Bosnian voices from the bottom of the well: Genocide, war crimes, and crimes against humanity and victims’ right to remedies
| Author | Alma Begicevic |
| DOI | http://doi.org/10.1177/02697580211046402 |
| Published date | 01 January 2023 |
| Date | 01 January 2023 |
| Subject Matter | Articles |
https://doi.org/10.1177/02697580211046402
International Review of Victimology
2023, Vol. 29(1) 75 –105
© The Author(s) 2021
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DOI: 10.1177/02697580211046402
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IRV0010.1177/02697580211046402International Review of VictimologyBegicevic
research-article2021
Bosnian voices from the bottom
of the well: Genocide, war
crimes, and crimes against
humanity and victims’ right
to remedies
Alma Begicevic
Loyola University Chicago, USA
Abstract
Human rights advocates call for reparation as an important step to acknowledge and repair his-
torical injustice and mass harms. In Bosnia and Herzegovina, victims of war continue to seek
monetary reparation for non-pecuniary damages caused by genocide: murder, injury to human
body and dignity, and harms inflicted upon a close family member. They seek legal remedies using
national, foreign, and international human rights judicial venues. Drawing from qualitative, eth-
nographic research data and archival documents, the article examines legal claims and public
discourse regarding reparation and makes a case for a reconceptualization of reparation by
including victim voices. The article concludes that despite being absent from the post-conflict
victims’ reparation programs in Bosnia and Herzegovina, monetary reparation has assumed a
social valuation attribute. On the one hand, it is a victim’s call for retributive, legal conceptions of
justice – that someone who escaped international and national criminal justice programs pays. On
the other hand, it is a tool to draw attention to Bosnian victims’ present civil and political
exclusions that came with the international post-conflict peace treaty. While the post-war
reconstruction focused on international trials, democratization, restorative justice, and state
building programs, it also restricted socio-economic and cultural rights by redefining the citizenship
and dismantling the welfare state. Reparation is a debt owed to victims.
Keywords
Victims, mass harms, justice, reparation, civil law
Corresponding author:
Alma Begicevic, Sociology Department, Loyola University Chicago, Coffey Hall 438, 6339 N Sheridan Rd, Chicago,
IL 60660, USA.
Email: abegicevic@luc.edu
76 International Review of Victimology 29(1)
Introduction
Public international law has evolved in the last 50 years, offering a well-developed theory of
victims’ rights to legal remedies and reparation (Evans, 2012; Gillard, 2003; Zegveld, 2010).
International law establishes the customary norm that reparation ought to wipe out the conse-
quences of an illegal act and wrongdoing to the extent possible and re-establish the original
situation, as if the past violations had not been committed.
1
The United Nations (UN) General
Assembly defines reparation as a process and an outcome of a judicial or administrative procedure
that can take the form of monetary compensation, rehabilitation, satisfaction, restitution, or guar-
antee of non-repetition.
2
Scholars of law and social sciences have considered retributive, reparative, and distributive
forms of justice as distinct forms of justice to offer satisfaction and restitution and guarantee non-
repetition of crimes. The offender is subjected to retributive justice for committing a crime, and
punishment is deserved (Fletcher, 1999). In addition to a criminal sanction, the responsible person
is often ordered to make a payment and offer an apology to the victim in the court of law, and the
outcome can have a normative, restorative function (Finley and Henham, 2005), beneficial for the
society and its reconciliation (Du Plessis and Pete, 2007; Laplante, 2008; Minow, 1998). Repara-
tion as a response to historical injustice is often expected to bridge a gap between the reparatory
and distributive justice models, connecting the political sphere and moral life to economic well-
being (Arriaza-Roht, 2004). Distributive justice, today reflective of laissez-faire culture, is under-
stood as either a distribution of resources amongst members of the society guided by individuals’
independent and free action, or alternatively a fair allocation of state resources, rights, and obli-
gations across the population (Cook and Hegtvedt, 1983). Thus, as a measure of redistribution of
services and resources, reparation in response to mass atrocities or historical harms is expected to
remedy past socio-economic inequalities in addition to the harm of the conflict itself, as the socio-
economic roots were likely to be a covert source of the conflict resulting in anoth er layer of
victims’ marginalization (Mani, 2008; Miller, 2008). Although reparation as a legal concept can
take a monetary and symbolic form, it is different from a settlement, as it involves an element of
atonement. Settlement, on the other hand, is a payment resulting from a compromise and a ‘consent
decree’ (Brooks, 2004).
Civil law – the system of law designed within the framework of Roman law to address violation
of contractual relations between th e members of a society and respond to pro perty damages,
injuries, and impaired family relations – ensures conflict and dispute resolution, despite its many
procedural and access-to-justice limitations. For that reason, a civil law order issued by a judge can
be a declaration of legal rights and a statement of condemnation as powerful as the criminal
sanctions are. When prompted by national criminal or civil law procedures, a reparation order
as the force of law can acknowledge a change (Goldsmith, 2005; Posner and Vermeulle, 2003). It
can also function as an extension of the international law and transitional justice
3
architecture
(Osiel, 1997; Teitel, 2000), guided by a number of states and organizations to safeguard a post-
conflict shift from a repressive regime towards a liberal democracy (M´egret, 2009; Osterdahl,
2012; Simpson, 2019). Victims’ claims – specifically demanding monetary reparation – challenge
scholars’ and policymakers’ presumption that all reparation models embodied in the transitional
justice programs such as International Tribunals, Truth and Reconciliation Commissions, the one-
time lump sum payments administered by the state, or property restitution programs might be
equally up to the task (Begicevic, 2016; Simpson, 2019: 12-30). Payments to the victims can be
seen as an appropriate, but they can also be an unacceptable reparation measure. As an instrument
2International Review of Victimology XX(X)
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