Global Policy Forum

By Toby Sterling

U.N. judges, handing down a tough 27-year sentence against a Bosnian Serb who pleaded guilty, raised a fundamental question: Are plea bargains appropriate for heinous war crimes? As part of a deal with prosecutors at the Yugoslav war crimes tribunal, Capt. Momir Nikolic changed his plea to guilty and gave crucial testimony against his commanders and others accused of war crimes. Prosecutors had recommended a 15-20 year sentence and dropped charges of genocide in exchange for a guilty plea on persecution, a deal the judges treated with some disdain. In the end, he was sentenced to 27 years in prison for his role in the massacre of more than 7,000 Muslims in Srebrenica in July 1995. "Once a charge of genocide has been confirmed, it should not simply be bargained away," the ruling by the three-judge panel said. The long prison term could influence other suspects to fight the charges against them rather than plead guilty in hopes of a lighter sentence. Nikolic was the first of a wave of defendants this year to negotiate his plea. Making deals with suspects has been an issue of debate since the tribunal was created in 1993 to prosecute violations of the war crimes conventions in the Balkans. In the first years, prosecutors refused to consider deals. But facing a heavy caseload and a 2010 deadline for closing the tribunal, they have been more receptive to plea bargains, especially if the defendant agrees to testify in other trials. Nikolic's confession was particularly important because it gave the first insight into the Srebrenica massacre from the perspective of the Bosnian army commanders who ordered it.

But Nikolic's judges, led by presiding judge Liu Daqun of China, said sentences must be "based on the criminal conduct" of the defendant, not on offers by the prosecution. The ruling warned prosecutors against trying to save time and money, and said war criminals should not be rewarded for testifying about their crimes. "The quality of the justice and the fulfillment of the mandate of the tribunal ... must not be compromised," the ruling said. In the Nikolic case, the judges said, the prosecutors' recommendation "failed to reflect" his level of guilt. Nikolic, a former teacher, ran intelligence operations for the Bratunac Brigade, one of several Bosnian Serb army units that participated in the massacre in the U.N.-declared safe area of Srebrenica in eastern Bosnia. He admitted coordinating the separation of thousands of men from their families and arranging buses to take them away to be shot. Listening to his sentence, Nikolic stood blinking away tears and nodding. Liu said the panel had noted "with interest" that prosecutors agreed to drop the genocide charge against Nikolic, but that he still confessed to the facts upon which that charge was based. The judges said that prosecutors might not have been able to prove genocide in Nikolic's case, but said they have "a duty to prosecute serious violations of international humanitarian law." They also said it wouldn't be fair if suspects who can give damaging testimony in other cases are offered plea bargains and punished less than those who were equally guilty but didn't have the same opportunity. However, Liu said the ruling took into account Nikolic's good behavior before the war, his cooperation with the tribunal, and his remorse. Nikolic testified at the trial of his own brigade commander and at the appeal hearing of the regional Bosnian Serb army commander, Gen. Radislav Krstic, who was sentenced to 46 years imprisonment in 2001. Krstic is the only man to be convicted so far of genocide by the Yugoslav tribunal. The tribunal's two most-wanted suspects, former Bosnian Serb leader Radovan Karadzic and Gen. Ratko Mladic, were indicted for genocide in Srebrenica. Former Yugoslav President Slobodan Milosevic also is on trial at the U.N. court for genocide in Bosnia.

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