Memories that Divide: Memories that Heal

The following is an abridged version of a detailed report prepared by Viktorija Ruzicic-Tokic, a former Program Officer at ICMP, analyzing the memorialization challenges in Bosnia and Herzegovina.

For many years, ICMP has actively facilitated discussions among different civil society organizations (CSOs) on remembrance and universal memorialization of missing persons in the Western Balkans. The object has been to bring together associations of families of missing persons, CSOs and human rights activists with a view to creating a better understanding of the concept of memorialization and its significance to transitional justice in the region, and also to develop joint approaches to memorializing more than 41,000 missing persons in the Western Balkans.[1]

Since 2010[2], ICMP has initiated a series of consultations and dialogue sessions throughout the region. These sessions have shown that the best way to foster agreement on a universal approach to memorializing missing persons is to keep consultative dialogues at the national level. Nonetheless, ICMP continues to support and encourage the development of a universal memorialization approach at the regional level, in the first place through the activities of the Regional Coordination of the Family Associations of Missing Persons from the former Yugoslavia[3] (the RC). During the consultative processes a number of positive developments have taken place among family members from the region and in particular in Bosnia and Herzegovina, where the Civil Society Forum on Memorialization (the CS Forum) was established with ICMP support. The CS Forum is currently taking a leading role in the dialogue on a universal model of memorialization of missing persons for Bosnia and Herzegovina. In addition, the RC is seeking to involve young people in its activities, and memorialization is an activity through which young people can make a significant contribution. [4] These groups no longer view memorialization as something that is exclusively connected to physical monuments: they have developed a broader concept of memorialization reflecting its complex and continuously evolving nature.

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The UN Special Rapporteur in the field of cultural rights notes that memorials and memorialization processes around the world very often deal with the issue in a way that divides communities, and in some cases these processes can be used on behalf of a particular group to continue the “battle” after the conflict has ended.[5] This depends on the message that the main actors in the process – whether the state or civil society actors – choose to communicate. For example, there may be an attempt to define one ethnic or religious group as the exclusive victim or as the aggressor, and this is very often done in such a way that public discourse is used to “support the legitimating of the political action, the cementation of group cohesion”[6] or to mark territory[7] or to create a collective historical narrative[8].

However, some positive examples of memorialization processes from around the world should also be noted. The most recent reports in this regard tend to focus on monuments[9], which are an important part of the wider memorialization process. The BiH experience indicates that almost all of the concerns and opinions regarding monuments are applicable to the process as a whole. Thus, initiatives that can be recognized as good examples include dialogue processes that have a strong educational aspect. Examples include the series of walks across the border between Northern Ireland and the Republic of Ireland, which included meetings between pupils from different schools and artists from different communities with the aim of building and publishing new narratives and organizing performances and exhibitions.[10]

Another example is the extensive cross-community independent project in Northern Ireland called Healing through Remembering consisting of a diverse membership with different political perspectives but working with the joint aim of dealing with the legacy of the past related to this conflict.[11] The project evolved over time and consists of a variety of elements, the main ones being the Voyager Project[12], which offers groups and organizations the opportunity to identify areas of interest and issues to be explored through discussion in a safe environment with facilitation by projects trainers.[13] The other element is Everyday Objects Transformed by the Conflict, which was launched in 2011. This comprises exercises designed to initiate debate and dialogue and identify ways of dealing with the past and achieving healing at the individual and community level. The project strongly supports the living memorial concept, not offering one truth but allowing each experience, artifact and story to open a dialogue that will bring individuals and communities closer, preventing repetition of past events while preserving memory.

Both of these initiatives focus on dialogue and the voluntary engagement of the wider community, and both focus, directly or indirectly, on educational and preventative aspects of the process, which are key to effective memorialization and key to effective transitional justice.

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In Bosnia and Herzegovina, legislation that regulates the memorialization process is at Entity, Canton and District Brcko level and mainly if not exclusively deals with monuments as physical artifacts, which means that legislation on physical planning and use of land provides the legal framework within which memorials are addressed. In addition to higher legislation, each administrative level has its own bylaws that are predominantly concerned with the organization, use and purpose of land and which tend to multiply impediments when it comes to practical implementation at the local level. This means that requests for permission to erect a monument tend to be judged at the discretion of the local authorities, which in many cases are controlled by the group that is in the majority in that area. In some places, particular ethnic groups are denied the right to erect monuments or organize commemorative events, or administrative procedures are drawn out to such an extent that a clear message is sent to families of victims that they are not being treated in the same way as others.

In practice, when a group wants to erect a physical monument or organize a commemorative event it must seek official approval from the relevant government office. For a static physical monument this might mean an urban construction permit either from the Entity or the Canton or, in most cases, from the municipality. [14] In order to organize an event in a public place, approval must be granted by the municipal or Cantonal police authority. This is regulated by laws on Public Gatherings/Assemblies in the BiH Federation and by the Law on Public Gatherings/Assemblies of the RS[15]. Since groups submitting requests for permission to erect monuments or organize events are often members of the “numerical minority” in their local community, such requests are routinely denied.

It is important to emphasize that article 20 of the BiH Law on Missing Persons stipulates that family members of missing persons or their associations may request that locations of burials and exhumations (individual or joint) are marked, regardless of the number of victims exhumed at the given location.[16] Permission for marking such places is to be issued by the competent municipal authorities.[17] The Rulebook on Marking Places of Burial and Exhumation of Missing Persons has been adopted; it regulates the design of the method of marking or of the memorial plaque, funding and other issues. However, it provides for financing of marks and memorial plaques through the Fund for Missing Persons,[18] which has not yet been established[19] since the Entities have not agreed on how to pay for the Fund. In practice, when they have been approved, marks and memorial plaques are financed from local administration budgets, from donations and in some cases by associations of families of missing persons themselves.[20]

Although the BiH Law on Missing Persons does not distinguish between civilian and military victims of war, when it comes to survivors’ rights slight differences are evident regarding the provision for military victims in terms of reparation rights[21]. The RS Law on Monuments and Memorials of Defense Wars adopted in 2011, inter alia, deals with monuments and memorials in the RS dedicated to Serbian military victims from the First World War to the present day. It defines memorials that are of special importance to the RS and envisages the protection of all memorials on the territory of the RS that are dedicated to wars of “homeland defense”. A similar law does not exist in the BiH Federation but in practice it is evident that military victims are given priority when it comes to monuments and memorials.

As noted in the BiH Transitional Justice Strategy[22] and by the UN Working Group on Enforced or Involuntary Disappearances, monuments and memorials installed to honor the victims of the 1992-1995 conflict very often display a strong ethnic or religious character. In addition, these monuments, which are designed to honor victims, often identify perpetrators, sending a message that may not contribute to the prospects of reconciliation in the country. The same applies to many commemorative events organized in both Entities.

In the absence of comprehensive state-level regulations and political will at all levels of government, which has prevented the establishment of the Fund for Missing Persons, ICMP has provided financial support for initiatives that allow civil society actors to develop ways of paying tribute to victims and raising awareness about victims’ issues and the importance of memorialization.

A number of negative factors affect memorialization processes in Bosnia and Herzegovina, including deep divisions among ethnic communities, a flawed legal framework, insufficient political will and the absence of an appropriate and effective reparation mechanism. However, CSOs have found ways of slowly overcoming these major obstacles. They have initiated and fostered dialogue and they have developed alternative approaches to preserving and honoring the memory of victims where the members of some ethnic groups are denied the right to erect physical monuments. These initiatives are extremely important because they run counter to the official approach to memorialization, which stresses ethnic affiliation. In contrast, CSOs have emphasized the fact that all victims, in particular civilian victims, should be honored and remembered regardless their ethnic origin. By striving to overcome administrative obstacles these groups are creating a culture of remembrance that can evolve over time and raise awareness in local communities, in the country and in some cases in other parts of the world. The dialogues and initiatives that have emerged are key elements in the development of a joint and effective culture of remembrance.

At the same time, it is important to stress the need for reform of the legal framework as it affects memorialization. Efforts should be made to include memorialization in the range of transitional justice measures incorporated in legislation dealing with reparation of all BiH victims. In addition, as long as a third of the missing have still to be accounted for, families of missing persons – who have been active in lobbying for physical monuments – should lobby strongly for the establishment of the Missing Persons Fund foreseen in the BiH Law on Missing Persons. And all initiatives and legal reforms must be implemented in a way that is consistent with Bosnia and Herzegovina’s international human rights obligations.

[1] For more, see Memorializing Missing Persons in the Western Balkans: Challenges and Perspectives, ICMP.JCSI.94.2.doc, 2011.

[2] Ibid.

[3] Examples of RCB activities and joint activities aimed at memorializing all missing persons in the Western Balkans include the marking of the International Day of the Disappeared through joint commemoration and related awareness raising events such as press conferences and participating in TV talk shows dedicated to the issue of missing persons.

[4] In October 2014, the RCB organized a study tour that was largely dedicated to memorialization.

[5] For more, see Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed, January 2014. A/HRC/25/49, pp. 6-7.

[6] Nicolas Moll, “Fragmented memories in a fragmented country: memory competition and political

identity-building in today’s Bosnia and Herzegovina”, Nationalities Papers, vol. 41, No. 6, November

2013, pp. 911.

[7] See point 90 of Report of the Special Rapporteur in the field of cultural rights Farida Shaheed*, Addendum, Mission to Bosnia and Herzegovina (13-24 May 2013) A/HRC/25/49/Add.1.

[8] For more, see N. Moll pp. 910-911, 2013.

[9] Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed, January 2014. A/HRC/25/49.

[10] For more, see point 71 of the Report of the Special Rapporteur in the field of cultural Rights, Farida Shaheed, January 2014. A/HRC/25/49.

[11] For more, see http://www.healingthroughremembering.org/.

[12] This project evolved from the previous project “Whatever You Say, Say Something”. For more, see http://www.healingthroughremembering.org/Projects/Voyager/.

[13] Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed, January 2014. A/HRC/25/49.

[13] For more, see http://www.healingthroughremembering.org/.

[13] This project evolved from the previous project “Whatever You Say, Say Something”. For more, see http://www.healingthroughremembering.org/Projects/Voyager/.

[13] Guided debates are organized in the course of this project and the aim is to provide a safe and comfortable environment in which different legacy issues can be discussed e.g. trust, do no harm, justice, inclusiveness, and approaches to be taken in specific local communities. For more, see ibid.

[14] For more, see Transitional Justice Strategy, pp. 62-24.

[15] Official Gazette of RS 19/2010.

[16] The same article prescribes that the locations of burials or exhumations shall be marked only when the competent authority for tracing missing persons issues a certificate that confirms that an exhumation took place or a grave existed in the location proposed for marking.

[17] For more, see Article 20 of the BiH Law on Missing Persons.

[18] Article 1 (2) of the Rulebook on Marking Places of Burial and Exhumation of Missing Persons.

[19] Even though the law envisages that the Fund will be established within 30 days of the Law entering into force, this provision has not been implemented and this has significantly determined access to rights by family members and their associations across BiH. (For more, see OHCHR Report on Access to Economic and Social Right for Families of Missing Persons, 2005.)

[20] For more, see Transitional Justice Strategy, pp. 65.

[21] The UN Committee Against Torture and the UN Economic and Social Council in their initial recommendations to BiH note that the discrepancy between the level of benefits and financial allowances for military vs. civilian victims of war must be dealt with. For numerous reasons the state has not dealt with this issue, and different treatment of different categories of victims in BiH continues, as seen in memorialization trends throughout the country.

[22] For more, see Transitional Justice Strategy, pp.66.