Global Policy Forum

By Milanka Saponja-Hadzic

The Hague Tribunal has often had a rocky ride in Serbia, with some officials and hard-line military men rejecting wholesale the idea that war crimes were committed, and that a foreign court should extradite and try Serbs. But now, some lawyers in Serbia and Montenegro are criticising the tribunal for allowing plea-bargaining, which they say dilutes the impact of war crimes trials.

Hague prosecutors heralded as a breakthrough the guilty pleas filed by former Bosnian Serb president Biljana Plavsic in October last year, and more recently by two Bosnian Serb army officers accused of participating in the 1995 Srebrenica massacre of thousands of Bosnian Muslim men and boys. Some victims' groups also welcomed the admissions of guilt, saying this gave them some recognition of their suffering.

But these guilty pleas came at a price. In both trials, the defendants used plea-bargaining to get serious charges of genocide against them dropped.

Plavsic received what many believed was an exceptionally light sentence of 11 years, which she is now serving in a Swedish prison.

The two Bosnian Serb commanders, Momir Nikolic and Dragan Obrenovic, admitted guilt on lesser charges and agreed to give evidence against two other officers indicted in the same case. They are awaiting sentencing hearings, and can expect to receive shorter prison terms than if they had been convicted of genocide.

The tribunal hoped the guilty pleas would have the greatest impact in Serbia, where there has been resistance to the principle of war crimes trials and a reluctance to face up to Belgrade's role in the bloodshed in Croatia, Bosnia and Kosovo.

Chief prosecutor Carla Del Ponte said she hoped the Srebrenica officers' admissions would help establish the truth about what happened in Bosnia, and contribute to the process of reconciliation.

The Humanitarian Law Centre in Belgrade agreed, saying the public in Serbia could now start coming to terms with the atrocities committed in the name of the Serb people, and that the withdrawal of genocide charges did not diminish the men's responsibility for the terrible crimes they committed.

"Through this act Nikolic and Obrenovic are helping their people face the truth," said a statement issued by the law centre. "Coming to terms with the dark legacy of the past can be achieved by taking responsibility for the crimes committed against the victims of Srebrenica, mankind's greatest shame."

But others in the liberal wing of Serbia's legal establishment have expressed serious misgivings about what effect reducing the charges against alleged war criminals will have on an already sceptical public.

Liberal Belgrade lawyers say that although they understand the pragmatic motives for brokering plea agreements, they do not approve of them. Such deals do not make for justice, and do little to help Serbia face up to its responsibility, they say.

"The deal helps the court to pass a sentence more easily, but justice cannot be served this way," IWPR was told by Belgrade lawyer Jovan Buturovic. "The only proper solution is to have a serious trial, to exhibit evidence and hear the defence, and assess the level of the indictee's responsibility."

Buturovic warned that "a plea that forms part of a deal could be false, a way of covering up something or somebody. And that is always done at the expense of the victims."

The legal establishment's suspicion of plea-bargaining stems in part from their being accustomed to the continental legal system, which does not employ the practice. The tribunal's procedures are derived from a combination of both the continental and common-law legal systems, and makes provision for plea agreements.

Milan Popovic, a law professor in the Montenegrin capital Podgorica, said that many in Serbia and Montenegro perceive the guilty pleas not as true expressions of guilt, but simply as individuals trying to cut the best deal for themselves. "People are only pleading guilty in a bid to get more simply lenient sentences, otherwise they wouldn't do it," he said.

"I am afraid that double standards are being applied. That does not help us face up to the past, but only strengthens resentment," he added.

The relatives of victims and anti-war activists have taken an even stronger stand against the practice.

"By pleading guilty, Plavsic did not bring into question the state policy that led towards the extinction of the Bosnian people, in which she played an important role," said Sefko Alomerovic, the president of the Helsinki Board in Sandzak.

According to Alomerovic, Plavsic played an important role in the Bosnian Serb scheme to remove the Muslim population, "She was the driving spirit behind the plan."

By letting the Bosnian Serb leader off with a relatively lenient sentence, the tribunal has "made fun of the victims and of an institution that should protect justice. No one, not even the court, should have the right to do that."

Ramiz Crnisanin, another lawyer from Sandzak, agrees with Alomerovic. "Plavsic was no accidental accomplice in the genocidal politics that led to murders and looting," he said. "I understand the sympathy the court showed because of her age. But what about those to whom she did not show the slightest pity?"

Those legal experts who have come out in support of the tribunal have in the past been swimming against the tide, and have risked being labeled traitors by their more conservatively-minded peers. The use of plea-bargaining now appears to be undermining their faith in the Hague process - and they form a constituency whom the tribunal desperately needs to have on board if the process of meting out international justice is to work.

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