The impact of certain aspects of international criminal justice upon interdependent processes of democratization and reconciliation in Bosnia and Herzegovina / Влияние некоторых аспектов международного уголовного правосудия на взаимозависимые процессы демократизации и примирения в Боснии и Герцеговине

Майер Марина Драгановна Юрист, LL.M. (Graz), Adv. LL.M. (Leiden), Diplomatic Academy of Vienna, PhD Candidate (Leiden) 2311ES, Нидерланды, г. Leiden, ул. Steenschuur, 25, оф. Law Faculty Maier Marina Draganovna Lawyer, LL.M. (Graz), Adv. LL.M. (Leiden), Diplomatic Academy of Vienna, PhD Candidate (Leiden) 2311 ES Leiden, Steenschuur 25 mdanjerovic@gmail.com

Methodology

The applied methodology consists of qualitative content-analysis of legal documents, reports, statistical data, academic literature. A particular effort is put into the analysis of relevant concepts with an attempt to define them. Research is partially based on previous quantitative and qualitative research of releases of convicted perpetrators, conducted by the author in 2020.

Introduction

After the military conflict is over, the affected societies normally face further challenges. Especially in the case of inter-ethnical conflict, such essential questions as to how to uncover the truth, accept responsibility, identify and punish those responsible for the committed crimes, whether to forgive or not, how to reconstruct the normal life, and most importantly how to live together on the same territory in the future, inevitably arise in the post-conflict regions. Reconciliation of different groups of the society is considered to be one of the primary goals during this post-conflict period; however, the concept remains undefined and the success of the process of reconciliation if still difficult to assess empirically.

This article focuses on the post-conflict situation in the countries of the former Yugoslavia, precisely on BiH, and the processes of reconciliation after the Yugoslavian international armed conflict of 1991-1995. The conflict ended when the so-called Dayton Peace Accords were signed in November 1995 ^[1], which put an end to the inter-ethnical violence, leaving the affected societies to confront the “three mutually exclusive ethnonational narratives about the role of their own community and the role of others in the Bosnian war” ^{[2, p. 653]}. More than two decades after the war, BiH “remains subject to ethnic and territorial divisions that complicate the development of a durable, democratic political system” ^{[3, p. 5]}, being, therefore, an interesting and “useful case-study of international state-building and democratisation efforts” ^{[4, p. 1]}.

This research is timely, since at this moment of time, according to the newly appointed High Representative Christian Schmidt, BiH faces “the greatest existential threat of post-war period” ^[5], and the reasons and for that lay to a greater part in the results of the democratisation and reconciliation processes in the country. Although the democratisation in BiH has been constantly researched by different academics, the crucial role of reconciliation in the region is often overlooked. This article seeks to establish linkages and to scrutinise the relations between reconciliation and democratisation on the example of post-conflict BiH and argues that the expected positive influence of international criminal justice on the process of reconciliation was overestimated in the very beginning of the functionating of the relevant institution of the international criminal justice in the case of BiH, namely the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) and later its successor - the International Residual Mechanism for Criminal Tribunals (‘IRMCT’, ‘Mechanism’).

Despite the fact that the process of reconciliation was not visible, it, however, remained interwoven into all the democratisation activities and processes in BiH. The omission to put more weight and attention to the promotion of reconciliation might arguably have served as an aggravative factor for the prompt and successful democratisation, although the nature of the two processes can be described as different to a certain extent - whereas democratisation is started and influenced by the external actors, reconciliation cannot be fully imposed from outside; it relies on and might be affected by different external factors, nevertheless, it remains a process which can succeed only if it “grows” and develops from the inside – from individuals of the affected societies. In other words, a so-called bottom-up nature is implied in reconciliation, whereas democratisation is mainly governed by top-down processes. Although often referred to as processes which go “hand in hand” with each other, the inter-relation and inter-dependence of those two needs further scrutiny, given the general complexity of the state-building and restoration of peace processes in BiH.

I. Literature review

Since the state of BiH with its complicated political system which emerged after the Dayton Peace Accords and with its tragic history of inter-ethnical conflicts remains a fruitful field for the research in political science, thereby attracting academics all over the world to explore the complexity of this sensitive and fragile region, it is fair to say that a solid body of literature was created in the last two and half decades. For the purposes of this research, the author primarily focuses on the latest research, which in its turn is based on the previous academic works in this field.

In general, the democratisation process in BiH was scrutinised in different reports of the non-governmental organisations and missions ^[3],[6], as well as by the academics in this field. The most recent books on the subject, namely “State Building and Democratisation in Bosnia and Herzegovina” ^[4] and “The Challenges of Democratisation and Reconciliation in the Post-Yugoslav Space” ^[7] both encompass the critical assessment of all the elements and factors of these processes, such as institutional reforms, the rule of law, the rise and decline of the international administration in the region, reconciliation, as well as the results delivered by the transitional justice mechanisms in general and the ICTY in particular. Possibilities for a constitutional reform were profoundly scrutinised in “Constitution of People and How to Achieve it: What Bosnia and Britain Can Learn from Each Other” ^[8], in which A. Abraham also empirically assesses the political culture in BiH and compares the United Kingdom constitution to the one of BiH ^[9]. A number of academic articles, which will be referred to further, significantly contributed to shedding a light on the complexity of the political and social situation in the region in question. It can be deduced from this body of literature, that the democratisation process went not as smoothly as it was expected; therefore, a general assumption can be made that a democratisation process in the case of BiH demands more than “the consent of the elites” ^[10].

As far as the specific impact of the international criminal justice, namely of the ICTY in the region of BiH is concerned, there were several early attempts to assess the attitude towards this institution of the citizens of the former Yugoslavia. E. Neuffer made at attempt to explore victims’ perceptions of the ICTY and the ICTR in 2001 ^[11]. Another crucial research conducted by E. Stover and H. M. Weinstein (eds) addresses perceptions of these courts by inhabitants of the affected regions ^[12]. Local impacts were also later explored by J. Meernik ^[13] and R. Kerr in 2005 ^[14]. What unifies these efforts is that the research was conducted at times, when the institution was at the very early stage of its development when “the small fish” perpetrators were the main accused, and the reconstruction of historical events and crimes was still ongoing. This not to mention the less developed means of communication, more precisely the Internet, which was not broadly available in the affected region to that time, thus making the information about the court proceedings more difficult to acquire. D. F. Orentlicher substantially contributed to the research of this topic by publishing scientific works on the impact of the ICTY in the affected regions of Bosnia ^[15], also later including Serbia ^[16], and by monitoring and analysing the effects of justice and the developments for a long period of time. J. N. Clark created a “reconciliation matrix” and applied it empirically on the affected societies, thereby proving the inefficiency of the tribunal in the eyes of the citizens of BiH and their general dissatisfaction and disappointment in the international criminal justice ^[17].

Nevertheless, the inter-dependence of the concepts of reconciliation and democratisation has not been scrutinised on the example of BiH, and a special impact of the ICTY on reconciliation albeit has been assessed based on the public opinion, but without taking into consideration one of the outcomes of the court’s activities – the former perpetrators who to the major part have been already released from prisons. This paper attempts to bring a more nuanced approach to the assessment of the factors influencing reconciliation and democratisation and the extent to which they might serve as an obstacle to the success of these processes.

The list of above-mentioned books and publications cannot be considered exhaustive; however, those listed were chosen by the author as the most reliable works in this filed, most suitable for the purposes of this research and, what is also important, most relevant and recent -since BiH remains a turbulent region with ongoing democratic reforms, the special impact was also put on media coverage of the most recent events.

II. Conceptual background

The clear understanding of the definitions of the concepts is needed in the first place in order to proceed with further scrutiny of their inter-relations and inter-connections. It is essential to understand that democratisation is a process, which pursues an idealistic goal to achieve democracy, a process “through which a political regime becomes democratic” ^[10]. By building and consolidating democratic institutions, the transition to a more democratic political regime can be assured. Such definition albeit being rather general in nature should be seen as an overarching concept of different sub-processes, inter-relation of which will be explored further. Although there exist inconsistencies and different views on defining democratisation, nevertheless, one common approach exists in this regard, which “differentiates between two phases, namely (i) the initial transition from an authoritarian or semi-authoritarian regime to an electoral democracy and (ii) the subsequent consolidation of the democracy” ^[10]. Both processes are considered as distinct, since they are performed by different actors at different moments of time, mostly subsequently. The transition process starts after the regime fall, or straight after the end of the armed conflict, as it was in the case of BiH, and includes the creation of the democratic institutions; whereas the consolidation process “entails a much broader and more complex process of institutionalisation of the new democratic rules for political life” ^[10].

Reconciliation in its turn is not only a process but also a final goal ^{[17, p. 40]}. Because of its progressive character and continuous evolvement ^{[18, p. 12]}, reconciliation is difficult to measure, which makes it very challenging to assess the stages of the process of reconciling. The starting point to measure the progress would be the time point when the conflict is over, and first attempts are made to try to start to co-exist peacefully together on the same territory again. Logically, from that time we can assess the developments in the society, presuming that at this point, the inter-ethnical relations are at their worst state of condition. Reconciliation is not only about reconciling the perpetrator with a victim, such perception would be too narrow; reconciliation should permeate all layers of society, all affected individuals from the region, independent on their participation in the conflict. For the purposes of this research, reconciliation should be understood in its broadest sense ^{[17, p. 40-46]}, as a process mainly focusing on the improvement of inter-ethnical relations to the greatest possible condition.

International criminal justice, more precisely, the effects of such justice in the post-conflict society and the influence of it on both reconciliation and democratisation, constitutes the next important component of this research. Many international, internationalised and hybrid tribunals contributed and continue to contribute to the development of the international criminal law as a separate body of law and a discipline and of the international criminal justice as a system of principles and norms, which aims at closing the impunity gap at the international level. The ICTY, which was extra-ordinary ^{[16, p. 1]} established by the United Nations Security Council Resolution in 1993 in response to the crimes and atrocities committed in the former Yugoslavia, with its announced ambitious goals, such as “contributing to the restoration and maintenance of peace in the region of former Yugoslavia” ^[19], being one of the first international courts of such type after Nuremberg Trials ^[20], substantially contributed to the arising of the new mode of fighting impunity and inspired the creation of the other international criminal courts ^{[16, p. 2]}. In this research the effects of the decisions and the legacy of ICTY in BiH are analysed as a factor which arguably influences democratisation process in the region. International criminal justice for the purposes of this research is represented by the trial proceedings, decisions, outreach programmes and other activities of this institution which might have an impact, whether positive or negative, on the post-conflict societies.

Transitional justice is a more overarching concept, being a discipline, which encompasses trial proceeding and other non-trial mechanisms, such as, for example, truth and reconciliation commissions, reparations, it pursues a goal to confront the “heritage” and to overcome the consequences of mass atrocities, violent changes of political regime and armed conflicts. The ICTY, being an ad hoc institution in its nature, can be considered as one of the transitional justice mechanisms, which, alongside the domestic court proceedings conducted earlier by the regular criminal courts, and then by the specially established War Crimes Chambers of BiH ^[21], was aimed at contributing to the peacebuilding process in the region; nevertheless, BiH still remains an example of a post-conflict society where transitional justice mechanisms were applied only partially ^{[22, p. 1]}, leaving the country without further needed support in reconciliation attempts and transitioning to the functioning democracy.

III. Inter-relation of the concepts - Bosnia’s Russian Matryoshka or parallel lines do not intersect?

Democratisation, reconciliation, international criminal justice, transitional justice – how do these concepts inter-relate, inter-play and inter-depend on each other? Do they indeed go “hand in hand” towards state building and prosperity? And can BiH serve as an example of the successful imposition of these processes and instruments? Twenty-five years seem to be a sufficient period of time, when the processes could have developed and reached the admired goals, and taking into account the completion of the most of the criminal proceedings at the ICTY, today can be considered to be an appropriate moment to assess the results.

1. On the way to democracy in BiH – “travelling without moving”?

Democratisation in post-Dayton BiH has been often characterised in the academic literature as being “a noble experiment”, where the western countries initiated comprehensive post-conflict transition to democracy in a country torn by inter-ethnical conflict, which was preceded by decades of the socialistic regime ^{[23, p. 58]}. The expectations were high, however, the Dayton Peace Agreement caused Bosnia’s “crippling dependence on external actors” rather than led the country to establishment of an effective self-governance ^{[23, p. 58]}.

The institutional framework established by the Dayton Peace Agreement reflects Arend Lijphart’s consociational model of democracy, which is described as “government by elite cartel designed to turn a democracy with a fragmented political culture into a stable democracy” ^{[24, p. 2]}. Different interests of the three constituting peoples in the case of BiH must be recognised and taken into account for “the sake of cohesion and stability of democracy” ^{[24, p. 2]}. If described in a nutshell, the system functions as follows: two highly autonomous entities, namely Republika Srpska, which is highly centralised, and the Federation of BiH, which is, to the opposite, highly decentralised, with powers devolved to its ten cantons, enjoy explicit powers in political and decision-making processes ^{[4, p. 4-5]}. It can be stated that the political system of BiH represents “a hybrid regime where democratic institutions and mechanisms co-exist with non-democratic ones” ^{[25, p. 42]}, both having essential functions and being inter-dependent. It can be argued that the implementing institutions imposed by the international community “have become a currently indispensable part of the domestic political system”, and the activities of promotion of democracy performed by these artificial mechanisms “has acquired distinctive elements of control over its political development” ^{[25, p. 48]}, therefore the labelling the political regime of BiH a “controlled democracy” seems to be in line with its nature.

International administration, namely, the Office of the High Representative (‘OHR’), which was established in BiH after the end of the conflict, has been a part of political management of the country for a prolonged period of time. Its powers were substantially expanded in 1997, with the so-called Bonn Powers, which included the power of the OHR to fire the local politicians, who violate legal commitments or the Dayton Peace Accords and adopt the decisions and laws, when the local parties seem to be unwilling or unable to act and agree. The same year, the OHR’s mandate was prolonged due to the need of further supervising politically instable BiH on its way to democracy. Notwithstanding the critics from all the three constitutional ethnical groups of BiH, the OHR managed to successfully implement a series of democratic laws. However, the “democratic consolidation process [generally remains] slow due to reliance on institution building and the rule of law based on ethnic identity” ^{[24, p. 12]}. Furthermore, the vast majority of the citizens of BiH according to the social polls results of 2016, think that the country “is heading in the wrong direction” ^{[3, p. 5]}. What to a certain extent, still unifies all the ethnical groups is the wish to join the European Union, which, however, has its limits ^{[3, p. 5],[26]}.

Is it, in fact, possible for a state like BiH to move in the direction of democracy, given the multiple obstacles created by the artificially implemented political system? When assessing the existing and emerging barriers and constraints, it should be borne in mind, that the order established by the Dayton Peace Accords, was probably the only possible solution in 1995. Notwithstanding its immediate effect, in the long run, the system, however, showed that it was not deprived of weaknesses and gaps. Some commentators go that far as to label the now existing state of BiH “a fragmented, complicated and ethnically gerrymandered construction” ^{[4, p. 4]}. At this moment, regression of achieved results and reforms can be observed ^[27].

When exploring different sectors of potential and desirable developments in BiH, generally an unsatisfactory picture can be seen. As far as constitutional developments are concerned, the need for reform has been articulated more strongly by the Bosnian civil society’s representative in recent years ^{[4, p. 15-40]}. The most famous, but far from the only, Sejdić and Finci v. Bosnia and Herzegovina case at the European Court of Human Rights (‘ECtHR’), which confirmed the discriminatory nature of the Bosnian Constitution ^[28], has significantly influenced the perception of the system established by the Dayton Peace Accords in the society. The recognition only of three major ethnical groups as constitutive peoples of BiH, being an essential part of the current system, is not in compliance with human rights and only strengthens the inter-ethnical division of the different groups. Despite the attempts to start a constitutional reform, there are still no positive developments in this field, and all efforts can be described as failed. The Bosnian parliament and government “have proven to be weak institutions”, and “the success [of the former] in fulfilling its constitutional obligation has become dependent on the success of a non-institutional process – the negotiations of political party leaders” ^[29].

Secondly, the party politics stands out again with its implied dependence on ethnicity, which does not encourage the parties to compromise for further developments in the country. Such a political division of a country as it stands in BiH “creates an extreme kind of consensus democracy” ^{[4, p. 42]}. Since the cooperation between the ethnical groups does not operate the way it is required for the proper functioning of the system established by the Dayton Peace Accords, the role and the importance of inter-ethnical reconciliation in the first place is again seen as interwoven in the context of all the layers of the political system, and it can be stated that failed or unsuccessful reconciliation negatively influenced and continues to influence all the sectors of the mal-functional state of BiH.

Thirdly, the re-building of the justice sector, which was not seen as a priority at the times straight after the signing the Dayton Peace Accords, started with police reform, only then followed by the judiciary reform, although having shown significant progress, still remains a sector, where the political elites show little interest in further promotion of judicial independence ^{[4, p. 61-82]}.

Furthermore, more attention should be put on “the exit strategies” for the international administration in BiH ^{[4, p. 131-150]}. All the above-mentioned facts and arguments confirm that the Dayton Peace Accords offered “a highly decentralised segregated state” ^{[4, p. 213]}, where the importance of the ethnonationalist identity is difficult to overestimate and where the “low-level of horizontal and vertical trust […] empowers ethnonational elites ^{[4, p. 215]}. In this regard, the importance of post-conflict reconciliation in BiH should have been understood by the international actors at the very beginning of the democratisation process.

2. Omitted reconciliation?

The academical assessment of the process of democratisation in BiH has been conducted several times in the last two and a half decades and mostly included the evaluation of the developments in such sectors as the electoral system, governmental transparency and accountability, institutional and legislative politics, ethnic politics and political efficacy, political parties and presentation of public interest, civil society engagement in decision-making processes, political inclusion of the marginalised groups, such as youth and women, and others ^[3]. As far as factors and preconditions, which can potentially influence democratisation and state-building are concerned, political culture, for example, has been explored as one of them by different scholars ^{[4, p. 1]}.

Reconciliation per se has never been included in the assessment of the developing of the democratic institutions, being considered not to be part of it as it stands. The author agrees that de facto inclusion of reconciliation into the democratisation process would be premature and inappropriate, not only because of the difficulties in evaluating of progress but merely because of the nature of this concept, which while existing separately from the formal democratisation criteria, is interwoven in the state building, permeating all the sub-processes of democratisation and underpinning the developments. It can be assumed, that on the one hand, positive reconciliation developments would be beneficial for the strengthening of democratic institutions by influencing the inter-ethnical communications and, therefore, facilitating successful decision making and state-building; whereas, on the other hand, regressive developments would arguably inhibit the process of democratisation.

While democratisation started with the imposition of specialised institutions, in the case of BiH including the external governing body, provided by the international community, reconciliation should have started with uncovering the truth and discussing and convergence of the mutually exclusive historical narratives. It can be argued in this regard, that in the case of BiH, the process of reconciliation started later than the process of democratisation, which leads to a logical question, whether such an omission was caused by the opinion that reconciliation does not play an important role in the building of democracy? At this moment of time, however, an assumption can be made that democratisation did not succeed in BiH at least partially because inter-ethnical reconciliation was not reached. This hypotheses places reconciliation in a decisive position and makes the processes closely inter-dependent. By turning the situation around, the dependence of the reconciliation on democratisation is obvious – the complex political system based on the ethnical division, imposed on the Bosnian state by the international community provoked and promoted cleavages between the ethnical groups, which actually had to be reconciled in the first place.

It would be, however, incorrect to suggest that the Dayton Peace Accords per se prevented the healing and social reconciliation, given such specific trait of the concept as the need to start from the inside, from the individual him- or herself. Further factors which influence reconciliation should not be overlooked, and their importance should not be underestimated. In this regard, international criminal justice and its role should be explored in more detail.

3. International criminal justice as a substantial element of successful transition – failure in BiH?

As it was previously assumed, in the case of post-conflict BiH, the international criminal justice, represented by the ICTY, is a part of the country’s transitional justice process. The ICTY, on the other hand, can be seen as a factor, influencing the reconciliation and democratisation processes.

Delivering justice for the victims in the narrow sense, and for the whole affected region in a broader sense can be considered as a precondition to reconciliation ^{[2, p. 657]}. Justice can be done by different institutions to the same time: truth and reconciliation commissions, international criminal courts and tribunals, national criminal proceedings. BiH is an interesting region in this regard since the justice was at first place delivered by an international tribunal situated outside the region, which should have had an impact strong enough to serve as a precondition for reconciliation. The other “justice delivery mechanisms” in BiH, such as inter alia Bosnian War Chambers, the first Srebrenica Commission, or more precisely the Commission for Investigation of the Events in and around Srebrenica between 10 and 19 July 1995, which published its final report in 2004 (should not be confused with another Srebrenica Commission established recently by the Bosnian Serb Government, which is under critic nowadays ^[30]) and the Research and Documentation Centre in Sarajevo, can be considered only as complementary instruments, which ineffectiveness with regard to influencing the public opinion was empirically proven by conducted sociological polls ^{[2, p. 649-666]}. In the common perception, international criminal tribunals can be seen as beneficial components of transitional justice; however, such assumption needs critical empirical assessment. Remaining a valuable instrument, in theory, such institutions, as it was shown by the example of the ICTY, cannot fully take either leading or major role in the promotion of reconciliation, since the international criminal justice is not a panacea ^[17]. Furthermore, criminal court is originally not designed to write history and popularise history of the events in the region ^[31].

As it was stated by Judge Theodor Meron in 2005, “The creation of the [Bosnian] War Crimes Chambers […] reflects the understanding that justice and accountability are necessary components of post-war reconciliation and reconstruction”, which was further re-affirmed by the Registrar John Hocking in 2012, who labelled justice as a “condicio sine qua non to national reconciliation and peace” ^{[17, p. 54]}. Notwithstanding these bold and enthusiastic statements, the IRMCT President Carmel Agius in his speech in 2017 clearly and somewhat surprisingly stated that reconciliation was never a goal of the tribunal, which offered truth to the affected societies, stating that, “We have not dealt with [reconciliation] at all. All the citizens in the countries in the region have the responsibility for reconciliation” ^[32]. That leaves the affected societies with a reasonable question – how should they at this moment of time start or proceed with the process of reconciliation, if one of the external factors, which has been seen by many as a crucial mechanism for establishing the truth and facilitate inter-ethnic reconciliation, now somewhat shamefacedly retreats and gives up its promises.

However, it worth mentioning, that apart from the effects of the specialised ad hoc tribunals, justice in itself has a social component in it - when assessing the justice in a more general sense, a so-called social theory or expressivist theory should not be overlooked. Justice, whether international or not, has a special demonstrative impact on societies ^[33]. Another “face” of justice is retribution. Retributive justice shall ideally reduce the risk of revenge, make an individual, and not a nation or a certain group accountable for the committed crimes, and prevent the war criminals from returning to power ^{[2, p. 657]}. The last component requires further scrutiny: taking into account the fact that the vast majority of the perpetrators have already served their sentences and returned home, to the countries of the former Yugoslavia, where they are generally warmly welcomed by the representatives of their ethnical groups ^[34], it would be fair to say, that nothing prevents them from returning to political power, what they often do ^[35].

Given the relatively humane sentences and highly criticised practices of almost automatic granting of early releases after serving two-thirds of the sentence ^[36], in the most cases without expression of any kind of remorse ^[37], the question whether justice was indeed done, stands out more and more sharply, thereby dramatically diminishing the significance of the ICTY in the eyes of the people from the former Yugoslavia in general and BiH in particular. If the ICTY has not contributed to the reconciliation process, the released perpetrators can be seen as potential aggravators of the process, putting the ICTY in the position of the very expensive international institution, which not only stepped down from its own promises and goals, announced in the past, but also put the whole project of international criminal justice under harsh critic, by not delivering fair retributive justice to those most responsible for the atrocities.

The above-mentioned observation needs empirical probation, for which the present time moment seems to be suitable for the following reasons: (i) firstly, the ICTY is at the final stage of its criminal proceedings; (ii) secondly, the vast majority of the perpetrators have been released and showed up in the local media; (iii) thirdly, due to the advanced age of the perpetrators, the research needs to be conducted as soon as possible in order to assess their current impact on the societies.

The impact of those released perpetrators on the affected communities can be already provisionally assessed by using the open-source evidence – the crowds at their homecomings, their speeches, television broadcasts of their interview, newspaper articles, reactions on those in the press and on the Internet, their Facebook pages, public lectures at the universities, books. It is worth mentioning that perpetrators can influence the public opinion even while serving the sentences by giving interviews and writing books, however, such impact seems to be minimal ^[38]. Since such behaviour as the expression of sincere remorse, acknowledgement of guilt and search for the victims in order to reconcile remains an absolute exception among the released perpetrators ^[39], the general perception which exists in the communities seems to be unchanged – there are different versions of the past events, each of which is strongly supported by the released perpetrators, depending on their ethnicity and the role in the conflict. This underpins and further strengthens the assumption that the ICTY did not contribute to the reconciliation in the region, and proposes a further assumption that the international criminal justice even influenced the reconciliation in a negative way by deepening division between ethnical groups. To the contrary, such actions of the released perpetrators as, for example, apology, acceptance of guilt, spreading truth, providing insider information on the crimes and mass graves and educational lectures for younger generations could contribute to the healing process and facilitate further peaceful co-existence and return the lost empathy between the ethnical groups.

Conclusion

Notwithstanding the long-lasting democratisation and reconciliation in BiH, the country “is still far from being a self-sustaining functional democracy” ^{[4, p. 6]}. The democratisation, which has a number of specific traits in BiH, with its reliance on the inter-ethnical division, has arguably led to a creation of a mal-functioning state. The influence of such kind of democratisation on the reconciliation process has not been assessed empirically, but it can be assumed, that there might exist a negative impact, which to a certain extent strengthens the cleavages between the different ethnical groups, more precisely between the three constitutional peoples. In this regard reconciliation can be seen as a process negatively affected by the artificially created and implemented democratisation, which is an interesting assumption per se. In its turn, however, reconciliation affects the democratisation processes by preventing the divided ethnical groups to overcome the past discrepancies and move forward towards building a prosperous unified state. It seems, that such a deep inter-dependence and inter-connection of the processes was not foreseen by the international and domestic actors who created and implemented the Dayton Peace Accords in 1995, and therefore, no significant effort was put in the promotion of the inter-ethnical reconciliation. Over-reliance on such instruments of transitional justice as international criminal justice, namely the ICTY, with respect to promotion of reconciliation and peace, led to insufficient results.

Furthermore, among the factors which might potentially negatively influence the reconciliation in BiH, such aspect of the ICTY effects as the importance of the convicted perpetrators, who have already served the sentences and returned to the affected region has been overseen. It appears that released perpetrators and their public opinion can influence the reconciliation process in a negative and positive way. Their presence and actions in the post-conflict society, inter alia on the political arena, can provoke deeper inter-ethnical divisions and promote ethnonationalism. In this respect, the ICTY’s reputation and, therefore, the people’s trust and respect for this institution can be undermined by its own convicts, who can still gain power in the region post-release. Their potential public apology and acknowledgement of guilt, for example, might to the contrary serve as an essential instrument for the promotion of reconciliation. Therefore, this aspect should be included in further research of public opinion since it needs empirical assessment.