The Centre for Nonviolent Action has published a new book, Negotiated Justice: Plea Agreements for War Crimes in the Former Yugoslavia
The book is available in PDF format via this LINK. For a hard copy, please contact the CNA office in Sarajevo or Belgrade.
The publication is divided into two parts: the first deals with analysis and theory and the second functions as an archival database of plea agreements. Part I includes the historical, legal, ethical and social context of the development and application of plea agreements in war crimes cases and Part II provides an overview of plea agreements concluded before international and domestic courts in war crimes cases from the territory of the former Yugoslavia.
The book’s editors are members of the CNA team Nedžad Novalić and Davorka Turk, and the chapters were contributed by Davorka Turk, Nenad Vukosavljević and Nedžad Novalić. The Archive of Plea Agreements for War Crimes in the Former Yugoslavia was edited by Edin Ramulić. The book was translated into English by Ulvija Tanović.
When it comes to prosecuting those responsible for war crimes, the experience of the former Yugoslavia is a special case. Not only is the International Criminal Tribunal for the former Yugoslavia (ICTY) the first international tribunal founded after the Second World War, but local courts, especially those in BiH, tried an exceptionally large number of individuals for war crimes. Their number remains unprecedented and unsurpassed. In a world where the International Criminal Court (ICC) is under direct pressure from the most powerful countries, the undertaking to prosecute so many of those responsible seems an even more extraordinary historical event. While it is possible to be critical of the idea that the entire process of dealing with the legacy of war – most often called transitional justice, both here and elsewhere – is based almost exclusively on justice dispensed by courts and on trials of those responsible for war crimes, the legacy of those courts and trials represents valuable material.
This publication is an attempt to rescue this material – specifically as it relates to individuals who have admitted to committing war crimes before the courts – from oblivion, and to offer it as a tool that can be used in countering the denial of someone’s suffering, in the fight against the denial of established facts, but also by those who wish to analyse in greater depth all or some of the cases in which plea agreements were concluded. The majority of those who pled guilty to war crimes have neither denied their confessions nor called them into question by subsequent actions. Moreover, there are also individuals who only admitted to war crimes after being tired and having served their sentences, thereby removing any suspicion of trading information for a lighter sentence, which is present in cases of guilty pleas made during the trial. Of course, viewed in a broader context, our experience is also relevant as a guide: what are the dos and don’ts, what warrants particular attention, what was missing in the process of dealing with the legacy of war…
We owe a special debt of gratitude to the considerable number of people we spoke to while preparing this publication. Their contribution was much greater than what can be shown by citing their insights and reflections, especially given the fact that we have been collaborating with some of them on peacebuilding for years. A list of persons interviewed for Negotiated Justice and their brief biographies are given at the end of the publication.
This book is also in a way dedicated to Edin Ramulić, the most tireless fighter for justice we have encountered in this region. His courage, perseverance and sense of justice are an inspiration to many. Including us.
Negotiated Justice Book Review
The publication Negotiated Justice – Plea Agreements for War Crimes in the Former Yugoslavia, published by the Centre for Nonviolent Action, represents an important contribution to discussions of criminal justice in the process of establishing facts about the past and building peace in the post-Yugoslav context. It provides insight into how legal norms intertwine with social conceptions of justice, opening up space for a deeper understanding of victims’ frustrations and expectations. The authors begin from the premise grounded in years of fieldwork that despite delivered judgements, convicted perpetrators and available evidence, families of victims still feel that justice has not been done. Already at the beginning of the publication we encounter the key paradox: even when there are judgements, the affected communities often perceive the crimes as unpunished. From this insight follows the main research question of this study: To what extent do plea agreements contribute to a sense among war crimes victims that justice has been done, or do they maybe detract from it.
The publication is divided into two parts: the first deals with analysis and theory and the second functions as an archival database of plea agreements. Part I includes the historical, legal, ethical and social context of the development and application of plea agreements in war crimes cases and Part II provides an overview of plea agreements concluded before international and domestic courts in war crimes cases from the territory of the former Yugoslavia.
The research covers the genesis, development and application of plea bargaining in the practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) and domestic courts, tracing its path from (un)acceptability in the early stages, over a turning point in the Dražen Erdemović case, and to its formalisation in Rules 62bis and 62ter of the Rules of Procedure and Evidence. Already in the first case, it became clear that guilty pleas would have to meet the standards of being given voluntarily, being informed decisions and being unequivocal.
Despite efforts to ensure certain legal standards, guilty pleas before the ICTY had their share of controversy. In some cases, they were susceptible to manipulation, tactical manoeuvring and political opportunism. The case of Biljana Plavšić stands out in particular, given that she subsequently brought her guilty plea into question, which suggests that these agreements were often concluded for pragmatic rather than ethical reasons. What is more, these reasons did not always issue from the side of the accused, but also from the Prosecution when it concluded agreements for the sake of “significant savings in time and resources of the international community” and not primarily in the interest of establishing all the facts related to the charges against the accused.
In the ethical and social layer of their analysis, the authors take a critical look at the issue of genuine remorse, the possibility of manipulating legal procedures to obtain a lighter sentence and the limitations plea agreements present to establishing the full truth and providing satisfaction for the victims. Cases where admissions of guilt ensue after the start of trial, as well as those where they come after the sentence has been served are also presented, further complicating the issue of honesty and conduciveness to reconciliation. The assumption that expressing remorse in the context of war crimes trials can have a healing effect for both perpetrators and victims, and by extension for the whole of society, is limited not just by the public being insufficiently informed about the trials, but also by the political frameworks within which the remorse is publicly disclosed and interpreted.
Nevertheless, in the context of mass crimes, expressing remorse also has a rehabilitative function. In the years following the first guilty plea before the ICTY, when it came to decisions on early release, the Tribunal’s President, Judge Carmel Agius, took the view that the rehabilitation of perpetrators of genocide, crimes against humanity and war crimes should not be treated in the same way as the rehabilitation of perpetrators of “ordinary” criminal offences. Indicators of rehabilitation in persons convicted of war crimes and other violations of international humanitarian law would have to include the acceptance of responsibility for the crimes or for actions that enabled the commission of the crimes. Agius goes a step further and points out that a person convicted of war crimes must exhibit signs of critical reflection upon his or her crimes. Public or private expressions of genuine remorse or regret and actions taken to foster reconciliation or seek forgiveness are also indicators of rehabilitation in persons convicted of war crimes. The burden of proof falls on the convicted persons to demonstrate rehabilitation. An example where the Tribunal took this view is the Decision on the Application for Early Release of Sreten Lukić (especially paragraphs 50-54).
The analysis also looked at the caselaw of national courts in the countries of the former Yugoslavia. Although war crimes trials in Croatia, Bosnia and Herzegovina, and Serbia are conducted within similar legal frameworks, the approaches differ in practice. A comparative approach shows that the efficiency of judicial mechanisms does not depend only on legal procedure, but also on how the justice system, the media and society perceive war crimes, i.e. on the political discourse within which trials take place. As a result, court proceedings and their outcomes – facts established in court – have limited reach in social contexts lacking support for responsibility and truth.
This is borne out by the chapter An Admission Itself Has That Power: Voices of Those It Concerns which brings together the caselaw with the perception of plea agreements for war crimes by those who are involved in war crimes trials by their work or position or participate in other processes of dealing with the past. Relying on the words of prosecutors, judges, lawyers, witnesses, families, victims’ associations and activists, the authors precisely map the reach of plea agreements for war crimes in social memory and the desired catharsis and proclaimed reconciliation. It becomes clear that guilty pleas do not have transformative power without active acceptance in society. When they are not made politically operational and are not institutionally supported, and when they lack appropriate education efforts, admissions of guilt remain invisible to the wider public and their symbolic value is lost.
In that respect, the authors highlight the role of the media, identifying them as the missing link. The media, which had a significant role in the armed conflicts and have been recognised as sources of propaganda, continued to reproduce war narratives and ethno-centric interpretations of the conflict in their post-war societies. Although some media outlets certainly had a positive role in spreading facts about the crimes committed during the conflicts, these were very rarely public broadcasters or any media with close ties to the governing structures in all the relevant countries. The authors nevertheless note that media attitudes towards war crimes trials are not determined only by their attitude towards the past, but also by the relationship between courts and the media, i.e. the courts’ openness towards media outlets as mediators between what happens in court and the public. This is also demonstrated by the fact that most ICTY trials were fairly well covered in the media as a result of the cooperation of the Tribunal with the media and the fact that the ICTY tried the highest government representatives and high-level military and police officials. The analysis of the regional caselaw shows that in Bosnia and Herzegovina, Croatia and Serbia, courts do not view their work within the broader social context and therefore do not recognise the importance of the media for war crimes trials.
The concluding chapter in Part One of the publication returns the reader’s attention to the publisher’s main focus – peacebuilding. The author takes issue with the concept of unresolved violent conflict and unsuccessful transitional justice to warn that despite the judgements having been delivered, their essential significance has not been conveyed into social dialogue. The potential for conflict has not been eliminated, societies remain wounded and vulnerable because they have not gone through collective introspection to reach acceptance of the truth. Absent this kind of catharsis, reconciliation remains superficial and ineffective. Instead of healing, societies maintain the potential for renewed violence. War crimes trials represent just one aspect – and a limited one at that – of efforts to overcome a traumatic past.
The publication gains particular value due to its database of plea agreements, according to which a total of 105 persons pled guilty to war crimes before international or domestic courts. The database is the first systematic overview of plea agreements and as such constitutes an important resource for further research and for countering the denial of crimes. What the database lacks is a comparison of elements that make up plea agreements within the systems where they are instituted. Although they are described in detail in the publication, an explicit list of differences between the public admissions of guilt we could observe in the courtrooms of the Hague Tribunal and the plea agreements concluded before domestic courts – where they are treated almost as a formality and do not entail a public hearing – would help readers better understand the inconsistency of practices and give a sense of the role that the trials have in the societies where they are conducted. The relationship between the public and the courts is already visible from the amount of available data on individual plea agreements that the authors have managed to gather from the various courts.
The publication Negotiated Justice shows that the level of satisfaction provided by criminal justice falls far short of victims’ expectations and that this situation is mediated by society, politics and the media. War crimes trials are conducted in silence, within a discourse of marginalisation and ethno-nationalist victimisation, as shown by, among others, Katarina Ristić in her study (available in bhs).
It is, therefore, especially important that the study by the Centre for Nonviolent Action goes beyond descriptive analysis to ask questions about the role of justice, guilty pleas, remorse and social acceptance in pos-twar societies. Through legal frameworks, ethical considerations and empirical insights, this publication offers a complex but necessary picture of the limited achievements of criminal justice in the post-war societies of the former Yugoslavia.
Jovana Kolarić, sociologist and researcher at the Humanitarian Law Center (HLC)