• Resistance by another name? The value added of using the term ‘resistance’ for analysis of transition contexts rather than other concepts such as contestation, politics or struggle
  • What is the conceptual relationship between resistance and other concepts such as power or agency?
  • Methodological challenges and innovations when operationalising research on resistance
  • The approach to resistance taken by different disciplines and points of connection, similarity and difference
  • Empirical insights made possible through the lens of resistance
  • How we can use research on resistance to speak to wider debates on transitional justice

Expectations of civil society: building legal legitimacy from 'below'

Alex Jeffrey, October 2013

In this paper I want to explore the position of civil society organisations within legal processes of transitional justice. This interest has been developed through a two-year programme of research examining the public outreach processes of the war crimes chamber of the court of Bosnia and Herzegovina. In a longer timeframe I have been interested in the normative placement of civil society within concepts and practices of democratisation after conflict. In a sense this new research is driven by a rather straightforward question: how is legitimacy in a new legal institution fostered in a fragmented and contested post-conflict state? And in tandem, what are the alternative ideas of justice and the future articulated by those who are sought to be enrolled within legal programmes? These questions of legitimacy and resistance seem to chime at the heart of the questions and ideas circulated in advance of this workshop and it is a real shame I have had not had the chance to hear other approaches to these issues. Hopefully some of this can be drawn out of in the discussion.

In what follows I want to introduce the context of the research, and in particular the Court of Bosnia and Herzegovina and its public outreach programmes. I then want explore what these policies say about the purpose and practices of civil society, in particular the placement of civil society organisations as located as ‘bridge’ between legal authority and wider society. In the third section I will trouble this image by exploring some of the accounts and practices of organisations studied in Bosnia and Herzegovina

The Court of BiH

The Court of BiH was established between 2000 and 2005, through a series of new criminal procedure codes imposed by the Office of the High Representative, the civilian international body tasked with implementing the Dayton Agreement. The Court is housed in a former army barracks 5 km outside the centre of Sarajevo, there is plenty to say about the selection of this building but I will my remarks here to the point that its use during the 1992-5 Bosnian war is the subject of some contention. The initial pronouncements surrounding the creation of the Court by international actors, such as Lord Paddy Ashdown the then High Representative or later by chief prosecutor of the ICTY Carla Del Ponte, stressed three aspects to its work. First, the court was a crucial spar of the completion mandate for the ICTY, since one its three sections was dedicated to war crimes trials related to violations of human rights committed during the fragmentation of Yugoslavia. Second, the court was considered an important institution for achieving justice and accountability for the crimes of the past. But this legal function was matched by a third, parallel, political function. At the time of its creation international elites stressed the significance of the court to processes of state-building. The court was the first time there had been a domestic institution with jurisdiction over the whole of the Bosnian territory, thereby acting as a layer above the jurisdictions of the two sub-state entities in Bih (the Republika Srpska and the MCF) and Brcko District. In a context where other state-level institutions or reforms had failed the integration of legal processes carried much symbolic weight. Perhaps the best indication of the power of the Court to undermine the Ruepublika Srpska comes from the vociferous and constant objects made by RS political elites as to its perceived anti-Serb bias and its international imposition.

Across these three expectations for state court creation lies a set of assumptions about law and citizenship. These expectations carry a underlying paradox concerning the relationship between legal instruments and society at large. There is a story here of imagined repair, of creating a unified, universal sense of citizenship through the concept of unified jurisdiction. In these terms being subject to law is a pathway to subjectivity and even imagined community. But it is also a story of the implicit legitimacy of law, or law as a technical intervention that remains disembedded from the society it serves. Rightly criminologists and scholars of socio-legal studies have been critical of this rather detached notion of law. It seems to recreate what anthropologists James Ferguson and Akhil Gupta would call the ‘verticality’ of state institutions, that authority is derived from the imagined elevation of power ‘above’ the society they serves. So these two images are at odds, at once the stimulation of citizenship while also imagining detachment through the workings of the abstract detachment of law.

Public Outreach

This paradox between law as an instrument of cohesion and law as a detached form of abstract arbitration was illuminated through practices of public outreach from the court of BiH to wider Bosnian society. The concept of public outreach had been central to the court from the inception of trials onwards in 2006, though funding has diminished over time and the activities of the public information and outreach service have been increasingly limited. At the outset the court established what was termed a ‘court support network’, comprising five human rights or legal advocacy NGOs distributed across the territory of BiH that would act as a conduit for information between the trial processes and victim and witness communities. I have written about this initiative elsewhere and I am not going to take up a lot of time talking about it today but suffice to say that this enrolment of NGOs into the activities of the court reproduced a rather conventional image of civil society as a sphere of associational life that aggregates social attitudes and acts as an arena for the resolution of disputes. This conjures the original 18th century conception of civil society as a public domain where conflicts are resolved with civility rather than violence, in the shadow of the state which has the monopoly of legitimate physical force.

Over the course of residential fieldwork conducted in 2009 and for twelve months between 2011-12, the research explored how the outreach process has operated in practice in BiH and with what effects. Heavily summarising this experience, what the research found was that the outreach process exhibits two dynamics held in tension, the first the instrumental process of ensuring that the legal process can be completed. In this lens public outreach is concerned with securing the participation of witnesses, making sure they attend trials and prompting those who have been the victim of crimes to come forward for their investigation. We can see this as the limited remit of public outreach. But alongside this there remains a discursive aspiration for a more expansive remit for these activities, for public outreach to be about the cultivation of trust in the activities of the Court, for individuals and groups to see the Court as an honest arbiter of disputes from the past, and even to be a means of unifying disparate groups under a single legal jurisdiction. We can term this an expansive remit of public outreach.

Of course, in practice such limited and expansive understandings of public outreach are entwined. Individuals needed to see the court as an honest arbiter in order to motivate themselves to participate in trial processes. But this equation can be inverted: that if individuals could not access the court or trial processes then this undermined their sense of trust in its jurisdiction. The research was replete with examples of individuals talking of the breakdown in instrumental aspects of the communication between the Court and witnesses or survivors of war crimes. A common complaint was the use of web-based dissemination strategies by the Court that people did not have the technology or expertise to access:

Quote 1:

“So, then you can tell an eighty year old victim that everything is on a website [...] well, everything is on a website, what do you want? [Laughs] Well, I’m maybe being too harsh but that’s what we sometimes [...] hear from the victim” (Legal Advocacy NGO Representative, Sarajevo, 4 November 2011)

This account captures the often disembodied nature of outreach processes in BiH, that legal pronouncements were seen to have their effects through there iteration while the wider social context of their reception was considered either immaterial or beyond the remit of outreach processes. This illuminates a challenge for public outreach, that not only did the core constituents that the processes were trying to reach not have the technological capabilities to engage with elements of the communication strategy, the community itself is both tramatised and quite explicitly cynical towards the operation of powerful agencies. Reflecting this impression one court representative spoke repeatedly of the importance of the “clarity of communication” rather than communication as a form of deliberation.

If we take the transactional nature as a first characteristic of the public outreach examined, the narrow focus on the prosecution of law is another. It is here that we see the limits of trying to integrate a process of social engagement with the purpose of completing a legal process. In short, social engagement will always exceed the possibilities and competences of law. The object of law is the deliberation of guilt or innocence on the basis of evidence presented; the desire amongst human rights NGOs was justice for the trauma caused in the past. Legal objectives seemed unduly constricted to witnesses and survivors of crime, while also fostering a sense that support and resources are directed towards the alleged perpetrator rather than victims of crime. In a refrain that became common during the research there was a sense of the erasure of the concerns of witnesses and victims through the experience of engaging in the court process:

Quote 2:

“How can we reach other individuals who have survived rape in Prozor, Mostar, Čapljina, Stolac and other places where it took place? How can these people open up and come to institutions in order to claim some kind of benefit at least to cover their medical expenses [...] I think that victims have no protection at all” (President of Camp Detainees Association, Sarajevo, 18 May 2012)

There are many strands to this sense of disequilibrium between the positions of defendant and victim within the legal system. There are issues relating to the forms of legal support offered to those indicted in contrast to those who are giving testimony, NGOs also remarked on the damaging nature of the way in which sentencing decisions were communicated without appropriate context of mitigation or precedent. But perhaps the most frequently cited concern over the use of law was the ability for the legal process to give voice to the defendant to proclaim innocence and gain notoriety. In contrast, the experience of giving testimony by witnesses was considered retraumatising and giving little hope of altering public debate. This sense of the operation of law as a narrow and abstract form of deliberation was only exacerbated in the case of Court of BiH when it adopted a ruling concerning data protection that led to all indictments and trial transcripts being redacted to erase personal data of defendants, even after a guilty verdict.

The characteristics thus far would seem to consign the public outreach process as limited rather than extensive, representing a transactional practice that fails to extend beyond a narrowly defined legal process. But to focus on these two aspects is to overlook the outreach process as one that sets certain frameworks for the articulation of law and society, but individuals and organisation work to challenge these constructs. We must be careful not to uncritically adopt the transactional and legalistic understanding of the processes under question, thereby pushing out of view the forms of activity and interaction that exist within the outreach process. In short: the social implications of public outreach always exceeded the narrow framework that was set for it, since each of the organisations or individuals involved actively sought to table alternative or additional often restorative or therapeutic elements into the outreach process. Examining these elements of practice requires a inverting the geometry of power that has been assumed so far in the talk, that the significant actions are not those of the Court but are rather the more informal and often overlooked practices of the wider set of civil society agencies. The organisations and individuals involved were calculating and effective, they were mere dupes in a centrally organised form of practice. As we will all be aware this is a limited imagination of the postconflict institutional landscape in BiH. Rather, the outreach process opened up coalitions and opportunities that were seized upon by organisations to create spaces for public dialogue concerning justice in BiH.

In other work I am theorising this sense of agency within the framework through Bourdieu’s conceptual vocabulary of habitius and field, where primacy of law is internalised by individual agents, but not without a sense of the fragility of this system and the possibilities for alternatives. Resistance in these terms is not about attempting to halt the legal process, but rather illuminate and practice the spheres of activity and deliberation that are absent from law. So, for example, the research engaged with the work of victims’ association Prijedor which was engaged in public outreach but was also aware of the limitations of this process in fostering public debate. The organisation was undertaking a series of educational programmes designed to preserve public memory of the genocide that took place in Prijedor. Books had been produced, an annual commemorative day established and the wearing of white armbands as an indication of solidarity in the commemoration of violence of the past. The significant part of this latter portrayal was its claiming of space, the wearing of armbands was started as an act of public defiance at the reopening of the former camp at Omarska as a functioning corporate enterprise by Arcelor Mittal steel company.

Quote 3:

“I decided to act. With a white armband and a white plastic bag I bought in the local shop, I went to the town square where I performed solo. That act drew great media attention. Which prompted me with another idea, instead of being in Prijedor on the International White Armband Day, 31 May, I decided to visit other places where civilians were held captive and tortured” (Activist, Prijedor 12th October 2012)

Later in the interview the respondent talks of the difference between these acts and the sorts of erasure that have been promoted through legal responses. Drawing again on Bourdieu’s terminology we can trace the symbolic capital to the materiality of this protest, the white armband offering an opportunity to physically display solidarity over a cause and the use of the human body to physically reclaim a sense of public space and deliberation of the events of the past. Clearly this sense of desperation is not reserved for legal processes, this would be to elevate disproportionately the significance of law to the public deliberations concerning commemoration, justice and truth. Rather it is also directed at what is perceived to be a print and online media arena that is captive to party political and corporate interests (though these two spheres are not always separate in a neoliberalising state). This speaks of a form of practice that is not necessarily resistant to the court’s outreach process, but exists as an informal adjunct that illuminates the silences and absences of law.

Conclusion

In conclusion I want to emphasise three points:

Firstly (and least surprisingly) the policy prescription of civil society as a homogenous arena of organisations was not born out in the empirical process. The civil society working alongside the court was not a coherent body of agencies but rather an imagined social space that was inhabited by a range of voices, attitudes and activities. While speaking collectively of these associations is difficult, we can view the ways in which they adopted a profoundly ambiguous position on legal processes, that both saw their significance while questioning their outcomes. [wider work on the transformative potential of civil society]

Second, and from a methodological point, the context was crucial, and understanding this as an embodied and situated process that was unfolding in a situation of trauma and distinct disaffection with centres of formal power, including states, political parties, international organisations, education systems and courts. The establishment of the Court ten years after the Dayton Agreement limits the possibilities of gaining trust in an arena where international agencies, for a variety of reasons, lack credibility. [The sense of law as a universal – Barbara Oomen and the juridical turn in international relations]