The State Court of Bosnia and Hercegovina: a path to reconciliation?

Abstract

If the relationship between international tribunals and reconciliation remains empirically under‐researched within the transitional justice literature, this is even truer in respect of hybrid and local courts. Seeking to address this gap, the purpose of this article is to explore whether the State Court of Bosnia and Hercegovina (BiH) – and more particularly its War Crimes Chamber (WCC) – can contribute to reconciliation in BiH. Unlike the International Criminal Tribunal for the Former Yugoslavia (ICTY), the State Court is located in the country itself. Hence, in theory at least, it has greater potential to involve local people and thus to facilitate the reconciliation process. In practice, however, the Court faces many of the same problems as the ICTY, including perceptions of bias and the difficulty of satisfying victims. What this ultimately demonstrates is that criminal trials are not a panacea or “magic bullet” and that reconciliation – both in BiH and in post‐conflict societies more generally – requires a comprehensive and holistic approach to transitional justice that does not over‐rely upon the administration of retributive justice. The State Court, therefore, is merely one potential path to reconciliation.

Keywords:

• Bosnia and Hercegovina (BiH)
• State Court of BiH
• reconciliation
• retributive justice
• International Criminal Tribunal for the former Yugoslavia (ICTY)

Acknowledgments

I would like to thank the Leverhulme Trust for funding this research, which was part of an Early Career Fellowship (2007–2009).

Notes

1. That the ICTY is geographically and linguistically removed from BiH is widely seen as having negatively affected its ability to aid reconciliation (Tolbert, 2002; Dickinson, 2003; Šimonović, 2004; Zacklin, 2005).

2. In Tito’s Yugoslavia the main language was Serbo‐Croat, which everybody spoke. Since the break‐up of Yugoslavia, however, three ‘languages’ have emerged, namely Bosnian, Croatian and Serbian. Yet the differences between them are absolutely minimal, like the differences between British English and American English, and a person who speaks ‘Bosnian’ will have no difficulties understanding somebody who speaks ‘Croatian’ or ‘Serbian’ and vice‐versa. Hence, ‘The situation regarding languages and the differences between languages is rather mystifying … [T]he strict linguistic view would be that there is in fact just one language with a number of variants and dialects’ (Pašalić Kreso, 2008, p. 367).

3. The Office of the High Representative (OHR) is the principal civilian peace implementation agency in BiH. In accordance with the 1995 Dayton Peace Accords, the High Representative is charged with overseeing – on behalf of the international community – the implementation of the civilian aspects of the Accords, Annex 10 of which sets out the High Representative’s mandate. The current and seventh High Representative is Valentin Inzko, from Austria.

4. These two tribunals were established by the United Nations Security Council in 1993 and 1994 respectively (UN Security Council Resolutions 827 and 955).

5. According to Tolbert and Solomon (2006), ‘the ICC [International Criminal Court] and hybrid courts will likely come to play the central role in international judicial mechanisms’ (p. 40).

6. As of December 2008, the Court had 187 employees, both nationals and internationals.

7. The current president of the Court is Meddžida Kreso. The president is appointed for a 6‐year (renewable) term.

8. Funding for the WCC, however, largely comes from the international community, in particular from the United States, the UK, the European Union, the Netherlands and Germany, although eventually the Court will be funded solely from the national budget. It should be noted that trials at the WCC are substantially cheaper than those at the ICTY; ‘it [the WCC] currently functions on approximately 6% of the funds considered essential for the operation of the ICTY’ (Human Rights Watch, 2006, p. 2).

9. The first case that the ICTY transferred to the State Court, in September 2005, was that of Radovan Stanković, a Bosnian Serb from the town of Foča in eastern BiH. On 14 November 2006, the Court sentenced Stanković to 16 years’ imprisonment for crimes against humanity committed in 1992. On 28 March, 2007, on appeal, his sentence was increased to 20 years’ imprisonment. During a visit to the local dentist in Foča on 25 May 2007, however, Stanković made his escape, despite being accompanied by nine prison guards. He remains at large and is believed to be in Serbia.

10. According to the ICTY’s website, ‘the establishment of a Section for War Crimes in the Court of BiH was crucial for the completion strategy’ (http://www.un.org/icty/cases-e/factsheets/partnership-e.htm).

11. Burke‐White (2008), for example, maintains that in the period between the ICTY’s creation and the adoption of its completion strategy, ‘The overall influence of the ICTY … was to deter domestic judicial development and limit the exercise of domestic criminal jurisdiction over war crimes through what were effectively sanctions imposed by the jurisdictional relationship of international primacy that increased the costs for domestic actors of using national judicial mechanisms’ (p. 318).

12. The ICTY’s official three‐pronged mandate is to deter further crimes, to do justice and to contribute to the restoration and maintenance of peace (UN Security Council Resolution 827).

13. One commentator opines that, ‘Beyond the sharing of professional expertise, the BWCC [Bosnian War Crimes Chamber] has directly benefited in many ways from the work of the ICTY, especially in judicial terms’ (Ivanišević, 2008, p. 24). For example, the WCC has been able, inter alia, to use various facts established by the ICTY and to rely on ICTY jurisprudence.

14. Judgment, Stupar et al. (KT‐RZ‐10/05), Trial Chamber, 29 July 2008.

15. http://www.icty.org/sections/Outreach/CapacityBuilding.

16. In this article, the term reconciliation is understood primarily to mean the repair and restoration of relationships (Lederach, 1997; Jeong, 2005; Bloomfield, 2006; Clark & Kaufman, 2008).

17. The recent release of the Lockerbie bomber, Abdelbaset Ali al‐Meghrahi, highlights this point. For the Libyan government and al‐Megrahi’s supporters, justice was done when the Scottish Justice Minister, Kenny MacAskill, took the decision to grant a man who is terminally ill with prostate cancer, and who has always maintained his innocence, early release on compassionate grounds. Many of the families of al‐Megrahi’s 270 victims, however, particularly in the United States, were deeply angered by the decision to free a man who had shown no compassion to those on board flight Pan Am 103, which exploded over Lockerbie Scotland on 21 December 1988.

18. The author took part in this rally as a participant‐observer.

19. Interview, Prijedor, 27 July 2008.

20. In 1996, for example, the Rwandan government estimated that there were 200,000 genocide suspects in the country. Faced with this overwhelming volume of potential cases, ‘Rwanda needed creative judicial solutions’ (Ngoga, 2008, p. 326). To relieve some of the pressure on the court system, the Rwandan government thus revived gacaca, a traditional dispute resolution mechanism (Organic Law No. 40/2000 of 26 January 2001).

21. Interview, Sarajevo, 20 May 2008.

22. A 2005 public opinion poll conducted by the UNDP (2005) found that 64.9% of all respondents (64.9% Bosniacs, 67.2% Croats and 63.8% Serbs) insisted that individuals who caused unjustifiable harm to others during the war should be held accountable, without exception (p. 15).

23. The precise number of people killed in the Keraterm camp is disputed. On 24 July 1992 alone, however, more than 120 men were killed in the so‐called ‘Room 3 Massacre’. According to the ICTY, ‘The dead and wounded, approximately 160 to 200 men, were taken away in a truck. None of those whose bodies were removed that morning were ever seen again’. Judgement, Prosecutor v. Duško Sikirica, Damir Došen, and Dragan Kolundžija (IT‐95‐8‐S), Trial Chamber, 13 November 2001, para. 103.

24. Interview, Bratunac, 30 June 2008.

25. According to James Rodehaver from the Organization for Security and Co‐operation in Europe (OSCE) Mission to BiH, ‘Sooner or later, Bosnians are going to have to face the fact that there are over 13,000 present suspects in war crimes cases and there are only 70 prosecutors in this country who are able to pursue investigations and prosecutions. That is a process that will take a long time’ (Organization for Security and Co‐operation in Europe Mission to Bosnia–Hercegovina, 2007).

26. Until very recently, BiH had no strategy for the prosecution of war crimes. In December 2008, however, the Council of Ministers of BiH, at its 71st session, adopted the long‐awaited ‘State Strategy for War Crimes Processing’. According to this Strategy, the WCC of the State Court will concentrate on ‘those who planned the worst atrocities’ during the war. The draft text also states that nearly 10,000 unsolved war crimes cases have been registered by the courts in BiH (BIRN, 2009b).

27. Entity courts (in the BiH Federation), District courts (in Republika Srpska) and the Basic Court (in Brčko District) also have jurisdiction to deal with war crimes, and in practice they will deal with the largest number of cases. Serious concerns about these local courts, however, and about their relationship with the State Court have been expressed. For example, while the State Court applies the Penal Code of 2003, the local courts use the Penal Code of the former Socialist Federal Republic of Yugoslavia (SFRY), which has resulted in significant sentencing disparities. At the State Court, the maximum penalty is 45 years’ imprisonment, but it is just 20 years in RS and 15 years in the Federation. It has been noted that, ‘The discrepancies in the punishments and, more generally, the application of different laws concerning war crimes remain a crucial challenge for the BiH judiciary’ (Ivanišević, 2008, p. 31). The fact, moreover, that the State Court closely follows ICTY precedent (on the issue of command responsibility, for instance), whereas the local courts do not, ‘threatens to further fragment the Bosnian legal system’ (Human Rights Watch, 2008, p. 55).

28. Pursuant to its completion strategy, endorsed by the UN Security Council in Resolution 1503 (August 2003), the ICTY was expected to complete all investigations by 2004, all first instance trials by the end of 2008 and all appeals by the end of 2010.

29. According to Henham and Drumbl (2005), ‘The plea bargain … plays an important role in the praxis of the ICTY, securing over one‐third of all convictions’ (p. 53).

30. Judgment, Sipić (KT‐RZ‐240/07), Trial Chamber, 22 February 2008. Sipić was sentenced to 8 years’ imprisonment.

31. In 2008, there were 16 plea agreements before Sections I and II of the Court, involving 20 accused. Of these, six convictions for war crimes were concluded on the basis of plea agreements.

32. Ljubičić, the former commander of the 4th Military Police Battalion of the Croatian Defense Council (HVO), was originally indicted by the ICTY in 2002 for crimes against humanity and violations of the laws or customs of war. He pleaded not guilty to all charges. On 22 September 2006, his case was transferred to the State Court, where he subsequently pleaded guilty.

33. Judgement, Ljubičić (KT‐RZ‐140/06), Trial Chamber, 29 October 2008.

34. The Court accepted as mitigating circumstances Ljubičić’s admission of guilt, his expressions of remorse, his agreement to co‐operate and disclose unknown information, his voluntary surrender and the fact that he is the father of two young children.

35. Judgment, Drago Josipović et al. (IT‐95‐16), Trial Chamber, 14 January 2000.

36. Judgment, Drago Josipović et al. (IT‐95‐16), Appeals Chamber, 23 October 2001.

37. Interview, Ahmići, BiH, 10 July 2008.

38. Like Ljubičić, Fuštar had initially been indicted by the ICTY, in 1995, and had pleaded not guilty to all charges. On 6 May 2006, however, his case was transferred to the State Court of BiH, where he pleaded guilty and entered into a plea agreement with the prosecution. Judgment, Fuštar (X‐KR‐06/200‐1), Trial Chamber, 22 April 2008.

39. Željko Mejakić, the commander of the Omarska detention camp in northwestern Bosnia, was sentenced to 21 years’ imprisonment; Momčilo Gruban, a guard shift commander at the nearby Omarska camp, was sentenced to 11 years’ imprisonment; and Duško Knežević, who held no official position at either Keraterm or Omarska, was sentenced to 31 years’ imprisonment. Judgment, Željko Mejakić et al. (X‐KR/06/200), Trial Chamber, 30 May 2008.

40. The author was present when this protest took place.

41. Interview, Sarajevo, 29 May 2008.

42. Interview, Sarajevo, 26 May 2008.

43. Interview, Sarajevo, 26 May 2008.

44. In the first trials against Bosnian nationals, between September 2005 and November 2006, 23 of the 24 defendants were Bosnian Serbs. However, ‘Since April 2006, the ethnic composition of the accused has become much more mixed’ (Ivanišević, 2008, p. 34).

45. The interviewee, whose father is still missing, maintained that there are 842 missing Serbs in Sarajevo. According to highly respected research by the Research and Documentation Centre (2007) in Sarajevo, the total number of Serbs killed or missing in Sarajevo is 3597 (in contrast to 9499 Bosniacs and 749 Croats). In the whole of BiH according to the same research, a total of 97,207 people were killed or disappeared between 1991 and 1995, of whom 64,036 were Bosniacs (49,254 killed, 14,782 missing); 24,905 were Serbs (23,584 killed, 1321 missing); 7788 were Croats (7292 killed, 496 missing) and 478 were from other ethnic groups.

46. The interviewee cited the case of Enver Hadžihasanović as evidence of the ICTY’s partiality towards the Bosnian Muslims. On 15 March 2006, the ICTY sentenced Hadžihasanović, a high‐level commander in the BiH army, to 5 years’ imprisonment for failing to take necessary and reasonable measures to prevent or punish crimes committed by the forces under his command in central Bosnia in 1993 and 1994. Judgment, Hadžihasanović et al. (IT‐01‐47), Trial Chamber, 12 March 2006. On appeal, this sentence was reduced to 3.5 years’ imprisonment. Judgement, Hadžihasanović et al. (IT‐01‐47), Appeals Chamber, 22 April 2008.

47. Interview, Sarajevo, 23 July 2008.

48. Local courts in both entities – the BiH Federation and Republika Srpska – have similarly prosecuted individuals from all three main ethnic groups in BiH. In 2007, for example, 32 Bosnian Muslims, 27 Serbs and 10 Croats were convicted (Humanitarian Law Centre, 2007, p. 11).

49. An international prosecutor at the State Court maintained that, while defendants from all three sides are treated equally, ‘prosecuting Muslims is the most difficult issue politically because it undermines the notion that they were victims’. Interview, Sarajevo, 26 May 2008. In one case in which the interviewee was prosecuting a Bosnian Muslim, who was eventually acquitted, he received death threats from the defendant’s family.

50. Interview, Sarajevo, 29 May 2008.

51. Sarkin and Daly (2004), however, underscore that, ‘Alternatively, it could be argued that the truth actually impedes reconciliation, because the truth can be so terrible that attitudes harden and forgiveness and empathy are all but impossible’ (p. 667).

52. This problem of competing ethnic truths is similarly pronounced in Rwanda. According to one African specialist, ‘The clash of ethnic memories is an essential component of the process by which the legacy of genocide – the “memory of the offense” – is being perceived or fabricated by one community or the other. Once filtered through the prism of ethnicity, entirely different constructions are imposed on the same ghastly reality, from which emerge strikingly divergent interpretations of why the genocide occurred’ (Lemarchand, 2008, p. 67).

53. On 12 July 2009, for example, just one day after another 534 victims of the Srebrenica genocide were buried at the Potočari memorial center in eastern BiH, members of the Ravnogorski četnički pokret (Ravnogora Četnik Movement) paraded through Srebrenica wearing Ratko Mladić T‐shirts and singing Četnik songs which alluded to a repetition of the events of July 1995. On the same day, approximately 20 young people from Obraz (the Fatherland Movement) – a far‐right political organization in Serbia – walked through the center of Srebrenica carrying the Serbian flag and shouting ‘Ovo je Srbija!’ (This is Serbia!) (A.H., 2009, p. 4).

54. Interview, Sanski Most, 1 August 2008.

55. Some commentators are very skeptical about this. Cohen (2001), for example, maintains that, ‘Legal blueprints are ill‐suited to evolve and construct a consensual collective memory’ (p. 230). Leebaw (2008), moreover, suggests that, ‘the goal of “individualizing” guilt [an oft‐cited justification for criminal trials] is … in direct tension with the goal of countering denial regarding widespread complicity in systematic political violence’ (p. 110).

56. Interview, Mostar, 21 August 2008.

57. Some interviewees, for example, confused the ICTY with the International Court of Justice (ICJ), which is also located in The Hague. In addition, they frequently criticized the Tribunal for failing to arraign war criminals, thereby overlooking the crucial fact that it has no powers to carry out arrests (Clark, 2009c).

58. Interview, Iljaš, 24 May 2008.

59. Interview, Sarajevo, 29 May 2008. An article published in the Serbian newspaper Blic – which is widely read in RS – on 3 July 2009, for example, reported that the BiH Court had sentenced Damir Ivanković to 14 years’ imprisonment for his involvement in the massacre of more than 200 Bosnian Muslims and Croats at Korićanske Stijene on Mount Vlašić, in central BiH, in August 1992. The article explained that Ivanković had entered into a plea agreement with the Prosecutor but gave few details about the prosecution’s case or about the Court. It did, however, refer to the arrest of Serbian policeman Saša Zečević in Prijedor and reported on the local Serbs’ reaction to this: ‘Ko je sledeći?’ (Who will be next?). It recounted how Serbs in Prijedor viewed Zečević’s arrest as being somehow linked to Ivanković’s admission of guilt, quoting one local man as saying, ‘Ovo je strašno! Ko zna šta je Ivankovic napričao…’ (This is terrible! Who knows what Ivanković said …). In this way the newspaper portrayed plea bargains, and by extension the State Court itself, in a very negative light (Tomić, 2009, p. 15).