Overcoming the past through the application of the ECHR?

After every armed conflict which has given rise to a great number of victims and extensive material damage, a central element is the overcoming of events in order to establish permanently peaceful relations. Overcoming the past brings each post-conflict society a difficult task. This applies in particular to Bosnia and Herzegovina for two reasons: on the one hand, the conflict divided the society which, at the end of the conflict, under international pressure and against the will of the majority of its population, following the conclusion of a peace agreement characterised by far-reaching compromises, was forced into coexistence as single state. On the other hand, these peace agreements contain a great many instruments for the restoration of permanent peace, but they do not contain anything suggesting who carried substantial responsibility for the breakout of the conflict and its consequences. Historical truths are necessary in order to overcome events in a well-founded manner, and the painstaking victory over historical imprecision and lies is yet to come.

Experiences in other post-conflict societies show that a recipe for the one and only ideal mechanisms for overcoming the past cannot be patented. Between the general amnesty without any institutional analysis and unconditional criminal prosecution, as two extremes – more or less successfully – mixed solutions have been applied, such as setting up various commissions for the establishment of the truth, partial amnesties and criminal tribunals for the criminal prosecution of persons bearing responsibility. Upon the establishment of the ICTY in The Hague, the path for the overcoming of the wartime consequences in Bosnia and Herzegovina has been paved to a large extent. The role of the ICTY was once again emphasised in Dayton and its position in relation to the signatories of the agreement from Bosnia and Herzegovina was reinforced.⁴⁴⁸ Continuous discussions on the founding of a commission for the establishment of the truth have not yielded any results as yet.⁴⁴⁹ Instead, the international community still had confidence that criminal prosecution would have an appropriate impact: by setting up the War Crimes Section of the Court of Bosnia and Herzegovina, in the spring of 2005, “nationalisation” of this process began. This special chamber, the judicial composition of which is in part international,⁴⁵⁰ upon the closure of the ICTY in 2010, will continue prosecuting war crimes committed during the war for some time to come.⁴⁵¹

Viewed in the context of overcoming the past, the role of the BiH Constitutional Court and the Human Rights Chamber for BiH appears, at first sight, limited, especially if overcoming the past is considered in the classical sense – the ideal overcoming of the injustice done. If one expands this term to the elimination of the actual consequences of the armed conflict, that is to say, restoration and/ or compensation, then, according to the linguistic meaning and interpretation of the General Framework Agreement for Peace in BiH, only, possibly, the Commission for Real Property Claims, established under Annex 7, will have the function and task to reinstate the original condition. Contrary to this, due to the time constraints of competences (ratione temporis) to the violations committed after the entry into force of the Dayton Agreement, the BiH Constitutional Court and the Human Rights Chamber for BiH do not address prima facie the overcoming of the past in the narrow or broad sense.

However, despite the limitations of competences, the practice showed a completely different picture. In the area related to return problems, both courts adopted decisions that may serve as guidance, thereby significantly contributing to the elimination of the consequences of the war. Even more so, the BiH Constitutional Court and the Human Rights Chamber for BiH placed emphasis upon the ideal overcoming of the past in the narrow sense. The basis for this bridge leading up to the pre-Dayton period has two main aspects: first, both courts consider themselves competent to establish violations of human rights which, indeed, started before the date since which the ratione temporis competence has become effective, but they continued even after the mentioned date (establishment of the so-called continued violations of human rights). Second, in relation to such continued violations, the courts – not only in that context though – for the sake of a legal assessment of the facts of the case from the period after the takeover of the competences, used events taking place before the relevant date, and established facts in that sense (the establishment of the truth). Both constitute contributions towards the overcoming of the past. A significant element of this process is the establishment of the truth. If serious violators of human rights and freedoms deny, falsify or mitigate the events that took place, or present them as something harmless, the process of establishing the truth for victims will mean a continuation of suffering. The main task of the commissions for the establishment of the truth, as independent bodies, is precisely to bring to light the truth about disputed events, to establish them for future generations and to make them available to the public at large. Only when that happens, victims will perhaps be able to forget, or even to forgive; perpetrators will have to face the truth; and the entire society will be able to face the challenge and to commence the process of reconciliation based on the facts.

By continuing to establish violations of human rights and freedoms in the post- Dayton period, the BiH Constitutional Court and the Human Rights Chamber for BiH will indirectly offer to victims satisfaction for injustices done to them during the armed conflict. That, indeed, is not a primary objective of the decisions, since the legal assessment of actions and activities undertaken before the date of the takeover of the ratione temporis competences, as a rule, is not made. Nevertheless, this “side effect” of the establishment of continued violations in the pre-Dayton period must not be disregarded. To this end, in addition to the decisions on the so-called “laid-off” employees and the restoration of pre-war property ownership, it is necessary to mention the cases concerning missing persons.⁴⁵²

In the context of overcoming the past, what could be even more significant is the establishment of facts related to the wartime events that would be relevant for the establishment of violations of human rights and freedoms from the period after Dayton. To that end, both the BiH Constitutional Court and the Human Rights Chamber adopted comprehensive conclusions that might serve as contributions to the general establishment of the truth about wartime events. The authority of mixed national and international independent judicial bodies – if you will – gives additional weight to the judicial establishment of the truth in the process of analysing and overcoming the past, due to the non- existence of other domestic instances with similar rights. In relation to this it is necessary, for example, to mention the decisions of the BiH Constitutional Court in Cases Nos. U 5/98 and U 19/01. In the decision adopted in Case No. U 5/98 the BiH Constitutional Court established statistical data related to the distribution of population in Bosnia and Herzegovina before the war and described consequences of the ethnic cleansing policy.⁴⁵³ In the decision in Case No. U 19/01 the Court depicted one of the elements of this policy in the domain of employment.⁴⁵⁴ To that end, in the jurisdiction of the Human Rights Chamber, first and foremost, it is necessary to state the decisions adopted in relation to the destruction of religious facilities⁴⁵⁵ and the fate of the missing persons.⁴⁵⁶ If the truth is to be told, the Human Rights Chamber, for the sake of establishing the facts of the case, also used the relevant judgments of the ICTY. However, by doing so, the Human Rights Chamber gave additional legitimacy and range of impact to the ICTY decisions.⁴⁵⁷ Besides, by its orders the Human Rights Chamber obliged the Republika Srpska to establish the truth, thereby ordering the RS to carry out a “complete, clear, thorough and detailed investigation of events” which led to violations of Articles 3 and 8 of the ECHR (violations of positive obligations resulting from failure to give information as to the fate of the missing persons)⁴⁵⁸ which the Human Rights Chamber established,⁴⁵⁹ and to communicate the results of the investigation to the state and international organisations and institutions. In the decision adopted in the case of Srebrenica, the Human Rights Chamber took into account that in the first report that the Republika Srpska had drafted on Srebrenica, events in and around Srebrenica were portrayed one-sidedly, in a distorted and unimportant way.⁴⁶⁰