Master Class 2020: Transitional Justice in Bosnia and Herzegovina

The Old Bridge, Mostar, Bosnia and Herzegovina. The 16th century bridge was deliberately destroyed during the armed conflict on 9 Nov 1993 at 10.15am. Post-conflict a project was initiated to rebuild it and it re-opened with great celebration on 23 Jul 2004. Image: Courtesy of Kim and Clark Kays.

On 3 and 6 July 2020, Aarif Abraham will present at the Master Class on “Post-Transitional Justice following Genocide in Bosnia and Herzegovina: 25 years after Srebrenica”. The Master Class is organised by the Geoffrey Nice Foundation(GNF) in partnership with the University of Amsterdam (NL), the Honourable Society of the Inner Temple Inn (UK), the University of Zagreb, and the Helsinki Committee for Human Rights of Serbia.

Since 2014, GNF has held annual master classes at the Inter-University Centre in Dubrovnik on mass atrocities and various aspects of international law. The 2020 Master Class is focusing, over a two-week period, on:

• the legacy left by the armed conflict in Bosnia and Herzegovina (“Bosnia”) from 1992 to 1995;

• the impact of prosecutions and convictions, of individuals responsible for crimes during the conflict, at the United Nations International Criminal tribunal for the Former Yugoslavia (UN ICTY) as well as at domestic war crimes courts;

• the design, creation and development of constitutions and institutional structures in Bosnia and the wider region;

• international involvement in Bosnian politics generally; and

• assessing the formal and informal transitional justice processes in the region.

Aarif will deliver two short seminars – with a view to expanding upon them at the following year’s Master Class – due to restrictions in the current programme brought about by participants unable to have full, in-person, seminars, as a result of the coronavirus pandemic.

State responsibility for genocide

The first seminar will be on “State Responsibility for Genocide: Duties on States under the Genocide Convention and the Legacy of the ICTY”. The seminar will provide:

• a brief overview of the Genocide Convention and the promise of ‘never again’ following the Holocaust and other mass atrocity crimes committed during the Second World War;

  1. an overview of the concept and crime of genocide;

  2. an outline of the dual responsibilities provided for in the Genocide Convention namely, individual criminal responsibility for the commission of genocide (and associated acts delineated in Art III) and State responsibility which includes:

1. State attribution for acts of its organs, agents, officials and/or complicity by them in the acts of others (Art II, Art III);

   1. States failing in their duty to prevent (Art I);

   2. States failing in their duty to punish perpetrators of genocide (Arts I, IV and VI); and

   3. States failing in their duty to enact the necessary legislation to give effect to the provisions of the Genocide Convention and to provide effective penalties for persons guilty of genocide (Art III, Art V).

The Seminar will explain that States have a legal interest – even a moral and ethical imperative – to ensure that ‘peremptory norms’ of general international law (such as the prohibition of genocide) are upheld and that obligations owed to the international community as a whole, such as prohibiting, preventing and punishing genocide are enforced. It will emphasise that States have largely failed in their duties under the Genocide Convention as numerous genocides since 1948 have evidenced and as continuing genocides continue to show. It will conclude by highlighting that for the prohibition on genocide to have any meaning at all – not least for victims and survivors of rights’ violations or crimes – humanity must act in concert, through their State representatives, to ensure rights are interpreted, applied and fulfilled without reservation. The lessons of the heinous acts suffered by those in Bosnia and Herzegovina, and in particular the Bosnian Muslims of Srebrenica, ought to be more than enough for us to take heed and re-affirm our commitments.

Constitutional design and conflict

The second seminar is on “Bosnian Constitutional Reform: An Elusive Endeavor to End a Frozen Conflict”. The seminar is the first in a series of lectures that Aarif will deliver in anticipation of his forthcoming book (2021) which proposes an innovative model of constitutional design as a means of preventing conflict (in the widest sense).

The seminar explains that in Bosnia, complex constitutional procedures (imposed by international powers following the armed conflict) have institutionalised ethnic division and led to governmental paralysis. There are critical aspects of the Bosnian constitution that require reform. But reform has been impeded by intransigent, narrow, and nationalist positions adopted by political representatives of its three ‘constituent peoples’ – Bosniaks, Croats and Serbs – in constitutionally created institutions, namely: the Parliamentary Assembly, the State Presidency and the two Entities of Bosnia (Republika Srspka and the Federation). Intransigence is possible due to vetoes, strict ethnic quotas and decentralised powers accorded exclusively to the three groups’ political elites. Decision making is elite-driven as the constitution was premised on the (false) idea that the people, harbouring ‘ancient hatreds’, are divided. Using adaptations from game theory and behavioural economics a novel model is proposed to break the impasse allowing greater accommodation between political elites and the people.

Master Classes at the Geoffrey Nice Foundation

The seminars, as much of the Master Class, is aimed at fellow practitioners of international law and seeks to advance a multi-disciplinary understanding on the latest developments in international criminal justice and transitional justice. The Master Class is being held online, from 29 June to 10 July 2020, in lieu of participants being able to attend the Inter-University Centre for Postgraduate Studies in Dubrovnik, Croatia due to the Coronavirus pandemic. The programme, due to being changed to an online format is somewhat truncated, and the seminars provide an outline of the issues originally intended to be discussed, at length, in person. A full programme of the Master Class is available here. Recordings of all lectures will be uploaded to the website in the coming days.