“Republika Srpska and the Failure of Restorative Justice”
KRUG 99

Krah pravosuđa i restorativne pravde za žrtve torture
1 July, 2018, Sarajevo
David Pettigrew, Ph.D., Professor of Philosophy and Holocaust and Genocide Studies
Southern Connecticut State University,  Member of the Steering Committee, Yale University Genocide Studies Program

I

The Proposed Law in Republika Srpska concerning victims of “war torture” is a cruel act of deception.[1]The ProposedLaw is discriminatory, since, to be eligible for compensation, a victim has to establish residencein Republika Srpska for a period of three years prior to making application.[2]Most victims of the horrific crimes that took place in Republika Srpska are not inclined to live there, and should not be expected to do so. Victims are either internally displaced in the Federation, or are living abroad in Australia, Canada, the United States, or in some other country. Further, this residency requirement is the height of hypocrisy, given the fact that there is an orchestrated effort in Republika Srpska designed to prevent the return of non-Serbs who were forcibly expelled from their homes (1992-1995). I am referring, in part, to the psychological intimidation and collective re-traumatization of the survivorsthat is carried out through genocide denial and the glorification of convicted war criminals. President Dodik, for example, proclaimed last year that Muslims were reoccupying the Podrinje, andRepublika Srpska imposed a “national park law” on the Podrinje as a new method of surveillance and exclusion.[3]It is therefore unreasonable for Republika Srpska to require refugee return and residency in order to be eligible for compensation, health benefits, or psychological counseling. Protection for victims of torture should be extended to all victims regardless of their location, wherever they are anywhere in the world, having been forcibly expelled from their homes.

            Mirsad Causevic, who lives in Chicago, writes, in his recent book, Death in the White House, of being tortured in Omarska: “I watched my friend’s skull cave in from a heavy blow, as his blood spattered everywhere. …I felt a sharp blow to my left kidney…I looked around and saw my attacker wearing the uniform of a policeman… He hit me again. And again, until I could not take it anymore and collapsed to my knees with a cry of pain…he moved on to my head. I felt warmth as blood spurted from my face…I passed out”(93-94, my emphasis). This was the first of endless beatings he experienced in Omarska: “Everyday brought new indignities, new cruelties, as dozens would perish to satisfy their bloodlust” (101).Mirsad witnessed others being beaten to death. In another recent book, Eyewitness: My Journey to the Hague, Isak Gaši, who lives in Washington State, writes of his torture in Luka concentration camp in Brčko. After his interrogation in Luka, he was taken to a warehouse room full of prisoners. Soon three armed men surrounded him. When he tried to back away one of the guards hit him in the back with the butt of a rifle. Isak resigned himself to a beating. When he was knocked to the floor, “all three men set upon me with their boots, kicking me repeatedly in the head and abdomen. I tried to cover up but was eventually kicked unconscious” (72).Isak witnessed others being tortured and murdered and was himself threatened with dismemberment at knifepoint (92). At one point he was taken on a work detail to throw the bodies of murdered Bosniaks into the river (98), which was its own form of torture. Isak survived to testify at the Hague in the trials of Miloševic, Karadžić, Šešelj and Tadić among others. Will it be possible for Mirsad Čaušević, who lives in Illinois, or Isak Gaši, who lives in Washington State, to be certified as victims of torture and to receive the compensation they deserve? This is not yet clear under the Proposed Law because of its discriminatory residency restrictions.

II

            Further, while the survivors of torture in the concentration campsdeserve compensation, the scope of the definition of “torture”seems to be arbitrarily limited to the camps, as Article 4 of the Proposed Law indicates: “According to the form of torture, the victim of torture in the sense of this law is:1) a person who has been unlawfully deprived of liberty, has been imprisoned or has been denied freedom of movement in any indoor or outdoor space that served for that purpose – camp, prison, collection center, house arrest and other places of imprisonment or forcible labor (hereinafter: prisoner)”[4]

            However, in addition to those who were tortured in the camps or detention centers, the protection of victims should be extended to all those who suffered atrocities as part of international aggression perpetrated by Serbia or Croatia, in Bosnia and Herzegovina, from 1992 to1995, including those trapped in besieged cities and towns, and in U.N. designated “safe areas.”When the civilians of Sarajevo suffered sniping, shelling, and the deprivation of food, was this not a form of torture? When children risked injury or death when they left their apartments, or when they went to the playground, was this imminent threat of injury not a form of torture? Indeed, the founding President of Republika Srpska, Radovan Karadžić, was found guilty of unlawful attacks on civilians and terror as crimes against humanity for crimes committed in Sarajevo.[5]Civilians in the town of Srebrenica,for example, initially under siege from 1992 to 1993, also suffered shelling, bombing, starvation, and death. Hasan Nuhanović has referred to this as the “first phase” of the Srebrenica genocide,which was to culminate in July 1995.[6]

            Further, was the Srebrenica enclave under siege not itself a kind of”concentration camp,” in the sense that the civilians were prisoners who were “deprived of liberty,” and were “denied freedom of movement”? Even when declared a “safe area,” the encirclementremained in place. As events in July 1995 made clear, the “safe areas,”as in the case of the concentration camps, were nothing less than dehumanizing zones of exclusion, in which those trapped were “excluded” from and denied juridical rights and protection that would have otherwise pertained as part of a socio-political culture under the rule of law. In these “zones of exclusion,” whether “camps” or “safe areas,”the dehumanized prisoners could be terrorizedor murdered with impunity.In Tuzla, for example, which was one of the so-called “safe areas,” on May 25, 1995, the Army of Republika Srpska shelled the Kapija area, an area where young people had gathered.Seventy-one were killed and more than 150 were wounded. Novak Đukić a commander in the Army of Republika Srpska, was found to have ordered the attack and was found guilty of war crimes against civilians and sentenced to 25 years. In its ruling, the Court of Bosnia and Herzegovina stated that “Any attack on Tuzla, a UN safe zone, represented an attack on civilians.”[7]Đukić, however, was released on appeal in January 2014, and subsequently fled to Serbia with impunity.[8]I would argue that those trapped in “safe areas” were innocent victims of torture who should also be eligible for compensation. Perhaps it was this awareness that led President Dodik to deny that the siege of Sarajevo or that the Srebrenica genocide had even happened.[9]Perhaps he was trying to remove the survivors of the “safe areas” from any possible consideration for compensation.
            In these sensesaddressed thus far, the law in Republika Srpska is discriminatory and limited in a sense that it is denied to those who do not live in Republika Srpskaand does not reflect the full scope of the atrocities suffered by civilians.”Protection” and compensation should be extended to all victims of torture wherever they may happen to live, and the definition of torture should be expanded to include those who suffered the tortureof agenocidal aggression on civilians.

            Another concern regarding the Proposed Law involves the application process required for the status of a victim to be “certified”. It seems unacceptable that a victim should have to justify his or her status as a victim to a panel in Republika Srpska, an entity that was created by the genocidal atrocities. Great care needs to be taken such that victims who apply for compensation would not suffer a re-traumatization.It must be emphasized that victims suffer psychological pain and stress when they remember and re-tell their stories. A lawyer who represents victims in the process of their reparations claims stated that “These victims are generally very vulnerable, and they are now going through re-traumatization that will be difficult to remedy later.”[10]A survivor of two Serb-run detention camps who was ordered by a Serb court to pay more than 10,000 marks in fines stated, “One gets detained, beaten up, survives the torture and then 20 years later, one goes through a new torture. We are paying our dues for staying alive” (Ibid.).Court fees accumulate when claims are delayed or rejected. This stress of re-traumatization accounts for why a number of books about Srebrenica, Omarska and Brčko, including those by Mirsad Čaušević, Isak Gaši, and Dževad Avdić, have only recently appeared. It has taken many years for the survivors to be able to tell their stories. To provide for the genuine protection of the survivors, the eligibility of a victim must be determined with the greatest of care by an independent commission that would operateoutside of the entity of Republika Srpska, given the obvious association of Republika Srpska, its founders, its politicians, its Army, and its Police with war crimes, and given the fact that Milorad Dodik continues to deny the genocide and dehumanize the survivors as a targeted group. It is important that the commission operate outside the entity, because theentity itself, based on its exclusionary ideology and its continuing discriminatory practices,canbe traumatizing, for the victims, in its very operations.[11]
III

The Proposed law for the protection and compensation of victims of torture can be seen, in its discriminatory and limited dimensions, as an insulting and inauthentic effort; a mockery of restorative justice, if not the confirmation of its failure, in Republika Srpska.Restorative justice must involve an effort “to right the wrong” that was committed. The effort must respond to the needs of the victims and also involve assumption of responsibility by the perpetrator.[12]At a minimum, an effort to seek restorative or reparative justice would include a public statement of the acceptance of responsibility, by the leadership of Republika Srpska,for the war crimes committed in its name.[13]The government of Republika Srpska would need to authorize the installation and protection of memorials for the victims in Foča, Prijedor, Višegrad, and elsewhere. A genuine commitment to restorative justice would also includethe removal of memorials glorifying convicted war criminals. The current leadership of Republika Srpska should formally disassociate itself from the founding members of Republika Srpska, almost all of who have been convicted of war crimes, including genocide. In addition, national laws would need to be implemented that would prohibit genocide denial and the glorification of war criminals. Finally, a national commitment would need to be made to offer compensation and support to victims of torture. Given the recent Communiqué of the Steering Board of the Peace Implementation Council, one can conclude that support for victims of war torture is not on the agenda of the international community.[14] But it should be.

            Thediscriminatory and limited nature of the Proposed Lawcries out for a more decisive approach to the failure of restorative justice in Republika Srpska. A genuine effort at reparative justice would need, most importantly,to “right the wrong” of the crimes that were committedby addressing the very cause of the crimes (LBRJ, 27 – 28). Republika Srpska was founded with the intent to create an ethnically homogeneous entity. In the Karadžić verdict, it was determined that he sought”to permanently remove the Bosnian Muslims and Bosnian Croats from Bosnian Serb claimed territory.”[15] This “Bosnian Serb claimed territory” was the entity known today as “Republika Srpska”.  After the commission of war crimes designed to create an ethnically homogeneous entity, the Dayton Peace Accords recognized Republika Srpska as an entity within Bosnia. This recognition was nothing less than a reward for a successful genocide. In other words, the fundamental work at hand is to “right the wrong”of the founding, recognition and legitimization of Republika Srpska by the Dayton Peace Accords. This can only be accomplished through the reunification of Bosnia and Herzegovina as a multicultural, democratic nation.  This should be accomplished through the creation of an international commission with a clear vision for the future of a unified, multicultural Bosnia. However, for this effort to be successful, I do not believe that Serbia or Croatia should be included insuch an international commission. I do not say this simply because both of these nations engaged in international aggression against Bosnia and Herzegovina, in violation of the Paris Peace Pact of 1928 that “outlawed war” and prohibited “states from using war to resolve disputes.”[16]I do not say this simply because the political and military leaders of the respective nations (mostly former) have been convicted of numerous war crimes, including genocide, that were committed in the course of said international aggression against Bosnia and Herzegovina. Rather, I am proposing this exclusion because in the years since Dayton, neither Zagrebnor Belgrade been good partners in the peace. Whether because of the denial of genocide or other war crimes, because of the failure to disassociate themselves from convicted war criminals, or from the resurgence of the nationalist rhetoric and territorial claims of the early nineties, they have not supported nation-building in Bosnia and Herzegovina.Therefore, they should not be included in such an international commission.Only the reunification of Bosnia and Herzegovina would provide the possibility of genuine restorative justice for the victims of the genocide because it would effectively address the cause of the atrocities and the trauma: the founding, recognition, and legitimation of Republika Srpska.

 

 
First Draft of footnotes for presentation

[1] Vlada Republike Srpske Ministravsto Pravda, ZAKON O ZAŠTITI ŽRTAVA RATNE TORTURE, Banja Luka, decembar 2017. godine http://www.rcirz.org/index.php/lat/dokumenti/nacrt-zakona
Narodna Skupština Republike Srpske, “Prijedlog zakona o zaštiti žrtava ratne torture,” May 31,  2018,
http://narodnaskupstinars.net/?q=la/akti/zakoni-u-proceduri/prijedlog-zakona-o-zaštiti-žrtava-ratne-torture

 

[3]“Decree of the Passage of the Law on Drina National Park,” The Official Gazette of Republika Srpska, Banja Luka, No 63, 4 July, 2017. (Translated by Vlatka Mihelić)

[4]Član 4.Prema obliku torture, žrtva torture u smislu ovog zakona je:

1) lice koje je nezakonito bilo lišeno slobode, zatvoreno ili mu je bila ograničena sloboda kretanja u bilo kojem zatvorenom ili otvorenom prostoru koji je sl

užio za tu svrhu – logor, zatvor, sabirni centar, kućni zatvor, te druga mjesta zatvaranja ili prisilnog rada (u daljem tekstu: logoraš)

[5] ICTY verdict (my emphasis)
[6] Presentation for Summer University Srebrenica July 2016

[7] “Bosnian Serb Jailed for Massacre,” BBC News June 12, 2009, http://news.bbc.co.uk/2/hi/europe/8097918.stm

[8]

[9]

[10] Daria Sito-Sucic, “Bosnia war victims despair at court fines over reparations claims,” March 2, 2018, https://www.reuters.com/article/us-bosnia-war-reparations/bosnian-war-victims-despair-at-court-fines-over-reparations-claims-idUSKCN1GE0V9

[11]Patricia Shelly, MSW, Shelley Hitzel, MSW, and Karen Zgoda, MSW, LCSW

“Preventing Retraumatization: A Macro Social Work Approach to Trauma-Informed Practices & Policies,” The New Social Worker, February 8, 2016, http://www.socialworker.com/feature-articles/practice/preventing-retraumatization-a-macro-social-work-approach-to-trauma-informed-practices-policies/

[12]The process would involve a concern for and the empowerment of the victims.Howard Zehr and Ali Gohar, The Little Book of Restorative Justice (New York: Good Books, 2014),19 and 21.

[13] Howard Zehr and Ali Gohar, The Little Book of Restorative Justice (New York: Good Books, 2014),7 and 22.

[14] Office of the High Representative, “Communiqué of the Steering Board of the Peace Implementation Council,” June 6, 2018, http://www.ohr.int/?p=99545

[15]

[16]Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Simon and Schuster, 2017),  xv.

Adil Kulenović