(6/06/06) Looking the Past in the Face (Transitions on Line)

• 2006-06-06
• Europa in de wereld

by Drazen Petrovic

5 June 2006

A plea for a wider debate on the wartime records of Yugoslavia’s former republics.

GENEVA, Switzerland | If peace means more than the absence of military conflict, then Bosnia has yet to completely achieve it.



The 1995 Dayton peace accord was a success insofar as it stopped the war and put an end to the atrocities that had brought Bosnia to the attention of the world media. But the agreement’s more ambitious post-war provisions have been less successful. Bosnia’s constitutional framework is still unclear, with little hope of significant improvement in the near future. Too many levels of government exist and are frequently deadlocked. Social values have been distorted by war and criminals disguised as war heroes. And the ambiguous attitude of politicians and public opinion in Croatia and Serbia-Montenegro (also Dayton accord signatories) as to their involvement in the war further hampers progress toward political stability.



The Dayton agreement, with good reason, focused on the future rather than on righting past wrongs. Under the circumstances, this was the only reasonable approach – but it has also disappointed many expectations. One important aspect of Bosnia’s post-conflict reconstruction, only partially addressed in Dayton, is the issue of war reparations – restitution, compensation, and satisfaction.



RESTITUTION



Reparations were largely left out of the peace deal with one exception: refugees and displaced persons were to return, reversing the results of “ethnic cleansing.” Provisions were made for the return of property, including the establishment of the Commission for Real Property Claims of Displaced Persons and Refugees (CRPC). Although it did not restore properties to their legal owners, the CRPC prevented the creation of ethnically “clean” areas by administrative means.



The CRPC issued over 300,000 decisions on disputed property but was not in charge of implementing them – that was left to the claimants. The CRPC played a significant role in the return of socially-owned apartments, a fact insufficiently noted.



Steps have also been taken to restore property to owners who left the former Yugoslavia and now reside abroad. This is of particular importance to companies deprived of their property through highly dubious legal procedures, but also concerns individuals, like those seeking the return of savings held in Slovenia’s Ljubljanska banka. The European Court of Human Rights has declared several cases submitted by Croatian citizens admissable.



Many cases remain, and as bilateral relations between countries in the region improve and the rule of law grows more robust, many more will no doubt go to court.

COMPENSATION



The question of compensation – payment of damages – has a domestic and a regional dimension. In Bosnia, the CRPC did not award compensation in lieu of return of property (although it had the power to do so) because the international community insisted that reversing “ethnic cleansing” was a primary goal of the peace implementation. That goal would have remained elusive if large numbers of displaced people had received pay-outs instead of returning to their homes.



In a report issued after the end of its mandate in 2003, however, the CRPC noted the lack of compensation “undermined the interests of those victims who genuinely did not wish to return or whose property was not returned to them or was destroyed.”



Since compensation for losses was not available, international efforts focused on the reconstruction of homes in order to encourage return, transforming the rights of individuals into favors provided by the international community.



At the international level, a genocide lawsuit, brought by Bosnia against Serbia-Montenegro and currently before the International Court of Justice in the Hague, has brought the issue of monetary compensation to the fore. Bosnia’s internal division makes this request for compensation highly controversial. Unofficial figures put the amount sought anywhere between $60 billion to $350 billion, figures not based on any serious attempt by Bosnian authorities to assess the damage of the war.



SATISFACTION



The International Law Commission lists several approaches under the general heading of satisfaction: the creation of a trust fund to manage compensation payments; disciplinary or penal action against the individuals whose conduct caused the wrongful act; a declaration of the wrongfulness of the act by a competent court or tribunal; and many similar measures,



It is in this field that Bosnia has experienced the greatest disappointment.



Given the conflicts in former Yugoslavia and the level of hatred involved, satisfaction is a far more important measure of reparation than restitution and compensation. Bosnia’s wounds are still fresh; the material damage pales in comparison to the human cost of the war. Separating the facts from the myths is generally limited to the newspapers, while the public dwells on the past. The counting of bones exhumed from mass graves receives more attention than efforts at state-building. Coverage is generally driven by anniversaries, for example, last year’s tenth anniversary of the Srebrenica massacre.



Many of these stories are divisive rather than enlightening. They differ depending on who’s telling them – witness the events at Srebrenica.



Some people in Bosnia’s Serb half, the Republika Srpska, still refuse to accept the massacre took place or to acknowledge its full. Some organized a parallel event to the tenth anniversary commemoration, honoring their own dead. Was this meant as a reminder that they, too, suffered and that the Srebrenica massacre was not the only atrocity – or was it meant to deny the systematic character of the Srebrenica massacre? The victims of both events were thereby reduced to political pawns.



Bosnia and its neighbors, Serbia-Montenegro and Croatia, have not yet begun to fully face their past. Why is this the case?



The Dayton agreement’s primary objective was to end the war and promote enduring peace and stability. Facing the truth of the war was largely seen as a task for the International Criminal Tribunal for the former Yugoslavia (ICTY). Bosnians were expected to build their future rather than dwelling on the past. But this two-pronged approach has not delivered the intended results.

DEALING WITH THE PAST



The idea was that economic growth would reduce division and nobody would bother looking into the past – the examples of France and Germany were frequently invoked. But the French and the Germans were never forced to live together, side by side, in one country. They do not have to see each other every day and recognize war criminals without being able to do anything about it.



In a Sarajevo street, a family member pointed out a man to me, “This is the man who gave me a bloody beating during the war – for no reason.” In August last year, I saw the man who looted our apartment at the beginning of the war and stole the family jewels. Do they feel guilty? I doubt it. And how do I know these two will not start again? Are we supposed to rebuild the same society and, if so, on what basis? In the larger picture they are insignificant. However, from my personal perspective, they are extremely important. Too many Bosnians know the names and faces of those who killed their family members, stole their property, or took their dignity. But the names of many wrongdoers are not recorded anywhere except in the minds and hearts of their victims.



“Everyone committed crimes!”, I’m told.



But I didn’t. And I want to know the names of those who did.



The ICTY can respond only partially to this request, as it was not created to deal with all those responsible for the crimes committed in the former Yugoslavia. At this stage, it has become clear it will not even be able to put on trial all of those already indicted. Some of the accused are still at large and may never be brought to justice. Some trials have now reverted to the national level.



The ICTY’s role in providing satisfaction to the victims is in principle very important, but its practical impact still needs to be assessed. What is already clear, however, is that the long trials, the long periods between arrests and trials, and the relative comfort of the detention facilities – often much better than the housing conditions of the surviving victims – all raise questions about the tribunal’s effectiveness.

I’m particularly perplexed by the provisional release of accused prisoners: individuals charged with the most serious crimes imaginable and for which an extraordinary international tribunal has been created are treated as if their crimes were no more serious than stealing an apple from the market. They may not pose a threat to a victim, witness, or other person, as specified under Rule 65 of the ICTY, but their release surely provides no satisfaction to their victims.



In the Balkans, the building of confidence in the future has to start with an examination of the past – and this is not limited to the recent past. The public is still confused over the events of World War II. Both Croatian and Serbian authorities have attempted to rewrite history with an anti-Communist slant. It raises troubling questions when a cabinet minister openly participates in an event celebrating a movement allied to the Third Reich and whose followers were accused of major crimes in the recent past.



That is why formal apologies by state officials are extremely important to the reconciliation process. Some have already been offered. In November 2003, Svetozar Marovic, president of Serbia and Montenegro, offered an apology during a visit to the Bosnian capital “for any evil or disaster that anyone from Serbia and Montenegro caused to anyone in Bosnia and Herzegovina.”



President Tadic of Serbia offered apologies on several occasions. In December 2004, he apologized in Sarajevo to “all victims of crimes committed on behalf of the Serbian nation.” In July 2005 he attended the commemoration of the Srebrenica massacre, justifying his presence with his wish to condemn crimes committed on behalf of the Serbian nation. The government of the Republika Srpska offered, on 28 October 2004, an apology to the families of people killed in Srebrenica. Croatian president Stjepan Mesic apologized in April 2003 to all innocent victims of those who misused the idea of the Croatian state. This was done in Jasenovac, a World War II concentration camp.



Unfortunately, these gestures were all subject to controversy in the countries on whose behalf they were made, as well as in the countries addressed, which diminished their reconciliation value. It appears public opinion is not yet ready for such apologies.



That is why I propose a shift in focus from ignoring the past to facing it in a systematic manner.



There is a risk that in facing the truth old wounds will be reopened, but better now than in 50 years’ time. Changing public opinion in Bosnia and neighboring countries will be a long process requiring considerable effort, but would appear to be the only credible way towards reconciliation.



I implore satisfaction for the victims through acknowledgement of facts. In addition to legal processes that serve to correct wrongful perceptions, other measures are necessary, for example, war crimes and reconciliation commissions, documentation centers and other civic associations. But one measure is particularly important: involving more historians in the process.



As a beginning, all authorities should provide unrestricted access to their archives. Those who believe in reconciliation should encourage and support the production and translation of books, research projects, and conferences – means by which professionals, both domestic and foreign, can establish the facts, confront their views and, consequently, educate the public.



Sweeping the past under the carpet has not achieved the desired result; confronting citizens with their past may be more successful. Only then can “truth” really lead to “reconciliation.”

Drazen Petrovic is a legal officer with the International Labor Organization and lectures at the University Center for International Humanitarian Law in Geneva. The opinions expressed in this article are those of the author alone.