Police and atrocity crimes in Bosnian Krajina

INTRODUCTION

The Blogajevo pages came into existence when I spent 9 months in Sarajevo in 2014. I was there to research police violence during the 1992-1995 war. Criminologists sometimes assume that police are ‘natural’ partners in ethnic violence. I wasn’t so sure, and spent my time away from Edinburgh going through court records to see what the story was. What I found was that processes of democratisation, politicisation, deprofessionalisation and militarisation fundamentally changed the shape of the police and help to explain their involvement in atrocity crimes. A full paper, with sources and citations, is available here. 

My nine months were spent analysing over 50,000 pages of court transcripts and 3,000 pieces of evidence from two cases heard in The Hague at the International Criminal Tribunal for the former Yugoslavia (Prosecutor v Brđanin, Prosecutor v Stanišić and Župljanin). 

Police participation in genocides and atrocity crimes is well recognised. Police are trained to use violence and to obey senior authority, but to me that’s a fairly thin understanding of police. At best, it suggests a potential role in violent state action against civilians, at worst it risks taking police violence for granted. The underlying assumptions can be questioned. They ignore the possibility of untrained personnel; fail to consider in what ways and in what contexts police are trained to use violence; side-line ideological conviction or other explanations; and don’t treat violence as a process unfolding over time. Detailed description and analysis of a specific case can shed more light on these processes. 

DESCRIBING POLICE VIOLENCE

The police contributed to ethnic cleansing in the Krajina region in the north west of Bosnia through the creation of an inhospitable environment for non-Serbs, forced transfers of population and murder.

Krajina municipalities in pink and blue

Disarmament

Serb authorities, including the police, targeted disarmament programmes at Bosniaks (known at the time as Bosnian Muslims) and Bosnian Croats. In contrast they accommodated and cooperated with irregular armed formations of Bosnian Serbs and Serb neighbourhoods and villages retained or received weapons. Radio broadcasts explicitly targeted non-Serbs with calls to surrender arms. In this way, Serb authorities secured a monopoly over the material means of physical violence.

Joint military and police weapon collection programmes targeted towns, villages and individuals. Weapons taken in by the civilian police included those retained after military service, illegally procured arms and legally owned and registered pistols and rifles. These operations involved intrusive and violent police searches, arrests and large scale detention of civilians. Both before and after the expiry of deadlines, military attacks were threatened and occurred.

Detention camps, arrests, interrogation

Evidence from detainees and members of the Serb Interior Ministry describe various detention camps, often in schools, public facilities and industrial sites.

Camp detainees were held in inhumane conditions. Camps were crowded, had inadequate provision for nutrition and personal hygiene, and inmates slept on hard floors. They were humiliated and denigrated, beaten and killed.

Beatings took place during police interrogations and as part of the daily activities of the police acting as guards. In Kotor Varoš, at the school building and sawmill, acts against inmates extended to sexual violence and rape against men and women.

Individual killings include the suffocation and beating to death of men being transferred to Manjaca, and the July massacre of detainees from Brdo in the Omarska camp. Further details on individual killings and massacres in Omarska and Keraterm are found in other cases at both the ICTY and the Court of Bosnia and Herzegovina.

The ICTY evidence only includes the clearest and strongest examples, where eye-witnesses survived to testify. An association of camp detainees has wider evidence of around 700 killings at Omarska. 

Lines of control are often ambiguous in camps, but police involvement is evident. Examples include the sports hall in Sanski Most; the Manjaca detention camp; and in leadership and day to day running of camps at Omarska and Keraterm.

Interrogations took place in police stations and in camps. Teams of interrogators were made up of the regular police (Public Security Service), the intelligence-oriented State Security Service, and Military Security. In Keraterm, Manjaca and Omarska camps, interrogations categorised detainees into three groups, including men singled out to be killed. These included those in leading functions, wealthy citizens, intellectuals and professionals, suggesting a strategy to undermine non-Serb communities by removing those playing a role in organisation and representation.

In some cases, police acted to protect non-Serbs during transfers or in detention. These are limited, but indicate points where police break from the script of persistent, repeated and serious abuse and violence.

Violence outside camps and police facilities

The camps provided a contained environment in which violence was routinized. Violence, including police violence, was also prevalent outside. The police cooperated with military forces in violent attacks on villages and were involved in individual and large scale killing outside the detention camps.

The massacre at Korićanske Stijene is one of the better documented mass killings. On 21 August 1992, a police intervention squad from Prijedor shot around 200 Bosniak men at the edge of a canyon. Clothing lying in the canyon and a bad smell suggested this was not the first mass killing at the site.

A hostile environment

As part of the strategic goals of the Serb authorities to separate the peoples of BiH and to secure territory, a combination of killings, detention and harassment sought to rid the area of non-Serbs by elimination and by creating a hostile environment to promote mass population movements out of the region.

The court documents allow detailed description of this process, and can serve as a foundation for an explanation of how a multi-ethnic police force is transformed to carry out such acts.

EXPLAINING POLICE VIOLENCE

Three developments changed the structure and function of the police. First, the democratisation process and the victory of ethnically-oriented parties; second politicisation and polarisation in police agencies leading to fragmentation and deprofessionalisation; finally, the militarisation of the police.

Democratisation

In BiH’s first multi-party elections in 1990 three ethnically-based parties, the Croatian Democratic Community (HDZ), Party for Democratic Action (SDA) and Serb Democratic Party (SDS) secured 202 of 240 seats in the Republican Assembly.

A minimal consensus existed between parties around a principle of dividing up control of republican, municipal and socially-owned institutions and offices. This shows continuity with party penetration of state institutions common under communism, but in a new multi-party context.

An arrangement known as the 'ethnic key', ensuring representation of BiH's different constitutent peoples in key state functions, was also adapted to the new context.

The relative strength of ethnically-based parties became a proxy for working out the relevant ethnic composition at all levels, and parties put forward their preferred candidates. Agreement that roles and functions should be distributed across the parties did not mean agreement on the specific allocations, and many appointments were contentious.

Attachment to a party (rather than the party) remained important in securing key roles after the elections, but now with three parties rather than one. In many cases, experience was disregarded and people with no police background were appointed to leading positions or relatively junior staff were promoted rapidly.

Politicisation and deprofessionalisation

Police professionals, appointees with no previous policing experience, and party members all describe how parties put forward their own people for key police posts. In Prijedor the SDA even made a pre-election promise to appoint a Muslim Chief of Police.

Party appointees often fell short of the requirements of the job. In many cases, appointees had no background in policing. It was claimed that the Chief of Police appointed by the SDA in Prijedor had no experience policing outside being stopped for drunk driving. After an armed takeover of the town the role went to Simo Drljača, from the education service, then to a mathematics teacher. In Kotor Varoš an engineer with no experience of policing was appointed as Chief of Police, and in Ključ, the same role went to a man with experience in construction.

Regardless of the professional background of police-leaders, party-based nomination meant that candidates owed their jobs to political parties and were likely to be loyal or sympathetic to their aims. Further, candidates that did not meet pre-existing criteria diluted the professionalism of the police and new leaders were not schooled in the police values of SFRY.

Irregularities were noted throughout the service, not just at the top. Police officials sacked over disciplinary or criminal matters were reappointed after elections, while normal appointment procedures were ignored for regular police officers and circumvented to stack the police reserve with party supporters.

As BiH disintegrated ethno-political appointments and dismissals were more explicit. In June 1992, an official decision by the Krajina authorities limited all positions involving the protection of public property to Serbs and excluded those “who have not confirmed by plebiscite or who in their minds are not clear that the Serbian Democratic Party is the sole representative of the Serbian people”.

Changes in the composition of the police force question police training as a factor in their role in atrocity crimes. One witness saw men as young as 16 or 17 in police uniform.

Instead a restructured and mono-ethnic police provided an organisational framework and badge of convenience with access to the material means of violence. These means of violence were then expanded through the militarisation of the police.

Militarisation

The militarisation of the police impacted upon the structure of the organisation, the skill set of its members, the tools available, and the opportunities for engagement in activities against civilian populations.

Military tools were sometimes redeployed to police. Former military vehicles were repainted in police colours and militia in blue uniforms manned the front lines. Once mobilised, police reserves had access to weapons including automatic and semi-automatic weapons.

In the Krajina, Serb police requested military hardware from the Yugoslav People’s Army (JNA) in April 1992. It was subsequently paraded in Banja Luka and elsewhere in the region. The request included helicopters, armoured vehicles, machine guns, sniper rifles, hand grenades and other explosives.

The creation of an expanded and militarised police reserve is something that began before the division of the Ministry of the Interior in Bosnia and Herzegovina. Rooted in a Yugoslav concept of All People’s Defence, it was also a logical move in light of restrictions on military force in the UN-backed Vance plan, and the limited defensive capacity held by republics in Yugoslavia.

Special units or detachments were set up, like the special detachment of the regional Public Security Centre (CSB) in Banja Luka. The unit was formed from a mixture of police, members of the paramilitary Serb Defence Forces, and the military. Criteria for inclusion in the unit included front line experience.

Regular use of police in combat was a further threat to the distinction between police and military. The expert witness, Christian Nielsen, identified the extent of police deployment in military roles. In 1992, it was suggested that police served 300,000 man days per month in combat functions.

The different dimensions of the apparent militarisation of the police support two separate conclusions.

First, the ‘policeness’ of those who appear to be a part of the police is called into question. The wholesale transfer of personnel and weaponry from military and paramilitary units into police organisations shows a fundamental change to the nature of the police in the Krajina region, marginalising officers whose training and service started before the war.

Secondly, regular utilisation of police in military roles can create an embattled and brutalised force who view their role in terms of securing their people from an enemy as opposed to securing a more general sense of order.

A NEW POLICE: POLITICISED, DEPROFESSIONALISED, MILITARISED

The police in the Krajina region of Bosnia and Herzegovina were transformed into a tool of the SDS programme of ethnically targeted violence. This was not inevitable, but used the existing structures of policing and defence from Yugoslavia, and was shaped by the ethnicisation of politics in Bosnia’s democratic transition.

It created a police force distanced from a professional ethos, in which senior positions were held by ideologically committed party men often with no previous police experience. Uncontrolled recruitment and an absence of police training left no scope for sharing professional values that might have countered the SDS strategy.

Coupled with the military potential of a police force viewed, equipped and utilised as an integral part of the emerging state’s military capacity, this helps explain the role of the police in atrocity crimes in the Krajina, especially in the period of spring to winter 1992.

The ICTY files are a rich resource, but not without problems of coverage and interpretation. This work makes a start at mining the files to make sense of what happened in the war.

Post-Socialist Policing in Bosnia and Herzegovina

In the newly published Sage Handbook of Global Policing, I write on policing after state socialism, comparing Bosnia and Herzegovina (BiH), Georgia and Poland. What follows is a reduced version focusing on BiH only. Full references can be found in the book. It looks at a framework for comparing policing, policing in socialist systems, explores police legitimacy and structures in BiH, and the locates these in the comparative post-socialist framework, also examining police functions.

Police systems and political regimes

Rob I. Mawby suggests three dimensions of police systems for comparison: legitimacy, structure and function. Legitimacy is the source of police power. For example, a social elite, the popular will or an external power. Structures separate the police from other institutions. Structural variations include territorial divisions, hierarchies, functional divisions within and between forces, and the relationship between public and private forms of policing. Function assumes a distribution of tasks including maintenance of law and order and prevention and detection of offences.

Police and policing in exist in a wider environment and react to inputs from law makers, law breakers, from civil society and citizens, and from inside and beyond national frontiers. Changes in respect of any of these can result in changes in a police system. Equally, a police system contributes to its environment.

Police systems in a state socialist environment

János Kornai defined socialism as a ‘social-political-economic’ system based on observed historical formations, rather than on ideas. This led him to focus on the party monopoly on power as the defining element. Change in this monopoly, rather than economic policy, reflects a transition away from socialism.

Party power and police legitimacy

Many communist governments took power during, or just after, periods of revolution, war and disorganisation. The subsequent focus on retaining power was central to Kornai’s analysis. Yugoslavia is something of a special case. As a successful national liberation movement, the partisan movement enjoyed a greater degree of power.   Still, early acts of repression show the regime adopting a defensive position. By 1986, party membership stood at 9.3%, somewhere between Mongolia (4.5%) and Romania (16%). Faced with an ambivalent population, protecting a regime based on the undivided political power of the ruling party was a key task of legal and police systems.

In terms of the legitimacy, the party was the sole source of police authority. In all areas of state activity, the party played a key role in decision making, in supervising state action and in making appointments, leading to the ‘interpenetration’ of state and party. In Yugoslavia, the 1948 split with Stalin encouraged the development of an alternative model of socialism involving greater local autonomy and self-management. Nonetheless, the League of Communists of Yugoslavia (SKJ) was the basic political force and the country remained a one party state.

The party authorizes the police. The police enforce party domination. But because of their access to means of violence and surveillance, the police can threaten centres of power in the party structure. The party reacts to this periodically, as seen in the removal of Aleksandar Ranković, head of the Interior Ministry and secret police in Yugoslavia.

Structure

There is not one communist model of territorial structures of policing, rather general territorial structures of government shape police structures. Countries with some element of federalism (Czechoslovakia after 1969, the Soviet Union, Yugoslavia) reflect this in their police structures, although strong central oversight through the party remained. In Yugoslavia policing was divided functionally between the political Division for the Protection of the People (established with Soviet guidance and later changed to the State Security Service) and a Service for Public Protection.

In line with self-management and reforms geared towards destatisation, Yugoslavia developed a further element of the police system: the socialisation of security’. Responsibility for protecting their own property fell on social enterprises involved in production and socially owned security enterprises were established.

Function

Regime protection was a central function. Police functions have an implication on who is employed within the service and party penetration of the police was particularly high.

Patterns of property ownership further reinforce the function of the police in defending the party regime. Law and police are historically tied to the protection of property and productive capacity. De-privatized ownership mean the position of property in socialist economies is distinctive from that found under capitalism. Party control of property, through state ownership of the means of production, means that the protection of property is another dimension of protecting the party and reinforces the police role in the party-state-bureaucracy nexus of power.

Post-socialist trajectories and policing in Bosnia and Herzegovina

A special issue of the Slavic Review in 1999 observed that the now ex-socialist regimes in Europe shared certain similarities in form and functioning of regimes, trends leading to regime collapse and the rapidity of the end of single party systems. These commonalities were contrasted with diverse outcomes in terms of post-socialist regimes. Some states successfully consolidated domestic reforms, other slip back to or never really escape authoritarian rule, while the bulk occupy Carothers’ ‘grey zone’ in between.

Within Yugoslavia, single party rule ended in stages. Slovenia and Croatia were the first republics to hold multi-party elections in the spring of 1990, while BiH and others waited until the end of the year. The elections in BiH handed power to three ethnically-based parties which continue to play a major role in politics today. Control of the police and territorial defence units became contentious as the republic, still part of federal Yugoslavia, had no other armed forces. Throughout 1991, tensions mounted between the three parties. By spring 1992 the country was in a de facto situation of war and remained so until external intervention imposed peace in 1995. The dominant drivers of policing in BiH are as much post-conflict as they are post-socialist, reflecting the interaction of legacies of communism and conflict.

Legitimation

In socialist BiH police authority and legitimacy derived from the party, as in other socialist regimes. This was overlaid with ethnic considerations, ensuring leadership posts were shared across ethnic groups. These two factors combined in the new context emerging from the 1990 elections. The three successful parties acted as representatives of ‘their’ people in nominating police chiefs and other senior officers. Tensions surrounding this were part of the process leading to war. The fragmentation of the police along ethnic lines was clearly evident by March of 1992.

At the end of the war two competing sources of legitimation are evident: local sub-state units and external actors. The immediate post-war period saw the division of police authority across sub-state units in BiH. The Republika Srpska and many of the Cantons in the Federation of Bosnia and Herzegovina were now more ethnically homogenous and local police authority provided ethnically-based security to majority groups. At the same time, peace agreements and international institutions supported the right to return for millions of refugees and displaced people. This required oversight of local police to ensure that minority returnees were secure and that they were not victimized by police tied to local ethno-political elites. International oversight applied to individual officers and police organisations and was undertaken primarily by UN and EU missions.

Structure

The territorial fragmentation of state policing in BiH has already been identified. Peace agreements at Washington (1994) and Dayton (1995) translated wartime divisions into peacetime police boundaries, and limited central state policing powers. International agencies in BiH promoted an expansion of police functions under central state control and even attempted (and failed) to implement a consolidated framework for policing with local police areas established without reference to existing entity and cantonal boundaries.

A UN certification process saw large numbers excluded from the police, in part as a response to police involvement in war crimes and in part dealing with the entry of untrained personnel into the police between 1990 and 1995.

In the former Yugoslavia, where socially owned security firms did exist, their function was the protection of socially owned as opposed to individual property. At the end of the war, prior to the establishment of a legal framework for commercial security services, demobilized soldiers and dismissed police officers moved into this sector. Armin Kržalić's survey of licences granted in BiH suggests slow growth.

BiH joined Interpol while at war in 1992. Like other Western Balkan states, BiH’s policing is somewhat shaped by the requirements of EU association and accession. It also responds to more direct international intervention. I wrote elsewhere on the EU role in shaping policing in BiH, and voiced concerns that the EU’s narrow focus on its own security concerns risks marginalizing those of BiH’s citizens. Nonetheless, even in a small and apparently relatively weak state, domestic political forces successfully resisted EU attempts to impose a single state structure of policing. This is a good illustration of David Bayley’s view that police structures resist external change.

Bosnia and Herzegovina’s trajectory and post-socialist police systems

New regimes require new forms of legitimation and this extends to police systems. In BiH and the other cases studied, efforts were made to find new sources of legitimation for the police in the absence of single party rule. In BiH the first shift in legitimation was still very much linked to the parties in power and was associated with the stalling of the transition and development of conflict. Post-war international oversight in BiH has addressed this to some extent.

All countries studied engaged in replacing internal security personnel but with variation in how and when it was carried out. Both the Georgian and Bosnian examples show continuity in that the police remained, in the first instance, tied closely to a particular party or governing regime. In both, this is associated with a subsequent breakdown in peace and order. In each of these states, further waves of lustration take place at a later stage. Changes of personnel in line with shifts in power serve important symbolic and practical ends. As well as changes to the personnel, other changes of an important symbolic nature took place including the renaming of forces, changes in ranks and changes in uniform. This apparent shift to civilianisation sometimes sits uneasily against public information campaigns which police in more military style clothing and carrying long-barrelled weapons in the battle against organized crime, particularly in BiH.

Commercial forms of security were largely undeveloped in state-socialist police systems and have experienced ‘sudden booms’ and ‘spectacular growth’ in the subsequent period, but with significant variation. Variable growth can be explained by a range of contextual factors, including legal frameworks, demand and supply.

New possibilities for private enterprise, including in the security sector, combined with a rise of private property to create a potential market and a framework for provision. The collapse of the centrally planned economies and the introduction of market liberalisation opened formerly socialist states to a new level of consumerism and the commodification of goods and services previously provided by the state.

On the demand side of the equation, failures of state police make various forms of private security more attractive. Fear generated by increasing crime rates and the visibility of crime was common across the post-socialist world and further insecurities specific to post-war contexts featured in BiH (and Georgia). On the supply side, a boom in private security was fed by changes in state police personnel.

The opening up of previously closed economies also created opportunities for major players in the globalized security industry to extend their reach into post-socialist countries. Starting from a controlling stake in Alarm West in 2010, Securitas now employs 1,900 staff in BiH. Compared to Poland, growth in BiH and Georgia was slow, suggesting that even in the context of a security gap, a minimum of security and stability is required for the industry to develop.

In BiH, the fragmented structure of the state and state policing is reflected in companies operating in only one political unit, whether entity, canton or district. The difficulties of establishing firms in more than one entity, while not insurmountable, may have slowed consolidation and growth in the sector.

As the opening up of states in the post-socialist period generated the conditions for participation in a global security market, it also created the opportunity for greater police cooperation across borders and with states outside the former communist bloc. Arguably it made such cooperation more important, but it is structured by the integration of states in global and regional frameworks for cooperation. Of post-communist states 12 joined the EU, 4 are candidates, 2 potential candidates and a further 6 are in the Eastern Partnership scheme.

The central function of protecting and maintaining the regime has been identified in socialist police systems. Post socialist policing is often associated with a reorientation public protection. After the end of single-party rule, certain police functions also develop around the need for protection of the democratic form of politics and associated freedoms, securing the space for free political debate.

While the crime control element of policing was never absent under socialist governments, shifts in the balance between private and state ownership of property mean the police crime prevention and detection role is reoriented towards serving the public and businesses rather than the state. Each country studied took steps to break the police-party link in terms of functions of regime protection, but again with variation in timing, with Georgia being the last to do so.

In the full version of this paper, Poland, Georgia and BiH provide examples of states which made a relatively clear break from socialist power structures. They experienced divergent trajectories and development of police systems. Poland shows the clearest example of a clear and quick break, and more than 25 years on it makes as much sense to describe it in terms of its present as against its socialist past. It provided the best environment for such a break: a well-formed civic movement ready to displace and dismantle the authoritarian regime. In Georgia and BiH there was no strong, unified, and non-nationalist civic alternative to communist successors. In these two cases, the result was conflict which undermines a clear break. This shaped the development of the BiH police system through external intervention and oversight, while it took an internal revolution to challenge police abuses in Georgia. In these cases both the domestic and international environments shaped the police system, which can be understood as both post-conflict and post-socialist. If these states are also able to make a clearer break from remaining legacies of their past, it will make sense to remove them from a category defined by that past.

Oversold and under recognised: a reflection on the ICTY

Originally posted on 19 April 2016 on the Political Settlements Research Programme opinion section. 

By Adna, 13, Sarajevo at the Sarajevo Kids Festival 2013. Reproduced from Flickr under a Creative Commons licence.

In March, the chambers of the International Criminal Tribunal for the former Yugoslavia (ICTY) chambers delivered two high profile judgements one week apart: judges found Radovan Karadžić guilty across 10 counts, including genocide; Vojislav Šešelj was acquitted. Reactions to the former focused on the length of the sentence and the court’s continued record in finding evidence of genocide only in Srebrenica; the reactions to the latter focused on the credibility of the majority’s interpretation of the evidence and the extraordinary level of dissent from Judge Lattanzi. The court’s recognition that the trial of Goran Hadžić, President of the wartime Republic of Serbian Krajina, will likely never reach completion was less prominent in mainstream media. The court gave an indefinite stay of proceedings in light of Hadžić’s deteriorating health.

In light of the renewed attention generated by these decisions, this blog considers claims made for the court as a criminal justice mechanism, a means of fixing blame, a conflict resolution mechanism, and a writer of history. The court has been oversold in relation to these mechanisms, fuelling disappointment. Yet in other important areas its support of post-conflict transition has been under recognised.

Minimalist claims: deterrence and retribution

A minimalist evaluation of the ICTY focuses on the capacity to deliver on the aims expressed in judgements. Sentencing judgements focus first and foremost on retribution and deterrence. Rehabilitation comes a distant third. It may be more or less prominent after sentencing, when time is served in national prison systems which vary in their prison regimes.

Retribution and deterrence were evident in United Nations Security Council Resolution 827. In May 1993, this established the legal basis for the court, on the basis that the Security Council was

[d]etermined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them…

Assessing the record of the ICTY and subsequent international forums for prosecuting atrocity crimes in bringing about an end to such crimes is a theoretical exercise in the absence of counterfactual evidence of a world where such institutions do not exist.

Theoretically, deterrence relies on a sense of swift and certain punishment. The establishment of the tribunal preceded some of the worst atrocities of the conflicts in the former Yugoslavia. The perpetrators most responsible for war crimes did not see the threat of punishment as credible. It was not a given in the 1990s, but the tribunal has now prosecuted a number of leading figures. However others died during proceedings, before being brought to the court, or even before an indictment was produced and approved.

With a permanent International Criminal Court now functioning, prosecution and punishment seem more likely for leaders suspected of atrocity crimes. Yet a lack of international consensus means that indicted suspects such as Omar al Bashir, President of Sudan, are able to travel to states signed up to the Rome Statute with little concern over arrest. Arrest and prosecution in domestic courts utilising universal jurisdiction remains a possibility, but again not a certainty. Atrocity crimes continue, suggesting little deterrent effect of the ICTY and other institutions of international criminal justice.

Bringing those responsible to justice speaks to retribution, and proportionality between crime and punishment. There were voices of dismay that Karadžić received a sentence of 40 years rather than life imprisonment for a linked series of crimes over nearly four years, including genocide, persecution, murder, extermination, deportation, and terror. The sentence results, in part, from mitigation. A weighing of malicious intent and mass victimisation against good behaviour in court might seem perverse. But while retribution is often portrayed as retrospective and backwards looking, judges also consider the future interests of justice, and in this case, peace. Encouraging good behaviour in court and rewarding the withdrawal from politics were factors that shaped the sentence here.

Beyond retribution

Claims made by, and for, the ICTY go further: shifting blame from collective groups to the individuals with greatest responsibility; creating a new norm in conflict resolution and post-conflict development; creating an ‘indisputable historical record’ to help communities come to terms with traumatic events. The first President of the ICTY, the late Antonio Cassese , made similar claims, noting also that justice achieved by the ICTY can dissipate calls for revenge, and can provide a foundation for reconciliation.

Individualising responsibility

The trial individualises responsibility, but only in the sense that it applies a criminal law framework in translating a wide range of activities into specific crimes and identifying individual responsibility in a limited range of roles: direct executors, commanders, aider and abetters, members of a joint project.

The tribunal is limited in that it can only reach a small number of those who are criminally responsible. In each case, the fixing of individual blame is contingent on the successful gathering and presentation of evidence. Even with domestic prosecutions, it is likely that only a fraction of those responsible will be blamed.

If the court exists to fix criminal responsibility on a limited set of individuals, it is unlikely that this will prevent other forms of blame being attributed. Moral responsibility spreads to bystanders, including those in other states and international institutions that might have done more at an earlier stage to prevent the escalation of conflict, or once it had escalated, to prevent atrocities.

Karadžić, in his closing defence, sought to portray the court as an exercise in applying collective blame: the Serb people stand accused, and all Serbs are accused in the concept of a Joint Criminal Enterprise (JCE). This might make sense in a universe in which the Serb people are a uniform and homogenous group, the kind that could truly stand in unity behind one party that is their only true representative.

Nationalists, standing before the court or writing from outside it, might dream of such unity. For the court it is an irrelevance to the criminal responsibility of the individuals named as suspects or as members of a JCE. For social scientists, it is an unlikely proposition that can be dismantled with evidence of a complex and multi-dimensional society.

Conflict resolution

The court’s claim to conflict resolution rests on the fact that leaders suspected of war crimes can now expect to face justice. As noted above, this is far from certain, but while the ICTY can be credited with holding a specific set of leaders to account it cannot be held responsible for subsequent developments. The reasoning behind the claim is less than clear, but a second step linking prosecution to conflict resolution can be made. In the former Yugoslavia, the court’s indictments excluded a number of individuals, including Karadžić, from public participation in post-war politics. Arguably this created a space for conflict resolution to take place, but resolution requires acts of political will, structures that create incentives for working together across lines of conflict and a means to exclude those who would perpetuate conflict.

An indisputable historical record

Historians will likely be cautious in endorsing the court’s contribution to the historical record. Christian Axboe Nielsen credits it with providing a decent draft rather than an indisputable record. The Šešelj judgement showed that the court can produce apparently contradictory historical accounts. The majority found that a widespread and systematic attack against non-Serb civilians was not proven beyond reasonable doubt, flying in the face of 20 years of prior decisions at the court. The merits of the judgement will be likely be tested by a prosecutorial appeal. Dissenting judge Flavia Lattanzi described it as “so wrong, in fact and law” and “a nullity”. While there was more consensus on the overall narrative in the Karadžić judgement, dissent over the findings on the Merkale bombing shows that the judgement is not where we should look for a ‘definitive’ history.

The summary of the Šešelj judgement presents the historical achievements of the various ICTY chambers in a cautious light. It suggests a “limited truth” in line with a legal response and the judges “do not claim to establish the entire truth”. Whether or not courts are the right venue to write history is a subject of much discussion. Nonetheless, regardless of the content of any individual judgement, the ICTY has a huge potential historical legacy which can be realised with the careful work of historians and social scientists.

The Karadžić case alone generated more than 50,000 pages of transcripts, evidence from 586 witnesses, and over ten thousand exhibits including documents, photographs and videos. This rich seam of resources can be utilised, alongside other sources and methods, to build up historical accounts of various dimensions of the conflict. While the ICTY and International Court of Justice may identify individual and state responsibility in atrocities, multi-level analyses of the kind advanced by historians and social scientists can fill in some of the structural and social gaps in these accounts.

Beyond 161 indictments

The focus on the ICTY in The Hague, and particularly on the judgements and other decisions of the chambers, draws attention away from the contribution made through links to other activities to build post-Yugoslav states. In post-war Bosnia, police forces were massively inflated through irregular wartime recruitment and redeployment of soldiers at the end of the conflict. Ill-trained officers with little commitment to police values, and in many cases records of war time criminality were a threat to citizens, to the return of displaced persons and possibly to peace. ICTY evidence was used in support of a lustration process that brought police numbers down from an estimated 40,000 to less than 16,000.

Further, the ICTY has also been instrumental in supporting the development of domestic institutions in BiH, where the number of accused prosecuted across cantonal, district, entity and state level courts now exceeds that of the ICTY. Access to evidence gathered by ICTY investigators has been instrumental in a number of Bosnian prosecutions.

A criminal justice response is only one part of dealing with the Yugoslav conflicts. Within that, the high profile cases heard in The Hague do not represent the totality of the ICTY’s contribution. Thus the capacity of criminal justice mechanisms to prevent attribution of collective blame, to resolve conflicts and to write history have been overstated at the same time as key achievements of the ICTY go unrecognised.

On mitigation – the Karadžić judgement

Since the Karadžić judgement was announced last week, much attention has focused on two key points. Firstly, the court’s finding that genocidal intent was not the only reasonable inference from the evidence presented in seven municipalities (Prijedor, Sanski Most, Ključ, Zvornik, Vlasenica, Bratunac and Foča). Secondly, the sentence of 40 years imprisonment. This short entry focuses on the latter and questions the extent to which his “withdrawal from political life” is a secure basis for mitigation.

In reaching a sentence, the judges are required to focus on the demands of retributive justice and deterrence, and to a far lesser extent, rehabilitation. Retribution is required as an expression of outrage, but is limited to a punishment that is ‘just and appropriate’ in light of the gravity of offences and aggravating and mitigating factors.

In accounting for aggravating factors, the court noted that Karadžić’s leadership, as the head of the Serbian Democratic Party and political leader of the emerging Republika Srpska, was already intrinsic to the prosecution case against him. As such this could not be taken as a further aggravating factor (para 6052).

In terms of mitigation, the judges took into account a range of factors. Some of these are relatively uncontentious. Karadžić has cooperated with the court, and his case can be contrasted to those of Milošević and Šešelj who regularly challenged the authority of the court (para 6058). Likewise, his age and lack of prior convictions were recognised (para 6061-2), although the relative weight of these factors in respect of gravity of the crimes may be minimal. Two other factors were accounted for in mitigation.

Karadžić’s expressions of regret and sympathy, while not necessarily reaching the level of ‘remorse’, was a relevant factor in the chamber’s sentencing decision (para 6059). The expressions of regret are accompanied with an admission of moral responsibility, if not criminal responsibility in Karadžić’s Final Brief (para 3428).

The judges spent some time contemplating Karadžić’s resignation from political office and withdrawal from public life. The positive impact of this, rather than the defendant’s rationale for doing so, merited mitigation (6054-57). The fact of the defendant’s withdrawal is supported by evidence in the form of testimony from Momcilo Krajišnik and a statement signed by other leading SDS and Republika Srpska politicians. The positive impact is assumed, rather than evidenced (para 6057).

The extent to which the defendant’s rationale for withdrawal irrelevant is questionable. By the end of 1995, two ICTY indictments had been raised against Karadžić and Mladić. The court opted not to take a position on the contentious Holbrooke agreement on non-prosecution in exchange for withdrawal and a range of evidence presented by the defence in relation to this (see Defence Final Brief 3379-3397). In absence of a finding here, it is difficult to take a firm position on whether Karadžić had entered into an agreement for the benefit of peace in BiH or had simply gone in to hiding in order to evade arrest.

Regardless of motivation, the nature of his withdrawal and the contribution of this to peace might be challenged on an empirical basis. As noted, this contribution was assumed rather than evidenced, and in the absence of the counterfactual case, taking a definitive position on the matter is hardly possible. This calls for a more explicit statement of reasoning by the court. The extent to which Karadžić actually withdrew and the timing of any withdrawal are matters which might be usefully tested against a factual basis.

That basis may lie in the records of the Office of the High Representative. On the 30^th of June 2004, Paddy Ashdown, as the High Representative in Bosnia and Herzegovina, issued a series of decisions blocking the accounts of the SDS and excluding a number of party officials and others from political and public office.

In doing so, he accused the SDS of “clinging to vestiges (and figures) of its bankrupt past” in its “concerted will to obstruct peace implementation” and includes the failure to arrest ICTY indictees or to tackle cultures and structures which facilitate support to those indictees, including Karadžić, as “inimical to stability and the rule of law” and thus, again obstructing the peace process.

In the cases of three public officials, Zoran Petrić and Mile Pejčić of the Ministry of Interior, and Savo Krunić of the Forestry Authority, the removal was justified with specific reference to material and other forms of support to Karadžić. Evidence included a letter from Karadžić showing he “was in regular contact with and has received assistance from the SDS”.

The association of Karadžić with structures obstructing peace was not considered in the courts final judgement. The weight given to Karadžić’s withdrawal from public life by the judges is not clear, but until at least 2004 the empirical basis for that mitigating factor is questionable. 

Paragraph references are to the judgement, unless otherwise stated. 

"The line of responsibility would have to come back to him" Andy Aitchison

Bosnia’s EU Candidacy Cannot be Sustained by Minimal Internal Compromises

This entry was originally posted on 15 February 2016 on the European Futures website.
Bosnia's formal application for EU membership, received today, is predicated on a new and untested framework for the country's political entities to cooperate with each other. Looking at the EU and OHR's earlier attempts to reform the police, I argue that, if leaders continue striking political agreements that barely meet the minimum required by international actors, the country will not resolve the serious challenges it faces.

Bosnia's application to the EU

The announcement that Bosnia and Herzegovina (BiH) would submit an application for candidate status to the EU today, 15 February, has been greeted with a degree of surprise. The agreement of a coordination mechanism within BiH, a precondition for candidacy, had not previously been publicly disclosed.
The creation of a framework for coordination on paper, the last-minute claims of achieving an apparent minimum for the next step on the European path and a backlash from key domestic political actors recall the fate of an earlier, EU-driven, attempt to reform the country's police. These previous events present a cautionary tale for optimists, a rare breed in contemporary BiH.

The policing precedent

In the summer of 2005, there were signs of optimism about BiH's European future, and yet clouds could be seen gathering on the horizon. At that time, inter-party negotiations were taking place over police reforms, including proposed policing territories defined by technical criteria and disregarding existing internal political boundaries within BiH.
A participant from the Office of the High Representative (OHR) described his amazement at hearing Bosnian delegates saying 'this is something the European Union wants… let’s get on with it'. This was seen as a big step. When the OHR was shifting to less forceful intervention, it was presented as evidence of what could be achieved when Brussels was leading the agenda.
But ahead of negotiations, the main parties of government in Republika Srpska (RS), the Serb Democratic Party and the Party of Democratic Progress, had been clear that they would not accept any police boundaries which did not align with those of their entity. During the negotiations, they showed signs of pulling out, and likewise their main opposition in RS, the Alliance of Independent Social Democrats, also signalled coolness towards the negotiations.
In multi-party negotiations, and at a point when power in RS was shifting, these parties all represented potential veto players. RS parties anticipated continued electoral support from positioning themselves as protectors of the power and status of the Serb entity.
A clear rejection of cross-entity policing areas in the RS People's Assembly followed, but agreement on policing was a precondition for opening negotiations on a Stabilisation and Association Agreement (SAA), a key milestone on the path to EU candidacy. After missing initial deadlines, Bosnia’s various parliaments came to a limited agreement on policing, but parked the issue of territorial boundaries with an implementation directorate. The minimum requirements of the SAA had been met, but the most difficult political issues had been set aside, to be resolved (or not) later.
More than ten years on, police boundaries are not defined by technical criteria, and continue to be tied to the political structures of entity, canton and district.

Unresolved issues and local dissent

Following on from the announcement of the candidacy application and the coordination mechanism, the RS President, Prime Minister and Government have all issued statements which question the authority of the decision on the mechanism. This alone would suggest that the EU should exercise extreme caution before entering a process where a weak agreement on paper proves inadequate to the task of coordination.
Beyond this, major unresolved issues continue to suggest a lack of capacity, will or some combination of the two, to prioritise EU conditions over the concerns of domestic politicians. The incompatibility of the BiH constitution with the European Convention on Human Rights, was first noted by the Venice Commission in 2005, and was reinforced by the Sejdić-Finci and Zornić judgements of 2009 and 2014 respectively.
The ongoing exclusion of ethnic 'others' from key political offices in BiH continues. Likewise, a census conducted in 2013, the subject of extended political negotiations from at least 2008, has yet to be published.
The police reform negotiations of 2005 seem long forgotten now, but provide a useful precedent. In a system as fragmented and complex as BiH, apparent achievement of the minimum thresholds for progress is meaningless in absence of serious engagement with key veto players and their driving motivations.

Notes

The original analysis of police reform can be found in chapter four of Making the Transition: International Intervention, State-Building and Criminal Justice Reform in Bosnia and Herzegovina.
Andy tweets @Andy8chi
The entry here is reproduced with kind permission from European Futures.