Russian Invasion is a Breach of International Law and Minsk Agreement 

Source: abcnews.go.com https://abcnews.go.com/International/mental-health-effects-ukraine-war-zone-children/story?id=83203801

On the 24th of February, Putin launched a full-scale invasion of Ukraine after initially sending forces into Donetsk and Luhansk where Russian-backed separatists have waged a military aggression against Kyiv since 2014 and annexing Crimea in 2014. A number of elements of this war constitute violations of international law: 

Russia’s invasion of Ukraine breaches the Rome Statute and the UN Charter 

  • First and foremost, the UN Charter (Article 2(4) declares that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Russia’s military invasion flagrantly violates this Article.
  • Article 8 of the Rome Statute defines “Crimes of Aggression” as comprising acts by a country utilizing military force that violates another state’s territorial integrity in a manner contrary to the UN Charter and Geneva Conventions. This includes the invasion, occupation, and/or annexation of a state by another state. It also covers the bombardment or use of weapons upon a state’s territory or an attack on its armed forces. 

Russian military action against Ukraine in contravention of international law is well-documented. Such actions include: 

Russia justified its invasion of Ukraine on the basis of humanitarian action and self-defense. On the one hand, Russia claimed that Kyiv had been committing genocide in the Donbas against ethnic Russians. There is no evidence that Ukraine engaged in any of the defined actions. Moreover, even if the Ukrainian government had committed human rights abuses against Russians in eastern Ukraine, neither the Genocide Convention nor the UN Charter authorizes convention parties or UN member states to use force to remedy acts of genocide or serious human rights abuses.[1]

On the other hand, Moscow had also asserted that Ukraine was preparing to attack Russia. While international law provides for offensive military action on the grounds of self-defense under UN Charter Article 51, both of the Kremlin’s rationales are unsubstantiated and are considered to have merely been pretexts for Putin to launch an invasion against Ukraine. 

Bombardments of civilian populations and infrastructure constitute Crimes Against Humanity and War Crimes 

Rome Statute Article 7 defines “Crimes Against Humanity” as comprising acts “when committed as part of a widespread or systematic attack directed against any civilian population” including, among others, murder. Rome Article 8 also details “war crimes” as consisting of “Grave breaches of the Geneva Conventions of 12 August 1949…against persons or property protected under the relevant Geneva Convention” including “willful killing” and “Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” 

Russia’s attacks on civilians and non-military infrastructure violate the Geneva Conventions’ and the Rome Statute’s protection of non-combatants. Amnesty International has described Russia’s use of ballistic missiles on population centers as “indiscriminate” and contrary to international law. 

Minsk Agreements 

Belarus President Alexander Lukashenko, Russian President Vladimir Putin, German Chancellor Angela Merkel, France’s President Francois Hollande and Ukrainian President Petro Poroshenko (L-R) pose for a photo at the presidential residence in Minsk on February 11, 2015, during a meeting aimed at halting a 10-month war in Ukraine where dozens were killed in the latest fighting. AFP PHOTO / MAXIM MALINOVSKY (Photo credit should read MAXIM MALINOVSKY/AFP via Getty Images)

After the collapse of the Minsk I accord that had been negotiated in September 2014, Russia, Ukraine, the OSCE, and leaders of the two separatist regions, had agreed to a subsequent treaty Minsk II in February 2015, that entailed the following provisions

1. An immediate and comprehensive ceasefire

2. Withdrawal of all heavy weapons by both sides 3. Monitoring and verification by the OSCE 

4. To start a dialogue on interim self-government for the Donetsk and Luhansk regions, in accordance with Ukrainian law, and acknowledge their special status by parliamentary resolution. 

5. A pardon and amnesty for people involved in the fighting 

6. An exchange of hostages and prisoners. 

7. Provision of humanitarian assistance. 

8. Resumption of socio-economic ties, including pensions. 

9. Restoration of full control of the state border by the government of Ukraine. 

10. Withdrawal of all foreign armed formations, military equipment and mercenaries. 

11. Constitutional reform in Ukraine including decentralisation, with specific mention of Donetsk and Luhansk. 

12. Elections in Donetsk and Luhansk on terms to be agreed with their representatives. 

13. Intensifying the work of a Trilateral Contact Group comprising representatives of Russia, Ukraine and the OSCE. 

The accord suffered from several shortcomings. Article 10, withdrawal of foreign forces from Ukrainian territory, conflicted with Russia’s denial that it had any military personnel in the Donbas and therefore proved difficult to enforce. Regardless, Russia’s initially limited incursion on the Donbas last week and its full-scale invasion of the whole country violates Articles 1, 2, and 10 of Minsk II.[2]


[1] https://www.cfr.org/article/how-russias-invasion-ukraine-violates-international-law

[2] See also here https://cepa.org/dont-let-russia-fool-you-about-the-minsk-agreements/

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Promoting the Rule of Law in the EU Enlargement Policy: A twofold challenge

By Leposava Ognjanoska, PhD candidate (LLM) 

Leposava Ognjanoska is a PhD candidate at the Faculty of Law “Iustinianus Primus” − Ss Cyril and Methodius University in Skopje with extensive experience in European integration affairs, and alumna of the CCSDD European Union and Legal Reform Summer School.

Full article has been published by Croatian Yearbook of European Law and Policy (CYELP) DOI: 10.3935/cyelp.17.2021.455 (https://www.cyelp.com/index.php/cyelp/article/view/455).  

The EU is not only a ‘Community based on the rule of law’ but it is a Community/Union based solely or at least primarily on the rule of law.[1] The rule of law is enshrined at the core of European Union primary law − it is listed among the founding values of the Union and is stated as an objective that determines the way in which the EU exercises its competencies.[2]Likewise, it is also recognised as a value defining EU membership, given Article 49 TEU which stipulates that every European state that respects the values referred to in Article 2 (basic values of the EU) and is committed to their promotion may apply to become a member of the EU. Hence, the enlargement of the Union is based on achieving and respecting certain values: the fundamental values of the EU including the rule of law. 

Since the rule of law was introduced into the EU enlargement policy, its role within the conditionality policy has advanced gradually so that it has become the cornerstone of the accession process. In this short overview of the EU rule of law promotion within the enlargement policy, we will strive to identify what are the main challenges in this regard and the main reasons why the EU has made the rule of law central to its new enlargement methodology. 

Although the rule of law was included in the Copenhagen criteria and the Amsterdam principles, the approach in the EU accession of the Central and Eastern European states (CEE) focused mainly on the legal transposition of the EU acquis and institution building − the necessary administrative and judicial structures for the correct application of EU legislation, whereby the rule of law was not touched upon in its substance. Due to the limited scope of the EU acquis in many of these areas covered by the Copenhagen criteria, mainly the rule of law, the missing normative content was filled by referring to the European standards developed by other regional/international organisations such as the Council of Europe rules or OSCE principles. The main elements of the EU-driven reforms referred to the intensified alignment of domestic legislation with European and international standards, including approximation with the acquis communautaire, as well as increased legislative output that potentially weakened legal stability.[3]

Even so, this approach brought difficulties on how to measure progress and was criticised for its rather ‘simplistic sum’[4] of the rule of law and democracy and the lack of ‘actual substance’.[5] In this manner, there was a discrepancy between the accession conditions and membership obligations because the norms the Union has promoted in the context of enlargement go well beyond the perimeter of the EU acquis stricto sensu.[6] Lack of a uniform conception of the rule of law affected how applicant countries reform their governmental structures according to their interpretation of the concept and had the potential of influencing and disrupting the further expansion of the EU to include countries from CEE.[7] Therefore, the rule of law is part of the so-called ‘enlargement acquis’ within the EU’s accession conditionality but not, or only to a limited extent, part of the EU acquis.[8]

The extension of EU membership to CEE has been a process of fundamental domestic change in response to EU rules and regulations but (some of) the states that entered the EU from 2004 onwards did not finish the transformation process on the date of accession. In these areas the EU often gave ‘priority to efficiency over legitimacy’[9] regardless of the conditionality policy. Moreover, it became apparent that the Europeanisation process may even be reversible and revealed stagnating and even declining trends, where the rule of law had not improved significantly and had even further deteriorated, thus questioning the EU transformative power. The decision to allow the accession of ‘imperfect’ new Member States did not follow consistently the ratio behind the conditionality policy but represented primarily a political decision driven by ‘wider security imperatives’ to some extent.[10] Hence, the identified problems and inconsistencies pointed to ‘the gap between conditionality on paper and conditionality in practice’,[11] suggesting that ‘conditionality can only become a true principle of enlargement, when the whole accession process is mostly moved away from the sphere of politics into the realm of the law’.[12]

Post-accession experience with regard to rule of law compliance and conditionality imposed some internal challenges for the EU that have had a major influence on the EU’s external upholding and promotion of the rule of law within the enlargement policy towards the Western Balkans. The EU has developed a normative basis against which new admissions would be assessed and in the framework of which the enlargement policy will be conducted, so these new rules have since become applicable in the accession process of the candidate countries from the Western Balkans (WB).[13]

With the Enlargement Strategy 2005, the Commission introduced a reinforced monitoring system with focus on the rule of law.[14] According to the 2006 European Council conclusions, the updated consensus on the enlargement policy enhanced the importance of the rule of law: ‘accordingly, difficult issues such as administrative and judicial reforms and the fight against corruption will be addressed at an early stage’.[15] This approach was also reflected within the Treaty of Lisbon (Article 49 TEU) that introduced the commitment to respect the rule of law as a condition for EU membership. Hence, apart from standing as a pillar of EU identity, this principle is now operationally used as an eligibility criterion for EU membership.[16]The concept of the rule of law in the EU enlargement process[17] is covered by the newly introduced Chapter 23 − Judiciary and Fundamental Rights (first met in the Croatian negotiating process) and Chapter 24 − Justice, Freedom and Security of the EU acquis which are central in the Europeanisation process, and the overall progress of the EU acceding country is based on these criteria. Therefore, the EU requires the Western Balkan countries to demonstrate a credible track record of a properly functioning judicial system, the effective fight against corruption, and protection of fundamental rights.

Further requirements were gradually introduced by the European Commission on the basis of the Enlargement Strategies and elaborated in the (Progress) Reports for each country where comparison of these reports reveals a more significant role of the rule of law areas with regard to the Western Balkan countries versus the CEE countries that joined in 2004. The ‘new approach in the enlargement process’ concerning the prioritisation of the rule of law reforms in candidate countries was officially introduced with the Enlargement Strategy in 2011.[18] Measuring the success or failure in fulfilling the principle of the rule of law is based on set benchmarks, including opening and closing but also interim benchmarks that would assess the country’s progress in the negotiating chapter, where the overall progress in Chapters 23 and 24 determines the pace and dynamics of the negotiations as a whole (overall balance clause). Therefore, the Western Balkan countries are expected to get a head start on the rule of law reforms as the most difficult aspect in order to allow enough time to build solid track records of implementation before opening other negotiating chapters. 

This new approach was first applied with regard to the negotiations with Montenegro and then consequently in the negotiations with Serbia, as it was intended to further strengthen the accession process by avoiding the need for post-accession instruments. This new approach with a strong emphasis on Chapters 23 and 24 did not come without some limitations. There is limited availability of clear and unambiguous rules especially under Chapter 23 due to the lack of a hard acquis but also the non-uniform concept of standards on the basis of the Member States’ best practices. With regard to the Chapter 24 areas, there was an accelerated development of the acquis. However, contrary to the raison d’être of the new approach − to enhance the accession process and rule of law compliance in particular, the figures presented below show a lack of tangible results and the prevalence of the same levels of alignment. Although Montenegro has been negotiating for more than nine years and Serbia for more than seven, already longer than Croatia which concluded the negotiations in six, membership prospects still remain distant if conditioned by rule of law preparedness, as the new approach envisages.

In February 2018, the European Commission reaffirmed the firm, merit-based prospect of EU membership for the Western Balkans by adopting the ‘Credible Enlargement Perspective for an Enhanced EU Engagement with the Western Balkans’ Strategy,[19] which came almost fifteen years after the last EU-Western Balkans Summit in Thessaloniki in 2003, perceiving the Western Balkans enlargement process as a geostrategic investment for the Union. The underlying message in the rule of law initiative is that the Commission plans to make use of all of the leverage provided in the accession talks frameworks for as long as possible, by delaying the Western Balkans accession to the EU in order to avoid any repetition of the scenarios of Hungary and Poland[20] or when observing clear elements of backsliding in the membership commitments to the rule of law[21] and persisting problems with organised crime as in the case of Bulgaria. Still, this new Strategy was not enough to overcome the impasse in the EU’s enlargement policy on the Western Balkans that has been running on ‘autopilot’ for the last fifteen years,[22] thus in March 2020 the EU once again − or more precisely for the fourth time − formally[23] introduced new rules on accession negotiations by adopting the new Enlargement Methodology on the basis of the Commission’s proposal entitled ‘Enhancing the accession process: A credible EU perspective for the Western Balkans’.[24]

This need for further reform of the accession process came after the 2019 French veto of the proposal of the European Commission to open accession negotiations between the EU and North Macedonia and Albania,[25] supported by Denmark and the Netherlands as well. Two main arguments raised with regard to the veto were the following: first, the EU needs to strengthen its existing policies and institutions before adding any new members; and, second, the enlargement policy and accession talks process are flawed, as there is no guarantee that the candidate state will subscribe to the Copenhagen criteria and uphold the rule of law and the EU liberal democratic values once they join the EU.[26] On this occasion, French President Macron stated that these countries are implementing EU legislation without transforming, thus implying that the process of Europeanisation based on exporting the principles of democracy and rule of law has failed to bring the required changes and prepare the countries for EU membership. Nevertheless, the background to this decision reveals that it was made also due to the fourth Copenhagen criterion − ‘absorption capacity of the Union’ that refers to the capability to include new members. The introduction of this condition provides the possibility to diverge from the procedure and make a political decision if a country fulfils the membership criteria while the Union itself, for different reasons, is not prepared for further enlargement. Hence, besides the lack of transformation that President Macron referred to, it was also about inner limitations within the Union and divergence with regard to its further enlargement, also questioning the strength of the EU’s trans-formative power.[27]

In accordance with these new requirements set by the new Enlargement Methodology, North Macedonia has achieved good progress in the key areas under the first cluster that was followed up by the Council of the EU decision in March 2020[28]finally adopting a conclusion to open accession negotiations with both North Macedonia and Albania, albeit without setting a date for the first intergovernmental conference. Nevertheless, until now the EU has failed to reach an agreement on approving the negotiations frameworks with North Macedonia and Albania, which proves the claim that accession is in fact a political process involving discretion about timing and the different weights given to the various factors influencing the decision above and beyond the rule of law, regardless of its central role as prescribed.

The case of North Macedonia’s accession towards the EU is a drastic one, questioning the credibility of the enlargement process. Besides Croatia, the country has been ‘an early and eager “Europeaniser” in the Western Balkans’108 being the in 2001[29] as the first country from this region to sign the Stabilisation and Association Agreement, that further engaged in a high legislative activity to bring its institutions and policies in line with the EU and earned a positive recommendation in 2009 to open the accession negotiations, only to be vetoed by a Member State on the basis of an issue which is not part of the Copenhagen criteria widely accepted as the main accession conditions – the name dispute with Greece. By placing the name dispute as the main catalyst for the process, the fulfillment of the Copenhagen criteria was compromised and ‘particular bilateral issues which have little to do with the formal membership conditions have inhibited the accession process’.[30] The long-standing name dispute was resolved in 2018 with the signing of the Prespa Agreement[31] according to which the country accepted ‘Republic of North Macedonia’ as its official and constitutional name on the basis of the EU promise for common European future. But instead of ‘lessons learned’, the EU is facing repeated mistakes as the decision to open the long-delayed accession negotiations with North Macedonia from March 2020 is still not being implemented due to a blockade imposed by Bulgaria on adopting the negotiation framework and scheduling the first intergovernmental conference on claims over its history, language and identity.

Table 1. Progress in areas under Chapter 23 MKD 2009 – 2015

 JudiciaryAnti-corruptionFundamental Rights/Freedom of Expression
2009242
2015-10-1

Source: Author’s calculations based on EC (Progress) Reports

Hence, even if incentives are strong in principle, they fail to affect rule adoption and compliance if they lack credibility.According to the new Enlargement Methodology, more credibility is indicated as the first condition for reinvigorating the accession process to deliver its full potential, but it is emphasised that ‘it needs to rest on solid trust, mutual confidence and clear commitments on both sides’.[32] The EU should particularly discourage bilateral issues from dominating the enlargement agenda. On the one hand, because they undermine the merit-based prospect of full EU membership and its main principles − predictability and conditionality, the mutual trust and confidence necessary for the accession process to be able to deliver its potential, while, on the other hand, having in mind the Western Balkans landscape, these issues have the potential to create serious instability which may be forestalled only by strict rule of law conditionality that will place the focus on the real problems of these societies.

To overcome the absorption capacity issue and enlargement impasse, the EU must explore all avenues for the advanced integration of the Western Balkans in the period preceding accession in line with its commitments for phased-in accession as defined in the new methodology while maintaining the central role of rule of law conditionality. Finally, there is clear and close interrelation of the internal and external dimension of the rule of law − its protection within the Union and the ability to deal with internal backsliding on the one hand, and the promotion of the rule of law in the enlargement policy and the projection of this core EU value beyond, on the other. This in turn will strengthen the Union on the inside by reinforcing the EU role as a global player.


[1] Frank Emmert, ’Rule of Law in Central and Eastern Europe’, (2008) 32(2) Fordham International Law Journal 551, 582.

[2] Cristophe Hillion, ‘Overseeing the rule of law in the European Union: Legal mandate and means’ [2016] European Policy Analysis 1.

[3] Martin Mendelski, The EU’s Rule of Law Promotion in Central and Eastern Europe: Where and Why Does It Fail, and What Can be Done About It? (Bingham Centre for the Rule of Law 2016) 5.

[4] Allan Tatham, Enlargement of the European Union (Kluwer Law International 2009) 209.

[5] Päivi Leino, ‘Rights, Rules and Democracy in the EU Enlargement Process: Between Universalism and Identity’ (2002) 7 Austrian Review of International and European Law 53, 80.

[6] Christophe Hillion, ‘EU Enlargement’ in Paul Craig and Grainne de Búrca (eds), The Evolution of EU Law (2nd edn, OUP 2018).

[7] Dale Mineshima, ‘The Rule of Law and the Eastern Enlargement of the EU’ (Ph.D. thesis, Old Elvet Durham University 2001) 109 <http://etheses.dur.ac.uk/3827/> accessed 05 June  2021.

[8][8] Tomasz P.Woźniakowski, Frank Schimmelfennig and Michal Matlak, ‘Europeanization Revisited: An Introduction’ in Tomasz P.Woźniakowski, Frank Schimmelfennig and Michal Matlak (eds.), Europeanization Revisited: Central And Eastern Europe In The European Union (European University Institute and Robert Schuman Centre for Advanced Studies, 2018) 6, 11.

[9] Heather Grabbe, The EU’s transformative power. Europeanization through conditionality in Central and Eastern Europe  (Palgrave Macmillan, 2006) 205.

[10] Dimitris Papadimitriou and Eli Gateva, ‘Between Enlargement-led Europeanisation and Balkan Exceptionalism: an appraisal of Bulgaria’s and Romania’s entry into the European Union’ (2009) 10(2) Perspectives on European Politics and Society 152, 164.

[11] Dimtiry Kochenov, EU Enlargement and the Failure of Conditionality: Pre-accession Conditionality in the Fields of Democracy and the Rule of Law (Kluwer Law International 2008) 311.

[12] Ibid, 312.

[13] Hillion (n 6) 193.

[14] Commission, ‘The Western Balkans and European Integration’ (Communication) COM (2003) 285.

[15] European Council, ‘Presidency Conclusions’, Brussels, 15 December 2006.

[16] Amichai Magen, ‘Cracks in the Foundations: Understanding the Great Rule of Law Debate in the EU’ (2016) 54(5) Journal of Common Market Studies 1050.

[17] According to the EU’s Enlargement Strategy 2011/2012 developed by the European Commission which lists the areas included in the rule of law concept.

[18] Commission, ‘Enlargement Strategy and Main Challenges 2011−2012’ (Communication) COM(2011) 666.

[19] Commission, ‘Communication on a Credible Enlargement Perspective for and Enhanced EU Engagement with the Western Balkans’ COM (2018) 65.

[20] Heather Grabbe and Stefan Lehne, ‘Defending EU Values in Poland and Hungary’ (Carn-egie Europe 2020) <hhttps://carnegieeurope.eu/2017/09/04/defending-eu-values-in-po-land-and-hungary-pub-72988> accessed 23 July 2021.

[21] Dariusz Adamski, ‘The Social Contract of Democratic Backsliding in the ‘New EU Countries’ (2019) 56(3) Common Market Law Review 623.

[22] Marko KmeziÊ, The Western Balkans and EU Enlargement: Lessons Learned, Ways Forward and Prospects Ahead, (European Parliament 2015) 6 <www.europarl.europa.eu/RegDa-ta/etudes/IDAN/2015/534999/EXPO_IDA(2015)534999_EN.pdf> accessed 22 July 2021. 

[23] With the Copenhagen criteria as a starting point, Chapter 23 as the second innovation, and the new approach as the third novelty.

[24] Commission, ‘A Credible EU Perspective for the Western Balkans’ (Communication) COM (2020) 57.

[25] According to the published conclusions from the European Council meeting on 17 and 18 October 2019, the European Council will revisit the issue of enlargement before the EU-Western Balkans-summit planned for May 2020 <https://www.consilium.europa.eu/ media/41123/17-18-euco-fi nal-conclusions-en.pdf> accessed 29 July 2021.

[26] Andi Hoxhaj, ‘The EU Rule of Law Initiative Towards the Western Balkans’ (2021) 13 Hague Journal on the Rule of Law 143, 148.

[27] An analysis of the public discourse on this decision leads to the conclusion that France was the main opponent. In an interview with The Economist published on 7 November 2019, President of France Emmanuel Macron said: ‘We can’t make it work with 27 of us (…). Do you think it will work better if there are 30 or 32 of us? And they tell me: “If we start talks now, it will be in ten or 15 years”. That’s not being honest with our citizens or with those countries. I’ve said to them: “Look at banking union”. The crisis in 2008 with these big decisions; end of banking union in 2028. It’s taking us 20 years to reform. So even if we open these negotiations now, we still won’t have reformed our union if we carry on at today’s pace’. The Economist, ‘Emanuel Macron in His Own Words’ The Economist (London 7 November 2019) <www.economist.com/europe/2019/11/07/emmanuel-macron-in-his- own-words-english> accessed 28 July 2021. Rym Momtaz and Andrew Gray, ‘Macron Urg-es Reform of ‘Bizarre’ System for EU hopefuls’ Politico (Toulouse 16 October 2016) <www. politico.eu/article/macron-urges-reform-of-bizarre-system-for-eu-hopefuls/> accessed 29 July 2021.

[28] Council of the European Union, ‘General Affairs Council conclusions’, Brussels, 25 March 2020.

[29] Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Former Yugoslav Republic of Macedonia, of the other part [2004] OJ L84/13.

[30] Frank Schimmelfennig and Ulrich Sedelmeier, ‘The Europeanization of Eastern Europe: The External Incentives Model’ (JMF@25 conference, EUI, 22-23 June 2017).

[31] Agreement – Final Agreement for the Settlement of the Differences as Described in the United Nations Security Council Resolutions 817 (1993) and 845 (1993), the Termination of the Interim Accord of 1995, and the Establishment of a Strategic Partnership between the Parties  <https://vlada.mk/sites/default/files/dokumenti/spogodba-en.pdf> accessed 28 November 2021. 

[32] Commission (n 24) 2.

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Magnitsky Legislation – A New Generation of Laws

By Stevan Lilić, Director of the Centre for Advanced Legislation

Nota bene: Translation of article published in the Belgrade weekly “Vreme” December 16, 2021 (pp. 38-39). Text also posted on the “Open Doors of Justice portal (www.otvorenavrata pravosudja.rs). 

Source: https://www.fondazionedirittiumani.ch/2020/12/10/lue-adotta-un-regime-di-sanzioni-individuali-in-stile-magnitsky-per-gravi-violazioni-dei-diritti-umani/

Laws on restrictive measures and targeted sanctions for corruption and human rights violations, known as “Magnitsky Legislation,” are the newest generation of laws. After the previous generation of laws dealing with human rights protection (the ombudsman, prohibition of discrimination, free access to information of public importance, protection of personal data, etc.), Magnitsky legislation focuses on imposing targeted personal and property sanctions on exact individuals and legal entities responsible for corruption and/or serious human rights violations.

Targeted individual and property sanctions primarily include visa restrictions and freezing assets to persons involved in transnational corruption, as well as persons who exert pressure and unjustifiably conduct legal proceedings against citizens who advocate for the free exercise of their constitutional human rights (freedom of speech, public accountability of state officials, freedom of public assembly, etc.), as well as against persons who institutionally, factually or by means of biased media threaten and persecute whistle blowers who uncover corruption. 

Contrary to general national sanctions imposed on a state which affect the entire population (and largely innocent citizens), the quintessence of Magnitsky legislation is based on individually targeted ad personam repressive measures which, on basis of an inclusive register of “specially designated persons” are imposed on a specific natural or legal person for corruption and/or human rights violations.

In the last decade, an increasing number of countries, including the European Union, have decided to introduce some form of Magnitsky legislation into their legal systems, either as special and comprehensive laws in the form of “global Magnitsky laws” (USA, Canada, EU), or in the form of amendments to existing tax or criminal laws (UK, Estonia, Lithuania, Latvia, etc.).

Magnitsky legislation gets its name as a tribute to Sergei Magnitsky (1972-2009), a Russian citizen who was an auditor with a foreign consulting firm in Moscow. His arrest in 2008 and his death after eleven months in police custody provoked a reaction from the international community and launched investigations into corruption, theft and serious human rights violations in Russia. Magnitsky himself discovered enormous fraud of government property, which was indirectly enabled and directly carried out by state officials of the Russian Federation. Instead of initiating proceedings against the responsible officials, the Russian authorities arrested Magnitsky. He died in prison seven days before the expiration of the one-year period until which he could be detained without trial.

The news of Magnitsky’s arrest, the manner in which he was treated, and especially the news of his death in prison, provoked strong reaction from the international community, including adopting condemning resolutions of the Council of Europe and the European Parliament. The United States, however, was the first country to impose targeted sanctions on individuals suspected of being responsible for Magnitsky’s death under a law passed by the US Congress in 2012 (Sergei Magnitsky Rule of Law Accountability Act, U.S.C. §5811). Under this Law, Russian government officials suspected of being involved in Magnitsky’s arrest and death were banned from entering the United States and using the US banking system (54 individuals and 1 legal entity). In 2016, Congress extended the scope of this Law, now as the Global Magnitsky Human Rights Accountability Act (USC §2534), so that, apart for officials of the Russian Federation, it can be “globally” applied to all persons participating in transnational corruption and who commit serious forms of human rights violations regardless of citizenship or nationality.

After the United States, a growing number of countries adopted various forms of Magnitsky legislation, including Estonia (2016), Great Britain (2017), Canada (2017), Lithuania (2017), Latvia (2018), and Gibraltar (2018). 

Global Magnitsky legislation on grounds of serious human rights violations has recently become an integral part of the legal order of the European Union. At the end of 2020, the Council of the European Union adopts two “global” Magnitsky documents: Regulation (EU 2020/1998) and Decision (CFSO 2020/1999) on “Restrictive Measures for Serious and Other Human Rights Violations”.

In relation to Serbia, on the basis of the Global Magnitsky Law, at the end of 2019, the US introduced ad personam sanctions to S. Tesic and nine other citizens of Serbia for illegal weapons trade. The US recently imposed sanctions against “Dana”, a company owned by the (Serbian) Karic family, due to business ties with Belarusian President Lukashenko. However, the latest targeted sanctions were imposed days ago by the US Treasury Department on the basis of Presidential Decree (Executive Order No. 13818 of December 8, 2021) to persons from northern Kosovo, El Salvador and the DRC. Sanctions were imposed against an “organized crime group” from the north of Kosovo led by (Serb) Z. Veselinovic and 15 other persons, as well as against 24 companies that the US authorities claim are under the control of this group with the explanation that, among other things, “… is engaged in a largescale bribery scheme with Kosovar and Serbian security officials who facilitate the group’s illicit trafficking of goods, money, narcotics, and weapons between Kosovo and Serbia.” (https://home.treasury.gov/news/press -releases/jy0519).

Having in mind the scale of corruption and the human rights situation in the (Western Balkan) Region, on the one hand, and the constitutional proclamation on “belonging to European principles and values” (Article 1), on the other, this may be the right time for Serbia to adopt its own Magnitsky Law.

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Reintegration Through Social Enterprises in Nigeria

By Josef Otavio Santos Horwath, Research Assistant HT Chapter

Source: SOCIAL ENTERPRISE AND INCLUSIVE BUSINESS IN ACP COUNTRIES: VARIETY AND ACCESS TO FINANCE https://www.icr-facility.eu/knowledge-hub/social-enterprise-and-inclusive-business-1

As a nation that has struggled with successful economic development, Nigerian citizens have continuously found it difficult to obtain economic opportunities that may aid in its country’s development. Unfortunately for some, such a lack of economic opportunities may mean exploitation in the human trafficking industry.  Those who manage to disentangle them from trafficking, their “freedom” is often met with the task of finding and sustaining a means of subsistence, mostly without the necessary education and experience that most labor markets require, while impacted on a psychological and physical level by their abuse and exploitation experiences. 

In order to aid people in their attempt to join the labor market after having escaped the trafficking industry, many countries develop programs that provide educational means to better suit victims in their attempt to join the labor market, often in the victim’s country of origin. Unfortunately, many of these programs, coined as re-integration programs, are not always effective. This creates a cycle where a victim’s eventual “freedom” only results in a return to the trafficking industry later on, as such programs often fall short of their goals. While these are issues that countless organizations and academics are trying to resolve, the following analytical entry is aimed at providing an intellectual stimulus for a form of policy solution to a historical lack of effective reintegration programs. The ideas provided in this entry focus on local pioneering, with the intention, that its good practice may have positive spillover nationally.

Nigeria has had a long history of political corruption, which favors the interests of the elites above the interests of the people. Due to this dichotomy and ignorance towards issues that affect a subset of people in Nigeria, a significant obstacle to reintegration programs and development aid in Nigeria is constant corruption. From a historical perspective and in the context of modern governance, developing a solution and attempting to improve the nature of the system is often met with push-back. Steps forward might seem like steps back primarily due to the influence of few elites and their political and economic control over the system. For this reason, targeting these issues at the state level is complex, because it is much harder to dismantle the corrupt behavior of the elites at the top of the line rather than target local communities that may be more prone to immediate change given an economic incentive. There may not be a blank check fix the issues that remain at large: poverty, inequality, corruption and violence. However, it is possible to improve the way in which these issues are approached, in the context of how they impact long-term reintegration among human trafficking victims focused on alternative livelihoods. By investing in local communities and allowing individuals within those communities to have the power to change and develop what is around them, it may be possible to usurp the dynamics that prevent necessary development from occurring. In the field of human trafficking specifically, individuals struggle with social inclusion back into society in the form of reintegration because apart from their traumatic experiences and unfinished healing, there is little economic opportunity linked to status. By granting victims the ability to invest directly in their communities, in the form of social enterprises, one offers them a vision of a more developed community rather than the perpetual hardships inflicted in many Nigerian towns and cities.

In the status quo, reintegration programs are largely ineffective because they offer primarily short-term support (typically 3-6 months). Programs typically provide victims with housing as well as training in certain employment sectors for the first few months after their return to their community. Many of these programs rarely have synergy between training, educational and vocational activities while victims are abroad and upon their return home. Most programs in fact only go so far as providing cash assistance to victims without any other additional aid, psychological support or mentorship. However, when the ties are cut between the victims’ and the specific reintegration program where they received their support (both in Europe and at home), victims’ are left mostly on their own to garner the economic stimulus needed to survive in their local communities. Victims might also not be emotionally or physically ready to immediately enter the workforce after having been through traumatic events that require a recovery period. Moreover, they may not be born entrepreneurs so an adjustment into such a program may require continued support beyond short-term assistance. For this reason, there is an inconsistency with data collection regarding how effective these forms of reintegration programs are. This is because “very few studies have examined life after trafficking in Nigeria.”[1] With no long term support, victims’ that are met with economic struggles in some form are pushed into a corner where they are unable to receive support and often times forced to turn back to the trafficking industry. The basis of reintegration programs should not be contingent on a short-term transition but one that provides long-term support including healing, mentorship and guidance.

Additionally, the economic incentives provided by the majority of reintegration programs are economically unproductive because they do not provide any guarantee of economic opportunity. Improving their socio-economic status is the main principle with which individuals enroll into these reintegration programs. They have no support to earn and little to no economic activity around them to develop. Despite the abundance of natural resources in Nigeria, citizens generally are unable to derive “any meaningful developmental benefits from resource revenues because of the widespread incidence of corruption and revenue mismanagement by the political elites.”[2] As continued economic volatility affects victims upon their return to their local communities, the situation only exacerbates their vulnerability and undermines their fight against the system that may have facilitated them to be trafficked in the first place. Economic self-sufficiency is the status with which these individuals need to survive. In a survey among Nigerian trafficking victims, many have described the nature of their work as a form of survivalist labor. They are assisted in finding jobs that offer them just enough money to survive on a day-to-day basis without actually instilling any form of significant change. The authors write that in Nigeria, “the use of vocational training as means for survivors to secure their economic self-sufficiency… [diverts] attention away from the real structural economic and political reforms needed to enable survivors [secure]… their long-term economic wellbeing.”[3] Any form of solution must act with the intention to improve the structural system that diminishes the inability to achieve true economic self-sufficiency.

While the economic system is important in understanding the reason why victims struggle to find economic opportunity when they begin the reintegration process, it is also vital to understand how the industry itself affects victims on a psychological level and why they might turn to trafficking, if not by force. The sex industry is built on the social obligation that is passed onto sex workers, who feel as though they are sacrificing themselves in order to support their families back at home as well as pay off a debt to someone in a position of power over them. The system thrives not on those who are “actually trafficked” or taken against their will, but instead on the majority of women who are socially obligated to take part in a very exploitative business.[4] The psychological component of obligation might not be fully erased from an individual after their debt has been paid to their madamme. If a reintegration program can address this stigma, the sense of obligation in order to fulfill their familial duties, it may be more effective at establishing a norm away from sexual exploitation. Even if that stigma cannot be fully erased but shifted to another avenue that fulfills that obligation, victims are less likely to turn back to the trafficking business.

Social enterprises, as a form of developmental aid in Nigeria, have the potential to provide economic stimulus in the form of community improvements. As a general precedent, it is important to understand that development processes require a range of resources that are unique to the particular place and community in question, so as to divert the resources necessary to mobilize efficiently.[5] A social enterprise itself is defined broadly as organizations that exist to produce a public or community benefit and trade.[6] These organizations usually come in hybrid forms, with characteristics of for-profit businesses as well as community sector organizations.[7] The most important distinctive factor is their connection with the community with which they are involved. That is, the relationships that are formed with the enterprise and the social context of the local community. This relationship is the basis for change, as it allows individuals involved to be invested in an enterprise that provides economic opportunity and constructs a relationship between individuals and their community. 

The local focus of social enterprises allows for a more efficient way to allocate resources. Most local communities in Nigeria have suffered as a result of globalization as development is hindered by the disorganization of communities unable to take advantage of the resources that they may have. However, local actors in the form of social enterprises are capable of developing a strategy that is specific to their needs and “not transcend global forces.”[8] A key aspect of this strategy is to gain control of local natural resources in order for them to be utilized in local economies.[9] While the challenge here is corruption, because the political elites are best suited to seize control of these resources, community leaders offer additional ways to undermine the power that political elites might have in the local communities in focus. 

Historically speaking, in the context of Nigeria, the structure of the criminal justice system is one that does not adequately punish those who might have interest in developing new business structures. Ellis explains that “if an offender ‘has cheated the Government, or swindled some business concern, he will probably be accorded the approbation and welcome due to a David who has dealt faithfully with Goliath.’”[10] In comparison, a Nigerian who has stolen food or cattle is most likely sentenced to prison, as theft in this manner is considered a serious crime.[11] As such, due to a lack of a punishment system, that supports the propagation of businesses in Nigeria generally, it becomes difficult to establish norms that are consistent with the goals of developmental projects. In other words, the battle is certainly uphill as corrupt individuals will always have a vested interest in joining any form of social enterprise that may be succeeding in the community. However, social enterprises are already starting to garner positive effects in other developing countries and thus its use in Nigeria is definitely an idea that should be more widely discussed.

Re-integration programs in the form of social enterprises have been empirically successful in countries such as Bangladesh or Slovakia.[12] Similar to the way in which they would be implemented in Nigeria, they offer victims the ability to become involved in their local communities immediately upon their return. In Bangladesh, they have “developed a mechanism that gives returnees the option to invest in a social enterprise as part of a group of returnees and with the backing of a local NGO, effectively becoming shareholders in a community-based social enterprise.”[13] This idea can be extrapolated to Nigeria and offers a way for not only victims to help better their local communities, by incentivizing them to improve it economically, but also offering themselves economic opportunity. Moreover, the idea that victims are working on these projects together, offers a safety net of support, mentorship and peer-to-peer community among them, since they share similar experiences. In Bangladesh specifically, the social enterprises operate like normal businesses “and are administered by a board of directors as the governing body, which includes two members of each group – returnees, local community members, and the local NGO.”[14] The profits are distributed among the families of the victims as well as other investment partners. Depending on the local resources of their community it further generates positive images through an increased sense of employment as well as the ability to supply and sell goods and services in rural areas. All in all, it is a way to reinforce social cohesion as it forces a relationship between victims who were turned away from home and their local community.

Bangladesh is not alone in its success story as more and more countries are beginning to adopt similar theories of development to their own form of reintegration programs. While Europe and the United States have adopted such measures with success, it is much more difficult to compare the economic situations of those developed countries to a country such as Nigeria. For this reason, a recent analysis done in the Philippines offers a more relevant empirical case study demonstrating the economic effects of social enterprises. The study offers a specific definition of social enterprises as organizations that serve the marginalized “as primary stakeholders and have distributive enterprise philosophy.”[15] In this specific case study, they found improvements in personal empowerment (in the economic sense), individual confidence, health outcomes and personal finances relative to more standard reintegration programs.[16] A potential reason for the success of these enterprises is their flexibility in responding to the needs of their “service users and their role as ‘boundary spanners’ in creating strong ties and connectedness between different stakeholders.”[17] In other words, the connectedness between stakeholders and individual victims is a result of such enterprises. This is applicable to strengthening Nigerian local communities as it may provide a nexus between returnees and local community leaders, which is incredibly important in order to achieve a similar effect. Due to the developing nature of the Philippines, albeit in a different region of the world, the success of such enterprises over the last 5 years empirically imply that such a conversation should be held in countries that suffer from similar trafficking related issues. As follows, the previously mentioned case studies offer a stepping stone for progress and idea culmination that should be more openly discussed. 

Social enterprises offer an economic avenue that undermines the psychological pressures of reintegration for victims of human trafficking. They are often trapped in a system that pressures them to give back to their communities and families in an economic manner when many of the opportunities to do so are nonexistent. However, by allowing them to invest directly in their communities, one may provide an additional avenue that undermines the power of traffickers. While these enterprises might only be the beginning of change and development in Nigeria, it is certainly a step away from the status quo, which has been empirically tragic. Unfortunately, while these forms of change may not offer a feasible solution to all Nigerians that are undergoing these issues, it may offer a step in the direction of change, starting at the local level, which may ideally contribute to broader change. The goal should be to improve opportunities at the local level so as to provide positive spillover at the national level. Above it all, it is certainly a necessity to link development and reintegration in order to better improve the economic opportunities of Nigerian citizens. While there is still more work to be done, the hope is to provide additional impetus to research and develop a system that needs it. What is needed now is a group of individuals willing to share new ideas on how to better tackle these issues, including those of trafficking victims themselves. Given communities open to this form of policy discussion, there is hope of dismantling the complex crime syndicates that exist today, even if it occurs one community at a time.

Bibliography

Davidson-Hunt, Iain  J. “Communities and Social Communities Enterprises in the Age of Globalization.” Accessed November 28, 2021. https://www.researchgate.net/profile/Iain-Davidson-Hunt/publication/242022559_Communities_and_social_enterprises_in_the_age_of_globalization/links/59662b30a6fdcc85dd3ba5ee/Communities-and-social-enterprises-in-the-age-of-globalization.pdf.

Ellis, Stephen. This Present Darkness: A History of Nigerian Organised Crime. London: Hurst and Company, 2018. 

Idemudia, Uwafiokun, Nnenna Okoli, Mary Goitom, and Sylvia Bawa. “Life after Trafficking: Reintegration Experiences of Human Trafficking Survivors in Nigeria,” 2021. https://www.emerald.com/insight/content/doi/10.1108/IJMHSC-03-2021-0023/full/pdf?title=life-after-trafficking-reintegration-experiences-of-human-trafficking-survivors-in-nigeria.

Lyman, Rick. “Slovak Village Prospers in Partnership with Roma Residents It Once Shunned.” The New York Times. The New York Times, September 9, 2017. https://www.nytimes.com/2017/09/09/world/europe/slovakia-roma-spissky-hrhov-integration.html.

Poveda, Sammia, Melinda Gill, Don Rodney Junio, Hannah Thinyane, and Vanessa Catan. “Should Social Enterprises Complement or Supplement Public Health Provision?” Social Enterprise Journal 15, no. 4 (2019): 495–518. https://doi.org/10.1108/sej-12-2018-0083.

“REINTEGRATION ASSISTANCE AT THE COMMUNITY LEVEL.” Accessed November 28, 2021. https://publications.iom.int/system/files/pdf/module_3.pdf.&nbsp;

“Social Enterprise.” Community, February 19, 2014. https://community-wealth.org/strategies/panel/social/index.html.


[1] Uwafiokun Idemudia et al., “Life after Trafficking: Reintegration Experiences of Human Trafficking Survivors in Nigeria,” 2021, https://www.emerald.com/insight/content/doi/10.1108/IJMHSC-03-2021-0023/full/pdf?title=life-after-trafficking-reintegration-experiences-of-human-trafficking-survivors-in-nigeria, 451.

[2] IUwafiokun Idemudia et al., “Life after Trafficking: Reintegration Experiences of Human Trafficking Survivors in Nigeria,” 2021, https://www.emerald.com/insight/content/doi/10.1108/IJMHSC-03-2021-0023/full/pdf?title=life-after-trafficking-reintegration-experiences-of-human-trafficking-survivors-in-nigeria, 452.

[3] Uwafiokun Idemudia et al., “Life after Trafficking: Reintegration Experiences of Human Trafficking Survivors in Nigeria,” 2021, https://www.emerald.com/insight/content/doi/10.1108/IJMHSC-03-2021-0023/full/pdf?title=life-after-trafficking-reintegration-experiences-of-human-trafficking-survivors-in-nigeria, 456.

[4] Stephen Ellis, This Present Darkness: A History of Nigerian Organised Crime (London: Hurst and Company, 2018), 183-184.

[5] “Social Enterprise,” Community, February 19, 2014, https://community-wealth.org/strategies/panel/social/index.html.

[6] Ibid.

[7] Ibid.

[8] Iain J Davidson-Hunt, “Communities and Social Communities Enterprises in the Age of Globalization,” accessed November 28, 2021, https://www.researchgate.net/profile/Iain-Davidson-Hunt/publication/242022559_Communities_and_social_enterprises_in_the_age_of_globalization/links/59662b30a6fdcc85dd3ba5ee/Communities-and-social-enterprises-in-the-age-of-globalization.pdf, 210.

[9] Iain J Davidson-Hunt, “Communities and Social Communities Enterprises in the Age of Globalization,” accessed November 28, 2021, https://www.researchgate.net/profile/Iain-Davidson-Hunt/publication/242022559_Communities_and_social_enterprises_in_the_age_of_globalization/links/59662b30a6fdcc85dd3ba5ee/Communities-and-social-enterprises-in-the-age-of-globalization.pdf, 210.

[10] Stephen Ellis, This Present Darkness: A History of Nigerian Organised Crime (London: Hurst and Company, 2018), 52.

[11] Ibid.

[12] Rick Lyman, “Slovak Village Prospers in Partnership with Roma Residents It Once Shunned,” The New York Times (The New York Times, September 9, 2017), https://www.nytimes.com/2017/09/09/world/europe/slovakia-roma-spissky-hrhov-integration.html.

[13] “REINTEGRATION ASSISTANCE AT THE COMMUNITY LEVEL,” accessed November 28, 2021, https://publications.iom.int/system/files/pdf/module_3.pdf.

[14] Ibid.

[15] Sammia Poveda et al., “Should Social Enterprises Complement or Supplement Public Health Provision?,” Social Enterprise Journal 15, no. 4 (2019): pp. 495-518, https://doi.org/10.1108/sej-12-2018-0083, 3.

[16] Sammia Poveda et al., “Should Social Enterprises Complement or Supplement Public Health Provision?,” Social Enterprise Journal 15, no. 4 (2019): pp. 495-518, https://doi.org/10.1108/sej-12-2018-0083, 4.

[17] Ibid.

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EU Enlargement to the Western Balkans – limited progress in 2021

By Marko Milenković PhD, MA, LLM (Cantab)

Marko Milenković is a research fellow at the Institute of Social Sciences Belgrade and an Affiliated research fellow at the Center for Constitutional Studies and Democratic Development (CCSDD) at Johns Hopkins University’s School of Advanced International Studies (SAIS) Bologna

This article was first published by Osservatorio sulle attività delle organizzazioni internazionali e sovranazionali, universali e regionali, sui temi di interesse della politica esteraitaliana – www.osorin.it – comint@sioi.org SIOI – Palazzetto di Venezia – Piazza di San Marco, 51 – 00186 – ROMA

Source: Eyes on Europe https://www.eyes-on-europe.eu/part-2-the-new-western-enlargement-strategy-changing-the-carrot-and-no-stick-diet/

2021 marks another year in the almost two-decade-long road of the Western Balkan region towards EU membership. It was marked by the continuing COVID crisis and some increase in EU interest in the region. However, it has not brought significant developments to the integration process of six (potential) candidates. In this short overview of 2021 developments, we will first give a brief account of the new accession negotiation methodology devised last year1, and then address the outcome of the 2021 EU-Western Balkan summit held in Slovenia in October 2021. Finally, we will offer a brief discussion of the EU Enlargement Strategy prepared annually by the European Commission andaccompanied by individual candidates’ progress reports.

All the countries of the WB region were given prospects of EU membership in 2003, but the EU integration process has since been long and hampered by numerous factors, most notably enlargement fatigue 2 . In the 2018 Enlargement Strategy, the European Commission anticipated possible WB enlargement for 2025, stressing that the EU’s enlargement policy must be “part and parcel” of the larger strategy to strengthen the Union by that year 3. However, it was accompanied by the assessment that only Montenegro and Serbia (candidates currently negotiating accession) would have the possibility of concluding the whole process by 2025, with no projection given for remaining four candidates – North Macedonia, Albania, Bosnia and Hercegovina, and Kosovo(*) –, none of which had opened negotiations at that date. Following the proposals put forward, mainly by France, for revamping the process in 2019, the Commission came up with the new Enlargement methodology in February 2020, with the idea of introducing more dynamism. The Commission envisaged groupingthe negotiating chapters in six thematic clusters: fundamentals; internal market; competitiveness and inclusive growth; greenagenda and sustainable connectivity; resources, agriculture and cohesion; external relations. The process was envisaged as giving a stronger political steer and increasing the involvement of member states, better predictability of the process (hence sixclusters) including improved clarity on the conditions and benchmarks to be achieved. The new methodology should result in the gradual “phasing in” of candidates in EU policies and increased access to funding throughout the process but would also include rolling back in the case of stagnation or backsliding in prospective members4.

Finally, the new methodology also assumes less opportunities to block the advancement of the process before the opening and closing of each of the current 35 negotiation chapters, as decisions are made for six clusters instead of single chapters.

The governments of both Montenegro (all 35 negotiation chapters opened) and Serbia (18 chapters opened) agreed to move to the new cluster format of negotiations at the first political intergovernmental conferences heldbetween the two candidate countries and the EU on 22 June 2021. As underlined by the Commission: «The firstintergovernmental conference with Montenegro under the revised methodology provided a political steer on accelerating work to meet the rule of law interim benchmarks – the next milestone necessary to advance in the accessionnegotiations. The first intergovernmental conference with Serbia under the revised methodology set out the path towardsopening clusters based on expected progress by the country, in particular on rule of law reforms»5.

The opening of negotiations with North Macedonia and Albania in March 2020 was a major development6, but noconcrete progress has been made since, i.e. no clusters have been opened by the member states. This has led the Commission to conclude that «[t]he delays in the official launch of accession negotiations with Albania and NorthMacedonia are having a negative impact on the credibility of the EU. Pending bilateral issues between Bulgaria and North Macedonia need to be resolved as a matter of priority. It is crucial that EU Member States conclude the discussions onthe Negotiating Frameworks without further delay and that the first intergovernmental conferences with Albania and North Macedonia are held as soon as possible and before the end of this year»7.

Finally, it is important to note that in June 2021, a political agreement was finally reached between the Counciland the European Parliament on the proposal for a Regulation on the Instrument for Pre-Accession Assistance (so called IPA III), and the Regulation was adopted on 15 September 2021. It is supposed to serve as an instrument for the enhanced economic and development involvement of the EU in the region following the 2021 decisions to be more involved and the challenges created by the COVID crisis.

On 6 October 2021, the heads of states and governments of the EU held the Brdo summit in Slovenia with the leaders of the Western Balkan candidates8, as a part of the “more political steering” of the integration process approach adopted in 2020 and thecommitment to hold high level summits with candidates on a regular basis. Expectations of the event were not high9, and the resulting Brdo Declaration doesn’t go far in promising perspectives of enlargement to the candidates.10

Indeed, the very discussion between member states on whether to use term “European perspective” or“enlargement” with current candidates, some even negotiating accession, comes as a stark warning of the magnitude ofEnlargement fatigue in the block. As underlined at the very beginning of the Declaration: «The EU reaffirms itsunequivocal support for the European perspective of the Western Balkans. […] The EU reconfirms its commitment to the enlargement process and its decisions taken thereon, based upon credible reforms by partners, fair and rigorous conditionality and the principle of own merits» (point 1).

The document places very little emphasis on the accession negotiations, insisting more on the increasing EU aid to the Western Balkans and regional initiatives that are, to a great extent, the result of EU facilitated processes. Importantly, the Declaration underlines that «[t]he EU is by far the region’s closest partner, main investor and principal donor. The unprecedented scale and range of this support must be fully recognised and conveyed by the partners int heir public debate and communication» (point 3) and that «[t]he EU, together with its Member States, has stood by the Western Balkans throughout the pandemic, with health and socio-economic support for the region to talling an unprecedented EUR 3,3 billion so far» (point 7), finally to conclude that «[f]ollowing the Leaders’ call at the Zagreb Summit, the EU put forward an Economic and Investment Plan (EIP) and guidelines for the Implementation of the Green Agenda for the Western Balkans. The Plan sets out a substantial investment package mobilising some EUR 30 billion for the region over the next seven years, comprised of EUR 9 billion in grant funding and EUR 20 billion in investments, leveraged by the new Western Balkans Guarantee Facility» (point 10). This message comes as a reminder that – even though some other major powers are increasingly present in the region, mostly through investments projects and big infrastructural loans – the EU still remains the most important trade partner as well as the biggest transformative power for the region, crucially influencing institutional change and promoting values of democracy and the rule of law.

The declaration also addresses the regional cooperation in the Balkans, with the reminder that «Western Balkans leaders are needed to deliver on their commitment to establish a Common Regional Market, as agreed at the Berlin Process Summit in Sofia in2020» (point 13). Coined as a «catalyst for deeper regional economic integration and a stepping stone towards the EU Single Market», it is structured around the four freedoms of movement, comprising also aspects of digital, investment, innovation and industry policy, being – in the words of the Commission – «the most ambitious regional integration effort to date in the Western Balkans»11. These efforts are somewhat duplicated by a parallel initiative, Open Balkan, which to date includes only three countries of the region – Albania, North Macedonia and Serbia – and which has moved forward in 202112. Finally, the summit Declaration calls upon WB partners to «make tangible and sustainable progress towards full alignment with EU foreign policy positions and act accordingly, including with positions in international fora as an important part of their European path» (point 19).

There are some sharp criticisms of the outcome of the latest EU-WB summit – «With no real progress in EU enlargement to the Western Balkans, or effective solutions to deal with the region’s fundamental problems, the Union’s promises of support and a shared future are starting to ring hollow. It is unclearwhere enlargement policy goes from here»13. However, there were some overall positive assessments of the summit and its conclusions14.

As every year, the Commission came up with the regular Enlargement Strategy and individual countries’ progress reports assessing their advancement in various areas of reforms and alignment with the acquis and EU policies15. This year’s documents could only attest to the slow progress of the EU integration process in the Western Balkans, givingaccounts of the most pressing problems the countries of the region are facing. The Strategy underlines that «[e]nsuring credible and sustainable reforms in the area of democracy remains a pressing challenge for the enlargement countries. The absence of genuine political will continued to be the main reason for the lack of substantial progress, or evenbacksliding»16. It is further underlined that, for the Balkans as a whole, limited or no progress overall was made in terms of freedom of expression, media freedom and pluralism as key pillars of a democratic society17. In terms of the region’s ability to assume the obligations of membership, varied assessments across countries and policies persist, with the evaluation that «[t]he Western Balkans are, in general, moderately prepared in many areas of the internal market»18.

In terms of the individual progress of candidates, the Commission offered different assessments. For Montenegro, the frontrunner in the accession negotiations, it concluded that «an overall balance is currently ensured between progress under the rule of law chapters on the one hand, and progress in the accession negotiations across chapters on the other»19. For Serbia, «an overall balance is currently ensured between progress under the rule of law chapters and normalisation of relations with Kosovo on the one hand, and progress in the accession negotiations across chapters on the other», and also welcomed Serbia’s fulfilment of the benchmarks to open cluster 3 (Competitiveness and inclusive growth) and cluster 4 (Green agenda and sustainable connectivity)20. For both North Macedonia and Albania, it concluded that the countries continue to fulfil the conditions to open accession negotiations 21. For Bosnia and Herzegovina, the Commission concluded that «the public political commitment of the authorities at all levels of government to the strategic goal of European integration has not been turned into concrete action, as political leaders continued to engage in divisive rhetoric and unconstructive political disputes», with the 14 key priorities from the Commission’s May 2019 Opinion on the country’s EU membership application still left to be met22. Finally, for Kosovo(*), it affirmed that «limited progress was made on EU-related reforms and SAA implementation»23

In line with the adoption of the new Enlargement Strategy, the EU High Representative for Foreign Affairs and Security Policy Josep Borrell, stated: «We have to maintain a credible enlargement process. This is a two-way street: The new methodology is a merit based approach. It puts a stronger focus on fundamental reforms, such as rule of law, fundamental freedoms, economy and the functioning of democratic institutions. Our partners need to address them, in the interest of their citizens and to advance on the EU path. And they need put aside their differences. On the EU side, we need to deliver on our commitments. The EU is not complete without the Western Balkans. It’s time we come together and unite in building a stronger Europe»24.

Bearing all the outlined developments in mind, as we have already proposed in last year’s OSORIN entry, it is time to also consider relations between the European Union and the Western Balkans in terms of differentiated integration25, not necessarily as (full) members but credibly included in various EU policies and benefiting both from EUtransformative power and the financial assistance to develop infrastructure and fully implement EU standards (such as those in the environment and climate domain). To that end, an interesting initiative has also emerged during 2021 calling for four step “staged accession” to the EU26, a model which should be given more attention by all stakeholders.

Overall, despite the continuing COVID-19 crisis and some smaller steps in various fields it can be concluded that 2021 was a relatively uneventful year in terms of EU-WB relations with no real progress in the Enlargement process being made. Discussions over references to European prospects or enlargement in the Declaration of the EU summit might be one more sign that enlargement is gradually being abandoned, and that after 20 years the European perspective of the region composed of various sectoral initiatives is being rethought.

Dicembre 2021

References

1 For a more detailed analysis see: M. Milenković, EU Enlargement Strategy 2020 – Paving the Way for Differentiated Integration?, in OSORIN,2020, www.osorin.it/uploads/model_4/.files/54_item_2.pdf?v=1608022440.

2 See inter alia: S. Economides, From Fatigue to Resistance: EU Enlargement and the Western Balkans, Dahrendorf Forum IV Working Paper No.17, 20 March 2020

3 See further: European Commission, A credible enlargement perspective for and enhanced EU engagement with the Western Balkans, 6 February 2018,COM (2018) 65 final.

4 European Commission, Enhancing the accession process – A credible EU perspective for the Western Balkans,

5 February 2020, COM (2020) 57 final.

5 European Commission, 2021 Communication on EU Enlargement Policy, Strasbourg, 19 October 2021, COM (2021) 644 final, 2.

6 Council of the European Union, Council conclusions on enlargement and stabilisation and association process – Albania and the Republic ofNorth Macedonia, 25 March 2020, COM (2020) 57 final.

7 European Commission, 2021 Communication on EU Enlargement Policy, Strasbourg, 19 October 2021, COM (2021) 644 final, 25.

8 See further: www.consilium.europa.eu/en/meetings/international-summit/2021/10/06.

9      See:    www.reuters.com/world/europe/eu-no-longer-agrees-balkan-membership-guarantee-diplomats-say- 2021-09-28.

10      Brdo    Declaration,    6     October     2021.    Available    at:     www.consilium.europa.eu/en/press/press- releases/2021/10/06/brdo-declaration-6-october-2021.

11      See further: ec.europa.eu/neighbourhood-enlargement/enlargement-policy/policy-highlights/common- regional-market_en.

12         See         further:        www.euractiv.com/section/politics/short_news/vucic-rama-and-dimitrov-agree-on- implementation-mechanism-for-open-balkans-initiative.

13 C. Stratulat, EU enlargement to the Western Balkans – Three observations, EPC, 2021. Available at: epc.eu/en/Publications/EU-enlargement-to-the-Western-Balkans-Three-observations~4392d4.

14 S. Subotić, Assessing the 2021 Brdo Declaration Going Beyond the Original Expectations, CEP, 2021.

Available at: cep.org.rs/en/blogs/assessing-the-2021-brdo-declaration.

15 European Commission, 2021 Communication on EU Enlargement Policy, Strasbourg, 19 October 2021 COM (2021) 644 final.

16 Ibid., p. 13.

17 Ibid., p. 8.

18 Ibid., p. 17.

19 Ibid., p. 27.

20       Ibid.,      p.      28.       Opening      of       the      cluster      4       was       anticipated     on      8       December.https://www.euractiv.com/section/politics/short_news/eu-to-soon-open-cluster-4-in-negotiations-with-serbia/

21 Ibid., p. 28.

22 Ibid., p. 29.

23 Ibid., p. 30.

24      See: ec.europa.eu/neighbourhood-enlargement/news/2021-enlargement-package-european-commission- assesses-and-sets-out-reform-priorities-western_en.

25 Marko Milenković, EU Enlargement Strategy 2020, cit.

26 CEPS, CEP, A Template for Staged Accession to the EU, 2021. Available at: www.ceps.eu/ceps- publications/a-template-for-staged-accession-to-the-eu.

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Patrick Zaki è Libero

Oggi è arrivata una bella notizia per chi crede nella libertà di manifestazione del pensiero e, più in generale, la garanzia dei diritti fondamentali. Infatti, dopo ben 22 mesi di custodia “cautelare” è stato liberato Patrick Zaki. Bologna lo aspetta a braccia aperte.

Professor Justin Orlando Frosini, Direttore del Center for Constitutional Studies and Democratic Development

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After 33 Men, Sweden’s First Female Prime Minister is Magdalena Andersson

by Dr. Giuseppina Scala

Giuseppina Scala is Postdoctoral Research Fellow in Comparative Public Law at the Department of Political Sciences, Legal and International Studies, University of Padua (Italy); Affiliate Research Fellow at the Center for Constitutional Studies and Democratic Development, Bologna (Italy); Academic Fellow at Bocconi University, Milan (Italy). As Affiliate Research Fellow at the Center for Constitutional Studies and Democratic Development, Dr Scala is in charge of the spin-off project “Legal Reforms in Nordic Constitutionalism: the Challenges of a State-religion” within the main research field “Constitutionalism in Illiberal Democracies”. At Bocconi University, she has been teaching several modules on Law and Religion within the module “Comparative Public Law”.

Sweden’s Minister of Finance Magdalena Andersson delivers a speach after being elected to party chairman of the Social Democratic Party, at the Social Democratic Party congress in Gothenburg, Sweden, 04 November 2021. EPA/Adam Ihse

The case of Magdalena Andersson is exeptional for two reasons. First, because she is the first female prime minister elected in the Kingdom of Sweden replacing Stefan Löfven; secondly because she has been elected twice in few days a hundred years after Swedish woman were given the vote. 

Magdalena Andersson is 54 years old, she started her political career in 1996 as adviser to the then prime minister Goran Persson finally spending the past seven years as finance minister in the Stefan Löfven government. She is the leader of the Social Democratic Party of Sweden where she now serves as the first female prime minister after 33 men. So, as of November 2021, four out of five prime ministers in Scadinavia[1] are women. In fact, at the moment, the other three prime ministers are: Mette Frederiksen (Denmark), Katrín Jakobsdóttir (Iceland) and Sanna Marin (Finland). Only in the kingdom of Norway a male represents the office as prime minister: he is the Labour leader Jonas Gahr Støre. The latter replaced a woman: Erna Solberg of the Conservative Party, who led the country over the last eight years. So, with the new office of Magdalena Andersson, the Nordic countries confirm their position as the leading legal orders in the field of gender equality between women and men. In these countries, the representation of women in political institutions is strongly high and the global gender gap index of 2021[2] shows how Iceland, Norway, Finland and Sweden are characterized by the most gender equal conditions in the field of economics, politics and education. 

Magdalena Andersson has been elected prime minister for the first time on November 24th 2021 with 117 voting in favour, 174 against and 57 abstained. This could happen because the Swedish Constitution provides that for the election of the office of prime minister he or she needs only the majority of MPs not to vote against. Art. 4, Chapter 5 of the Regeringsformen (The Instrument of the Government)[3] affirms that if more than half the members of the Swedish parliament (Riksdag) vote against the Speaker’s proposal for a new prime minister (that is at least 175 members), it is rejected; in any other case, the proposal is adopted. This means that Magdalena Andersson won the election by a single vote. However, after just few hours of her appointment, she resigned when her coalition partner (the Green Party) decided to quit the government because the budget was drafted with the anti-immigrant far right. In fact, in Sweden, as a consequence of a constitutional practice the prime minister is expected to resign if a coalition party leaves government.She then informed Anderas Norlen to be still interested on guiding a one-party government. This morning, MPs backed Magdalena Andersson by a new vote with 101 voting in favour, 75 abstained and 173 against.

The Swedish prime minister will hardly pass legislation without her historiacal political partner but she can prove her skilfulness from tomorrow, after a meeting at Royal Palace with the King Carl Gustaf XVI, to September next year when new general elections are scheduled. 


[1] As for Scandinavia, we refere here to the Nordic countries consisting of Norway, Sweden, Denmark, Finland and Iceland. 

[2] The global gender gap index aims at measuring national gender gaps in the fields of economics, politics and education. For more details, see: • Global gender gap index 2021 | Statista.

[3] The Regeringsformen of 1974 is one of the four Swedish Fundamental Laws. The other three Fundamental laws are: the Freedom of the Press Act (Tryckfrihetsförordningen) of 1949; the Freedom of Speech Act (Yttrandefrihetsgrundlagen) of 1991; and the Act of Succession of 1809.

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2021-2022 Intern Biographies

BOLOGNA

Lauren Ailslieger, Research Assistant

Lauren is a first year MAIR student at Johns Hopkins SAIS working as a Research Assistant at the CCSDD. Lauren is from Topeka, Kansas. She graduated from Kansas State University in 2021 with a BA, double majoring in Economics and International Studies and minoring in Russian.  

Lauren began her studies of Russian and the former Soviet Union in 2016 when she studied in Kirov, Russia on the National Security Language Initiative for Youth. Then, during her time at Kansas State, received a Critical Language Scholarship to study Russian in Bishkek, Kyrgyzstan. Studying in Kyrgyzstan is what sparked her interest in the development of the former Soviet Union region. She is particularly interested in how the individual states in the region transitioned – or not – towards democracy. 

Maame Ekua Ampem, Research Assistant

Maame is a Political Science and Chinese language graduate from the University of Ghana, currently enrolled in the Master of Arts International Relations program at SAIS, interested in Chinese Politics and Development in Sub-Saharan Africa.  

She graduated from the University of Ghana in 2018 with a double major in Political Science and Chinese. She also studied Chinese Language and Culture at the Zhejiang University of Technology in China for an academic year. After graduating from the University of Ghana in 2018, Maame worked as a Teaching and Administrative Assistant at the University’s Department of Political Science for one year. She worked with two Chinese companies in Ghana as a bilingual Assistant.  

Maame aspires to be a Policy Analyst and Advisor, and she is currently assisting at the CCSDD with Research on Ghana and other African countries by extension. 

Marin Lovejoy Christensen, Research Assistant

Marin is an MEPP candidate (Masters of European Public Policy) at Johns Hopkins SAIS from Portland, Oregon. She will be assisting in research on Central and Eastern Europe surrounding constitutions and judicial affairs. Marin graduated from George Washington University in Washington D.C. this past Spring with a Bachelor’s of Arts in Political Science, History, and Public Health.

While attending GWU, Marin chose to study abroad at Charles University in Prague, Czech Republic, where she developed her interest in Central and Eastern Europe. During her time in Washington, Marin worked within the U.S. Congress, Homeland Security, and several non-profit organizations focused on judicial advocacy.

At Johns Hopkins SAIS, Marin has chosen to specialize in the laws and institutions of the European Union and is excited to continue pursuing her interests at the CCSDD. Marin enjoys taking her black German Shepherd, Kenai, around Bologna and hunting down rare books in her personal time. 

Timothy Feng, Research Assistant

Tim Feng is a first-year MAIR student at Johns Hopkins SAIS from Washington, D.C. He joins the CCSDD team as a Research Assistant. 

Tim graduated from Pennsylvania State University in 2018 with a Bachelor of Arts in Political Science with minors in International Studies, Chinese, and History. He has also spent time studying in Xi’an, China, and Barcelona, Spain. Tim’s prior experience includes interning at the U.S. Army War College’s Peacekeeping and Stability Operations Institute, where he worked on research regarding post-conflict development in Liberia. After graduating, Tim joined the Peace Corps as an English Teacher Trainer. He moved to Nakhon Ratchasima, Thailand, in 2019 and devoted his time to teaching at local community schools within the region.  

Drawing on his professional and academic background, he wishes to analyze how constitutions can help create or destroy democratic stability within different world regions. In his free time, Tim enjoys mixology.

Olivia Ingram, Research Assistant

Olivia is a first-year Masters of International Relations student at Johns Hopkins SAIS. She joins the CCSDD to research Ukrainian constitutionalism and decentralization. Her academic concentration is international development and democratization as related to Eastern Europe and Eurasia.

Olivia holds a Bachelor’s degree in Media and Journalism and International Studies from the University of North Carolina at Chapel Hill. Before her time at SAIS, she served as a community economic development volunteer with Peace Corps Ukraine. In the socio-economic development cabinet of a mayoral office in northeastern Ukraine, she and colleagues worked on understanding the potential local outcomes of national policy. 

In addition to her home country, the United States, Olivia has studied and worked in the United Kingdom, China, Italy and Ukraine.

Yonatan Litwin, Communications Intern

Yonatan is a first-year MAIR student at Johns Hopkins SAIS concentrating in International Economics and Finance and Latin America. Yonatan assists the CCSDD’s internal and external communications.

Yonatan graduated from the University of Chicago with a Bachelor of Arts in Political Science in 2017. He worked at the Economist Intelligence Unit, where he worked in the Public Policy, Economics and Politics division that provides bespoke research projects for clients in the public and private sectors. Yonatan had also worked as a visiting researcher for Libertad y Desarrollo, a think tank based in Santiago, Chile, where he had helped produce policy memos on issues of public policy in Latin America. In 2019, he joined Altshuler Shaham, an asset management firm located in Tel Aviv, as an analyst focusing on regulatory risks in the US, Latin America, and Europe.

At SAIS, Yonatan plans on studying the political economy of financial markets, regulatory regimes, and infrastructure in emerging markets and developing countries–particularly in Latin America and Europe. Outside the classroom, Yonatan enjoys biking, crosswords, and exploring boutique stores in Bologna.

Julianna Rak, Research Assistant

Julianna is a first-year MAIA student at Johns Hopkins SAIS with interests in European and Eurasian studies and international law. Originally from Maryland, Julianna joined CCSDD as an intern assisting in research on Ukraine’s Constitutional Court and writing for the CCSDD blog.  

Julianna graduated from Trinity University in 2020 with a Bachelor of Arts in Political Science and History. At the CCSDD, she hopes to further improve her research skills and acquire knowledge on the topics of constitutional law and democratization. Drawing from her academic background in international law and the social sciences, she hopes to learn more about the growing intersections between national constitutions and international governance. When not working or studying, she likes to spend time exploring Bologna’s food scene and traveling to other cities throughout Europe.

Yifang Wang, Research Assistant

Yifang is a first-year MAIR student at Johns Hopkins SAIS concentrating on Asia, Latin America and their respective processes of democratization. Originally from Hangzhou, China, he is joining the CCSDD team as a research assistant in the Fall of 2021.  

Yifang graduated from Macau University of Science of Technology in 2021 with a BA degree in Portuguese Language and Literature, and a minor in Communications and Journalism. He worked as a Research Assistant for Intellisia Institute and Charhar Institute writing on social movements and constitutional crises. He also spent some time as an intern at the ASEAN-China Centre, facilitating and researching the topic of media cooperation. Aside from academics, Yifang is also interested in competitive debating and photography.

Carlee WrightResearch Assistant

Carlee Wright, from Norman, Oklahoma, is a first-year MAIA student working as a Research Assistant at the CCSDD. Carlee graduated from the University of Oklahoma with a BA in International Studies and Italian before moving to South Korea to work full-time with North Korean refugees. 

At the CCSDD, Carlee is combining her work with her previous experience in the field. Currently, she is creating an exhaustive list of the South Korean Supreme Court’s judgements referencing its constitutional preamble, while quantifying how many times the ruling referenced it and analyzing how exactly the judgement used it. When not working or studying, she is likely updating her list of best gelaterias in Bologna. 

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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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