Journal Y2 v2 Published

See discussions, stats, and author profiles for this publication at: https://www.researchgate.
net/publication/228152421
International Journal of Rule of Law, Transitional Justice and Human Rights,

Year 2, Volume 2
Article · February 2012
CITATIONS READS
0 1,379
16 authors, including:
Alice Margaria Ardian Adzanela

Max Planck Institute for Social Anthropology Independent Researcher
6 PUBLICATIONS 3 CITATIONS 2 PUBLICATIONS 0 CITATIONS
SEE PROFILE SEE PROFILE
Aydin Atilgan Claire Schaepelynck

University of Hamburg 1 PUBLICATION 0 CITATIONS
10 PUBLICATIONS 0 CITATIONS
SEE PROFILE
SEE PROFILE
Some of the authors of this publication are also working on these related projects:
The Anatomy of the Dual State in Turkey View project
International Summer School: Current Legal Issues in Post-Conflict and Transitional Societies View project
All content following this page was uploaded by Dennis Michels on 10 August 2015.
The user has requested enhancement of the downloaded file.

INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Page 2
INTERNATIONAL SUMMER SCHOOL SARAJEVO
INTERNATIONAL JOURNAL OF RULE OF LAW,

TRANSITIONAL JUSTICE AND HUMAN RIGHTS
Year 2, Volume 2
ISSN 2232-7541
Page 3
INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND

HUMAN RIGHTS
Year 2, Volume 2
Authors: Print run: 400
Adela Kabrtova Sarajevo, December 2011

Aleksandra Djordjevic
Alice Margaria Konrad-Adenauer-Stiftung e.V.
Tiergartenstraße 35
Ardian Adņanela
D-10785 Berlin
Aydin Atilgan Germany
Claire Fernandez Phone: +49 30 269 96 453
Claire Schaepelynck Fax: +49 30 269 96 555
Csuka Márta Website: www.kas.de
Dennis Michels
Diana-Cosmina Trifu Rule of Law Program South East Europe
Francesca Capone Konrad-Adenauer-Stiftung e.V.
Leila Mignonne Stehlik-Barry 50 Plantelor Street
Marjolein Schaap Sector 2
RO-023975 Bucharest
Miloń Bogičević
Romania
Osiris Hoepel Tel.: +40 21 323 31 26
Tomasz Lachowski Fax: +40 21 326 04 07
e-mail: [email protected]
For the Publisher: Website: www.kas.de/rspsoe
Almin Ńkrijelj
and
Editorial board:
Lana Ačkar Association "PRAVNIK"
Adnan Kadribańić Porodice Ribar 49
Sarajevo , 71000
Redactor: Bosnia and Herzegovina
Marijana Toma e-mail: [email protected]
Website: www.pravnik-online.info
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.
Page 4
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
Page 5
Page 6
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 Konrad-
Adenauer Stiftung is supporting the implementation of such a project. As Konrad-
Adenauer-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 market-
economic 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-Adenauer-
Stiftung
Page 8
PREFACE
Page 9
Page 10
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 post-
graduate 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 post-
authoritarian 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 1946-
1988. 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.
Page 11
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.
Page 12
Page 13
Page 14
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 peace-
building, international law, humanitarian law, human rights, and security policy in
the USA and the EU.*
Page 15
characterised by the notion of ―global

1. INTRODUCTION transitional justice‖.5 As Ruti Teitel
Transitional justice (TJ) is widely diagnoses, since the turn of the
understood as ―a concept of justice millennium TJ moved ―from the exception
to the norm‖, which reflects an ―expansion
intervening in a period of political change,
characterised by a juridical answer to the of the reach of law in international
affairs‖. She explains that because of new
wrongs of past repressive regimes‖.1
However, the concept has undergone a realities of conflict, i.e. ―intrastate
incidents that occur even in
profound change since it came into
existence in the aftermath of World War II. peacetimes”, these new developments in
Having its origins in the Nuremberg and international law occurred, and were
accompanied by a new wave of TJ
Tokyo trials, which constituted the first
appreciation of individual responsibility initiatives in post-conflict states. The
theoretical debate around TJ gained more
for war crimes, TJ soon experienced a
massive decrease in attention, due to the and more attention during the 1990s. The
theoretical concept emerged as a by-
overarching tension of the Cold War. The
product of research concerned with
concept re-emerged and entered its
second phase in the context of political transformations following the third wave
transitions in Latin America and Southern of democratisation.6
In this context, the article at hand tries to
Europe during the 1970s and 1980s, but
answer the question what reconciliation
was by then framed by a ―culture of
means as a part of TJ. Whilst TJ is a
impunity‖ that led to a series of
process consisting of several pieces, I will
amnesties, or politically imposed
put a special focus on the ―reconciliation
amnesias.2 The dissolution of the Soviet
piece‖ because reconciliation is often
Union paved the way for the transitions of
described as a desired outcome, without
governments in various regions of the
world.3 During the 1990s, the reflecting what it really means and how it
works. I will stay on a theoretical level and
establishment of the International
discuss the question by taking a closer
Criminal Tribunal for the former
look at the concept of reconciliation in
Yugoslavia (ICTY), the International
scientific literature that deals with TJ. I
Criminal Tribunal for Rwanda (ICTR), and
the Truth and Reconciliation Commission divided the article into two parts. First
(Chapter 2), I will analyse the conceptual
(TRC) in South Africa marked the next
steps of the genealogy of TJ. This fostered shift TJ has already undergone, and show
a broadening of the concept to include the usage and significance of
reconciliation in contemporary TJ
non-juridical elements, e.g. the aim to
promote peace and reconcile victims and literature. In the second part (Chapter 3), I
will present a definition of reconciliation
perpetrators of the former conflict or
by strongly relying on insights from
repressive regime by truth-seeking
conflict transformation literature. This will
initiatives.4
The contemporary understanding, which be followed by an application to the
is called the third phase of TJ, is practical measures of the TJ concept, and
an assessment of their usefulness from a
theoretical reconciliation perspective. By
1 Teitel, Ruti, “Transitional Justice Genealogy”, Harvard Human doing this, I seek to open up a new
Rights Journal 16 (2003), 69-94, p. 69. perspective on reconciliation in the TJ
2 Buckley-Zistel, Susanne, “Transitional Justice als Weg zu Frieden
und Sicherheit. Möglichkeiten und Grenzen”, SFG-Governance process, which could especially be
Working Paper Series, No. 15 (Berlin, 2008), p. 6 (own translation,
D.M.).
3 Teitel, Ruti, “The Law and Politics of Contemporary Transitional 5 Teitel, “Contemporary Transitional Justice”, p. 840.
Justice”, Cornell International Law Journal 38 (2005), 837-862, p. 6 Engert, Stefan and Anja Jetschke, “Einleitung: Transitional
839. Justice 2.0 – zur konzeptionellen Erweiterung eines noch jungen
4 Bercovitch, Jacob and Richard Jackson, Conflict Resolution in Forschungsprogramms”, Die Friedens-Warte. Journal of
the Twenty-first Century. Principles, Methods, and Approaches International Peace and Organization 86 (2011), No. 1-2, 15-43, 21
(Ann Arbor, 2009), p. 151. (own translation, D.M.).
Page 16
insightful for scholars with a legal punishment for past perpetrators was
background, as I am writing from a social complemented with the idea of creating
science perspective. lasting peace. This was closely connected
to the idea of TJ as a long-term project,
2. ENTRANCE AND USAGE OF since justice in the long run meant
RECONCILIATION IN TRANSITIONAL nothing other than sustainable peace. For
JUSTICE the concept of TJ, this meant a shift to
measures aiming not only at retributive
2.1. CONCEPTUAL SHIFTS OF justice, i.e. legal punishment for crimes,
TANSITIONAL JUSTICE but also at restorative justice, i.e.
TJ experienced two conceptual shifts. The reconciliation. All in all, the concept
first one was the uncoupling of the became more holistic, using a
concept from the narrow time-frame of its combination of various instruments, and
application. This was related to the including the social reintegration of former
increasing role of international law. There perpetrators.10
are several practical developments I want to come back to the initially stated
reflecting the expansion of law in definition of TJ that reveals several flaws
international relations after the end of the in light of these conceptual shifts.
cold war. To name some, there are Following Roht-Arriaza, it becomes clear
humanitarian interventions as expression that the fixed time-frame, as it has been
of the expanding human rights regime, stated by Teitel (―a period of political
the emergence of the ―Responsibility to change‖), can in reality cover a long period
Protect‖ (RtoP) as an expression of the of time.11 TJ is a long-time project. This
altered role of state sovereignty (now being idea is connected to the notion that
held accountable for the treatment of its reconciliation is part of TJ, and can
citizens), or the establishment of the sometimes be an almost never-ending
International Criminal Court (ICC) as an process because of its very nature as a
expression of the desire to have a ―social reconstruction‖ process that ―may
permanent institution that deals with happen in bouts or waves, as new
cases of genocide, war crimes, or crimes generations come of age, and as the
against humanity.7 The stronger role of international context changes‖.12
the rule of law in international affairs Furthermore, it has become common to
shaped the concept of TJ decisively.8 The speak of ―post-conflict justice‖, replacing
emergence of a desire to deal with past the term ―transitional‖ with ―post-conflict‖,
atrocities on the international level led to which clearly shows the shift away from
a conceptual shift from the narrow context the narrow time-frame.13
of a transitional situation to the Moreover, Teitel‘s notion that TJ is
perception of TJ as a general method of ―characterised by a juridical answer‖14 has
dealing with the past, even when the been criticised. For instance, Naomi Roht-
transition had happened a long time ago.9 Arriaza notes that by concentrating on
The second conceptual shift is related to legal aspects of justice, other aspects like
the ―why‖ and ―how‖ of TJ, i.e. which goal ―education, culture and […] distributional
is pursued by dealing with the past, and justice‖ are omitted.15 Agreeing with this
what measures are suitable to reach that opinion, Susanne Buckley-Zistel states
goal. Especially since the second phase of that ―social, economic, and political
the genealogy of TJ, when Truth and justice are of equal importance to legal
Reconciliation Commissions were justice, but are not covered by
introduced as practical measure of TJ, the
formerly legally framed goal was 10 ibid.
broadened. The original goal of 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.
7 Bercovitch and Jackson, Conflict Resolution, p. 152. 13 ibid., p. 1.
8 Teitel, “Contemporary Transitional Justice”, p. 841. 14 Teitel, “Transitional Justice Genealogy”, p. 69.
9 Engert and Jetschke, “Transitional Justice 2.0”, p. 21. 15 Roht-Arriaza, “Landscape Transitional Justice”, p. 1.
Page 17
conventional concepts and procedures of of trust in the rule of law, especially equal
jurisdiction‖.16 Different forms of justice treatment before the law. The citizens can
can be included in TJ. Coming back to the reconcile when they notice that
development of TJ over time, the shift perpetrators are being punished – now
from retributive justice as primary and in the future.19
objective of TJ in the aftermath of World Social scientists and psychologists often
War II to restorative justice as speak of reconciliation from an individual
complementary goal describes the or society perspective, meaning either a
theoretical development in the most useful reintegration of perpetrators into a
way for my concern.17 Including economic community or reconciliation between two
or political justice could bring the concept individuals or two former conflicting
closer to projects of institutional reform. I groups.20 Hamber and Kelly note that ―the
do not want to dismiss these ideas, but I term has evolved from the individual to
will not deal with them at this point, as I the political and policy arenas‖21. Huyse
will concentrate on the narrower definition adds that reconciliation takes place
of TJ that is concerned with how to deal through three consecutive steps: replacing
with past repressive regimes on a society fear by non-violent coexistence, building
level. confidence, and developing a sense of
empathy towards others.22 I will elaborate
2.2. RECONCILIATION IN on reconciliation as the rebuilding of
CONTEMPORARY TRANSITIONAL relationships in the next chapter.
JUSTICE-LITERATURE Judith Renner notes that most often
As the definition of Ruti Teitel suggests, reconciliation is mentioned in the context
TJ is often presented from a legal of Truth and Reconciliation Commissions,
perspective, focussing on tribunals and which are presented as being a producer
prosecution as the main measures to of reconciliation by practitioners as well as
provide justice in a post-conflict situation. by the scientific discourse. Often the
By introducing her genealogy of TJ, I South African TRC is used as the only
showed how this perception was empirical example, and the once created
complemented by initiatives of truth- image of ―reconciliation through truth‖ is
finding, aiming at reconciliation. However, reproduced again and again without any
when it comes to the practical measures further comparative research or
of TJ, reconciliation is often described theoretical conceptualising. Despite its
from particular perspectives, depending positive connotation, the concept of
on the academic background of the reconciliation lacks a clear definition.
author. Instead, its necessity is stated referring to
Sometimes it is incorporated as a the possible contributions of TRCs only.23
secondary goal of tribunals, as a by- In my opinion, both problems (on the one
product of retributive justice. It frequently hand, not recognising the importance of
seems to be framed by legal scholars in reconciliation and, on the other hand,
this way. For instance, Teitel notices that using it as an empty concept without
the ICTY‘s ―project of reconciliation
remains largely aspirational‖, and after
19 Hamber, Brandon and Gráinne Kelly, “Beyond Coexistence:
stating that it produced a ―nationalist Towards a Working Definition of Reconciliation”,
backlash‖, i.e. the contrary effect from the Reconciliation(s). Transitional Justice in Post-conflict Societies
one it should have produced by aiming at (Montreal 2009), pp. 286-310, p. 288.
20 Hamber and Kelly, “Beyond Coexistence”, p. 286.
reconciliation, she dismisses the topic.18 It 21 Hamber and Kelly, “Beyond Coexistence”, p. 290.
seems that from her perspective, 22 Huyse, Luc, “The Process of Reconciliation”, David
reconciliation can be provided by state Bloomfield, Teresa Barnes and Luc Huyse, Reconciliation After
institutions through the reestablishment 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
16 Buckley-Zistel, “Transitional Justice”, p. 13. Konzeptualisierung”, Die Friedens-Warte. Journal of International
17 Engert and Jetschke, “Transitional Justice 2.0”, p. 21. Peace and Organization 86 (2011), No. 1-2, pp. 245-270, (own
18 Teitel, “Contemporary Transitional Justice”, pp. 858-859. translation, D.M.).
Page 18
reflecting its mechanism and causalities) society needs its own strategy of how to
exist because of a lack of a clear reconcile successfully.
definition. In the next chapter I will explain and
I do not refrain from the notion that define the concept of reconciliation. I will
framing TJ as a holistic approach, then apply the concept to the practical
including prosecutions, truth-seeking, measures of TJ, which have been used so
reparations, and other measures at the far, to find out to what extent they
same time, is necessary in order to build respond to the demand of reconciliation,
sustainable peace.24 Furthermore, I agree and I will finish with a conclusion.
with Anja Jetschke regarding her opinion
that retributive justice, i.e. punishment for 3. RECONCILIATION: WHAT DOES IT
perpetrators of past crimes, is morally REALLY MEAN?
acceptable, and has a psychological effect 3.1. DEFINITION
on victims and perpetrators.25 Diana
Orentlicher also argues that punishment As the famous practitioner and scholar of
deters future repression and inoculates conflict resolution John Paul Lederach
―the public against future temptation to be states, reconciliation aims at addressing
complicit in state-sponsored violence‖26. the root causes of a conflict. Furthermore,
However, I want to make a contribution to it takes place on a societal level. What
the debate on how to perceive TJ by matters most regarding the settlement of
highlighting reconciliation as a decisive conflicts are the ―human dimensions‖, i.e.
factor within TJ that has an additional the core idea of reconciliation is to restore
value beyond prosecutions, especially on a relationships between victims and
society level. Orentlicher largely engages perpetrators. Conflicts between societal
the issue of justice from a state versus groups (no matter if they are interstate or
individual (or community) perspective, intrastate) often have long-standing
which can almost be called typical for historical roots, and animosity, fear, and
legal scholars. I agree with her regarding prejudices about the other societal groups
her argument that the failure to prosecute are locked deeply in the minds of the
those most responsible risks undermining people. By signing a peace agreement and
the authority of law.27 However, she omits ending the conflict on the official,
issues of restorative justice on a purely diplomatic level, these underlying factors
society level. By overlooking the do not disappear. Therefore, the most
importance of reconciliation, the whole important point to make is that conflict,
process of TJ can be spoiled, and conflict as well as reconciliation, is to a large
can break out again. All attempts at extent about subjective perceptions
retributive justice can fail when a society among different groups of people.
falls back into violent conflict, and more Moreover, it is because of this notion that
atrocities are being committed. a step into the direction of ―the relational
Furthermore, connecting reconciliation aspects of reconciliation‖ and, more
with TRCs only, without understanding specifically the rebuilding of relationships,
what it is, and how it works, can be is necessary in order to achieve
dangerous, too, as every transitional reconciliation.28
People like Lederach, who have worked
practically in the field of reconciliation,
came to the conclusion that there is
24 van Zyl, Paul, “Promoting Transitional Justice in Post-Conflict
Societies”, Security Governance in Post-Conflict Peace-Building,
something needed beyond the negotiation
(Wien/Genf, 2005), pp. 210-230, p. 226. of interests to make peace last. Sometimes
25 Jetschke, Anja, “Der Kaiser hat ja keine Kleider an! – creative and innovative measures are
Strafverfolgung durch hybride Tribunale”, Die Friedens-Warte. needed to reach the goal of change in
Journal of International Peace and Organisation 86 (2011), No. 1-2,
pp. 101-130, 106 (own translation, D.M.). people‘s minds about their former enemy.
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. 28 Lederach, John Paul, Building Peace. Sustainable Reconciliation
27 Orentlicher, “The Duty to Prosecute”, p. 2542. in Divided Societies (Washington DC, 1997), pp. 23-24.
Page 19
It is important to take into consideration conflict and the resolution of conflict,

the specific background factors of each reconciliation, is about engaging people
conflict that one is confronted with when and bringing them together, rather than
dealing with specific practical cases. isolating, separating, or ignoring them.
Therefore, where standardised measures Reconciliation means the
turn out to be ineffective, creative projects acknowledgement of the past and the
can make a contribution.29 However, envisioning of the future at the same time.
creativity is only one of three defining On the one hand, acknowledgement is a
factors of reconciliation. I will explain key factor in the reconciliation process. It
these factors after giving an example how can be achieved through giving people
creativity can be understood in the space to tell their personal story of
context of reconciliation. suffering in the past. The result of
Konstanty Gerbert uses an example of the acknowledgement is a personal, emotional
Polish-German reconciliation process after reconstruction that forms a precondition
World War II.30 Until the 1980s (i.e. more for the restoration of relationships to
than thirty-five years after the war had others.
ended), the Polish population retained On the other hand, reconciliation needs a
their stereotypical picture of Germans as a long-term perspective. It has to be
primarily self-interested people. As a regarded as a process that is directed
consequence, the fear of revenge for the towards the future, in addition to the fact
expulsions of 3.5 million Germans from that it is dealing with the past. Connected
what became the new western part of to the importance of relationships, this
Poland lasted, and even massive means that people have to envision a
humanitarian aid by the Federal Republic shared future with their former opponents
could not change this perception. In this in conflict and accept the inevitable fact
seemingly hopeless situation of enmity, it that they will live in interdependence with
was a creative project that initiated lasting them. Konstanty Gerbert supports this
reconciliation. Through the exchange of view by concluding that the reconciliation
lists of Polish families in need the Catholic process requires accepting ―the continuing
Church and trade unions in both existence of the former enemy as an
countries encouraged German families to integral part of the desired outcome‖.32
buy additional products of everyday life Reconciliation requires innovation. After
and send them to those needy Polish conflicts, often seemingly contradictory
families. As Polish families received those requirements appear, e.g. the longing for
products they urgently needed, the justice and peace at the same time, or the
stereotypical perception of Germans claim for truth and forgiveness at the
changed and they recognised the time, same time. Reconciliation aims at bringing
effort, and good will of Germans to help these paradoxes together and combining
those families that they did not even know them creatively, often using social-
personally. The example impressively psychological and spiritual methods. This
shows how reconciliation can work in factor reflects what has already been
practice. I want to come back to theorising described by the German-Polish
the concept now. reconciliation example.
John Paul Lederach names three factors In the eyes of Gerbert, reconciliation
that underlie reconciliation:31 means the ―redefinition of identities of
Conflict is regarded as a system. Systems oneself and of the enemy, ideally through
can only be understood, or even modified, the valorisation of a third identity, which
by engaging the relationship between its would include both‖.33 Furthermore, he
parts. As relationship is the core factor of adds that it is the perception of these
identities that matters most. His
29 Lederach, Building Peace, p. 25. suggestion is to create a shared
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. 32 Gerbert, “Warsaw and Jablanica”, p. 12.
31 Lederach, Building Peace, pp. 26-27. 33 ibid., p. 12 ff.
Page 20
perspective of the future. Especially on the which approaches the presented measure
person-to-person level, reconciliation can takes (I) to bring former enemies
help to create social bonds that build the together/in contact with each other, and
basis for sustainable peace. Last, but not (II) to deal with the past and to build a
least, small projects can make a common future, as these are the criteria
difference. Especially measures including for a measure having a reconciliatory
little material value can be efficient effect. The third criterion mentioned by
because they avoid the perception of Lederach, innovation, cannot be assessed
buying forgiveness by focussing on the by looking at the standard measures
symbolical interaction. because it has to be understood as a
Gerbert aims at the same concept of creative modification of these standard
reconciliation as Lederach. Accordingly, measures, in order to work around the
one can summarise that reconciliation is a unique problems every transition faces.
process aiming at the creation of peace by
(re)building relationships between victims 3.2.1. NON- RECONCILIATORY
and perpetrators of a former conflict, and MEASURES
acknowledging past crimes as well as Amnesia
envisioning and working towards a At one end of the spectrum as to how to
common future by using creative deal with perpetrators and victims there is
measures that integrate seemingly the possibility of choosing a ―fresh start‖,
contradictory requirements of building i.e. not to deal with the past at all.
peace. I will now assess the practical Sometimes transitional states choose
measures often taken in connection with amnesia to make a peaceful transition
TJ, and their potential of fostering or possible, i.e. drawing a line of neglect
spoiling the process of reconciliation. between the past and the future. Often
Spain is mentioned as an example of
3.2. APPLICATION TO PRACTICAL imposed amnesia. After the end of the
MEASURES Franco dictatorship in 1976 the Spanish
In TJ there is a continuum of possibilities state moved to democracy without dealing
as to how to deal with past conflicts or with the past in order not to risk any
repressive regimes. At one end of this disturbance of their transition process.
continuum, there would be a transition to Not until 2000 did the claim of victims to
a different political system without any deal with the past become loud enough to
further action regarding past crimes. At overcome the amnesia.35 Amnesia
the other end, there would be the constitutes a status of non-justice, and it
establishment of a war crime tribunal that is highly doubtful if this can be called TJ
engages in prosecution and punishment of at all. Amnesia solely serves the interests
war criminals or violators of human of the perpetrators because there is no
rights.34 attempt to punish them, and victims are
In the following abstracts I will elaborate left alone with their pain and loss. In this
on both extreme cases of the continuum, case there is neither any action directed at
and show how they are related to the past abuses, nor any action directed at
establishing of reconciliation. I will argue the future relationship of perpetrators and
that both extreme ends of the continuum victims. The only imaginable advantage for
are inappropriate to improve reconciliation the victims is the transition to a peaceful
between perpetrators and victims because regime itself. However, there is no attempt
they follow the narrow interest of one of to bring former enemies together, or work
the groups, respectively. I will then towards acknowledgement of the past. The
present some other measures of TJ that common vision of the future is the only
put a focus on reconciliation. In my
analysis of each practical measure of TJ I 35 Schlee, Beatrice, “Die Konsequenzen jahrzehntelanger
will put a special focus on the question of 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
34 Engert and Jetschke, “Transitional Justice 2.0”, pp. 27-28. translation, D.M.).
Page 21
strategy of transition in this case. that prosecute war criminals or violators

Amnesia suppresses claims for justice in of human rights aims at providing justice
order to achieve peace in the short term, to the victims by punishing the
which can lead to renewed conflict at a perpetrators for their crimes. As already
later point in time. As no reconciliation mentioned, this constitutes the
takes place, the feeling of injustice will live establishment of legal justice, which has
on in the heads of the victims, which been criticised as being a very limited
makes a reappearance of conflict highly form of justice that does not serve the
probable.36 goals of TJ completely.39 Making an
addition to the claims for different forms
Amnesties of justice, I want to follow Engert and
Another form of non-justice, in this Jetschke with their claim for restorative
respect, would be to provide amnesties to justice, i.e. rebuilding the relationship
perpetrators. Often amnesties are granted between perpetrators and victims.
to ―buy‖ the acceptance of former Regarding tribunals, the provided form of
perpetrators concerning the transition justice is not restorative, but retributive.
from one political system to another, or to The idea of punishing perpetrators comes
reach a peace agreement after a period of ―close to the principle of revenge‖, and
conflict in the first place. In Argentina, the therefore primarily serves the interests of
government passed two amnesty laws the victims.40 Again, I do not want to
after various coup attempts by the discredit trials and I highly acknowledge
military that aimed to prevent further their value for promoting the rule of law
trials against some of its members who on a state level, contributing a lot to
had participated in the previous military stabilising state institutions and fostering
dictatorship.37 Except for the highly a democratic culture41 but, nevertheless, I
improbable case of an unconditioned want to mention their shortcomings
forgiveness of the victims, amnesties do regarding the rebuilding of relationships
not provide any advantages regarding the between individuals on a societal level.
future relationship of perpetrators and Tribunals can be satisfying regarding the
victims. Again, perpetrators‘ interests are treatment of the past, but have limited
served, and victims are left alone with a effect on building peaceful relationships
feeling of injustice. Similar to amnesia, between perpetrators and victims in the
amnesties open up the prospect of an future. Often it is said that tribunals can
improved future regime after the make a contribution to a peaceful future
transition, but do not provide any change by serving as deterrence to future
in the relationship between victims and perpetrators, and removing potential
perpetrators, let alone acknowledge what spoilers of peace by arresting them.42
went wrong in the past. This again leads However, the strong focus on victims‘
to the dangerous situation of a probable justice creates the danger of one-sided
renewed conflict later on because there is justice and desires of revenge among
no attempt to rebuild the relationships of supporters of the prosecuted war
perpetrators and victims.38 criminals. Tribunals follow the logic of
imposing an externally created,
Tribunals hierarchical relationship between
At the other end of the continuum of how perpetrators and victims. Moreover,
to deal with the past, there is the full tribunals create one official version of
focus on perpetrators of former regimes of truth that is often not accepted by some
injustice. The establishment of tribunals groups of a society that constituted a
warring party or the group of supporters
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”, 39 Roht-Arriaza, “Landscape Transitional Justice”, p. 13.
Transitional Justice in the Twenty-First Century (Cambridge, 2006), 40 Engert and Jetschke, “Transitional Justice 2.0”, pp. 28-29.
pp. 301-324, pp. 306-307. 41 Orentlicher, “The Duty to Prosecute”, pp. 2542-2543.
38 Engert and Jetschke, “Transitional Justice 2.0”, p. 28. 42 Engert and Jetschke, “Transitional Justice 2.0”, p. 29.
Page 22
of the old regime because they have not All in all, the most critical aspect of
been part of the truth-finding process.43 tribunals is their coercive character.
Jetschke adds that tribunals do not fulfil Without voluntariness no reconciliation is
their aspiration of ending a culture of possible. Looking at Lederach‘s criteria for
impunity because they are influenced by reconciliation, one can see that even if
specific power relations. Their creation is tribunals deal with the past by creating a
dependent on a powerful position of specific version of ―truth‖ and create a
former victims, and their record shows a possible vision for the future by removing
notion of revenge by limiting the spoilers of peace, the missing part is the
investigation period to a period in which area for social dialogue of victims and
crimes can be assigned clearly to the now perpetrators. Tribunals separate them
inferior party of conflict and, by limiting from each other and create a feeling of
the indictments to former high-ranking antagonism instead of bringing them
officials who are now without any political together, creating a shared vision of living
power. The result is justice limited to a together peacefully in the future. As
small group of people, leaving out the already mentioned, the ICTY is one
majority of perpetrators, specifically those example of failing to provide reconciliation
who are part of the politically powerful and, creating a nationalist backlash
group in the period the tribunal is instead.47
created.44 Jetschke concludes that
tribunals do not have any reconciliatory 3.2.2. RECONCILIATORY MEASURES
effect. By going even further, she states
that tribunals can be called a form of Reparations
victor‘s justice, which can be especially Providing reparations to victims directly
dangerous for the reconciliation process aims at the relationship between
when there is no measure to engage the perpetrators and victims. The provision of
past crimes of the victors of the former a material compensation is an effort by
conflict (e.g. a truth commission) at the the perpetrators for the victims that can
same time.45 help to improve their relationship.
To conclude this, one can say that However, there are several important
although tribunals may create a general aspects that have to be taken into account
sense of the benefits of the rule of law, if reparations are to be effective
which has a positive psychological effect concerning the process of reconciliation.
for many and. even more important, First and foremost, it has to be recognised
creates a culture of justice based on that there is no price for the pain and loss
human rights, there is always the danger the victims of conflicts or repressive
of excluding some of the former regimes have experienced. In this sense, it
perpetrators and latently creating the is crucial to interpret reparations as
basis for new conflicts – especially in the symbolic acts by which the perpetrator
immediate aftermath of a transition. accepts his/her guilt and accountability
The feeling of injustice among groups of for past crimes. Directly related to this is
society can become even more severe if the precondition of voluntariness. Forced
external actors (e.g. after a military reparations are ineffective for the process
intervention) run or support the tribunal, of reconciliation as the perpetrator can
and a feeling of conspiracy against some provide a material good without any
can emerge. Therefore, it is crucial that feeling of guilt. Hence, it is important that
tribunals are viewed as being legitimate by the perpetrator make a credible
a careful choice of their composition, and expression of the acceptance of his/her
a fair, inclusive, and communicative way guilt in order to give reparations a
of working.46 reconciliatory effect, and underline their
symbolical meanings. Reparations are
43 ibid., p. 30. directed at the past in the sense that they
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.
Page 23
constitute an acceptance of guilt, and a victims. One the one hand, this measure
remembrance of past events, and they are is directed at the past by addressing the
at the same time directed at the events, and finding out what really
improvement of future relations of happened. On the other hand, they can
perpetrators and victims.48 Depending on help to build a positive future relationship
the level of engagement, reparations can between perpetrators and victims by
be provided by a state for a victim or a establishing a dialogue between them. The
group of victims, but also, and more discourse itself is said to have a
importantly for the process of reconciliatory effect. Moreover, truth
reconciliation, directly by a perpetrator for commissions can help build a common
a victim. identity by including different points of
view to commonly experienced events. In
conclusion, this means that the crucial
Apologies mechanisms of truth commissions are to
the same extent the acknowledgement of
Often connected to reparations are
apologies. By apologising for past events, what happened in the past, and the
bringing together of former enemies and
the perpetrator or a representative of a
creation of a dialogue that can lead to
group of perpetrators accepts
his/her/their guilt, and takes the apologies as well.50
responsibility for past atrocities. 4. CONCLUSION
In this article I showed what reconciliation
Apologising aims at the publication of a
means in the TJ process. After having
moral renewal of the perpetrator, which
presented the conceptual shifts within TJ,
makes a change of the relationship to the
I explained the different perspectives that
victims possible. The psychological aspect
often occur regarding the usage of the
of the apology is the reversal of power
reconciliation concept in TJ literature. By
positions between the perpetrator and the
giving an extended definition of
victim. The former takes a position of
inferiority, and gives the latter the reconciliation as a process aimed at the
creation of peace by engaging the relations
opportunity to accept the apology and
between victims and perpetrators of a
forgive the former, or not. Through this
former conflict, and acknowledging past
decision, the victim gains power over the
crimes, as well as envisioning and working
perpetrator that frees him of his former
psychologically inferior role, and makes towards a common future by using
creative measures that integrate
reconciliation more likely because the
perpetrator and the victim can now act at seemingly contradictory requirements of
eye level. However, similar to reparations, building peace, I tried to fill this gap. The
assessment of the practical measures
the apology must occur independently
from external influences. The perpetrator showed how reconciliation is related to
those measures, and can be helpful
has to take the initiative, and apologise
whenever they are used or described in
voluntarily. Moreover, there has to be a
empirical cases. The result was a division
due framework for the apology to give it
credibility.49 into measures that have a rather negative
impact on the reconciliation process, like
 Truth commissions
amnesias, amnesties, and the
To generate a common version of the truth
establishment of tribunals, as well as
about past human rights violations or war
measures that bring forward the
crimes, which is supposed to have a
reconciliation process, like reparations,
healing effect on society, truth
apologies, and the establishment of truth
commissions are often established in
commissions. The understanding of the
transitional societies. Truth commissions
mechanism of reconciliation will help
can be characterised as a mediating
frame the theoretical concept of TJ,
instrument between perpetrators and
especially for scholars with a legal
48 Engert and Jetschke, “Transitional Justice 2.0”, pp. 31-32.
49 ibid. 50 Engert and Jetschke, “Transitional Justice 2.0”, pp. 32-33.
Page 24
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.
Page 25
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. 2537-
2615.
 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.
Page 26
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.
Page 27
The ―last century‖, and in particular, the Yet, it is evident that the changes in the
―last three decades‖ are considerably international legal order, which came up
important in the political history of the in the aftermath of the catastrophes of the
world by virtue of well-known facts which twentieth century, indicate that the
switched political dimensions throughout anarchical structure, which has been
the world. The shift in political used to define international order for a
dimensions, ―transition to democracy‖, long term, has to be left aside, as the
which is described as the core of the international community verified that it
global trend, the ―third wave of does not stand as a battle area in
democratisation‖ in the world in Hobbesian terms. Reserving the mistakes,
Huntington‘s words, brought transition to shortcuts and all challenges, the attempts
democracy to at least 30 countries from a for international organisations, which
non-democratic system between 1974 and basically have been established so as to
1990. It is one of the most important provide ―peace‖ throughout the world,
political facts of the previous century.51 should be read as an indicator of goodwill
Such transitions were not only central to by the international community as well as
the new democratisation process but also the result of conjectural interests and
to savagery and tragic wars. Indeed it is selfish and egoistical stances to reset and
evident that political chaos and atrocity arrange the world order.
were never intrinsic to the twentieth
century, but there was something, which Such a transformation in international
made that period quite different. ―Perhaps law was described as ―from a law of
more unusual than the facts of genocides coordination to a law of cooperation‖ 54
and regimes of torture marking this era is forty years ago and this cooperation has
the invention of new and distinctive legal been more intensified by the time of
forms of response‖.52 That wording progress, which brought a common
obviously indicates a transformation of concept that is shared by many authors,
the basis for justice from national to constitutionalisation of international
transnational. The twentieth century law.55 It is rather an academic artefact
became the point of departure for the but beyond wishful thinking and
quest for justice beyond nation states constitutes a ―legitimate form of
through several experiences. interpretation‖ of the recent developments
Considering the developments in in the international legal order as an
international relations in last a few ―ordinary hermeneutic exercise‖. 56
decades, it seems that the idea of a Constitutionalisation in international law
transformation of the Westphalian is used to indicate the intensity of
international legal order has largely been dependence of states and other actors of
adopted.53 Debates on the definition of international order that goes beyond
international legal order stand as a never- cooperation to describe a third phase in
ending issue among international law the transformation of international law in
scholars and the dimension of such a terms of the description above. This phase
transformation is also highly contested. is about the emergence of a Post-
Westphalian world order where the statist
51 Özbudun, Ergun. “Demokrasiye Geçiş Sürecinde Anayasa approaches to international law lose
Yapımı”, (Ankara: Bilgi Yay., 1993), p. 9. power. As an outcome of globalisation on
52 Minow, Marta. “Between Vengeance and Forgiveness: Facing
governance issues, states must cooperate
History after Genocide and Mass Violence” (Boston, MA; Beacon,
1998) quoted by Richard Falk, “Trends Toward Transnational
Justice: Innovations and Institutions”, draft background paper 54 For Wolfgang Friedmann‟s description, Preuß, Ulrich K.
prepared for UNDP, Human Development Report Office, “Equality of States – Its Meaning in a Constitutionalised Global
Occasional Paper, Background paper for HDR (2002), available at Order”, Chicago Journal of International Law 9 (2008-2009), p. 34.
hdr.undp.org/en/reports/global/hdr2002/papers/Falk_2002.pdf, 55 Ibid.
accessed 29.08.2011, p. 37. 56 Peters, Anne. “Global Constitutionalism in a Nutshell”, in

53 Yalvaç, Faruk. “Devlet”, Devlet ve Ötesi: Uluslararası İlişkilerde Weltinnenrecht: Liber amicorum Jost Delbrück, K. Dicke et al.,
Temel Kavramlar, (Istanbul: İletişim Yay., 2010), p. 15. (Berlin: Deuncker & Humblot, 2005), p. 536.
Page 28
with transnational bodies to be able international legal scholars.61 There are

exercise governance comprehensively. 57 also different schools that hold global
Because of the changing actors in global constitutionalism issues from different
order ―the reference to the perspectives and define global
constitutionalisation of legal order constitutionalism in different ways.62 But,
indicates the process of (re-) organisation they rely on a liberal democratic thought
and (re-) allocation of competence among background in almost all cases.63 As a
the subjects of international legal order, result, there are many different definitions
which shapes the international of global constitutionalism, which rely on
community, its value system and different views of the international legal
enforcement‖.58 It is a very important that order. Among these different definitions
the issue of constitutionalisation in and perspectives, one seems the most
international law gains importance in suitable to analyse the relationship
parallel with this rise of the role of between global constitutionalism and
subjects of international law in transitional justice and this article will
international politics other than states, focus on global constitutionalism from
namely, in international organisations, this point of view. According to this view,
NGO‘s, multinational companies and ―…[g]lobal constitutionalism is an
individuals. academic and political agenda that
However, this discourse has always been identifies and advocates for the
challenged by several approaches that application of constitutionalist principles
point out that the concept of constitution in the international legal sphere in order
has been emerged in parallel with the to improve the effectiveness and the
notion of state. Although in first half of fairness of the international legal order
the 20th Century, authors like Prelot and [and] [g]lobal constitutionalisation refers
Scelle suggested that the concept of to the continuing, but not linear, process
constitution cannot be held as merely of the gradual emergence and deliberate
peculiar to the state. All organised creation of constitutionalist elements in
communities may have their own the international legal order by political
constitutions. Their view was criticised and judicial actors, bolstered by an
and found very liberal.59 However, in the academic discourse in which these
meanwhile, theoretical studies went too elements are identified and further
far. They defeated the question as to developed.‖64 Apart from this, the term
whether the term constitution is inherent global constitution is used to describe the
in only states. There have been many increasingly integrating international legal
examples of constitutions which were order65 and, from this point of view, it
built beyond states, such as federal states becomes appropriate to handle the issues
like Germany and United States. The
European Union, without a constitutional
demos, and founding treaties of 61 For an introduction to different global constitutionalism
international organisations like the United perspectives, Schwöbel, Christine EJ “Situating the Debate on
Global Constitutionalism”, International Journal of Constitutional
Nations, the World Trade Organisation, Law 8 (2010), pp. 611-635, Kleinlein, Thomas. “On Holism,
which have features of constitutions are Pluralism, and Democracy: Approaches to Constitutionalism
beyond the State”, The European Journal of International Law 21
often named as constitutions.60 Today, (2011), pp. 1075-1084, Fassbender, Bardo. “The Meaning of
there is a highly advanced global International Constitutional Law”, Transnational
constitutionalism literature created by 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
57 Ibid., p. 537. Journal of Global Studies 16 (2009), p. 397.
58 De Wet, Erika. “The International Constitutional Order”, 65 De Wet, Erika. “The International Constitutional Order”, p. 53,
International and Comparative Law Quarterly 55 (2006), p. 51. However it should be added that such a constitutionalisation
59 Göçer, Mahmut. “Uluslararası Hukuk ve Uluslararası Anayasa process determined by the global constitutionalist works is too far
Kavramı”, AÜSBF Dergisi 57 (2002), p. 2. away from the constitutionalisation of well developed societies,
60 De Wet, Erika. “The International Constitutional Order”, p. 53. Preuß, Ulrich K. “Equality of States” p. 36.
Page 29
of global constitutionalism and rising tendency.68 Furthermore, it is

transitional justice as the common obvious that transitional justice is a term
concerns of ―global networks of used in emerging democracies throughout
governance‖. 66 the world and it is the way these newly
established regimes reckon with former
This article does not aim to investigate regimes and the legacy of crimes
whether constitutionalism at the global committed during those regimes.69
level exists or not or, or is good or bad, Therefore, both concepts overlap during
taking into account the current structure the time in which they have been
of the international legal order. Such a emerging and that renders such a study
discourse already seems to have found possible.
certain conclusions, which stem from As another important point, which
different perspectives.67 Therefore, I will facilitates this study, those
skip this question and ask another transformations of states from
question, which stands within the borders authoritarian or totalitarian forms to
of the global constitutionalist domain. liberal democracies have mostly borne a
That is to say, this article is a party to the resemblance to each other as the similar
circle that considers recent evolution of stages of transformations were
international law a constitutionalist observed.70 Such a situation also enables
development for reasons that should the questioning if those developments have
subject of another, broader, article. been formed under similar dynamics and
The aim of this essay is to question how global constitutionalisation affected
whether transitional justice processes of these dynamics.
the twentieth century may be grounds for From the point of view, transitional justice
global constitutionalisation, which mainly ―…characterise[d] the choices made and
overlap with the era of transitional justice. quality of justice rendered when new
In other words, does global leaders replaced authoritarian
constitutionalisation involve transitional predecessors presumed responsible for
justice as a dynamic of the process? This criminal acts in the wake of the ‗third
question is twofold structure. Firstly, wave of democratisation‘‖71 and thereby
justice, in particular transitional justice, the ―third wave‖, in Huntington‘s wording,
stands as a pillar of constitutional was implied as its source. On the other
structure, like the fundamental rights. hand, the opportunities for transitional
Secondly, it is related to the question of justice and individual accountability
configuring a constitutional structure by throughout the world also created the
mending political systems throughout the opportunity for the idea of global justice.
world and, therefore, providing a stable In this context, accompanying the end of
base for a constitutional body. the cold war and the other major
Before all, it should be noted that developments in international relations,
scrutinising such a question is difficult on one of the most important developments
the grounds that transitional justice, as in the global context that provided these
well as global constitutionalism and opportunities has been ―the relevance of
constitutionalisation are also concepts international human rights standards to a
that are difficult define absolutely. On the series of peaceful transitions from
other side, as widely acknowledged, its authoritarian rule to constitutional
components have to be sought within the
international order, which is defined
pursuant to the universal claims for the 68 Turgis, Noemie. “What is Transitional Justice”, International
good of humankind with respect to a 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.
66 Schwöbel, Christine EJ. “Situating the Debate”, p. 617. 70 Özbudun, Ergun. “Demokrasi Sürecinde”, p. 111.
67 Kleinlein, “On Holism”, p. 1083. 71 Arthur, Paige. “How Transitions”, p. 331.
Page 30
democracy‖.72 Nonetheless, a definition of ‗transition to democracy‘ had important

transitional justice, relying on coming to effects for the kinds of justice claims that
terms with merely the former regimes, were considered legitimate.‖77
may be misguided in some cases. For Even though a concrete definition of
example, regarding transfer of power in transitional justice could not be given yet,
Africa between 1940-1960, it was the main areas that are involved in
suggested that breaking with the past transitional justice are defined today:
should concern dealing with the colonial prosecutions, truth-telling, reconciliation,
past, which had a different context from reparations, and institutional reforms.78
the usual usage of the term transitional On the other hand, indications of a global
justice.73 constitutionalisation process can be seen
The Aspen Institute Conference, which in several aspects of the recent
was the milestone for debates on developments in international law in
transitional justice, was conducted ―to terms of a view based on ―global
discuss the moral, political and governance‖. These include the emergence
jurisprudential issues that arise when a of peremptory norms in international law,
government that has engaged in gross changes in law-making in the
violations of human rights is succeeded by international legal order, changing the
a regime more inclined to respect those binding effects of treaties, the emergence
rights‖74 in 1988. The leading topics in of ―World Order Treaties‖ which embody
the conference were ―whether there was universal values and have already been
an obligation under international law to adopted mainly in the areas of human
punish violators of human rights; whether rights, law of sea, international criminal
there was a minimal obligation of states to law, environmental law and international
establish the truth about past violations; trade law, and independent international
whether ‗discretion and prudence‘ should judicial bodies, along with the changes in
play a role in making decisions about the concept of statehood and the rising
justice measures; and how specifically to importance of non-state actors in the law-
deal with human rights abuses by military making process.79 In this context, the
authorities‖75 During the discussions main question of this article can be asked
within this conference, it was broadly again in different words: Where is the
agreed that customary international law transitional justice to be situated among
did not have any instrument to punish all those?
people who violated human rights and so, On that point, emphasising several points
at the outset, there was not any strong in positive law, such as the peremptory
legal basis for transitional justice norms, may surely be useful to indicate
debates.76 However, in the meanwhile, the basic grounds of global
transitional processes in the societies in constitutionalist views.
question were to be so influential in Jus cogens was defined by Article 53 of
creating new legal instruments at the the 1969 Vienna Convention on the Law of
international level by reason of the facts Treaties: ―…a peremptory norm of general
explained below. international law is a norm accepted and
―…‗transitions‘ have mattered to human recognised by the international
rights for two reasons: first, human rights community of States as a whole as a norm
practice had to adapt itself to new from which no derogation is permitted and
practical challenges; and second, that which can be modified only by a
political change, understood as a subsequent norm of general international
72 Falk, Richard. “Trends Toward Transnational Justice”, p. 3. 77Ibid., p. 357.

73 Arthur, Paige. “How Transitions”, p. 342. 78 Boraine, Alex. “Transitional Justice as an Emerging Field”,
74 Henkin, Alice H. Conference Report, in State Crimes, Justice and presentation paper of “Repairing the Past: Reparations and
Society Programme of The Aspen Institute ed., (1989), quoted by Transitions to Democracy” symposium, Ottawa, Canada, (2004),
Ibid., p. 352. p. 2.
75 Ibid., p. 352. 79Peters, Anne. “Global Constitutionalism”, p. 542-43, Preuß,
76 Ibid., p. 352. “Equality of States”, p. 145.
Page 31
law having the same character‖. Article Security Council Resolution instead of a
103 of the UN Charter which, includes a treaty of states and amendment of UN
jus cogens rule, should be considered Charter.83
superior to other norms: “In the event of a
conflict between the obligations of the Human rights is considered one of the
Members of the United Nations under the norms of jus cogens. The existence of an
present Charter and their obligations intrinsic relationship between human
under any other international agreement, rights and jus cogens is accepted by a
their obligations under the present broad range of scholars and people
Charter shall prevail.‖ This article, like the
concerned.84 The main norms which are
first and second articles of the Charter,
of jus cogens status, like prohibition of
sets the supremacy of the UN Charter over
genocide, torture, slavery, and racial
other international treaties and thus can
discrimination are also human rights
be considered a substantive constitutional
norms.85 Jus cogens can be seen as an
provision.80 In this respect, the
opus of international legal scholars and
International Court of Justice found the
Security Council decisions superior to judicial bodies beginning in the 1990‘s. 86
Montreal Treaty in the Lockerbie case, on For instance, The Court of First Instance
the grounds that, ―…in accordance with of the EU found itself ―empowered to
Article 103 of the Charter, the obligations check, indirectly, the lawfulness of the
of the Parties in that respect prevail over resolutions of the SC in question with
their obligations under any other regard to jus cogens, understood as a
international agreement, including the body of higher rules of public
international law binding on all subjects
Montreal Convention‖81.
of international law, including the bodies
As conceded by many authors throughout
of the United Nations, and from which no
the world, it is already evident that there
derogation is possible‖. In the Kadi and
is an inclination to give shape to
Yusuf cases the court used jus cogens
international law by international
norms in a constitutional manner and
organisations and by the courts and, legal
thereby proved the existence of jus cogens
provisions with substantive constitutional
norms within an international public legal
characters have been sought to achieve
that. Besides the ICJ, international order.87 On the other hand,
criminal tribunals, such as the implementation of jus cogens norms, to
International Criminal Tribunals of the extent that customary international
Yugoslavia and Rwanda also, in their law rules were incompatible with the
trials, referred to international law beyond human rights norms under the European
Convention of Human Rights, would be
their constructive instruments.82 For
invalid in the case law of the European
example, in the Tadic case, the ICTY
argued power of Security Council under Court of Human Rights.88 International
the ―treaty which serves as a protection of human rights expanded the
constitutional framework‖ for it and thus natural boundaries of international law in
finds it subject to ―certain constitutional the end, but it still does not mean that
limitations‖. While concluding the claims
of the appellant as the, ICTY was not duly 83 ICTY IT-94-1-AR72 Prosecutor v. Dusko Tadic a/k/a “Dule”,
established as it was founded by a 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.

80 Göçer, Mahmut. “Uluslararası Hukuk”, p. 2. 85 De Wet, “The International Constitutional Order” p. 59.
81 “Questions of Interpretation and Application of the 1971 86 Bianchi, Andrea. “Human Rights”, p. 493.
Montreal Convention Arising from the Aerial Incident at 87 Case T – 306/01, Ahmed Ali Yusuf and Al Barakaat
Lockerbie” (Libyan Arab Jamahiriya v. United States of America), International Foundation v. Council of the European Union and
Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, Commission of the European Communities, Judgment of the CFI,
para. 42. 21 Sept. 2005; Case T – 315/01, Yassin Abdullah Kadi v. Council
82 Koskenniemi, Martti. “Constitutionalism as Mindset: Reflections of the European Union and Commission of the European
on Kantian Themes About International Law and Globalisation”, Communities, Judgment of the CFI, 21 Sept. 2005, ibid p. 498.
Theoretical Inquiries in Law 8 (2007), p. 20. 88 De Wet, Erika. “The International Constitutional Order”, p. 59.
Page 32
such a situation is already satisfactory, as extradition regarding these crimes erga

state discretion is the most important omnes.94 Such a categorisation of crimes
determinant for participation in relevant was substantially an outcome of the
treaties.89 transitional justice process of twentieth
Jus cogens, which means ―compelling century as can be seen explicitly in the
law‖, ranks as the highest among the analysis of Bassiouni on the ground that
other norms and principles and therefore national and ad hoc courts at issue have
jus cogens norms are considered been the major subjects of transitional
peremptory and non-derogable.90 In processes. Above all, ―…the
international law literature these crimes characterisation of certain crimes as jus
are deemed to be jus cogens crimes: cogens places upon states the obligation
―aggression, genocide, crimes against erga omnes not to grant impunity to the
humanity, war crimes, piracy, slavery and violators of such crimes‖.95 Although this
slave-related practices, and torture‖. 91 is a very important development in the
The reason that these crimes affect the international legal order in terms of the
interests of the international community effects of transitional justice on
is that they are considered threats against international law, one point remains
humanity. The legal basis to make them questionable: What if this new
jus cogens consists of international development conflicts with the classical
pronouncements, or opinio iuris. The rule of immunity for the head of the state?
ratification of treaties concerning these State sovereignty and equality, as
crimes by large number of states and ad governed under Article 2(7) of the UN
hoc international investigations and Charter, shaped traditional international
prosecutions regarding these crimes relations for the long term. In parallel with
bestows upon them a higher rank in this, the Head of the State Doctrine had
international law.92 Three more evolved as defining the head of the state
considerations are suggested by as the absolute authority of the state and
Bassiouni: first, ―…the more legal immune from any prosecution under
instruments that exist to evidence the international jurisdiction.96 However, in
condemnation and prohibition of a both post-war eras of the twentieth
particular crime, the better founded the century, exceptions to this international
proposition that the crime has risen to the principle were raised. Prosecution of
level of jus cogens. The second Kaiser Wilhelm II pursuant to the
consideration is the number of states that Versailles Treaty of 1919, and the removal
have incorporated the given proscription of head of state immunity in the 1945
in their national laws. The third International Military Tribunal Charter
consideration is the number of and in the International Military Tribunal
international and national prosecutions for the Far East Charter, were other
for the given crime and how they have exceptions to the principle in the
been characterised.‖93 Finally he states twentieth century.97 The outcome of these
that inherent jurisdiction of a permanent experiences regarding international
international criminal court over these immunities has been the customary
crimes makes them part of jus cogens and international law principle of
also makes obligations of prosecution and ―international immunities do not apply to
international criminal prosecutions for
89 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. 94 Ibid., p. 19.
90 Bassiouni, M. Cherif. “The Need for International 95 Ibid., p. 13.
Accountability”, in, International Criminal Law: International 96 Hirsh-Allen, Jake. “Bashir‟s Immunity: Arguments in Support of
Enforcement, Bassiouni, M. Cherif. Vol. 3, 3rd Edition (Leiden: the Prosecution of an Incumbent Head of a Non-State Party by
Martinus Nijhoff Publishers, 2008), p. 14. The International Criminal Court”, 15 December 2008, available at
91 Ibid., p. 14. http://jake.contemporaryfuture.com/docs/transystemicLaw/Bashi
92 Ibid., p. 15. rsImmunity.pdf, accessed on 12.09.2011 , p. 2.
93 Ibid., p. 16. 97 Ibid., p. 3.
Page 33
certain international crimes‖98 including immunity of Milosevic was argued, the

war crimes and crimes against humanity, Court first and above all put forward the
which were to be re-expressed in several customary international law feature of
international documents, such as ―1945 Article 7(2). In order to underpin that, the
Control Council Law No. 10, 1948 Court stated ―[t]he history of this rule can
Genocide Convention, Nuremberg be traced to the development of the
Principle adopted by the General doctrine of individual criminal
Assembly in 1950 and the Statutes of the responsibility after the Second World War,
International Criminal Tribunals for the when it was incorporated in Article 7 of
former Yugoslavia (ICTY) and Rwanda the Nuremberg Charter and Article 6 of
(ICTR)‖.99 the Tokyo Tribunal Charter. The
customary character of the rule is further
supported by its incorporation in a wide
As a result of transitional justice, Rome
number of other instruments, as well as
Statute of International Criminal Court
case law. As for instruments, the following
has brought a decline to traditional state
may be mentioned: Article IV of the
sovereignty and head of state immunity by
Convention for the Prevention and the
the Article 27.100 In this way, the Rome Punishment of the Crime of Genocide;
Statute obstructs the functional immunity Principle III of the Nuremberg Principles;
or ratione materiae, which stems from Article 6 of the Statute of the International
performing state activities, in the first Criminal Tribunal for Rwanda; Article 6,
paragraph of the article and personal paragraph 2, of the Statute of the Special
immunity in the second paragraph.101 Court for Sierra Leone; and Article 7 of the
It is also important to note that all Draft Code of Crimes against the Peace
international tribunals in their statutes and Security of Mankind‖.104 The Court
included provisions, which removed afterwards referred to the Rome Statute of
official immunities and thus ensured a the ICC, which currently, in Article 27,
step against impunity. In addition, almost lifts all kind of immunities for the heads of
all of these tribunals prosecuted former the states and International the Law
presidents of the states in question, such Commission‘s Draft Code of Crimes
as Slobodan Milosevic, the former Serbian against Peace and Security of Mankind
president, Charles Taylor, the former and a paragraph from the Nuremberg
Liberian president, and Jean Kambanda, Judgment, which stated ―[t]he principle of
former Rwandan president.102 For international law, which under
instance, Article 7(2) of the Statute of the circumstances, protects the representative
ICTY states that, ―[t]he official position of of a State, cannot be applied to acts which
any accused person, whether as Head of are condemned as criminal by
State or Government or as a responsible international law…‖.105
Government official, shall not relieve such A similar argument was held about the
person of criminal responsibility nor immunity of Charles Taylor during his
mitigate punishment‖. The most trial in the Special Court for Sierra Leone,
important case where this provision was which rejected such claims pursuant to
applied was certainly in Milosevic‘s Article 6(2) of the Statute of the Court
trial.103 In the part of the trial where the which mirrored Article 27 of Rome Statute
and Article 7 of ICTY and ICTR
98 Bassiouni, M. Cherif. Introduction to International Criminal
Law, Ardsley, (NY: Transnational Publishers, 2003), quoted by
ibid., p. 3.
99 Ibid., p. 3. against impunity, Aksar, Yusuf. “The Transfer of Slobodan
100 Ibid., p. 2. Milosevic to the International Criminal Tribunal for the Former
101 Ibid., p. 8. Yugoslavia (The ICTY) and the Turning Point in International
102 Ibid., p. 8. Humanitarian Law”, Ankara Üniversitesi Hukuk Fakültesi Dergisi
103 In this respect, transfer of Slobodan Milosevic to the ICTY is a 51 (2002), p. 32.
considerable development in international law, as it reflects the 104 ICTY, Prosecutor v. Milosevic, No. IT-99-37-PT (Nov. 8,
desire of the international community for implementation of 2001), para. 28-30.

emerging international criminal law and also for cooperation 105 Ibid., para. 31-32.
Page 34
Statutes.106 Today, considering the and as yet an unclear situation.112 It

implementation of law in international currently falls within the emergent field of
criminal tribunals, it can be easily international criminal justice.113 On the
asserted that impunity which stems from other hand, the transitional justice
the Head of the State Immunity Principle process creates (or must create) a special
has been overturned by those form of justice that envisages preventing
tribunals.107 Thus, perhaps one of the the retaliation of victim groups and
biggest contributions of transitional stability in the aftermath of ethnic
justice to the global constitutionalisation conflicts in post-war regions in
process can be read in the words of Lord accordance with the basic goal of the
Millet, which were stated in the House of international community, which is
Lords regarding Pinochet‘s immunity and international peace and security.114
also referred to by the ICTY in the trial of
Milosevic. In this respect, the basis of international
criminal law comes into prominence as it
―In future those who commit atrocities is of a different content from national
against civilian populations must expect criminal laws. What makes it different
to be called to account if fundamental from ordinary criminal law is the
human rights are to be properly protected. geopolitical considerations in international
In this context, the exalted rank of the law. The Security Council pursuant to the
accused can afford no defence.‖108 Chapter VII of the UN Charter created the
ICTY and the ICTR to repair collective
What makes international prosecutions peace and security through its own
mandatory can be explained as the only initiative, although it did not have any
way to hold leaders and senior officials capacity to unilaterally establish any
who may not easily reached within the criminal judicial body to judge
borders of municipal laws.109 Considering individuals.115 Such a distinctive
the current consciousness level of situation also exists in case of the
humanity and developments in International Criminal Court. In Article 13
international law, it is suggested that the of the Rome Statute, it is stated that,
impunity of international crimes should ―…[t]he Court may exercise its
be seen as a betrayal of humankind jurisdiction…if…a situation in which one
against the victims of these crimes.110 or more of such crimes appears to have
At this point, it is stated that ius cogens been committed is referred to the
norms generate an ―international value Prosecutor by the Security Council acting
system‖ associated with erga omnes under Chapter VII of the United Nations‖
norms, which are applicable to the all and thus the Statute enables the Security
Council to exercise its authority governed
units in a legal community.111 From the
under Chapter VII. At this point it is
point of such a value system, the term
asked whether the ICC must commence
―justice‖ can be held as the greatest of
the investigation on the grounds that the
moral values as it stands for a universal
referral comes from the Security Council
and normative aim, whereas the term
in accordance with the Chapter VII of the
―transitional‖ evokes a particular moment
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
106 Hirsh-Allen, Jake. “Bashir‟s Immunity” p. 9.

107 Ibid., p. 9. 112 Ohlin, Jens David. “On the Very Idea of Transitional Justice”,
108 ICTY, Prosecutor v. Milosevic, para. 33. The Whitehead Journal of Diplomacy and International Relations 8
109 Bassiouni, M. Cherif. “The Need for International (2007), p. 51.
Accountability”, p. 21. 113 Ibid., p. 51.
110 Ibid., p. 27. 114 Ibid.. p. 57.
111 De Wet, Erika. “The International Constitutional Order”, p. 62. 115 Ibid., p. 61.
Page 35
the capture of criminal law by the of international humanitarian law‖. The

international legal order in order to ICC Statute which includes a similar
achieve its goals called transnational provision in Article 86 also governs the
peace and collective security.116 On the rule of ―surrender of persons to the Court‖
other side, it may be considered a under Article 89 and states that, ―…[t]he
requirement to give the Security Council Court may transmit a request for the
such an authority to make binding arrest and surrender of a person, together
referrals in cases of genocide and war with the material supporting the request
crimes.117 Even though the ICC is bound outlined in article 91, to any State on the
by the universal principles of criminal law territory of which that person may be
as implemented in domestic courts, apart found and shall request the cooperation of
from the domestic laws, it deals with that State in the arrest and surrender of
―extraordinary‖ crimes, like genocide, war such a person. States Parties shall, in
crimes, crimes against humanity, and accordance with the provisions of this Part
aggression which have been defined on and the procedure under their national
quite different bases than ordinary crimes law, comply with requests for arrest and
as they are inherently collective crimes. surrender‖. Thus, the Rome Statute has
Finally, that brings the fact that the ―the brought a vertical mechanism between
ICC is jurisdictionally defined by states and the court and also been defined
as ―the most authoritative international
transitional justice as special justice‖.118
humanitarian law instrument.‖123
Transitional justice also brought rapid
The establishment of the ICTY and ICTR
growth of international humanitarian law,
was rather innovative considering the
as it is asserted that developments in
usual operation of the Security Council 119 international humanitarian law have been
and, the ICC was established as the faster since mass killings began in the
successor of these courts, which were ad former Yugoslavia than in the era of the
hoc.120 As a result of the conflicts, which Nuremberg Trials and the 1949 Geneva
brought the idea for establishment of Conventions for the Protection of Victims
these courts, the source of legitimacy for of War.124
international criminal courts is the need INSTEAD OF A CONCLUSION
to restore the post-conflict societies.121 Indications of global constitutionalisation
By implementation of the ad hoc ICTY and may be found within the developments of
ICTR courts, instead of extradition law the international legal order concerning
which is applied between two sovereign human rights, world trade issues, the
states, the new term, ―surrender or creation of international judicial bodies,
transfer‖ of suspicious people, appeared. the situation of international
In that case, the states are not bilaterally organisations and international law-
responsible against each other as they are making. Transitional justice, the
under extradition law, but they are all instrument for transitions to liberal
bound by the international authority in a democracies, appears in parallel direction
vertical relationship.122 For instance with global constitutionalisation. In this
Article 29 of the ICTY Statute confirms context, it has brought the
this situation: ―States shall co-operate universalisation of settlement of accounts
with the International Tribunal in the with the past throughout the world and
investigation and prosecution of persons led to the emergence of a cosmopolitan
accused of committing serious violations memory of humankind.125
116 Ibid., p. 62.

117 Ibid., p. 62. 123 Ibid., p. 32.
118 Ibid., p. 63. 124 Meron, T. "War Crimes Law Comes of Age", in Theodor
119 Aksar, Yusuf. “The Transfer of Slobodan Milosevic”, p. 20. Meron, War Crimes Law Comes of Age, Essays, Oxford:
120 Ohlin, Jens David. “On the Very Idea”, p. 62. Clarendon Press, (1998), p. 297, quoted by ibid, p.20.
121 Ibid., p. 64. 125 Sancar, Mithat. Geçmişle Hesaplaşma, 3rd Edition, (Istanbul:
122 Aksar, Yusuf. “The Transfer of Slobodan Milosevic”, p. 31. İletişim Yay., 2010), p. 82.
Page 36
constitutionalism. The questions held in

On the other hand, the idea of an this article may also be asked from the
―international moral‖ should also be dealt point of constitutionalism‘s contributions
with. Considering influences of suits by to transitional justice. In such a case, it is
the victims, who suffered from crimes rightly suggested that global
against humanity and all debates and constitutionalist views may be used to
developments in this field, it has been reveal the failures of international
asserted that ―a new international institutions in governance, as in the
morality‖ emerged.126 This morality is Bosnian case.129
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
126 ibid, p. 84.

127 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. 129 Peters, Anne.“Global Constitutionalism”, p. 549.
Page 37
BIBLIOGRAPHY
 Boraine, Alex. ―Transitional Justice as an Emerging Field‖, presentation paper of

―Repairing the Past: Reparations and Transitions to Democracy‖ symposium, Ottawa,
Canada, (2004), pp. 1-5.
 Bianchi, Andrea. ―Human Rights and the Magic of Jus Cogens‖, European Journal of
International Law 31 (2009), pp.491-508.
 Peters, Anne. ―Global Constitutionalism in a Nutshell‖, in Weltinnenrecht: Liber
amicorum Jost Delbrück, K. Dicke et al., (Berlin: Deuncker&Humblot, 2005), pp.
535-550.
 Peters, Anne ―The Merits of Global Constitutionalism‖, Indiana Journal of Global
Studies 16 (2009), pp. 397-411.
 Fassbender, Bardo. ―The Meaning of International Constitutional Law‖, in
Transnational Constitutionalism: International and European Perspectives, (NY:
Cambridge University Press, 2007), pp. 307-328.
 Simma, Bruno and Philip Alston. ―The Sources of Human Rights Law: Custom, Jus
Cogens and General Principles‖, Australian Yearbook of International Law 12 (1992),
pp.82-108.
 Schwöbel, Christine EJ. ―Situating the Debate on Global Constitutionalism‖,
International Journal of Constitutional Law 8 (2010), pp. 611-635.
 Özbudun, Ergun. Demokrasiye Geçiş Sürecinde Anayasa Yapımı, (Ankara:Bilgi Yay.,
1993)
 De Wet, Erika. ―The International Constitutional Order‖, International and
Comparative Law Quarterly 55 (2006), pp. 51-76.
 Yalvaç, Faruk. ―Devlet‖, in Devlet ve Ötesi: Uluslararası İlişkilerde Temel Kavramlar,
Atilla, (Istanbul: İletişim Yay. 2010), pp. 15-51.
 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/BashirsImmunity.pdf,
accessed on 12.09.2011
 Ohlin, Jens David. ―On the Very Idea of Transitional Justice‖, The Whitehead
Journal of Diplomacy and International Relations 8 (2007), pp. 51-68.
 Bassiouni, M. Cherif. ―The Need for International Accountability‖, in International
Criminal Law: International Enforcement, M. Cherif Bassiouni, Vol. 3, 3rd Edition
(Leiden: Martinus Nijhoff Publishers, 2008).
 Göçer, Mahmut. ―Uluslararası Hukuk ve Uluslararası Anayasa Kavramı‖, AÜSBF
Dergisi 57 (2002), pp. 1-16
 Koskenniemi, Martti. ―Constitutionalism as Mindset: Reflections on Kantian Themes
About International Law and Globalisation‖, Theoretical Inquiries in Law 8 (2007),
pp. 9-36.
 Sancar, Mithat. Geçmişle Hesaplaşma, 3rd Edition, (Istanbul: İletişim Yay,. 2010).
 Turgis, Noemie. ―What is Transitional Justice‖, International Journal of Rule of Law,
Transitional Justice and Human Rights 1 (2010), p. 11-18.
 Arthur, Paige. ―How ‗Transitions‘ Reshaped Human Rights: A Conceptual History of
Transitional Justice‖, Human Rights Quarterly 31, (2009), pp. 321-367
 Falk, Richard A. ―The Pathways of Global Constitutonalism‖, in The Constitutional
Foundations of World Peace, (State University of New York Press, 1993), pp. 13-38
 Falk, Richard. ―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
Page 38
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. 19-
33
Page 39
Page 40
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.
Page 41
making. All (or the most important)

INTRODUCTION groups in the society are included in the
In this paper I will argue that the decision-making procedures. Countries
consociational principle of organising a usually identified as consociational are
society can result in strong centrifugal the Netherlands, Belgium, Switzerland
tendencies and, in some cases, eventually Error! Reference source not found.,
lead to the dissolution of a country. I will and, more recently, Macedonia, Northern
argue that this model is not a desirable Ireland, and Bosnia and Herzegovina
design for divided societies as it is likely to Error! Reference source not found.. All
facilitate divisions in a society and of the abovementioned countries have all
therefore can be detrimental to post- the features of consociational
conflict reconstruction and peace-building democracy130. However, an evident
efforts. disparity between those two groups of
I will do this by first giving an account of countries is that in the latter
consociationalism as a principle of consociational democracy has been
organising societies and, second, by applied as a solution (or a part of the
arguing that when applied to post-conflict solution) following an armed conflict.
societies in practice it fosters divisions in The model of consociational democracy
a society, and even endangers the was formulated by Arend Lijphart131. In
existence of the state. I will provide his view, the most important
arguments and examples that support characteristics of the model are: 1. a
this assertion by comparing the way grand coalition of political leaders of
consociationalism has been applied in important groups in the society, 2. a
Bosnia and Herzegovina, Northern mutual veto power to protect the minority
Ireland, and Macedonia. I will then interests, 3. proportionality in political
consider possible responses to my representation and appointments, and 4.
argument and, finally, conclude that the autonomy of segments in internal affairs
consociational model is not a desirable Error! Reference source not found.. The
way of organising divided societies, premise of the consociational democracy
especially those that are post-conflict. is that elites will cooperate in order to
I will take a consociational principle of counter centrifugal tendencies by
organising a government to be a accommodating political conflicts through
government where elites cooperate in compromise or amicable agreement Error!
order to turn a fragmented political Reference source not found..
structure into a stable democracy Error! In a divided society institutional
Reference source not found.. In societies engineering can strongly influence the
where social cooperation does not exist on existence of social cleavages. Institutions
the mass level, but where elites work in shape social interactions and the way in
partnership in order to prevent social which they have been set up influences
cleavages from destabilising democracy, the dynamics in the society. In a society
consociationalism offers the way for the that is divided along ethnic or religious
social segmentation and democracy to cleavages designing institutions in order
coexist Error! Reference source not to secure the high level of power sharing is
found.. In many divided societies, and essential. However, democratic power
especially post-conflict societies, divisions sharing can take many forms, such as
are so severe that there is very little coalition governments, guaranteed
mobility between social segments. Political representation, different forms of electoral
competition in these societies would only
bolster centrifugal trends, as there is very 130 With the exception of Macedonia, where autonomy does not
little crosscutting. If applied, standard exist as a territorial or personal principle. However, remodelling of
the constitution increased municipal autonomies. Even though the
models of democratic competition would Ohrid agreement introduced some elements of consociationalism,
threaten the very existence of the political institutional design in Macedonia does not possess all the main
system. Consociational democracy is an elements of the model, such as a grand coalition, mutual veto, etc.
131 The term consociational is derived from Latin consociatio – a
alternative to majoritarian decision- close, firm link.
Page 42
systems, federalism, various forms of not found.. However, elite behaviour in

autonomy, etc. Advocates of the consociational societies does not
consociational model assert that a society necessarily follow that premise. In a
can be democratic and have stable divided society, leaders of opposing groups
political institutions in spite of social have strong incentives to use extremist
fragmentation Error! Reference source rhetoric to gain more popular support
not found.. In order to achieve that Error! Reference source not found..
political stability, societies need to be National and religious identities often
organised in a way that would provide have symbolic and emotional meaning and
strong incentives for political leaders to political leaders can appeal to them to
cooperate with their adversaries across mobilise their constituency to gain more
the cleavage. The ways in which political power. By doing this, they
institutions are designed in such a society facilitate the division in the society and
has an important role in accomplishing boost pre-existing centrifugal processes.
that goal. Therefore, political systems in divided
societies should be designed in a way that
CRITICISM OF CONSOCIATIONAL would counterbalance those tendencies,
MODELS promote more cross-cultural cooperation,
There are several critiques that can be and shift from sectarian to more inclusive
made of this model. Firstly, it seems to political discourses Error! Reference
suffer from some theoretical source not found..
inconsistencies. Some critics of Lijphart‘s Another criticism of Lijphart‘s model of
model of consociational democracy point consociationalism is that the Dutch
out that it confuses the solution with the society (which he used as a model for
problem and therefore does not represent consociationalism) was never that deeply
a theory at all Error! Reference source divided and that religious and class
not found.. According to Lijphart, cleavages were actually crosscutting
consociational democracy is defined by a Error! Reference source not found..
grand coalition (cooperation) and a divided In societies that are organised based on
society Error! Reference source not the consociational principle, few
found.. This definition has been criticised incentives exist for cross-cultural
as tautological as it does not represent a cooperation. Political leaders in such a
theory of a cause and effect but a society typically represent only one ethnic
descriptive category Error! Reference or national community rather than the
source not found.. interests of the community as a whole
In addition, it is not clear what the exact Error! Reference source not found.. In
role of the crosscutting cleavages is in many cases, behaviour of political leaders
Lijphart‘s model. He mentions them as is such that they use the consociational
favourable conditions for consociational design of institutions to promote
democracy, which seems to be in contrast secessionism. This is particularly the case
with the essence of consociationalism. for countries where consociationalism is
Where cleavages crosscut to a high combined with ethnofederalism – the
degree, different groups will tend to feel political system where territorial units are
equal and cross pressure between groups intentionally associated with specific
advances moderate attitudes Error! ethnicities132 Error! Reference source
Reference source not found.. not found.. For example, the prime
Given that there is only a little minister of Republika Srpska, one of the
crosscutting in divided societies, entities in Bosnia and Herzegovina, is
consociational democracy relies almost using every available opportunity to
entirely on elite cooperation (―elite cartel‖ question the viability of the state Error!
in Lijphart‘s terminology). The premise is
that elites are committed to maintaining
the system and are aware of the risks of 132However, it is argued that these states are viable as long as they
do not have a core ethnic region – an ethnic region that has
fragmentation Error! Reference source superiority in population.
Page 43
Reference source not found. and openly Serbian or Croat people. This leaves no
suggesting secession of the entity Error! space for those who do not wish to identify
Reference source not found.. at all, or to identify exclusively as a
The behaviour of group leaders is not member of one of these groups, or those
independent from institutional design. It who are not a member of any of the three
has been argued that the way institutions (e.g. Roma), which effectively excludes
have been set up by the Belfast those individuals from participating in
agreement133 entrenches and encourages political life134. In Belgium, where a
divisions in Northern Ireland, and that consociational-federal model has been
peacemaking and normalisation efforts by applied, the three major political parties
NGOs are thwarted by the sectarian have all been divided into separate
consociational institutions Error! unilingual parties where each party has
Reference source not found.. Critics candidates only in their part of the state.
point out that power sharing in Northern This is even the case for parties whose
Ireland fortifies divisions and divides that primary ideology is not, or is not expected
society into rigid and lasting ethnic blocks to be, ethnically or linguistically
which produces permanent instability determined (Greens, Socialists). There are
Error! Reference source not found.. no parties in Belgium that appeal to votes
In some cases, even communicating with across the ethno-linguistic cleavage Error!
the other side can be seen as weakness or Reference source not found..
being disloyal to a community. Therefore, Another negative aspect of the
these leaders often mutually avoid each consociational principle is that it negates
other, creating even more division between or underestimates other identities people
them, as they do not explore the have. It places great weight on an identity
possibilities for mutual collaboration. This that is the most important cause of the
then leads to a self-fulfilling prophecy of division in the society, such as ethnic or
consociationalism. Division and conflict religious identity but neglects the variety
creates more instability and weakening of of other identities, which are present in
the state and leaders then use that every person. A person may consider that
weakness of the state as an excuse to ask their identity as a worker, woman,
for more segmental autonomy. For taxpayer, etc. is more important than
example it has been argued that political their ethnic or religious identity. The
elites in Bosnia and Herzegovina consociational model fails to provide space
constantly encourage insecurity, low-level for people to associate on the basis of
conflict and instability in order to remain these other identities. By failing to
in power (Mujkić, 2010, p.69). recognise this and by leaving little space
In addition, consociational democracy for individual autonomy, consociational
clashes with some democratic principles societies perpetuate existing cleavages by
and is, therefore, not democratic enough. institutionalising them at the political
By emphasising the representation of level Error! Reference source not
groups it hinders individual equality. A found.. A significant number of people in
design that is group-oriented has the Bosnia and Herzegovina did not perceive
consequence of forcing people to themselves as solely a member of Bosniak,
participate in society as a representative Serb, or Croat ethnicity before the war.
of a group, rather than an individual. In a
consociational society, its members often
have the group identity imposed on them
134 The applicants are citizens of Bosnia and Herzegovina who
claimed that according to the constitutions they could not be
even against their desire. The existence of candidates for the Presidency and the House of Peoples of the
these identities is often made into a legal Parliamentary Assembly since these position are reserved for
requirement. For example, in Bosnia and members of Bosniaks, Serbs and Croats (Sejdić and Finci are Roma
and Jewish). The court decided that the applicants‟ continued
Herzegovina, a person can run for the ineligibility to stand for election to the House of Peoples of Bosnia
office as a member of the Bosniak, 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;
133 The agreement that created the Northern Ireland Assembly. Sejdić and Finci v. Bosnia and Herzegovina, 2009.)
Page 44
According to the census that took place in constructive building blocks of democracy
1991 around 260,.000 people, Error! Reference source not found..
representing over 5 per cent of the Consociationalism can even create
population declared themselves as conditions that mitigate tensions so that
Yugoslavs, which was not an ethnic cleavages lose their importance136. In
category Error! Reference source not many societies, especially in post-conflict
found.. ones, people do not wish to participate in
However, after the end of the war and the political life only as individuals; they
signing of the Dayton Peace Agreement actually want to be represented as a
(DPA), these identities became so member of a group. In many cases people
important that they now form the take part in a violent conflict so that their
foundation of the political order in the groups would be recognised as separate
country. This ethnic polarisation cannot entities. Those who see themselves as
only be attributed to the consociational belonging to distinctive groups believe
design of the post-war Bosnia and that these groups have collective interests
Herzegovina Error! Reference source not that need to be protected. In addition,
found.. The mere fact that the war had many of them believe that their individual
been waged between members of different interests can only be protected and
ethnic and religious groups and in the advanced through the collective to which
name of ethnicity and religion contributed they belong.
vastly to this ethnic entrenchment. When answering the criticism about
Constituencies in post-conflict societies segmental autonomy as an incentive for
are, as a rule, more likely to vote for a partition of the state, Lijphart argues that
political party with strong nationalistic this does not represent a serious risk and
agenda than a moderate one that seeks that the same objection could be raised
compromise with former enemies Error! regarding other elements of the model
Reference source not found.. In the 15 Error! Reference source not found..
years of existence of post-Dayton Bosnia However, this argument is problematic
and Herzegovina, several developments in because pointing to potential flaws of
political life became apparent. In all of the other components of the model is not a
elections held so far, ethnic political valid defence of the principle.
parties won vast majorities of votes. In the Lijphart offers a more convincing response
most recent elections (2010), political to the threat of secession: If there were a
parties who are not associated with any strong separatist movement in a country,
particular ethnicity won a meagre 1-2 imposition of a unitary state would not be
percent of votes135. enough to prevent it. Moreover, partition
Another important feature of is not always a bad solution. However,
consociational democracies, segmental when segments are geographically mixed
autonomy, has its drawbacks too. this poses serious problems and can lead
Consociationalism can strengthen to relocation of people and other
segmental cleavages, and, in cases of undesirable consequences.
ethno-federalism, it can create parallel
state structures, which in turn can ALTERNATIVES TO
struggle for independence. Advocates of CONSOCIATIONALISM
the consociational approaches, however, If not consociational
argue that this approach deals with autonomy/federalism, what would be the
cleavages by treating them seriously desirable model for organising institutions
Error! Reference source not found.. By in divided societies?
recognising divisions, this approach aims A model that has consociational elements
to turn segmental cleavages into but does not represent ethno-federalism
and leaves space for crosscutting
135 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 136Advocates of consociationalism argue that this was the case in
2011.) the Netherlands and Austria.
Page 45
cooperation could be a good solution. A signing of the Dayton Peace Agreement,

design that protects the interests of veto powers were used very often to block
different communities but preserves the the functioning of the joint institutions. In
civic nature of the state can be found in order to overcome this situation, the
the Ohrid Agreement137 in Macedonia. It international community provided the
did not create a federal state or introduce High Representative with the power to
a full consociational model of decision- enact and enforce laws otherwise blocked
making. However, it did end the ethnic- by ethnic leaders. Most integrationist
based violence and addressed many of the legislation was introduced by the Office of
grievances of both Albanian and the High Representative138, often with
Macedonian communities by granting the strong opposition from leaders in the
official status for languages spoken by country Error! Reference source not
more than 20 percent of the population found.. Similarly, it has been argued that
and by establishing equitable stability in Northern Ireland depends
representation in the administration and a greatly on external pressure and that
system of double majorities for changes in consociational arrangements are not
most important areas of legislation Error! sufficient Error! Reference source not
Reference source not found.. found..
Lijphart recognised the danger of a What are the possible alternatives to
minority veto and the possibility that it consociationalism that would maintain
could lead to a minority tyranny, but participation of all social segments thus
considered this danger not to be as avoiding shortcomings of a majoritarian
serious at it appears. In his view, the fact system but at the same time promote
that a veto is mutual would individual participation and counter
counterbalance this danger because the centrifugal tendencies? As it was
fear of deadlock would make each previously mentioned, people possess
segment give concessions. In addition, more than one identity and belong to more
the very fact that the veto is available than just one group, even though one or a
would grant a feeling of security and few of those can be of a greater
therefore the veto would not be used often significance to them. A system that
Error! Reference source not found.. provides a space for other identities to
However, this is not always the case. In advance as well would mitigate the
post-conflict societies, one or more limitations of consociationalism and
segments in a country is often not equally create more crosscutting cooperation. In
committed to maintaining the functioning this case, instead of insisting on certain
of the country and avoiding the deadlock. predefined groups (ethnic, religious,
Stability in Bosnia and Herzegovina linguistic etc.), which are the pillars of the
depends, to a large extent, on consociational model, other identities
international military and political could be empowered which would change
pressure, rather than on power-sharing not just the balance but also the
mechanisms Error! Reference source discourse in these societies.
not found.. An example of this is the
power of mutual veto that is reserved for CONCLUSION
representatives of Bosniak, Serb, and I have shown that consociational
Croat people. These veto powers authorize democracy has significant shortcomings
the leaders of these groups to block the as a model and that it is not a desirable
enactment of legislation that they deem to
endanger the interests of their ethnic 138The Office of the High Representative was set up by Annex 10
groups Error! Reference source not of the Dayton Peace Agreement with the mandate to monitor the
found.. In the first few years after 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
137 An agreement between Macedonian and Albanian political legal commitments and the Dayton Peace Agreement, and to
parties signed under the auspices of international mediators in 2001 impose laws as he sees fit if Bosnia and Herzegovina‟s legislative
that ended the ethnic violence in Macedonia. bodies fail to do so.
Page 46
solution for institutional design in post-

conflict 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.
Page 47
BIBILIOGRAPHY
 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. 107-
122). 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), 207-
225. 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-herzegovina-
eu.
Page 48
 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. 123-
138). 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].
Page 49
Page 50
THE STRUCTURAL LIMITATIONS

OF THE EU TO ENGAGE IN
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
INTRODUCTION 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 will not come out of a clash of peace and justice is one of the main
arms but out of justice lived objectives of the EU, one would expect
and done by unarmed nations in the that it would follow a comprehensive
face of odds (Mohandas Gandhi) 139 transitional justice policy. Nevertheless,
despite the fact that the EU undertakes
several transitional justice activities, it
Peace is often considered a simple and lacks such a comprehensive policy. The
clear concept. Nevertheless, its true aim of this paper is to illustrate the
meaning and substance is actually very negative effects of the absence of a clear
complex and the achievement of this policy, and to make several
paramount goal involves the arduous task recommendations that could improve the
of dealing with many actors and a chances of the EU in providing peace and
labyrinth of dilemmas. It is pursued by justice.
individuals, by states, by organisations
and, considering that it is vested in its The following chapter, Chapter II,
founding treaties, it is one of the main discusses the practices the EU undertook
objectives pursued by the European Union with regard to transitional justice, and
(EU). Re-establishing the peace in a argues that the EU lacks a clear
society that is damaged and shattered by transitional justice policy. Chapters III, IV
a history of massive human rights and V explore this matter more in depth,
violations involves the implementation of clarifying that despite the absence of a
transitional justice mechanisms that can clear strategy, the EU has undertaken a
address these violations and perhaps even set of transitional justice activities. Three
prevent the demons of the past from specific areas of activities are identified:
haunting the peaceful progress of the conducting peace-keeping missions,
future. Transitional justice mechanisms supporting the ICTY in providing justice,
can be divided into two groups: retributive and funding transitional justice activities.
justice mechanisms and restorative justice Chapter III discusses to what extent
mechanisms. The mechanisms of the transitional justice strategies are taken
former group consist of judicial into account during the planning and
mechanisms, such as tribunals, with the executing of peace-keeping missions.
backward-looking goal of holding Chapter IV discusses EU‘s policy to
perpetrators accountable for their crimes. support the ICTY in providing justice.
The mechanisms of the latter group Chapter V examines EU‘s approach
consist of non-judicial mechanisms, such towards funding transitional justice
as truth commissions, with the forward- activities. Chapter VI draws several
looking goal of providing restorative analytical conclusions from chapters III,
justice, peace and reconciliation.140 Both IV and V, and presents four
forms of transitional justice mechanisms recommendations that could improve the
come with their own set of dilemmas, and chances of the EU in providing peace and
these raise the question whether justice or justice.
peace should be the main objective in a
society in need of transitional justice THE EUROPEAN UNION, LACKING A
mechanisms. Nevertheless, as the CLEAR TRANSITIONAL JUSTTICE
introductory quote by Mohandas Gandhi POLICY
The EU has undertaken activities
139 The Institute for Energy and Environmental Research involving transitional justice, but lacks a
(2001). http://www.ieer.org/latest/oct2quot.html. (18-11-2011). clear transitional justice policy. The
140 E.E. Stenrud. “New Dilemmas in Transitional Justice: foundational treaties of the EU contain no
Lessons from the Mixed Courts in Sierra Leone and Cambodia”,
Journal of Peace Research, 146 (2009), pp. 5-15.
references to transitional justice as an
Page 52
aspect to be developed within the different democracy and human rights146. The
policies of the EU.141 Nevertheless, the foreign policy of the EU shows three lines
treaties contain several articles that of actions with regard to transitional
provide a legal framework in which the justice; conducting peace-keeping
concept of transitional justice can be missions, applying the ICTY conditionality
situated. Here are three examples: and funding transitional justice activities.
Article 177.2 of the Maastricht Treaty PEACE-KEEPING MISSIONS

specifies that European policy in the area The peace-keeping missions have been
of development cooperation shall carried out within the framework of the
―contribute to the general objective of European Security and Defence Policy
developing and consolidating democracy (ESDP), and are aimed at supporting the
and the rule of law, and to that of creation of democratic police forces with
respecting human rights and fundamental the purpose of re-establishing peace and
freedoms‖.142 stability.147 In earlier days, these
missions had the tendency to prioritise
Article 11.1 of the Treaty is the legal basis public order over the establishment of the
for the Common Foreign and Security rule of law, but justice gradually gained
Policy (CFSP), and states that its more attention amongst the EU
objectives are the safeguarding of common leaders.148 Although lacking clear
values, preserving the peace, developing transitional justice strategies, these
and consolidating democracy and the rule missions have implemented several
of law, and respecting human rights and transitional justice mechanisms,
fundamental freedoms.143 particularly with regard to arresting
suspects who are to be prosecuted by
Article 17.2 of the Treaty describes the international courts.149
content of the CFSP and states that this
includes ―humanitarian and rescue tasks, The implementation of transitional justice
peace-keeping tasks and tasks of combat mechanisms without the express
forces in crisis management, including recognition of transitional justice has
peace-making‖. This article is relevant, made it difficult to obtain optimum results
considering that transitional justice is in efforts to achieve peace and stability 150.
applied to states in crisis or in a process Both the missions EUPOL PROXIMA and
of re-establishing peace.144 EUPAT in the Republic of Macedonia in
the former Yugoslavia, carried out
Furthermore, a general action framework between 2004 and 2006, can serve as
was established, in which the concept of examples. These missions had ―the aim to
transitional justice would presumably be monitor and assess the functioning of the
further developed in its policies towards Macedonian police force in the context of
third countries, such as the CFSP and the rule of law at the level of the Ministry of
development policies.145 In regulation Internal Affairs and at the level of district
1889/2006 of the European Parliament, police‖.151 Their mandate did not mention
transitional justice is explicitly mentioned the implementation of transitional justice
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
141 M. Avello, “Transitional Justice: a European Union, L386 (2006), art. 2.1a iii.
Perspective”, FRIDE, (2007), p. 3. 147 Petersberg Declaration (1992).
142 Consolidated version of the Treaty of the European http://www.weu.int/documents/920619peten.pdf. (18-11-2011).
Union, Official Journal of the European Union, C 321 (2006), art. 148 M. Avello, “European Efforts in Transitional Justice”,
177.2. FRIDE (2008), p. 6.
143 Ibid., art. 11.1. 149 Avello, “Transitional Justice: a European Perspective”,
144 Ibid., art. 17.2. p. 4.
145 Avello, “Transitional Justice: a European Perspective”, 150 Avello, “European Efforts in Transitional Justice”, p. 6.
p. 3. 151 Avello, “European Efforts in Transitional Justice”, p. 6.
Page 53
mechanisms on the ground. The same a fundamental element in the planning of

applied to the EUJUST THEMIS mission the missions, and it requires the tailoring
in Georgia, that was aimed specifically at of transitional justice mechanisms. In
the rule of law, the EULEX KOSOVO order to do this effectively, ―the EU must
mission aimed at assisting the Kosovo generate its own transitional justice
institutions in their progress towards expertise; train its personnel in the area of
sustainability and accountability152, and transitional justice to support future crisis
the EUJUST LEX mission in Iraq, aimed management operations; develop
at addressing ―the urgent needs in the guidelines for ESDP missions consistent
Iraqi criminal justice system through with UN standards in the area of
providing training for high and mid-level transitional justice; and integrate
officials in senior management and transitional justice concerns in the
criminal investigation‖.153 While these mandates of EU Special
missions have not expressly included Representatives‖.157
aspects of transitional justice making it
difficult to obtain optimum results in ICTY CONDITIONALITY
efforts to achieve peace and stability in The Stabilisation and Association Process
practice, they have provided advice and (SAP) for South East Europe of 1999
support for transitional justice contains a set of criteria for EU accession.
strategies.154 It includes, ―inter alia, full cooperation
with the ICTY, respect for human and
The ESDP is supported by a mixture of minority rights, the creation of real
structures for civilian crisis opportunities for the return of refugees
and internally displaced persons, and a
management.155 One of the structures is
visible commitment to regional
the Political and Security Committee
(PSC), a permanent body within the EU. cooperation‖.158 Specifically the ICTY
During a 2006 seminar, the Committee conditionality has been working as a
explicitly addressed the importance of carrot and stick approach towards third
transitional justice in the context of EU‘s countries. The EU has adopted the
crisis management and peace-building strategy to make the start of negotiations
activities. The draft document that conditional on full cooperation with the
emerged from this seminar included the ICTY. Nevertheless, despite the fact that
recommendation to cover transitional ICTY conditionality should be a part of
justice activities in the planning of ESDP EU‘s strategy to bring forth transitional
missions, including criminal prosecution, justice, the EU has placed too much focus
truth commissions, reparation on this element, neglecting to adopt a
broader strategy that would include other
programmes and vetting.156 In the necessary elements of transitional justice,
planning of ESDP missions, emphasis such as truth-seeking and reparations. A
would have to be placed on the exit broader strategy including various forms
strategy and the continuing (peaceful) of transitional justice mechanisms may
situation on the ground after completion induce a more effective result. Prosecuting
of the mission. Providing peace should be war criminals in The Hague is a
fundamental component to provide justice
and reconciliation, but it still remains only
152 Council Join Action 2008/124/CFSP, Official Journal
of the European Union (2008). a component, and not a substitute for
153 Council Joint Action 2005/190/CFSP, Official Journal transitional justice. Nonetheless, the role
of the European Union, L 62 (2005), art. 2.1. of the ICTY should not be underestimated.
154 Avello, “European Efforts in Transitional Justice”, p. 6.
155 K.A. Crossley-Frolick, “The European Union and
The tribunal has not only served as an
Transitional Justice: Human Rights and Post-Conflict instrument to bring justice, but the trials
Reconciliation in Europe and Beyond”, Paper prepared for the
Eleventh Biennial International Conference, European Union
Studies Association (2009), p. 16. 157 Ibid., p. 4.
156 Draft document on “Transitional Justice and ESDP”, 158 I. Rangelov, “EU Conditionality and Transitional
in view of the PSC meeting on 20 June 2006. 10674/06 (2006). Justice in the Former Yugoslavia”, CYELP 2 (2006), p. 366.
Page 54
have also brought much of the truth Union, and treating Serbia as a ‗special
about the wars to the surface. The case‖160. The same would apply to the
tribunal‘s role in bringing forth case of Croatia. In 2003, Croatia applied
reconciliation can thus not be denied, but for full EU membership, and the country
it should be acknowledged that for was considered to join Bulgaria and
reconciliation to ever occur, merely a Romania in the next wave of enlargement,
judicial intervention is a too limited form scheduled for 2007. However, in 2004, the
of transitional justice to bring forth the EU decided that it would initiate accession
desired effect. negotiations on the condition that Ante
Gotovina, the last remaining Croatian
The prospect of having stronger ties with ICTY indictee, would be arrested and send
the EU was the main factor ensuring the to The Hague for prosecution. This clearly
cooperation of the states established on indicated that the EU was determined to
the territory of former Yugoslavia with the apply strict ICTY conditionality for third
ICTY. Former Chief Prosecutor of the states and, from that moment, the role of
ICTY, Carla del Ponte, stated that, ―90% of Chief Prosecutor Carla Del Ponte would
all indictees brought to justice [before the increase in the EU accession processes, as
ICTY] are a direct result of conditionality her assessment would be essential in
applied by the EU‖.159 Without the ICTY determining a state‘s level of compliance.
conditionality and the international Once it became clear that the Prosecutor
pressure, the reluctance of the states was playing an essential role in the
would not have been overcome, and the accession process to the EU, the
ICTY would have been unable to fulfil its cooperation of the states with the ICTY
mandate. In the earlier days of the ICTY, improved. Nevertheless, governments
full cooperation was demanded by the EU. continued to delay the most sensitive
Nevertheless, after continued resistance aspects of cooperation, particularly the
by the states, and with the EU making arrest of high-ranking fugitives and
dilemmatic political decisions, the demand delivering important files.161 Furthermore,
for full cooperation started to become EU leaders strengthened their ties with
diluted. EU leaders did not show a the Prosecutor in order to anticipate her
consistent commitment to apply strict assessments or even influence them. It
conditionality, as other goals were quickly appeared that EU Member States
sometimes prioritised. An illustrative utilised the ICTY conditionality as a policy
example is the case of Serbia, that tool for political purposes rather than to
continuously failed to fully cooperate with press for justice. When the Prosecutor‘s
the ICTY. The EU responded by assessment could serve their goals, the
compromising and softening the EU leaders would utilise it as a political
requirements. It gradually became more tool for pressure on states. When the
apparent that it was not only Serbia who Prosecutor‘s assessment would not serve
would benefit from closer ties with the EU. their goals, the leaders would either ignore
Serbia‘s accession was in the interest of the assessment or interpret it as they
the EU as well, as it was hoping to anchor desired.162 Without the full support of
the state more firmly on the European the EU leaders, the Prosecutor lost some
path. This ambiguous approach to the of her credibility, and so did the tribunal.
resistance of Serbia was detrimental to the After two years of a higher level of state
credibility of the EU. ―Since Kosovo cooperation with the ICTY, the states
independence in February 2008, the EU started to show reluctance and resistance
has come closer than ever to forgetting towards the Tribunal again. The stance of
that impunity for war crimes and genocide EU Member States diverted from the one
is incompatible with the values of the of the Prosecutor. ―Full cooperation with
159 F. Hartmann, “The ICTY and EU Conditionality”, War 160 Ibid., p. 70.
Crimes, Conditionality and EU Integration in the Western Balkans, 161 Ibid., p. 72.
(2009), p. 69. 162 Ibid., p. 72.
Page 55
the ICTY started being redefined as no longer be maintained in light of

‗leading to‘ the arrest of the remaining imminent independence of Kosovo, she
fugitives, including Mladic and Karadzic – altered her previously critical assessment
a significantly lower threshold for on Serbia‘s cooperation with the ICTY,
evaluating Serbia‘s cooperation with after a visit to Belgrade where she pressed
tribunal‖.163 Their deviation from the Prime Minister Kostunica to deliver Mladic
Prosecutor‘s approach to only accept full to The Hague before the end of the year.
cooperation had both negative moral and Her altered assessment after the visit still
practical implications. criticised Serbia for its minimalistic efforts
to capture remaining fugitives, but also
Firstly, the main reason why the EU praised the state for the progress it had
leaders departed from the principle of full made166. The EU leaders considered this
cooperation with the ICTY was not ambiguous assessment as a sufficient
because they believed that full cooperation justification to provide no objection to
was unnecessary. The reason was that offering the prospect of EU membership to
they wanted to stabilise the region and a state that, according to a ruling of the
that the Balkan States would follow the International Court of Justice, was in
EU‘s path.164 Their political agenda violation of the Genocide Convention due
became paramount, instead of the main to its failure to deliver Mladic.167
purpose of the ICTY, namely providing
justice. The Tribunal became rather a Secondly, from a practical perspective, we
political instrument, instead of an can see that departing from the full ICTY
instrument against injustice in the battle conditionality weakened the leverage of
against impunity. The Prosecutor herself the EU on the third states for two reasons.
even participated in the political game, Firstly, it divided the EU Member States,
which can be demonstrated by with some states still urging for full
assessment of the Prosecutor‘s reports cooperation and other states accepting
that are submitted to the UN Security lower standards. The lack of consensus
Council twice a year. These assessments amongst the Member States made it more
illustrate the political struggle that Carla difficult to take a strong stance in foreign
del Ponte was facing, being the Prosecutor policy, and diminished their leverage on
of a ―giant without arms and legs‖ that the third states. Secondly, the continued
needs the cooperation of states in order to offers of compromises took away their
do its work. In her May 2007 assessment, credibility to take a strong stance. States
the Prosecutor heavily criticised the in the region opted for resistance and took
cooperation and commitment of Serbia, advantage of the cracks the ICTY
and clearly urged the EU to utilise its conditionality started to show. The
leverage on Serbia, stating that it was ―the repeated compromises weakened the
sole effective mechanism compelling leverage the EU had on the Balkan States.
Serbia to meet its international
165
obligations‖ . The assessment patently THE FUNDING OF TRANSITIONAL
criticised Serbia for its lack of ―true JUSTICE ACTIVITIES
political will‖, for taking no concrete In 2006, the EU established the successor
measure or action in seeking the arrest of of the European Initiative, the European
Radovan Karadzic, and for providing very Instrument for Democracy and Human
limited cooperation. Nevertheless, her Rights (EIDHR). The EIDHR is ―the
stance would change that same year. concrete expression of the EU's intention
When in October 2007, the Prosecutor to integrate the promotion of democracy
feared that EU‘s pressure on Serbia would and human rights into all of its external
163 Ibid.: 75.

164 Ibid.:74. 166 ICTY Completion Strategy Report of 12 November
165 ICTY Completion Strategy Report of 16 May 2007, 2007, UN Doc. S/2007/663 (2007).
UN Doc. S/2007/283 (2007). 167 Hartmann, “The ICTY and EU Conditionality”, p. 76.
Page 56
policies‖168. ―Its aim is to provide support mechanisms for the legal settlement of
for the promotion of democracy and human rights claims and the assertion
human rights in non-EU countries‖.169 and adjudication of property rights,
The Strategy Paper for 2007-2010 of the established in accordance with
EIDHR included five main objectives international human rights and rule of
related to the promotion of democracy and law standards‖.175 As a successor
human rights, and mentions the programme to the Rapid Reaction
importance of transitional justice. Mechanism, the IfS was initiated in 2007
Objective 2 calls for ―strengthening the and recognises the link between peace-
role of civil society in promoting human building, conflict prevention and crisis
rights and democratic reform, in management. During crises, the IfS
facilitating the peaceful conciliation of provides economic and technical support
group interests and in consolidating to partner countries, and during normal
political participation and circumstances, the IfS concentrates on
representation‖.170 The objective cooperation and capacity building in two
continues, articulating that, ―transitional areas: ―To address global and trans-
justice and reconciliation is recognised as regional threats that can unleash another
helping build consensus on disputed or wave of instability; and to improve state
controversial areas of policy in deeply and non-state actors‘ preparedness to
address pre- and post-crisis
divided societies‖.171 In a separate section
situations‖.176 In January 2008,
of the strategy paper, the issue of children
in armed conflict is discussed, and a clear transitional justice supporters and
link is drawn between disarmament, promoters achieved a triumph, when the
demobilisation and reintegration (DDR) Commission decided to establish a
programmes and transitional justice funding facility of €12 million under the
frameworks, such as promoting redress IfS framework for ad-hoc tribunals and
transitional justice initiatives ―to
and social integration.172 For the period
encourage reconciliation and help build
2007-2013 the EIDHR has a budget of sustainable peace in post crisis
€1.104 billion173, of which €208 million situations‖.177 The funding facility enables
has been allocated for projects under the Commission to rapidly mobilise
Objective 2.174 resources to provide financial or technical
assistance for transitional justice projects.
Another critical EU funding programme The IfS has supported numerous
that supports transitional justice is the transitional justice projects and
Instrument for Stability (IfS), which aims mechanisms, including the ICC, special
to provide technical and financial tribunals and grassroots movement aimed
assistance for ―international criminal at ending impunity.178 In 2007, the
tribunals and ad-hoc national tribunals, Instrument launched the Peace-Building
truth and reconciliation commissions, and Partnership, aimed at supporting NGOs in
―developing early-warning systems,
168 The European Commission (2011a). providing mediation services and
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. (18- 175 Regulation (EC) No 1717/2006 of the European
11-2011). Parliament and of the Council, Official Journal of the European
170 European Instrument for Democracy and Human Union (2006), art. 3.2d.
Rights (EIDHR), Strategy Paper 2007-2010, DG Relex/B/1 JVK 176 Crossley-Frolick, “The European Union and
70618 (2006), p. 8. Transitional Justice: Human Rights and Post-Conflict
171 Ibid. Reconciliation in Europe and Beyond”, 14.
172 Ibid. 177 Press release RAPID, “European Commission
173 The European Commission (2011b). Supports Additional Assistance for Reconciliation of Societies
http://ec.europa.eu/europeaid/how/finance/eidhr_en.htm. (18- Affected by Human Rights Abuses”, IP/08/1057, (2008).
11-2011). 178 Crossley-Frolick, “The European Union and
174 European Instrument for Democracy and Human Transitional Justice: Human Rights and Post-Conflict
Rights (EIDHR), Strategy Paper 2007-2010, p. 13. Reconciliation in Europe and Beyond”, p. 25.
Page 57
spearheading reconciliation processes in the necessary steps to implement

post-conflict situations‖179. transitional justice strategies as an
integral mechanism within the peace-
The EU takes two different stances keeping missions. The absence of express
towards retributive justice and restorative recognition for transitional justice has
justice. With regard to retributive justice, made it difficult to obtain optimum results
the EU applies the ICTY conditionality and in efforts to achieve peace and stability.
funds projects, whereas with restorative This brings forth the first
justice, the EU merely funds projects. The recommendation.
EU has funded several programmes with
the purpose of supporting restorative Recommendation 1: The European Union
justice. The funding facility of €12 million needs to make transitional justice
under the IfS framework is for both strategies as a pivotal integral mechanism
retributive and restorative justice projects. during the planning and execution of
The EU has taken an active stance peace-keeping missions. The tailoring of
towards retributive justice, taking transitional justice to each specific case is
initiative for the implementation of judicial necessary to provide peace and stability.
mechanisms, whereas it has taken a
passive stance towards restorative justice The EU is utilising the ICTY conditionality
activities. The EU‘s approach to as leverage to place influence on third
transitional justice is far more focussed on countries. Nevertheless, despite the fact
retributive justice, with the exclusion of that ICTY conditionality could be a part of
restorative justice, despite the fact that EU‘s strategy to bring forth transitional
both forms of transitional justice justice, the EU has placed too much focus
mechanisms are necessary to achieve on this element. There is broad consensus
peace and stability. that in order for transitional justice to
achieve the desired effect, a combination
CONCLUSION of several transitional justice mechanisms
The European Union is an important actor that complement each other is necessary.
in the field of human rights and The EU has neglected to adopt such a
transitional justice. Although there is no broader strategy that would include other
clear policy on transitional justice, and necessary elements of transitional justice,
even though the foundational treaties such as truth-seeking and reparations.
contain no reference to the concept, the This brings forth the second
treaties do encompass several articles that recommendation.
provide a legal framework in which the
concept of transitional justice could be Recommendation 2: The European Union
situated. More specifically, the foreign needs to adopt a broader foreign strategy
policy of the EU shows three lines of including various forms of transitional
actions with regard to transitional justice: justice mechanisms to induce a more
peace-keeping missions, ICTY effective result in achieving peace and
conditionality and the funding of stability.
transitional justice projects.
The ICTY conditionality played a
In earlier days, the focus in peace-keeping fundamental role in ensuring the
missions was placed on establishing cooperation of states with the ICTY.
public order but this gradually shifted Without it, the ICTY would not have been
towards establishing the rule of law. able to fulfil its mandate. After continued
Despite the fact that the establishment of resistance by the Balkan states, the EU‘s
the rule of law can be a pivotal element in strong position on full cooperation with
establishing peace and implementing the ICTY began to weaken. EU leaders did
transitional justice, the EU did not take not show a consistent commitment to
apply strict conditionality, as other goals
179 Ibid., p. 15.
were sometimes prioritised. Averting from
Page 58
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.
Page 59
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. 5-
15.
Websites:
 The Institute for Energy and Environmental Research (2001).
http://www.ieer.org/latest/oct2quot.html. (18-11-2011).
 The European Commission (2011a).
http://ec.europa.eu/europeaid/what/human-rights/index_en.htm.
(18-11-2011).
 The European Commission (2011b).
http://ec.europa.eu/europeaid/how/finance/eidhr_en.htm. (18-11-
2011).
Page 60
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 Sejdic and Finci v. Bosnia and Herzegovina, Application nos. 27996/06 and 34836/06, Decision of 22 December 2009, ECHR.
181 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5, 213 UNTS
222.
Page 61
INTRODUCTION why the conception of transitional justice
The Statute of the Council of Europe182 from the International Centre for
(Statute) was adopted in London in 1949 Transitional Justice will be used in this
in the aftermath of the Second World War. essay. This conception was inspired by a
Its raison d‘être was to promote broad 1988 decision of the Inter-American Court
cooperation between its member states of Human Rights in the case of Velásquez
and to prevent the atrocities of the Rodríguez v. Honduras. The court decided
previous wars. As it stands in the that it is necessary for transitional
Statute's preamble, the signatory countries:
countries are: “Reaffirming their devotion 1. To take reasonable steps to
to the spiritual and moral values which are prevent human rights violations;
the common heritage of their peoples and 2. To conduct a serious investigation
the true source of individual freedom, of violations when they occur;
political liberty and the rule of law, 3. To impose suitable sanctions on
principles which form the basis of all those responsible for the
genuine democracy”. violations;
4. To ensure reparation for the
In Article 1a Chapter I of the Statute the victims of the violations.
purpose of the organisation is defined:
“The aim of the Council of Europe is to These four points can be translated into
achieve a greater unity between its four more general methods of transitional
members for the purpose of safeguarding justice:
and realising the ideals and principles 1. To conduct constitutional and
which are their common heritage and other reforms of the legal system;
facilitating their economic and social 2. To set up truth commissions;
progress.” 3. To conduct criminal and other
prosecutions;
That shows that the CoE is an 4. To set up victim reparation
international organisation, which programs.
promotes in its member states commonly
shared values, which are human rights, In this paper I will elaborate mainly on
rule of law and democracy. What does this point one preventing human rights
organisation have in common with violations by conducting constitutional
transitional justice? Transitional justice is and other reforms of the legal system and
a broad term183, which is not easy to partly on points three, sanctions, and
define. Transitional justice helps post-war four, reparations. These points are those
or post-authoritative regimes, which where the CoE can contribute mostly to
massively violated human rights to shift to transitional justice.
a democratic society with a rule of law and
human rights standards. The concepts of Despite the complexity, this means that
transitional justice can be seen from transitional justice and the CoE want to
different perspectives – legal, economic, achieve the same goals, establishing a
political, social or cultural. In any case, system of democracy, human rights and
the country‘s policies on how to achieve rule of law. That is where they both
transitional justice have to be judicialised intersect and that explains why the CoE
in order to bring to an end violence and can be a very useful tool for transitional
consolidate peace. I will concentrate on justice. In this essay I will demonstrate
the legal perspective of transitional how the CoE, its bodies and the ECHR
justice, as I think it is the cornerstone and can contribute to these methods of
the platform for other methods. That is transitional justice ultimately leading to
democracy, human rights and rule of law.
182 5 May 1949, ETS No. 001. CoE‘s mechanisms can especially prevent
183 See: Turgis, N., “What is Transitional Justice?” and stop human rights violations, impose
International Journal of Rule of Law, Transitional Justice and
Human Rights, Vol. 1, December 2010, p. 11-17.
suitable sanctions for those responsible
for the violations via the ECHR and to respect some basic principles and to be
ensure reparations for the victims of willing to collaborate with the CoE
violations. This will be demonstrated on towards a common goal. This approach,
the Sejdic and Finci v. Bosnia and that states become members of the CoE
Herzegovina case. I chose this case, as before accepting all the principles, is
BiH is a complex country from the human proven by the number of complaints at
rights perspective. After the fall of the ECHR for violations of the rights of the
Yugoslavia in 1990 and the armed conflict Convention. From the perspective of
of 1992–1995 it started undergoing standard-setting, in my opinion, this
transitional justice processes. At that approach proves to be more effective than
time, the country started to be in the pushing the states to fulfil all the criteria
focus of the CoE, later in 2002 becoming a before applying for membership. The CoE
member of the CoE, which implied works with such mechanisms, such as the
numerous obligations. ECHR, which prove to be effective tools to
make the member states comply with its
MEMBERSHIP IN THE COUNCIL OF standards. The membership in the CoE
EUROPE itself doesn‘t ensure the fulfilment of our
The CoE had to and still has to deal with four transitional justice methods, but it
countries undergoing the process of guarantees the will to work towards
transitional justice. Out of its forty- fulfilling them.
seven184 member states, more than a half
went through a transition of regime after MECHANISMS OF THE COUNCIL OF
1989. The membership in the CoE is EUROPE
voluntary. To become a member, There are different mechanisms in the
conditions of Article 3 Chapter II of the Council of Europe that can help
Statute have to be fulfilled: “Every member transitional justice in its member states. I
of the Council of Europe must accept the will concentrate on the Venice
principles of the rule of law and of the Commission, Committee of Ministers,
enjoyment by all persons within its European Convention on Human Rights
jurisdiction of human rights and and the European Court of Human Rights.
fundamental freedoms, and collaborate I choose these four mechanisms because
sincerely and effectively in the realisation they can best demonstrate how the CoE
of the aim of the Council as specified in could help transitional justice in Bosnia
Chapter I.” That means that to be invited and Herzegovina and also the extent of
to become a member of the CoE, the this essay does not allow elaborating more
candidate states have to accept the on other mechanisms.
principles of the CoE. It goes without
saying that the member states have to THE EUROPEAN COMMISSION FOR
ratify the European Convention on DEMOCRACY THROUGH LAW (VENICE
Human Rights, which enshrines a number COMMISSION)
of fundamental rights and freedoms. The Venice Commission is “the Council of
Furthermore, the member states have to Europe‟s advisory body on constitutional
collaborate to achieve the goals of the matters”.185 It was created in 1990 as the
CoE, democracy, rule of law and human first aid assistance for constitutional
rights. The literal interpretation of this matters in CoE‘s member countries. This
article suggests that the candidates who partial agreement was then enlarged and
want to become members already have to non-members of the CoE can become
accept the principles and they must members (e.g. Tunisia and Mexico in
ensure a certain level of standards. 2010). The Venice Commission is
However when we look at reality, the CoE composed of experts on constitutional
accepts states that have not yet reached
the highest level of standards. It is enough
185
http://www.venice.coe.int/site/main/Presentation_E.
184 As of July 2011. asp. 29 August 2011.
Page 63
matters. Its aim is to spread the core Council of Europe‘s policy, programme of
constitutional values of Europe, activities and the budget.
democracy, rule of law and human rights,
while giving advice about constitutional Concerning the CoE‘s policy, the
matters. Committee adopts recommendations,
declarations, decisions and international
It also gives advise about electoral reforms conventions. It is charged with the
and cooperates with constitutional courts, supervision of the execution of judgments
ombudsmen etc. It played a very of the ECHR in the sphere of both
important role in the transitional justice legislation and practice. This task is
process in BiH. The Venice Commission actually the most important challenge
has been closely following the political and facing the protection of human rights in
legal developments in BiH since 1994. Europe. These instruments (except for
Since then, the Commission has drafted conventions) are not binding, but they
more than one hundred reports and have a political impact. They can create
opinions about the situation in BiH.186 political pressure on countries to behave
Moreover, after Bosnia and Herzegovina in a certain way. Concerning the Sejdic
became a member of the Council of and Finci v. Bosnia and Herzegovina case,
Europe in 2002, BiH was, according to an the Committee of Ministers is applying
opinion187 of the Parliamentary Assembly constant pressure on BiH to bring its
of the Council of Europe, obliged to Constitution and certain electoral laws in
―review within one year, with the compliance with the judgment. In March
assistance of the European Commission 2011 the Committee at its 1108th meeting
for Democracy through Law (Venice adopted a decision where they ―noted with
Commission), the electoral legislation in concern that no consensus has been
the light of Council of Europe standards, reached among different political
and to revise it where necessary‖. BiH was stakeholders to bring the country‘s
urged to adopt a new non-discriminatory Constitution and its electoral legislation in
constitution before October 2010 when line with this judgment and the
general elections took place; however, it Convention‖.189
succeeded in adopting only one
amendment188 of the Constitution. THE EUROPEAN CONVENTION ON
Nonetheless, many opinions of the Venice HUMAN RIGHTS
Commission can serve in the future as a The first international convention signed
source for constitutional and other by the member states in the CoE was the
legislative reforms in BiH. European Convention on Human Rights in
1950. Setting up human rights standards,
THE COMMITTEE OF MINISTERS which are a part of a democratic state, is
The Committee of Ministers is the CoE‘s one of the core objectives of transitional
decision-making body. It is made up of the justice. The Convention, which summoned
ministers of foreign affairs of each the most important civil and political
member state but, most commonly, of human rights actors, contributed highly to
their permanent diplomatic identifying these standards. However, to
representatives in Strasbourg. The have these rights on paper is not
Committee of Ministers decides the sustainable if there is no mechanism of
supervision. The ECHR provides a means
of remedy for victims that suffer from
186
http://www.venice.coe.int/site/dynamics/N_Series_ef violations of human right that are
.asp?L=E&S=1. 29 August 2011. protected by the Convention. The ECHR
187 See Opinion 234 (2002) of the Parliamentary Assembly also opens a way for possible legislative or
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 189
Bosnia-Herzegovina, available at http://www.coe.int/t/dghl/monitoring/execution/Re
www.fride.org/publication/291/leaving-dayton-behind- ports/pendingCases_en.asp?CaseTitleOrNumber=sejdic&StateCo
constitutional-reform-in-bosnia-and-herzegovina. 29 August 2011. de=&SectionCode=.,14.7.2011.
Page 64
constitutional changes, sanctions to

contracting parties and reparations for As mentioned earlier, the Inter-American
victims. Court of Human Rights in the case of
Velásquez Rodríguez v. Honduras
THE EUROPEAN COURT OF HUMAN established a basic transitional justice
RIGHTS approach. This approach was followed by
Based on Articles 19190 and 32.1191 of the the ECHR. That means that the judgment
Convention, the European Court of of the court aims at ensuring that
Human Rights was established. It compensation is paid to the victims of the
oversees the engagements taken by the violation. It can also reverse decisions of
contracting parties and ensures a state courts, discontinue proceedings,
European supervision of human rights. make the state amend their legislation,
Even though in early stages there were alter judicial or administrative practice
problems with ratifications192 and it was etc. The parties to a case must follow the
unclear as to whether individual petitions judgments of the ECHR and take all
were viable, it is now a functioning body necessary measures to comply with them.
that deals with petitions either by member
states or by individuals193 that claim a SEJDIC AND FINCI V. BOSNIA AND
violation of human rights guaranteed by HERZEGOVINA
the Convention. The ECHR decides on the In this present judgment we can see the
admissibility and merits of applications combination of all mechanisms mentioned
and, if necessary, undertakes above (the Venice Commission, Committee
investigation. The success of the ECHR is of Ministers, European Convention on
such that it is overwhelmed by the Human Rights and the European Court of
number of petitions, which resulted in Human Rights) engaged together to help a
adopting Protocol 14194 that was ratified country undergoing transitional justice
by all member states on 1 June 2010, processes in pursuing the objectives of
which reformed the ECHR. However the human rights, democracy and rule of law.
Protocol proved to be insufficient and the
reform process is still ongoing in the The applications against Bosnia and
discussions of the Committee of Ministers. Herzegovina by Mr. Dervo Sejdic and Mr.
Jakob Finci, citizens of Bosnia and
Herzegovina, were lodged with the
190 Article 19 – Establishment of the Court – To ensure European Court of Human Rights in July
the observance of the engagements undertaken by the High
Contracting Parties in the Convention and the Protocols thereto, and August 2006 and the Grand Chamber
there shall be set up a European Court of Human Rights, decided in December 2009. The applicants
hereinafter referred to as “the Court”. It shall function on a complained that they were ineligible to
permanent basis.
191 Article 32 – Jurisdiction of the Court 1 – The stand for election to the House of Peoples
jurisdiction of the Court shall extend to all matters concerning the and the Presidency of Bosnia and
interpretation and application of the Convention and the Protocols Herzegovina because of their Roma and
thereto which are referred to it as provided in Articles 33, 34, 46
and 47. Jewish origin respectively. They invoked
192 Articles 3195 (prohibition of inhuman and
http://conventions.coe.int/treaty/Commun/ChercheS degrading treatment), 13196 (right to an
ig.asp?NT=005&CM=&DF=&CL=ENG, 29 August 2011.
193 Article 33 – Inter-State Cases – Any High Contracting
effective remedy) and 14197 (prohibition of
Party may refer to the Court any alleged breach of the provisions
of the Convention and the Protocols thereto by another High
Contracting Party. 195 Article 3 – Prohibition of Torture – No one shall be
Article 34 – Individual Applications – The Court may subjected to torture or to inhuman or degrading treatment or
receive applications from any person, non governmental punishment.
organisation or group of individuals claiming to be the victim of a 196 Article 13 – Right to an Effective Remedy – Everyone
violation by one of the High Contracting Parties of the rights set whose rights and freedoms as set forth in this Convention are
forth in the Convention or the Protocols thereto. The High violated shall have an effective remedy before a national authority
Contracting Parties undertake not to hinder in any way the notwithstanding that the violation has been committed by persons
effective exercise of this right. acting in an official capacity.
194 197 Article 14 – Prohibition of Discrimination – The
http://conventions.coe.int/Treaty/EN/Treaties/Html enjoyment of the rights and freedoms set forth in this Convention
/194.htm, 29 August 2011. shall be secured without discrimination on any ground such as sex,
Page 65
discrimination) of the Convention and a process implementing mechanisms of

Article 3198 of Protocol No. 1 (right to free transitional justice.
elections) and Article 1199 of Protocol No.
12 (general prohibition of The Constitution differentiated between
discrimination)200 to the Convention. The the ―constituent peoples‖ and others
Venice Commission was authorised to (minorities and non-affiliated people). As
intervene as a third party in this case. For the judgment remarks, there is no
the purpose of this essay I will use just official/objective classification as to how
the main argumentation of the ECHR as it people‘s ethnicity is determined. The
applies to both applications. selection is based on a self-classification.
Based on their ethnicity, the people are
The applicants both held very prominent elected to these state functions. These
public positions in the country. Since they specific provisions were adopted because
do not declare affiliations with any of the of the fragile after-war situation, which
―constituent peoples‖ (they consider had the objective of restoring stability
themselves to be of Roma and Jewish between these three ethnicities. But the
origin respectively), according to Chapters other ethnic groups, such as Romas or
IV and V of the Constitution of Bosnia and Jews, were set aside. The peace-makers,
Herzegovina (the Constitution), they are while creating the Constitution, were
ineligible to stand for election to the aware of the possibility of a violation with
House of Peoples (the second chamber of the Convention, that is why Article II § 2
the State parliament) and the Presidency of the Constitution was inserted: ―The
(the collective Head of State). rights and freedoms set forth in the
European Convention for the Protection of
The Dayton Peace Agreement put an end Human Rights and Fundamental
to a bloody international armed conflict Freedoms and its Protocols shall apply
that took place between 1992-1995 in directly in Bosnia and Herzegovina. These
Bosnia and Herzegovina between shall have priority over all other law.‖ This
Bosniacs, Serbs and Croats. The was however contested twice201 by the
Constitution was an annex to the peace Constitutional Court of Bosnia and
agreement, which means that it was not Herzegovina (Constitutional Court), but
adopted by the BiH‘s Parliamentary claimed inadmissible. The third and last
Assembly, however, the Parliamentary case202 was brought before the
Assembly was given the powers to amend Constitutional Court in 2006. The claim
this Constitution. After the Dayton Peace was refused on merits because the Court
Agreement the country started to undergo of BiH stated that the Constitution and
Election Law could be still justified
because its goal was to preserve peace in
race, colour, language, religion, political or other opinion, national Bosnia and Herzegovina by strengthening
or social origin, association with a national minority, property, birth the position of the three constituent
or other status.
198 Article 3 Protocol No. 1 – Right to Free Elections – peoples with the help of this exclusive
The High Contracting Parties undertake to hold free elections at power-sharing arrangement. The
reasonable intervals by secret ballot, under conditions, which will restrictions are still ―proportionate to the
ensure the free expression of the opinion of the people in the
choice of the legislature.
objectives of general community in terms
199 Article 1 Protocol No. 12 – General Prohibition of of preservation of the established peace,
Discrimination – 1 The enjoyment of any right set forth by law continuation of dialogue, and
shall be secured without discrimination on any ground such as sex, consequently creation of conditions for
race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property, birth amending the mentioned provisions of the
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 201 Decision of the Constitutional Court of BiH U 5/04,
of BiH does not fulfil the criteria of a legislative body thus does 27 January 2006 and U 13/05, 26 June 2006.
not fall in the scope of Art 3 Protocol No. 1 in conjunction with 202 Decision of the Constitutional Court of BiH AP-
Art 14 of the Convention. 2678/06, 29 September 2006.
Page 66
Constitution of Bosnia and Herzegovina justified. In paragraph 47 of the judgment

and Election Law.‖203 it argues that significant, positive changes
have taken place in BiH since the Dayton
The Constitutional Court of BiH claims agreement. BiH joined NATO‘s Partnership
that, even more than 10 years after the for Peace in 2006. In 2008 it signed and
Dayton agreement, the circumstances did ratified the Stabilisation and Association
not change to such an extent that would Agreement with the European Union. In
provide for delegitimising the restrictions March 2009 it successfully amended the
vested in the Constitution. This argument State Constitution for the first time, and it
was also used by Bosnia and Herzegovina was recently been elected a member of the
in the Sejdic and Finci case, arguing that United Nations Security Council for a two-
the time is not yet ripe to adopt majority- year term beginning on 1 January 2010.
rules changes. The second argument used in paragraph
48 of the judgment was also used in the
The Venice Commission expressed its amicus curiae brief by the Venice
opinion on the legitimacy on the Dayton Commission. In paragraph 48 the ECHR
agreement and BiH‘s Constitution: states:
“In addition, while the Court agrees with
“In the present case, the distribution of the Government that there is no
posts in the State organs between the requirement under the Convention to
constituent peoples was a central element abandon totally the power-sharing
of the Dayton Agreement making peace in mechanisms peculiar to Bosnia and
BiH possible. In such a context, it is Herzegovina and that the time may still not
difficult to deny legitimacy to norms that be ripe for a political system which would
may be problematic from the point of view be a simple reflection of majority rule, the
of non-discrimination but necessary to Opinions of the Venice Commission (see
achieve peace and stability and to avoid paragraph 22 above) clearly demonstrate
further loss of human lives. The inclusion of that there exist mechanisms of power-
such rules in the text of the Constitution at sharing which do not automatically lead to
that time therefore does not deserve the total exclusion of representatives of the
criticism, even though they run counter to other communities…'”205
the general thrust of the Constitution The ECHR identified with many of the
aiming at preventing discrimination.‖204 Venice Commission‘s opinions, showing
that it doesn‘t want BiH to totally abandon
The Venice Commission admits that, at its ethnic specificity rules and switch to
the time of Dayton agreement, such majority rule. The ECHR only states that
discriminatory provisions were justified. there are other non-discriminatory ways of
The question now is, however, are the power-sharing even in such a complex
discriminatory Constitution and electoral country as BiH. The Venice Commission,
law provisions still objectively and in its amicus curiae brief, has presented a
reasonably justified after more than 10 number of arguments as to why the
years of peace? Are the special conditions present provisions are not only
of transition in the country still discriminatory but prove to be inefficient
applicable? and contra-productive for the country
The ECHR uses three arguments as to itself because it can never form a strong
why these discriminatory provisions are government. Moreover, the complexity of
no longer objectively and reasonably the Constitution is a tool for extremist
parties to maintain the post-war status
203 Ibid., p. 22.

204 Opinion adopted by the Venice Commission at its 62 nd 205 Opinion adopted by the Venice Commission at its 76 th
plenary session (Venice, 11-12 March 2005) on the Constitutional Plenary Session (Venice, 17-18 October 2008) AMICUS CURIAE
Situation in Bosnia and Herzegovina and the Powers of the High BRIEF in the Cases of Sejdić and Finci v. Bosnia and Herzegovina,
Representative CDL-AD(2005)004, paragraph 74. no. 483/2008, CDL-AD(2008)027, (Applications no. 27996/06
http://www.venice.coe.int/docs/2005/CDL-AD(2005)004-e.asp, and 34836/06), http://www.venice.coe.int/docs/2008/CDL-
29 August 2011. AD(2008)027-e.pdf.
Page 67
quo. As a result, ―Dayton‘s constitutional because the country has made significant
framework failed to redress the causes of progress since the Dayton agreement.
war or to create an efficient state trusted In the partly concurring and partly
by all constituent peoples‖.206 dissenting opinion of the judgment Judge
Mijovic (joined by Judge Hajiyev) raised
Furthermore the Venice Commission says the question of whether Bosnia and
in its opinion: Herzegovina is ready for such changes
―On the contrary, the inclusion of third and argued that that is not the situation.
persons might help to overcome the He asked himself, ―is it up to the
stalemate in Bosnia and Herzegovina. The European Court of Human Rights to
long time that has elapsed since the determine when the time for change has
elaboration of the Dayton Peace Treaty arrived?‖ He suggested that the Court had
proves that the solution found in 1995 does gone too far. Moreover, he cited and
not really help to overcome the problems in identified himself with Judge Feldman of
Bosnia and Herzegovina. It is not the Bosnia and Herzegovina
proportionate to nullify rights guaranteed in Constitutional Court in his concurring
the Convention in order to preserve a opinion, ―...[I regard] the justification as
constitutional structure that has not helped being temporary rather than permanent,
to acquire the desired results within a ...but the time has not yet arrived when
period of about 13 years”.207 the State will have completed its
The Venice Commission claims that the transition away from the special needs
Constitution failed to redress the ethnic which dictated the unusual architecture
problems in BiH that led to the war and of the state under the Dayton Agreement
therefore there is no sense in preserving and the Constitution of Bosnia and
the discriminatory provisions. Herzegovina‖.209
Lastly, the ECHR argues in paragraph 49 In another dissenting opinion of this
of the Decision that the membership of judgment Judge Bonello argued that the
Bosnia and Herzegovina in the Council of ECHR is not apt to decide when the time
Europe in 2002 and ratification of the is ripe. ―In traumatic revolutionary events,
Convention and Protocols, even Protocol it is not for the Court to establish, by a
12 without reservations, obliged the state process of divination, when the transitional
to meet Council‘s standards. “Likewise, by period is over, or when a state of national
ratifying a Stabilisation and Association emergency is past and everything is now
Agreement with the European Union in business as usual. I doubt that the Court is
2008, the respondent State committed itself better placed than the national authorities
to „amend[ing] electoral legislation to assess the point in time when previous
regarding members of the Bosnia and fractures consolidate, when historical
Herzegovina Presidency and House of resentments quell and when generational
Peoples delegates to ensure full compliance discords harmonise”.
with the European Convention on Human
Rights and the Council of Europe post- CONCLUSION
accession commitments‟ within one to two The Council of Europe has different
years...‖208 mechanisms that can help its member
The most important argument was that states, which are undergoing the
discriminatory provisions could not even transitional justice processes, the first one
be objectively or reasonably justified 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 209 See: Concurring Opinion of Judge Feldman to the
Commission, para. 33. Decision of the Constitutional Court of BiH AP-2678/06, 29
208 http://eudo- September
citizenship.eu/caselawDB/docs/ECHR%20Sejdic%20and%20Fin 2006, http://www.ustavnisud.ba/eng/odluke/povuci_pdf.php?pid
ci%20v.%20Bosnia.pdf, para. 49. =67930,29 August 2011.
Page 68
the mechanisms of Council of Europe and changes to which it was obliged by its
the Convention can contribute to targeting membership in the Council of Europe and
human rights violations and finding the Stabilisation and Association
solutions for transitional countries in Agreement with the EU. The ECHR stated
Europe. The Convention and the Protocols that the special circumstances that led to
are the key instruments that were put in the provisions of the Constitution were not
place on the platform of the Council of anymore objectively or reasonably
Europe. Ratifying the Convention and justified, on the contrary these provisions
Protocols helps to establish a certain were endorsing ethnic and political
standard of human rights protection, divisions. Sanctions were imposed on
democracy and rule of law. The ECHR, as Bosnia and Herzegovina to ensure
the supervising body, makes this whole reparations for the victims of the
convention system effective. In the Sejdic violations. The Venice Commission
and Finci case the ECHR identified contributed to making suggestions as to
discriminatory provisions in the how to make the constitution and the
Constitution of BiH and in the electoral legal system comply with human rights,
code that caused human right violations rule of law and democracy standards. The
(violations of the Convention and Committee of Ministers is still applying
Protocols). The responsible party for the political pressure on BiH to comply with
violations was the state of Bosnia and these obligations.
Herzegovina because it was capable of
undertaking constitutional and electoral
This case is controversial and we can a debate on a political level about
disagree with its merits, however, it transitional justice.
cannot be doubted that the Council of However, not even the CoE and the ECHR
Europe is a valuable tool to identify key are almighty; it is up to BiH to make an
issues related to transitional justice, effort and to prove their political will. The
especially preventing and stopping human Sejdic and Finci case is still high on the
rights violations. CoE can, with the help of political agenda of BiH and its execution is
its mechanisms, make suggestions of one of the priorities of the country.
constitutional and other reforms of the Bosnian authorities have set up a task
legal system, impose suitable sanctions force to execute the judgment; however,
for those responsible for violations and no changes were achieved before the
ensure reparations for the victims of October 2010 general elections. Now, as
violations. The CoE and the ECHR can there was no government formed after the
raise awareness about human rights, rule elections on the state level, there are still
of law and democracy issues and can start no results as to amendments of the
constitution and the electoral laws.
Page 69
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-constitutional-
reform-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, 11-
12 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, 17-
18 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)027-
e.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://eudo-
citizenship.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
Page 71
Page 72
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 peace-
building 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 justice level, which differ by the cultural

The problem of transitional justice, and historical backgrounds of the countries
described as a combination of historical, in transition. G. Kasapas points out these
constitutional, administrative and, most methods of conduct as the elements of
significantly, criminal and restorative restorative justice213 in times of transition:
justice, emerged during the early 1980s as trials (judicial measures), “national
a result of Latin American transitions. The amnesias”214 and truth commissions.215
debate concentrated on ―punishment and The main dilemma of Eastern European
impunity‖ matters and remained open states in transition refers to moral and
during the East and Central European historical aspects of the judicial
transition around 1989 and 1990. The mechanisms and, as a consequence, the
issue is whether the state has a legal or conduct of criminal trials to evaluate the
moral obligation to prosecute and punish former regime‟s actions (for instance
perpetrators involved in the ancien régime Poland, Czech Republic, Hungary, reunified
structures. Nonetheless, it is undisputable Germany). That is why state-judicial
that transitional justice cannot be seen bodies in those states (especially
only as a response to “systematic and constitutional courts, but also supreme
widespread violation of human rights” 210, courts and others) played significant roles
since the second aim of transitional policy in determining the legal response to past
is to promote and re-establish (in some abuses and the reestablishment of the rule
cases – establish and build-up) a rule of of law by setting out clear principles for
law system composed by and connected to transitional justice and its measures, such
democratic values.211 as: trials (the question of possibility of ex
Moreover there is, or at least should be, a post facto punishment), lustration and
strict link between transitional justice others.
mechanisms and strengthening the rule of
law and the democratisation process. This TRANSITIONAL (CRIMINAL) JUSTICE
statement is shared by the UN authorities AND THE RULE OF LAW
who suggest a comprehensive approach to The transitional justice dilemmas are
the notion of transitional justice including troublesome for every society in the
not only truth and reparations programmes process of transition. That is why the
but also the “preservation of peace and the question of application of proper measures
building of democracy and the rule of – judicial and non-judicial – to deal with
law”. 212 Nevertheless, it is still an ongoing the near past and to establish a truth-
discourse as to type of transitional justice seeking process is primary. However, it
measures should be adopted to deal with cannot be done satisfactorily without
the past and to (re)integrate divided post- considering a holistic model of a national
conflict (or post-transitional) societies. judicial and administrative system,
We can observe at least three ways of including full implementation of human
dealing with past evils on the criminal rights standards (for minorities,
vulnerable groups) combined with the
210 See: International Centre for Transitional Justice, “What is increasing capacity of state institutions.
transitional justice?”, available at Criminal justice mechanisms (trials) can
http://ictj.org/sites/default/files/ICTJ-Global-Transitional-
Justice-2009-English.pdf (accessed 25 August 2011).
definitely be seen as a contribution to the
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 213 G. Kasapas, “An Introduction to the Concept of Transitional
reconciliation in order to promote a transition toward the Justice: Western Balkans and EU Conditionality”, UNISCI
consolidation of peace, the guarantee of stability, the reinforcement Discussion Papers, No 18, Octubre/October 2008, 64.
of democracy and the rule of law and reconciliation”. N. Turgis, 214 The concept of “not-talking-about-the-past” can be attributed
“What is Transitional Justice?”, International Journal of to Spain after transition from the authoritarian system to
International of Rule of Law, Transitional Justice and Human democracy (1975-1982).
Rights, vol. 1, December 2010, 14-15. 215 Most of them were established outside Europe, for example:
212 Report of the Secretary-General, The Rule of Law and Argentina, Bolivia, Chile, Haiti, Honduras, Sierra Leone, South
Transitional Justice in Conflict and Post-Conflict Societies, United Africa etc. The most significant attempts to create truth (and
Nations Security Council, UN Doc S/2004/616, 23 August 2004, reconciliation) commissions in Europe come from the former
p. 9, para. 25. Yugoslavia.
Page 74
rule of law and as support for the concerning the role of law in society
abovementioned goals of transition. R. during the democratisation of the state.
Teitel argues that transitional criminal Moreover it highlights that, without
measures ―instantiate and reinforce adopting adequate transitional justice
normative change‖, in other words, they mechanisms, society cannot go through
are intended to draw a line between a the hard process of transition that
―liberal and illiberal state‖ or the consequently leads to ongoing social and
―successor and former‖ regime.216 political tensions within the nation and, in
Nevertheless, there is still the risk of addition, undermines the process of
overusing criminal law mechanisms by democratisation.
politicising them in order to fulfil ―the
victors‘ justice‖ principles and, by doing THE POLISH EXPERIENCE: 2007
so, weakening the fragile democracy.217 POLISH SUPREME COURT DECISION
It is worth mentioning only a few On 13 July 2007 the prosecutor of the
European examples in this particular area Institute of National Remembrance 219
such as: Hungarian Volley Cases (Instytut Pamięci Narodowej) submitted an
(possibility of prosecution and application to prosecute a retired judge of
punishment of the persons acting against the Polish Supreme Court for committing
the protesting masses in 1956) and a communist crime against Polish
German trials in relation to the acts of citizens (deprivation of liberty - unlawful
state officials under the former GDR arrest and detention) by infringing their
regime with the most famous being the freedom from retroactive criminal
―Berlin Wall Shooters/Border Guards legislation. The decision was based on the
Case(s) - Mauerschützenprozesse‖, which decrees of Martial Law enacted in 1981.
ended before the European Court of The validity and content of that act will be
Human Rights in 2001. In these cases the presented in this paper. The Supreme
domestic judicial systems treated past Court, finding the application admissible,
abuses by presenting different approaches stated that due to the lack of: (I)
while evaluating the former regimes‘ constitutional provisions of the non-
actions, which will be examined later in retroactivity principle, (II) the mechanisms
this paper. of control of the legality of the statutes
Bearing in mind these facts I will with constitution and international law,
emphasise the legal reasoning of the and (III) the place of international law in
Polish Supreme Court (Sąd Najwyższy) the domestic legal system, domestic
Decision of 20 December 2007218 barring courts were exempted from compliance
the criminal responsibility of a former with the lex retro non agit principle. It is
state official. This particular case was to be emphasised that Poland220, since
rather incidental and remained on the 1977, has been a party to the
margin of public attention. Nevertheless, it
displays the judicial view (with anti-
judicial reasoning) of the pivotal problem 219 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
216 R. G. Teitel, Transitional Justice, (Oxford: Oxford University the post-war time, and to memorialise the national tradition of
Press, 2001), pp. 66-67. fighting against Nazis and Communists, and the Polish efforts to
217 This argument is commonly used by the supporters of amnesty gain an independent state. The second main obligation of that
programmes mainly in Latin American transitions. Amnesties institution is to fulfil the duty to prosecute crimes against peace,
enabled the start of the process of liberalisation and humanity and war crimes (mainly including Communist and Nazi
democratisation, like in Uruguay or El Salvador. See e.g. L. Huyse, crimes) and the need for compensation for the damages suffered
“Justice after transition: on the choices successor elites make in by people harmed by the repressive actions taken by the state
dealing with past”, Law and Social Inquiry, vol. 20, No 1, winter (directly or indirectly). The mandate of the institute covers all
1995. It should be noted that amnesties are also seen not as an crimes commissioned by state officials against the Polish Nation
instrument of justice, but rather as one, which sacrifices justice in from 17 September 1939 till 31 December 1989. This organisation
order to restore and maintain peace and put an end to the conflict. consists of four departments, one of which is the Special
See: C. T. Call, “Is Transitional Justice Really Just?”, The Brown Commission for the Prosecution of Crimes against the Polish
Journal of World Affairs, vol. XI, Summer 2004, 103. Nation.
218 Polish Supreme Court, Decision No. I KZP 37/07, 20 220 The official name of the state was Peoples Republic of Poland
December 2007. (Polska Rzeczpospolita Ludowa).
Page 75
International Covenant on Civil and fact, in breach of the Constitution of the

Political Rights (ICCPR). Peoples Republic of Poland of 1952 as,
This particular decision reopened during the session of the parliament
discussion of the prosecution of former (which was held in December 1981),
state officials who had acted against neither the state council nor any other
members of the anti-communist organisation was entitled to pass any
opposition. Moreover, it put in spotlight legislative act. The second issue
significant issues to be resolved beyond concerned the moment that the Martial
the scope of the analysed decision but still Law decrees entered into force and, as a
within the scope of researchers of Polish result, the legal ground for the
international and criminal law science prosecution of the criminal acts under
such as: this particular decree regime. The Martial
Legitimacy and legacy of state officials‘ Law decrees were promulgated in (The
actions under the domestic law of the Official) Journal of Laws (Dziennik Ustaw)
former regime; dated 14 December, effective on the day of
Recognition of human rights standards enactment, 12 December223 and
and international law principles in the announced on public television on 13
time of the non-democratic state and in December, with no legal implications.
the time of transition; However, the actual date of the (The
Place of public international law in the Official) Journal of Laws availability was
Polish domestic system before and after 18/19 December due to the length of the
transition; printing and distribution process.224
The continuity of the domestic legal Eugeniusz R. and Henryk B. were
system after the transformation of the detained and, later on, arrested due to the
political and economic system. acts they had committed on 12 December,
which at that time, were not unlawful in
HISTORICAL BACKGROUND – THE the Polish legal system. Moreover Poland,
GENERAL OVERVIEW OF THE since 1977, was the party to ICCPR, which
ANALYSED CASE guarantees in Article 9 the right to liberty
The question at stake concerned the
legality of the institution of criminal and security of the person.225
proceedings against a retired judge of the Furthermore, Article 15 states that ―no
Polish Supreme Court (Zdzisław B.) who one shall be held guilty of any criminal
had adjudicated during the enforcement of offence on account of any act or omission
the decrees of Martial Law in December which did not constitute a criminal
1981 in Poland. The prosecutor indicted offence, under national or international
Zdzisław B. for the unlawful deprivation of law, at the time it was committed‖, which
the liberty of Polish citizens (Eugeniusz R. is a non-derogable law (Article 4). There
and Henryk B.) who belonged to the were 1685 cases of individuals being sent
national opposition movement ―Solidarity‖
(―Solidarność‖). To have a broad which erupted in Poland in 1981. It was few months after Lech
perspective on the case, it is necessary to Wałęsa signed, on the behalf of democratic opposition,
present a general overview of the historical “Solidarity” (“Solidarność”), a trade union with around 10 millions
members and supporters, the August Agreements with state
facts of that particular era of Polish authorities in 1980. (The 1980/1981 period is known as a “Carnival
history. of Solidarity”). The second threat concerned the possibility of a
On the night of 12 and 13 December 1981 military intervention by Soviet Union army forces. Whether the
the State Council (Rada Państwa) threat was real or just hypothetical is still an unanswered question.
223 This regulation is internally inconsistent and has nothing in
proclaimed Martial Law in Poland221 by common with the principles of the theory of law and legal logic.
224 The printing of (The Official) Journal of Laws started on 17
enacting special decrees.222 This was, in 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.
221 Martial law (1981-1983) is seen by Poles as comparable to the 225 According to article 4 of the ICCPR it is possible to derogate
Hungarian (1956) or Czech (1968 Prague Spring) experiences. this right under special procedure in a time of emergency....
222 Martial Law was proclaimed in response to the huge political Whether situation in Poland met these requirements is beyond the
crisis (officially to maintain peace and security in the country), scope of this paper.
Page 76
to prison under Martial Law decree community) and international public law
regulations, which violated the lex retro in general, and coincidentally justifying
non agit principle enshrined in the above the former regime use of the terms and
cited provision of the covenant.226 notions of the democratic, rule of law
As a result two important issues were state. J. Zajadło adds that such reasoning
supposed to be resolved by the 2007 would be (or might have been) accepted in
Polish Supreme Court decision: (I) the the 1980s, but almost 20 years after the
legacy of the adjudication in the analysed fall of the communist regime, it just
period and (II) the adjudication without presented a lack of sensitivity to the
legal ground, whether it constituted a change in the philosophy of the law,
crime committed by the adjudicating especially during transitional period.229 It
judges. was also claimed that the attitude
presented in the decision might have
jeopardised the full implementation of the
THE REASONING OF THE POLISH international legal order into the domestic
SUPREME COURT system.
The court‘s decision, which barred Without going into details of the motives
criminal prosecution of the former of such reasoning, it is perfectly clear that
regime‘s judges, was based on the such decision definitely did not accelerate
following assumptions: the Rechtsstaat-building process. It is
1952 State Constitution did not contain even more perceptible in the context of the
(expressis verbis) a prohibition of the experiences of other Central and East
creation of retroactive provisions; European states, which took different
1952 State Constitution did not include approaches (although not homogeneous)
the mechanisms of control of legality of to cases concerning the tension between
statutes and other acts with domestic and former regime abuses and respect for
international law;227 international human rights law, which is a
As the 1952 Constitution did not core part of the rule of law and the
pronounce on the place of public democratic state.
international law in the Polish legal
system, retroactive penal provisions of the THE CENTRAL AND EASTERN
Martial Law decrees did not infringe upon EUROPEAN EXPERIENCE WITH
the domestic legal system even though CRIMINAL JUSTICE IN THE TIME OF
ICCPR (Article 15 read in conjunction with TRANSITION – SELECTED CASES
Article 4) stated the contrary. In the following section, I will examine the
This reasoning was met with experiences of the two Central and
overwhelming criticism from Polish Eastern European states facing political
scholars.228 It was described as an transformation similar to Poland‘s and its
example of extreme legal positivism, which legal implications, based on an evaluation
puts aside the whole branch of of the former regimes‘ abuses in Hungary
international human rights law (universal and Germany (after reunification). The
and, at the time of the presented events, fulfilment of the idea of criminal justice
generally accepted by the international was confronted in both situations with the
issue of application of international law
(human rights) standards in the trials
226 P. Daranowski, “The Rule of (International) Law in Poland – concerning the recent past.
the Sign of Growing Democracy”, available at
http://www.grocjusz.edu.pl/Materials/pd_chile_eng.pdf
(accessed 25 August 2011). Hungarian VOLLEY CASES
227 The Constitutional Tribunal was established by the statute of
The Hungarian state, after transition from
1985 (as a consequence of the constitutional amendment of 1982)
and enforced on 1 January 1986 approximately four years after the the authoritarian system to democracy,
events took place. faced the legal and political dilemma of
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 25 229 Zajadło, “5 minut antyfilozofii antyprawa”, available at
August 2011). http://www.rpo.gov.pl/pliki/12100650360.pdf.
Page 77
prosecuting and punishing people can only proceed according to the law in
responsible for the crimes committed force at the time of the commission of the
during the Communist era, especially crime‖. The court identified the principle
during the 1956 revolution. The Volley of the ―security of law‖, which has to be
Cases refer to the crimes committed by seen as ―protection of rights previously
state officials (army) against unarmed, conferred‖ and, in addition, found that
peacefully protesting civilians during the ―unjust outcome of legal relations does not
Hungarian revolution. Criminal justice constitute an argument against the
mechanisms adopted by the Hungarian principle of the security of law‖.
authorities were concerned with the The parliament adopted a new law
possibility of the criminal responsibility of concerning aforementioned matters,
people involved in the alleged breach of which covered and penalised common
Common Article 3 of the Geneva crimes as well as international crimes
Conventions. (war crimes; crimes against humanity).
At the beginning of 1990s, the political According to international law,
pressure to establish trials against the international crimes are exempted from
perpetrators from the 1956 events was the statute of limitation (UN 1968
rather high, mainly due to the fact that Convention on the Non-Applicability of
the Hungarian parliament was composed Statutory Limitations to War Crimes and
of mostly right-wing parties. Moreover Crimes Against Humanity233; customary
some of the deputies were anti-communist law) so people responsible for committing
dissidents. As a result, the parliament such crimes could be prosecuted by
adopted a new law lifting the statute of Hungarian judicial authorities. The new
limitations for relevant crimes of murder, statute was referred to the Constitutional
treason and aggravated assault. Under the Court, which reiterated its first
legal regime in force at the time of the judgement, with exception of the
commission of the Volley Acts, the provisions penalising international crimes.
limitation for murder was 20 years, for It has to be mentioned that this
high treason was 15 years and for judgement was not free of controversies
aggravated assault was 8 years. and it opened a serious constitutional
The new statute230 was extremely debate among Hungarian scholars.234 T.
controversial because, by lifting the Hoffmann reminds that Hungarian courts
statute of limitations, it violated a core were seriously divided, mainly with
principle of the rule of law and, in reference to the possible existence of the
particular, of criminal law: nullum crimen non-international armed conflict and the
sine lege and the value of non- applicability of international customary
retroactivity. Immediately after its law to criminal proceedings235 from 23
adoption it was referred by the state October to 4 November 1956, before the
President to the Constitutional Court231, Soviet military intervention took place. So
which found the statute only a few trials preceded236. However,
unconstitutional. 232 The Court stated that those issues are beyond the scope of this
the principle of legality covers every aspect paper.
of criminal liability, for instance, changing
the statute of limitations ex post facto.
Additionally, ―conviction and punishment
233 Hungary is the party to the Convention on the non-applicability
of statutory limitations to war crimes and crimes against humanity
230 Literally the new law made a reference to crimes committed since 1969.
between December 1944 and May 1990, however, it was designed 234 T. Hoffmann, Individual Criminal Responsibility for Crimes
to enable the prosecutions of the 1956 perpetrators. Committed in Non-International Armed Conflicts – the Hungarian
231 The petition was based on questions of whether the analysed Jurisprudence on the 1956 Volley Cases, Criminal Law Between
statute met the requirements of Rechtsstaat: (I) the principle of War and Peace: Justice and Cooperation in Criminal Matters
non-retroactivity; (II) the requirement of predictability; and (III) in International Military Interventions, (Cuenca: Ediciones de la
certainty of law. Universidad de Castilla-La Mancha, 2009), p. 739.
232 Hungarian Constitutional Court, Decision No. 11/1992, 5 235 See Hoffmann, Individual Criminal Responsibility, pp. 741-753.
March 1992. 236 Hoffmann, Individual Criminal Responsibility, p. 740.
Page 78
What conclusions can be drawn from this the German Basic Law of the reunited
short summary of the dilemmas of Germany and the former GDR law, arose.
transition in Hungary? It is clear that the Public attention was turned towards
Constitutional Court played a significant several trials for killings on the inter-
role in determining the rule of law in German border – Berlin Wall. Indictments
Hungary and, like M. Mihai writes, were directed at both: German soldiers
―established continuity with the previous (border guards) and state officials
legal system, but discontinuity with the (decision-makers) responsible for shooting
system‘s practices of abusing the law‖.237 and killing at least 130 citizens of GDR
In the view of the court, a rule of law state trying to escape to the western part of
cannot be created by undermining rule of Berlin. Convictions were stated by the
law principles (in the relevant case: regional courts and then confirmed by the
criminal principles and guarantees), Federal Court of Justice. Another judicial
especially in the context of moral purges body, the Federal Constitutional Court,
after political transformation. According to found that these convictions were in
the Hungarian experience, rule of law and compliance with the German Basic
democracy means legal certainty and Law.241 Subsequently, the European
compliance with the international law Court of Human Rights decided that these
rules and standards (with the highest convictions did not violate several
position of the human dignity in the provisions of the European Convention on
hierarchy of fundamental rights and Human Rights (ECHR).242
freedoms238) rather than seeking for The main argument presented by the
substantive justice (victor‘s justice) and defendants concerned the consistency of
evaluation of the former regime. These their conduct within the GDR legal
particular decisions brought ―acclamation system. As a consequence, in their view,
from constitutional lawyers in established convictions were in breach with the
democracies‖239 and formed the strong standards of the non-retroactivity
position of the court in the Hungarian principle (in particular, Article 7 (1) of
legal order.240 ECHR – no punishment without law, and
Article 103 (2) of the Basic Law – ban of
GERMANY: BORDER GUARDS CASES retroactive criminal law) and were against
After the collapse of the GDR and the concept of Rechtsstaat.
the reunification of Germany, a great Under the German Unification Treaty, all
debate about ex post facto prosecutions acts committed by East German citizens
and convictions commenced. This debate within the territory of GDR shall be
was based not only on political dilemmas evaluated with reference to GDR law.243
but also on legal dilemmas of The state security policy embodied in
controversial prosecutions of GDR‘s People‘s Police Act and State
representatives of the former regime. Borders Act (additionally with the
Together with the question of personal instructions and orders policy), justified
responsibility of alleged perpetrators, the use of firearms in case of a threat to
another issue, concerning the questions of the existence of the state and prevailed
legitimacy and the legacy of the previous over the relevant provision of the GDR‘s
legal order and the relationship between Criminal Code (crime of murder) as well as
the general state obligation to protect the
right to life.
237 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 241German Federal Constitutional Court, Decision of 21 July 1997.
Democracy: With Special Reference to Hungary”, International Sociology, vol. 242 European Court of Human Rights, Case of Strelezt, Kessler
18, No. 1, March 2003, 153. and Krenz v. Germany, 22 March 2001 (app. nos. 34044/96,
239 Mihai, Transitional Justice, p. 133. 35532/97 and 44801/98); K. – H. W. V. Germany, 22 March
240 E. Babus, “The Superego of the Transformation: The First 2001(app. nos. 37201797).
Eight Years of the Constitutional Court”, The Hungarian 243 The law of the Federal Republic of Germany was applicable
Quarterly, vol. XL, No. 153, spring 1999. only if it was more lenient.
Page 79
As was previously mentioned, German justified due to the extraordinary

courts allowed criminal prosecutions and conditions.249
did not find it contrary to any domestic
and international provisions. In doing so, ROLE OF TRANSITIONAL JUSTICE
German courts followed different paths of MECHANISMS IN RESTORING THE
legal reasoning. Like, M. Rau writes,244 we RULE OF LAW AND ESTABLISHING
can point out at least three: (I) the natural DEMOCRACY – CONCLUSIVE REMARKS
law approach, (II) the ―teleological‖ States facing post-communist transitions
approach and (III) the ―rule of law‖ chose different tools to implement
approach. The last one can be attributed transitional justice mechanisms,
mainly to the reasoning of the European especially in conjunction with criminal
Court of Human Rights. justice. Aforementioned examples
To conclude, German courts were highly illustrate that only Germany took a
inspired by the ―Radbruch‘s Formula‖245 comprehensive approach towards past evil
and rejected some parts of the GDR‘s legal abuses and prepared an ambitious
order as not meeting the requirements of a transitional justice project consisting of
rule of law state. The German courts‘ trials, some of which were presented in
reasoning, however, touching different this paper, parliamentary inquires and
legal perspectives, was based on a few more.250 Other states, like Hungary
presumption that the observance of and Poland, in spite of the presented
fundamental rights makes a clear line Supreme Court decision, did not follow
between ―formal law‖ and ―justice‖, seen the German path and stood somewhere
as a moral and legal order taken together between, but not in the middle, of full
into consideration.246 The courts clarification of former regime actions and
acknowledged that the practice of the actions of state officials in the courtroom
GDR‘s security policy was against the and the ―national amnesia‖
basic principles of the human dignity and programme.251 Nevertheless, all of those
justice, which are common to all peoples, decisions were based on the strong belief
and are a core part of international in the value of a rule of law state where
law.247 The notion of the rule of law transitional justice must be supported by
shaped by the German judiciary includes particular factors specified by R. Teitel as
the strong desire for substantive justice, the role of: (I) social construction, (II)
which, especially in so-called ―extreme international law, and (III) the rule of law
cases‖248 prevails, over legal security and seen as a limit on politics.252
certainty as compared to the Hungarian Why did not the Polish Supreme Court
case. Retroactive punishment was 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
244 M. Rau, “Transitional Justice: The German Experience after can be mentioned: (I) the lack of respect to
1989”, Rechtstaat in Lectures, No. 4, Konrad Adenauer Stiftung,
Bucharest August 2009, 10-11. the international law and human rights
245 Gustav Radbruch (1878-1949), a German legal scholar (criminal standards and (II) inefficiency in the
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 249 Obviously, this approach is not free of controversies. It might
on a presumption that if the written law does meet the be seen as an instrument, which fulfils the need for political justice.
requirements of justice, moral standards and higher order it can be See: C. Wilke, “Politics of Transitional Justice: German, Hungarian
recognised as invalid. See: G. Radbruch, “Five Minutes of Legal and Czech Decisions on ex post facto Punishment”, The Contours
Philosophy (1945)”, translated by B. Litschewski-Paulson, S. L. of Legitimacy in Central Europe: New Approaches in Graduate
Paulson, Oxford Journal of Legal Studies, vol. 26, No. 1 (2006), 13- Studies, European Studies Centre, Oxford 2002.
5; G. Radbruch, “Statutory Lawlessness and Supra-Statutory Law 250 Mihai, Transitional Justice, pp. 224-225.
(1946)”, translated by B. Litschewski-Paulson, S. L. Paulson, 251 The Czech Republic is an interesting case because after the
Oxford Journal of Legal Studies, vol. 26, No. 1 (2006), 1-11. adoption of a strong statute declaring the former regime illegal and
246 Teitel, Transitional Justice, p. 16. illegitimate, upheld by the Constitutional Court. It was not
247 The provisions of the GDR‟s law were construed in a “human followed by a large number of criminal prosecutions of former
rights friendly manner”. regime perpetrators.
248 Teitel, Transitional Justice, p. 17. 252 Teitel, Transitional Justice, pp. 19-22.
Page 80
clarification of the relationship between that the 1952 Constitution also

the former political and legal landscape guaranteed the right to be protected
with its successor regime. against state authorities‘ interference
As previously presented, the Hungarian without relevant powers (State Council
Constitutional Court based its decisions acted in violation of constitutional norms
on the valid norms of international law, by enacting the Martial Law during the
which were taken into consideration. It is session of the Parliament) and legal
necessary to emphasise that the ground, especially in the case of the
possibility of ex post facto punishment nullum crimen, nulla poena sine lege
differs in the analysed circumstances. principle and the prohibition against
While German and Hungarian judicial retroactive criminal legislation.
authorities had to decide whether it was This judgement may lead to re-opening
possible to prosecute a person whose acts, the question of the criminal convictions
at least on the defendants argument level: based on Martial law decrees and several
(I) had not constituted a crime in the time courts decisions that convicted for the
of the conduct or (II) had constituted a acts, which did not constitute a criminal
crime in the time of the conduct but, due offence at the time they were committed.
to the statute of limitations they were In other words, it opens the possibility of
legally cured, the Polish Supreme Court re-opening criminal proceedings under
had to deal with the lex retro non agit relevant constitutional provisions.
punishment done by the former regime Furthermore, the Tribunal decided255 that
officials, based on a law, which should be the question of criminal responsibility of
declared invalid under the former former state officials, mainly judges, shall
constitutional order. Underestimation of be examined individually, case by case,
international law, which ―offers an without stating any general clause, so we
alternative construction of law..., its can expect other indictments in the near
continuous and enduring‖253 and in a future. These judgements, read together
time of transition cannot be approved. In with the Constitutional Tribunal
addition, the (pseudo) positivistic view judgement declaring the importance of
taken by the Polish Supreme Court also international law in the domestic order256
showed a lack of a clear concept of how to both material and symbolic, are an
deal with the former regime. example of a proper step in building a rule
It is worth mentioning some new of law state with the respect to the binding
tendencies in recent Polish judiciary. The norms of international law.
Constitutional Tribunal (Trybunał To sum up, it is clear that transitional
Konstytucyjny) in its judgement of 16 justice is not a self-contained regime with
March 2011254 found Martial Law decrees given solutions to the dilemmas of
as unconstitutional on the grounds of its transition to democracy.257 That is why
inconsistency with the 1997 Constitution the role of the judicial bodies, according to
(Article 7 – The Principle of Legalism) in European legal culture, is significant in
conjunction with the 1952 Constitution determining a rule of law state and
and the ICCPR (Article 15 (1). The democratisation. As a final conclusion, I
significant role of the ICCPR provisions would like to emphasise that the
was, as a result, strongly emphasised. The implementation of transitional, mostly
Tribunal emphasised the state‘s obligation criminal, justice measures does not
to protect human dignity as a core
principle of a rule of law state and related
this to the basic duty of state authorities 255 Polish Constitutional Tribunal, Decision No. K/10/08, 27
October 2010.
to act on the basis and within the limits of 256 Polish Constitutional Tribunal, Decision No. 42/4/A/2005, 27
the law. Moreover, the Tribunal reiterated April 2005, para. 5.5.
257 M. Wasiński, “Sprawiedliwość okresu przejściowego
(Transitional Justice)”, Liberte, No. 27, Czerwiec/June 2011,
Teitel, Transitional Justice, p. 20.
253 available at
Polish Constitutional Tribunal, Decision No. 10/2/A/2011, 16
254 http://www.liberte.pl/component/content/article/1813.html?ed=
March 2011. 31 (accessed 25 August 2011).
Page 81
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.
Page 82
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 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.
 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-Justice-
2009-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.
Page 83
Page 84
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 creating a society separated from others.

The Universal Declaration of Human Aiming a strong, cohesive base symbols
Rights is considered ―the common played an informative and very important
standard of achievement for all peoples rule. Symbols express people‘s belief, a
and all nations, to the end that every commitment. Probably the best-known
individual and every organ of society, [...], expert of symbols is C.G. Jung, Swiss
shall strive by teaching and education to psychiatrist, who makes in his works a
promote respect for these rights and clear difference between symbols and
freedoms and by progressive measures, signs. According to Jung signs refer to the
national and international, to secure their known, the evident, the external
universal and effective recognition and manifestation of reality whilst symbols are
observance, both among the peoples of special signs standing for the unknown,
Member States themselves and among the unclear, inexplicable. Using symbols of
peoples of territories under their despotic, totalitarian empires, like the
jurisdiction.‖258 The International Nazi Germany or the Soviet Union were,
Covenant on Civil and Political Rights are prohibited in some countries also
1966/1976 (signed in 1969 and ratified in nowadays. Three of those refer also to the
1974 by Hungary) contains freedom of use of symbols of the Communist past
expression, Article 19, one of the most (Hungary, Lithuania and Poland).260
important freedom people can own as a
citizen and as a human being.259 Although The case of Attila Vajnai
almost every country in the world signed
the document there are still abuses of this Attila Vajnai, - is a Hungarian national
freedom. Transitional societies always who was at the relevant time Vice-
have to face some challenges during the President of the Worker‘s Party
rebuilding process, one of them is to (Munkáspárt), a registered Hungarian left-
ensure political and civil rights to their wing political party. He made a speech on
citizens. 21 February 2003 at a lawful
demonstration in Budapest where he was
During its long history Europe has wearing a five-pointed red star on his
experienced wars, epidemics, starvations jacket as a symbol of international
and if we run back over only the last workers‘ movement. A serving policeman
century we can see dictatorships as well. called on him to remove the symbol and
Just mentioning the most notorious ones, Mr. Vajnai did so. Nevertheless
Hitler and Stalin built their own empire proceedings were subsequently taken
with their own ideology, own rules, own against him for wearing totalitarian
army and own symbols. These were the symbols in public. Hungarian Criminal
means they could use to rule first a group Code (Act IV of 1978) under section 269/B
of people, a party, an ideology, a nation bans the use of symbols of despotism:
and then half of Europe. Creating and
using symbols like the Nazi eagle atop “(1) The person who
swastika, the SS bolts, the Soviet sickle a) distributes;
and hammer or the red star could make a b) uses before great publicity;
connection between rich and poor, men c) exhibits in public;
and women, young and old. These a swastika, the SS sign, an arrow-cross,
symbols can express their togetherness sickle and hammer, a five-pointed red star
or a symbol depicting the above, -unless a
258 The Universal Declaration of Human Rights. Available at: graver crime is realized - commits a
http://www.un.org/en/documents/udhr/ UN. Accessed on: 10 misdemeanor, and shall be punishable
July 2011
259 International Covenant on Civil and Political Rights, Art. 19
with fine.
„[…] 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 260Prof. Dr. Carlos Closa Montero: Study on how the memory of
orally, in writing or in print, in the form of art, or through any crimes committed by totalitarian regimes in Europe is dealt within
other media of his choice.” the Member States, Contract No JLS /2008/C4/006.
Page 86
(2) The person, who commits the act to the European Court of Human Rights
defined in subsection (1) for the purposes (ECHR) on 15 May 2006 claiming the
of the dissemination of knowledge, violation of Article 10 of the Conviction
education, science, or art, or with the (freedom of expression)262.
purpose of information about the events of
history or the present time, shall not be The Court ascertained that there has been
punishable. an interference with Mr. Vajnai‘s rights
(3) The provisions of subsections (1) and (2) enshrined in Article 10 § 1 of the
do not extend to the official symbols of Convention. The Court also found that the
states in force. interference was prescribed by Hungarian
domestic law and pursued legitimate aim.
In 2000 the Hungarian Constitutional The Court accepted Hungary‘s arguments
Court analyzed the constitutionality of that former one-party dictatorship caused
section 269/B and that time the Court a lot of suffering to people and symbols
decreed as it follows: ―In Hungary, the like red stars remind them to that time
memories of both ideologies represented creating unkindly feelings. Finally the
by the prohibited symbols are still alive in Court had to decide whether the sanction
the public consciousness and in the against Mr. Vajnai was necessary in a
communities of those who survived democratic society.263
persecution; these things are not According to the Government wearing red
forgotten. [...] The use of such symbols star reminds people of the former ruling
recalls the recent past, together with the Communist regime which neglected even
threats of that time, the inhuman basic human rights and oppressed every
sufferings, the deportations and the civil initiative. Using totalitarian symbols
deadly ideologies.‖261 With its decision the in public related to identification with
Constitutional Court affirmed the ban of ideas of Communism and thus can create
using every type of totalitarian symbols in fear among people. Secondly the
public. At that time many experts Government referred to the margin of
criticized that decision claiming that it appreciation application which allows
undermines the principle of freedom of states to work out their own methods to
expression. handle cases related to former regimes.
Generally it ensures time for states in
According to the relevant section of the transition to apply the international
Criminal Code Mr. Vajnai was convicted of standards. (In a previous similar case
the offence of using totalitarian symbols. Rekvényi v. Hungary ([GC], no. 25390/94,
In spring 2004 he appealed to the §§ 44-50, ECHR 1999-III) the Court
Budapest Regional Court (Fővárosi dismissed the application of a Hungarian
Bíróság) which stayed the previous police officer who imputed the restriction
decision and decided to refer the case to on certain political rights as they are not
the Court of Justice of the European allowed to continue political activity or to
Communities (ECJ). The reason was to join any political party. The Court found
reveal if there is any discrimination on the that the interference fell within the
case that not every member states‘ law national authorities‘ margin of
prohibits the use of totalitarian symbols. appreciation.)
On 6 October 2005 the ECJ declared that
it had no jurisdiction to answer this
question and referred back the case to the
262 Article 10 of the Convention:
“1. Everyone has the right to freedom of expression. This right
Budapest Regional Court which shall include freedom to hold opinions and to receive and impart
subsequently upheld the conviction information and ideas without interference by public authority...
against Mr. Vajnai. Thereafter he turned 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] ...
261 The Constitutional Court of the Republic of Hungary. Available for the protection of the ... rights of others ...”
at: http://www.mkab.hu/admin/data/file/666_14_2000.pdf. 263 Vajnai v. Hungary (Appl. no. 33629/06) Decision of 8 July
Accessed on: 10 July 2011 2008, ECHR Reports, para. 29.
Page 87
In contrast, Mr. Vajnai argued that red regulations against ―unconstitutional

star as a symbol is not used exclusively by organizations‖ in the section 86 and
the Communist party, for many people it 86/A.267
symbolizes the anti-fascist ideology as Lastly according to Mr. Vajnai the sole
Hungary and other Easter European wearing of such symbols does not mean
countries had been liberated in 1945 from that he or his comrades want to influence
Nazi occupation by Soviet soldiers wearing people in a coercive way. In addition since
red stars on them. Moreover promotion of the transition 1989 there was no real fear
Communism had not been outlawed by to take over the power and rule the society
international law. Hungary is not the only by the Communist Party.
contracting state which treats Communist
and Nazi symbols as the same and The Court argued in its judgment that
prohibits both of them. Poland and Latvia limitation of freedom of expression
also has a law banning the use of both considered to political speech is only
Soviet and Nazi symbols at public acceptable when a clear, pressing and
meetings.264 Poland - which country has specific social need arose.268 In this
similar history and political culture as specific case the Court adjudged neither
Hungary - has an explicit indication in its such social need was present nor was any
Constitution.: ―Political parties and other threat from the left-wing political party to
organizations whose programmes are restore the Communist dictatorship.
based upon totalitarian methods and the Moreover banning the use of red star is
modes of activity of Nazism, fascism and too broad considering the multiple
communism, as well as those whose meaning of it. Therefore the Court
programmes or activities sanction racial considered the interference of the freedom
or national hatred, the application of of expression cannot be justified under
violence for the purpose of obtaining Article 10 § 2 and ascertained a violation
power or to influence the State policy, or of the Convention.
provide for the secrecy of their own
structure or membership, shall be Hungarian law allows people having a
forbidden.‖265 In addition the Polish decision from ECHR against the State in a
Criminal Code (section 256) mentions also retrial procedure but at the same time
the prohibition of Nazi and other there is no automatic procedure under
totalitarian symbols.266 However there is domestic law to modify a statute which
an important distinction between violates of the Convention. It follows that
Hungarian and Polish regulations namely there is no chance to amend the decision
that the Polish refers only to the of local courts. The Hungarian Parliament
propagation of the Nazi, fascist and – and not the Supreme Court- could
communist symbols while the Hungarian amend the law in question but it has not
punishes also the sole wearing in public. done so far. In this precise case Mr. Vajnai
The German Criminal code had without avail the right to retrial his
(Strafgesetzbuch (StGB)) has also case, the code under he was convicted
remained the same. In June 2011 the
Hungarian Supreme Court (Legfelsőbb
264Prof. Michael J. Bazyler: Holocaust Denial Laws and Other
Legislation Criminalizing Promotion of Nazism (2006) 9.
Bíróság) affirmed the decision of the
265 Constitution of Poland. Available at: Budapest Regional Court made 3 years
http://www.poland.pl/info/information_about_poland/constituti ago and fined Mr. Vajnai 120 000 HUF. He
on/ch1.htm. Accessed on: 14 November 2011.
266 Available at:

http://legislationline.org/documents/section/criminal-codes.
Accessed on: 14 November 2011.
Kodeksz Karny, Criminal Code of Poland Art. 256: „Kto 267 German Criminal Code: Section 86: Dissemination of
publicznie propaguje faszystowski lub inny totalitarny ustrój propaganda material of unconstitutional organisations and Section
państwa lub nawołuje do nienawiści na tle różnic 86a: Using symbols of unconstitutional organisations. Available at:
narodowościowych, etnicznych, rasowych, wyznaniowych albo ze http://legislationline.org/documents/section/criminal-codes.
względu na bezwyznaniowość, podlega grzywnie, karze Accessed on: 14 November 2011.
ograniczenia wolności albo pozbawienia wolności do lat 2.” 268 Vajnai v. Hungary ECHR Reports, para. 51.
Page 88
wants to turn to ECHR again.269 As Mr. belief and the right to live without being
Vajnai states there is a chance in the bothered by the ghosts of past.271
future that anyone who wants to wear the
red star as a symbol of the international Thus on the other hand some experts are
workers‘ movement in public in Hungary arguing to ensure for everybody the whole
risks to be convicted. He also warns that freedom to say, to write, to use what they
later it is possible to proceed ―against a want no matter what others, for instance
lawful political party which is part of the so-called leaders say.272 This kind of
European left-wing party fighting for a thinking is the base of a pluralistic
new, socially fair society.‖ society, the opposite of totalitarian ones
with generally one-party regimes, without
Freedom of expression is equal with the any possibility to be non-conform or to
freedom of using totalitarian symbols? express other points of view. In a
pluralistic society citizens are able to
Via this case we can analyze what sort of express different kind of opinions, even if
impacts has the sole wearing a totalitarian it is completely opposite of the majority‘s
symbol which can be considered as a kind opinion and this makes a society colorful
of non-verbal hate speech. and vibrant. At the same time it provides
facilities to confront ideologies and also
Those who are against it claim that these hurt other people‘s feelings. In such
symbols remind people the past they wish societies‘ political life, left- or right-wing
to forget, an oppressive regime, sufferings parties, greens, religious or secular and
they had to survive, deportations, work extremist parties can appear as well. That
camps, death of family members and is to say, they all have the possibility to
friends. Secondly, in a transitional society, build up a political party and popularize
when democracy is young and vulnerable, their program in order to gain support and
the new democratic order, the program as far as possible to get into the legislation
should be followed by the society is being in a position to make orders.
insecure, wearing totalitarian symbols,
uniforms, marching groups of people Transitional societies and freedom of
create fear easily. People have to learn expression
how to trust in democratic institution, in There is no society where freedom of
authorities, in police forces. Extremist expression is completely ensured and
ideology, be it left-, or right-wing, ruins there is no society without any form of
that trust amongst citizens. Supporters of expression. E. g. the USA is frequently
that kind of theory agree on banning of called the ―land of dreams‖ which
using totalitarian symbols in public theoretically means that everyone is equal
though it is a restriction of freedom of and has the same rights and obeys and
expression which is one of the most thus everyone is able to realize its dreams.
important and basic right that is laid But it does not mean in the same time
down in every international conventions or that everyone has the same chance to use
documents.270 One of the most discussed these rights as well. But of course has
and most sensitive part of expression is more chance if compared to the so-called
the clash of freedom to express someone‘s last dictatorships in the world like North-
Korea, Cuba, Zimbabwe or Belarus. If we
go further it comes that being free and
using rights and freedoms depends more
269 Népszava online, Hungarian gazette. Available at:
http://www.nepszava.hu/articles/article.php?id=442321.
Accessed on: 10 July 2011.
271‟Call for all totalitarian symbols to be banned in EU‟ EU
270 The Universal Declaration of Human Rights Art. 19. Available Observer. Available at:
at: http://www.un.org/en/documents/udhr/index.shtml#a19. http://euobserver.com/843/18323. Accessed on: 10 July 2011.
Accessed on: 14 November 2011. 272 Available at: http://www.radicalparty.org/en/content/un-
International Covenant on Civil and Political rights Art. 19 and 20. international-experts-condemn-curbs-freedom-expression.
Available at: http://www2.ohchr.org/english/law/ccpr.htm. Accessed on: 14 November 2011.
Accessed on: 14 November 2011.
Page 89
on the system of society you live in than Even so the Hungarian Criminal Code is
on the existence of the rights and extremely strict and does not allow to
freedoms itself. In theory every country citizens to wear them and it is explained
grants freedom of expression to its citizen. by the brief Fascist and the 40 years
But degree of democracy is showed by the lasting Communist past of the nation. It
fact how citizens are allowed to use this wants to antedate any situations that
right. That distinguishes democracies could help extremist parties to be
from despotic or totalitarian societies. strengthened.
Dictatorship‘s rules ban people to be
themselves, to behave as they could if In 1989 Hungarian transition was
they lived in a democratic state, and to peaceful after a political round-table
say what they want to but could not in where transitional forces get together to
absence of freedom of expression, count down the Soviet past and open the
thought, conscience and religion. country for the market economy, change
Democracy on the other hand allows the socialist one-party regime and build a
people to express their opinion, clash their new western-type democracy. A new
points, use arguments but no violence. constitution was adopted, new directions
And there is only a narrow line between were pointed out, free and transparent
arguing and using force. elections were held and the new
government, elected by citizens of the
Some transitional societies lack the ability independent Republic of Hungary, had
to handle a situation when extremist begun to work.
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 Conclusion
of democracy, losing independence or even
turns back to previous dictatorships. Central and Eastern Europe made its
Transitional societies have no experience transition in 1989/90 and after more than
of democracy and people have no trust in 20 years these countries had made lots of
what they do not know. In a balanced and changes in their legislation and ensured a
healthy society people are able to decide if wide range of rights that people have not
an ideology is harmful or offending thus owned or owned only in a restricted way
using totalitarian symbols are allowed as before. In spite of that fact there are still
simple symbols of people identifying incompleteness as we can see through the
themselves with a certain political point of studied case. Freedom of expression may
view. clash others right to live in peace. Our
task is to work on to correct these defects.
Hungary and transitional justice Totalitarian symbols can work as certain
In the concrete case of Mr. Vajnai the kind of hate speech that can be punished.
ECHR argued that Hungary is over the But from the studied case we realize that
transitional period having passed almost it cannot be automatic the red star cannot
20 years after transition in 1989 from be banned only because of the fact that is
communism to democracy. There is a was used by communists as well. In some
working market economy; Hungary is a cases it could be even absurd: in 1999 in
member of the North Atlantic Treaty a Hungarian town on the main square
Organization, NATO (1995) and the standing Christmas tree people thought
European Union (2004). At the precise there were red star shaped ornaments.
time there were no real danger to get the Because of people‘s protest the town had
power any far-left forces, democracy and to get down the ornaments. But of course
the rule of law solidified. Wearing a products like Heineken or Converse can
symbol of the International Workers‘ Party be distributed in the country although
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_zsombor-
velemeny_onkenyuralmi[jogi_forum].pdf. Accessed on: 14
November 2011.
Page 91
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 Criminal
Code of the Republic of Hungary
 http://legislationline.org/documents/section/criminal-codes 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
 http://www.hrea.org/index.php?doc_id=408#rights Human Rights
Education Associates
 http://www.jogiforum.hu/files/publikaciok/orban_zsombor-
velemeny_onkenyuralmi[jogi_forum].pdf Orbán Zsombor: 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-experts-
condemn-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.
Page 92
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
Joint criminal enterprise (JCE) is a mode genocide, the participants play different
of individual criminal responsibility. It is roles with regards to the organising,
one of the principal developments in planning, coordinating, and otherwise
international humanitarian and criminal contributing to the criminal conduct.
law. In the aftermath of the Holocaust and
many other international crimes since, Even though the ICTY Statute does not
major efforts have been made to make explicitly codify JCE, it was introduced by
those who are most responsible for mass the Appeals Chamber in its Tadic
atrocities liable. Assigning criminal Judgment.275 Before the Tadic decision, a
liability to individuals for activities carried pre-existing plan to commit a crime and
out by a collective takes into account how the responsibility of those who
widespread and systematic violence often participated in a ―common criminal
occurs and helps to ensure that those purpose‖ was considered at the ICTY in
most responsible are not protected from the Delalic et al.276 However, it was the
prosecution. Appeals Chamber in Tadic that
established joint criminal enterprise in
The relevance of JCE was explained by the customary international law. The Appeals
International Criminal Tribunal for the Chamber analysed the relevant post World
former Yugoslavia (ICTY) in the Tadic case, War II cases, including one referred to as
―to hold criminally liable as a perpetrator the Essen Lynching case, which most
only the person who materially performs resembles the notion of JCE. Essen
the criminal act would disregard the role Lynching was tried before a British
as co-perpetrators of all those who in military court and was about three British
some way made it possible for the prisoners of war who had been lynched by
perpetrator physically to carry out that a mob of Germans in the town of Essen-
criminal act.‖274 West on 13 December 1944. The German
captain had given an order, loud enough
The focus of this paper is to analyse JCE for everyone to hear, that the German
as a mode of liability in international soldiers should not interfere if the
criminal law and how it plays a significant civilians should molest the prisoners. The
role as one of the court-based transitional prisoners of war were marched through
justice mechanisms. In the first part, I one of the main streets of Essen-West and
will, using the jurisprudence of the ICTY, eventually lynched by members of the
analyse the three categories of JCE. In the crowd.
second section I will focus on the function
of JCE as a transitional justice The Appeal Judgment in Tadic defined
mechanism, which has contributed to the three categories of JCE. They all have the
right of the victims to know the truth, the same actus reus elements:
right to justice, and right to non- A plurality of persons who need not be
recurrence. organised in a military, political
organisation, or administrative structure.
II. ICTY AND THE TADIC CASE The existence of a common plan, design,
or purpose which amounts to or involves
It has been shown to be extremely difficult the commission of a crime provided for in
to determine what the contribution of the statute. There is no necessity for this
each individual is in a criminal enterprise.
Finding the required evidence against 275 When dealing with the matter, the Tadic Appeals Chamber
each individual perpetrator is a challenge traced the concept back to Nuremberg jurisprudence, case law and
national legislation, concluding that it is customary international
law.
274 Tadic Appeal Judgement, para. 192. 276 Delic et al. Trial Judgement, para. 328.
Page 94
plan, design, or purpose to have been known as the ―concentration camp

previously arranged or formulated. The category‖.281
common plan or purpose may materialise
extemporaneously and be inferred from The third category includes criminal acts
the fact that a plurality of persons act in that fall outside the common design. The
unison to put into effect a joint criminal reasoning for this is that some acts are a
enterprise. natural and foreseeable consequence of
Participation of the accused in the the common purpose. In this ―extensive‖
common design involving the perpetration category there is a dual mens rea. For the
of one of the crimes provided for in the crimes that fall within the common
Statute. This participation need not purpose, direct intention is required.
involve commission of a specific crime However, for those that fall outside the
under one of those provisions (for common plan, dolus eventualis is
example, murder, extermination, torture, required. It is to be emphasised that this
rape, etc.), but may take the form of question must be assessed in relation to
assistance in, or contribution to, the the knowledge of a particular accused.282
execution of the common plan or A question that arises relating to the
purpose.277 application of JCE is what the required
mens rea is when it comes to crimes with
The mens rea element differs according to specific intent. This is important when
the category of common design under considering the crime of genocide, for
consideration.278 example, which requires evidence of dolus
specialis, in the context of the third
The first category relates to cases where category JCE, which only requires dolus
the intent to perpetrate a certain crime is eventualis. The differing opinions and
shared by all the co-perpetrators. The interpretations of judges and
shared intent can be concluded indirectly commentators are most evident with
on the basis of ―knowledge of the criminal regard to the application of the third
nature of the enterprise and the continued category of the JCE.
significant participation therein.‖279 In this
case, the prosecution need only to prove In the Brdjanin Decision on Interlocutory
that the person had a shared intent Appeal, it was clarified that a participant
required for that crime and, if it went in a third category JCE can be held
beyond the object of the joint criminal responsible for the commission of
enterprise, the prosecution needs to genocide when the crime of genocide has
establish that the crime was a possible been committed as a natural and
consequence of that joint enterprise. foreseeable consequence of a JCE.283 What
is more, this decision confirmed that ―as a
The second category, known as systemic mode of liability, the third category of joint
JCE, requires an organised system with a criminal enterprise is no different from
common criminal purpose.280 With regard other forms of criminal liability which do
to mens rea, personal knowledge of the
system of ill-treatment is required as is
281This was considered in the Krnjojelac Appeal Judgment para. 97,
intent to further it. This category is also 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.
277 Tadic Appeal Judgment, para. 227 118.
278 Ibid. 282 “A participant may be responsible for such crimes only if the
279 Kvocka Appeal Judgment, para. 88. prosecution proves that the accused had sufficient knowledge such
280 The category was derived from concentration camp cases from that the additional crimes were a natural and foreseeable
the Second World War. But in the Kvocka Appeal Judgment the consequence to him.” Kvocka, Appeal Judgment, para. 86; also in
court emphasised: “category known as concentration camps”, the the Stakic case Appeals Chamber confirmed that, “those deaths in
second category of joint criminal enterprise, known as systemic, the camps were foreseeable to the Appellant, and that he willingly
covers all cases relating to an organised system with a common took that risk.”
criminal purpose perpetrated against the detainees. 283 Brdjanin Decision on Interlocutory Appeal paras. 7-10.
Page 95
not require proof of intent to commit a The wrongs which we seek to condemn
crime on the part of an accused before and punish have been so calculated, so
criminal liability can attach.‖284 However, malignant and so devastating, that
there are many debates that try to civilization cannot tolerate their being
emphasise that JCE is not based on the ignored, because it cannot survive their
customary international law.285 Some of being repeated.286
the critics argue that JCE 3 unnecessarily
broadens the scope of liability and brings The set of principles for the protection and
into it a large number of those that are promotion of human rights through action
considered to be ―guilty by association‖. to combat impunity, updated in 2005,
contain four rights of victims, but they
III. JCE AS A TRANSITIONAL serve the society as a whole as well. They
JUSTICE MECHANISM are: the right to know, the right to justice,
Before the JCE doctrine emerged the only the right to reparation and the right of
way to bringing the perpetrators of mass non-recurrence.
atrocities to account was by either
prosecuting them as the direct THE RIGHT TO JUSTICE
perpetrators who committed the crime, for The joint criminal enterprise doctrine was
having aided and abided the crime, or by created as a tool to bring to justice all
using command responsibility and then those who in some way made it possible
looking into the official chain of command. for the perpetrator physically to carry out
Justice had limited tentacles reaching a criminal act. The criminal justice system
only superiors, helpers and those who could now act by ensuring that those that
actually ―pulled the trigger.‖ All the others are most responsible for serious crimes
who were part of the criminal plan under international law are prosecuted,
remained safe even though they tried and duly punished. An important
contributed. Searching for a legal aspect of this form of liability is that it is a
mechanism that could help render justice higher degree of culpability than aiding
started with the Nuremberg Trials. It is and abetting. It is a form of commission of
there that a legal principle, Nullum crimen, a crime. This was explained in the Tadic
nulla poena sine lege, was broken in order Appeal Judgment, but was also confirmed
to define crimes against humanity. As -and clarified by later jurisprudence in the
Robert Jackson, the Supreme Court Ojdanic287 and Krnjojelac288 cases. The
Justice at the Nuremberg Trials, explained ICTY and other international and hybrid
in his statement: tribunals have tried and convicted a
number of senior political and military
leaders.289
The three leaders of the Revolutionary

284 Brdjanin Decision on Interlocutory Appeal paras. 7-10.
285 Stewen Powels, for example, argues that international criminal
United Front (RUF) were finally convicted
law requires clear and certain definitions of the various bases of in October 2009. The Appeals chamber
liability. He further claims that the prosecution had not specifically upheld the finding of the Trial Chamber
alleged Tadic‟s culpability in the indictment pursuant to joint that:
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 286 Robert Jackson--Opening Statement at Nuremberg
unfortunate miscarriage of justice.” Michael G. Karnavas considers 287 Decision on Ojdanic‟s motion challenging jurisdiction: indirect
JCE as a judge-made mode of liability. On the other part, Verena co-perpetration.
Haan remarks that there are contradictions about the third category 288 Krnjojelac Appeal Judgment, para. 73. “The Appeals Chamber
of JCE because “the threshold for attributing liability becomes accepts the Prosecution submission as justified and points out that
even lower than the threshold for holding a person responsible as it has since been upheld in the Ojdanic case. The chamber views
aider and abettor.” For this reason, in the cases where genocide is participation in a joint criminal enterprise as a form of
commited as natural and forseable consequence the person should “commission” under Article 7(1) of the Statute”.
not be held responsible for genocide on the basis of JCE, but 289 See for example the list of all ICTY judgments available at
rather as aider and abettor under Art. 7(1) or as complicity to http://www.icty.org/sections/TheCases/JudgementList (last
genocide under Article 4(3)(e). accessed on November 18th, 2011).
Page 96
…following the 25 May 1997 coup, high violations. If we look at the ICTY
ranking AFRC members and the RUF judgements, for example, we can see
leadership agreed to form a joint sections that chronologically and
„government‟ in order to control the territory extensively depict events that lead up to
of Sierra Leone. The Chamber considers the crimes, the crimes themselves, names
that such an objective in and of itself is not of places of capture and detention, places
criminal and therefore does not amount to of murder or torture, and the location of
a common purpose within the meaning of mass graves. Having this official,
the law of joint criminal enterprise judicially approved ―truth‖ published
pursuant to Article 6(1) of the Statute. about what happened can be invaluable
However, where the taking of power and for the victims.
control over State territory is intended to be
implemented through the commission of THE RIGHT TO NON-RECURRENCE
crimes within the Statute, this may amount JCE has a crucial impact on the process
to a common criminal purpose.290 of dismantling institutions — including
state institutions, the armed forces,
Heads of the states do not remain structures of regime police units, media
protected. In the ongoing case against the that served to spread the hate
former president of Liberia, Charles propaganda, and the judiciary — that
Taylor, the indictment holds that the allowed mass atrocities to take place. By
accused is individually criminally putting a flag on those responsible and
responsible if he ―otherwise aided and making official records about what
abetted or which crimes amounted to or happened the potential for a similar
were involved within a common plan, conflict occurring again is reduced.
design or purpose in which the accused
participated, or were a reasonably V. CONCLUSION
foreseeable consequence of such common High ranking politicians and military
plan design or purpose”.291 commanders that had roles and
JCE helps even more by capturing a wider responsibilities in certain large scale
number of those who had important roles crimes can be brought to justice with the
in the large-scale and systematic help of the notion of joint criminal
commission of international crimes. It enterprise. Genocide, crimes against
discloses their true position and humanity, and war crimes are supported
responsibility and results in appropriate and carried out by their system. With the
punishment in view of the impact of their use of the categories — such as common
actions or omissions. plan and common purpose and knew or
should have known — carefully packed
THE RIGHT TO TRUTH into the joint criminal enterprise doctrine,
JCE is based on a common plan or it is possible to make those who had
purpose and, in trying to prove the important roles in those kinds of systems
existence and the content of the plan and responsible before the law. They
the role of those responsible, it puts a knowingly participated in the criminal
bright light on the truth about what endeavour and sometimes even lead it.
happened. It depicts circumstances and The detailed judgements help by hearing
reasons behind the systematic violations all the evidence and setting the official
and tells a story of the perpetration of record of truth about of what happened
those crimes. This inalienable right to while further abuses are prevented by the
know the truth provides a further dismantling of the system that enabled
safeguard against the recurrence of the joint criminal enterprise.
290 Appeals Chamber of the Special Court for Sierra Leone If we look at Security Council Resolution
(“SCSL”) Judgment in the case against Messrs Sesay, Kallon and 808, that established the ICTY, we can
Gbao, para. 484.
291 Prosecution‟s Second Amended Indictment against Charles
find two important statements. The ICTY
Taylor, count 33.
was established to bring to justice the
Page 97
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 SC Resolution 808, 1993.

293 SC Resolution 955, 1994.
Page 98
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-99-36-
AR73.9, 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: 002/19-09-2007-
ECCC-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
Page 100
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]
294 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.
Page 101
WHAT ROLE SHOULD OR COULD inability or unwillingness of the state to

REFUGEES PLAY WITHIN give them protection.298 I would argue that
TRANSITIONAL JUSTICE? a proper transitional justice system has to
The legitimate reasons, from a social envisage the issue of refugees and the
approach, to include the problem of possibility for them to return and
refugees participate in the reconciliation process.
Another ―moral‖ reason to include the
Transitional justice is supposed to refugees could be found in the goal of
reconcile victims and perpetrators, and suppressing the international
bring peace within a society. In this essay, community‘s guilt. If we take the example
I would define society as the population of of Rwanda, it is clear that the objective of
a certain country, which suffered from setting up the ICTR and the Gacaca was
massive violations of human rights.296 If to try to compensate the guilt of the
the society tries to set up a transitional international community of not preventing
justice system but does not take into or intervening during the genocide.
consideration the refugees it created itself, However, establishing tribunals, judging
then it is arguable to think that this the past to try to move forward, is not
system will be incomplete and will not sufficient. With setting up those tribunals,
reach the goal of reconciliation. we enclose the society within a legal frame
―Reconciliation, minimally, is the but do not address the social, economic
condition under which citizens can trust and historical roots of the problems. It can
one another as citizens again (or anew). be argued that if only a legal perspective is
That means that they are sufficiently envisaged, there is a risk that the conflict
committed to the norms and values that might occur again. Indeed, in the Rwanda
motivate their ruling institutions, example, it has to be recalled that
sufficiently confident that those who colonialism enhanced the differences
operate those institutions do so also on between Hutu, Tutsi and Twa and
the basis of those norms and values, and considered the Tutsi as superiors.299 That
sufficiently secure about their fellow is part of the root problem but it has not
citizens‘ commitment to abide by these been envisaged and we still have people
basic norms and values.‖.297 fleeing Rwanda with well-founded fears
based on their ―race‖.300
Indeed if a massive part of the population The legal frame presents some gaps
fled the country, then a reconciliation because it focuses only on judging to lead
process can take place only with a part of to reconciliation but it does not say how to
the population so only with a part of the deal with refugees abroad or how to
society, leaving out wounded citizens. distinguish refugee victims from those
From the social perspective of healing a who participated in the genocide. It also
nation, refugees have to be taken into does not envisage the inclusion of refugees
account.
Moreover, I would argue the assumption
that transitional justice should give a role
298 Harris Rimmer, Susan. Reconceiving Refugees and Internally
Displaced Persons as Transitional Justice Actors, Centre for
to refugees because they find themselves International Governance and Justice Issues Paper n°7, April 2009,
within a vicious circle. They left their Australian National University, p 3.
299 Berry, John A. and Carol Pott Berry (eds.) A Review of
country and continued to stay away from
Mahmood Mamdani, When Victims Become Killers: Colonialism,
it because of this lack of justice and 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.
296 Turgis, Noémie. What is Transitional Justice? International http://www.du.edu/korbel/hrhw/volumes/2002/2-
Journal of Rule of Law, Transitional Justice and Human Rights, 1/magnarella2-1.pdf, 13 November 2011.
Volume 1, December 2010. 300 I used the term “race” in accordance with the criterion of the
297 de Greiff, P.. “The Role of Apologies in National Reconciliation Geneva Convention relating to the Status of Refugees (adopted 28
Processes: On Making Trustworthy Institutions Trusted”, The Age July 1951, enforce 22 April 1954) 189 UNTS 137 (Refugee
of Apology, Facing up the Past, University of Pennsylvania Press, Convention) 73. In this case, we can understand “race” as
2008, p. 126, . “ethnicity”.
Page 102
who would like to come to their country. on Civil and Political Rights also says in
Indeed, some refugees can be very article 12(4) that, ―no one shall be
reluctant to begin the process of arbitrarily deprived of the right to enter
repatriation because ―the refugee would his own country‖.305
need to forego their anonymity and expose
the fact that they have sought refuge ―The ‗right of return‘ to their home
elsewhere‖.301 Therefore, ―it is important countries became an internationally
that refugees are able to reconstruct their recognised human right that ought to be
identity by assuming different social roles guaranteed. The exercise of this right of
and interacting with community members return was envisaged as the cornerstone
so that they are not seen solely as ex- of the concept of temporary protection‖.306
refugees‖.302 Therefore, I think that the
social approach dimension with the As such, this right is internationally
inclusion of refugees within the society recognised but it remains a passive right
should be primary to the transitional because the main actors are the states.
justice system. The host state wants to enhance the
voluntary or forced return of refugees but,
The legal reasons/grounds to include to do so, the country of origin must have a
the issue of refugees functional judicial system and legal
I would argue that so far, when a guarantees that create the necessary
transitional justice system is set up and conditions for a safe return. The refugee
when the well-founded fear that refugees does not play a role; he or she is a passive
experienced is suppressed, it confers a actor.
particular right to refugees: the right to It would therefore be interesting to give a
return. This right has several legal more important role to refugees, shifting
foundations in international law. Under from a passive right to an active right. It
Article 9 of the Universal Declaration of would also join the argument stated in the
Human Rights, a right of return to one‘s social approach, that giving them social
own country is expressly recognised and roles and interacting with the community
such right is also expressly recognised in allows them to shift away from their solely
Article 13(2) of the same document.303 refugee quality. Indeed, I would argue that
Additionally, in Annex Seven of the transitional justice would win by getting
Dayton Peace Agreement refugees and out of a purely legalist frame and
displaced people ―have a right to freely including several perspectives in order to
return to their homes of origin,‖ and bring back peace and reconciliation.
states have a duty to ―accept the return of If we take the example of Rwanda; it has
such people who have left their territory, been member of the United Nations since
including those who have been accorded 1962. As such, it has to follow the United
temporary protection by third Nations Charter. In Article 8, this charter
countries‖.304 The International Covenant recognises that everyone has a right to an
effective remedy. If I pursue my argument
that refugees are part of the citizens who
301 Harris Rimmer, Susan. Reconceiving Refugees and Internally suffered the most, then they should get
Displaced Persons as Transitional Justice Actors, Centre for
International Governance and Justice Issues Paper n°7, April 2009,
access to this effective remedy and get
Australian National University, p 3. reparations, taking into account that this
302 Annan, Jeannie and Ana Cutter Patel, Critical Issues and
notion is a very problematic one. However,
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 http://www.state.gov/www/regions/eur/bosnia/bosagree.html,
Indias, 4, 5 and 6 May 2009. 13 November 2011.
303 Universal Declaration of Human Rights, G.A. Res. 217A, U.N. 305 International Covenant on Civil and Political Rights, 999
GAOR, 3rd Sess., Supp. No. 3, at 71, U.N. Doc. A/810 (1948), U.N.T.S. 171 (1966). Article 12(4).
accessed on 13 November 2011, Article 13(2). Reads as follows: 306 Sopf, Davor. Temporary Protection in Europe After 1990: The
“No one shall be subjected to arbitrary arrest, detention or exile”, “Right to Remain” of Genuine Convention Refugees, UNHCR
available at http://www.un.org/en/documents/udhr/., Branch Office, Zagreb, Croatia, Washington University Journal of
304 The Dayton Peace Accord, Nov. 21, 1995, Annex Seven, Law and Policy, Vol.6, 2001.
available at
Page 103
I think that the right to an effective Sixty years of such prejudicial fabrications
remedy should be envisaged as an active inflated Tutsi egos inordinately and
right of seeking remedy and therefore crushed Hutu feelings, which coalesced
making the refugees real actors. Giving into an aggressively resentful inferiority
them this opportunity would lead to no complex.‖308
longer differentiating them from other
citizens and, therefore, give them the Another problem is that ―the field of
rights attached to their nationality such transitional justice has historically
as seeking a remedy. Such a possibility excluded issues of economic inequality,
could enhance their will to return. structural violence, redistribution and
development‖.309 The focus of transitional
CREATING A TRANSITIONAL JUSTICE justice is to correct the injustices from the
SYSTEM WHERE REFUGEES HAVE past and it is usually focussed on human
THEIR ROLE TO PLAY rights violations and, when ―it does
Addressing the roots of the problems address economic issues, it focuses on
In the example of Rwanda, what we reparations or compensation for a victim
witnessed is the desire to reconcile divided group defined by the institution‖310.
communities that were devastated by The main problem of not envisaging all the
genocide. The Gacaca system appeared to roots of the problems is that it limits the
be the best example for judging the conflict, the violence, and gross violation
perpetrators (except the perpetrator of of human rights. For instance in Rwanda,
category one) in order to bring back peace the transitional justice system sees the
and lead to reconciliation. However, problem as an ethnicity issue rather than
creating Gacaca has been viewed as ―decades of inequity, unequal land
punishment and not as healing. During distribution and colonial construction‖.311
the instauration of Gacaca courts, the Therefore, if the transitional justice
focus has been on legality.307 system does not have a comprehensive
However, as seen previously, a focus on approach to the roots of the problems and
legality is near-sighted because it does not especially the economic ones, ―it may
address the roots of the problems and the actively contribute to new outbreaks of
comprehensive need of the victims for violence‖.312
truth and reparation. In transitional It is also necessary to take into
justice, there is a real need for a consideration the psychological
comprehensive approach, not only a dimension, the traumas experienced and
remedy. The roots of the problems often the human reactions and hard feeling that
exist in historical, social, economic and could result. What is needed, therefore, in
political reasons and in humanity itself. transitional justice to make people come
For instance, in the Rwanda example, the back and create peace, is a comprehensive
historical roots of the problems have been approach.
left out whereas: The psychological, human dimension
―During their colonial tenure, the ―Some individuals who participate in or
Germans and Belgians ruled Rwanda are exposed to violence may suffer from
indirectly through Tutsi monarchs and psychological disturbances as well as
their chiefs. The colonialists developed the
so-called Hamitic hypothesis or myth,
which held that the Tutsi and everything 308 Berry, John A and Carol Pott Berry. (eds.), A review of
humanly superior in Central Africa came Mahmood Mamdani, When Victims Become Killers: Colonialism,
Nativism, and the Genocide in Rwanda, Princeton University
from ancient Egypt or Abyssinia. The Press, 2001. p. 364; Genocide in Rwanda: A Collective Memory.
Europeans regarded Hutu and Twa (about Washington, DC: Howard University Press, 1999. p. 201.
3% of the population) as inferior to Tutsi. 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,
307Thomson ,Susan and Rosemary Nagy. Law, Power and Justice: Oxford University Press. 30 October 2008.
What Legalism Fails to Address in the Functioning of Rwanda‟s 310 Ibid.
Gacaca Courts, International Journal of Transitional Justice, Vol.5, 311 Ibid.
2011, 11-30, doi: 10.193/ijtj/ijq024, Oxford University Press, p. 13. 312 Ibid.
Page 104
more fundamental identity and spiritual revenge or a well-founded fear. Why would
problems‖.313 Therefore, I argue that this refugees go back to live among their
dimension should be essential when perpetrators? It would be interesting to
constructing a transitional justice system. think of this problem when trying to
As argued previously, refugees managed include refugees and creating the
to flee the country but their trauma conditions for them to come back.
remains. If the goal is to bring back peace,
which cannot be done without including THE PROBLEMATIC RWANDA
the problematic of refugees who are still GRACACA CASE: A TRANSITIONAL
citizens of a wounded country, the JUSTICE SYSTEM CREATING
psychological dimension has to be taken REFUGEES
into account from the beginning. The Gacaca courts were the only
The state should first demonstrate that transitional justice system that actually
the well-founded fear of persecution has tried to prosecute everyone responsible for
disappeared, then that refugees still have or participating in the genocide. It was
enough ties with their country of origin to argued that it is a good system to fight
be willing to come back, construct their impunity especially with the rule of non
lives and participate in the healing bis in idem. However, the problem with the
process. There might be a desire for non bis in idem rule is that there is a risk
revenge and the transitional justice that someone innocent will be prosecuted
system itself may be used as a tool for again by the same people for the same
revenge as it was in the Gacaca process thing. In some cases I have been dealing
where the witnesses are usually the only with, I observed that people, under
grounds to judge people. Refugees want to pressure, threatened to charge someone in
see their perpetrators prosecuted so that front of the Gacaca. The real reason for
they can feel a sense of justice. This leads persecution most of the time is to seek
me to the following thought that material compensation, a house, land. In
transitional justice should not be most of my cases, people flee because they
collective but somehow be individual.314 are forced to lie and cannot get assistance.
Indeed, transitional justice such as the They have no choice but to leave the
ICTY, has to choose who to prosecute. country. My argument would therefore be
Therefore, some will be satisfied that their that this kind of transitional justice
perpetrators being judged and other will system also creates refugees. It does so
not and see the situation as unfair and because, as we have seen, the economic,
this cannot objectively lead to social and historical reasons have never
reconciliation. If there is no possibility of been envisaged.
reconciliation and no suppression of well-
founded fears, which can be subjective The Rwanda system is very particular
fear as accepted in the case law, then the within transitional justice. The supreme
refugees will return. goal was to lead the population to
Moreover, if we take the example of reconciliation. It is a good example, which
Rwanda, it must be recalled that the shows that a comprehensive approach to
population lives together with génocidaires the problem has not been taken into
and victims. Therefore a neighbour can be account. ―Gacaca is part of a state-
the one who killed the entire family of imposed veneer of reconciliation that does
his/her neighbour. From a psychological little to address the social and political
point of view, this dimension will affect the divisions and injustices that underlie
human being and does create a desire for mass atrocity and conflict‖.315 This
transitional justice system skipped the
313 Barsalou, Judy. Trauma and Transitional Justice in Divided
Societies, , Special Report, United States Institute of Peace, April 315 Thomson, Susan and Rosemary Nagy. Law, Power and Justice:
2005. What Legalism Fails to Address in the Functioning of Rwanda‟s
314 Nalepa Monika. Why do They Return? Evaluation the impact of Gacaca Courts? International Journal of Transitional Justice Vol. 5,
ICTY Justice on Reconciliation, Political Science Rice University 2011, 11-30, doi:10.1093/ijtj/ijq/024, 2010, Oxford University
Harvard Academy Scholar, 26 January 2007. Press, p, 12.
Page 105
roots of the problems where genocide Refugees are the forgotten actors of the
cannot be understood apart from the transitional justice system. For all the
conditions of structural violence, poverty reasons pre-cited they should be
and social exclusion that characterised integrated in the process of peace and
Rwanda in the 1990s.316 reconciliation and they should be able to
Research done by Susan Thomson and seek proper remedy for the damages they
Rosemary Nagy showed that Rwandan have suffered. It is necessary to have a
citizens were not willing to participate in comprehensive approach to the
the Gacaca process. If the people who transitional system taking into account
stayed were not willing to participate, it is the roots of the problems, which led to
even more problematic and complicated to mass atrocities and the psychological
imagine that refugees would return and dimensions, traumatisms they created.
participate. The Gacaca system remains problematic
In some cases I have been dealing with,317 because of lack of proof, lack of attorneys
the pressure on some witnesses is really and a lack of international standards. It
striking. Since the Gacaca is based on a creates refugees and leads to the opposite
system of truth-telling, I have seen people of the goals of upholding the transitional
being threatened or even beaten up in justice system. In my opinion, the refugee
order to coerce them to admit they issue within transitional justice is an
witnessed others participating in the important one, which has been totally
genocide. They do not have the chance to forgotten and should be seriously
get any protection so the luckiest manage envisaged when building transitional
to escape to other countries and request justice systems. The future will tell us if
asylum. In those cases we can argue that the Gacaca system managed to prevent a
this model of transitional justice is far new conflict but one might fear that the
from being a perfect system. It has been roots of the problems are still underlying.
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.
CONCLUSION
316 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/le-
rwanda-annonce-la-fin-des-proces-gacaca-en-
decembre_1525162_3212.html.
Page 106
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 at

http://www.state.gov/www/regions/eur/bosnia/bosagree.html
 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966).
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-des-
proces-gacaca-en-decembre_1525162_3212.html
Page 108
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.
Page 109
Introduction making procedures by ITAs. In order to do
A temporary international administration so, the paper will firstly evaluate ITA
of territory (ITA) by an international mandates for inclusionary governance
organisation or a group of states in post- provisions. Within this assessment the
conflict situations exercises public power role of human rights standards within
extensively. An international ITAs will be taken into account, i.e.
administrator can adopt decisions without whether a claim for inclusionary
engaging in significant consultations with governance can be further substantiated
affected individuals. An administrator can, on the basis of the applicability of human
for example, adjudicate property rights standards to the conduct of ITAs.
disputes,319 operate/reconstruct public Subsequently, how the functioning of ITAs
utilities and dismiss people from public is assessed by international organisations
office.320 Similarly, several international will be examined; in other words, whether
institutions adopt decisions with direct international organisations have identified
impact on individuals while these a lack of inclusionary governance in
individuals are not quite included in the relation to ITAs and whether they warrant
process of decision-making, for instance inclusionary governance by ITAs. Lastly,
the UN Security Council adopting the paper contends that the exclusion of
financial sanctions against individuals. individuals in decision-making procedures
The all-encompassing governance by ITAs forms a more general problem in
and the adoption of decisions in individual international law. Therefore, a concise
situations lead, in particular, to a comparison is made between the exercise
significant constraint of state sovereignty, of public power by ITAs and that by
and directly affect the lives and international organisations.
opportunities of millions of people.321 The
Individual decision-making procedures
exercise of public power in this manner of ITAs
has led various international bodies to An ITA can be defined as the temporary
raise a claim for inclusionary processes governance of a territory in a post-conflict
into the decision-making procedures in situation by an international organisation
individual situations of an ITA.322 or group of states, such as the UNMIK323
Given the impact of the adoption of
in Kosovo, UNTAET324 in East-Timor and
decisions in individual situations by ITAs
and the exclusion of the individuals from OHR325 in Bosnia and Herzegovina (BiH).
decision-making procedures by ITAs, the ITAs exercise public authority extensively.
principal objective of this paper is to The missions are argued to:
present a critical analysis of the claim for ―…assume all-encompassing authority to
inclusionary processes into decision- exercise public power within a given
territory for a temporary period of time
and…this authority is ultimate in nature:
319 Buyse, A.C. Post-Conflict Housing Restitution. The European Human that is, it supersedes all governing
Rights Perspective, with a Case Study on Bosnia and Herzegovina institutions possibly existing at the local –
(Antwerpen: Intersentia, 2008).
320 Knaus, G. and F. Martin. “Lessons from Bosnia and that is, the national – level‖.326
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 323 United Nations Interim Administration Mission in Kosovo
Council of Europe (“Venice Commission”), Opinion on the (UNMIK). http://www.unmikonline.org/.
Constitutional Situation in Bosnia and Herzegovina and the Powers of the 324 United Nations Transitional Administration in East Timor
High Representative, CDL–AD (2005) 004 (Venice, 11–12 March (UNTAET).

2005) (“Venice Commission OHR”); Parliamentary Assembly of http://www.un.org/en/peacekeeping/missions/past/etimor/etim
the Council of Europe, Resolution 1384 (2004), available at or.htm.
http://assembly.coe.int/ (7 November 2011); European Stability 325 Office of the High Representative of the international
Initiative, Reshaping international priorities in Bosnia and Herzegovina – community, Bosnia and Herzegovina (OHR). http://www.ohr.int.
Part II International Power in Bosnia (Berlin: European Stability 326 Momirov, A. Accountability of International Territorial Administrations
Initiative 2000). – a Public Law Approach, (Utrecht: Eleven Publishing, 2011). p. 49.
The wide range of competences assumed The first dimension concerns

by ITAs is notably described in the transparency, implying that there should
Brahimi report: be free access to information, i.e. the right
―[ITAs] [s]et and enforce the law, establish to seek information and the right to
custom services and regulations, set and receive information. Transparency is
collect business and personal taxes, generally considered a prerequisite for
attract foreign investment, adjudicate meaningful participation.330 The element
property dispute and liabilities for war of transparency builds on the right to
damage, reconstruct and operate all freedom of information, which takes
public utilities, create a banking system, various forms within human rights
run schools and pay teachers and collect treaties, most often protected through
the garbage‖.327 freedom of expression.
Among many measures, ITAs adopt The second dimension concerns
several decisions in individual situations, participation in decision-making
which is the focus of this paper. Decision- procedures of a public administrator.
making in individual situations concerns Participation can be realised through both
decisions of an administrative nature formal and informal procedures.
which influences the lives of individuals Participation in decision-making
either directly or indirectly, e.g. regarding procedures finds limited reflection in
permits or infrastructure projects, and human rights treaties. Nevertheless,
thus does not concern those procedures various human rights bodies, including
that are norm-developing, such as the the Committee on Economic, Social and
development of legislation or policy Cultural Rights, emphasise the need to
standards.328 ITAs adopt decisions in mainstream inclusionary processes in
individual situations, e.g. when removing decision-making, e.g. in relation to the
a person from holding a public office or right of adequate housing.331
deciding on an individual case of housing The third dimension concerns access to
restitution. The question is whether and justice in relation to which two separate
to what extent individuals are included in elements can be identified. Firstly, this
these decision-making procedures. dimension focuses on the extent to which
individuals directly affected by the
Three-dimensional approach to decision can request a review thereof
inclusionary governance before an impartial entity. Secondly, it
This research paper adopts as its point of concerns the possibility of recourse to a
departure a three-dimensional approach remedy when rights protected by the other
to inclusionary governance: transparency, two dimensions are impaired. Within
participation in the decision-making human rights treaties access to justice is
procedures and access to justice. It is protected by the right to a fair trial.
generally accepted that, for proper The complementarity between the three
inclusion of affected individuals it is these dimensions implies that the lack or
three elements that are paramount.329 weakness of one dimension may to some
327 Report of the Panel on United Nationals Peace Operations J.B. Wiener, “Global Governance as Administration: National and
(Brahimi report) UN Doc. A/55/305-S/2000/809. p. 21 August Transnational Approaches to Global Administrative Law”, Law and
2000, available at Contemporary Problems 68:3–4 (2005) 1–14 and B. Kingsbury, N.
http://www.un.org/peace/reports/peace_operations (7 Krisch, and R.B. Stewart, “The Emergence of Global
November 2011), para. II.H. The report questions the urge of the Administrative Law”, IILJ Working Paper 2004/1 (Global
UN to classify the ITAs as peace operations and questions whether Administrative Law Series), available at www.iilj.org. Similarly,
the UN should be engaged with this kind of mission at all. Multilateral Development Banks rely on these three principles for
328 Hey, E. “International Institutions”, The Oxford Handbook of the decision-making procedures. See: e.g. the Operational Policies
International Environmental Law (Oxford: Oxford University Press, and Procedures of the World Bank at
2007). 749 at pp. 749–759. http://go.worldbank.org/2G5SSZAET0 (7 November 2011).
329 Ebbesson, J. “Public Participation” in Bodansky, Brunneé and 330 Boyle, K. “Thought, Expressions, Association and Assembly” in
Hey, The Oxford Handbook of International Environmental Law, see D. Moeckli, S. Shah and S. Sikvakumaran, International Human Rights
above n. 10, 681 p. 684. Global Administrative Law has identified Law, (Oxford: Oxford University Press, 2010). p. 268.
these three principles as the core principles of administrative 331 Temperman, J.T. “Public Participation in Times of Privatisation:
decision-making, see B. Kingsbury, N. Krisch, R.B. Stewart and A Human Rights Analysis” Erasmus Law Review 4:2 (2011).
Page 111
extent be compensated by broader all the functions that are normally the
protection under the other dimension(s). responsibility of a government‖, which
For instance, a lack of participation in creates a situation in which the
decision-making procedures might be international presence is ―responsible for
compensated by providing more directly managing all aspects of civilian
possibilities of redress. 332 The paper will life while simultaneously working to
mainly focus on the concept of devolve its responsibilities to local
inclusionary governance and, only where authorities‖.335
necessary, will a reference to a specific
dimension will be made.333 The responsibility for ITAs to transfer
power to local authorities lies at the core
Contextualising a claim for of the mandate of the ITAs.336 The long-
inclusionary governance by ITAs term objective of ITAs is to ―do themselves
Practice shows that the regulation and out a job‖ by devolving authority back to
implementation of inclusionary processes the local community.337 This would imply
in decision-making procedures by ITAs close cooperation with the local people. As
remain deficient.334 However, is there a stated by the UN Panel on Peace
sufficient ground to claim for inclusionary Operations, ―effective state-building
governance by ITAs? In order to do so, the requires active engagement with the local
paper will firstly evaluate ITA mandates parties‖.338 In other words, a growing
for inclusionary governance provisions. consensus can be identified with the need
Secondly, the paper discusses the review to strengthen local ownership in the
of international organisations on the process of peace-building.339
inclusion/exclusion of individuals in the
decision-making by ITAs. Lastly, the paper A brief survey of ITA mandates
evaluates whether the exclusion of Within the mandates of ITAs, special
individuals forms a more general problem provisions were adopted in which power
in international law by assessing whether sharing arrangements between the ITA
and to what extent the exercise of public and the local authorities were included.
power by ITAs in individual situations can As early as 1968, the General Assembly
be compared with the exercise of public mandated the Council of Namibia to
power by international institutions. ―administer South West Africa until
independence, with the maximum
EVALUATING ITA MANDATES FOR possible participation of the people of the
INCLUSIONARY PROCESSES Territory‖.340 A further example is the
mandate of the UNMIK in Kosovo. It was
Power-sharing arrangements between mandated to organise and supervise the
local authorities and ITAs: a basis for development of provisional institutions for
inclusionary governance?
According to the handbook on UN 335 United Nations, Handbook on United Nations Multidimensional
Multidimensional Peacekeeping operations Peacekeeping Operations, Department of Peacekeeping Operations,
Peacekeeping Best Practices Unit (December 2003) pp. 2, 35 cited
ITAs were set out to: in Momirov, A. Accountability of International Territorial
―…[administer] a territory for a Administrations, above n. 8, pp. 51–52.
transitional period, thereby carrying out 336 Momirov, A. Accountability of International Territorial
Administrations, above n. 8, p. 153.
337 International Commission on Intervention and State
332 See in this light e.g. the claim for an ombudsman in BiH and Sovereignty (2011), Report: Responsibility to protect (Ottowa:
Kosovo due to limited involvement of citizens, whereas in East- International Development Research Centre), available at
Timor such a claim was never made In UNTAET, citizens were http://www.responsibilitytoprotect.org/index.php/publications
involved, both directly and indirectly, as regulated in the ITA‟s (visited 7 November 2011), para. 5.31.
mandate. 338 Report of the Panel on the United Nations Peace Operations,
333 This paper‟s findings are to be part of a doctoral research UN Doc. A/55/305-S/2000/809, above n. 9, para. 37.
project. For further research results, please contact the author. 339 Report of the Secretary-General of the United Nations, The
334 Stahn, C. The Law and Practice of International Territorial Rule of Law and Transitional Justice in Conflict and Post-Conflict
Administration: Versailles to Iraq and Beyond (Cambridge: Cambridge Societies, UN Doc. S/2004/616, 23 August 2004, para. 17.
University Press, 2008); Momirov, A. Accountability of international 340 Stahn. C. The Law and Practice of International Territorial
territorial administrations, above n. 8. Administration, above n. 18, p. 718; GA Res. 2248 (1968) para. 1(a).
Page 112
democratic and autonomous self- administrator of territory.346 This complex

government by ―transferring, as these relation between the local authorities and
institutions are established, its the ITA can be identified in each of the
administrative responsibilities while administrations. To illustrate, UNTAET
overseeing and supporting the had a system of ―co-governance‖ in the
consolidation of Kosovo‘s local provisional second phase of the transition, while the
institutions‖.341 Similarly, the UNTAET ultimate authority stayed with the
was mandated to exercise its authority UNTAET. The Constituent regulations
―with a view to…transfer to these stated that those powers vested in the
institutions to its administrative and domestic authorities (power-sharing basis)
public service functions‖.342 did not prejudice the final authority of the
In the case of Iraq, the Security Council administrator.347 Furthermore, several
requested the administrator to cooperate executive decisions/powers stayed with
with the Iraqi Council in the exercise of its the exclusive ambit of the
functions.343 The CPA regulated the administrator.348
cooperation in CPA Regulation No. 6, Hence, even though ITA mandates
which stated that, ―the Governing Council include specific power-sharing
and the CPA shall consult and coordinate arrangements with local authorities, the
on all matters involving the temporary final authority of the ITAs diminishes the
governance of Iraq, including the actual involvement of local authorities.
authorities of the Governing Council‖.344 Furthermore, ITAs often excluded the local
Hence, recent ITA mandates contain more authorities in the decisions to be taken at
explicit obligation to transfer authority the executive level.
and to cooperate with the local
authorities. A short survey of mandates To sum up: can inclusionary
shows that power-sharing arrangements governance provisions relating to ITA
and thereby involvement by domestic decision-making procedures be
authorities became an integral part of the identified?
mandate of ITAs.345 The survey pointed out the importance of
power-sharing arrangements and the
Diminishing the effect of the power- necessity for ITAs to promote and
sharing arrangements: final authority institutionalise local ownership
of ITAs throughout the mission. Nevertheless,
However, the promising inclusion of local even though power-sharing arrangements
authorities via power-sharing were made between the local authorities
arrangements in the decision-making by and the ITAs, this does not necessarily
ITAs needs to be mitigated to a certain provide a sufficient ground for a claim for
extent. As is significant with the exercise inclusionary processes in the decision-
of public power by ITAs, the final making procedures in individual
authority stayed with the ITAs for the situations of ITAs. First of all, concrete
duration of the administration even after provisions, which hint at such
the transfer of powers to the local inclusionary processes in decision-making
authorities. One can, therefore, question procedures, can hardly be identified in the
the effect of these power-sharing mandates. For instance, within UNMIK,
arrangements, since at the end the final requirements for inclusionary processes
say remained with the international can only be identified in relation to the
legislative branch, but not in relation to
341SC Res. 1244 (1999) art. 11 (c) and (d).
342SC Res. 1271 (1999) artt. 2(b) and 8. 346 Momirov, A. Accountability of International Territorial
343 Stahn, C. The Law and Practice of International Territorial Administrations, above n. 8, p. 160.
Administration, above n. 18, p. 722; SC Res. 1511 (2003) paras 4–6. 347 UNTAET Reg. 1999/2 (2 December 1999) Section 1 art 1.3 and
344 See section 2 of Coalition Provisional Authority (CPA) UNTAET Reg. 1999/3 (3 December 1999) artt. 11.2, 13.2 and
Regulation No. 6, 13 July 2003. 14.2.
345 Stahn, C. The Law and Practice of International Territorial 348 Momirov, A. Accountability of International Territorial
Administration, above n. 18, p. 718. Administrations, above n. 8, p. 160.
Page 113
the decision-making in individual adhere to and implement international

situations. Secondly, some powers stayed law, fundamental human rights and the
within exclusive competence of the basic standards of due process‖.351
administrator throughout the existence of The importance of human rights within a
the ITA, to a large extent consisting of peace-building mission can also be
executive powers, e.g. individual identified on the basis of a short survey of
decisions. For example, UNMIK kept full the ITA mandates. The UN Secretary-
competence to decide to remove a person General interpreted the UNMIK mandate
from holding public office without a and thereby UNMIK‘s legal framework as
requirement to involvement local follows: ―...[i]n assuming its
authorities.349 Thirdly, those responsibilities UNMIK will be guided by
arrangements made on decision-making internationally recognised standards of
procedures were solely between local human rights as the basis for the exercise
authorities and ITAs, not with the of its authority‖.352 Furthermore, the
individual against whom a decision was protection and promotion of human rights
taken. In other words, on the basis of the was formulated as one of the main
survey of the ITA mandates, no role can responsibilities of UNMIK.353
be identified for the individual to be Nevertheless, UNMIK officials challenged
somehow included in the ITA‘s decision- the applicability of human rights treaties
making procedures. in Kosovo by stating that this did not
imply that these treaties and conventions
The role of human rights when
were in any way binding on UNMIK.354
governing ITAs
As argued, the regulation of the The problem was that the regulation did
inclusionary processes in the decision- not state that international human rights
making of ITAs seem to remain deficient. standards were directly applicable in
Therefore, this paper turns to the role of Kosovo nor did the regulation provide that
the ITAs and their objectives within post- such standards form the legal framework
conflict situations to examine whether and within which the administration should
to what extent a claim for inclusionary function.355
governance can be based on the goals and The human rights framework was less
objectives of the ITAs. It is the task of the problematic within UNTAET. The mandate
ITA to promote and guarantee citizens‘ of UNTAET referred, amongst other things,
involvement in the decision-making ―to support capacity building for self-
procedures of the domestic government.
Within the mandates of UN missions in
post-conflict situations we can find 351 “Report of the Secretary-General, In Larger Freedom: Towards
specific references to the creation of stable Security, Development and Human Rights for All”, UN Doc.
and democratic societies.350 As the A/59/2005, para. 113.
352 Emphasis added by author. Report of the Secretary-General on
Secretary-General pointed out: UNMIK, UN Doc. S/1999/779, 12 July 1999, para. 42. See also
―United Nations…peace-builders have a paragraph 75 in which the Secretary-General states that UNMIK
solemn responsibility to respect the law laws should be adapted in accordance with human rights standards.
353 SC Res. 1244 (1999) (11)(j).
themselves, and especially to respect the 354 Momirov, A. Accountability of International Territorial
rights of the people whom it is their Administrations, above n. 8, p. 120. Human Rights Committee,
mission to help…the United Nations Report submitted by the United Nations Interim Administration
Mission in Kosovo to the Human Rights Committee on the
should reaffirm its commitment to respect 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
349 UNMIK Reg. 2001/9 “On a Constitutional Framework for attitude, e.g., Amnesty International (AI), Human Rights
Provisional Self-Government in Kosovo”(15 May 2001) as Protection in Post-status Kosovo/Kosova: Amnesty
amended by UNMIK Reg 2002/9 (3 May 2002), UNMIK Reg International‟s Recommendations in Relation to Talks on the Final
2007/29 (4 October 2007), UNMIK Reg. 2008/1 (8 January 2008) Status of Kosovo/Kosova, EUR 70/008/2006, 24 July 2006, p. 8.
and UNMIK Reg. 2008/9 (8 February 2008) Chapter 8 Article 8.1. 355 UNMIK Regulation No. 1999/24 on the Applicable Law in
350 Cambodia, see: E. De Brabandere, Post-Conflict Administrations in Kosovo; D. Marshall and S. Inglis, “The Disempowerment of
International Law (Leiden/Boston: Martinus Nijhoff Publishers Human Rights-Based Justice in the United Nations Mission in
2009) p. 332. Kosovo” 16 Harvard Human Rights Journal (2003) p. 104.
Page 114
government‖.356 Noteworthy is, however, missions.362 Furthermore, scholars have

the omission of any reference to argued that human rights are applicable
―promoting and protecting human rights‖ to ITAs on the basis of their legal status,
within the mandate of UNTAET. 357 i.e. customary law status or in some cases
Nevertheless, UNTAET interpreted its ius cogens status.363 More clear-cut is the
mandate as including a human rights applicability of human rights standards
component.358 This is further confirmed via the constituent documents of the ITAs
by one of UNTAET‘s first actions, setting a explicitly stating so. However, the short
regulatory framework for the exercise of survey of ITA mandates shows that often
power in the ITA. Regulation 1999/1 an explicit reference to human rights
established that, ―international human standards as legal framework for the
rights standards would overrule the conduct of the ITA is lacking. As noted by
application of national laws‖359 and that Momirov, ―…[ITAs] constituent documents
power should be exercised in East-Timor fail to institutionalise international human
in a manner consistent with international rights law explicitly as part of the legal
framework governing the activities of ITA
human rights standards.360
missions.‖364 The failure to provide a clear
It is clear that human rights protection is
one of the core objectives of ITAs. legal framework for the governing
However, it cannot be automatically activities can have tremendous
assumed that human rights provisions are consequences. Abuse of power seems to
applicable to the conduct of ITA be the regrettable consequence as argued
by Marshall and Inglis regarding UNMIK.
officials.361 Nevertheless, it is often
―UNMIK‘s power could be used arbitrarily
argued that human rights standards and unfairly, without accountability,
should be part of the legal framework transparency, or predictability – in
regulating the conduct of ITA officials. contravention of the meaning of justice
Commonly used reasoning is that the UN
and the rule of law‖.365
administrations should be bound by
human rights on the basis of the UN Even though the legal framework for ITAs
Charter as the over-arching constitution, seems to be lacking or insufficient there
incorporating human rights protection is, nevertheless, consensus that,
and acting as legal framework for the ―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
356 UN SC Res. 1272 (1999) art. (2)e.
357 This is despite the fact that there was a reference to such a by most ITAs that human rights only have
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 362 N.D. White and D. Klaassen, “An Emerging Legal Regime?” in
Rights Norms” N.D. White and D. Klaassen, The UN, Human N.D. White and D. Klaassen (eds.) The UN, Human Rights and Post-
Rights and Post-Conflict Situations (Manchester: Manchester University Conflict Situations, above n. 143, pp. 1–16, p. 7.
Press, 2005) p. 297; UN Doc. S/1999/1024, 4 October 1999. 363 Reinisch, A. “Developing Human Rights and Humanitarian
358 Devereux, “Searching for Clarity”, above n. 42, p. 299. Law: Accountability of the Security Council for the
359 UNTAET Regulation 1999/1 section 3. Implementation of Economic Sanctions” 95 AJIL (2001) pp. 851–
360 UNTAET Regulation 1999/1 section 2. 871.
361 Even though this argument can be made on the basis of sound 364 Momirov. A. Accountability of International Territorial
reasoning, due to word limitations, the author will only touch Administrations, above n. 8, p. 119. See for a detailed assessment of
briefly on the question whether human rights provisions are the lack of institutionalisation and implementation of human rights
applicable to the conduct of ITAs. Instead, see for a detailed standards in the justice reform by UNMIK, Marshall and Inglis,
assessment, White and Klaassen. The UN, Human Rights and Post- “The Disempowerment of Human Rights-Based Justice in the
Conflict Situations, above n. 39; Legal System Monitoring Section, United Nations Mission in Kosovo”, above n. 37.
Organisation for Security & Cooperation in Europe, “Review of 365 Marshall and Inglis, idem, above n. 38, p. 104.
the Criminal Justice System in Kosovo 1999–2005” (2005–2006), 366 Stahn, C. The Law and Practice of International Territorial
available at http://www.eulex- Administration, above n. 18, p. 749. See also the implicit
kosovo.eu/training/material/docs/KR/KR_Material/osce2321.pd acknowledgement by the Secretary-General in The Rule of Law
f (4 November 2011); Momirov, A. Accountability of International and Transitional Justice in Conflict and Post-Conflict Societies,
Territorial Administrations, above n. 8, pp. 115f–128. above n. 23, para. 33.
Page 115
to be obeyed to a certain extent. The More specifically, the exercise of public

Ombudsperson Institute in Kosovo power by ITAs has led various
remarkably argued that: international bodies to raise a claim for
―It is ironic that the UN, the self- inclusionary processes in ITA‘s decision-
proclaimed champion of human rights in making procedures in individual
the world, has by its own actions placed situations. The Venice Commission of the
the people of Kosovo under control, Council of Europe has criticised the
thereby removing them from the exercise of public power by ITAs for
protection of the international human human rights violations. In relation to the
rights regime that formed the justification removal decisions by the OHR, removing
for UN engagement in Kosovo in the first public officials from office,369 the Venice
place‖.367 Commission concluded that these
In other words, while it is not clear to decisions represented a serious
what extent human rights standards are interference with the officials‘ rights and
applicable to the conduct of ITAs, one can therefore due process standards should
conclude that the UN has a high have been followed.370 Furthermore, the
responsibility to guarantee and respect addressees of the removal decisions were
human rights when governing a territory; mainly officials elected by the citizens. The
especially, considering the vital role the rights of their voters were also affected,
UN plays in promoting human rights at and thereby it constituted a de-facto
the local level. Consequently one can interference with the voters‟ rights to
argue that ITAs should uphold, at least, a participate via elections (i.e. their elected
certain minimum level of human rights representative got removed without a voice
standards, which further underlines the from the voters).371
demand for inclusionary governance in In other words, the individuals‘ rights to
decision-making by ITAs. information was interfered with by not
providing the grounds for the removal in
Assessment of functioning of ITAs – a due time. Their rights to participate were
short survey of critics by the violated as they had no possibility of
international community participating in the decision-making
This section provides a concise overview of process. Lastly, they were denied access to
the review by international institutions justice, because they were not provided a
and bodies of the role of individuals within fair hearing or a possibility for appeal. The
the decision-making procedures of ITAs. Venice Commission concluded that the
The International Law Association ITA violated the three dimensions of
concluded in its report on the inclusionary processes, which implied
accountability of international that when adopting these decisions in
organisations that there is a general claim individual situations, in this case removal
to be made that: decisions, ITAs should include the
―…[international organisations] should
incorporate basic human rights
obligations into their operational 369 The majority of the removals concerned persons not
guidelines, policies and procedures, cooperating with the International Criminal Tribunal for the
former Yugoslavia. Others included removals for corruption,
particularly when exercising governmental mismanagement of public assets or other offences including
authority in the conduct of temporary interference with the judiciary. The officials were, in principle,
administration over a particular removed indefinitely unless the imposed ban is lifted by the
international administrator. See e.g. the OHR, Decision Removing
territory[.]‖368 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.
367 Ombudsperson Institute in Kosovo, Second Annual Report 370 According to the Venice Commission, the decisions should
2001–2002, 10 July 2002, obtainable from follow “a fair hearing and be based on serious grounds with
www.ombudspersonkosovo.org (5 November 2011) pp. 3 and 7. sufficient proof and the possibility of a legal appeal. The sanction
368 Emphasis added by the author. International Law Association, has to be proportionate to the alleged defence.” Venice
Accountability of International Organisations, Final Report, Berlin Commission OHR, above n. 7, paras 92–97.
Conference 2004, available at http://www.ila-hq.org/, p. 23. 371 Venice Commission OHR, above n. 7, para. 97.
Page 116
individual in the procedure. In relating Excluding the individual from

inclusionary processes to UNMIK the decision-making procedures – a
Council of Europe recalled that, despite all general problem of public
power-sharing arrangements, international law?
―…[a]ll legal texts directly applicable in While the exercise of public power by
Kosovo, with the sole exception of UN international institutions is not all
Security Council Resolution 1244, may encompassing in comparison with the ITA,
equally be revised or revoked by an international institutions do exercise
[international administrator] without the public power. Several international
need for consultation with any local body institutions can adopt decisions that
or the possibility of any parliamentary or directly or indirectly affect individuals,
judicial review‖.372 which make their exercise of public power
By having the authority to revise or revoke to a large extent comparable to ITAs‘
any legal text in Kosovo, UNMIK excludes public power. Illustrative examples are the
the local actors from the process of recognition of refugee status by the
decision-making, whereas inclusion of UNCHR,374 UN Security Council sanctions
local authorities into the decision-making against individuals375 and World Bank
by ITAs is required according the Council decisions on financing projects.376 For
of Europe. The critique coming from instance, in relation to the Security
international organisations is based Council many calls for inclusionary
significantly on the all-encompassing
processes have arisen.377
authority of ITAs, which is to a large
extent comparable with a state exercising As argued by von Bogdandy, Dann and
public power. Goldmann:
In this light, the Venice Commission ―…the listing of terrorist suspects by the
concluded in relation to UNMIK that: UN Security Council provides the most
―In Kosovo UNMIK and KFOR carry out dramatic example of governance that
tasks which are certainly more similar to would be hardly permissible at the
those of a state administration that those domestic level‖.378
of an international organisation proper. It Every listed individual or entity is subject
is unconceivable and incompatible with to the sanctions of a freeze of assets, a
the principles of democracy, the rule of travel ban and an arms embargo by all UN
law and respect for human rights that
they could act as state authorities and be 374 Smrkolj, M. “International Institutions and Individual Decision-
exempted from any independent legal making: An Example of UNHCR”s Refuge Status Determination”
German Law Journal 9 (2008) 1779–1804; see also R. Wilde, “Quis
review‖.373 Custodiet Ipsos Custodes?: Why and How UNHCR Governance
Concluding, ITAs do not provide sufficient of “Development” Refugee Camps Should be Subject to
inclusionary processes in the decision- International Human Rights Law” 1 Yale Human Rights &
Development Law Journal (1998) pp. 107–128.
making procedures for individual 375 Feinaugle, C.A. “The UN Security Council Al-Qaida and
situations. Differently put, often Taliban Sanctions Committee: Emerging Principles of International
individuals are excluded from the Institutional Law for the Protecting of Individuals”, German Law
decision-making procedure, which directly Journal 9 (2008) pp 1513–1538.
376 Naude Fourie, A. The World Bank Inspection Panel and Quasi-
affects them. For these reasons various Judicial Oversight (Utrecht: Eleven International Publishing, 2009).
human rights organisations demand 377 Bianchi, A. “Assessing the Effectiveness of the Un Security
inclusionary processes in the decision- Council‟s Anti-terrorism Measures: The Quest for Legitimacy and
Cohesion” EJIL 17 (2007), pp 881–919.
making procedures by ITAs. 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
372 Council of Europe, Protection of Human Rights in Kosovo, Report of the discussions held at the Security Council at 30 May 2006, UN
the Committee on Legal Affairs and Human Rights, Doc. 10393, 6 Doc. S/PV/5446 at 31:
January 2005, Section B(i) para. 7. The work undertaken by the United Nations over the last six
373 European Commission for Democracy through Law (Venice decades to ensure that Governments respect human rights would
Commission), Opinion on Human Rights in Kosovo: Possible suffer a great setback were we to allow the Organisation to treat
Establishment of Review Mechanisms, CDL-DI (2004) 004, (Strasbourg, individuals in a manner, which it would qualify as impermissible by
8–9 October 2004), pp. 20–21. states.
Page 117
members.379 The problem with the listing regulation and implementation of

procedure is, as summarised by Van der inclusionary processes in decision-making
Herik: procedures by ITAs remain deficient.
―…Individuals are not heard at any time The assessment of ITA mandates and
either before or after listing and, once objectives reveals that, even though there
listed, individuals do not have a proper are power-sharing arrangements between
avenue to complain directly to the ITAs and local authorities, this does not
sanctions committee about their listing result in inclusion of the individual in the
and about the sanctions that are decision-making procedures of ITAs. No
subsequently imposed‖.380 provisions can be identified in ITA
Similarly, the World Bank and the UNHCR mandates referring specifically to
have been criticised for insufficiently inclusionary processes in decision-making
including the individual in decision- by ITAs. This can be explained by the fact
that most decisions in individual decisions
making procedures.381 The UNHCR concern executive decisions. The survey
decision-making procedure in relation to reveals that it is precisely the executive
refugee status determination has often decisions that often stay within the
been condemned for the lack of judicial exclusive ambit of the ITA and thereby do
review.382 Hence, the exclusion of not include local authorities or the
individuals from decision-making affected person in decision-making
procedures forms a more general problem procedures.
in international law, which is evidenced by The exclusion of the individual by ITAs
the call for inclusionary governance in when adopting decisions has resulted in
these procedures to the extent as they an outcry by international institutions for
affect individuals. inclusionary processes. Various human
rights oriented organisations have
CONCLUSION condemned the conduct of ITAs for
Inclusionary governance is required when violating human rights standards when
adopting decisions in individual situations adopting decisions in individual
by ITAs. This is warranted especially situations.
because the public powers normally Similarly, other international
exercised by local authorities ultimately organisations also adopt decisions with
are transferred to ITAs. Furthermore, the direct impact on individuals while these
exclusion of individuals has significant individuals are not adequately included in
negative impact on the accountability and the decision-making procedures.
legitimacy of decision-making by ITAs,383 Evidently, the exclusion of individuals in
which further warrant inclusionary decision-making procedures forms a more
governance. The assessment made on the general problem in international law. In
basis of a three-dimensional approach to relation to what standards should be
inclusionary governance reveals that the required and whether similar standards
should be required for international
379 Feinaugle, C.A. “The UN Security Council Al-Qaida and organisations, such as the Security
Taliban Sanctions Committee”, above n. 57, p. 1520. Council adopting decisions affecting
380 van den Herik, L. “The Security Council‟s targeted sanctions
regimes” Leiden Journal of International Law 20 (2007) p. 799. See for

individuals or ITAs adopting such
a thorough assessment the Report “Addressing Challenges of decisions, one should look at the impact
Targeted Sanctions” (2009) which was prepared by the Watson on the individual. As argued by Bogdandy:
Institute for International Studies, available at ―…the more an international authority
http://watsoninstitute.org/project_detail.cfm?id=4 (visited 2
November 2011). impacts an individual, the stronger the
381 E.g. see Smrkolj in relation to the UNHCR, above n. 56; see assumption is that international
Naude-Fourie in relation to the World Bank, above n. 58.
382 von Bernstoff. J. “Procedures of Decision-Making and the Role
principles require legal arrangements
of International Organisations”. German Law Journal 9 (2008) p. which are functionally equivalent to what
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.
Page 118
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
government‖. 385
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.
384 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).
Page 119
Bibliography
Books
 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).
Articles
 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
 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.
Resolutions concerning International administrations

 Council Provisional Authority Reg. No. 6, 13 July 2003.
 Dayton Peace Agreement, Annex 10, 14 December 1995.
 GA Res. 2248 (1968).
 SC Res. 1244 (1999).
 SC Res. 1271 (1999).
 SC Res. 1511 (2003).
 SC Res. 1272 (1999).
 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.
 UNMIK Reg. 1999/24, 12 December 1999.
 UNTAET Reg. 1999/1, 27 November 1999.
 UNTAET Reg. 1999/2, 2 December 1999.
 UNTAET Reg. 1999/3, 3 December 1999.
UN Documents
 Handbook on United Nations Multidimensional Peacekeeping Operations, United
Nations Department of Peacekeeping Operations, Peace keeping Best Practices Unit,
December 2003.
 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 1999, Kosovo (Serbia and Montenegro), UN Doc.
CCPR/C/UNK/1, 13 March 2006.
 Report of the Panel on United Nationals Peace operations (Brahimi Report) UN Doc.
A/55/305-S/2000/809, 21 August 2000, available at
http://www.un.org/peace/reports/peace_operations.
 Report of the Secretary-General on the Rule of Law and Transitional Justice in
Conflict and Post-Conflict Societies, UN Doc. S/2004/616, 24 August 2004.
Page 121
 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.
Miscellaneous
 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).
Page 122
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 decision-

making 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 non-
mandatory 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 anti-
discrimination 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.
Page 123
INTRODUCTION assembly members and of communities‘
The effective participation of minorities387 representatives from all communities
in decision-making processes is one of the present in the municipality, are
most important rights enshrined by consultative bodies in charge of making
international human rights standards. recommendations to the municipal
Together with inclusion and consultation, assembly on minorities issues. Some of
it constitutes the basis of minorities‘ these mechanisms, such as Fair Share
peaceful integration. The Lund Financing and the mediation committee
Recommendations for the Effective disappeared after the Declaration of
Participation of National Minorities in Independence in 2008, while the law on
Public Life and the Framework Convention local-self government created new
for the Protection of National Minorities mechanisms. There is now both a deputy
(FCNM) provide core human rights chairperson of the municipal assembly
principles shaping public policies with and a deputy mayor for communities, in
regards to participation of minorities. accordance with a 10 percent of
Minority rights are crucial in Kosovo as communities threshold, which means that
the essence of the 1998/1999 conflict is these mechanisms are mandatory in
inter-ethnic tensions mainly between the municipalities where minority
Serbian and the Albanian communities communities represent at least 10 percent
that came to an end with the withdrawal of the population (according to municipal
of the Serbian army and police in June estimations, mainly based on the 1991
1999. The genesis of minorities‘ census). These two appointed figures are
participatory mechanisms in post-conflict in charge of advising, respectively, the
Kosovo, from the United Nation Mission in chairperson of the municipal assembly
Kosovo (UNMIK) protectorate to the self and the mayor on issues related to all
declared independent state, has been communities.
developed in line with the above- These measures have not been tailored for
mentioned legal instruments and Roma and associated minorities, Ashkali
declarations. As international human and Egyptians.388 Participation measures
rights standards remain rather vague and are rather part of the overall strategy to
cannot be applied as such in national include the Kosovo Serb community. For
legislation, first the UNMIK administration political reasons, negotiations on the
and then Kosovo authorities had to choose status of Kosovo and talks with the EU
concrete mechanisms for implementing have been based on several conditions,
international standards. one being the integration of the Serbian
Concretely, participation of minorities at minority. Both during UNMIK time and
the municipal level has been characterised after the Declaration of Independence,
by specific mechanisms ―imposed‖ by the participation mechanisms at the local
international community upon public level have had a limited impact on Roma,
authorities. UNMIK Regulation 2007/30 Ashkali and Egyptians communities. Even
on the Self-Government of Municipalities in newly created municipalities where
in Kosovo foresaw five mechanisms:
communities‘ committees, mediation
388 These three communities are considered part of the European
committees, an additional deputy “Roma” population. However in Kosovo, Roma, Ashkali and
chairperson of the municipal assembly, a Egyptians identify themselves as persons belonging to three
municipal community office and the Fair distinct communities. Roma have settled in Kosovo since their
Share Financing System – a financial arrival in the mid 14th century. Their mother tongue is Romani,
however most of them are bi- or trilingual and do also speak
measure. Communities and mediation Albanian and Serbian. The Ashkali community is an Albanian-
committees, comprised of both municipal speaking 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
387For political reasons (Kosovo Serbs do not consider that they Persia. The Egyptian community speaks Albanian as its first
constitute a minority in Kosovo), minorities in Kosovo are often language and its members are of Muslim faith. In the 1990s the
referred to as “non-majority communities”. In this paper, the terms community started to declare its identity as Kosovo Egyptian and
“minorities”, “minority communities” and “non-majority they regard themselves as a group whose ancestors are originally
communities” will be used to name the same groups. from Egypt.
Kosovo Serbs represent the majority of the pursued other options.‖390 The fact that
population, the ethnic balance has not some Roma participated in Serbian police
been more favourable for smaller operations was clear evidence for Kosovo
minorities‘ participation. Albanians that Roma had chosen the
Based on international inter-governmental other side. ―Albanians regarded these acts
and non-governmental organisations' as further evidence that Roma and other
reports, and on the author‘s field ―Gypsies‖ had allied themselves with the
monitoring experience, the paper outlines enemies of the Albanian nation.‖391 During
the practices regarding the participation of the conflict many entire settlements, such
the Roma, Ashkali and Egyptian as Roma Mahalla in Mitrovicë/Mitrovica,
communities at the local level. Starting were destroyed and tens of thousands of
with general obstacles to the participation Roma, Ashkali and Egyptians had to leave
of Roma, Ashkali and Egyptians, the Kosovo. Roma, but also Ashkali and
paper further describes the lack of Egyptians, were also deeply isolated after
legitimacy of these mechanisms. Finally, the conflict, because they had been
some concrete problems in the functioning accused of being traitors, pro-Albanian or
of consultative bodies, which have a pro-Serb392.
particular negative effect on Roma, Participation mechanisms were created by
Ashkali and Egyptians, are analysed. UNMIK to answer the international
community‘s will to include Kosovo Serbs,
LONG-TERM EXCLUSION OF ROMA, at least at the local level. Participation of
ASHKALI AND EGYPTIANS FROM Roma, Ashkali and Egyptians has not
KOSOVO PUBLIC LIFE been a priority in Kosovo. The Advisory
The first set of structural reasons that can Committee of the FCNM noted it clearly in
explain the absence of effective its First Opinion on Kosovo in 2005:
participation of the Roma, Ashkali and ―While it is understandable that improving
Egyptians in the local level in Kosovo is relations between the Serbs and
due to the fact that these communities Albanians is largely seen as the greatest
have been excluded from public life since challenge in today‘s Kosovo, there is a risk
before the 1999 conflict. Long-term that the situation of other minority
exclusion from the public sphere is both a communities in Kosovo is not given
cause and a consequence of the obstacle adequate attention.‖393 Roma, Ashkali and
to the enjoyment of their economic and Egyptians have been left out of major
social rights. negotiation processes in Kosovo. First,
During the period of SFR Yugoslavia, they were not part of the negotiation on
special efforts were made by the Kosovo status.394 Unlike Kosovo Serbs,
authorities to promote and protect the Roma, Ashkali and Egyptians did not have
human rights of Roma. The situation was a state to back them up in this process
far from perfect, but the ―official histories and the Roma civil society was poorly
included the Romani contribution to the organised. Second, more recently in 2009
partisan struggle during the civil war and 2010, Roma were not consulted in the
Yugoslavs fought under the cover of the implementation of the decentralisation
Second World War, and Romani plan – included in Ahtisaari‘s
newspapers and radio stations flourished, Comprehensive Proposal for the Status
particularly in Serbia, Kosovo and
Macedonia‖.389 These facts can explain a
certain loyalty to Yugoslavia among Roma,
Ashkali and Egyptians, although their 390 Ibid.
attitude towards the regime was complex. 391 Ibid.
―While some took one side or the other 392 Galjus, Orhan. “The Roma of Kosovo: The Forgotten Victims”,
Patrin, 7 April 1999.

(more often regime-loyalty), others 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),
389Cahn, Claude. “Justice for Kosovo”, Roma Rights 3-4 2005, ACFC/OP/I(2005)004, p. 10.
European Roma Rights Centre, 31 January 2006. 394 Ibid.
Page 125
Agreement in 2007.395 The plan consisted an indicator of their elected representation

of the creation of eight new municipalities in municipal assemblies, of 1,034
including five new municipalities in which municipal assembly members, Egyptians
the Kosovo Serb community would had four seats, Ashkali had three seats
constitute the majority of the population: and Roma had one representative.396 Even
Gracanica/Graçanicë, Klokot-Vrbovac/ as appointed members of participation
Kllokot-Vërboc, Parteń/ Partesh, Ranilug/ mechanisms, Roma, Ashkali and
Ranillug and Mitrovica/ Mitrovicë North. Egyptians remain under represented. Only
In addition, the existing municipality of one Egyptian is a deputy mayor out of
Novo Brdo/Novobërdë would be enlarged eleven is the deputy mayor for
and Kosovo Serbs would constitute the communities. There are three Egyptian
majority of the population. Ahtisaari‘s deputy chairpersons for communities out
proposal was rejected by Serbia but it was of the thirteen appointed Kosovo-wide.
adopted by Kosovo during the Declaration In analysing the situation for the
of Independence in 2008. Seven participation of Roma, Ashkali and
municipalities have been officially Egyptians in public life, one should also
established since, while elections in North keep in mind the sub-standard living
Mitrovica/Mitrovicë have been postponed conditions of the Roma communities. For
until further notice. There was no Roma example, the Roma in the Novo
member on the Municipal Preparation Brdo/Novobërdë municipality mainly live
Teams in charge of preparing the creation in a village where the majority are
of new municipalities where Roma, in unemployed. No Roma from the village
some cases, make up an important part of would be qualified for a position with
the population, like in responsibilities within the municipality,
Gracanica/Graçanicë. which would require having secondary
education. Despite the existence of a legal
The displacement of Roma, Ashkali and and policy framework against
Egyptians and the destruction of entire discrimination and for the inclusion of
settlements as a result of the war had a Roma, Ashkali and Egyptians in
destructive impact on political Kosovo,397 these communities are still
participation and on civil society overwhelmingly subjected to
organisations promoting the interests and discrimination, in particular in access to
rights of these communities. Even today, economic and social rights. The lack of
the absence of a strong political party for budget allocations to special measures
the Roma community is another signal of foreseen in policy documents reveals the
the weak political conscience of the Roma lack of will by Kosovo institutions to
who are not represented in municipal engage in the inclusion of Roma, Ashkali
assemblies. In comparison, the Egyptian and Egyptians in the society.398 Without
party Initiativa e Re Demokratike e the fulfilment of economic and social
Kosovës and the Ashkali party rights, and the overall exclusion of Roma
Democratike e Ashkanlive të Kosovës have from economic life in Kosovo, it seems
representatives in the municipal difficult to foresee an increase in their
assemblies of respectively Gjakova/ participation in public affairs. A recent
Dakovica and Ferizaj/Urosevac. European Centre for Minorities Issues
In most of the municipalities, with the needs assessment of the Roma community
notable exception of Ferizaj/Urońevac in Gračanica/Graçanicë shows that
where the Ashkali community is large, the participation in decision-making
Roma, Ashkali and Egyptians are rarely in
a position to weigh in on the political 396 OSCE Mission in Kosovo, Communities Rights Assessment
game. For example in December 2010, as 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.
395 Available at 398 OSCE Mission in Kosovo, Implementation of the Action Plan
http://www.unosek.org/unosek/en/statusproposal.html, accessed on the Strategy for the Integration of the Roma, Ashkali and
on 11 September 2011. Egyptian Communities in Kosovo, May 2011, p.7.
Page 126
processes is not a priority for Roma, international community. Nowadays, the

unlike employment and education.399 level of cooperation with Kosovo
authorities is usually what matters.
LACK OF REPRESENTATIVENESS OF In addition, the interest of the person
PARTICIPATION MECHANIMS concretely engaging with authorities is
Obstacles in the enjoyment of the right to usually primarily served, rather than the
effective participation in public affairs are whole community‘s interest. Being a
also found in the lack of member of one of the participation
representativeness of created mechanisms is a way to have a job and to
mechanisms. The Advisory Committee of gain prestige in the community. But in
the Framework Convention for the concrete terms this means that the
Protection of National Minorities recalled positions are usually given, literally
in its Commentary on the Effective distributed, by the mayor to the most
Participation of Persons Belonging to influential persons in terms of the support
National Minorities in Cultural, Social and they can get in their community. It also
Economical Life and in Public Affairs that implies recognition of and submission to
―appropriate attention should be paid to the majority party‘s ideas for the
the ―inclusiveness‖ and community representative if he or she
―representativeness‖ of consultative wants to work in the municipality. There
bodies‖.400 At the local level, participation is then little room for claiming minorities‘
mechanisms should be legitimate and rights.
accepted by the whole community. Social prestige associated with one-person
Attention should also be paid to the positions like deputy mayor or deputy
diversity within the communities chairperson for communities can create
themselves. The more representative and tensions in a community. This is also due
legitimate mechanisms are, the more to the fact that the law leaves many
likely they are to facilitate the effective unanswered questions regarding the
participation of minorities. However in criteria of selection to be a member of one
Kosovo, this is far from being the case. of those mechanisms, in particular the
The participation of minorities, and in communities committee. This leaves that
particular in the case of Roma, Ashkali the possibility that the majority and some
and Egyptians, has been limited to the minority representatives in power will
consultation of communities‘ leaders, the decide who should be included in
vast majority of whom have been men committees or offices dealing with
with disputable legitimacy within their minorities. For example in
community. Very few efforts have been Gjilan/Gnjilane, the Roma community has
made to speak with communities been going through a dispute since the
themselves. In 2003 OSCE and UNHCR municipality decided to change the
reported that ―many of the local leaders representative of the community in the
are self-appointed hence lack a communities committee and ask for
democratic mandate deriving from their ―proof‖ of legitimacy for representation in
constituencies‖.401 During UNMIK time, 2010. It left the Roma community without
communities‘ leaders were chosen a representative in the committee for a
because they could speak English or long time, while decisions affecting the
because they had a connection with the community were still being made.
Currently, the old communities committee
member was reintegrated in the
399 European Centre for Minorities Issues (ECMI), “Needs
Assessment Roma Community Gračanica/Graçanicë”, committee, but some Roma in
unpublished. Gjilan/Gnjilane still contest this decision
400 Advisory Committee of the Framework Convention for the
and intra-community relations are tense.
Protection of National Minorities, Commentary on the Effective
Participation of Persons Belonging to National Minorities in Similarly, Mitrovicë/Mitrovica‘s
Cultural, Social and Economical Life and in Public Affairs, adopted communities committee members, while
on 27 February 2008, para. 109.
401 OSCE and UNHCR, Tenth Assessment of the Situation of
establishing the new municipal office for
Ethnic Minorities in Kosovo, March 2003, p. 62.
communities and returns, left aside the
Page 127
Roma representation, although Roma participation mechanisms. Weaknesses in

constitute a large minority in the the legal basis and lack of political will in
municipality. Officials in the municipality its implementation have affected the
tend to consider that a single participation of minorities, in particular of
representative is enough to represent Roma, Ashkali and Egyptians. This is
Roma, Ashkali and Egyptians, often perceptible in three aspects: the reliance
choosing an Ashkali in this function. This on numerical thresholds, the functioning
implies a major failure to pay attention to of Fair Share Financing and the lack of
the diversity between and within the support from the central level in
Roma, Ashkali and Egyptians interpreting the law in a minority
communities. favourable manner.
Another negative consequence is the lack
of gender-balanced representation. The First, the fact that there was no census
participation of women from the Roma, conducted between 1991 and 2001 and
Ashkali and Egyptian communities the lack personal identification
through the developed mechanisms has documentation among Roma, Ashkali and
been extremely low since UNMIK time. Egyptians affected their representation at
Roma, Ashkali and Egyptian women, who the local level, as many of the
suffer double discrimination on the participation mechanisms is subject to the
ground of their ethnicity and their gender, achievement of a demographic threshold.
tend not to impose themselves as ―leaders‖ Without clear figures, it was hard to
in their community and to stay outside of establish that one community fulfils the
public affairs. Although quite active in the threshold requirement, especially when
civil society sector, Roma, Ashkali and this group has been affected by
Egyptian women are almost absent from displacement. Many mechanisms thus
public life. In 2009 for example, the OSCE rely on thresholds and on figures that are
reported that out of 180 members there mere estimates. When minorities do not
were only three Roma, two Ashkali and reach 10 percent of the municipal
one Egyptian women member of population, the central level has pushed
communities committees in Kosovo for a restrictive application of the law and
municipalities402 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
MALFUNCTIONING OF PARTICIPATION from Kosovo, including internally
MECHANISMS displaced persons and repatriated persons
The Advisory Committee of the FCNM from Western Europe, may have been left
recommended that, ―the legal status, role, out of the April 2011 census, as they
duties, membership and institutional cannot always prove they come from
position of consultative bodies be clearly Kosovo. This will then lower the figures
defined. This includes the scope of and impact the representation of these
consultation, structures, rules governing communities in participatory
appointment of their members and mechanisms.
working methods.‖403 In Kosovo, both Second, the discontinuation of the Fair
UNMIK and the post independence Share Financing System in 2008 has left
legislation have left room for minorities without a financial and
interpretation in the functioning of reporting mechanism.404 The system
aimed to ensure that a set proportion of
402 OSCE Mission in Kosovo, Protection and Promotion of the the municipal budget, corresponding to
Rights of Communities in Kosovo: Local Level Participation the estimated proportion of the minority
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 404OSCE Mission in Kosovo, Protection and Promotion of the
Cultural, Social and Economical Life and in Public Affairs, op. cit., Rights of Communities in Kosovo: Local Level Participation
para. 116. Mechanisms, op. cit., p. 5.
Page 128
communities‘ population in the no guidance on who should then be

municipality, was spent exclusively for the appointed for the position. A situation
benefit of these communities. Out of the related to the nomination of the deputy
budget ―reserved‖ for minorities, a part mayor for communities in
went to wages and salaries for the Gračanica/Graçanicë gave a clear
employment of civil servants from indication that persons in power can
minorities, a part was for goods and decide minority representation. The law
services, a part for utilities, a part for on Local Self-Government indicates that
transfers and subsidies and a large part ―the appointment and dismissal of the
for capital investment projects. The Deputy Mayor for Communities shall be
system also included regular quarterly proposed by the mayor and shall get
reporting to the central level on the way approval of the majority of the municipal
funds were allocated. However, during its assembly members present and voting
implementation time, the Fair Share and the majority of the municipal
Financing System was often criticised for assembly members present and voting
not impacting enough on smaller belonging to the non-majority
communities. Maybe because it was based communities.‖ The members belonging to
on vague population estimations, its minorities – even if there is only one
implementation was undermined. In member – can then oppose the
particular, the reporting on the spending nomination of one person. This creates a
on the municipal budget was carried out de facto veto power for this/these
in total expenditures for minorities‘ member(s). In the predominately Kosovo
communities, without reflecting how these Serb municipality of
expenditures were broken down among Gračanica/Graçanicë, where Roma
the different communities. Despite the fact represent more than 10 percent of the
that Fair Share Financing obligated the population and are the biggest single
municipalities to employ a number a minority in the municipality, the Kosovo
minorities‘ members in the municipal civil Albanian member of the municipal
service, Roma, Ashkali and Egyptians assembly (the only minority elected
remained underrepresented. member) opposed the nomination of a
Third, the general lack of guidance from Roma as deputy mayor for communities.
the central level on how to interpret the He argued that the Roma community
rules governing appointment of members should have been more organised to
of mechanisms has triggered situations obtain representation in the municipal
that are usually not favourable for Roma, assembly. Despite the International
Ashkali and Egyptians. For example, Civilian Office, OSCE and municipal
Article 54.2 of the law on local-self officials‘ intervention, there is still no
government foresees that ―the post of the deputy mayor for communities.
Deputy Municipal Assembly Chairperson
for Communities shall be held by the non- CONCLUSION
majority community‘s candidate who Since 1999, public policy and legal
received the most votes on the open list of mechanisms more or less implemented by
candidates for election to the Municipal Kosovo municipal authorities in order to
Assembly‖. As the author has seen on the facilitate the participation of minorities at
ground, this candidate may not want to the local level have had very limited
assume the function of deputy impact on Ashkali, Egyptian and, in
chairperson, or the municipal leadership particular, the Roma communities.
may want somebody else. This was the Participation schemes were designed for,
case in Kamenicë/Kamenica where the and to a certain aspect with, the Kosovo
minority candidate with the most votes Serbs who could influence Kosovo status
(but not enough to be a municipal negotiations and upon whom depended
assembly member) had, in the meantime, the success of the decentralisation plan.
found a job and was not interested in the The international community itself tends
position of deputy chairperson. There is to look more at the participation of the
Page 129
Kosovo Serbs, maybe as proof that Kosovo Kosovo in 2009, that Roma, Ashkali and
as a state could be a place of integration Egyptians ―face marginalisation and
for them. discrimination in the areas of education,
These are solutions that can work for social protection, health care and housing.
organised communities, which do have Poverty and unemployment touch them
political parties for example. It is then more profoundly than the rest of society.
clear that a local representative can say Security remains a concern and,
he or she is legitimate when he or she is according to a number of sources,
the head of a local branch of a party. This ethnically-motivated incidents continue to
is the case of the Serbian community, the go unreported‖.406 Roma, Ashkali and
Turkish community and to a certain Egyptians suffer from unemployment and
extent to the Ashkali and Egyptian earn a meagre living with informal
communities. But it is much more difficult employment407. These concerns are shared
for vulnerable communities which do not by the Advisory Committee on the FCNM
have elected representatives and who are who noted that, ―Persons belonging to
divided. these groups are affected to a much
It is also unfair to ask the Roma, who are greater extent by poverty and social
a diverse group, to be united at any price. exclusion than persons belonging to other
There are different opinions, different communities‖.408 As long as their social
political views and different aspirations and economic participation is not
regarding whether or not to collaborate ensured, their participation in public
with Kosovo institutions, as is still the affairs will not be sufficient enough to
case with the Kosovo Serbs. How can one ensure the wellbeing of those communities
(unelected) representative represent a in Kosovo municipalities.
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 406 Report of the Council of Europe Commissioner for Human
Rights, Special Mission to Kosovo, 23 – 27 March 2009,
Strasbourg, 2 July 2009, p. 23.
405 Advisory Committee on the Framework Convention for the 407 OSCE Mission in Kosovo, “Communities Profiles”, Second
Protection of National Minorities, Commentary on the Effective Edition, 2010.

Participation of Persons belonging to National Minorities in 408 Advisory Committee of the Framework Convention for the
Cultural, Social and Economic Life and in Public Affairs, op. cit., p. Protection of National Minorities, Opinion on the Implementation
29. of the FCNM in Kosovo, op. cit., p. 6.
Page 130
BIBILIOGRAPHY  OSCE Mission in Kosovo,
Communities Profiles, Second
 Advisory Committee of the
Edition, 2010.
Framework Convention for the
 OSCE Mission in Kosovo,
Protection of National Minorities,
Communities Rights Assessment
Opinion on the Implementation of
Report, Second Edition, December
the FCNM in Kosovo (adopted on
2010.
25 November 2005),
ACFC/OP/I(2005)004.  OSCE Mission in Kosovo,
Department for Human Rights and
 Advisory Committee on the
Communities, Protection and
Framework Convention for the
Promotion of the Rights of
Protection of National Minorities,
Communities in Kosovo: Local
Commentary on the Effective
Level Participation Mechanisms,
Participation of Persons belonging
December 2009.
to National Minorities in Cultural,
Social and Economic Life and in  OSCE Mission in Kosovo,
Public Affairs, adopted on 27 Implementation of the Action Plan
February 2008. on the Strategy for the Integration
of the Roma, Ashkali and Egyptian
 Baldwin, Clive. ―Minority Rights in
Communities in Kosovo, May
Kosovo under International Rule‖,
2011.
Minority Rights Group
International, 2006.  Report of the Council of Europe
Commissioner for Human Rights
 Cahn, Claude. ―Justice for
Special Mission to Kosovo 23 – 27
Kosovo‖, Roma Rights 3-4 2005,
March 2009, Strasbourg 2 July
European Roma Rights Centre, 31
2009.
January 2006.
 Secretariat of the Framework
 European Centre for Minorities
Convention for the Protection of
Issues (ECMI) Kosovo, ―Needs
National Minorities, The
Assessment Roma Community
participation of Minorities in
Gračanica/Graçanicë‖,
Decision-making Processes, Expert
unpublished.
Study Submitted on Request of the
 European Centre for Minority
Committee of Experts on Issues
Issues (ECMI) Kosovo, ―Round-
Relating to the Protection of
table Decentralisation and the RAE
National Minorities (DH-MIN) of
Communities‖, June 2009.
the Council of Europe by the Max-
 International Crisis Group, ―Serb
Planck Institute for Comparative
Integration In Kosovo: Taking The
Public Law and International Law,
Plunge‖, Europe Report N°200, 12
Heidelberg, November 2000.
May 2009.
 Strategy for the Integration of
 Kosovar Institute for Policy Roma, Ashkali and Egyptian
Research and Development
Communities in the Republic of
(KIPRED), ―Decentralisation in
Kosovo, December 2008.
Kosovo I, Municipal Elections and
 UNMIK, OSCE and PISG,
the Serb Participation‖, December
Assessment of Municipal
2009.
Communities Committees, 2004.
 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.
Page 132
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)
Page 133
1.INTRODUCTION truth and reconciliation commissions can

According to Teitel it is possible to define a concretely affect the states‘ reparation
Truth Commission (TC) as ―an official programmes, especially when they target
body, often created by a national children.412 It will take into account the
government, to investigate, document, and outcomes of six of the TCs established
report upon human rights abuses within a worldwide in post-conflict settings in order
country over a specified period of time.‖409 to verify whether children‘s right to
The general aim of a TC is to provide a participate in (and benefit from) the
comprehensive record and analysis of the transitional justice process has been
violations committed during the conflict or fulfilled, in particular with regards to
the military dictatorship.410 From 1974 to reparations. 413
2007 at least 32 TCs have been
established in 28 countries worldwide 411, Methodology
and, according to Heyner in 2011 they This contribution is part of a broader
have increased to 40. Although each TC research project, namely my Ph.D. thesis,
has a different mandate, it is feasible to which is about the right to reparation for
trace a common pattern. Normally TCs are war-affected children. In the thesis I
required to make recommendations to the analyse under which circumstances
government to help preventing relapses children who experienced gross human
and further abuses. These rights violations and serious violations of
recommendations are embodied in a final humanitarian law can claim reparations
report, which can also contribute to the before local, regional, international
establishment of a reparation policy tribunals and how they can be
designed for the victims. The relationship substantially included in the states‘
between the TC and the people who reparations plans. The field of enquiry
suffered from the heinous violations tends includes, of course, the identification of
to be really strong, because the TC the kind of reparations, which might be
represents the first forum where the more suitable for children, taking into
victims have the opportunity to finally tell account also distinctive factors such as
their stories and catch a glimpse of age, gender, and traumatic events
justice. States are amongst the actors experienced. In accordance with the focus
entitled to award reparations, as they are of this paper, here I consider only the
the recipients of the TCs‘ final reparative measures recommended by the
recommendations and the ones in charge TCs, leaving aside reparations as
of implementing them. Although it might outcomes of criminal proceedings. As for
be difficult, sometimes impossible, to the key aspect of the methodological
achieve, in toto, the goals set in the TC‘s approach adopted, it is worth noting that
report, its content has to inspire and a single country study, due to its pure
guide the government throughout the descriptive function, could have been
institutional reform, fostering
reconciliation and, when expected by the 412 De Greif in the UN Rule of Law Tools for Post-Conflict States
TC‘s mandate, the reparation plan. The Dedicated to Reparation Programmes, underlines the difference
scope of this contribution is to investigate between “reparation efforts” and “reparation programmes”: “This
how and to what extent the work of the 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
409 R. G. Teitel, “Human Rights in Transition: Transitional Justice of reparations measures. Most countries do not have reparations‟
Genealogy”, Harvard Human Rights Journal, 16(69)(2003), pp. 69-94. programmes in this sense. Reparations‟ benefits are most often the
410 G.G. J. Knoops, “Truth and Reconciliation Commission result of discrete initiatives that come about incrementally rather
Models and International Tribunals: a Comparison”, Symposium than from a deliberately designed plan.”
on The Right to Self-Determination in International Law, organised by 413 The author will consider in particular the work of the TCs in
Unrepresented Nations and People Organisation (UNPO), 29 South Africa, Sierra Leone, Liberia, Timor-Leste, Guatemala and
September-1 October 2006, The Hague, The Netherlands. Peru, because all of them, adopting different modalities and
http://www.unpo.org/downloads/ProfKnoops.pdf (accessed 18 notwithstanding the limits and the shortcomings, gave space to the
March 2011). complex issue of reparation for war-affected children. This cluster
411 Data available at http://www.amnesty.org/en/international- has been identified by a recent study accomplished by UNICEF
justice/issues/truth-commissions (accessed 18 March 2011). and the International Centre for Transitional Justice.
Page 134
useful to determine whether and how a the Inter-American Court of Human

particular TC has dealt with the issue of Rights and the Inter-American
the right to reparation for child-victims, Commission have stipulated that the
but my feeling is that this choice doesn‘t definition of the child is based on the
lead to valuable conclusions. The option of provisions of article 1 of the UNCRC.416
a few countries comparisons, although The same criterion has been applied
anyway more suitable than a single within the European and the African
country study, has been also discarded. Human Rights systems: in particular
Instead of focussing on two or three TCs, Article 1 of the European Convention on
most likely established in the same region, the Exercise of Children Rights states that
I decided to look at the TCs who have it targets everyone who has not yet
dealt with child-victims on a global scale. attained the age of 18 years. The African
The study of the TCs has been built on the Charter on the Rights and Well-being of
assumption that, as Chapman and Ball Children, adopted in July 1990, defines as
pointed out that, ―truth commissions are child every human being less than
far better suited to pursue ―macro-truth‖, eighteen years of age. War-affected
the assessments of contexts, and the children are, therefore, all the human
causes and patterns of human rights beings below the age of eighteen who,
violations than ―micro-truth‖ dealing with directly or indirectly, suffer from ongoing
specifics or particular events‖.414 Hence, and ceased conflicts.
the work of the TCs selected has been
considered at a macro-level, focussing on Remedies and reparations under
broad variables such as the extent to international law
which children‘s participation has been Amongst the legal consequences arising
encouraged and, therefore, their right to from gross and serious violations of
reparation has been triggered by each TC, human rights law and humanitarian law,
the techniques used to collect children's there is the right to a remedy and
statements, the attention paid to the reparation. Although the two concepts are
specificity of children's needs and the often confused, ―remedy‖ and ―reparation‖
―child-friendliness‖ of the are not synonyms. The definition of
recommendations submitted to the ―remedy‖ provided by international law
government.415 includes the right to equal and effective
access to justice, the admission to
2. DEFINITION OF THE KEY TERMS relevant information concerning violations
Definition of a Child and redress mechanisms, and the right to
Article 1 of the UN Convention on the prompt and adequate reparation.417
Rights of the Child (UNCRC) establishes According to the Van Boven-Bassiouni
that ―a child means every human being Principles and Guidelines, reparations are
below the age of eighteen years unless, further divided in five categories:
under the law applicable to the child, restitution, compensation, satisfaction,
majority is attained earlier‖. This rehabilitation and guarantees of non-
definition has been embraced also at the repetition.418 In the general discourse on
regional level. In the Inter American reparations two situations should be
arena, there is no standard definition of compared: the current situation and the
the child for legal purposes, therefore both
416 Inter-American Court of Human Rights, Juridical Condition
414 A. Chapman and P. Ball, “The Truth of Truth Commissions: and Human Rights of the Child. Advisory Opinion OC-17/02 28
Comparative Lessons from Haiti, South Africa and Guatemala”, in August 2002. Series A No 17, Chapter V.
Human Rights Quarterly (23) 2001, pp. 1-43 at 41. 417 For the purpose of the current work, “redress” is meant as “the
415 “The macro-level approach is meant to deal with the bigger act of receiving satisfaction for an injury sustained”. Bouvier's Law
picture of how TCs are currently facing the challenge of coping Dictionary, Revised 6th Ed.
with children's reparations, instead of adopting the so called „who 418 The five categories are listed and explained under paragraph IX
did what to whom methodology‟ which is based on multiple data of the UN General Assembly‟s Resolution A/RES/60/147, Basic
sources focussed on each and every victim-survivor story.” Principles and Guidelines on the Right to a Remedy and Reparation for
P.Gready, “Telling Truth? The Methodological Challenges of Truth Victims of Gross Violations of International Human Rights Law and
Commissions”, in Coomans, supra n41 at 15. Serious Violations of International Humanitarian Law.
Page 135
hypothetical one that would exist if the entirely depend on variable factors, such
gross human rights violations or the as the domestic laws of the different
serious violations of humanitarian law countries. This foments a lack of
had not occurred. The gap between the homogeneity that clearly clashed with the
two is bridged by effective and prompt assumption that reparations have
reparation, although, clearly often the primarily strived to give victims a sense of
restoration of the status quo ante is either recognition in order to help them to face
not sufficient or even not desirable.419 their trauma and overcome it.422As will be
further illustrated in the coming
Definition of victim paragraphs, the identification of the
The notion of reparation is intrinsically victims is one of the most challenging
coupled with the idea of victim.420 The tasks that a TC has to face, especially
definition of victim I refer to is the one when children are involved. Under
contained in paragraph five of the Van international criminal law the crimes
Boven-Bassiouni Basic Principles and committed against children can be divided
Guidelines.421 ―Victims are persons who in three sub-categories: child-specific
individually or collectively suffered harm, crimes, in which children are a material
including physical or mental injury, element of the crime (e.g. forced transfer
emotional suffering, economic loss or of children and imposition of measures
substantial impairment of their intended to prevent births in order to
fundamental rights, through acts or perpetrate genocide, enlistment,
omissions that constitute gross violations conscription and use of children to
of international human rights law, or participate in hostilities); crimes which
serious violations of international target children in the way that they are
humanitarian law. Where appropriate, disproportionally victimised in comparison
and in accordance with domestic law, the to the adult population (e.g. destruction of
term ―victim‖ also includes the immediate schools and hospitals, attacks to
family or dependants of the direct victim humanitarian missions); crimes with
and persons who have suffered harm in particularly serious effects on children,
intervening to assist victims in distress or where children, due to their age and
to prevent victimisation‖. The formulation development, face more difficulties to be
of the final sentence clearly highlights that rehabilitated than the adult-victims (e.g.
there must be a direct causal link between rape and sexual violence).423 If the crimes
the victim and the harm suffered Only that affect children need to be identified
when this link exists does it is prove and require the adoption of specific
before the courts the right to reparation measures, clearly the same should
arises. When, instead, the connection happen with regard to the kind of
requirement is not fully accomplished the reparations designed to overcome their
acquisition of the status of victim will effects. As Mazurana and Carlson pointed
out ―it is not possible to fully repair
children after they have experienced such
419 In developing countries, as it is going to be further discussed in harms. It is not possible to recover the
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 years of lost education, or the time that
draw a sharp line between development strategies and reparation would have been spent developing
programmes. Please see on this point N. Roht-Arriaza and K. emotional and spiritual ties to family,
Orlovsky, A Complementary Relationship: Reparations and Development,
ICTJ Research Brief, July 2009. friends and communities, as well as the
http://www.ictj.org/static/Publications/Research_Development_ skills to enable children to take pride in
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 422 R. Rubio-Marin, What happened to the Women? (New York:
Society (Chicago: University of Chicago Press, 2001). International Centre for Transitional Justice 2006), p. 32.
421 The definition of victim contained in the Van-Boven Bassioni 423 C. Chamberlein. Legal Adviser at the International Criminal
Principles is the one entailed in the Declaration of Basic Principles Court. Paper presented at Leiden University on 12 November
of Justice for Victims of Crime and Abuse of Power, adopted by 2010, on the occasion of the seminar on “Children's Rights before
UN General Assembly though the Resolution 40/34 9 of 29 the ICC”, organised within the course on “Children's Rights in
November 1985. International Law”.
Page 136
contributing to their households‘ this peril tends to be increased even more

livelihoods.‖424 Having knowledge of the and that is why the need to intervene and
tough scenario certainly doesn‘t diminish provide ad hoc redress measures is
the potential role that TCs in particular acutely strong.428
can play in fostering children‘s right to
reparation. It rather increases the need to 3.CHILDREN‟S RIGHT TO
evaluate what has been accomplished so PARTICIPATION AND REPARATION
far in order to establish more effective The direct and active involvement of
reparations plans in the future. children in the TC‘s work firmly relies on
children‘s right to participation.
Vulnerability Participation can be defined as ―the
War-affected children are usually referred process of sharing decisions which affect
to as a ―vulnerable group‖. Vulnerability is one's life and the life of the community in
defined as ―the exposure to uninsured
which one lives‖.429 According to Ang, an
risks leading to a socially unacceptable
level of well-being‖ and it is measured explicit right to participation is not
according to physical and emotional embodied in international human rights
development, ability to communicate law.430 However, elements of participation
needs, mobility, size and dependence.425 can be found throughout the rights
Vulnerability is, hence, a common enshrined in the UNCRC and in particular
characteristic to all the victims of crimes in Article 12, which is represented as one
irrespective of the nature of the crime and of the most innovative of the convention.
its gravity. The exposure to uninsured The enforcement of the UNCRC, hence, is
risks is predominantly a children‘s responsible for a remarkable shift in the
prerogative, since they are vulnerable perception of the child, ―from being a
above all in regard to their age and vulnerable object in need of protection to
immaturity. And, in addition, their mental an active subject of rights, entitled to full
attitude might be easily influenced by the respect and dignity.‖431 The existence and
inability or impossibility to speak for the recognition of a right to participate,
themselves and act independently from which legitimates children‘s inclusion in
the adults.426 As a consequence, in the the activities carried out by the TC,
case of child-victims, in general, the represents a precondition for their
probability of facing ―a social exercise of the right to reparation.432 The
unacceptable level of well-being‖ is higher
than the other victims‘.427 With regard to
war-affected children, which represents a 428 G. Machel, UN Report on the Impact of Armed Conflict on Children,
specific category within the child-victims, 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
424 D. Mazurana and K. Carlson, “Reparations as a Means for material and emotional needs, including the structures that give
Recognising and Addressing Crimes and Grave Rights Violations meaning to social and cultural life. The entire fabric of their
against Girls and Boys during Situations of armed Conflicts and societies, their homes, schools, health systems and religious
under Authoritarian and Dictatorial Regimes”, in R. Rubio-Marin, institutions are torn to pieces.”
The Gender of Reparations (Cambridge Ma: Cambridge University
Press, 2009) 429 R. Hart in UNICEF, The State of World's Children, 2003, Child
425 J. Hoogeveen, et al, A Guide to the Analysis of Risk, Vulnerability Participation, quoted by T. Vandewiele, in F. Ang et al. Participation
and Vulnerable Groups, World Bank, 2005. Rights of Children (Antwerpen: Intersentia, 2006), p. 56.
http://siteresources.worldbank.org/INTSRM/Publications/20316 430 Ibid. at 75.
319/RVA.pdf (accessed 10 March 2011). 431 L. Hammad, “Rights in Context: Questioning Universality in the
426 On children's vulnerability in war torn countries please see K. Implementation of Children's Rights using Jordan as a Case
Cheney, De-constructing Childhood Vulnerability, paper series of the Study”, in A. Alen et al., The UN Children's Convention: Theory Meets
Institute of the African Child, Ohio University, December 2010. Practice (Antwerpen: Intersentia, 2007), p. 3.
http://iss.academia.edu/KristenCheney/Papers/366079/Deconstr 432 Children‟s right to reparation is enshrined also in the
ucting_Childhood_Vulnerability, (accessed 20, April, 2011). “Guidelines on Justice Matters involving Child Victims and
427 See for instance the UNICEF's study on Child's Vulnerability in Witnesses of Crime” adopted by the Economic and Social Council
Barbados, St. Lucia, St. Vincent and the Grenadines, in its resolution 2005/20 of 22 July 2005, para. 35. “Child victims
http://www.unicef.org/barbados/cao_resources_vulnerability.pdf should, wherever possible, receive reparation in order to achieve
(accessed 2 May 2011). full redress, reintegration and recovery. Procedures for obtaining
Page 137
referential provision for the study of the recommended to the Chilean government).
right to reparation linked to children in Also as direct victims children might be
general is Article 39 of the UNCRC. awarded cash, scholarships, access to
According to it ―state parties shall take all health care and reintegration
appropriate measures to promote physical programmes. Symbolic reparations,
and psychological recovery and social instead, may include measures such as
reintegration of a child victim of: any form public apologies, the creation of public
of neglect, exploitation, or abuse; torture memorials and monuments, artwork,
or any other form of cruel, inhuman or learning centres and museums.435 Since
degrading treatment or punishment; or TCs collect important information their
armed conflicts. Such recovery and contributions can be instrumental to the
reintegration shall take place in an construction of a collective memory and, it
environment which fosters the health, can help improving children human rights
self-respect and dignity of the child‖.433 education.436 Both material and symbolic
The article obliges the state parties to take reparations can be provided individually
all the appropriate measures in order to or collectively. For example, in Sierra
promote children‘s ―recovery and Leone in 2009, the government started
reintegration‖ in the aftermath of every individual payments to the most affected
traumatic or harmful event, including victims of the conflict, including
war. As already stressed, truth children.437 The lump-sum liquidated was
commissions, if they are drafting in their the equivalent of less than 100 US dollars,
reports detailed reparation‘s plans, can in contrast with the TC‘s report which
guide the governments throughout the recommended granting life pensions. The
challenging task of putting into practice Guatemalan TC (Historical Clarification
effective and prompt reparative measures Commission), rather than focussing on
able to leave a significant mark on compensation, recommended the
children‘s live. government reform the fiscal sector
according to La Paz agreement and the
Material vs. symbolic reparations National Reparation Plan in order to gain
As already stressed, ―it is important that long-term benefits for the entire
reparations‘ programmes acknowledge 438
population, including children. The
children as rights holders who suffered
specific violations in light of their same collectivistic approach has been
vulnerability‖. In order to do so a TC has shared by the Liberian TC with regards to
to identify the kind of reparative measures reparations. In the final report, in fact, the
which best improve children‘s commission states that, ―reparations
should aim at repairing the consequences
conditions.434 Reparation benefits are
usually distinguished between material
435 See: “Children and Truth Commissions”, UNICEF and
and symbolic. Material reparations International Centre for Transitional Justice, August 2010,
provide a physical benefit or service to http://www.unicef.at/fileadmin/medien/pdf/truth_commissions_
victims. As indirect victims, e.g. affected eng.pdf (accessed 15 July 2011).
436 Ibid. at 52.
by the loss of a relative, children may 437 “Because of the state‟s inability to provide for the needs of all
receive compensation, for example, in the victims, the commission decided to prioritise reparations for
form of a percentage of a deceased certain categories of victims. It used the concept of “vulnerability”
parent‘s pension (as the TC in Chile 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
and enforcing reparation should be readily accessible and child- supra n15 at 5.
sensitive.” 438 “Que el Estado costee, poniendo en marcha la reforma
433 http://www2.ohchr.org/english/law/crc.htm (accessed 20 June tributaria globalmente progresiva establecida en los Acuerdos de
2011). Paz, el Programa Nacional de Reparación. Para ese efecto, resulta
434 C. Aptel and V. Ladisch, Trough a New Lens: A Child-Sensitive conveniente una reorientación de los gastos de inversión social y la
Approach to Transitional Justice, ICTJ August 2011, disminución de los gastos militares. Estas acciones han de
http://ictj.org/sites/default/files/ICTJ-Children-Through-New- constituir sus fuentes principales de financiación.” Guatemala:
Lens-Aptel-Ladisch-2011-English.pdf (accessed 5 September Memory of Silence, Final Report of the Commission for Historical
2011). Clarification, Conclusions and Reccomandations, 63.
Page 138
of violations borne by children during the perpetrators, giving special attention to

Liberian conflict. There should be the subject of sexual abuses and to the
symbolic and material reparations for experiences of children within the armed
Liberia‘s children and young adults. conflict.‖441 In the wake of the Sierra
Ideally, any reparation schemes will target Leone‘s openness towards a child-friendly
entire communities and children as a group approach, the Timor-Leste TC and the
rather than single out individual Liberian TC finally realised the necessity
children.‖ 439 to officially pinpoint the difficult situation
of children affected by conflicts occurred,
4.TCS AND REPARATIONS FOR WAR- mentioning them as a particularly
AFFECTED CHILDREN vulnerable group in their mandates and
The six TCs worldwide, which have dealt stressing the importance to ―adopt specific
so far with war-affected children present mechanisms and procedures to address
some common patterns, but also several the experiences of women, children and
differences. In the first place one should vulnerable groups, paying particular
identify the ―moments‖ when children attention to gender based violations as
were involved in the TCs‘ work. As well as to the issue of child soldiers,
previously pointed out children can be providing opportunities for them to relate
specifically mentioned in the TC mandate their experiences, addressing concerns
and/or they can be listened to as and recommending measures to be taken
witnesses in the statement-taking process for the rehabilitation of victims of human
and in the public hearings. However, rights violations in the spirit of national
sometimes their needs and rights are reconciliation and healing.‖442
taken into account only during the latest
stage of the TC activities, namely Children’s statement taking and public
throughout the drafting of the final report hearings
where they are indicated as recipients of Children‘s involvement in the TCs‘
some recommendations and/or activities related to truth finding can be
beneficiaries of reparations policy. 440 limited to the initial stages of statements‘
collection and/or can be extended to the
Children included in the TC’s mandate public hearings that take place after the
Amongst the TCs which dedicated part of information are gathered. According to a
their efforts to the enhancement of recent study conducted by UNICEF and
children‘s rights, only three adopted a the International Centre for Transitional
specific focus on children in their Justice (ICTJ) four TCs gave children the
mandates. The first TC to include children possibility to actively participate in the
in its mandate was the one established in statement-taking phase, namely the ones
Sierra Leone. According to the Truth established in Peru, Sierra Leone, Liberia
Commission Act 2000, amongst the TC‘s and Timor-Leste. As for the public
tasks there was also a commitment ―to hearings, including special hearings
work to help restore the human dignity of conducted exclusively on children‘s
victims and promote reconciliation by issues, the number of TC remains
providing an opportunity for victims to unaltered, although the South African TC
give an account of the violations and replaces the Peruvian.443 Statement
abuses suffered and for perpetrators to taking refers to meetings and interviews
relate their experiences, and by creating a
climate which fosters constructive
interchange between victims and 441 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
439 Appendices to the Liberian TC Final Report, Volume Three: (TC) for Liberia, approved 10 June 2005, Ministry of Foreign
“Children, the Conflict and the TC Children Agenda”. Affairs, Monrovia, 22 June 2005. United Nations Transitional
http://TCofliberia.org/resources/reports/final/volume-three- Administration in East Timor – Regulation No. 2001/10,
2_layout-1.pdf (accessed 7 August 2011), p. 107. UNTAET, Dili, 13 July 2001, Article IV, sec. 4(e).
440 See “Children and Truth Commissions” Supra n32 at 9. 443 See “Children and Truth Commissions” supra n32 at 9.
Page 139
held between commission staff and under the age of eighteen.445 This was
victims, perpetrators and witnesses. This meant to protect them, even though it was
moment can be considered as crucial to difficult to forget that children not only
delve into the memory of what happened. were directly engaged in the resistance
The average number of statements and the struggles against the apartheid,
collected by each TC normally goes from but that they have been also a specific
7,000 to 22,000. In order to include target of many of the crimes that
children, most likely already traumatised occurred. Eventually, the TC‘s Human
by the experience of the conflict, it is Rights Violation Committee convened six
necessary to adopt specific measures and special hearings exclusively focussed on
to limit the risk of second victimisation. the experiences of children and young
For example statement takers in charge of people; these took place in Bloemfontein,
collecting children‘s stories need to be Cape Town, Durban, East London,
properly trained and must require the Johannesburg and Pietersburg in May
support of child protection agencies and and June 1997. During the hearings,
NGOs with a specific focus on children. In young people aged from 19 to 24 years old
Sierra Leone a child-friendly statement expressed their views and shared their
taking form was used to guide the stories, whilst children, still not allowed to
interaction between the interviewer and bring their testimonies, were involved in
the child, the same tool was set in Liberia, workshops and in cultural and dramatic
but in the end it wasn‘t adopted due to arts presentations that were undertaken
technical reasons, meaning that the in parallel with the truth telling
statements were provided by more than process.446 The hearings were widely
300 children in 13 districts without attended by children and adolescents.
recurring to ad hoc measures.444 Nevertheless, concerns were raised, in
Children‘s participation in the public particular after the one held in Durban
hearings is even more challenging than due to scant participation of adults. The
including them in the statement taking same lack of involvement has been
process. The testimony, in the first place, discovered in Liberia during the children‘s
can lead to a threat to child‘s safety or to special hearings. On that occasion,
his/her stigmatisation, especially when notwithstanding the great attention given
he/she has been sexually abused. by the national media to the events, a
Therefore, it requires special efforts and representative of the Children‘s
precautions. In some cases children have Parliament publicly underscored the little
been allowed to publicly share their interest that the Liberian society as a
experiences only in thematic hearings whole dedicated to the thematic
held in a child-friendly environment and hearings. 447
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 445 P. Pigou, “Children and the South African Truth and
represents a model for the other truth Reconciliation Commission”, in Children and Transitional Justice,
commissions, it is worth to noting that, Parmaar S. Roseman et al., (Cambridge MA: Harvard University
Press, 2009). “Responding to advice from many children‟s rights
after long and deep consultations with activists and professionals, the Commission decided not to take
UNICEF and other child protection statements from children (anyone under the age of eighteen),
agencies, the TC decided not to admit, in which in turn meant that no children‟s testimonies would be
available for the public hearing process. This automatically
the public hearings, testimonies of people 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
444See: Aptel and Ladish supra n31 at 9. “A special children‟s extent it marginalised the direct participation of children and
statement-taking form was prepared, it omitted leading questions, thereby children‟s voices.”
emphasised the need for a child-friendly environment and 446 Ibid. at 142.
psychosocial support, and encouraged considerations of a wider 447 See Aptel and Ladish supra n31 at9. See also T. Sowa “Children
range of violations including social, economic, cultural, as well as and the Liberian Truth and Reconciliation Commission,” In
civil and political. However, since its categories did not match the Children and Transitional Justice: Truth-Telling, Accountability
standard form and the data coding system, it was not used.”, p. 16. and Reconciliation, et al. supra n41 at 11.
Page 140
Children as beneficiaries of report analyses the roots and the

reparations consequences of the conflict, the possible
The truth and reconciliation commissions ways to approach reconciliation and the
taken into account decided to cope with measures that the government in primis
the issues related to children in different has to set in order to eventually repair the
ways and at different levels. Nevertheless victims. With regards to reparations, the
all of them included children in their final TC has listed the principles, which should
reports and recognised them as guide the national reparation plans:
beneficiaries of the national reparations feasibility, accessibility, empowerment,
policies. After the report is launched, gender and prioritisation based on need.
normally the government has to translate Emphasis has been placed on children
into actions what has been identified by affected by the war, in the sense that they
the TC as the best strategy to achieve have been identified as a group of
accountability, reconciliation and particularly vulnerable victims, but there
reparation. Depending on several factors, is no reference to the forms of reparations,
very often the lapse of time between the which should be exclusively directed to
end of the TC‘s work and the beginning of them.450 The governments of South
the implementation phase is Africa, Guatemala and Peru so far
considerable. 448 The recommendations of partially implemented the
the TCs established in Liberia and in recommendations made by the TCs. The
Timor-Leste, for instance, haven‘t been South African TC, which launched the
enforced so far. As for the first one, it is first five volumes of its report in 1998, was
worth noting that, notwithstanding the composed by different committees,
child-friendly approach promoted amongst those, the Reparation and
throughout its mandate, only a marginal Rehabilitation Committee was in
part of the final report has been dedicated particular tasked with making
to recommendations concerning recommendations to the president on the
reparations for children. Namely, the TC reparation policy to adopt.451 The
recommended the establishment of a reparation programme distinguished
Trust Fund for Victims (TFV) and free between ―urgent interim reparations‖ and
access to primary and secondary ―final reparations‖. The first kind of
education and to some selected disciplines reparations was meant to target the
at the college level.449 Similar comments victims who needed prompt medical
can be made about the Commission for treatment and other forms of urgent
Reception, Truth and Reconciliation in assistance. The second one was a long-
Timor-Leste (CAVR), which released its term challenge, allegedly still ongoing. As
monumental report, Chega!, in October for the interim reparations, they took the
2005. In its more than 2500 pages the form of financial support provided to help
the victims to access the direst services.
The cash sum reached a maximum of 713
448 This was the case of Peru: “to the outrage of victim-survivors” US dollars, granted directly to the victim
organisations and the human rights community, President or, in case of a deceased victim, to a
Alejandro Toledo waited several months before responding to the
TC‟s Final Report, and then promised only a programme of social relative-dependent, including children.452
development thereby sidestepping reparations. L.J. Laplante and K. Nonetheless, the TC didn‘t set ad hoc
Theidon. “Truth with Consequences: Justice and Reparations in
Post Truth Peru”, in Human Rights Quarterly, 29(2007), pp. 228- reparations for children with regards to
250. symbolic measures, focussing mostly on
449 “The TC recommends free education to all Liberians from
the communal process of commemoration
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 450 See Chega! at 41, http://www.cavr-
final report of the Liberian TC at 277. timorleste.org/chegaFiles/finalReportEng/11-
http://TCofliberia.org/resources/reports/final/unedited-final- Recommendations.pdf (accessed 20 August 2011).
report-pages-201-300.pdf (accessed 25 August 2011). See also: T. 451 B. Goldblatt, “Evaluating the Gender Content of Reparations:
Sowa, “Children and the Liberian Truth and Reconciliation Lessons from South Africa”, in Rubio-Marin, supra n15 at5.
Commission”, in Parmar et al. supra n42 at 12. 452 Ibid. at 67.
Page 141
rather than on the educative potential of Guatemalans has been unproductive,

certain rituals and public events. The especially with regards to symbolic
Peruvian TC report was made public in reparations.456 During the 36 years of
2003, and its implementation is still conflict, Mayan children were particularly
ongoing. The Ombudsperson and the targeted. They experienced a wide range of
Reparation Council have tried to follow the human rights violations and after the
recommendations made by the TC, but massacres many boys and girls, especially
they came up against the lack of political under five years of age, were brought to
will and the scarcity of financial the homes of regular army‘s members and
resources.453 According to the Programme used as servants or, in the best-case
of Integral Reparations (PIR), adopted by scenario, illegally adopted.457 For these
the state in 2005, victims of the conflict heinous type of crimes there has been no
should be registered to the Registro Unìco official amends, no public apology and
de Victimas (RUV) in order to benefit from definitely no reparations. From the
free healthcare and scholarships for moment it was approved, the National
orphans. The reparations plan promoted Reparation Programme has encountered
by the TC and allegedly pursued by the financial and logistics problems, that,
Peruvian government certainly represents together with the poor inclination towards
an ambitious and comprehensive model. a constructive dialogue with the
Nevertheless, since 2005 its indigenous members of the population,
implementation has been postponed due has lead so far only to a scant distribution
to the shortage of public funds constantly of monetary compensation.458 In Sierra
declared by the Ministry of Economy and Leone the National Commission for Social
Finance which, instead, seems to be Action (NaCSA), established according to
perfectly able to ―secure them for the TC‘s report, nearly 4 years after the
politically popular causes, such as the report was launched, finally started the
armed forces.‖454 In February 1999 the victim‘s registration, which lasted from
report of the Guatemalan Commission for December 2008 to June 2009. The
Historical Clarification was launched and number of victims counted, verified and
in 2003 the National Reparation registered across the country was 29,783
Programme was finally activated. The ―including children, amputees, and others
Programme was ―inspired by the wounded in the fighting, war widows, and
principles of equality, social participation
and respect for cultural identity‖ and its
aim can be described as essentially
twofold: compensate the economic losses 456 See A. Issacs, “Confronting the Past? The Challenge of Truth,
and trigger the rehabilitation and the Justice and Reparations in Guatemala”, “Indigenous insistence on
satisfaction of the victims restoring their culturally appropriate reparations also drew the resistance and the
scorn of ladino members who accused them of seeking to
dignity.455 Although the report clearly „indianise the process‟”. “Yes, we wanted to restore the customs of
mentioned the necessity to include the our elders, our spiritual guides, and as a memorial we want the
Mayan population, who were most affected restoration of our shrines that were destroyed by the army”, a
Mayan delegate explained; “but they insisted on Western therapy,
by the war, in both the debate on the and for them a memorial means placing a cross or a sign in a park
reparations‘ strategy and its saying something like „a call for reconciliation‟. But for us that
implementation, so far the dialogue doesn‟t mean much”.
http://www.realinstitutoelcano.org/wps/wcm/connect/614ec980
between Mayans and the rest of 4f018693bac8fe3170baead1/Isaacs879.pdf?MOD=AJPERES&CA
CHEID=614ec9804f018693bac8fe3170baead1 (accessed 30
August 2011).
453 Herencia Carrasco S. (2010), Transitional Justice and the 457 C. Paz y Paz Baley, “Guatemala: Gender and Reparations for
Situation of Children in Colombia and Peru, Innocenti Working Human Rights Violations”, in Rubio-Marin supra n15 at 5.
Paper No. 2010-16. Florence, UNICEF Innocenti Research 458 “A la fecha se ha entregado el aporte económico a unas 40 mil
Centre: 12. personas, de las 69 mil que se tienen registradas. En cuanto a las
454 Laplante and Thaidon supra n45 at13. viviendas, se han adjudicado 888 y esperan entregar unas 3 mil en
455 Please see the final report of the Commission for the Historical el resto de la actual administración.”
Clarification “Guatemala: Memory of Silence” http://noticias.com.gt/nacionales/20101214-programa-nacional-
http://shr.aaas.org/guatemala/ceh/report/english/recs3.html de-resarcimiento-podria-desaparecer-debido-a-poco-presupuesto-
(accessed 30 August 2011). para-el-2011.html (accessed 14 September 2011).
Page 142
victims of sexual violence.‖459 The statements and include them in the

registration was part of the so-called Year general discourse on reconciliation. The
One Programme, granted by the United scant attention paid by the adult
Nations Peace-Building Fund and community towards the special hearings
implemented by the NaCSA. The project on children‘s issues held in South Africa
was aimed at providing urgent measures and Liberia is a signal of the fact that
to support the most needy victims, children‘s participation is still looked on
identified by the TC using the concept of with suspicion. Children themselves
vulnerability and, with regards to appear to be sceptical when approached to
children, the accent was put mostly on give statements. According to the above
education.460 According to the mentioned report released by UNICEF and
programme, children recognised as the ICTJ many of the children contacted
victims, and still eligible for primary and in the statement taking phase of the
middle education, should receive the Sierra Leonean TC were genuinely afraid
reimbursement of school fees, uniforms of being arrested.461 Besides the lack of
and books. Although the registration information and human rights education,
process was successful in the sense that it another burning issue has been
was able to actively involve children and underscored throughout the present
people living in the rural areas of Sierra contribution, namely the difficulties faced
Leone, this represents only the starting by the selected TCs in setting the criteria,
point of a long term challenge which will which regulate children‘s eligibility for
require considerable efforts and the reparations. Clearly, due to the
deployment of financial resources meant vulnerability‘s threshold reached by the
to address needs which go far beyond the war-affected children, each and every TC
distribution of school facilities. needs to be really careful when it comes to
identifying the victims who are going to be
5. CONCLUSION recognised as beneficiaries of the
From my research has emerged in the first reparations policy recommended to the
place a lack of children‘s participation government. If it is true that ―one size
which clearly leads to a poor doesn‘t fit all‖ and it is necessary to keep
understanding of reparative measures a local focus, it is also true that certain
able to significantly restore the rights crimes affect children more than adults
violated during the conflicts. (e.g. sexual crimes) and, therefore, they
Notwithstanding the almost universal always require ad hoc forms of
ratification of the UNCRC, the reception of reparations. The approach should not be
the principles enshrined, in particular too broad or too narrow in order to allow
with regards to children‘s ―right to express the TC to examine on a case-by-case
their views in all the matters affecting basis, when it is feasible, which is the best
them‖, is still far from being way to intervene and who are the most
accomplished. Only a few truth and needful amongst the child-victims of a
reconciliation commissions worldwide given conflict. As for the challenges that
made serious efforts to collect children‘s the future TCs will have to tackle in order
to better assess children‘s demands, I
459 Submission to the Universal Periodic Review of the UN Human would underline in the first place the
Rights Council 11th Session: May 2011 International Centre for planning of the outreach, which should
Transitional Justice (ICTJ) 1 November. avoid creating false expectations amongst
http://ictj.org/sites/default/files/ICTJ-SierraLeone-Periodic-
Review-2010-English.pdf (accessed 30 August 2011). the war-affected children who have been
460See J. King, “Gender and Reparations in Sierra Leone: The already traumatised by the events which
Wounds of War Remain Open”, supra n15 at 5. “The TC report occurred. TC‘s commissioners should
categorises children eligible under the reparations programme as
follows: children with physical injury, such as amputees or victims carefully address the financial issue in the
of sexual violence; children whose parents were killed as a report and distribute responsibilities and
consequence of any abuse or violation described in the report; tasks to the organs in charge of
children born out of an act of sexual violence and whose mothers
are single; children who suffer from psychological harm; and war-
wounded children.” 461 See “Children and Truth Commissions‟, supra n32 at 9.
Page 143
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 post-
conflict 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.
462Interviews 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.
Page 144
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-Lens-
Aptel-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): 502-
513.
 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.
Page 145
Page 146
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 the use of truth commissions by state
condemned to repeat it” actors as a means of deferring judicial
action while giving the population some
Comisión de la Verdad y Reconciliación sort of closure.
[Truth and Reconciliation Commission], The struggle for recognition of the rights of
Peru indigenous populations is one of history‘s
longest-lasting and most-marginalised
INTRODUCTION justice issues. In the majority of cases,
In the efforts of transitional governments exacerbated discrimination against these
to address such issues as crimes against powerless groups and the extreme poverty
humanity or mass human rights in which they are condemned to live in
violations, truth-seeking and truth-telling has been the root cause of conflicts and
mechanisms have set themselves apart as gross human rights violations.
being more effective, particularly where On this note, truth commissions have
political and judiciary weakness prevails. engaged in confronting legacies of
Truth commissions are recognised for injustice and acknowledging past abuses
bringing truth and the victims of human suffered by indigenous groups. These
rights violations to centre stage, giving commissions have been primarily used
them a voice, and for having an important when the majority of victims of a conflict
contribution to healing and ethnic were indigenous people: this is the case of
reconciliation. the Historical Clarification Commission of
The practice of Latin American truth Guatemala, which worked in Mayan
commissions emerged in the early 1980s communities following three decades of
with the commissions in Bolivia (1982), civil war, during which the indigenous
National Commission for the Investigation group was targeted for genocide by state
of Forced Disappearances, and Argentina military forces. The commission gave
(1983), National Commission for the Mayan survivors a chance to forge a voice
Disappearance of Persons. In both cases, and unity that did not exist before. The
the commissions addressed the need to Peruvian Truth and Reconciliation
discover and document the truth about Commission (hereafter the commission or
forced disappearances and to investigate TRC) played a similar role alongside the
the span of human rights abuses. In this growing importance of indigenous rights:
early stage, truth commissions were its findings and its final recommendations
intended as a preparatory phase that stressed the importance of accepting Peru
would inevitably lead to criminal as a multicultural country and thus
prosecutions, countering impunity being ensuring the respect of the indigenous
one of the most important goals of a truth groups‘ rights.
commission. Michal Ben-Josef Hirsch The Peruvian indigenous population has
argues that the creation of the South faced a structural and historical
African Truth and Reconciliation vulnerability, which translated in extreme
Commission was a milestone in the poverty, discrimination, lack of healthcare
framing of commissions‘ goals: no longer and education institutions, violation of
viewed as mere truth-seeking their cultural, political, social and
mechanisms, they extended their scope to economic rights, environmental
comprise justice, healing, reconciliation destruction and conflict. The importance
and strengthening democratisation, hence of acknowledging the existence of these
providing an alternative to judicial groups and ensuring the respect of their
action463. An argument in this regard is rights is a core value of long-standing
peace and democracy. The commission
concluded in its final report that one of
463 Michal Ben-Josef Hirsch, “Changing the Logic of the main causes of the conflict was the
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.
Page 148
discrimination and lack of basic living Amazonic groups. The final report of the
conditions suffered by the indigenous TRC depicts the context of the conflict as
population, a population that suffered the one of ethnic discrimination, racism of
brunt of the violence. Through its colonial origin and an acute social and
proceedings it also succeeded in raising economic marginalisation, which bred and
the voice of a long silenced community, multiplied violence. The antecedents
hence promoting the indigenous issue to a leading up to the armed conflict consisted
national level. of a weak state presence in the rural areas
In the article, ―Truth Commissions: An of Peru, dominated mainly by the
Uncertain Path?‖, the authors, after Quechua minority.
conducting extensive interviews in five A characteristic trait of the Peruvian state
countries, amongst them Peru, concluded was its frail national integration, as it
that while there was a lot of criticism results from the defragmentation of
directed towards the commissions, the regional spaces and its inability to
general reception was a warm one, the successfully and effectively acknowledge
communities understanding the the ethnic diversity of the country466. The
importance of their work and valuing the disintegrating Andean society saw the
recognition of the official truth. The main rebels‘ discourse of recognition and
criticism was addressed to the state for protagonism as feasible. The communist
failing to implement the recommendations ideology found a multiplying ground in the
and for not contributing to ethnic marginalised societies.
reconciliation464. Clashes arose as a result of the
Joanna Rice believes that in order to resentment of the mestizo groups in the
respect and strengthen indigenous rights, region. The existing socioeconomic and
a country should address human rights political inequalities, their constant
violations while considering the age-old marginalisation provided rationale for
historic injustice to which indigenous violence and interacted with the
groups were subjected465. underlying historical social exclusion and
the resentment of the military towards the
THE CONFLICT IN PERU: THE SETTING indigenous groups. This occurred in the
The Constitution of Peru does not reflect background of constant indigenous rights
the historical and cultural importance of violations.
its indigenous groups or the country‘s The armed conflict initiated as a form of
ethnic diversity. Peruvian legislation does popular war against the government,
not explicitly acknowledge the extent of instigated by the Communist Party,
the country‘s ethnic diversity. Only the Sendero Luminoso [Shining Path], which
Convention 169 of the International began an armed rebellion in 1980. It
Labour Organisation and the UN targeted the social layers that were most
Declaration on the Rights of Indigenous prone to a radical rupture with the
Peoples ratified by Peru, enable a principle established order, mainly racially mixed
of recognition and legal protection of the and provincial people, who wanted a voice,
fifty-five indigenous groups. a voice that had been denied to them for
Peru has had age-old discriminatory decades.
practices and chronic inequality directed In 1984, another communist group,
towards the indigenous populations living Movimiento Revolucionario Tupac Amaru
in the country: Andean, Afro-Peruvian and (MRTA) [Tupac Amaru Revolutionary
Movement], launched its military
464 Victor Espinoza Cuevas, Maria Luisa Rojas, Paz Baeza, operations. As a desperate
“Comisiones de la verdad ¿Un camino incierto? Estudio counterinsurgency measure, the armed
comparativo de Comisiones de la Verdad en Argentina, Chile, El forces of Peru were given carte blanche in
Salvador, Guatemala y Sudáfrica desde las víctimas y las
organizaciones de derechos humanos”, Study, (2002), CODEPU dealing with the terrorist threat, a step
Chile, APT, Switzerland.
465 Joanna Rice, “Truth Commissions and Indigenous Rights: What
is at Stake?”, discussion available at http://ictj.org/truth- 466Final report of the Truth and Reconciliation Commission of
commissions-and-indigenous-rights-what-stake. Peru, available at http://www.cverdad.org.pe/ifinal/index.php.
Page 149
that led to an escalation of conflict. Quechua communities470 in the conflict

Between 1983 and 1993467, as a result of zones were also targeted by government
the actions of guerrillas, military units counter-insurgency efforts. By the late
and local self-defence groups acting under 1980s they had begun to organise
the command or with the acquiescence of themselves into defence committees,
the state, 69,000468 people died or supported by the government, and it was
disappeared. Among the indigenous this development, together with police and
populations most affected by the violence military intelligence that led to Sendero
were the peoples of the Central Eastern Luminoso‘s downfall in 1992, with the
Andean rainforest (Ashanika, Yasesha and capture of its leader, Abimael Guzman.
Nomatsiguenga populations). Of these the During the armed conflict the rights of the
Ashanikas were most affected, since the indigenous population were violated two
statistics reveal that of 55,000 indigenous fold: firstly, at the hands of the rebel
Ashanika people, 10,000 were forcibly groups against the Quechua-speaking
displaced, 6,000 died and another 5,000 indigenous groups by forcibly removing
lived in slavery under Sendero them from their lands471 without
Luminoso469. The communist party respecting indigenous customs and
deliberately used its totalitarian ideology secondly at the hands of the state armed
to destroy the forms of cultural forces, who disregarded the indigenous
organisation proper to the Andean and traditions. The actions of the communist
Amazonic populations by means of party led to the displacement of half a
enslavement and repression of their million people, the great majority coming
cultural and religious manifestations. from the underdeveloped regions. The
In 1990, elected president Alberto violence unlocked latent inter- and intra-
Fujimori, decided to meet the challenge of communities conflict present within the
the insurgency with a strategy of different indigenous communities, by
suppression of civil liberties and an reinstating ethnic and racial differences of
erosion of political accountability, while the traditional societies. The region of
using paramilitary groups to end the Ayacucho alone registered thirty eight per
conflict. The Peruvian armed forces cent of the total estimated number of
implemented a counter-insurgency based deaths.
on draconian measures, which violated
human rights. Fujimori‘s idea of putting TRUTH AND RECONCILIATION
an end to the two-decade long conflict COMMISSION – A REGIONAL
came with the idea that citizens had to LANDMARK
sacrifice freedoms in order to achieve The Peruvian TRC was one of the most
progress and peace, particularly the notable among similar experiences in
indigenous population. Another Latin America in terms of accountability
characteristic of the Fujimori regime was and historical clarification. With a budget
the suppression of the political opposition of over 13 million dollars and a staff of
and killing of the armed opponents of the 500 professionals, the magnitude of its
government.
470 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-highland-
467 The mentioned period comprises the presidencies of Fernando quechua.html.
Belaúnde Terry (1980-1985), Alan García (1985-1990) y Alberto 471 Approximately 70% of all the people forcibly removed by the
Fujimori (1990-2000), the first two being democratically elected. Sendero Luminoso from their land were peasants and indigenous
Of special note is the fact that the TRC had the task of people of ethnic groups that enjoyed a special relationship with
investigating human rights abuses committed in democratic their land or territories and whose daily life was radically affected as
regimes. a result. A detailed report on internal displacement in Peru during
468 This is the number the Truth and Reconciliation Commission the conflict is available at “Profile of Internal Displacement Peru”,
estimated for the whole twenty-year period. Norwegian Refugee Council/Global IDP Project,
469 Jose Carlos Orihuela. “Post-conflict Economic Policy and http://www.internal-
Horizontal Inequalities in Peru”. Workshop paper, CRISE, displacement.org/8025708F004BE3B1/(httpInfoFiles)/839E8F59
Oxford Department of International Development. 686C7B8F802570BA00548F88/$file/Peru+-June+2004.pdf.
Page 150
operations was second only to those of the The TRC came under criticism as its
South African Truth and Reconciliation investigations excluded human rights
Commission. It was the first Latin violations which, though not related to the
American Commission to hold public conflict, were nonetheless comprised in
hearings, giving a voice to the victimised the time frame under examination: the
indigenous community. It also involvement of the country in the
distinguished itself from other truth continental Operation Cóndor473 in June
commissions by understanding its 1980, the assassinations of intelligence
mandate as an implication to help officers under the Fujimori dictatorship
advance criminal prosecutions, hence and the forced sterilisation of women in
conducting a visible set of actions that the Andean highlands.
were intended to gain public support for In April 2002 the commission started
future prosecutions. It interpreted it in a organising successful public hearings,
more modern, ambitious and which were meant not only to put victims,
comprehensive way than its predecessors, mainly indigenous, at the centre stage of
trying to implement changes in the social the process and to garner public support
fabric of the community. in favour of prosecutions, but also to allow
The commission‘s objective was to clarify the victimised indigenous communities to
―the process, facts and responsibilities of bring their suffering to the attention of the
the terrorist violence and human rights nation. With the participation of an
violations produced from May 1980 to estimated 9,800 people, the public
November 2000, whether imputable to hearings were particularly powerful for the
terrorist organisations or state agents, as urban population of the country that until
well as proposing initiatives destined to then was incognizant to the span of the
affirm the peace and harmony among atrocities committed in the rural areas of
Peruvians‖472. The aim of clarification Peru. 318 cases of human rights
required the Commission to produce an violations were under analysis in the
interpretation of the historical period and hearings, leading to 431 testimonies474.
analyse the root causes of the conflict. Videotaped statements of former MRTA
Though it was not endowed with and Shining Path‘s members, in prison at
jurisdictional powers, its mandate the time, were of particular importance
established the necessity for investigating and controversy, despite that many of
the political, social, economic and cultural these former members offered apologies to
premises that led to the conflict, for the surviving victims. A public opinion
drawing up proposals for the reparation poll conducted after the conclusion of the
and dignification of survivors and public hearings revealed that 64% of
recommendations for institutional, Peruvians approved the commission‘s
educational and legal reforms. work and 68% thought its findings should
Furthermore, it stated the establishment be pursued by the courts475.
of mechanisms to follow up on all its The final report presents the main author
recommendations. Accordingly, in volume of the crimes and human rights abuses as
VIII of the final report, the CVR included a being Sendero Luminoso, which was
proviso stipulating that it expected responsible for fifty four per cent of the
diligent action from the Prosecutor
General and that, if no such action were
to be taken in the thirty days following the 473 Operación Cóndor was the name given to a continent-wide
presentation of the report, it would ask conspiracy between 1970-1980 implemented by countries in the
Southern Cone (Chile, Argentina, Brazil, Paraguay, Uruguay, and
the Ombudsman‟s office to use its Bolivia) whose main objective was to eradicate alleged subversive
constitutional right of formulating elements or opposition movements against the military regimes.
accusations against the perpetrators of 474 Data taken from “Peru's Truth and Reconciliation Commission:
About the Commission

the cases investigated. Yuyanapaq (To Remember)”, Open Society Foundations,
http://www.soros.org/initiatives/photography/movingwalls/8/pe
ru_bio
472 Article 1 of the Supreme Decree 065-2001-PCM. 475 “Digging for truth”, Economist, April 25, 2002, Lima, available at
http://www.mississippitruth.com/documents/PERU.pdf http://www.economist.com/node/1101634.
Page 151
deaths and disappearances reported by There are conflicting assessments of the

the commission, whereas the Peruvian success of the commission, many praising
armed forces were responsible for thirty it as a milestone for truth commissions in
six per cent. view of its mandate, others dismissing its
Looking into the causes of the conflict, the success due to lack of implementation of
TRC documented issues that had been a its recommendations.
constant in Peruvian society: social and Despite criminal justice being one of the
economic inequality, discrimination, and top priorities of the victims, not many
the ignorance of the state towards the prosecutions were conducted following the
minority population whose rights had presentation of the report due to political
been constantly violated over decades. pressure and a deficient legal system. The
Accordingly, three in every four people opposition by the armed forces weakened
assassinated were living in rural areas the resolution of the institutions charged
and pertained to the Quechua minority, with prosecuting the perpetrators;
seventy five per cent of all the victims accordingly, of 252 arrest warrants for
spoke a native language other than indicted persons, only forty three were
Spanish and sixty eight per cent had a complied with, the rest being subject to
minimal education476. Despite no evidence procedural errors. By October 2003 the
being found that would point to this being prosecutor‘s office had filed charges
an ethnic conflict, the commission against forty-one members of the group.
emphasised that the conflict would not The commission recommended that
have been possible if it were not for the Fujimori be held criminally accountable
passivity and indifference towards the for the regime‘s crimes and excesses477,
poor and indigenous population of the but only in April 2009, the Criminal
country displayed by the Sendero Chamber of the Peruvian Supreme Court
Luminoso and the Peruvian Armed Forces. sentenced Alberto Fujimori to twenty-five
The report also dedicated an entire years imprisonment for human rights
chapter to the psychosocial effects of the abuses.
conflict, pointing out that fear and The TRC also recommended the creation
distrust were still present in the society, and implementation of a Comprehensive
weakening the communities and reducing Reparations Programme as a form of
civic participation. From a collective reaffirming the dignity and statute of the
standpoint, the psychologists detected victims. Of special note are the precarious
significant disintegration of the social and economic conditions of the
communities and of the family victimised population. This programme,
relationships, which created an overall one of the most complete reparations
feeling of vulnerability and insecurity. plans created by a truth commission to
The four regions that were most affected date, was presented as the critical nexus
by the conflict were the poorest of the between national reconstruction and
country and have been historically sustainable peace. The reparations
forgotten and overlooked by state programme envisioned by the commission
authorities. The internal conflict only was composed of symbolic and material
exacerbated the existing social and reparations, psychological health support,
economic inequalities, the TRC educational grants and restitution of
acknowledging poverty as one of the citizen rights for the indigenous groups
principal factors that ignited the conflict. (legal advisory and the provision of
national identity cards478). The High Level
THE COMMISSION‟S FINDINGS AND Multi-sector Commission was established
THE INDIGENOUS ISSUES
477 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
476Lisa J. Laplante. “On the Indivisibility of Rights: Truth consequent loss of birth certificates needed to access a national ID.
Commission, Reparations and the Right to Development”, Yale See Orihuela, “Post-conflict Economic Policy and Horizontal
Human Rights and Development Journal (2007) 10(1). Inequalities in Peru”, Workshop paper.
Page 152
in 2004 in order to follow-up on the TRC‘s significant steps in implementing the

recommendations relating to peace, recommendations of the commission: a
national reconciliation and collective legislation for collective reparations for the
reparations. indigenous communities was passed in
The Plan Integral de Reparaciones (PIR) Congress, the Peruvian Constitution Court
[Integral Reparations Programme] was has enshrined the right to truth, the
created, though it enjoyed a slow Executive has accepted responsibility in a
implementation. In 2005, the Peruvian number of cases before the Inter-
Congress approved the transfer of 10 American system of human rights, a
million Peruvian soles (approximately USD National Human Rights Plan was put in
3,076,923) towards executing the PIR. The place in 2005480 and of the forty seven
majority of this money went into cases submitted for immediate action to
infrastructure improvements whether or the Prosecutor general, twenty two are on
not these were damaged during the trial. But perhaps the most significant
conflict. The PIR, as it was implemented steps taken as preventive measure of a
by the authorities, was a development future conflict are those dealing with the
programme in parts of the country that indigenous populations: improvement of
had suffered from historic economic and the infrastructure in the rural areas,
social inequity not necessarily linked to respecting and promoting indigenous
the conflict. Its primary goal was not to rights and giving a voice to these
address issues of recognition of human communities.
rights violations and of indigenous rights Nevertheless, much remains to be done.
by compensating the victims. The The victims included in the report, of over
government also promised collective 1,500 persons, only 25 per cent have legal
reparations for some 300 communities in representation provided in most part by
the areas that were hardest hit by local human rights NGOs, whereas, post-
violence479. conflict economic policy seems to be
The National Council for Reparation, designed without taking into
established in October 2006, began in consideration the socioeconomic causes
early 2008 to create a comprehensive and consequences of the internal struggle.
database of all victims in order to provide Although collective reparations have been
individual reparations according to made in the form of infrastructure
recommendations. projects, economic development has failed
The majority of the population underlined to reduce inequalities among regions and
the importance of discovering the truth of ethnic groups. State action has shortened
past abuses for the construction of a inter-group gaps on the access to publicly
better future, whereas the victims that provided services, but nonetheless
testified before the commission widened the gaps on opportunities for
acknowledge the importance of being economic growth and employment.
listened to by the state, after years of According to the former executive
suffering in silence and being secretary of the TRC, Javier Ciurlizza,
discriminated. Nevertheless, the Peruvian Peru has made sustainable progress in
population was disillusioned with the the areas of collective reparations and
outcome of the commission‘s final report, penal justice, but at least three significant
many of its members pointing out the issues remain: individual economic
government‘s inability to implement the reparations, which are to be implemented
recommendations. in 2011, institutional reforms and the
Years after the release of the final report,
progress resulting from the commission‘s
work has been mixed. The state has taken
480Plan Nacional de Derechos Humanos [National Human Rights

479 Nevertheless, the money will be distributed through a Plan]
competition, given to the best projects and not necessarily to the http://www2.ohchr.org/english/issues/plan_actions/docs/peru_s
victims of the conflict. p.pdf.
Page 153
construction of a memorial site481, the ethnic and racial differences, is

latter standing for symbolic reparations. indispensable.
In terms of promoting and respecting Respecting indigenous rights stands as an
indigenous rights, improvements have essential democratic gesture – breaking
been made, particularly in terms of the with the past and looking towards a
self-organisation of the different brighter future. Transitional justice
indigenous communities fighting for their mechanisms have the power to act as a
rights as well as from the state bond between the state and its citizens,
authorities. A notable improvement is a strengthening the demands of the
law recognising indigenous ownership of marginalised. To present day, the explicit
land and hence the obligation to prior claim of ethnic identities is still weak,
consultation of the indigenous people. though some major breakthroughs have
Nonetheless, ethnic and racial been registered on the side of the
discrimination is still present in the indigenous population: a law recognising
Peruvian society as a trace of decades of the right of indigenous people to prior
violence. consultation in regard to their land and
representation of more indigenous
CONCLUSION communities in the Peruvian Congress.
The TRC represents a model for future Nevertheless, this is only a small part of
commissions, which will be established in what should be done to address the
the region, both in terms of a indigenous issue from the perspective of
comprehensive mandate and in view of it‘s eliminating future possible causes for
promoting to centre stage the indigenous conflicts.
issue. It succeeded in strengthening the Respecting the rights of indigenous
place of indigenous groups within the groups, particularly in the context of the
borders of the state, and at the same time transitional process is highly important
promoting the problems of these both for the new regime‘s legitimacy and
communities at the national level. for the promise of democracy that it
At the time when the armed conflict arose, presents before the people, at the same
the indigenous communities and women time giving indigenous populations the
were the most excluded categories of the opportunity to benefit from the
Peruvian society, this aided to the advantages of transition.
multiplying of violence. Though not The advancement of the idea that
ethnically motivated, the Peruvian conflict indigenous rights should be promoted in
had a strong ethnic, racial and regional the transitional justice mechanism, in this
component, which acted as a catalyst to case truth commissions, is based on the
the violence. belief that it will raise awareness to these
The final report of the TRC only indirectly rights and the past, current and future
mentions the rights of the indigenous situation of the indigenous peoples and
population. Nevertheless, given the create a more inclusive society hence
complexity and breadth of the conflict, preventing future conflicts. Moreover,
this should be distinctly mentioned, as it their inclusion into the mechanisms will
would draw positive discrimination and a draw attention to the indigenous justice
better social status for the indigenous claims.
groups. I underlined the idea that in order More and more states have undertaken
to obtain national reconciliation, the their own inquires or have established
creation of a collective identity for all national truth commissions to examine
Peruvians, which will respect the cultural, the abuses committed against minority
and indigenous groups. In this context it
is worth mentioning the cases of the truth
481 “Perú ha avanzado en el ámbito de reparaciones colectivas, commissions in Australia and Canada,
afirman”, Interview with Javier Ciurlizza on RPP Noticias Radio, investigating past human rights violations
available at http://www.rpp.com.pe/2010-08-26-peru-ha- against the indigenous populations. The
avanzado-en-el-ambito-de-reparaciones-colectivas-afirman-
noticia_290741.html.
Human Rights and Equal Opportunity
Page 154
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 state-
building 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.
482 Joanna Rice, “Indigenous Rights and Truth Commissions”.

Cultural Survival Quarterly 35 – 1 (2011)
http://www.culturalsurvival.org/publications/cultural-survival-
quarterly/none/indigenous-rights-and-truth-commissions.
Page 155
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-survival-
quarterly/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/poverty-
matters/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
Page 156
 AGURTO, Jorge, ―From the Indigenous World‖ 2011, available at

http://iwgia.webhotel.net/images/stories/sections/regions/latin-
america/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/2010-
08-26-peru-ha-avanzado-en-el-ambito-de-reparaciones-colectivas-afirman-
noticia_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.internal-
displacement.org/8025708F004BE3B1/(httpInfoFiles)/839E8F59686C7B8F802570
BA00548F88/$file/Peru+-June+2004.pdf, accessed on 18 November 2011.
Page 157
Page 158
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:
483
“…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.
Page 159
INTRODUCTION: SETTING UP THE specific geographical area, by ensuring

CONTEXT that Bosnian Muslim women would deliver
Sexual violence is endemic in wartime and Serbian rather than Bosnian Muslim
it often results in the birth of children. It babies. Astonishingly, these children were
has been estimated that tens of thousands never acknowledged as victims of human
of children have been born as a rights abuses in the debate concerning the
consequence of mass rape campaigns or cruelties perpetrated against women and
sexual exploitation in conflict-affected culture.487 The principal focus in relation
areas in the last fifteen years.484 Children to mass rape campaigns was placed on
born to rape survivors are often victims of the situation of women, in particular on
stigmatisation in their communities. The their victimisation and social exclusion in
societal response to these children has the aftermath of the conflict. The lack of
repeatedly resulted in egregious consideration for issues of children‘s
infringements of their human rights, rights within the legal discourse is
including infanticide, abandonment, unexpected and alarming.
trafficking, statelessness, discrimination While the International Criminal Tribunal
and confusion around their identity.485 for the Former Yugoslavia (ICTY) issued its
However, the plight of children born of first conviction for rape as a crime against
wartime rape has been generally humanity in the case of multiple rapes of
disregarded by both local and Bosnian girls by the Serbian soldiers, it
international actors and a limited body of failed to discuss the long-term effects that
literature has hitherto investigated their these rapes had on the victims.488 The
status through the lens of human ICTY noted, however, that the commission
rights.486 of ―particularly serious offences against
The conflict in Bosnia and Herzegovina the most vulnerable of persons in any
from 1992 to 1995 was characterised by conflict, namely, women and girls‖
innumerable atrocities and hundreds of constitutes an aggravating factor at
infants were born as a consequence of sentencing.489
war-related sexual violence committed by The birth of children being the natural
the Serbian militias primarily against consequence of forced pregnancy, the
Bosnian Muslim women. Mass rape resulting babies were certainly a party to
campaigns represented one of the most be considered within the context of the
outrageous means of implementing the crimes against humanity that were
Serb project of ―Greater Serbia‖, patterned committed during the armed conflict in
on an abhorrent policy of ―ethnic
cleansing‖. Accordingly, forced
impregnation was considered a powerful 487 For a detailed account of the main reasons for the
expedient to alter the ethnic structure of a 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
484 C. Carpenter et al., “Protecting Children Born of Sexual and Representations”.
Violence and Exploitation in Conflict Zones: Existing Practice and 488 Prosecutor v. Kunarac et al, ICTY Case No. IT-96-23-T, Trial
Knowledge Gaps”, University of Pittsburgh: Graduate School of Judgment, 22 February 2001, paragraphs 687-745.
Public and International Affairs and the Ford Institute of Human 489 Ibid, paragraph 858. The International Criminal Tribunal for
Security (2005), p. 3. Rwanda („ICTR‟) was more explicit on this point. The ICTR
485 Z. Ismail, “Emerging from the Shadows: Finding a Place for discussed sexual violence in the context of the genocide charges.
Children Born of War”, unpublished MA thesis, European See Prosecutor v. Musema, ICTR Case No. 96-13-A, Trial
University Centre for Peace Studies (Austria) (2008), p. 5 available Judgement, 27 January 2000 (“Musema Trial Judgment”). It held in
online at paragraph 158 that “sexual mutilation, enforced sterilization, forced
http://epu.ac.at/fileadmin/downloads/research/Ismail.pdf., birth control (emphasis added), forced separation of males and
accessed on 1 July 2011. females, and prohibition of marriages” all constitute “measures
486 Several commentators underline that insufficient emphasis has intended to prevent births within the group” in accordance with
been placed on the human rights of children born of wartime rape the Article 2(2)(d) of the ICTR Statute („Genocide‟). 489 In
by legal scholars. See A. Watson, “Children Born of Wartime Rape: paragraph 933, the ICTR concluded that “the acts of rape and
Rights and Representations”, International Feminist Journal of Politics sexual violence were an integral part of the plan conceived to
9(1) (2007), p. 20; C. Carpenter, “Surfacing Children: Limitations destroy the Tutsi group” because “[s]uch acts targeted Tutsi
of Genocidal Rape Discourse”, Human Rights Quarterly 22 (2000), p. women, in particular, and specifically contributed to their
429. destruction and therefore that of the Tutsi group as such”.
Page 160
Bosnia and Herzegovina.490 Moreover, the male participation to the reproductive

widespread awareness of their existence process. Indeed, the act of sexual violence
as well as the public sensitivity to their that leads to conception ―renders
plight in the early 1990s strongly meaningless the women‘s contributions to
supported their inclusion in the legal their children‘s identity and
discourse.491 upbringing‖.495 Such logic conceptualises
Apart from failing to associate the destiny forced impregnation as an abuse
of children born of war with the destiny of perpetrated only against women and,
their raped mothers, some authors therefore, exposes children born of war to
explicitly placed them outside the group egregious violations of their human rights
against which the genocide was being from birth throughout their entire lives.496
committed and classified them as The impact - physical, economic and
members of the ethnic category psychosocial - of war and post-conflict
perpetrating the atrocities.492 In most of environments on this specific category of
the literature concerning forced children ought not to be overlooked. The
impregnation, these children were present paper attempts to plug the gap
regarded as non-Muslim.493 This social existing in legal scholarship by providing
construction clearly reflects the idea of an overview of the conditions of children
‗identity‘ as paternally given and inevitably born of war from a human rights
materialised the highly contradictory perspective. Although the majority of the
reasoning, which informed the Serbian following considerations are referable to
policy of ethnic purification. all children conceived in war-affected
As argued by Goldstein, a forcibly regions around the globe, the findings
impregnated woman was deemed included in the present paper are mainly
incapable of conceiving and delivering a based on data and other significant
child of her own ethnic affiliation.494 In sources pertaining to the conflict in the
line with this construction, the genetic former Yugoslavia.
and ethnic heritage of the child conceived Among all human rights abuses allegedly
by rape is determined exclusively by the suffered by these children, the
implications of armed conflicts on the
490 The International Criminal Court was the first tribunal to
protection of the right of the child to
include forced pregnancy in its statute. According to Article 7(1)(g) develop and preserve his or her own
of the Rome Statute (UN Doc. A/CONF.183/10), acts of forced identity will be carefully examined. More
pregnancy constitute a crime against humanity “when committed specifically, the meaning of the right to
as part of a widespread or systematic attack directed against any
civilian population, with the knowledge of the attack”. In addition, know one‘s biological origins will be
Article 7(2)(f) specifies that “forced pregnancy” means “the extensively considered, in light of the
unlawful confinement of a woman forcibly made pregnant, with relevant provisions of the UN Convention
the intent of affecting the ethnic composition of any population or
carrying out other grave violations of international law”. On rape on the Rights of the Child (CRC)497 and
and forced pregnancy, see K. Boon, “Rape and Forced Pregnancy the European Convention on Human
under the ICC Statute: Human Dignity, Autonomy, and Consent”, Rights (ECHR)498. This analysis is
Columbia Human Rights Law Review 32 (2000-2001), pp. 625-675.
491 C. Carpenter, “Surfacing Children: Limitations of Genocidal ultimately aimed at establishing whether,
Rape Discourse”, 429.
492 Ibid, 445.
493 For instance, see C. MacKinnon, Are Women Human? And Other 495 P. Weitsman, “The Politics of Identity and Sexual Violence: A
International Dialogues (Harvard University Press, 2006), p. 146: Review of Bosnia and Rwanda”, Human Rights Quarterly 30(3)
“Croatian and Muslim women are being raped to help make a (2008), p. 566.
Serbian state by making Serbian babies” (emphasis added); J. Green 496 Ibid, p. 567.
et al., “Affecting the Rules for the Prosecution of Rape and Other 497 1989 UN Convention on the Rights of the Child, GA Res.
Gender-Based Violence before the International Criminal Tribunal 44/25, 44 UN GAOR, Supp. (No. 49), at 167, UN Doc. A/44/49,
for the Former Yugoslavia: A Feminist Proposal and Critique”, (1989), reprinted in 28 ILM 1448 (1989); entered into force 2
Hastings Women’s Law Journal 5(2) (1994), p. 194: “…threatening to September 1990. The former Yugoslavia had ratified the CRC on 3
impregnate women with children of another ethnicity and using rape January 1991. Subsequent to dissolution, the Government of
to drive women from their families and communities are measures Bosnia and Herzegovina deposited notification of succession with
intended to prevent births within that group” (emphasis added). the Secretary-General, with effect from 6 March 1992.
494 A. Goldstein, “Recognizing Forced Impregnation as a War 498 European Convention for the Protection of Human Rights and
Crime Under International Law: A Special Report of the Fundamental Freedoms, ETS 5, 213 UNTS 221; entered into force
International Program”, New York: Center for Reproductive Law 3 September 1953. By joining the Council of Europe in 2002,
and Policy (1993), p. 24. Bosnia and Herzegovina ratified the ECHR and its Protocols.
Page 161
in the particular context of war-related role in the upbringing of their infants.501

sexual violence, the protection of the right Due to the considerable number of war
to ‗genetic truth‘ might be overridden in casualties, hospitals could not provide
the name of the best interests of the child sufficient staff to care for the increasing
or, alternatively, to protect the mother‘s number of war-rape orphans.502 In the
rights to confidentiality. most optimistic scenario, children were
nursed until they could be
THE FATE OF CHILDREN BORN OF institutionalised. However, even those
WAR IN BOSNIA-HERZEGOVINA children placed in orphanages offering
Despite their invisibility in the legal high levels of care encountered difficulties
discourses concerning the rights of as a result of their origins.503 Finally, in
civilians in war, a significant population of line with the government‘s opposition to
children is born as a result of forced inter-country adoptions, children born of
pregnancy incidental to sexual violence in war faced barriers to placement with
war-affected zones. Estimates of the families and only a few of them were
number of children born of war in the adopted by Bosnian families.504
former Yugoslavia vary extensively and are In light of these circumstances, it is
hardly verifiable. While the European distressing to notice how most of the
Community issued a moderate appraisal human rights of these children could be
of 20,000 women raped in 1993, the imperilled. Infanticide is certainly one of
Bosnian Government estimated that mass the most grievous abuses that such
rape campaigns of the early 1990s led to children might suffer. Unquestionably,
35,000 pregnancies.499 Although the vast those infants who were killed by their
majority of these pregnancies probably mothers were deprived of their survival
resulted in abortions, we might suppose rights, as enshrined in Article 6(2) CRC.505
that thousands of infants were born as a Furthermore, those children who were
result of war-related sexual violence neglected in institutions and hospitals
during the conflict.500 despite the numerous adoption requests
What was the destiny of these children? from foreign couples might have been
Some pregnant women gave birth outside denied adequate standards of living, a
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 501 C. Carpenter, “Surfacing Children: Limitations of Genocidal
were frequently abandoned by their Rape Discourse”, 466. The societal perception of children born of
mothers. Although certain rape survivors war is tremendously affected by the circumstances of their
wished to rear their children, the severe conception. As a consequence, these children are generally referred
to as “children of hate” or “children of the enemy”. See P.
stigma attached to these babies precluded Weitsman, “The Politics of Identity and Sexual Violence: A Review
birth-givers from performing any maternal 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
499 T. Salzman, “Rape Camps as a Means of Ethnic Cleansing: Rape Discourse”, 466.
Religious, Cultural, and Ethical Responses to Rape Victims in the 503 Ibid, 467.
Former Yugoslavia”, Human Rights Quarterly 20 (1998), 348. 504 As explained by a number of scholars, children born of war in
Identical figures can be found in C. Carpenter, “Surfacing Children: Bosnia were not allowed to be placed for international adoption
Limitations of Genocidal Rape Discourse”, 465. because they were considered as a powerful means of repopulating
500 General abortion and delivery data are available in T. the country. Furthermore, the ban on adoption by non-nationals
Mazowiecki, “Report on the Situation of Human Rights in the might also stem from the hope that relatives would care for and
Territory of Former Yugoslavia”, Commission of Human Rights raise these children. See P. Weitsman, “The Politics of Identity and
pursuant to Commission resolution 1992/S-1/1 of 14 August Sexual Violence: A Review of Bosnia and Rwanda”, 568; J. Daniel-
1992, E/CN.4/1993/50 10 February 1993, at p. 65. As pointed out Wrabetz, “Children Born of War Rape in Bosnia-Herzegovina and
by Daniel-Wabretz, pregnant women were often segregated and the Convention on the Rights of the Child”, 25; C. Carpenter,
released only after their seventh month of pregnancy, when it was “Surfacing Children: Limitations of Genocidal Rape Discourse”,
no longer possible to obtain an abortion. See J. Daniel-Wrabetz, 467.
“Children Born of War Rape in Bosnia-Herzegovina and the 505 Article 6 CRC establishes that: “1. States Parties recognise that
Convention on the Rights of the Child” in C. Carpenter (editor), every child has the inherent right to life; 2. States Parties shall
Born of War: Protecting Children of Sexual Violence Survivors in Conflict ensure to the maximum extent possible the survival and
Zones (Kumarian Press, 2007), p. 23. development of the child.”
Page 162
violation of children‘s development rights according to the principle of jus sanguinis,

under Article 27 CRC.506 children born of war are at grave risk of
As indicated by anecdotal evidence, statelessness.510 In fact, babies born in
children born of war in BiH experienced Croatia to Bosnian refugees were
systematic discrimination on the basis of bestowed neither Croatian nor Bosnian
their ethnic and national origins.507 In citizenship until 1996.511 As a
accordance with Article 2(1) CRC, States consequence of stateless, these children
Parties are required to take all appropriate were prevented from accessing the
measures to ensure that all children, Croatian educational system at school
particularly those who are the most starting age.512 When a state denies
disadvantaged, are protected against any citizenship to a child on the grounds of
form of discrimination based on the his/her ethnic origins and, therefore,
status, activities, expressed opinions, or illegitimately restricts the protection of
beliefs of their parents, legal guardians, or rights to resources and education, it is
family members. In some instances, deemed to act in violation of the CRC, in
however, the ability to tackle particular of Articles 7 and 28.513
discrimination against children born of
war demanded the denial of their THE IMPLICATIONS OF ABUSES ON
origins.508 As a result, policies of secrecy THE CHILD‟S RIGHT TO AN IDENTITY
were adopted in violation of the child‘s While considering the rights of children
right to know about his/her biological born of war in the context of the CRC,
origins under Article 7 CRC.509 greater emphasis must be placed on the
Finally, in countries where nationality implications of conflict and post-conflict
and citizenship rights are conferred settings on the formation and
development of these children‘s identity.
506 C. Carpenter, “Surfacing Children: Limitations of Genocidal
Rape Discourse”, 470. Article 27 CRC provides that: “1. States 510 According to the principle of jus sanguinis (right of blood),
Parties recognize the right of every child to a standard of living citizenship is acquired by having a parent/both parents who is/are
adequate for the child's physical, mental, spiritual, moral and social citizen(s) of the nation. To the contrary, the principle of jus soli
development; 2. The parent(s) or others responsible for the child (right of the soil) establishes that citizenship is determined by the
have the primary responsibility to secure, within their abilities and place of birth.
financial capacities, the conditions of living necessary for the child's 511 In September 1996, the Bosnian Law on Citizenship was
development; 3. States Parties, in accordance with national amended. The reformed provision establishes that if one parent is
conditions and within their means, shall take appropriate measures citizen of BiH, the other one is citizen of a former republic of the
to assist parents and others responsible for the child to implement Federal Republic of Yugoslavia and the child was born abroad, the
this right and shall in case of need provide material assistance and latter should acquire BiH citizenship.
support programmes, particularly with regard to nutrition, clothing 512 C. Carpenter, “Surfacing Children: Limitations of Genocidal
and housing; 4. States Parties shall take all appropriate measures to Rape Discourse”, 467.
secure the recovery of maintenance for the child from the parents 513 Article 28 establishes that: “1. States Parties recognize the right
or other persons having financial responsibility for the child, both of the child to education, and with a view to achieving this right
within the State Party and from abroad. In particular, where the progressively and on the basis of equal opportunity, they shall, in
person having financial responsibility for the child lives in a State particular: (a) Make primary education compulsory and available
different from that of the child, States Parties shall promote the free to all; (b) Encourage the development of different forms of
accession to international agreements or the conclusion of such secondary education, including general and vocational education,
agreements, as well as the making of other appropriate make them available and accessible to every child, and take
arrangements.” appropriate measures such as the introduction of free education
507 C. Carpenter et al., “Protecting Children Born of sexual and offering financial assistance in case of need; (c) Make higher
Violence and Exploitation in Conflict Zones: Existing Practice and education accessible to all on the basis of capacity by every
Knowledge Gaps”, 4. appropriate means; (d) Make educational and vocational
508 Z. Ismail, “Emerging from the Shadows: Finding a Place for information and guidance available and accessible to all children;
Children Born of War”, 17. (e) Take measures to encourage regular attendance at schools and
509 The impact of war-related sexual violence on the child‟s right to the reduction of drop-out rates; 2. States Parties shall take all
an identity is only briefly mentioned at this stage of the analysis appropriate measures to ensure that school discipline is
because it will be carefully considered in the following sections of administered in a manner consistent with the child's human dignity
the present paper. According to Article 7 CRC, “1. The child shall and in conformity with the present Convention; 3. States Parties
be registered immediately after birth and shall have the right from shall promote and encourage international cooperation in matters
birth to a name, the right to acquire a nationality and. as far as relating to education, in particular with a view to contributing to
possible, the right to know and be cared for by his or her parents; the elimination of ignorance and illiteracy throughout the world
2. States Parties shall ensure the implementation of these rights in and facilitating access to scientific and technical knowledge and
accordance with their national law and their obligations under the modern teaching methods. In this regard, particular account shall
relevant international instruments in this field, in particular where be taken of the needs of developing countries.”
the child would otherwise be stateless.”
Page 163
The primary nature of the right to an any other international instrument.516 At

identity emerges with particular regard to the time of drafting, the right at stake was
children as human beings in the process introduced as a means of countering
of developing their distinct personality national laws supporting ―secret‖
comprehensively affected by their own adoptions, whereby adopted children did
understanding of themselves as well as not have the right to know the identity of
the societal perception. their biological parents.517 Due to a
In the present paper, I use the term progressive expansion of the legal
‗identity‘ to indicate a framework of definition of ‗parent‘, however, the
components, which render a person relevance of this provision has recently
visible and recognisable as a separate and emerged in relation to additional contexts.
distinct entity by the society as well as by What was once a straightforward concept,
the self. Defined as such, the right to an barely deserving a definition, is now
identity certainly embraces the right to a fraught with difficulties.518 A few decades
given name, which represents the first ago, the term ‗parent‘ was confined to
point of reference as a means of biological progenitors. In harmony with
identifying the child and his or her family. the paradigm of the ―sexual family‖519, this
Analogously, birth registration coincides term was intended to define a
with the State‘s first official heterosexual, married individual, partly
acknowledgement of the child‘s existence responsible for the child‘s biological
and, consequently, constitutes a very inheritance. In recent times, however,
effective method of establishing and sociological as well as scientific
safeguarding the child‘s identity. developments have contributed to reshape
Additionally, an effective system of birth the legal conception of ‗parenthood‘, which
registration might be essential to ensure is no longer based on the ―dominant
the protection of children‘s other rights: ideology of the family‖520 and endeavours
first of all, it facilitates the identification of to reflect the evolving realities of family
children following abandonment or life.
abduction; secondly, it reduces the danger As far as the child‘s right to know his/her
of trafficking in or sale of children; lastly, parents is concerned, thus, the definition
it enables children to know their of ‗parents‘ comprises biological as well as
parentage, especially in cases of non- social parents, namely the child‘s de facto
marital births.514 For obvious reasons, care-givers. The inclusion of genetically-
universal registration provides an unrelated individuals stems from the
indispensable entry-point for the common assumption that parenthood
development of a legal system respectful of consists in a doing rather than a being
children‘s identity rights, as enshrined in and, therefore, those who are actually the
Articles 7 and 8 CRC.515 care-givers ought to be classified as
The right of the child to know his/her parents. Accordingly, the category of
parents embodies the ―original‖ social parents includes adoptive and
component of Article 7 CRC. Unlike birth foster parents, those raising children
registration, name and nationality, the
knowledge of one‘s parentage is not
516 Both the right to a name and registration after birth, as well as
expressly recognised as a human right in 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.
514 R. Hodgkin and P. Newell, Implementation Handbook for the 517 Hodgkin, R. and P. Newell, Implementation Handbook for the
Convention on the Rights of the Child (UNICEF, 2002), pp. 98- Convention on the Rights of the Child, 105.
99. 518 See M. Freeman and A. Margaria, “Who and What is a Mother?
515 According to Article 8 CRC: “1. States Parties undertake to Maternity, Responsibility and Liberty”, forthcoming in Theoretical
respect the right of the child to preserve his or her identity, Inquiries in Law 13(1) (2012).
including nationality, name and family relations as recognized by 519 For a detailed account of this concept, see M. Fineman, The
law without unlawful interference; 2. Where a child is illegally Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies
deprived of some or all of the elements of his or her identity, States (New York, Routledge, 1995).
Parties shall provide appropriate assistance and protection, with a 520 See C. McGlynn, Families and the European Union (Cambridge
view to re-establishing speedily his or her identity.” University Press, 2006), p. 81.
Page 164
conceived through medically assisted Court might be recalled when considering

reproductive techniques, as well as the right of children born of war to know
members of the extended biological family about their ancestral background. During
who cared for the child for considerable the conflict in the former Yugoslavia, birth
periods during infancy and childhood.521 registration of children born as a result of
Unlike the CRC, Article 8 of the ECHR sexual violence was not consistently
does not explicitly provide for a right to secured. In some instances, the paternal
know one‘s origins.522 However, the identity was unknown (the woman might
meaning of this provision has been have been raped by several men); more
substantially developed through the often, mothers felt scared or ashamed to
jurisprudence of the Strasbourg Court reveal the circumstances of conception or
(ECtHR) to protect a right to personal refused to identify the father so as not to
identity.523 In the case of Odièvre v. be confronted with their painful past. In
France, the ECtHR held that: these cases, abandoned babies were
registered as ―NN‖ – no name.525
―Matters of relevance to personal As a result, the ability of children born of
development include details of a person's war to develop a sense of their own
identity as a human being and the vital identity was consistently frustrated by the
interest protected by the Convention in unavailability of records concerning their
obtaining information necessary to birth parents. Assuming that popular
discover the truth concerning important culture absorbed the Serb construction of
aspects of one's personal identity, such as identity as paternally-determined, the
the identity of one's parents. Birth, and in failure to ensure universal registration
particular the circumstances in which a was justified as an essential means of
child is born, forms part of a child's, and protecting these children from
subsequently the adult's, private life discrimination on the basis of their
guaranteed by Article 8 of the origins. However, this explanation might
Convention.‖524 be criticised for a variety of reasons. First
of all, it wrongly presupposes a
Although the afore-mentioned judgement hierarchical relationship between the
was delivered to address the alleged principle of non-discrimination and the
incompatibility of the French regime of right to know one‘s origins. Besides, the
anonymous birth with the protection of anti-discriminatory effects pursued by
the right to respect for private and family non-registration are merely short-term:
life (Article 8 ECHR), the opinion of the the denial of origins does not translate
into a definitive end to the stigma placed
on these children by their birth
521 The important role played by members of the extended
biological family, such as siblings and grandparents, in the communities but rather postpones and
formation of the child‟s identity is duly emphasised by R. Hodgkin further problematises the discovery of
and P. Newell, Implementation Handbook for the Convention on the Rights truth.526
of the Child, 114.
522 Article 8 ECHR provides that: “1. Everyone has the right to As reported by Daniel-Wrabetz, state
respect for his private and family life, his home and his orphanages and institutions were left
correspondence; 2. There shall be no interference by a public completely unaware of the family history
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
of these children.527 Although it is
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 525 J. Daniel-Wrabetz, “Children Born of War Rape in Bosnia-
rights and freedoms of others.” Herzegovina and the Convention on the Rights of the Child”, 32.
523 J. Marshall, “A Right to Personal Autonomy at the European 526 As pointed out by Toomey, once a child reaches adolescence, if
Court of Human Rights”, European Human Rights Law Review (2008) he/she has no information about the father, he/she will start
(3), p. 337. For an historical overview of the relevant case law of asking questions about his/her background and there is a high
the ECtHR, see R. Blauwhoff, “Tracing Down the Historical possibility that he/she will discover the truth. Similar discoveries
Development of the Legal Concept of the Right to Know One‟s might have serious repercussions on the psychological well-being
Origins. Has „to know or not to know‟ ever been the legal of children. See C. Toomey, “A Cradle of Inhumanity”, Times
question?”, Utrecht Law Review 4(2) (2008), 99-116. Online, 9 November 2003.
524 Odièvre v. France, Decision of 13 February 2003, ECHR 2003-III, 527 J. Daniel-Wrabetz, “Children Born of War Rape in Bosnia-
paragraph 29. Herzegovina and the Convention on the Rights of the Child”, 26.
Page 165
imaginable that some of the upon the child‘s right to know his/her
institutionalised children were born as a origins to ensure the protection of other
result of war-related rape, the authorities fundamental values. Similarly, the
responsible for the placement of children absoluteness of the right to know one‘s
without parental care proscribed the origins is expressly denied by the text of
disclosure of confidential information, the ECHR. Article 8 ECHR constructs the
including information concerning the right to respect for private and family life
child‘s origins, to care-workers. However, as capable of restrictions when it clashes
the confidentiality rule, originally with other rights and freedoms.530 The
envisaged to protect these children, might impact of the subjective qualification
reveal itself inappropriate if social introduced by these provisions varies
assistance and counselling facilities are according to the particular circumstances
not promptly offered.528 of each case. Indeed, it is important to
In conclusion, the failure to register all distinguish between different scenarios.
children and the consequential Firstly, the protection of the child‘s right
unavailability of birth records creates to know might be subject to limitations
potential barriers to the protection of the due to the impossibility of identifying
identity rights of children in conflict and his/her parent(s). Similar situations might
post-conflict scenarios. With regard to the certainly occur within the context of
peculiar situation of children born of war children born of war: for instance, the
in the former Yugoslavia, is the denial of mother does not know who the father is,
information concerning one‘s origins in since she was a victim of multiple rapes;
violation of Article 7 CRC or Article 8 or, the war-baby is not registered upon
ECHR? Despite its prima facie birth and he/she is subsequently
obviousness, this question might lead to abandoned. In both cases, the protection
partially indefinite answers stemming of the child‘s right to know is jeopardised
from a more sophisticated analysis of the as a result of an objective unavailability of
legal framework in place. data, rather than to guarantee the
protection of other competing rights. The
THE RIGHT TO „GENETIC TRUTH‟ State‘s margin of intervention is quite
versus THE BEST INTERESTS OF THE limited: legislation must ensure that these
CHILD/ THE MOTHER‟S children are not discriminated against, as
CONFIDENTIALITY RIGHTS required by Article 2 CRC.531
The particular experience of children born Secondly, the decision of the mother not
of war perfectly exemplifies the intricate to identify the father might have concrete
complexity charactering the broader issue repercussions on the protection of the
of whether an individual, pre-eminently a child‘s right to know. The mother‘s
child, has a right to know about his/her reluctance might arise from a basic fear of
origins. The first step in solving this revealing the circumstances of conception,
dilemma consists in acknowledging the especially in cases of incest, rape or
existence of a series of tensions between adultery. Although mothers could,
the human rights of all parties involved.529 potentially, be legally required to identify
These conflicts are principally ascribable the father, it would be problematic to
to the conceptualisation of the rights at
stake as qualified.
In relation to Article 7 CRC, the 530 See Article 8(2) ECHR.
expression ―as far as possible‖ clearly
531 Article 2 CRC provides that: “1. States Parties shall respect and
ensure the rights set forth in the present Convention to each child
paves the way for potential restrictions 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,
528Ibid, 27. national, ethnic or social origin, property, disability, birth or other
529 See S. Besson, “Enforcing the Child‟s Right to Know her status; 2. States Parties shall take all appropriate measures to ensure
Origins: Contrasting Approaches Under the Convention on the that the child is protected against all forms of discrimination or
Rights of the Child and the European Convention on Human punishment on the basis of the status, activities, expressed
Rights”, International Journal of Law, Policy and the Family 21(2) (2007), opinions, or beliefs of the child's parents, legal guardians, or family
p. 138. members.”
Page 166
enforce this obligation primarily because child‘s interests by the CRC.537 In

of the inevitable clash between the child‘s Besson‘s view, the holistic nature of the
right to know and the mother‘s right to CRC would legitimise the interpretation of
confidentiality.532 But, does a raped Articles 7 and 8 as establishing an
woman have the right not to be confronted hierarchical relationship between the
with her painful past or to be protected interests of the child and those of the
from social condemnation?533 parents.538 However, the tension between
Considering this specific case from an these two international treaties can be
ECHR perspective, the ambit of protection resolved by promoting the protection of
of Article 8 includes the right to respect what Ronen calls a ―child-constructed
for private and family life of a variety of identity‖, as opposed to a ―majority
subjects that, as illustrated by the case of identity‖.539 The re-conceptualisation of
children born of war, may pursue identity, as suggested by Ronen, assumes
conflicting fundamental interests. Besson that the development of one‘s identity
emphasises the central role played by does not occur in an empty space, but is
Article 8(2) in the reconciliation of triggered by dialogue and contact with
competing rights and interests.534 The other human beings, essentially those
ECHR provision clearly identifies the persons who are significant to the subject
principle of legality, the existence of rights whose identity is evolving.540
and freedoms of others and the principle In practical terms, the balancing approach
of proportionality as the adjudication can be realised through the creation of an
guidelines that national authorities are office to receive and address the requests
expected to refer to when implementing for access to personal origins by children
Article 8.535 Therefore, in cases pertaining born of war.541 The main responsibility of
to the right to know one‘s origins, a this body would be to contact the mother
concrete balancing of competing rights and discover whether the disclosure of the
appears to be the most appropriate required information is still opposed, and
method of resolving the conflicts which on what basis. The final, and most
unavoidably exist.536 In fact, if we balance important, duty would be to reach a
the rights involved, we acknowledge the decision by striking a concrete balance
conflicting rights as equally fundamental between the opposing set of rights and
and, therefore, we envisage a solution that interests.
secures an adequate proportion between Thirdly, there might be situations where
them. Nonetheless, a similar balancing the disclosure of information concerning
exercise might be held to be inconsistent one‘s parentage is deemed to be contrary
with the pre-eminence attached to the 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
532 R. Hodgkin and P. Newell, Implementation Handbook for the interests of the child, although this was
Convention on the Rights of the Child, 106.
533 A similar question has been raised by J. Daniel-Wrabetz,
suggested by some delegates throughout
“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: 537 Ibid, 152.
Contrasting Approaches Under the Convention on the Rights of 538 Ibid, 149.
the Child and the European Convention on Human Rights”, 138. 539 See Y. Ronen, “Redefining the Child‟s Right to Identity”,
535 It must be taken into consideration that divergences among International Journal of Law, Policy and the Family 18(2) (2004), p. 151.
national concretisations of the right to know one‟s origins are The employment of Ronen‟s definition in order to overcome the
dependent on the exercise of the margin of appreciation, tension between the two sets of international provisions has been
traditionally granted to the contracting parties on issues of previously advocated by M. Freeman and myself in “Who and
particular delicateness. However, the recent jurisprudence of the What is a Mother? Maternity, Responsibility and Liberty”.
ECtHR, in an attempt to review its decision in Odièvre v. France, has 540 Y. Ronen, “Redefining the Child‟s Right to Identity”, 149. See
placed the conditions for the recognition of a more limited margin also J. Marshall, “A right to personal autonomy at the European
on appreciation in matters regarding the right to know one‟s Court of Human Rights”, 354.
origins. See Jäggi v. Switzerland, Decision of 13 July 2006, paragraph 541 A similar solution is proposed by Thévoz within the context of
37. medically assisted reproduction. See J. M. Thévoz, “The Rights of

536 Besson, “Enforcing the Child‟s Right to Know her Origins: Children to Information Following Assisted Conception”, in D.
Contrasting Approaches Under the Convention on the Rights of Evans, Conceiving the Embryo: Ethics, Law and Practice of Assisted
the Child and the European Convention on Human Rights”, 137. Reproduction (The Hague: Martinus Nijhoff, 1996), p. 195.
Page 167
the drafting phase.542 A literal CONCLUDING REMARKS

interpretation of the expression ―as far as
possible‖ suggests that children are Whether all individuals, particularly
entitled to know about their origins, even children, should be able to discover the
if this is considered to contravene their truth concerning their origins, including
best interests. Yet, a holistic approach to biological parentage and conditions of
the Convention conveys that the birth, is one of the most complicated of
disclosure of information related to a questions to have emerged in this era
child‘s background could be proscribed if when we started to take children‘s rights
that child would be harmed as a result of seriously.547 In recent times, however, two
the discovery.543 This understanding is strands of argument have been presented
bolstered by the fact that the words ―as far and widely accepted as justifications for
as possible‖ also apply to the right of the protecting the right to know one‘s origins.
child to be cared for by his or her parents First of all, hereditary diseases as well as
and, in that particular context, adequate incestuous relationships can be prevented
consideration of the child‘s best interests if information concerning one‘s family
is doubtless required.544 history is available. Secondly, cogently
Is it more harmful to the child‘s best argued studies have determined the
interests to obtain distressing information dramatic psychological implications of
or to be denied access to personal records parental secrecy and anonymity on the
on the basis of the potential harm that developmental trajectory of children who
could arise from the disclosure? Article 12 might feel cut off from an essential part of
CRC implicitly infers that the best themselves.548
interests of the child is not a static Accordingly, it might be argued that
concept; it rather changes according to parents, both biological and social, hold
the age and the degree of maturity ―procreational responsibility‖ to tell their
attained by the child considered.545 Thus, children about their origins.549 However,
the determination of what is or is not in there exist extreme situations where
the best interests of the child ought to be supporting the afore-mentioned argument
made at different times in a child‘s life. might result problematic in various
Accordingly, the child‘s right to know respects – ethical, legal or procedural.550
his/her parentage could be refused in the Children born of war are evidently at the
name of his/her best interests only in the core of one of these problematic cases.
most extreme circumstances and the In post-conflict reconstruction,
chance for this decision to be reconsidered governments can play a crucial role in
at a later stage of his/her life should be constructing and reshaping particular
offered.546 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 R. Hodgkin and P. Newell, Implementation Handbook for the

Convention on the Rights of the Child, 107.
543 Ibid. 547 On taking children‟s rights seriously, see M. Freeman, “Why it
544 Ibid. Remains Important To Take Children‟s Rights Seriously”,
545 Article 12 CRC provides that: “1. States Parties shall assure to International Journal of Children’s Rights 15(1) (2007), p. 5.
the child who is capable of forming his or her own views the right 548 See, for instance, P. Toynbee, Lost Children (London:
to express those views freely in all matters affecting the child, the Hutchinson, 1985); G. Delaisi de Parseval, “Reflexions d‟une
views of the child being given due weight in accordance with the psychanalyste sur la question de l‟anonymat du donneur de sperme
age and maturity of the child; 2. For this purpose, the child shall in dans l‟insémination artificielle (IAD)”, Cahiers médico-sociaux, 37(2)
particular be provided the opportunity to be heard in any judicial (1993), p. 176; M. Ryburn, “Adopted Children's Identity and
and administrative proceedings affecting the child, either directly, Information Needs”, Children and Society, 9(3) (1995), p. 41.
or through a representative or an appropriate body, in a manner 549 R. Blauwhoff, “Tracing down the historical development of the
consistent with the procedural rules of national law.” legal concept of the right to know one‟s origins. Has „to know or
546 This is in line with the interpretation of Article 7 CRC, as not to know‟ ever been the legal question?”, 103.
suggested by UNICEF. See R. Hodgkin and P. Newell, 550 Ibid.
Implementation Handbook for the Convention on the Rights of the Child, 551 P. Weitsman, “The Politics of Identity and Sexual Violence: A
107. Review of Bosnia and Rwanda”, 567.
Page 168
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 war-
babies 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
552 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”.
Page 169
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 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), pp.
171-242.
 Harris Rimmer, S., ―‗Orphans‘ or Veterans? Justice for Children Born of War in East-
Timor‖, 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.
Page 170
 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.
Page 171
Page 172
PROVISION OF A CHILD‟S RIGHT

TO HEALTHCARE IN THE
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 Over time, an international consensus on

provision of a child‘s human right to the right to healthcare has emerged. While
healthcare in the transitional justice it is not accepted as a civil right by all
context of modern Bosnia and countries, many scholars, policymakers,
Herzegovina (BiH or Bosnia). Responsible and institutional officials believe that
for administering a country coming to health is a fundamental human right. The
terms with a past of human rights abuse existence of various international
and war, authorities in Bosnia must (re- documents enumerating this right
)establish and secure access to all human illustrates its widespread support. As
rights for all its citizens if this stated in the Universal Declaration of
transformative process is to be successful. Human Rights, "Everyone has the right to
The meaning and fulfilment of the right to a standard of living adequate for the
healthcare thus acquires a particular health and well-being of himself and of his
connotation in the post-war framework. I family, including . . . medical care . . . and
ground my claim that children have a the right to security in the event of . . .
right to healthcare in international human sickness, disability....‖556 Article 12,
rights standards, and look to how Bosnia Section 1 of the International Covenant on
and Herzegovina‘s transitional justice Economic, Social and Cultural Rights
process ties to children‘s health. reads, ―The States Parties to the present
Conscious of this context, I examine the Covenant recognise the right of everyone
current state of Bosnia and Herzegovina‘s to the enjoyment of the highest attainable
healthcare system and its deficiencies in standard of physical and mental
providing children with equal access to health.‖557 The constitution of the World
care. By placing the current system, with Health Organisation enumerates the right
its shortcomings, in this broader societal to the "highest attainable standard of
context, I wish to illustrate the linkages health,‖ defining it as ―a state of complete
between a functioning society, transitional physical, mental and social well-being and
justice, and children‘s right to healthcare. not merely the absence of disease or
Moreover, I want to stress the importance infirmity.‖558 Bosnia and Herzegovina is a
of the right to health for children in signatory of all three documents, as well
Bosnia and Herzegovina today, sixteen as the Convention on the Rights of the
years after the end of the war but at a Child, the relevant portion of which,
time when the events of that period Article 24, reads:
continue to affect the daily lives of “1. States Parties recognise the right of the
Bosnians, including children born after child to the enjoyment of the highest
1995. Ensuring access to this right is a attainable standard of health and to
way for the government to assert facilities for the treatment of illness and
legitimacy and unify Bosnians while rehabilitation of health. States Parties shall
improving quality of life for citizens of strive to ensure that no child is deprived of
Bosnia and Herzegovina. By helping his or her right of access to such healthcare
Bosnian children achieve better health services.
while the transitional justice process 2. States Parties shall pursue full
continues to evoke wartime events, implementation of this right and, in
officials can help society as a whole move particular, shall take appropriate
positively towards a just and peaceable measures...
future.
556 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.
Page 174
(b) To ensure the provision of necessary International Criminal Tribunal for the
medical assistance and healthcare to all Former Yugoslavia.561 Reparations to
children with emphasis on the development victims have largely concerned the
of primary healthcare.”559 restitution of property rights through the
The above documents are indicators that Commission for Real Property Claims of
humans, those under the age of 18 Displaced Persons and Refugees and
(children) specifically, have a right to national authorities.562 Truth-seeking and
healthcare. Provision of this right takes -telling is a smaller part of BiH‘s
on a special significance in a country that transitional justice process, and its most
not only has a history of conflict, but is prominent example is the Srebrenica
attempting to face its consequences. I turn Commission.563 The focus on retributive
to Bosnia and Herzegovina‘s transitional justice means that the gathering of
justice process, the backdrop against evidence and mounting of cases against
which healthcare and all other facets of alleged violators of human rights law has
life, exists before discussing the caused the events of the war to be
importance of children‘s healthcare to the replayed, categorised, and raised in court
goals of this justice. years after their occurrence. The same is
true, to a lesser extent, for people who lost
THE RIGHT TO CHILDREN‟S property and Srebrenica survivors, as they
HEALTHCARE IN THE TRANSITIONAL tell their stories in the hopes of attaining a
JUSTICE CONTEXT measure of justice. Wartime events are
thus constantly recalled, through trials of
The right to healthcare is particularly alleged perpetrators, national and
important in societies pursuing international news coverage of the justice
transitional justice in an attempt to move process and the war, and by physical
from a past plagued by rights violations to reminders of the violence.
a future in which the rights of all are
respected. The role of children in these Therefore, while the Bosnians who were
societies holds special significance for children during the war are almost all
their future. Transitional justice is a adults (over age 18) now, the country‘s
process by which societies with a history children are affected by the war. The
of human rights abuse undertake various regular evocation of wartime experiences
approaches that use law or legal concepts creates a climate in which children
to achieve a defined set of goals. The aims continuously hear war stories and
of transitional justice may differ by versions of the past that they perceive to
society, but often emphasise (re- be truths. Children absorbing the rhetoric
)establishment of the rule of law, surrounding them, whatever perspective it
institutional reform, accountability for reflects, will grow up shaped by it.
perpetrators, justice and recompense for Furthermore, the alteration of population
victims of violence and crimes, societal distributions by the war has led to
reconciliation and healing, establishment separation between the country‘s three
of a collective memory based on truth- main ethnic groups.564 These cleavages
telling, and lasting peace.560 In Bosnia affect whom a child goes to school with,
and Herzegovina, the process has largely lives near, and plays with, all of which
centred around retributive, or criminal, contribute to the formulation of that
justice, characterised by trials of alleged child‘s identity. Ethnic divisions prevent
perpetrators of rights abuses at the
561 Marta Valiñas and Kris Vanspauwen, “Truth-Seeking after
Violent Conflict: Experiences from South Africa and Bosnia and
559Article 24 of the 1989 United Nations Convention on the Rights Herzegovina”, Contemporary Justice Review 12 (2009), 275.
of the Child (CRC), GA Res. 44/25, 44 UN GAOR, Supp. (No. 562 Ibid. p. 279.
49), at 167, UN Doc. A/44/49, (1989), entered into force 2 563 Ibid. p. 281.
September 1990. 564Trudy T.M. Mooren, Kaz de Jong, Rolf J. Kleber and Jadranka
560R.G. Teigel, quoted in Patricia Lundy and Mark McGovern, Ruvic, “The Efficacy of a Mental Health Programme in Bosnia and
“Whose Justice? Rethinking Transitional Justice from the Bottom Herzegovina: Impact on Coping and General Health”, Journal of
Up”, Journal of Law and Society 35 (2008), 267. Clinical Psychology 59 (2003), 58.
Page 175
children from facing challenges to their ensure access to healthcare for all
conceptions of the past if and until they Bosnians. The consequences of this
come into contact with differing failure are then addressed in the current
narratives. Today‘s children will set the political context.
tone for future debate and dialogue on
Bosnia and Herzegovina‘s past. As they THE CURRENT STATE OF CHILDREN‘S
age, children become agents of tomorrow‘s HEALTHCARE IN BOSNIA AND
actions. Consequently, the identities they HERZEGOVINA
construct now, in the era of transitional
justice, will affect the path the country Key to understanding the state of
takes after that process concludes. children‘s healthcare coverage in Bosnia
and Herzegovina is knowledge of the
Children‘s health is of particular country‘s government. The structure of
importance in a society grappling with a Bosnia‘ power apparatus is characterised
legacy of rights abuse. It is important to by legislative and administrative divisions,
remember that Bosnia‘s children – the current system having been created by
whatever their ethnicity – are the children or after the Dayton Peace Accords; in
of war survivors. Bosnian children must order to facilitate multi –ethnic and –
cope with the effects that war has had on religious government, power is fragmented
their older family members, who may be and multi-layered. The state of Bosnia and
physically disabled or suffer from Herzegovina is composed of two entities,
psychological illnesses stemming from the Federation of Bosnia and Herzegovina
wartime experiences. In the provision of (FBiH) and the Republika Srpska (RS), to
health services, the continual, societal which the national constitution delegates
focus on human rights violations may most governmental powers. The Brčko
frame healthcare so that the system is District is another sub-national
designed for the needs of war survivors, administrative unit in the country, which
rather than their progeny. Healthcare is self-governing but under international
should emphasise the best treatment of all supervision.565 At the next level of
citizens at all times. In societies, which administration, the Federation contains
have suffered from rights abuses and are ten cantons whose population is
now dealing with the past through on- comprised mainly of Bosniaks and
going transitional justice mechanisms, Croatians, with Serbians a small minority;
people face certain health needs stemming the RS, meanwhile, has a Serbian
from the continuous presence of the majority population566 and is divided into
conflict period in their lives. This presence sixty-four municipalities.567 Financial
means that the health of children born matters are handled differently within
after the end of the conflict is affected by each entity- the Federation‘s cantons have
it. Doctors, nurses, and therapists taxation and regulatory control over the
working in Bosnia must acknowledge the entity‘s seventy-three municipalities
needs of children who constantly deal with whereas in the RS, an entity-level ministry
the consequences that war has had on regulates and serves as an interlocutor
their parents, older family members, with its sixty-four municipalities.568
neighbours, and themselves. These Healthcare and social services are the
practitioners must acquire or develop the purview of cantons in the Federation and
requisite skills to treat these children. the entity in the Republika Srpska,569 with
How does the government of Bosnia and 565 “The CIA World Factbook: Bosnia and Herzegovina”,
Herzegovina ensure that this right to https://www.cia.gov/library/publications/the-world-
healthcare is fulfilled for the children factbook/geos/bk.html.
566 Charles Jokay, “Local Government in Bosnia and
under its jurisdiction? An examination of Herzegovina”, Stabilisation of Local Governments (Budapest: Open
the current legislation sheds light on the Society Institute/Local Government Initiative, 2001), p. 94.
procedures in place, and an assessment of 567 Jokay, Charles. “Local Government in Bosnia and Herzegovina”, p.95.
568 Ibid.
its faults shows that current laws fail to 569 Ibid. p. 97.
Page 176
the Brčko District mandating its own Srpska576 have enacted legislation on
healthcare laws. This is demonstrated by healthcare and health insurance and the
the scope of the existing legislation on Brčko District has legislation regarding
healthcare, insurance and general social healthcare.577
services. Out of an estimated population
of 3.5 million Bosnians, approximately The Law on Healthcare of the Federation
867,632 are children (composing one- of Bosnia and Herzegovina pertains to the
third of the Republika Srpska570 and two- principles, organisation, and
thirds of the FBiH571); 59% of this implementation of healthcare in the
population does not have health territory, including health education in
insurance.572 This represents a mainstream curriculum.578 Going hand in
substantial obstacle to their ability to hand with the Law on Healthcare is the
access healthcare. FBiH Law on Health Insurance, which
lays out the terms by which citizens pay
Relevant legislation includes laws passed into the social assistance fund at the
at all levels of government that relate to cantonal level. Employed persons and
healthcare and health insurance, since their family members fall into the category
the latter makes possible the former in of those whose insurance is obligatory,
many instances. Domestic laws related to whereas additional and voluntary health
a child‘s right to healthcare include laws insurance recipients include children in
at multiple levels of government. The other categories. These are children
national constitution does not explicitly between 15 and 18 years of age who have
guarantee a right to healthcare, instead not finished primary school or did not find
delegating legislation on the issue to the employment after school and registered
entities and other sub-national units.573 with the unemployment office; infants;
At the national level, steps have been children enrolled in regular primary or
taken to meet the country's obligations secondary schools or in studies at a
that arise from signing the UN Convention university; and children with a permanent
on the Rights of the Child and other residence in BiH who are Bosnian
international documents. With the aims of nationals and who are not covered by an
fulfilling both the UN Millennium employed persons‘ insurance.579 Disabled
Development Goals (BiH signed the United and foster children who are covered under
Nations Millennium Declaration in 2000) obligatory insurance, however, have a
and the rights outlined in the CRC, and in right to healthcare, as do children whose
order to improve the situation of children parents are not insured obligatorily.580
in the country, the national government of Under the Law on Health Insurance of
BiH instituted the Action Plan for Children FBiH, cantonal authorities on social and
of BiH for the Period 2002-2010.574 At the child protection have the obligation to pay
entity level, the Federation of Bosnia and the healthcare fund contributions of
Herzegovina575 and the Republika children who are not insured as family
members of an insured person from birth
to enrolment in elementary (primary)
570 “The NGO complementary report to the state report on the school. The cantonal educational
situation of children in the Bosnia and Herzegovina”, (Bosnia and
Herzegovina, 2004), p.49.
authority is to provide healthcare for
http://www.crin.org/docs/resources/treaties/crc.39/BosniaHerze students enrolled in the mainstream
govina_ngo_report%5B2%5D.pdf. educational system until they reach age
571 Ibid. p. 50.
572 “The NGO complementary report to the state report on the
26 and students pursuing a teaching
situation of children in the Bosnia and Herzegovina”, (Bosnia and
Herzegovina, 2004), p.45. Institution of the BiH Ombudsmen for Human Rights, 2009), pp.
573 Živanović, Miroslav (ed.), Human Rights in Bosnia and Herzegovina 122- 123
2008, p. 571.
574 Article 44 of the National Report, in “Child Rights References 576 Čamo (ed.), Analysis of the harmonisation, pp.123-124.
in the Universal Periodic Review: Bosnia & Herzegovina – 7th 577 Ibid. p. 124.
Session – 2010”. 578 Ibid. p. 122.
575Rusmira Čamo (ed.), Analysis of the harmonisation of the legislation in 579 Čamo (ed.), Analysis of the Harmonisation, p. 122.
BiH with the Convention on the Rights of the Child (Banja Luka: 580 Ibid.
Page 177
internship.581 Among persons exempt from children miss out on healthcare that, even
payment into the healthcare fund are though it is their right, may or may not be
children at 15 years old and students up part of domestic legislation.
to 26 who are enrolled in the mainstream
educational system.582 Taken as a whole, DEFICIENCIES IN THE PROVISION OF
these laws theoretically translate to HEALTHCARE FOR CHILDREN IN
universal, cantonal-sponsored healthcare BOSNIA AND HERZEGOVINA
for persons defined as children under the
law, regardless of their parents‘ insurance Many NGOs studying the system have
status. They also link education and found that the existence of these laws is
healthcare, providing an incentive for insufficient in ensuring that children in
children and young adults up to age 26 to BiH have access to healthcare and health
enrol in school and continue their studies. insurance. The current legislation
regarding children's access to healthcare
In the Republika Srpska there exists a and health insurance is wrought with
Law on Healthcare, defining ―healthcare‖ identifiable problems that have
and the functioning of health services recognisable solutions. For example, a
(which is similar to the corresponding law 2009 report from the Ombudsmen
in FBiH).583 The RS Law on Health Institution of Bosnia and Herzegovina,
Insurance outlines the duality of compiled in association with Save the
obligatory and additional insurance, the Children Norway, on ―Analysis of the
rights of beneficiaries and the state in Harmonisation of the Legislation in BiH
terms of insurance, and information on with the Convention on the Rights of the
private health insurance. A child's right to Child,‖ acknowledges the complex and
health insurance and the role of the varying administrative procedures one
insured in covering minor family members must often undergo prior to obtaining
is laid out, as it is in Federation law.584 health insurance for a child (such as
The Law on Healthcare of Brčko District producing certificates on school
BiH defines, like both entity laws, the attendance or proof of parental health
organisational and implementation insurance), and declares that such
schema for healthcare in the District. requirements are contrary to the
Healthcare is divided into primary, Convention‘s provisions ensuring
specialist-consultative, and hospital care, healthcare for all children (persons under
with the healthcare of children falling 18 years of age).586 As is explained by the
under the label of primary care. In this Ombudsman,
context, school-age children are evaluated “In BiH one can still encounter a situation
on their abilities to learn and work, with where the child‟s right to healthcare is tied
the aims of improving their health, with the healthcare of one of the parents,
enhancing psycho-physiological abilities, which excludes a great number of children
and promoting adequate nutrition for from the healthcare system. This situation
infants and care for medical conditions, is also very much affected by deadlines
including developmental disorders.585 The based on laws on healthcare, whereby the
RS, in its similarities to the Federation, parents themselves often lose the right to
establishes that a child has a right to healthcare if they miss the deadlines.”587
healthcare and ties healthcare to parental Such restrictions make for an ambiguous
insurance in some cases. As for the Brčko and arbitrary system when it comes to the
District, there is healthcare promotion but provision of healthcare and insurance for
not necessarily established free care for minors, which hampers or eliminates
children. Gaps exist through which access to the right to access healthcare.
This is tied to the wording and
581 Ibid. understanding of the laws in place.
582 Ibid. p. 123.
583 Ibid.
584 Ibid. p. 124. 586Ibid. p. 126.
585Čamo (ed.), Analysis of the harmonisation, p.124. 587 Čamo (ed.), Analysis of the harmonisation, .p.126.
Page 178
Regulations on healthcare and health BiH.‖591 As demonstrated by the

insurance for children whose parents are legislation regarding healthcare and
uninsured (found in the legislation of the insurance, the policies vary greatly based
entities, the Brčko District, and the upon the region one lives in, partially
cantons composing the FBiH, and because the budget of the administrative
mentioned in nationwide policymaking) regions does. Therefore, a child living in a
are ―extensive, and their content is often wealthier area has a higher likelihood of
imprecise and deficient,‖588 according to receiving social assistance, such as
domestic NGOs. Thus, even if free government-sponsored healthcare, than a
healthcare is legally available to children, child who lives in a poorer one,592 which
they and their families may not know how represents a threat to free, nationwide
to obtain it, while administering officials children‘s healthcare. The delegation of
in a position to decide eligibility for free healthcare and insurance to the lower,
healthcare can allow or deny children localised levels of government means that
access to health services that are intended there is no national, unified healthcare
for their use. Parents, children, and and insurance policy to equalise regional
governmental officials who are un- or income differences.
under- educated regarding the exact
meaning of relevant legislation, combined Finally, as the Roma population in BiH is
with complicated bureaucratic largely without healthcare, Roma children
procedures, creates an environment in are among those uninsured. The UN
which the conditions are prime for a Committee on the Rights of the Child, in
child‘s right to healthcare to be violated,589 their observations on the state report,
despite the passage of legislation cites the statistic that 90% of ethnic Roma
intending the opposite. have no health insurance, ―which results
in their de facto exclusion from access to
A related problem that prevents children healthcare.‖593 This is linked to the fact
from fulfilling their human right to that many Roma children are not
healthcare is the complex political system registered at birth due to the lack of
in Bosnia and Herzegovina. The United identity documents for their parents (a
Nations Committee on the Rights of the cyclical problem) or discrimination by a
Child spoke to this particular issue in registering official.594 According to the
their 2005 concluding observations on the Ombudsman‘s report, pregnant Roma
state‘s initial report. The Committee found women, lacking health insurance, bring
that ―the country‘s complex political another woman‘s insurance card with
structure and the lack of unified laws and them to the hospital because one needs to
policies make equitable access to health- pay the entire cost or present proof of
care [sic] services for all children insurance in order to leave the hospital.595
increasingly difficult.‖590 Further reaction Occurrences such as these create further
arose from within the BiH government confusion in the birth registration of
itself. According to the Ombudsman‘s Roma infants. Given that only an
report, ―Separate systems of healthcare estimated 33% of Roma children attend
and insufficient coordination in the area primary school,596 laws that tie healthcare
of health by the Ministry of Civil Affairs to school attendance do not reach many
BiH contribute to a great extent to the
poor approach to the child healthcare in
591 Čamo (ed.), Analysis of the Harmonisation, p. 126.
592 “The NGO Complementary Report to the State Report on the
588 “The NGO complementary report to the state report on the Situation of Children in the Bosnia and Herzegovina”, (Bosnia and
situation of children in the Bosnia and Herzegovina”, (Bosnia and Herzegovina, 2004), p.45.
Herzegovina, 2004), p.45. 593 Article 47 of “Committee on the Rights of the Child-39th
589 Ibid. Session-Consideration of reports submitted by states parties under
590Article 47 of “Committee on the Rights of the Child-39th Article 44 of the Convention, Concluding Observations: Bosnia
Session-Consideration of Reports Submitted by States Parties and Herzegovina”. CRC/C/15/Add.260 (21 September 2005).
under Article 44 of the Convention, Concluding Observations: 594 Article 32, CRC/C/15/Add.260 (21 September 2005).
Bosnia and Herzegovina”. CRC/C/15/Add.260 (21 September 595 Čamo (ed.), Analysis of the Harmonisation, p. 126.
2005) 596 Article 57, CRC/C/15/Add.260 (21 September 2005).
Page 179
Roma. Overall, Roma children go administering the care can establish

uninsured, barred from accessing health legitimacy. This is particularly important
services. if the state-level, national government
were to assume responsibility for
THE IMPACT OF SHORTCOMINGS IN healthcare and administer it well, thereby
THE HEALTHCARE SYSTEM ON increasing its ability to unify Bosnians
TRANSITIONAL JUSTICE IN BIH under a national identity. Under the
extremely divided balance of power built
The impediments to healthcare noted into the country‘s governing structure, if
above are detrimental to Bosnian society, some Bosnian politicians – often entity-
especially in the transitional context. level power brokers – wish to prevent
When children who need treatment for an central control over the country, they can,
illness cannot receive it, the child – and making federal administration of
his or her family – suffers. Health children‘s healthcare unlikely. But even if
practitioners appear to be helpless in administration of children‘s healthcare (or
changing the system in the face of political healthcare overall) is successful at the
paralysis. At the time of this writing, sub-national level, it would demonstrate
Bosnian politicians have failed to form a that BiH is moving away from needing
central government more than 13 months international oversight, such as the Office
after elections (in October 2010), and the of the High Representative, of its internal
Federation government took five months administrative capacities. Additionally,
to coalesce. Such stalemate creates a success would increase Bosnians‘ belief in
climate in which it is likely that people- their government‘s abilities to run the
and health- oriented individuals, feeling country and help foster a Bosnian identity
frustrated, will leave the healthcare field tied to trust in the government.
or decide not to enter the profession at all.
Barriers to access may create resentment CONCLUSION
from parents, and children as they grow
older, towards the officials presenting the In a broader sense, establishing
obstacles. The lack of legislation nationwide, equal access to healthcare
expanding children‘s healthcare leads allows children to fulfil their right to
people to lose faith that their government health at a time when many need it the
exists for their benefit. When barriers to most. In a country where people are
access disproportionately affect certain grappling, often daily, with the long-term
segments of the population, such as physical and psychological effects of
people living in poorer areas or minorities human rights violations, trauma,
like Roma, these groups cannot trust the displacement, and violent conflict,
government to provide adequate treatment focussing on equal access to a safer,
for their children. Deficiencies in the healthier, better life for all Bosnians is a
healthcare system translate to unequal way to move forward positively. Given the
treatment of Bosnians under the law, sensitive atmosphere surrounding the
thereby exacerbating existing ethnic- and transitional justice process – especially
income- based tensions and divisions. As establishing a cohesive narrative on the
long as bureaucracy prevents children conflict - ensuring access to the human
from accessing healthcare or divisions right to health for Bosnian children is part
prevent politicians from passing laws to of a larger process by which all rights, of
increase children‘s access to care, parents all Bosnians, are guaranteed. This is one
will neither expect much from, nor place of the goals of transitional justice. It is no
much weight in, the ability of Bosnian small feat in a country examining its past
authorities to improve their daily lives. and trying perpetrators of rights abuse,
but it is a crucial one. Retributive justice
By providing citizens with adequate and is not enough for Bosnians- their
equal access to their fundamental right to humanity must be restored as well. For
healthcare, however, the government Bosnia and Herzegovina, ensuring that a
Page 180
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.
Page 181
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-world-
factbook/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).
Page 182
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 anti-
corruption 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 ordinary citizens.599 Furthermore, the issue of

Corruption is a global phenomenon. However, discrimination, including the indirect
it is the scope in which corruption affects an institutional discrimination that occurs as a
average or non-privileged citizen in her/his consequence of petty corruption, inevitably
everyday life that makes the difference for touches on the connection between
these people from state to state. It is precisely corruption and some fundamental human
petty corruption that directly affects the rights principles, namely the principles of
everyday life of so many ordinary people in equality and non-discrimination, and the
underdeveloped and/or transitional countries potential of using human rights instruments
such as Bosnia and Herzegovina. as an anti-corruption mechanism. This is
certainly a field that has not been tackled by
Unlike grand corruption, which impacts a anti-corruption and human rights advocates
country by taking large sums of money away and institutions in Bosnia and Herzegovina so
from the public purse, petty corruption far.
directly impacts individuals, particularly the
poor and vulnerable. It is often just as The pioneering work connecting corruption
damaging to the poor, and it is more with human rights violations, including the
immediate and tangible than the bigger principle of equality and non-discrimination
corruption cases which make breaking news that is most directly relevant to petty
and scandals.597 This everyday corruption corruption, is contained in two comprehensive
occurs most frequently in interactions reports, ―Corruption and Human Rights:
between ordinary citizens and public services Making the Connection‖, and ―Integrating
providers, such as public health institutions, Human Rights in the Anti-Corruption
educational institutions and the like, and it is Agenda‖, written by the International Council
in the public sector service delivery where on Human Rights Policy and Transparency
petty corruption restricts citizens‘ access to International.600 Because they are among the
public services and causes inequality and very few to address the connection between
indirect institutional discrimination.598 So far, corruption and human rights. The views
little attention has been paid to the role contained in these reports will be largely
public sector service delivery plays in reflected in this paper, upholding the position
enforcing or violating the rights and civil that fighting corruption has a potential to
liberties of Bosnia and Herzegovina‘s citizens. improve human rights protection, and vice
Instead, much effort is concentrated on versa, the protection of human rights can
reforming the court system, in spite of the fact serve as an anti-corruption mechanism.
that the justice system in Bosnia and
Herzegovina (BiH) comprises far more than
the court system. It also consists of public DEFINITION
sector service delivery, which exercises a huge Corruption may be defined in philosophical,
influence on the lives and legal rights of legal, criminological, sociological and cultural
senses, to name a few. In regards to the
597 U4, Anti-Corruption Resource Centre.
ethical notion of corruption, there seems to be
http://www.u4.no/helpdesk/helpdesk/query.cfm?id=72. 16 July a universally agreed general definition in
2011.
598 Indirect institutionalised discrimination occurs when sanctioned
actions unintentionally discriminate against a subordinate group. 599 International Crisis Group, Rule of Law in Public
Institutional discrimination is built into the structure itself. Thus it Administration, Confusion and Discrimination in a Post-
is more covert and more tenacious. It can occur regardless of the Communist Bureaucracy, 1999.
desires or intentions of the people perpetuating it. Much http://www.crisisgroup.org/en/regions/europe/balkans/bosnia-
institutional discrimination results from judgments made on herzegovina/084-rule-of-law-in-public-administration-confusion-
secondary rather than primary characteristics. Race and sex may be and-discrimination-in-a-post-communist-bureaucracy.aspx. 16 July
consciously eliminated as concerns, but criteria such as educational 2011.
background, employment history, supervisory experience, age, 600 International Council on Human Rights Policy and
income, etc, which have been effected by group membership, can Transparency International.
be effective substitutes. Freeman, J., Institutional Discrimination. http://www.ichrp.org/files/reports/40/131_web.pdf, and
http://www.uic.edu/orgs/cwluherstory/jofreeman/womensociety http://www.ichrp.org/files/reports/58/131b_report.pdf. 16 July
/institidiscrim.htm. 16 July 2011. 2011.
Page 184
wider terms, whereby corruption is ―an For the purpose of this paper, it is also
impairment of integrity, virtue, or moral necessary to stress that, in reality, the
principle…‖ and more specifically, ―the act of ―reward‖ for those that facilitate both grand
doing something with intent to give some and the petty corruption is not limited to
advantage inconsistent with official duty and payments, but very often involves a wide
the rights of others‖.601 variety of non-financial transactions, the so
called ―favours‖, e.g. nepotism, cronyism, and
Sociologically, corruption is any process in other forms of trading in favours and
which at least two persons act to the influence, a fact grossly overlooked by those
detriment of public interest by means of who reduce the term ―corruption‖ to ―bribery‖
unlawful transactions for the purpose of alone. Hence, the Oxford Unabridged
personal gain. By violating moral and legal Dictionary distinguishes bribery from favour
norms, any such person is violating the by defining corruption as ―pervasion or
foundations of democratic development and destruction of integrity in the discharge of
the rule of law. In the legal sense there is no public duties by bribery or favour‖.605]
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 CORRUPTION IN THE PUBLIC SECTOR
divided into grand corruption and petty SERVICE DELIVERY OF BOSNIA AND
corruption. Grand corruption refers to the HERZEGOVINA
corruption of more senior officials and The public sector service delivery is
significant amounts of money and involves the largest employer in any country and its
two main activities: bribe payments and the associated job security and accompanying
embezzlement and misappropriation of state benefits are highly coveted. However,
assets.603 Petty corruption, which is resources in this sector in Bosnia and
sometimes referred to as ―routine corruption‖, Herzegovina are scarce and the supply of
is the everyday corruption that takes place at experienced and qualified staff is limited.
the implementation end of politics, where When coupled with woeful under-funding,
public officials meet the public. It is the kind arbitrariness, inertia, and corruption are
of corruption that people can experience in endemic. So too is the arrogance inherited
their frequent encounters with public from officials in the old communist era
administration and services like hospitals, bureaucracy.606 It is in this sector that the
schools, local licensing authorities, police, largest amount of corruption in Bosnia and
taxing authorities and so on.604 It is precisely Herzegovina takes place, the petty corruption,
this kind of corruption that occurs most in particular, where infringements of the
frequently and it is the kind that this paper principles of equality and non-discrimination
will focus on. 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
601 The word “corrupt” etymologically stems from mid 14 th century relatively few people come into contact with
Old French “corropt”- “unhealthy, uncouth” (in reference to judiciary. In contrast, the system of public
language), which in turn stems form Latin “corrumpere”-“to destroy;
spoil”, composed of prefix “com” and “rumpere”-“to break”,
services in BiH sees a constant flow of
Online Etymology Dictionary. individuals through its various layers. It is
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. 623- 605 Civil Society Against Corruption,
624. http://www.againstcorruption.eu/diagnosis-tool. 18 July 2011. In
603 Nicholls, C. QC and T. Daniel, Corruption and Misuse of Public addition to bribery and favouritism/clientelism/connections, some
Office, Oxford: Oxford University Press, 2006, pp. 2-3. other forms of corruption include embezzlement, trading in
http://www.u4.no/themes/pfm/Revenueissue/revenue1.cfm. 16 influence, and abuse of function or position, illicit enrichment, etc.
July 2011. 606 International Crisis Group, Rule of Law in Public
604 U4, Anti-Corruption Resource Centre: Revenue Administration and Administration, “Confusion and Discrimination in a Post-
Corruption. Communist Bureaucracy,” 1999, p.19.
http://www.u4.no/themes/pfm/Revenueissue/revenue1.cfm. 17 http://www.crisisgroup.org/~/media/Files/europe/Bosnia%2033
July 2011. .pdf. 16 July 2011.
Page 185
there that the vast majority of legal abuses regards to the corruption in educational
occur, as public servants intimidate and institutions, the report of Kahvedņić and Lońić
discriminate ordinary people.607 indicates that the biggest and most important
A large number of households in BiH type of corruption in the educational system
encounter corruption when dealing with the in Bosnia and Herzegovina is payment for
employees of public sector service delivery. passing exams. The students believe that this
Twenty percent of respondents in a World phenomenon is normal, where they openly
Bank survey who received services in health talk about it and pay the professors without
care, education, police, and some other questions. In their survey, Kahvedņić and
institutions paid bribes (money, gifts, or Lońić often encountered students who take
counter-services). These informal payments exams several times before finally passing; an
shrink household budgets, distort the incident often linked to the fact that they do
structure of household budgets and make not have the economical possibility to pay the
budget spending less predictable. 608 professors. This has led to a polarisation
Widespread corruption in public health and where there are rich students and poor
educational services, to name a few, deters students. The rich students pay and pass
the poor from seeking healthcare and exams easily without any adequate
education, and depresses living standards knowledge.611
and opportunities for poorer people in
particular. 609 The employment sector is yet another area
where large quantities of corrupt acts occur
Kahvedņić and Lońić accordingly observe in and create discrimination and inequality on a
their investigative report on corruption in daily basis, as well as violating the right to
BiH, ―The poor have neither money nor employment of the regular, non-bribing or
connections. It is not even granted that when non-privileged citizens. The recruitment
they actually get an appointment that they process is heavily distorted by corruption.
will receive the best or proper help. When This comes as no surprise since a major
there is a distinct line between the poor and problem for citizens in BiH today is finding a
the wealthy, as the case seems to be in BiH, job.612 In dealings with hospitals, schools,
corrupt acts are about to occur in the health police and other basic public services, poor
sector.‖ Furthermore, the background of the citizens tend to suffer more discrimination
patient is often investigated by medical than the rich and they see a larger share of
professionals, and only if it shows that the their resources eaten away. Those with the
patient is coming from a wealthy family or has least influence are left with little recourse
good connections, i.e. he or she is able to pay, against corruption, as mentioned earlier.613
then will they receive proper health care.610In
University of Linkoping, 2010, p. 34. http://liu.diva-
portal.org/smash/get/diva2:309905/FULLTEXT01. 18 July 2011.
607 Ibid., p.1 611 Ibid. pp. 34-35.
608 When asked about the main consequences of corruption, 60 612 95% of survey respondents in the survey conducted by the
percent of respondents in the general public indicated that, “the UNDP in 2009 reported that having štela (a Bosnian colloquial
poor get poorer and the rich get richer.” This perception is word for favouritism/personal connections) is useful for access to
supported by the actual experiences with corruption reported in basic social services, including access to education, employment
the surveys. World Bank, Bosnia and Herzegovina - Diagnostic and healthcare. More than one third of employed respondents said
Surveys of Corruption, 2000. they had found their job through personal connections; UNDP
http://www1.worldbank.org/publicsector/anticorrupt/Bosniantic Bosnia and Herzegovina, Human Development Report 2009; The
orruption.pdf. 17 July 2011. Ties that Bind – Social Capital in BiH, pp. 12-13,
609 Article 14 of the European Convention on Human Rights, for http://www.undp.ba/index.aspx?PID=36&RID=90. In Bosnia and
example, provides that, “The enjoyment of the rights and freedoms Herzegovina bribes were particularly common in the health sector
set forth in this Convention shall be secured without with surveys of officials and citizens reporting that 75 percent
discrimination on any ground such as sex, race, colour, language, thought bribes were required for obtaining positions and for
religion, political or other opinion, national or social origin, promotion, Centre for Global Development, Governance and
association with a national minority, property, birth or other Corruption in Public Health Care Systems p. 20.
status.” http://www.u4.no/pdf/?file=/document/literature/file_WP_78.p
http://www.hrcr.org/docs/Eur_Convention/euroconv4.html. 17 df. 18 July 2011.
July 2011. 613 Article 26 of the International Covenant on Civil and Political Rights
610 Kahvedžić, N. and S. Lošić. “Corruption in Bosnia and prohibits discrimination in law or in fact in any field regulated and protected by
Herzegovina-Causes, Consequences and Cures,” Master thesis in public authorities, and its application is not limited to those rights which are
Economics Department of Management and Engineering The provided for in the ICCPR, International Council on Human Rights Policy
Page 186
Therefore, in addition to creating a distinction from other human rights, it is likely that
between those who use bribes or connections privileged treatment of the abovementioned
to obtain regular or privileged treatments in kinds could indirectly affect some specific
the public sector service delivery on the one human rights. When for example a person
hand and those who do not on the other, bribes a medical practitioner or provides
petty corruption discriminates against people him/her a counter-favour in exchange for a
with poor economic or social status, which privileged treatment, or even just a regular
represents a violation of the principle of proper treatment that is often made
equality and non-discrimination, the impossible due to unfavourable
fundamental principles of human rights and circumstances in public health institutions617,
affirmed in all the main human rights the regular, non-privileged patients are not
treaties.614 only discriminated against, but their access to
health is severely restricted.618 In such cases,
Article 26 of the International Covenant on when acts of corruption are linked to
Civil and Political Rights (ICCPR) prohibits violations of the principle of equality and non-
discrimination in law or in fact in any field discrimination or even some specific human
regulated and protected by public authorities, rights indirectly, evoking international human
and its application is not limited to those rights instruments could act to force
rights, which are provided for in the ICCPR. accountability on the part of the state or a
615 state/public organ and so create disincentives
for corruption. While they do not replace
Simply put, every individual is entitled to be traditional anti-corruption mechanisms,
treated equally by public officials. If a person primarily the criminal law, they can give cases
bribes a public official, that person acquires a prominence; they may force a state to take
privileged status in relation to other similarly preventive action, or they may deter corrupt
placed individuals who have not partaken in officials from misusing their power. They can
bribery. Individuals or groups of people are therefore both raise awareness and have a
left without access to a service because they deterrent effect.619 Human rights obligations
cannot or refuse to pay a bribe or do not on the part of a state that signed human
belong to a given client network. It is precisely rights treaties and conventions apply to all
in this sense that discrimination and branches of government (executive, legislative
inequality are defined in this paper. When a and judicial) at all levels (national, regional
person obtains privileged treatment by means and local). According to human rights
of a bribe no other human right is necessarily jurisprudence, an act, or omission, is
directly affected except the right to equality.616 attributable to the state when committed,
Additionally, while the principles of equality instigated, incited, encouraged or acquiesced
and non-discrimination stand independently
and Transparency International, “Corruption and Human Rights, Making 617 Many medical practitioners that work in public hospitals also
the Connection,” http://www.ichrp.org/files/reports/40/131_web.pdf. 16 have their own medical clinics. Public hospitals are used to pick up
July 2011. clients and send them to their own private clinics, where the
614 UN Charter (Articles 1(3), 13(1)(b), 55(c), and 76); the Universal doctors will be paid for their services. It is not due to the mere fact
Declaration of Human Rights (UDHR) (Articles 2 and 7); the that public hospitals do not have adequate equipment and
International Covenant on Civil and Political Rights (ICCPR) knowledge to help these patients, but rather an opportunity for
(Articles 2(1) and 26); and the Convention on the Rights of the doctors to extract more money. An additional complication of the
Child (CRC) (Article 2). Sometimes the references to problem is the principal agent problem, where the patients do not
discrimination make clear that prohibition is not limited to the know what kind of treatment they need, making it easier for the
rights set out in the instrument concerned. For example, Article 26 doctors to deceive and extract money; Kahvedžić, N. and S.
of the ICCPR, Article 3 of the ACHPR, Article 24 of the ACHR, Lošić.” Corruption in Bosnia and Herzegovina-Causes,
and Protocol No. 12 of the European Convention on Human Consequences and Cures”, Master thesis in Economics
Rights and Fundamental Freedoms (ECHR) establish freestanding Department of Management and Engineering The University of
rights to equality; their application is not confined to the rights Linkoping 2010, p. 34. http://liu.diva-
contained in those Conventions; “International Council on Human portal.org/smash/get/diva2:309905/FULLTEXT01. 18 July 2011.
Rights Policy and Transparency International,” p.34. 618 International Council on Human Rights Policy and
http://www.ichrp.org/files/reports/40/131_web.pdf. 16 July Transparency International, p. 33.
2011. http://www.ichrp.org/files/reports/40/131_web.pdf. 16 July
615 Ibid. 2011.
616 Ibid., p. 1. 619 Ibid. p. 6.
Page 187
to by any public authority or by any other discrimination as a consequence of some

person acting in an official capacity.620 petty corruption act lies with individual
complainants, the damaged party, who is
In terms of human rights instruments highly unlikely to file complaints in such
available, Bosnia and Herzegovina cases. Finally, proving discrimination as a
ratified/signed most existing international consequence of a petty corruption act is
human rights treaties and they are all particularly difficult to prove in legal sense.
contained in the constitution, certainly Nevertheless, it is obvious from its reports
including those human rights violated by acts that the IHROBH has not so far used much of
of corruption mentioned above. 621 In addition its capacity to address the connection
to international human rights between petty corruption and discrimination,
treaties/conventions, there are human rights or potentially violations of some concrete
institutions in BiH. One such institution is human rights. One such capacity would entail
the Institution of Human Rights Ombudsman that the IHROBH would encourages citizens
of Bosnia and Herzegovina (IHROBH), an to file complaints in which the latter believe
independent institution dealing with the they were victims of discrimination peculiar to
protection of rights of natural persons and the public service providers and had
legal entities in accordance with the restricted access to a public service due to
Constitution of BiH and international human some petty corruption act/s in a given public
rights instruments appended thereto. It service institution.
handles complaints related to poor
functioning or human rights violations In regards to the anti-corruption instruments,
committed by any organ of Bosnia and as a potential mechanism to increase the
Herzegovina. The cases are opened upon protection from indirect institutional
individual complaints filed by a natural discrimination, inequality and restricted
person or legal entities, or ex officio. However, access to public service, Bosnia and
IHROBH is limited in the sense that it is only Herzegovina has an anti-corruption legal
authorised to issue recommendations to framework, anti-corruption institutions and
competent organs to undertake measures to the an anti-corruption strategy. The Criminal
restore human rights violations or poor Code of Bosnia and Herzegovina, for example,
functioning of the administration, and it does foresees sanctions for a wide range of criminal
not have a mandate to deal specifically with offences of corruption, such as accepting gifts
corruption. Few references to corruption in and other forms of benefits, giving gifts and
the IHROBH statements or cases pertain to other forms of benefits, illegal interceding,
corruption in general, despite of the fact that abuse of office or official authority,
maladministration or poor functioning of any embezzlement in office, and the like. Apart
public organ or employee might be indirectly from the Criminal Code, the Law on Conflict
linked to corruption.622 The burden of proof of of Interest in Governmental Institutions of
Bosnia and Herzegovina is available, too, as
an instrument for fighting corruption and,
620Ibid. p. 24.
621 Article II of the Constitution of Bosnia and Herzegovina, implicitly, an instrument fostering better
contains provisions of Human Rights and Fundamental Freedoms, protection of human rights violations made by
http://www.ccbh.ba/eng/article.php?pid=827&kat=518&pkat=50 means of corruption.623 More recently, the
0. 18 July 2011. Article II, Paragraph 4 of the Constitution of
Bosnia and Herzegovina contains a provision of non-
discrimination: “The enjoyment of the rights and freedoms appointment of insufficiently qualified persons in managing bodies
provided for in this Article or in the international agreements listed of public enterprises, persons with conflict of interests, and to
in Annex I to this constitution shall be secured to all persons in eliminate existing nepotism and corruption, and to ensure
Bosnia and Herzegovina without discrimination on any ground representation principles in all aspects.” The Institution of Human
such as sex, race, colour, language, religion, political or other Rights Ombudsman of Bosnia and Herzegovina, “Annual Report
opinion, national or social origin, association with a national on Results of the Activities by the Human Rights Ombudsman of
minority, property, birth or other status”. Bosnia And Herzegovina,” 2010.
http://www.ccbh.ba/eng/article.php?pid=827&kat=518&pkat=50 http://www.ombudsmen.gov.ba/materijali/publikacije/GI2010/A
0. 18 July 2011. nnual_Report2010.pdf. 21 July 2011.
623 The Prosecutor‟s Office of BiH: The Criminal Code of BiH,
622“The purpose of the law is to ensure qualitative, multi-ethnic Chapter Nineteen “Criminal Offences of Corruption and Criminal
appointments of members of managing bodies of state-owned Offences against Official Duty or Other Responsible Duty”;
public enterprises, i.e. to eliminate the practice resulting in the Ministry of Justice of Bosnia and Herzegovina: “Law on Conflict
Page 188
appointment of the top management staff of to occur. A particular limitation of individual

the Anti-Corruption Agency of BiH has been case litigation is the problem of evidence, as
finally completed, after years of delays. mentioned earlier. By definition corruption is
Unfortunately, the long awaited start of the covert and leaves no paper trail. Collecting
functioning of the Anti-Corruption Agency has evidence is, therefore, a major challenge.
been seriously overshadowed by reports of Firstly, there are the limits on judicial
alleged political appointments.624 redress, and the judiciary itself may be
inefficient for a number of reasons, including
In terms of specific areas in which the political pressure and corruption that affect
abovementioned human rights and anti- judicial impartiality, as is reportedly the case
corruption instruments could apply in such with the judiciary in BiH, for the most part.626
cases, theoretically there seems to be two Secondly, if litigation is to have effect, for
main ways to address this issue: a.) litigate victims or perpetrators, advocates also need
individual cases of corruption-made to identify victims, secure their consent to a
discrimination through the judiciary, a prosecution and perhaps recruit them as
human rights ombudsman, or a specific witnesses, all of which can prove difficult.627
institution in which the discrimination In any case, the petty, everyday, corruption
occurred where the focus is proving the seems to be of such nature that it is highly
connection between a corrupt act and unlikely it would be best addressed through
discrimination in legal sense, and/or b.) take individual cases, be it through litigation at the
a more systematic (institutional) approach, judiciary, through the intervention of Human
such as the enforcement of internal Rights Ombudsman Offices in BiH, or
rules/regulations based on anti- addressed by specific public service
discrimination625 (human rights) and anti- institutions because of the frequency of its
corruption principles in public service occurrence (it takes place on a daily basis)
institutions and the sanctioning of those who and the tendency of individuals not to file
breach them, by which the decrease in the such complaints in general.
level of discrimination and potentially some
specific human rights violations caused by The other approach is the systematic,
corruption in this sector is naturally expected institutional, approach, for example, the
enforcement of internal rules and regulations
of Interest”, “Law on Freedom of Access to Information”; In based on human rights instruments,
terms of fighting corruption forms peculiar to the public sector specifically anti-discrimination, anti-
service delivery, especially the non-financial, favouritism-based corruption, and ethical rules and regulations
forms of corruption (nepotism, cronyism, etc.), the provision of
Illegal Interceding in the Criminal Code of Bosnia and in public institutions, coupled with a more
Herzegovina is particularly useful, as it is not bound by a particular intense and through monitoring of potential
amount of money as a benefit sought by a wrongdoer, but petty corruption activities. In Bosnia and
sanctions anyone who “accepts a reward or any other benefit for
interceding that an official act be or not be performed, taking Herzegovina most public service institutions
advantage of his official or influential position in the institutions of do have internal rules, regulations and ethical
Bosnia and Herzegovina”. codes, but these are obviously not sufficiently
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 enforced, as indicated in reports on
2011. UNDP, Anti-Corruption in Eastern Europe and CIS, Bosnia corruption in the public sector service
and Herzegovina,
http://europeandcis.undp.org/anticorruption/show/5DFCF132-
F203-1EE9-B8338074D57C2E1C. 22 July 2011.
624 TI BiH, The Administration Agency for the Prevention of Corruption,
appointed by political lines. 626 European Commission, Commission Staff Working Document
http://ti-bih.org/en/4279/uprava-agencije-za-prevenciju- Bosnia And Herzegovina 2010 “Progress Report Accompanying
korupcije-imenovana-po-politickoj-liniji-2/. the Communication from the Commission to the European
18 July 2011. Parliament and the Council Enlargement Strategy and Main
625 In this particular context, the anti-discrimination rules and Challenges 2010-2011”, p. 14.
regulation would particularly be applicable to low-income citizens http://www.delbih.ec.europa.eu/files/docs/2010progress2.pdf. 18
as the category most vulnerable to corruption and discrimination. July 2011.
Discrimination in this sense primarily implies a privileged status of 627 International Council on Human Rights Policy and
those who pay bribes, a personal favour or counter-favour, or Transparency International, p. 74.
simply belong to a favoured client-network, as opposed to other http://www.ichrp.org/files/reports/40/131_web.pdf. 16 July
similarly placed individuals who have not partaken in bribery or 2011.
favouritism.
Page 189
delivery.628 Public service sector employees as does the absence of a common system of
involved in petty corruption activities are very controlling expenses. Each fund and each
rarely reported or sanctioned by the health centre or institution has its own
institution in which they are employed. One records and there is no exchange of
potential reason for this is the prevalence of information between them. It is, therefore,
the so called exclusive social network culture, impossible to establish where leakages and
where employees and their superiors protect abuse occur.630
each other in instances where one of them
commits a corrupt activity, such as bribery or Under such circumstances, one
favouritism-based forms of petty corruption, commonsensical approach to dealing with
e.g. Illicit Interceding from the Criminal Code this issue on the part of human rights and
of BiH and the like, which are the most anti-corruption agencies would be to create
frequent forms of corruption in everyday life external monitoring bodies (e.g. external
in BiH. 629 audits), independent of any influence of the
monitored institutions, which would receive
Such is the case in the public health sector, complaints directly from citizens.
and this is due to the poor quality of records
and the absence of an internal audit function
within health insurance funds and healthcare CONCLUSION
institutions themselves. This make it Any comparative analysis of all available
impossible for auditors to establish in which reports on corruption in BiH, including the
manner and to what purpose the money, that latest, 2010 European Commission Progress
is being allocated to the 13 health insurance Report and the annual Transparency
funds, 13 Ministries of Health and 264 health International Corruption Perception Indexes
institutions with 36,500 medical and non- for the past few years, still undoubtedly show
medical staff, is actually spent. The system‘s that BiH has made limited progress in
fragmentation hinders the collection of data, tackling corruption, especially everyday or
petty corruption, since the time the anti-
628 The International Crisis Group made a report on the rule of law corruption mechanisms were made available.
in public administration in BiH in 1999, with specific These findings certainly apply to corruption in
recommendations to strengthen the functioning of public services.
By and large these build on already-existing civil service procedures
public sector service delivery. 631
on the books and include: enforcing existing civil service laws, Nevertheless, in terms of instruments
enforcing existing hiring procedures, increasing the degree of available for the protection of human rights as
governmental “user-friendliness,” increasing public access to a mechanism to fight petty corruption, there
records and documents, de-linking the public administration
financing from political party control. International Crisis Group, are both international and domestic human
“Rule of Law in Public Administration, Confusion and rights and anti-corruption instruments
Discrimination in a Post-Communist Bureaucracy”, 1999. available in Bosnia and Herzegovina, as
http://www.crisisgroup.org/en/regions/europe/balkans/bosnia-
herzegovina/084-rule-of-law-in-public-administration-confusion- indicated above.
and-discrimination-in-a-post-communist-bureaucracy.aspx. 16 July
2011.
629 In 2010, the Clinical Centre of the University of Sarajevo
In terms of a systematic institutional, non-
reported they received 1673 praises from citizens, 52 complaints individual approach to addressing petty
and one case of bribery reported, but no cases of corruption. corruption as discrimination, one may
Clinical Centre, University of Sarajevo, “Memorandum o saradnji comfortably conclude that the above
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 630 CMI, Corruption in Bosnia and Herzegovina, 2005,
certainly very different from figures and perceptions of corruption http://www.cmi.no/publications/file/?2003=corruption-in-
in the public health sector contained in any and/or all reputable bosnia-and-herzegovina-2005. 17 July 2011.
local and international reports, according to which corruption is 631 European Commission, Commission Staff Working Document
not only present in the public health sector of BiH to a much Bosnia And Herzegovina 2010 “Progress Report Accompanying
greater degree than reported by the Clinical Centre of the Sarajevo the Communication from the Commission to the European
University, but in fact it is one of the greatest obstacles to building Parliament and the Council Enlargement Strategy and Main
good-quality and non-discriminatory public health services. Finally, Challenges 2010-2011”, pp. 14-15.
such reports reveal the strong presence of exclusive social http://www.delbih.ec.europa.eu/files/docs/2010progress2.pdf.
networks/close client networks within the institution; UNDP 18 July 2011. “Transparency International Corruption Perception
Bosnia and Herzegovina, Human Development Report 2009; “The Index” (CPI), 2010.
Ties that Bind – Social capital in BH”, pp. 6, 12-13. http://www.transparency.org/policy_research/surveys_indices/cp
http://www.undp.ba/index.aspx?PID=36&RID=90 . 18 July 2011. i. 15 July 2011.
Page 190
mentioned ICG recommendations, the corruption tool in the hands of citizens, with
enforcement of the existing civil service laws, the aim of increased transparency of the work
hiring procedures, an increasing the degree of of public organs.633 Finally, the field of
governmental ―user-friendliness,‖ increasing intervention is certainly far wider than
public access to records and documents, de- recommendations in this paper, depending on
linking public administration financing from capacities and the creativity of all those
political party control, still apply, given what genuinely interested in addressing petty
all reports on corruption in BiH show, and the corruption as a form of discrimination and
fact that the ICG made no observation of any potential violation of human rights in
significant progress in rule of law in public everyday life in Bosnia and Herzegovina.
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.
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 anti-
632 Ibid.; 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 633The Institution of the Human Rights Ombudsman of Bosnia
International, p.64. and Herzegovina, “Annual Report on the Results of the Activities
http://www.ichrp.org/files/reports/40/131_web.pdf, 16 July by Human Rights Ombudsman of B&H in 2009”,
2011. http://www.ombudsmen.gov.ba/materijali/publikacije/GI2009/A
nnual_Report2009.pdf, p. 32.
Page 191
BIBLIOGRAPHY
 Black‟s Law Dictionary, Eighth Edition, Thomson West, 2004, p. 371.
 Centri civilnih inicijativa, http://www.cci.ba/pages/1/24/5.html.
 Civil Society Against Corruption, http://www.againstcorruption.eu/diagnosis-tool.
 CMI - Chr. Michelsen Institute, Addressing Corruption in the Health Sector, U4 Issue,
January 2011 No 1, http://www.cmi.no/publications/file/3934-addressing-
corruption-in-the-health-sector.pdf.
 Devine, Vera and Harald Mathisen. Corruption in Bosnia and Herzegovina – 2005,
Options for Swedish Development Cooperation 2006-2010, CMI - Chr. Michelsen
Institute, http://www.cmi.no/publications/file/?2003=corruption-in-bosnia-and-
herzegovina-2005.
 Dnevnik.ba, 11 January 2011, available at
http://www.dnevnik.ba/novosti/bih/skandal-s-krivotvorenim-dokumentom-do-
mjesta-ravnatelja-agencije-za-prevenciju-korupcije.
 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, available at:
http://www.delbih.ec.europa.eu/files/docs/2010progress2.pdf.
 Freeman, Joe, Institutional Discrimination,
http://www.uic.edu/orgs/cwluherstory/jofreeman/womensociety/institidiscrim.htm
.
 Kahvedņić, N. and S. Lońić. 2010, Corruption in Bosnia and Herzegovina-Causes,
Consequences and Cures, Master thesis in Economics Department of Management
and Engineering The University of Linkoping, available at:
http://liu.divaportal.org/smash/get/diva2:309905/FULLTEXT01.
 International Council on Human Rights Policy and Transparency International,
2009, Corruption and Human Rights: Making the Connection, available at:
http://www.ichrp.org/files/reports/40/131_web.pdf.
 International Council on Human Rights Policy and Transparency International,
2010, Integrating Human Rights in the Anti-Corruption Agenda: Challenges,
Possibilities and Opportunities, available at:
http://www.ichrp.org/files/reports/58/131b_report.pdf.
 Klinički centar Univerziteta Sarajevo,
http://www.kcus.ba/index.php?option=com_content&task=view&id=669&Itemid=1&
lang=en.
 Komisija za preprečavanje korupcije, Supervizor-spleatna aplikacija za spremljanje
izdatkov javnih institucij, http://supervizor.kpk-rs.si/.
 Nicholls QC, C., T. Daniel, M. Polaine, and J. Hatchard. 2006, Corruption and Misuse
of Public Office, Oxford: Oxford University Press.
 Office of the United Nations High Commissioner for Human Rights, International
Covenant on Civil and political Rights, available at
 http://www2.ohchr.org/english/law/ccpr.htm#art26.
 Online Etymology Dictionary, http://www.etymonline.com/index.php?term=corrupt.
 Pravni Leksikon, Leksikografski zavod Miroslav Krleņa, pp. 623-624.
 SELDI –The Southeast European Legal Development Initiative, Corruption Monitoring
System, http://www.seldi.net/indexes.htm.
 South East Europe TV Exchanges-SEETV, Governance and Corruption in the
Balkans, video: 16 June 2009,
http://seetv.blastmedia.eu/story/index/story_id/15515/media_id/33411.
 Sullivan, Drew. ―Where Western Perceptions Clash with Eastern European Realities‖
Nieman Reports, Spring 2011, Online Exclusives, available at
Page 192
http://www.nieman.harvard.edu/reports/article/102593/Where-Western-
Perceptions-Clash-With-Eastern-European-Realities.aspx.
 The European Union‘s CARDS Programme for Bosnia and Herzegovina – Functional
Review of the Health Sector in BiH, 2004, available at
http://www.delbih.ec.europa.eu/files/docs/publications/en/FunctRew/health/eng
Benchmarktoolbox.pdf.
 The Prosecutor‘s Office of BiH: The Criminal Code of BiH, available at
http://www.tuzilastvobih.gov.ba/?opcija=sadrzaj&kat=4&id=41&jezik=e.
 Transparency International, Corruption Perceptions Index 2009 and 2010, South
Eastern Europe, Eastern Europe and Central Asia, available at
http://www.transparency.org/policy_research/surveys_indices/cpi/2009.
 Transparency International Bosnia and Herzegovina (TI BiH), The administration
Agency for the Prevention of Corruption, Appointed by Political Lines, 15 July 2011,
available at http://ti-bih.org/en/4279/uprava-agencije-za-prevenciju-korupcije-
imenovana-po-politickoj-liniji-2/.
 United Nations Office on Drugs and Crime (UNODC), 2011, Corruption in the Western
Balkans: Bribery as Experienced by the Population.
http://www.unodc.org/documents/data-and-
analysis/statistics/corruption/Western_balkans_corruption_report_2011_web.pdf.
 U4, Anti-Corruption Resource Centre: Revenue Administration and Corruption;
http://www.u4.no/themes/pfm/Revenueissue/revenue1.cfm.
 United Nations Development Programme (UNDP) Bosnia and Herzegovina, National
Human Development Report - The Ties That Bind: Social Capital in Bosnia and
Herzegovina, 2009, available at http://www.undp.ba/index.aspx?PID=36&RID=90.
 UNDP, Anti-Corruption in Eastern Europe and CIS, Bosnia and Herzegovina, available
at http://europeandcis.undp.org/anticorruption/show/5DFCF132-F203-1EE9-
B8338074D57C2E1C.
 Visoko sudsko i tuņilačko vijeće/High Judicial and Prosecutorial Council,
http://www.hjpc.ba/.
 World Bank, Bosnia and Herzegovina - Diagnostic Surveys of Corruption, 2000,
http://www1.worldbank.org/publicsector/anticorrupt/Bosnianticorruption.pdf.

Page 193
Page 194
Page 195
View publication stats

Journal Y2 v2 Published

Uploaded by

Copyright:

Available Formats

Journal Y2 v2 Published

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Journal Y2 v2 Published

Uploaded by

Copyright:

Available Formats

See discussions, stats, and author profiles for this publication at: https://www.researchgate.

International Journal of Rule of Law, Transitional Justice and Human Rights,

Article · February 2012

Alice Margaria Ardian Adzanela

SEE PROFILE SEE PROFILE

Aydin Atilgan Claire Schaepelynck

The Anatomy of the Dual State in Turkey View project

The user has requested enhancement of the downloaded file.

INTERNATIONAL SUMMER SCHOOL SARAJEVO

INTERNATIONAL JOURNAL OF RULE OF LAW,

INTERNATIONAL JOURNAL OF RULE OF LAW, TRANSITIONAL JUSTICE AND

Authors: Print run: 400

Adela Kabrtova Sarajevo, December 2011

The present publication is distributed free of charge.

As a Christian Democratic foundation the Konrad-Adenauer-Stiftung is committed

A WORD FROM THE REDACTOR

Additionally, ISSS students are required to personally contribute to discussions in

Their essays present an important contribution to transitional justice and human

The article answers the question what reconciliation means as

* Dennis Michels, 25, is currently finishing his Master‘s degree in International

characterised by the notion of ―global

It is important to take into consideration conflict and the resolution of conflict,

strategy of transition in this case. that prosecute war criminals or violators

background. Furthermore, it can be used

In today‘s world, it is evident that the international legal order‘s

accessed 29.08.2011, p. 37. 56 Peters, Anne. “Global Constitutionalism in a Nutshell”, in

with transnational bodies to be able international legal scholars.61 There are

of global constitutionalism and rising tendency.68 Furthermore, it is

Conceptual History of Transitional Justice”, Human Rights

democracy‖.72 Nonetheless, a definition of ‗transition to democracy‘ had important

72 Falk, Richard. “Trends Toward Transnational Justice”, p. 3. 77Ibid., p. 357.

European Journal of International Law 31 (2009), p.491.

such a situation is already satisfactory, as extradition regarding these crimes erga

certain international crimes‖98 including immunity of Milosevic was argued, the

desire of the international community for implementation of 2001), para. 28-30.

Statutes.106 Today, considering the and as yet an unclear situation.112 It

106 Hirsh-Allen, Jake. “Bashir‟s Immunity” p. 9.

the capture of criminal law by the of international humanitarian law‖. The

116 Ibid., p. 62.

constitutionalism. The questions held in

Transitional justice experiences

126 ibid, p. 84.

The Constitutional Foundations of World Peace, (State University

 Boraine, Alex. ―Transitional Justice as an Emerging Field‖, presentation paper of

hdr.undp.org/en/reports/global/hdr2002/papers/Falk_2002.pdf last visit

This paper explores the consociational principle of organising a

This paper will compare models where consociationalism has been

making. All (or the most important)

systems, federalism, various forms of not found.. However, elite behaviour in

cooperation could be a good solution. A signing of the Dayton Peace Agreement,

solution for institutional design in post-

 Trbovich, A. S. (2008). A legal geography of Yugoslaviaʼs disintegration (p.

THE STRUCTURAL LIMITATIONS

The European Union undertakes several transitional justice

INTRODUCTION illustrates, the two concepts are actually

Article 177.2 of the Maastricht Treaty PEACE-KEEPING MISSIONS

146 Regulation (EC) No 1889/2006 of the European

mechanisms on the ground. The same a fundamental element in the planning of