On Trauma, Children, and Societies

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I introduced three categories of conditions in my previous blog entry (Trauma; addictive/compulsive behaviour; certain personality disorders), and three general categories of individuals who draw their appreciation of these conditions from their specific ability or inability to relate to them. Members of these categories either have never experienced one of these conditions personally, or they suffer from one or several of them, or they are in a state that I have named recovery.

It is possible that such a systematisation only fits a cultural context of Western societies. The perception of reality by a self-aware mind happens within a cultural context, though it may be influenced by some genetic predispositions. For sure the main influence is happening throughout childhood and adolescence, in every specific society. Literally all aspects of what an individual learns about where he or she belongs, what defines the identity within a group, a society, a culture, a belief system, a system of faith, it begins with education by parents and caregivers.

In my attempt to describe the context of trauma and my line of work, I have to appreciate that. I have to acknowledge that my approach; my way relating to it; my way of empathising with, for example, victims of trauma; my ideas about which impact the consequences of trauma have; my ideas how to assist in healing trauma; that all this happens within the framework of the societies of the type I grew up in. My appreciation is formed through education, through science, through value systems and belief systems to which I have been exposed, which form the Western world in which I live.

Let me explain this with a little example:

I came across an interesting statement (look here for one of several references) on the fundamental cultural context of healing, and assistance to it. In this piece, a Rwandan genocide survivor makes reference to healthcare professionals from Western countries, attempting to apply a Western approach to healing:

“You know, we had a lot of trouble with Western mental health workers who came here immediately after the genocide, and we had to ask some of them to leave…They came and their practice did not involve being outside in the sun like what you’re describing – which is, after all, where you begin to feel better. There was no music or drumming to get your blood flowing again when you’re depressed and you’re low and you need to have your blood flowing. There was no sense that everyone had taken the day off so that the entire community could come together to try to lift you up and bring you back to joy. There was no acknowledgement of the depression as something invasive and external that could actually be cast out of you again. Instead, they would take people one at a time into these dingy little rooms and have them sit around for an hour or so and talk about bad things that had happened to them. We had to get them to leave the country.”

Trauma experienced by adults is a well explored issue which has made it into public awareness. Scientific research has made tremendous progress in understanding how trauma impacts on the brain. The long form of the acronym PTSD, Post Traumatic Stress Disorder, is known by many. People share at least a little conceptual understanding. You and I have experiences within our families and networks of friends about the impact of trauma. My grand uncle never spoke about his experiences as a soldier during the most brutal World War I. My former father in law never ever opened up on his experiences during the Nazi Regime. Both of them were visibly and deeply affected.

I want to focus on what trauma does to young children: The impact of trauma on a child in its early or later stages of development is tremendous, in any society. What I say is that the way how societies deal with trauma may be specific to the societal and cultural context, but the fact that trauma happens to children, and has a deep effect, is common to all individuals in all societies who face violence and abuse of children, and their caregivers. Therefore, every society affected by conflict needs to address these effects of trauma in order to move on, and this way is specific to every society in question. There may be an universal framework for healing, but I suspect it is limited.

My personal experience would indicate that we empathise with the impact of violence and trauma on children, but we stop short from real acknowledgement of its lifelong consequences: It appears to me that we often deny, or disregard, its impact. This impact on life when somebody is exposed to early trauma is much more fundamental, and to some considerable extent unalterable. It may be that, in a mainstream discussion, we feel empathy, and pity, but we may wrongly expect that the child has to move on, on its way into adulthood, and as an adult.

As a matter of fact, no single child can do that.

Trauma requires support for healing. Any seriously traumatised individual is unlikely to undo the impact of trauma without support, and this is especially true for children. A child literally has no single tool which would enable it to support his or her own healing. A child completely depends on the support of caregivers. If these caregivers then are affected by massive trauma as well, they are becoming dysfunctional in many ways that affect their nurturing and educating children. Consequently, the child will almost certainly grow up becoming a dysfunctional adult. It’s a double whammy: Suffering from own trauma, being raised by traumatised caregivers. In societies that are affected by massive violence, including acts of genocide, including systematic use of rape and violence against women, children, and other vulnerable groups, as an instrument of conflict and war, this has catastrophic consequences: These societies form, from individual wounds, common wounds. These common wounds persist, their results are visible in generations of that society to come. They, in my experience, form the foundation for future relapse into violence.

No matter which society, no matter which culture, children are born with a clean slate. Certainly, genetic predisposition impacts on how children develop, but newborn always are, as Pia Mellody⁠1 describes it, valuable, vulnerable, imperfect, dependent, and immature. This is just one attempt to frame the initial condition a child is in, but it appears to be useful to me.

If you look at these categories, nurturing and raising of children means to assist them in moving from this highly dependent initial condition into interdependent adulthood. “Interdependent” means that an individual is able to function within a societal context, and doing so in a more or less healthy way. “Living healthy” always relates to quite some extent to what a peer group would generally consider to be appropriate.

Like all mammals, we learn what we need to know, how to be, how to act as an adult from caregivers. Instincts and genetically coded behaviour exist, but every mammal learns how to interact, how to hunt, how to relate to a peer group, through nurturing, play, and education. In our human case, it requires, give or take, twenty years. I believe that even in societies in which children take on roles that we, in Western societies, would consider appropriate only much later, this profoundly biological, psychological, and social, process simply requires that much time. No matter whether a society marries a girl early on to an adult, no matter from when on a child begins to take family responsibilities, or has to begin to work: Forming the adult self, able to function in any society in an appropriate interdependent manner, in our human case it takes time.

In a Western context, there is established clinical and therapeutic evidence for a group of symptoms that follow protracted and/or severe forms of abuse in childhood (which impact on a child as trauma). Citing one of many authors on this, Pia Mellody⁠2, I am not motivated by the topic of her specific book, a phenomenon called “codependence”, but by it’s healthy opposite, what I referred to above as “interdependence”. In her vast work, Pia Mellody identifies the following conditions as a consequence of the inability or impairment of an individual to act in an interdependent (healthy) way: (1) Negative control; (2) Resentment; (3) Distorted, or nonexistent spirituality; (4) Avoiding reality; (5) Impaired ability to sustain intimacy. Her work represents important experience in understanding a fundamental connection between childhood trauma, through physical or emotional abuse, and, what she calls “less than nurturing” education.

With more easy, but blunt words: Dysfunctional parents, unwillingly and often unknowingly, create dysfunctional children, who grow up becoming dysfunctional adults. So, how does a surviving parent, traumatised by the loss of loved ones, and traumatised as a victim of violence and abuse, educate a child in a way that this child becomes an interdependent healthy member of the society? How more complicated is this, if also that child itself has been subjected to unimaginable violence? I will write about sexual and gender based violence, or about slavery, and forming children into child soldiers, in later articles. But how does a child with such trauma wounds grow up, being taken care of by caregivers who struggle with recovery from trauma themselves?

Clinical experience in our Western societies establishes in almost all cases of childhood trauma a direct link into dysfunctional patterns including compulsive/addictive abuse of substances and/or behaviour, or developing physical or mental forms of illness. Cases of widespread abuse of alcohol or substances through the loss of cultural context, identification, collective low self-esteem, in subjugated minority communities come to my mind. I remember my knowledge about Australian aborigines, for example, but also the dysfunctional behaviour in ghetto communities that we all deal with as police officers. We allow, create, or accept, unhealthy conditions in minorities, and/or ghettos, and then we blame the members of those groups for the dysfunctional behaviour which is an inevitable consequence.

But aside that common experience, which has very concrete consequences for the community-oriented policing work in all our countries, in my line of work I see the huge numbers of victims of horrible violence, children and caregivers, after conflict, and genocide.

Which sets the stage for case studies, but before that, within a next instalment, for further quantification and qualification of the violence that is part of contemporary conflicts. I have case studies including my own experiences, like in Bosnia & Herzegovina on my mind, or, for example, Rwanda. But also case studies of ghetto situations, in countries of the Western world.

Now, finishing with a book recommendation. Read the memoirs of a child soldier. It is heartening, but it will go under your skin: “A Long Way Gone⁠3: Memoirs of a Boy Soldier, by Ishmael Beah”.

From Amazon’s book page: “This is how wars are fought now: by children, hopped-up on drugs and wielding AK-47s. Children have become soldiers of choice. In the more than fifty conflicts going on worldwide, it is estimated that there are some 300,000 child soldiers. Ishmael Beah used to be one of them.

What is war like through the eyes of a child soldier? How does one become a killer? How does one stop? Child soldiers have been profiled by journalists, and novelists have struggled to imagine their lives. But until now, there has not been a first-person account from someone who came through this hell and survived.

In A Long Way Gone, Beah, now twenty-five years old, tells a riveting story: how at the age of twelve, he fled attacking rebels and wandered a land rendered unrecognizable by violence. By thirteen, he’d been picked up by the government army, and Beah, at heart a gentle boy, found that he was capable of truly terrible acts. This is a rare and mesmerizing account, told with real literary force and heartbreaking honesty.

“My new friends have begun to suspect I haven’t told them the full story of my life.

‘Why did you leave Sierra Leone?’

‘Because there is a war.’

‘You mean, you saw people running around with guns and shooting each other?’

‘Yes, all the time.’

‘Cool.’

I smile a little.

‘You should tell us about it sometime.’

‘Yes, sometime.'”

1 Pia Mellody, With Andrea Wells Miller and J. Keith Miller; “Facing Codependence”, HarperCollins, 1989 and 2003, New York, ISBN 978-0-06-250589-7, page 63

2 Ibid, page 45

3 Beah, Ishmael (2006). A Long Way Gone: Memoirs of a Boy Soldier. New York: Sarah Crichton Books

Rape as a Weapon of War

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When we discuss war, we cannot help but to think of the obvious and the inevitable: casualties, weapons, destruction, pain, winners and losers. Yet, how much time do we actually spend looking at the direct victims of war?

Throughout history, rape victims have been often overlooked. One of the main causes why rape has remained shadowed and unacknowledged has been due to the lack of documentation and reports on cases of rape. For the most part, rape has gone unnoticed by the world and criminals remain unprosecuted by the authorities.

Truth be told, in many parts of the world rape has been used as a weapon of war. Like grenades, atomic bombs or machine guns, raping became a tool to destroy the enemy, the “Other”. Unlike any other weapon of war; however, rape leaves an indelible mark and unprecedented wounds to its victims. Needless to say, these wounds go beyond…

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On Trauma and Societies

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This entry amends and deepens my earlier article “Trauma – An Entry Point”. So some is a repetition, but put into a larger context.

There is a group of conditions with damaging impact which’s members, at first sight, may seem disparate. These conditions fundamentally affect development, personality, and behavior, and impact on forming relationships. Scientific understanding of these conditions, and what they do to individuals, has made significant progress over the past decades.

However, in my experience they also impact on communities, and societies, especially when some of them occur on a large scale, to a huge number of members of a society, as a consequence of violent conflict.

To my knowledge, this area is less charted, in psychology, and in sociology.

The three conditions are:

(1) Trauma;

(2) Compulsive behavior and addiction and their interrelationship; and

(3) Certain personality disorders which, at least, seem to occur as a consequence of trauma especially when exposed to it at an early stage of life.

These conditions can be examined using a multidisciplinary approach including genetic, neuronal, biochemical and environmental/behavioral  sciences. This is especially useful when it comes to the various degrees of their influencing each other and working together.

These conditions, in principle, can be seen in any living organism, at least of some complexity, and to varying degrees, again depending on the complexity of the organism in question.

We all know the story of the dog where it’s owner knows or suspects that the animal has been abused, say, the dog was rescued from being chained and beaten frequently, for example. We immediately see the impact, some animals are extremely anxious, others may be aggressive and can not be held around children. I have not seen anyone who does not understand the causal consequence between the abuse and the behavior of an animal. The dog may even have been adopted for reasons including pity. Animal adoption online markets are full of narratives about abuse.

My experience with human beings who have experienced trauma, especially early trauma, is different. The layers of human development from child to adult, and within an adult’s life, seem to make the causal context less visible. I may hear on a party sentences like “Our new dog was clearly abused as a puppy”. I can neither remember or imagine a similar easygoing discussion about a human being. These conversations are very different.

It appears to me that we can readily appreciate the impact of violence on an animal, but my personal experience with the set of reactions when confronted with somebody who has been subjected to violence, to trauma, to injustice on an extraordinary scale, is different. The scale of reactions includes indifference, disinterested attitude, or inability to appropriately interact with such an individual. Reactions can include gossip to third people like “He or she should get over it”, they can, not only in extreme cases, even outright victimize and traumatize this individual again.

Why? I struggle to come up with a comprehensive answer, but to me it stands out that the topic of abuse appears to be a societal taboo: Victims, if they can remember that they were abused, regularly don’t talk. The reasons include shame, and alienation by others. Every police officer knows (or should…) the term “secondary victimization”. It happens, for example, to rape victims, through the sometimes helpless, sometimes outright malicious, and always inappropriate reactions of family, friends, law enforcement, and justice.

Moreover, in my experience the reactions to human abuse appear to include other elements which make the consequences so difficult to see, and to deal with. They include uneducation, sometimes almost medieval belief, and disinterest. As an example, I take a sentence many of us have heard all too often: “A slap does not harm a child, it’s good for the child”.

Despite well-documented negative impact on the development of children, this belief is very common. To my disbelief, I had even to learn that some State legislation in the U.S. still allows physical punishment of children. Just read this one.

I do believe that massive experience of violence, and especially sexual and gender based violence on a mass scale which occurs in conflict, not seldom deliberately used as a weapon of war, of individual and societal destruction, leads to the occurrence of all three conditions on a scale that affects that societies’ ability to move on, and to reconcile, or not. I have made practical experience of that everywhere where I have worked.

Our ability to appreciate these phenomena and to relate to the behavioral consequences of their existence in an individual is radically different, in my view, within the three following groups, which I introduced in my first article:

(A) Those who don’t have one or several of these conditions;

(B) Those who have, and often don’t know; and

(C) Those who recover from one or several of these conditions, and/or integrate the knowledge of their partly unalterable consequences consciously into their lifes.

These three constituencies mix and may communicate about these issues on basis of a vastly different understanding:

The person who is not affected (A) has limitations to relate, and thus, to understand. Relapse into addictive behavior, compulsive disorders, anxieties, anorexic behavior, just to name very few, appear to be alien to these persons. They have genuine difficulties grappling with relating to why this is happening, beyond an intellectual level. Read “Confessions of a Sociopath: A Life Spent in Plain Sight” by M.E. Thomas. Try to relate to her narrative, assuming you, the reader, are not a sociopath. It’s really demonstrating the case.

The person who is affected (B), does not, at least fully, know and/or is in a condition excluding understanding, through complex denial mechanisms. This person is genuinely unhappy and may even be ready to admit that, but understanding does not suffice and denial adds. The denial can be visible to (A), but that person has often no idea what this denial really means, and how it works. Often, a person (A) concludes that a person (B) is weak. An addict has character deficiencies, full stop. A traumatized abuse victim is weak, he or she should get over it. Full stop. A personality disorder, like, let me just say, frequent panic attacks and inability to be with other people, may establish pity at best. But that person is weak, full stop.

In order to appreciate my entry point into this discussion, read, for example, the definition of the American Society for Addiction Medicine ASAM. According to this definition, based on what we now know through sophisticated science, addiction is a brain disease. I will come to addiction much later, the point here is “brain disease”. The very same way, trauma is a wound inflicted on the brain.

Whilst we may talk about brain injuries and diseases on a neuronal level in educated academic discussions, my impression is that much of society approaches these conditions including from a perspective treating them as character deficiencies.

The person who recovers (C), increasingly understands, as his or her recovery progresses. Recovery is hard work. Thus, the recovering person develops an intimate understanding of what happened, and why.

It is from this perspective that I see and want to examine the impact on societies where large groups of individuals are victimized. Understanding the impact helps finding better ways to help addressing it, increasing the ability of a society to reconcile.

Because if there is no reconciliation, there is high likelihood of relapse into new conflict.

For further reading, here is just one personal account. I will use some more in future entries.

“Thank You” – Instead of “Yes, we succeeded!”

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When I read the first breaking news on BBC on that “the case of a Saudi blogger sentenced to 1,000 lashes has been referred to the Supreme Court by the king’s office”, I shared it with my little group of personal friends on FaceBook immediately, and just adding the word “Thanks!!!” (http://www.bbc.co.uk/news/world-middle-east-30856403).

Referring to my previous blog entry “Je suis Charlie – Je suis Raef” I then thought about the issue a little more in depth.

Since the horrible attack and murders which began in Paris in the offices of the magazine “Charlie Hebdo” January 7, the world saw outrage and intense discussion. Millions gathered in Paris and elsewhere, demonstrating under the logo “Je suis Charlie”. Public discussion saw a wide range of positions, across various communities, including communities of faith. I find it noteworthy that important moderate voices came from everywhere, including, sometimes, from where I would not have expected it. Here is an example: http://m.huffpost.com/us/entry/6443530.

Friday, January 09, the Saudi blogger Raef Badawi received the first 50 lashes from a sentence of 1,000 lashes. The public outrage was immense. I referred to some in my recent blog entry, and I wrote “Je suis Charlie – Je suis Raef”.

January 14, the media began to report about a new cover illustration of Prophet Muhammad in the latest edition of Charlie Hebdo (http://mobile.nytimes.com/2015/01/15/world/middleeast/new-charlie-hebdo-muhammad-cartoon-stirs-muslim-anger-in-mideast.html?_r=0&referrer=).

Again, there was a wide spectrum of opinions flooding the blogs. Again, I also want to note that there were serious concerns offered in moderation, across the whole spectrum of communities. The above link serves as an example.

What I want to draw attention on here is the fact that, in my personal view, the decision of the Kingdom of Saudi Arabia carries remarkable signals, and I would hope that this is supporting a dialogue which I find extremely important. The world faces a lot of antagonisation right now. This escalation of antagonised, often radicalised, and very often very emotional expressions of outrage supports that views become polar. Polar views support a selective perception which makes us looking for more of the bad news, as we seek support for the position that each of us holds.

Meaning: Dialogue becomes more difficult.

So, here is my take on the news on Raef Badawi: I hope this goes widely noticed. I hope it’s not used in a triumphant manner. I hope it’s used as an example for that listening to each other really works.

And that is what we need more than anything else, right now. So, trusting that this decision is based on including the understanding that dialogue and willingness to understand are so important, I say “Thank you!”. The world never is black and white only, what ever some would want to suggest.

Je suis Charlie – Je suis Raef

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May 15, 2014, the United Nations Office of the High Commissioner for Human Rights issued the following statement (http://www.un.org/apps/news/story.asp?NewsID=47797#.VLT9xkY8KJI ) on Raef Bandawi, a Saudi Arabian blogger who was sentenced to 10 years in prison, 1,000 lashes and a 1 million Saudi riyal fine:

“This outrageous conviction should be overturned and Mr. Badawi immediately released,” said the Special Rapporteur on freedom of religion, Heiner Bielefeldt; the Special Rapporteur on freedom of expression, Frank La Rue; the Special Rapporteur on torture, Juan E. Méndez; and the Chair-Rapporteur of the Working Group on Arbitrary Detention, Mads Andenas.”

But it is happening.

It started last Friday. Here is what, like many, The Times of India reports (http://m.timesofindia.com/world/middle-east/Saudi-blogger-lashed-in-public-for-insulting-Islam/articleshow/45824671.cms ):
“JEDDAH: Saudi blogger Raef Badawi was flogged in public Friday near a mosque in the Red Sea city of Jeddah, receiving 50 lashes for “insulting Islam”, witnesses said. In September, a Saudi court upheld a sentence of 10 years in prison and 1,000 lashes for Badawi, and he is expected to have 20 weekly whipping sessions until his punishment is complete. The United States, Amnesty International and Reporters Without Borders have denounced the flogging as a horrific form of punishment, and said Badawi was exercising his right to freedom of expression.”

This is why it is so incredibly important to continue with a public discussion on torture, following the release of the U.S. Senate’s report on coercive interrogation methods by the CIA amounting to torture: Cruelty is a family member of Torture, and I identified Sadism and Rape as other brothers and sisters in it, in earlier statements on this blog. The legitimacy of condemnation of such methods applied by others critically depends on how one deals with own behavior, and history. Once we allow ourselves to do whatever we want, disrespecting international Conventions, we mute ourselves when we are being confronted with outrageous action of others.

So, here is the US Department of State’s public statement ( http://m.state.gov/md235704.htm ) as of one week ago:

“Press Statement
Jen Psaki
Department Spokesperson
Washington, DC
January 8, 2015

We are greatly concerned by reports that human rights activist Raif Badawi will start facing the inhumane punishment of a 1,000 lashes, in addition to serving a 10-year sentence in prison for exercising his rights to freedom of expression and religion. The United States Government calls on Saudi authorities to cancel this brutal punishment and to review Badawi’s case and sentence. The United States strongly opposes laws, including apostasy laws, that restrict the exercise of these freedoms, and urges all countries to uphold these rights in practice.”

Yet, despite this and others joining in, it is happening. Raif Badawi received the first 50 lashes last Friday. Watch the crowd gathering, the video stops there, (thank you!): http://m.youtube.com/watch?v=ISRaSduJNOI

It will continue if hearts remain merciless. Every Friday he will be taken out of prison, displayed in public, receiving 50 more lashes. The American PEN organization decries it ( http://www.pen-international.org/newsitems/saudi-arabia-editor-raef-badawi-sentenced-to-1000-lashes-and-10-years-in-prison-plus-10-year-media-participation-ban/ ). It will bring his body to his limits, every Friday for the next twenty weeks. He may die.

And you know what?: On occasion of millions joining into last week’s demonstrations against the killing of fifteen journalists of Charlie Hebdo, the Ambassador of the Kingdom of Saudi Arabia joined the row of dignitaries, excellencies, and ordinary people, expressing their sadness and outrage. Exercising their right to be free expressing their opinions, journalists had been brutally killed by extremists who felt this is an insult of Islam. ( http://www.jewishjournal.com/hella_tel_aviv/item/the_10_biggest_hypocrites_marching_in_paris ).

So what is this about? Is it that you can say what ever you want as long as it is not against us?

I join the statement by the European Union ( http://eeas.europa.eu/statements-eeas/2014/150109_03_en.htm ).

Je suis Charlie. Je suis Raif. Et j’adore Senator Feinstein.

More links below.

http://m.ndtv.com/article/world/saudi-blogger-gets-first-installment-of-1000-lashes-for-insulting-islam-646541

To me, the most heartening one: http://m.huffpost.com/us/entry/6125244

Trauma – An Entry Point

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So far, I have been writing about peace, justice, and security. This blog is also about conflict, trauma and reconciliation. And frankly, it is perhaps the biggest unexplored land that I need to enter, to cross, and attempt to map. Trauma is one of the most challenging terms I have ever been dealing with.

My knowledge about trauma is growing. As I write, I also contribute with this to my own recovery from trauma. So this will be part of a healing process, quite frankly. As this is a public blog, there only will be a very limited disclosure.

I am so aware of how difficult it is, in general, to understand what trauma does to an individual, and in cases of massive trauma by conflict, to communities and societies. From what I am learning and researching, the effects of trauma on societies may be better explored than methods to address recovery from trauma on a societal level.

In my professional experience, this recovery process appears to be a crucial factor for reconciliation in a society that has experienced conflict. I will try, how many blog entries down the road, and repeatedly, to explain and to reflect on supporting methods for recovery from individual trauma. My feeling since a while is that there is much potential for finding better ways to support the process of societies that have been traumatized through conflict, on their way towards reconciliation.

Because if they don’t, the common experience in my line of work is that these societies have a higher chance to relapse into conflict. History is full of proof for this.

Thinking about how to find the best common understanding for this topic, I want to note that there are several categories of individuals who need, when reading about trauma, to understand that their own experience with it massively defines their way, and even their ability, to relate to what I am going to write.

In a simplification, three groups stand out to me:

(1) Those who are lucky that they grew up without being subjected to their own trauma;

(2) Those who are trauma victims and don’t know;

(3) Those who actively recover, using a large variety of tools for it, based on what science learns about trauma, and on recovery tools that work.

Each of these groups have a massively different ability to understand the notion of trauma, with some similarities between the first two groups. The best understanding might be within the third group, to which I belong. Thus, I also know from my own experience how challenging it may be for those who understand trauma better, to explain it, on basis of their own experience. Because this group is labeled in different ways, there often is the complete absence of understanding what suffering from trauma means. Lifelong. Reactions go across the whole spectrum, including muted silence and aversion, to ridiculing, and moral judgement.

Which leads me to my second last general comment: I would believe that as of today, many who deal with trauma and its consequences would agree to that a multidisciplinary explanatory model and recovery approach is necessary. Explaining the mechanism of traumatization, and the approaches to healing, went through a huge scientific learning process over the past few decades. It is still ongoing, but there truly is exciting progress. Thats why both the knowledge about trauma and its effects, but also what trauma means for communities and societies at large, are so incredibly relevant and, perhaps, insufficiently explored and understood. My suspicion is that, as a result, we struggle with finding more effective methods of assisting recovering societies, in my line of work.

My last general comment: Science is knowledge, is enlightenment, is allowing humanity to develop tools. The opposite is the darkness that we often associate with the medieval ages. Believe me, from my viewpoint, which is supporting science, we are not out of the woods of the medieval ages yet. Specifically when it comes to contemporary understanding of behavior, learning, nurturing, and abuse in all its various forms, I see the medieval ages in full existence. The result is an uninformed approach of morality, and it has a huge impact in societies which believe that they are educated, and believing that the darkness of not knowing is just for labeling “elsewhere”.

I will give examples.

Here is one for starters: Follow these two links below. I may continue to work myself into the issue of trauma from various viewpoints, using these examples, and others. I deliberately refrain from judging the extremely different events that are reported in these articles too much, except that they both upset me equally:

During the same 30 minutes whilst riding on a train home, I read the news about that Boko Haram, in their most recent attack, killed hundreds, if not thousands of innocent people, with utmost cruelty, and for sure with what always comes with it: torture, and rape, unspeakable horror and suffering. Then I read about a father in Florida calling the cops for witnessing his punishing his 12-year-old daughter with slaps on her buttocks.

The common denominator for my later dissection: Trauma. And whilst All here would agree that Boko Haram’s actions are coming from Hell, yet there is a common understanding that physical abuse of children is justified for “educational” purposes. Even more, the notion I grew up with, including the sentence “A little slapping is healthy for children”, this notion is more widespread than I would have hoped, after so many decades of educational progress. It is truly medieval, as one can see, it’s still the law, even in some Southern parts of the United States.

So, the challenge is education about the effects of trauma. I will attempt to contribute.

Here are the links.

Dad Calls Cops to Watch Him Spank 12-Year-Old Daughter

http://gawker.com/dad-calls-cops-to-watch-him-spank-12-year-old-daughter-1677493594

Deadliest-Ever Boko Haram Raid Leaves Hundreds Dead in Nigeria: Reports

http://gawker.com/deadliest-ever-boko-haram-raid-leaves-hundreds-dead-in-1678538005

I really can not say: Enjoy reading…

Never Again – Never Forget

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This is the fourth installment on coercion, and torture. What I want to address here is a broader context, including atrocities that haunt us, seemingly without end. History is full of shameful chapters where we did it again, and again, and again.

I ended my third entry with the question “How to argue that there are forms of coercion that need to be banned in their entirety?”. This is where I begin to take it up today.

In my line of work, the phrase “Never Again” is meaning a lot, used quite often, triggering many memories. Some of those memories relate to direct experiences with atrocities that I have witnessed. Some of them relate to atrocities that have set the stage for my desire to contribute to peace operations. Some of these do deeply affect the corporate conscience of the United Nations, in places where we failed to prevent atrocities, such as in Rwanda, and in Bosnia&Herzegovina. The earliest memories of wishing that it shall never happen again relate to the history of my country, Germany, before I was born. The history of my country, and how I was told, and learned about it, has formed main parts of my conscience.

In an earlier blog post, I referred to an Op Ed in the New York Times, Dec. 9, 2014, by Eric Fair: “I Can’t Be Forgiven for Abu Ghraib⁠1⁠”. Eric Fair, an Army veteran, was a contract interrogator in Iraq in 2004. In 2014, he was a Professor for creative writing at Lehigh University. Parts of his Op Ed deal with his revealing to his students what he did, in Iraq. He tortured. His Op Ed for sure is stirring up a lot of emotions, and I can only imagine that many of them will be very controversial, especially by those who have suffered from torture trauma, either being victims, or perpetrators (they too become victims, later on, may be even those with strong sociopathic traits⁠2). Eric Fair ends the Op Ed with the following sentences: “In some future college classroom, a professor will require her students to read about the things this country did in the early years of the 21st century. She’ll assign portions of the Senate torture report. There will be blank stares and apathetic yawns. There will be essays and writing assignments. The students will come to know that this country isn’t always something to be proud of.”

Not even scratching the surface of the never ending row of atrocities in mankind’s history, how does “Never Again” work if we seem to constantly forget, and/or seem not to be able to abstain, even given the overwhelming testimony of what we are able to do to our brothers and sisters if we allow ourselves running unleashed?

What possible comfort can be drawn from a catch phrase that we so notoriously use, use it again, or may even use it for other situations whilst we stained our conscience ourselves?

Should we give that intent up?

For the record, I am not arguing this. I hear this sometimes, and in a more depressing mood this question can occur to me, too. Recently, I read an essay in “Harper’s Magazine⁠3”, titled “Against Human Rights”, by Eric A. Posner, a professor at the University of Chicago Law School. This essay is so upsetting that I may dissect it at a later opportunity. It serves as an example for the, in my view, most dangerous rationale that would suggest that, because standing up for Human Rights allegedly did not work (which is untrue), the concept itself might be outdated (which is devilish).

As a child, and as a young adult, I believed in the notion that thousands of years of civilization had a cumulative effect, that somehow this effect would lead to a thicker cultural skin, that atrocities were less likely to happen, taking into account some societal learning. I may be excused for that naivety. I was a growing up teenager in a country that had not experienced war ever during my lifetime, had not participated in one. Neither I was confronted with actual atrocities we were committing, none that we had to actually suffer from. That all was part of a past long gone. During the 1970’s my political conscience began to grow. As a people, we were acutely conscious of the atrocities of the Holocaust that we had committed a few decades ago. This led to generations of young German citizens who had no direct experience with war, with killing, with torture, sadism, genocide.

The generations to which I relate, we grew up with a lot of guilt, and shame, for what our forefathers did. This type of German conscience was, and is, strong in saying “Never Again”. This is true until today, and it took me a very long time, and my direct exposition to the Hell that Mankind can create on Earth after I began to work in peace operations, to relate to why it is so incredibly important to uphold the call for “Never Again”. I can only speak for my generations, and I can only explain the context from what I experienced, and continue to experience, in some of the most brutal conflicts of today’s World. Whether there is a different conscience in younger people in Germany, very much along the lines of Eric Fair’s question at the end of his Op-Ed, I don’t exactly know.

However, this is precisely what Eric Fair is referring to: How can one ensure a remaining understanding, being part of a societal and individual conscience, that certain acts are acts of Hell on Earth, and that there simply shall not be any tolerance for them, justification of them, or committing them?

April 07, 2004 I attended a town hall meeting of the United Nations in Pristina, Kosovo. On this day, the United Nations commemorates the genocide that happened 1994 in Rwanda. Throughout approximately 100 days, Hutu extremists killed an estimated 500,000 to one million Tutsi and moderate Hutu.⁠4”⁠, as a consequence of a brutal, systematic, well organized genocide. For comprehensive reading, I recommend Lt. Gen. Romeo Daillaire, “Shake Hands With The Devil⁠⁠5”.

This April 07 in 2004 was a very special day for me: I was the Police Commissioner in charge of 4.500 international police officers and 6.500 Kosovo Police Service officers, within the United Nations Interim Mission in Kosovo. A little more than two weeks earlier, we had fought off three days of massive violence in Kosovo. There had been civil unrest on which some ring leaders had hooked up, deciding that it was now the time to drive the Serb minority population out of Kosovo. It was an attempted ethnic cleansing happening under the eyes of the United Nations and NATO. Together with our military NATO colleagues, my police officers and I engaged in fighting this off. Long story short, I claim that we succeeded. However, at the end of these three days we mourned killed and injured civilians, injured police officers and soldiers, a large new number of internally displaced persons, and the demolition of cultural Serb Orthodox heritage and uncounted Kosovo-Serb houses.

We were tired, shocked, recovering, regrouping. Within this deeply emotional phase, on April 07 we watched documentary about the Rwanda genocide. After watching this movie, the Principal Deputy of the Special Representative of the UN Secretary General, my friend Charles Brayshaw, was supposed to address us, assembled commemorating this genocide. He began with stating “Never Again”. As he wanted to continue his speech, his voice broke, tears were all over his face. He stopped, just with these two words. Because this is what we had lived up for during these three nightmare days. We had prevented it.

Yesterday, I walked the streets of Manhattan, on my way to a bookstore. It was cold, dark, a mixture of slush and rain was attempting to penetrate my coat. I thought about that I am growing 57 this month. I asked myself: “What is it that I want to see staying beyond? What will be the result of my contribution, when I die?”

All of a sudden I saw it: It’s not an accumulation of more. It’s about keeping the flame lit, to be a part of those who carry it.

There may be a future in which we will be able to fully commit to “Never Again”. But whether that is so, and when, we don’t know yet. However, one thing is clear: Until it will never happen again, it is about “Never Forget”.

That is why Eric Posner is wrong: The effects of the Universal Declaration of Human Rights may be disappointing, or not. I humbly disagree, but even more, abandoning them creates Hell on Earth. If we deprive people from inalienable human rights just because they have done this to us, we do not only enter into the “An Eye for an Eye” age again.

Rather, we allow the Doors of Armageddon to open.

1 http://www.nytimes.com/2014/12/10/opinion/the-torture-report-reminds-us-of-what-america-was.html?nytmobile=0&_r=0

2 As one of the most vivid examples for that even individuals with obviously strong sociopaths traits can be overwhelmed by a “gollum-like” recognition of what they have become, once their denial is broken up, watch the amazing documentary “The Act of Killing”. But beware, this goes under your skin! From the synopsis on the website http://theactofkilling.com: “…When the government of Indonesia was overthrown by the military in 1965, Anwar and his friends were promoted from small-time gangsters … to death squad leaders. They helped the army kill more than one million alleged communists, ethnic Chinese, and intellectuals in less than a year. As the executioner for the most notorious death squad in his city, Anwar himself killed hundreds of people with his own hands.

Today, Anwar is revered as a founding father of a right-wing paramilitary organization that grew out of the death squads. The organization is so powerful that its leaders include government ministers, and they are happy to boast about everything from corruption and election rigging to acts of genocide.

…Unlike ageing Nazis or Rwandan génocidaires, Anwar and his friends have not been forced by history to admit they participated in crimes against humanity. Instead, they have written their own triumphant history, becoming role models for millions of young paramilitaries. The Act of Killing is a journey into the memories and imaginations of the perpetrators, offering insight into the minds of mass killers. And The Act of Killing is a nightmarish vision of a frighteningly banal culture of impunity in which killers can joke about crimes against humanity on television chat shows, and celebrate moral disaster with the ease and grace of a soft shoe dance number.

3 Harper’s Magazine, Vol. 329, No. 1973, October 2014; http://www.harpers.org; Harper’s Magazine Foundation, 666 Broadway, New York, USA

4 http://en.wikipedia.org/wiki/Paul_Kagame

5 ISBN 0 09 947893 5

On Sustainability – European Union Police Mission in Bosnia and Herzegovina (2002 to 2012)

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Beware!! This is a long note, with extensive footnotes at the end of each of the following four chapters.

I am putting this “Hand-Over Note of the Head of Mission, on occasion of the termination of EUPM, and the establishment of follow-on assistance to law enforcement and the criminal justice system of Bosnia and Herzegovina, under the Instrument of Pre-Accession Assistance and under the European Union Special Representative” into my archive here, for the access of interested readers.

In Bosnia & Herzegovina, the United Nations established a UN peacekeeping operation after the end of the war, with a police component which came to be known as IPTF (International Police Task Force). It lasted for seven years, ending in 2002. The end was not an end of peace operations, but basically a transition for UN peacekeeping into the first ever peace operation of the European Union, the “European Union Police Mission in Bosnia & Herzegovina EUPM”, which lasted for ten more years. Between 2004 and 2008 I supervised this Mission from EU Headquarters in Brussels. Between 2008 and 2012 I became the last Head of Mission of the EUPM, following on, and ending the work, of four EU Police Commissioners, and friends of mine, including my dear friend, the late Sven Frederiksen of Denmark.

This marked the end of seventeen years of peace operations of UN and EU in Bosnia & Herzegovina, and I note this here as one important and successful example for that our work, once begun, requires more than a decade of work. Yet, even after the end of UN peacekeeping, or the transition into a regional follow-up, more work is necessary.

This is what this hand-over-note is about. I plan more articles and documentary work, referring to other successful peace operations, like the UN peacekeeping efforts in Timor Leste, or in Haiti, or other places. I will continue to write about specific missions, you will find them with their tags, and generally under the category “Peace Operations”.

Chapter One: Introduction – On Sustainability

“Restoring confidence and transforming security, justice, and economic institutions is possible within a generation, even in countries that have experienced severe conflict.”

World Development Report 2011, Conflict, Security and Development; The World Bank, April 2011; http://www.worldbank.org

With the planning process for establishing the European Union Police Mission in Bosnia and Herzegovina running through the year 2002, the European Union aimed at following on the tasks that were considered being completed by the United Nations International Police Task Force, under Annex 11 of the General Framework Agreement for Peace. IPTF operated for seven years until the end of 2002, and carried out and imposed rigorous reforms such as physical separation of police from the intelligence services, certification of local police through a vetting procedure aimed to bring local police to international standards of integrity and professionalism, or accreditation of local Law Enforcement Agencies according to basic democratic standards. In that, IPTF had begun a process of building a democratic and sustainable police force in the country.

Throughout EUPM’s following almost ten years of contribution to assisting Bosnia and Herzegovina, the term “sustainability” is frequently used.  Council Joint Action as of 11 March 2002 on the European Union Police Mission states: “(2) In line with the general objectives of Annex 11 of the Dayton/Paris Agreement, the European Union Police Mission (EUPM) should establish sustainable policing arrangements under BiH ownership…”.

The Mission Statements given to EUPM with five consecutive Concepts of Operation use the term as follows:

  • (1) CONOPS EUPM I, 09.04.2002:  “à établir des dispositifs de police durables sous gestion de la Bosnie-Herzégovine”;
  • (2) CONOPS EUPM II, 04.11.2005:  “the EUPM has made considerable achievements in developing sustainable policing arrangements under BiH ownership”;
  • (3) CONOPS EUPM II, 08.10.2007: “has made considerable achievements in developing sustainable policing arrangements under BiH ownership”;
  • (4) CONOPS EUPM III, 14.07.2009: “has contributed in developing sustainable policing arrangements under BiH ownership”
  • (5) CONOPS EUPM for transition phase, 12.10.2011: “has contributed in developing sustainable policing arrangements and in enhancing the police- prosecutors cooperation in the criminal justice system under BiH ownership”.

By the end of 2010, half-way through the then two-years mandate phase of the Mission, EU Member States decided on conducting a strategic review on the EUPM, which was subsequently carried out under the lead of the Crisis Management Planning Directorate (CMPD), a part of the European External Action Service (EEAS).

The “Review At A Strategic Level On The Future Of European Union Police Mission (EUPM) In Bosnia and Herzegovina”  was presented to EU Member States early 2011. It measured the progress in mandate delivery against the desired end-state, as it was formulated in the CONOPS 12096/09: “The BiH authorities will have taken significant steps towards a sustainable and effective capability in the fight against organised crime and corruption and will have demonstrated the ability to deliver results. This will include an enhanced systematic exchange of information between relevant LEAs in BiH, including improved police-prosecutor relations, improved regional and international cooperation, including coordination with relevant EU LEAs and an adequate accountability mechanism.”

In it’s assessment on mandate delivery, the Review notes: “A little more than half way through its mandate, the mission has achieved significant progress in all areas of its mandate.” The Strategic Review identified the satisfactory progress made towards sustainable development on the level of individual institutions. Secondly, and in the context of this writing more importantly, the Review assessed the development in the area of joint capacities as not being sustainable yet.

The establishment of further technical assistance to law enforcement and criminal justice in Bosnia and Herzegovina after the expiration of EUPM’s mandate, notably by way of support under the Instrument for Pre-Accession, is leaving a second core EUPM task for the transitional period between January and June 2012, as defined in the CONOPS as of 12.10.2011: “Smooth handover of EUPM’s remaining key tasks to a EUSR Rule of Law (RoL)/Police Section.”

Thus, EUPM’s tasks to be handed over to the EUSR are those that are considered, including through the CMPD-led review, as not having achieved a sustainable degree of establishment yet. These topics naturally sit on a high strategic level of EUPM’s work, and have required substantial work of the EUPM throughout its entire life-cycle.

This paper is my personal contribution, as the fourth and last Head of Mission of the European Union Police Mission in Bosnia and Herzegovina, to the process of documenting EUPM’s legacy. It is focussing on selected priority areas where further development of the system of providing police  and criminal justice, contributing to security and the rule of law, could not progress to a satisfactory degree, could not reach “sustainability”, and where I feel that further strategic assistance should be considered.

Naturally, this paper excludes the documentation of the many widely acknowledged successes that EUPM had. Such documentation can be found in more detail in other parts of the legacy documentation. They are excluded here, and assistance to further improvement will be conducted under IPA programming.

This paper’s objective is two-fold:

(1) To serve as a hand-over note on remaining key areas of concern to the European Union Special Representative;

(2) To contribute to a lessons-learned process within the European Union.

For eight years, I have contributed to the work of EUPM, both in my capacities within structures that are known post-Lisbon as “Civilian Planning and Conduct Capability CPCC”, a part of the European External Action Service EEAS, between 2004 and 2008, and in my current capacity as Head of Mission of the EUPM, between 2008 and now.

Under the title “On sustainability”, my contribution addresses three areas that have been a permanent challenge for the EUPM:

(1) EUPM’s experience with the support to development and implementation of police reform and restructuring processes is covered in the chapter “On Police Reform”;

(2) Experiences with the support to the development of capacities of law enforcement that go beyond the individual capacities of each agency, and that require strategic and policy support including through relevant Ministries, are covered in the chapter “On Institutionalised Cooperation”;

(3) Experiences with the support to the development of a system of internal and external checks and balances aiming at ensuring that police carry out their duties properly and are held responsible if they fail to do so, are covered in the chapter “On Accountability”.

Two remarks should be kept in mind when reading the following three chapters:

(1) For many years, the International Community engaged in efforts reforming the police in BiH. Parts of this have faced considerable domestic controversy, notably the efforts to restructure the police. Within the domestic context of BiH, the term “Police Reform”, therefore, is often used with a limited understanding: Whilst reforming the police may include efforts to restructure the organizational and legal setup, it also includes many equally important aspects, such as procedural, managerial, educational, or administrative. In BiH, the term “Police Reform” is mostly reduced to the understanding of “Police Restructuring”, and has subsequently become politically contentious. Until today, the term can not be used without risking antagonistic reactions. When ever EUPM engaged in efforts to assist in increasing efficiency and efficacy of the complex police system in BiH, it had to be mindful of that. However, efforts between late 2008 and 2012 assisting in increasing institutionalised cooperation faced the same political controversy as was the case with Police Reform; and for the same political reasons. The deficiencies that restrict the system’s overall readiness to engage in institutionalised cooperation on an European level therefore continue to exist.

(2) The chapter “On Accountability” relates to a larger and long-term development of Bosnia and Herzegovina’s system within the context of fully applying underpinning democratic principles of governance. Inter alia, the chapter documents a legal dispute that became visible in the Federation of Bosnia and Herzegovina over the recent years. This dispute is, in reality, a political dispute, with EUPM’s main concern sitting with the worrying degree of politicisation of policing. However, it is important to stress that EUPM’s decade of experience does not restrict this concern to the Federation of Bosnia and Herzegovina. Rather, this is a much wider issue, prevalent in all areas of interaction between police and politics. The fact that this became so visible in the Federation has only to do with the emerging controversy between political parties on Laws on Internal Affairs, which has not been the case elsewhere.

This hand-over note would not have been possible without the invaluable contribution and critical review by a few dedicated individuals, each of them with more than a decade, in some cases with almost two decades of their personal witnessing the development in Bosnia and Herzegovina. I am extremely grateful for their help and advise.

Lastly, this is my place to put on record that the work of EUPM would not have been possible without the professionalism and dedication of law enforcement and criminal justice system professionals, and Ministers, from Bosnia and Herzegovina. It has been a true privilege to assist in their efforts to contribute to the security and the rule of law for the citizens in Bosnia and Herzegovina and thus to association with and accession to the European Union.

Sarajevo, May 2012

Stefan Feller

Head of Mission / Police Commissioner

European Union Police Mission in Bosnia and Herzegovina

Chapter Two: On Police Reform

By April 2008, the process that is mostly referred to as “Police Reform” (and which mainly has been an exercise on restructuring Police) had generated a result that was considered acceptable both for BiH and for the EU for entering into the signing of the Stabilization and Association Agreement (SAA). Until today, the results of Police Reform remain politically controversial, considered being not satisfactory by some, whilst being the maximum compromise with no possibility to re-enter the discussion by others. The results as of early 2008 differ significantly from original intentions guiding the EU position between 2003 and 2008. Initial ambitions were, by far, not met.

The process had begun with the “Report from the Commission to the Council on the preparedness of Bosnia and Herzegovina to negotiate a Stabilization and Association Agreement with the European Union”, COM (2003) 692, 18 November 2003.⁠1 The European Commission formally called for systemic reform of the policing structures in Bosnia and Herzegovina.

EUPM followed on to the United Nations International Police Task Force within UNMiB. The European Union Police Mission became operational 01 January 2003, with an initial mandate until the end of 2005. It’s mission was to seek sustainable policing arrangements⁠2 under BiH ownership in accordance with best European and international practice. It was actively involved in the discussion on Police Reform. January 2004, EUPM presented a “Concept Paper on Restructuring Law Enforcement Agencies in BiH“⁠3 and “developed a reform proposal that envisioned establishment of the position of police director, to be supervised by a state-level Ministry of Security, and creation of five police regions…”.⁠4

05 July 2004, the High Representative issued a “Decision Establishing the Police Restructuring Commission”,⁠5 (PRC) which also became known as the “Martens Commission”. The EUPM HoM was a member. 28 October 2004, the Chair of this Commission issued a 281 page document “Final Report on the Work of the Police Restructuring Commission of Bosnia and Herzegovina” in which he determined that “an acceptable level of professional consensus exists for proposing to the Council of Ministers and the High Representative a “single structure of policing under the overall political oversight of a ministry or ministries in the Council of Ministers”.”⁠6

EUPM participated in further work, including “the establishment of the Police Steering Board, co-chaired by the EUPM and local authorities”.⁠7 In February 2005, the PRC issued its “Final Report on the Work of the Police Restructuring Commission of Bosnia and Herzegovina⁠8”. The Report starts with: “The Chair of the Bosnia and Herzegovina Police Restructuring Commission has determined an acceptable level of professional consensus exists for proposing to the Council of Ministers and the High Representative a “single structure of policing under the overall political oversight of a ministry or ministries in the Council of Ministers”.“

Adhering to the 12 directing principles of police restructuring, enumerated in the Decision of the High Representative [Bosnia and Herzegovina Official Gazette 36/04], including a policing service that is, inter alia, efficient and effective, financially sustainable, reflecting the ethnic distribution in Bosnia and Herzegovina, protected from improper political interference, and accountable to the law and the community, the report proposal foresaw “that the Institutions of Bosnia and Herzegovina will be vested with exclusive competency for all police matters, which includes legislative and budgetary competency. The Minister of Security of Bosnia and Herzegovina will have responsibility for overall political oversight of the single structure of policing in Bosnia and Herzegovina. The independent, national Police Inspectorate will monitor the effectiveness and efficiency of the single structure of policing. The State Investigation and Protection Agency (SIPA), the State Border Service (SBS), and the new Local Police Bodies will form the Police Service of Bosnia and Herzegovina. The Local Police Bodies will operate in Local Police Areas commanded by Local Police Commissioners. The Local Police Bodies will prevent, detect and investigate common crimes, and provide rapid intervention, traffic control and safety, crowd control and public order to the citizens of Bosnia and Herzegovina. Community policing will be a main feature of police work in the Local Police Bodies.”

EUPM’s mandate was evaluated in 2005 and refocussed with the beginning of 2006. It included “Support to the Police Reform Process”: “In accordance with the EUSR’s lead, actively support, advise and guide where appropriate, the implementation of police restructuring, as set out in the Agreement on Restructuring of Police Structures, endorsed by the RSNA on October 5th 2005, the Federation Parliament on October 12th 2005 and the BIH State Parliament on October 18th, 2005.”

Already with the first Six-Month-Report (SMR) under the refocussed mandate, the EUPM HoM characterized a number of developments that were to pose challenges on the work on EUPM in implementing the mandate on assisting Police Reform, inter alia including the start of negotiations for a Stabilisation and Association Agreement (SAA); the change of the Republika Srpska (RS) government to a SNSD-led coalition under Prime Minister Milorad DODIK; the progress towards reforming the constitution; and the challenge to the Directorate for the Implementation of Police Restructuring (DIPR) by the RS Prime Minister – including questioning the role of EUPM HoM within the Directorate.⁠9

With its next SMR, covering the period between April and October 2006, it became clear that the challenges were not temporary, but part of a fundamental opposition against the initiated process: The HoM reported “the continuous obstruction and undermining of the October 2005 political agreement on police restructuring by the Republika Srpska (RS), including the withdrawal from active participation in the Directorate for the Implementation of Police Reform (DIPR)”⁠10.

December 2006, the DIPR (co-chaired by the HoM EUPM, to be reminded) presented a “Proposal Plan for Implementation of BiH Police Structures Reform”⁠11. This plan mapped out a structure based on the February 2005 PRC Report and the mentioned principles.

In its SMR for the period October 2006 to April 2007, the EUPM HoM described “ The failure of the authorities of Bosnia and Herzegovina to adopt the report of the Directorate for the Implementation of Police Restructuring (DIPR) which was presented in the beginning of 2007. Since February 2007, EUSR/OHR facilitated political negotiations which remained inconclusive to date, though a meeting held on 14 March came close to an agreement. On the other hand, RS government conclusions of 4 April and of the RS National Assembly of 11 April 2007 have again rejected the process.”

In its SMR for the period April 2007 to October 2007, EUPM HoM continues to note a lack of progress, stating that “Bosnia and Herzegovina was not able to initial and sign the Stabilisation and Association Agreement with the EU due to a lack of progress in key reforms, including on police restructuring.” He states that “The authorities of Bosnia and Herzegovina failed to adopt the report of the Directorate for the Implementation of Police Restructuring (DIPR) and the ‘Draft protocol on meeting the police reform requirements necessary for initialing a and signing a Stabilisation and Association Agreement’ proposed by the EUSR/HR. Political negotiations facilitated by the EUSR/HR resumed in September on the basis of the draft protocol with the aim to reach an agreement by 30 September, in view of the European Commission’s annual progress report. In their function as political party presidents of SBiH and SNSD, BiH Presidency Member, Dr Haris Silajdzic and RS Prime Minister Milorad Dodik unilaterally signed on 28 September an agreement which failed to meet the three EU principles for reform. On 09 October, HDZ BiH and HDZ 1990 put forward a new document, and on 11 October, convened a meeting of party leaders to discuss the document. This meeting failed to reach agreement.”

24 October 2007, the leaders of the political parties HDZBiH, HDZ1990, PDP, SNSD, SDA and SBiH signed the so-called “Mostar-Declaration on Police Reform”.⁠12 The signatories agreed to undertake all necessary activities for implementation of the police reform in accordance with the principles of the European Union, and which are indispensable for continuing the process of association of Bosnia and Herzegovina with the European Union.

Leaders fully and unconditionally agreed with the content of the present Declaration and every of its particular point as indicated below, therefore including that the reform of the current police structures in Bosnia and Herzegovina shall be implemented in line with the following three principles of the European Commission: (1) All legislative and budgetary competencies for all police matters must be vested at the State level.  (2) No political interference with operational policing. (3) Functional local police areas must be determined by technical policing criteria, where operational command is exercised at the local level. The second part of the declaration describes a general commitment, that includes the statement that the structure of the single police forces of Bosnia and Herzegovina shall be in line with the constitutional structure of the country.

Between the signing of the Mostar Declaration and the signing of the two Police Reform Laws that, finally, prepared the ground for signing the SAA, EUPM notes in its SMR for the period between October 2007 and April 2008: “The political atmosphere has been tense since last October. The High Representative announced a range of measures to improve the functionality of Bosnia and Herzegovina’s institutions, prompting strong reactions from the Republika Srpska. Despite the resulting tensions, on 28 October 2007 leaders of Bosnia and Herzegovina’s governing parties signed the Mostar Declaration agreeing to take necessary steps to implement police reform as a requirement to sign the Stabilisation and Associations Agreement. In November, political leaders agreed to an Action Plan for police reform, defining the necessary detail and legal solutions. The Council of Ministers subsequently adopted the Mostar Declaration and Action Plan. This brought Bosnia and Herzegovina back on track towards EU integration. The Stabilisation and Association Agreement was initialed on 4 December 2007 by the Enlargement Commissioner in Sarajevo. … In early February 2008, however, the decision of the leading Bosniak party to walk away from the Mostar Declaration and the Action Plan caused major difficulties. In parallel to this, the RS National Assembly adopted a resolution claiming the right of self- determination. The Steering Board of the Peace Implementation Council met at the end of February 2008 in Brussels and reacted strongly to these serious developments and decided to keep the Office of the High Representative in place until a set of five objectives and two conditions were met. With the adoption of the two police reform laws, prospects for the signature of the Stabilisation and Association Agreement increased, thereby significantly improving the chances to meet one of the two conditions. The second condition is a positive assessment of the situation in Bosnia and Herzegovina by the Peace Implementation Council.”

On the two Police Reform Laws, EUPM noted: “The most important event of the last six months with regard to EUPM’s objectives has been the agreement and adoption of the two police reform laws in line with the Mostar Declaration and the Action Plan. The Parliamentary Assembly of Bosnia and Herzegovina passed these laws in April 2008. At this stage, the two laws will not result in a comprehensive police reform encompassing the entities, cantons and Brcko District, as relations between the State and other levels are to be addressed after constitutional reform. … The laws will establish seven new bodies at state level to coordinate and support the two state level police agencies, i.e. the State Investigation and Protection Agency (SIPA) and Border Police (annex 1 for a more detailed assessment). However, there are important elements in the law, which allow EUPM to come to a cautiously optimistic assessment. First, the laws make reference to the three EU principles for police reform in Bosnia and Herzegovina. Second, there is a commitment to take further steps after constitutional reform. Third, the institutions established by the two laws could be “upgraded” in the future to play a more important role vis-à-vis entity, cantonal and Brcko District police. The slow progress of the police reform can be attributed to the generally tense political atmosphere that has prevailed in the last two years and significant disagreements among the political parties of the government coalition. Against this background it was not possible to achieve a more profound police reform at this time. However, the three elements highlighted above, indicate to EUPM that the process is heading in the right direction. In close coordination with the EUSR/HR, the Mission will from now on assist in implementing the laws together with the European Commission. The European Commission has foreseen to provide technical assistance and EUPM will be able to provide police experts.“

By December 2011, the cautious optimism expressed by EUPM at that time had to fade away slowly over the following years: EUPM continued to report an ever more deteriorating political climate in Bosnia & Herzegovina. Agencies that had to emerge from the two Police Reform Laws appeared to be kept in slow-motion, for example took it until 2010 to have the Director and the two Deputy Directors of the Directorate for Police Coordination appointed. Likewise, the establishment of an Agency for Anti-Corruption is in its early infancy. Any political activity related to a larger constitutional reform, died with the “Butmir Conference”, which appears to be the last significant effort known to date.

Five years of Police Reform process began with an objective to establish a “single structure of policing under the overall political oversight of a ministry or ministries in the Council of Ministers”. They ended with no changes within the given setup, but added seven new bodies at state level to coordinate and support the two state level police agencies, i.e. the State Investigation and Protection Agency (SIPA) and Border Police.

In 2010, the then Prime Minister of the Republica Srpska Milorad Dodik (now it’s President) stated: “Finally, it is regrettable that the assessment mischaracterizes the actions of the RS in defending the rights it is guaranteed by the Dayton Agreement, including the right to protect its vital interests, as challenges to the international community. The time has come for the international community to recognize that its relentless efforts to impose an overly centralized structure on Bosnia-Herzegovina will not succeed and to accept that a decentralized structure, but one fully capable of qualifying it for EU entry, is the best guarantee of prosperity and stability in this region.”⁠13

1 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0692:FIN:EN:PDF – Also Attachment 1

2 Concept of Operations, 09.04.2002, doc 7766/02 – RESTREINT UE-: “La MPUE, soutenue par les programmes de développement institutionnel de la Commission, devrait viser, dans le cadre plus large de l’action en faveur de l’État de droit et conformément aux objectifs généraux de l’annexe 11 de l’accord de Dayton, à établir des dispositifs de police durables sous gestion de la Bosnie-Herzégovine, conformément aux meilleures pratiques européennes et internationales et, ce faisant, à améliorer le niveau de la police en Bosnie-Herzégovine.
La MPUE devrait avoir atteint ses objectifs d’ici la fin de 2005.”

3 Attachment 2

4 International Crisis Group – BOSNIA’S STALLED POLICE REFORM: NO PROGRESS, NO EU – Europe Report N°164 – 6 September 2005 – pg 7 – Also attachment 3

5 http://www.ohr.int/ohr-dept/rule-of-law-pillar/prc/prc-key-doc/default.asp?content_id=34149 – Also attachment 4

6 Attachment 5

7 Concept of Operations (CONOPS) for the Follow-on Mission to EUPM in Bosnia and Herzegovina; 04.11.2005, 14035/05, pg. 3

8 Attachment 6

9 Six-Monthly Review Report of the Police Head of Mission of the European Union Police Mission in Bosnia and Herzegovina; 24.04.2006

10 Six-Monthly Review Report of the Police Head of Mission of the European Union Police Mission in Bosnia and Herzegovina; 30.10.2006

11 Attachment 7

12 http://www.eusrbih.org/policy-docs/?cid=2109,1,1 – Also attachment 8

13 “Bad Intel – Foreign Policy – 12 Feb 2010 – http-::www.foreignpolicy.com:articles:2010:02:12:bad_intel – Also attachment 9

Chapter Three – On Institutionalized Cooperation

The “Concept of Operation (CONOPS) for the Follow-on Mission to EUPM in Bosnia and Herzegovina” for the period of 2006 and 2007⁠1 directed EUPM to (1) actively support, advise and guide where appropriate, the implementation of police restructuring; to (2) improve, through proactive mentoring, monitoring and inspecting, police managerial and operational capacities, especially at the State level, including relations with other law-enforcement agencies; to (3) improve, through proactive mentoring, monitoring and inspecting, police managerial, operational and coordination capacities, especially at the State level to enhance BiH’s capacity to fight organised crime in accordance with existing international, and in particular regional, commitments and obligations; and (4) in close coordination with the EUSR, monitor the exercise of political control over the police and address inappropriate political interference in the operational management of the police.

On occasion of the renewal of the mandate for the period 2008 and 2009, the objectives given to EUPM with the CONOPS changed significantly⁠2, both through evaluation of given objectives and adding several new objectives. Whilst the support to police restructuring was rephrased towards a more supporting role, the objective to assist in the fight against organized crime remained the same. New objectives formed the framework of EUPM’s increased participation in, and support to, future processes under the EU enlargement policy that were envisaged towards and beyond the end of EUPMs mandate.

The objectives given to EUPM for the period of 2010 and 2011⁠3 directed the Mission to ensuring greater success in the fight against organised crime and corruption, strengthening the capacities of SIPA and other State level institutions, including sustainable coordination, cooperation and accountability mechanisms, as well as further enhancing police-prosecutor relations, thereby contributing to an improved functioning of the criminal justice system.

Finally, the CONOPS for EUPM’s transitional period throughout the first half of 2012⁠4 emphasized the objectives to (1) provide strategic advice to the BiH LEAs and political authorities on combating organised crime and corruption; to (2) promote and facilitate coordination and cooperation mechanisms vertically as well as horizontally between relevant LEAs, with a particular focus on State level agencies; and to (3) ensure a successful hand over between EUPM and the EUSR RoL/Police Section and contributing to the coordination of EU and EU Member States’ activities and programmes in the field of Rule of Law.

All mandates for EUPM between 2006 and 2012 increasingly took the general assistance to law enforcement that had characterized the mandate between 2003 and 2005 to more specified levels. The developing objectives directed the Mission towards more and more specific assistance in the fight against organised and other serious crime. Taking the situation of post-conflict development in Bosnia and Herzegovina into account, EUPM had to focus on both strengthening the individual capacities of law enforcement and the criminal justice system and to simultaneously work on strengthening coordination, cooperation and communication between agencies inside BiH, and between BiH and the outside world. For an EU crisis management mission tasked with strengthening the Rule of Law in a country of the Western Balkans, the prospect of EU accession of the host country formed a long term focus on cooperation with EU Agencies, such as EUROPOL, EUROJUST and FRONTEX, and on supporting bilateral cooperation between law enforcement of European Union Member States and Bosnia and Herzegovina.

With Bosnia and Herzegovina and the European Union signing the Stabilization and Association Agreement (SAA) in spring 2008, EUPM found itself in a recalibration in relation to its mandate: The participation of EUPM in the police restructuring process, including a leading role,⁠5 transformed itself into an assistance to, and monitoring of the implementation of the results, notably the establishment of “seven new bodies at state level to coordinate and support the two state level police agencies”⁠6. Throughout the remainder of EUPM’s mandate for the period 2008 and 2009, but also for the following mandate during 2010 and 2011, EUPM’s activities moved substantially: On the one hand, EUPM monitored and assisted the implementation of agreed results of the police restructuring process, whilst on the other hand active and renewed commitment was directed to a systematic deepening of cooperation, coordination and communication between law enforcement and criminal justice on organized and other serious crime, and corruption. Further efforts were directed into the support of police accountability.

Already early in this recalibration throughout 2008 EUPM noted delays in the implementation of agreed results of the police restructuring,⁠7 and joined others by continuing to do so for the years to come⁠8. At the same time, EUPM continued to report operational results of law enforcement in the fight against organized crime, through State, entity, cantonal and Brcko District level law enforcement. The Mission itself increased efforts to establish domestic ownership.

In EUPM’s seventh SMR⁠9, HoM noted little progress in BiH fulfilling European partnership priorities and a negative political atmosphere, not conducive for progress at State level with regard to the support to the fight against organized crime.

However, HoM reported a track record of achievements continuing to emerge in the fight against serious and organized crime and corruption. State level agencies and police services on entity and cantonal levels, and Brcko District, agreed with EUPM that there is a need to jointly foster further development of communication, coordination and cooperation among themselves and with the other components of the criminal justice system, and to strengthen joint capacities and capabilities.

Throughout late 2008, EUPM undertook a comprehensive outreach, noting the assessment of state of play as presented by Heads of law enforcement and criminal justice on all levels, Minister of Security and entity Ministers of Interior. It became obvious how much the politicization of the police reform process had adversely affected communication on operational and strategic cooperation between law enforcement agencies⁠10. In close communication with international partners, especially the US Department of Justice’s ICITAP program, EUPM analyzed this in an effort of renewed commitment to assisting in the development of capacities in the fight against organized crime.

EUPM suggested to develop a set of principal objectives, a vision that would map out what domestic actors within law enforcement, criminal justice, Ministers, and EUPM would assess as being achievable, within the given agreed legal framework of policing structures that had set the stage for the signing of the SAA.⁠11 EUPM argued that the complex organizational reality within BiH’s law enforcement required redoubling efforts tackling the challenges, increasing sustainable success in the fight against organized crime. Therefore, systematic, effective and efficient cooperation, communication and coordination were identified as critical success factors for the fight of organized and other international crime. EUPM called on all actors to contribute to this goal, to the benefit of each.

EUPM’s mandate directed its efforts “especially at the State level”. EUPM argued that the inclusion of all administrative levels underneath, including entities, cantons, and Brcko District constitutes a critical success factor for achieving its mandate: State level law enforcement can neither strive nor contribute without a strong commitment of all administrative levels of BiH to contribute. After a thorough consultation process involving law enforcement and ministerial actors on all levels of BiH, and the State Prosecutor, HoM could present a set of six objectives, which were agreed for further strategic work, between EUPM and all interlocutors.⁠12 This Joint Vision remained valid during the transformation of EUPM into the third mandate, for 2010 and 2011, and therefore formed the basis for the entire Mission Implementation Plan⁠13 of EUPM between late 2008 and mid 2012.

On basis of this agreed vision, EUPM devised, in cooperation with all domestic partners including Ministries, its own Strategic Objectives on assisting domestic agencies, and kept partners permanently appraised on progress in implementation⁠14. EUPM advised domestic interlocutors to follow the same methodology and to identify those strategic objectives that would direct their respective institution’s development towards the jointly agreed vision. With significant energy, EUPM advised on the benefits for domestic organizations to place their mid- and long term commitments on the basis of own visions and strategic plans, and continued to do so until the end of its mandate.⁠15 Throughout the following years, progress on the level of individual agencies could be noted, and on cooperation between agencies on tactical and operational levels. However, the non-conducive state of political dialogue in BiH as a whole presented huge challenges to systematic, strategic, and institutionalized development contributing to joint aspects of law enforcement.⁠16

Both the approach to systematically strengthen capacities on individual organizational level and to strengthen the overall, or joint, capacity fighting organized crime and corruption had followed one structured and documented Mission Implementation Plan: Based on the Joint Vision and the Strategic Objectives that were devised from the Joint Vision, constituting the fundamental framework of EUPM’s assistance, a next step identified the main processes that were identified as crucial in achieving progress. On this third level the desired end state for each process, defining the end of EUPM assistance, was documented. This allowed for later benchmarking. Both at the beginning of 2009,⁠17 and at the end of of 2009⁠18 for the period 2010/2011, this step in identifying a coherent EUPM assistance was meticulously discussed with domestic actors. Attention should be given to one detail of the Business Plan for 2010/2011: It includes a  needs assessment for each  process. In other words, the Business Plan includes a description of gaps in the capacity of the system of law enforcement in fighting organized crime. Both the identification of this need, and the documentation in the Business Plan, included full inclusion of all domestic actors, including the Minister of Security and the entity Ministers of Interior in the Federation of Bosnia and Herzegovina and the Republica Srpska. Wishing to stay neutral in a documented assessment of gaps as far as individual agencies were concerned⁠19, EUPM kept a needs assessment on a level that described the overall capacity of the system, including its deficiencies. By this, EUPM managed to find appreciation and support for this Business Plan by all relevant actors at all levels.

As a fourth step, EUPM described and documented every single support action by all its actors that were undertaken as a contribution to processes as described in the Mission Implementation- (MIP) or Business Plan (BP)⁠20. Thus, EUPM was striving for directing its decentralized resources, deployed into Headquarters and Field Offices, into a coherent support to seventeen agencies in the area of law enforcement, and several interlocutors in the criminal justice system, including the High Judicial and Prosecutorial Council and the State Prosecutor’s Office. In addition, the methodology used an IT-based distributed reporting system that enabled EUPM to monitor development, and to automatically generate progress reports that were regularly received by the Civilian Operation Commander⁠21.

Within EUPM’s twin-track approach, HoM decided to strategically focus his contribution to the overall assistance to the common undertaking strengthening the combined, or joint capacities of the entire system. EUPM conducted proactive outreach to important bilateral contributors to BiH security and Rule of Law institutions. EUPM continued to participate in coordination mechanisms, on operational and strategic level, with the Office of the High Representative (OHR), and especially intensified the already close cooperation between EUPM, the EUSR, and the EU Delegation. On the other hand, coordination between EUPM and EUFOR gradually moved from operational to strategic levels, following the increased capacity of domestic law enforcement, demonstrated on operational⁠22 and crime fighting level.

In late summer 2008, the US ICITAP had embarked on actively initiating and supporting informal meetings between a group of Heads of law enforcement agencies, and the State Prosecutor. Whilst such meetings may appear to be a fundamental layer of practical cooperation in most jurisdictions⁠23, they were not a reality in BiH at that time. Rather, participants would later acknowledge that they were not even having such talks beforehand, beyond a case-by-case level. EUPM supported this activity, led on HoM level, from autumn 2008 on. Between 2009 and 2012 these coordination meetings were mentored and supported by ICITAP and EUPM in a team effort.

In EUPM’s eighth Six-Month-Report⁠24, HoM noted: “State level agencies and police services on entity, cantonal levels and Brcko District, including the State Prosecutor continued to communicate, coordinate and cooperate at strategic level on a monthly basis and institutional arrangements are being developed at technical level. However, synchronization at the political level remained near impossible apart from issues related to European partnership requirements such as changes and harmonisation of criminal codes. EUPM’s support, joint with international community and bi-lateral partners, is yielding results in deepening a more systematic interaction between law enforcement agencies, yet this was insufficiently mirrored at the ministerial level where these efforts have been met at times with suspicion and even open obstruction.”

A positive assessment was noted in the following, ninth SMR⁠25, with HoM reporting: “The Mission successfully promoted increased cohesion among top police officials in regular meetings, including a joint study visit to Germany. These efforts are starting to be underpinned by enhanced inter-ministerial cooperation. At the technical police and prosecutor level, the Mission has no indication for a change of constructive attitudes. The progress of Bosnia and Herzegovina in fulfilling the requirements of the visa liberalization road map indicated that there is domestic ability and willingness for legislative and regulatory change in line with clear EU requirements.”

The reporting period covered with the tenth SMR⁠26, ending with October 2010, marked  the beginning of a slowing down in that development, leading to more concern in later periods. Whilst HoM continued to note operational success in cases related to the fight against organized and other serious crime, and increasing cohesion amongst top police officials, he could not confirm further and enhanced inter-ministerial cooperation, as he had done in the previous report. Rather, HoM noted no systematic inter-ministerial cooperation, limitation of cooperation to individual cases, and difficulties in institutionalized cooperation and coordination on technical level.

The decision of the Council of the EU in November 2010 to lift the visa requirement for short-term stays in the Schengen area for citizens of Bosnia and Herzegovina holding a biometric passport was based on the achievements recorded in the fight against organized crime and corruption. Arrests in December 2010 in Una-Sana Canton removed the leadership of the cantonal police, and an earlier operation in September 2010 led to the arrest of significant numbers of Republika Srspka and Border Police officers. EUPM noted: “Police and prosecutors continue to show determination to fight complex and challenging forms of crime and corruption, although concrete improvements are needed particularly in regards to police/prosecutor communication. Three factors were conductive these achievements: (1) First, the visa dialogue served as a catalyst. (2) Second, the nascent regular operational cooperation of senior law enforcement officials yielded results, as cases of blatant crime and corruption could be tackled successfully because, (3) third, the overall capability has increased logically as a result of domestic efforts and EU and international assistance over the last decade and could be made operational to lead more complex investigations, including throughout the country and with neighboring countries.” EUPM pushed LEAs not to rest on these successes, since neither the nascent operational cooperation had reached a satisfactory degree of sustainability nor could it be expected that organized crime would not adapt. Given that assumption, EUPM noted that success may only continue if law enforcement continues to improve.

In its eleventh SMR⁠27, EUPM continued to note the regular meetings between Police Directors and the State Prosecutor, but stressed the necessary “strong support of EUPM and the US International Criminal Investigative Training Assistance Programme (ICITAP)”. The mission hosted a study visit to the German Federal Law Enforcement institutions in Berlin, in cooperation with ICITAP, which hosted a study trip to the US. EUPM prepared a further introduction to European law enforcement cooperation structures with EUROPOL, EUROJUST, FRONTEX, OLAF and the European Commission, planning this for May 2011.

In autumn 2011, with its twelfth SMR⁠28, EUPM indicated that the political gridlock of the past period was reflected by slow progress in the law enforcement and criminal justice sector. The controversy about State level versus entity levels competences in the areas of law enforcement and criminal justice continued. Despite stable operational cooperation, no progress could be registered in the further institutionalisation of coordination mechanisms between State, entity, Brcko District and cantons.  “Cooperation cannot move beyond the agreements made as a result of the police reform and the visa dialogue.”

The efforts of EUPM to foster institutionalized cooperation, with a wide range of instruments based on an open partnership approach, are well documented. They include, inter alia, (1) comprehensive institutional support to newly founded agencies, such as the Directorate for the Coordination of Police Agencies; (2) assistance to agencies and institutions of law enforcement and criminal justice on all levels; (3) participation in support activities of the larger International community in preserving and strengthening State level security and rule of law institutions; (4) participation in fostering regular coordination; (5) frequent outreach of HoM to Heads of institutions and Ministers on all levels; (6) systematic use of media; and (7) sponsoring of incentives for the senior management within security and rule of law, through convening seminars, organization of study trips under DHoM and HoM mentorship and participation in respective activities of international partners, notably from the US, and within the EU family⁠29.

In sum, EUPM could report considerable progress, throughout 2009, 2010 and 2011, in further strengthening  the capacity of individual agencies and institutions. At the same time, the support to informal coordination mechanisms was also yielding significant results, but confined to an operational level. EUPM reports do document a long and widely recognized series of joint operational activities of law enforcement and prosecutors. EUPM could use these successes for strong public messages that played in favor of law enforcement, calling for further development into the right direction, and towards institutionalization of such efforts, including through coordination of policy and strategic activities on the level of involved Ministries.

Thus, from the end of 2009 on, EUPM began to advise national partners to increase the cooperation, by making it more systematic and strategic, referencing to best practice within Member States of the EU. Though this was partly leading to the establishment of working groups within the informal coordination meetings, it also led to an increasing suspicion within some political quarters, notably in the Republic Srpska, that this would be an hidden re-entry into police reform issues⁠30. Ministerial/political positions on the call for institutionalization⁠31 became, over time, increasingly antagonistic. This reflected the worsening political dialogue and increasing antagonization of public political statements on the role of State level institutions, and moreover, on the role of the State itself⁠32.

Subsequently the Strategic Review of the EUPM, conducted by the EEAS’ Crisis Management Planning Directorate in early 2011⁠33 both identified the satisfactory progress made towards sustainable development on the level of individual institutions, and to assess the development in the area of development of joint capacities as not sustainable yet.

The call for institutionalization of cooperation that was promoted by EUPM was inconclusively and insufficiently responded to on political level. Openly antagonistic political positions on fundamental issues slowed down, partly even paralyzed necessary development, which can be exemplified within the given EUPM documentation⁠34.

The continued call on Bosnia and Herzegovina to find domestic solutions that enable its complex administrative structure to effectively and efficiently tackle serious and organized crime was prominently voiced in the Progress Report of the European Commission⁠35 in October 2011:

“One year after the general elections of 3 October 2010, the process of establishing executive and legislative authorities remains to be completed with the establishment of a State-level Government. The failure to reach a political agreement on the formation of authorities has hampered Bosnia and Herzegovina’s progress on much needed reforms, … . 

A shared vision by the political representatives on the overall direction and future of the country and its institutional setup is lacking. The EU accession process requires political will and functional institutions at all levels with an effective coordination mechanism on EU matters. … 

Overall, Bosnia and Herzegovina made some progress in the field of police, albeit uneven. Institutions created by the police reform laws were established at a slow pace. The lack of institutionalised cooperation between all law enforcement agencies and the limited strategic guidance remain challenges to achieve more efficient policing. …

There was little progress in fighting organised crime. Organised crime networks continue to operate throughout Bosnia and Herzegovina and have a negative impact on political structures and the economy. A number of large-scale operations were nevertheless successfully conducted, thanks to the cooperation amongst different law enforcement agencies. Implementation of the strategy for the fight against organised crime continued. However, lack of adequate resources limits its effectiveness.”

On occasion of the presentation of EUPM’s last six month report before entering the 2012 transition period, HoM noted in his oral presentation⁠36 to the Political and Security Committee, 04 October 2011:

“The political gridlock resulted in a visible deterioration of the strategic cooperation. EUPM and international community partners constantly recalled the need for it, including to Ministers. We stressed the need to utilize the informal, albeit regular, cooperation mechanisms also for the development of operational strategies and policies to increase BiH’s capacity to fight organized crime and corruption. Therefore, we presented the EU policy cycle for organized and serious international crime as a model. … Overall, and too easily, law enforcement and criminal justice cooperation can become hostage of politics. The key to sustainability remains in the hands of the political decision-makers. They have to allow for a qualitative step towards more institutionalization of the ad-hoc cooperation. The EU provides a model on how institutionalization in this sensitive area can grow. I will continue to encourage BiH partners to look how EU member states jointly organise the strategic aspects of the fight against organized crime and corruption. … We continue, in close cooperation with the EU Delegation and with international partners, and in consultation with the EUSR, to work on finding solutions how to assist in this complex and long-term process of institutional development. … The upcoming transition of EUPM is part of a medium-term paradigm shift. Further progress would need to be accompanied by a re-calibrated approach, fostering the introduction of EU policy tools in the fight against organized crime and corruption. This will help BiH to meet the complex technical and policy needs coming from European integration. EUPM has laid groundwork for this. In the field of capacity building and knowledge transfer the European Commission is taking a lead through several IPA-projects which have started or are about to start. The fragility of the overall system remains painfully exposed. EU instruments need to have a maximum strength to shield the system from attack, and erosion. If the state level was to be left to its own devices, roll back and decrease of joint activities is likely.”

Between 2010 and May 2012, thirteen informal coordination meetings have been conducted, on basis of a co-chairing between the Directorate for Police Coordination and a rotating host. EUPM and ICITAP have made assistance to this mechanism a priority, and have stressed the need for a more institutionalised setup, including the need of unequivocal support by relevant Ministries. The amount of energy invested in this, including through the conduct of high-profile study visits to Europe and the United States, and through instrumenting all available diplomatic and political support in stressing the importance of systematic coordination, is more than considerable. Beginning in 2010, the position of the Director of the Police of the Republica Srpska and the RS Minister of Interior towards these meetings have become increasingly critical. Republika Srpska’s participation in the group was discontinued with the successful conclusion of the visa dialogue at the end of 2010. The perspective of visa liberalization and the conditions set-up in the road map, coerced Republika Srpska into cooperation as the failure to deliver visa liberalization for RS citizens could have clearly been attributed to the behaviour of the RS authorities. In turn, cooperation withered away once the prize was gained. This explains, why despite continous and labor-intense outreach on the level of Principals, the RS Director of Police has failed to attend these meetings as of 2011 and until today (May 2012). It has become obvious that the reasons for this rest with well-known political differences within the political system in Bosnia and Herzegovina, and the position of the leading RS political parties to insist on a maximum autonomy. The RS insists on the principle of maximum representation of the BiH level through the constituting entities, thus minimising the role, at times even attempting to abolish State level institutions, including in the field of the Rule of Law.

Any further progress as outlined in the European Commission Progress Report as of 2011 will therefore depend on the ability of the political system in Bosnia and Herzegovina to conclude on a joint way forward. The necessary political attraction can only come from an integration of BiH into transatlantic and European structures. Therefore, further domestic efforts on open issues that are documented in this paper, both on possibilities of the system to restructure its costly and inefficient structure of law enforcement, and to increase systematic cooperation inside the system, have to be placed into the process of EU enlargement, and regular police and judicial cooperation between EU law enforcement agencies and BiH agencies.

1 Document st14035/05 RESTREINT UE, 04 November 2005

2 Document st13592/07 RESTREINT UE, 08 October 2007

3 Document st15419/11 RESTREINT UE, 14 July 2009

4 Document st12069/09 RESTREINT UE, 12 October 2011

5 Inter alia, through co-chairing the Directorate for the Implementation of Police Restructuring (DIPR)

6 As noted in EUPM SMR as of 14.05.2008

7 EUPM six-monthly report as of 30 September 2008: HoM notes implementation behind schedule, e.g. on pg. 3.

8 As an example for many, EUPM kept reminding on the urgent need to comprehensively fighing corruption, through its media campaigns (see for many: http://www.eupm.org/Detail.aspx?ID=3859&TabID=9, attachment 1) until the end of the Mission itself, and continued to join in open criticism voiced by others, related to the unsatisfactory development of relevant capacities, such as the Agency for Anti-Corruption. See attachment 2, as an example: “Bosnia Daily No 2732 as of 19 March 2012, pg. 4: “TI and Open Society Fund send open letter to BiH Parliament and Council of Ministers – Corruption undermines nation building”; and attachment 3, an article in Balkan Insight as of 20.03.2012 in criticism voiced by a DG Enlargement representative.

9 7th SMR, distributed to EU MS 25 March 2009

10 As one interlocutor put it: “It is good that the times of Police Reform are behind us, so that we can talk again.”

11 Deliberately with no specified timeframe, especially because so many actors were involved and not accurate estimation would have been realistic anyway.

12 Attachment 4: Version valid for 2009

13 Attachment 5: Version valid for 2010, 2011, and the transitional period until mid 2012

14 Atachment 6 documents EUPM’s strategic objectives for 2009, attachment 7 documents the EUPM strategic objectives for 2010 and 2011. Both are founded on the respective joint vision.

15 HoM’s personal and EUPM’s official archive document a large number of related efforts, including through the conduct of high-level study trips, presentations on occasion of law enforcement coordination meetings, and through individual outreach.

16 Aspects that would require a systematic cooperation and coordination of several or all seventeen agencies in the area of law enforcement, and the criminal justice system, beyond an operational, or day-today- level.

17 Attachment 8: EUPM Business Plan for the period of 2009

18 Attachment 9: EUPM Business Plan for the period 2010/2011

19 Since it would have been confirmed in privacy only, if at all and vehemently disputed in public statements.

20 As it had to be re-named due to a harmonization effort of the CPCC over all civilian CSDP Missions in late 2009.

21 A full description will be subject to different writing, within EUPMs legacy documentation.

22 EUPM regularly reported about increased and demonstrated capacity of the BiH law enforcement to tackle highest challenges of operational nature, such as the handling, for example, of the Srebrenica annual commemoration event, large scale demonstrations, and situations of potential public disorder.

23 And especially within those that are comprised of multiple layers of agencies, like in federally structured systems.

24 SMR as of 02 October 2009 – RESTREINT UE

25 SMR as of 26 March 2010 – RESTREINT UE

26 SMR as of 01 October 2010 – RESTREINT UE

27 SMR as of 31 March 2011 – RESTREINT UE

28 SMR as of 30 September 2011 – RESTREINT UE

29 The Mission meticulously synchronized with the programme planning under the Instrument for Pre-Accession (IPA), and encouraged, assisted to, and participated in seminars, workshops and other activities under TAIEX. Close cooperation with ILECU projects and a regular participation in activities under DCAF’s regional border strengthening activities were a permanent reality on all levels of the Mission.

30 The open and frank conversations, held in a very friendly and cordial atmosphere, between HoM and Ministers, on State and entity level, are well documented. They include individual outreach, regular consulting, participation of Ministers in coordination meetings, and events organized by EUPM. As one prominent example, HoM facilitated an open exchange of views between Minister for Security and entity Ministers of Interior with senior representatives of DG Enlargement and the Head of the EU Delegation, during a dinner at his residence, 2010.

31 In which EUPM was strongly supported within the EU family, within Services of the EEAS and the European Commission, and by international partners

32 Attachment 10 – Media transcript of an interview of RS President Dodik to RTRS, in which he is quoted as saying “BiH is not a state, but a state union that should provide services to its parts,”, with which he reiterates a statement that had been made on numerous occasions, and which is disputed in other political groups in BiH, and within the International Community.

For a more comprehensive narrative and analysis of underlying, all too often antagonistic political forces, see respective political analysis within EUPM’s legacy documents.

33 ARES (2011) 400825, RESTREINT UE

34 As prominent examples, EUPM’s assessments on the shortfalls related to systematic comprehensive sharing and assessment of intelligence in BiH and the shortfalls of operational contingency planning for situations that require the immediate and prepared response of several agencies, on occasion the attack on the police station in Bugojno in 2010 and the attack on the US Embassy in Sarajevo in 2011.

35 Attachment 11

36 Entire talking points available on request

Chapter Four – On Accountability

“… operational independence does not mean being above the rules that apply to all of us.” 

(Vijay Nambiar, Chef de Cabinet of the United Nations Secretary General; Letter to all staff 23 July 2010, on allegations that the SG would inflict on the operational independence of the United Nations Office for Internal Oversight (OIOS), as indicated in a letter to the SG by the outgoing Under Secretary General for OIOS, Inga-Britt Ahlenius, 14 July 2010.)

“14. The police shall enjoy sufficient operational independence from other state bodies in carrying out its given police tasks, for which it should be fully accountable.

59. The police shall be accountable to the state, the citizens and their representatives. They shall be subject to efficient external control.

60. State control of the police shall be divided between the legislative, the executive and the judicial powers.”

 (The European Code of Police Ethics, Recommendation Rec(2001)10, Council of Europe, 19 September 2001⁠1)

The support to creating accountable policing in Bosnia and Herzegovina has been front and center for all assistance by the international community under the Dayton Peace Agreement⁠2. Within EUPM’s fundamental documents, the term “accountability” itself was used for the first time in 2005. Whilst EUPM’s Operational Plan for 2006 and 2007 already uses the term on task level, the CONOPS for 2006 and 2007 is using this term⁠3 only within the paragraph describing the political objectives of the EU⁠4. Essentially, the EU described a target condition for the police within the aspirations of that time, that is, within the context of police reform.

The CONOPS for the period 2008 and 2009⁠5 continues to use the term in the paragraph describing political objectives, however, in a refined phrasing, taking the then emerging results of the Police Reform process into account: “In the medium term, it is to set BiH irreversibly on track for EU membership within the Stabilisation and Association process. To achieve this objective, strengthening the rule of law and the development of an effective, independent and accountable⁠6 police service (as identified by the Directorate for the Implementation of Police Restructuring) are crucial.” For the first time since 2003 the term is also used within the context of EUPM’s mandate. The three tasks that were identified already in the OPLAN for the previous period were now lifted on CONOPS level: (1) “Supporting the Police Restructuring process and reform efforts”; (2) “Assistance in the Fight against Organised Crime”; and (3) “Support to the local police accountability”.

Neither the CONOPS for 2008 and 2009 nor any other fundamental document did define, or explain, the term “accountability”. Elaborating on the context in which the term was understood, the CONOPS stated that “substantial progress has been made to reach acceptable standards in terms of police internal and external control, mainly through the establishment of Professional Standards Units, Internal Control Units, Public Complaint Bureaux and Independent Selection and Review Boards. Particularly against the backdrop of an un-restructured policing system, there is still a need for support and encouragement in designing and implementing sustainable control, inspection and accountability procedures and mechanisms at the various levels of the fragmented police system.” Subsequently, EUPM was tasked “to conduct inspections in order to identify systemic deficiencies in relation to inspection and accountability procedures and propose solutions to the BiH authorities”.

The CONOPS for 2010 and 2011⁠7 moved the political objective to achieve accountable policing into the section describing short-term objectives. Furthermore, in it’s Mission Statement, this CONOPS moved work on accountability into “residual capacities” of the EUPM: “As part of the broader rule of law approach in BiH and in the region, EUPM, while retaining residual capacities in the fields of police reform and accountability, will primarily support BiH relevant Law Enforcement Agencies in the fight against organised crime and corruption, notably focusing on State level Law Enforcement Agencies, on enhancement of the interaction between police and prosecutor and on regional and international cooperation.” Within a separate tasks section on “accountability”, EUPM was essentially tasked to conduct “inspections in order to identify systemic deficiencies in relation to inspection and accountability procedures and propose solutions to BiH authorities”.

From the perspective of the above, one could raise the question whether towards the period 2010 onwards there existed an understanding of a positive development in relation to accountable policing, allowing for even more focussing on aspects of assistance in the fight against organised crime and corruption.

In January 2009, EUPM dedicated an edition of its own “Mission Magazine” to the topic accountability⁠8. Mission Magazine 56 pointed to EUPM’s understanding the term and general understanding of police accountability as being split between (1) an internal dimension – the conduct of police officers, and an (2) external dimension – “the performance of the police service toward its citizens, ideally, the citizens would be the ones to engage in the determination of said targets and the performance assessment of their police service⁠9”.

EUPM’s functional understanding as of 2009 (and before) is confirmed within the United Nations Office On Drugs And Crime (UNODC) 2011 “Handbook on police accountability, oversight and integrity”⁠10, where one also finds a definition of the term itself: “…accountability is defined as a system of internal and external checks and balances aimed at ensuring that police carry out their duties properly and are held responsible if they fail to do so. Such a system is meant to uphold police integrity and deter misconduct and to restore or enhance public confidence in policing. Police integrity refers to normative and other safeguards that keep police from misusing their powers and abusing their rights and privileges.”

Following this distinction into internal and external dimensions, EUPM’s activities can be grouped into two lines of action: (1) EUPM conducted a greater number of inspections on various issues, shared the results with domestic counterparts, and monitored their implementation. (2) EUPM invested a very high amount of work into the assistance on legal and regulatory matters related to law enforcement on all administrative levels that form the framework of any police accountability, both internal and external. This legal and regulatory work of EUPM existed already during the early years of EUPM, and continued to do so until its end.

EUPM’s assistance on strengthening the internal dimension of accountability of the police was yielding results, including by way of conducting inspections. Domestic law enforcement was increasingly becoming able to decisively tackle own affection by crime and corruption⁠11. However, towards the end of EUPM’s life significant challenges surfaced in the realm of legal mechanisms that ensure the external dimension of accountability of police in a larger system of governance, and towards citizens. The visible face of these challenges are political discussions attempting to change an accountability system that was established by the International Community before 2002. More underneath the visible discussion remains the long term need to further develop and deepen a fundamental democratic system of values, on which any legal framework rests.

EUPM’s early work on legal frameworks happened within the larger context related to the international community’s engagement “post Dayton”, notably the role of the OHR and the United Nations International Police Task Force (IPTF). EUPM followed on at a time when, under the mandate of a strong OHR (reinforced with the arrival of Lord Paddy Ashdown in 2002), the General Framework Agreement for Peace (GFAP) was being followed and the reform agenda was progressing with a high amount of energy on the side of the International Community. All this happened in the complex domestic political reality of Bosnia and Herzegovina.

Preventing political interference in operational police work has been one of the major principles strictly defended by EUPM, following on to IPTF that had worked on this principle before: The reality of a previously communist policing system and culture, already in transition but then affected by war, forced the International Community into decisive and coercive steps. Downsizing of police forces from estimated 80.000 post-war to approximately 17.000 by 2002, sanitising ranks (known as the de-certification process) and establishing a legal framework that shielded the Police from political influence were the bold tasks of those days. In this context, the changes within the legal framework effectively turned the system upside down in relation to pre-war command&control structures: Compliance with a new legal framework was made a pre-condition for certifying police agencies.

In the Federation of BiH, Laws on Internal Affairs (LIA) regulate the institutional issues related to status and functioning of the Ministries of Interiors and Administration of Police as well as their institutional competencies and authorities of the Ministers and Director of Police/Police Commissioners (DoP/PC). Therefore, LIA exist, and were developed, on entity and cantonal level. Together with “Laws on Police Officials” (LoPO) they establish the governance context  for law enforcement. The LIA also include provisions as per cooperation with other institutions and other administrative matters i.e staffing issues, by-laws etc. and prescribe in detail the selection and appointment procedure of the Director of Police/Police Commissioner.⁠12

The Republica Srpska authorities adopted a draft LIA in 2003⁠13, which kept the provisions related to Independent Selection and Review Boards (ISRB), which were included in the previous LIA from 1998.

In Brcko District exists a “Law on Police of Brcko District”, addressing the same topical issues as LIA do on entity and cantonal level, but with specific reference to the specific situation in the District, namely that the Chief of the Brcko District Police answers directly to the Mayor of Brcko District. A LoPO, identical to those in other BiH jurisdictions, exists too.

On State level, the legal framework for police is mainly characterised by laws that establish the respective law enforcement agencies (e.g. Law on Border Police, Law on State Investigation and Protection Agency etc.), and one Law on Police Officials (LoPO) for all agencies. Aspects of specific agencies that would, on entity and cantonal level, be regulated in LIA, can therefore be found within the laws establishing the individual State level agency. Aspects of the Ministry of Security are regulated in general laws, unlike on cantonal and entity level, where the LIA cover these aspects too.

Following the post-Dayton development, including the establishment of State level institutions only at a later stage⁠14, the development of the legal and regulatory framework for the police therefore happened in sequences, with the development on entity and cantonal level being the first, and oldest.

As already indicated before, the concept of Police Commissioners (PC) and Directors of Police (DoP) independence from Ministers of Interior (MoI) and their selection by Independent Boards (ISRB) was new for the BiH policing system and externally imposed and implemented by the IPTF. MoIs were formally and forcefully detached from police power. More precisely, the ISRB system was introduced with the imposed amendments by the High Representative in 2002 at FBiH, cantonal and Brcko levels and with adopted amendments to RS LIA during duration of the mandate of UNMIBH. Although State Border Service (later Border Police) was already existing at that time and SIPA was also established later on, no ISRB was established at State level until adoption of Police Reforms Laws⁠15 in 2008, which established the DPC and other support agencies, in addition to an Independent Board, Citizens Complaints Board, and Board for Complaints of Police Officials for state level agencies.

The LoPO was first adopted at State level in 2005, which was followed up at FBiH level in the same year. Starting from 2006 until 2008, LoPOs were adopted at Brcko and cantonal level. Harmonizations of LoPOs were completed as of 2010 with the adoption of RS LoPO.

The new Law on Border Police was adopted in 2004, which was followed also by the adoption of a Law on SIPA in the same year, through which SIPA became an investigation agency. The principles of these State level laws as per legal and budgetary status of the police were among the inspiring elements for adoption of a new FLIA in 2005, in addition to necessity of harmonizing the 2002 version of FLIA, which had been imposed by HR, with the adopted FLoPO in 2005.  The new FLIA that was adopted in 2005 kept the provisions related to ISRB.

An initiative of revising CLIAs was launched in 2007, but due to the substance of the presented concept as well as different views on crucial features of the draft, and despite an intense engagement of the International Community  under EUPM’s technical coordination, CLIAs were adopted only in Canton 3 (Tuzla) and Canton 5 (Gorazde) in 2010. Within the Federation and in all other cantons only a drafting stage was reached. Since end 2008, EUPM reinforced further and systematic efforts to assist in harmonisation of LIA and LoPO, and incorporated this into the Mission Implementation Plan.

In April 2011, following the election period of 2010, cantonal Ministers of Interior and the Minister of Interior of the Federation launched a new initiative of harmonisation. This initiative was intended to make the drafting process of the FLIA and the CLIAs a main priority within police legal and regulatory framework issues. To the surprise of some, a different accent to the substance of the draft was introduced into the public discussion, emphasizing the need for improved “civilian oversight”, and assuring safeguards on “operational autonomy” of the police. EUPM continued with its policy of technical assistance and was consulted on whether the new aspects, namely the intent to increase accountability of Police Commissioners/Directors towards Ministers would be in line with EU viewpoints⁠16.

During the same time period, EUPM observed development within some ISRB that gave raise to the question as to whether any system that is designed for ensuring accountability can, in the long run, function without being incorporated into a larger system of checks and balances⁠17: Inter alia, in late 2010 EUPM monitored and supported “Operation KASTEL”, a large scale investigation into the involvement of some senior leadership of the Police of Una-Sana Canton, including the Police Commissioner himself, into organised crime, corruption, and other forms of crime. The subsequent arrests shook the system and created BiH-wide long-lasting attention. On a local level the Minister of Interior undertook visible efforts to cope with this situation. He kept close contact to EUPM leadership. At later stages of the CLIA reform discussion, he and other Ministers of Interior referenced this case when pointing at the accountability deficiencies that they correctly perceived⁠18: Operation KASTEL includes allegations that the then Police Commissioner successfully corrupted the ISRB, safeguarding the ISRBs support for his second term⁠19 of Office.

An example on a structural level for EUPMs concerns can be demonstrated by reference to an existing ISRB: The President of this ISRB is a Chief Prosecutor in the same jurisdiction; the Deputy President is the President of the Appellate Court of that jurisdiction; one member is a Police Commissioner of a neighboring jurisdiction; another one a Deputy Director of a State level law enforcement agency and former Police Commissioner of a neighboring jurisdiction; another member is a former Chief of a neighboring Public Security Center/RS MoI, just two members are civilian representatives.  This ISRB showed malfunctions in 2011 when three members launched reports against each other.

The declared intention of the move by Ministers of Interior on Federation and cantonal level on how to redesign lines of accountability of Heads of police agencies was to address the relation between Police Commissioners / the Federation Director of the Police Administration and respective Ministers of Interior. The core can be best described through what Federal MoI Kurteš himself stated in a meeting with EUPM HoM⁠20: “There is not much to change, except for a clear statement that the Minister is No 1 in the Ministry and that the DoP/PC shall be answerable to him. The problem is with decreasing authority of the ministers and failing coordination, and the reason is not the Law, rather the vanity of police chiefs and ministers.”

The intended reform set the stage for diametrically opposed assessments on the motivation behind. All too often dogmatic and fundamental views dominated, too rare were occasions when substance was discussed: For some, the reform aimed at increasing accountability of the system governing policing, whilst explicitly stressing the operational independence of the police; for others the motivation behind was nothing more and nothing less than the blunt attempt to exert undue political influence over the police: To politicise policing. EUPM agreed with the assessment that policing was more and more politicised, but reminded internally of the fact that amongst those who declared that their intent was to safeguard the Police from undue political influence, there was considerable political motivation along the line of political parties dominating the scene in the Federation of BiH: An increasingly antagonistic stance developed between so-called “platform parties”, mainly the SDA and the SDP. Both Ministers and some Heads of police agencies appeared to exchange political arguments along the line of their respective political affiliation⁠21.

Typical socio-psychological reactions of individuals and groups to fundamental reform and change⁠22 add: The reform initiative aimed (and aims) at changing accountability procedures that were created under the UN IPTF and the OHR until 2002. Thus, Police Commissioners and the Director of the Federation Police were confronted with a ministerial intent to make them answerable to them, which was not the case for more than ten years. EUPM observed several long-lasting examples of strained relationships between a Minister and a Police Director or Police Commissioner, at times beyond acceptable limits⁠23, at times even including publicly visible hostility and proxy-wars conducted through media.

By the end of 2011, the differences of opinion and related issues regarding Law on Internal Affairs (LIAs), both at Cantonal and Federation level, had not changed much, in particular those to do with the ministerial level versus police commissioners/directors. However, EUPM had used its advisory role with the law enforcement agencies and succeeded in encouraging the Federal and Canton Sarajevo Ministers of Interior to submit their drafts for opinion to the European Commission for Democracy through Law, called the Venice Commission. Further to this EU perspective, the EU Delegation suggested to domestic counterparts to slow down speed, to allow for and to accept advice.

The Venice Commission’s assessments on the draft FLIA and Canton 9 LIA are publicly available⁠24. The Commission’s opinion was quickly absorbed into most favorable public interpretation of either side. On occasion of frequent requests from interested media to have EUPM commenting on this, EUPM reminded to carefully assess the substance, and to recognise that the Venice Commission had not concluded that the draft laws were inflicting on the contested operational independence of the police. Rather, the Commission had welcomed the draft laws⁠25.

Essentially, the public discussions towards the end of 2011 and throughout the first months of 2012 brought more visibility to the fundamental political reason for the conflict: Disparities between the platform parties of SDA and SDP over the federal and cantonal LIAs proposed by SDP Ministers of Interior brought a new crisis to the Federal coalition government in mid November. The BiH Minister of Security (SDA), and other top SDA party officials sharply criticized SDP’s legislative initiative. In return, the Federal Prime Minister (PM), (SDP), answered back that it was scandalous for an SDA member of the state parliament and SDA vice-president to state that “the police commissioner/director should be responsible to the Independent Board, to the parliament, maybe to the government, but…not to the minister”. The Federal PM qualified this as an undemocratic statement and the proposal that the Police should not be answerable to the Interior Minister as unprecedented in the European practices. It is fair to summarize that leading political parties alleged each other of attempting to increase political control over the Police.

According to EUPM’S record, police commissioners/directors of police and political office holders use to swap regularly and this appears to be the case for all current commissioners. There is an obvious dependence of incumbents of senior police functions from political parties or interests. In an overall political environment with most political parties formed along ethno-political lines such a regular swapping tends to even increase the politicization of police work.

The Independent Selection and Review Board (ISRB) proved to be heavily politicized as well. The ISRB proved to be ineffective and unable to exercise their review role and hold commissioners accountable. In this perceived vacuum in the system of accountability ministers attempted to fill in.

The ensuing EUPM internal discussion shaped even more the clear formulation of policy⁠26. This process involved, to a considerable extent, coordinating activities within the EU and larger International Community. In essence, EUPM kept maintaining a position that focussed on guiding principles that were justified by International and European standards and requirements. EUPM was wary of not getting drawn on either domestic battling side⁠27, as was frequently attempted. A comprehensive dialogue within the International Community continued to confirm a joint view on important principles such as (1) “operational independence”, (2) accompanying requirements of the side of financial, human and material resources that enable exercising this independence, and (3) strong statements on policing accountability.

As a result of the process towards the end of 2011 and throughout the transitional months of 2012, notably taking into account the most important and helpful analysis of the draft LIA by the Venice Commission, EUPM was able to publicly shape its policy position on pressing problems governing police. Subsequently, EUPM devised a communication strategy, on HoM level, that led to a systematic communication of this policy through the media⁠28.

In conclusion, the process of reform of the legal and regulatory framework within the Federation of Bosnia and Herzegovina is key for maintaining, sometimes even restoring, and increasing accountability of police, whilst ensuring their operational independence. The political controversy in which some Heads of police agencies have taken a political side is far from over. Rather, at the time of this writing (May 2012), lines of conflict run deeper than ever, with visible hostility on the side of some Heads of police agencies towards relevant Ministers. Still, in some quarters the wish to solve this problem through international engagement is existing, but decisively rejected within the EU. A democratic discussion of relevant principles is in a political gridlock. The sincerity of motivation by some domestic actors has become an increasing concern of EUPM.

The development has led to an ever increasing EU synchronization in order to ensure consistency and coherence of messages, across actors and over time, including beyond the end of EUPM’s mandate. At this stage, the attempted domestic reform issue may get stuck in the fierce resistance by some players, which may lead, in turn, to further erosion on accountability of police forces, especially in the Federation. On the other side, if the reform progresses and manages to shape a public discussion on the role and accountability of police, it may well have larger implications within Bosnia and Herzegovina, by way of harmonisation. There is a an important view expressed by some Ministers of the Interior to EUPM HoM throughout 2011, referencing the objective of the reform to the situation within the Republica Srpska: On a technical level, the degree of accountability of that system is perceived as being better, by those Ministers within the Federation.

The development documented in this chapter is an example for the surfacing of a longer lasting challenge for BiH: The technical implementation of mechanisms for governance of policing can be achieved within the timeframe that was available in BiH from after the conflict until now. However, sustainability of any achievements depends on  cultivating underlying values. The development of a genuine domestic understanding of the guiding principles and values that shall guide the implementation of democratic governance is a process which, in the case of transformation of post-communistic societies, is requiring more time: EUPM has contributed to the technical development, and could make valuable contribution to the underlying democratisation process. However, the societal and political development in Bosnia and Herzegovina that will ensure sustainability of efforts by way of firmly implementing the necessary underlying values, requires other tools of assistance.

In BiH, the fragility of the achievements in the realm of accountability of policing is a direct function of the many years of deterioration of political dialogue between 2006 and 2012, with the absence of a State level government for 16 months until beginning of 2012. The increasing political selfishness has led to attempts to control the system, including by those who declare their good intention protecting it. The deeply rooted tradition to manipulate the public through media and the absence of strong civil society are conducive to such attempts.

However, an application of external coercive instruments is not an option: The potential of a structured dialogue within the EU accession context will greatly assist, on a technical level, related experiences within the Visa-Liberalisation process refer. An assistance to the development of a deeper and long-term strategy is recommended, focussing on values and relevant education. A begin to this could be made through putting the Rule of Law/Police Section of the EUSR to good use.

1 Attachment 1

2 As an example, reference can be made to systematic assessments of police agencies by the United Nations International Police Task Force (UN IPTF), called “Systems Analysis of the Police” at the end of its mandate, late 2002. Attachment 2 includes two examples, for the Federation and the Republica Srpska Administrations of Police.

3 Document st14035/05 RESTREINT UE, 04 November 2005

4 “The ultimate political goal is for BiH to join the EU as a sustainable, multi-ethnic, peaceful and democratic state. In the medium term, it is to set BiH irreversibly on track for EU membership within the SAP process. To achieve this objective, strengthening the rule of law and the development of an effective, independent and accountable⁠ police service (as identified by the Police Restructuring Commission) are crucial. In this context, success in the fight against organised crime is likely to be one of the determining factors in BiH’s progress towards Europe.”

5 Document st13592/07 RESTREINT UE, 08 October 2007

6 Emphasis by the author

7 Document st15419/11 RESTREINT UE, 14 July 2009

8 Attachment 3 – Mission Magazine 56 of 19 January 2009. The EUPM Mission Mag enjoys a large distribution and readership, within national and international circles. It is published bi-weekly and can be found under http://www.eupm.org. Often, articles from the Mission Magazine will be reprinted within domestic press.

9 Ibid

10 Attachment 4 –

http://www.unodc.org/documents/justice-and-prison-reform/crimeprevention/PoliceAccountability_Oversight_and_Integrity_10-57991_Ebook.pdf – United Nations, New York, 2011, ISBN 978-92-1-130307-0, eISBN 978-92-1-055037-6

11 See EUPM’s Six Monthly Reports for the period between 2009 and 2011, and reference to it in the chapter “On Institutionalised Cooperation”

12 EUPM promoted LIA templates, through strengthening legal and budgetary status of the Police as well as further detailing the provisions on cooperation issues, aiming to provide conditions for functioning of the Police in an operationally autonomous manner, while also substantially enhancing the authorities of the Minister and Government, to which Police should be fully accountable, in order to ensure a proper civilian oversight over the Police.

13 That version of RS LIA remained in force until January 2012, when a new RS LIA came into force. The new RS LIA is prepared to harmonize the LIA with the other legislation, especially with the RS LoPO that was adopted in 2010. The new RS LIA still kept the provisions related to ISRB and did not introduce any changes in the organizational structure of the Ministry and authorities of the Minister and Director of Police.

14 For example: Establishment of State Border Police (later renamed to Border Police) in 2000; Ministry of Security 2003/2004; State Investigation and Protection Agency in 2004, Service for Foreigners Affairs 2006; Directorate for the Coordination of Police Bodies in BiH 2008.

15 Law on Directorate for Coordination of Police Bodies and Agencies for Support to Police Structure of BiH and Law on Independent and Supervisory Bodies of Police Structure of Bosnia and Herzegovina

16 EUPM confirmed this in essence, outlining guiding principles, including through statements and speeches which HoM was invited to give. The harmonization of related views within the larger International Community proved to be more intensive. Throughout 2011, some differences in these views became publicly known through a combination of public statements.

17 For example, EUPM argued for an increased role of civil society and put a lot of efforts into the support to its development. The role of civil society, crucial for any transparent oversight over governance, including in this context, or, e.g. in the context of corruption, remains underdeveloped in Bosnia And Herzegovina.

18 Some were, in meetings to which EUPM was invited throughout 2011, internally and also in presence of the media, very vocal about the lack of accountability, and quality of service delivery, in the case of some Police Commissioners, and in relation to the structural weakness of the system allowing this, in general.

19 At the time of writing, the case is pending, therefore EUPM will not be in a position referencing to details.

20 2 June 2011

21 In several one-on-one conversations between HoM and domestic partners they confirmed this.

22 Which always creates fear, sometimes only because change is perceived as a threat to security, but also because change threatens structures that have arranged themselves comfortably.

23 Notoriously, and even with entirely different setups of Ministers and Directors, in the Federation. Likewise, the relationship between Police Commissioner and Minister in Canton 9 (Sarajevo) worsened beyond reasonable limits in 2010 and 2011.

24 http://www.venice.coe.int/site/dynamics/N_Opinion_ef.asp?L=E&OID=649

25 For several of such interviews, here the quotation of what HoM stated in an interview by “Slobodna Bosna”, 12 April 2012: “I note how domestic stakeholders interpret in different ways what the Venice Commission has written. There is a considerable difference between how interested parties see the Commission’s opinion. My view is that the Venice Commission did not say this is the best law that we have seen so far, but the Venice Commission said that it is acceptable within the framework of European practice and within the framework of drafting the laws. The Commission has also said there are parts that could be done better. But, it has not said that the draft law is about the imposition of political will.”

26 HoM had concluded policy discussions by way of written guidance already at earlier stages.

27 Including through a considerable number of written letters that were sent, by the Federation Director of the Police Administration and the Police Commissioner of Canton 9 to a large number of recipients within the International Community, alleging Ministers of exerting undue political influence, and even a criminal complaint filed by the Police Commissioner of Canton 9 against the Minister of Interior of Canton 9 on abuse of office, in March 2012.

28 As prominent examples, three items are referenced: (1) Early February 2012, HoM contributed an Editorial to a leading BiH newspaper (Oslobojenje) on “Governing the Police” which was reprinted within other media and also in EUPM’s own Mission Magazine (attachment 5). (2) 09 April 2012, HoM went on public record in the Banja Luka-based newspaper Nezavisne Novine (attachment 6). Finally (3), the same message was repeated in a comprehensive manner within the Sarajevo-based weekly magazine Slobodna Bosna, 12 April 2012 (attachment 7). The articles found widespread attention and were reprinted in electronic media.

Why, and How, to Exercise Control and Oversight Over Coercion, and Why Banning Torture?

/ stefanfeller / 1 Comment

In my second blog entry on Coercive Interrogation Methods, and on Torture, I have used a set of arguments related to some example legal frameworks and how they regulate and ban various forms of coercion. I have pointed out that there are some internationally recognized standards which are based on widely shared principles of how to preserve the rights of an individual, and especially the rights of the accused.

The core principles are enshrined in various sets of international law, and internationally accepted standards. I have also argued that the variety of national frameworks, sometimes allowing, sometimes prohibiting certain forms of coercion, should ideally refer to a minimum set of principles that the world believes in.

At least that is what I say, as a person, and as a representative of the United Nations: The Universal Declaration of Human Rights, International Humanitarian Law and other International Law should define the least common ground for all of us.

From there, the development of even more common ground is what happens on a global policy level. This is how, just as one of many examples, the UN Convention against Torture came into effect: The General Assembly of all United Nations Member States agreed on it, and subsequently individual UN Member States choose, or not, to become signatories to it. To date, many UN Member States have become signatories to this Convention. Which means that they commit to translate the principles and consequences of conventions like this one into nationally applicable law. Thus, this means the establishment of a common legal ground: All national legislation reflect at minimum, and adhere to, what all signatories have committed themselves to.

We need to continue striving for common ground without which the World remains a fragmented place where different fundamental values lead to competition, battle, and war of values against each other. The results from these battles are real casualties, real people die as a consequence.

This striving for common ground requires patience, it is a peaceful exchange of arguments. I experience it in my line of work: Finding a definition of policing and police which holds true for all systems that form the UN has taken us through more than ten years of most intense discussions. Ultimately, just a few weeks ago we succeeded in gaining recognition for our principles through the UN Security Council Resolution 2185. Yet, my work with all UN Member States, within Committees of the UN General Assembly, continues. And every level of needed detail that I add requires the same patience.

Wherever we fail to agree on values, value systems seem to fight: Do we all accept fundamental and inalienable Human Rights? Do we all share a common understanding of democracy? Well, obviously not.

Which leads to that we seem to sometimes physically fight for values, when arguments end. Our ethical, or sometimes some would say, our moral conviction makes us fight for them, if these values are threatened. We often speak, for example, about the values of the Western World. We promote them peacefully, which means they need to add value for those we would like to convince that they matter. And if they are under attack, we might find ourselves defending them, including with military means.

That is what we argue being the legitimacy of action needed. States do this. The United Nations Security Council establishes, if necessary coercive, action on values and principles, if none of the five Veto-Powers would block it.

Whether through bilateral or multilateral action, or under the cover of the UN Security Council, one crucial aspect is whether we argue, with tolerance for other value systems, and promoting ours, where we can, in peaceful exchanges of arguments, defending ours, if necessary when attacked with violence.

The other issue is that the promotion of a value system always relies on a fundamental credibility which stems from the visible coherence of action with words: We can not say one thing and do another thing.

There, we have our contemporary conflict, related to coercion, and including its worst form, torture (with a wide variety of permitted and prohibited means of coercion in between):

How can we promote our fundamental values if we disregard them ourselves when we find it useful? One way is to play with words, to pretend something is not torture, so that the applicable legal framework can be kept aside. Another strand of action is just simply to say “I don’t care. I would do it again.” That then replaces the rule of law with the rule of the powerful.

How can we expect others to play fair, if we violate own principles of fairness that we promote?

How else can such a behavior be perceived by others than an attempt of imposing power by brute force?

How can we avoid that malicious actors such as ISIL, Boko Haram, or else, apply torture by saying that they just do what we do?

Which will lead to the necessity for me to try to explain why torture has been decided to be completely banned.

But the consequence is clear: In violating values that we have agreed upon, we simply erode them. Which leaves our children exposed to a cold and very dangerous world. It brings us back to the principle “Eye for Eye”.

Recently, I was invited to moderate a discussion amongst young students of a college here. The title: “Ferguson and beyond”. On basis of recent events leading to outrage about police violence and racial profiling in the United States, I witnessed stunning two hours of discussions with totally engaged students. The open, emphatic, and constructive exchange of arguments was awesome. The discussion focussed on values and rights which should be shared equally amongst all people, white, black, colored. Students were engaged because the problem affects their daily local lives.

Later, Professors had discussions with some students who had been so vividly engaged on this topic, but on the aspects of recent revelations of the CIA engaging in torture acts as a part of the War on Terror.

The same students, or some of them, who had so vividly engaged in the internal discussion, promoting Human Rights, expressed no interest in the fate of people who had been held in black sites as a result of errors made by the CIA, incarcerating and torturing people with little or without any judicial and administrative oversight or accountability for many years. One reason appeared to be that this problem is so far away from daily lives here. Another argument was following the line “I don’t care. They attacked us on 9/11, so we strike back.” And then there is the number issue: The fact that the numbers of innocent people captivated and tortured is so relatively small (In the report released by the Congressional Committee), made this issue easy to be pushed aside.

There it is, the Eye for Eye principle. And there it is, the rule of the powerful. And there it is, the reality of Others matters less.

So, how to argue that there are forms of coercion that need to be banned in their entirety?

I will try, next time. I end here with one of my most profound experiences: People think local, and short term, people are always overwhelmed by complexity and simply disregard it. The relationship between cause and consequence remains undetected in complex, global, and long lasting developments.

Giving up coherence between value and action has lethal consequences for several generations to come.

As I have two very young children, I care about that.

Legal and Ethical Aspects of Coercive Interrogation Methods, Including Torture

/ stefanfeller / Leave a comment

Come to think of how I want to continue with my second blog entry on this topic, it is no easy feat.

In my first blog entry (Dec 22, 2014, click on the category “Torture”) I began with my personal experience with what I decided to qualify as an act of torture: Two months into my police education and training, a trainee colleague of mine had to witness how a man in a holding cell was physically abused through repeated slapping into the face, because he decided not to reveal his identity after arrest. I wrote about how this was a defining experience for me. All of a sudden, too early, I found myself in a situation where I was presented with the unsettling and fearsome question of what I was supposed to do: Not accepting it, and how to act on this information? Risking my very young career? Becoming complicit, by not doing anything? As always, there is no easy answer for this when you have no power, when you are at the low end of the food chain, when decisive action may threaten you, when you are at the beginning of a process developing your values, and your skills.

I felt powerless, and I felt this was not directly affecting me (ultimately, it was up to my colleague to act, so, was I excused?). I realized that I had no immediate means available to me, means that would be proportionate and, at the same time, protect me. I kind of muddled through.

What happens very often though during early times of integration into a peer group is a form of rationalization which runs counter to official education at the Police Academy: Exposed to the reality, the value system of a rookie will be formed by what hard-nosed long standing (and sometimes questionable) police officers tell you. “Don’t listen to what they are teaching you at school, this is the reality” is what you are going to hear. This is a real challenge for formal education, and teaching values. Not only in the Police. It’s always the same. These processes erode integrity, and especially the fragile integrity of the young and vulnerable trainees. As a trainee, you want to get out of this situation quickly. I was sometimes watching my young colleagues in a state of mimicry, pretending they had an experience that they did not have. The result is a loss of depth of thinking, through massive reduction of the effects that learning has. Copying appears to be the easy learning. I guess I was the same, but I remember that I refused to give up ideals, and dreams.

I do see a link between remaining complacent, by staying silent, by saying: “I have no dogs in this fight.”, and growing gaps between laudable objectives of organizations, and the reality of how they behave.
I believe since long that there are fights in which everyone has to have dogs in.

This one, the fight against accepting torture under some inhumane justification which pretends that there is a higher good than fundamental human rights that everybody is entitled to, no matter what this individual has done, or is alleged to have done, this is one of those fights.

In my first blog entry I also introduced what is known as “coercive interrogation methods”: Not every act of coercive interrogation qualifies as torture, and even, depending on the applicable legislation of the State one is a member of, not every coercive interrogation method is illegal. I will explain, and I need to begin with the legally applicable framework of the State I grew up in: Germany.

Within the criminal procedural code of Germany, we know the legal concept of “prohibited interrogation methods”. In a nutshell, this means that not only I have to tell a person who is considered a suspect in a criminal investigation, at the beginning of a formal interrogation, which rights this person has. Here in the U.S., this is known as the “reading the Miranda Rights”. In any legal framework compliant to internationally accepted criminal procedural law respecting inalienable human rights, a suspect of a criminal investigation has the right not to cooperate, the right to remain silent, the right to not tell the truth. In the system I grew up in, the burden of proof sits with the State, represented by me, a police officer, acting on behalf of a public prosecutor. If a suspect is deciding not to cooperate, this shall not be held against her or him.

A suspect may lie, but I, as a police officer in my German system, I shall not act with the intent to actively establish a false belief. Though I am not obliged to correct an error the suspect is falling victim to, I am not allowed to actively create a false belief which then, in turn, makes the suspect revealing a fact that he or she would not have decided to reveal otherwise. Example 1: A suspect fears that other suspects may, or may have, confessed. As a police officer, I do not have an obligation to tell this individual what I know. I can keep this information for me (and observe the suspects’ painful deliberations about what I may know, or not). If he or she then decides to confess, believing that others may have done that as well, that is permitted. The information gained from this interview will be admissible in court proceedings. Example 2: I am telling a suspect that his or her partner in crime has confessed, though this is not true. If this suspect then confesses, he or she may later challenge the admissibility of this confession within court proceedings, as this information has been retrieved against the free will of this individual.

Within the German criminal procedural system, example 2 is an example for interrogation methods that are prohibited by law. Criminal procedural systems in other countries are different, at times somewhat less strict. Another example is the difference between an “Undercover Agent” and a so-called “Agent Provocateur”. Whilst I can infiltrate a criminal organization with the help of a fake identity, in Germany I can not actively provoke a criminal act (the meaning of “agent provocateur”). In that case, I may even be subject to a criminal investigation. As an undercover agent, I may witness a criminal act, which then may lead to arrests and my admissible testimony in a court proceeding, but under no circumstances I am allowed to incite a criminal act. Not every legal system prohibits the use of an agent provocateur, though.

The logic is clear: An active influence of the State, which is also the legislative authority having established the criminal code according to which certain acts are punishable by criminal law, is not permitted. The same authority which establishes the criminal code labeling a certain behavior as profoundly antisocial can not incite such behavior, on an assumption perhaps that this rotten individual would have done it anyway, with, or without a “little active help” (so, who cares whether he or she got a little push).

As I said, different legislations hold different views on this. But in all these cases, the essence lies with that a person has a free will to decide. For example, to decide to cooperate, or not, or to decide to commit a crime, or not.

Interim: This is one defining element that connects all “coercive interrogation methods” with torture, because torture is a subset, the worst one. I quote Article 1 of the UN Convention against Torture again: “… torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

By logic, any coercive method obtaining information or a confession which does not lead to severe pain or suffering, whether physical or mental, intentionally inflicted, is not torture. It may be something else, including constituting a crime, but its not torture. Yelling at, and insulting an individual may be a form of verbal or even physical abuse, and I may commit a crime, but its not torture. Tricking a suspect into a confession by using a blunt lie may even be less than a crime (I might breach discipline, though). In my legal system in Germany all these methods are not permitted, whilst some are, in other systems. However, torture is not permitted in any system of a country that is a signatory to the UN Convention against Torture. Torture is the worst and most horrible form of coercion the world knows about.

A torture victim and a rape victim are subjected to exactly the same form of brutality, humiliation, and utter helplessness. Torture is a monstrous sibling within a larger family of zombies, one of his sisters is rape, one brother is sadism. The plight and pain they have inflicted on mankind includes unspeakable horror, until today. I will write about some of those darkest chapters in history of humankind, including the Holocaust, later, in another blog entry. I will argue why torture needs to be condemned, and banned, in its entirety. Because there is no such thing like a little torture, and much torture. Once an act is qualified as torture, it is. With no justification at all.

The question is: Who decides whether an act constitutes torture? In my system, it’s the courts who do. Once an act is qualified as torture, there simply is no justification for it. Because otherwise, also a little rape, and a little sadism, can be justified for whatever one defines as a higher good. The lessons of history explain why that shall not happen: Because it always led to that the monster was producing two types of victims: the tortured, and the torturers. Yes, them too. Read this.

What about coercive methods then which are below the threshold of torture, taking into account what I wrote above: That different systems are differently permissive when it comes to coercion? My ultimate yardstick is compliance with, and adherence to, the Universal Declaration of Human Rights, international humanitarian law, and international (criminal) law. Methods of coercion that meet these standards may be subject to deliberation within national legislation and I would not challenge them from a UN perspective, whatever personal opinion I may have on that matter. Personally, I am objecting against all of them.

In this second chapter, I wanted to touch both legal and ethical implications. The ethical ones really make the topic of torture a very tough nut. I experienced this myself:

Between 1987 and 1989 I received my senior education leading to my Masters Degree in Public Administration. For this, together with my fellow students, I studied at the German Police University, having been an accomplished police officer by then for many years already. The campus of this University was where scholarship, students, and practitioners would meet.
One day, a senior police commander presented to us the case of a recent high profile abduction case he had been in charge of, recently. A child had been abducted and the perpetrator/perpetrators had sent in information according to which the child was likely buried alive. The objective of the police, naturally, was to safe the live of the child, and, if possible, also to arrest the perpetrator(s). Nobody knew whether there were one, or several perpetrators.
The negotiation team of the police held contact, and a special police operation was preparing the handover of the requested ransom money. This was the only chance for the team to get into contact with at least one perpetrator. This person or group had been extremely professional, no other lead to this person, group, or whereabouts of the victim existed.
When it came to the prepared handover of the ransom money through a specialized police team, the police commander decided to arrest the suspect who showed up. Now the clock was ticking, and yet, there was no information about other suspects, and the whereabouts of the child were unknown.
This police commander told us in his presentation: “Given this situation, I ordered the suspect to be beaten up in order to reveal the location of the victim, if he would not cooperate”. The suspect, obviously, received physical abuse, the location was identified, the child was rescued unharmed.

Clearly, at this stage of my police education, I was very conscious that this was, by all accounts, borderline or prohibited, that no law existed permitting this action. I know this commander very well, he is in retirement now, a dedicated and deeply humane police leader. There was never a criminal investigation.

I realized that there are situations where law does not provide a safety net, where there is no legal way justifying action. This colleague of mine was presented with a situation where inaction led to the likely death of a small child, and no path was visible that would have made the arrested perp cooperating at his free will. A few years later, another case like this happened in a large city of Germany, almost an identical situation. The Police Commissioner who had made the decision to apply physical abuse to make a suspect cooperating, he got sentenced for a crime, and had to retire from his post.

I want to end this blog entry here and to take it up with another entry soon again, but not without disclosing my own decision, when I asked myself: “What would you have done if you would have been in that situation?”

I acknowledged that there are situations where the law does not provide a solution. I realized that still, the ethical values on which the law is based, continue to exist. Law can not solve the fundamental dilemma that it can not cover the entire reality, but only provide a guiding framework. If law attempts to do this, it will solve one dilemma by creating a new one. There are, as a matter of fact, areas where law leaves one without guidance. I decided that, in such a situation, the ethical values that form the foundation of that law, often enshrined in the constitutional law of a State, are still able to form a conduit. So my thinking then was that I will not order somebody else to commit an act that constitutes a crime. If I, for whatever reasons, am confronted with a situation where either action or inaction will cause the loss of life, or where the loss of a life competes with the respect of inalienable human rights, only Ethics can guide me. I will do it myself, not shying away from any consequence of this action. I would find it impossible to order somebody else to commit an act of crime, perhaps torture, on my orders. I would have to make a decision, and to take and to live with the consequences, either way.

I leave it here, I want to keep the controversial tension high. This was what I concluded during my formal senior training. This decision which I took at that time, 26 years ago, it formed my understanding for that there always always needs to be an ethical layer on which law, and personal action, is based. Without this, law is purely technical, cold, and subject to any manipulation one can think of.

As some ethical layers are so fundamental that they only exist in black and white, in “do” or “don’t”, law does not help in that situation. However, manipulation of law for any self-announced reason does not help, either. Instead, it takes away ethical legitimacy of the law.

Naturally, therefore, I end with quoting Dick Cheney, the former U.S. Vice President, in a recent interview: Huffington Post (http://www.huffingtonpost.com/2014/12/14/dick-cheney-torture_n_6322872.html) is quoting him on Dec 14, 2014, from an interview that he gave to “Meet The Press” “I’m more concerned with bad guys who got out and released than I am with a few that, in fact, were innocent,” Cheney said.
About the program’s serious errors — and the abuses that CIA Director John Brennan described as “abhorrent” on Thursday — Cheney said, “I have no problem as long as we achieve our objective.”

That’s what I am talking about. Not having a problem as long as an objective is achieved. The dimensions of this sentence are broad, deep, and I fail to say more at this moment than how horrible such a statement is.

Why? Torture, systematic sexual violence as an instrument of conflict, sadism in treating adversaries and enemies, these acts continue to rip societies into pieces. They also communicate one message: “You are not worth being treated like you would have any rights. I strip everything from you, I take away your dignity. Because I can.” This is one of the most important issues of the most recent discussion about torture: As torturers have left the ground of humanity principles which we believe are universal, we have given reason to others to justify their atrocities using the same argument. We are co-responsible for the demons like Al Shabab, ISIS, or Boko Haram. Many have said this recently. I will come back to it.

But before that, I will try to finish my exploration of the relation between torture and civil criminal law.  After that, I will try to look into the Law of Armed Conflicts, and what it meant to strip detainees from the statute being “Prisoners of War”. We entered Hell on Earth, I believe.

We can go back, too, learn, and regret.