Pettigrew: An Indictment of the OHR’s Failures that Undermine Bosnia’s Statehood and Democratic Future

Prof. dr. David Pettigrew:

An Indictment of the OHR’s Failures that Undermine Bosnia’s Statehood and Democratic Future

I am compelled, today, to address the failure of the Office of the High Representative to lay the foundations for transitional justice in Bosnia and Herzegovina (BIH). Such transitional justice foundations would require a commitment to ensuring memorials for the victims, to supporting democracy and the rule of law in BiH through implementation of the decisions of the European Court of Human Rights, and to prosecuting genocide denial and the glorification of war criminals and condemning the goals of the All-Serb Assembly. However, thus far, the Office of the High Representative has failed to take effective action in all these respects and, in this way, has appeased the ethnonationalists and deprived Bosnian and Herzegovinians of any hope for a democratic future as a sovereign state under the rule of law.

In the spring of 2024, the international community celebrated the passage of the United Nations General Assembly (UNGA) adoption of the Resolution designating July 11 as the International Day of Reflection and Commemoration of the 1995 Genocide in Srebrenica. Yet while there was a genuine sense of historic accomplishment, it is deeply troubling that there is still no memorial of any kind at Pilica Cultural Center, where the atrocities that were committed were found to be part of the Srebrenica genocide. The building has been neglected since the day of the executions. The roof is deteriorating and is almost beyond repair. The interior is marred by graffiti, including Chetnik graffiti. The walls are also covered by bullet holes. The metal doors on the southeast corner are also riddled by these bullet holes. It is as though the interior is frozen in time and the murders took place only yesterday. However, there is still to this day no memorial at Pilica. One enters the execution site not through the main entrance but through a hole in the side of the building that is hidden by a tree.

The insult to the victims is compounded by the fact that part of the building is used as a polling station and that there is a memorial for Serb soldiers in front of the building. The bullet holes in the door and walls in Pilica are a stark reminder of the failure of the OHR to make a comprehensive commitment to ensuring the right to memorialization. Other atrocity sites also await justice, including Barutni magacin concentration camp in Kalinovik, or another long-awaited memorial for the murdered children in Prijedor .

While the High Representative has failed to support memorials for the victims in Pilica, Kalinovik, or Prijedor, there is another area of inaction which has long-term egregious consequences: a failure to support democratic constitutional reforms. Such reforms would expedite Bosnia’s accession to the EU. But there has been an inexplicable failure to implement the judgments of the European Court of Human Rights. Even more inexplicable was the High Representative’s direct intervention in an effort to influence the ECHR’s judgment in the Kovačević case.

In the Kovačević case, the Court found that due to the “combination of territorial and ethnic conditions” the complainant could not vote for the candidate of his choice for Presidency of BiH or the House of Peoples of BiH. These restrictions represented “discriminatory treatment contrary to Article 1 of Protocol no. 12”, the Court found that the current electoral system in Bosnia reinforces “ethnic divisions in the country and undermines the democratic system.” The Kovačević case concerns the right to vote as a pillar of democracy.

As Mr. Kovačević asserted in his recent appearance at the European Court of Human Rights in Strasburg, what is at stake is ensuring an active voting right by which one can exercise one’s free will in voting for a candidate in a way that directly affects public policy. As the Kovačević judgment already determined, citizens of BiH do not have such active voting rights because of the restrictions imposed by Article 4.1 and Article 5 of the Constitution of Bosnia and Herzegovina. Voting choices for the Presidency are restricted by one’s ethnicity and by one’s geographic residency.

Active voting is similarly blocked in the case of the BiH House of Peoples. Cantonal assemblies conduct indirect elections for the entity House of Peoples of the Federation of Bosnia and Herzegovina, where delegates are classified into ethnic “Clubs”. Then five representatives from each of those Clubs are appointed to the BiH House of Peoples based on candidate lists offered by political parties. The citizen’s active voting right is neutralized by this appointment process as well as by ethnic and territorial restrictions.

The judgment in the Kovačević case (2023) was consistent with the Court’s previous findings in the sense that it found the Constitution of Bosnia and Herzegovina to be in violation of fundamental human rights outlined by the European Convention on Human Rights. The Constitution of Bosnia and Herzegovina affords the right to run for the highest political office in the country, or to run for election to the House of Peoples, exclusively to members of three so-called constituent peoples’ groups: Bosniaks, Croats and Serbs.

In the case of Sejdić-Finci v. Bosnia and Herzegovina (2009), the Court found that the exclusion of Roma and Jews from standing for elections to those offices is “discriminatory” and constitutes a violation of the European Convention on Human Rights. The Court reasoned that while the concept of “constituent peoples” may have seemed necessary “to end a brutal conflict marked by genocide”, “discrimination based solely on a person's race cannot be objectively justified in today's democratic society”.

Similarly, if one does not declare oneself to be a member of one of the three constituent groups one is ineligible to stand for election to said offices. In the case of Zornić v. Bosnia and Herzegovina (2014), the Court judged that such ineligibility was also discriminatory. The Court insisted that “more than eighteen years after the end of the tragic conflict, there can no longer be any reason to retain the challenged constitutional provisions.” The Court expected democratic arrangements to be made without “further delay”. The Court insisted that every citizen of Bosnia and Herzegovina has the right to run in elections for the Presidency and the House of Peoples without discrimination based on ethnicity.

Given the consistent nature of these judgments, rather than intervening in an effort to challenge the judgment in the Kovačević case, the High Representative should be using BONN Powers to implement the judgments of the ECHR in order to advance the cause of the most basic human rights, democracy, and the rule of law in Bosnia. Failure to implement the judgements of the Court not only delays needed democratic and constitutional reforms but also appeases ethno-nationalist interests and reinforces ethnic divisions; divisions that could well lead to future conflict.

Indeed, the threat of a repetition of conflict looms even more menacingly since the OHR has failed to respond decisively to these nationalist provocations. The glorification of convicted war criminals in Republika Srpska is a cruel provocation. The mural glorifying Ratko Mladic still stands at the entrance to Kalinovik in violation of Bosnia’s Criminal Code. Other provocations include the denial of genocide and threats of secession. The flag of Herceg Bosna flies throughout the territory of the so-called Herceg Bosnia as a provocation and in official locations in violation of a judgment of the Constitutional Court of Bosnia and Herzegovina.

Following the adoption of the UNGA Resolution designating July 11 as the International Day of Reflection and Commemoration of the 1995 Genocide in Srebrenica, Republika Srpska and Serbia responded with the “Declaration of the All-Serb Assembly.” The All-Serb Assembly Declaration represents a threat to regional peace. The document declares exclusive ethno-territoriality for Serbs that is analogous to the pathological plan for “Greater Serbia” in the 1990s. The document alleges persecution of Serbs similar to the SANU memorandum and proposes to respond with a cultural, economic, and political separatism.

The Declaration emphasizes the separate integrity of the entity of Republika Srpska and supports the continuation of the celebration of Republika Srpska Day January 9, which has been judged to be unconstitutional. The declaration opposes NATO membership, denies the Srebrenica genocide, and calls for yet another revisionist “study” regarding “events in Srebrenica 92-95.

Republika Srpska had already established a so-called “Independent International Commission Investigating Suffering of All Peoples in the Srebrenica Region 1992-1995,” which was headed by Gideon Greif. The Commission’s report, not surprisingly, dramatical revised events and denied the genocide.

On the basis of the historical revisionism and genocide denial contained in the Commission’s Report the President of Germany decided to cancel the plan to confer the Order of Merit of the Federal Republic of Germany –the highest civilian honor– on Mr. Greif. The High Representative should also respond decisively to the Declaration of the All-Serb Assembly.

But the lack of action encourages further provocative rhetoric: Serbian Deputy Prime Minister Aleksandar Vulin was in Banja Luka last week promoting the idea of establishing a “Serbian world” based on the declaration of the so-called All-Serb Assembly from June this year. He asserted that the “process of unifying all Serbs has begun and that no one can stop it anymore.” Vulin’s statement reminds us that ultranationalists seek to operationalize the Declaration of the All-Serb Assembly in pursuit of ethnic homogeneity across large areas in the Balkans.

The lack of action on the part of the High Representative in all these respects, has amounted to nothing less than an appeasement of the ethnonationalists, whether Croat or Serb, appeasing territorial goals that motivated the genocidal violence in the 1990s. Ethnonationalists have been emboldened by the inaction of the High Representative. The Declaration of the All-Serb Assembly articulating an attempt to establish an alliance of Serbs that undermines Bosnia’s sovereignty, as well as the stability of the region, is a pertinent example. The manifesto of Croatian Academy of Sciences and Arts that was published in May 2022, also reminded us of the aggressive designs of Croatia on Bosnia and Herzegovina.

In a document that is also hauntingly reminiscent of the “SANU memorandum,” the “HAZU memorandum” called–pertaining to Bosnia–for example, for the “protection of the rights of Croats.” The memorandum specifies a right of return as well as constitutional rights of Croatian people .The memorandum suggests that Bosnian Croats are being persecuted. In response to this alleged persecution, the HAZU memorandum insists on the need to ensure the equality of the Croatian people by establishing a third entity.” If achieved such an entity would further divide and undermine Bosnia’s sovereignty.

Hence, by consistently failing to confront the separatist and territorial designs of the ethnonationalists, the High Representative’s inaction seems to reinforce ethnic divisions and push BiH inexorably toward the kind of partition that was proposed by the Owen-Stoltenberg peace plan of July 1993; a plan that was rejected at the time by President Alija Izetbegovic. Any such conception of a partition of Bosnia needs to be rejected once again because it reinforces the ethnonationalist separatism, threatening a repetition of the atrocities of the 1990s.

These failures by the OHR enumerated in my presentation undermine Bosnia’s sovereignty and betray the possibility or any future for Bosnia’s citizens. It seems that the goal of such a partitioning of Bosnia is the only logical explanation for the High Representative’s inaction in the face of nationalist provocations.

Hence the High Representative must resolve to implement a comprehensive plan for memorialization which includes Pilica Cultural Center, Petkovci Dam, Kravica warehouse, Barutni magacin, Partisan Sports Hall, and elsewhere to ensure a culture of memorialization that will establish the truth for future generations.

Special UN Rapporteur to the UN Human Rights Council in October 2020 emphasized that “Without memory, the rights to truth and justice cannot be fully realized and there can be no guarantees of non-recurrence.” The report insisted that a commitment to memorialization is crucial for promoting the “development of a culture of democracy and respect for human rights.”

The High Representative must implement the EHCR judgements, prevent genocide denial and the glorification of war criminals and no longer appease ethnonationalists who seek to achieve their territorial goals of the 90s and now turn to the Russian Federation for support. The forces of ethno-nationalism threaten a repetition of the atrocities, a repetition of genocide, a threat that must be faced with courage and resolve. The mural of Ratko Mladic at the entrance to Kalinovik must be removed without delay. Republika Srpska Day, which is endorsed by the Declaration of the All-Serb Assembly, must be banned.

By these and other initiatives, the High Representative would finally open the possibility of a democratic future for Bosnia under the rule of law. Such initiatives by the Office of High Representative are necessary because of the governing deadlock resulting from the Dayton constitution. Moreover, it would be his obligation to use his “final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of difficulties by making binding decisions, as he judges necessary,” including interim and other measures, “to ensure implementation of the Peace Agreement throughout. Bosnia and Herzegovina and its Entities, as well as the smooth running of the common institutions”.

With the heightened threat of renewed meddling from the Russian Federation in support of Vulin’s “Serbian World”, a “world” that seeks to undermine regional stability and prevent Bosnia’s Euro-Atlantic integration, there can be no justification for the OHR’s continuing inaction. There can be no compromise when it comes to the commitment to transitional justice initiatives for the sake of a democratic future under the rule of law for Bosnia and Herzegovina.

1 December 2024. KRUG 99, prof. dr. David Pettigrew, CSU Professor of Philosophy and Holocaust and Genocide Studies, Southern Connecticut State University, Member, Steering Committee Yale University Genocide Studies Program 1 December 2024. KRUG 99