Call it by its right name

Criminalizing genocide denial in Bosnia and Herzegovina

By Dr. Carna Pistan

Carna Pistan is a Marie Skłodowska-Curie Global Fellow at the Harriman Institute, Columbia University (US) and a Senior Researcher at the Institute for Comparative Federalism, Eurac Research (Italy). 

On 23 July 2021 – only a few days before the end of his term – the former High Representative (HR) of Bosnia and Herzegovina (BiH), Valentin Inzko, has imposed a law, which bans genocide denial and the glorification of convicted war criminals. According to his official press release this was a response to BiH’s violent past and current political situation. In the ethnically rooted Bosnian war (1992-1995), the country was the scene of war crimes and crimes against humanity, which culminated in the Srebrenica genocide. Following the conflict, the Dayton Peace Agreement of 1995 split the country into two entities – the Bosniak-Croat Federation of Bosnia and Herzegovina and the Serb-majority Republika Srpska – a solution that ended the war, but also maintained and reinforced divisions along ethnic lines. Over the past twenty-six years, nationalist rhetoric denying war crimes, including the crime of genocide, and celebrating the perpetrators persisted in the public sphere. It even increased in recent years – a trend that represents a serious obstacle to lasting peace, stability, and reconciliation in the country.

In this scenario, the imposed legislation is important because it represents the first concrete attempt to fight against the culture of denial regarding the mass atrocities committed in the Bosnian war of the 1990s. The law, which is an amendment to BiH’s criminal code, has been enacted by the HR using his so-called Bonn powers, according to which the HR has the authority to adopt binding decisions and remove public officials in order to carry out his mission of overseeing the civilian implementation of the Dayton Peace Agreement. Considering that this special set of powers has not been used in the past decade to not interfere with BiH’s sovereignty, the imposed law seems to be even more relevant. The new denial ban in BiH represents a potentially powerful instrument to combat an alarming normalization of genocide denial, and a shameful glorification of war criminals. It is, however, unlikely that an internationally imposed memory law can contribute to reconciliation in a deeply divided society.

Breaking the wall of denial

Officially entitled “Decision on Enacting the Law on Amendment to the Criminal Code of Bosnia and Herzegovina” (No. 26/21), the imposed legislation can be ascribed to the category of punitive memory laws criminalizing the denial of the Holocaust and crimes against humanity. This type of legislation, which exists in most European countries, has often been criticized for imposing an official, state-approved interpretation of history, thus limiting the freedom of expression and historical research. Proponents of punitive memory laws, on the other hand, view them as a pre-emptive measure, which uses criminal law against racism, anti-semitism and xenophobia by prosecuting the incitement of violence or racial hatred.

In the case of BiH, the amendment changed Article 145a of the criminal code by introducing prison sentences from six months to five years for anyone who publicly condones, denies, grossly trivializes or tries to justify a crime of genocide, crimes against humanity or war crimes when three conditions are met: a) the crimes are established by a final adjudication of the International Military Tribunal, the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Court (ICC), or a court in BiH; b) the offense is directed against a group of persons or a member of a group defined by  race, color, religion, descent or national or ethnic origin, and c) the act is likely to incite violence or hatred.  Prison sentences of not less than one year are further envisaged for public dissemination or distribution of tracts, pictures or other material related to those crimes. If the criminal offense disturbs public peace and order, is threatening, abusive or insulting, or is committed by a public official, it is punished by not less than three years of imprisonment. Glorifying convicted war criminals, by giving them a recognition, award, memorial, any kind of memento or privilege, or by naming a public object after them is also punishable under the new regulation.

The law does not introduce an overall ban of genocide denial but limits the persecution to judicially established crimes and to expressions motivated by violence or hatred based on ethnic or other discriminatory grounds. Alternative approaches and interpretations of past events remain possible for scientific reasons, for example, or in dissenting opinions of national judges. The new legislation thus offers a balance between protection from hate speech and protection of freedom of expression.

Although the amendment does not exclude a much broader application (it implicitly includes a Holocaust denial ban for example), it primarily aims at preserving the judicially established truth regarding the mass atrocities committed in the Bosnian war, and especially its darkest chapter, the crime of genocide. More than 7.000 Bosnian Muslim (Bosniaks) men and boys were executed by the Bosnian Serb Army and more than 25.000 women, children and elderly were forcibly deported from the UN “safe area” of Srebrenica in July 1995. In its landmark caseProsecutor v. Radislav Krstic in 2001, the ICTY ruled that the crimes committed in Srebrenica fit the legal definitionof genocide. Following this verdict, the ICTY and its successor found several other officials of Republika Srpska guilty of genocide, most notably the former President Radovan Karadzic and the General Ratko Mladic – both sentenced to life imprisonment. In 2007, the International Court of Justice also ruled that the massacre committed in Srebrenica was an act of genocide.

A land where war criminals are heroes

Despite these rulings and the overwhelming forensic evidence, political leaders and institutions in Republika Srpska and neighboring Serbia continue to engage in a systematic genocide denial. Mladen Grujicic, the first Serb mayor of post-war Srebrenica has repeatedly denied that the ICTY has ever proved that the Srebrenica massacre was a genocide and publicly questioned the number of victims. Milorad Dodik, the Serb member of BiH’s tripartite presidency, has called the Srebrenica genocide “a fabricated myth,” promoted conspiracy theories to contradict the judicially established facts on genocide, and even named a student dormitory after Radovan Karadzic, one of the convicted war criminals. In 2016, the Parliament of Republika Srpska awarded several convicted war criminals with honors. More recently, it set up a “truth commission,” largely composed of foreign academics, “Investigating the Sufferings of all Peoples in the Srebrenica Region in the Period from 1992 to 1995.” On 21 July 2021, the commission issued a report which concludes that a genocide did not happen in Srebrenica, minimizes the number of victims, and portrays Bosniaks as the aggressor and the Bosnian Serbs as victims. Menachem Z. Rosensaftcalled this report an “embarrassment to scholarship” and a “legal and factual abomination.” Murals and graffiti celebrating convicted war criminals as heroes, and streets and squares named after them are decorating many cities in Republika Srpska and a poll in 2018 revealed that 74 percent of Serbs in Republika Srpska consider Radovan Karadzic to be a war hero. The persistent glorification of war criminals resulted in the normalization of genocide denial and the implicit affirmation of genocide as an “acceptable” act. It goes without saying that all of this is blocking any possible path to reconciliation.

A much needed law

In the 10-stage model of genocide, elaborated by Gregory H. Stanton, genocide denial is the final stage following a genocide and among the surest indicators of its repetition. In BiH, in addition to a widespread genocide denial, the trend even went a step further culminating in the glorification of convicted war criminals. Hariz Halilovich calls this phase, in which war criminals are celebrated and honored as war heroes, “triumphalism.” BiH might be a singular case of triumphalism, but it shows what can happen when a post-conflict society lacks an appropriate legal framework punishing genocide denial. Analyzing the situation using Stanton’s 10-stage model suggests that without the continuous presence of the international community, BiH represents an ideal ground for the repetition of violent conflicts. A punitive memory law thus appears to be much needed in this disturbing context of normalization of genocide denial, triumphalism, and a growing culture of impunity. As has been rightly observed, revisionism in BiH has nothing to do with allowing a plurality of approaches and interpretations of historical atrocities, but is a rewriting of history “with little or no respect for facts.”

One brick at a time

What remains unlikely, however, is that an internationally imposed memory law can create internal reconciliation. The existing literature generally agrees on the fact that reconciliation cannot be imposed from the outside. International actors may be present and support national initiatives, but reconciliation will remain an internal affair. In other words, a law banning genocide denial should have been adopted by national institutions. That would have been a clear signal of former enemies coming together to create a shared understanding of the painful past and build a bridge towards a common future. Previous attempts to pass such law by the BiH Parliament have, however, all failed mainly due to Bosnian Serb opposition.

In the absence of an internal political will to address past wrongs, the imposed legislation risks to trigger an internal memory war and further exacerbate divisions. This has already been proven in practice. The law was welcomed by the relatives of the victims and Bosniak politicians, but firmly rejected by politicians and institutions in Republika Srpska. Milorad Dodik immediately announced that Serbs will not accept this legislation, that genocide did not happen, and called the new law the “last nail in the coffin of BiH.” He further threatened with the dissolution of the country, and encouraged the Parliament of Republika Srpska to decide on an “institutional response” to the imposed denial ban. As a result, on 30 July 2021, the Parliament adopted a law on the non-implementation of the HR’s decision, and an amendment to the criminal code of Republika Srpska, which introduced prison terms of up to fifteen years for calling Republika Srpska a “genocidal creation” or for disrespect of its symbols, independence and territory.

Yet, despite these newly emerged tensions, the imposed genocide denial ban represents a necessary instrument. It provides for a legal framework capable of combatting the deep institutional and social acceptance of denialism and triumphalism. The ending of which would be the first brick for unblocking the path to reconciliation. In fulfilling this primary mission the imposed law has already shown some positive effects: genocide denial on media reports and social media rapidly decreased after the ban came into force.

This publication is part of the project We-R (Illusions of eternity: the Constitution as a lieu de mémoire and the problem of collective remembrance in the Western Balkans) that has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie grant agreement No 898966.

This blogpost was first published in Verfassungsblog.de: https://verfassungsblog.de/call-it-by-its-right-name/

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Interview with Anwar al-Bunni

By Morgane Afnaim

Morgane holds a Master degree in Human Rights and Multi-level Governance from the University of Padova with a focus on the Middle East and North Africa area – with in depth studies on Palestine and Syria –, humanitarian law, and detention matters/rights.

Please watch the interview at the link: https://fb.watch/6M3eQrzHMD/

Anwar al-Bunni and Morgane Afnaim

ANWAR AL-BUNNI is an influential and authoritative Syrian lawyer and human rights defender. He is well-known and deeply trusted within the Syrian exile communities as well as within the transnational network of actors committed to Syrian matters. 

Al-Bunni is one of the founders of the Syrian Human Rights Association and, as a lawyer, in Syria, he was particularly committed to defending civil society’s activists, who were systematically persecuted, imprisoned, and tortured for expressing their ideas through peaceful demonstrations and nonviolent actions, especially in the wave of the 2001 Damascus Spring repression. The lawyer started to defend political prisoners in 1986, and until he was in Syria, despite challenges and risks carried from this activity, he never stopped carrying on such a job. For this reason, he – and his family members – have repeatedly been the target of repressive measures, including the disbarment from the Damascus Bar Association. Moreover, in 2006, after having signed the so-called Damascus-Beirut Declaration, together with a number of human rights activists, the lawyer was arrested and charged with “dissemination of false information which could harm the morale of the nation.” After a trial he was found guilty and, thus, sentenced to five years of detention. In addition, al-Bunni’s human rights training center was closed. The outstanding lawyer has therefore spent various years in the Adra detention center, in the Damascus area, where he reported to have systematically been subjected to abuses and tortures from the prison’s staff. In 2014, after his release, notwithstanding his willingness “to stay in Syria as long as possible to defend the increasing number of political prisoners” – as he stated during an interview with the author – he was forced to leave the country because of the increasing threats he was receiving. Once established in Germany, the lawyer founded the Syrian Center for Legal Studies and Research  [LS – center], which aims at collecting information about high-ranking Syrian officials in order to start criminal cases against them and at developing researches and trainings regarding the justice process of Syria. Although in Germany he does not have the license to practice as a lawyer, al-Bunni has started to cooperate with the European Center for Constitutional and Human Rights [ECCHR] in order to prepare a strong case file, to assist and support Syrian survivors and mediating between German prosecution offices and the Syrian exile community. As many Syrian tortures’ witnesses and survivors personally know him from Syria, the lawyer has been able to encourage them to actively participate in the Al-Khatib Trial, managing to gather a strong group of plaintiffs and witnesses.

The Detention TimeAnwar al-Bunni has reported – over the course of an interview with the author – that during the long detention time, he “tried to make the best of [his] time [there].” Therefore, he “started working out and devised plans for Syria’s political future, that later, [once released], [he] wrote down and published.” Particularly, he based such a state-building project for the future of Syria on four drafts: a set of transitional provisions (2017), a new Constitution (2005) and its fundamental principles (2019), and a document regulating political parties (2007). 

Thus, the following interview with the lawyer will tackle some relevant points of the Syrian case. Particularly, starting from the meaning and impact of the ongoing Al-Khatib Trial, other significant issues will be discussed. In the first instance, the abovementioned trial, based on universal jurisdiction and addressing core international crimes committed in Syria, represents a ground-breaking proceeding as it appears as the last resort for accountability for the vast amount of crimes that have been committed in Syria in the last ten years. Indeed, given the deadlock situation at the international level, both the General Assembly of the United Nations [UNGA] and the Independent International Commission of Inquiry on the Syrian Arab Republic [CoI] have expressly called upon states to use universal jurisdiction to fill the huge gap of impunity covering Syrian most severe crimes and perpetrators. Anyhow, such a trial carries both challenges and strengths, that will be investigated with the lawyer over the course of the interview. 

Going on, the conversation will deal with the need of a victim-focused and victim-oriented transitional justice processwhich – based on a combination of criminal accountability measures and on a set or reparatory justice measures – could pave the way to a successful and inclusive constitution-making process for the future of Syria. Therefore, the interview will close with the lawyer’s vision regarding future perspectives of constitution making in Syria. Specifically, al-Bunni will call attention to the hypothetical state building project for Syria he laid down, aimed at achieving a representative democracy for Syria and based on the respect of individual fundamental human rights and on citizens’ political participation in the country’s government

Concluding, regarding his work, Anwar al-Bunni stated that “as a human rights defender it is not the repression, imprisonment, and torture that we have suffered that counts, but what we have seen and documented. The crimes against humanity, the war crimes committed and still being committed while the world looks on.”

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The General Mladic case: Has Justice Really Been Done?

By Dr. Zarije Seizović

Dr. Zarije Seizović graduated from the Sarajevo Law School and holds Master of Science and Doctorate in Political Sciences. He is currently employed as Full Professor at the Faculty of Political Sciences of the University of Sarajevo, where he teaches International Humanitarian Law, Law of Defence and Security, Political System of BiH, Study of Holocaust and Genocide at Bachelor and Master level, and Humanitarian Interventions and Collective Security at doctoral level. He worked as a lawyer in the War Crimes Chamber of the BiH State Court, as legal counsel in number of international organizations such as OSCE and UN Missions to BiH as well as International Crisis Group (ICG). He also worked as an Attorney-at-Law, Criminal Court Judge and Registrar of the Constitutional Court of the Federation of BiH, and spokesperson of the Border Police of BiH. As consultant he was involved in a number of judicial and public administration reform projects in BiH and Balkans. He is the author/co-author of 17 books in English and national language/s as well more than 100 articles published in BiH and abroad. He is member of Political Sciences Board of the Academy of Sciences and Arts of Bosnia and Herzegovina.

Ex-Bosnian Serb military chief Ratko Mladic sits in the defendant box prior to the hearing of the final verdict on appeal against his genocide conviction over the 1995 Srebrenica massacre, Europe’s worst act of bloodshed since World War II, on June 8, 2021 at the International Residual Mechanism for Criminal Tribunals (IRMCT) in The Hague. – – Netherlands OUT (Photo by Jerry Lampen / ANP / AFP) / Netherlands OUT (Photo by JERRY LAMPEN/ANP/AFP via Getty Images) Caption taken from: https://www.huffingtonpost.it/entry/ratko-mladic-26-anni-dopo-il-giorno-del-verdetto-finale-per-il-macellaio-di-bosnia_it_60bf1108e4b028b8ad4ba1bc

I          Indictment and charges

Chief Commander of the Bosnian Serb Army General Ratko Mladić was arrested on 15 May 2011 and transferred to the ICTY on 31 May. The trial commenced on 16 May 2012 while closing arguments were held from 5 until 15 December 2016. 

The Initial indictment of 14 November 1995 charged Ratko Mladić and Bosnian Serb key political leader Radovan Karadzic with genocide, crimes against humanity and violations of the laws or customs of war. During the trial, the indictment had been changed three times. The last one, fourth amended indictment of 11 December 2011, charges General Mladić with genocide, crimes against humanity and violations of the laws or customs of war. 

The accused was finally charged with two counts of genocide (Counts 1 and 2), five counts of crimes against humanity (Persecutions – Count 3, Extermination – Count 4, Murder – Count 5, Deportation – Count 7, Inhumane acts i.e. forcible transfer – Count 8) as well as four counts of violations of the laws or customs of war (Murder – Count 6, Terror – Count 9, Unlawful attacks on civilians – Count 10 and Taking of hostages – Count 11).

The indictment argues that General Ratko Mladić is individually criminally responsible pursuant to Article 7(1) of the ICTY Statute for the counts listed above, inter alia through his participation in a number of Joint Criminal Enterprises (JCEs).It is being alleged that, from 12 May 1992 until 30 November 1995, General Mladić participated in a JCE to permanently remove Bosnian Muslim and Bosnian Croat population from part of the territory of Bosnia and Herzegovina, which was claimed to be a “Bosnian Serb territory“. It is also alleged that, between 12 May 1992 and November 1995, Mladić participated in a JCE to establish and carry out a campaign of sniping and shelling against the civilian population of the City of Sarajevo, aimed to spread terror amongst them. Additionally, it is alleged that, during the period immediately proceeding 11 July and until 1 November 1995, Mladić participated in a JCE to eliminate Bosnian Muslims in the area of Srebrenica by killing men and boys and forcibly removing women, young children and the elderly from the said area. Eventually, it is alleged that during May and June 1995, Mladić participated in a JCE to take United Nations personnel hostage in order to compel NATO to abstain from conducting air strikes against Bosnian Serb military forces and targets. General Mladić is also charged as a superior pursuant to Article 7(3) of the ICTY Statute for the crimes in the indictment, for inter alia, knowing or having reason to know that crimes were about to be committed or had been committed by forces under his effective control and failing to prevent the crimes or punish the perpetrators.

The crimes alleged in the indictment include, among others: killing of Bosnian Muslims and Bosnian Croats, including leading members of these groups; detention of thousands of Bosnian Muslims and Bosnian Croats in detention facilities (concentration camps) in living conditions calculated to bring about their physical destruction; killing of over 7,000 Bosnian Muslim men and boys of Srebrenica through both organised and arbitrary executions;  wanton destruction of private and public property including cultural monuments and sacred sites, such as a number of mosques across the country; acts of murder that formed part of the objective to spread terror among the civilian population of Sarajevo through a campaign of sniping and shelling carried out between 12 May 1992 and November 1995.

II        The Verdict

The Trial Chamber, having considered all of the facts, evidence, and arguments of the parties; as well as the Statute and the Rules; and based upon the factual and legal findings set out in detail in the written Judgment, found Ratko Mladić not guilty for Count 1, but guilty, as a member of various joint criminal enterprises, of the following counts: Count 2, Genocide. Count 3, Persecution, a crime against humanity; Count 4, Extermination, a crime against humanity; Count 5, Murder, a crime against humanity; Count 6, Murder, a violation of the laws or customs of war; Count 7, Deportation, a crime against humanity; Count 8, the inhumane act of Forcible Transfer, a crime against humanity; Count 9, Terror, a violation of the laws or customs of war; Count 10, Unlawful attacks on civilians, a violation of the laws or customs of war; and Count 11, Taking of hostages, a violation of the laws or customs of war. For having committed these crimes, the Chamber sentenced Mr. Mladić to life imprisonment. 

III       International Residual Mechanism for Criminal Tribunals’ Decision

The Appeals Chamber of the International Residual Mechanism for Criminal Tribunals on 8 June 2021 delivered its judgement on the appeals filed by Mr. Ratko Mladić and the Prosecution against the judgement rendered on 22 November 2017 by a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”).

The Appeals Chamber unanimously dismissed Mr. Mladić’s appeal in relation to the Hostage-Taking JCE and dismissed his appeal in relation to the Overarching JCE, the Sarajevo JCE, the Srebrenica JCE, as well as arguments related to his fair trial rights with Judge Nyambe dissenting. The Appeals Chamber affirmed his convictions pursuant to Article 7(1) the ICTY Statute for genocide, for persecution, extermination, murder, deportation, and other inhumane acts (forcible transfer) as crimes against humanity, as well as for murder, terror, unlawful attacks on civilians, and hostage-taking as violations of the laws or customs of war under Counts 2 to 11 of the Indictment.

The Appeals Chamber further dismissed the Prosecution’s appeal in its entirety, two judges dissenting, and accordingly affirmed the Trial Chamber finding that Mr. Mladić is not guilty of genocide under Count 1 of the Indictment in relation to crimes committed against Bosnian Muslims and Bosnian Croats in certain municipalities in Bosnia and Herzegovina.

The Appeals Chamber affirmed the sentence of life imprisonment imposed on Mr. Mladić by the Trial Chamber, with Judge Nyambe dissenting.

IV       Political and Legal Effects of the Trial

General Ratko Mladić – as a participant to a JCEs – was accused of having a particular intent (genocidal intent, dolus specialis), to destroy, in part the national, ethnical and/or religious groups (so called protected groups) of Bosnian Muslims and/or Bosnian Croats as such. The intent showed it’s most extreme manifestations in municipalities Bratunac, Foca, Kljuc, Kotor Varos, Prijedor, Sanski Most and Vlasenica a significant section of the Bosnian Muslim and/or Bosnian Croat groups, more precisely their leaderships, as well as a substantial number of members of these groups were targeted for destruction.

On the other side, the genocide is confirmed to have been committed by final verdict solely in Municipality of Srebrenica (General Krstic case). The International Court of Justice (ICJ), back in 2017 had confirmed this factual background. So, if General Mladić gets sentenced for crime of genocide occurred in additional six municipalities, it would mean that the very crime of genocide had wider area to have been committed across. As Mladić was on the payroll of The Army of Yugoslavia (Vojska Jugoslavije), the second instance verdict established a direct link to regime of Slobodan Milosevic in Belgrade, and showed that genocide in Srebrenica and some other widespread and systematic ethnic cleansing campaigns were planned and executed not only by Bosnian Serb forces, but also outlined by the political and military establishment of the neighbouring Republic of Serbia. Although this scenario, introducing a new fact in the factual background of the case recently ended before the ICJ (case Bosnia and Herzegovina v. Serbia and Montenegro), revealed a notorious factual linkage between Serbia and armed conflict in Bosnia and Herzegovina – by such verdict turning this link into a legal link. This link, in the last 7-8 years is being meticulously wiped away be the verdicts of ICTY (by General Perisic acquittal and by ordering new trial for two main intelligence officers of the Belgrade regime Jovica Stanisic and Franco Simatovic, who among others were members of JCE)

V         Conclusion

As Mladić was found guilty as charged, it shed a completely new “political and legal light” on the what had happened in Bosnia during the armed conflict 1992-95: (1) it established that genocide and other war crimes were planned and executed not only by the Bosnian Serb Army; (2) it implicitly denoted Serbia a participant to an armed conflict in Bosnia and (3) it raised responsibility of the State of Serbia for crimes committed across its international borders, further implicitly confirming that the armed conflict in Bosnia was not an internal conflict (civil war) but an international armed conflict. Namely, General Ratko Mladić was on the payroll of the Armed Forces of Yugoslavia (Vojska Jugoslavije) and verdict made direct link between his involvement in the Bosnian conflict, and the (at the time) regime of Slobodan Milosevic in Belgrade, which proved that mass atrocities committed were “backed up” by the political and military establishment of the neighbouring Republic of Serbia. Eventually, the above-described factual background under no circumstances may serve to BiH as legal basis for any legal action before the ICJ as the deadline for such action set by the Statute of the ICJ had already passed. Pursuant to Article 61 of the Statute of the ICJ, 

1. An application for revision of a judgement may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence. 

[…]

The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision. 

[…]

4. The application for revision must be made at latest within six months of the discovery of the new fact. 

5. No application for revision may be made after the lapse of ten years from the date of the judgment.

What a bizarre coincidence?! Ten years had passed. Has justice really been done!?

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The Al-Khatib Trial on State Torture

By Morgane Afnaim

Morgane holds a Master degree in Human Rights and Multi-level Governance from the University of Padova with a focus on the Middle East and North Africa area – with in depth studies on Palestine and Syria –, humanitarian law, and detention matters/rights.

On the 23rd of April 2020 – in the courtroom 128 of the Higher Regional Court in Koblenz, Germany – the so-called Al-Khatib Trial, or Koblenz Trial, started. The trial charges are for crimes against humanity allegedly committed on Syrian political oppositors in Al-Khatib, or Branch 251a detention center responsible for Damascus and the surrounding area. Such a proceeding represents a landmark event because the crimes under prosecution are framed in the overall picture of systemic crimes committed by the Assad government since 2011. Thus, besides collecting evidence and knowledge which could be useful in other trials, it also brings to light the broader Syrian repressive apparatus in which the indicted have operated.

The Al-Khatib trial, based on universal jurisdiction and addressing international core crimes, appears to be particularly challenging regarding the issue of evidence gathering and corroborating. Because of its international and political nature and the massive scale of violations under review, the trial requires a great effort on both national and international levels, therefore, it is carried on together with a network of support, meaning through close cooperation between local and international NGOs, local and foreign lawyers, and international organizations. As for now, in the Koblenz courtroom, expert lawyers of the forum state and of the states where crimes occurred, together with international and local NGOs, organizations, institutions and expert ethnologists have cooperated in collecting and verifying evidence as well as putting together a strong case file. They have testified along with a great number of Syrian plaintiffs, victims and witnesses, giving detailed insights about the social power dynamics, the secret services, the military’s role, the detention facilities’ conditions, and torture methods. 

Specifically, the two Syrian officials accused in the Al-Khatib trial are Anwar Raslan and Eyad Al-Gharib. Anwar A allegedly is the head of the Investigation Unit in the General Intelligence Service of Branch 251. He is charged with being a co-perpetrator in 4000 cases of torture, 58 murders, and individual cases of sexual assault and rape in a timespan covering from April 2011 to September 2012. These alleged crimes can be classified as crimes against humanity. So far, many witnesses and plaintiffs have released testimonies against him in the Koblenz courtroom, declaring that, inside Al-Khatib, he was known as Colonel Anwar R and his task was “to gather information in any way possible”. Accused with him is Eyad A who was employed in a subdivision that worked under the Anwar R investigative unit in Branch 251. As in fall 2011 he allegedly arrested protesters and permitted the incarceration and torture of at least 30 detainees, he has been indicted of aiding and abetting crimes against humanity

Upon request of the Federal Prosecutor Office, the court has agreed to separate the trial against Eyad A. Therefore, from the 27th of January, the proceeding is dealing exclusively with Anwar R crimes, which is scheduled to be sentenced in October 2021.On the other hand, the trial on Eyad A was concluded on the 24th of February 2021, when the defendant has been sentenced. The court’s verdict found Eyad A guilty of crimes against humanity, specifically for thirty cases of aiding and abetting torture and aggravated deprivation of liberty and sentenced him to four and a half years in prison. The judge has explained the active intervention of the accused in the arrest and transport of peaceful demonstrators to the detention center, where Eyad A himself stated to have been able to “hear the screams of the tortured all the way in the cafeteria.”

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Post-Communist nostalgia in Albania

By Sidita Trimi

Sidita holds a Master degree in Human Rights and Multi-level Governance from the University of Padova, with an interdisciplinary focus and action-oriented approach to the study of human rights in a multi-level context.

Almost two decades after the fall of the communist regime in Central and Eastern Europe, a growing trend of nostalgic attitudes towards the past emerged in post-communist societies. The common trend of nostalgia observed in eastern Germany (GDR) and among former East Bloc has been referred to as “Ostalgie”, a combination of the word “Osten” meaning east and nostalgia.

Nostalgia is a byproduct of society and it is triggered by disillusionment with the present reality. Nostalgic attitudes towards the socialist past are motivated by multiple factors: the disintegration of family bonds, the lack of feeling of belonging, the fading of traditions, societal transformation, mass migration, expansion of consumerism and a growing void resulting from the pursuit of material goods.[1]

The transition from a collectivist society to a capitalist one is associated with the transformation of people’s lifestyles, disintegration of social bonds in which previously societies had been embedded, thus giving way to new societies driven by profit, shaped by neo-liberal policies such as privatization and liberalization of trade. The transition to capitalism in Albania, had far-reaching negative consequences such as the demolition of welfare state, the rise of unemployment rate, the emergence of turbo-capitalism[2], and the rise of social injustice, accompanied by a prolonged period of political uncertainty. 

In the light of such political and societal change, people long for an era when there was social order and when the individual’s fulfilment and moral values were inseparable from society. Thus, nostalgia is an attempt to imbue today’s world with the positive aspects of the bygone era. Some of the aspects that people view as positive with regards to the past include a general feeling of security, social stability, regulated employment, free education, free healthcare, state enterprises and state-controlled production, genuine social bonds, healthy lifestyle, among others.

Nostalgia can be examined on the level of individuality – as private memories about the past, and on the level of society – as collective memories about the past. Both private and collective memories of the past are based on selective remembering of positive aspects of the past and forgetting the negative ones.

For example, Lirka, former accountant and member of a former persecuted family highlights the pleasant aspects of the past such as “harmony and geniality between a close circle of family members and friends” while minimizing the negative ones such as “economic hardships and suffering of my family” due to persecution. “Whereas today people have become more distant with each-other and maybe it is so because of capitalism[3] she concludes. 

The Public Memory of Communist past in Public Discourses 

The public memory of communist period during the early phases of post-communism in Albania, was a taboo topic in public discourses. The first effort to articulate a public demand to deal with the legacy of the communist past at the national level crystallized in 2010, with the case of the “Pyramid”[4], and it centered around the proposals for the demolition versus the preservation of the building.

Berisha, the right-wing prime minister at the time planned to demolish the former museum and to erect a new “temple of democracy” building for Albania’s Assembly while Rama, head of the left-wing party in opposition insisted on preserving the building as evidence of Albania’s history and culture. [5]

Figure 1 The Pyramid”: Enver Hoxha’s former Museum. Source: Tirana.al

In 2016, a national survey[6] on Citizens’ perceptions of the communist past in Albania, revealed for the first time that Albanians “have very ambivalent feelings about the communist past.”[7]

According to the published results, 62% of the respondents felt that the Communist legacy in Albania is “somewhat problematic”, while 35% felt that it is “not a problem at all.” Economy, Corruption, Education and Environmental Pollution were chosen by respondents, among the ranks that pose “big problems” in comparison to the legacy of the communist past, whereas other ranks such as Order/Security were perceived as less problematic in comparison to the above ranks, but still more problematic than the communist legacy. [8]According to historian Celo Hoxha, “the fact that the communist crimes have still not been condemned produces this kind of result[9], the tendency to view communism with nostalgic eyes by many people in Albania.

While the legacy of socialism in Albania has been contested, one thing is certain: that socialism gave Albania railways, free healthcare, mass literacy, electricity and universal suffrage, although citizens could vote only for the Communist party. As Lucas, US reporter at Boston Herald, observed during his multiple visits to Albania, after the regime change “many people remarked the time when they had a job, but they had no freedom. Now they had freedom, but they had no jobs.” [10]

Indeed, according to the same survey, Albanians cited “Public order”, followed by “Job security” and “Good healthcare”, as the top positive aspects of the Communist period in Albania. Other positive aspects mentioned included: Education system, social equality, rule of law and minimum standards of living, respectively. Whereas “Lack of freedom”, followed by “Class war” and “Violation of Civil and Human Rights” respectively, were mentioned as the three most negative aspects of the regime, according to the same survey. Other negative aspects mentioned included: poverty, inefficiency of food, dictatorship as a political regime, presence of terror feeling, religion & education limitations and the collectivization respectively. [11]

Figure 2 Images depicting life under socialism at University, a dairy shop and a primary school. Copyright: https://www.facebook.com/naishtedikur.info/
Figure 3 Images depicting the social order at the time in various locations such as the main square in the capital, in agricultural cooperatives[12], the state-owned TV station and railway stations. Copyright: https://www.facebook.com/naishtedikur.info/

Bunkers: from symbols of isolation to mediators with the world       

After almost a decade of being forgotten, the turn of the millennium witnessed a reawakening of local’s interests towards the neglected concrete bunkers scattered around the country. Once a symbol of internal domination and isolation during the communist regime, today the bunkers are nothing but remains of a collapsed political regime and a bankrupt ideology, which are now publicly mocked. 

If used as souvenirs, bunkers have not ceased to communicate, but are being employed to communicate a very different message: a self-deprecating, post-communist kitsch aesthetic which recuperates the past as ‘heritage’ through the idiom of mockery.[13]

Figure 4 Bunker souvenirs (ashtray, penholders). Copyright: Nuria Ling.

The ubiquitous bunkers are the quintessential example of neo-nostalgia combined with a market conscious attitude that has characterized the new wave of heritagization in Albania.

The last years have seen an increasing interest in appropriation of the bunkers, proper to the consumption of “bunker fantasy” and with interest for the tourism sector. While some of them have been repurposed as café and restaurant, “bed & bunker” and even a tattoo parlor, others have gradually become what Theodor Adorno called “kulturlanschaft[14], ruined constructions returned to nature. Once constructed as fortification objects for the function of self-defense, today they can be appreciated for their aesthetic and artistic value.

Figure 5 Repurposed Bunkers (as restaurant, ‘B&b, tattoo parlor). Source: Screenshot National Geographic, University Polis, IntoAlbania.

Elton Çaushi, co-founder of Albanian Trip and local tour guide operating in Tirana, has found creative ways to engage with the communist material heritage by offering alternative tours such as “Bunkers and the Bizarre History of Albania[15] during which the visitors have the chance to travel to various sites where bunkers slowly ingrained on the ground and covered by plants, sea or soil are located, and enjoy an unusual visual journey where one can observe the sporadic intervening of nature with human labor in the most remote locations.

Figure 6 “Kulturlandschaft”  bunkers in different locations. Source: David Galjaard /Concresco.

As Çaushi highlighted: “It is important to condemn Enver Hoxha and one way to do so is by converting those structures that he had created to keep people isolated into structures that attract people/custom.” [16]     

Communist-era movies: “offensive and denigrating” vs. “a cinematic heritage”

Figure 7 The logo of Albanian cinematographic studio “ New Albania” which produced films from 1952 to the end of the regime. Copyright:  https://it-it.facebook.com/pg/Kinostudio-Shqiperia-e-Re-208874439145295/photos/

On 30 Mach 2017, a proposal requiring the ban on the broadcast of communist-era films from national media, sparked controversy and spurred a public debate on decommunization. 

The proponents of the proposal argued that the screening of communist-era movies loaded with propaganda “keeps alive and activates nostalgia for the dictatorship” and “does great damage to public health[17], particularly to the young generation who are not well-informed about the communist era atrocities due to a gap in school curricula. The propaganda falsifies and distorts historical events, manipulates the truth, glorifies the Labor Party and its leaders and creates moral and national stigma by portraying members of certain groups as dangerous enemies of the country. 

On the other hand, the critics of such proposal including many film producers, film critics and actors who starred in the communist-era films, shared a concern that banning those movies from television screens would result in an almost complete erasure of Albania’s cinematic heritage.[18]

Kolec Traboini, a screenwriter for the KinoStudio during the communist era, considered the proposal inacceptable as “it is one thing to hate communism, and another is to know the realities of the time.”[19] For Mark Cousins, director, film critic and advisor at the Albanian Cinema Project, banning the communist films would be a counter-productive way to deal with the wounds of the past as “Films didn’t commit the crimes of the Hoxha era” and “they are not better or worse than their times” but “they are evidence of what was thought and felt.”[20]

For the broader audience, the good acting, authentic movie characters and memorable communist-era film quotes evoke memories of a familiar sight of childhood in the days gone by. 

Afterall, the proposal did not receive enough support from the public and at present, there are no laws in place to regulate the broadcast of communist-era cinematographic production in national media.

A Contested Collective Memory: The fine line between remembrance and appropriation of communist symbolism

The inauguration of Bunk’Art in 2014, a communist-era underground bunker transformed into a museum dedicated mainly to communist memory at a time when the nation’s communist memory was still contested, sparked public debates and accusations of the project being politically motivated. In addition, the fact that the government who was responsible for the realization of Bunk’Art was a socialist one[21], has been criticized as, among other things, an attempt to appropriate the symbolism of the communist regime. [22]

Bollino, curator of Bunk’Art and Bunk’Art 2, explains that alongside the technical difficulties of recovering communist-era documents, “the greatest difficulties were cultural: […] as he “struggled a lot to make it clear that remembering the facts of the communist period does not mean having nostalgia for communism.”[23]

The cultural difficulties intensified further with the inauguration Bunk’Art 2 museum in 2016, which was not well-received by the public and became subject to controversy. [24]

The designation of the entrance in the form of an artificial igloo-shaped bunker, similar to those constructed during Hoxha’s regime and its location in a central public space without prior public consultation, caused public reactions which eventually led to a protest. The protest was fueled by accusations of the right-wing party against the left-wing party in power, for being insensitive towards the former persecuted people or families of victims who suffered under the communist regime, alongside accusations for evoking nostalgia for the dictatorial regime. 

Eventually, the protest of December 2015 degenerated into vandalism and the fake bunker was set on fire and was defaced by angry protestors. The holes that remained in the external walls of the bunker were covered in transparent plastic and repurposed as windows, thus ironically commemorating the intense public reactions against it. The museum has already been accepted by the population now. 

For Elton Caushi, co-founder of Albanian trip “the entrance-bunker was an eccentric choice. The damage that was done to it was intentionally covered with plastic to show a part of Albania’s contemporary history too, to make the discussions about the bunkers relevant.” 

Figure 8 The entrance of Bunk’Art 2 showing the plastic covered holes over the dome repurposed as windows. Copyright: Own photograh.

Regardless of the ambivalent feelings towards the communist regime and the contested collective memory in Albania, the results of the national survey[25] show that nearly 77% of the respondents support the creation of a museum about the communist regime whereas 63% think that the communist-era sites of persecution should be preserved for future generations.   

Nostalgia: “A Necessary Evil” 

All in all, nostalgia is a complex emotion and should not be equated or reduced to an irrational desire to restore the past, as it has been broadly misperceived. It should be treated as part of a broader and more complex healing process, and an attempt to come to terms with the difficult past, in order to grasp the realities of the present and address the inherent inequalities of post-communist societies. 

Besides, nostalgia and especially neo-nostalgia combined with the emerging market conscious attitude, have served as a push factor for curious foreign visitors who are interested towards the so-called dark tourism associated with the communist era in Albania, a period during which the country was cut out from foreign influences. 

Thus, it is no coincidence that in the new wave of heritagization, the ubiquitous bunkers, have been carefully selected as the quintessential symbol of Albanian communism in tourism marketing. 

As Caushi said, “Bunkers are the symbol of Albania which are used in tourism marketing, it is a cliché that sells… this comes from a tragic past but it’s not the only example… even at the Colosseum people were killed to entertain other people or at the Pyramids where thousands of slaves were used to construct a tomb for the pharaoh.” 


[1] Sepkowski 2010 in Reksc 2015:106. “Nostalgia for Communism in the Collective Imaginations.” Procedia – Social and Behavioral Sciences, Vol. 183, pp. 105-114.

[2] Turbo-capitalism refers to an unregulated form of capitalism with financial deregulation, privatization and lower tax on high earners. Turbo-capitalism involves: the absence of regulation for banking/finance system.

[3] Interview with Lirka Preka [5 November 2020, Shkoder]

[4] A museum built in honor of Enver Hoxha, located in the capital’s city center.

[5] BBC Albania, 2010. “Perballje me Piramiden.” Source: http://www.bbc.co.uk/albanian/regionalnews/2010/11/printable/101102_debati_piramida.shtml

[6] Institute for Development Research Alternatives (IDRA), 2015. Citizens’ understanding and perceptions of the Communist past in Albania and expectations for the future. Available at: https://www.osce.org/files/f/documents/d/1/286821.pdf

[7] BalkanInsight, 2016. “Albania Survey Shocks Victims of Communist Regime.” Source: https://balkaninsight.com/2016/12/12/albania-struggles-to-fight-the-root-of-communism-nostalgia-12-09-2016/  

[8] Ibid. 5. Pg. 15.

[9] Ibid. 6

[10] Lucas, 2002: 202. “Rrumpalla: Rummaging through Albania.” 

[11] Institute for Development Research Alternatives (IDRA), 2015. Citizens’ understanding and perceptions of the Communist past in Albania and expectations for the future. IDRA/OSCE 2016: 60. Available at: https://www.osce.org/files/f/documents/d/1/286821.pdf

[12] Agricultural cooperatives were state-administered farms created after the collectivization of land started (1946-1990). It collectivized the land and the agricultural production, the trade and means of production while the revenue generated from the agricultural cooperatives were distributed to the people who worked in these cooperatives. By 1979 in Albania there were no existing individual private farms. 

[13] Regis 1999 in Galaty, L. M., Stocker, S. and Watkinson, Ch. 1999: 184. “The Snake that Bites: The Albanian Experience of Collective Trauma as Reflected in an Evolving Landscape” in Brown, K. and

Bergo, B. “The Trauma Controversy”, SUNY Press, pp. 171-187. Available at: https://www.academia.edu/397431/The_Snake_That_Bites_The_Albanian_Experience_of_Collective_Trauma_as_Reflected_in_an_Evolving_Landscape

[14] Pike, D. 2003: 59. “The Bunkerization of Albania: Repurposing the architecture of militaristic

isolationism.” Cabinet: A Quarterly of Art and Culture, Issue 50 / Money, pp. 54-61. Available at: https://www.cabinetmagazine.org/issues/50/pike.php

[15] Albanian Trip. Website:  http://www.albaniantrip.com/bunkers-beaches/

[16] Interview with Elton Çaushi [24 November 2020 – Tirana]

[17] BalkanInsight, 2017. “Proposed Ban on Albanian Communist Film Sparks Backlash.” Source: https://balkaninsight.com/2017/03/16/initiative-to-ban-albanian-communist-movies-couse-backlash-03-15-2017/

[18] An estimate of 200 films were produced by the Albanian film Institute from 1945, and then by the Kinostudio from 1952 to the end of the regime.

[19] Ibid. 15

[20] Cousins, M. 2017. “In the Realm of the Censors”, Film Quarterly. Source: https://filmquarterly.org/2017/04/28/in-the-realm-of-the-censors/

[21] As the Socialist Party is the left-wing party that has emerged from the ashes of the communist party in the 1990.

[22] Iacono, F., 2018. “Revolution and counter-revolution; or why it is difficult to have a heritage of

Communism and what can be done about it.” International Journal of Heritage Studies, 25:5, pp.

507-521. Source: https://www.tandfonline.com/doi/full/10.1080/13527258.2018.1450280  

[23] BBC News, 2018. “The Nuclear Bunker in Europe’s North Korea.” Source: https://www.bbc.com/future/article/20180622-the-nuclear-bunker-in-europes-north-korea

[24] Ibid 21.

[25] Source: https://www.osce.org/files/f/documents/d/1/286821.pdf

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The First Impeachment: from a Comparative Study of its British Historical Roots to a Contextual Analysis

By Dr Justin Orlando Frosini and Alexis Keys

Justin O. Frosini is Director of the Center for Constitutional Studies and Democratic Development and an Adjunct Professor of Constitutional Law at Johns Hopkins University’s School of Advanced International Studies (SAIS). He is also Associate Professor of Comparative Public Law at Bocconi University. 

Alexis Keys is a MAIA candidate at SAIS Europe and plans to study diplomacy, policy analysis and the conditions serving the proliferation of peace and self-determination in Africa and the Middle East. She is a research assistant at the Center for Constitutional Studies and Democratic Development.

House of Representatives votes to impeach President Donald J. Trump (Source: Wikipedia)

Combining the areas of expertise of the two authors the paper starts by providing the contemporary context to the first Trump impeachment then it goes on to compare today’s legal instrument with the British historical roots of impeachment by making reference to the Framers’ records from the late 18th century during the Constitutional Convention in 1787 and subsequent debates for ratification. The third section of the paper then addresses the actual case that brought about the approval of articles of impeachment against President Trump and offers a critique of the Senate Trial. At this point, the paper turns to the past so as to make a comparison between all previous cases of impeachment with the first Trump impeachment and then, having in mind public trust, the paper offers some predictions for the future combined with an intricate use of counterfactuals. The paper ends by encouraging concerned parties to look beyond political polarization because the current dynamics at work in shaping American political parties and partisan moods are also shaping electoral oversight, constitutional interpretation by the legislature, and the scope of executive authority. In the final analysis, the paper underlines the fact that one should never forget that impeachment exists to uphold democratic constitutionalism.

Read the entire article on DPCE on line: http://www.dpceonline.it/index.php/dpceonline/article/view/1300

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In Memoriam of Jovan Divjak: the Hero of Sarajevo

By Dr Carna Pistan 

Dr Carna Pistan is an affiliated Scholar at the Center for Constitutional Studies and Democratic Development and Marie Curie Global Fellow for the project “Illusions of Eternity: the Constitution as a lieu de mémoire and the Problem of Collective Remembrance in the Western Balkans”

(11 March 1937 – 8 April 2021)

It is with sadness that the Center for Constitutional Studies and Democratic Development has learnt of the passing of Jovan Divjak – the former Bosnian army general, who defended Sarajevo during the 44-month-long siege of the city. The siege of Sarajevo began 29 years ago and lasted until 29 February 1996. It was the longest siege of a capital city in modern history (1.425 days), and one of the most dramatic and emblematic events of the violent dissolution of the former Yugoslavia, with thousands of civilians killed and wounded. 

With the outbreak of the war in BiH in April 1992, Jovan Divjak firmly rejected the logics of nationalism and division along ethnic lines, and fought for a multi-ethnic BiH. Although he was an ethnic Serb born in Belgrade and a retired officer of the Yugoslav National Army (JNA), he immediately chose to fight against the army he had served under and joined the practically unarmed Bosnian army, which was just being formed, to defend Sarajevo and BiH’s independence. As he once explained: “It was natural to be with those who were attacked, who did not have weapons […]. The idea of a multi-ethnic Bosnian army had won me over.” Divjak identified himself as a Bosnian and anti-nationalist: […] I did not stay in Sarajevo as a Serb. I do not define my identity through religion or nationality. I am Jovan Divjak, a citizen of this country.” During the Sarajevo siege, Divjak coordinated the defense of the city, and became the Deputy Commander of the Territorial Defense of BiH and the Sarajevo Territorial District. Divjak’s memories of the Bosnian war (1992-1995) are to be found in his books: “Sarajevo, mon amour” (Buchet-Chastel, 2004 with a foreword by Bernard-Henri Lévy; Italian edition: Infinito edizioni, 2015), and “Rat u Hrvatskoj i Bosni i Hercegovini 1991–1995” (The War in Croatia and Bosnia and Herzegovina, Jesenski i Turk, 1999). 

After the war, Divjak continued to fight for a “civic BiH” by devoting himself entirely to humanitarian work. In 1994, he funded the Association “Obrazovanje gradi BiH” (OGBH – Education builds BiH), which assists with the education of children who lost their parents in the war. Over the years, OGBH has granted thousands of scholarships to orphans and children from poor families. In July 2001, Divjak was awarded the Legion of Honour by France for “his civic sense, his refusal of prejudice and ethnic discrimination.” He also won other international and national awards, including the Order of Lafayette, Sixth of April Award of Sarajevo, the International League of Humanists Plaque, and the Plaque of the Sarajevo Canton. He appeared also in the BBC documentary “The Death of Yugoslavia” (1995), Sergio Castellitto’s “Venuto al mondo” (2012), and is the subject of the Al-Jazeera World documentary “Sarajevo My Love” (2013). 

Nonetheless, in the post-war period Divjak faced several lawsuits related to the war. While in Sarajevo he remain one of the most beloved wartime figures, the hero who defended the city and the symbol of multi-ethnic BiH, in neighbouring Serbia Divjak is seen as a “traitor.” On 3 March 2011, while on his way to Italy for a conference, Divjak was arrested in Vienna in response to a Serbian arrest warrant accusing him of war crimes related to an attack on a Yugoslav Army convoy in Dobrovoljacka Street in Sarajevo of 3 May 1992, during which several JNA soldiers were killed. Although his name did not appear on the lists of the ICTY or those of Interpol, the Austrian police arrested Divjak on the basis of a “black list” drawn up after the Bosnian war by Milosevic’s Serbia, where his name appeared along with 17 other people who, like Divjak, opposed the war of ethnic cleansing. A few days later after being arrested, Divjak was released on bail, and finally an Austrian court rejected Serbia’s extradition request by basing its ruling on an earlier decision of the Hague tribunal (ICTY), which stated that there was not enough evidence to start proceedings against Divjak, as well as due to the inability to guarantee a fair trial in Serbia. Divjak denied the allegations and insisted he ordered the shooting to stop. Indeed, in a television recording of that event, Divjak can be seen shouting: “Do not shoot!” Furthermore, in January 2012, the Bosnian State Prosecutor’s Office suspended an investigation against 14 suspects, including Divjak, although in 2018, the Constitutional Court ordered the prosecution to reconsider the case. In March 2017, the Croatian State Attorney’s Office indicted Divjak and several other Bosnian Army officers for war crimes against Croats during the war in Bosnia. The lawsuits Divjak had to face in the post-war period sadly reflect what one could define as “Balkan stylememory-making” where heroes are often considered as war criminals, and war criminals as heroes. 

For many years now, students from the Johns Hopkins University SAIS Europe and the University of Bologna have had the opportunity of meeting Jovan Divjak at his Association “Obrazovanje gradi BiH” during the annual CCSDD Sarajevo Study Trip – a four-day study trip to Sarajevo organized to give students the opportunity to meet with representatives of organizations currently engaged in post-conflict reconstruction, human rights issues and democratic development of BiH. During these meetings, Divjak would tell students about the past and current political, social and economic situation in BiH, as well as historical facts about the former Yugoslavia and the conflict of the 1990s. With the former general as their guide, our students also had the unique opportunity of visiting two important places of memory: the Tunnel of Hope(the only connection Sarajevo had with the outside world during the siege), and the Old Jewish Cemetery (the largest Jewish cemetery in Southeast Europe, which was on the front line during the Bosnian war). 

General Divjak with a group of students of the CCSDD Sarajevo Study Trip

We will all remember these meeting and visits with utmost gratitude.

Thank you “Hero of Sarajevo” for everything generations of SAIS and UNIBO students have learnt from you!  

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What Turkey’s withdrawal from the Istanbul Convention means for women in Turkey and beyond

By Allegra Wirmer

Allegra is a first-year master student in International Relations at Alma Mater Studiorum – Università di Bologna, where she focuses on international affairs, security studies and the Middle East.

BBC website (https://ichef.bbci.co.uk/news/976/cpsprodpb/1547C/production/_117646178_mediaitem117646176.jpg)

In an unexpected, if unsurprising, turn of events, Turkish president Recep Tayyip Erdoğan announced his country’s withdrawal from the Convention on Preventing and Combating Violence Against Women and Domestic Violence on March 20th. The treaty, better known as the Istanbul Convention, creates obligations for State Parties aimed at protecting women from violence. The President’s move has ignited protest in Turkey and provoked widespread condemnations from international leaders, as it is seen as a further rejection of human rights standards by the Turkish leadership. For years, fears that Turkey is progressively drifting toward right-wing authoritarianism under the ruling Justice & Development Party (AKP) have worried its neighbors and the global community of states.

The Convention

The Istanbul Convention is a Council of Europe human rights treaty which was opened for signature in 2011, and currently has 46 signatories (among them the European Union). Of these, 34 have ratified the treaty. Ironically, Turkey was the first state to sign and ratify the Convention, which entered into force officially in August 2014. The treaty is the outcome of the Council of Europe’s long-term commitment to fighting violence against women through policy recommendations and initiatives around the continent, as well as landmark pronouncements by the institution’s judicial arm, the European Court of Human Rights. 

The Convention is the first legally binding international instrument focused specifically on the prevention of violence against women, articulated through a variety of provisions which encourage State Parties to take any necessary measures to counter this phenomenon. The treaty applies to all victims of gender-based violence but notes how particular attention must be paid to women, as they are disproportionately subject to such actions. The 81 articles, divided into 12 chapters, spell out obligations for State Parties constructed around the “4 Ps approach”: Prevention, Protection and support of victims, Prosecution of offenders, integrated Policies. The treaty emphasizes the State’s responsibilities to intervene not only where women are subject to violence in the public sphere, but also in the domestic sphere, where many gender-based abuses occur which are often ignored as intrusion into the private sphere of the family is traditionally frowned upon.

Interestingly, the Convention is outspoken in placing the phenomenon of violence against women in the wider context of gender-based discrimination in society. Indeed, the Preamble clearly identifies violence against women as only one of the expressions of “historically unequal power relations between women and men”, recognizing that advancements on the elimination of violence against women cannot be separated from societal progress on the issue of gender equality. This holistic view of such violence as a symptom of patriarchal dynamics of oppression is visible throughout the treaty, which does not merely focus on the topic as a crime but prescribes, for example, the need for an education-based approach to prevention. 

The situation in Turkey

Erdoğan’s decision to withdraw his country from the Convention sent shockwaves through the nation. The will to make Turkey the first country to denounce the treaty since its inception had been looming threateningly since last summer, when talks of withdrawal had inflamed public opinion, creating schisms within the AKP and even within Erdoğan’s own family. While hardliners indicated the Convention as the root cause of major problems in Turkish society, others close to the AKP had restated the need for membership to safeguard the rights of Turkish women. Among these voices was KADEM, the Women and Democracy Association led by Erdoğan’s daughter and daughter-in-law. The opposition, women’s associations and human rights organizations had been among the voices protesting the proposed action. Apparently, this unrest was not enough to steer the President away from his intents.

statement released by the government on March 22nd commented the decision as stemming from the supposed “hijacking” of the Convention by a group of people “attempting to normalize homosexuality – which is incompatible with Turkey’s social and family values”. The text nonetheless restates Turkey’s commitment to the protection of women, which it argues to be able to efficiently undertake even without the Convention, citing domestic legislation and its ratification of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) as evidence.

Nowhere in the statement is there mention of the realities of gender-based violence in the country, where femicides have increased drastically in recent years and violence against women is often justified in relation to male “honor”. The government’s extremely conservative stances on women’s status in society, often characterizing them exclusively as mothers and caretakers, show its prioritization of traditional ideals of family and masculinity over the livelihood of its female citizens. The consequences of this are evident: the Turkish women’s rights organization We Will Stop Femicides recorded 300 confirmed femicides in 2020. This number does not include the 171 women who were found dead and declared suicides or natural deaths in highly suspicious circumstances. High-profile cases of violence resulting in death and physical mutilation of victims, often coupled with sexual assault, spell the gruesome reality of fear and repression which Turkish women are forced to suffer most often at the hands of their own partners and family members.

The actions of the Turkish government have drawn criticism from around the world. From the EU institutions, High Representative and Commission VP Josep Borrell condemned the “dangerous message” sent around the world by Turkey, while Commission President Ursula von der Leyen called upon all signatories to ratify the Istanbul Convention. US President Biden released a statement rebuking Turkey’s “disheartening step backward”, emphasizing the need to fight gender-based violence also in light of a recent murder spree in Atlanta, Georgia, which had targeted Asian women. Local Turkish women’s associations decried the decision and called citizens to the streets for protest rallies.

Possible implications for the future

The repercussions of Erdoğan’s move will be unravelling in the coming weeks and months, but the possibilities are grim both domestically and internationally. Observers are worried about the fate of women’s and LGBTQ+ rights in Turkey, as both groups have been subject to marginalization and violence either at the hands of the government or with its tacit approval. In any case, his move widens the gap between Turkey and the West; what this means for the already stalled talks of accession to the European Union remains to be seen.

However, the Turkish decision could have wider repercussions when it comes to the adherence to the Istanbul Convention across Europe. The Convention is yet to be ratified by twelve signatories, six of which are members of the European Union. Among these, the governments of Hungary, Bulgaria and Slovakia have already openly stated their opposition to ratification. In July 2020, the Polish government announced its intention to withdraw from the Convention, which it had already ratified. In each of these cases, the Convention has been presented as an attack on national values of family and societal wellbeing by ominous liberal forces. This framing of the Convention by right-wing nationalist groups has contributed to the undemocratic spirals which have propelled many European countries further away from the guiding principles of the EU.

Whether Erdoğan’s initiative will have a domino effect of withdrawals from the Convention remains to be seen. Certain is that this event represents a dangerous precedent of politicization of international human rights standards, by creating a false partisan narrative around rights which should be seen as neutral and thus universal. By weaponizing human rights treaties such as the Istanbul Convention for political gain, leaders such as the Turkish president are reframing the human rights discourse in a way that corrupts its original meaning. Above all, these actions contribute to the further victimization of groups which are already extremely vulnerable and subject to discrimination, in Turkey and beyond. 

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The Repetition of History and Democratic Decay: The Case of Sri Lanka

By Carlee Wright

Carlee Wright is first-year MAIA student and Research Assistant at the CCSDD. She is also a Virtual Student Federal Service (VSFS) intern in the Political Section at the U.S. Embassy to Sri Lanka in Colombo. 

Most likely, many of us have heard the term “history repeats itself.” This phrase is used almost as a heed that sociopolitical and economic quandaries from the past could reemerge and cause similar issues for the current populace. In the case of Sri Lanka, this maxim is eerily relevant. History is indeed repeating itself –– and in almost an identical manner. 

The 18th Amendment to the Constitution: 

When former President Mahinda Rajapaksa came to power in 2005, he proposed the 18th Amendment to the Sri Lankan Constitution, later ratified by the Sri Lankan Parliament, which brought about several modifications. The most notable of these changes include the following:

  1. Bringing independent commissions under executive authority
  2. Substituting the 10-member Constitutional Council with a 5-member Parliamentary Council
  3. Giving the President power to remove the Prime Minister
  4. Establishing presidential immunity
  5. Eliminating presidential term limits

These changes to the Constitution were presented by the Mahinda Rajapaksa Administration as necessary given the vulnerable political situation in the country. Under former President Mahinda Rajapaksa, the nearly 30-year civil war in Sri Lanka ended. This conflict has often been characterized as ethnic between the Tamil and Sinhalese, but in reality it occurred as a result of economic injustice. The war laid the foundation for a political atmosphere that supposedly justified all-powerful politicians and reactionary policies. 

The 19th Amendment to the Constitution: 

Then, in a landmark election in 2015, Sri Lankans elected former President Maithripala Sirisena. One of the most notable elements of the Sirisena Administration was the approval of the 19th Amendment, which repealed the 18th Amendment. The main features of the 19th Amendment were that they: 

  1. Gave independent commissions back their independence
  2. Reintroduced the 10-member Constitutional Council
  3. Revoked the President’s power to remove the Prime Minister
  4. Allowed court cases to be brought against the President
  5. Limited the presidential term limit to five years

For many Sri Lankans, the Sirisena Administration reestablished democratic norms. 

The 20th Amendment to the Constitution: 

However, in November 2020, Sri Lanka elected Gotabaya Rajapaksa, the brother of Mahinda Rajapaksa and former Secretary of Defense, as President. President Gotabaya Rajapaksa implemented the 20th Amendment to the Constitution, which removes the 19th Amendment and essentially reinstates the 18th Amendment introduced under his brother. The contents of the Amendments are inherently indistinguishable. For example, the 20th Amendment once again: 

  1. Recategorizes independent commissions under executive authority
  2. Reintroduces the 5-member Parliamentary Council
  3. Grants the President power to unilaterally remove the Prime Minister
  4. Provides the President with immunity against legal proceedings during his/her presidency
  5. Removes presidential term limits 

Indeed, the 20th Amendment is essentially a replication of the 18th Amendment. In addition, another sociopolitical issue emerged once again that seemingly validated this expansion of power (at least for the President and his party): the 2019 Sri Lanka Easter bombings. This terrorist attack shook the island nation once again and gave President Gotabaya Rajapaksa a reason to consolidate his power with the excuse that the country’s stability depended on it. 

A Historical Approach to Understanding Unconstitutional Constitutional Amendments:

Another notable aspect of this repetition in history is that it is all happening within the legal framework of Sri Lanka’s Democratic Constitution. Therefore, another central question arises: is the 20th Amendment in Sri Lanka an example of an unconstitutional constitutional amendment?[1] These are amendments that adhere to the official constitutional amendment process, “but are aimed at achieving anti-democratic aims –– i.e., to help powerful presidents extend their term in office, to remove parliamentary or federalism-based checks on executive power, and to narrow or suspend basic human rights protections.”[2] Based on this definition, not only is the 20th Amendment clearly an example of an unconstitutional constitutional amendment, but the 18th Amendment is as well. 

The Future of Democracy in Sri Lanka:

The implications of the ratification of the 20th Amendment are alarming. President Gotabaya Rajapaksa announced at the inaugural session of the new Parliament that after revoking the 19th Amendment, the next step during his tenure would consist of “formulat[ing] a new Constitution suitable for the country.”[3] The will to draft a new Constitution, coupled with the fact that the political party led by President Gotabaya Rajapaksa, the Sri Lanka Podujana Peramuna Party, leads a majority in Parliament, might just establish Sri Lanka as an authoritative government with a president that manages to serve for life. Therefore, in the case of Sri Lanka, the 20th [unconstitutional constitution] Amendment may not simply contribute to the decay of democracy, but decompose of it entirely.


[1] An unconstitutional constitutional amendment, according to Dixon, Landau, and Roznai in their article “From an Unconstitutional Constitutional Amendment to an Unconstitutional Constitution? Lessons from Honduras” is defined as “the use of tools of constitutional change to undermine democracy.” 

[2] Dixon, Rosalind and David Landau. “Transnational Constitutionalism and a Limited Doctrine of 

Unconstitutional Constitutional Amendment.” Oxford University Press, vol. 13, no. 3, 2015, pp. 606-38. doi:10.1093/icon/mov039. Accessed 2 Oct. 2020.

[3] “Sri Lanka to Quash Constitutional Amendment that Pruned Presidential Powers: Sri Lanka 

Constitution.” EFE News Service, Aug 20, 2020ProQuesthttp://www.proxy.library.jhu.edu/login?url=https://www.proquest.com/wire-feeds/sri-lanka-quash-constitutional-amendment-that/docview/2435536531/se-2?accountid=11752. Accessed 7 Jan. 2021. 

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South Sudan’s decade-long transition: A country in search of a permanent constitution

By Zach Nelson

Zach Nelson is a first-year graduate student studying International Development at Johns Hopkins School of Advanced International Studies (SAIS). He was previously based in Juba, South Sudan, where he led research assessments on humanitarian accountability, and in Yangon, Myanmar, where he worked on conflict risk-monitoring.

A reveler celebrates in Juba the eve of South Sudan’s independence on 9 July 2011. Ten years later, his country remains without a permanent constitution.” Credit: Creative Commons  

In September 2018, South Sudan’s major warring parties signed the Revitalized Agreement on the Resolution of Conflict in South Sudan (R-ARCSS), bringing five years of brutal civil war to a close. February 2021 marks one year since the establishment of the Revitalized Transnational Government of National Unity (RTGoNU). The formation of the RTGoNU was hailed as a major achievement because it indicated that the implementation of the R-ARCSS was succeeding.

However, a year after the formation of the RTGoNU and nearly a decade since becoming the world’s youngest country, South Sudan remains in dire straits. The country is in the throes of a protracted humanitarian crisis,[1]subnational conflict has ticked up and chances of a political settlement appear dim.

President Salva Kiir and first Vice President Riek Machar—the two main belligerents of the country’s brutal civil war—maintain a delicate peace. However, continued quarrelling over power-sharing arrangements and decentralization of authority threaten to derail the fragile progress that has been made. 

Many of these disagreements between Kiir, Machar and other aggrieved parties can be traced to the fact that South Sudan is a country without an official constitution. A series of transitional constitutions, coupled with weak rule of law, has inhibited the ability of the South Sudanese leadership to deliver services, craft a national identity and maintain harmony between its 64-recognized ethnic groups. South Sudan faces potentially destabilizing national elections as early as 2022, in what some observers are calling a “final showdown”between Kiir and Machar. To forge a durable political settlement and prevent further violence, space must be created for constructive dialogue to reassess critical constitutional provisions.

As starkly articulated in the International Crisis Group’s (ICG’s) February 2021 country report: “South Sudan—the world’s newest country—needs a reset, if not a redo.” Part of this process should be crafting a permanent constitution. 

Key Constitutional Issues

The architecture of government and decision-making is currently set out in the Transitional Constitution of South Sudan (TCSS). Initially conceived to be a temporary governing document at the time of South Sudan’s July 2011 independence, the TCSS is riddled with provisions that concentrate power in the executive, thus limiting consensus-building between the heavily-armed ethno-political blocs of the Dinka (President Kiir’s ethnic group and the nation’s largest), the Nuer (Machar’s bloc and the country’s second largest ethnic community) and the Equatorians, a scattered grouping of ethnicities along the southern border. 

Constitution-making in South Sudan has been exclusive and identarian 

South Sudan’s first governing document, the Interim Constitution of South Sudan (ICSS) was the outgrowth of the 2005 Comprehensive Peace Agreement (CPA) that marked the end of the 25-year civil war between the Khartoum government and southern rebels, represented by an austere commander named John Garang, who was at the helm of the Sudan People’s Liberation Army/Movement (SPLA/M).[2] The ICSS was drafted by signatories entirely without popular participation. The lack of citizen engagement was justified on the grounds that the ICSS was first concerned with stopping armed conflict, and then with fashioning a state.  

The ICSS set a precedent for a constitutional process that was exclusive and opaque. At the time of independence, concerned with securing his own power base, newly-minted President Kiir commissioned a constitutional review committee, through which the TCSS was established. This committee was stacked with elites directly affiliated with his political apparatus. The President’s appointment of a handful of opposition officials and civilian representatives to the committee was a weak attempt at popular participation, derided as feckless and performative. 

While the majority of provisions in the TCSS mirrored the ICSS, key alterations were the result of an exclusive, opaque process; veering South Sudan away from a consociationalist federal arrangement and vesting extraordinary power in the office of the executive.

The TCSS concentrates power in the hands of the executive

Three clauses in the TCSS have concentrated power in the center and have resulted in a presidency that controls the content of constitution-making while insulating itself from accountability for its actions.

Derivation of Authority (Article 3(2))

“The authority of the government at all levels shall derive from this Constitution and the law” Article 3 (2)

Traditional federal constitutions derive their authority from the will of the people, rather than the letter of the law. As discussed, the credibility of the TCSS, was suspect from its inception: lacking popular participation and not reflective of the norms, needs and desires of the South Sudanese people.

Extraordinary executive authority (Article 101)

“The President shall perform the following functions: “supervise constitutional institutions…initiative constitutional amendments and legislation…remove a state Governor and/or dissolve a state legislative assembly in the event of a crisis in the state.”


Article 101, which enumerates the responsibilities of the office of the President, created a king-like executive in South Sudan. President Kiir has interpreted these provisions as being without limit. For instance, only eighteen months after independence, he summarily dismissed the governors of both Lakes and Unity State. This act was wantonly unconstitutional and motivated by the governors’ perceived comradeship with VP Riek Machar. President Kiir has consistently exercised these provisions without due process.

In the run-up to the 2013 civil war, Machar publicly announced his intention to challenge Kiir in the 2015 federal elections. Harnessing his constitutional powers, Kiir worked to eviscerate Machar’s power base. In what many observers credit with the single act that most contributed to the start of conflict, in July 2013 Kiir stripped Machar of the vice presidency and dismissed all the ministers and deputy ministers of his cabinet. The civil war would erupt less than five months later.

Kiir retains unitary constitutional authority to strip any official of his or her role and can declare a state of emergency in defense of the “national interest.”

Non-democratic secession process (Article 102 (2))

“If the office of the President falls vacant, the post shall be assumed by the Vice President pending elections that shall be conducted by the National Elections Commission within sixty days of the vacancy.” Article 102 (2)

There is little doubt that VP Machar is interested in Kiir’s job. The fact that the VP does not automatically become president and that the National Elections Commission controls the reelection process, is a brazen mandate directed by the Presidency to ensure that makes it very difficult for Machar to assume the top post. 

Indeed, this clause underscores the wider instrumentalization of the ethnic security dilemma that persists in the country today. Factions locked out of power have few incentives to believe their access to decision-making structures are legally backstopped by constitutional provisions. They feel pressured to take up arms in order to secure their own sense of safety and well-being. This then leads to a brutal feedback loop of conflict that has played out with alarming regularity in post-independence South Sudan.

The Path Forward

While it is debatable whether constitutional issues were the sparks that catalyzed the South Sudanese Civil War, they certainly contributed to maintaining violence and restricting opportunities for successful resolutions. 

In order to ensure a peaceful transition and build constitutional resilience to shocks, South Sudan needs a permanent constitution. The TCSS was always considered a placeholder document; conceived as a constitution for a “nation-in-waiting” until a more robust constitutional process could occur after the predicted independence referendum. 

The new constitution must incorporate provisions that constrain the power of the executive, mandate the separation of powers and harness South Sudan’s diversity in a way that decentralizes decision-making and builds a culture of inclusivity.

Ensuring an open and participatory process is key: representative participation ensures durability and confers legitimacy. South Sudan’s permanent constitution must afford citizens the opportunity to fashion the constitution in their own image. There is a hearty appetite for this across all strata of South Sudanese society. A key indication of the centrality of constitutional issues is the fact that constitutional reform is a foundational pillar of the R-ARCSS—namely, the formation of a National Constitutional Review Committee which is tasked with triggering the process of building a permanent constitution. As of the time of writing, the constitutional committee has been appointed, but is currently inactive.

The primacy of power sharing. South Sudan’s winner-take-all electoral system offers few avenues for the inclusion of rivals. To prevent electoral losers from taking up arms, the position of the first vice-presidency could be reserved for the presidential runner-up with at least one other vice-presidency designated to the third most successful candidate (under the RTGoNU, there are five vice presidential positions). Furthermore, while decentralization is articulated in the TCCS, it has hardly been implemented since independence. Devolving power and decision-making to the regional and local levels creates buy-in and empowers local officials. 

Look to regional partners for successful ‘diversity management’ mechanisms . One option could be a home-grown ‘house of nationalities’, as in neighboring Ethiopia (although the current Tigray conflict calls the effect of such a system into question), whereby one representative from each of South Sudan’s 64 recognized ethnic groups would be elected to the lower house of parliament. This would have the dual effect of mitigating majority dominance and creating a platform where all ethnic groups have an equal stake, perhaps fostering an environment for the forging of a national identity. Another option could be rotating the presidency and top cabinet positions between ethnicities every election cycle.

Overall, the drafters should promote broad-based accommodation, balancing integrative design with an executive tempered by strong liberal institutions. Such a process will necessarily require compromise between South Sudan’s power-brokers, who at the moment, remain mostly opposed. Thus, creating space for substantive dialogue on constitutional reform must be a key priority, underscored by inclusive, local participation. 


[1] With 400,000 dead since the outbreak of fighting in 2013, four million people displaced and nearly half the population (5.8 million) in a state of acute food insecurity (UN OCHA South Sudan Humanitarian Needs Overview 2020)

[2] The SPLA represents the movement’s armed wing, while the SPLM is the movement’s political wing.

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