Justice Undone

On Nov. 18, convicted war criminal Slobodan Jakovljevic went home to his Bosnian village of Skelani 20 years before his sentence was supposed to end. Freed after serving eight and a half years in jail for committing genocide during the Bosnian War, he was greeted as a hero: Neighbors and supporters threw a celebration at his local Orthodox church. The head of the government assembly in Srebrenica, the municipality where Skelani sits, attended the event, which reportedly included the shooting of automatic weapons and tossing of grenades.

Jakovljevic, a Bosnian Serb, was not released because his guilt was in question. Rather, he was freed along with nine other war criminals, five of them also convicted of genocide, because an international court said Bosnia sentenced them according to the wrong law.  Some of the released men have returned home like Jakovljevic; at least two have already left Bosnia, reportedly for Serbia. And there are now concerns that many more war criminals — at least 20, but possibly up to 100 — could also be let go.

According to a press release, the Bosnian courts released the men, even though their guilty verdicts still stand, because no legal procedure exists in Bosnia to separate a conviction from sentencing. Consequently, the proceedings that put the men in prison must be repeated.

The decision to release the 10 men has exacerbated public distrust of Bosnia’s already fragile judicial institutions, and it has angered families of the 8,000 Muslim men and boys killed in the July 1995 Srebrenica massacre, the single worst atrocity in Europe since the Holocaust and a legally recognized instance of genocide. (Jakovljevic was convicted for his participation in the killing of some 1,000 civilians in a warehouse.) It has heightened tensions in and around Srebrenica, a predominately Serb area to which some displaced Muslims have returned since the war. Witnesses who testified against the men fear reprisals.

"Nothing has undermined the stability in this country since the war more than the release of 10 sentenced, convicted war criminals," Emir Suljagic, a Bosnian Muslim who survived the massacre and has returned to his home in Srebrenica, told FP. "You are letting the fox back into the chicken coop."

Munira Subasic, president of Mothers of Srebrenica, a victims association, said she filed complaints on Nov. 26 to Bosnian courts. "This ruling is shameful. We believe the court has just played with the victims," said Subasic, who lost 22 family members in the war, testified against the perpetrators of Srebrenica, and now lives in the municipality. "Yesterday, I spent the whole day on guard, looking to see if someone was behind my back. The police who should be protecting us are the same men who 18 years ago separated wives from their husbands, mothers from their sons, and wanted us killed."

The story of the procedural error that led to such anger and fear is one of bureaucracy and oversight: In 2005, the International Criminal Tribunal for the former Yugoslavia (ICTY), the ad hoc tribunal set up by the United Nations to try the Balkans’s most egregious crimes, transferred the bulk of its Bosnia-related cases to the country’s state court. There, the 10 now-released men — among others — were sentenced according to a criminal code passed in 2003. Fast forward to July 2013, when the Strasbourg-based European Court of Human Rights (ECtHR) found that two men convicted of war crimes should have instead been sentenced based on a law that was in place when the Bosnia War was happening: the 1976 criminal code of Yugoslavia.

The 1976 law specified a maximum penalty of death for genocide. The 2003 code, in conformity with European standards, abolished the death penalty but also imposed longer sentences for war crimes and added the offense of crimes against humanity, absent in the Yugoslav code. The 2003 law was written and imposed by Bosnia’s Office of the High Representative (OHR), the international viceroy put in place by the 1995 Dayton Peace Agreement, which established Bosnia’s post-conflict constitution. (The OHR has the power to remove politicians from posts and to enact laws.) Judges in Bosnia’s domestic war crimes chamber, which was created in 2004, were not required to use the 2003 code, but it is widely believed that they were pressured by the OHR to apply it.

The ECtHR said that while all uses of the 2003 code in deciding sentences for war crimes did not necessarily constitute a violation of rights, each case had to be assessed separately. Soon after, in October, Bosnia’s Constitutional Court ruled that, in light of the ECtHR decision, the group of men, including Jakovljevic, had to be given new trials within three months.

Now, the specter of dozens more appeals and of new strains on Bosnia’s war crimes chamber looms large. The chamber, which represents one of the most substantial efforts to hold war criminals accountable since the Nuremberg trials, has cost hundreds of millions of dollars, but less than 250 cases have been completed. There is a backlog of some 1,300 more. And already, Serb representatives in Bosnia’s parliament have proposed legislation to annul all sentences dictated pursuant to the 2003 code.

Bosnian Serb leaders have long applied pressure to the war crimes chamber and the prosecutor’s office because they believe both entities are biased against Serbs. (Generally, they oppose much of the work and structure of state-level institutions, preferring decentralization instead.) Complicating matters, the decision to release convicted criminals comes on the heels of other controversial moves by the Bosnian judiciary, including a 2012 decision to anonymize indictments and judgments for war crimes and the common practice of letting some war crimes indictees defend themselves without being in detention.

The messy state of affairs holds lessons and warnings for future transitional justice and state-building efforts — particularly about the dangers of overreach by the international community if it remains involved in a country’s domestic institutions. "The Dayton Peace Agreement had the seeds of Bosnia’s destruction in it, and it is playing out now," said Madeleine Rees, who led the U.N. Office of the High Commissioner for Human Rights in post-war Bosnia and is now secretary general of the Women’s International League for Peace and Freedom. "Either you are the government, or you are not. It didn’t work. And this is a lesson learned for Syria."

Echoing these concerns, a former international employee of the war crimes prosecutor’s office, who spoke on condition of anonymity, said recent events have undermined any remaining authority the international community has in Bosnia. "Locals have lost faith, and there are not enough skilled prosecutors to do the job," the source said. "This is due in large part to the international community making a mess of it."

New custody hearings for the 10 men, including Jakovljevic, who should be retried under the 1976 criminal code, will take place in the coming days. But there’s a good chance that, at the very least, the two men who have left Bosnia will remain free: Serbia and Bosnia signed an extradition treaty this September, but it does not apply to people indicted for war crimes or genocide. And the sentencing limits from the 1976 Yugoslav code could mean that even those sent back to prison might not be there very long. Jakovljevic, for instance, could get out in as little as a year and a half. 

Meanwhile, angry families in Srebrenica are swearing off Bosnia’s judicial system. "We will no longer respond to the court as witnesses, not anyone in my family and not anyone else," Munira Subasic said. "We will not go through that painful experience once again."