Sretko Damjanović and Sead Čirkin should have nothing in common.
Damjanović, a Bosnian Serb, defended the flag marked with the four S’s of Republika Srpska (RS) in 1992. Čirkin, a Bosniak, fought with the Army of BiH for the independence of the Republic of Bosnia and Herzegovina under a flag with six lilies.
Far from the front lines, however, both lost their freedom, and almost their lives in military courts.
Those courts represented the first efforts within the former Yugoslavia to deal with the crimes that arose in the commission of war. The international community took away from the combatant nations much of the responsibility for war crimes justice when it opened the International Criminal Tribunal for Yugoslavia (ICTY) 12 years ago.
Now, the ICTY is winding down and the ongoing work of resolving war crimes is returning to the BiH State Court and its new War Crimes Chamber.
The military justice delivered during the war in Sarajevo, Banja Luka and other jurisdictions on both sides of the lines, has been questioned by experts and some military judges from the time.
Damjanović, Čirkin and others convicted during the war, object to the military court officials, who even today work at the State Court, and who could sit in the new War Crimes Chamber.
The critics say that the credibility of the Chamber, and its ability to aid reconciliation, will be threatened by the shadow of injustice that hangs over the memory of the military courts.
Records show there were Bosnia Serb military courts in what is today East Sarajevo, Bijeljina, Banja Luka and Bileća. The BiH government had military courts in Bihać, East Mostar, Sarajevo, Tuzla and Zenica. The former government of Herzeg-Bosnia established military courts in west Mostar, Livno and Novi Travnik.
The mission of the earlier military courts was to punish members of the local armies who disobeyed customs of war or their commanding officers, and to punish civilians found to be working against local governments and armies, according to the laws at the time of the Bosnian Serb entity and BiH. Speed and decisiveness rather than fairness were the hallmarks of these courts.
But to Damjanović and Čirkin the military courts were nothing but rough justice.
When he was first detained in 1992 in Sarajevo, Damjanović said that he was misled into signing a 60-page statement, which he did not read, as an inducement to be part of a prisoner exchange. He was kept in jail, and when he appeared in court, he found out he had signed a confession admitting to murdering Bosniaks, ethnic cleansing, and rape.
Damjanović was sentenced to death but he appealed three times and had the sentence reduced to 40 years and finally nine years, according to his lawyer.
Then, while he was serving his sentence, the two brothers he “killed” turned up alive, according to Damjanović and the judge in the case.
The judge, who sentenced Damjanović to death, Fahrudin Teftedarija, said recently that the military courts operated as well as possible in the middle of a war.
‘Damjanović was convicted for war crimes against civilians, prisoners, and not for murdering any particular person,” said Teftedarija, who is now an attorney.
Teftedarija also disputed Damjanović’s claims of ill-treatment. There were no beatings or other mistreatment. Judges even ate the same food as the prisoners, he added.
Damjanović said he is 80 percent disabled today because of years of physical and mental abuse in the Sarajevo military prison.
The organization of military prisons was as bad as the justice of the courts, according to Goran Mikulčić, a lawyer from Croatia, who defended Zlatko Aleksovski, the war-time warden of the district prison of the HVO (Croatian Council of Defense) in middle Bosnia.
Prison guards were police officers but the wardens were civilians, he said. No one knew who exactly was in charge.
Damjanović’s BiH Army peer, Čirkin, is still fighting to establish his innocence. He was convicted in the Banja Luka military court of murdering a civilian, attacking a Bosnian Serb military formation and organizing a mutiny against military authority. Čirkin says he was innocent and wants to clear his name but he never received the decision in his case or even saw the indictment. When he finds the documents he said he will try to get his day in court.
Čirkin served just 13 months of a six-year sentence and then he was released as part of a prisoner exchange.
A former judge of the Banja Luka district military court, Radenko Janković, who sentenced Čirkin, and now works as a criminal judge in Banja Luka basic court, refused comment on the case through his office.
Čirkin said his six-year sentence was proof of the lack of serious justice in the military courts. If he was guilty of murder he should have received the death penalty, he said.
The haphazard justice of the military courts has been vehemently criticized by one former military court official.
Marko Mikerević, a Serb and a war-time lay judge, who works now as a lay judge in Doboj, published a controversial book last year titled “Sarajevo Vats of Death” in which he detailed disparities in military court sentencing.
For example, a Bosnian-Serb soldier in the RS Army, who was found guilty of “betrayal of country,” was sentenced to death, which was later changed to 20 years in prison, Mikerević wrote. But a Bosniak army guard at the “Ramiz Salčin” detention facility, who regularly wounded prisoners, got a year in prison. Both trials were conducted by Judge Salem Miso in Sarajevo, according to Mikerević.
Mikerević quit the court in 1995 and later left Sarajevo, never to return, because of what he felt were biased decisions against Serbs by Miso and Judge Davorin Jukić, who also served on the military court.
Miso now serves as a judge in the State Court and recently returned the guilty verdict for Abduladhim Maktouf in the Court’s first war crimes trial.
Jukić was seated as a judge in the new War Crimes Chamber this spring, which will begin trials this fall.
Both Jukić and Miso refused interviews citing a ban on talking to the media instituted by State Court President Meddžida Kreso. Kreso also refused to answer questions.
But Muhidin Kapo, a Bosniak former judge, who sat with both Jukic and Miso in the Sarajevo Court, said that they were both good judges, who followed the law.
Kapo, who Mikerević himself has described as the only competent judge on the Sarajevo panel, said that he sometimes disagreed with Miso’s views and attitudes. But Miso was simply a strict judge acting within the law, and he was never unfair, Kapo added.
Kapo has read Mikerević’s book and said that most of his criticisms of the Sarajevo military court are untrue.
Despite Damjanović’s death sentence, Kapo insisted that defendants like Damjanović and Čirkin were actually saved by the military courts from death on the front lines.
Judge Vlado Adamović, another current State Court criminal judge, who could sit on a war crimes trial, said that the Zenica district military court, where he was also a judge, was far from perfect under war time conditions.
“If someone did a serious analysis of cases in military courts, for sure there would be dozens, maybe hundreds, of mistakes, not just in decisions but also in procedure,” he said.
If the State Court excluded all military court officials from its current roster of judges and prosecutors it would be an ideal solution, High Judicial and Prosecutorial Council president Branko Perić said. But then there would not be enough qualified people to run the court system.
“The military courts were part of the system (and that experience) should not disqualify anyone (now),” Perić said.
The HJPC and its international predecessor have carefully reviewed the backgrounds and decisions of all judges hired by the State Court, Perić added.
But the issue may yet become a legal way to challenge the decisions in the coming war crimes trials.
Josip Muselimović, president of the Bar Association of FBiH, said that in a case he was defending he would ask for the recusal of any judge who had been a judge of a martial court during the war.
Damjanović and Čirkin suffered similar fates from the military courts but their lives since the war have taken a different turn.
Damjanović, the Serb, vowed never to return to his home in Vogošća, 10 kilometers from Sarajevo in the Federation.
Čirkin, the Bosniak, not only returned to the place he was born, Kozarac in the Republika Srpska, but is today a member of the House of People at the Assembly of RS.