The absence of the responsibility clause for the neighbouring countries in the DPA, and consequent lack of obligations to redress the harms caused by them, has put the entire burden of dealing with the past on the already weak institutions of BiH. True, the state of BiH had at its disposal the international legal mechanism, which it could approach to secure reparations from the neighbouring countries, namely the International Court of Justice (ICJ). However, the DPA’s recognition of the neighbouring countries as important enough to sign the DPA enabled those countries to obstruct and interfere with BiH’s justice claims before international mechanisms and in such a way to deal with some aspects of the past. So even though there was an independent arbiter (the ICJ) to determine the level of  responsibility of the neighbouring countries for the war and their consequent obligation to repair BiH, BiH was prevented from independently formulating the claims before this arbiter, because the neighbouring countries were allowed to meddle.

The internal and regional political struggles surrounding submissions of applications to the ICJ only deepened the dysfunctionality of the state institutions. The Bosnian Serb and Bosnian Croat ethno-nationalist elites in power, who keep constructing the identity of their groups as having closer connection to their “fatherlands” of Croatia and Serbia than to BiH, were not willing to file the claims against those “fatherlands”. This was of course done with the blessings of and cheerings from Serbia and Croatia.

The principle of decision-making through consensus played a role in the prevention of submitting the application to the ICJ. The Presidency of BiH holds the constitutional mandate on international relations, thus the three members of the Presidency of BiH needed to agree about the submission. Given that the Serb and Croat members of the Presidency were more inclined to listen and protect their respective “fatherlands” than to assist the state of BiH in its attempt to secure reparations through the international mechanism, it was easy for them to obstruct the submission.  This made it hard for the state to file any claims against the neighbouring Serbia or Croatia for aggression. Only the claim in relation to Serbia’s responsibility for genocide in Srebrenica saw some judicial debate. In the end even the submission for genocied ended up being reduced to submission made by the Bosniak and Bosnian Croat ethno-nationalist elites instead of the state.

In 2007, the ICJ confirmed that genocide in Srebrenica was commited, but determined that there was not enough evidence to find Serbia directly responsible or complicit in that genocide. However, the ICJ also found that Serbia acted in violation of the Genocide Convention by failing to prevent the genocide and by failing to punish those responsible. The attempts to file a revision, once the previously unavailable evidence became available, failed. Institutional decisions related to filing a revision to the ICJ were actively opposed by the Serb ethno-nationalist elite as well as politicians from Serbia. This resulted in the revision complaint being driven only by the Bosniak ethno-nationalist elite. As a result, the request for revision was rejected as inadmissible because the ICJ concluded that the person who claimed to be the agent authorised to represent BiH had not in fact been appointed by the state. 

The issue around appointment of the agent stemmed from the ethno-nationalist elites’ power struggles, in which all self-proclaimed representatives of the ethnic groups insisted that the application for revision was a matter for a specific ethnic group (i.e. Bosniaks) and not the state. Ethno-nationalist elites’ allegiances towards their “fatherlands” contributed to the controversy about the agent, as did the continuous attempts to obstruct the functioning of state institutions. 

5.1.1. Manipulating war crime trials

The neighbouring countries have also been actively working to exonerate themselves from dealing with the past by refusing to undertake responsibility for prosecuting war crimes in their own states or to commit to other transitional justice processes, such as vetting or lustration. From the beginning of war crime prosecutions in the region, both Croatia and Serbia took the position that the only acceptable prosecutions were those the elites of those countries perceived as beneficial for their cause—this cause being nation building. Thus, their primary acceptance of responsibility for war crime prosecutions contained what Ivo Josipović, a professor of criminal procedure and a former president of Croatia, called “double standards for responsibility—‘ours’ and ‘theirs’—when even the gravest crimes committed against enemies were not punished, whereas the criminal prosecution of representatives of hostile military formations was in many cases conducted without legal grounds, in a discriminatory manner and without any respect for the right to fair trial.” 

When it came to prosecutions before the International Criminal Tribunal for the Former Yugoslavia (ICTY), both Serbia and Croatia have actively obstructed such prosecutions, especially of those individuals whose trials could implicate direct involvement of those states’ structures in the war crimes. Those obstructions played out through e.g. refusal to extradite or exchange evidence, which created delays and made prosecutions even more difficult. Both Serbia and Croatia used their obligation to cooperate with the ICTY to provide documentation against their “enemies” and not in support of the process of dealing with the past. There have been two exceptions, however. The first was Serbia’s handing over of documents to ICTY regarding Srebrenica, for the ICTY case against Slobodan Milošević, but with the request that they remain concealed. The most sensitive parts could thus not be disclosed to the ICJ or to the public, which impeded BiH’s case against Serbia at ICJ. The other exception was Croatia’s handing over documentation as part of meeting conditions for EU accession.

Serbia’s and Croatia’s use of the war crimes prosecutions to position themselves as victims and ignore their active participation in war crimes in BiH has continued throughout the ICTY Completion strategy and subsequent national prosecutions. When not prosecuting the enemy, both Serbia and Croatia have done all to ensure that the prosecutions of “their” war criminals fail. The random prosecutions that occur are more of a symbolic undertaking to please the international and EU bureaucrats who from time to time (and within their political interests) demand an end to impunity for war crimes, rather than an actual commitment to publicly engage in the process of dealing with the past. The prosecutions of Croatian citizens in Croatia and Serbian citizens in Serbia for war crimes they committed in BiH, when they on rare occasions take place, are usually hidden from the public, and are only promoted to visibility if the accused are found not guilty or the case was dismissed due to procedural reasons. 

Bottom line, all of these obstructions and delays are part of a strategy to relativise and delegitimise the process of dealing with the past, in BiH and regionally, as those would implicate Serbia and Croatia in both participation in the war and commission of war crimes in BiH. The poor track record of Serbia’s and Croatia’s prosecutions is an effective method in the strategy to negate their role in the war in BiH, with a serious impact on regional accountability.

The second consequence of the non-inclusion of the responsibility of Croatia and Serbia for their involvement in the war in BiH is visible in their continuation of war politics of interference. Only now the neighbouring countries do not use militarised violence to interfere with the internal political, economic, and cultural affairs and power dynamics in BiH, apart from the recent race in the armament.

The neighbouring countries have used the fact that they are signatories of the DPA to present themselves as guardians of the DPA and of the ethnic group they claim as theirs.

The current interferences are both direct and indirect. The neighbouring countries have used the fact that they are signatories of the DPA to present themselves as guardians of the DPA and of the ethnic group they claim as theirs. This continued interference into BiH affairs is in a way also a continuation of the aggression and expansionist politics towards BiH, as both Croatia and Serbia maintain their nationalist projects of Greater Serbia and Croatia, projects that ultimately aim to claim parts of the BiH territory. Continuing the practice of nationalist territorial claims revitalised during the war, Serbia presents itself as if safeguarding the interests of the Bosnian Serbs and Republika Srpska. In the same way, Croatia presents itself as guarding the interests of the Bosnian Croats and the cantons for which the Croat ethno-nationalist elite claims to be entitled to control. Through such presentations they both interfere in political dynamics in BiH and make sure to establish their control over certain parts of BiH. At this point the territorial claims are more subtle: financing establishment of institutions such as hospitals, cultural centres, and universities in certain part of the territories, giving citizenships and seats in parliaments in their countries to respective ethno-nationalist elites from BiH, but also through using their special relationships with the BiH ethno-nationalist elites to exploit the rivers for electricity.

Any internal social, political, or economic dynamic, tension, or power struggle in BiH immediately sees involvement of the leaders of Serbia and Croatia, who promote their visions for how BiH is to deal with its problems.

Any internal social, political, or economic dynamic, tension, or power struggle in BiH immediately sees involvement of the leaders of Serbia and Croatia, who promote their visions for how BiH is to deal with its problems. Their involvement is usually done in collaboration with the ethno-nationalist elites from BiH. Moreover, they have been imposing themselves as an authority to interpret who is the “legitimate” representative of a certain ethnic group, ignoring the fact that this is not an existing political concept in the Constitution, and dismissing (as if they are entitled to do so!) the results of elections in BiH. The concept of “legitimacy” has been put in circulation by ethno-nationalist elites in BiH when they started losing power positions through elections. It has been derived from the claim that only one ethno-nationalist political party can represent the respective ethnic group, and only a member of the designated political party is seen as a “rightful” representative of that group. 

Furthermore, the assumed role as guardians of both the ethnic groups and the DPA has allowed the political elite of the neighbouring countries to use BiH as a tool for managing opposition within their own countries. By stirring conflicts in BiH they divert attention from themselves. All these interventions actually contribute to deepening the conflict(s), both within BiH and the region, rather than creating conditions for peacebuilding.

The absence of a responsibility clause in the DPA has encouraged both Serbia and Croatia to harbor war criminals and to provide them with financial assistance, including for their defence in war crime trials and support for their families during their imprisonment. There have also been situations when both Croatia and Serbia hailed as heroes top ranking military and political leaders sentenced for war crimes, especially upon their return after serving their sentences. This has been done within the framework of serving greater aims of the nationalist political elite in order to whitewash the role of Serbia and Croatia in the war in BiH.

The dominant—both international and regional—interpretation of the war in BiH as an internal, ethnic war (which the DPA entrenched), created a situation of “representationalism”. The ethno-nationalist elites have manipulatively claimed that the conviction of a person identifying with an ethnic group means that the entire group is being blamed for the crime. Given the imagined connection of ethnic groups with their “fatherlands” this claim then extends the blame to Croatia and Serbia. Following that line of thought, the logic is deployed that by defending the honorable role of the accused or convicted person, the honor of the ethnic group and its respective “fatherland” is also defended. The logic for that is simple: if there are no war criminals among the ethnic groups they claim as theirs, then there can be no stains on Serbia’s/Croatia’s involvement in the war. The same logic is applied to the citizens and members of the structures of the neighboring countries accused and convicted for war crimes in BiH.

Almost 25 years after the relieving of neighbouring countries from responsibility to redress the harms caused by their participation in the war, the region has been driven into an absurd situation. The European Union (EU)’s project of molding the countries of the Balkans into acceptable, future EU members has led to an erroneous and decontextualised attempt of “regional reconciliation”. This has been made one of the key aspects of the EU’s accession politics towards countries of the former Socialist Federative Republic of Yugoslavia that are still waiting for EU membership (thus excluding Slovenia and Croatia).

In 2018, the European Commission (EC) adopted a strategy for the Western Balkans. Through six initiatives referred to as flagships, the EC framed its approach to the transformation process in the Western Balkans, targeting areas such as rule of law and governance. One of these flagships is an initiative to “support reconciliation and good neighbourly relations”.  While this approach provides some formal support to transitional justice and missing persons, the reconciliation is more seen as an initiative to establish “good neighbourly relations” through support to increased “cooperation in education, culture, youth, and sport”. In the given context, the intended reconciliation is a farce. It focuses more on supporting different NGO initiatives than it aims at dealing with the past on a structural level, or addressing the responsibilities of the states arising from the war. 

As a digression, it is worth briefly reflecting on how the concept of reconciliation first came to BiH. It was introduced soon after the signing of the DPA through various internationally-led transitional justice initiatives, most notably through an initiative of the United States Institute for Peace (USIP) in 1997. Within this initiative, the Draft Law on Truth and Reconciliation Commission was prepared but was met with heavy criticism from the victim associations and never got anywhere. This, along with other subsequent initiatives of USIP, failed due to being perceived as an “elitist” or “private” initiative, lacking in contextual understanding.

Victim associations rejected the concept because reconciliation was presented to them as a project, rather than a process.

The concept of reconciliation was widely debated over the next few years within the many transitional justice initiatives driven both by international organisations and domestic NGOs. Victim associations rejected the concept because reconciliation was presented to them as a project, rather than a process. This projectised approach was not acceptable, as it was understood as a “kiss and make up” scenario. The victims and other peacebuilders and human rights defenders felt that it would mean that the perpetrators would be treated as equals to the victims (as if both were equally responsible for war and war crimes) and would have an equal say in the process. The perpetrators in this context were understood both as individuals and polities (e.g. neighbouring states but also internal entities created by the war). Victims continuously repeated that they were not quarelling with anyone so that there was no reason for them to be pushed to make up with anyone.

Opposite to what was being forced upon them, the victims associations saw reconciliation as a process, and not an outcome. At some point, the concept of dealing with the past emerged as the most acceptable approach amongst the civil society groups focused on addressing the consequences of the war. Hence, reconciliation was severely downplayed in subsequent transitional justice initiatives—until the EU accession policies revamped it and brought in new/old local, regional, and international players willing to accept whatever EU grant money sets forth. Unlike the victims whose interest in justice was at the core of their engagements, the new/old players, even though not (un)aware of the previous discussions, are primarily driven by the access to donations, profit, and career-making incentives.

In addition to the very problematic approach to reconciliation, the EU accession policies intersect with the DPA’s non-inclusion of Croatia’s and Serbia’s responsibilities for the war and the regional geopolitics of dealing with the past, particularly in BiH. Croatia is visibly missing from this new set of EU accession policies. Its membership in the EU removed Croatia from the cluster of the countries considered for the EU accession, while the remaining former Yugoslav countries (Serbia, Montenegro, Northern Macedonia, BiH, and Kosovo) were grouped together with Albania into a newly imagined geopolitical cluster, the so-called “Western Balkans”. The “western” in the name symbolises the aspirations to include the wild Balkans into civilised Europe. 

This new geographical determinant has carried with it political, economic, and social consequences for all the countries included in it. As an EU member, Croatia has suddenly been promoted from an object of EU accession conditionalities to a position of the “West” and influence. In its new position, Croatia was totally absolved from dealing with the past in relation to war in BiH. By becoming “the West,” a country receives immunity for committed crimes and is absolved from responsibility for wars, as the “civilised West” is in its own eyes never an aggressor or perpetrator but always the peacemaker. 

The consequences for BiH and its dealing with the past are grave, because it completely undermines comprehensive dealing with the past. However, this is, for sure, not something with which the EC bothered itself. BiH is expected to enter into regional reconciliation programmes with Albania, but not with Croatia! That this makes no sense whatsoever is of no concern for the EC. 

In fact, reconciliation for the EU is not an aim in itself. Instead, what can be read from the European Commission’s Strategy for the Western Balkans is that the EU subjugates reconciliation to the creation of economic opportunities. As cultural theorist Boris Buden said, reflecting on the West’s relationship with the Balkans: 

The Other of the West [Balkans] becomes the West without leaving any traces of its particularity behind. It has simply melted down. The voice of the Balkans directly becomes the voice of the West, that is, its master’s voice. This is why we cannot even call it submission, for submission would imply a sort of relation. There is no relation whatsoever here. Instead, it is a cloning: the future of the Balkans becomes a Western clone.

For the EU, reconciliation is a means to an end: a market economy that is not burdened by the past but liberated by profit.

For the EU, reconciliation is a means to an end: a market economy that is not burdened by the past but liberated by profit. For us in BiH, on the other hand, dealing with the past is not a matter of achievement but rather a result of cumulative efforts to address social, political, and economic consequences of the war. By privileging profit-making over dealing with the consequences of the war, the EU contributes to destabilisation of this region and undermines any ongoing processes of peace.

So, where are we more than 25 years after the “wise men” signed the DPA in terms of dynamics and relationships with our “good” neighbours? Not very far. By not having a peace agreement that assigned responsibilities and subsequent obligations, the space for BiH to deal with its past was impeded, leaving the country torn between internal tensions and aggressive meddling of the neighbouring countries. To make things more complicated, the EU pre-accession conditionalities imposed on BiH continue the politics of relieving Serbia and Croatia of their responsibility for the war in BiH, expecting BiH to magically deal with its past while ignoring the current context.

In this context, Croatia holds an asymmetrical power position in the region. As an EU member state, Croatia has certain decision-making powers and is part of influential platforms in relation to BiH. In the context of dealing with the past, and the fact that it never accepted any responsibility for the war in BiH, Croatia keeps using the European Parliament as a platform to legitimise and voice unrealistic demands of the Bosnian Croat ethno-nationalists. Croatia’s influence within the EU affects the EU accession conditionalities for BiH. Croatia is pushing for conditions relating to amendments to the BiH Constitution and to the Election law, in the direction of creation of a third entity: an ethnically defined territory that would be awarded to Bosnian Croat ethno-nationalists to rule over. This is a dream Croat ethno-nationalists together with Croatian state officials formulated during the war and never really gave up on. Croatia also supports and legitimises the narratives around only one party being a “legitimate” representative of the Bosnian Croats. 

On the other hand, Serbia is also part of the EU accession process. Serbia is playing the game of the cooperative country when it comes to the EU conditionalities. However, this cooperativeness is reduced to making promises, then prologing signing of the agreed documents until the last minute, and then making sure that the signed documents are only pro forma rather than implementable. In relation to dealing with the past, this is best seen with regards to agreements on cooperation for prosecution of war crimes and exchange of the information on missing persons (numerous agreements on cooperation were signed, the last one in 2019, after previous agreements failed in implementation). Furthermore, while flirting with the EU, Serbia is also making sure it stays allied with Russian geopolitical interests in the region, and BiH is always part of that geopolitical narrative in which, again, dealing with the past somehow takes an important role.

In such a dynamic, the last on the list of EU’s interests is dealing with the past. Serbia’s and Croatia’s admittance of responsibility for the war in BiH is of secondary or no importance (no matter the EU’s many formal statements claiming the contrary). To this we need to add that 25 years have already passed since the war and the ICTY has finished its mandate. Thus, the EU, when it includes reconciliation in its conditionalities for Serbia, accepts pro forma actions. It has been clear for a long time now that whatever Serbia has been doing has been a matter of “ticking the box”. There is really nothing happening in relation to actually addressing the past in a way that is healing for BiH, or for the rest of the region. Again, BiH is left alone to deal with the consequences and with dysfunctional institutions, while at same time the pressure to move on and fix itself is threatening to break the country apart.