Photo credit: Heather J. Moore Prodigious Fugitive Savant/Flickr.
According to international law, states are obliged to ensure reparations to victims in cases of gross human rights violations and violations of international humanitarian law. The right to reparations includes restitution, compensation, satisfaction, and guarantees for non-repetition. The purpose of reparations is to address the harms caused by violations and ensure satisfaction for harms suffered through publicly recognising victims as right-holders entitled to redress.
The Dayton Peace Agreement (DPA) was inexplicably weak in this regard, not explicitly recognising that all civilian victims of war are right-holders, entitled to redress. The DPA did, however, contain limited provisions for addressing some aspects of the war, primarily through provisions on the right to return and reclaim property (restitution). It also acknowledged the necessity for prosecuting war crimes and demanded cooperation from the DPA signatories with the International Criminal Tribunal for the former Yugoslavia (satisfaction). In this essay we only focus on the DPA provisions concerning restitution, while satisfaction will be dealt with in essays 7 and 8.
The DPA contained extremely limited provisions for reparations in Annex VII. These have not only been partially implemented, as has been the case with many other DPA provisions, but they also pushed the victims to search for partial solutions. Victims were forced to look for solutions in other DPA annexes not specifically dealing with reparations , i.e. Annex VI, but also through interventions within the legal frameworks of the complex administrative units created by the DPA. In the end, all the affected people looking to redress harms ended up dissatisfied. Typical to the DPA implementation story, the ethno-nationalist elites gained where everyone else lost. Of course, the international community used the space to tirelessly (even today after 25+ years since the DPA) create transitional justice projects, an important part of the forever expanding peace industry.
This essay focuses on the segments of the right to reparations that either were contained in the DPA or came as a result of pressure put forth by some of the victim collectives. In the first part of this essay we analyse the limited provisions for reparations contained in the DPA. In the second part of the essay we look at the DPA’s failure to recognise comprehensive reparations and its impact on the Bosnian and Herzegovinian (BiH) society.
During the war in BiH, 2.2 million people became refugees and internally displaced persons – about half of BiH pre-war population. The one segment of the right to reparations that could not be ignored by the negotiators and was thus given attention in the DPA was restitution. This was dealt with in Annex VII of the DPA, which stated that “the early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina.” The annex is focused on creating an environment for repatriation of the many refugees and displaced persons, mostly through protecting their right to have their property returned, and their right to safe and voluntary return to their pre-war place of residency. The annex contains among other things provisions on: short-term repatriation assistance to returning refugees and displaced persons in need; repelling of any discriminatory laws or administrative practices; and amnesty for returning persons charged with a crime other than a serious violation of international humanitarian law.
The annex also contains provisions for compensation for private property that could not be restored to its owner. To that end, the DPA established a special Commission for Displaced Persons and Refugees with a mandate to receive and decide on claims for restoration of property. The mandate also provided for the Commission to award a “just compensation” in case the Commission failed to secure the restoration of property to its rightful owner. Once formed in 1996, the Commission was renamed the Commission for Real Property Claims of Displaced Persons and Refugees (CRPC), carrying on its work until 2003 when its mandate expired.
The CRPC worked under difficult circumstances: political and other obstructions; changes of regulations; insecurity and frequent incidents and evictions; refusal of entity and municipal level authorities to implement its decisions; and other problems affecting the pace and dynamics of its work. To facilitate the CRPC’s work and help overcome these obstacles, the Office of the High Representative (OHR), in coordination with the UN High Commissioner for Refugees (UNHCR), the Organisation for Security and Cooperation in Europe (OSCE), the UN Mission to BiH and CRPC, came up with the so-called Property Law Implementation Plan (PLIP). The PLIP was “a means of gathering the whole range of property-related activities of the different agencies into a coherent, goal-oriented strategy for securing implementation of the new laws.” In practice this meant that the High Representative used the Bonn Powers to impose the CRPC’s decisions in both entities: the Federation of BiH and Republika Srpska.
In addition, Annex VII provided for establishment of a Refugees and Displaced Persons Property Fund to be placed within the Central Bank of BiH, and be used by the CRPC for compensation of property that could not be restored. However, the Fund was never established, among other things because the international community bypassed the Annex VII provision on compensations, fearing that people would prefer money instead of their homes. As if the choice really was that simple. As social anthropologist and ethnographer Stef Jansen explained, the idea of ‘home’ goes beyond the physical place of residence. For displaced Bosnians and Herzegovinians, the understanding of home “included a desire to end precariousness and to create a basis from where to (re)build a ‘normal life’”. The places where they were supposed to return to, once their property was restored to them, was everything but “normal”. Removing compensation from peoples’ choices did nothing to secure sustainable return, because people ended up selling their houses anyways, as returned property was not the same as reclaimed homes. By putting the focus on property restitution and reconstruction as a main promoter of return, the international community failed to understand the meaning of home and what it means to return home. Sustainable return simply could not be achieved without that broader context of human security.
By putting the focus on property restitution and reconstruction as a main promoter of return, the international community failed to understand the meaning of home and what it means to return home.
Once the destroyed houses were restored to their owners, they had to be reconstructed. Without a systematic approach to reconstruction, many different donors came and awarded donations based on their individual assessments, with no or very little coordination amongst them. The individualised approach meant that those who were resourceful could obtain several donations for reconstruction of their property, while others were left without any support. This lack of a system promoted corruption and furthered the inequality gap.
The formulation of “lawful owner” caused problems for women in particular.
In addition, the approach to the return of property conditioned by “ownership” lacked a gendered understanding of ownership dynamics in the country. The formulation of “lawful owner” caused problems for women in particular. Even though the laws from the socialist era contained provisions on equal right to ownership of property (equal share of inheritance from parents amongst brothers and sisters, as well as equal share of the property obtained during marriage), the patriarchal tradition conditioned the ownership practices in reality. The property was more frequently registered to the male members of the family. This patriarchal dynamic was more present in some areas of the country than in others. Consequently, many women whose husbands were considered missing faced obstacles in the process of returning their property. Due to bureaucratic procedures, women could not go through the process of inheritance, as their husbands were not proclaimed dead if their remains were not found. Since the property was not in their names, the women could not return to their property as they could not prove they were the lawful owners. These problems were recognised and attempted to be resolved by the Law on Missing Persons that was adopted in 2004. However, its provisions related to proclaiming a missing person dead took several years to implement, which further prolonged the lack of women’s access to their property.
LGBTIQ partnership was not recognised in the law and any potential issues in relation to the conditions for return of property have remained unrecognised. Whatsmore, homosexuality was criminalised until new criminal codes in the Federation of BiH and Republika Srpska were adopted in 1998 and 2000 respectively. Consequently, LGBTIQ partnerships were entirely invisible, even taboo, so there was no space to even start demanding recognition and resolution of any potential property claims they might have had after the war.
The “lawful owner” clause created even more problems for the Roma community. Many did not own the property they lived in, which was often substandard housing. This also meant that they could not access reconstruction assistance provided by the international community as many of the projects were explicitly for the so-called constituent people that were considered minorities in the returning area.
The right to return (to a devastated, poor, dysfunctional country, run by the same ideology that pushed it into war) was not just enshrined in the DPA because of the international community’s belief that the return played an essential role in peacebuilding, reconciliation and “reversing” the ethnic cleansing. During the drafting of the DPA, there were active pushes to include the provisions of the return in the DPA. The commitment to facilitate the return was, among other things, driven by internal politics of the countries that received BiH refugees to get rid of this “burden.”
Of course many people did not want to return due to their very personal and differentiated experiences of war and displacement.
Despite the internal demands from the host countries, and the DPA commitment to the return process, the return did not materialise in the expected form or volume. On the one hand there were wishes, whether personally or politically motivated. On the other hand there was reality. In real life, many people had already attained permanent residency or citizenship in other countries; other people had started families, had children, formed new lives; some had enrolled in universities or found jobs; some did not want to trade the relative safety for precarious conditions in their war-devastated country. Of course many people did not want to return due to their very personal and differentiated experiences of war and displacement.
And of course, it turned out that the political motivations of the host countries were often populist, driven by xenophobic demands or poorly formulated foreign policy. The reality was that many of these countries were in need of a labour force. Some of the refugees were highly educated and came with professional knowledge and skills beneficial for further economic growth and technological advancement—skills the host countries did not need to invest any money in to reap the benefits of. There were also those people that the host countries had already “invested in” prior to the initiation of the return process (through additional schooling or language classes, vocational training, etc.). They became a commodity that the host countries reluctantly gave up, despite the official return politics.
Most of the people that were internally displaced remained in places of their displacement having already formed social safety networks in those places, or due to obstructions and lack of support and resources.In the end, approximately half of the 2.2 million refugees and internally displaced persons did not return to their pre-war homes.
For those that did return, voluntarily or involuntarily, the process of return was obstructed and accompanied with violence. The buses carrying people to visit their pre-war homes in preparation for return were stoned and they often had to ask for protection from the UN peacekeeping forces and the International Police Task Force. Harassment of and assaults on the returnees and their property were frequent. Even killings took place. At the institutional level, the returnees were prevented from gaining access to their property, employment, healthcare, pensions and so forth. The violence and the obstruction stopped only after the OHR started using the Bonn powers to impose the CRPC’s decision and to remove political officials identified as obstructing the refugee return. Furthermore, lacking sustainable livelihoods, some of the returnees even ended up moving back to the countries in which they were refugees during the war and had attained permanent residency or citizenship.
All of this meant that the desired effect of “reversing” the ethnic cleansing simply did not happen.
Whatsmore, the return process was happening in parallel to implementation of aspects of the DPA which were inimical to the return process: namely, administrative divisions established by the DPA. The way the DPA imagined the division of the country led to the process of “exchange of territories,” resulting in expulsion of people and continuation of the practice of ethnic cleansing and homogenisation of territories. The extreme example of this was the forced expulsion of Bosnian Serbs from the suburbs of Sarajevo during the 1996 city reunification process. The Serb ethno-nationalist elites ordered terror campaigns that forced tens of thousands of people, many wanting to remain, to leave their homes, further entrenching the idea of “ethnically separated territories” as the only option.
Many years and millions of USD later, this approach has neither helped peacebuilding and reconciliation or reversed ethnic cleansing.
However, the return and restitution provisions in the DPA were limited to individual rights of refugees and internally displaced persons; they were detached from other segments of right to reparations; and they lacked understanding of the context they intervened in. The lack of a comprehensive approach to reparations within the DPA prevented the achievement of the aims of the international community. Many years and millions of USD later, this approach has neither helped peacebuilding and reconciliation or reversed ethnic cleansing.
The negotiations of the DPA were entirely under the influence of neoliberal capitalist ideology. Consequently, the restitution provisions in Annex VII were built on the understanding of the concept of property as entirely reduced to individual ownership. There was no understanding that return of property also had to happen at the collective/communal level in order for the society to recover from war.
It is worth reflecting over the political economy and the ideological shift taking place in BiH, among other things, as a result of the provisions for restitution contained in the DPA. The return of property was built upon an understanding of the concept of ownership and property that was different from the one that existed in the Socialist Republic of Bosnia and Herzegovina (SRBiH) and the whole of the Socialist Federal Republic of Yugoslavia (SFRY). The concept of ownership and property that was in operation at the time when the war started in BiH was structured around the socialist concept of social ownership, while the restitution in the DPA was entirely structured around the capitalist concept of private property. This meant that after the war, the laws had to be adjusted in order to translate the previous tenancy rights into private property ownership rights. These adjustments only concerned housing that was socially owned (apartment blocks mostly), while those that lived in their own houses were not affected by the new legal interpretations of the ownership.
However, social ownership was the building block of the socialist society and as such was not only applied in relation to housing but also when it came to factories, industrial complexes, and social infrastructure. All of those were socially owned as well. In the Constitution of SFRY, and consequently in the Constitution of SRBiH, the workers were the constituent part of the social and political structure of the state. The workers, through their labour and renunciation of the earned surplus value, invested in development of factories and other social infrastructure and were owners and managers of them. This meant that the workers owned and decided over the means of production (i.e. all the physical and non-financial inputs used in the production, including raw materials, facilities, machinery and tools), not the state or the municipality. They also owned and decided over the generated surplus value. Their ownership also included the many holiday resorts the factories built on the Adriatic coast or in the mountains across BiH for the benefit of the workers, to be used during holidays. Same logic was applied to social infrastructure such as hospitals, schools, railways, and other public service infrastructure, where the management was in the hands of people who worked there.
Socially-owned property could not be privatised without explicit approval of its owners—the working people of BiH.
Socially-owned property could not be privatised without explicit approval of its owners—the working people of BiH. However, in the midst of the war, while the people were surviving the military onslaught on their lives, the war governments made sure to dedicate their time to legal redefinition of ownership. Through adoption of laws in expedient procedures under the state of emergency, the war governments transferred the social ownership to state ownership. This was a necessary step towards deploying the method of privatisation through which those in power could profit. Not only were the people tricked into the war to sacrifice their lives for the territories to be transformed into fiefdoms of the ethno-nationalist elites, but also for their property to be stolen by the same elites.
Considering that social ownership was a constituent component of the BiH social, political, and economic structure, at the very least this “transformation” deserved a referendum or some other form of direct democracy. By preventing this, the war governments literally robbed the workers of their property, turning socially-owned property into the spoils of war. This property was never restored to its rightful owners after the war, as the DPA reduced restitution only to private property.
The ethno-nationalist elites in power treated state-owned property as their own private property, to be used as they saw fit. The dispossession started with factories, which were privatised through a very dubious and corrupt process. This often involved international and local so-called investors buying factories for bargain prices, selling off everything worth selling, and leaving the workers on the street, barehanded, without work, salaries, pensions, or hope. The ethno-nationalist elites got rich while the workers were left in poverty. Workers did not receive any form of adequate compensation for their investments and participation in building factories and other social infrastructure. They were simply ignored under the pretence of “building peace”. The same thing is now happening with social infrastructure (hospitals, transportation, utilities, etc.). The dispossession is continuing under the neoliberal concept of public-private partnership. Using the same recipe of successfully devaluing the factories by running them down and then selling them for bargain prices to friends, relatives, or international interest groups, now the social infrastructure is lined up for sale.
The dispossession of people living in BiH of their social ownership is one of the most blatant examples of the DPA’s focus on the economic and political transition from socialism to capitalism, rather than from war to peace.
The dispossession of people living in BiH of their social ownership is one of the most blatant examples of the DPA’s focus on the economic and political transition from socialism to capitalism, rather than from war to peace. The limitations of the restitution process as foreseen in Annex VII was helped along the way by pretending ignorance to the specificities of the concept of ownership in the BiH context, and by the fact that much more than just housing units should have been restored to their rightful owners. Using the DPA to make a shift from the constituent workers to constituent peoples (i.e. workers’ constituency to the constituency of the ethnic groups), the DPA allowed the ethno-nationalist elites to establish fiefdoms and the international community to establish a colony. This enabled both ethno-nationalist elites and the international community, including international investors, to jointly (and very successfully) continue in the post-war period to loot our common property and resources. Given that the looting process started during the war, to us it seems that the DPA is more of a document that consolidates war gains than a peace agreement.
Another document relevant for the discussion on reparations is Annex VI of the DPA. Annex VI represents the Agreement on Human Rights. It was included primarily to address violations of human rights occuring in the period after the war. From its content, it can be deduced that the intention of the drafters was to secure peace through securing protection of human rights after the war. In that sense, Annex VI is not part of the DPA’s limited reparations approach. However, throughout the years, Annex VI did provide some space for raising the issue of reparations and addressing some of the consequences of the war.
Annex VI deals with the establishment of the Commission on Human Rights (the Commission). The Commission consisted of two bodies: the Office of the Human Rights Ombudsman (OHRO) and the Human Rights Chamber (HRC). The OHRO was headed by an international appointee. According to the “transfer” provisions in the Annex VI, five years after the DPA came into force the parties to the agreement were given an option to transfer the operations of the Commission to the institutions of BiH. Consequently, the Commission ceased to exist once the HRC was dissolved in 2003, and the OHRO started functioning as an independent body with three Ombudsman, all from BiH, upon the adoption of the Law on Ombudsman in 2004.
The lack of institutional and societal memory contributes to the depolitisation of society.
We have to reflect on the fact that while trying to trace back the transformation of the Commission and creation of a separate, domestic state institution of the OHRO we faced difficulties. We could not find any publicly available chronological overview of how transition towards a national OHRO took place; or information about the work of the first, internationally appointed Ombudsman; or work of subsequently formed and then dissolved Offices of the Ombudsman on entity levels. There was also no trace of the tensions between the entities and the state in the process of establishing a joint state-level OHRO. This falls within the domain of politics of forgetting we have written about elsewhere in this essay collection. The lack of institutional and societal memory contributes to the depolitisation of society. The institutions themselves don’t seem to find it important to maintain a public record of how they were created, other than indolently quoting the relevant annex of the DPA where they are mentioned, or relevant national law. There seems to be a lack of understanding of the importance of maintaining a transparent, accessible public record of how BiH institutions were created, or dissolved, as a result of the implementation of the DPA.
As regards the dissolution of the HRC, it is equally hard to trace the reasons and process behind the closure of HRC in 2003, especially considering the large number of backlog cases. Upon the closure of HRC, the backlog cases were transferred to the Constitutional Court of BiH (CCBiH), but even that part has not been transparently presented. True, an Agreement in Accordance with Article XIV of the Annex VI of the General Framework for Peace in BiH (the Agreement), was signed between BiH, the Federation of BiH, and Republika Srpska. The Agreement provided for closure of the HRC and the transfer of the HRC backlog cases to the CCBiH. However, it did not provide the reasoning behind the decisions leading up to the Agreement. Understanding the reasoning behind the transfer of the cases to the CCBiH instead of keeping the HRC operational until adjudication of all the cases is an important part of societal memory.
Furthermore, there is no information on how many people were eventually affected by the differences in admissibility criteria between the HRC and the CCBiH. The CCBiH provides a short overview on its website about the transfer of cases, but only lists “important and influential” decisions and gives a partial picture.
The processes of closing Annex VI by creating the national OHRO and by transferring the HRC cases to the CCBiH are almost entirely invisible. They only remain in the personal memories of the people directly connected to these processes or institutions, and on the remnants of websites that might disappear from the digital space at any time.
Nevertheless, before its closure the HRC did play a role with respect to reparations for a specific collective of victims. Even though it may not have been envisioned as a mechanism in support of the process of dealing with the past, the HRC was useful in addressing some of the human rights violations that arose after the war and were related to mass violations of human rights committed during the war. For example, a number of families of missing persons from Srebrenica filed an application to the HRC claiming discrimination in connection to the right to know the truth, right to effective remedy, and right to access to information. They alleged that, as close family members of missing persons, they were themselves victims of human rights violations resulting from the lack of specific information on the fate and whereabouts of their loved ones last seen in Srebrenica in July 1995. They sought to know the truth. As a result of the application, the HRC found violations of obligations to secure respect for their rights to private and family life, violation of the right to be free from inhuman and degrading treatment, and discrimination based on the ethnic origin in the applicants’ enjoyment of those human rights.
These violations were caused because the entity of Republika Srpska failed “to inform the applicants about the truth of the fate and whereabouts of their missing loved ones, including conducting a meaningful and effective investigation into the massacre at Srebrenica in July 1995.” Consequently, the HRC ordered Republika Srpska to, among other things, conduct a meaningful, thorough, and detailed investigation into the events giving rise to the established human rights violations; disclose the results of the investigation; and to release all information available at the time the decision was adopted.
Despite the HRC’s ruling, the investigation into the genocide in Srebrenica was implemented only after the OHR applied pressure on the government of Republika Srpska to establish a commission to conduct the investigation. The commission was established in December 2003, as a temporary working body of the Republika Srpska government and was called The Commission for Investigation of the Events In and Around Srebrenica between 10th and 19th July 1995 (Srebrenica Commission). The Srebrenica Commission was given the mandate to investigate the locations of the killings and mass graves, and identify the victims. The findings of the Srebrenica Commission came out in 2004 and were in many respect historical: a formal governmental body established facts about the killings, the missing persons, mass graves, and all of the events that led to the Srebrenica genocide. However, even these established facts were not conclusive. The Srebrenica Commission concluded in its final report that the 7,779 identified people was not the final number, and that the government of Republika Srpska should carry on with the investigations.
The work of the Srebrenica Commission, as well as its findings, were deeply politicised by the Serb ethno-nationalist elites and they actively participated and encouraged genocide denial. No matter the established facts by the Srebrenica Commission, the initial endorsment of its findings by the government of Republika Srpska, and on top of that, the findings of the international and national courts, the negation of the genocide in Srebrenica is still part of the mainstream discourse in Republika Srpska. In fact, recently the government of Republika Srpska denounced the findings of the Srebrenica Commission and formed a new commission, with a task to not just relativise the findings of the Srebrenica Commission but to re-write the established truth. This represents continuation of the genocide and it prolongs harming of the people who survived it.
As a side note, we have to make another reflection on the process of our research for these essays. When we tried to find the report of the Srebrenica Commission in order to link to it for readers’ easier reference, we were shocked by the fact that the report seemed to have disappeared from the online realm. At the moment of writing these essays it could not be found, at least not through the biggest search engine, Google. Only after using the far smaller search engine, Bing, were we able to find the full report. When we used Google to search “Srebrenica Commission findings” in both Bosnian/Croatian/Serbian and English, or by using the full name of the commission, the results that came up were mostly various analyses (academic or NGO) of the findings, but not the report itself. Also present, abundantly, were various articles and “analysis” with genocide denial messages. The prevalence of genocide denial articles seems to be a result of a purposeful action to relativise the factual findings concerning the genocide, and to, by sheer numbers of articles, push out the truth.
It is important to note that while a limited number of families of victims from Srebrenica were able to use the HRC to redress harms directly related to the war, this was on an individual case-basis and provided no systematic solutions for reparations. Only the lucky ones, who were aware of the proceedings and who submitted applications early enough for it to be resolved before the closure of the HRC, could obtain some legal satisfaction. We can see this also in other cases before the HRC: the return of property seized during the war; individual claims regarding trafficking in children; refugee return; etc.
By the end of 2002 the HRC had over 12,000 unresolved applications, and once the mandate of the HRC expired in 2003, the applications were transferred to the CCBiH. This proved to be detrimental for many applications, because the CCBiH had different admissibility standards than the HRC. Consequently, the majority of the backlog applications were rejected by the special Commission on Human Rights established within the Constitutional Court for this purpose.
In retrospect, the DPA understood the protection of human rights post-war as part of prevention of recurrence of the war, but omitted addressing war-related grievances as part of that prevention.
In retrospect, the DPA understood the protection of human rights post-war as part of prevention of recurrence of the war, but omitted addressing war-related grievances as part of that prevention. This negatively affected the peacebuilding process, since the grievances remained unredressed and could as such be easily manipulated by the ethno-nationalist elites. In the absence of a redress mechanism, the HRC became the venue for addressing everything. Consequently, in the situation of mass violations of human rights (pre- and post-war), the HRC became overcrowded with cases that it could not efficiently address.
The mechanisms described above, as foreseen by the DPA negotiators and as they played out in reality, were simply not a sufficient response to the post-war realities of the society that was trying to recover from the war. The post-war reality of BiH almost compelled the institutions across the various administrative levels to put in place some (limited) forms of reparations for the many victims of most gruesome war crimes.
However, the lack of a comprehensive mechanism for reparations in the DPA contributed to BiH dealing with reparations through a set of detached processes, targeting certain collectives of victims (those most visible) with a “one-size-fits-all” approach. The “collective” is defined by a specific crime, e.g. camp imprisonment or families of missing persons.
Soon after the war it became evident that reparations, in their broadest sense, were key for the recovery—economically, socially, and politically.
Soon after the war it became evident that reparations, in their broadest sense, were key for the recovery—economically, socially, and politically. However, lacking a framework for this key aspect of peacebuilding the reparations in BiH were reduced to a projectised and disharmonised approach. The survivors saw the state obligation to redress war-time violations and harms shattered into pieces, with victims’ access to redress dependent on whether their experience of violence was considered useful by ethno-nationalist elites; or whether a victim collective was strong enough to apply pressure on ethno-nationalist elites and/or the international community; or eventually, if particular aspects of the violations they suffered was interesting enough for the international community resulting in sufficient donor funding for NGOs to implement projects. What is common to all victims is that they have all faced numerous problems, first in being legally recognised as civilian victims of war and then in accessing the rights arising out of that legal status.
The absence of delivery of reparations in a systematic and holistic manner meant that no process of identification of war-time human rights violations and subsequent harms took place. The focus has instead been on addressing the violations (i.e. the crimes) that had a legal definition. This made it impossible to identify the full range of potential beneficiaries to reparations, or to define adequate reparative measures in response to those violations and harms.
The harms that people suffer as a result of a crime, however, are not all encompassed by legal definitions, and are thus often rendered invisible.
For the purpose of our further discussion, it is important to clarify the difference between violations and harms. Violations have already got legal definitions within the framework of international human rights law, international humanitarian law and international criminal law. They are recognized either as human rights violations or international crimes. The harms that people suffer as a result of a crime, however, are not all encompassed by legal definitions, and are thus often rendered invisible. Furthermore, human rights violations and international crimes are gender neutral, which in the framework of the patriarchal legal system of international law leads to overlooking the gendered nature of both violations and harms. This makes a proper identification of harms and the recognition of their gendered nature particularly important. It would help discern multiple and different consequences of the violations (no matter whether those are recognised as crimes or still don’t have that status) and enable the search for more structural and intersectional solutions. Such solutions, sensitive to people’s various experiences and needs, would complement the retributive responses to violations.
In order to provide for a comprehensive dealing with the past that would contribute to peacebuilding as well as to a just and equal society, the restitution and retribution mechanisms should address the broad spectrum of harms while bearing in mind both community and individual needs.
Redressing harms through violations, as if a violation always causes the same harm, as has been the case in BiH, contributes to creating uniform interventions to addressing supposedly homogenous groups of victims. The identity of the “group” is determined by the nature of the crimes committed against them, regardless of the harms it caused, and individual victim’s social, economic, and other position(s) in society. As noted by Kirsten Campbell, a country transitioning from war to peace must consider “group as well as individual injury and recognize that those injuries are the product of that conflict. This also means that we are recognizing that the very groups that we are describing did not preexist those harms, but are actually often created through them.” In order to provide for a comprehensive dealing with the past that would contribute to peacebuilding as well as to a just and equal society, the restitution and retribution mechanisms should address the broad spectrum of harms while bearing in mind both community and individual needs. However, what has been done in BiH is unfortunately the exact opposite.
To illustrate: a victim is recognised only through one type of violation, e.g. a victim can only be a victim of forced displacement or a victim of wartime rape, but never both. Besides, some experiences are assigned more worth than others depending on what potential for mobilisation the ethno-nationalist elites assign to them (the “potential” being decided also by the location where the violation took place). Given the patriarchal framework, the death of a male relative of a woman who survived genocide or ethnic cleansing is given greater value than her experience of, e.g., forced displacement, while for women who survived concentration camps, it has been the experiences of sexual violence that have received “recognition” and not the forced labour they were subjected to, or the sole fact that they were imprisoned in a concentration camp. In fact, women survived intersecting harms: death of their husbands/other family members, they bacame sole bread winners and/or survived displacement, detention, forced domestic labour, rape and so on. However, the reparations claims that have been reduced to compensation could only be claimed based on one violation and the so-called choice is usually made based on what is more “beneficial” for each individual victim (“the benefit” is not necessarily measured in money but also in the status awarded by society).
Some forms of reparations (mainly compensations) can be found in the legal frameworks of the entities (the Republika Srpska and the Federation of BiH). Through administrative procedures, civilian victims of war have been awarded monetary and non-monetary compensations stipulated by two different entity laws: the Law on Basis of Social Protection, Protection of Civilian Victims of War and Families with Children in the Federation of BiH and the Law on Protection of Civilian Victims of War in the Republika Srpska. Republika Srpska also adopted a separate law for victims of torture in 2018, which changed the way the victims of sexual violence and rape, living in that entity, access the administrative compensations. The only victim collective recognised at the level of the state are families of missing persons. Their access to a limited set of reparations is dealt by the BiH Law on Missing Persons. However, unlike those who received some compensation through the entities’ laws, the families of missing persons have not been able to access socioeconomic aspects of the reparations provided for in the Law to date. This does not necessarily mean that some of the family members have not accessed compensation through other categories of civilian victims of war.
The most common approach within these administrative procedures is a requirement of 60 per cent disability level in order for a person to be awarded compensations arising from the status of civilian victim of war. This benchmark is the same in both entities. Apart from the families of missing persons, an exception to the 60 per cent rule is also made for survivors of sexual assult and rape. This group of survivors have been awarded a special status within the entities’ laws that prescribe different procedures for their legal recognition and full compensation. This exception was introduced in the Federation of BiH in 2006 after massive pressure from women’s organisations that provided assistance to women survivors of wartime rape. Republika Srpska only recently (in 2018) adopted a new law that enabled the survivors of wartime sexual violence to avoid the 60 per cent disability benchmark to receive compensations. Both entities have gender neutral formulations for the recognition of the status for the survivor of wartime sexual violence. Other victim collectives such as persons imprisoned in concentration camps (victims of forced detention), if not able to prove 60 per cent disability, are not entitled to compensation.
It is worth noting that the most dominant form of support to the victims are monthly payments. The right to monthly payment can be understood as a form of reparations (namely monetary compensations). However, this payment is not based on the violation of rights or harms suffered, but exclusively on the disability level. It is situated within a framework of social benefits and economic assistance to disadvantaged groups in society, which gives this right more of a social welfare character than that of reparations. This unjustifiably puts the civilian victims of war and people in a need of social welfare support in competition with each other over scarce resources. Furthermore, due to this conflation, civilian victims of war that receive monthly “benefit” are subject to means testing and will automatically lose the right to other social benefits, such as child allowance. Persons living outside the country for more than three months cannot receive the payments, as if one’s place of residency removes one’s need to have the harms redressed. This conflation (in law and public narrative) between compensations as part of the concept of redressing violations and harms caused by the war, and social benefits has numerous impacts on victims and society. It is financially and otherwise unsustainable, but what is more, instead of being a mechanism of acknowledgement of harms suffered, it creates a mess that then prevents provision of adequate support to anyone.
The monthly payment for civilian victims of war is very low, and is only a portion of what war veterans receive. This is partially due to the prejudiced understanding that civilian victims of war are mostly women, while veterans are of course male! As such the collective of civilian victims of war undergoes the process of feminisation. As explained by Cynthia Enloe, a distinguished feminist writer, theorist, and professor, the process of feminisation is “a process of imposing allegedly feminine characteristics on a person—man or woman—or a group or a kind of activity. Often the goal of feminizing someone (or something) is to lower his (or its) status.” The process of feminisation leads to an understanding that the low monthly payments are considered “sufficient” for “women’s needs”.
In the situation of survivors of sexual violence, where it is obvious it is women who are mostly receiving this type of “benefit” we see different gendered dynamics this causes. This “income,” in combination with high unemployment among other family members, made women family breadwinners or heads of households. This strengthened the burden of domestic and care work placed on women, while at the same time contributing to keeping women outside of the public space. Other types of supportive interventions e.g. education, vocational training or employment that helps the women to leave the private sphere were either not implemented or even considered. Furthermore, it is important to say that not many women have applied for and received these benefits. This tells a lot about both the administrative hurdles in accessing these rights, but also of their inadequacy.
On the other hand, the concentration camp imprisonment along with torture have been seen as crimes targeting more men. Those were not compensated for, unless being able to prove at least 60 per cent disability. Subsequently, the male civilian victims of war were considered able to work and provide for themselves.
Monthly payments are not the only so-called entitlements. Entities’ laws stipulate a number of other rights, such as compensation for assistance and care by another person, financial support in purchasing medicine and orthopaedic aids, vocational training, priority in employment and housing, psychological assistance, and legal aid. However, it is important to underline that non-monetary benefits are not systematically available. Access to the non-monetary rights is limited and hampered by complicated bureaucratic procedures. In the case of the Federation of BiH, where the implementation of the Law on Basis of Social Protection, Protection of Civilian Victims of War and Families with Children is left to the ten Cantons, the fulfillment of these rights is highly conditioned by the budgetary and other constraints of the different Cantons. There is also a difference in the available rights between the Federation of BiH and the Republika Srpska.
The BiH legal system also allows for compensations to be claimed through courts, both in civil and criminal proceedings. But even in this segment the victims face obstacles. There are limitations to both access to courts as well as what victims can achieve once they enter the legal battle.
In civil proceedings, the victim has to be able to afford a lawyer. This is not a possibility for the majority of the victims whose socioeconomic situation does not allow for such “luxuries”. Those that do find means and decide to go to court will be faced with the burden of proof, which is entirely on the victim, both concerning the crime and the level of harm suffered due to the crime. For those victims who, after lengthy proceedings, succeed in having their compensation claim recognised, the collection of the awarded compensation was difficult. The claims they filed were against the Federation of BiH, the Republika Srpska, or the state as such. If successful the awarded compensations were turned into public debt by the entities, with payoff scheduled many years later. Since 2013, due to the decisions of the Constitutional Court of BiH regarding statutory limitation issues, many claims have been rejected due to late submissions.
It is unclear what is behind the sudden change of the case law and the introduction of the statutory limitation, a limitation that was not applied prior to 2013. Before then, there seems to have been an acceptance of the fact that people might not have been able to file their claims “in time” due to specific circumstances related to the requests for war compensation. We can only do our best to guess why: perhaps the reasoning behind such a change in position is to be found in the political economy of the post-war ethno-nationalist elites’ calculations of how many claims the budgets can handle, and the fact that BiH lacks a comprehensive reparations programme that would unburden the institutional budgets from these types of individual and ad hoc claims.
When it comes to criminal proceedings, the compensation claims do not have statutory limitations. Nonetheless, the process for obtaining compensations through criminal proceedings has not been much easier and the experience of witnessing has many times been re-traumatising for the victims. Furthermore, even though the entities’ and state’s criminal procedure codes stipulate that compensations can be awarded in criminal proceedings, the courts deciding in criminal matters have tended to redirect the compensation claims to civil proceedings. The criminal courts argued that the compensation claims would create complications to already, according to them, complicated matters, burdening the courts with additional workload. This especially since they are already drowning under the backlog of war crime cases.
The right of victims to have their compensation claims included in criminal proceedings were ignored for a long time. Those whose claims were redirected to civil proceedings have again been faced with the burden of proof and new court proceedings. Even though this time the victims had only to prove the level of harm, the proceedings required additional time, energy, and emotional wellbeing to be invested in.
The criminal court venue is ultimately available to a limited number of victims, as only a handful of them will ever be able to see their perpetrators before the court, and hence get an opportunity to claim compensations.
The criminal court venue is ultimately available to a limited number of victims, as only a handful of them will ever be able to see their perpetrators before the court, and hence get an opportunity to claim compensations. This is because several things have to take place before a victim can see the perpetrator brought to justice. Firstly, the crime needs to be either reported or identified through investigation. Secondly, the perpetrator needs to be identified and arrested. BiH is a country faced with a massive number of war crimes. For an individual victim to see the perpetrator(s) prosecuted and punished, sufficient evidence and witnesses have been imperative for bringing the case to the court. Few victims have had that opportunity. In addition, there is no guarantee for the guilty verdict. And finally, even if the perpetrators are found guilty and the courts have awarded compensations there are no guarantees that the victims will ever see the compensations paid out. The perpetrator(s) are often determined to be in a poor financial situation as often whatever assets they might have are not in their name, leading to courts failing to execute the compensation order.
Some international donors, INGOs, and local NGOs initiated projects to lobby the criminal courts to start awarding compensations in criminal proceedings. These initiatives have only been in relation to conflict-related sexual violence cases, and have had some limited success. Through a limited number of cases it was proven that awarding compensations in the criminal proceedings was neither as complicated nor as lengthy as it was claimed to be. What was missing were adequate procedures. However, because the interventions were project driven, focusing on several individual victims of a particular crime, the process of awarding compensation claims as part of criminal proceedings has not yet been mainstreamed or systematically applied in courts. Lacking the attention of donors and NGOs, survivors of other crimes end up still being redirected to the civil proceedings if the accused is found guilty. If the accused is acquitted in criminal proceedings the victims are left without any real possibility of seeking compensation as they do not have who to file compensation claims against.
It is not lightly we talk about a “privileged position” of certain victim collectives as they are all continuously socially, politically, and economically victimised and marginalised by the ethno-nationalist elites in power. However, the BiH ad hoc approach to reparations has put different victim collectives in confrontation with each other, creating victim collectives that are seemingly in a privileged position in comparison to other victim groups. This seeming privilege arises out of the presence of certain collectives in the public space and the perception of them as being preferred by either donors or ethno-nationalist elites and thus able to influence the policies, or direction of donor funding. The seeming privilege comes also from the fact that some victim collectives (and not all) have a recognised status within the laws, which gives them access to certain “benefits” (e.g. monthly payments).
This privileging in laws, policies, and donor funding does not necessarily mean an actual “benefit” for the collective or the individual victim for that matter. The national laws have been difficult to implement, in particular when it comes to accessing socioeconomic rights, while international initiatives usually end with the end of the project cycles. For example, in the BiH context, the UK Preventing Sexual Violence in Conflict Initiative (PSVI) meant that a significant amount of donor funding was directed in “addressing wartime sexual violence”. During these projects, numerous workshops, roundtables, conferences, fancy pamphlets, and awareness-raising campaigns were held. Millions of US dollars, Euros, and British pounds later, the collective benefit generated by these projects for the survivors of rape, in terms of reparation and their overall economic, social, or political position in society, equals almost zero. Maybe some individual women got some donations (e.g. green-houses), but even these were minimal, short-term and randomised.
Numerous NGOs received funding for their projects, and we all know that projects must be delivered, even if it means that the actual beneficiaries of those projects actually don’t benefit at all.
While the direct benefits for the women was meager, the public space was oversaturated with project activities, leaving an impression that the survivors are being “taken care of”. Numerous NGOs received funding for their projects, and we all know that projects must be delivered, even if it means that the actual beneficiaries of those projects actually don’t benefit at all. What was lost in the process was support to the existing critical and sharp feminist efforts regarding demands for addressing the consequences of wartime rape and eventual prevention. The mainstreaming of neoliberal ideology in this particularly women-focused area, which also deployed politics of forgetting, meant that addressing patriarchal regimes and misogyny were sidelined.
When it comes to ethno-nationalist elites, their pretended endorsement of certain victim collectives and their subsequent recognition in the legal framework has always been about good PR strategy. On the one hand, they have always known that there will not be sufficient money to cover all the promised benefits and that most parts of the laws will remain unimplementable. In the end, their modus operandi throughout the last 25+ years has been non-implementation of the laws adopted in accordance with human rights standards. On the other hand, this demonstration of good will bought the ethno-nationalist elites additional votes, ensuring their power-positions remained intact.
Furthermore, another anomaly caused by the pretended privileging that has emerged through neoliberal insistence on individualism and identity, has been that the ethno-nationalist elites have succeeded in co-opting individual victims to support their ethno-nationalist causes. In this sense, individual victims have been named “representatives” of the collective. Those individuals have potentially received some benefits, but a long-term, sustainable system has never been put in place. Instead, there have only been ad hoc, temporary solutions that can, in the grand scheme of the neoliberal transformation of the BiH economy, disappear overnight.
Through its focus on the individual right to restitution of property and the hollow right to return, its disregard of the specificities of the BiH context (in particular the concept of ownership), and without understanding or paying attention to the complexities of peacebuilding, the DPA proved to be inadequate for securing sustainable peace. Being a “peace agreement” without the key ingredients for redressing violations and harms in a comprehensive way—at individual, collective, and societal levels—the DPA provided a framework for (re)creating the harms. Given the context and compromises made with the ethno-nationalist elites during the DPA negotiations, it was not likely that BiH would be able to successfully deal with the past through exclusively redressing individual trauma. Not addressing the harms holistically allowed for growing discontent, and stirring of old/new conflicts.
Being a “peace agreement” without the key ingredients for redressing violations and harms in a comprehensive way—at individual, collective, and societal levels—the DPA provided a framework for (re)creating the harms.
The DPA negotiators failed to see the interconnectedness of all the different parts of the peacebuilding interventions, such as demilitarisation, reparations, war crime prosecutions, memorialisation, and even the political economy. This failure proved to be detrimental for the fulfillment of the limited redress provisions provided for in the DPA, especially the right to return. The concessions and compromises made with the militarised ethno-nationalists (as analysed elsewhere in this essay series)—in particular, defining war as an ethnic war, in combination with the neoliberal capitalist framework within which peacebuilding took place—deeply affected the broader process of dealing with the past, and its more narrow aspect, namely reparations.
Furthermore, the DPA negotiators were contemplating (or not so much!) these issues in the vacuum of a military base, understanding the war through the prism of conflict over territories and seeing the solution through the capitalist market economy. Consequently, the redress provisions in the DPA were reflective of that. In addition to assigning territories to ethnic groups, individual property was the only one returned (restituted). However, the war was far more complex and caused far more differentiated harms that transcended the individual redress of property or the right to return. Thus, those DPA provisions were far from sufficient to incentivise the country to face the consequences of the war.
The depressing reality of BiH more than 25 years into “peacebuilding” is of course owed to many different factors, but part of it is owed to the failure of the DPA to comprehensively address the violations and harms caused by the war.
The depressing reality of BiH more than 25 years into “peacebuilding” is of course owed to many different factors, but part of it is owed to the failure of the DPA to comprehensively address the violations and harms caused by the war. How BiH went from social ownership to public ownership to dispossession of workers is in part a story of the failure of the DPA to address not just individual but also collective and societal harms; how the restitution of property failed to “return” the people is a failure of the DPA’s narrow understanding of how conducive environment for return is created; and how the ethno-nationalists have managed to use this lack of a systemic approach to peacebuilding for their own benefit is also a story of the failure of the DPA.
However, the failure of the DPA did not end just there! The disregard of war consequences and the need to redress the many harms caused to numerous individual victims, as well as to the fabric of the society, allowed ethno-nationalists to manipulate victims. The ad hoc solutions and the unharmonised channels that different victims used to try to access reparations, have just prolonged the agony of both the individual victim and the society (as a collective survivor of the war). A long-term, sustainable solution is nowhere in sight.
Due to the lack of recognition of the need for redress mechanisms in the DPA and the subsequent failure to provide for systematic and holistic approach to redress, as described throughout this essay, individualised claims for justice have played out in BiH in several ways:
In this regard, individual compensations and other forms of reparations, within an existing, systematic, and comprehensive mechanism for dealing with the past would not in itself be a problem. However, without a comprehensive mechanism that is able to provide redress to BiH’s many victims and contribute to the collective recovery of the society and the social fabric, this individualised approach has not been enough for dealing with the past.
When a country does not have a comprehensive reparations programme accessible to all the victims, but rather leaves it to the individual’s “luck” of seeing the perpetrator brought to justice and to a victim’s capacity to request compensations within a complicated bureaucratic system, this then necessarily ends up with seemingly privileging one victim over the other. It puts survivors in a situation where they have to compete with each other (and other marginalised groups). They compete over the privilege to be recognised in the laws. Once recognised, they have to compete over scarce resources dedicated to social welfare that includes compensations. This non-system serves no other purpose but strengthening the positions of the ethno-nationalist elites who keep using the victims for mobilisation of ethno-nationalist sentiment in order to gain (even) more political and economic power. And more power for the ethno-nationalist elites means less chance of actually redressing the violations and harms caused by the war. Numerous NGOs and the international community have also benefited from this non-system: the NGOs keep securing the project funding, and the international community has yet another reason to remain in the country.
To properly address the gendered harm and obtain satisfaction and justice, even at the level of an individual, the patriarchal system needs dismantling.
There are of course other issues with the concept of reparations, particularly the aspects that centre around “restoration to previous conditions”. From a feminist perspective this is problematic, as previous conditions were patriarchal. Thus returning women, and the entire society, to “the previous” would be to keep them in a state of inequality and violence. Thus, individual justice claims within a patriarchal society are doomed to fail in delivering justice, because within the patriarchal framework the individual claim pertaining to gendered harm is rendered invisible. The perpetrator can be arrested or even put in jail, and the victim can even obtain some compensation either from him, or from the administrative unit that was obliged to protect the victim. However, this only deals with individual grief. The victim will still be returned to patriarchal surroundings and forced to continue experiencing harms caused by the crime, whether she is single mother, family breadwinner, survivor of rape or concentration camp, or a person with disability caused by a war injury. To properly address the gendered harm and obtain satisfaction and justice, even at the level of an individual, the patriarchal system needs dismantling. This is the conversation we need to be having. Current feminist proposals are going in the direction of searching for contextualised, transformative forms of reparations, which we are proponents of. Unfortunately, in BiH this is still a non-existent discussion.