Capital Sarajevo
Time Zone CET (GMT+1)
Country Code 387
Mobile Codes 61,62,63
ccTLD .ba
Currency Bosnian Convertible Mark (1EUR = 1,96 BAM)
Land Area 51,129 sq km
Population 4 million
Language Bosnian, Croatian, Serbian
Major Religion Islam, Roman Catholicism and Orthodox Christianity

Insights into the Hague Tribunal and Trends in International Justice: Interview with Sir Geoffrey Nice

In this interview with Sir Geoffrey Nice, QC, a former chief prosecutor of Slobodan Milosevic at the ICTY, Bosnia correspondent Lana Pasic explores the ways in which international tribunals contribute to the establishment of common truth and reconciliation in the Balkans- and what the future of the tribunal and international justice holds for other conflict regions. Sir Geoffrey Nice currently serves as a law professor at Gresham College in London.

Lana Pasic: Considering your prominent role in the ICTY, maybe as an introduction we can talk about the international tribunal itself, what it aimed to achieve and how far has it done so?

Sir Geoffrey Nice: All these tribunals aim to achieve particular mandates for trying individuals who have been involved in conflicts. But they also always have much broader objectives, typically including to bring about peace and reconciliation and to stop impunity. \


While Sir Geoffrey Nice notes that in theory participants in recent Libyan or Syrian violence “can be tried,” he finds “it unlikely that there will be another ad hoc tribunal of the Yugoslav model.”

Thus far these broader objectives may be seen as over-ambitious and I am never quite sure that it is that wise to advance them as justifications for tribunals, because if the broader objectives are not met then the tribunal as a whole may be  judged to have failed.

That said, the Yugoslav tribunal, has probably been very successful in terms of the number of the people that have been tried and the number of verdicts returned that have commanded respect.

Unfortunately, there have been a number of things that have been less than satisfactory in the tribunal, such as the conduct of senior management in some of the cases.

Of course it is quite difficult for the tribunal to escape from some characterisation of its being political in a way – all these courts are political and there is nothing necessarily wrong with that. It’s when they are shown to be vulnerable to the political pressure of an improper kind that it becomes troubling.

Lana Pasic:  In terms of these broader goals, which are of course  very difficult to achieve, when we talk about peace and reconciliation, and creating a common history, to what extent has the Tribunal for Yugoslavia focused on that goal?

Sir Geoffrey Nice: I don’t think its senior figures, either the prosecutors or the judges, would acknowledge that they focused on leaving a history of the region or the conflict behind; they are always very clear, and rightly, that it is not their function to write history. But simply by the amount of evidence that they listen to, record and leave for posterity – and indeed by the verdicts that they return in relation to particular cases – the output of the tribunal is inevitably going to become part of the history of the region.

What people have to keep in mind, when looking at trial evidence or the verdicts, is that the evidence led by the prosecution and the defence may have been carefully selected and may not reflect what actually happened.

Lana Pasic: In the case of trials in the Balkans, verdicts of the courts are against individuals; however, they are often taken as a national matter, rather than a matter of an individual who has committed crimes.

Sir Geoffrey Nice: That is a very important point. For historic and good reason, the modern tribunals can only try individuals. What I always found very interesting in the trials was that Bosnia, Serbia and Croatia were all organised through pre-existing or new government bodies, operating in standard government ways.

Generally speaking, activities in the conflict were being funded by institutions of government. A lot that was done was the responsibility of people around the equivalent of a cabinet table- that is a government responsibility; I am not sure it is that helpful always just to pick just one man and say he is responsible. You can try to pin decisions on an individual, but the decisions are usually not one individual’s; they are decisions of governments or parts of governments. And if you want to control conflict by law, then you have to be able to say that decision-makers and leaders have the responsibility.

Lana Pasic: I would also like to talk about different type of state responsibility and trials. Some of the war crimes are now tried in Bosnia. In light of this, and Bosnia’s structural and institutional challenges, does the Bosnian state have a responsibility for conducting the trials on its own?

Sir Geoffrey Nice: Many people regard it as preferable that war crime trials should be conducted in a local setting, as soon as possible and whenever possible, unless it is either too dangerous or too difficult to do. Of course, international tribunals, which are hugely expensive, can only manage a very limited number of cases, and for this reason alone it is preferable that the trials are conducted at local courts.

I don’t know enough about the local Bosnian courts and how efficiently they work, but I think that it might have been a very good idea to conduct as many as possible [a number] of trials there. It would have served several beneficial purposes in the region; it would have been better, arguably, than trials being dealt with remotely and sent down to Bosnia or Serbia, almost as entertainment television.

Lana Pasic: In a context of local trials, and thinking of the examples such as the Rwandan gachacha system and the TRC in South Africa, I can’t help but wonder if this kind of system within the community, or at least within the country might have raised greater awareness about the truth, about common history, understanding what has happened, and eventually, through a long and difficult process to reconciliation.

Sir Geoffrey Nice: I think most people would think that functioning truth commissions were more likely to achieve these results than simple trial systems.  But for truth commissions to be effective, you have to have a starting point of willingness by all sides to reveal the truth having a common purpose in doing so.

In South Africa it was comparatively straightforward, there were just two parties, one was in power and the other one was not but was compelled by various factors to engage. In somewhere like Bosnia where you’ve got Bosniaks, Bosnian Serbs, Bosnian Croats and other minorities, under absolutely uninspiring leadership, where are you going to find leadership that could make a truth commission successful?

Lana Pasic: In spite of all the flaws that the institution has, the work of tribunal continues. Considering the contemporary global context of recent uprisings and the case of Syria, there have been some indications that certain individuals from Libya and Syria might be tried in tribunals similar to that of the former Yugoslavia. Where do you see this going forward?

Geoffrey Nice: Well, offences committed by individuals in Syria of course can be tried in the permanent International Criminal Court, and that is what they have been considering doing. Unlike in the case of Libya, there seems to be political reluctance from the Security Council to do this. It may be that being too willing to refer a case to the ICC limits your ability to negotiate politically a diplomatic solution to the problem.

But in theory, they can be tried. It is unlikely that there will be another ad hoc tribunal of the Yugoslav model, certainly [not] in the short term. The ICC, despite its flaws, has an important role to play and it is better to see the whole thing as a work in progress and keep a firm eye on advantages that do flow from these courts.

Lana Pasic: Thank you so much for you time Sir Geoffrey, it has been most interesting.

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State Building Challenges in Bosnia and Herzegovina: Interview with Richard Caplan

By Lana Pasic Editor’s Note: In this new interview with Bosnia expert Richard Caplan. a Professor of International Relations at Oxford University and Director of its Centre for International Studies, readers are treated to some stimulating and informed views on the evolution of state-building in Bosnia since the dissolution of Yugoslavia. In this discussion with Bosnia correspondent Lana Pasic, Professor Caplan analyzes the past and the future of the Bosnian state-building process, and the internal and external factors which drive and/or obstruct it.

Professor Caplan has researched and written extensively on international intervention and post-conflict state-building in the former Yugoslavia. Some of his best-known books concerning the region, include Europe and the Recognition of New States in Yugoslavia (Cambridge University Press, 2005), International Governance and War-torn Territories: Rule and reconstruction (Oxford University Press, 2006), and Post-Mortem on UNPROFOR: Lessons of UN Peacekeeping in the Former Yugoslavia (1996). He has also published numerous articles on the Western Balkans, including Assessing the Dayton Accord: the structural weaknesses of the  eneral framework agreement for peace in Bosnia and Herzegovina (2000), Who guards the guardians? International Accountability in Bosnia and Herzegovina (International Peacekeeping 12(3) 2005), and International authority and state building: the case of Bosnia and Herzegovina (Global Governance 2004).

The State of Bosnian Statehood: Juridical and Empirical Views

Lana Pasic: As someone who has focused much of his research on post-conflict state-building and the Balkans, how do you evaluate the statehood of Bosnia and Herzegovina after Dayton?

Richard Caplan: There are two ways of thinking about this. In literature we distinguish between the juridical and legal status of Bosnia and Herzegovina, and empirical statehood. In juridical term, there is no question that Bosnia has achieved statehood and nobody challenges that internationally, [and not] even domestically. They may wish to see a different arrangement for the state or rethink the Dayton agreement, but there is a clear consensus, not contested, on its statehood.

According to Professor Caplan, the “international administrative dependency” that Bosnia’s post-war governments have had on the country’s international overseers has resulted in “a failure to develop and exercise a sense of ownership and responsibility.”

Empirically it is very different. I have here two relevant indicators- one is the Fund for Peace and its Failed States Index, which is the ranking of all countries in the world, on that list 1 being the worst, Somalia; I think Finland is the best; BiH ranks as number 69, between Gambia and Lesotho. Just by comparison, it’s the worst of the countries of the former Yugoslavia. Serbia is the next worst at number 98, which is an improvement of some 30 points. And where in particular the Fund for Peace finds Bosnia to be the weakest is in five categories: group grievances, legitimacy of the state, the security apparatus, factionalized elites, where it scores very badly, and external intervention. So, that is one measure.

And I think another relevant indicator is 2010- now a little out of date of course, but the most recent Progress Report of the European Commission on Bosnia and Herzegovina. There have been some developments since that time, but I think that they haven’t been extremely significant developments. The conclusion reached then by the Commission is that a lack of shared vision by political leaders on the direction of the country continued to block progress and further reforms in respect to the EU. In respect to each of the three major categories, political criteria, economic criteria and EU legislation, Bosnia was found to have made limited and insufficient progress towards meeting the criteria, and therefore the requirements for integration into the European Union.

Now, one can debate these, and there are of course other measures, but I think that by almost any comparative standard, Bosnia and Herzegovina has serious problems. On the other hand, there is no question that it has made significant strides and it has improved immeasurably over the situation that prevailed at the end of the war, in 1995, but statehood understood empirically in terms of functionality of the state has serious deficiencies.

Intervention Dilemmas, in Retrospect

LP: Considering all these challenges that the Bosnian state has, do you think something could or should have been done differently, although it may be difficult to think about that now? What are the lessons learnt from Bosnia?

RC: Well, that is a very good question, and as you said, it is very difficult to imagine and identify clearly alternative steps that might have been taken. It is not obvious to me, that there were, for instance, major opportunities that were not seized, that there were two forks in the road and the international community took the wrong direction. It is obvious in respect of other crises, Iraq in 2003 for instance; but I can’t say that this was the case with Bosnia and Herzegovina. And what other choices have there been in broad strategic terms?

Well, there might have been an effort to promote a different outcome to the war, with the defeat of the Bosnian government and its forces or defeat of Serbian forces. There were opportunities at various times to take measures that might have seen such outcomes. Instead, we had a stalemate situation which left the two parties, considering that Croats at that time were allies to the Bosnian government forces, the Bosniaks, in control roughly of half of the land each. In the political science literature you’ll find some support for the view that decisive victory leads to a more manageable situation afterwards, and that would mean defeat of one of the parties, but that would have been very, very difficult, even though there were some proponents of this at that time. It would be difficult to imagine further tragic consequences that would have happened, in terms of humanitarian suffering, refugees, IDPs. So that was not really an option.

One could have negotiated a different framework than Dayton, possibly, and one could certainly say that the Dayton Agreement has been a constraint, but it has also been a facilitator and had very significant influence on all aspects of life in BiH. I think it would have been difficult to do anything very different to what was done then, because there were such strong and high levels of insecurity among different communities and it was difficult to strike that balance between integration, protection and security, which meant separation at the same time.

Is Nation Building – Not Just State Building – Possible in Bosnia?

LP: Although state building is extremely important, I always try to analyze it in terms of nation building. How important do you think that nation building is for a country and do you think it is a possibility in Bosnia and Herzegovina? Is it too late to do it now? Was it too early to do it after Dayton? Is there going to be a Bosnian nation?

RC: It is important, if you look at many effective states around the world. There is a sense of nationhood of these states, and that I think contributes to their effective functioning and gives them cohesion at least, which is clearly lacking in the case of BiH. Very little attempt has been made to achieve that, but in all fairness, again, it was very difficult to imagine it could have been possible.

I don’t think it was possible after the war- the walls of separation mentally were so high, with certain exceptions of course. There were a lot of Bosnians who rejected identification with one ethnic national group or another. You had people of mixed heritage, you had people of one heritage who subjectively didn’t identify exclusively. Their sense of affiliation may have been stronger to the place, Sarajevo, maybe Tuzla, than it would have been to a particular group, or a group that embodied the place, and that place represented the values that were contrary to those that led to war.

Many Sarajevans, in my understanding, felt they were defending the multi-ethnicity of the city, but they were distinct minority in the country and they did not emerge in the leadership positions unfortunately. Whether or not more could have been done to support them is an interesting question. They didn’t command the armies in the field either, they weren’t invited to sit at the table and negotiate, and again I think, if they weren’t satisfied with the outcome, they would not have signed an agreement. So, to get them on board, you needed to build these guarantees that tried to balance integration with separateness, but I am doubtful about the prospects of creating a sense of Bosnian nationhood.

If you look at countries that over time have transcended local, regional differences or sense of identity, France at the end of the 19th century and beginning of the 20th, Italy in the 20th century even, it was easier to achieve that integration and national identity through national media, participation in common institutions, schools and the army, and there are many factors today in Bosnia that contribute to the maintenance of distinction, the differentiation. You have the media again, but not so much national media, even thought it exists, but a plethora of media, and you can listen to Bosniak radio, Croat radio and that only reinforces the sense of separateness. You have diaspora communities that can communicate and reinforce separateness to a degree that wasn’t possible in the past, during the Cold War. There are other factors that militate against the promotion of common identity.

There are little ways forward. There are isolated areas in which people will identify [themselves] beyond the ethnic level. Bosnia has participated in international initiatives of various kinds, peacekeeping for instance, where they have done so as the members of the Bosnian nation, they have taken pride, and others have taken pride in their contribution. Or sport, music, and the arts… but these are small things, and they are too small to be able to overcome all the other factors that are contributing to the continued separation and sense of separateness which are at odds with the emergence of a single nation.

If we look at the European nations, the French, for instance talk a lot about a single people, but not all French citizens feel French to the same degree. There too you have different areas of sense of allegiance to France as a country or France as nation. By contrast, Britain has a number of nations, Welsh, Scottish, English, that coexist within the single state, and arguably one could feel English and British, or Scottish and British, Welsh and British all at the same time, but in places where there is no common sense of nationhood that is very strong, then I think you will have the situation that you have in Bosnia.

Evaluating the Institutional Performance of Bosnia’s Foreign Overseers

LP: I guess that nation-building is something for which we, as Bosnians and Herzegovinians, should be responsible, and there is not much that the international community can do to assist us in this regard. But you have written extensively on other forms of international involvement in Bosnia and Herzegovina. What do you think are the problems and long-term implication of this intervention, for example, in the form of Office of High Representative?

RC:  I think that the High Representative and all the other international actors involved, have made positive contributions and they contributed to a making of a more cohesive integrated state, still highly federalized and weak at the center, with strong entities. Some of that has been overcome in particular areas, extraordinarily, with the military, but not with the police.

I think the downside of all of this is that precisely because people often impose decisions, effectively, there is a dependency on the high representative and other actors, and it’s often easier for politicians to avoid taking hard decisions, which may be fiscally prudent, for example support for veterans. It is much easier to say “I had no choice, the High Representative insisted, I didn’t do it.”

This creates an unhealthy relationship and administrative dependency on external forces, and a failure to develop and exercise a sense of ownership and responsibility. Over a period of time it contributed to the view that elected officials are really not responsible agents. It contributes to the limited sense of legitimacy of the state, not only because of course there is no sense of common allegiance. I think that’s the most serious consequence of the continued international presence and direction in BiH.

Bosnia and the EU

LP: If we track over time international intervention in Bosnia, we can see that it ranged from active involvement, peacemaking, peacekeeping, the presence of the institutions of HR and now towards European Union pressure. How do you see these changes and how is the EU exercising this role?

RC: In this regard Bosnia is no different than any other candidate or potential candidate country, in so far as there is a genuine perspective of accession. I think that everybody would agree that Bosnia’s future lies in the European Union, and that that is where it belongs. And, as a result, Bosnia is subject to the same political pressures and general expectations and processes as any other candidate country. So that is good insofar as it is not being singled out, or receiving special treatment. It is, in the sense that every country has specific challenges to gain entry into the EU. But if there is an imposition – and there is – accession is not a negotiation, it is the same process that has been applied and will apply to other countries.

LP: Do you think that is sufficient for Bosnia?

RC: No- not in the sense that Bosnia must jump through all the hoops now. Obviously, membership requires acceptance of all the member states. But I think if Bosnia is genuinely going to check all the boxes, there would be no objection. Bosnia doesn’t bring the kind of fundamental challenge that Turkey’s accession might pose. But it’s not enough insofar as it is not enough of a motive. That is what we are seeing, and that is what is contrary to our expectations. As the agenda moved from international management to European management, state building and a European perspective, there were expectations that it will become easier and there will be popular demand and pressure on leadership.

LP: There is a popular demand, as the majority of Bosnians want to see their country in the Union. But the question is, is this demand being projected through popular action?

RC: Well, maybe the sense of enlargement is distant and remote in some respects. Bosnians are not putting enough pressure on it, and are willing to accept continued resistance on the part of political elites to make the kind of changes that are required to satisfy the European Union. Also, people can hold contradictory positions; they can be in favor of joining the EU, and at the same time be in favor of political leaders whose policies militate against accession, because they are not willing to make the kind of concessions that are required.

Projection: Bosnia in the Next Five Years

LP: Considering the potential European membership and the current issues facing the country, such as political, economic and structural concerns, what do you foresee happening in the next five years? Will there be a constitutional reform?

RC: I am always wary of predicting the future. But, projecting the present disposition in the future, Bosnia is somewhat closer to political crisis than further away from one. We have seen that the nationalist rhetoric has become louder than it has been at times in the past, and that the Dayton agreement has become the ceiling rather than the foundation.

Also, I don’t see a lot of evidence that there is a willingness from all parties to work towards making the kind of changes that are required. It doesn’t mean that it will not change in five years. And it will be interesting to see what happens when Croatia enters the EU, what effect that will have. Clearly, it makes a difference to have a neighboring state in the Union, it made a difference for Croatia [to have neighboring Slovenia in the EU]. Maybe Croatia going in might make a difference for Bosnia.

But, to judge from what political leaderships are saying, there is no evidence that there is broad support for making the kind of changes that are required in the Constitution and other critical areas. I don’t see political leaders or contenders for political leadership proposing alternative agendas that are attracting widespread audiences.

LP: Thank you very much Professor Caplan for your time and a very interesting and informative discussion.

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