Credibility of court important to BiH residents

The new BiH War Crimes Court Chamber and truth and reconciliation commissions are promising the hope of changing hearts on all sides of the conflict. But court observers, international experts and even members of the court itself, agree that there are many logistical and political problems that threaten the success of the court, even with the backing of €16 million in international donations for the next two years.

Court of BiH (Photo: CIN)

Gojko Knežević, more than most BiH veterans, knows something about the reconciliation that will be necessary to make lasting peace in BiH.

While BiH and international legal officials prepare this year to accept the transfer of war crimes defendants from the international tribunal at The Hague, and others discuss truth commissions, all in the name of helping BiH ethnic groups to live together again, Knežević knows what they all are looking for.

As an eight-year-old during WWII, Knežević, a Bosnian Serb watched the Croat jailers of Jasenovac prison camp murder his mother. But he survived the camp only to become a jailer himself 60 years later, and know a moment when he had to resolve the sadness and hatred in his own heart.

In 1992, as a Republika Srpska soldier, Knežević controlled the fate of 52 Bosniak children, elders and women, who had been captured in Donji Vakuf.

He had complete control over the prisoners and if he had executed them no one would have known, But Knežević said he rejected feelings of revenge and exchanged his prisoners with the other side.

Instead of becoming their executioner, Knežević is, to this day, their hero.

The new BiH War Crimes Court Chamber and truth and reconciliation commissions are promising the hope of changing hearts on all sides of the conflict just as Knežević changed his own.

If those efforts work they would give the kind of justice that Knežević could never imagine. Knežević never had the chance to testify against his mother’s murderers. He was too young to remember their faces. He can only remember his mother’s screams before she was mutilated and then killed.

In a new era, the new war crimes chamber, which opened its doors at the new court building in Sarajevo last March, will bring to trial defendants whose victims have had to watch them freely walk the streets for the last 10 years.

But court observers, international experts and even members of the court itself, agree that there are many logistical and political problems that threaten the success of the court, even with the backing of €16 million in international donations for the next two years.

As the court’s problems have mounted the idea of a separate “truth and reconciliation” commission, similar to those tried in other countries such as South Africa, is being talked about again, after at first being rejected in favor of the court.

In a three month investigation of the hopes for reconciliation in BiH, by the Center for Investigative Journalism in Sarajevo (CIN), a team of journalists found the new court struggling to open its doors, only to be left with new facilities, expensive international judges and prosecutors, and no cases in the new state courtrooms.

A CIN sponsored poll conducted by Prism Research shows that few BiH citizens in either entity are familiar with the new court, and that they are unsure of how it is supposed to help them learn to live with their neighbors.

In a series of articles, CIN will explain the challenges of the reconciliation process that the court and country face.

This story examines reconciliation alternatives, a war crimes court and a truth and reconciliation commission, two ways to find a truth that can bury the past.

“Crimes repeatedly occur,” Gojko said, “because people are taking revenge against each other, not knowing that it is a crime.” Experts agree with Gojko.

The theory of reconciliation is based on recovering the system of values and beliefs, and therefore the way of life, that existed before the conflict, according to Sociology Professor Slavo Kukić of the University of Mostar.

But trust between BiH groups can only be restored, say the experts, if the three separate versions of the events that took place between 1992 and 1995 can become a single accepted version of the truth.

That was the goal of Jakob Finci in 2000 when he helped start an association to establish a truth and reconciliation commission for BiH, similar to those that had been successful in South Africa and Peru.

Finci’s idea was that the commission would provide an opportunity for all war victims to tell their own stories, voluntarily and publically, so that everyone could eventually view the war as a whole.

In addition to victims, the commission would also hear from those, like Gojko, who became enemies of their own ethnic group by making tough decisions to uphold community values.

After an estimated five to seven thousand testimonies, Finci said, a final report with supporting evidence would become a joint history of all BiH’s groups. That history would be taught in schools and would inoculate a new generation against the loss of values that led to the war, he added.

But the commission idea came in to immediate conflict with the existing war crimes court.

The International Criminal Tribunal for the former Yugoslavia (ICTY) at The Hague, which began in 1993, at first opposed the commission, Finci said.

“They were afraid that the commission would take their witnesses away,” Finci said.

The ICTY has now modified their opposition to the idea of a commission. The ICTY Prosecutor’s Office said any commission should not begin until at least 100 cases have been prosecuted by the new Chamber.

“First we need to satisfy justice, and a commission cannot do that,” said Florence Hartman, spokesperson for ICTY Prosecutor’s Office. But in 2001 the parliament bill written by Finci’s association never made it past the Ministry of Human Rights and Refugees, which talked with missing persons groups from all three ethnic groups.

“They were united in their opinion,” remembered Saliha Đuderija, an expert in the ministry office, “They rejected the idea of establishing the commission claiming that the only thing that matters to them is to find their family members.”

Many of the victims have not changed their minds.

Rufejida Buhić, a 64-year-old mother from Srebrenica, who lost her son in the war, said recently she simply hates Serbs.

“They took the innocent away,” she said, sitting in the association of “Mothers of the Srebrenica and Žepa Enclaves” office with photos of the town’s missing on the wall behind her. “What commission? No one can help me.”

Sixty-eight year old Obrad Milović, a Bosnian Serb from Mostar, who lost his only son in the war, agreed to the idea of a commission, but it should be dedicated to finding missing persons from all three ethnic groups, he added.

Many victims, like these, do not think a war crimes court in The Hague, or a new chamber in BiH, is any better than a commission.

“A bunch of transnational quacks, working in a vicious circle,” said Nadija Odović, talking about the international judges, who will sit in the new BiH War Crimes Chamber.

Odović, president of the Stari Grad Association of Families of Dead Veterans in Sarajevo, who lost seven members of her family, said she is unimpressed by what the ICTY has accomplished.

“Let everybody deal with their own (past),” she said.

When the UN Security Council established the ICTY in 1993, one of its primary goals was to begin to establish a single truth that could deal with that past.

In the aftermath of the war the Tribunal was of crucial importance to BiH, according to Zdravko Grebo, a law professor in the Sarajevo University Law School.

“Since we are neither brave nor strong enough to admit what happened, there was nothing else but The Hague,” he said.

By last April, the international court with a staff of over 1,200 from 82 countries spent 12 years and nearly one billion USD to bring 162 indictments against defendants from the region. The ICTY, a temporary court, with no judges from the region, was set up under international law instead of the domestic laws of BiH and the other combatant countries.

Among the ICTY’s accomplishments, are the beginning of a historical record that can no longer be denied by former combatants, and an example of rule of law for the region, according to Jim Landale, a spokesperson for the ICTY.

Landale also noted that the ICTY brought nearly 4,000 victims and witnesses to The Hague and involved them in the judicial process.

But the ICTY has produced a lack of results with only 35 sentences in 12 years, according to its critics, including victims, who said the sentences have been too lenient.

The CIN/Prism poll found that 61 percent of the BiH public is dissatisfied with the slow progress of the ICTY.

Some of the disenchanted can be found among BiH court officials.

“If we look at The Hague (as an example) we can expect a catastrophe,” said Branko Perić, president of the High Judicial and Prosecutorial Council. “If it takes (the BiH Chamber) that long, its going to be really bad.”

The first trials headed for the BiH Chamber have already been delayed from last January to a new starting date of sometime this fall, according to court officials.

Michael Johnson, the State Court’s temporary registrar and international overseer said the court will benefit from the experience of the ICTY and a similar tribunal for Rwanda, for both of which he worked as a prosecutor.

“Local justice is the best justice,” is the main lesson to come out of the international adhoc tribunals, Johnson said.

But other officials see the increasing costs of the ICTY, as the international motivation for transferring most of the war crimes cases back to combatant countries.

“I think it’s …the money, not reconciliation,” said Slobodan Kovač, BiH Justice Minister.

Regardless of the reason for the change in strategy, the Chamber with its combination of local and international judges is an opportunity to give the BiH public a new sense of justice, according to former judge and prosecutor, Vehid Šehić.

“If citizens’ trust in institutions, such as the Court of BiH where war criminals will be tried, can be restored,” Šehić said, “that will be a sign that BiH citizens’ trust in each other can be restored.”

Before that trust reappears, however, the credibility of the court is already being threatened by the enormity of moving the burden of the war crimes trials to BiH.

Defense attorneys doubt the fairness of a BiH court putting Serbs on trial in the country where their alleged crimes took place.

Chamber trials have already been delayed from a promised January opening until the fall bringing fears it will adopt the pace of the ICTY.

The Chamber is also still trying to set up a witness protection program.

The credibility of the new Chamber is also likely to be tested by the disparity of resources between the Chamber at the State Court, funded by western donor countries, and the cantonal courts, which will not get additional funding for the deluge of war crimes cases they are expected to handle.

“It is not our mandate, nor do we have the resources to reform the (entire) justice system,” warned Johnson, “We do have the resources to reform the State Court to meet demands of these (war crimes) cases.” Meanwhile, with the Chamber still struggling to start its first trial, Finci has rekindled his commission idea with new financial support from the American Institute for Peace, according to Finci.

The institute was funding an office for Finci’s association in the beginning, according to Branko Todrović, another member of the association.v Former Deputy HR Donald Hays represented the institute on a visit last April to BiH. Hays and Bruce Hitchner, an expert on the Dayton Accords from Tufts University in Boston, held discussions with BiH parliament on possible constitutional changes, and they also reviewed the commission proposal, Hitchner said.

The institute told Finci that they would formally begin to work with the association in September, about the time the first Chamber trial is to begin, to set up a commission, Finci said.

If BiH gets a commission it will join 22 others that have been used in areas recovering from conflict, according to Priscilla Hayner, who has studied truth commissions for 10 years. Hayner wrote the book “Unspeakable Truths, Confronting State Terror and Atrocity.”

Both South Africa and Peru used commissions to reestablish stability in society after a terrible internal conflict.

“Certainly the most famous and successful is the example of the South African Commission,” Hayner said.

The South African Commission was established in 1995 after 40 years of apartheid and terror by the white minority. The commission looked at crimes committed by both blacks and whites. The main goal of the commission was to gather victims’ testimonies on the events, and to financially compensate the victims in relation to the level of suffering.

For the first time, many of the minority whites heard about the murders and tortures committed against the black majority.

The commission in Peru added another part of the truth to its mandate: establishing the exact number of victims killed from 1980 to 2000 during the conflict between the military dictatorship and the Shining Path and other rebel groups.

“They found that (approximately) 60 000 people were killed,” Hayner said. “That number is two times bigger than the one expected prior to establishment of this Commission.”

The Commission visited every town and graveyard in the country and interviewed witnesses, Hayner said. The awareness of the tragic and deadly consequences of the conflict will bring about the resolve needed to curb violence in the future.

The most important factor in the success of a commission is that it be guaranteed independence from the beginning, Hitchner said.

Lack of independence made a similar commission in Serbian and Montenegro irrelevant, according to one of its former members.

The commission was established in March 2001. By April, Vojin Dimitrijević, distinguished professor of international public law, had submitted his letter of resignation to President Vojislav Koštunica. The commission’s narrow powers without the right to subpoena witness, unlike the South African commission, made the endeavor a fruitless search for the truth, Dimitrijević said.

“The Commission made up exclusively of citizens of the Former Republic of Yugoslavia, without any Montenegrins, had to appear biased,” he said in his letter of resignation.

Most of the Commission members, Dimitrijević said, were historians, who wanted to go back 50 years for an explanation of the bitter ethnic war. He wrote Koštunica that the Commission should determine what happened during the war and leave historical causes to someone else.

“This commission lacked the specific power, funds, the selection of its members wasn’t transparent, and the participation of public in its work was not satisfactory,” Hayner said.

Four years later, the commission still exists but has done nothing of importance, Dimitrijević said.

A BiH commission, however, could address the problems with the Serbian model by representing all three ethnic groups, which would, in effect be a regional commission.

Unlike the new War Crimes Chamber or the incipient commission, at least one humble reconciliation attempt is working and has been since 1997. At the Center for Non-Violent Action, a multi-ethnic group of former war veterans are trying to build trust the hard way, one person at a time.

Adnan Hasanbegović, an activist, along with his colleagues, managed to gather together three former soldiers at several public panel discussions called “Four Views.”

The fourth view was simply another soldier on one of the sides that had a different view of the war than his ethnic colleagues.

“That fourth person was a soldier too, but we showed to the people that two soldiers from the same army have whole different stories and motives,” Hasanbegovic said.

The panels, which started in 2003 and have been to all ethnic areas of BiH, created angry confrontations, applause and tears, Hasanbegovic added.

“We recognized that (the panel discussions) brought a kind of specific responsibility and credibility to the community,” Hasanbegovic said. “Their story is the story of all of us.”