Analysis 18 Sep 07

Truth Commission Divides Bosnia

Experts query draft law on how the process would work, while victims complain they have not been consulted.

By Nerma Jelacic and Nidzara Ahmetasevic (Balkan Insight, 31 March 06)

An initiative to form a truth commission for Bosnia and Herzegovina is provoking a fierce debate in the country, dividing civil society, political parties, the international community and ordinary people.

The mixed reception for the idea has placed a question mark over its fate.
Doubts have also been raised about the work that has already been done on the ground in relation to the commission.

Experts contacted by Balkan Insight have raised a host of queries and criticisms concerning a draft law on the commission's mandate and goals, to which Balkan Insight has received exclusive access.

Some of them have said it lacks precision and takes the wrong approach to the business of establishing the truth about the horrific events which occurred in Bosnia from 1992 to 1995.


This is the third time that a truth commission has been proposed as a means to deal with crimes committed during the war in Bosnia

In 1997, the United States Institute for Peace, USIP, held consultations with Bosnian representatives over a draft statute for such a commission.

The USIP report said the organisation had consulted, among others, Bosnia's then president, Alija Izetbegovic, Momcilo Krajisnik, Dragan Kalinic and Biljana Plavsic from the Republika Srpska, and the politician Ejup Ganic.
Senior figures from the religious community had also apparently been consulted, including the Serb Orthodox patriarch Pavle, the Mufti of Mostar, Seid Smajkic, Cardinal Vinko Puljic and Jakob Finci, president of Sarajevo's Jewish community.

At the time, the United Nations-run International Criminal Tribunal for the Former Yugoslavia, ICTY, in The Hague opposed the idea on the grounds that it was already establishing the historical truth about the war.

Moreover, by 2001 two of the Bosnian Serb politicians consulted in 1997, Plavsic and Krajisnik, were in the custody of the ICTY, charged with war crimes themselves.

That May, however, a conference held in Sarajevo again declared that the time had come for a truth commission and for a law to be adopted on its establishment. This time the Bosnian government, the international community and the ICTY supported the initiative. However, nothing concrete emerged.
Finally, five years later in November 2005, another working group on a truth commission was formed.

This time it was made up of representatives of eight leading political parties.

They were Besima Boric of the Social Democratic Party, SDP; Alma Colo, of the Party of Democratic Action, SDA; Vinko Radovanovic of the Party for Democratic Progress, PDP; Momcilo Novakovic of the Serb Democratic Party, SDS; Remzija Kadric of the Party for Bosnia and Herzegovina, SBiH; Nebojsa Radmanovic of the Alliance of Independent Social Democrats SNSD; Lidija Bradara, of the Croatian Democratic Union, HDZ; and Mile Mutic of the Socialist Party of Republika Srpska, SPRS.

Chaired by a local non-governmental organisation, NGO, called the Dayton Project, the group was tasked with writing a draft law on the establishment of a truth commission, its mandate and composition.

Two international experts attended as consultants: Neil Kritz, USIP's senior scholar on international law; and Gordon Bacon of the United Nations Development Programme, UNDP, who was involved as an individual rather than as a UN representative.

The eighth member of the group, SPRS’ Mutic, dropped out after victims of ethnic cleansing in Prijedor protested against his involvement, citing his activities in the war as editor of Kozarski Vijesnik, a newspaper in Prijedor.
The Hague tribunal said this newspaper acted as a platform for Serb nationalist propaganda, while Human Rights Watch reports and transcripts of ICTY Prijedor-related trials showed that Mutic had also been a member of the local Crisis Committee, which was responsible for much of the ethnic cleansing in the area.

After Mutic resigned from the working group, the SPRS put forward a new candidate whose name has not been divulged.


The draft law, a copy of which Balkan Insight has obtained, defines the mandate of the commission in broad terms. It is to “objectively examine the hostilities…in Bosnia and Herzegovina and former Yugoslavia from 1990 to 1996”.

It is proposed that the commission examines these wartime violations in five categories.

The first concerns establishing the number and identity of victims, including missing persons, and those who were tortured, raped and deported. This includes the numbers and identity of military personnel who died, were wounded or disappeared, mass graves and the demolition of religious and cultural monuments and private property.

The second task is to examine the developments that led to "ethnic distrust and misunderstanding".

The third is to establish the "role and moral responsibility of individuals, organisations, institutions which with its acts, or lack of acts, helped or prevented, the breaking of human rights".

The fourth goal is to establish "the role of relevant actors outside Bosnia and Herzegovina who with their acts or lack of acts helped the violence".
The fifth marks a new development for truth commissions internationally. This task is to establish the "existence and acts of individuals who refused to take part in persecution and torture [and] who tried to protect their neighbours".

Following examination of these violations, the commission will "make it possible that the public… becomes familiar with the events and violence committed".

The commission would then also "recommend measures necessary to resolve the violence committed and prevention of their repetition in the future".

Finally, the draft says the commission would complete its work and hand in a final report to parliament within two years.

Turning to the question of membership, the draft suggests that the commission would comprise seven citizens of Bosnia and Herzegovina who were not involved militarily or politically in the war and who "reflect the national, geographic and gender set-up of the country".

The commission will be helped by an international Council of Advisors. Who will name the Council members has not been decided but the Nominating Committee in charge of this, according to the draft, will be made up of 15 members: three named by leaders of the House of Representatives and the House of Peoples of Bosnia and Herzegovina and four nominated by "international organisations, which are yet to be identified". The other eight would be representatives of the public and civil society.

The working group has yet to establish a procedure for their selection. The members of the truth commission and its president are to be named by parliament on recommendations from the Nominating Committee.

Numerous experts contacted by Balkan Insight have expressed concern that the commission's broad and general mandate could cause major problems, forcing the body to spend too much time on internal clarification or political struggles.
Mithat Izmirlija, a Bosnian magistrate and an expert on peace commissions, says the question of how it will function and what it is to achieve needs to be agreed in advance.

"Prior to its formation, the principles, aims and values that the commission wants to achieve in Bosnia must be precisely defined," he said.
Another problem raised by the experts that Balkan Insight consulted is that the commission’s mandate often appears to overlap with or copy the work of other organisations.

Doune Porter, of the International Commission on Missing Persons, ICMP, said, "There are already several mechanisms in place that will help to establish the truth."

The commission's first task, for example, overlaps with the work and mandate of the existing Research and Documentation Centre, RDC. This organisation also aims to establish a complete account of the numbers of people who were killed and went missing in the war, and other facts about their suffering and the perpetrators of the crimes against them.

The RDC says its data will be available to the public as well as prosecutors. The final goal is to have all the victims' names in one database, along with dates and places of birth, profession, ethnicity, time of death and the way they were killed.

The RDC has not finished its work but its database already consists of more then 97,000 names, with the final number expected to be around 110,000.
Porter, of the ICMP, noted that Bosnia’s Missing Persons Institute is also already establishing the truth about the numbers of missing persons and their identity.

The former entity-based commissions for missing persons were also in charge of uncovering mass graves and, with the help of ICMP, identifying the victims.
Some experts have also queried the proposed system for nominating members to the commission.

"It [still] leaves open the possibility for the commission to be formed by parliamentarians or other officials who held an active role in the war or were officials in towns were crimes were committed," Izmirlija said.

"The whole project could fall through if people are included whose moral credibility is questionable," he added.

Thirdly, victims' groups have voiced grave doubts about the viability of a two-year timeframe, fearing it will not be possible to establish the truth in such a short period. Some sources close to the working group have said the commission plans to hear only between 5,000 and 7,000 testimonies of individuals, in order to meet the deadline.

There has also been controversy over the suggestion that the commission may "without prior notice visit any institution or place". Experts said this would violate the European Convention on Human Rights, which stipulates the right to privacy of any individual.

Perhaps the most controversial aspect of the draft law, however, is article number five, regulating the commission's "cooperation with judicial institutions". This article suggest that the "final report will not identify individuals who committed crimes".

The naming of perpetrators is often considered one of the most powerful instruments in the hands of a truth commission. It allows for full disclosure and pins individual responsibility on those who committed crimes, diminishing the possibility of a whole nation or group being blamed.

Truth commissions in Argentina, El Salvador and South Africa all were empowered to name individual perpetrators. In its final report, the El Salvador commission explicitly said it had resisted pressure not to conceal names. "The whole truth cannot be told without naming names," it said, before going on to conclude that, "Not to name names would be to reinforce the very impunity which the parties instructed the Commission to put an end to."
However, Bosnia's draft law in this section suggests that "statements given to the commission by individuals will not be made available to the ICTY or state, entity, cantonal or district courts on the territory of Bosnia and Herzegovina without prior consent of the said individual".

Experts in international criminal law and post-conflict countries told Balkan Insight that this diminishes the whole purpose of the truth commission.
As an addendum to this part of the draft law, the working group raised the possibility that the commission should send to the courts only "that information which presents liberating evidence for a person who is being prosecuted".

One international community member in Bosnia commented that this might mean that "the commission will give evidence to defence teams but not to prosecutors." He added, "That is ridiculous."


After the furore over Mile Mutic, victims' groups and other organisations demanded to know on whose initiative the working group had been formed. While some of the media said USIP was the driving force, others said the momentum came from the Bosnian government.

Balkan Insight has also been given conflicting answers.

The version given by the working group themselves is that the Bosnian parliament initiated the formation of the group and asked the parties to nominate representatives to it. "It was a local initiative of the leadership of parliament," Besima Boric, the SDP member of the group told Balkan Insight.
"They sent a letter to all the political parties telling them that work would start on drafting a law on the truth commission and asking them to send representatives," she added.

Boric told Balkan Insight that the group was formed last November and met twice a month. "Gordon Bacon and Neil Kritz attend meetings as consultants," she added. "The leadership of the assembly must have invited them.”

But another member of the working group, Remzija Kadric, of the SBiH, gave a different version of events. "This is not a local initiative," he told Balkan Insight. "It was pushed by international organisations, but eight political parties accepted it."

Some representatives of civil society groups and the media said the Dayton Project was the group most responsible. But Maja Marjanovic, project officer with the Dayton Project, told Balkan Insight that the NGO acted only "as a kind of secretariat that supports dialogue. We give logistical help for the work on the draft of the law on the truth commission."

The Dayton Project was set up a year ago with the support of USIP "to provide a voice for civil society… and help create a stable Bosnia and Herzegovina", it says.

The organisation is working on two projects – each addressing key issues stemming from the war. One is constitutional reforms and the other is the truth commission, or Confidence Building Commission, as Dayton Project documents call it.

The NGO's website says it will "assess if there is a need and readiness for a Confidence Building Commission which would deal with the events that took place during the war in BiH [Bosnia and Herzegovina]."

It goes on, "The Dayton Project and the partners will search for an authentic Commission model for Bosnia and Herzegovina."

The existence of the working group first became public in January but it was not until February that significant public discussion on the issue took place.
Judging by reactions in the media, most people were angered by the suddenness with which the working group was established without apparent consultations. Invariably, they raised the question of who set up the whole process.

"The whole approach is a catastrophe, as is the way in which the discussions have been held," Mirsad Tokaca, of the RDC, told Balkan Insight.

"Nobody knows who initiated the formation of the working group or whose initiative it is. It seems like a semi-secret operation," he added.

Amira Krehic, of the Centre for Free Access to Information, took the same line. "We don't know who started this group nor what it is really going to do," she said.

Krehic said a member of a working group had shown her the letter from the parliament in which it asked the parties to name their representatives to the working group. "But in the parliament they told us they did not form this group and told us to ask… the Dayton Project. Then Dayton Project told us to ask parliament," Krehic told the media.

Some members of the international community who have closely follow the process told Balkan Insight that the working group was indeed set up on the initiative of USIP.

"They had discussions with parliamentary groups last year and the groups gave their endorsement to the process," one source said.

But Neil Kritz, director of Rule of Law programme for USIP, told Balkan Insight that he only got involved after being invited to do so by Bosnia’s minister of human rights, Mirsad Kebo.

“The idea came from parliament speakers, all three,” Kritz told Balkan Insight. “It is their idea to establish a working group to work on a draft law. I was invited as a consultant and an adviser.”

Kritz has extensive experience with truth commissions in other countries, as well as with transitional justice and war crimes issues across the world.

“I have been impressed by some of the discussion inside of that working group,” he said, pointing to a determination amongst its members to maintain contacts with the civil sector and with the Bosnian public in general.


When the extent of the work done so far became public, representatives of victims and citizens’ associations expressed dismay at not having been consulted.

"A commission or initiative which has been made without the involvement of the victims is not welcome," said Milijana Bojic, of the Association of Families of the Missing and Imprisoned of the Republika Srpska.

Murat Tahirovic, of the Bosnia and Herzegovina Association of Camp Inmates, agreed. "Ten years after the end of the war some group arrives with a suggestion to find the truth about what happened …during the war here," he said.

"At the same time, the non-governmental sector and the people in whose interest this is apparently being done do not know anything about it," Tahirovic added.

"The process should be from the bottom up," Tokaca said. "The process needs to be open to citizens and cannot work as some secret society. I am sceptical that this initiative can succeed."

The Association of Women of Prijedor was of the same mind. "The truth cannot be established in secret meetings and through excluding the public," it said in a press release.

Women Victims of War, which unites female victims of wartime rape and other abuses, was also dissatisfied, as was the Women of Srebrenica organisation, which said it was explicitly against a commission being formed without the involvement of victims.

However, Boric denied that a working group made up of politicians was doomed to failure. "All laws have to go through parliament and if politicians do not contribute and … commit themselves, the law will not be accepted," she told Balkan Insight.

"This is why our working group… is the best option," she added. "They can make sure the law is adopted by parliament."

The Dayton Project also feels the discussion has been taken out of context and that civil society was involved more than some groups are now claiming.

"We are present as a civil society organisation and are coordinating a dialogue with other organisations," Marjanovic told Balkan Insight.

Marjanovic said the Dayton Project organised three meetings to discuss the subject in Banja Luka in January, in Mostar in February and in Sarajevo in March. Between ten and 18 representatives of civil society groups attended each meeting, she said, adding, "They were mainly organisations representing victims of war and some other citizens’ associations.”

"The reception varied," she went on. "Some supported the work of the commission and the start of the working group. Others were explicitly against…[and] some wanted the commission but thought this was the wrong approach."

But Tokaca insists three meetings were not enough. "They cannot be viewed as meetings at which civil society representatives were involved," he said. "The media need to also be involved."

Members of the international community have also taken different stands, though all agreed that a truth commission needed to be a local initiative and include all segments of society.

"This must be a Bosnian project," Norway's ambassador to Bosnia, Henrik Ofstad, told Balkan Insight. "When it comes to truth commissions and justice initiatives, internationals should keep a low profile."

"This is your truth and your reconciliations, which means you should take the initiative," he added.

"You suffered [in Bosnia] because this was not done after the Second World War, so do not fail to do it again."

"Is it the right time? It is up to the Bosnians to decide,” he said. “The fact that [Serbian leader Slobodan] Milosevic died is an argument in favour of not losing any more time. You have to look for the truth while the people are still alive."

Porter, of the ICMP, agreed, “The decision on whether a truth commission per se should be created and what mandate it should have rests entirely with the citizens of this country."

Didier Chassot, charge de affairs of the Swiss embassy in Sarajevo, told Balkan Insight that there is a real need to promote dialogue about the truth.

“We are at the phase were we need to sit at a table and establish a solution which works for everyone,” he said. “There is no one size fits all. That is why all stakeholders must be involved”

But he warned that the commission can not be allowed to get into competition with Bosnia’s existing judicial approach to war crimes.

“Some have tried to frame the debate on these terms. That is wrong. It has to be a multi-track approach,” he said.


The question of whether Bosnia and Herzegovina wants or needs a truth commission remains unanswered.

Slavisa Jovicic of the Republika Srpska Camp Inmates Association, is in favour. "The commission cannot bring about reconciliation, but it can establish the truth," he said.

"The commission must include victims' representatives of all nationalities. We are not seeking a balance in quantity of crime, but justice. The commission must have a mandate to demand all the data it needs - no more hiding them in desk drawers," he added.

"I want everything to be explained, and individuals to be brought to account," Jovicic concluded.

However, the commission would not in fact have a true mandate to bring individuals to account, as this is the task of the ICTY, the War Crimes Chamber in Sarajevo and other lower courts in the country.

Moreover, Murat Tahirovic, also of the Republika Srpska Association of Camp Inmates, says it might have been be more useful to give the money assigned for the commission to the courts to investigate and try war criminals and in this way contribute to the truth.

"Money is constantly being syringed into commissions while our witnesses do not even get minimal 'per diems' for testifying," he said. "This commission is being formed so that someone can profit from our misery."

"We know a lot can be earned from this issue," agreed Kada Hotic, of the Association of Mothers from the enclaves of Srebrenica and Zepa. "If this is someone's aim, they should be ashamed."

"There are state institutions in place, such as the State Court and prosecutor's office which should deal with these questions," said Milijana Bojic, of the Association of Missing and Imprisoned of the Republika Srpska.
But Boric disagrees. "We need a commission because to continue living with three or five truths is a catastrophe," she told Balkan Insight.
"There are masses of people who would like to say what happened to them, I am one myself. But they will never have a chance to be witnesses in a trial and for their story to see the daylight," Boric said.

"The courts are very important part of that story and they offer a path to the truth but that is all too slow," she added.

Ramzija Kadric, her colleague in the working group, is more mixed in her view.
"I am both for and against its formation," he said. "We need a commission [only] if it will discover the causes, aims and results of the war in Bosnia. If the commissions fails to find this, perhaps it will have shown the time was not right," he told Balkan Insight.

Dr Erna Paris, the author of the book "Long Shadows: Truth Lies and History", is also nuanced in her view. "Truth commissions can be useful…but the population has to be ready," she said. "I am not sure whether that is the case yet in Bosnia."

"One day you will all have to reintegrate and live together again, in spite of separate 'entities' you occupy the same geographical space. This is why a truth commission will be a useful tool, even if it is still a bit soon," Paris added.

The USIP's Kritz agrees that a truth commission could help resolve the question of conflicting histories regarding the war in Bosnia.

“The question should be answered only by people from Bosnia and Herzegovina. Not by me, or any other internationals, Not by high commissioners, not by USIP or any other organisation or institution,” he told Balkan Insight.
Marjanovic of the Dayton Project is careful to point out that that nothing has yet been agreed.

"This is only the first phase of the project. We will have further consultations," she said. "We want to find out if it is at all needed for this country, and only then will we finalise the draft law."


Those involved in the working group are careful to remind critics that the law in question is only a draft and will not be presented to parliament in its current form.

"We are still far from the parliamentary procedure, so there is still space to contribute to the drafting of the commission, its composition and mandate," Marjanovic said.

"We expect the draft at the beginning of April. Then we will ask interested parties to comment," she added.

But when Marjanovic was asked exactly how ordinary people and organisations could get involved in this next phase of the project, she did not provide a clear answer.

"I cannot tell you precisely," she said. "In two or three weeks we would go for consultations. They could last two or three months, perhaps longer. We will have a working plan for that in two weeks’ time."

The working group has not been given a clear deadline to finish its tasks, either. "There are no deadlines anymore," Boric told Balkan Insight. "We want to finish this draft as soon as possible and send it for public discussion."

"There were some ideas that everything should be finished by the end of March or April but that would be bad," she added. "This is an election year and it would be bad if the parties used this issue for their campaigns. This is an issue to be considered in peace."

She said that only after the October elections, "we will find out everything… and if the time is right for the commission".

Until then, Boric argued, Bosnians should use the time to discuss the options constructively.

"The easiest thing is to say 'We don't need that, we know the truth'," she added.

"You can say that and be a hero for a day. But it takes much more responsibility to lead the dialogue on."

Nerma Jelacic is the director of BIRN Bosnia and Herzegovina. Nidzara Ahmetasevic is an editor for BIRN Bosnia and Herzegovina's internet publication, Justice Report. Balkan Insight is BIRN’s online publication.

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