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Bosnian women stage protestBy SAMANTHA LAKIN*

Impunity Watch: Cases of Gender and Post-Conflict Transitional Justice

This is a call to policymakers, who work to formulate policy to prevent the recurrence of genocide. How do we give a voice to survivors? How do we pay appropriate attention to victims of gender-based violence (GBV), as specific crimes, that can be a tool of genocide?  Impunity Watch’s report, “Giving a voice to victims: Towards gender-sensitive processes of TJRNR in Bosnia and Herzegovina, Burundi and Guatemala” attempts to answer these significant questions. The main goal of the report is to provide analysis and recommendations for policymakers to reach gender-sensitive goals in rebuilding plans, to prevent future incidences of genocidal violence.

Impunity Watch, an organization promoting accountability for past international atrocities in violent, conflict-affected countries, released a series of reports on December 18, 2012 about transitional justice and gender. The reports provide an in-depth look at justice, peace, and truth-telling processes in Bosnia-Herzegovina (BiH), Burundi, and Guatemala.

Why a Gendered Analysis?

Gender analysis has become increasingly significant when determining the ways in which conflict and rebuilding processes affect men and women. As notable scholars from The Feinstein International Center at Tufts University have recently reported, separating gender from significant fields, including international development, conflict management, humanitarian response, or policy-making, is neither feasible nor desirable, and will lead to incomplete conclusions about the effects of policymakers’ actions and impact.[i]  The Impunity Watch reports aim to understand how gender, transitional justice, atrocities prevention, and post-conflict policies have been addressed in these three cases, providing both strengths and shortcomings.

This article will address the policies and recommendations (some new, some restated yet important) in the case of Bosnia-Herzegovina, and how the main stakeholders could “do better” to address women’s rights in the aftermath of conflict. In this first article, I will discuss the main findings and challenges in the case of Bosnia-Herzegovina. My next two articles will address the Impunity Watch reports on Burundi and Guatemala.

Gender-Sensitive Processes in Bosnia-Herzegovina

The 94-page report summarizes the main obstacles to promoting gender-sensitive peace, reconciliation, and non-recurrence. Frankly, it is more difficult for women to have access to, participate in, and benefit from processes of truth, justice, reparations and non-recurrence (TJRNR), since these do not take the needs of women into consideration in design or implementation. For example, a female internally displaced person (IDP) reclaiming property will often encounter prejudices and a lack of understanding within society, something a male IDP will likely not experience. Women looking for their missing husbands are not entitled to certain benefits from the Law on Missing Persons. Victims of wartime sexual violence (which are mainly women in BiH, though not exclusively) face major challenges in obtaining war-related compensation. In short, there is a clear need to integrate a gender-sensitive approach to processes of TJRNR, to better include both female and male victims. This will help transform the broader social context of trauma and post-conflict experiences and development.[ii]

Some positive progress has been made to advance gender-sensitive justice in Bosnia-Herzegovina. Currently, the Ministry for Human Rights and Refugees (MHRR) is steering the process of drafting a document entitled Program of Assistance to Women Victims of War Rape, Sexual Violence and Torture 2013-2016. This plan will also include male victims of wartime sexual violence.[iii]

Gender analysis can highlight how gender-based violence, including rape, forced prostitution, and enforced pregnancy, can be used as weapons of genocide; this is a new understanding  in legal practice and policy. In the case of Bosnia, for example, forced pregnancy was used to try and create more ethnically desirable babies, thus further driving out minority communities. This link between GBV and genocide is a clear call to action for policy makers to pay attention to GBV as an instrument of genocide.

How Conflict in BiH Disparately Affected Women

The conflict in Bosnia-Herzegovina, which lasted from 1992 until the Dayton Peace Accords in 1995, was between the region’s population of three ethnic groups, or ‘constituent peoples’: Bosniaks (48%), Serbs (37.1%), and Croats (14.3%).[iv] For more than 40 years the region was a federation of six republics: Serbia, Montenegro, Croatia, Bosnia and Herzegovina, Macedonia, and Slovenia, as well as two autonomous provinces: Vojvodina and Kosovo. In 1987, Slobodan Milošević came to power in Serbia, vividly encouraging Serbian nationalism and nurturing the idea of Greater Serbia. Based on this ideal, fighting ensued and a number of massacres took place, which led to an international crisis, including the use of war tactics and mass violence to drive out minority populations. After the 1995 Dayton Peace Accords negotiated an end to the conflict, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1996, to establish justice for the region, and ideally to promote a lasting peace. A number of perpetrators indicted by the ICTY were charged with crimes of genocide.

In Srebrenica, one of the most well-known massacres of the war, the men were separated from the women and killed systematically, which left psychological, legal, economic, and social difficulties for the women survivors. More research has been done on the massacre at Srebrenica and the gendered pattern of violence there.

Shortcomings of the Process in BiH

  1. In the processes related to truth, women’s participation so far has been limited.
  2. When it comes to guarantees of non-recurrence, it appears that a rather one-sided picture after the conflict in BiH has been created, whereby women are mostly seen as victims of the war, while men are mostly seen as heroes.
  3. While women make up one half of the Expert Working Group that drafted the Transitional Justice Strategy, and the president of the EWG is a woman, judging from the first draft of the TJS, there is room for improvement regarding the issue of gender-sensitivity. Sexual violence was widely excluded in the document, and a more widespread support from civil society organizations (CSOs) was lacking.

Recommendations for Rebuilding and Non-Recurrence

Key recommendations highlight where the process in BiH can go to improve gender sensitivity and the rights and status of women. The recommendations also show the link between GBV and genocide. Some recommendations are as basic as institutional reform, and ensuring that institutions include an integrated gender-sensitive perspective in their research and recommendations. Gender/sex disaggregated data is also needed, especially with regard to crimes of sexual violence. [v]

New recommendations, specific to BiH, are noteworthy, and can serve as examples for other post-conflict cases looking to address the same issues of gender and transitional justice. These cover four main categories of change:

  1. Technical changes, including the male/female composition of committees, political appointments, etc. I would also suggest more data collection and dissemination of data about atrocities, to better understand and analyze the gendered effects of the conflict.
  2. Legal changes, including women’s access to reparations (a large section on this topic in the report concludes that women hit many barriers when claiming reparations for crimes committed during the conflict, and often fall through the cracks of what crimes are legally recognized).
  3. Societal changes, including making processes more accessible and open to women, providing economic opportunities to women in the post-conflict economy, and continuing to provide funding and support for the implementation of the National Action Plan on UNSCR 1325.
  4. Structural changes, including encouraging participation by women and civil society in relevant TJRNR processes, particularly those related to integrating a gender-sensitive approach in the latter (such as the Program for Assistance to Women Victims of War Rape, Other Forms of Sexual Violence and Torture 2013-2016); creating a space for women to testify to the ICTY and to tell their stories.

The Impunity Watch report outlines a holistic transitional justice strategy to address gender-sensitive rebuilding and links to prevention of mass atrocities in Bosnia-Herzegovina. Empowering women and changing the narrative of women solely as victims, while recognizing the reality of gender-based crimes as planned tools of genocide (see the work of Hugo Slim, Cynthia Enloe, and Ximena Bunster), can allow policymakers to pay attention to gendered aspects of conflict, rebuilding, and non-recurrence.

Photo: guardian.co.uk


*Samantha Lakin is currently earning her M.A. in Law and Diplomacy at Tufts University’s Fletcher School.
[i] Dyan Mazurana, Prisca Benelli, Huma Gupta, Peter Walker, The Feinstein International Center, Tufts University
[ii] Maja Šoštarić, “Perspectives Series: Research Report, War Victims and Gender-Sensitive Truth, Justice, Reparations, and Non-Recurrence in Bosnia and Herzegovina” Impunity Watch, December 2012, 9.
[iii] Ibid 8
[iv] Ibid 21
[v] Ibid 76-83

 

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Earlier this month, Human Rights Watch (HRW) published a report entitled Second Class Citizens: Discrimination Against Roma, Jews, and Other National Minorities in Bosnia and Herzegovina. This titular discrimination is the result of unresolved tensions between the formerly warring factions of Bosnia’s three main ethnic groups–Bosniaks, Croats, and Serbs–and constitutionally mandated separation by ethnicity in political and public life. Referred to as the constituent people, members of the aforementioned groups are the only ones who can “serve as president or in the upper house of the national parliament, and were granted veto power over any legislation that they viewed as threatening their ethnic group’s interests.” Others include Roma, Jews, Ukrainians, and people from other Southeast and Eastern European, all of whom comprise 3-5% of Bosnia’s four million people. While the European Court of Human Rights considers these policies to be unlawful ethnic discrimination, little has been done to effectively address and change the situation. As it stands, the present situation falls within the first category of factors in the analysis framework that the United Nations Office of the Special Adviser on the Prevention of Genocide uses to determine whether there may be a risk of genocide, “Inter-group relations, including record of discrimination and/or other human rights violations committed against a group.”

Roma are Bosnia and Herzegovina’s largest national minority, and are disproportionately discriminated against. According to HRW, “The direct discrimination against Roma inherent in Bosnia’s political structure reinforces the indirect discrimination they often face in the provision of services like housing, health care, education, and employment.” When the country’s constitution was drafted in 1995, the rationale behind the exclusion of minorities from politcs was to maintain the tenuous peace in Bosnia. Today, however, ethnic politics has resulted in Serbs and Croats threatening to secede from Bosnia and “political deadlock that delayed the formation of a national government by more than a year after elections were held… Direct discrimination against Roma, Jews, and other national minorities does not end with politics; it is also entrenched in civil service.” For example, the Ombudsmen for Human Rights, an office which is supposed to protect against this exact type of discrimination, requires the appointment of three representatives from the three main ethnic groups to serve as ombudsmen, thereby leaving no room for any minorities.

One reason why Roma suffer the worst from indirect discrimination is because of “high unemployment rates and poor education levels and living conditions.” The United Nations High Commissioner for Refugees estimates that ~10% of Roma in Bosnia and Herzegovina are not listed on any birth registries. Without birth registration and a birth certificate, one cannot access public services, such as schools, employment bureaus, or health care services. Many of the Roma in this region live in unstable, insecure, informal settlements. They are in constant danger of being forcibly evicted and lack basic services like electricity and running water.

In order to end the ethnic discrimination outlined above, which violates Bosnia’s commitments under international and European human rights law, Bosnia must remove it from their national constitution. The country must also implement its commitments under the “Decade of Roma Inclusion 2005-2015,” and ensure that these commitments are continued past 2015, namely guaranteeing that Roma can access basic services. HRW also recommends that Bosnia and Herzegovina conduct an accurate 2013 census, and make special efforts to reach out to minority communities, “including employing Roma and others in conducting the census and allowing individuals to confidentially identify their ethnicity.” Lastly, HRW calls on the United States, European Union, and Council of Europe to lend their support to pressing for constitutional reform and helping minorities gain the aforementioned access. Lastly, the EU must make ending discrimination against minorities in Bosnia, both in law and in practice, a condition for membership.

For more detailed key recommendations, a description of the methodology used to compile the report, and full recommendations for various actors, read the full report here.

In their article, How Mass Atrocities End: An Evidence-Based Counter-NarrativeAlex de WaalJens Meierhenrich, and Bridget Conley-Zilkic examine the narrative frameworks that inform today’s agenda of “protection of civilians” in conflict:

 1. A teleological assumption that the occurrence of attacks against civilians will, unless halted or deterred from outside, inevitably escalate towards genocide.

2. An epistemological assumption that privileges coercive military operations conducted on humanitarian grounds by international forces.

3. An ethical imperative based on the above teleology and epistemology that forecloses the historical and political discussions of how mass atrocities actually end.

Using comparative evidence from a variety of cases, beginning with the Holocaust and continuing through Libya, they then provide “a counter narrative to the dominant civilian protection agenda by returning to the historical record of how mass atrocities end.”

As to the first point, Jens Meierhenrich (pictured above) has put forth a general framework for studying genocide termination that contests this teleology. He argues for separating genocidal acts, campaigns, and regimes to better distinguish between different endings and, significantly, how each informs different policy options. In addressing the aforementioned epistemological assumption, the authors divide the ending of mass atrocities into five categories: 1) violence halted by the perpetrators once goals are met; 2) elite dissension or exhaustion within the perpetrator regime; 3) victims of violence flee or otherwise resist; 4) interventions waged by interested outside parties; or 5) humanitarian intervention.

Finally, questioning the ethical imperative, the authors relate a question that they deem to have been inadequately engaged by policy experts and researchers alike: How does one recognize when genocide or mass atrocities end? As they explain, “This question, let alone the equally, if not more complicated, question of how such violence ends has been caught up in the normative assumption about how they ought to end.”

While an optimal ending of mass atrocities is outlined as one in which vulnerable civilians are rescued, perpetrators are punished, and the state is justly reconstructed to address the conditions that enabled violence to occur, actual endings can rarely be described as optimal. But it is important to pay attention to what forces have played a tangible role in ending violence in order to garner a better understanding of how to interact with complex situations, what tools might achieve which exact goals, and a realistic expectation in terms of ending mass atrocities when this objective is obscured by competing agendas.

The authors describe some endings as being “the successful completion of a genocidal campaign, called off when the perpetrator regime is consolidated or when the political landscape alters such that the political rationale for mass violence against civilians is reduced. Other endings occur when the genocidal regime is removed from power, through successful resistance or invasion, or is fought to a standstill . . . Some endings are simply respite—a gap between genocidal campaigns conducted by a regime with an intact apparatus of mass violence.”

The article concludes by contending that the current undertaking of preventing genocide seeks to go beyond this singular aim to decisively resolve conflict and achieve transitional justice. Instead of the sole and default response of establishing a new regime “with ethical credentials commensurate with the horror that preceded it,” the authors’ approach “[. . .] eschews arguing from ‘ought’ to ‘is,’ and instead addresses the complexities of real politics and develops a rich comparative evidence base.” It seeks practical responses in the details of particular circumstances as opposed to deriving analysis and policy from universals that stem from moral impulses. Ultimately, such an approach should result in more effective prevention policymaking and reactions.

Photo: lseinternationalrelations.wordpress.com

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