New article on Transitional Justice in the Former Yugoslavia

Gentian Zyberi and Jernej Letnar Černič have published article on “Transitional Justice Processes and Reconciliation in the Former Yugoslavia: Challenges and Prospects”, Nordic Journal of Human Rights, Volume 33, Issue 2, 2015. Here is the abstract :

This article aims to assess the achievements and challenges facing the transitional justice processes that have taken place in the countries most affected by the armed conflicts resulting in the violent dissolution of the former Yugoslavia and whether, and to what extent, these processes have furthered inter-ethnic reconciliation. The two variables used for this purpose are the scope of individual criminal accountability for war crimes and the scope of reparations provided to victims of the armed conflicts occurring throughout the 1990s and in the early 2000s. The following analysis combines an assessment of relevant international and domestic efforts. Thus, first, the article analyses the impact of the International Criminal Tribunal for the former Yugoslavia (ICTY or tribunal) in the transitional justice processes in Croatia, Bosnia and Herzegovina (Bosnia or BiH), the former Yugoslav Republic of Macedonia (Macedonia), Serbia, and Kosovo. Over the last 20 years the tribunal has investigated and prosecuted a considerable number of individuals for mass atrocity crimes. Subsequently, the focus shifts to assessing the domestic efforts surrounding the prosecution of war crimes and awarding of reparations for victims of the armed conflicts in these countries. The article argues that lack of sufficient coordination and close cooperation between international stakeholders and a general reticence on the part of the national authorities to engage meaningfully with past wrongs have resulted in a situation where many perpetrators of war crimes remain unpunished and individual victims have barely received any reparations. The article holds that for the ongoing transitional justice processes to meaningfully further inter-ethnic reconciliation in the republics emerging from the former Yugoslavia, continued legal reforms and a pluralistic public discourse, which embrace a strong focus on the rights of victims of war crimes, are necessary.

Đurić et al v. Bosnia and Herzegovina

FullSizeRender (3)The European Court of Human Rights has on 20 January 2015 delivered yet another judgment against Bosnia and Herzegovina in the case of Đurić and others v. Bosnia and Herzegovina (nos. 79867/12, 79873/12, 80027/12, 8020/12 and 115/13, 20 January 2015) concerning non-execution of final judgments awarding compensation to war victims under the terms of the War Damage Act 2005 of “Republika Srpska” (Serbian federal part of Bosnia and Herzegovina). The applicants maintained that judgments should be enforced without unreasonable delay of several years. Several applicants have waited already ten and more years for judgments to be enforced. The Court, accordingly, found that Bosnia and Herzegovina violated Article 6 and Article 1 of Protocol No. 1 to ECHR. It noted in para. 30 that:

By the end of 2005 when the War Damage Act 2005 was introduced some 9,000 judgments became final (see paragraph 13 above). While a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights is inherent in the whole of the Convention, the consequence of the respondent State’s action in delaying for another 20 years the enforcement of these judgments is to impose an individual and excessive burden on the creditors concerned.

This judgment is first in the line of many to follow as apparently there are at moment more then 400 hundred similar cases pending before the Court. In short, there is no political consensus nor financial resources available in Republika Srpbska for execution of those final judgments. What is more, situation is not different at the federal level where the Law on the Rights of Victims of Torture and Civilian War Victims still has not been adopted. Bosnia and Herzegovina has been for many years located in an unenviable position. It is located somewhere on a rocky ledge between stability and slip into the abyss that could plunge her back into the past of systematic human rights violations, rising unemployment and poverty. A country that is divided into two federal parts is held together only by the international community, through the High Representative of the Organization for Security and Cooperation in Europe. It seems that way out of this seemingly hopeless situation is at first glance not on the horizon. The future of Bosnia and Herzegovina is therefore largely depended on her integration within European Union that would eventually erase boundaries between different ethnics groups. Equally important is to ensure the continued effective prosecution of the perpetrators of the most serious crimes and provide victims with adequate compensation. If such measures will not be implemented, the future will not be very bright.

Hemon on the Dayton agreement

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Aleksandar Hemon, a well-known Bosnian writer, has stated in a recent interview that “the Dayton agreement was actually a constitutional continuation of war, whereby Bosnia was cemented in the structure, which does not permit it to live in peace.” Photo courtesy of esohap.org.

Election troubles in Bosnia and Herzegovina

The European Court of Human has just before summer recess delivered a judgment in the case of Zornić v Bosnia and Herzegovina (3681/06, 15 July 2014) concerning the inability of the applicant to run for election to the Presidency of Bosnia and Herzegovina. Its constitution allows only candidates from free major ethnic groups or“constituent people” (Bosniaks, Croats and Serbs) to stand for elections to the Presidency. The applicant did not declare that she belongs to any of them and was therefore prevented from standing for election. She thereafter complained to the European Court invoking its earlier judgment in Sejdić and Finci v Bosnia and Herzegovina.  The Court accordingly held :

that identical constitutional provisions have already been found to amount to a discriminatory difference in treatment in breach of Article 14 taken in conjunction with Article 3 of Protocol No. 1 in Sejdić and Finci (ibid., § 50). Accordingly, and for the detailed reasons elaborated in Sejdić and Finci (§§ 47-49), the Court concludes that there has been a violation of Article 14 taken in conjunction with Article 3 of Protocol No. 1 and a violation of Article 1 of Potocol No. 12 resulting from the applicantʼs continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina (para. 31).

Far more essential part of the judgment concerns the effective implementation of the judgment in the Bosnian domestic legal system. The Court, therefore, dedicated lengthy part of the judgment to the discussion of application of article 46 of ECHR, i.e. execution of judgment in previous case  Sejdić and Finci. It noted in para. 43 that :

now, more than eighteen years after the end of the tragic conflict, there could no longer be any reason for the maintenance of the contested constitutional provisions. The Court expects that democratic arrangements will be made without further delay. In view of the need to ensure effective political democracy, the Court considers that the time has come for a political system which will provide every citizen of Bosnia and Herzegovina with the right to stand for elections to the Presidency and the House of Peoples of Bosnia and Herzegovina without discrimination based on ethnic affiliation and without granting special rights for constituent people to the exclusion of minorities or citizens of Bosnia and Herzegovina.

It seems that the Court has in this case again stumbled on limits of its powers.The execution of judgments of the ECtHR is not only unsatisfactory in Bosnia and Herzegovina but also in several of other Central and European states. Therefore, it must be improved so that the normative regulation would allow for direct execution of judgments and so that necessary amendments to national laws would be adopted. Reasons for their non-execution are multi-layered, however they can be located in the dynamic of post—conflict societies, remnants of the former totalitarian regime, excessively formal legislative and judicial cultures and lack of political will. The judges at the Court may consider “that the time has come” to adapt the Bosnian constitutional system to the European Convention of Human Rights, however the realities and dynamics of the Bosnian politics and society at large are far away from such changes. Proposals that   that insists on constitutional changes to the institutional framework of Bosnia and Herzegovina run the risk to unsettle the fundamentals of fragile cohabitation of three major ethnic groups and may potentially awaken old life-threatening tensions. It appears not certain that judges of the European Court are prepared to risk to tremble extremely fragile balance in order to guarantee “just” the right to stand for election of individuals not belonging to one of the constituent groups. There is much more at stake as only the right to stand for election.