From Negative to Positive Peace: The Case of Bosnia and Hercegovina

Abstract

This article, which is grounded in qualitative interview data, takes as its starting point the contention that war crimes tribunals can aid reconciliation, and more specifically the claim made by the International Criminal Tribunal for the former Yugoslavia (ICTY) that its work is contributing to reconciliation in the region. Focusing on Bosnia and Hercegovina (BiH), the first question that it seeks to answer is not whether the ICTY has positively impacted on reconciliation, but rather the more immediate question of whether reconciliation actually exists in BiH. Defining reconciliation as the restoration and repair of relationships and as the acknowledgement of war crimes and responsibility, it argues that there is no reconciliation in present-day BiH. There is only negative peace—an absence of conflict. The second crucial question that this article explores, therefore, is whether and how this negative peace can be developed into positive peace characterized by reconciliation. Emphasizing two critical obstacles to any reconciliation process in BiH, namely insufficient contact between interethnic groups and the existence of denial and competing truths, it identifies three important measures to address these. These are the abolition of the divisive “two schools under one roof” education system, the replacement of the Dayton Peace Accords (DPA) with a constitutional structure that encourages interethnic contact rather than separation, and the creation of a truth and reconciliation commission (TRC). On the issue of whether the ICTY can itself contribute to reconciliation in BiH, the article concludes that while retributive justice is an important mechanism in postconflict societies, the difficulties and challenges that the ICTY faces in BiH underscore the limitations of criminal trials and the imperative of a multifaceted approach to reconciliation combining different transitional justice elements.

Janine Natalya Clark received her doctorate (on the subject of Serbia and Slobodan Milošević) from the University of Nottingham in 2006. After three years of postdoctoral experience in the International Politics Department at Aberystwyth University in the UK, most recently as a Leverhulme Trust Early Career Fellow (2007–2009), she is now a lecturer in the Post-War Reconstruction and Development Unit (PRDU) at the University of York. Her research interests include post-conflict societies, in particular in the former Yugoslavia and Rwanda; reconciliation; transitional justice; war crimes; war crimes tribunals and restorative justice. Her recent work includes “The three Rs: Retributive justice, restorative justice and reconciliation,” Contemporary Justice Review (2008); “International war crimes tribunals and the challenge of outreach,” International Criminal Law Review (2009), “Judging the ICTY: Has it achieved its objectives?” Southeast European and Black Sea Studies (2009); “Learning from the past: Three lessons from the Rwandan genocide,” African Studies (2009); “The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Hercegovina,” Journal of International Criminal Justice (2009); and “Genocide, War Crimes and the Conflict in Bosnia: Understanding the Perpetrators,” Journal of Genocide Research (2009). Her first book, Serbia in the Shadow of Milošević: The Legacy of Conflict in the Balkans, was published by I.B. Tauris in October 2008.

Notes

1. Throughout this article, these groups will be referred to as Bošnjaks, Serbs, and Croats.

2. Ahmići, Fojnica, Gornji Vakuf-Uskoplje, Milići, Vitez (central BiH); Bratunac, Foča, Goražde, Kravica, Potočari, Srebrenica, Višegrad (eastern BiH); Tuzla (north-eastern BiH); Banja Luka, Keraterm, Kozarac, Prijedor, Sanski Most, Trnopolje (north-western BiH); Sarajevo (including Iljaš and Ilidža); and Čapljina, Mostar, Stolac (western Hercegovina).

3. Author interview with the EUFOR Spokesman, Sarajevo, June 17, 2008.

4. According to Mani, negative peace “represents an absence of direct violence, such as a cessation of hostilities” and positive peace “represents the removal of structural and cultural violence” (2007: 12).

5. Author interview, Vitez, July 10, 2008.

6. Author interview, Sanski Most, August 1, 2008.

7. Author interview, Srebrenica, June 27, 2008.

8. Author interview, Kozarac, July 29, 2008.

9. Three of the Bošnjak interviewees, however, explicitly objected to the term “reconciliation.” The head of the Society for Threatened Peoples, for example, an NGO in Sarajevo, emphasized that “Only victims can forgive. Reconciliation is not really the correct term for BiH, because it implies that what happened here was civil war and it was not. It was aggression by Serbia.” Author interview, Sarajevo, June 18, 2008. This underscores the problem of competing truths, explored in section two. In broad terms, the Bošnjaks view the Serbs as aggressors, while the Serbs maintain that they were just defending themselves.

10. According to Crocker, we can distinguish between a “thin sense of reconciliation, attained when ceasefires, peace accords and negotiated settlements begin to take hold” and a “much ‘thicker’ ideal that requires friendliness and forgiveness” (2000).

11. Author interview, Srebrenica, June 27, 2008.

12. Author interview, Milići, August 12, 2008.

13. Author interview, Stolac, August 26, 2008.

14. According to the United Nations Development Programme (UNDP), “social trust in BiH is virtually non-existent. … While at the personal level people report relatively high life satisfaction, the lack of trust in others and in society at large appears as highly problematic” (2007b: 13).

15. Author interview, Sarajevo, May 15, 2008.

16. Author interview, Bratunac, June 30, 2008.

17. Rwanda's 11,000 gacaca courts, which began operating in March 2005, were set up to deal with the less serious crimes committed during the genocide (the so-called category two to four offenses, as outlined in the Rwandan Organic Law of 1996) and thereby take some of the pressure off Rwanda's law courts. Gacaca is a traditional healing and dispute resolution mechanism originally devised to deal with minor crimes, marital disputes, and property rights.

18. According to van Zyl, “Criminal justice systems, even those that have many resources and function efficiently, are designed for societies in which the violation of law is the exception and not the rule. Once the violation of the law becomes the rule, criminal justice systems simply cannot cope” (1999: 661).

19. Author interview, Goražde, June 12, 2008.

20. Author interview, Kozarac, July 30, 2008.

21. In Foča municipality, Bošnjaks made up 51.31 percent of the prewar population but today less than 800 have returned. Author interview with the head of the OSCE office in Foča, June 5, 2008.

22. Author interview, Foča, June 5, 2008.

23. Author interview, Kozarac, July 30, 2008 (the interviewee had returned to Kozarac for a summer vacation).

24. Prior to 2001, there were also two local councils and two medical centers in the town, but these are now unified.

25. Author interview, Gornji Vakuf-Uskoplje, August 13, 2008.

26. Author interview, Gornji Vakuf-Uskoplje, August 13, 2008.

27. Author interview, Gornji Vakuf-Uskolpje, August 14, 2008.

28. Author interview, Gornji-Vakuf-Uskolpje, August 12, 2008.

29. The remaining two are Hercegovina-Neretva Canton and Zenica-Doboj Canton. This system does not operate in Republika Srpska (RS) which, due to successful ethnic cleansing during the war, has very few mixed areas.

30. Author interview, Gornji Vakuf-Uskoplje, August 13, 2008.

31. The largest number of returns was registered in the first three years after the signing of the Dayton Peace Accords; 177,787 in 1996, 252,780 in 1997, and 139,570 in 1998. After that, the rate of returns slowed down—there were just 75,033 returns in 1999—and then increased again during the period 2001–2002, during which there were 98,865 and 107,909 returns, respectively (BiH Ministry for Human Rights and Refugees 2005: 210).

32. There are now 54 schools in BiH operating as two schools under one roof.

33. Author interview, Mostar, August 19, 2008.

34. Author interview, Mostar, August 21, 2008.

35. Author interview, Mostar, August 20, 2008.

36. Author interview, Mostar, August 20, 2008.

37. Author interview, Mostar, August 20, 2008.

38. Author interview, Stolac, August 26, 2008.

39. Author interview, Potočari, June 24, 2008.

40. Author interview, Višegrad, June 10, 2008.

41. As of March 2008, 274,775 refugees and internally displaced persons (IDPs) had returned to the Federation and only 169,067 had returned to RS (United Nations High Commission for Refugees [UNHCR] 2008).

42. In Annex 7 of the DPA, chapter 1, article 1 states that “All refugees and displaced persons have a right freely to return to their homes of origin. They have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them” (Oberschall 2007: 212).

43. Author interview, Višegrad, June 9, 2008.

44. Many Serbs in Sarajevo were forced by their own leaders to leave the city. To cite Oberschall, “When it came time to unify Sarajevo under Bosniak control in March 1997, there were about 70,000 Serbs there, most of whom wanted to remain, but the Serb leadership forced them to leave by deploying political thugs who arsoned their homes” (2007: 121).

45. In 2005, according to the Bosnian Ministry for Human Rights and Refugees, a total of 7,311 people were living in collective centers in BiH, 4,467 in the Federation, and 2,844 in RS (2005: 130).

46. Author interview, Sarajevo, May 29, 2008.

47. BiH signed a Stabilization and Association Agreement (SAA) with the EU in June 2008.

48. Author interview, Sarajevo, June 20, 2008.

49. Author interview, Sarajevo, August 7, 2008.

50. According to a national survey of BiH in 2007, “The federal alternative—centralized state with strong regions—outpaces other models, including the current status quo. On aggregate scores a centralized BiH with strong regions gathers most support and is opposed by hardly anyone” (UNDP 2007a: 28).

51. Author interview, Bratunac, July 1, 2008.

52. Author interview, Sarajevo, May 29, 2008.

53. Author interview, Sanski Most, August 1, 2008.

54. Author interview, Kozarac, July 28, 2008.

55. http://www.un.org/icty/cases-e/factsheets/achieve-e.htm.

56. During the trial of the late Slobodan Milošević, for example, the Prosecution played a video of members of a Serbian paramilitary group, the Scorpions, executing six young Bošnjak men near Srebrenica. On the same day, June 1, 2005, the video was broadcast on Serbian television: “It was the first time that Serbia's population would see a crime committed by its forces in Bosnia” (Zveržhanovski 2007: 424).

57. Author interview, Sarajevo, May 28, 2008.

58. Article II of the Convention on the Prevention and Punishment of Genocide (1948) defines genocide as, “Many of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; [and] (e) Forcibly transferring children of the group to another group” (Carnegie Commission on Preventing Deadly Conflict 1997: 4).

59. Author interview, Prijedor, July 27, 2008.

60. Author interview, Srebrenica, June 26, 2008.

61. Author interview, Milići, August 12, 2008.

62. Author interview, Vitez, July 10, 2008.

63. Author interview, Ahmići, July 9, 2008.

64. Author interview, Prijedor, July 27, 2008.

65. Author interview, Sanski Most, August 1, 2008.

66. Author interview, Višegrad, June 11, 2008.

67. Author interview, Vitez, July 8, 2008.

68. Author interview, Srebrenica, June 24, 2008.

69. Author interview, Višegrad, June 10, 2008.

70. Author interview, Sarajevo, May 26, 2008.

71. During the war in BiH, Orić was the senior commander of Bošnjak forces in parts of eastern BiH, including Srebrenica, and he was indicted by the ICTY in 2003 for wanton destruction of cities, towns, or villages and murder and cruel treatment. On May 30, 2006, the ICTY Trial Chamber found Orić guilty and sentenced him to two years imprisonment, but on July 3, 2008 the Appeals Chamber quashed this conviction on the basis that Orić's effective control over his subordinates had not been proven beyond reasonable doubt.

72. One precedent for a TRC operating alongside a criminal tribunal is the example of Sierra Leone which, according to one commentator, “may be demonstrating that the relationship [between TRCs and tribunals] is more synergistic than many might have thought” (Schabas 2003: 1065).

73. Author interview, Sarajevo, May 15, 2008.

74. According to a public opinion poll by the UNDP in June 2005, only 23.3 percent of respondents said that the ICTY has done a good job and justified its existence (24.9 percent in the Federation and 20.1 percent in RS). A further 36.8 percent said that the ICTY has not done a good job but is necessary (44.1 percent in the Federation and 25.6 percent in RS) (UNDP 2005: 15).

75. Author interview, Prijedor, July 28, 2008.

76. Author interview, Čapljina, August 22, 2008.

77. Victims are dissatisfied not only with the length of ICTY sentences, however. For example, on May 23, 2003, the State Court of BiH sentenced Željko Lelek from Višegrad to 13 years imprisonment for war crimes—including rape—committed against Bošnjaks in Višegrad municipality in 1992. This sentence angered Lelek's victims. According to Bakira Hašečić, a rape victim from Višegrad and the president of the NGO Žena–Žrtva Rata (Woman—Victim of War), “This sentence is a catastrophe. … Many of our members were Lelek's victims and they all know who he is and what he did. … Today is most difficult for the victims and easiest for the war criminal” (cited in Avdić 2008: 11).

78. Numerous interviewees in Srebrenica, Prijedor, and Bratunac maintained that there are still war criminals working in the police and public administration. Between 1999 and 2002, the UN investigated the activities of 24,000 policemen during the war period, but only 4 percent were subsequently removed from service (Humanitarian Law Centre 2006: 19).

79. Author interview, Bratunac, June 30, 2008.

80. Author interview, Kozarac, July 29, 2008. The interviewee's own son was among those killed at Korićanske Stijene in August 1992.

81. Author interview, Sanski Most, August 1, 2008.

82. Author interview, Potočari, June 25, 2008.

83. All states are under an obligation to cooperate with the ICTY, by virtue of Article 25 of the UN Charter. However, the Tribunal can do no more than to report acts of noncompliance to the UN Security Council, which has often “failed to respond in a meaningful way” (Kirk McDonald 2004: 562).

84. In the former Yugoslavia, the inquisitorial civil law system is used.

85. http://www.un.org/icty/cases-e/factsheets/achieve-e.htm

86. Author interview, Kozarac, July 29, 2008.

87. At the time of writing in 2009, for example, ICTY proceedings are underway or ongoing against, inter alia, Ljubiša Beara, the former colonel and chief of staff of the Bosnian Serb army main staff; Radovan Karadžić, the former Bosnian Serb leader; Nebojša Pavković, the former chief of staff of the Yugoslav army; Momčilo Perišić, a former chief of general staff of the Yugoslav army; Nikola Šainović, the former deputy prime minister of the Federal Republic of Yugoslavia (Serbia and Montenegro); and Vojislav Šešelj, the president of the Serbian Radical Party.

88. Such criticisms even came from within the Tribunal itself. In her recent autobiography, for example, the former chief prosecutor Carla Del Ponte notes that when Duško Tadić, a martial arts instructor and the president of the local board of the Serb Democratic Party in Kozarac in north-west BiH, was arrested in Germany and transferred to The Hague in April 1994 (the ICTY's first indictment against Tadić was issued on February 13, 1995), “some judges considered the case a nuisance. They and other staff members complained that it was a waste of scant resources to chase camp guards, policemen and military grunts like Tadić. They wanted indictments against leading politicians, generals and spy chiefs” (2008: 124).

89. Author interview, Srebrenica, June 24, 2008.

90. See note 92.

91. Author interview, Ahmići, July 7, 2008.

92. In South Africa, for example, the African National Congress (ANC) did not accept the findings of the country's TRC, accusing it of bias, and therefore took the Commission to court (Boraine 2000: chapter 9). Victims' organizations were similarly critical of the TRC and legally challenged (unsuccessfully) the amnesty provision, arguing that this violated their right to seek legal redress (Tepperman 2002: 134). The various truth commissions established in Latin American have faced their own problems. El Salvador, for example, established a Truth Commission (Comisión de la Verdad) in 1991. When the Commission published its report two years later, it faced strong pressure—not least from government officials—to modify its findings and President Cristiani publicly declared that there would be violence if the report named individuals. All those involved in political crimes were subsequently granted amnesty; “President Cristiani believed an amnesty was essential in order to placate the military and keep the peace process on track” (Kaye 1997: 708). The Historical Clarification Commission in Guatemala, created in 1994, had a weak mandate and few powers, due to fear that it could destabilize the fragile political situation; and the National Commission of Inquiry into Disappearances in Bolivia (1982–1984) was dissolved even before it had completed its work, on the basis that it was considered to be too politically sensitive. If TRCs do not have the opportunity to issue reports, or if their findings are ignored, one possible consequence is disillusionment among victims, and “Victims who perceive the lack of accountability as an affront to their suffering may take justice into their own hands, thereby perpetuating a cycle of vengeance” (Kerr and Mobekk 2007: 145).

93. The Kunarac case, for example, was the first time in which the crime of rape was successfully prosecuted as a crime against humanity.