Commissions” Supra n32 at 9. 439

perpetrators, giving special attention to the subject of sexual abuses and to the experiences of children within the armed conflict.‖441 In the wake of the Sierra Leone‘s openness towards a child-friendly approach, the Timor-Leste TC and the Liberian TC finally realised the necessity to officially pinpoint the difficult situation of children affected by conflicts occurred, mentioning them as a particularly vulnerable group in their mandates and stressing the importance to ―adopt specific mechanisms and procedures to address the experiences of women, children and vulnerable groups, paying particular attention to gender based violations as well as to the issue of child soldiers, providing opportunities for them to relate their experiences, addressing concerns and recommending measures to be taken for the rehabilitation of victims of human rights violations in the spirit of national reconciliation and healing.‖442 Children’s statement taking and public hearings Children‘s involvement in the TCs‘ activities related to truth finding can be limited to the initial stages of statements‘ collection and/or can be extended to the public hearings that take place after the information are gathered. According to a recent study conducted by UNICEF and the International Centre for Transitional Justice (ICTJ) four TCs gave children the possibility to actively participate in the statement-taking phase, namely the ones established in Peru, Sierra Leone, Liberia and Timor-Leste. As for the public hearings, including special hearings conducted exclusively on children‘s issues, the number of TC remains unaltered, although the South African TC replaces the Peruvian.443 Statement taking refers to meetings and interviews Truth and Reconciliation Commission Act 2000 [Sierra Leone], Supplement to the Sierra Leone Gazette Vol. CXXXI, No. 9, dated 10 February 2000, Part III, 6(2)(b). 442 An Act to Establish the Truth and Reconciliation Commission (TC) for Liberia, approved 10 June 2005, Ministry of Foreign Affairs, Monrovia, 22 June 2005. United Nations Transitional Administration in East Timor – Regulation No. 2001/10, UNTAET, Dili, 13 July 2001, Article IV, sec. 4(e). 443 See “Children and Truth Commissions” supra n32 at 9. 441

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held between commission staff and victims, perpetrators and witnesses. This moment can be considered as crucial to delve into the memory of what happened. The average number of statements collected by each TC normally goes from 7,000 to 22,000. In order to include children, most likely already traumatised by the experience of the conflict, it is necessary to adopt specific measures and to limit the risk of second victimisation. For example statement takers in charge of collecting children‘s stories need to be properly trained and must require the support of child protection agencies and NGOs with a specific focus on children. In Sierra Leone a child-friendly statement taking form was used to guide the interaction between the interviewer and the child, the same tool was set in Liberia, but in the end it wasn‘t adopted due to technical reasons, meaning that the statements were provided by more than 300 children in 13 districts without recurring to ad hoc measures.444 Children‘s participation in the public hearings is even more challenging than including them in the statement taking process. The testimony, in the first place, can lead to a threat to child‘s safety or to his/her stigmatisation, especially when he/she has been sexually abused. Therefore, it requires special efforts and precautions. In some cases children have been allowed to publicly share their experiences only in thematic hearings held in a child-friendly environment and without the solemnity and the pressure that allegedly characterises an official TC‘s session. In particular, with regards to the TC established in South Africa, which still represents a model for the other truth commissions, it is worth to noting that, after long and deep consultations with UNICEF and other child protection agencies, the TC decided not to admit, in the public hearings, testimonies of people 444See:

Aptel and Ladish supra n31 at 9. “A special children‟s statement-taking form was prepared, it omitted leading questions, emphasised the need for a child-friendly environment and psychosocial support, and encouraged considerations of a wider range of violations including social, economic, cultural, as well as civil and political. However, since its categories did not match the standard form and the data coding system, it was not used.”, p. 16.

under the age of eighteen.445 This was meant to protect them, even though it was difficult to forget that children not only were directly engaged in the resistance and the struggles against the apartheid, but that they have been also a specific target of many of the crimes that occurred. Eventually, the TC‘s Human Rights Violation Committee convened six special hearings exclusively focussed on the experiences of children and young people; these took place in Bloemfontein, Cape Town, Durban, East London, Johannesburg and Pietersburg in May and June 1997. During the hearings, young people aged from 19 to 24 years old expressed their views and shared their stories, whilst children, still not allowed to bring their testimonies, were involved in workshops and in cultural and dramatic arts presentations that were undertaken in parallel with the truth telling process.446 The hearings were widely attended by children and adolescents. Nevertheless, concerns were raised, in particular after the one held in Durban due to scant participation of adults. The same lack of involvement has been discovered in Liberia during the children‘s special hearings. On that occasion, notwithstanding the great attention given by the national media to the events, a representative of the Children‘s Parliament publicly underscored the little interest that the Liberian society as a whole dedicated to the thematic 447 hearings.

P. Pigou, “Children and the South African Truth and Reconciliation Commission”, in Children and Transitional Justice, Parmaar S. Roseman et al., (Cambridge MA: Harvard University Press, 2009). “Responding to advice from many children‟s rights activists and professionals, the Commission decided not to take statements from children (anyone under the age of eighteen), which in turn meant that no children‟s testimonies would be available for the public hearing process. This automatically removed any immediate need to give special attention to the difficulties associated with securing children‟s testimony. Under the circumstances, this may have been unavoidable, but to a certain extent it marginalised the direct participation of children and thereby children‟s voices.” 446 Ibid. at 142. 447 See Aptel and Ladish supra n31 at9. See also T. Sowa “Children and the Liberian Truth and Reconciliation Commission,” In Children and Transitional Justice: Truth-Telling, Accountability and Reconciliation, et al. supra n41 at 11. 445

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Children as beneficiaries of reparations The truth and reconciliation commissions taken into account decided to cope with the issues related to children in different ways and at different levels. Nevertheless all of them included children in their final reports and recognised them as beneficiaries of the national reparations policies. After the report is launched, normally the government has to translate into actions what has been identified by the TC as the best strategy to achieve accountability, reconciliation and reparation. Depending on several factors, very often the lapse of time between the end of the TC‘s work and the beginning of the implementation phase is 448 considerable. The recommendations of the TCs established in Liberia and in Timor-Leste, for instance, haven‘t been enforced so far. As for the first one, it is worth noting that, notwithstanding the child-friendly approach promoted throughout its mandate, only a marginal part of the final report has been dedicated to recommendations concerning reparations for children. Namely, the TC recommended the establishment of a Trust Fund for Victims (TFV) and free access to primary and secondary education and to some selected disciplines at the college level.449 Similar comments can be made about the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR), which released its monumental report, Chega!, in October 2005. In its more than 2500 pages the

This was the case of Peru: “to the outrage of victim-survivors” organisations and the human rights community, President Alejandro Toledo waited several months before responding to the TC‟s Final Report, and then promised only a programme of social development thereby sidestepping reparations. L.J. Laplante and K. Theidon. “Truth with Consequences: Justice and Reparations in Post Truth Peru”, in Human Rights Quarterly, 29(2007), pp. 228250. 449 “The TC recommends free education to all Liberians from primary to secondary education and for certain disciplines at the college level. Said disciplines are medicine, nursing, education, teachers training, agriculture, science and technology and according to the human development resource needs of the country.” See the final report of the Liberian TC at 277. http://TCofliberia.org/resources/reports/final/unedited-finalreport-pages-201-300.pdf (accessed 25 August 2011). See also: T. Sowa, “Children and the Liberian Truth and Reconciliation Commission”, in Parmar et al. supra n42 at 12. 448

report analyses the roots and the consequences of the conflict, the possible ways to approach reconciliation and the measures that the government in primis has to set in order to eventually repair the victims. With regards to reparations, the TC has listed the principles, which should guide the national reparation plans: feasibility, accessibility, empowerment, gender and prioritisation based on need. Emphasis has been placed on children affected by the war, in the sense that they have been identified as a group of particularly vulnerable victims, but there is no reference to the forms of reparations, which should be exclusively directed to them.450 The governments of South Africa, Guatemala and Peru so far partially implemented the recommendations made by the TCs. The South African TC, which launched the first five volumes of its report in 1998, was composed by different committees, amongst those, the Reparation and Rehabilitation Committee was in particular tasked with making recommendations to the president on the reparation policy to adopt.451 The reparation programme distinguished between ―urgent interim reparations‖ and ―final reparations‖. The first kind of reparations was meant to target the victims who needed prompt medical treatment and other forms of urgent assistance. The second one was a longterm challenge, allegedly still ongoing. As for the interim reparations, they took the form of financial support provided to help the victims to access the direst services. The cash sum reached a maximum of 713 US dollars, granted directly to the victim or, in case of a deceased victim, to a relative-dependent, including children.452 Nonetheless, the TC didn‘t set ad hoc reparations for children with regards to symbolic measures, focussing mostly on the communal process of commemoration

See Chega! at 41, http://www.cavrtimorleste.org/chegaFiles/finalReportEng/11Recommendations.pdf (accessed 20 August 2011). 451 B. Goldblatt, “Evaluating the Gender Content of Reparations: Lessons from South Africa”, in Rubio-Marin, supra n15 at5. 452 Ibid. at 67. 450

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rather than on the educative potential of certain rituals and public events. The Peruvian TC report was made public in 2003, and its implementation is still ongoing. The Ombudsperson and the Reparation Council have tried to follow the recommendations made by the TC, but they came up against the lack of political will and the scarcity of financial resources.453 According to the Programme of Integral Reparations (PIR), adopted by the state in 2005, victims of the conflict should be registered to the Registro Unìco de Victimas (RUV) in order to benefit from free healthcare and scholarships for orphans. The reparations plan promoted by the TC and allegedly pursued by the Peruvian government certainly represents an ambitious and comprehensive model. Nevertheless, since 2005 its implementation has been postponed due to the shortage of public funds constantly declared by the Ministry of Economy and Finance which, instead, seems to be perfectly able to ―secure them for politically popular causes, such as the armed forces.‖454 In February 1999 the report of the Guatemalan Commission for Historical Clarification was launched and in 2003 the National Reparation Programme was finally activated. The Programme was ―inspired by the principles of equality, social participation and respect for cultural identity‖ and its aim can be described as essentially twofold: compensate the economic losses and trigger the rehabilitation and the satisfaction of the victims restoring their dignity.455 Although the report clearly mentioned the necessity to include the Mayan population, who were most affected by the war, in both the debate on the reparations‘ strategy and its implementation, so far the dialogue between Mayans and the rest of Herencia Carrasco S. (2010), Transitional Justice and the Situation of Children in Colombia and Peru, Innocenti Working Paper No. 2010-16. Florence, UNICEF Innocenti Research Centre: 12. 454 Laplante and Thaidon supra n45 at13. 455 Please see the final report of the Commission for the Historical Clarification “Guatemala: Memory of Silence” http://shr.aaas.org/guatemala/ceh/report/english/recs3.html (accessed 30 August 2011). 453

Guatemalans has been unproductive, especially with regards to symbolic reparations.456 During the 36 years of conflict, Mayan children were particularly targeted. They experienced a wide range of human rights violations and after the massacres many boys and girls, especially under five years of age, were brought to the homes of regular army‘s members and used as servants or, in the best-case scenario, illegally adopted.457 For these heinous type of crimes there has been no official amends, no public apology and definitely no reparations. From the moment it was approved, the National Reparation Programme has encountered financial and logistics problems, that, together with the poor inclination towards a constructive dialogue with the indigenous members of the population, has lead so far only to a scant distribution of monetary compensation.458 In Sierra Leone the National Commission for Social Action (NaCSA), established according to the TC‘s report, nearly 4 years after the report was launched, finally started the victim‘s registration, which lasted from December 2008 to June 2009. The number of victims counted, verified and registered across the country was 29,783 ―including children, amputees, and others wounded in the fighting, war widows, and

See A. Issacs, “Confronting the Past? The Challenge of Truth, Justice and Reparations in Guatemala”, “Indigenous insistence on culturally appropriate reparations also drew the resistance and the scorn of ladino members who accused them of seeking to „indianise the process‟”. “Yes, we wanted to restore the customs of our elders, our spiritual guides, and as a memorial we want the restoration of our shrines that were destroyed by the army”, a Mayan delegate explained; “but they insisted on Western therapy, and for them a memorial means placing a cross or a sign in a park saying something like „a call for reconciliation‟. But for us that doesn‟t mean much”. http://www.realinstitutoelcano.org/wps/wcm/connect/614ec980 4f018693bac8fe3170baead1/Isaacs879.pdf?MOD=AJPERES&CA CHEID=614ec9804f018693bac8fe3170baead1 (accessed 30 August 2011). 457 C. Paz y Paz Baley, “Guatemala: Gender and Reparations for Human Rights Violations”, in Rubio-Marin supra n15 at 5. 458 “A la fecha se ha entregado el aporte económico a unas 40 mil personas, de las 69 mil que se tienen registradas. En cuanto a las viviendas, se han adjudicado 888 y esperan entregar unas 3 mil en el resto de la actual administración.” http://noticias.com.gt/nacionales/20101214-programa-nacionalde-resarcimiento-podria-desaparecer-debido-a-poco-presupuestopara-el-2011.html (accessed 14 September 2011). 456

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victims of sexual violence.‖459 The registration was part of the so-called Year One Programme, granted by the United Nations Peace-Building Fund and implemented by the NaCSA. The project was aimed at providing urgent measures to support the most needy victims, identified by the TC using the concept of vulnerability and, with regards to children, the accent was put mostly on education.460 According to the programme, children recognised as victims, and still eligible for primary and middle education, should receive the reimbursement of school fees, uniforms and books. Although the registration process was successful in the sense that it was able to actively involve children and people living in the rural areas of Sierra Leone, this represents only the starting point of a long term challenge which will require considerable efforts and the deployment of financial resources meant to address needs which go far beyond the distribution of school facilities. 5. CONCLUSION From my research has emerged in the first place a lack of children‘s participation which clearly leads to a poor understanding of reparative measures able to significantly restore the rights violated during the conflicts. Notwithstanding the almost universal ratification of the UNCRC, the reception of the principles enshrined, in particular with regards to children‘s ―right to express their views in all the matters affecting them‖, is still far from being accomplished. Only a few truth and reconciliation commissions worldwide made serious efforts to collect children‘s Submission to the Universal Periodic Review of the UN Human Rights Council 11th Session: May 2011 International Centre for Transitional Justice (ICTJ) 1 November. http://ictj.org/sites/default/files/ICTJ-SierraLeone-PeriodicReview-2010-English.pdf (accessed 30 August 2011). 460See J. King, “Gender and Reparations in Sierra Leone: The Wounds of War Remain Open”, supra n15 at 5. “The TC report categorises children eligible under the reparations programme as follows: children with physical injury, such as amputees or victims of sexual violence; children whose parents were killed as a consequence of any abuse or violation described in the report; children born out of an act of sexual violence and whose mothers are single; children who suffer from psychological harm; and warwounded children.” 459

statements and include them in the general discourse on reconciliation. The scant attention paid by the adult community towards the special hearings on children‘s issues held in South Africa and Liberia is a signal of the fact that children‘s participation is still looked on with suspicion. Children themselves appear to be sceptical when approached to give statements. According to the above mentioned report released by UNICEF and the ICTJ many of the children contacted in the statement taking phase of the Sierra Leonean TC were genuinely afraid of being arrested.461 Besides the lack of information and human rights education, another burning issue has been underscored throughout the present contribution, namely the difficulties faced by the selected TCs in setting the criteria, which regulate children‘s eligibility for reparations. Clearly, due to the vulnerability‘s threshold reached by the war-affected children, each and every TC needs to be really careful when it comes to identifying the victims who are going to be recognised as beneficiaries of the reparations policy recommended to the government. If it is true that ―one size doesn‘t fit all‖ and it is necessary to keep a local focus, it is also true that certain crimes affect children more than adults (e.g. sexual crimes) and, therefore, they always require ad hoc forms of reparations. The approach should not be too broad or too narrow in order to allow the TC to examine on a case-by-case basis, when it is feasible, which is the best way to intervene and who are the most needful amongst the child-victims of a given conflict. As for the challenges that the future TCs will have to tackle in order to better assess children‘s demands, I would underline in the first place the planning of the outreach, which should avoid creating false expectations amongst the war-affected children who have been already traumatised by the events which occurred. TC‘s commissioners should carefully address the financial issue in the report and distribute responsibilities and tasks to the organs in charge of 461

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See “Children and Truth Commissions‟, supra n32 at 9.


implementing the recommendations. The proclivity has been so far to shallowly rely on external aids and/or to underrate the necessity to consider the amount of resources concretely destined to the reparation programme. In particular, with regards to international intervention, my research so far highlighted that the interest of the donors towards a postconflict country tends to last from two to four years. This means that the work of the TC should try to enhance the local resources, recommending that the government invest in capacity building, institutional reforms and, of course, in children.462 In fact, TCs need to operate bearing in mind that war-affected children are characterised in the first place by their high potential, which if properly encouraged, represents a powerful deterrent to further conflicts and relapses.

Interviews conducted in Rwanda in 2009 and in BiH in 2010 and 2011 with experts working for NGOs and agencies specialised on children‟s rights underlined that the interest of the international donors in a post-conflict setting is normally concentrated in a limited space of time, which normally doesn‟t exceed four years. 462

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Selected Bibliography  Aptel, C. and Ladisch V. Trough a New Lens: A Child-Sensitive Approach to Transitional Justice, ICTJ August 2011,

http://ictj.org/sites/default/files/ICTJ-Children-Through-New-LensAptel-Ladisch-2011-English.pdf. (accessed 5 September 2011).    

  

  

Chapman A. and Ball P. ―The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa and Guatemala‖, in Human Rights Quarterly (23)2001: 1-43 at 41. Garland D. The Culture of Control, Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001). Hammad L. ―Rights in Context: Questioning Universality in the Implementation of Children's Rights using Jordan as a Case Study‖, in A. Alen et al., The UN Children's Convention: Theory Meets Practice (Antwerpen: Intersentia, 2007). Knoops G.G. J. ―Truth and Reconciliation Commission Models and International Tribunals: a Comparison‖, Symposium on The Right to Self-Determination in International Law, organised by Unrepresented Nations and People Organisation (UNPO), 29 September-1 October2006, The Hague, The Netherlands. Krappmann L. The weight of the child‘s view (Article 12 of the Convention on the Rights of the Child), in The International Journal of Children‘s Rights 18(2010): 502513. LeBlanc L.J., The Convention on the Rights of the Child: UN Law Making on Human Rights, (Lincoln: University of Nebraska Press, 1995). Mazurana D. and Carlson K. ―Reparations as a Means for Recognising and Addressing Crimes and Grave Rights Violations against Girls and Boys During Situations of Armed Conflicts and Under Authoritarian and Dictatorial Regimes‖, in R. Rubio-Marin, The Gender of Reparations (Cambridge Ma: Cambridge University Press, 2009). Roht-Arriaza N. and Orlovsky K. A Complementary Relationship: Reparations and Development, ICTJ Research Brief, July 2009. Rubio-Marin R. What happened to the Women? (New York: International Centre for Transitional Justice 2006). Teitel R. G. ―Human Rights in Transition: Transitional Justice Genealogy‖, Harvard Human Rights Journal, 16(69)(2003): 69-94.

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TRUTH, RECONCILIATION AND INDIGENOUS RIGHTS IN PERU: THE CASE OF THE TRUTH AND RECONCILIATION COMMISSION By Diana-Cosmina Trifu* ABSTRACT This article presents the case of the Peruvian Truth and Reconciliation Commission as both a milestone in the establishment of truth commissions and a representative case from the point of view of tackling, though indirectly, the Peruvian indigenous issue. Its proceedings, final report and recommendations aided in the improvement of indigenous rights protection. I argue that it was this mechanism that brought indigenous rights to the public eye, by presenting the violence, gross human rights violations and political, social and economic hardship suffered by these forgotten groups. The first part presents the conflict and the socio-economic context that ignited the violence, maintaining that it was precisely the marginalisation of the indigenous groups and ethnic discrimination that bred violence. The following two sections examine the achievements of the Truth and Reconciliation Commission, its innovative elements in regards to prosecutorial action or reparations and its work towards justice and ethnic reconciliation. The conclusion draws on the ideas presented and outlines certain arguments in relation to the Peruvian experience in terms of acknowledging the official truth and reckoning it with the country‘s indigenous past and, more generally, to the importance of integrating and addressing indigenous rights in transitional justice mechanisms. * Diana Trifu holds a BA in International Relations and European Studies and one in Foreign Languages and Literatures. Her areas of professional interest include human rights, conflict and peace studies and nonviolent resistance. She has interned with the United Nations Information Centre (Romania), the Black Sea Trust for Regional Cooperation and the Romanian Forum for Refugees and Migrants. Her interest in these fields has led her to participate in different international programmes among which the professional seminar ―Power and Dynamics of Civil Resistance‖, in Portoroz, Slovenia and the International Summer School Sarajevo 2011. Page 147


“A country that forgets its history is condemned to repeat it” Comisión de la Verdad y Reconciliación [Truth and Reconciliation Commission], Peru INTRODUCTION In the efforts of transitional governments to address such issues as crimes against humanity or mass human rights violations, truth-seeking and truth-telling mechanisms have set themselves apart as being more effective, particularly where political and judiciary weakness prevails. Truth commissions are recognised for bringing truth and the victims of human rights violations to centre stage, giving them a voice, and for having an important contribution to healing and ethnic reconciliation. The practice of Latin American truth commissions emerged in the early 1980s with the commissions in Bolivia (1982), National Commission for the Investigation of Forced Disappearances, and Argentina (1983), National Commission for the Disappearance of Persons. In both cases, the commissions addressed the need to discover and document the truth about forced disappearances and to investigate the span of human rights abuses. In this early stage, truth commissions were intended as a preparatory phase that would inevitably lead to criminal prosecutions, countering impunity being one of the most important goals of a truth commission. Michal Ben-Josef Hirsch argues that the creation of the South African Truth and Reconciliation Commission was a milestone in the framing of commissions‘ goals: no longer viewed as mere truth-seeking mechanisms, they extended their scope to comprise justice, healing, reconciliation and strengthening democratisation, hence providing an alternative to judicial action463. An argument in this regard is Michal Ben-Josef Hirsch, “Changing the Logic of Appropriateness: The Emergence of the International Norm of Truth Commissions”. Paper presented at the American Political Science Association Annual Meeting, (2009), Toronto, pp. 10-11. 463

the use of truth commissions by state actors as a means of deferring judicial action while giving the population some sort of closure. The struggle for recognition of the rights of indigenous populations is one of history‘s longest-lasting and most-marginalised justice issues. In the majority of cases, exacerbated discrimination against these powerless groups and the extreme poverty in which they are condemned to live in has been the root cause of conflicts and gross human rights violations. On this note, truth commissions have engaged in confronting legacies of injustice and acknowledging past abuses suffered by indigenous groups. These commissions have been primarily used when the majority of victims of a conflict were indigenous people: this is the case of the Historical Clarification Commission of Guatemala, which worked in Mayan communities following three decades of civil war, during which the indigenous group was targeted for genocide by state military forces. The commission gave Mayan survivors a chance to forge a voice and unity that did not exist before. The Peruvian Truth and Reconciliation Commission (hereafter the commission or TRC) played a similar role alongside the growing importance of indigenous rights: its findings and its final recommendations stressed the importance of accepting Peru as a multicultural country and thus ensuring the respect of the indigenous groups‘ rights. The Peruvian indigenous population has faced a structural and historical vulnerability, which translated in extreme poverty, discrimination, lack of healthcare and education institutions, violation of their cultural, political, social and economic rights, environmental destruction and conflict. The importance of acknowledging the existence of these groups and ensuring the respect of their rights is a core value of long-standing peace and democracy. The commission concluded in its final report that one of the main causes of the conflict was the

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discrimination and lack of basic living conditions suffered by the indigenous population, a population that suffered the brunt of the violence. Through its proceedings it also succeeded in raising the voice of a long silenced community, hence promoting the indigenous issue to a national level. In the article, ―Truth Commissions: An Uncertain Path?‖, the authors, after conducting extensive interviews in five countries, amongst them Peru, concluded that while there was a lot of criticism directed towards the commissions, the general reception was a warm one, the communities understanding the importance of their work and valuing the recognition of the official truth. The main criticism was addressed to the state for failing to implement the recommendations and for not contributing to ethnic reconciliation464. Joanna Rice believes that in order to respect and strengthen indigenous rights, a country should address human rights violations while considering the age-old historic injustice to which indigenous groups were subjected465. THE CONFLICT IN PERU: THE SETTING The Constitution of Peru does not reflect the historical and cultural importance of its indigenous groups or the country‘s ethnic diversity. Peruvian legislation does not explicitly acknowledge the extent of the country‘s ethnic diversity. Only the Convention 169 of the International Labour Organisation and the UN Declaration on the Rights of Indigenous Peoples ratified by Peru, enable a principle of recognition and legal protection of the fifty-five indigenous groups. Peru has had age-old discriminatory practices and chronic inequality directed towards the indigenous populations living in the country: Andean, Afro-Peruvian and Victor Espinoza Cuevas, Maria Luisa Rojas, Paz Baeza, “Comisiones de la verdad ¿Un camino incierto? Estudio comparativo de Comisiones de la Verdad en Argentina, Chile, El Salvador, Guatemala y Sudáfrica desde las víctimas y las organizaciones de derechos humanos”, Study, (2002), CODEPU Chile, APT, Switzerland. 465 Joanna Rice, “Truth Commissions and Indigenous Rights: What is at Stake?”, discussion available at http://ictj.org/truthcommissions-and-indigenous-rights-what-stake. 464

Amazonic groups. The final report of the TRC depicts the context of the conflict as one of ethnic discrimination, racism of colonial origin and an acute social and economic marginalisation, which bred and multiplied violence. The antecedents leading up to the armed conflict consisted of a weak state presence in the rural areas of Peru, dominated mainly by the Quechua minority. A characteristic trait of the Peruvian state was its frail national integration, as it results from the defragmentation of regional spaces and its inability to successfully and effectively acknowledge the ethnic diversity of the country466. The disintegrating Andean society saw the rebels‘ discourse of recognition and protagonism as feasible. The communist ideology found a multiplying ground in the marginalised societies. Clashes arose as a result of the resentment of the mestizo groups in the region. The existing socioeconomic and political inequalities, their constant marginalisation provided rationale for violence and interacted with the underlying historical social exclusion and the resentment of the military towards the indigenous groups. This occurred in the background of constant indigenous rights violations. The armed conflict initiated as a form of popular war against the government, instigated by the Communist Party, Sendero Luminoso [Shining Path], which began an armed rebellion in 1980. It targeted the social layers that were most prone to a radical rupture with the established order, mainly racially mixed and provincial people, who wanted a voice, a voice that had been denied to them for decades. In 1984, another communist group, Movimiento Revolucionario Tupac Amaru (MRTA) [Tupac Amaru Revolutionary Movement], launched its military operations. As a desperate counterinsurgency measure, the armed forces of Peru were given carte blanche in dealing with the terrorist threat, a step Final report of the Truth and Reconciliation Commission of Peru, available at http://www.cverdad.org.pe/ifinal/index.php. 466

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that led to an escalation of conflict. Between 1983 and 1993467, as a result of the actions of guerrillas, military units and local self-defence groups acting under the command or with the acquiescence of the state, 69,000468 people died or disappeared. Among the indigenous populations most affected by the violence were the peoples of the Central Eastern Andean rainforest (Ashanika, Yasesha and Nomatsiguenga populations). Of these the Ashanikas were most affected, since the statistics reveal that of 55,000 indigenous Ashanika people, 10,000 were forcibly displaced, 6,000 died and another 5,000 lived in slavery under Sendero Luminoso469. The communist party deliberately used its totalitarian ideology to destroy the forms of cultural organisation proper to the Andean and Amazonic populations by means of enslavement and repression of their cultural and religious manifestations. In 1990, elected president Alberto Fujimori, decided to meet the challenge of the insurgency with a strategy of suppression of civil liberties and an erosion of political accountability, while using paramilitary groups to end the conflict. The Peruvian armed forces implemented a counter-insurgency based on draconian measures, which violated human rights. Fujimori‘s idea of putting an end to the two-decade long conflict came with the idea that citizens had to sacrifice freedoms in order to achieve progress and peace, particularly the indigenous population. Another characteristic of the Fujimori regime was the suppression of the political opposition and killing of the armed opponents of the government.

Quechua communities470 in the conflict zones were also targeted by government counter-insurgency efforts. By the late 1980s they had begun to organise themselves into defence committees, supported by the government, and it was this development, together with police and military intelligence that led to Sendero Luminoso‘s downfall in 1992, with the capture of its leader, Abimael Guzman. During the armed conflict the rights of the indigenous population were violated two fold: firstly, at the hands of the rebel groups against the Quechua-speaking indigenous groups by forcibly removing them from their lands471 without respecting indigenous customs and secondly at the hands of the state armed forces, who disregarded the indigenous traditions. The actions of the communist party led to the displacement of half a million people, the great majority coming from the underdeveloped regions. The violence unlocked latent inter- and intracommunities conflict present within the different indigenous communities, by reinstating ethnic and racial differences of the traditional societies. The region of Ayacucho alone registered thirty eight per cent of the total estimated number of deaths. TRUTH AND RECONCILIATION COMMISSION – A REGIONAL LANDMARK The Peruvian TRC was one of the most notable among similar experiences in Latin America in terms of accountability and historical clarification. With a budget of over 13 million dollars and a staff of 500 professionals, the magnitude of its Highland Quechua make up almost one-third of Peru's total population. For more information on the demography of Peru, see Minority Rights Group at http://www.minorityrights.org/1954/peru/aymara-and-highlandquechua.html. 471 Approximately 70% of all the people forcibly removed by the Sendero Luminoso from their land were peasants and indigenous people of ethnic groups that enjoyed a special relationship with their land or territories and whose daily life was radically affected as a result. A detailed report on internal displacement in Peru during the conflict is available at “Profile of Internal Displacement Peru”, Norwegian Refugee Council/Global IDP Project, http://www.internaldisplacement.org/8025708F004BE3B1/(httpInfoFiles)/839E8F59 686C7B8F802570BA00548F88/$file/Peru+-June+2004.pdf. 470

The mentioned period comprises the presidencies of Fernando Belaúnde Terry (1980-1985), Alan García (1985-1990) y Alberto Fujimori (1990-2000), the first two being democratically elected. Of special note is the fact that the TRC had the task of investigating human rights abuses committed in democratic regimes. 468 This is the number the Truth and Reconciliation Commission estimated for the whole twenty-year period. 469 Jose Carlos Orihuela. “Post-conflict Economic Policy and Horizontal Inequalities in Peru”. Workshop paper, CRISE, Oxford Department of International Development. 467

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operations was second only to those of the South African Truth and Reconciliation Commission. It was the first Latin American Commission to hold public hearings, giving a voice to the victimised indigenous community. It also distinguished itself from other truth commissions by understanding its mandate as an implication to help advance criminal prosecutions, hence conducting a visible set of actions that were intended to gain public support for future prosecutions. It interpreted it in a more modern, ambitious and comprehensive way than its predecessors, trying to implement changes in the social fabric of the community. The commission‘s objective was to clarify ―the process, facts and responsibilities of the terrorist violence and human rights violations produced from May 1980 to November 2000, whether imputable to terrorist organisations or state agents, as well as proposing initiatives destined to affirm the peace and harmony among Peruvians‖472. The aim of clarification required the Commission to produce an interpretation of the historical period and analyse the root causes of the conflict. Though it was not endowed with jurisdictional powers, its mandate established the necessity for investigating the political, social, economic and cultural premises that led to the conflict, for drawing up proposals for the reparation and dignification of survivors and recommendations for institutional, educational and legal reforms. Furthermore, it stated the establishment of mechanisms to follow up on all its recommendations. Accordingly, in volume VIII of the final report, the CVR included a proviso stipulating that it expected diligent action from the Prosecutor General and that, if no such action were to be taken in the thirty days following the presentation of the report, it would ask the Ombudsman‟s office to use its constitutional right of formulating accusations against the perpetrators of the cases investigated. Article 1 of the Supreme Decree 065-2001-PCM. http://www.mississippitruth.com/documents/PERU.pdf 472

The TRC came under criticism as its investigations excluded human rights violations which, though not related to the conflict, were nonetheless comprised in the time frame under examination: the involvement of the country in the continental Operation Cóndor473 in June 1980, the assassinations of intelligence officers under the Fujimori dictatorship and the forced sterilisation of women in the Andean highlands. In April 2002 the commission started organising successful public hearings, which were meant not only to put victims, mainly indigenous, at the centre stage of the process and to garner public support in favour of prosecutions, but also to allow the victimised indigenous communities to bring their suffering to the attention of the nation. With the participation of an estimated 9,800 people, the public hearings were particularly powerful for the urban population of the country that until then was incognizant to the span of the atrocities committed in the rural areas of Peru. 318 cases of human rights violations were under analysis in the hearings, leading to 431 testimonies474. Videotaped statements of former MRTA and Shining Path‘s members, in prison at the time, were of particular importance and controversy, despite that many of these former members offered apologies to the surviving victims. A public opinion poll conducted after the conclusion of the public hearings revealed that 64% of Peruvians approved the commission‘s work and 68% thought its findings should be pursued by the courts475. The final report presents the main author of the crimes and human rights abuses as being Sendero Luminoso, which was responsible for fifty four per cent of the

Operación Cóndor was the name given to a continent-wide conspiracy between 1970-1980 implemented by countries in the Southern Cone (Chile, Argentina, Brazil, Paraguay, Uruguay, and Bolivia) whose main objective was to eradicate alleged subversive elements or opposition movements against the military regimes. 474 Data taken from “Peru's Truth and Reconciliation Commission: About the Commission Yuyanapaq (To Remember)”, Open Society Foundations, http://www.soros.org/initiatives/photography/movingwalls/8/pe ru_bio 475 “Digging for truth”, Economist, April 25, 2002, Lima, available at http://www.economist.com/node/1101634. 473

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deaths and disappearances reported by the commission, whereas the Peruvian armed forces were responsible for thirty six per cent. Looking into the causes of the conflict, the TRC documented issues that had been a constant in Peruvian society: social and economic inequality, discrimination, and the ignorance of the state towards the minority population whose rights had been constantly violated over decades. Accordingly, three in every four people assassinated were living in rural areas and pertained to the Quechua minority, seventy five per cent of all the victims spoke a native language other than Spanish and sixty eight per cent had a minimal education476. Despite no evidence being found that would point to this being an ethnic conflict, the commission emphasised that the conflict would not have been possible if it were not for the passivity and indifference towards the poor and indigenous population of the country displayed by the Sendero Luminoso and the Peruvian Armed Forces. The report also dedicated an entire chapter to the psychosocial effects of the conflict, pointing out that fear and distrust were still present in the society, weakening the communities and reducing civic participation. From a collective standpoint, the psychologists detected significant disintegration of the communities and of the family relationships, which created an overall feeling of vulnerability and insecurity. The four regions that were most affected by the conflict were the poorest of the country and have been historically forgotten and overlooked by state authorities. The internal conflict only exacerbated the existing social and economic inequalities, the TRC acknowledging poverty as one of the principal factors that ignited the conflict. THE COMMISSION‟S FINDINGS THE INDIGENOUS ISSUES

AND

There are conflicting assessments of the success of the commission, many praising it as a milestone for truth commissions in view of its mandate, others dismissing its success due to lack of implementation of its recommendations. Despite criminal justice being one of the top priorities of the victims, not many prosecutions were conducted following the presentation of the report due to political pressure and a deficient legal system. The opposition by the armed forces weakened the resolution of the institutions charged with prosecuting the perpetrators; accordingly, of 252 arrest warrants for indicted persons, only forty three were complied with, the rest being subject to procedural errors. By October 2003 the prosecutor‘s office had filed charges against forty-one members of the group. The commission recommended that Fujimori be held criminally accountable for the regime‘s crimes and excesses477, but only in April 2009, the Criminal Chamber of the Peruvian Supreme Court sentenced Alberto Fujimori to twenty-five years imprisonment for human rights abuses. The TRC also recommended the creation and implementation of a Comprehensive Reparations Programme as a form of reaffirming the dignity and statute of the victims. Of special note are the precarious social and economic conditions of the victimised population. This programme, one of the most complete reparations plans created by a truth commission to date, was presented as the critical nexus between national reconstruction and sustainable peace. The reparations programme envisioned by the commission was composed of symbolic and material reparations, psychological health support, educational grants and restitution of citizen rights for the indigenous groups (legal advisory and the provision of national identity cards478). The High Level Multi-sector Commission was established Mortimer Sellers, Tadeusz Tomaszewski (Eds.), The Rule of Law in Comparative Perspective (Springer, 2010), p. 194. 478 Sendero Luminoso had set fire to local archives with the consequent loss of birth certificates needed to access a national ID. See Orihuela, “Post-conflict Economic Policy and Horizontal Inequalities in Peru”, Workshop paper. 477

Lisa J. Laplante. “On the Indivisibility of Rights: Truth Commission, Reparations and the Right to Development”, Yale Human Rights and Development Journal (2007) 10(1). 476

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in 2004 in order to follow-up on the TRC‘s recommendations relating to peace, national reconciliation and collective reparations. The Plan Integral de Reparaciones (PIR) [Integral Reparations Programme] was created, though it enjoyed a slow implementation. In 2005, the Peruvian Congress approved the transfer of 10 million Peruvian soles (approximately USD 3,076,923) towards executing the PIR. The majority of this money went into infrastructure improvements whether or not these were damaged during the conflict. The PIR, as it was implemented by the authorities, was a development programme in parts of the country that had suffered from historic economic and social inequity not necessarily linked to the conflict. Its primary goal was not to address issues of recognition of human rights violations and of indigenous rights by compensating the victims. The government also promised collective reparations for some 300 communities in the areas that were hardest hit by violence479. The National Council for Reparation, established in October 2006, began in early 2008 to create a comprehensive database of all victims in order to provide individual reparations according to recommendations. The majority of the population underlined the importance of discovering the truth of past abuses for the construction of a better future, whereas the victims that testified before the commission acknowledge the importance of being listened to by the state, after years of suffering in silence and being discriminated. Nevertheless, the Peruvian population was disillusioned with the outcome of the commission‘s final report, many of its members pointing out the government‘s inability to implement the recommendations. Years after the release of the final report, progress resulting from the commission‘s work has been mixed. The state has taken

significant steps in implementing the recommendations of the commission: a legislation for collective reparations for the indigenous communities was passed in Congress, the Peruvian Constitution Court has enshrined the right to truth, the Executive has accepted responsibility in a number of cases before the InterAmerican system of human rights, a National Human Rights Plan was put in place in 2005480 and of the forty seven cases submitted for immediate action to the Prosecutor general, twenty two are on trial. But perhaps the most significant steps taken as preventive measure of a future conflict are those dealing with the indigenous populations: improvement of the infrastructure in the rural areas, respecting and promoting indigenous rights and giving a voice to these communities. Nevertheless, much remains to be done. The victims included in the report, of over 1,500 persons, only 25 per cent have legal representation provided in most part by local human rights NGOs, whereas, postconflict economic policy seems to be designed without taking into consideration the socioeconomic causes and consequences of the internal struggle. Although collective reparations have been made in the form of infrastructure projects, economic development has failed to reduce inequalities among regions and ethnic groups. State action has shortened inter-group gaps on the access to publicly provided services, but nonetheless widened the gaps on opportunities for economic growth and employment. According to the former executive secretary of the TRC, Javier Ciurlizza, Peru has made sustainable progress in the areas of collective reparations and penal justice, but at least three significant issues remain: individual economic reparations, which are to be implemented in 2011, institutional reforms and the

Plan Nacional de Derechos Humanos [National Human Rights Plan] http://www2.ohchr.org/english/issues/plan_actions/docs/peru_s p.pdf. 480

Nevertheless, the money will be distributed through a competition, given to the best projects and not necessarily to the victims of the conflict. 479

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construction of a memorial site481, the latter standing for symbolic reparations. In terms of promoting and respecting indigenous rights, improvements have been made, particularly in terms of the self-organisation of the different indigenous communities fighting for their rights as well as from the state authorities. A notable improvement is a law recognising indigenous ownership of land and hence the obligation to prior consultation of the indigenous people. Nonetheless, ethnic and racial discrimination is still present in the Peruvian society as a trace of decades of violence. CONCLUSION The TRC represents a model for future commissions, which will be established in the region, both in terms of a comprehensive mandate and in view of it‘s promoting to centre stage the indigenous issue. It succeeded in strengthening the place of indigenous groups within the borders of the state, and at the same time promoting the problems of these communities at the national level. At the time when the armed conflict arose, the indigenous communities and women were the most excluded categories of the Peruvian society, this aided to the multiplying of violence. Though not ethnically motivated, the Peruvian conflict had a strong ethnic, racial and regional component, which acted as a catalyst to the violence. The final report of the TRC only indirectly mentions the rights of the indigenous population. Nevertheless, given the complexity and breadth of the conflict, this should be distinctly mentioned, as it would draw positive discrimination and a better social status for the indigenous groups. I underlined the idea that in order to obtain national reconciliation, the creation of a collective identity for all Peruvians, which will respect the cultural,

“Perú ha avanzado en el ámbito de reparaciones colectivas, afirman”, Interview with Javier Ciurlizza on RPP Noticias Radio, available at http://www.rpp.com.pe/2010-08-26-peru-haavanzado-en-el-ambito-de-reparaciones-colectivas-afirmannoticia_290741.html. 481

ethnic and racial differences, is indispensable. Respecting indigenous rights stands as an essential democratic gesture – breaking with the past and looking towards a brighter future. Transitional justice mechanisms have the power to act as a bond between the state and its citizens, strengthening the demands of the marginalised. To present day, the explicit claim of ethnic identities is still weak, though some major breakthroughs have been registered on the side of the indigenous population: a law recognising the right of indigenous people to prior consultation in regard to their land and representation of more indigenous communities in the Peruvian Congress. Nevertheless, this is only a small part of what should be done to address the indigenous issue from the perspective of eliminating future possible causes for conflicts. Respecting the rights of indigenous groups, particularly in the context of the transitional process is highly important both for the new regime‘s legitimacy and for the promise of democracy that it presents before the people, at the same time giving indigenous populations the opportunity to benefit from the advantages of transition. The advancement of the idea that indigenous rights should be promoted in the transitional justice mechanism, in this case truth commissions, is based on the belief that it will raise awareness to these rights and the past, current and future situation of the indigenous peoples and create a more inclusive society hence preventing future conflicts. Moreover, their inclusion into the mechanisms will draw attention to the indigenous justice claims. More and more states have undertaken their own inquires or have established national truth commissions to examine the abuses committed against minority and indigenous groups. In this context it is worth mentioning the cases of the truth commissions in Australia and Canada, investigating past human rights violations against the indigenous populations. The Human Rights and Equal Opportunity

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Commission of Australia investigated the abuses committed by the state against the Aboriginal population of the country. Though not a truth commission per se, its main focus was the practice of removing the children of Aboriginal families and placing them in white families, with the purpose of better assimilating them into Australian society. The publishing of the report in 1997 had an impressive echo in Australian society and led to the acknowledgement of human rights abuses committed decades earlier to the Aboriginal population. Furthermore, Canada is the first Western nation to establish in 2000 a truth commission intended to focus solely on crimes against indigenous populations and the legacies of these abuses. Its investigatory mandate includes the period comprised between 1874 and 1996, when an ominous process of forced assimilation of the Aboriginal people attributable to state authorities took place. The scope of its investigations includes the acknowledgement of the Residential school experiment on the aboriginals, and documenting its impact and consequences on the community, as well as the need to promote and facilitate reconciliation at both the national and community levels. Though truth commissions and indigenous rights have become intertwined, practitioners and indigenous rights activists worry about the fact that truth commissions, through their statebuilding views try to reconcile a divided and marginalised population, as is the case with indigenous groups. Truth commissions are one of the few fully independent mechanisms that are able to promote indigenous rights, by means of challenging the historic narrative about the relationship between indigenous and dominant groups within the society482.

Joanna Rice, “Indigenous Rights and Truth Commissions”. Cultural Survival Quarterly 35 – 1 (2011) http://www.culturalsurvival.org/publications/cultural-survivalquarterly/none/indigenous-rights-and-truth-commissions. 482

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BIBLIOGRAPHY BOOKS AND ARTICLES  ESPINOZA CUEVAS, Victor. Maria Luisa Rojas and Paz Baeza, ―Comisiones de la verdad ¿Un camino incierto? Estudio comparativo de Comisiones de la Verdad en Argentina, Chile, El Salvador, Guatemala y Sudáfrica desde las víctimas y las organizaciones de derechos humanos‖, (2002), CODEPU Chile, APT, Switzerland.  HAYNER, Priscilla B. Unspeakable Truths. Transitional Justice and the Challenge of Truth Commissions, Second edition, (New York, London: Routledge, Taylor and Francis Group, 2011).  HIRSCH, Michal Ben-Josef. ―Changing the Logic of Appropriateness: The Emergence of the International Norm of Truth Commissions‖ (2009), Toronto.  LAPLANTE, Lisa. ―Después de la verdad: demandas para las reparaciones en el Perú poscomisión de la verdad y reconciliación‖, Antípoda 4 (2007), Bogotá.  LAPLANTE, Lisa. ―On the Indivisibility of Rights: Truth Commission, Reparations and the Right to Development‖, Yale Human Rights and Development Law Journal. (2007) 10(1).  ORIHUELA, Jose Carlos. ―Post-conflict Economic Policy and Horizontal Inequalities in Peru‖, CRISE, Oxford Department of International Development. Obtainable at http://www.crise.ox.ac.uk/copy/post-conflict%20workshop/oriheula.pdf, accessed on 15 August 2011.  RICE, Joanna. ―Indigenous Rights and Truth Commissions‖, Cultural Survival Quarterly 35 – 1 (2011), available at http://www.culturalsurvival.org/publications/cultural-survivalquarterly/none/indigenous-rights-and-truth-commissions, accessed on 15 August 2011.  SELLERS, Mortimer and Tadeusz Tomaszewski (Eds.), The Rule of Law in Comparative Perspective, (Springer, 2010).  CABITZA, Mattia. ―Peru Leads the Way for Latin America‘s Indigenous Communities‖, Guardian, 12 September 2011, available at http://www.guardian.co.uk/global-development/povertymatters/2011/sep/12/peru-land-rights-indigenous-communities, accessed on 16 September 2011.  ―Digging for truth‖, Economist, 25 April, 2002, Lima, available at http://www.economist.com/node/1101634, accessed on 18 November 2011. OTHER ACTS  Supreme Decree 065-2001-PCM; year of publication 2001, available at http://www.mississippitruth.com/documents/PERU.pdf, accessed on 15 July 2011.  Plan Nacional de Derechos Humanos, available at http://www2.ohchr.org/english/issues/plan_actions/docs/peru_sp.pdf, accessed on 10 July 2011.  Final Report of the Truth and Reconciliation Commission of Peru, available at http://www.cverdad.org.pe/ifinal/index.php, accessed on 10 July 2011.  Convention concerning Indigenous and Tribal Peoples in Independent Countries, entered into force: 5 September 1991, 2007 United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295). WEBSITES

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AGURTO, Jorge, ―From the Indigenous World‖ 2011, available at http://iwgia.webhotel.net/images/stories/sections/regions/latinamerica/documents/IW2011/peru_2011.pdf, accessed on 10 August 2011. Minority Rights Group, available at http://www.minorityrights.org/1954/peru/aymara-and-highland-quechua.html, accessed on 8 July 2011. ―Perú ha avanzado en el ámbito de reparaciones colectivas, afirman‖. Interview with Javier Ciurlizza on RPP Noticias Radio, available at http://www.rpp.com.pe/201008-26-peru-ha-avanzado-en-el-ambito-de-reparaciones-colectivas-afirmannoticia_290741.html, accessed on 17 September 2011. ―Truth and Reconciliation Commission of Peru‖, available at http://www.usip.org/publications/truth-commission-peru-01, accessed on 12 July, 2011. ―Truth Commissions and Indigenous Rights: What is at Stake?‖ conference, Indigenous Rights & Truth-Seeking in Early Colonization Regions, available at http://ictj.org/truth-commissions-and-indigenous-rights-what-stake, accessed on 17 September 2011. ―Peru's Truth and Reconciliation Commission: About the Commission Yuyanapaq (To Remember)‖, available at http://www.soros.org/initiatives/photography/movingwalls/8/peru_bio, accessed on November 17 2011. ―Profile of Internal Displacement Peru‖, Norwegian Refugee Council/Global IDP Project, available at http://www.internaldisplacement.org/8025708F004BE3B1/(httpInfoFiles)/839E8F59686C7B8F802570 BA00548F88/$file/Peru+-June+2004.pdf, accessed on 18 November 2011.

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THE RIGHT TO “GENETIC TRUTH” OF CHILDREN BORN OF WAR483 A Particular Focus on Bosnia and Herzegovina By Alice Margaria*

ABSTRACT During the armed conflict in Bosnia and Herzegovina (1992-1995), hundreds of children were born as a consequence of war-related sexual violence perpetrated by the Serbian militias primarily against Bosnian Muslim women. Surprisingly, these children were never acknowledged as victims of human rights abuses in the legal debate concerning the atrocities committed against women and culture. The present paper attempts to fill the existing gap by considering the legal status of this specific category of children from a human rights perspective, with a particular emphasis on the impact of war and post-conflict environments on the right of the child to develop and preserve his or her own identity. In light of the intricate complexity characterising the situation of children born of war, categorical positions are not desirable. To the contrary, the acknowledgement of the competing rights at stake – the right to know one‘s origins, the best interests of the child and the mother‘s confidentiality rights – as equally fundamental makes it possible to achieve a fair equilibrium between the interests of all parties involved. * Alice Margaria is currently a Ph.D. candidate at the Law Department of the European University Institute, Florence. She holds a 5-year law degree summa cum laude from the University of Turin (2009). She also holds an LL.M. with distinction in Human Rights Law from University College London (2010) as well as an LL.M. in Comparative, European and International Law from the European University Institute (2011). Her present research investigates the legal definition of fatherhood endorsed by human rights law, with a particular focus on the jurisprudence of the European and the Inter-American Courts of Human Rights. More broadly, she has a strong interest in issues of family law, gender and children‘s rights. During her internship at UNICEF BiH (Summer 2011), she prepared the Report on the Status of Implementation of the UN Convention on the Rights of the Child in BiH. Her recent publications include ―Who and what is a mother? Maternity, Responsibility and Liberty‖ (co-written with Prof. Michael Freeman), forthcoming in Theoretical Inquiries in Law 13(1) 2012; Commentary on the decision of the Italian Court of Cassation, 3rd Civil Section, A. v P. and ors, No. 10741/2009 concerning the legal status of the unborn child, International Law in Domestic Courts available at http://www.oxfordlawreports.com/; "Le Linee guida del Consiglio d'Europa per una giustizia a misura di bambino" ("The Guidelines of the Council of Europe on child-friendly justice") Minori Giustizia 2/2011. For the purposes of this article, I will use the term “children born of war”, as coined by Charli Carpenter et al., to indicate: “…Persons of any age conceived as a result of violent, coercive or exploitative sexual relations in conflict zones.” See C. C arpenter, “Gender, Ethnicity and Children‟s Human Rights” in C. Carpenter (editor), Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones (Kumarian Press, 2007), p. 3. 483

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INTRODUCTION: SETTING UP THE CONTEXT Sexual violence is endemic in wartime and it often results in the birth of children. It has been estimated that tens of thousands of children have been born as a consequence of mass rape campaigns or sexual exploitation in conflict-affected areas in the last fifteen years.484 Children born to rape survivors are often victims of stigmatisation in their communities. The societal response to these children has repeatedly resulted in egregious infringements of their human rights, including infanticide, abandonment, trafficking, statelessness, discrimination and confusion around their identity.485 However, the plight of children born of wartime rape has been generally disregarded by both local and international actors and a limited body of literature has hitherto investigated their status through the lens of human rights.486 The conflict in Bosnia and Herzegovina from 1992 to 1995 was characterised by innumerable atrocities and hundreds of infants were born as a consequence of war-related sexual violence committed by the Serbian militias primarily against Bosnian Muslim women. Mass rape campaigns represented one of the most outrageous means of implementing the Serb project of ―Greater Serbia‖, patterned on an abhorrent policy of ―ethnic cleansing‖. Accordingly, forced impregnation was considered a powerful expedient to alter the ethnic structure of a C. Carpenter et al., “Protecting Children Born of Sexual Violence and Exploitation in Conflict Zones: Existing Practice and Knowledge Gaps”, University of Pittsburgh: Graduate School of Public and International Affairs and the Ford Institute of Human Security (2005), p. 3. 485 Z. Ismail, “Emerging from the Shadows: Finding a Place for Children Born of War”, unpublished MA thesis, European University Centre for Peace Studies (Austria) (2008), p. 5 available online at http://epu.ac.at/fileadmin/downloads/research/Ismail.pdf., accessed on 1 July 2011. 486 Several commentators underline that insufficient emphasis has been placed on the human rights of children born of wartime rape by legal scholars. See A. Watson, “Children Born of Wartime Rape: Rights and Representations”, International Feminist Journal of Politics 9(1) (2007), p. 20; C. Carpenter, “Surfacing Children: Limitations of Genocidal Rape Discourse”, Human Rights Quarterly 22 (2000), p. 429. 484

specific geographical area, by ensuring that Bosnian Muslim women would deliver Serbian rather than Bosnian Muslim babies. Astonishingly, these children were never acknowledged as victims of human rights abuses in the debate concerning the cruelties perpetrated against women and culture.487 The principal focus in relation to mass rape campaigns was placed on the situation of women, in particular on their victimisation and social exclusion in the aftermath of the conflict. The lack of consideration for issues of children‘s rights within the legal discourse is unexpected and alarming. While the International Criminal Tribunal for the Former Yugoslavia (ICTY) issued its first conviction for rape as a crime against humanity in the case of multiple rapes of Bosnian girls by the Serbian soldiers, it failed to discuss the long-term effects that these rapes had on the victims.488 The ICTY noted, however, that the commission of ―particularly serious offences against the most vulnerable of persons in any conflict, namely, women and girls‖ constitutes an aggravating factor at sentencing.489 The birth of children being the natural consequence of forced pregnancy, the resulting babies were certainly a party to be considered within the context of the crimes against humanity that were committed during the armed conflict in

For a detailed account of the main reasons for the marginalisation of children born of wartime rape within the international human rights framework and existing theoretical analyses, see A. Watson, “Children Born of Wartime Rape: Rights and Representations”. 488 Prosecutor v. Kunarac et al, ICTY Case No. IT-96-23-T, Trial Judgment, 22 February 2001, paragraphs 687-745. 489 Ibid, paragraph 858. The International Criminal Tribunal for Rwanda („ICTR‟) was more explicit on this point. The ICTR discussed sexual violence in the context of the genocide charges. See Prosecutor v. Musema, ICTR Case No. 96-13-A, Trial Judgement, 27 January 2000 (“Musema Trial Judgment”). It held in paragraph 158 that “sexual mutilation, enforced sterilization, forced birth control (emphasis added), forced separation of males and females, and prohibition of marriages” all constitute “measures intended to prevent births within the group” in accordance with the Article 2(2)(d) of the ICTR Statute („Genocide‟). 489 In paragraph 933, the ICTR concluded that “the acts of rape and sexual violence were an integral part of the plan conceived to destroy the Tutsi group” because “[s]uch acts targeted Tutsi women, in particular, and specifically contributed to their destruction and therefore that of the Tutsi group as such”. 487

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Bosnia and Herzegovina.490 Moreover, the widespread awareness of their existence as well as the public sensitivity to their plight in the early 1990s strongly supported their inclusion in the legal discourse.491 Apart from failing to associate the destiny of children born of war with the destiny of their raped mothers, some authors explicitly placed them outside the group against which the genocide was being committed and classified them as members of the ethnic category perpetrating the atrocities.492 In most of the literature concerning forced impregnation, these children were regarded as non-Muslim.493 This social construction clearly reflects the idea of ‗identity‘ as paternally given and inevitably materialised the highly contradictory reasoning, which informed the Serbian policy of ethnic purification. As argued by Goldstein, a forcibly impregnated woman was deemed incapable of conceiving and delivering a child of her own ethnic affiliation.494 In line with this construction, the genetic and ethnic heritage of the child conceived by rape is determined exclusively by the The International Criminal Court was the first tribunal to include forced pregnancy in its statute. According to Article 7(1)(g) of the Rome Statute (UN Doc. A/CONF.183/10), acts of forced pregnancy constitute a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with the knowledge of the attack”. In addition, Article 7(2)(f) specifies that “forced pregnancy” means “the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law”. On rape and forced pregnancy, see K. Boon, “Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy, and Consent”, Columbia Human Rights Law Review 32 (2000-2001), pp. 625-675. 491 C. Carpenter, “Surfacing Children: Limitations of Genocidal Rape Discourse”, 429. 492 Ibid, 445. 493 For instance, see C. MacKinnon, Are Women Human? And Other International Dialogues (Harvard University Press, 2006), p. 146: “Croatian and Muslim women are being raped to help make a Serbian state by making Serbian babies” (emphasis added); J. Green et al., “Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique”, Hastings Women’s Law Journal 5(2) (1994), p. 194: “…threatening to impregnate women with children of another ethnicity and using rape to drive women from their families and communities are measures intended to prevent births within that group” (emphasis added). 494 A. Goldstein, “Recognizing Forced Impregnation as a War Crime Under International Law: A Special Report of the International Program”, New York: Center for Reproductive Law and Policy (1993), p. 24. 490

male participation to the reproductive process. Indeed, the act of sexual violence that leads to conception ―renders meaningless the women‘s contributions to their children‘s identity and upbringing‖.495 Such logic conceptualises forced impregnation as an abuse perpetrated only against women and, therefore, exposes children born of war to egregious violations of their human rights from birth throughout their entire lives.496 The impact - physical, economic and psychosocial - of war and post-conflict environments on this specific category of children ought not to be overlooked. The present paper attempts to plug the gap existing in legal scholarship by providing an overview of the conditions of children born of war from a human rights perspective. Although the majority of the following considerations are referable to all children conceived in war-affected regions around the globe, the findings included in the present paper are mainly based on data and other significant sources pertaining to the conflict in the former Yugoslavia. Among all human rights abuses allegedly suffered by these children, the implications of armed conflicts on the protection of the right of the child to develop and preserve his or her own identity will be carefully examined. More specifically, the meaning of the right to know one‘s biological origins will be extensively considered, in light of the relevant provisions of the UN Convention on the Rights of the Child (CRC)497 and the European Convention on Human Rights (ECHR)498. This analysis is ultimately aimed at establishing whether, P. Weitsman, “The Politics of Identity and Sexual Violence: A Review of Bosnia and Rwanda”, Human Rights Quarterly 30(3) (2008), p. 566. 496 Ibid, p. 567. 497 1989 UN Convention on the Rights of the Child, GA Res. 44/25, 44 UN GAOR, Supp. (No. 49), at 167, UN Doc. A/44/49, (1989), reprinted in 28 ILM 1448 (1989); entered into force 2 September 1990. The former Yugoslavia had ratified the CRC on 3 January 1991. Subsequent to dissolution, the Government of Bosnia and Herzegovina deposited notification of succession with the Secretary-General, with effect from 6 March 1992. 498 European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 221; entered into force 3 September 1953. By joining the Council of Europe in 2002, Bosnia and Herzegovina ratified the ECHR and its Protocols. 495

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in the particular context of war-related sexual violence, the protection of the right to ‗genetic truth‘ might be overridden in the name of the best interests of the child or, alternatively, to protect the mother‘s rights to confidentiality. THE FATE OF CHILDREN BORN OF WAR IN BOSNIA-HERZEGOVINA Despite their invisibility in the legal discourses concerning the rights of civilians in war, a significant population of children is born as a result of forced pregnancy incidental to sexual violence in war-affected zones. Estimates of the number of children born of war in the former Yugoslavia vary extensively and are hardly verifiable. While the European Community issued a moderate appraisal of 20,000 women raped in 1993, the Bosnian Government estimated that mass rape campaigns of the early 1990s led to 35,000 pregnancies.499 Although the vast majority of these pregnancies probably resulted in abortions, we might suppose that thousands of infants were born as a result of war-related sexual violence during the conflict.500 What was the destiny of these children? Some pregnant women gave birth outside a hospital, without medical assistance and care. In these cases, a number of children were killed upon birth. Those infants who were lucky enough to be born in hospitals were frequently abandoned by their mothers. Although certain rape survivors wished to rear their children, the severe stigma attached to these babies precluded birth-givers from performing any maternal

T. Salzman, “Rape Camps as a Means of Ethnic Cleansing: Religious, Cultural, and Ethical Responses to Rape Victims in the Former Yugoslavia”, Human Rights Quarterly 20 (1998), 348. Identical figures can be found in C. Carpenter, “Surfacing Children: Limitations of Genocidal Rape Discourse”, 465. 500 General abortion and delivery data are available in T. Mazowiecki, “Report on the Situation of Human Rights in the Territory of Former Yugoslavia”, Commission of Human Rights pursuant to Commission resolution 1992/S-1/1 of 14 August 1992, E/CN.4/1993/50 10 February 1993, at p. 65. As pointed out by Daniel-Wabretz, pregnant women were often segregated and released only after their seventh month of pregnancy, when it was no longer possible to obtain an abortion. See J. Daniel-Wrabetz, “Children Born of War Rape in Bosnia-Herzegovina and the Convention on the Rights of the Child” in C. Carpenter (editor), Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones (Kumarian Press, 2007), p. 23. 499

role in the upbringing of their infants.501 Due to the considerable number of war casualties, hospitals could not provide sufficient staff to care for the increasing number of war-rape orphans.502 In the most optimistic scenario, children were nursed until they could be institutionalised. However, even those children placed in orphanages offering high levels of care encountered difficulties as a result of their origins.503 Finally, in line with the government‘s opposition to inter-country adoptions, children born of war faced barriers to placement with families and only a few of them were adopted by Bosnian families.504 In light of these circumstances, it is distressing to notice how most of the human rights of these children could be imperilled. Infanticide is certainly one of the most grievous abuses that such children might suffer. Unquestionably, those infants who were killed by their mothers were deprived of their survival rights, as enshrined in Article 6(2) CRC.505 Furthermore, those children who were neglected in institutions and hospitals despite the numerous adoption requests from foreign couples might have been denied adequate standards of living, a

C. Carpenter, “Surfacing Children: Limitations of Genocidal Rape Discourse”, 466. The societal perception of children born of war is tremendously affected by the circumstances of their conception. As a consequence, these children are generally referred to as “children of hate” or “children of the enemy”. See P. Weitsman, “The Politics of Identity and Sexual Violence: A Review of Bosnia and Rwanda”, 567; J. Daniel-Wrabetz, “Children Born of War Rape in Bosnia-Herzegovina and the Convention on the Rights of the Child”, 21. 502 C. Carpenter, “Surfacing Children: Limitations of Genocidal Rape Discourse”, 466. 503 Ibid, 467. 504 As explained by a number of scholars, children born of war in Bosnia were not allowed to be placed for international adoption because they were considered as a powerful means of repopulating the country. Furthermore, the ban on adoption by non-nationals might also stem from the hope that relatives would care for and raise these children. See P. Weitsman, “The Politics of Identity and Sexual Violence: A Review of Bosnia and Rwanda”, 568; J. DanielWrabetz, “Children Born of War Rape in Bosnia-Herzegovina and the Convention on the Rights of the Child”, 25; C. Carpenter, “Surfacing Children: Limitations of Genocidal Rape Discourse”, 467. 505 Article 6 CRC establishes that: “1. States Parties recognise that every child has the inherent right to life; 2. States Parties shall ensure to the maximum extent possible the survival and development of the child.” 501

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violation of children‘s development rights under Article 27 CRC.506 As indicated by anecdotal evidence, children born of war in BiH experienced systematic discrimination on the basis of their ethnic and national origins.507 In accordance with Article 2(1) CRC, States Parties are required to take all appropriate measures to ensure that all children, particularly those who are the most disadvantaged, are protected against any form of discrimination based on the status, activities, expressed opinions, or beliefs of their parents, legal guardians, or family members. In some instances, however, the ability to tackle discrimination against children born of war demanded the denial of their origins.508 As a result, policies of secrecy were adopted in violation of the child‘s right to know about his/her biological origins under Article 7 CRC.509 Finally, in countries where nationality and citizenship rights are conferred C. Carpenter, “Surfacing Children: Limitations of Genocidal Rape Discourse”, 470. Article 27 CRC provides that: “1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development; 2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development; 3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing; 4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.” 507 C. Carpenter et al., “Protecting Children Born of sexual Violence and Exploitation in Conflict Zones: Existing Practice and Knowledge Gaps”, 4. 508 Z. Ismail, “Emerging from the Shadows: Finding a Place for Children Born of War”, 17. 509 The impact of war-related sexual violence on the child‟s right to an identity is only briefly mentioned at this stage of the analysis because it will be carefully considered in the following sections of the present paper. According to Article 7 CRC, “1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents; 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”

according to the principle of jus sanguinis, children born of war are at grave risk of statelessness.510 In fact, babies born in Croatia to Bosnian refugees were bestowed neither Croatian nor Bosnian citizenship until 1996.511 As a consequence of stateless, these children were prevented from accessing the Croatian educational system at school starting age.512 When a state denies citizenship to a child on the grounds of his/her ethnic origins and, therefore, illegitimately restricts the protection of rights to resources and education, it is deemed to act in violation of the CRC, in particular of Articles 7 and 28.513 THE IMPLICATIONS OF ABUSES ON THE CHILD‟S RIGHT TO AN IDENTITY While considering the rights of children born of war in the context of the CRC, greater emphasis must be placed on the implications of conflict and post-conflict settings on the formation and development of these children‘s identity.

506

According to the principle of jus sanguinis (right of blood), citizenship is acquired by having a parent/both parents who is/are citizen(s) of the nation. To the contrary, the principle of jus soli (right of the soil) establishes that citizenship is determined by the place of birth. 511 In September 1996, the Bosnian Law on Citizenship was amended. The reformed provision establishes that if one parent is citizen of BiH, the other one is citizen of a former republic of the Federal Republic of Yugoslavia and the child was born abroad, the latter should acquire BiH citizenship. 512 C. Carpenter, “Surfacing Children: Limitations of Genocidal Rape Discourse”, 467. 513 Article 28 establishes that: “1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates; 2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention; 3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.” 510

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The primary nature of the right to an identity emerges with particular regard to children as human beings in the process of developing their distinct personality comprehensively affected by their own understanding of themselves as well as the societal perception. In the present paper, I use the term ‗identity‘ to indicate a framework of components, which render a person visible and recognisable as a separate and distinct entity by the society as well as by the self. Defined as such, the right to an identity certainly embraces the right to a given name, which represents the first point of reference as a means of identifying the child and his or her family. Analogously, birth registration coincides with the State‘s first official acknowledgement of the child‘s existence and, consequently, constitutes a very effective method of establishing and safeguarding the child‘s identity. Additionally, an effective system of birth registration might be essential to ensure the protection of children‘s other rights: first of all, it facilitates the identification of children following abandonment or abduction; secondly, it reduces the danger of trafficking in or sale of children; lastly, it enables children to know their parentage, especially in cases of nonmarital births.514 For obvious reasons, universal registration provides an indispensable entry-point for the development of a legal system respectful of children‘s identity rights, as enshrined in Articles 7 and 8 CRC.515 The right of the child to know his/her parents embodies the ―original‖ component of Article 7 CRC. Unlike birth registration, name and nationality, the knowledge of one‘s parentage is not expressly recognised as a human right in

R. Hodgkin and P. Newell, Implementation Handbook for the Convention on the Rights of the Child (UNICEF, 2002), pp. 9899. 515 According to Article 8 CRC: “1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference; 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.” 514

any other international instrument.516 At the time of drafting, the right at stake was introduced as a means of countering national laws supporting ―secret‖ adoptions, whereby adopted children did not have the right to know the identity of their biological parents.517 Due to a progressive expansion of the legal definition of ‗parent‘, however, the relevance of this provision has recently emerged in relation to additional contexts. What was once a straightforward concept, barely deserving a definition, is now fraught with difficulties.518 A few decades ago, the term ‗parent‘ was confined to biological progenitors. In harmony with the paradigm of the ―sexual family‖519, this term was intended to define a heterosexual, married individual, partly responsible for the child‘s biological inheritance. In recent times, however, sociological as well as scientific developments have contributed to reshape the legal conception of ‗parenthood‘, which is no longer based on the ―dominant ideology of the family‖520 and endeavours to reflect the evolving realities of family life. As far as the child‘s right to know his/her parents is concerned, thus, the definition of ‗parents‘ comprises biological as well as social parents, namely the child‘s de facto care-givers. The inclusion of geneticallyunrelated individuals stems from the common assumption that parenthood consists in a doing rather than a being and, therefore, those who are actually the care-givers ought to be classified as parents. Accordingly, the category of social parents includes adoptive and foster parents, those raising children Both the right to a name and registration after birth, as well as the right to acquire a nationality have been expressly recognised by Article 7 CRC in conjunction with other international human rights instruments, including the Declaration of the Rights of the Child 1959 and the International Covenant on Civil and Political Rights. 517 Hodgkin, R. and P. Newell, Implementation Handbook for the Convention on the Rights of the Child, 105. 518 See M. Freeman and A. Margaria, “Who and What is a Mother? Maternity, Responsibility and Liberty”, forthcoming in Theoretical Inquiries in Law 13(1) (2012). 519 For a detailed account of this concept, see M. Fineman, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (New York, Routledge, 1995). 520 See C. McGlynn, Families and the European Union (Cambridge University Press, 2006), p. 81. 516

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conceived through medically assisted reproductive techniques, as well as members of the extended biological family who cared for the child for considerable periods during infancy and childhood.521 Unlike the CRC, Article 8 of the ECHR does not explicitly provide for a right to know one‘s origins.522 However, the meaning of this provision has been substantially developed through the jurisprudence of the Strasbourg Court (ECtHR) to protect a right to personal identity.523 In the case of Odièvre v. France, the ECtHR held that: ―Matters of relevance to personal development include details of a person's identity as a human being and the vital interest protected by the Convention in obtaining information necessary to discover the truth concerning important aspects of one's personal identity, such as the identity of one's parents. Birth, and in particular the circumstances in which a child is born, forms part of a child's, and subsequently the adult's, private life guaranteed by Article 8 of the Convention.‖524 Although the afore-mentioned judgement was delivered to address the alleged incompatibility of the French regime of anonymous birth with the protection of the right to respect for private and family life (Article 8 ECHR), the opinion of the The important role played by members of the extended biological family, such as siblings and grandparents, in the formation of the child‟s identity is duly emphasised by R. Hodgkin and P. Newell, Implementation Handbook for the Convention on the Rights of the Child, 114. 522 Article 8 ECHR provides that: “1. Everyone has the right to respect for his private and family life, his home and his correspondence; 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 523 J. Marshall, “A Right to Personal Autonomy at the European Court of Human Rights”, European Human Rights Law Review (2008) (3), p. 337. For an historical overview of the relevant case law of the ECtHR, see R. Blauwhoff, “Tracing Down the Historical Development of the Legal Concept of the Right to Know One‟s Origins. Has „to know or not to know‟ ever been the legal question?”, Utrecht Law Review 4(2) (2008), 99-116. 524 Odièvre v. France, Decision of 13 February 2003, ECHR 2003-III, paragraph 29. 521

Court might be recalled when considering the right of children born of war to know about their ancestral background. During the conflict in the former Yugoslavia, birth registration of children born as a result of sexual violence was not consistently secured. In some instances, the paternal identity was unknown (the woman might have been raped by several men); more often, mothers felt scared or ashamed to reveal the circumstances of conception or refused to identify the father so as not to be confronted with their painful past. In these cases, abandoned babies were registered as ―NN‖ – no name.525 As a result, the ability of children born of war to develop a sense of their own identity was consistently frustrated by the unavailability of records concerning their birth parents. Assuming that popular culture absorbed the Serb construction of identity as paternally-determined, the failure to ensure universal registration was justified as an essential means of protecting these children from discrimination on the basis of their origins. However, this explanation might be criticised for a variety of reasons. First of all, it wrongly presupposes a hierarchical relationship between the principle of non-discrimination and the right to know one‘s origins. Besides, the anti-discriminatory effects pursued by non-registration are merely short-term: the denial of origins does not translate into a definitive end to the stigma placed on these children by their birth communities but rather postpones and further problematises the discovery of truth.526 As reported by Daniel-Wrabetz, state orphanages and institutions were left completely unaware of the family history of these children.527 Although it is J. Daniel-Wrabetz, “Children Born of War Rape in BosniaHerzegovina and the Convention on the Rights of the Child”, 32. 526 As pointed out by Toomey, once a child reaches adolescence, if he/she has no information about the father, he/she will start asking questions about his/her background and there is a high possibility that he/she will discover the truth. Similar discoveries might have serious repercussions on the psychological well-being of children. See C. Toomey, “A Cradle of Inhumanity”, Times Online, 9 November 2003. 527 J. Daniel-Wrabetz, “Children Born of War Rape in BosniaHerzegovina and the Convention on the Rights of the Child”, 26. 525

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imaginable that some of the institutionalised children were born as a result of war-related rape, the authorities responsible for the placement of children without parental care proscribed the disclosure of confidential information, including information concerning the child‘s origins, to care-workers. However, the confidentiality rule, originally envisaged to protect these children, might reveal itself inappropriate if social assistance and counselling facilities are not promptly offered.528 In conclusion, the failure to register all children and the consequential unavailability of birth records creates potential barriers to the protection of the identity rights of children in conflict and post-conflict scenarios. With regard to the peculiar situation of children born of war in the former Yugoslavia, is the denial of information concerning one‘s origins in violation of Article 7 CRC or Article 8 ECHR? Despite its prima facie obviousness, this question might lead to partially indefinite answers stemming from a more sophisticated analysis of the legal framework in place. THE RIGHT TO „GENETIC TRUTH‟ versus THE BEST INTERESTS OF THE CHILD/ THE MOTHER‟S CONFIDENTIALITY RIGHTS The particular experience of children born of war perfectly exemplifies the intricate complexity charactering the broader issue of whether an individual, pre-eminently a child, has a right to know about his/her origins. The first step in solving this dilemma consists in acknowledging the existence of a series of tensions between the human rights of all parties involved.529 These conflicts are principally ascribable to the conceptualisation of the rights at stake as qualified. In relation to Article 7 CRC, the expression ―as far as possible‖ clearly paves the way for potential restrictions Ibid, 27. See S. Besson, “Enforcing the Child‟s Right to Know her Origins: Contrasting Approaches Under the Convention on the Rights of the Child and the European Convention on Human Rights”, International Journal of Law, Policy and the Family 21(2) (2007), p. 138. 528 529

upon the child‘s right to know his/her origins to ensure the protection of other fundamental values. Similarly, the absoluteness of the right to know one‘s origins is expressly denied by the text of the ECHR. Article 8 ECHR constructs the right to respect for private and family life as capable of restrictions when it clashes with other rights and freedoms.530 The impact of the subjective qualification introduced by these provisions varies according to the particular circumstances of each case. Indeed, it is important to distinguish between different scenarios. Firstly, the protection of the child‘s right to know might be subject to limitations due to the impossibility of identifying his/her parent(s). Similar situations might certainly occur within the context of children born of war: for instance, the mother does not know who the father is, since she was a victim of multiple rapes; or, the war-baby is not registered upon birth and he/she is subsequently abandoned. In both cases, the protection of the child‘s right to know is jeopardised as a result of an objective unavailability of data, rather than to guarantee the protection of other competing rights. The State‘s margin of intervention is quite limited: legislation must ensure that these children are not discriminated against, as required by Article 2 CRC.531 Secondly, the decision of the mother not to identify the father might have concrete repercussions on the protection of the child‘s right to know. The mother‘s reluctance might arise from a basic fear of revealing the circumstances of conception, especially in cases of incest, rape or adultery. Although mothers could, potentially, be legally required to identify the father, it would be problematic to

See Article 8(2) ECHR. Article 2 CRC provides that: “1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status; 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.” 530 531

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enforce this obligation primarily because of the inevitable clash between the child‘s right to know and the mother‘s right to confidentiality.532 But, does a raped woman have the right not to be confronted with her painful past or to be protected from social condemnation?533 Considering this specific case from an ECHR perspective, the ambit of protection of Article 8 includes the right to respect for private and family life of a variety of subjects that, as illustrated by the case of children born of war, may pursue conflicting fundamental interests. Besson emphasises the central role played by Article 8(2) in the reconciliation of competing rights and interests.534 The ECHR provision clearly identifies the principle of legality, the existence of rights and freedoms of others and the principle of proportionality as the adjudication guidelines that national authorities are expected to refer to when implementing Article 8.535 Therefore, in cases pertaining to the right to know one‘s origins, a concrete balancing of competing rights appears to be the most appropriate method of resolving the conflicts which unavoidably exist.536 In fact, if we balance the rights involved, we acknowledge the conflicting rights as equally fundamental and, therefore, we envisage a solution that secures an adequate proportion between them. Nonetheless, a similar balancing exercise might be held to be inconsistent with the pre-eminence attached to the

R. Hodgkin and P. Newell, Implementation Handbook for the Convention on the Rights of the Child, 106. 533 A similar question has been raised by J. Daniel-Wrabetz, “Children Born of War Rape in Bosnia-Herzegovina and the Convention on the Rights of the Child”, 33. 534 Besson, “Enforcing the Child‟s Right to Know her Origins: Contrasting Approaches Under the Convention on the Rights of the Child and the European Convention on Human Rights”, 138. 535 It must be taken into consideration that divergences among national concretisations of the right to know one‟s origins are dependent on the exercise of the margin of appreciation, traditionally granted to the contracting parties on issues of particular delicateness. However, the recent jurisprudence of the ECtHR, in an attempt to review its decision in Odièvre v. France, has placed the conditions for the recognition of a more limited margin on appreciation in matters regarding the right to know one‟s origins. See Jäggi v. Switzerland, Decision of 13 July 2006, paragraph 37. 536 Besson, “Enforcing the Child‟s Right to Know her Origins: Contrasting Approaches Under the Convention on the Rights of the Child and the European Convention on Human Rights”, 137. 532

child‘s interests by the CRC.537 In Besson‘s view, the holistic nature of the CRC would legitimise the interpretation of Articles 7 and 8 as establishing an hierarchical relationship between the interests of the child and those of the parents.538 However, the tension between these two international treaties can be resolved by promoting the protection of what Ronen calls a ―child-constructed identity‖, as opposed to a ―majority identity‖.539 The re-conceptualisation of identity, as suggested by Ronen, assumes that the development of one‘s identity does not occur in an empty space, but is triggered by dialogue and contact with other human beings, essentially those persons who are significant to the subject whose identity is evolving.540 In practical terms, the balancing approach can be realised through the creation of an office to receive and address the requests for access to personal origins by children born of war.541 The main responsibility of this body would be to contact the mother and discover whether the disclosure of the required information is still opposed, and on what basis. The final, and most important, duty would be to reach a decision by striking a concrete balance between the opposing set of rights and interests. Thirdly, there might be situations where the disclosure of information concerning one‘s parentage is deemed to be contrary to the best interests of the child. However, it must be noted that Article 7 CRC does not refer to the principle of the best interests of the child, although this was suggested by some delegates throughout Ibid, 152. Ibid, 149. 539 See Y. Ronen, “Redefining the Child‟s Right to Identity”, International Journal of Law, Policy and the Family 18(2) (2004), p. 151. The employment of Ronen‟s definition in order to overcome the tension between the two sets of international provisions has been previously advocated by M. Freeman and myself in “Who and What is a Mother? Maternity, Responsibility and Liberty”. 540 Y. Ronen, “Redefining the Child‟s Right to Identity”, 149. See also J. Marshall, “A right to personal autonomy at the European Court of Human Rights”, 354. 541 A similar solution is proposed by Thévoz within the context of medically assisted reproduction. See J. M. Thévoz, “The Rights of Children to Information Following Assisted Conception”, in D. Evans, Conceiving the Embryo: Ethics, Law and Practice of Assisted Reproduction (The Hague: Martinus Nijhoff, 1996), p. 195. 537 538

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the drafting phase.542 A literal interpretation of the expression ―as far as possible‖ suggests that children are entitled to know about their origins, even if this is considered to contravene their best interests. Yet, a holistic approach to the Convention conveys that the disclosure of information related to a child‘s background could be proscribed if that child would be harmed as a result of the discovery.543 This understanding is bolstered by the fact that the words ―as far as possible‖ also apply to the right of the child to be cared for by his or her parents and, in that particular context, adequate consideration of the child‘s best interests is doubtless required.544 Is it more harmful to the child‘s best interests to obtain distressing information or to be denied access to personal records on the basis of the potential harm that could arise from the disclosure? Article 12 CRC implicitly infers that the best interests of the child is not a static concept; it rather changes according to the age and the degree of maturity attained by the child considered.545 Thus, the determination of what is or is not in the best interests of the child ought to be made at different times in a child‘s life. Accordingly, the child‘s right to know his/her parentage could be refused in the name of his/her best interests only in the most extreme circumstances and the chance for this decision to be reconsidered at a later stage of his/her life should be offered.546

R. Hodgkin and P. Newell, Implementation Handbook for the Convention on the Rights of the Child, 107. 543 Ibid. 544 Ibid. 545 Article 12 CRC provides that: “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child; 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” 546 This is in line with the interpretation of Article 7 CRC, as suggested by UNICEF. See R. Hodgkin and P. Newell, Implementation Handbook for the Convention on the Rights of the Child, 107.

CONCLUDING REMARKS Whether all individuals, particularly children, should be able to discover the truth concerning their origins, including biological parentage and conditions of birth, is one of the most complicated of questions to have emerged in this era when we started to take children‘s rights seriously.547 In recent times, however, two strands of argument have been presented and widely accepted as justifications for protecting the right to know one‘s origins. First of all, hereditary diseases as well as incestuous relationships can be prevented if information concerning one‘s family history is available. Secondly, cogently argued studies have determined the dramatic psychological implications of parental secrecy and anonymity on the developmental trajectory of children who might feel cut off from an essential part of themselves.548 Accordingly, it might be argued that parents, both biological and social, hold ―procreational responsibility‖ to tell their children about their origins.549 However, there exist extreme situations where supporting the afore-mentioned argument might result problematic in various respects – ethical, legal or procedural.550 Children born of war are evidently at the core of one of these problematic cases. In post-conflict reconstruction, governments can play a crucial role in constructing and reshaping particular views about identity.551 In practice, however, the plight of the children born of wartime rape is generally addressed with silence or eschewal by transitional

542

On taking children‟s rights seriously, see M. Freeman, “Why it Remains Important To Take Children‟s Rights Seriously”, International Journal of Children’s Rights 15(1) (2007), p. 5. 548 See, for instance, P. Toynbee, Lost Children (London: Hutchinson, 1985); G. Delaisi de Parseval, “Reflexions d‟une psychanalyste sur la question de l‟anonymat du donneur de sperme dans l‟insémination artificielle (IAD)”, Cahiers médico-sociaux, 37(2) (1993), p. 176; M. Ryburn, “Adopted Children's Identity and Information Needs”, Children and Society, 9(3) (1995), p. 41. 549 R. Blauwhoff, “Tracing down the historical development of the legal concept of the right to know one‟s origins. Has „to know or not to know‟ ever been the legal question?”, 103. 550 Ibid. 551 P. Weitsman, “The Politics of Identity and Sexual Violence: A Review of Bosnia and Rwanda”, 567. 547

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governments.552 In communities where the issue of war rape is still taboo, their existence is barely acknowledged. While society connects children born of war to their rapist fathers, governments have the opportunity to reverse the perception of the identities of these children through the implementation of policies of sexual violence as well as strategies for dealing with the fate of warbabies in war‘s aftermath.553 A valid policy option would consist in expanding the status of ‗civil war victim‘ both to rape survivors and their children.554 Apart from ensuring them limited financial support, this would represent an official recognition of what happened during the conflict.555

S. Harris Rimmer, “„Orphans‟ or Veterans? Justice for Children Born of War in East-Timor”, Texas International Law Journal 42 (2007), p. 332. 553 Ibid, 568. 554 A similar solution is suggested by Harris Rimmer, although in relation to rape victims and children born of war in East Timor. 555 C. Toomey, “A Cradle of Inhumanity”. 552

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BIBLIOGRAPHY Books and articles:  Besson, S., ―Enforcing the Child‘s Right to Know her Origins: Contrasting Approaches Under the Convention on the Rights of the Child and the European Convention on Human Rights‖, International Journal of Law, Policy and the Family 21(2) (2007), pp. 137-159.  Blauwhoff, R., ―Tracing Down the Historical Development of the Legal Concept of the Right to Know One‘s Origins. Has ―to Know or Not to Know‖ Ever Been the Legal Question?‖, Utrecht Law Review 4(2) (2008), pp. 99-116.  Boon, K., ―Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy, and Consent‖, Columbia Human Rights Law Review 32 (2000-2001), pp. 625-675.  Carpenter, C. et al., ―Protecting Children Born of Sexual Violence and Exploitation in Conflict Zones: Existing Practice and Knowledge Gaps‖, University of Pittsburgh: Graduate School of Public and International Affairs and the Ford Institute of Human Security (2005).  Carpenter, C., ―Gender, Ethnicity and Children‘s Human Rights‖ in C. Carpenter, Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones (Kumarian Press, 2007), pp. 1-20.  Carpenter, C., ―Surfacing Children: Limitations of Genocidal Rape Discourse‖, Human Rights Quarterly 22 (2000), pp. 428-477.  Daniel-Wrabetz, J., ―Children Born of War Rape in Bosnia-Herzegovina and the Convention on the Rights of the Child‖ in C. Carpenter, Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zones (Kumarian Press, 2007), pp. 21-39.  Delaisi de Parseval, G., ―Reflexions d‘une psychanalyste sur la question de l‘anonymat du donneur de sperme dans l‘insémination artificielle (IAD)‖, Cahiers médico-sociaux, 37(2) (1993), pp. 176.  Fineman, M., The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (New York, Routledge, 1995).  Freeman, M. and Margaria, A., ―Who and What is a Mother? Maternity, Responsibility and Liberty‖, forthcoming in Theoretical Inquiries in Law 13(1) (2012).  Freeman, M., ―Why it Remains Important To Take Children‘s Rights Seriously‖, International Journal of Children‟s Rights 15(1) (2007), p. 5.  Goldstein, A., ―Recognizing Forced Impregnation as a War Crime under International Law: A Special Report of the International Program‖, New York: Centre for Reproductive Law and Policy (1993).  Green, J. et al., ―Affecting the Rules for the Prosecution of Rape and Other GenderBased Violence before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique‖, Hastings Women‟s Law Journal 5(2) (1994), pp. 171-242.  Harris Rimmer, S., ―‗Orphans‘ or Veterans? Justice for Children Born of War in EastTimor‖, Texas International Law Journal 42 (2007), pp. 323-344.  Hodgkin, R. and Newell, P., Implementation Handbook for the Convention on the Rights of the Child (UNICEF, 2002).  Ismail, Z., ―Emerging from the Shadows: Finding a Place for Children Born of War‖, unpublished MA thesis, European University Centre for Peace Studies (Austria) (2008) available online at http://epu.ac.at/fileadmin/downloads/research/Ismail.pdf, accessed on 1 July 2011.

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           

MacKinnon, C., Are Women Human? And Other International Dialogues (Harvard University Press, 2006). Marshall, J., ―A Right to Personal Autonomy at the European Court of Human Rights‖, European Human Rights Law Review (2008) (3), pp. 337-356. Mazowiecki, T., ―Report on the Situation of Human Rights in the Territory of Former Yugoslavia‖, Commission of Human Rights pursuant to Commission resolution 1992/S-1/1 of 14 August 1992, E/CN.4/1993/50 10 February 1993. McGlynn, C., Families and the European Union (Cambridge University Press, 2006). Ronen, Y., ―Redefining the Child‘s Right to Identity‖, International Journal of Law, Policy and the Family 18(2) (2004), pp. 147-177. Ryburn, M., ―Adopted Children's Identity and Information Needs‖, Children and Society, 9(3) (1995), pp. 41-64. Salzman, T., ―Rape Camps as a Means of Ethnic Cleansing: Religious, Cultural, and Ethical Responses to Rape Victims in the Former Yugoslavia‖, Human Rights Quarterly 20 (1998), pp. 348-378. Thévoz, J. M., ―The Rights of Children to Information Following Assisted Conception‖, in D. Evans, Conceiving the Embryo: Ethics, Law and Practice of Assisted Reproduction (The Hague: Martinus Nijhoff, 1996), p. 195. Toomey, C., ―A Cradle of Inhumanity‖, Times Online, 9 November 2003. Toynbee, P., Lost Children (London: Hutchinson, 1985). Watson, A., ―Children Born of Wartime Rape: Rights and Representations‖, International Feminist Journal of Politics 9(1) (2007), pp. 20-34. Weitsman, P., ―The Politics of Identity and Sexual Violence: A Review of Bosnia and Rwanda‖, Human Rights Quarterly 30(3) (2008), pp. 561-578.

International Treaties:  European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 221; entered into force 3 September 1953.  Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/10, (1998): entered into force 1 July 2002.  UN Convention on the Rights of the Child, GA Res. 44/25, 44 UN GAOR, Supp. (No. 49), at 167, UN Doc. A/44/49, (1989), reprinted in 28 ILM 1448 (1989); entered into force 2 September 1990. Case law:  Jäggi v. Switzerland, Application n. 58757/2000, Decision of 13 July 2006.  Odièvre v. France, Application n. 42326/1998, Decision of 13 February 2003.  Prosecutor v. Kunarac et al, ICTY Case No. IT-96-23-T, Trial Judgment, 22 February 2001.  Prosecutor v. Musema, ICTR Case No. 96-13-A, Trial Judgement, 27 January 2000.

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PROVISION OF A CHILD‟S RIGHT TO HEALTHCARE IN THE TRANSITIONAL JUSTICE CONTEXT OF BOSNIA AND HERZEGOVINA By Leila Mignonne Stehlik-Barry* ABSTRACT This article focuses on the provision of healthcare for children in Bosnia and Herzegovina in the context of the ongoing transitional justice process. First, I argue for the existence of a universal human right to healthcare for children, before turning to transitional justice in Bosnia and Herzegovina and placing the right to healthcare in this societal context. By outlining the existing legislation related to children‘s healthcare and examining its shortcomings, I hope to illustrate how impediments to healthcare for Bosnian children affect the country‘s ability to progress towards the goals of transitional justice, healing being among them. Moreover, I seek to highlight the connections linking a functioning government, children‘s healthcare, the success of transitional justice and Bosnia and Herzegovina‘s future. By underscoring the importance of governmental assurance of children‘s access to the human right to healthcare at a time when Bosnians are coming to terms with a history of rights abuse and war, I wish to demonstrate that provision of this right will ensure that Bosnia and Herzegovina, as a whole, has a healthier future that is focussed on human rights for all. * Leila Mignonne Stehlik-Barry is an alumna of the International Summer School, Sarajevo, 2010: "Human Rights and Transitional Justice," which brought her to the Balkans for the first time and inspired this work. Her second stay in the region was with Search for Common Ground- Centre for Common Ground, in Kosovo and Macedonia in 2011, where she worked with the international peace-building organisation on facilitating young leaders' ability to resolve conflict in their home communities. She is currently a member of the Central and Eastern European team at the National Democratic Institute for International Affairs (NDI) in Washington, DC. Leila is a 2011 graduate of the Master of Arts in German and European Studies programme at Georgetown University's Edmund A. Walsh School of Foreign Service where she focussed on human rights, peace-building, transitional justice, Roma rights, and rule of law, earning certifications in Refugees and Humanitarian Emergencies and East European, Russian, and Eurasian Studies. A native of Brookfield, Illinois, USA, Leila holds a Bachelor of Arts in Political Science, Legal Studies, and Slavic Studies from Northwestern University (2009). In addition to English, she speaks Czech, French, and Spanish. You can reach Leila at: [email protected]. Page 173


INTRODUCTION

A CHILD’S RIGHT TO HEALTHCARE

This essay explores governmental provision of a child‘s human right to healthcare in the transitional justice context of modern Bosnia and Herzegovina (BiH or Bosnia). Responsible for administering a country coming to terms with a past of human rights abuse and war, authorities in Bosnia must (re)establish and secure access to all human rights for all its citizens if this transformative process is to be successful. The meaning and fulfilment of the right to healthcare thus acquires a particular connotation in the post-war framework. I ground my claim that children have a right to healthcare in international human rights standards, and look to how Bosnia and Herzegovina‘s transitional justice process ties to children‘s health. Conscious of this context, I examine the current state of Bosnia and Herzegovina‘s healthcare system and its deficiencies in providing children with equal access to care. By placing the current system, with its shortcomings, in this broader societal context, I wish to illustrate the linkages between a functioning society, transitional justice, and children‘s right to healthcare. Moreover, I want to stress the importance of the right to health for children in Bosnia and Herzegovina today, sixteen years after the end of the war but at a time when the events of that period continue to affect the daily lives of Bosnians, including children born after 1995. Ensuring access to this right is a way for the government to assert legitimacy and unify Bosnians while improving quality of life for citizens of Bosnia and Herzegovina. By helping Bosnian children achieve better health while the transitional justice process continues to evoke wartime events, officials can help society as a whole move positively towards a just and peaceable future.

Over time, an international consensus on the right to healthcare has emerged. While it is not accepted as a civil right by all countries, many scholars, policymakers, and institutional officials believe that health is a fundamental human right. The existence of various international documents enumerating this right illustrates its widespread support. As stated in the Universal Declaration of Human Rights, "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including . . . medical care . . . and the right to security in the event of . . . sickness, disability....‖556 Article 12, Section 1 of the International Covenant on Economic, Social and Cultural Rights reads, ―The States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.‖557 The constitution of the World Health Organisation enumerates the right to the "highest attainable standard of health,‖ defining it as ―a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.‖558 Bosnia and Herzegovina is a signatory of all three documents, as well as the Convention on the Rights of the Child, the relevant portion of which, Article 24, reads: “1. States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such healthcare services. 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures... Quoted in Eleanor D. Kinney, “The International Human Right to Health: What does This Mean for Our Nation and World?” Indiana Law Review 34 (2001), 1459. 557 Ibid. 558 Ibid. 556

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(b) To ensure the provision of necessary medical assistance and healthcare to all children with emphasis on the development of primary healthcare.”559 The above documents are indicators that humans, those under the age of 18 (children) specifically, have a right to healthcare. Provision of this right takes on a special significance in a country that not only has a history of conflict, but is attempting to face its consequences. I turn to Bosnia and Herzegovina‘s transitional justice process, the backdrop against which healthcare and all other facets of life, exists before discussing the importance of children‘s healthcare to the goals of this justice. THE RIGHT TO CHILDREN‟S HEALTHCARE IN THE TRANSITIONAL JUSTICE CONTEXT The right to healthcare is particularly important in societies pursuing transitional justice in an attempt to move from a past plagued by rights violations to a future in which the rights of all are respected. The role of children in these societies holds special significance for their future. Transitional justice is a process by which societies with a history of human rights abuse undertake various approaches that use law or legal concepts to achieve a defined set of goals. The aims of transitional justice may differ by society, but often emphasise (re)establishment of the rule of law, institutional reform, accountability for perpetrators, justice and recompense for victims of violence and crimes, societal reconciliation and healing, establishment of a collective memory based on truthtelling, and lasting peace.560 In Bosnia and Herzegovina, the process has largely centred around retributive, or criminal, justice, characterised by trials of alleged perpetrators of rights abuses at the

International Criminal Tribunal for the Former Yugoslavia.561 Reparations to victims have largely concerned the restitution of property rights through the Commission for Real Property Claims of Displaced Persons and Refugees and national authorities.562 Truth-seeking and -telling is a smaller part of BiH‘s transitional justice process, and its most prominent example is the Srebrenica Commission.563 The focus on retributive justice means that the gathering of evidence and mounting of cases against alleged violators of human rights law has caused the events of the war to be replayed, categorised, and raised in court years after their occurrence. The same is true, to a lesser extent, for people who lost property and Srebrenica survivors, as they tell their stories in the hopes of attaining a measure of justice. Wartime events are thus constantly recalled, through trials of alleged perpetrators, national and international news coverage of the justice process and the war, and by physical reminders of the violence. Therefore, while the Bosnians who were children during the war are almost all adults (over age 18) now, the country‘s children are affected by the war. The regular evocation of wartime experiences creates a climate in which children continuously hear war stories and versions of the past that they perceive to be truths. Children absorbing the rhetoric surrounding them, whatever perspective it reflects, will grow up shaped by it. Furthermore, the alteration of population distributions by the war has led to separation between the country‘s three main ethnic groups.564 These cleavages affect whom a child goes to school with, lives near, and plays with, all of which contribute to the formulation of that child‘s identity. Ethnic divisions prevent Marta Valiñas and Kris Vanspauwen, “Truth-Seeking after Violent Conflict: Experiences from South Africa and Bosnia and Herzegovina”, Contemporary Justice Review 12 (2009), 275. 562 Ibid. p. 279. 563 Ibid. p. 281. 564Trudy T.M. Mooren, Kaz de Jong, Rolf J. Kleber and Jadranka Ruvic, “The Efficacy of a Mental Health Programme in Bosnia and Herzegovina: Impact on Coping and General Health”, Journal of Clinical Psychology 59 (2003), 58. 561

Article 24 of the 1989 United Nations Convention on the Rights of the Child (CRC), GA Res. 44/25, 44 UN GAOR, Supp. (No. 49), at 167, UN Doc. A/44/49, (1989), entered into force 2 September 1990. 560R.G. Teigel, quoted in Patricia Lundy and Mark McGovern, “Whose Justice? Rethinking Transitional Justice from the Bottom Up”, Journal of Law and Society 35 (2008), 267. 559

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children from facing challenges to their conceptions of the past if and until they come into contact with differing narratives. Today‘s children will set the tone for future debate and dialogue on Bosnia and Herzegovina‘s past. As they age, children become agents of tomorrow‘s actions. Consequently, the identities they construct now, in the era of transitional justice, will affect the path the country takes after that process concludes. Children‘s health is of particular importance in a society grappling with a legacy of rights abuse. It is important to remember that Bosnia‘s children – whatever their ethnicity – are the children of war survivors. Bosnian children must cope with the effects that war has had on their older family members, who may be physically disabled or suffer from psychological illnesses stemming from wartime experiences. In the provision of health services, the continual, societal focus on human rights violations may frame healthcare so that the system is designed for the needs of war survivors, rather than their progeny. Healthcare should emphasise the best treatment of all citizens at all times. In societies, which have suffered from rights abuses and are now dealing with the past through ongoing transitional justice mechanisms, people face certain health needs stemming from the continuous presence of the conflict period in their lives. This presence means that the health of children born after the end of the conflict is affected by it. Doctors, nurses, and therapists working in Bosnia must acknowledge the needs of children who constantly deal with the consequences that war has had on their parents, older family members, neighbours, and themselves. These practitioners must acquire or develop the requisite skills to treat these children. How does the government of Bosnia and Herzegovina ensure that this right to healthcare is fulfilled for the children under its jurisdiction? An examination of the current legislation sheds light on the procedures in place, and an assessment of its faults shows that current laws fail to

ensure access to healthcare for all Bosnians. The consequences of this failure are then addressed in the current political context. THE CURRENT STATE OF CHILDREN‘S HEALTHCARE IN BOSNIA AND HERZEGOVINA Key to understanding the state of children‘s healthcare coverage in Bosnia and Herzegovina is knowledge of the country‘s government. The structure of Bosnia‘ power apparatus is characterised by legislative and administrative divisions, the current system having been created by or after the Dayton Peace Accords; in order to facilitate multi –ethnic and – religious government, power is fragmented and multi-layered. The state of Bosnia and Herzegovina is composed of two entities, the Federation of Bosnia and Herzegovina (FBiH) and the Republika Srpska (RS), to which the national constitution delegates most governmental powers. The Brčko District is another sub-national administrative unit in the country, which is self-governing but under international supervision.565 At the next level of administration, the Federation contains ten cantons whose population is comprised mainly of Bosniaks and Croatians, with Serbians a small minority; the RS, meanwhile, has a Serbian majority population566 and is divided into sixty-four municipalities.567 Financial matters are handled differently within each entity- the Federation‘s cantons have taxation and regulatory control over the entity‘s seventy-three municipalities whereas in the RS, an entity-level ministry regulates and serves as an interlocutor with its sixty-four municipalities.568 Healthcare and social services are the purview of cantons in the Federation and the entity in the Republika Srpska,569 with “The CIA World Factbook: Bosnia and Herzegovina”, https://www.cia.gov/library/publications/the-worldfactbook/geos/bk.html. 566 Charles Jokay, “Local Government in Bosnia and Herzegovina”, Stabilisation of Local Governments (Budapest: Open Society Institute/Local Government Initiative, 2001), p. 94. 567 Jokay, Charles. “Local Government in Bosnia and Herzegovina”, p.95. 568 Ibid. 569 Ibid. p. 97. 565

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the Brčko District mandating its own healthcare laws. This is demonstrated by the scope of the existing legislation on healthcare, insurance and general social services. Out of an estimated population of 3.5 million Bosnians, approximately 867,632 are children (composing onethird of the Republika Srpska570 and twothirds of the FBiH571); 59% of this population does not have health insurance.572 This represents a substantial obstacle to their ability to access healthcare. Relevant legislation includes laws passed at all levels of government that relate to healthcare and health insurance, since the latter makes possible the former in many instances. Domestic laws related to a child‘s right to healthcare include laws at multiple levels of government. The national constitution does not explicitly guarantee a right to healthcare, instead delegating legislation on the issue to the entities and other sub-national units.573 At the national level, steps have been taken to meet the country's obligations that arise from signing the UN Convention on the Rights of the Child and other international documents. With the aims of fulfilling both the UN Millennium Development Goals (BiH signed the United Nations Millennium Declaration in 2000) and the rights outlined in the CRC, and in order to improve the situation of children in the country, the national government of BiH instituted the Action Plan for Children of BiH for the Period 2002-2010.574 At the entity level, the Federation of Bosnia and Herzegovina575 and the Republika “The NGO complementary report to the state report on the situation of children in the Bosnia and Herzegovina”, (Bosnia and Herzegovina, 2004), p.49. http://www.crin.org/docs/resources/treaties/crc.39/BosniaHerze govina_ngo_report%5B2%5D.pdf. 571 Ibid. p. 50. 572 “The NGO complementary report to the state report on the situation of children in the Bosnia and Herzegovina”, (Bosnia and Herzegovina, 2004), p.45. 573 Živanović, Miroslav (ed.), Human Rights in Bosnia and Herzegovina 2008, p. 571. 574 Article 44 of the National Report, in “Child Rights References in the Universal Periodic Review: Bosnia & Herzegovina – 7th Session – 2010”. 575Rusmira Čamo (ed.), Analysis of the harmonisation of the legislation in BiH with the Convention on the Rights of the Child (Banja Luka: 570

Srpska576 have enacted legislation on healthcare and health insurance and the Brčko District has legislation regarding healthcare.577 The Law on Healthcare of the Federation of Bosnia and Herzegovina pertains to the principles, organisation, and implementation of healthcare in the territory, including health education in mainstream curriculum.578 Going hand in hand with the Law on Healthcare is the FBiH Law on Health Insurance, which lays out the terms by which citizens pay into the social assistance fund at the cantonal level. Employed persons and their family members fall into the category of those whose insurance is obligatory, whereas additional and voluntary health insurance recipients include children in other categories. These are children between 15 and 18 years of age who have not finished primary school or did not find employment after school and registered with the unemployment office; infants; children enrolled in regular primary or secondary schools or in studies at a university; and children with a permanent residence in BiH who are Bosnian nationals and who are not covered by an employed persons‘ insurance.579 Disabled and foster children who are covered under obligatory insurance, however, have a right to healthcare, as do children whose parents are not insured obligatorily.580 Under the Law on Health Insurance of FBiH, cantonal authorities on social and child protection have the obligation to pay the healthcare fund contributions of children who are not insured as family members of an insured person from birth to enrolment in elementary (primary) school. The cantonal educational authority is to provide healthcare for students enrolled in the mainstream educational system until they reach age 26 and students pursuing a teaching Institution of the BiH Ombudsmen for Human Rights, 2009), pp. 122- 123 Čamo (ed.), Analysis of the harmonisation, pp.123-124. Ibid. p. 124. 578 Ibid. p. 122. 579 Čamo (ed.), Analysis of the Harmonisation, p. 122. 580 Ibid. 576 577

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internship.581 Among persons exempt from payment into the healthcare fund are children at 15 years old and students up to 26 who are enrolled in the mainstream educational system.582 Taken as a whole, these laws theoretically translate to universal, cantonal-sponsored healthcare for persons defined as children under the law, regardless of their parents‘ insurance status. They also link education and healthcare, providing an incentive for children and young adults up to age 26 to enrol in school and continue their studies. In the Republika Srpska there exists a Law on Healthcare, defining ―healthcare‖ and the functioning of health services (which is similar to the corresponding law in FBiH).583 The RS Law on Health Insurance outlines the duality of obligatory and additional insurance, the rights of beneficiaries and the state in terms of insurance, and information on private health insurance. A child's right to health insurance and the role of the insured in covering minor family members is laid out, as it is in Federation law.584 The Law on Healthcare of Brčko District BiH defines, like both entity laws, the organisational and implementation schema for healthcare in the District. Healthcare is divided into primary, specialist-consultative, and hospital care, with the healthcare of children falling under the label of primary care. In this context, school-age children are evaluated on their abilities to learn and work, with the aims of improving their health, enhancing psycho-physiological abilities, and promoting adequate nutrition for infants and care for medical conditions, including developmental disorders.585 The RS, in its similarities to the Federation, establishes that a child has a right to healthcare and ties healthcare to parental insurance in some cases. As for the Brčko District, there is healthcare promotion but not necessarily established free care for children. Gaps exist through which Ibid. Ibid. p. 123. 583 Ibid. 584 Ibid. p. 124. 585Čamo (ed.), Analysis of the harmonisation, p.124. 581

children miss out on healthcare that, even though it is their right, may or may not be part of domestic legislation. DEFICIENCIES IN THE PROVISION OF HEALTHCARE FOR CHILDREN IN BOSNIA AND HERZEGOVINA Many NGOs studying the system have found that the existence of these laws is insufficient in ensuring that children in BiH have access to healthcare and health insurance. The current legislation regarding children's access to healthcare and health insurance is wrought with identifiable problems that have recognisable solutions. For example, a 2009 report from the Ombudsmen Institution of Bosnia and Herzegovina, compiled in association with Save the Children Norway, on ―Analysis of the Harmonisation of the Legislation in BiH with the Convention on the Rights of the Child,‖ acknowledges the complex and varying administrative procedures one must often undergo prior to obtaining health insurance for a child (such as producing certificates on school attendance or proof of parental health insurance), and declares that such requirements are contrary to the Convention‘s provisions ensuring healthcare for all children (persons under 18 years of age).586 As is explained by the Ombudsman, “In BiH one can still encounter a situation where the child‟s right to healthcare is tied with the healthcare of one of the parents, which excludes a great number of children from the healthcare system. This situation is also very much affected by deadlines based on laws on healthcare, whereby the parents themselves often lose the right to healthcare if they miss the deadlines.”587 Such restrictions make for an ambiguous and arbitrary system when it comes to the provision of healthcare and insurance for minors, which hampers or eliminates access to the right to access healthcare. This is tied to the wording and understanding of the laws in place.

582

586Ibid. 587

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p. 126. Čamo (ed.), Analysis of the harmonisation, .p.126.


Regulations on healthcare and health insurance for children whose parents are uninsured (found in the legislation of the entities, the Brčko District, and the cantons composing the FBiH, and mentioned in nationwide policymaking) are ―extensive, and their content is often imprecise and deficient,‖588 according to domestic NGOs. Thus, even if free healthcare is legally available to children, they and their families may not know how to obtain it, while administering officials in a position to decide eligibility for free healthcare can allow or deny children access to health services that are intended for their use. Parents, children, and governmental officials who are un- or under- educated regarding the exact meaning of relevant legislation, combined with complicated bureaucratic procedures, creates an environment in which the conditions are prime for a child‘s right to healthcare to be violated,589 despite the passage of legislation intending the opposite. A related problem that prevents children from fulfilling their human right to healthcare is the complex political system in Bosnia and Herzegovina. The United Nations Committee on the Rights of the Child spoke to this particular issue in their 2005 concluding observations on the state‘s initial report. The Committee found that ―the country‘s complex political structure and the lack of unified laws and policies make equitable access to healthcare [sic] services for all children increasingly difficult.‖590 Further reaction arose from within the BiH government itself. According to the Ombudsman‘s report, ―Separate systems of healthcare and insufficient coordination in the area of health by the Ministry of Civil Affairs BiH contribute to a great extent to the poor approach to the child healthcare in

BiH.‖591 As demonstrated by the legislation regarding healthcare and insurance, the policies vary greatly based upon the region one lives in, partially because the budget of the administrative regions does. Therefore, a child living in a wealthier area has a higher likelihood of receiving social assistance, such as government-sponsored healthcare, than a child who lives in a poorer one,592 which represents a threat to free, nationwide children‘s healthcare. The delegation of healthcare and insurance to the lower, localised levels of government means that there is no national, unified healthcare and insurance policy to equalise regional income differences. Finally, as the Roma population in BiH is largely without healthcare, Roma children are among those uninsured. The UN Committee on the Rights of the Child, in their observations on the state report, cites the statistic that 90% of ethnic Roma have no health insurance, ―which results in their de facto exclusion from access to healthcare.‖593 This is linked to the fact that many Roma children are not registered at birth due to the lack of identity documents for their parents (a cyclical problem) or discrimination by a registering official.594 According to the Ombudsman‘s report, pregnant Roma women, lacking health insurance, bring another woman‘s insurance card with them to the hospital because one needs to pay the entire cost or present proof of insurance in order to leave the hospital.595 Occurrences such as these create further confusion in the birth registration of Roma infants. Given that only an estimated 33% of Roma children attend primary school,596 laws that tie healthcare to school attendance do not reach many Čamo (ed.), Analysis of the Harmonisation, p. 126. “The NGO Complementary Report to the State Report on the Situation of Children in the Bosnia and Herzegovina”, (Bosnia and Herzegovina, 2004), p.45. 593 Article 47 of “Committee on the Rights of the Child-39th Session-Consideration of reports submitted by states parties under Article 44 of the Convention, Concluding Observations: Bosnia and Herzegovina”. CRC/C/15/Add.260 (21 September 2005). 594 Article 32, CRC/C/15/Add.260 (21 September 2005). 595 Čamo (ed.), Analysis of the Harmonisation, p. 126. 596 Article 57, CRC/C/15/Add.260 (21 September 2005). 591 592

“The NGO complementary report to the state report on the situation of children in the Bosnia and Herzegovina”, (Bosnia and Herzegovina, 2004), p.45. 589 Ibid. 590Article 47 of “Committee on the Rights of the Child-39th Session-Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Bosnia and Herzegovina”. CRC/C/15/Add.260 (21 September 2005) 588

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Roma. Overall, Roma children go uninsured, barred from accessing health services. THE IMPACT OF SHORTCOMINGS IN THE HEALTHCARE SYSTEM ON TRANSITIONAL JUSTICE IN BIH The impediments to healthcare noted above are detrimental to Bosnian society, especially in the transitional context. When children who need treatment for an illness cannot receive it, the child – and his or her family – suffers. Health practitioners appear to be helpless in changing the system in the face of political paralysis. At the time of this writing, Bosnian politicians have failed to form a central government more than 13 months after elections (in October 2010), and the Federation government took five months to coalesce. Such stalemate creates a climate in which it is likely that peopleand health- oriented individuals, feeling frustrated, will leave the healthcare field or decide not to enter the profession at all. Barriers to access may create resentment from parents, and children as they grow older, towards the officials presenting the obstacles. The lack of legislation expanding children‘s healthcare leads people to lose faith that their government exists for their benefit. When barriers to access disproportionately affect certain segments of the population, such as people living in poorer areas or minorities like Roma, these groups cannot trust the government to provide adequate treatment for their children. Deficiencies in the healthcare system translate to unequal treatment of Bosnians under the law, thereby exacerbating existing ethnic- and income- based tensions and divisions. As long as bureaucracy prevents children from accessing healthcare or divisions prevent politicians from passing laws to increase children‘s access to care, parents will neither expect much from, nor place much weight in, the ability of Bosnian authorities to improve their daily lives. By providing citizens with adequate and equal access to their fundamental right to healthcare, however, the government

administering the care can establish legitimacy. This is particularly important if the state-level, national government were to assume responsibility for healthcare and administer it well, thereby increasing its ability to unify Bosnians under a national identity. Under the extremely divided balance of power built into the country‘s governing structure, if some Bosnian politicians – often entitylevel power brokers – wish to prevent central control over the country, they can, making federal administration of children‘s healthcare unlikely. But even if administration of children‘s healthcare (or healthcare overall) is successful at the sub-national level, it would demonstrate that BiH is moving away from needing international oversight, such as the Office of the High Representative, of its internal administrative capacities. Additionally, success would increase Bosnians‘ belief in their government‘s abilities to run the country and help foster a Bosnian identity tied to trust in the government. CONCLUSION In a broader sense, establishing nationwide, equal access to healthcare allows children to fulfil their right to health at a time when many need it the most. In a country where people are grappling, often daily, with the long-term physical and psychological effects of human rights violations, trauma, displacement, and violent conflict, focussing on equal access to a safer, healthier, better life for all Bosnians is a way to move forward positively. Given the sensitive atmosphere surrounding the transitional justice process – especially establishing a cohesive narrative on the conflict - ensuring access to the human right to health for Bosnian children is part of a larger process by which all rights, of all Bosnians, are guaranteed. This is one of the goals of transitional justice. It is no small feat in a country examining its past and trying perpetrators of rights abuse, but it is a crucial one. Retributive justice is not enough for Bosnians- their humanity must be restored as well. For Bosnia and Herzegovina, ensuring that a

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generation of children grows up healthily will create a citizenry that has a sense of ownership in their country‘s future. These children will carry with them knowledge of a war that they did not live through, but which lives through them. How they apply this knowledge in shaping Bosnia and Herzegovina‘s path is to be determined, but, if the goals of transitional justice are met, the provision of all human rights for all Bosnians will be a reality and remain so in the future.

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BIBLIOGRAPHY  

 





1989 United Nations Convention on the Rights of the Child (CRC), GA Res. 44/25, 44 UN GAOR, Supp. (No. 49), at 167, UN Doc. A/44/49, (1989), entered into force 2 September 1990. ―Child Rights References in the Universal Periodic Review: Bosnia & Herzegovina – 7th Session – 2010‖, http://www.crin.org/docs/Bosnia%20&%20Herzegovina.pdf. ―Committee on the Rights of the Child- 39th session - Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Bosnia and Herzegovina‖. CRC/C/15/Add.260 (21 September 2005). ―Report on the status of human rights in Bosnia and Herzegovina (Analysis for the period January – December 2005)‖, Helsinki Committee for Human Rights in Bosnia and Herzegovina. http://www.bh-hchr.org/Reports/reportHR2005.htm. ―The CIA World Factbook: Bosnia and Herzegovina‖,

https://www.cia.gov/library/publications/the-worldfactbook/geos/bk.html.

―The NGO Complementary Report to the State Report on the Situation of Children in Bosnia and Herzegovina‖, (Bosnia and Herzegovina, 2004).

http://www.crin/org/docs/resources/treaties/crc.39/BosniaHerzegov ina_ngo_report%5B2%5D.pdf.       

Čamo, Rusmira (ed.), Analysis of the Harmonisation of the Legislation in BiH with the Convention on the Rights of the Child (Banja Luka: Institution of the BiH Ombudsmen for Human Rights, 2009. Kandeva, Emilia (ed.) Stabilisation of Local Governments (Budapest: Open Society Institute/Local Government Initiative, 2001). Kinney, Eleanor D. ―The International Human Right to Health: What does This Mean for Our Nation and World?‖ Indiana Law Review 34 (2001). Lundy, Patricia and McGovern, Mark, ―Whose Justice? Rethinking Transitional Justice from the Bottom Up‖, Journal of Law and Society 35 (2008). Mooren, Trudy T.M., de Jong, Kaz, Kleber, Rolf J. and Ruvic, Jadranka, ―The Efficacy of a Mental Health Programme in Bosnia and Herzegovina: Impact on Coping and General Health‖, Journal of Clinical Psychology 59 (2003). Valiñas, Marta and Vanspauwen, Kris, ―Truth-seeking after Violent Conflict: Experiences from South Africa and Bosnia and Herzegovina‖, Contemporary Justice Review 12 (2009). Ņivanović, Miroslav (ed.) Human Rights in Bosnia and Herzegovina 2008: Legal Provisions, Practice and International Human Rights Standards in the Bosnia and Herzegovina with Public Opinion Survey. (Sarajevo: Human Rights Centre, University of Sarajevo, 2009).

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PETTY CORRUPTION AS A DISCRIMINATING EXPERIENCE – THE CASE OF BOSNIA AND HERZEGOVINA By Ardian Adžanela* ABSTRACT

Corruption in Bosnia and Herzegovina still significantly affects the functionality of the state and the quality of the everyday life of its citizens. When it comes to the everyday life of ordinary citizens, it is the ―petty/everyday corruption‖ that affects it more directly and more frequently than the so called ―grand corruption‖, as petty corruption takes place in everyday interactions between citizens and the public service sector. The aim of this paper is to point out the discriminating practices that occur as a consequence of petty corruption. The recommendation in this paper is that both anticorruption and human rights advocates evoke international human rights instruments to force accountability on the part of the state or a state/public organ and so create disincentives for corruption. While this approach is not meant to replace traditional anti-corruption mechanisms, primarily the criminal law, but only supplement it. It can give cases prominence; may force a state to take preventive action, or may deter corrupt officials from misusing their powers.

*Ardian Adžanela holds an M.A. in State Management and Humanitarian Affairs (Governance/Political Science studies) from the University of Sarajevo, La Sapienza University of Rome, and the University of Belgrade, and a B.A. in Applied Ethics and Historical Studies from Griffith University, Brisbane, Australia. He is a member of the Executive Board of the Association Alumni of the Centre for Interdisciplinary Postgraduate Studies (ACIPS) of the University of Sarajevo. He is also a member of the Human Dignity and Humiliation Studies network. His primary interests lie in areas pertaining to the quality of interactions (social, institutional and interpersonal), anti-corruption in the widest sense (particularly sociological), and the concept of human dignity in transitional countries like Bosnia and Herzegovina. Page 183


INTRODUCTION Corruption is a global phenomenon. However, it is the scope in which corruption affects an average or non-privileged citizen in her/his everyday life that makes the difference for these people from state to state. It is precisely petty corruption that directly affects the everyday life of so many ordinary people in underdeveloped and/or transitional countries such as Bosnia and Herzegovina. Unlike grand corruption, which impacts a country by taking large sums of money away from the public purse, petty corruption directly impacts individuals, particularly the poor and vulnerable. It is often just as damaging to the poor, and it is more immediate and tangible than the bigger corruption cases which make breaking news and scandals.597 This everyday corruption occurs most frequently in interactions between ordinary citizens and public services providers, such as public health institutions, educational institutions and the like, and it is in the public sector service delivery where petty corruption restricts citizens‘ access to public services and causes inequality and indirect institutional discrimination.598 So far, little attention has been paid to the role public sector service delivery plays in enforcing or violating the rights and civil liberties of Bosnia and Herzegovina‘s citizens. Instead, much effort is concentrated on reforming the court system, in spite of the fact that the justice system in Bosnia and Herzegovina (BiH) comprises far more than the court system. It also consists of public sector service delivery, which exercises a huge influence on the lives and legal rights of U4, Anti-Corruption Resource Centre. http://www.u4.no/helpdesk/helpdesk/query.cfm?id=72. 16 July 2011. 598 Indirect institutionalised discrimination occurs when sanctioned actions unintentionally discriminate against a subordinate group. Institutional discrimination is built into the structure itself. Thus it is more covert and more tenacious. It can occur regardless of the desires or intentions of the people perpetuating it. Much institutional discrimination results from judgments made on secondary rather than primary characteristics. Race and sex may be consciously eliminated as concerns, but criteria such as educational background, employment history, supervisory experience, age, income, etc, which have been effected by group membership, can be effective substitutes. Freeman, J., Institutional Discrimination. http://www.uic.edu/orgs/cwluherstory/jofreeman/womensociety /institidiscrim.htm. 16 July 2011. 597

ordinary citizens.599 Furthermore, the issue of discrimination, including the indirect institutional discrimination that occurs as a consequence of petty corruption, inevitably touches on the connection between corruption and some fundamental human rights principles, namely the principles of equality and non-discrimination, and the potential of using human rights instruments as an anti-corruption mechanism. This is certainly a field that has not been tackled by anti-corruption and human rights advocates and institutions in Bosnia and Herzegovina so far. The pioneering work connecting corruption with human rights violations, including the principle of equality and non-discrimination that is most directly relevant to petty corruption, is contained in two comprehensive reports, ―Corruption and Human Rights: Making the Connection‖, and ―Integrating Human Rights in the Anti-Corruption Agenda‖, written by the International Council on Human Rights Policy and Transparency International.600 Because they are among the very few to address the connection between corruption and human rights. The views contained in these reports will be largely reflected in this paper, upholding the position that fighting corruption has a potential to improve human rights protection, and vice versa, the protection of human rights can serve as an anti-corruption mechanism. DEFINITION Corruption may be defined in philosophical, legal, criminological, sociological and cultural senses, to name a few. In regards to the ethical notion of corruption, there seems to be a universally agreed general definition in International Crisis Group, Rule of Law in Public Administration, Confusion and Discrimination in a PostCommunist Bureaucracy, 1999. http://www.crisisgroup.org/en/regions/europe/balkans/bosniaherzegovina/084-rule-of-law-in-public-administration-confusionand-discrimination-in-a-post-communist-bureaucracy.aspx. 16 July 2011. 600 International Council on Human Rights Policy and Transparency International. http://www.ichrp.org/files/reports/40/131_web.pdf, and http://www.ichrp.org/files/reports/58/131b_report.pdf. 16 July 2011. 599

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wider terms, whereby corruption is ―an impairment of integrity, virtue, or moral principle…‖ and more specifically, ―the act of doing something with intent to give some advantage inconsistent with official duty and the rights of others‖.601 Sociologically, corruption is any process in which at least two persons act to the detriment of public interest by means of unlawful transactions for the purpose of personal gain. By violating moral and legal norms, any such person is violating the foundations of democratic development and the rule of law. In the legal sense there is no single definition of corruption, but a whole range of criminal acts described as the ―criminal offence of corruption‖.602 In regards to its scale and nature, corruption is generally divided into grand corruption and petty corruption. Grand corruption refers to the corruption of more senior officials and significant amounts of money and involves two main activities: bribe payments and the embezzlement and misappropriation of state assets.603 Petty corruption, which is sometimes referred to as ―routine corruption‖, is the everyday corruption that takes place at the implementation end of politics, where public officials meet the public. It is the kind of corruption that people can experience in their frequent encounters with public administration and services like hospitals, schools, local licensing authorities, police, taxing authorities and so on.604 It is precisely this kind of corruption that occurs most frequently and it is the kind that this paper will focus on.

The word “corrupt” etymologically stems from mid 14 th century Old French “corropt”- “unhealthy, uncouth” (in reference to language), which in turn stems form Latin “corrumpere”-“to destroy; spoil”, composed of prefix “com” and “rumpere”-“to break”, Online Etymology Dictionary. http://www.etymonline.com/index.php?term=corrupt. 16 July 2011. Black‟s Law Dictionary, Eighth Edition, p. 371. 602 Pravni Leksikon, Leksikografski zavod Miroslav Krleža, pp. 623624. 603 Nicholls, C. QC and T. Daniel, Corruption and Misuse of Public Office, Oxford: Oxford University Press, 2006, pp. 2-3. http://www.u4.no/themes/pfm/Revenueissue/revenue1.cfm. 16 July 2011. 604 U4, Anti-Corruption Resource Centre: Revenue Administration and Corruption. http://www.u4.no/themes/pfm/Revenueissue/revenue1.cfm. 17 July 2011. 601

For the purpose of this paper, it is also necessary to stress that, in reality, the ―reward‖ for those that facilitate both grand and the petty corruption is not limited to payments, but very often involves a wide variety of non-financial transactions, the so called ―favours‖, e.g. nepotism, cronyism, and other forms of trading in favours and influence, a fact grossly overlooked by those who reduce the term ―corruption‖ to ―bribery‖ alone. Hence, the Oxford Unabridged Dictionary distinguishes bribery from favour by defining corruption as ―pervasion or destruction of integrity in the discharge of public duties by bribery or favour‖.605]

CORRUPTION IN THE PUBLIC SECTOR SERVICE DELIVERY OF BOSNIA AND HERZEGOVINA The public sector service delivery is the largest employer in any country and its associated job security and accompanying benefits are highly coveted. However, resources in this sector in Bosnia and Herzegovina are scarce and the supply of experienced and qualified staff is limited. When coupled with woeful under-funding, arbitrariness, inertia, and corruption are endemic. So too is the arrogance inherited from officials in the old communist era bureaucracy.606 It is in this sector that the largest amount of corruption in Bosnia and Herzegovina takes place, the petty corruption, in particular, where infringements of the principles of equality and non-discrimination are most visible. While most reports and analyses on corruption in BiH focus on grand corruption and legal/judicial dealing with corruption, they ignore the fact that in BiH relatively few people come into contact with judiciary. In contrast, the system of public services in BiH sees a constant flow of individuals through its various layers. It is Civil Society Against Corruption, http://www.againstcorruption.eu/diagnosis-tool. 18 July 2011. In addition to bribery and favouritism/clientelism/connections, some other forms of corruption include embezzlement, trading in influence, and abuse of function or position, illicit enrichment, etc. 606 International Crisis Group, Rule of Law in Public Administration, “Confusion and Discrimination in a PostCommunist Bureaucracy,” 1999, p.19. http://www.crisisgroup.org/~/media/Files/europe/Bosnia%2033 .pdf. 16 July 2011. 605

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there that the vast majority of legal abuses occur, as public servants intimidate and discriminate ordinary people.607 A large number of households in BiH encounter corruption when dealing with the employees of public sector service delivery. Twenty percent of respondents in a World Bank survey who received services in health care, education, police, and some other institutions paid bribes (money, gifts, or counter-services). These informal payments shrink household budgets, distort the structure of household budgets and make budget spending less predictable. 608 Widespread corruption in public health and educational services, to name a few, deters the poor from seeking healthcare and education, and depresses living standards and opportunities for poorer people in particular. 609 Kahvedņić and Lońić accordingly observe in their investigative report on corruption in BiH, ―The poor have neither money nor connections. It is not even granted that when they actually get an appointment that they will receive the best or proper help. When there is a distinct line between the poor and the wealthy, as the case seems to be in BiH, corrupt acts are about to occur in the health sector.‖ Furthermore, the background of the patient is often investigated by medical professionals, and only if it shows that the patient is coming from a wealthy family or has good connections, i.e. he or she is able to pay, then will they receive proper health care.610In

Ibid., p.1 When asked about the main consequences of corruption, 60 percent of respondents in the general public indicated that, “the poor get poorer and the rich get richer.” This perception is supported by the actual experiences with corruption reported in the surveys. World Bank, Bosnia and Herzegovina - Diagnostic Surveys of Corruption, 2000. http://www1.worldbank.org/publicsector/anticorrupt/Bosniantic orruption.pdf. 17 July 2011. 609 Article 14 of the European Convention on Human Rights, for example, provides that, “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” http://www.hrcr.org/docs/Eur_Convention/euroconv4.html. 17 July 2011. 610 Kahvedžić, N. and S. Lošić. “Corruption in Bosnia and Herzegovina-Causes, Consequences and Cures,” Master thesis in Economics Department of Management and Engineering The 607 608

regards to the corruption in educational institutions, the report of Kahvedņić and Lońić indicates that the biggest and most important type of corruption in the educational system in Bosnia and Herzegovina is payment for passing exams. The students believe that this phenomenon is normal, where they openly talk about it and pay the professors without questions. In their survey, Kahvedņić and Lońić often encountered students who take exams several times before finally passing; an incident often linked to the fact that they do not have the economical possibility to pay the professors. This has led to a polarisation where there are rich students and poor students. The rich students pay and pass exams easily without any adequate knowledge.611 The employment sector is yet another area where large quantities of corrupt acts occur and create discrimination and inequality on a daily basis, as well as violating the right to employment of the regular, non-bribing or non-privileged citizens. The recruitment process is heavily distorted by corruption. This comes as no surprise since a major problem for citizens in BiH today is finding a job.612 In dealings with hospitals, schools, police and other basic public services, poor citizens tend to suffer more discrimination than the rich and they see a larger share of their resources eaten away. Those with the least influence are left with little recourse against corruption, as mentioned earlier.613 University of Linkoping, 2010, p. 34. http://liu.divaportal.org/smash/get/diva2:309905/FULLTEXT01. 18 July 2011. 611 Ibid. pp. 34-35. 612 95% of survey respondents in the survey conducted by the UNDP in 2009 reported that having štela (a Bosnian colloquial word for favouritism/personal connections) is useful for access to basic social services, including access to education, employment and healthcare. More than one third of employed respondents said they had found their job through personal connections; UNDP Bosnia and Herzegovina, Human Development Report 2009; The Ties that Bind – Social Capital in BiH, pp. 12-13, http://www.undp.ba/index.aspx?PID=36&RID=90. In Bosnia and Herzegovina bribes were particularly common in the health sector with surveys of officials and citizens reporting that 75 percent thought bribes were required for obtaining positions and for promotion, Centre for Global Development, Governance and Corruption in Public Health Care Systems p. 20. http://www.u4.no/pdf/?file=/document/literature/file_WP_78.p df. 18 July 2011. 613 Article 26 of the International Covenant on Civil and Political Rights prohibits discrimination in law or in fact in any field regulated and protected by public authorities, and its application is not limited to those rights which are provided for in the ICCPR, International Council on Human Rights Policy

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Therefore, in addition to creating a distinction between those who use bribes or connections to obtain regular or privileged treatments in the public sector service delivery on the one hand and those who do not on the other, petty corruption discriminates against people with poor economic or social status, which represents a violation of the principle of equality and non-discrimination, the fundamental principles of human rights and affirmed in all the main human rights treaties.614 Article 26 of the International Covenant on Civil and Political Rights (ICCPR) prohibits discrimination in law or in fact in any field regulated and protected by public authorities, and its application is not limited to those rights, which are provided for in the ICCPR. 615

Simply put, every individual is entitled to be treated equally by public officials. If a person bribes a public official, that person acquires a privileged status in relation to other similarly placed individuals who have not partaken in bribery. Individuals or groups of people are left without access to a service because they cannot or refuse to pay a bribe or do not belong to a given client network. It is precisely in this sense that discrimination and inequality are defined in this paper. When a person obtains privileged treatment by means of a bribe no other human right is necessarily directly affected except the right to equality.616 Additionally, while the principles of equality and non-discrimination stand independently and Transparency International, “Corruption and Human Rights, Making the Connection,” http://www.ichrp.org/files/reports/40/131_web.pdf. 16 July 2011. 614 UN Charter (Articles 1(3), 13(1)(b), 55(c), and 76); the Universal Declaration of Human Rights (UDHR) (Articles 2 and 7); the International Covenant on Civil and Political Rights (ICCPR) (Articles 2(1) and 26); and the Convention on the Rights of the Child (CRC) (Article 2). Sometimes the references to discrimination make clear that prohibition is not limited to the rights set out in the instrument concerned. For example, Article 26 of the ICCPR, Article 3 of the ACHPR, Article 24 of the ACHR, and Protocol No. 12 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) establish freestanding rights to equality; their application is not confined to the rights contained in those Conventions; “International Council on Human Rights Policy and Transparency International,” p.34. http://www.ichrp.org/files/reports/40/131_web.pdf. 16 July 2011. 615 Ibid. 616 Ibid., p. 1.

from other human rights, it is likely that privileged treatment of the abovementioned kinds could indirectly affect some specific human rights. When for example a person bribes a medical practitioner or provides him/her a counter-favour in exchange for a privileged treatment, or even just a regular proper treatment that is often made impossible due to unfavourable circumstances in public health institutions617, the regular, non-privileged patients are not only discriminated against, but their access to health is severely restricted.618 In such cases, when acts of corruption are linked to violations of the principle of equality and nondiscrimination or even some specific human rights indirectly, evoking international human rights instruments could act to force accountability on the part of the state or a state/public organ and so create disincentives for corruption. While they do not replace traditional anti-corruption mechanisms, primarily the criminal law, they can give cases prominence; they may force a state to take preventive action, or they may deter corrupt officials from misusing their power. They can therefore both raise awareness and have a deterrent effect.619 Human rights obligations on the part of a state that signed human rights treaties and conventions apply to all branches of government (executive, legislative and judicial) at all levels (national, regional and local). According to human rights jurisprudence, an act, or omission, is attributable to the state when committed, instigated, incited, encouraged or acquiesced

Many medical practitioners that work in public hospitals also have their own medical clinics. Public hospitals are used to pick up clients and send them to their own private clinics, where the doctors will be paid for their services. It is not due to the mere fact that public hospitals do not have adequate equipment and knowledge to help these patients, but rather an opportunity for doctors to extract more money. An additional complication of the problem is the principal agent problem, where the patients do not know what kind of treatment they need, making it easier for the doctors to deceive and extract money; Kahvedžić, N. and S. Lošić.” Corruption in Bosnia and Herzegovina-Causes, Consequences and Cures”, Master thesis in Economics Department of Management and Engineering The University of Linkoping 2010, p. 34. http://liu.divaportal.org/smash/get/diva2:309905/FULLTEXT01. 18 July 2011. 618 International Council on Human Rights Policy and Transparency International, p. 33. http://www.ichrp.org/files/reports/40/131_web.pdf. 16 July 2011. 619 Ibid. p. 6. 617

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to by any public authority or by any other person acting in an official capacity.620 In terms of human rights instruments available, Bosnia and Herzegovina ratified/signed most existing international human rights treaties and they are all contained in the constitution, certainly including those human rights violated by acts of corruption mentioned above. 621 In addition to international human rights treaties/conventions, there are human rights institutions in BiH. One such institution is the Institution of Human Rights Ombudsman of Bosnia and Herzegovina (IHROBH), an independent institution dealing with the protection of rights of natural persons and legal entities in accordance with the Constitution of BiH and international human rights instruments appended thereto. It handles complaints related to poor functioning or human rights violations committed by any organ of Bosnia and Herzegovina. The cases are opened upon individual complaints filed by a natural person or legal entities, or ex officio. However, IHROBH is limited in the sense that it is only authorised to issue recommendations to competent organs to undertake measures to restore human rights violations or poor functioning of the administration, and it does not have a mandate to deal specifically with corruption. Few references to corruption in the IHROBH statements or cases pertain to corruption in general, despite of the fact that maladministration or poor functioning of any public organ or employee might be indirectly linked to corruption.622 The burden of proof of Ibid. p. 24. Article II of the Constitution of Bosnia and Herzegovina, contains provisions of Human Rights and Fundamental Freedoms, http://www.ccbh.ba/eng/article.php?pid=827&kat=518&pkat=50 0. 18 July 2011. Article II, Paragraph 4 of the Constitution of Bosnia and Herzegovina contains a provision of nondiscrimination: “The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. http://www.ccbh.ba/eng/article.php?pid=827&kat=518&pkat=50 0. 18 July 2011. 620 621

“The purpose of the law is to ensure qualitative, multi-ethnic appointments of members of managing bodies of state-owned public enterprises, i.e. to eliminate the practice resulting in the 622

discrimination as a consequence of some petty corruption act lies with individual complainants, the damaged party, who is highly unlikely to file complaints in such cases. Finally, proving discrimination as a consequence of a petty corruption act is particularly difficult to prove in legal sense. Nevertheless, it is obvious from its reports that the IHROBH has not so far used much of its capacity to address the connection between petty corruption and discrimination, or potentially violations of some concrete human rights. One such capacity would entail that the IHROBH would encourages citizens to file complaints in which the latter believe they were victims of discrimination peculiar to the public service providers and had restricted access to a public service due to some petty corruption act/s in a given public service institution. In regards to the anti-corruption instruments, as a potential mechanism to increase the protection from indirect institutional discrimination, inequality and restricted access to public service, Bosnia and Herzegovina has an anti-corruption legal framework, anti-corruption institutions and the an anti-corruption strategy. The Criminal Code of Bosnia and Herzegovina, for example, foresees sanctions for a wide range of criminal offences of corruption, such as accepting gifts and other forms of benefits, giving gifts and other forms of benefits, illegal interceding, abuse of office or official authority, embezzlement in office, and the like. Apart from the Criminal Code, the Law on Conflict of Interest in Governmental Institutions of Bosnia and Herzegovina is available, too, as an instrument for fighting corruption and, implicitly, an instrument fostering better protection of human rights violations made by means of corruption.623 More recently, the appointment of insufficiently qualified persons in managing bodies of public enterprises, persons with conflict of interests, and to eliminate existing nepotism and corruption, and to ensure representation principles in all aspects.” The Institution of Human Rights Ombudsman of Bosnia and Herzegovina, “Annual Report on Results of the Activities by the Human Rights Ombudsman of Bosnia And Herzegovina,” 2010. http://www.ombudsmen.gov.ba/materijali/publikacije/GI2010/A nnual_Report2010.pdf. 21 July 2011. 623 The Prosecutor‟s Office of BiH: The Criminal Code of BiH, Chapter Nineteen “Criminal Offences of Corruption and Criminal Offences against Official Duty or Other Responsible Duty”; Ministry of Justice of Bosnia and Herzegovina: “Law on Conflict

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appointment of the top management staff of the Anti-Corruption Agency of BiH has been finally completed, after years of delays. Unfortunately, the long awaited start of the functioning of the Anti-Corruption Agency has been seriously overshadowed by reports of alleged political appointments.624 In terms of specific areas in which the abovementioned human rights and anticorruption instruments could apply in such cases, theoretically there seems to be two main ways to address this issue: a.) litigate individual cases of corruption-made discrimination through the judiciary, a human rights ombudsman, or a specific institution in which the discrimination occurred where the focus is proving the connection between a corrupt act and discrimination in legal sense, and/or b.) take a more systematic (institutional) approach, such as the enforcement of internal rules/regulations based on antidiscrimination625 (human rights) and anticorruption principles in public service institutions and the sanctioning of those who breach them, by which the decrease in the level of discrimination and potentially some specific human rights violations caused by corruption in this sector is naturally expected of Interest”, “Law on Freedom of Access to Information”; In terms of fighting corruption forms peculiar to the public sector service delivery, especially the non-financial, favouritism-based forms of corruption (nepotism, cronyism, etc.), the provision of Illegal Interceding in the Criminal Code of Bosnia and Herzegovina is particularly useful, as it is not bound by a particular amount of money as a benefit sought by a wrongdoer, but sanctions anyone who “accepts a reward or any other benefit for interceding that an official act be or not be performed, taking advantage of his official or influential position in the institutions of Bosnia and Herzegovina”. http://www.tuzilastvobih.gov.ba/?opcija=sadrzaj&kat=4&id=41& jezik=e and http://www.mpr.gov.ba/en/str.asp?id=253. 16 July 2011. UNDP, Anti-Corruption in Eastern Europe and CIS, Bosnia and Herzegovina, http://europeandcis.undp.org/anticorruption/show/5DFCF132F203-1EE9-B8338074D57C2E1C. 22 July 2011. 624 TI BiH, The Administration Agency for the Prevention of Corruption, appointed by political lines. http://ti-bih.org/en/4279/uprava-agencije-za-prevencijukorupcije-imenovana-po-politickoj-liniji-2/. 18 July 2011. 625 In this particular context, the anti-discrimination rules and regulation would particularly be applicable to low-income citizens as the category most vulnerable to corruption and discrimination. Discrimination in this sense primarily implies a privileged status of those who pay bribes, a personal favour or counter-favour, or simply belong to a favoured client-network, as opposed to other similarly placed individuals who have not partaken in bribery or favouritism.

to occur. A particular limitation of individual case litigation is the problem of evidence, as mentioned earlier. By definition corruption is covert and leaves no paper trail. Collecting evidence is, therefore, a major challenge. Firstly, there are the limits on judicial redress, and the judiciary itself may be inefficient for a number of reasons, including political pressure and corruption that affect judicial impartiality, as is reportedly the case with the judiciary in BiH, for the most part.626 Secondly, if litigation is to have effect, for victims or perpetrators, advocates also need to identify victims, secure their consent to a prosecution and perhaps recruit them as witnesses, all of which can prove difficult.627 In any case, the petty, everyday, corruption seems to be of such nature that it is highly unlikely it would be best addressed through individual cases, be it through litigation at the judiciary, through the intervention of Human Rights Ombudsman Offices in BiH, or addressed by specific public service institutions because of the frequency of its occurrence (it takes place on a daily basis) and the tendency of individuals not to file such complaints in general. The other approach is the systematic, institutional, approach, for example, the enforcement of internal rules and regulations based on human rights instruments, specifically anti-discrimination, anticorruption, and ethical rules and regulations in public institutions, coupled with a more intense and through monitoring of potential petty corruption activities. In Bosnia and Herzegovina most public service institutions do have internal rules, regulations and ethical codes, but these are obviously not sufficiently enforced, as indicated in reports on corruption in the public sector service

European Commission, Commission Staff Working Document Bosnia And Herzegovina 2010 “Progress Report Accompanying the Communication from the Commission to the European Parliament and the Council Enlargement Strategy and Main Challenges 2010-2011”, p. 14. http://www.delbih.ec.europa.eu/files/docs/2010progress2.pdf. 18 July 2011. 627 International Council on Human Rights Policy and Transparency International, p. 74. http://www.ichrp.org/files/reports/40/131_web.pdf. 16 July 2011. 626

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delivery.628 Public service sector employees involved in petty corruption activities are very rarely reported or sanctioned by the institution in which they are employed. One potential reason for this is the prevalence of the so called exclusive social network culture, where employees and their superiors protect each other in instances where one of them commits a corrupt activity, such as bribery or favouritism-based forms of petty corruption, e.g. Illicit Interceding from the Criminal Code of BiH and the like, which are the most frequent forms of corruption in everyday life in BiH. 629 Such is the case in the public health sector, and this is due to the poor quality of records and the absence of an internal audit function within health insurance funds and healthcare institutions themselves. This make it impossible for auditors to establish in which manner and to what purpose the money, that is being allocated to the 13 health insurance funds, 13 Ministries of Health and 264 health institutions with 36,500 medical and nonmedical staff, is actually spent. The system‘s fragmentation hinders the collection of data, The International Crisis Group made a report on the rule of law in public administration in BiH in 1999, with specific recommendations to strengthen the functioning of public services. By and large these build on already-existing civil service procedures on the books and include: enforcing existing civil service laws, enforcing existing hiring procedures, increasing the degree of governmental “user-friendliness,” increasing public access to records and documents, de-linking the public administration financing from political party control. International Crisis Group, “Rule of Law in Public Administration, Confusion and Discrimination in a Post-Communist Bureaucracy”, 1999. http://www.crisisgroup.org/en/regions/europe/balkans/bosniaherzegovina/084-rule-of-law-in-public-administration-confusionand-discrimination-in-a-post-communist-bureaucracy.aspx. 16 July 2011. 629 In 2010, the Clinical Centre of the University of Sarajevo reported they received 1673 praises from citizens, 52 complaints and one case of bribery reported, but no cases of corruption. Clinical Centre, University of Sarajevo, “Memorandum o saradnji CCI – KCUS”, 11 April 2011. http://www.kcus.ba/index.php?option=com_content&task=view &id=669. 24 July 2011. These idealistic and unrealistic figures are certainly very different from figures and perceptions of corruption in the public health sector contained in any and/or all reputable local and international reports, according to which corruption is not only present in the public health sector of BiH to a much greater degree than reported by the Clinical Centre of the Sarajevo University, but in fact it is one of the greatest obstacles to building good-quality and non-discriminatory public health services. Finally, such reports reveal the strong presence of exclusive social networks/close client networks within the institution; UNDP Bosnia and Herzegovina, Human Development Report 2009; “The Ties that Bind – Social capital in BH”, pp. 6, 12-13. http://www.undp.ba/index.aspx?PID=36&RID=90 . 18 July 2011. 628

as does the absence of a common system of controlling expenses. Each fund and each health centre or institution has its own records and there is no exchange of information between them. It is, therefore, impossible to establish where leakages and abuse occur.630 Under such circumstances, one commonsensical approach to dealing with this issue on the part of human rights and anti-corruption agencies would be to create external monitoring bodies (e.g. external audits), independent of any influence of the monitored institutions, which would receive complaints directly from citizens. CONCLUSION Any comparative analysis of all available reports on corruption in BiH, including the latest, 2010 European Commission Progress Report and the annual Transparency International Corruption Perception Indexes for the past few years, still undoubtedly show that BiH has made limited progress in tackling corruption, especially everyday or petty corruption, since the time the anticorruption mechanisms were made available. These findings certainly apply to corruption in 631 public sector service delivery. Nevertheless, in terms of instruments available for the protection of human rights as a mechanism to fight petty corruption, there are both international and domestic human rights and anti-corruption instruments available in Bosnia and Herzegovina, as indicated above. In terms of a systematic institutional, nonindividual approach to addressing petty corruption as discrimination, one may comfortably conclude that the above CMI, Corruption in Bosnia and Herzegovina, 2005, http://www.cmi.no/publications/file/?2003=corruption-inbosnia-and-herzegovina-2005. 17 July 2011. 631 European Commission, Commission Staff Working Document Bosnia And Herzegovina 2010 “Progress Report Accompanying the Communication from the Commission to the European Parliament and the Council Enlargement Strategy and Main Challenges 2010-2011”, pp. 14-15. http://www.delbih.ec.europa.eu/files/docs/2010progress2.pdf. 18 July 2011. “Transparency International Corruption Perception Index” (CPI), 2010. http://www.transparency.org/policy_research/surveys_indices/cp i. 15 July 2011. 630

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mentioned ICG recommendations, the enforcement of the existing civil service laws, hiring procedures, an increasing the degree of governmental ―user-friendliness,‖ increasing public access to records and documents, delinking public administration financing from political party control, still apply, given what all reports on corruption in BiH show, and the fact that the ICG made no observation of any significant progress in rule of law in public sector service delivery since 1999. Additionally, this set of recommendations should certainly be expanded to include a clause pertaining to the connection between corruption and human rights violations, which are visible and felt daily in public sector service delivery.

corruption tool in the hands of citizens, with the aim of increased transparency of the work of public organs.633 Finally, the field of intervention is certainly far wider than recommendations in this paper, depending on capacities and the creativity of all those genuinely interested in addressing petty corruption as a form of discrimination and potential violation of human rights in everyday life in Bosnia and Herzegovina.

When it comes to individual approaches to cases involving inequality and discrimination by means of petty corruption, these pertain mainly to the work of the judiciary and the Institution of Human Rights Ombudsman. Anti-corruption and human rights advocates should advocate that the judiciary and the Institution of Human Rights Ombudsman pay more attention to the connection between petty corruption and discrimination, and start processing such cases, no matter how insignificant and small in number they might be. Additionally, they should address the existing obstacles to the work of the judiciary in Bosnia and Herzegovina, such as political pressure on the judicial system, the fragmented legal framework across the country, the backlog of case, etc., at all administrative levels, in order to push for a higher level of judicial fairness and impartiality (fair trial and legal remedy) for themselves or any other individual in judicial proceedings. 632 Furthermore, it is necessary to continue with promoting and addressing obstacles to better use of the Freedom of Access to Information Act as a strong antiIbid.; One potential example is to evoke the international human rights instruments mentioned above, according to which governments are entitled in law to deprive individuals of their liberty, but they cannot do so in an illegal or arbitrary manner and the use of that power must comply with legal standards of due process that are designed to prevent its abuse and misuse, International Council on Human Rights Policy and Transparency International, p.64. http://www.ichrp.org/files/reports/40/131_web.pdf, 16 July 2011. 632

The Institution of the Human Rights Ombudsman of Bosnia and Herzegovina, “Annual Report on the Results of the Activities by Human Rights Ombudsman of B&H in 2009”, http://www.ombudsmen.gov.ba/materijali/publikacije/GI2009/A nnual_Report2009.pdf, p. 32. 633

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