Discusión y conclusiones

In addition to ensuring that real change takes place in post-violence societies, subjective peace requires that the public perceives that change in a positive light.¹¹⁵⁷ Human rights can help achieve this goal and shape public perceptions, when at least four conditions are met. These are that human rights are implemented in a climate that is conductive to social change; the

1153 Hamber, ‘Narrowing the Micro and Macro’, 4.

1154 The Azarian Peoples Organisation (AZAPO), [17].

1155 Oliver Ramsbotham, Tom Woodhouse and Hugh Miall, Contemporary Conflict Resolution: The Prevention, Management and Transformation of Deadly Conflicts (Cambridge, Polity Press, 2016) 294, arguing that from the point of the ANC, the main objective of the TRC was to be a Truth Commission; reconciliation was mostly an afterthought, pushed by Archbishop Tutu. Also see Robert Rotberg, ‘Truth Commissions and the Provision of Truth, Justice and Reconciliation’ in Robert Rotberg and Dennis Thompson (eds), Truth v Justice: The Morality of Truth Commissions (Princeton, Princeton University Press, 2000).

1156 Kovras, Grassroots Activism 200.

1157 Tomas Amparo, ‘Reforms That Benefit Poor People – Practical Solutions and Dilemmas of Rights-Based Approaches to Legal and Justice Reform’ in Paul Gready and Jonathan Ensor (eds), Reinventing Development?

Translating Rights-Based Approaches from Theory into Practice (London, Zed Books, 2005) 172, arguing that

‘the question is not only whether particular laws or institutions exist or how they appear, but rather how laws and institutions relate to people and how people perceive, use, change and develop them’.

public is made aware of human rights-inspired policies and the way they connect to peacebuilding objectives; these policies are understood by people as genuine attempts to promote peace; and they are implemented by a body that the public considers legitimate. Of course, whether a peacebuilding strategy will affect the perceptions of a given individual, also depends on factors that are wholly outside the peacebuilders’ control, such as the psychology of each person. However, paying attention to the four conditions can at least improve the possibility of resolving conflicts as psychological states of affairs. Importantly, these are neither exhaustive nor to be seen in isolation from each other. For instance, making the public aware of human rights-inspired policies and their peacebuilding objectives becomes more difficult if they are implemented in a climate that is not conductive to peace. It is only by considering the different conditions in tandem therefore, that human rights can start contributing to social and psychological, in addition to legal and institutional, changes for peace.

Since human rights do not operate in a vacuum, the first, and perhaps most difficult condition to satisfy, is that they are protected within a context that is already somewhat supportive of peacebuilding efforts.¹¹⁵⁸ If this does not happen, human rights institutions will, at best, become marginalised and ineffective and, at worst, be hijacked by spoilers and used in a way that undermines the conflict resolution process.¹¹⁵⁹ Illustrative of this danger are the effects of Selimović and Others v Republika Srpska (RS), in which relatives of people who had gone missing during the Srebrenica massacre, argued before the Human Rights Chamber of BiH that the continuous lack of effective investigation constituted violations of Articles 3, 8 and 14 of the European Convention.¹¹⁶⁰ While the RS had already published a report about what had allegedly happened in Srebrenica, this was one-sided since it only included details about violations that had been perpetrated against the Serbs, sought to excuse and justify any violations against Bosniacs and its description of the events was in contrast to the ICTY’s findings in Krstić,¹¹⁶¹ which had dealt with the same issue.¹¹⁶² The Human Rights Chamber, reasoning that the authorities had failed to locate, discover and disclose accurate information about the fate of the missing, found in the applicants’ favour and ordered a number of remedies.¹¹⁶³ Taking into account that more than 1,800 family members had filed related motions with the Chamber between November 2001 and March 2002,¹¹⁶⁴ it ordered that the payment of compensation should be made, not to the individual applicants, but to the Srebrenica-Potocari Memorial and Cemetery Foundation, which would use it for the benefit of all the families and victims.¹¹⁶⁵ Moreover, the RS was ordered to adopt a number of measures

1158 Roland Paris, At War’s End: Building Peace after Civil Conflict (Cambridge, Cambridge University Press, 2004).

1159 Marko Milanovic, ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Post-Mortem’ (2016) 110 American Journal of International Law 233.

1160 Selimović and Others v Republika Srpska (CH/01/8365) (BiH Human Rights Chamber, 7 March 2003). These are the right to be free from torture, inhuman and degrading treatment; the right to private and family life; and freedom from discrimination respectively.

1161 Krstić (IT-98-33) (ICTY, 2 August 2001).

1162 Selimović , [179].

1163 Ibid, [178].

1164 Ibid, [1].

1165 Ibid, [217].

which had the objective of directly challenging social perceptions about what had happened in Srebrenica and making the applicants feel properly remedied. For instance, the authorities were asked to release any information they had about the fate of the missing persons,¹¹⁶⁶ conduct an effective investigation into the events in question¹¹⁶⁷ and disseminate the information included in the Chamber’s decision as widely as possible within their territory.¹¹⁶⁸

At the insistence of the High Representative, the RS authorities implemented the decision and formed a new ‘Commission for the Investigation of the Events in and around Srebrenica between 10 and 19 July 1995’.¹¹⁶⁹ This Commission, involving RS government members, representatives of survivor groups and international observers, concluded that large-scale massacres, mostly against Bosniacs, had taken place in July 1995, disclosed the location of more than 30 mass graves, and provided additional information that aided in locating the missing.¹¹⁷⁰ While the Commission’s findings were also followed by an apology from RS President Dragan Čavić,¹¹⁷¹ the implementation of this case has not resulted in any notable social or psychological changes in BiH or the promotion of reconciliation among the ethnic groups. In a 2011 survey, some seven years after the publication of the Commission’s findings, only 71,6 per cent of Bosnian Serbs had heard of the events in Srebrenica and less than a third believed that these were true.¹¹⁷² The ineffectiveness of the human rights judgment to induce those changes that were necessary for subjective peace, despite its successful implementation, is arguably because this took place within a social and political climate where nationalism and denialism were the norm.¹¹⁷³ Yet, if the context itself is hostile to change, solely relying on the law is most likely to have a superficial or no impact on people’s perceptions and practices.¹¹⁷⁴ In Osiel’s words, ‘[w]hen collective memory has already become comfortably entrenched, the law’s efforts to excavate and scrutinize it are only likely to discredit the law and its professional spokesmen.’¹¹⁷⁵ In such instances, peacebuilders are advised to rely on alternative strategies, such as reforming the educational system, or launching an information campaign, that will more effectively reach, and have an impact on, the masses.

The second condition is that people must be made aware of the existence of human rights-inspired policies or case law and the ways these connect to peacebuilding objectives. Referring to the judiciary, Rosenberg argues that ‘[i]t is naïve to expect an institution seen as distant and unfamiliar, shrouded in mystery, and using arcane language and procedures to change people’s

1166 Ibid, [211].

1167 Ibid, [212].

1168 Ibid, [213].

1169 Jeremy Sarkin et al, Bosnia i Herzegovina Missing Persons from the Armed Conflicts of the 1990s: A Stocktaking, ISBN 978-9958-0368-0-4 (Sarajevo, International Commission on Missing Persons, 2014), 111.

1170 Ibid.

1171 Denis Dzidic, ‘Bosnian Serb Leader Urges Srebrenica “Truth Commission”’ Balkan Transitional Justice, 25 March 2015.

1172 Milanovic, ‘The Impact of the ICTY’.

1173 Ibid.

1174 Gerarld N. Rosenberg, ‘The Irrelevant Court: The Supreme Court’s Inability to Influence Popular Beliefs About Equality (or Anything Else)’ in Neal Devins and Dave Douglas (eds), Redefining Equality (Oxford, Oxford University Press, 1998), 174.

1175 Mark J. Osiel, Mass Atrocity, Collective Memory, and the Law (New York, Routledge, 2017) 113.

views.’¹¹⁷⁶ To put it simply, if the average person does not know or understand what human rights institutions are doing, then their actions and decisions, no matter how well-reasoned or intentioned, will be unable to contribute to subjective feelings of peace.¹¹⁷⁷ This makes it necessary that specific efforts are made to inform the public about human rights initiatives, and the rationale behind them.

One example in which this was done successfully was during the proceedings of the Patten Commission in NI, a body that was tasked with making recommendations for the reform of the police following the signing of the Belfast Agreement.¹¹⁷⁸ The Commission’s terms of reference explicitly stated that what was important was not only that the police service was reformed, but that it was also perceived as being reformed, so that it ‘can enjoy widespread support from, and is seen as an integral part of, the community as a whole.’¹¹⁷⁹ Operating under this mandate, the Commission put human rights at the centre of its recommendations, but did not stop at that.¹¹⁸⁰ Further, it relied on a methodology, which had the express objective of challenging social perceptions and building ‘reconciliation, tolerance and mutual trust’ among its target audience.¹¹⁸¹ For instance, it recommended that police stations have, as far as possible, the appearance of ordinary buildings;¹¹⁸² the composition of the police staff be broadly reflective of the population of NI as a whole;¹¹⁸³ and community leaders encourage their members to apply to join the force.¹¹⁸⁴ In making these recommendations, the Commission took into account findings about the perception of the police service among the Protestant and Catholic communities and stressed that efforts needed to be made to ensure that the differences between the two were eliminated.¹¹⁸⁵ Moreover, it worked towards operating in a manner that was as inclusive as possible, for example, by inviting the views of the public about the police service, both through a press conference and newspaper advertisements.¹¹⁸⁶ In addition, it contacted directly about 130 stakeholders, such as political parties, churches, non-governmental organisations and others known to have a particular interest in policing, and asked them to participate in the consultation exercise.¹¹⁸⁷ As a result of this effort, more than 10,000 people attended public meetings that were organised by the Commission and approximately 2,500 written submissions were received.¹¹⁸⁸ This community-centered approach and the subsequent implementation of the Commission’s recommendations has arguably had a positive impact on improving social perceptions of the police, and promoting subjective feelings of security among the two communities. Thus, while in 2016 Protestants

1176 Rosenberg, ‘The Irrelevant Court’, 187.

1177 Simmons, Mobilizing for Human Rights 132, referring to the importance of establishing some degree of ‘legal literacy’ among individuals.

1178 Independent Commission on Policing for Northern Ireland, A New Beginning: Policing in Northern Ireland (Belfast, Northern Ireland Office, 1999). (Henceforth, ‘Patten Report’.)

1179 Belfast Agreement, Annex 1 (‘Terms of Reference for the Commission of Policing for Northern Ireland’).

1180 Independent Commission on Policing for Northern Ireland, Patten Report, [4.1] and [4.6]-[4.12].

1181 From the preamble of the Belfast Agreement, quoted in ibid, [1.1].

1182 Ibid, [8.5].

1183 Ibid, [14.17].

1184 Ibid, [15.2].

1185 Ibid, [3.6] and [3.7].

1186 Ibid, [2.3].

1187 Ibid, [2.3].

1188 Ibid, [2.3].

were still more satisfied with the performance of the police service when compared to Catholics,¹¹⁸⁹ the difference between the two groups had decreased considerably since 1996.¹¹⁹⁰

The condition that people must be informed about human rights-inspired policies and their peacebuilding objectives, sounds almost tautological, yet examples where conflicts remained unresolved because this was taken for granted, abound in almost all post-violence societies.

Such was, for instance, the case with the efforts of the international community to locate the remains of missing persons in BiH. This peacebuilding initiative could have resulted in important social and psychological changes among the population, because the suffering of missing persons’ relatives, and the need to address it, is almost universally perceived as transcending ethnic divisions.¹¹⁹¹ Although attempts to locate the disappeared were originally framed in humanitarian terms, over time, and as a result of case law from Bosnian and European Courts, they started being understood as a human rights issue.¹¹⁹² In turn, this has had a significant positive impact on efforts to locate missing persons, confirming the previous chapter’s conclusions that the enforcement of human rights can result in reforms that are instrumental to the building of objective peace. Thus, in 2004 and with the help of the International Commission on Missing Persons, BiH passed the Law on Missing Persons, the first of its kind in a post-violence society, and established the Missing Persons Institute.¹¹⁹³ The Institute, has been responsible for locating grave sites and identifying bodies, a task that has been progressing successfully, with more than 70 per cent of missing persons having been found.¹¹⁹⁴ Over the last years, laboratories set up by the International Commission on Missing Persons in BiH have amassed such expertise, that they are now providing technical assistance to other post-violence societies facing similar problems, such as Cyprus.¹¹⁹⁵

However, despite the objective success of the process, this has not been conveyed effectively to the population itself. Bosnians seem to have underappreciated what the Commission has achieved, at the same time as entertaining excessive expectations about what it should accomplish. Specifically, in a 2014 study, only 17 per cent of the people asked about the number of missing persons that had been located gave the correct answer, which, at the time, was approximately two thirds.¹¹⁹⁶ Simultaneously, almost 60 per cent of survey respondents believed that justice would only be achieved when every single person had been identified, an

1189 73% of Protestant respondents indicated that they thought the police were doing a very/fairly good job in their area, as compared with 64% of Catholics. (Northern Ireland Statistics and Research Agency, Public Perceptions of the Police, PCSPs and the Northern Ireland Policing Board (Belfast, Northern Ireland Policing Board, 2016), 7.) Jonny Byrne and Neil Jarman, ‘Ten Years after Patten: Young People and Policing in Northern Ireland’ (2011) 43 Youth & Society 433, 443 argues that trust in the police force among Protestant and Catholic young people is roughly equal.

1190 Pre-1998, over 80% of Protestant respondents indicated that they thought the police were doing a very/fairly good job, as compared to less than 50% of Catholics. (Independent Commission on Policing for Northern Ireland, Patten Report, [3.4].)

1191 Sarkin et al, Bosnia i Herzegovina Missing Persons, 115.

1192 Ibid, 129.

1193 Law on Missing Persons (Official Gazette of Bosnia and Herzegovina Law No. 50/2004), Art. 7.

1194 Sarkin et al, Bosnia i Herzegovina Missing Persons, 11.

1195 Fiona Hill, ‘How Bosnia Is Helping Identify Cypriots Murdered 50 Years Ago’ BBC News, 1 October 2014.

1196 Sarkin et al, Bosnia i Herzegovina Missing Persons, 116.

objective that, in light of the large numbers of victims involved and the passage of time since their disappearance, is practically impossible to meet.¹¹⁹⁷ In addition to being misinformed about how much the relevant human rights bodies have accomplished, the general population also harbours negative perceptions about the procedures followed by key peacebuilding actors, with more than half of the people asked, believing that the Institute’s attempts to locate missing persons favour one ethnic group over the others.¹¹⁹⁸ Importantly, this percentage is lower among family members – 42 per cent of them share the same belief – thus suggesting that those who are closer to its work and better informed about it, have a more positive view of the Institute.¹¹⁹⁹

This more positive perception among family members is arguably, partly due to the conscious efforts made by the BiH Ministry of Human Rights and Refugees to involve key stakeholders, including family associations, the International Commission of Missing Persons and the International Commission of the Red Cross, in a consultation exercise regarding the passing of the Law on Missing Persons.¹²⁰⁰ Moreover, it has possibly also been enhanced by the fact that the Institute has a mandate to help family members, even after the remains of the missing person have been identified, by for example, providing financial assistance for the funeral costs.¹²⁰¹ Conversely, the more negative perceptions among the general population could be due to public allegations from mostly the Serb members of the Institute, which were made even before it began its operations, that it was acting in an ethnically biased manner.¹²⁰² These observations suggest that while important, implementing human rights might not be a sufficient peacebuilding measure in itself; it will also be necessary to accurately inform the general public about what peacebuilders are trying to achieve and how specific steps taken by them contribute to these objectives. Unsurprisingly, the more powerful and vocal the opposition to peace within the post-violence society, the more it can delegitimise the reconciliation process and the greater the emphasis that must be paid to this condition.¹²⁰³ Although peacebuilders are already diligent and well-versed in communicating the success of their projects to external funders, it is necessary that they use these skills towards a different audience as well. Rather than seeking to convince outsiders of the need for, and achievements of, human rights institutions, they should explain to the victims and general population within the post-violence society how these promote their interests and can address their concerns. In doing so, peacebuilders should be able to respond to spoilers’ allegations and find ways of effectively conveying messages of justice and reconciliation to potentially negatively predisposed audiences.

The third condition for inducing psychological changes requires that people perceive the protection of human rights as a genuine attempt to build peace, rather than something the state

1197 Ibid, 117.

1198 Ibid, 115-116.

1199 Ibid, 115-116.

1200 Ibid, 36.

1201 Law on Missing Persons (Official Gazette of Bosnia and Herzegovina Law No. 50/2004), Art. 18.

1202 Sarkin et al, Bosnia i Herzegovina Missing Persons, 41-42.

1203 Bar-Tal, ‘From Intractable Conflict’, 361.

does because it has a legal obligation to.¹²⁰⁴ Such authenticity can be conveyed through unilateral gestures of good will, reciprocal acts of concession and joint ventures among previously warring parties.¹²⁰⁵ When these are absent and if the belief is that the government is doing as little as possible to comply with its human rights obligations, rather than as much as possible to resolve the conflict, even when technically implemented, a human rights strategy will fail to induce feelings of peace among the population.¹²⁰⁶ In order for this condition to be satisfied, peacebuilders must pay attention to ‘how things are done – that is whether the discussion and delivery of [the remedy] is set up in a way that makes the goals of acknowledgement, respect, the restoration of dignity and civic interest in the betterment of lives a felt reality for the survivors.’¹²⁰⁷ Illustrative of this are the (disappointing) peacebuilding effects of the HET, a body that had been tasked with re-examining conflict-related deaths that had taken place in NI.¹²⁰⁸ At a first glance, the HET was a successful attempt by the UK government to comply with the ECtHR judgments that flagged up the absence of an effective and impartial investigation into these deaths.¹²⁰⁹ Yet, despite its technical compliance with human rights, both the HET’s mandate (what it was trying to achieve) and its practices (how this would happen) left much to be desired. The HET’s failure to appreciate the importance of these factors, undermined its efforts to be perceived as a genuine peacebuilding institution and contribute to feelings of justice and reconciliation to the extent that it could have.

In terms of what it sought to achieve, the HET’s objective was

to reexamine all deaths attributable to ‘the troubles’ and ensure that all investigative and evidential opportunities are subject to thorough and exhaustive examination in a manner that satisfies the Police Service of Northern Ireland’s obligation of an effective investigation.¹²¹⁰

to reexamine all deaths attributable to ‘the troubles’ and ensure that all investigative and evidential opportunities are subject to thorough and exhaustive examination in a manner that satisfies the Police Service of Northern Ireland’s obligation of an effective investigation.¹²¹⁰