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.
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 Springrepression. 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 Time: Anwar 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.”
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.
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)
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!?
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 251, a 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.”
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.
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, 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” 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”, 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. 
In 2016, a national survey on Citizens’ perceptions of the communist past in Albania, revealed for the first time that Albanians “have very ambivalent feelings about the communist past.”
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. According to historian Celo Hoxha, “the fact that the communist crimes have still not been condemned produces this kind of result”, 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.” 
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. 
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.”
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”, 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.
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” 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.
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.” 
Communist-era movies: “offensive and denigrating” vs. “a cinematic heritage”
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”, 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.
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.” 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.”
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, has been criticized as, among other things, an attempt to appropriate the symbolism of the communist regime. 
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.”
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. 
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-bunkerwas 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.”
Regardless of the ambivalent feelings towards the communist regime and the contested collective memory in Albania, the results of the national survey 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.”
 Sepkowski 2010 in Reksc 2015:106. “Nostalgia for Communism in the Collective Imaginations.” Procedia – Social and Behavioral Sciences, Vol. 183, pp. 105-114.
 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.
 Interview with Lirka Preka [5 November 2020, Shkoder]
 A museum built in honor of Enver Hoxha, located in the capital’s city center.
 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.
 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
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.
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.
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”
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).
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!
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.
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 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.
A 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.
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:
Bringing independent commissions under executive authority
Substituting the 10-member Constitutional Council with a 5-member Parliamentary Council
Giving the President power to remove the Prime Minister
Establishing presidential immunity
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:
Gave independent commissions back their independence
Reintroduced the 10-member Constitutional Council
Revoked the President’s power to remove the Prime Minister
Allowed court cases to be brought against the President
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:
Recategorizes independent commissions under executive authority
Reintroduces the 5-member Parliamentary Council
Grants the President power to unilaterally remove the Prime Minister
Provides the President with immunity against legal proceedings during his/her presidency
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? 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.” 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.” 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.
 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.”
 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.
 “Sri Lanka to Quash Constitutional Amendment that Pruned Presidential Powers: Sri Lanka
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.
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,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). 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.
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.
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))
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.
 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)
 The SPLA represents the movement’s armed wing, while the SPLM is the movement’s political wing.
Daniele Rumolo is a human rights practitioner with over a decade of field work experience in the Balkans, Middle-East, and Asia with the United Nations and other international organizations.
An unlawful seizure of power
In the early hours of 1 February, the Myanmar Army – known as the Tatmadaw – detained the country’s political leadership ahead of the swearing in ceremony of the new parliament following the political elections held in November 2020. Among others, the Tatmadaw detained President U Win Myint, State Counsellor Aung San Suu Kyi, and all previous Ministries and parliamentarians of the National League for Democracy (NLD). Following the designation of the military-appointed Vice President Myint Swe as Acting President in accordance with article 73 of the Constitution, Myint Swe declared a state of emergency pursuant to article 417 of the Constitution and transferred legislative, judicial, and executive powers to the Commander-in-Chief for an initial period of one year.
On the contrary, preliminary conclusions of international observers (here and here) recognized compliance with international standards and the Union Electoral Commission (UEC) violated Covid-19 regulations certified the results. The NLD was certified to have won 399 seats of the 664-seat bicameral Union Parliament, which includes the 166 unelected military seats granted to the Tatmadaw by the 2008 military-drafted Constitution. Therefore, even if the claims by Tatmadaw had held ground, the NLD would still maintain a majority of sets that could be contested during elections. Lacking a legally valid state of emergency, the actions by the Tatmadaw aimed at overthrowing an elected Government are unlawful.
The Civil Disobedience Movement
The opposition to the Tatmadaw materialized immediately after the arrest of the NLD politicians, with hundreds of thousands of people taking the streets to express their opposition to military rule and support for the continuous democratic development of Myanmar, request the unconditional release of the elected leaders, and demand a future based on the rule of law, respect of human rights, and fair economic development. Peaceful acts of protest continued in the night with people banging pots from their balconies given the imposition of curfews by the Tatmadaw in a failed attempt to halt the wave of opposition.
A strong signal to the Tatmadaw came from doctors and nurses, who decided to go on strike despite a still-troubling COVID-19 situation. However, the doctors stressed that Myanmar’s health system is underdeveloped due to decades of neglect during military rules and it relies mostly on external support. Therefore, the consequences of the coup – including possible sanctions, cutting of political ties with foreign countries, and interruption of delivery of aid and vaccines – may impose even more dramatic consequences on the population of the country. The decision of the medical personnel was shortly followed by other civil servants, including teachers, public transport sector, and occasionally police officers, as well as employees of private businesses such as banks and, most recently, monks.
Based on the example of other recent protests in the region, including Hong Kong and Thailand, the leaderless Civil Disobedience Movement continued to grow in size and creativity despite the great personal risks. While initially it was principally ethnic Bamar-based, the protests quickly obtained the support of minority ethnic groups. These protests show a solid cohesion of the Myanmar society against the military. Women, men, boys, and girls are peacefully demonstrating day after day and represent the last stronghold against an abusive military. They ask the world for actions rather than words and reiterate their readiness to give everything they have to prevent the military from returning the country to the black days of isolation regardless of personal risks.
On 9 February, police opened fire on peaceful demonstrators, critically injuring a 19-year-old woman who later became the first victim of this coup. While incidents have remained limited albeit there has been an increase in recent days, the Tatmadaw and security forces have not yet made systematic use of force to silence dissent. However, memories of the Tatmadaw’s brutal actions to suppress the student movement in 1988 and the monk-led Saffron Revolution in 2007, coupled with decades of ruthless military campaigns in the ethnic States including Kachin, Shan, Karen, and Rakhine, have led to the belief that a violent suppression of dissent is inevitable. On 16 February, the United Nation Special Rapporteur on the Human Rights situation in Myanmar launched a preventive appeal to all who could potentially have some influence on the Tatmadaw to call for calm and continued respect of the right of the people of Myanmar to peacefully demonstrate and express their dissent. This was preceded by a statement from 14 embassies in Myanmar calling on security forces to refrain from violence and condemning the ongoing arrests.
How has the Tatmadaw responded so far?
Upon seizing control, the Tatmadaw took swift actions to cement their power by establishing a State Administration Council (SAC) headed by the five generals composing the top of the military chain of command. This body immediately replaced judges at the Supreme Court as well as judges in State and Regional courts. The lack of independence of the Myanmar judiciary, both civil and military, had already been repeatedly highlighted as one of the main obstacles to a genuine democratic advancement of the country – these military appointments will likely result in a farcical display of justice by the Tatmadaw to support their pretenses of legality. The politicization of the judiciary and the processes brought before the military-appointed courts is already evident with the laughable charges brought against the President – having violated Covid-19 regulations for waving at a NLD convoy in the electoral period – and the State Counsellor – having illegally imported walkie talkies and violated Covid-19 regulations – which may lead to imprisonment. Convictions will bar them from running in the future elections announced by the Tatmadaw at the end of the emergency period. Their exclusion will likely be certified by the UEC, whose members have also been replaced in full with military appointees and whose first task was annulling the results of the elections by withdrawing the letters of accreditation issued to the elected members of Parliament.
To respond to the protests, the Tatmadaw first shut down Facebook, which is the most commonly used source of information in Myanmar. When users migrated to Twitter, it shut down that service as well, before ultimately switching off the internet for almost three full days. Currently, connectivity has been restored, although shutdowns occur during the night, with some speculating it is due to firewall upgrades carried out by Chinese companies on the overall Myanmar network structure. The Tatmadaw also approved a Cyber Security Law which imposes serious restrictions on online freedom of expression, and whose vague provisions allow for arbitrary interpretation and application with the scope of silencing dissent by imposing medium and long-term imprisonment penalties. During the NLD government, obsolete laws on defamation that lacked any clarity on the extent of their coverage were systematically used to shield politicians and Tatmadaw from criticism. There are therefore serious concerns that this Cyber Security Law will negatively impact the enjoyment of fundamental rights and freedoms, as voiced in an unusual statement opposing the passing of the bill issued by a telecommunication company registered in Myanmar.
This law, and above all its potential application, is perfectly consistent with the approach of repression that the Tatmadaw uses when faced with opposition. As of 16 February, 426 people have been arrested, including members of the Parliament, UEC, and NLD civil society organizations, as well as students, activists, civil servants, reporters, artists, monks, and lawyers. Human Rights Defenders and members of civil society reported that the military and the police, in some cases supported by unidentified thugs, carried out door-to-door night raids to take people away. Complaints were made that the internet shutdown imposed through the night was instrumental to prevent information and alerts sharing. Residents of the areas where these raids took place have reportedly organized themselves to patrol streets and defend themselves. While the need to respond to these kidnapping-like operations is more than comprehensible, the creation of area-based patrol groups in a country characterized by tens of different armed groups with various degrees of control over various territories is nonetheless a concerning development once more caused by the Tatmadaw.
From a human rights perspective, according to the findings of the monitoring activities of the United Nations Office of the High Commissioner for Human Rights, most detainees are held incommunicado without having access to lawyers of family members. The secrecy of military processes and actions, and to an extent the complete disregard for the rule of law by the Tatmadaw, make it unclear if any form of due process has been respected, including being brought before a court to hear the charges leading to the arrest, or if the treatment of prisoners, including freedom from torture or ill or degrading treatments and access to medical assistance, has been in compliance with national and international laws. The UN office warns that if circumstances of detention, including locations of deprivation of liberty, are not timely clarified, these acts may amount to enforced disappearances.
What is next?
It is nearly impossible to predict what will happen in the coming days in Myanmar. What is certain is that the Civil Disobedience Movement will continue to oppose a return to military rule that, over approximately 70 years, has only brought poverty and injustice to Myanmar. History indicates that the Tatmadaw feel no remorse in killing thousands, as they did in the so-called 8888 Uprising. The people of Myanmar are fully aware of it. However, for the seventeenth day now, they fearlessly and peacefully demand their right to have their vote respected.
The international community is toothless. The United Nations Security Council remains a hostage of its veto system that allows permanent members like China and Russia to protect the Tatmadaw. On 4 February, falling short of issuing a resolution, the members of the Security Council released a statement in which they expressed concern and emphasized the need for the continued support of the democratic transition in Myanmar. The United Nations Human Rights Council held a special session on 12 February producing an incredibly weak resolution, at least from the point of view of the substantive action the people of Myanmar are asking for. The Secretary-General’s Special Envoy for Myanmar warnedthe Tatmadaw of possible severe consequences in case of violent repression of the demonstrations. However, she failed to qualify her statement or indicate any consequence. The first country taking a strong position was New Zealand which cut diplomatic ties with Myanmar. The United States was the first to impose sanctions and it redirected 42 million USD allocated to the Government to civil society organizations. Canada and the United Kingdom also have imposed targeted sanctions while the European Union is still considering the matter.
The Association of Southeast Asian Nations (ASEAN), which is theoretically the only body that could exert some influence on the Tatmadaw, is unlikely to take any action, in compliance with its principle of non-interference in domestic matters, with a number of its members having described the coup as “an internal affair” On 1 February, ASEAN’s Chairman issued a statement calling to adherence to the principles of its charter, including democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms. No other information has been made available on any other action, diplomatic or otherwise, that ASEAN may have taken with the Tatmadaw.
Talks of sanctions, which appear to be the only measure at disposal, have pros and cons, but have been heavily criticized by several analysts and Myanmar experts. Private companies could play an important role by ceasing any engagement with military companies and their affiliates, as strenuously recommended by the Independent International Fact-Finding Mission on Myanmar, while continuing deals with non-military businesses after implementing thorough human rights due diligence processes.
Politically, it is unlikely the Tatmadaw will willingly relinquish power and restore the situation they have disrupted. The risk is that they will stall until the interest of the international community will fade away and they will have to reluctantly engage to an extent with the Tatmadaw. Meanwhile, the Tatmadaw will have free hand to arrest and terrorize the population of Myanmar by adopting and selectively implementing undemocratic laws without any compliance with international norms and principles. Once they feel secure enough, they may call for elections in which only military approved candidates will participate to pursue, in the words of the Commander-in-Chief, “discipline-flourishing democracy and development of the country”.
Therefore, the only solution is to support in any possible way the Civil Disobedience Movement and their demands for democracy and respect of the electoral results. While the Tatmadaw will seek some form of international recognition, it becomes imperative that the level of attention and advocacy on Myanmar remains on everybody’s agenda, including states, international and non-profit organizations, academia, and civil society movements at large. Avoiding long-term adaptation to the status quo appears to be the most feasible response in an effort to uphold democratic and human rights principles.