Abstract

This article examines the dominant perceptions of war crimes trials among victims from Prijedor, a municipality in Bosnia and Herzegovina. Largely based on interviews with victims who have testified in trials before international, state and district courts, and victims who have never testified, NGO activists working with victims in their communities, and some professionals involved in Prijedor-related cases, the article attempts to cast new light on the factors which create and shape these perceptions. Considering the nature of the violence experienced by the community in question and the relatively substantive judicial response to it, the Prijedor case offers insights relevant to similar communities around the world and important lessons for courts and tribunals seeking to ensure that their work is capable of providing some sense of justice to victims.

1. Introduction

The war crimes trials conducted before the International Criminal Tribunal for the Former Yugoslavia (ICTY or Tribunal) and before national courts in Bosnia and Herzegovina have been seen to have been intended to impact far beyond the immediate participants in the proceedings, namely the perpetrators and the victims of the alleged crimes. Their role and function was viewed by many as a tool of social reconstruction which was supposed to contribute to the establishment and maintenance of peace among the formerly warring parties, to foster reconciliation among ethnic groups and to assist, if not even to spearhead, the establishment of the rule of law in societies ravaged by conflict and mass atrocities.[2]

Whether war crimes trials held at international or local courts have fulfilled (or will fulfil) this broader, social function does not depend solely, nor even primarily, on the ‘quality of justice’ meted out in The Hague or Sarajevo. Criminal proceedings remain one of several elements of any substantive effort of a post-conflict society to achieve justice in the aftermath of mass violence along with the establishment of truth, the search for and identification of missing persons, reparations for victims and their rehabilitation, reform of institutions and remembrance.[3] Additionally, when it comes to the intended goal of contributing to peace and reconciliation, the fairness of the proceedings to the accused, the legal standards applied to test the evidence presented at trial, and the often groundbreaking developments in international law which occur as part of these proceedings – all important achievements of these tribunals – often come second to the public discourse which surrounds the trials in the constituencies most interested in their conduct and outcome. Victims of crimes which are at the centre and provide the raw evidential material for war crimes proceedings form the core of the mentioned constituencies. If we consider that their perceptions of the trials and, more generally, of the institutions that run them are an important element of the public discourse, it is essential to understand how and on what basis they come to form such views.

In the former Yugoslavia, and in particular in Bosnia and Herzegovina, the discourse surrounding the work of war crimes tribunals was shaped primarily by the media and political and intellectual elites generally suspicious or openly hostile towards them. The information generated by such elites and media under their influence did not provide a complete or accurate picture of the trials or the facts established by them. In contradiction to the stated purpose of the ICTY and subsequent domestic processes, the prevailing position of a significant majority of political and intellectual leaders in the Balkans has not been one of reconciliation. Nor have they generally sought to come to terms with the past. To the contrary, they often engaged in what would best be described as rhetoric of division and conflict. In such a discourse, victims from other ethnic groups are ignored, their suffering unacknowledged or minimized. Over the years, the ICTY has been accused of all sorts of evils – from persecuting innocent heroes, torturing and killing defenseless martyrs, to preventing a prosperous European future for countries of the Balkans and serving as the political tool of oppressors ‘intent on subjugating or humiliating certain nations’.[4]

For the vast majority of victims who do not get a chance to participate in trials as witnesses or to receive objective, detailed information, it is this discourse, rather than their personal experience of the processes, that creates and shapes their perceptions of war crimes trials and the institutions conducting them. In turn, in a country with such a large number of victims who have suffered directly or indirectly from the atrocities committed during the conflict, it is the victims’ perceptions of efforts to provide justice that lie at the heart of society’s capacity to overcome the legacy of crimes and build a stable, democratic environment. It is the victims’ views of justice that are incorporated into the main narrative on the traumatic past, which in turn feeds the political agenda and provides the framework for any ‘official’ effort to deal with the legacy of the atrocities. In Bosnia and Herzegovina, these relationships form a vicious circle of misperceptions and misrepresentations, of divisive discourses, of denial of responsibility by perpetrators and manipulation of victims by nationalist political forces directly interested in limiting any wider impact of war crimes trials as an important mechanism of transitional justice and social reconstruction.

 

2. The Conflict in Bosnia and Herzegovina, the Municipality of Prijedor and War Crimes Trials

It is against this background that we attempt to investigate what the main perceptions of war crimes trials are among the victims from one particular community, what the factors shaping them are, and how they in turn impact upon the trials and their intended broader social role. This article will not attempt to analyze the complex context of how ethnic identities in Bosnia and Herzegovina and the former Yugoslavia and their respective political priorities impact on victims’ perceptions of war crimes trials, but it will instead focus on one specific community – the Municipality of Prijedor in North-Western Bosnia and Herzegovina.[5] While keeping in mind the broader context of the 1990s conflict and mass atrocities committed in Bosnia and Herzegovina and the former Yugoslavia, there are several reasons why the experience of Prijedor may offer important lessons for other areas of the world that have similarly suffered from mass atrocities and why other courts and tribunals which come to deal with the criminal consequences of systematic and widespread crimes could learn from this particular case.

Even by the standard of the Bosnian conflict, the Prijedor region suffered particular violence resulting in mass killings, mistreatments and persecutions, which saw a complete change in the demographic and ethnic structure of the municipality.[6] Perhaps because the crimes committed in this region received considerable attention from international media and human rights groups,[7] a relatively high number of criminal cases focused on these events.[8] In addition to judicial and media attention, this community has been targeted by particular outreach efforts on the part of both the ICTY and local bodies, thereby making it a particularly rich ground for study and evaluation of the effect of international criminal justice on affected communities. Assessing how successful these efforts have been in communicating information relevant to court proceedings is essential for assessing a tribunal’s ability to contribute to peace and reconciliation after such traumatic events.

The aim of this case study is to provide an insight of the views of those most affected by crimes and, consequently, by the criminal proceedings dealing with those crimes.[9] It might hopefully shed some light on the views and opinions of the group most relevant to the process of reconciliation in the Municipality of Prijedor and could provide much needed lessons for courts and tribunals endeavoring to contribute to such processes in similar communities and circumstances.[10]

The empirical findings of this analysis do not offer much reason for celebration of the impact that the trials have had on the non-Serb victims in Prijedor. They suggest that victims do not have great – or in many cases any – expectations that war crimes trials will bring, or are capable of bringing about or contributing to the transformation of the social environment in which they live. While some remain hopeful that the facts established judicially might contribute to the process of reconciliation, most victims appear to have gone full circle from the trauma of the crimes committed against them, to the hope and unrealistic expectations of comprehensive justice, and, ultimately, to resignation and apathy that has arisen in part from disappointed expectations. In the words of one of the interviewees: ‘After so many years, the only reconciliation process the victims are a part of is their reconciliation with the consequences of the crimes they suffered’.[11]

3. Victims and Trials: The Promise of Justice and its Collapse

The majority of victims interviewed for this paper believe that war crimes trials, in general, provide some degree of justice. However, their perception as to the sort of justice rendered by the courts has changed significantly over the years.

Following the end of the war, when the vast majority of non-Serbs from the Prijedor municipality found themselves as refugees or displaced persons within and outside Bosnia and Herzegovina, the primary focus of most of them was to secure the basic living conditions in their new environments[12] and explore the possibilities of return guaranteed by the Dayton Peace Agreement.[13] At first, the majority of victims and displaced persons had very little understanding of the work of the ICTY, although some were aware that it had indicted a number of persons for the crimes committed in Prijedor.[14] This awareness was somewhat increased by the arrest and trial of Duško Tadić.[15] The Tadić trial, the subsequent arrest of Milan Kovačević [16] and the death of the feared chief of Prijedor Police, Simo Drljača [17] during an arrest attempt by NATO forces, marked the beginning of a period in which a ‘promise of justice’ grew slowly. With the removal from power of those considered most responsible for the campaign of ethnic cleansing, the level of organized violence directed against the returnees significantly reduced.[18] The belief that crimes committed against them would not go unpunished led many victims to overcome their fears and traumas, and to start rebuilding their lives in the area which was effectively one huge crime scene and still fairly hostile to them.[19]

The arrests and prosecution of senior officials of Prijedor wartime authorities brought about a sense among victims that the post-war social order would be one based on justice and accountability.[20] As a result, many refugees were encouraged to return despite the reminders of what had taken place.[21] During that phase, the ICTY was regarded as a ‘beacon of justice’ by many victims, an institution capable of being the engine for broader changes, for truth and justice for all.[22] The Tribunal was then perceived as acting genuinely on behalf of the victims, and expectations were that it would prosecute many, if not most of the perpetrators[23]. Investigators of the Tribunal were received readily by victims and many came forward to offer assistance.[24]

Evidently, at the time when Prijedor-related trials were held at the Tribunal, victims strongly believed that these will have a transformative effect on the relationships between the Serb and non-Serb communities, fostering a society based on the principles of justice and reconciliation. With the relatively large number of indictments issued for crimes committed in Prijedor, those perceived as the main threat to the process of return were removed from power, opening up space for the return of a significant number of non-Serbs and a promise of re-constitution of the mixed community which existed before the war.[25] However, as time past and the political discourse in the country and in Prijedor itself remained one of division and the Tribunal’s trials and judgments were all but ignored by the main creators of the political discourse, the hope for a judicially-prompted transformative effect slowly subsided.

In addition, other developments before the Tribunal further lessened the trust and hope that victims had placed in that institution.[26] The withdrawal of indictments against a number of low ranking accused,[27] the perception that sentences given to some of the perpetrators were inappropriately low (e.g. Došen, Kolundžija, Kos, Prcać and Predrag Banović [28]), the release of Nenad Banović, and the practice of early release of convicted persons[29], which saw some of those sentenced by the Tribunal released directly from the UN Detention Unit, all contributed to a change of perception and increased cynicism towards the Tribunal among victims.

The Tribunal’s often repeated point that it had been established to try only those individuals most responsible for the crimes committed in the former Yugoslavia was increasingly interpreted as meaning those higher up in the hierarchy. In that sense, the responsibility to try those further down the chain would fall to local courts. It was with this in mind that victims from Prijedor greeted and welcomed the establishment of the War Crimes Chamber of the Court of BiH.[30] Today, almost five years since the establishment of the War Crimes Chamber, most of the interviewed victims have taken the view that this institution has a limited impact and that early expectations of ‘transformative’ justice had been exaggerated.[31] Some hope remains, however, that the court could contribute to removing some of the perpetrators who still live within these communities.[32]

The Court, which was well placed to remedy many weaknesses of the Tribunal’s troubled experience with victims, seems to have had an equally difficult relationship with them, if not worse. One of the main impediments to the Tribunal’s efforts to impact upon the reconciliation process was its distance, physical and symbolical, from its main constituency – victims in the former Yugoslavia. The Court of BiH was supposed to alleviate the perception of being an outside, foreign body, and to achieve a sense of ownership within local communities. Paradoxically, most of those interviewed have stated that they knew much more about proceedings before the ICTY than before local courts and only few members of victims’ associations have ever gone to Sarajevo to follow trial proceedings there.[33] When it comes to the Banja Luka District court, the perception of the victims is almost exclusively focused on the relatively high sentences that have been pronounced in the first war crimes cases held there.[34] On account of this and the strong ties developed in the community by the prosecutor working on war crimes cases in the area of Prijedor, Branko Mitrović,[35] victims seemed ready to accept severely inadequate circumstances in which the proceedings are held.[36]

4. Testimony as a Distinctive Experience: Perceptions of Witnesses and Non-Witnesses

Although they share a number of perceptions of war crimes trials and of their impact on the relevant communities, victims can be placed in two distinct categories depending on their personal experience of the legal process and how it has shaped their perceptions of justice. The primary factor of distinction among victims is whether they have been involved in criminal proceedings as witnesses or not.

Where they have partaken in criminal proceedings, victims’ perceptions of these proceedings will be shaped by a number of factors, including their personal experience of testifying,[37] the perceived preferential treatment of the accused compared to victims,[38] their (lack of) knowledge and understanding of the procedural mechanisms relevant to these proceedings, and, most importantly, the length of sentences handed down to the accused and the early release of convicted persons.[39] Each and all of these factors contribute to the victims’ ability to forge an accurate picture of the work and effect of judicial institutions onto their communities.

By contrast, the views of the victims who do not testify are largely shaped by secondary information which they receive from media and from word-of-mouth within their community. This information is usually inadequate, incomplete and generally focused on the ‘flashpoints of interest’ such as the arrest of the accused, his or her plea and the sentence. Beyond this, the information is often superficial and inaccurate. Within this group of victims there is a sub-group with a particularly traumatic element shaping their perceptions of justice provided by war crimes trials – those who have been interviewed by investigators or other agencies, but never called to testify or contacted to be told why their statement was not included in a case.[40] A large part of this group of victims exists in an extremely difficult state of limbo, torn between the expectations of inclusion, which create a lingering state of anxiety stemming from the fear of exposure to the perpetrators, and the feeling of inadequacy coming from the interpretation that their statement ‘was not good enough’, that they did not perform their duty and will not be given a chance to tell their story. This state of limbo lasts for years and is most difficult for those who have lost their loved ones and perceive their non-inclusion as a personal failure to contribute in some way to the memory and recognition of the suffering of their kin. Victims from this group, locked in their personal tragedy, exacerbated by the limbo in which they continue to live, can hardly accept that war crimes trials provide any justice at all.

There is, however, a common feature within both mentioned categories of victims and that is their view that sentences provide a valid measure of the quality and relevance of criminal justice. Although most victims readily accept that there might be no adequate sentences to punish those crimes committed against them and their relatives, they share a sense that sentences pronounced by the ICTY and the Court of BiH are grossly inadequate and are inconsistent with the stated purpose of these institutions to deter future crimes, let alone to provide justice for the victims.[41]

The act of testifying is a difficult experience for victims, though it might have a short-term ‘therapeutic’ effect of some sort. Shortly after their testimony, many victims have experienced a sense of euphoria and a sense that justice may be provided through the judicial process in which they have participated.[42] Subsequently, once the euphoria dissipates, victims tend to develop a strong sense of importance in the community and are often quite keen to discuss their testimony with neighbors and those they trust. However, these benefits might all dissipate and give rise to embittered disappointment when the verdict is rendered and where sentences are perceived as inadequate or where their testimony has not been fully accepted by the court.[43] The majority of witnesses see these events as a sort of personal betrayal which might re-exacerbate their sense of vulnerability and helplessness.

For the victims who are not included in the court process, the determining factor of their perceptions of war crimes trials is the frustration they feel from being excluded.[44] At the same time, the strong sense of vulnerability and the perceived threat they feel in Prijedor as potential witnesses make them very reluctant to come forward and initiate their participation in the process. Paradoxically, they remain unwilling, yet frustrated observers on the sidelines, sporadically following trials through the media and word-of-mouth from members of their immediate community who are themselves involved in the process or who are in contact with the institutions, NGOs, and other sources of information.[45] What dominates when the perceptions of this group are examined is that they are most often based on insufficient and incorrect information, which primarily comes from the media and political discourse largely hostile to reconciliation and the acceptance of facts established in war crimes trials. In addition, the marginalization of this group and the sense of helplessness result in the increasing lack of interest where everyday struggle to provide a decent living for themselves and their family takes precedence over their past traumas. Their interest increases when sentences are pronounced and reactions are usually negative – the process provides little or no satisfaction at all for this group.[46]

Empirically, the number of victims from Prijedor still believing that justice will be provided by war crimes trials appears to be dwindling fast. This is best illustrated by the fact that an increasing number of victims appears to be more interested in civil cases against the Republika Srpska government than in coming forward as witnesses in war crimes trials.[47] Security, or the perceived sense of being under threat, no doubt plays an important part in this phenomenon, as victims may feel safer in suing institutions together with other claimants than they might be in testifying personally against certain individuals. Furthermore, the material benefits which may result from a civil action might be seen as more desirable than the punishment of individual perpetrators.[48]

5. Media, Outreach and Denial: Shaping Victims’ Perceptions of Justice

Available sources of information are another crucial element shaping perceptions of war crimes trials. Most victims – though not necessarily those who were personally involved in the judicial process – rely on the media to form their views and understanding of these trials. In addition, NGOs active in the field of transitional justice are an important source of information, as is word-of-mouth.[49] Together, they provide much of the informative basis on which victims will form a view of criminal justice and of the institutions that compose it.

The ICTY has generally been perceived among victims as more successful in disseminating information about its work as compared to the local tribunals. However, it is the opinion of most interviewees that its outreach effort has not sufficiently targeted the Serb community in Prijedor as was necessary to combat its denial of crimes. The ‘Bridging the Gap’ conference held in 2005 is often cited as perhaps the most significant outreach exercise in relation to that group. The seminar gathered representatives of all – Bosniak, Serb and Croat – communities and was seen as opening a narrow basis for discussion between these communities in relation to the findings of the ICTY.[50] Disappointingly, none of the subsequent events organized by local NGOs managed to gather a multi-ethnic audience as representatives of each group decided to ignore events organized by NGOs regarded as associated with the other group.[51] Other sources have contributed to filling some of the information gaps left open. Documentary films produced about the Tribunal’s work, SENSE Agency programs and other outreach operations were cited, for instance, as helpful in disseminating information about cases held before the ICTY. At the same time, the mostly negative media coverage of the ICTY by domestic media outlets has cemented misperceptions of its work to such an extent that these efforts to reach out and disseminate accurate information about crimes committed in Prijedor and their punishment have had a limited effect on the Serb community.[52]

With the transfer of cases from the ICTY to the Court of Bosnia and Herzegovina, the latter court together with the Prosecutor’s Office of Bosnia and Herzegovina was seen as an institution pivotal for Bosnia and Herzegovina’s struggle with the legacy of mass atrocities.[53] Operating in a heavily politicized context and facing numerous challenges typical for post-conflict societies, the success of Court of BiH was critically dependent on public support for its activities.[54] Whilst an international criminal tribunal might have been primarily dependent on the support of the international community, the success or failure of this domestic body was linked most directly to its primary constituency, namely the community of citizens to which it belongs.

In the opinion of Prijedor victims, the Court of BiH started well in developing this sense of partnership and ownership, but its outreach effort soon faltered and this greatly influenced the perceptions of it and the justice that it provides.[55] When it first started, the Court of BiH had invested a great deal of efforts in its outreach activities, conducting a number of events involving victims from Prijedor. In a groundbreaking outreach approach, it initiated the creation of a Court Support Network – a coalition of NGOs from five regions of Bosnia and Herzegovina, whose common goal was the dissemination of information about the Court of BiH in the areas most affected by the war – with Prijedor as one of its five centers.[56] A close relationship developed between victims groups and the personnel of the Prosecutors Office and the Court of BiH, especially the Victims and Witnesses Section and individual prosecutors who worked on Prijedor-related cases. A number of outreach events were organised with competent and skilled staff taking part in radio and television programs and victims visiting the Court of BiH to acquaint themselves with the procedures and the set up of the institution. A special telephone line was established by the partner NGO to provide all interested citizens with information on ongoing cases, procedures and contact information for the Court and the Prosecutor Office. This endeavour, coupled with the fact that trials were to be held locally, made proceedings more accessible and comprehensible to local communities and victims in particular.

However, before the first Prijedor-related case had even started, the Court of BiH restructured its Public Information and Outreach Section, significantly reducing its activities and leaving it almost completely to the local NGOs to conduct outreach on its behalf. Staff of the Court of BiH was seen as increasingly disengaged or unavailable for outreach activities.[57] Consequently, communication with victims suffered significantly and was mostly maintained through press releases and by a small number of prosecutors and investigators working on individual cases. In response, victims demonstrated their disapproval and increasing detachment from the judicial process. In a telling illustration of that phenomenon, former detainees of the notorious Omarska camp now living in Prijedor failed to attend sessions of the trial of Željko Meakić et al[58].

Guilty Pleas, Judicial Transparency and the Challenge of Historical Revisionism

Guilty pleas before the ICTY have attracted considerable attention among the victims in Prijedor. Their reactions to the plea agreements between the ICTY Office of the Prosecutor and Damir Došen, Dragan Kolundžija, Nenad Banović, Duško Sikirica and Dragan Mrdja have mostly been negative due to the fact that the sentences imposed upon these individuals were seen in some cases by victims as being inexplicably low and because it left unanswered questions as to the whereabouts of the missing persons. Part of the victims’ reaction to guilty pleas might be a result of the fact that the continental legal system is generally unfamiliar with such practice. This, along with the perceived low sentences, contributed to the confusion and difficulty in accepting plea agreements as a legitimate legal mechanism that would be capable of contributing to justice and reconciliation.[59]

Most important perhaps among the factors that explain victims’ reactions to guilty pleas is the perceived lack of sincerity of the acknowledgment of guilt by the accused.[60] This impression cemented a perception among victims that guilty pleas were used as a way to circumvent justice and for the prosecutors to save time and resources at the expense of victims’ rights and interests.[61] While ICTY pleas have generated a great deal of discussion and debate among victims in Prijedor, the details of some of the guilty pleas before the Court of BiH have hardly reached the constituency in Prijedor.[62] As a result of this, any social benefit that might have resulted from them was severely restricted.

The transparency of the proceedings and the outreach efforts conducted informing the public of the facts established in completed cases are an important factor in shaping victims’ perceptions of the trials, but they also serve to distinguish between the ICTY, the Court of BiH and the Banja Luka District Court, in terms of how victims perceive the achievements of respective institutions. However, there is still no evidence that war crimes proceedings have achieved any transformative effect on the Prijedor authorities and their attitude towards the suffering of non-Serbs. Their systematic refusal to allow the creation of memorials for non-Serb victims of war crimes in any public spaces in Prijedor,[63] as well as the erection of a monument to Serb soldiers at the location of one of the most notorious camps, Trnopolje,[64] discrimination of non-Serb victims in recognizing their status and providing material assistance available to Serb victims[65] all contribute to reinforcing a sense of further victimisation.

The denial of crimes that took place in Prijedor remains deeply entrenched within the Serb community, especially in the areas where the worst crimes occurred.[66] Is it possible that people of Omarska do not know about the existence of the camp where more than 5000 people from their municipality were detained and some 1300 were killed? It can be stated with a great degree of certainty that this is not, and cannot, be the case. For this was the same village from which reporters returned to The Hague in 1998 with a similar story following the judgment in the case of Duško Tadić, one of the most notorious guards in the Omarska camp. The President of the Tribunal at the time, Gabrielle Kirk McDonald was herself seriously concerned by the fact that people in Omarska appeared to be unaware of the facts established in the first judgment at the ICTY, resulting from a long and detailed trial, and establishing beyond reasonable doubt the facts concerning the crimes that took place in Omarska.[67] In light of this, she ordered the establishment of the Tribunal’s ‘Outreach Programme’ which was intended to bring the contents of the Tribunal’s judgments to the attention of audiences in the former Yugoslavia.[68] Since then, the citizens of Omarska have been exposed to an abundance of information in the media about the existence of the camp and the crimes committed therein.[69] Major events were also organized to commemorate these events and thousands of former inmates or their families have visited the site of the camp since 2004.[70] It is clear that this is not a case of a lack of information but of outright and open denial, a choice not to know and not to take any responsibility for atrocities committed by members of a group in the name of that group. Such denial is not endemic to Omarska. It is a widespread phenomenon across the former Yugoslavia, where crimes committed against the members of ‘the other side’ are simply not accepted by the majority of common people despite all the evidence.[71]

This example clearly illustrates the limitations that exist upon a tribunal’s ability to contribute to bring reconciliation in fractured communities. It also goes to show how the power of the state system with its various mechanisms, including educational and religious institutions, state controlled media and public services, may be used to trump the efforts of judicial institutions to establish and disseminate facts about the crimes from the recent past.

Conclusions

The notion that victims have unrealistic expectations of the courts conducting war crimes trials in terms of their potential impact on their everyday life is widespread among many legal professionals from all jurisdictions.[72]

In Prijedor, victims had significant expectations from the war crimes trials to be held at the ICTY, especially after the arrests of Milomir Stakić, Milan Kovačević, Damir Došen, Duško Sikirica and others created a sense that those most responsible for the campaign of ethnic cleansing that saw more than 3,000 people killed and tens of thousands expelled would be held accountable for their crimes.[73] The expectations that justice delivered in The Hague would reverberate in Prijedor and contribute to the full rehabilitation of victims as equal members of the community impacted significantly on the victims’ perceptions of the ICTY and the war crimes trials as such.[74]

With the years passing and no significant change in attitude from the local authorities towards non-Serb victims, the obstacles the latter faced in obtaining benefits afforded to Serb victims and the refusal of the authorities to formally acknowledge their suffering, all contributed to deflating victims’ early expectations of justice and reconciliation between communities.[75] At the same time, those convicted for crimes in Prijedor received what were perceived as low sentences for their crimes and returned home to heroes’ welcome[76] having served only part of their sentences[77]. This fact, and the privileges which they received upon return from the authorities, contributed further to a considerable loss of victims’ trust in the international criminal justice.

By the time the War Crimes Chamber of the Court of BiH came into being and the promise of a local Bosnian effort to combat the legacy of mass atrocities became real, the expectations of victims were reduced to the hope that some of the most notorious perpetrators still walking the streets of Prijedor, and in some cases occupying positions in the local institutions and police, would be brought to justice and removed from the communities.[78] The primary reason for the drastic shift in expectations among victims from Prijedor was the systemic denial of their suffering which permeates many aspects of life in the municipality.[79] In the opinion of most of those interviewed, the municipal authorities have actively obstructed any form of joint remembrance of victims from all ethnic groups.[80] In that sense, the ability of criminal courts and their organs to impact upon the lives of victims was hampered by local authorities and these judicial institutions were unable to overcome the hurdles that stood between them and the promise of justice that they had embodied.

The refusal to accept that crimes were committed against non-Serb neighbours, now cemented within the Serb community, was gradually accepted by the victims as a reality which will not be influenced by war crimes trials.[81] The findings made by judicial institutions appear to have been unable to meaningfully affect the political discourse within the communities under their jurisdiction. Instead of the reconciliation between Serbs and non-Serbs, the process of reconciliation between victims and the consequences of atrocities they suffered started taking place.[82] The absence of any apparent transformative effect from the trials held at the ICTY, the Court of BiH or the District Court in Banja Luka left the majority of victims in a state of apathy. Some are embracing forgetting as a way of dealing with the past,[83] while others still believe in the long term value of facts established in the trials as the truth about their plight which will at some point have to be accepted as undisputable by their neighbours and the authorities in Prijedor.[84]

However, the apathy and indifference towards the war crimes trials among victims betray a sense of hopelessness and utter lack of expectations that such trials will change much when it comes to their current status and relations in their communities. Victims’ expectations now appear to be solidly focused on individual perpetrators being removed from their midst. The dominant perception among Prijedor victims is that a comprehensive, transformative sort of justice is beyond reach and that war crimes trials cannot deliver on such promises in the present political and communal environment.

There are several obvious lessons to be learned from the Prijedor case for all involved in efforts to judicially address mass atrocity in the context of post-conflict social recovery.

On the basis of this research, it can be concluded that Prijedor victims’ views of justice are profoundly affected by the outcome of trials dealing with their trauma, particularly by the sentences given to those convicted of crimes. In terms of impact on the perceptions of justice delivered, the length of sentence takes precedence over all the other aspects of the trial, including the facts established (‘the truth’), the opportunity to testify, the material compensation and other forms of redress. While accepting that their loss cannot be compensated by any length of incarceration, victims are much more concerned with the sentences than ‘the rest of the society’. The main factor shaping such views appears to lay in the interrelation that exists between the systematic denial of responsibility which they face in their immediate community and the longevity of perpetrators’ absence from their vicinity which a prison sentence provides. In the circumstances where the community in which they live does not accept that they suffered any evil, and institutionally protects, sometimes even celebrates, the perpetrators, victims have a real and substantive interest in seeing perpetrators removed from positions of power and their vicinity for as long as possible.

Another factor impacting their perception of sentences as the most important aspect of trials is the real value which victims place on sentences’ deterrent effect. Most Prijedor victims have a deep sense of vulnerability and real fears of violence being repeated, which place high value on any deterrent. In this context long-term prison sentences for perpetrators of worst atrocities are naturally considered as the most effective way to achieve deterrence.

Lastly, the length of sentence is viewed by victims as a reflection of the gravity of crimes committed against them and thus as a mean of acknowledging their trauma and suffering. The view shared by many victims is that low sentences imposed on war criminals are in fact imply denial or failure to acknowledge the depth and gravity of their suffering. In an environment where such denial permeates their everyday life in the community, low sentences are seen as an act of betrayal by the court process, which in many cases was their only hope for acknowledgment.

It is apparent that victims’ perceptions and expectations of war crimes trials, especially in relation to international or state-level tribunals, depend greatly on the degree of their involvement in the trial process. Such involvement, whether through direct testimony or participation through a designated representative, considerably increases the sense of ownership of the process among victims – a crucial factor for a better understanding and acceptance of the legal nature of proceedings and of their outcome. Developing this sense of ownership of the judicial process in the community affected by the crimes is proving to be instrumental to any long term impact on the capacity of the community to deal with the legacy of mass atrocities. Without it, victims (and together with them much of the community) are left on the sidelines to form their own perceptions of such proceedings on the basis of their own traumatic experiences, their needs and expectations of redress that far exceed the capacity of the legal process and the often unreliable information they receive from the media and other sources available to them.

Judicial institutions dealing with war crimes matters should pay greater attention to the need of involving victims in the trial process whilst at the same time ensuring the integrity of the proceedings. In addition to the substantive and effective mechanisms of representation of victims, these institutions or their organs should promote and support outreach as an integral element of the institution’s mandate and mission. The Prijedor case suggests that if outreach is seen and conducted by the institution as an unnatural addition to the judicial activity, which is performed merely to disseminate information in order to counter negative rhetoric and address misperceptions, its impact will be significantly limited. Such outreach efforts, confined to the public information sphere and left solely to communication specialists, are in fact just another source of information about the trials, which must compete with far more powerful propaganda, often hostile, coming from governments, media outlets, intellectual elites, the education system, institutions of religion and other sources, which ultimately shape and cement public perceptions of war crimes trials. With judicial institutions imminently losing the outreach battle to such powerful alternative sources of information, victims may simply lose faith and interest in the judicial process as a whole.

In accepting outreach as a crucial element of the institution’s mission, it needs to be acknowledged that, apart from comprehensive outreach strategies and resources required for their implementation, transparency of the proceedings and institutional capacity to accommodate public interest, it is the manner in which the institution and its staff conduct their duties that constitutes a crucial element of outreach. This is particularly important as regard contacts between the institution and the victims. The experience of interaction with judicial institutions dealing with their suffering has profound and lasting effects on victims – often crucial to their perceptions of how humane and just the institution and its proceedings are. In view of this, judicial institutions investigating and trying war crimes cases need to develop outreach strategies which will be based on the awareness of all the staff members in their respective roles of what the impact of their work on the communities concerned is. This should also be regarded as forming part of the courts’ priorities so that it may help shape an accurate public perception of the work of these institutions and allow them, in turn, to achieve some of their more ambitious goals of peace and reconciliation.

The main lesson, however, relates to the public discourse surrounding war crimes trials and the determining influence which state structures have on it. It is clear from the Prijedor case that the long term impact of any judicial attempt to address the legacy of mass atrocities will be severely curtailed if it runs counter to the dominant narrative on the past created and fostered by the government, the local intelligentsia and the media loyal to it. The facts established in the courtroom and the deterrent value of sentences passed against the perpetrators retain only an abstract academic value in the face of all-present denial advanced by local authorities through the continued discrimination of victims, the denial of their suffering and their need to have it acknowledged by the wider community.

Institutions conducting war crimes trials must make it clear to the constituents, but also to the wider international audiences and the relevant bodies, that such conduct of the government impedes their work and undermines its contribution to a lasting peace and social recovery. Courts, and particularly the ICTY, have often pointed to the governments’ responsibilities in matters of cooperation, including arrest of the indicted persons and access to documents, but have only rarely brought attention of relevant audiences to the destructive effects of the hostile propaganda perpetrated by the state and its mechanisms as a factor directly influencing the success of their mission in dealing with mass atrocities.

This has to be done from the outset for two reasons: Firstly, it can result in governments’ acceptance of their crucial role in creating an atmosphere conducive to having fair proceedings for war crimes, which will in turn allow the trials to assume their part within the context of a genuine societal effort to deal with the past constructively. In such atmosphere, trials can have the intended positive long term impact on the communities trying to overcome the legacy of mass atrocities. Secondly, even if the governments continue to pursue policies hostile to the mandate of the institutions conducting the trials, the constituencies will be well aware of the limitations this imposes on the courts in terms of any long term impact. Consequently, the expectations within communities will be based on the understanding of the context in which war crimes trials are held, victims will see the courts as their allies in the effort of achieving redress for their suffering and act together in the effort to have governments assuming their responsibility to lead the process of dealing with the past.

(originally published in the Oxford Journal of International Criminal Justice)

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[2]       ‘The role of the Tribunal cannot be overemphasized. Far from being a vehicle for revenge, it is a tool for promoting reconciliation and restoring true peace…Thus the establishment of the Tribunal should undoubtedly be regarded as a measure designed to promote peace by meting out justice in a manner conducive to the full establishment of healthy and cooperative relations among the various national and ethnic groups in the former Yugoslavia’, Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc. A/49/342-S/1994/1007, 29 August 1994, para. 16. These various intended purposes are enshrined in many documents and reports of the ICTY, see SC Res. 808, 3 May 1993, and SC Res. 827, 25 May 1993, and in those of relevant national judicial bodies, including the War Crimes Chamber of the Court of Bosnia and Herzegovina (‘Court of BiH’). Meddžida Kreso, President of the Court of BiH, commented ‘It is important to emphasize that in the War Crimes Chamber of the Court of BiH we have today inaugurated, with the assistance of international community, permanent Bosnian institutions which will serve citizens of Bosnia and Herzegovina for years and decades, as long as it is necessary to see justice for the crimes that were committed. Institutions that will guarantee that this society has the capacity to deal with the past, that it has independent institutions that can provide fair trials and full rights afforded to the accused persons. And not only because the international community expects that from us, but because we are fully aware of the need not to allow the legacy of war crimes to determine our future’, Speech at the inauguration of the War Crimes Chamber, 9 March 2005.

[3]       D. Shelton (ed.), Encyclopaedia of Genocide and Crimes against Humanity, Vol. 3 (Farmington Hills: Macmillan Reference, 2004), at 1045-1047.

[4]       The media would often amplify these views, further cementing such misperceptions among the wider public. A recent survey conducted in Bosnia and Herzegovina confirmed that more than 85% of those polled rely on media reports and politicians’ statements for information on institutions dealing with war crimes. See ‘Public perceptions of the work of the Court of BiH and Prosecutor’s Office of BiH, Prysm Research, July 2008.

[5]       The Municipality of Prijedor is located in the North-Western part of Bosnia and Herzegovina, known as the Bosnian Krajina. The town of Prijedor is the largest settlement in the municipality. For centuries, the Municipality of Prijedor was inhabited predominantly by Bosnian Serbs, Bosnian Muslims and Bosnian Croats. According to the official results of the census in Bosnia and Herzegovina (31 March – 1 April 1991), the Municipality of Prijedor had 112,543 residents. 49,351 of the participants in this census (or 43.9%) regarded themselves as Bosnian Muslims, 47,581 (42.3%) as Bosnian Serbs, 6,459 (5.7%) as ‘Yugoslavs’, 6,316 (5.6%) as Bosnian Croats and 2,836 (2.5%) as ‘Others’. Each group formed a majority of the population in some areas of the municipality, while in other parts the population was mixed. Serb, Muslim and Croat communities in the Municipality of Prijedor usually co-existed in a rather peaceful manner, even during the radical geopolitical changes in the Balkans at the end of the nineteenth and beginning of the twentieth century. Today the Municipality of Prijedor has some 105,000 inhabitants and although there is no official data on the ethnic breakdown of this number, it is clear that Bosnian Serbs form an absolute majority of the population, Official internet presentation of the Municipality of Prijedor, available online at http://www.opstinaprijedor.org/content.php?content_category=41. Since the end of the war, several thousands of Bosnian Muslims and Croats have returned to their pre-war homes, but most of those who were expelled in 1992 now live in Western Europe, North America, Australia and elsewhere.

[6]       As the conflict in Bosnia and Herzegovina erupted in 1992, a comprehensive pattern of atrocities amounting to a campaign of persecution was committed against non-Serbs in the Prijedor municipality. This included killings on a massive scale in the Omarska, Keraterm, and Trnopolje camps, in Bosnian Muslim and Croat towns and villages throughout the municipality and, finally, on Mount Vlašić. Rapes, sexual assaults and beatings were committed at the camps and the vast majority of non-Serbs either fled Prijedor or was deported. See e.g. Judgment, Prosecutor v. Milomir Stakić (IT-97-24), Trial Chamber, 31 July 2003, §544, available online at http://www.icty.org/x/cases/stakic/tjug/en/stak-tj030731e.pdf. The number of those killed during the campaign of ethnic cleansing in 1992 was never officially established. However, information collected by some NGOs suggests that it is between 3,200 (Association of Families of Missing Persons ‘Izvor’, ‘Book of Missing Persons of Municipality of Prijedor’) and 4,100 (Information and Documentation Center, ‘Human Losses in BiH 1991-1995’ Project). 1173 persons are still missing according to the International Commission for Missing Persons, ICRC, and the Association of Families of Missing Persons ‘Izvor’, and mass graves are still being discovered and exhumed throughout the municipality.

[7]       Events that took place in this municipality significantly influenced the international community’s response to the widespread mass atrocities and ethnic cleansing which took place in Bosnia and Herzegovina in 1992. The images of the emaciated detainees of the Omarska and Trnopolje camps, which brought back the nightmarish visions of Nazi concentration camps, tested the international community’s commitment to international law and catalyzed the establishment of ICTY, the first international war crimes court since the Nuremberg and Tokyo tribunals.

[8]       Viewed geographically, the largest number of cases conducted before the ICTY related to a specific area of focus on Prijedor, with those put on trial coming from all levels of responsibility – from camp guards and policemen, camp commanders, municipal leaders to the presidents, government ministers and top military commanders. Apart from 20 individuals from Prijedor accused of direct involvement in crimes committed during 1992, a number of senior officials including Slobodan Milošević, Biljana Plavšić, Radovan Karadžić, Momčilo Krajišnik, Radoslav Brdjanin and others were indicted on the basis of their command responsibility, see ‘Key Figure of ICTY Cases’ available online at http://www.icty.org/sections/TheCases/KeyFigures. The first case held at the Tribunal was that of Duško Tadić, a local SDS official and camp guard in the Omarska camp, and the response to the judgment passed in this landmark case among the local Bosnian Serbs in Prijedor triggered the establishment of ICTY’s Outreach Program, Interview with Gabrielle Kirk McDonald, President of ICTY 1997-1999. Other international criminal trials pertaining to the events in this municipality include cases against Milomir Stakić and Darko Mrdja. Trials addressing crimes committed in Prijedor were also held at the local level before the War Crimes Chamber of the Court of BiH, including one of the cases transferred from the ICTY in accordance with Rule 11bis of the ICTY’s Rules of Procedure and Evidence. See e.g. Babić Zoran et al, X-KR-08/549 and Željko Mejakić et al, X-KR_06/200. In addition, trials of direct perpetrators have in recent years been held in the District Court in Banja Luka. From 2005 to 2009, four Prijedor-related cases were tried before the Banja Luka District Court.

[9]       This article will not attempt to provide a definition of the term ‘victim’ in the broader context, but will limit the use of this term, for the purposes of this analysis, to those who have personally been exposed to a trauma or have lost members of immediate family within the campaign of persecution of non-Serbs in the Municipality of Prijedor. During interviews with 23 victims, some of whom insisted on anonymity, it transpired that there were two main sub-categories of victims relevant to this analysis and that this categorization was a direct result of their participation or non-participation in trials before the Tribunal, the Court of BiH and the District Court in Banja Luka. Although they shared perceptions of certain aspects of trials, their personal experiences of testifying in court or being left out of the process provide for different sets of factors, often decisive, that shape their views of court justice. This paper is based not only on the interviews conducted for the specific purpose of its writing, but also on the author’s experience, both professional and personal, regarding the issues discussed in this paper. The author does not intend to suggest, however, that its findings and conclusions are valid in all contexts or are exhaustive of the issues relevant to the matters discussed. An effort was made, however, to identify interviewees that could most relevantly assist with elucidating the issues that are discussed in the present article. Interviewees whose names are given in this paper gave their authorization for their names being published in this context. Quotes used from interviewees who sought not to be identified by name are referred to as ‘Anonymous Interviewee’ and are numbered in the chronological order of the interview process.

[10]     This article will hopefully add to the already existing literature on the impact of the ICTY in the former Yugoslavia by focusing on the perceptions of war crimes trials as a mechanism of justice, rather than any specific institution. It attempts to investigate what, if any, transformative effect these trials have had at a time when the ICTY is gradually approaching its end and local courts still struggle to cope with the huge caseload. For the broader analysis of the relationship between the ICTY and the constituencies in the former Yugoslavia see: ‘The Witnesses: War Crimes and the Promise of Justice in The Hague’, Eric Stover, University of Pennsylvania Press, 2005; Eric Stover and Harvey M. Weinstein, My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (London: Cambridge University Press, 2004); Kristen Cibelli and Tamy Guberek, EPIIC, Justice Unknown, Justice Unsatisfied? : Bosnian NGOs Speak about the International Criminal Tribunal for the former Yugoslavia, (Boston: Tufts University, 2000). Available online at Human Rights Center and the International Human Rights Law Clinic, “Report: Justice Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors,” Berkeley Journal of International Law 18 (2002): 102-64; James Meernik “Justice or Peace: How the International Criminal Tribunal Affects Societal Peace in Bosnia, ”Journal of Peace Research 42 2005:271-290; John Hagan and Sanja Kutnjak. “The Politics of Punishment and the Siege of Sarajevo: Toward a Conflict Theory of Perceived International (In) Justice,” Law and Society Review 40 no.2 (2006): 369-41; For a review of the literature see: Leslie Vinjamuri and Jack L. Snyder, “Advocacy and Scholarship in the Study of International War Crimes Tribunals and Transitional Justice,” Annual Review of Political Science 7 (2004): 345-362. Generally, see: Mark Osiel, Mass Atrocity, Collective Memory and the Law (New Brunswick, NJ: Transaction Publishers, 1997). ‘Shrinking the Space for Denial: The Impact of the ICTY in Serbia’, Diane Orentlicher, Open Society Initiative, 2008; and the upcoming ‘Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Post-War State’, Lara J. Nettlefield, Cambridge University Press, 2010.

[11]     Interview with the representatives of the Association of Families of Missing Persons ‘Izvor’, Fatima Fazlić and Edin Ramulić.

[12]    ‘When I got out of the camp in 1993, I had no expectations that anybody would ever face justice for          what happened to me or that somebody would ask me to give a statement. There was a war, I was preoccupied with surviving it,’ Husnija Avdagić, camp inmate of Omarska, Keraterm, Manjača and Batković camps who never testified in a war crimes trial.

[13]     ‘All refugees and displaced persons have the right freely to return to their homes of origin…The Parties shall ensure that refugees and displaced persons are permitted to return in safety, without risk of harassment, intimidation, persecution, or discrimination, particularly on account of their ethnic origin, religious belief, or political opinion’, Article 1 and 2 of Annex 7 to the General Framework Agreement for Peace in Bosnia Herzegovina (Dayton Peace Accords), 21 November 1995, signed in Paris on 14 December 1995, available online at http://www.ohr.int/dpa/default.asp?content_id=375.

[14]     ‘I was very happy when ICTY was established and when I was first contacted by ICTY investigators in 1993 while in exile. I gave many interviews to media, NGOs and other institutions and they picked up my name. At that time I even believed that Tribunal would help stop the war and crimes’, Interview with Nusreta Sivac, former judge from Prijedor, detained in the Omarska camp during June and August 1992.

[15]     Case Information Sheet of Duško Tadić, available on the website of the ICTY at http://www.icty.org/x/cases/tadic/cis/en/cis_tadic_en.pdf.

[16]     Case Information Sheet for Milan Kovačević, available on the website of the ICTY at http://www.icty.org/x/cases/milan_kovacevic/cis/en/cis_kovacevic_milan_en.pdf.

[17]     C. Hedges, ‘NATO Troops Kill a Serbian Suspect in War Atrocities’, New York Times, 11 July 1997, available on the website of New York Times at http://www.nytimes.com/1997/07/11/world/nato-troops-kill-a-serbian-suspect-in-war-atrocities.html.

[18]  Roberto Belloni, ‘Peacebuilding at the local level: Refugee return to Prijedor’, 12 International Peacekeeping, Issue 3, 2005, 434 – 447.

[19]     ‘The man who wanted me dead is today in Prijedor and still works in Prijedor. Upon my return I had to approach him in order to get the license to reopen the school in Kozarac. It is the reality we have to live in’, Interview with Hamdija Kahrimanović, former teacher and director of Primary School in Kozarac, former detainee of Keraterm and Omarska camps, who testified in the case against Duško Tadić.

[20]     ‘I returned to Prijedor in summer of 1999. It was unthinkable at the time, but I did it because I believed things were going to improve rapidly, that justice was coming, people were returning to the city despite the horrible things happened’, Interview with Nusreta Sivac.

[21]     ‘You can imagine what it is like to return to your home after leaving it in the most terrifying circumstances and to meet the people who committed all those crimes, walking freely as if nothing happened. It is so difficult to accept that, especially as we all walk the same streets and pass by the houses which are empty now, all their inhabitants killed, passing by mothers whose sons were killed in the camps’, Interview with Hamdija Kahrimanović.

[22]     ‘I thought that all would have to follow the Tribunal, politicians, international community, everybody. That what was being said in those courtrooms would echo all the way to Sarajevo, that there will be no place for war criminals in Bosnia after the war’, Interview with Anonymous Interviewee No. 5, witness in Meakic et al, IT-95-4. .

[23]   ‘We expected more criminals to be prosecuted, that the trials would be more expeditious’, Interview        with Hamdija Kahrimanović

[24]     ‘I was approached by ICTY investigators during my stay in Germany. They came to my apartment and were truly correct, compassionate even, I regarded them as friends’, Interview with Hamdija Kahrimanović.

[25]     ‘It is unlikely that anybody would do what the Tribunal has done, to prosecute people they did.’ Edin Ramulić, Association of the Families of Missing Persons from Prijedor ‘Izvor’. ‘I wanted to get involved, to contribute. My main motive was to try and somehow do something for those who were killed, those whom I knew that perished in the crimes committed in Kozarac and Prijedor. I had to do it as it was only us who survived it that could tell what had really happened and how, the facts. And that those who committed those crimes get the punishment they deserve’, Interview with Hamdija Kahrimanović.

[26]     ‘The courts have to do their part. However, I think that the trials in The Hague lasted too long, that it all together – the low sentences, early releases and other privileges for the convicted – became farcical, like some bizarre soap opera, rather than an effort to achieve justice. In the end, there will be a record of the crimes that happened and within it my personal story, which is possibly some satisfaction for the victims and the families of the killed. But, now it is clear that such trials alone will not bring about reconciliation and the needed change in people’s mindsets’, Interview with Kemal Pervanić, from Kevljani near Prijedor, former detainee of Omarska and author of Killing days: My journey through Bosnian war, (Blake Publishing, 1999).

[27]     On 5 May and 8 May ICTY Judges Vohrah and Riad granted the leave requested by the Office of the Prosecutor to withdraw the charges against 14 accused in the Omarska and Keraterm indictments: Zdravko Govedarica, Gruban, Predrag Kostić, Nedeljko Paspalj, Milan Pavlić, Milutin Popović, Draženko Predojević, Željko Savić, Mirko Babić, Nikica Janjić, Dragomir Šaponja, Dragan Kondić, Goran Lajić, and Nedjeljko Timarac. Information available on the website of the ICTY at http://www.icty.org/sid/7671.

[28]     ‘Due to such low sentences several men are already free. One of them, Dragan Kolundžija, has not served a day in real prison. That same man was in charge of the camp on the night my father Uzeir, my brother Enes, my cousins Samir, Emdžad and Nedžad were killed. So, that man is now free and I probably pass by him in Prijedor. So, he is alive and free while all these innocent men, who were unarmed, are dead. The worst thing is that we don’t even know where their bodies are’, Interview with Edin Ramulić.

[29]    Out of 28 persons convicted by the ICTY to date, 23 have been granted early release upon serving two    thirds of their sentences. The remaining five were released after serving most of their sentences in the UN Detention Unit after being sentenced to between 3,5 and seven years imprisonment. http://www.icty.org/sections/TheCases/KeyFigures. At the ICTY, the practice of early release is regulated by the Rule 125 which determines that: ‘In determining whether pardon or commutation is appropriate, the President shall take into account, inter alia, the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor.’, while criteria is set out in the “Practice Direction on the Procedure for the Determination of Applications for pardon, Commutation of Sentence and Early Release of persons convicted by the International Tribunal. http://www.icty.org/x/file/Legal%20Library/jud_supplement/supp4-e/index.htm The ICTY’s practice of early release refers to the provisions in national laws of EU countries, where it is standard to release convicted persons after they served out two thirds of their sentence, as illustrated by the provisions of the German Criminal Code: ‘Under Section 57(1) StGB, “[t]he court shall suspend the execution of the remainder of a fixed term of imprisonment and grant probation, if:

1. two-thirds of the imposed punishment, but not less than two months, have been served;
2. this can be justified upon consideration of the security interests of the general public; and
3. the convicted person consents.

To be considered in making the decision shall be, in particular, the personality of the convicted person, his previous history, the circumstances of his act, the importance of the legal interest threatened in case of recidivism, the conduct of the convicted person while serving his sentence, his living conditions and the effects which can be expected as a result of the suspension”

[30]     ‘I have always hoped that the court in Sarajevo (Court of BiH)would prosecute more people than the Hague Tribunal. They always said that Tribunal had no capacity to try everyone. I thought, ok, the time has come now for all those who have killed with their own hands to be brought to justice’, Interview with Anonymous Interviewee No. 2, former inmate of the Keraterm Camp.

[31]     The State Court of BiH has to date tried two Prijedor-related cases, one of the being Meakić et al, a case against the commander and the guards of the Omarska and Keraterm camps, transferred from the ICTY in accordance to the Rule 11bis (see http://www.sudbih.gov.ba). The second is the Korićanske Stijene case, in which 10 former members of the Prijedor Police Intervention squad were indicted. In this case ten members of the Prijedor Police Intervention squad were indicted for the massacre of some 180 men taken off a convoy of refugees at Korićanske stijene on Mount Vlašić (see, again, http://www.sudbih.gov.ba).

[32]     P. Singh, Looking for Justice: The War Crimes Chamber in Bosnia and Herzegovina, Human Rights Watch, February 2006, Vol. 18, No. 1(D), at 6.

[33]     Some families attended guilty pleas of Damir Ivanković and Gordan Djurić in the Korićanske Stijene case. There is no record that any victims from Prijedor ever attended sessions in Meakić et al. case, Interview with representatives of Association ‘Izvor’.

[34]     ‘In November 2005, for the first time since the end of the war, a war crimes trial of Bosnian Serb suspects before an RS court ended in convictions. The Banja Luka District Court sentenced Drago Radaković, Drasko Krndija and Radoslav Knežević, former RS police officers, to between 15 and 20 years imprisonment for the murder of six Bosniak civilians in Prijedor in 1994’, Amnesty International, Amnesty International Report 2006 – Bosnia and Herzegovina, 23 May 2006, available online at http://www.unhcr.org/refworld/docid/447ff7a02f.html. It should be noted that later sentencing practices appear to have adopted a more ‘lenient’ standards adopted by the ICTY and the State Court of BiH. For instance, Pero Djurić, Stojan Bešir and Boro Milojica have been convicted for murder as a war crime against civilians and have been handed sentences ranging from 7 to 8 years of imprisonment.

[35]     Interview with representatives of Association ‘Izvor’.

[36]     The trials are conducted in small courtrooms where the accused and victims are sitting next to each other, resulting in the extreme discomfort of the victims and sometimes in incidental situations. In such circumstances, family members and friends of the accused spend breaks with the victims in same corridors and it has been noted by trial monitors that witnesses have been threatened or approached to change their testimony, Interview with representatives of Association ‘Izvor’. The practices of direct confrontation between witnesses and shortcomings pertaining to the protection of witnesses have also been identified as problematic issues.

[37]     ‘I was determined to do it and could not wait for it to happen. I felt such a spiritual satisfaction after the testimony that I could do something for those innocent victims. I felt grateful for the opportunity to tell my story, unburden myself. In fact, I felt sorry I had asked for protection, that I didn’t testify publicly,’ Interview with Anonymous Interviewee No. 4, witness in the Korićanske Stijene case.

[38]     ‘I see the accused I testified against every day, he is on provisional release. Every time I see him I feel extremely uncomfortable. I see him as a person who did something terrible, something that I witnessed. It gives me shivers,’ Interview with Anonymous Interviewee No. 7, witness in the Korićanske Stijene case.

[39]     ‘The sentence is hugely inadequate for the crime that was committed. Laughable. It is good that there was a trial at all, but I personally thing that the punishments are wholly inadequate as compared with the crimes. They killed my brother in front of his house, entire families were killed for no reason, and to give the perpetrators 10 years is nothing. But, it is what it is,’ Interview with Hamdija Kahrimanović. ‘I am not at all satisfied with the sentences for Omarska, Kertarem and Manjaca. If you take into account how many people were killed the length of sentences is ridiculous. Everybody knows that if you kill someone in a car accident you are bound to get 10 years, and they killed tens, hundreds of people and get 10-15 years and later are released without even serving that much’, Interview with Husnija Avdagić.

[40]     ‘I was disappointed, I comforted myself with a thought that the court probably had some ‘better’ witnesses whose testimony will be mores useful than mine. I would have appreciated a call to inform me that there my testimony was not needed. The feeling this experience left me with was that some ICTY staff did not give a damn about victims and their feelings,’ Interview with Kemal Pervanić.

[41]     ‘I wish that trials could bring justice to victims, but the way it is done it seems impossible. If you are honest and decent about it, when you consider that the person convicted of these murders was sentenced to 14 and will be out in nine or ten years and all those boys that were 19 or 20 when he killed them are gone forever, how can you call such a sentence and such a trial justice?’, Interview with Anonymous Interviewee No. 7. Victims often compared the sentences given to those who committed murders and torture at the detention camps with the sentences given to the perpetrators of peacetime crime, which often equal if not exceed those given out by war crimes courts. E.g. Interview with Anonymous Interviewee No. 5, witness in Meakić et al case, ‘I am not at all satisfied with the sentences for Omarska, Kertarem and Manjaca. If you take into account how many people were killed the length of sentences is ridiculous. Everybody knows that if you kill someone in a car accident you are bound to get 10 years, and they killed tens, hundreds of people and get 10-15 years and later are released without even serving that much.’

[42]     ‘I was looking forward to it as an opportunity to release all this that was eating me up, to tell my story, what I knew, so that it is not forgotten, that it gets recorded. It was very difficult for me to enter the courtroom; I was perspiring and extremely nervous. But, when it finished, I felt such a release, as if a mountain was lifted of my back’, Interwiew with Anonymous Interviewee No. 2.

[43]     ‘I testified to contribute to justice and feel satisfaction I took part in what resulted in punishment for those who committed crimes. The truth is recorded now, but the sentences are such that it makes me think that only God’s punishment would be adequate, that we men are unable to provide real justice,’ Interview with Mustafa Puškar, former inmate of Omarska, Keraterm and Trnopolje camps, testified in Meakić et al case.

[44]     ‘I feel somehow robbed of the opportunity to tell my story where it matters most,’ Interview with Teufik Kulašić, former inmate of Keraterm and Trnopolje camps who never testified.

[45]     ‘I do regret nobody ever called me to testify, on one hand. On the other, I am so disillusioned by everything that is happening, the absence of basic rights for the victims, that I don’t really think it would make much of a difference’, Interview with Husnija Avdagić.

[46]     ‘I don’t believe justice will ever be achieved. And trials have shown this. The sentences given at the end of these trials are no justice for what happened to me and others like me. I believe that it would be better if victims were at least compensated in some way. We live in very difficult circumstances and the most just solution would be to award the victims a certain amount to compensate for the pain and the fear they suffered, the impact this had on their physical and psychological health’, Interview with Husnija Avdagić.

[47]     According to the Association ‘Izvor’, the number of victims inquiring about compensation is immeasurably higher than the number of those inquiring about testifying in war crimes trials.

[48]     ‘Some sort of material compensation would at least make the life easier for victims. It would never replace their loss, but it would help them bear the reality they live in, regardless of the fact they don’t have the satisfaction they expected’, Interview with Hamdija Kahrimanović.

[49]     ‘Public perceptions of the work of the Court of BiH and the Prosecutor’s Office of the Court of BiH’, Prysm Research, July 2008.

[50]     Information available on the website of the ICTY at http://www.icty.org/sid/10169.

[51]     Interview with representatives of Association ‘Izvor’. Some progress was made recently with a consultation meeting organised by the Coalition for Regional Truth Commission (KOREKOM), which was attended by representatives of victim groups and other community figures from all ethnicities. See http://www.korekom.org/public/fck_files/Lok%20konsult_-civilno%20drustvo-Prijedor-zakljucci-jg-nk-13%2005%202009.doc.

[52]     See e.g. M. Klarin, ‘The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia’, 7 Journal of International Criminal Justice, No. 1, 2009, 89-96.

[53]     Interview with representatives of Association ‘Izvor’.

[54]     ‘The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to National Court’, International Center for Transitional Justice, October 2008, available online at http://www.ictj.org/images/content/1/0/1088.pdf.

[55]     Ibid.

[56]     Ibid.

[57]     Interview with representatives of Association ‘Izvor’.

[58]    Ibid

[59]     ‘I heard about it through the media. I believe it is a humane act to admit one’s guilt, admit you made a mistake, committed a crime. No matter whom we are talking about. But, I believe his sentence is too lenient, regardless of the fact that he pleaded guilty, after all he participated in the killing of 200 people,’ Interview with Anonymous Interviewee No. 7.

[60]     ‘What he said in that courtroom does not mean anything to me or to any of my relatives. The only positive outcome would be if Serbs from Prijedor were to turn their heads away from Banović, to hide their children when he appears’, Interview with Edin Ramulić, former inmate of Trnopolje camp, whose brother and father were killed in Keraterm camp.

[61]     ‘In fact, victims believe that guilty pleas exonerate the crimes, while a guilty plea should be just one mitigating factor in sentencing. Unfortunately, in many judgements that was not the case. The plea agreements have turned into the forgiveness of crime’, Interview with Mirsad Tokača, Director of Investigation and Documentation Centre, Sarajevo.

[62]     The guilty plea of Dragan Fuštar, the first accused who pleaded guilty in Prijedor-related cases before the Court of BiH, received almost no coverage in the media in Republika Srpska. The main public broadcaster, Radio Television of Republika Srpska, completely ignored his guilty plea on the day, while reporting in detail about the ‘draconic sentences’ pronounced on the same day against three Bosnian Serbs for crimes committed in the area of Jajce. The local media in Prijedor followed the same pattern. A similar approach was adopted the local media following the guilty pleas of Gordan Đurić and Damir Ivanković, members of the Prijedor police intervention squad involved in the killing of more than 120 men at Korićanske Stijene in August 1992. Except for the Internet-based news agency BIRN and Sarajevo-based media, there was very little or no coverage in the media.

[63]     ‘When we have such memorials for Serbs in Sarajevo and Tuzla, we’ll have them here too. But, until then, there is no way we can even speak about a memorial [for non-Serb victims] in Prijedor’, Interview with Marko Pavić, Mayor of Prijedor, SRNA News Agency, 7 August 2009, http://www.svevijesti.ba/content/view/37236/215/. There have been several religious memorials erected recently in Muslim cemeteries in outlying villages with exclusively Bosniak population. The municipal authorities seem ambivalent to such initiatives as long as the memorials are not in the city of Prijedor itself. On 2 December 2009, mayor Pavić attended the ceremony marking the start of construction of a memorial in Kozarac, but refused to contribute funds from the municipal budget for this purpose, while all memorials to Serb victims have been financed by the Municipality. See ‘Tihic polozio temeljac za spomen obiljezje nastradalim’ at http://kozarac.ba/modules.php?name=News&file=article&sid=4310&mode=thread&order=0&thold=0

[64]     ‘To erect such a monument in the Trnopolje concentration camp could only be called sarcasm, irony, I don’t know what else. They wrote on it: “To the fighters who died for Republika Srpska”, it’s a monument to celebrate them? Every time I see that monument I am truly hurt and I cannot understand it. I can understand when somebody does not want to talk about crimes that happened. But to celebrate crimes with monuments?! It is simply ludicrous’, Interview with Nusreta Sivac.

[65]     ‘My insecurity comes from the fact that I was expelled and not accepted back upon my return. I have no way of getting my old job back or obtaining any of the benefits available to Serbs. I would be able to feel at least somewhat better about what happened to me if I had the same conditions of life as I had before I was taken to the camp’, Interview with Hamdija Kahrimanović.

[66]     In the summer of 2008, a former member of the UN Commission of Experts (Morten Bergsmo, 1993-94.  Legal Adviser, United Nations Commission of Experts established pursuant to Security Council resolution 780 (1992), seconded by the Norwegian Ministry for Foreign Affairs), which in 1992 investigated reports of mass atrocities in Bosnia and Herzegovina and subsequently authored the report recommending the establishment of the ICTY, travelled to Omarska, a village near Prijedor, where a notorious camp was operated by the Bosnian Serb Police and the Army in the summer of 1992. It was situated in an iron ore mine at the end of the village, with only one road leading to it. The lawyer wanted to visit the site and asked local villagers for directions. Not one of the people he asked acknowledged the existence of the camp claiming that they had no clue about it. Person after person he approached had only one thing to say: ‘What camp? There was never a camp here. I don’t know what you are talking about.’ In the end, he found the site of the ore mine which was used to house the camp, and which is today in operation, owned by Arcelor Mittal, a multinational steel giant.

[67]     ‘When I was president, two reporters came and interviewed me like you’re interviewing me and they told me they had just returned from Prijedor, that they had taken with them this Tadić judgment that we had spent so many months working on. They were told by the people they interviewed that these camps were not detention camps, that they were collection centres to hold people who were on their way out, who wanted to leave the area. They did not believe anything in the judgment, or certainly did not believe that. And I was devastated’, Interview with Judge Gabrielle Kirk McDonald, ICTY President 1997-1999.

[68]     See http://www.icty.org/sections/Outreach/OutreachProgramme.

[69]     See http://www.icty.org/sections/Outreach/OutreachActivities.

[70]     See ‘Prijedor victims recall infamous camps’, BIRN Justice Report, 8 August 2008, http://www.bim.ba/en/127/10/12294/.

[71]     See, again, M. Klarin, ‘The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia’, 7 Journal of International Criminal Justice, No. 1, 2009, 89-96.

[72]     ‘I think that one has to acknowledge that this is a long term investment. Frankly, it would be ridiculous to suggest just because this mechanism is in place, you’d have one trial and everybody would shake hands as at the end of a football game. It’s not a football game, it’s not a game actually’, Interview with Louis Arbour, ICTY Prosecutor, 1997-1999.

[73]     L. J. Nettlefield, Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Post-War State, (Cambridge University Press, 2010, forthcoming), at 299.

[74]     ‘Trials are only one factor that can help reconciliation. We who live in Prijedor can testify that trials had little or no effect on the Serb community here. But, I still insist that all who committed crimes must face justice. What is needed is a public debate, we have to talk about what happened. Wider community must face what happened, the past must not be pushed aside or swept under the carpet’, Interview with Nusreta Sivac.

[75]     ‘There is total denial here, even to this day. It took my son of four years old to come to Prijedor after I returned here in 2000, it was that difficult for him to face this town after all that happened. But my Serb neighbours will not acknowledge what happened to us, that we were taken to the camp and what horrors happened to us there. That hurts me the most’, Interview with Mustafa Puškar.

[76]   The most recent and most illustrative such case was the early release of Biljana Plavsic, former                   president of Republika Srpska, sentenced to 11 years following her guilty plea to charges of crimes against humanity committed through a campaign of persecution against non-Serbs in more than 30 municipalities of Bosnia and Herzegovina, including Prijedor. See ‘Plavsic’s early release provokes strong condemnation in Bosnia’, 28 October 2009, HINA and ‘A land where war criminals are heroes’, Radio Free Europe, 5 November 2009.

[77]   Infra 27

[78]     ‘I was recently stopped by a policeman for speeding and three days later he was arrested as one of the executioners in Korićanske stijene! I would not say that there are hundreds of people like him working in the institutions of the state, but there are tens, certainly. If I expect anything from courts, it is that people like these are arrested’, Interview with Hamdija Kahrimanović.

[79]     ‘The recognition of my suffering is more important to me than material compensation of any kind. If there was a public effort of the local Serb community to say ‘yes, we know what happened, we recognise it,’ it would mean more to me than all the money in the world. That would lead to reconciliation’, Interview with Anonymous Interviewee No. 2.

[80]     The most cited example is the statement of Prijedor’s Mayor, Marko Pavić, in the occasion of 16 May 2009, Day of Prijedor Municipality, in which he insisted on the need to acknowledge ‘the death of 969 citizens of Prijedor during the homeland war’, clearly referring to the Serbs from Prijedor who died as VRS soldiers and completely ignoring more than 3000 non-Serbs killed in Prijedor itself. Statement broadcast on TV Prijedor, ‘Dnevnik’ on 16 May 2009.

[81]     ‘If reconciliation is really wanted, there has to be more honesty, more decency. Why do we still not know where the missing persons are, where all the mass graves are? Reconciliation depends on the satisfaction that those directly affected, who lost someone close to them, receive from trials. I don’t believe this will happen. But we have to live on, in the circumstances as they are. This is Bosnia and Herzegovina; we all share this space and have nowhere else to go’, Interview with Hamdija Kahrimanović.

[82]     Interview with representatives of Association ‘Izvor’.

[83]     ‘Sometimes I think that the best thing to do is simply to forget about it and move on. Concentrate on the every day things, your children, if you have them, work, I don’t know, football. It happened, but I can’t remain a prisoner of it, I have to live’, Inerview with Anonymous Interviewee No. 5.

[84]     ‘The facts are most important to me, facts and their memorialization, remembrance. It would mean so much to me if Omarska was to become a memorial where people could visit and learn about what happened. And those judgments can help for that to happen. They will be there forever, the facts are recorded and they can’t be ignored’, Interview with Nusreta Sivac.