ANALYSIS: Getting to the Truth

Frustrated with the slow pace of justice and lingering nationalist hostility, civic-minded activists in Bosnia and Herzegovina are close to achieving their goal of setting up a Truth and Reconciliation Commission that they say will help heal the wounds of war.

The proposed commission has sparked an intense debate inside and outside former Yugoslavia about how "transitional societies" should balance justice, truth-telling and post-war reconciliation.

Proponents say truth commissions allow countries such as Bosnia to come to terms with war and repression in a way that court trials cannot. But some human rights experts say truth commissions serve as poor substitutes for trials, allowing impunity for war criminals and a white-washing of history.

Advocates have lobbied for a truth commission in Bosnia for three years and are on the verge of winning support from the International Criminal Tribunal for the former Yugoslavia in The Hague, which once rejected the idea outright. Tribunal lawyers are now reviewing a draft law that is due to be submitted soon to the Bosnian state parliament, where it is expected to get a sympathetic hearing.

At a conference May 13 in Sarajevo, tribunal President Claude Jorda laid out his institution's position, saying the truth commission would be a constructive initiative only if it steered clear from the tribunal's prosecutorial and investigative authority.

Jorda warned in a speech that the draft law in its current form "appears to give the commission powers similar to those of the International Tribunal and which, to my mind, overlap certain aspects of its mandate."

The language of the draft law implies that the commission would have judicial authority to establish "political and moral responsibility of individuals" as well as investigative power that collides with the tribunal's U.N. Security Council mandate, he said.

But Jorda did say that a truth commission could play a complementary role if it heard testimony from lower ranking perpetrators, provided a forum and possible reparations for victims and produced a detailed account of the causes of the Bosnian conflict.

Supporters of the proposed truth commission, who are confident they can win parliamentary approval for the idea, will listen carefully to the tribunal's concerns. Over the past three years they have amended their proposal in an attempt to accommodate the tribunal's objections, dropping provisions for amnesty and stressing the testimony of victims.

Jakob Finci, the head of the Jewish community in Bosnia and former president of the Open Society Fund in Sarajevo, is leading the campaign for a truth commission with the help of the United States Institute of Peace (USIP). Finci describes the proposal as a forum for victims of war crimes, a chance to set the historical record straight and a kind of vaccination against future conflict.

"Those emerging from a history of abuses and massive trauma - whether individuals or societies - are ill-advised to repress their painful past," Finci told IWPR.

Finci says that the commission will address broader themes that go beyond the subject of narrowly defined criminal prosecutions, examining how society failed to prevent bloodshed and the role of the media or other institutions in the conflict. The truth commission would also recognise unsung heroes who rescued members of other ethnic communities at great personal risk.

But whatever the design and mandate, a truth commission will have to tread through a political minefield in former Yugoslavia. Bosnian children still read rival "truths" in history textbooks depending on which ethnic community runs their school district. Political leaders and prominent news media disagree about the causes of the war, the number of dead and the battles of their parents and grandparents during the second world war.

Human rights activists, relatives of victims and politicians of every stripe have divergent views of how such a commission should operate and it remains unclear how key issues will be resolved. Who will appoint the commission members and what will the criteria be for prospective witnesses? If it does not grant amnesty, then how will such a commission persuade war criminals to confess their sins in a public forum? Who will guarantee the safety of those who testify?

More fundamentally, how could separate commissions in different countries hope to reach a single "truth" about conflicts that crossed several national borders?

Some nationalists have embraced the idea as a way of suppressing the prosecution of war crimes. The hard-line nationalist Momcilo Krajisnik supported the proposal for a truth commission when it was first floated in 1998. A former senior Bosnian Serb political leader who is now facing war crimes charges before The Hague Tribunal, Krajisnik suggested providing amnesty for anyone implicated by commission testimony.

Krajisnik, who was then the Serb member of Bosnia's collective presidency, wanted veto power over which Serbs would sit on the commission, according to U.S. human rights experts.

In the Federal Republic of Yugoslavia (FRY), newly-elected President Vojislav Kostunica formed a "Commission for Truth and Reconciliation" in March without bothering to consult the war crimes tribunal. Kostunica is a long-time critic of The Hague and his support for a truth commission has reinforced concerns among human rights activists that war criminals would be granted soft treatment by any truth commission.

The new Yugoslav commission is already plagued by controversy and recrimination.

Two prominent members of the commission, historian Latinka Perovic and law professor Vojin Dimitrijevic, resigned last month in protest, saying the whole project has been hastily organised without appropriate safeguards against political interference.

In his letter of resignation, Dimitrijevic expressed concern that the commission would be perceived as discriminatory as it would examine events outside Serbia but with only Serbs sitting on the commission.

"A commission composed exclusively of citizens of the Federal Republic of Yugoslavia (without even a single member from Montenegro) will not be seen by the public as unbiased or impartial if it is to pronounce judgement on the sequence of events taking place outside the present-day territory of FRY," Dimitrijevic wrote.

The law professor also said the commission's mandate was weak and that the president's office appeared to have pre-judged the findings of the body.

Belgrade radio station B-92 organised an international conference May 18-20 to discuss how Serbia should address the issue. Participants in the conference issued a list of recommendations to the Yugoslav commission, saying that the body should be reconstituted to include ethnic minorities and its mandate rewritten.

The proposal for a truth commission in Bosnia first came from USIP, which has lobbied for its creation beginning in 1998. The tribunal's first chief prosecutor, Justice Richard Goldstone of South Africa, has endorsed the idea as well. [See Goldstone, "The Tribunal's Progress," Tribunal Update No. 220]

The first truth commissions were set up in Argentina and Chile but it is South Africa's commission that captured the world's imagination and that is often held up as a successful model.

The South African commission secured testimony by granting amnesty to individuals willing to confess their crimes publicly. Human rights experts say the South African commission succeeded in part because there was a credible threat of prosecution if a suspect declined an offer of amnesty. Yet the verdict on South Africa's commission is far from unanimous, and some say the commission did not go far enough in confronting the legacy of apartheid.

Other countries emerging from war or dictatorship, including Sierra Leone, East Timor and Indonesia, also are setting up truth commissions in an attempt to exorcise the demons from past repression. In some cases, witnesses are offered amnesty and in others, the commissions are supposed to propose judicial or other reforms.

Unlike South Africa, there are no large-scale atrocities that remain to be uncovered in Bosnia. What has been lacking in Bosnia is a consensus about why the war broke out and who is accountable for the tragedy.

For Finci and other proponents, the truth commission is long overdue. Although they take pains to praise the tribunal's work, supporters of the truth commission proposal say the trials taking place in The Netherlands are far away from the daily life of Bosnians. They say only a truth commission will encourage a genuine public debate about the war and produce a consensus about how it started.

Opponents question whether it is too early to raise such high expectations given the troubled political climate - especially when leaders in neighbouring Serbia remain reluctant to transfer Slobodan Milosevic to The Hague.

Some family associations have told human rights activists that they are interested in "truth" but not necessarily "reconciliation". Victims such as the survivors of the Srebrenica massacre have long demanded criminal prosecution of indicted war criminals and may view a truth commission as an insult if they believe Western governments are using it is as an excuse not to pursue arrests and court trials.

For their part, Western governments, openly frustrated over the pace of reform in Bosnia, may grasp at the idea in hopes that it could help break the logjam.

Dan De Luce, a former Reuters correspondent in Sarajevo, is an IWPR senior editor specialising in the tribunal. An exchange on the truth commission between Jacob Finci and Vildana Selimbegovic will appear in the next issue of Tribunal Update.