A Jeffrey Political geographies of transitional justice cover sheet Newcastle University e-prints Date deposited: 20th June 2011 [made available 1st July 2012] Version of file: Author final Peer Review Status: Peer reviewed Citation for item: Jeffrey A. The Political Geographies of Transitional Justice. Transactions of The Institute of British Geographers 2011, 36(3), 344-359. Further information on publisher website: http://www.blackwell-synergy.com Publisher’s copyright statement: The definitive version is available at www.blackwell-synergy.com DOI link: http://dx.doi.org/10.1111/j.1475-5661.2011.00429.x Always use the definitive version when citing. Use Policy: The full-text may be used and/or reproduced and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not for profit purposes provided that: • A full bibliographic reference is made to the original source • A link is made to the metadata record in Newcastle E-prints • The full text is not changed in any way. The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Robinson Library, University of Newcastle upon Tyne, Newcastle upon Tyne. NE1 7RU. Tel. 0191 222 6000 1 The Political Geographies of Transitional Justice Abstract This paper examines how geographers can contribute to debates concerning transitional justice. Recent scholarship in criminology has identified a residual ‘legalism’ in the enactment and study of transitional justice: trial processes and the perspectives of jurists have been prioritised over wider processes of social healing and the perceptions of non-legal actors. This paper explores how geographers can contribute to challenging this prioritisation of legal processes within the study and practice of transitional justice. This is achieved through an examination of attempts to establish forms of transitional justice in Bosnia and Herzegovina since the end of the war in 1995. Specifically, the paper explores the establishment in 2005 of the War Crimes Chamber of the Court of Bosnia and Herzegovina and the civil society-based strategies it has employed to reach out to witnesses and victim populations. The paper makes two interlinked arguments. First, it examines how the international response to the war in BiH placed justice at a distance from victim communities. Second, the paper argues that civil society activities undertaken to widen access to justice have opened up new spaces of deliberation and critique. It is argued that these spatialities point to possibilities of deliberative conceptions of justice fostered beyond legal institutions and processes. Keywords Bosnia and Herzegovina, Transitional Justice, Political Geography, Law, Civil Society 2 Introduction There has been a wealth of recent work in geography examining the spatial nature and effects of legal mechanisms and discourses. This work has spanned traditional sub- disciplinary areas, and exceeds a neatly-delineated sphere of legal geography (Blomley 2008; Blomley et al. 2001). In this paper I will explore how this work can enrich understandings and practices of transitional justice. While state legal mechanisms and international law have both captured the attention of geographical scholars, rather less work has focused on the spatial aspects of judicial mechanisms set up in periods of political transformation and change. As a corrective, I argue that geographers can contribute to understanding transitional justice by exploring the spaces through which judicial processes operate and the spatial imaginaries they bring into being. This argument challenges prevailing narratives of transitional justice that have foregrounded legal institutions, individuals and knowledge as the focal point of transitional justice, to the exclusion of wider spheres of practice and reflection. While legal practices are rightly key elements of transitional justice responses, these operate through and summon into existence a series of non-legal spaces and actors. This argument is made in response to a growing sense in affiliated disciplines, particularly criminology, that the study of transitional justice has been characterised by a dominance of ‘legalism’ (McEvoy 2007). This term is used to indicate the privileging of legal institutions within attempts to foster transitional justice and the allied dominance of the perspectives of lawyers and judges within scholarly and policy debates. In intellectual terms, legalism can be understood as a process which 3 seeks to separate law from other social sciences; most notably politics (McEvoy 2007; Shklar 1986). I will argue that a legalistic understanding of transitional justice elevates the significance of certain spaces and spatial practices (for example, courts and legal processes) over the wider institutional and political setting in which they operate (including, though not restricted to, human rights NGOs, political parties and state agencies). Consequently this paper seeks to destabilise a legalistic understanding of transitional justice and highlight the spatial practices of non-legal institutions and individuals. In order to illustrate this argument the paper draws on empirical material relating to the establishment of the War Crimes Chamber (WCC) of the Court of Bosnia and Herzegovina (CBiH) and its attempts to build links with victims of, and witnesses to, the war crimes committed during the 1992-5 conflict. Since 2005 the WCC has been granted jurisdiction over intermediate and lower-ranking war crimes cases.1 The Chamber will take a lead role in remaining war crimes cases following the completion of the mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY) at the end of the trial of Radovan Karadžić, at a date expected to be in 2012. In an attempt to build links with communities in Bosnia and Herzegovina (BiH) the Court established, in 2006, a Court Support Network (CSN) comprising five NGOs located in towns across the country. This paper assesses the establishment of this outreach initiative and the new spatialities of justice that it has created. The activities of the CSN point to the importance of non-legal agencies to the completion of legal processes. In addition the qualitative responses of the NGO members point to innovative configurations of space, law and justice that operate outside of the formal 4 legal processes. These situated knowledges challenge a narrow legalistic understanding of transitional justice and illustrate the production of new imaginaries of justice and the future. In disciplinary terms this argument contributes to the work of legal geographers in challenging the conception of law operating outside or ‘above’ the society it serves. In ethical and political terms, the empirical material illustrates the importance of non-legal actors and spaces in generating deliberative notions of just outcomes following conflict. The empirical material is drawn from qualitative research conducted during residential fieldwork in the Bosnian towns of Sarajevo, Mostar and Bijeljina in January 2007 and October 2009, building on a long-term research engagement examining the nature of international intervention in BiH since 1999. Taking seriously Megoran’s (2006, 622) call for greater emphasis within political geographic inquiry on “people’s experience and everyday understandings of the phenomena under question”, this approach seeks to explore the mundane and prosaic operation of new legal mechanisms in BiH as they shape, and are shaped by, the civil society organisations under examination. The research visits involved twenty-five semi- structured interviews with representatives from the Court (in particular the Court Public Information and Outreach division), from wider judicial bodies such as the ICTY liaison team in Sarajevo, with other international organisations such as the Office of the High Representative (OHR), United Nations Development Programme (UNDP) and the European Commission and with NGOs both within and beyond the CSN. In addition, the research involved translating and reviewing institutional literature from the Court, the ICTY and the NGO community. 5 The first section of the paper outlines how geographers have explored the relationship between law and space, work that provides critical insights to the production of legal knowledge and its ability to produce spatial outcomes. The second section outlines the history of transitional justice, focusing in particular on its operation through temporal and spatial distance. In the third section I outline a critical geopolitics of justice in BiH, exploring in particular how the international response to the Bosnian war has shaped the possibilities and format of subsequent judicial interventions. The forth section examines the establishment of the Court of Bosnia and Herzegovina, drawing on the wider context of the international response to the war in Bosnia and Herzegovina. The fifth section draws on the empirical material to illustrate the role played by NGOs in supporting the work of the war crimes chamber, focusing in particular on the ‘invited’ and ‘invented’ spaces of justice that have been produced. The Political Geographies of Law The adoption of social and cultural theory into the discipline of geography since the early 1980s has enriched understandings of the relationship between law and space (Blomley 2008). Mirroring theoretical advances in other areas of the discipline, this scholarship has often drawn on Foucault’s explorations of the relationship to between power and knowledge to explore law as a form of discourse (Foucault 1980; Herbert 1996). This approach highlights the grounding of law in particular historical and geographical contexts, and its simultaneous capacity to produce spatial arrangements and erase or exclude others. One of the key objects of concern for this work is the 6 relationship between law and state spatiality. As David Delaney (2001) identifies, the conventional distinction between ‘domestic’ and ‘international’ law renders state sovereignty at the heart of understandings of legal spatiality. In a sense, the centrality of the state points to a wider ‘territorial trap’ (Agnew 1994) in legal studies, whereby state territoriality is presented as a pre-existing spatial framework within and between which legal obligations and rights operate in a systematic fashion. This straightforward understanding of the spatiality of law has been challenged by geographers who have sought to explore the productive capacity of legal discourses to produce spatial arrangements. Consequently scholars have drawn inspiration from this understanding of law as a performance of, and through, space. For example Sallie Marston (2004) examines the spatial effects of legal judgements on the participation of a gay, lesbian and bisexual group in the St. Patrick’s Day parade in Boston, Massachusetts. Marston explores how the legal processes ‘fixed’ certain understandings of society, space and culture. Significantly, these were not neutral definitions of these concepts, but were rather served to promote understandings of society that excluded groups that did not conform to hegemonic expectations. By tracing the path of legislation through the US State and Supreme courts, Marston highlights the way in which legal judgements hinged on a particular understanding of society and space that held them as distinct spheres, rather than as “mutually constitutive processes” (Marston 2004, 11). Marston argues that this separation had profound consequences for how culture was understood as a commodity that belongs to one group rather than “something that is constantly negotiated and transformed through the public give and take of changing 7 ideas and meaning systems in a changing world” (Marston 2004, 14). Within this account legal decisions are not technical adjudications on an external reality, but are rather incursions of power that categorise the social world in order to endorse dominant conceptualisations of identity and belonging. More recently scholars have turned to the materiality of legal practices to confront the perception of law as “a universal abstraction, set apart from the messy realities of local particularities” (Blomley 2008, 161). This work has illuminated the spaces through which legal authority is produced, for example through court rooms, government departments and international bureaucracies (Gregory 2007; Kuus Forthcoming; Latour 2010). By employing ethnographic methodologies to study the materials and contexts of law making, scholars have highlighted the role of everyday bureaucratic processes in shaping legal outcomes, challenging the notion of a clear separation between law and society. In addition to troubling the purity of legal knowledge, these insights highlight the enrolment of spatial abstraction in producing legal authority, from the micro-geographies of the body and the court room, through to the separation of legal buildings from surrounding infrastructures. From this largely geographical work examining the experiential and material attributes of the state-law relationship emerges a concern with the production of legal knowledge and its ability to bring certain subjectivities and spaces into being. One of the key insights shared by these strands of work is the recognition that the operation of law exceeds the arenas conventionally set out for the performance of legal dramas. Just as scholars have sought to question the rigid distinction between state and 8 society, the mutual co-constitution of law and society can therefore be traced through social practices and routines. Drawing on these insights, I would argue that law is a socially embedded process of knowledge production that enrols individuals and institutions beyond the confines of law courts and judicial pronouncements. This approach highlights the governmental nature of legal discourses, where spaces and subjects are labelled and organised through the practice of law. But this framework also focuses attention on the necessity of understanding the ways in which purportedly ‘non-legal’ actors and institutions are drawn into the practice of law. This focus on the substance of law orientates attention to the nature of human agency within legal processes. As the scholarship in legal and political geography has primed us to expect, individuals are not benign recipients of legal discourses but actively constitute and resist these discourses through their everyday lives. In order to conceptualise this notion of agency I will draw on Miraftab and Wills’s (2005) account of activism against water and electricity privatisation in the Western Cape in South Africa. This research stratifies citizenship into ‘invited’ and ‘invented’ practices, illuminating a distinction between formal (‘invited’) notions of neoliberal citizenship centred on voting rights and the consumption of private services, and more improvised (‘invented’) understandings of citizenship focusing on human rights and equality (see also Cornwall, 2002). This vocabulary has spatial implications. In material terms this work illuminates the ‘invented’ spaces through which struggles over citizenship were performed: the street, the home and the infrastructure of the city. In more imaginative terms, this work demonstrates the ways in which ‘invented’ citizenship relied on forms of solidarity that operate across a series of spatial scales 9 within and beyond the state: from the neighbourhood, to the city and through to transnational ties with other activist groups. The use of legal instruments to implement transitional justice in BiH can be analysed through this distinction between ‘invited’ and ‘invented’ practices. This approach illustrates the ways in which formal sites of justice are simultaneously sustained and challenged through invented practices embedded in civil society. It also illustrates the plural spatiality of transitional justice beyond state territoriality. Applying this mode of spatial inquiry to the case of transitional justice requires an exploration of the particular nature of such legal initiatives and their emergence over the past century. The Distance of Transitional Justice The United Nations Security Council define transitional justice as the “full range of processes and mechanism’s associated with a society’s attempts to come to terms with a legacy of past abuses, in order to ensure accountability, serve justice and achieve reconciliation” (United Nations Security Council 2004, 4). While this definition is by no means uncontested (see Teitel 2003), it serves as a starting point for an analysis of the ways in which transitional justice operates through distance. This distance can be articulated in three ways. First, transitional justice operates across a temporal shift, namely that the crimes and the judicial response are occurring at different times, under purportedly different regimes. Consequently, written in to varying definitions of the concept of transitional 10 justice is a sense of the passage of time, setting a distance between crime and punishment. In early attempts to establish instruments of transitional justice this distancing opened legal questions as to the possibility of trying individuals for crimes committed under different legal rule sets. Specifically, the Nuremburg Trials at the end of WWII were criticised at the time for instituting ex post facto law, and challenging the fundamental legal principle of nullum crimen sine lege, nulla poena sine lege (no crime without a law, no punishment without a law) (Kerr and Mobekk 2007, 20). Despite the codification of war crimes in the Geneva Conventions in 1949, the challenge of trying individuals under new legal and political circumstances remains. The significance of shifting political contexts was illustrated in Radovan Karadžić’s pre-trial defence at the ICTY in 2009, where he argued that he had secured immunity from prosecution from the US chief peace negotiator during the Bosnian War, Richard Holbrooke. While refuted by Holbrooke (2008) -- though seemingly confirmed by recent anonymous US State Department accounts (see Klemenčič, 2009) -- this attempt to challenge the jurisdiction of the court illustrates the space opened for contestation through the time delay between crime and trial. In addition to the changing political and legal context, the temporal shift also poses logistical problems for the operation of transitional justice. There are clear challenges to conducting trials after the crimes are alleged to take place, for examples the mortality of witnesses, victims and offender and the degradation of material evidence. Secondly, the institutions of transitional justice are often spatially removed from the context within which the crimes took place. Sriram and Ross (2007, 46) describe this as the ‘externalisation of justice’, where “trials and legal processes occur far from the 11 locus of the crime”. This is most evident in the cases of the tribunals for the conflicts Yugoslavia and the International Criminal Court (ICC) which are both currently based in The Hague in the Netherlands. But even where domestic tribunals or court facilities are used, their sites are often separated from the geographical context of the crimes and victim communities, either through their location in the capital city or through security measures separating the courts from surrounding infrastructures. The Gacaca courts in Rwanda, which have attempted to institute more traditional dispute resolution mechanisms, offer an example of a more socially-embedded legal process (Clark 2007). But even in these attempts, the justice process is confronting a social and demographic context that has radically changed through the conflict and post- conflict periods. In cases such as the former Yugoslavia the displacement and migration of victim communities means that courts often have to face the logistical challenge of gaining testimony from witnesses and victims distributed across the globe. But even where refugees have returned, internal displacements and demographic changes can pose a challenge to the operation of justice. The Rwandan programme of Imidugudu (‘villagisation’) undertaken since 1997 provides an example of the role of government sponsored social engineering creating new spatial challenges to the operation of transitional justice, where former social ties are disrupted and potential trial participants re-distributed across the territory of the state (see van Leeuwen, 2001) 2. Attempts have been made to address the temporal and spatial separation of legal mechanisms of transitional justice from the societies and contexts within which the crimes took place. Notable examples include the establishment of the Truth and 12 Reconciliation Commission (TRC) in South Africa to confront the crimes of the apartheid or the hybrid international/local courts established in Timor-Leste and Cambodia. But these institutional responses do not detract from a third form of distancing: the use of law. While institutional forms of transitional justice have varied over the last century, they have been structured around the use of law as a mechanism through which justice may be sought. This approach has prioritised the establishment of new judicial institutions and the design of new legal and criminal codes through which crimes may be prosecuted. This is necessarily a practice of distancing, where contestation is removed from its social context and evaluated court rooms and legal chambers. The reliance of legal authority on a degree of separation from “local particularities” (Blomley 2008) has engendered a policy response by international organisations, such as the UN, who have adopted programmes in order to widen “access to justice” (UNDP 2010). These large scale policy formulations have cultivated civil society responses who have sought to build connections between court processes and community groups (see Hodžić 2010). In the following sections the paper examines how widening access to transitional justice trials in BiH has not only assisted in the formal legal process, but has brought new spaces of justice into being through education programmes, transnational connections and innovative forms of political participation. These constitute invented rather than invited spaces of law, where civil society organisations bring into existence new deliberative forms of justice. Critical Geopolitics of Justice 13 The distancing of transitional justice has been a particular issue in the case of the international response to the fragmentation of Yugoslavia and, in particular, the war in BiH between 1992-5. The abstraction of judicial instruments from the context of the crimes, both spatially and temporally, has increased the necessity for forms of public outreach to generate understanding of, and cooperation with, the institutions of transitional justice. Exploring this process requires a consideration of the history of international involvement in addressing the violence of the Bosnian war. But in doing so it is important to avoid presenting a neat historical narrative of the international response to the conflict, since these protean historical and geographical events are only intelligible through their complexity and specificity. In order to challenge dominant narratives as essential truths scholars have drawn on post-structural political theory to present a critical geopolitics of the conflict, which illustrates the competing and coexisting discourses that framed the military and political strategies during the conflict and post-conflict periods (see Campbell 1998; O Tuathail 1996; O Tuathail 2002). As Merje Kuus (2007, 10) points out, discourses do not ‘cause’ a particular judicial outcome, but rather “frame political debate in such a way as to make certain policies seem reasonable and feasible while marginalizing other policy options as unreasonable and unfeasible.” By exploring these intertwining discourses we begin to see how the separation of transitional justice mechanisms from Bosnian society was a necessary part of the operation of intervention. 14 The first discursive frame is that of national security. The initial political and military confrontations in BiH in 1992 were framed by nationalist leaders (both within BiH and in other former Yugoslav republics) in terms of competing understandings of national security, structured around mutual fear of minority status in new state territorialities. Political groups representing Bosnian Muslims (or Bosniaks) and Croats feared Serb political dominance in what remained of the Yugoslav state (following the secession of Croatia and Slovenia in 1991). In contrast, Serb nationalist political parties, in particular the Srpska demokratska stranka (SDS) led by Radovan Karadžić, feared minority status in an independent BiH. These fears fuelled antagonistic political rhetoric which transformed into violence following the Bosnian Government’s declaration of independence in April 1992 (see Silber and Little 1996). Over the following months Serb military and paramilitary forces, supported by well- armed Yugoslav People’s Army (JNA), attempted to create an ethnically homogenous territory within BiH, called the Republika Srpska (or RS) (Kadrić 1998). This action involved the expulsion or execution of non-Serb populations, the besieging of key cities such as Sarajevo and Goražde, and the holding of prisoner populations in a series of camps in Prijedor, Brčko and Bijeljina, amongst others (Dahlman and O Tuathail 2005a). Similar atrocities, if on a smaller scale, were committed by groups claiming to represent Bosniak or Croat national interests, in particular in the southern Bosnian towns of Konjic, Mostar and Čelebići. The second discursive frame was humanitarianism. Western political elites portrayed the violence as a humanitarian disaster (O Tuathail 2002), focusing attention on the plight of Bosnian citizenry in particular in the besieged streets of Sarajevo. This 15 biopolitical label drew attention to the outcome of violence and the failure of the state to perform its function of protecting its citizenry, but it simultaneously erased a conception of victim and perpetrator. Presenting the conflict in these terms allowed for an institutional response that focuses on the distribution of aid and promotion of NGOs. The humanitarian label was sustained through explanations by politicians in the US and UK that the violence was a consequence of ‘ancient ethnic hatreds’ or ‘primordial evil’, labels that present conflict as biologically-predetermined and an essential part of a Balkan temperament rather than as a political manoeuvre. The outcome of this primordial understanding of the violence was an attempt to identify a division of Bosnian territory which would appease all warring parties (Campbell 1998). In doing so, we can see how the rubric of humanitarianism only sustained the discursive framing of the conflict in terms of national security. Alongside the entwined discourses of national security and humanitarianism there circulated a third discursive frame of the Bosnian war: accountability. The images of war crimes broadcast through international media networks, in particular the pictures of emaciated Bosniak men behind barbed wire at the Omarska prison camp in 1992, jarred with discourses of national security or humanitarianism. The organic narrative of violence encapsulated by a humanitarian interpretation of the conflict was challenged by the outpouring of public and political fury provoked by reports of war crimes and displaced people. As Ó Tuathail (1996) notes, allegations of genocide in Europe raised the spectre of the impotence of Western Allies in the face of the Holocaust in World War Two and the subsequent commitment to ‘never again’ stand by while atrocities on such scale were committed. As a response to these apparent 16 violations of the Geneva Conventions in October 1992 the UN Security Council established a commission of experts to investigate alleged war crimes in BiH. The findings of this commission led to pressure within the UN to establish a Tribunal to hold individuals to account for the acts against civilians in BiH. The material outcome of these pressures was the establishment by the United Nations Security Council of the International Criminal Tribunal for the Former Yugoslavia (ICTY) through Resolution 827 on May 25 1993. The Resolution tasked the tribunal with “prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia” from January 1991 onwards (United Nations Security Council 1993). As Hazan (2004) has illustrated, this institutional response was shaped by the dominant discourse of the conflict of national security. The initial work of the Tribunal was hampered by poor resourcing and internal disputes between the panel of international judges and the first chief prosecutor, Richard Goldstone. A particular criticism levelled by the jurists was the extremely slow pace of initial indictments and the focus placed by Goldstone on lower-level military officers rather than targeting wartime leaders. In this respect, Hazan (2004, 61) suggests that Goldstone was performing a political function for Western leaders by intimidating the leadership of warring parties, but “stopping short of indicting them.” In addition, local and national courts and prosecution offices across the territory of the former Yugoslavia began (and continued) conducting war crimes cases lists of alleged perpetrators. As Mallinder (2009) notes, minority groups perceived these practices as reflecting the political interests of the demographic majority in a particular locality. In February 17 1996 the Bosnian Government formally agreed to halt the arrest of individuals who has been indicted by the ICTY, in a set of procedures know as the Rules of the Road. The discourse of national security was further emboldened through the internationally-brokered resolution to the violence in BiH. As the work of Campbell (1998) has demonstrated, the Dayton Peace Accords (DPA) in 1995 emphasised a commitment to ethnically-defined territories, albeit with the paradoxical guarantee of the right of return for refugees and internally displaced people. While this outcome reproduces a discourse of national security, it could be argued that concerns over accountability acted as a backdrop to Dayton negotiations, in particular since Radovan Karadžić and Bosnian Serb Army General Ratko Mladić were indicted for a second time during the negotiation process (see Goldstone 2000, 107-8) and compliance with the ICTY was written in to Annex 6 (Chapter 3) of the resulting Peace Accords. But despite these moves, in the immediate post-conflict period the momentum for the judicial response to the violence was lost, reflected in the shift to language of democratisation, in particular prioritising democratic elections that strengthened nationalist political parties (see Donais 2000) and the weak terms of engagement for the NATO implementation force (I-For) which acted as a barrier to the arrest of indicted individuals.3 This outcome ensured that the judicial instruments designed to hold war criminals to account were located at a distance to the localities at which the crimes took place. The devolved nature of the Bosnian state, and the subsequent strength of the entity-level governments, resulted in political stagnation in creating a single legal entity capable 18 of performing war crimes trials in BiH (Jeffrey, 2009). The powers of the international community have been concentrated in the Office of the High Representative (OHR), and singularly in the figure of the High Representative, an appointee of the Peace Implementation Council (PIC). Since 1997 the High Representative has held Bonn Powers, named after the PIC conference at which they were authorised, which grant executive and legislative powers over the Bosnian state in the name of implementing the Dayton Agreement. In the face of “centrifugal forces”, the OHR has used Bonn Powers to make basics reforms to elements of the education system, the divided military and stagnating system of government (International Crisis Group 2007). A critical study of the geopolitical framing of the war in BiH can therefore draw a connection between the international endorsement of discourses of national security, and the resultant fragmented state dependent upon international supervision with strong executive and legislative powers. The War Crimes Chamber One of the key impositions made by then High Representative Lord Paddy Ashdown on 3 July 2002 was to impose The Law on the Court of Bosnia and Herzegovina, legislation that established for the first time the possibility of a state level court in BiH. This was realised in March 2005 through a joint initiative between the ICTY and OHR established the War Crimes Chamber of the Court of Bosnia and Herzegovina. This organisation, operating within the Criminal Division of the Court of Bosnia and Herzegovina, accepted transferred cases from the ICTY in addition to commencing new prosecutions and investigations. 19 There are a number of important facets to the WCC. First, from the outset this body has been supported by international personnel within both the Prosecutor’s Office and Judiciary. This involvement is unpopular with domestic political parties, in particular within the RS, and in October 2009 the Bosnian Government ordered for international participation to cease, though was over-ruled by the High Representative. Second, the trials take place within the Court of Bosnia and Herzegovina building, located five kilometres south of the centre of Sarajevo (see Figure 1). The building, funded by the European Union and Government of Japan, contains eight court rooms each constructed and equipped through funding from multilateral and bilateral sources. Figure 2 shows Courtroom 6, a high security facility funded by the Belgian Government and used in high profile war crimes cases. [Figure 1 and Figure 2 about here] Through analysis of the discursive framing of the violence in BiH we can discern three reasons for the necessity of a public outreach initiative involving NGOs in fostering understanding in the work of the WCC. First, the WCC is a new institutional response to the violence of the conflict and consequently it may be unfamiliar to communities in BiH. Certainly the PIOS official suggested that there is a longer legacy of perceiving courts as removed from wider society in the former Yugoslavia: The idea was that people felt more comfortable contacting an NGO than contacting a court, people were concerned about contacting courts, they were not seen as accessible, this was a 20 legacy of the Yugoslav past where courts were always seen as up here [gestures with her hands]. So people didn’t want to contact the court.4 Second, the origins of the WCC in OHR decision-making and the subsequent involvement of an international judiciary has led to the Court being seen as international imposition by some segments of the Bosnian public. This is often not meant as a criticism; indeed many of the NGO officials I interviewed for this research saw the retention of an international judiciary as crucial to the continued functioning of the court. However, the international presence was identified by both the Bosnian Court official and the ICTY Liaison Officer as a key reason to promote public outreach in order to build community trust in the judicial process. Finally, the establishment of the WCC was strongly opposed by nationalist politicians in BiH, in particular Milorad Dodik’s Savez nezavisnih socijaldemokrata (SNSD) party in the RS. This domestic hostility to the WCC, coupled with the novelty of this institutional form and the perception of international imposition, strengthened attempts within the court to establish some form of public outreach initiative5. This came to fruition in 2005 with the creation of PIOS as part of the CBiH, and specifically with attempts to create links with Bosnian NGOs working in the fields of human rights, education and reconciliation. Invited and Invented Spaces of Justice The Court Support Network (CSN) was established by PIOS in 2005. Its mission was “to integrate the mission of the Court into the wider Bosnian community,”6 an 21 objective that one of the instigators described as “more than PR.”7 The Court approached five human rights NGOs located in the Bosnian towns of Sarajevo (Žene ženama), Mostar (Centri civilnih inicijativa or CCI), Prijedor (Izvor), Bijeljina (Helsinški komitet) and Tuzla (Forum građana). The idea was to reach a wide geographical spread and through these organisations establish a sustainable network which would spread information about the Court, and in particular the WCC.8 The original CSN programme was funded by the Court for six months and provided resources to each NGO to dedicate two staff to work on networking activities. One of the key objectives behind the CSN was for the organisations involved to develop their own network, and thus the reach of the court would extend into Bosnian communities through the operation of civil society groups. After the end of the first phase of funding this had not been achieved and one of the officials involved remarked that the lack of follow-up funding was a reflection of changing priorities in PIOS away from outreach work and towards public and media relations.9 But despite the weakening of the formal network approach, the participant NGOs have continued to work with the Court (and in particular the WCC) and have remained in loose affiliation while the concept of the CSN remains a core part of the Court’s public relations materials . As part of this research project I examined the activities in detail of two of the organisations within the CSN: CCI in southern town of Mostar and Helsinški komitet in the northern town of Bijeljina. Through the interviews with these organisations, and studying their promotional and policy documentation, ambiguities emerge as to the position and nature of their activities. While providing logistical assistance to the trial process, these organisations also offer space for critique and rejection of the 22 mechanisms of transitional justice initiated in BiH since the end of the war. In order to illustrate these diverse functions I am drawing on the framework introduced by Miraftab and Wills (2005) to group them under the headings ‘invited’ and ‘invented’ spaces of justice. As discussed earlier in the paper, these labels provide a sense of the agency of the CSN institutions as they operated both within and beyond the roles prescribed by PIOS and the WCC. Consistent with the main argument of the paper, these functions illustrate the significance of non-legal institutions and practices in shaping the legal process and offering alternative spaces of transitional justice. I will explore each in turn. Invited Spaces “The Court Support Network was meant to be for all the [Bosnian] public” related an official from the CCI, “but it was mostly used by potential witnesses.”10 This comment encapsulates what was perceived by both those managing and participating in the CSN: that its primary focus was on encouraging and supporting witnesses of war crimes to come forward and testify at the WCC. Part of this function was logistical, providing the Court and, in particular, the prosecutor’s office with assistance in getting in touch with witnesses, assisting with transportation arrangements and keeping contacts open between witnesses and court officials. But this narrow interpretation of the role of the CSN overlooks the ways in which these apparently mundane practices are reshaped by the political and economic geographies of post-Dayton BiH. In particular two challenges confronted the CSN organisations: the prioritisation of social and economic considerations over participation in the court 23 and the stigmatisation of participation by sections of the community that resist the establishment of a state court and/or institutions of transitional justice. In the first case the representative from CCI was explicit that participation in trial processes was a low priority for those struggling to survive in the tough economic conditions of contemporary BiH where GDP per capita in 2009 was only $7764 (UNDP 2009a): So our idea was that if you have some basic problems, like of you cannot feed your children how can you decide to go to the court of BiH and be a witness, I mean this is not a priority in your life.11 In order to confront this issue the organisation sought to provide a broad approach to witness support that understood the importance of economic, social and psychological factors in shaping decision making processes. One activity undertaken by CCI was informing witnesses of their potential eligibility to receive a small state pension on behalf of deceased relatives who were recognised as Civil Victim of War.12 The representative explained the struggle in convincing people that they were eligible for this money: When we told them you have a right to this money, they would say “no, who is going to give us money?” You know, people didn’t trust anything. Even if you explain to them the law and their rights, they are sceptical about many things.13 24 These quotations illustrate the disjuncture between the existence of certain legal or judicial rights, and their adoption by potential witnesses. The simple invitation to participate – whether in the WCC process or through the civil victim status – was insufficient to ensure involvement. By exploring the individual motivations for individual participation and coupling this with psychological barriers to trust in authority structures the CSN was able to foster participation. The CSN were adept at presenting the activities of the WCC as embedded in the social context of BiH post- Dayton . This point was further enforced through the interview comments regarding the wider Bosnian political landscape and its effect on participation rates. The interviewees spoke of the significant role played by the dominance of nationalist political parties in shaping participation in the WCC. In particular they pointed to the role of mythical tales of heroic war time leaders in shaping public opinion. To one extent this reflects the sustained primacy of discourses of national security in shaping domestic politics in BiH over the last fifteen years. But the interviews suggested that this was also reflective of the distanced nature of transitional justice over this period. The absence of an ICTY-led public outreach initiative until 1999 was blamed by a representative from Helsinški komitet for providing the space for the political manipulation of transitional justice in BiH: […] it was a basic mistake they [the ICTY] made in the beginning. The ICTY was established in 1993 but the outreach office of the ICTY was established in 1999. These six years were 25 used by political leaders in the regionto use cases in front of the ICTY for their political agendas.14 The perceived failure of the ICTY to reach out to potential witnesses in the past therefore reverberated into the present through the unfavourable political contexts for participation in the WCC. The CSN NGOs sought to break down this animosity by introducing schemes that foster trust in the WCC, and these initiatives involved a range of economic, psychological and political strategies. For example, CCI teamed up with a mental health NGO to provide psychological support for potential witnesses that faced the dual challenge of revisiting past traumas while risking being labelled a traitor by segments of their community on account of their participation with the WCC. In sum, the trial assistance offered by the CSN was crucial to the operation of war crimes trials at the WCC in Sarajevo. By embedding the trial process in the economic and social context in contemporary BiH, the NGOs were able to foster participation in the legal process. Contrary to abstracting law from society, this work involved the careful grounding of these processes in the communities and localities within which the crimes took place and in which victims and witnesses continue to seek redress. Invented Spaces In addition to the work supporting the trial process, the CSN organisations have been performing a broader role outside the operation of the WCC since 2005. Through a range of workshops, seminars and cultural events, the NGOs were seeking to foster 26 public debate concerning the nature of transitional justice in BiH. These actions were ‘invented’ as they demonstrated the ability of these organisations to operate outside the legal process and summon into existence new spaces of deliberation over the nature of transitional justice in BiH. These practices illustrated a more nuanced spatiality of justice in Bosnia. Perhaps most explicitly they bring into view the range of physical spaces that are drawn upon as part of the judicial process. Coffee shops, homes, university campuses and individual human bodies are brought into the practice of transitional justice through these improvised activities. But they also illustrate the enrolment of a range of imaginative geographies that are enrolled into the practice of transitional justice, such as universal human rights, cosmopolitan senses of belonging and nostalgia for Yugoslav solidarity. While these activities often supported the approach of the WCC they also included opportunities for critique and the hope for alternative judicial arrangements in the future. By their disparate and, at times, improvised nature these activities defy easy categorisation, but in order to illustrate aspects of their effects I will examine two processes: community workshops and university education. First, the NGOs sought to localise the legal process by organising workshops involving victim groups, legal representatives and NGO staff within the communities in which the crimes took place. Such events involved prosecutors talking through the evidence as it was presented and jurists explaining the sentence (if passed) and fielding questions concerning the trial process. The interactive component of the event posed logistical problems for the NGOs, since there was often high demand amongst victim groups to attend and there was resistance from NGO staff to turn people away. 27 The success of this format has seen it adopted by the ICTY which has recently organised similar workshops in BiH to explain case decisions. Of course, such events are not simply a transfer from legal experts to local communities. The NGO representatives discussed how new prosecutions had occurred after victim groups had approached prosecutors, emboldened by hearing about successful prosecutions in other cases. While the trial workshops required considerable involvement of the WCC and prosecutor’s office, the NGOs stressed the forms of local knowledge and contacts required to organise such events. Through family connections, personal experiences and professional relationships the NGOs had developed networks with war crime victims that were vital in securing their participation in the workshops. These connections allowed the NGOs to bring together antagonistic victim groups into single-site workshops: But the biggest issue is actually the preparation work. It is a much bigger issue to get in the same place people from different ethnic communities who are perceived as victims. For example you have to spend three days drinking rakija [plum brandy] with [name] if you want him to come. Or in some villages you have to convince [name] to come to the Čelebići case. It just needs time. And in some cases they have the experience other from other NGOs who come and say ‘we need three victims to talk about something’, but that is not how it works, they are not on standby.15 This comment encapsulates the forms of knowledge brought into the process of transitional justice by the CSN NGOs. It also demonstrates the ways in which the 28 space of transitional justice extended beyond the hired workshop venue, and brings into view the rakija stall, the kafana (coffee shop) and the homes of victims. But this account illustrates more than the micro-geographies through which public outreach operates; it also reflects a different conception of the figure of the individual within judicial programmes. The reference to ‘not being on standby’ illustrates the ways in which participation was conceived by the Helsinški komitet as a human process of negotiation that required established bonds and trust rather than a mechanistic process of participation in a formal legal process. The NGOs stressed that the localisation of judicial processes was more than a ‘communicative’ strategy; it sought to shift the focus of transitional justice from perpetrators onto victims. The retributive judicial approach employed by both the ICTY and the WCC has, they argued, orientated attention on those who committed crimes as opposed to those who had been victims. This situation has been exacerbated by the close allegiance between media outlets and nationalist political parties, a relationship that the NGOs felt had promoted the heroism of wartime leaders and served to question the veracity of reports of mass atrocities during the war. One case that was repeatedly cited during the research process was that of Radovan Stanković. Stanković was a fighter in the Bosnian Serb Army who was sentenced in March 2007 to 20 years’ imprisonment for the crimes of systematic rape and imprisonment of women in what was termed Karamanova kuća (Karaman’s house) in Foća municipality during 1992. But in May 2007 Stanković escaped from prison, since he was sent to serve his sentence in Foća, a place where he had previously claimed that it would be easy to escape on the basis of his friends and contacts (see Balkan 29 Investigative Reporting Network 2007). This case illustrates the weaknesses in the Bosnian prison system; where despite plans there is no state-level prison (penal governance is devolved to the RS and the Federation). But more significantly, subsequently Stanković has refuted the charges through communication with RS newspapers. The effect of these processes was explained by the representative from Helsinški komitet: In the RS there was no public space given to the presentation of facts. There is enough space given for Stanković to send letters from wherever he lives now, explaining that this is an attack on the Serb people and he is not guilty, and they gave him two pages in the newspapers. But no one is giving space to those who suffered. To the girl who is now 26 years old, or 27, and she is more dead than alive because she was kept for three months in Karaman’s House and was systematically raped by more than 20 soldiers. The Stanković case provides an acute example of the coupling of judicial failure and the capture of news media by the interests of hard-line nationalist political parties. The response of the NGOs has been to provide spaces such as the workshops through which victims may meet and challenge the formal judicial structures through debate and questions. Part of this process relates to a desire to reshape the ‘invited’ spaces of justice through changes in the penal strategy, providing greater clarity in sentencing decisions and improving specific aspects of access to the judicial process. But more significantly, these activities also illustrate the way in which the CSN envisages a different form of justice that shifts attention away from retribution and orientates attention on restorative notions of deliberation and reconciliation. One of the key points made by each of the NGOs is that the workshops must be attended by 30 representatives from each of the parties in the conflict, and mix civilians with veterans. As the representative from CCI emphasised, “we have all been victims in some part of our lives.” This was in part a reference to her own personal experience, but also drew attention to a key point: that the CSN was attempting to reconceptualise justice as a shared experience rather than a legal process. The second set of activities that brought into existence invented spaces of justice related to education. All the CSN NGOs have strong education components within their portfolio of activities. For Helsinški komitet this involved university-level education in transitional justice, exercised through a series of different channels. First, the organisation has sought to introduce the specifics of the WCC into law degrees across the RS: We made an announcement through law students in the RS, so I did several groups throughout the year bringing them to the court, to talk to the president of the court, the main prosecutor, to see a trial and how it is organised and to see the court, witness preparation and protection and to talk to other NGOs who are working with victims. And we had more than 3000 students pass this.16 As stated earlier in the discussion, there is considerable political animosity towards the WCC in the RS so these activities mark a considerable achievement in sharing information concerning the legal processes in BiH. But in order to build on this success the organisation had developed a second approach to university-level education: designing a module on transitional justice and human rights to be run in the University of Bijeljina. During the interview the NGO official said with a smile that 31 they had described the module as concerning “intercultural understanding and non- violent communication”17 since this was unlikely to raise objections from university administrators, in a way that mentioning the WCC or transitional justice might. This initiative began with 83 students in October 2009 but there are hopes to expand: We are starting with the Bijeljina Faculty, then Mostar is going to start Eastern Sarajevo, Pale they are going to start next year and then Sarajevo is going to start next year. […] On the other side we are currently working on making a group of professors from law schools from five different universities, political science departments, the journalism departments, and social sciences and we are going to work with them for one year to make it possible to see how much of transitional justice they can actually put in a formal education frame, what they would need, on what they could agree, and how to teach it. This focus on university education illustrates the significant emphasis placed on setting the terms of public debate concerning transitional justice. One of the repeated concerns of NGOs members both within and beyond the CSN was the media presentation of transitional justice as ‘simply’ the actions of the ICTY and WCC, rather than discussing the nature and implications of different approaches to justice after war. In the absence of a unified commemoration of the conflict and the associated fragmented historical narratives of the past, these approaches placed the WCC in a historical and theoretical context. This approach sought to shift attention away from the particulars of the BiH context and think through more cosmopolitan understandings of justice and rights. This ‘invented’ space moves beyond the physical realm of the campus and seminar room, to confront the imaginative geographies enrolled in processes of transitional justice. 32 Drawing the distinction between invited and invented spaces of justice illuminates the role played by the CSN in the operation of transitional justice in BiH. While these accounts provide a vivid illustration of the importance of civil society actors in facilitating the trial process, they also demonstrate how these organisations conceive of justice in radically different ways to those offered through the formal legal institutions. This does not mean law is marginalised, the NGOs considered its operation vital to generating a sense of accountability amongst victim population. Instead, the legal process was presented as a starting point which provoked public debate and the potential to bring victim groups together to discuss common concerns. Through the legal process the CSN was able to create a series of spaces of justice as a more deliberative practice. Conclusions Towards the end of the fieldwork process I had arranged a meeting with the Programme Manager of UNDP BiH’s Access to Justice programme at their head office in Sarajevo. This initiative provides assistance to the CBiH through training of the judiciary, capacity-building Bosnian state agencies and providing material support for the court (such as office furniture and IT equipment). After we had introduced ourselves I explained the purpose of my research and my interest in the WCC’s outreach projects. “Ah,” replied the Programme Manager, “you are interested in questions of ‘soft’ justice, we are currently interested in questions of ‘hard’ justice.”18 The Programme Manger’s use of this distinction was a surprise considering the 33 UNDP’s commitment to fostering civil society engagement with processes of transitional justice in BiH (see UNDP, 2009b). But in doing so the UNDP official was deploying well-established categories demarcating legal from non-legal approaches. But these labels do not simply describe judicial practice but structure regimes of thought on transitional justice. The distinction of ‘hard’ and ‘soft’ justice supports the conception that there is a possibility of separating these two arenas, where the ‘hard’ legal processes operate in isolation from the ‘soft’ social, political and spatial settings within which they are embedded. This separation is reflected in the wider scholarly study of transitional justice that has explored the nature of legal processes at the expense of either wider non-legal activities or the constructed nature of the legal/non- legal binary. This paper has offered a corrective by examining the contribution of a geographical analysis on the study of transitional justice in BiH. There are two specific outcomes from this argument. Firstly, the study of the critical geopolitics of the conflict and post-conflict periods illuminates the spacing of transitional justice in BiH. The presentation of the violence by war-time leaders as a necessity to ensure national security, and the validation of these imaginaries at the Dayton Peace Accords, ensured that legal processes of justice remained remote from the locations where the crimes took place. This distance was reflected through the physical location of the ICTY at The Hague and the executive control over the process by international supervisory agencies in Bosnia (most notably the OHR). But perhaps most profoundly, this distance is reflected in the prominence given to legal processes as the primary implement of justice. This form of judicial response has set the tone for the nature of 34 post-conflict justice in BiH, specifically focusing on a retributive programme that seeks to hold war criminals to account, rather than a restorative process that seeks to establish shared truths and build trust between antagonistic groups. As a second geographical lens this paper has examined how the political and scholarly focus on legal processes has marginalised a series of non-legal spaces, actors and practices. Through the examination of the prosaic operation of the CSN a more complex spatiality of transitional justice emerged. Using the analytical distinction developed by Miraftab and Wills (2005), these were explored through the framework of ‘invited’ and ‘invented’ spaces of justice. This brought to the fore the centrality of CSN organisations in facilitating the work of the WCC by supporting witness testimony and establishing contact with victims. But the work of the CSN extended beyond these instrumental practices, since they were using their contacts with victim groups to establish practices of justice that were operated beyond the formal legal process. These activities work through a series of geographies: such as the coffee shop, the seminar room, the campus and the human body. But inventing such improvised spaces of deliberation over justice required conveying normative arguments for the kinds of transnational solidarity and rights that were at the heart of transitional justice programmes. In this sense invented spaces of justice sought to look beyond the BiH state territory and foster conceptions of common humanity and transnational belonging. In contrast to the retributive mode of formal judicial practices, the improvised activities were often structured around deliberation and confrontation. This more agonistic approach provided space for victims to offer 35 critiques of the formal trial processes and sought to embed legal mechanisms in the context of wider scholarly and policy reflection on the nature of justice. Notes 1 A central component of the completion strategy of the ICTY comprises the transfer of cases against “intermediate and lower-level accused to competent national jurisdictions” in BiH, Croatia and Serbia (ICTY, 2010). While sensitive cases will remain under the jurisdiction of the WCC, other war crimes cases in BiH are expected to be devolved to courts in the Republika Srpska and the Muslim-Croat Federation. 2 I am grateful to an anonymous referee for bring this literature and issue to my attention. 3 The first arrest by the NATO-led multinational force in Bosnia (then S-For) was Milan Kovacević on 10 July 1997. 4 PIOS Official, Sarajevo October 8th 2009. 5 ICTY Liaison Officer and co-instigator of the CSN, Sarajevo October 9th 2009. 6 ICTY Liaison Officer and co-instigator of the CSN, Sarajevo October 9th 2009. 7 ICTY Liaison Officer and co-instigator of the CSN, Sarajevo October 9th 2009. 8 PIOS Official, Sarajevo October 8th 2009. 9 ICTY Liaison Officer and co-instigator of the CSN, Sarajevo October 9th 2009. 10 Member of Centre for Civil Initiative Official, Mostar October 12th 2009. 11 Member of Centre for Civil Initiative Official, Mostar October 12th 2009. 12 The legislation differs in the RS and Federation, but both offer pensions for victims of war that suffer ‘60% or more’ physical disability including death or disappearance (see FBiH Law on Principles of Social Protection, Protection of Civil Victims of War and Protection of Families with Children, article 54 Official Gazette of the FBiH no. 36/99 and The Law on Protection of Civil Victims of War , article 2 Official Gazette of RS, no. 25/93) 13 Member of Centre for Civil Initiative Official, Mostar October 12th 2009 14 Member of Helsinški komitet, Bijeljina October 18th 2009. 15 Member of Helsinški komitet, Bijeljina October 18th 2009, the names of two prominent victims have been removed to protect anonymity. 16 Member of Helsinški komitet, Bijeljina October 18th 2009. 17 Member of Helsinški komitet, Bijeljina October 18th 2009. 18 Programme Manager of UNDP Access to Justice BiH, Sarajevo October 15th 2009. 36 References Agnew J 1994 The Territorial Trap: The Geographical Assumptions of International Relation Theory. 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