Preliminary Observations from the Official Visit to Bosnia and Herzegovina

From 2 to 10 December 2021, I conducted an official visit to Bosnia and Herzegovina. I would like to thank the Government of Bosnia and Herzegovina for extending the invitation to visit the country, as well as for their cooperation during the visit. I would also like to sincerely thank the United Nations in Bosnia and Herzegovina for their support in preparation of and during the visit.

The objective of the visit was to assess the measures adopted by the authorities of Bosnia and Herzegovina in the fields of truth, justice, reparation, memorilization and guarantees of non-recurrence to address the serious violations of human rights and humanitarian law committed during the 1992-1995 armed conflict. It sought to acquire a broad view of the various initiatives taken to identify good practices, gaps and challenges, and to provide recommendations.

The visit provided an opportunity to meet with State and local officials, survivors of atrocity crimes and families of victims, civil society organizations, human rights practitioners, academic experts, lawyers, journalists, as well as representatives from international organizations and the international community. I also had the opportunity to conduct field visits, including sites where atrocity crimes were committed, sites of mass graves, memorials and museums.

During the visit, I met with officials from several ministries and representatives of the judiciary at the State, entity and Brcko District levels. I also met with parliamentarians, municipal authorities in the Federation of Bosnia and Herzegovina and Republika Srpska, as well as the Human Rights Ombudsmen.

I will present a detailed report of my visit to the United Nations Human Rights Council in September 2022.

General remarks

Serious violations of international human rights and humanitarian law were committed during the armed conflict that affected Bosnia and Herzegovina from 1992 to 1995¹ . It is estimated that more than 100,000 people were killed in the conflict, more than two million were displaced, and tens of thousands went missing/disappeared.² The General Framework Agreement for Peace in Bosnia and Herzegovina and its Annexes (Dayton Peace Agreement), signed in November 1995, ended the conflict and established the constitution of Bosnia and Herzegovina and a multi-ethnic and multifaceted governance structure.

In the immediate post–conflict period, the international community supported the Government of Bosnia and Herzegovina to adopt legal and institutional reforms aimed at rebuilding governance and the rule of law and to address the legacy of the conflict through the prosecution of war crimes, the search of missing persons, reparations and property restitution.

Due to the extent and nature of the crimes committed during the conflict, a strong focus was placed on prosecuting and sanctioning war crimes, led by the work of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and capacity building efforts directed at national courts and prosecutorial offices.

Sustained support initially helped progress in these areas, but as international attention stirred away from Bosnia and Herzegovina and the context grew increasingly politicized, the insipient transitional justice process reached an impasse, leaving the grievances of victims almost entirely unaddressed. A national transitional justice strategy was drafted in 2012 following broad consultations and with the support of the international community but it was never adopted. In recent years, the exacerbation of nationalistic discourses, marked by a rise in hate speech, the glorification of war criminals, rhetoric of national/ethnic division, and the denial of the crime of genocide, crimes against humanity and war crimes - including calls for separation by some officials- have led to worrying levels of polarization and a virtual standstill in governance. 

I will share my preliminary observations and recommendations below on the issues of truth, justice, reparation, memory, and guarantees of non-recurrence.

Truth and the fate of missing persons

Official truth initiatives in Bosnia and Herzegovina have predominantly focused on the search for disappeared and missing persons. The armed conflict was characterized by massive disappearances, with an estimated 31,500 missing persons.³ The total number of missing persons remains a controversial subject

With support from international actors, including the International Commission on Missing Persons (ICMP), the International Committee of the Red Cross (ICRC), and the International Residual Mechanism for Criminal Tribunals, Bosnia and Herzegovina adopted an institutional and legal framework for the search of missing persons. The Law on Missing Persons, adopted in 2004, codifies the right to the truth regarding the fate of missing persons and of families to be informed about investigation efforts, and provides for the establishment of the Missing Persons Institute (MPI) of Bosnia and Herzegovina, a Central Records on Missing Persons (CEN), and a Fund for the Families of the Missing. The MPI was established in 2005 with a mandate to search for and identify missing persons across the country and to establish a register of missing and identified persons Albeit delayed, the unified database was completed in 2011, consolidating records from various levels of government and regional offices, as well as data from ICRC and ICMP. These mechanisms aimed at ensuring the integrity of processes and information collected on missing persons and preventing politicized and discriminatory practices.

In 2014, Bosnia and Herzegovina signed a regional cooperation agreement with Serbia, Montenegro and Croatia to facilitate the search of missing persons. Nonetheless, associations of families of disappeared consider that the agreement did not yield the expected outcomes in terms of effective sharing of information across borders.

The focus and efforts placed by Bosnia and Herzegovina and the international community in developing a relevant legal and policy framework and in supporting the search, exhumation and identification of missing persons, alongside the information which stemmed from criminal investigations of the ICTY and domestic courts, has led to discernable progress in this field. Estimates indicate that approximately 75 per cent of missing persons have been accounted for, which places Bosnia and Herzegovina as the post-conflict country with the highest rate of resolved cases. Nevertheless, 7,628 persons remain missing, while their families relentlessly continue the search for them.

Numerous interlocutors and statistical data point to a stall in the search and identification of missing persons in the last few years, prompted by delays in the criminal investigations and prosecution of war crimes, and the insufficient forensic training of staff working at the MPI and prosecutors’ offices. The passage of time has further hindered progress in this field, as information regarding the fate and whereabouts of missing persons becomes less available due to reduced access to direct sources of information and witness testimonies, as well as topographic changes in the sites of potential graves. Some victims with whom I met have alleged delays in the search for missing persons depending on the ethnic background of the victims.

Several interlocutors expressed concern regarding the lack of implementation of vital provisions of the law on missing persons, such as the establishment of a Fund for the Families of the Missing, notwithstanding decisions of the Constitutional Court in this regard. Progress in this field has been reportedly hindered by political disputes and lack of agreement over the proportion of the Fund that each entity would finance.

I have noted a scarcity of other measures in the field of truth-seeking. Despite several attempts, there has been no truth commission in Bosnia and Herzegovina, neither have there been any State/ institutionalized efforts to collect testimonies of victims and ata of all violations suffered by all victims of the conflict, or to ensure the preservation and access of the existing information to current and future generations. Besides the vast amount of information collected in the proceedings conducted at the ICTY, initiatives aimed at collecting victims’ testimonies and registering all violations remain scattered, and mostly been carried out by civil society, with support from international organizations.

I commend the efforts made by Bosnia and Herzegovina to search for the missing persons and the sizable results achieved so far. However, 26 years after the end of the conflict, thousands of victims remain unaccounted for, prolonging the suffering of their relatives.

I call on the Government of Bosnia and Herzegovina to urgently accelerate the search for all remaining missing persons, regardless of the circumstances in which they went missing. Renewed international support for these efforts is also strongly encouraged. I also call on the Government of Bosnia and Herzegovina to support the collection of information on all victims and violations committed during the conflict and the testimonies of victims of the conflict as a matter of urgency. I also urge the adoption of measures to guarantee the preservation of and public access to the documentation collected, as the passage of time will make this essential task impossible. Such a process should include support to existing efforts by civil society. Families of missing persons have been for almost 30 years in a dire situation and need to access their rights as enshrined in the Law on Missing persons. In order to achieve this, the Government must prioritize the establishment of the Fund for Support to the Families of Missing Persons of Bosnia and Herzegovina, and discard any political and other considerations.

Justice

The prosecution and criminal sanctioning of war crimes was prioritized in the aftermath of the conflict. As part of the Completion Strategy for the International Criminal Tribunal for the Former Yugoslavia, a special prosecutor’s office and a special chamber on war crimes were created within the Court of Bosnia and Herzegovina, having jurisdiction to prosecute and try serious crimes of international law. The War Crimes Chamber initially received the cases transferred by the ICTY and all the cases of war crimes which were at that time before local courts. The Court of Bosnia and Herzegovina and the Bosnia and Herzegovina Office of the Prosecutor were initially composed partly of international judges and international prosecutors, which was instrumental in increasing their technical capacities to work on complex cases. The international component was not maintained over time, prompting a marked decrease in the capacities of these institutions, reflected in the slower pace of prosecutions and trials. Members of the judiciary, experts, victims and other stakeholders have underscored the need to restitute this international support,

A Criminal Code of Bosnia and Herzegovina, adopted in 2003, criminalizes crimes against humanity and was subsequently amended to bring the definition of torture and other international crimes in line with international standards, as well as prescribe the autonomous crime of enforced disappearance⁴. New criminal codes were also adopted at the entity and district levels, introducing new international crimes alongside war crimes previously codified by the Criminal Code of the former Yugoslavia. However, I was informed that some courts have continued to apply the Criminal Code of the former Socialist Federal Republic of Yugoslavia, which does not define crimes against humanity, sexual slavery, enforced pregnancy and command responsibility, to crimes committed during the conflict.⁵ The definition of sexual violence as war crime and crimes against humanity was introduced in the Constitution.

In 2008, a National War Crimes Prosecution Strategy was adopted, to reduce the backlog, according to which the more complex cases would be kept under the jurisdiction of the Court of Bosnia and Herzegovina, while less complex cases would be transferred to the jurisdiction of local courts. Many experts and interlocutors expressed concern that the staff in local courts and prosecutor’s offices lack sufficient training and experience in the prosecution of international crimes, and suggested that this be increased. I was informed that training is being provided by international actors, such as the International Residual Mechanism for Criminal Tribunals and the OSCE.

In September 2020, a Revised National War Crimes Strategy was adopted which defines new criteria for selection and prioritization of cases between the State and entities, provides measures to enhance judicial and police capacities to process war crime cases, and updates the measures for protection of witnesses and victims

Cooperation agreements were signed by the Prosecutor’s Office of Bosnia and Herzegovina with its counterparts in Croatia, Serbia and Montenegro. Notwithstanding these positive steps, concern has been expressed, including by the ICTY Prosecutor, about regression and negative trends in judicial cooperation in the region.

A total of 594 war crime proceedings involving 904 defendants have been completed since 2004, according to the OSCE Mission to Bosnia and Herzegovina. However, insufficient funding, poor regional cooperation, lack of personnel, political obstacles, lack of evidence, and the unavailability of witnesses and suspects have led to a significant backlog in the prosecution and trying of war crimes. At the end of 2020, a backlog of 571 unresolved cases involving 4,498 suspects remained. In 2020, only 18 proceedings against 31 defendants charged with war crimes were completed by the judiciary, as opposed to 51 proceedings in 2014. In addition, only 18 indictments were made in 2020 as opposed to 96 in 2014.⁶

Some interlocutors have noted disparities in the pace and quality of criminal prosecutions and trials depending on the jurisdiction where the proceedings are being carried out. Others noted a pattern of selectivity of cases depending on the ethnic origin of the victim or the perpetrator.

While I note the progress made in prosecuting and sanctioning war crimes, I call on the relevant authorities to accelerate the processing of the numerous pending cases, and to ensure that all war crimes, regardless the circumstances in which they were carried out or the place where they are being tried, are dully investigated, prosecuted and sanctioned, in compliance with Bosnia and Herzegovina’s international obligations to promptly and effectively investigate serious violations of human rights and humanitarian law. I also call on the authorities to adopt measures aimed at harmonizing the legislation and jurisprudence on war crimes throughout the country, in compliance with international standards. I further encourage the authorities to strengthen the capacities of cantonal and districts courts to prosecute and try war crimes, and to ensure that a system of free legal aid, a victims and witnesses protection programme, and psycho-sociological support is fully operational throughout the country and available to all victims, including victims of wartime sexual violence.

Reparations

Some civilian victims of war receive benefits in the form of monthly allowances pursuant to entity and cantonal level social protection and disability schemes. However, many civilian victims reportedly do not meet the legal requirements for acquiring victim status and consequently cannot receive these benefits. Legal discrepancies and restrictive requirements at the entity level, have created legal uncertainty and resulted in the dismissal by domestic courts of many compensation claims from civilian victims of torture. In Republika Srpska, the Law on the Protection of Civilian War Victims, which regulates the conditions for acquiring the status of civilian victim, provides short deadlines for the submission of applications and requires for victims to reside in Republika Srpska. Reports indicate that few Bosnian Croats and Bosniaks have obtained this status. Similarly restrictive is the framework of the Federation of Bosnia and Herzegovina, according to which victims must reside in the entity and have a 60% disability to acquire the status of civilian victim. Serb victims have reported difficulties in accessing social benefits in the Federation, as a result of the restrictive requirements. In addition, disparity exists regarding the sum of benefits received by victims based on place of residence. Moreover, personal disability benefits received by civilian victims of war remain significantly lower than those received by war veterans.

Bosnia and Herzegovina lacks a national legal framework to ensure effective access to full reparation to all civilian victims of war crimes. While several legislative attempts to address this issue have been made, they have been unsuccessful due to the lack of political agreement between authorities at different levels. Such was the case of the draft Transitional Justice Strategy, prepared in 2012, the State level draft Law on the Rights of Victims of Torture, the draft Law on the Protection of Victims of Torture and Civil Victims of War and the Programme for Survivors of Conflict-related Sexual Violence, all of which are pending approval.

As a result of these legal and policy gaps, victims of war crimes go through complex and lengthy proceedings at the entity levels to obtain some form of reparation. Victims have been forced to undergo long criminal proceedings to establish their status as victims. Moreover, once the criminal proceedings are finished, they are required to claim compensation in civil proceedings, where protection mechanisms are not available, and has led to instances of revelation of the identity of victims. These procedures clearly have the effect of deterring the submission of demands and delaying the process for the award of benefits. As a result of these procedures, victims spend years in legal proceedings, in many cases to no avail.

I would like to recall that the object of reparation schemes should not be to challenge the veracity of the claims made by the victims and the evidence they have provided, nor to expect from them to satisfy the burden of proof. Rather, the State should assume in good faith the statement of the victim and place the burden of proving the damage on State institutions rather than on victims, or apply lower standards of evidence.⁷

Evermore concerning is the fact that the courts in the entities have decided to apply statute of limitations to compensation claims for non-material damage, thus further limiting the ability of victims to effectively claim compensation. This is contrary to international standards according to which war crimes and crimes against humanity are not subject to statutes of limitations, as established in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.⁸ Regardless of this, the Constitutional Court has recently established that claims for pecuniary damages that are a result of war crimes are subject to statutes of limitations if they are directed against the State or the Entities.

I express serious concern about the alarming number of cases in which victims have been forced to pay high court fees related to the civil proceedings for compensation which they lost, as a result of the unjust procedures established for the claim of benefits and the concomitant application of statues of limitations. Reportedly, in some cases the fees amounted to BAM 6 000 to 10 000 (€ 3000 – 5000) and some victims have had their property seized as form of  payment.⁹ This practice is as unethical as it is unacceptable, and runs contrary to the international standards on the protection of victims of serious violations of human rights and humanitarian law.

Access to reparation for victims of conflict related sexual violence is also unsatisfactory, as orders to pay compensation to the victims are not enforced due to lack of funds of the perpetrators or of alternative funding mechanisms - such as a victims’ compensation fund-; witness protection systems in civil proceedings are inadequate or inexistent; legal and psychosocial support to victims are weak, the legislation and policies of reparations for victims of wartime sexual violence is not harmonized; and there is continued stigmatisation and economic marginalisation of victims.

I call on the Government of Bosnia and Herzegovina to adopt without further delay a comprehensive legal framework, and concomitant national programme, to provide full, prompt and effective reparation to all victims of war crimes, including sexual violence, regardless of their place of residence, which should encompass measures of compensation, rehabilitation, restitution and satisfaction. The framework should clearly define criteria for obtaining the status of victims of war crimes and set out the specific rights and entitlements guaranteed to victims throughout the country.

I further call on the authorities to halt the application of status of limitations to reparations for war crimes and the collection of fees from victims whose claims have been unsuccessful. Finally, I call on the government to adopt the necessary measures to protect and support victims participating in judicial proceedings through the provision of free legal aid, and psychosocial and health services.

Memorialization

Memorialization processes in Bosnia and Herzegovina mainly focus on honoring war veterans and veteran victims, or on commemorating victims of majority national groups within the entities. Monuments have been erected and plaques installed in different parts of the country commemorating them. I have noticed with great concern the scarcity of memorialization efforts, memorials, plaques or ceremonies remembering all violations committed during the conflict and commemorating all victims. Very few memorials have been established to preserve the memory of the civilian victims of the conflict regardless of their affiliation, such as the monument to children lost to the conflict in Sarajevo, or to honor victims of minority groups within a particular city entity, or municipality. Moreover, I have received numerous reports that civil society efforts to memorialize victims belonging to national/ethnic minorities at the entity level, particularly in Republika Srpska, have been hampered by administrative requirements that delay or block the process for years. As a result, families of victims and survivors do not have the possibility to remembrance of the harm suffered and to honor the victims. I have seen with dismay commemorative plaques lying on dusty floor, rather than respectfully placed on the walls of the camps. I have similarly witnessed, how sites of former concentration camps reconstructed with the support of the international community do not have commemorative plaques honoring the victims, despite repetitive demands from survivors. I cannot overemphasize that memorialization of the harm suffered by victims is vital to reconciliation, to guarantee non-recurrence of past violations and to restore the dignity of victims. Moreover, it is a duty of the State of Bosnia Herzegovina under international human rights law. The relevant authorities at the State, entities and municipality levels must adopt without delay the necessary measures to adequately memorialize the violations suffered by all victims of the conflict at their own initiative, as well as by supporting the efforts of relatives of victims and survivors. This should be done in full consultation and with the effective participation of victims in the design and implementation of the memorialization initiatives. I would also like to encourage the international community to provide much needed support to these initiatives.

I would like to recall that memorialization efforts must aim at establishing the conditions for a debate within society about the causes, direct and indirect responsibilities, and consequences of past crimes and violence, thus easing existing tensions and allowing society to live more peacefully with the legacy of past divisions. Without falling into a dangerous relativism or creating a homogeneous thought, different narratives and interpretations of past violence can coexist in a democratic society; in this way, they cooperate with the dynamics of social reconstruction. However, this process should never result in denial or relativization of the violations committed.¹⁰

Guarantees of Non-Recurrence

Security sector, judicial and institutional reforms were adopted in Bosnia and Herzegovina following the implementation of the Dayton Peace Agreement, including the reform of internal regulations, the vetting of officials, and the establishment of civilian oversight, as were the reforms to the legislative and institutional framework that aim at promoting of the rule of law and democracy. While these measures were not specifically adopted with a transitional justice focus, they were carried out with support and supervision from the international community which focused greatly in strengthening the rule of law and governance.

Despite these efforts, in some cases, suspected perpetrators and persons investigated for having committed war crimes have continued to hold office, including high-ranking positions, at the State, entities, district or cantonal levels, and in several cases in the municipalities where victims and their families live. This constitutes a permanent threat and intimidation for the victims. Measures of vetting should be improved and systematized across the country to ensure that all public institutions do not employ these individuals.

Regarding the measures adopted in the field of education to address the legacy of the conflict, I have noted with concern the uniformity of existing narratives about the conflict and about its victims within most mono-ethnic schools. School curricula and the teaching of history particularly at the entity levels do not seem to include different narratives about the war or allow all voices of victimhood to take center stage. I would like to recall that for a process of transition and reconciliation to be effective, the acknowledgement of the suffering and dignity of all victims is vital, as is the transmission of their stories to current and future generations, not only through school curricula and text books, but also through cultural activities and the media. The legacy of past violations in all its complexities must be adequately and comprehensively addressed to assist in the process of social reconciliation, placing the victims at the center of this process. Many interlocutors underscored that the education system in the country, which segregates students based on the national/ethnic background or imposes the curricula and cultural practices of the majority national/ethnic group to all children, promotes a dynamic of communal division from early on in children’s lives, hampering future changes at effective and sustainable reconciliation. In this regard, I wish to recall the recommendations made by the Special Rapporteur in the field of cultural rights urging the Government to reform the education system to end segregation according to national/ethnic affiliation of students, to implement a common core curriculum and to increase the number of subjects and cultural activities in which children learn together, to ensure the right of all students to learn in their mother tongue and to have access to their cultural heritage, to avoid manipulation to indoctrinate students into believing in mutually exclusive and antagonistic identities, and to ensure a comparative and multi-perspective approach in history teaching¹¹ .

I express alarm at the numerous and concerning instances of denial of genocide, war crimes, and crimes against humanity committed during the conflict; the rejection, undermining or relativization of the judgements of the International Criminal Tribunal for the Former Yugoslavia and of local courts in war crime cases; and the glorification, in various forms, of convicted war criminals. Most of these actions have not been met with official condemnation, which transmits a message to the general public that they are tolerable. Moreover, some elected and other public officials, including at the highest levels have been disseminating such messages. Almost every interlocutor with whom I met expressed alarm in connection to such patterns and stressed their disappointment at the insufficient condemnation domestically and internationally of such abhorrent acts, noting the worrying message this sends to those carrying out such acts and their constituencies.

Interlocutors expressed further concern about the exacerbation of nationalistic rhetoric and divisive political discourses for political profit by a number of leaders, and the impact that this has on peaceful social coexistence, as it generates fear and mistrust amongst members of different communities.

I note the introduction by the former High Representative for Bosnia and Herzegovina of an amendment to the national criminal code to outlaw and punish with sentences from 6 months to 5 years the public denial, condoning, trivialization or justification of genocide, crimes against humanity or war crimes when this is done in a way that is “likely to incite to violence or hatred”, and the impact this has had in reducing instances of denial of genocide and glorification of convicted war criminals. I urge the relevant authorities at State, entity and municipality levels to monitor any such instances in their jurisdiction and to adopt the necessary measures to publicly condemn, investigate and, where necessary, prosecute and sanction such episodes in compliance with the duties of the State of Bosnia and Herzegovina, and all its institutions, under international human rights law, in particular articles 19 and 20 of the International Covenant on Civil and Political Rights.

Final Observation

Since the end of the conflict, Bosnia and Herzegovina undertook efforts, with strong support from the international community, to rebuild its institutions and address certain aspects of the legacy of the conflict, in particular the prosecution of war crimes and the search for missing persons, albeit with a distinct decrease in pace in the last decade. However, divisive political agendas and nationalistic rhetoric driven by political elites have brought progress to a halt and has made confrontation and political bargaining a leading feature of governance at the State, entity and municipal levels. While politics conducted in these terms seem to permeate many decisions and negotiations domestically and internationally, it bears recalling to all relevant interlocutors that the human rights obligations of the State of Bosnia and Herzegovina are non-negotiable, as they are set in the treaties to which the country is a party. In this regard, I would like to note with concern the insufficient progress made in the fulfillment of the country’s human rights obligations regarding the full and effective reparation to all victims of the conflict without discrimination (including the provision of compensation, rehabilitation, satisfaction and restitution); the memorialization of all human rights violations and the harm suffered by all victims of the conflict; the collection, preservation and transmission of records of past violations to present and future generations; the realization of human rights of  returnees; the adoption of effective guarantees of non-recurrence particularly in the fields of education, culture, protection of human rights and effective vetting of public institutions; and the ineffective action in the face of  hate speech, the denial of genocide, crimes against humanity and war crimes, and the glorification of war criminals.

I wish to recall that for a transitional justice process and reconciliation to be effective, it is important to adopt a comprehensive approach in the fields of truth, justice, reparation, memory and guarantees of non-recurrence. Uneven progress in these areas run the risk of invalidating or reversing the progress made and hinder reconciliation. I call on the Government of Bosnia and Herzegovina to renew its efforts to advance a comprehensive transitional justice agenda with a view to achieving effective reconciliation, sustaining peace and preventing the recurrence of past atrocities. Such an agenda should be anchored in the country’s international obligations and place the rights of all victims at the centre of legislative and policy decisions. I wish to call on the international community to resolutely support Bosnia and Herzegovina in this vital endeavor.

To conclude, I would like to express my solidarity to all the victims with whom I met and, through them, to all of the victims of disappearances, killings, torture, genocide, ethnic cleansing and displacement of the conflict.

Notes: