Does Bosnia Need a Truth and Reconciliation Commission? Some Reflections on its Possible Design

Abstract

There is increasing debate within the former Yugoslavia regarding the possible creation of a truth and reconciliation commission (TRC). The RECOM coalition, formed in 2008, is committed to the idea of a regional TRC. This article, however, argues that a regional approach to truth-seeking is premature at this stage and thus focuses on the national level—and specifically on Bosnia-Herzegovina (BiH). The article's twofold objective is to explore whether BiH needs a TRC and, if so, what this TRC should look like. This is an empirical article that draws upon the author's fieldwork at the International Criminal Tribunal for the former Yugoslavia, in BiH and in South Africa.

Notes

After Slovenia and Croatia declared independence from Yugoslavia in June 1991, multi-ethnic BiH was left with the unpalatable prospect of remaining in a rump Yugoslavia dominated by Serbia. Yet if it declared independence, it risked antagonizing and provoking the Bosnian Serbs—constituting 34% of the population—who wanted BiH to remain part of Yugoslavia. BiH ultimately opted for independence and the Serb response was immediate and predictable; the war began in April 1992. While the Bosniaks and Bosnian Croats initially fought together against the Bosnian Serbs, when this alliance temporarily broke down they turned on each other, thus introducing into the conflict an additional layer of complexity. The Bosnian war finally ended in November 1995 with the signing of the Dayton Peace Accords. At this point, more than 150,000 people were registered as killed, dead from starvation or hypothermia, or missing; and at least 170,000 were recorded as injured (UNDP, 2005, p. 7).

See, for example, Stover & Weinstein (2004), Meernik (2005), Delpla (2007), Pham & Vinck (2007), Stover (2007), Subotić (2009), Mannergren Selimović (2010), Nettelfield (2010), Orentlicher (2010) and Clark (2011).

The Commission for Investigating the Truth Regarding Suffering of the Serbs, Croats, Bosniaks, Jews and Others in Sarajevo in the period between 1992 and 1995 was set up pursuant to a decision by the Council of Ministers in 2006. A major controversy was triggered by the discussion of the Commission's mandate and what exactly it would cover. As this issue has remained unresolved, the Commission never commenced its real work, instead focusing mainly on planning and procedural activities. The Truth and Reconciliation Commission of the Municipal Assembly of Bijeljina was established in 2008, on the recommendation of the International Mediator for BiH. After submitting its report in 2009, which the Municipal Assembly never adopted, the Commission effectively ended its work. A lack of agreement among the members of the Commission concerning its mandate and scope, insufficient funding and the absence of any formal statute all contributed to the Commission's demise. The commission that attracted the most interest was the Srebrenica Commission, established by the Republika Srpska (RS) government on 15 December 2003 to report on events in and around Srebrenica between 10 and 19 July 1995. Although it fell short of acknowledging that genocide occurred in Srebrenica, the Commission—the first of its kind in BiH—found that 7,793 people were killed during this 10-day period while a further 938 people were killed after 19 July 1995. Of particular significance from the perspective of victims and their families, the Commission prompted the RS government to issue a formal public apology on its official website. Noting, however, that the then RS President, Dragan Čavić, ‘subsequently declined to attend a burial ceremony for hundreds of Srebrenica victims …’, and thereby casting doubt on the ultimate success of the Commission, Subotić (2009, p. 152) remarks that ‘This behavior has only confirmed what Bosniac victims and many international observers suspected—that the sole impetus for this about-face in the Republika Srpska came from international actors, mostly the OHR [Office of the High Representative] and the European Union, who put increasing pressure on the RS to face up to its past or else meet with further international isolation’.

The RECOM website is available online at: http://www.korekom.org

One of the most convincing justifications is that owing to the interdependent nature of the Yugoslav wars and their spillover effects, only a regional approach could deliver a comprehensive and holistic truth. According to Vesna Teršelić from the Zagreb-based NGO Documenta, for example, ‘We in Croatia simply cannot know the truth about the Serbs who fled after the Storm military operation in August 1995 if they no longer live in Croatia and we know that many of them live in Bosnia Herzegovina or in Serbia’ (RECOM, 2011, p. 125). Similarly, Esad Kočan from the Monitor Magazine in Montenegro asks: ‘What could we possibly know about the deportation of Bosniak refugees from Montenegro without a regional approach?’ (RECOM, 2011, p. 125).

This was highlighted during the 2-month Campaign for 1 Million Signatures for RECOM, which was launched in April 2011. For example, only 19,668 people in Croatia signed the RECOM petition, as opposed to 122,473 people in BiH, which has a smaller population (Youth Initiative for Human Rights in Serbia and Croatia, 2011). The media is a critical factor in helping to explain the lack of enthusiasm for RECOM in Croatia. As one commentator underlines, ‘An especially popular theme in the Croatian media is that the aim of RECOM is to “even out the guilt” …’ (Mekina, 2011).

In addition, a former Deputy Prosecutor was interviewed by telephone in January 2008.

The remaining 80 interviewees consisted of elites whose daily work encompassed, whether directly or indirectly, issues pertaining to justice, truth and reconciliation. They included religious actors, leaders of civil society organizations, officials and representatives of international/European bodies.

Khulumani, which means ‘speak out’, is a national membership organization of victims and survivors of apartheid atrocities.

The International Criminal Court, however, is particularly innovative vis-à-vis the position of victims. Article 68(3) of the Rome Statute, for example, stipulates that ‘Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’. The Rome Statute of the International Criminal Court is available online at: http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm

On the morning of Friday 16 April 1993, between 5 and 6 a.m., approximately 100 soldiers entered the village of Ahmići, where they ‘killed the men of fighting age at point blank range and set fire to the Muslims’ houses and stables with incendiary bullets, grenades and petrol. Some houses were torched before their inhabitants even had a chance to get out' (Prosecutor v. Blaškić, 2000, §412).

United Nations (UN) Security Council Resolution 1534 (2004), paragraph 6, requests the ICTY (and the ICTR) ‘to provide to the Council, by 31 May 2004 and every six months thereafter, assessments by its President and Prosecutor, setting out in detail the progress made towards implementation of the Completion Strategy and what measures remain to be taken, including the transfer of cases involving intermediate and lower rank accused to competent national jurisdictions’ (available online at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/286/29/PDF/N0428629.pdf?OpenElement).

Radić, a policeman and a guard shift leader in the Omarska camp, was indicted by the ICTY in 1998. In 2001, he was convicted of crimes against humanity and violations of the laws or customs of war and sentenced to 20 years' imprisonment. This sentence was confirmed on appeal in 2005. Radić is serving his sentence in France.

While reporting on South Africa's TRC, for example, Krog (1999, pp. 152–153) wrote, ‘Over the months we've realized what an immense price of pain each person must pay just to stammer out their story at the Truth Commission. Each word is exhaled from the heart, each syllable vibrates with a lifetime of sorrow’.

In practice, however, TRC commissioners have not always exhibited the same understanding and respect for victims that Tutu did. Apropos the Liberian TRC, for example, which began its work in 2005, Gberie (2008, p. 459) claims that some commissioners ‘would giggle when victims narrated unusual forms of atrocities, including particularly creative forms of rape’.

Hayner (2010, p. 67), moreover, points out that these statements ‘accounted for 93,322 reported victims and 163,615 violations …’

Both the aforementioned Sarajevo Commission and the Truth and Reconciliation Commission of the Municipal Assembly of Bijeljina, for example, conducted their work behind closed doors.

According to a 2010 poll by Prism Research, for example, 60.8% of respondents did not know what TRCs actually are (UNDP, 2010a, p. 25).

In her research on Sierra Leone's TRC, Shaw (2007, p. 201) notes that ‘Almost without exception, witnesses who spoke in the District Hearings I attended ended their testimony with pleas for material assistance … And almost without exception the Commissioners responded, in tones ranging from empathy to impatience, that such assistance was not part of the TRC's mandate, but that they would bear such requests in mind when they made their Final Report to the Government of Sierra Leone. It became clear that most of the people who testified had done so because of their expectations that the TRC, the government or the international community would help them rebuild their lives’.

The TRC had recommended that victims receive a payment of between 22,000 rand (£2,000 at the current exchange rate) and 25,000 rand (£2,273) for six successive years. The government, however, disregarded this and decided instead to award victims a one-off payment of 30,000 rand (£2,727).

A pensioner in the township of Trust Feed, in the province of KwaZulu-Natal, revealed that she did not receive any reparations until 2005, and as a consequence of this delay she often feared that her case had been forgotten (author interview, Trust Feed, 3 August 2010).

As Guelke (2000, p. 304) underlines, ‘Even in untroubled times the truth about violent events may be hard to establish’.

Regarding the Liberian TRC, for example, Steinberg (2009, p. 140) contends that ‘Liberia's warlords used the TRC to grandstand, to proclaim their innocence, to lie about their misdeeds, and to blame their enemies … It seemed that the TRC had not the capacity to hold or the will even to hold warlords accountable to the barest truth’.

According to a public opinion poll conducted by Prism Research in November 2010, only 22.6% of Bosniak respondents, 2.9% of Croat respondents and 8.0% of Serb respondents believed that if the European Force (EUFOR) were to withdraw from BiH, this could trigger another war (UNDP, 2010b, p. 136).

Backer conducted a panel survey in 2002–2003 and again in 2008 with 153 apartheid victims in Cape Town. During this period, the number of victims supporting amnesty decreased from 57.5 to 20.4%. According to Backer's (2010, p. 454) analysis, ‘two factors that clearly contribute to evolving attitudes about amnesty are changes in impressions of fairness concerning the amnesty policy and assessments of the extent of individual truth recovery’. He thus stresses the importance of longitudinal research, underlining that ‘the immediate consequences of any measure do not necessarily represent a durable status quo’ (Backer, 2010, p. 456).

After his release from prison in 2006, for example, Drago Josipović—sentenced by the ICTY to 15 years' imprisonment for crimes against humanity (reduced on appeal to 12 years)—returned to Ahmići. Bosnian Muslim interviewees claimed, however, that they have little interaction with him and that he now spends much of his time at his vikendica [weekend house] in a nearby Croat village.

This part of the TRC's Register of Reconciliation is available online at: http://www.justice.gov.za/trc/ror/page01.htm

See online at: http://www.justice.gov.za/trc/ror/page02.htm

According to Amor Mašović from the Missing Persons Institute in BiH, ‘… it will almost be impossible for the members of the commission, whoever they are, to deal with the causes of the wars in the former Yugoslavia’ (RECOM, 2009b). The late Biljana Kovačević-Vučo, however, from the Lawyers Committee for Human Rights in Serbia, insisted that ‘… the facts without a context don't mean anything … So, we cannot establish the truth and responsibility, we cannot achieve reconciliation in the region without understanding the causes and consequences’ (RECOM, 2009b).

According to RECOM (2009b), ‘There are different opinions regarding the time period which should be covered by RECOM. Members of the Coordination Council of the Coalition for RECOM believe that the mandate should cover the period from 1991 until 2001. However, Albanian participants recommend that the time period covered should start from 1981, while Kosovo Serbs believe that the period after 2001 should also be covered’.