Dobrovoljacka Street case: can Serbia provide a fair trial?

The arrest of Ejup Ganic in London last Monday, 1st of March, could not have happened in a more symbolically charged moment: exactly 18 years after the independence of the Republic of Bosnia and Herzegovina, and on the same day when Radovan Karadzic was presenting, at the ICTY, his own version of the Bosnian war, while in Serbia a debate is ongoing about a parliamentary resolution about Srebrenica.

While the coincidence of dates between the Independence day and Karadzic’s opening defence statement at the Hague should be seen as a ‘lucky strike’ for the Serb authorities, this case cannot be reduced to a mere diversion, which succeeded in overshadowing Karadzic’s statement upon the public opinion, in Serbia and in Bosnia, as well as internationally.  The significance of Ganic’s case is that it represents an attempt to lend credibility to the absurd claim that in Bosnia the Serbs were conducting a defensive war. Although the case against him is not likely to have any impact on the outcome of Karazic’s trial, it will certainly have a significant impact on the debate in Serbia about the parliamentary resolution about Srebrenica, and most importantly, on the relations between Serbia and Bosnia and the on the stability of Bosnia, where general elections are to be held next October.

Ejup Ganic was arrested by the British authorities at the demand of Serbia, which issued an arrest warrant against Ganic and 17 other persons, conspiracy to murder, in the Dobrovoljacka Street case, about the attack against a JNA column in Sarajevo, on 3 May 1992.

This incident occurred a month after the beginning of the aggression against the newly independent Republic of Bosnia and Herzegovina, carried out in the initial stage by the JNA, and it happened during an extremely tense moment. The day before, the JNA had launched an offensive against Sarajevo, which was halted by the Territorial Defence. The JNA in turn kidnapped the President of Bosnia, Alija Izetbegovic, at the airport which was under its control (for a more detailed description of the context surrounding the Dobrovoljacka Street incident, please click here). At the time of the incident, Sarajevo was already under siege for almost a month, and it remained besieged by Serb forces until February 1996, after the end of the war.

Although the context of the incident is well known, there is some uncertainty about the attack of the column, which was withdrawing from Sarajevo, under an agreement brokered by the UN in exchange for the release of Alija Izetbegovic. It is not established whether the attack was spontaneous, as Jovan Divjak, then deputy commander of the Territorial Defence, and who was himself present at the scene, declares, or whether it was launched by superior orders, emanating, as the Prosecution of the Special Court for war crimes of the Republic of Serbia alleges, from the Presidency of Bosnia itself, in which Ejup Ganic was serving as acting President, due to the kidnap of Izetbegovic.

Ejup Ganic’s arrest, and the warrant against 17 other Bosnian personalities reveals how, 18 years after the beginning of the war, battles over the interpretation of its causes and impact of the war in Bosnia are being fought, with the judiciary as one of its most important battlefields.

It has been argued by many observers that this arrest is a clear example of the abuse of justice for political purposes. I agree with such assessment, but I don’t think it’s enough to merely state it, as it can be argued against it:

  1. that under the principle of Universal Jurisdiction, it is legitimate on the part of the Serbian Special Prosecutor for War Crimes to launch an investigation on this case, and that Serbia is now a democratic state able to offer a fair trial;
  2. that, with the current government, Serbia seems to be finally coming to terms with the past, with the arrest and extradition of Radovan Karadzic, and now the debate about a parliamentary resolution condemning the Massacre of Srebrenica as evidence of such process; while the Special Prosecutor has been investigating and prosecuting cases involving perpetrators who are Serb citizens.
  3. Finally, it can also be argued that both the Prosecutor and the War Crimes Chamber of the Belgrade District Court are autonomous from political power, and that we should resist analysing the behaviour of states as if they were monolithic, homogeneous entities, because they’re not.

Starting from the third point, it is important to note that, although the state is certainly not an uniform creature, it is also true that when people in different positions of power share the same mind-set and the same perception of national interests, it is logic consequence that their values make their actions converge for an outcome that seeks to reinforce such mind-set, confirm those shared values and contribute to the perceived national interest.

Indeed, a closer analysis reveals that what is in fact happening is that the state of denial in which post-Milosevic Serbia has lived is being replaced by a more subtle trend, launched after the controversial ruling of the International Court of Justice, in 2007, absolved Serbia of the charge of genocide, merely condemning it for failing to take measures to prevent the genocidal act occurred in Srebrenica and for failing to punish genocide by failing to arrest individuals indicted for war crimes by the ICTY, and exempting the Serb state for any financial compensation towards Bosnia. The ICJ ruling has both released Serbia from the burden of guilt and, as Sonja Biserko and Edina Becirevic have stated, provided “a frame for Serbia to stick to”, which is “evident in domestic courts speaking with one voice that Serbia and its army have never had anything to do in Bosnia.”

This trend is the product of a significant communion in the way the current ruling elite in Serbia, the Special Prosecutor, Vladimir Vukcevic, and the court’s judges are dealing with the legacy of the Bosnian war, and consists basically in responding to internationally imposed constraints linked to the interest in joining the European Union by abandoning, on the one hand, the strategy of denial of the Massacre of Srebrenica, while, on the other hand, highlighting Serb victimhood, which results in the establishment of an apparent moral equivalence that will preserve the Serb national narrative of the Bosnian war, depicted as a Bosnian civil war in which the Bosnian Serbs were primarily acting in self-defence. This trend is also shared by the ruling elite in Republika Srpska, as is clear, among other things, by the term officially used there to define the war: Defensive-Fatherland war (odbrambeno-otadžbinski rat).

In this narrative, Serbia, as a state, is both exempted from any responsibility in the war, which represents the continuation of Milosevic’s argument at the time; and portrayed as the perennial protector of the Serbs, independently of where they live. Indeed, it is common practice that the Interior Ministry of Bosnia’s Republika Srpska reports, not to the Bosnian Special Prosecutor for War Crimes, but to his Serbian counterpart, on grounds that the Bosnians are not dully investigating crimes in which the Serbs were the victims (this is confirmed by the Serbian Special Prosecutor Vladimir Vukcevic in this interview).

It is in this context that the process against Ejup Ganic should be seen. The President of Serbia himself confirmed the link:

“I believe that the Serbian parliament will soon adopt a resolution on Srebrenica and it would be a great mistake if only the ruling majority were to vote for it,” Tadić said.

He remarked that all the dilemmas on whether one or two resolutions should be adopted and whether it was a genocide or a crime “have missed the point,” which is to say that the people are not to blame.

“Serbia must distance itself from that crime, because there were also mass crimes against the Serbs,” said Tadić.

The president added that the Serbian court system has proven that it can process war crimes and prosecute its own citizens who participated in them, like for example the trial against members of the Scorpions, a paramilitary unit that was involved in the Srebrenica massacre, but that it does not want to take over every trial.(B92, 7 March 2010) (the second resolution mentioned by Tadic is supposed to specifically condemn the crimes committed against Serbs).

The ability of Serbia’s courts to provide a fair trial is, however, denied by the outcome of a number of war crimes trials recently held at the Special Court. In April 2009, the Humanitarian Law Centre, which has been systematically monitoring all war crimes trials, published a report (Trials for war crimes and ethnically and politically motivated crimes in post-Yugoslav countries), in which it indicates important flaws:

The Supreme Court of Serbia continues with the practice of setting aside first-in stance convictions for war crimes, significantly reducing terms of imprisonment of those convicted and affirming acquittals, which gives rise to the suspicion that the reason behind these decisions may be political.

This tendency, which is restricted to defendants of Serb nationality, is reinforced by the tendency by the Trial Chamber to benefit Serb defendants with mitigating circumstances invoked to reduce the time of their sentences, despite the seriousness of the crimes involved.

Referring to the Skorpions’ case, mentioned above by Boris Tadic, the report states that:

In 2008, the Supreme Court reduced the term of imprisonment of the Scorpions member Branislav Medić from 20 to 15 years although he was sentenced for murdering at least two Bosniaks and active participation in the execution of all six captives. The Supreme Court affirmed the acquittal of Aleksandar Vukov, another member of the Scorpions unit, despite the fact that evidence heard during the proceedings conclusively proved his criminal responsibility. Since the Supreme Court is the highest last instance to decide upon prosecution appeals concerning the responsibility of the defendants, with all appeals being heard by one single chamber, always made up of the same justices, there is a real risk of arbitrariness in delivering final court rulings (p. 94).

And about the Bytyci brothers’ case:

This trial is on the whole very unusual. Indicted were some accessories that had a secondary role in the commission of the crime and no charges were brought against the immediate perpetrators, co-perpetrators, true helpers and those who gave orders (abettors). All these point to the fact that the whole procedure was initiated and organized in order to fulfil, at least to some extent, the request of the American administration that the murder of the Bytyqi brothers, American citizens, be prosecuted. In the final outcome, this trial served to protect some high-ranking officials of the Serbian MUP from criminal responsibility and mock justice“. (p. 99)

Other misconducts have consisted in randomly ordering the psychiatrical assessment of witnesses whose testimony could contribute to the conviction of the (Serb) defendants, as in the Suva Reka case:

complying with the authority and legal opinion of the Supreme Court, the trial chamber in the Suva Reka case ordered the psychiatric assessment of a significant number of witnesses, including all those who were ready to give full account of what they saw and heard about the incident which is the subject-matter of the indictment. Approximately 100 of the witnesses examined by the court said they had no knowledge about the incident the defendants are charged with, although the incident resulted in 49 people killed and took place in broad daylight [12:00 no on], in the very center of a very small town, in the immediate vicinity of the institutions where witnesses happened to be at the time of the incident. The court did not seek the psychiatric opinion on any of these witnesses, but of those witnesses who were willing to say in court what they had seen and heard, which is a non sense and absurd.” (p. 95)

Furthermore, the defence of non-Serb defendants is seriously impaired by the reluctance of potential defence witnesses to come to Serbia to testify, as was clear on the Tuzla Column case. The defence witness have funded reasons to fear being themselves arrested and tried, bearing in mind the  bad-faith with which Serbia is using the international and regional mechanisms of police and judiciary cooperation.

The Tuzla Column case is a very relevant precedent, in what regards the case here in appreciation, the Dobrovoljacka Street case. The defendant, Ilija Jurisic, was convicted to 12 years for ordering the attack against the JNA convoy in May 1992, which resulted in 51 deaths. According to the Humanitarian Law Centre, guilt was not established beyond reasonably doubt.

Justice is usually represented as a blindfolded woman wearing a sword on her right hand and a weighing scale on her left hand. In Serbia, however, an accurate portrait of Lady Justice would include only the sword. This is why  Ejup Ganic’s extradition to Serbia would constitute a gross injustice.

This brief analysis can only lead us to the conclusion that in Serbia, transitional justice is being subverted to such an extent that, instead of contributing to a wider process of regional reconciliation, it is, on the contrary working towards deepening the tensions in Bosnia. The possible approval by the Serbian parliament of a resolution about Srebrenica cannot be therefore interpreted as a sign that Serbia is finally coming to terms with its recent past, but rather as a merely tactical move towards European Union accession. This, in turn, should lead us to raise important questions about the prospect of Serbia’s European integration.

20 Comments

Filed under Bosnia, EU, Justice, Serbia, Uncategorized, War

20 responses to “Dobrovoljacka Street case: can Serbia provide a fair trial?

  1. These two issues should be separated: 1. Can Serbia hold a fair trial and 2. Should have Serbia requested Ganić and his case.

    Like you pointed out, the record of special trials is far from perfect, but Serbia is still doing surprisingly good there. Don’t forget that our judicial system is fundamentally flawed and we are not capable of holding a fair trial or proceeding of any sort (e.g. take those 6 anarchists for example, as the recent publicized example).

    The second issue is much harder – I really don’t understand it well. What sort of agreements do Serbia and B&H have in this regard, and more importantly, are those agreements with B&H, or the Federation, or..? I’m not quite sure how judicial system works in Bosnia at all… is it unified or split between Republika Srpska & Federation?

  2. The excerpts from the report by Humanitarian Law Centre are shocking. :-(

    One of the many things that don’t make sense here is this:

    If the Serbian government wants to stick to the idea that Serbia and its army never had anything to do in Bosnia (to quote Sonja Biserko and Edina Becirevic) then what business does it have in demanding the extradition of Bosnian citizens for alleged crimes committed in BiH? If no Serbian soldier ever set foot in BiH, how can any crime have been committed against them?

    Or can the explanation be found in the arrest warrant, which calls Sarajevo Serbia’s territory? :-/

  3. Sarah Correia

    Dejan,

    I agree with you. This post touches in three different issues:

    -first the quality of the judiciary: here it should be said that the special court of war crimes actually works much better than the regular courts, which is why it was created in the first place. The example you mention of the anarchists is very relevant, in my opinion, especially if we compare it to the way cases related to nationalistic-motivated violence, as the investigation conducted by Brankica Stankovic has shown. I intend to come back to this issue in another post (my problem is always time). What I find in common in all the courts, is an unwillingness to go further than a certain point, as both the Scorpions’ case and Djindjic’s have shown.

    -second, the specific case of Ejup Ganic, which we should analyse together with the case of the Tuzla column.

    -and third, in which measure is the judiciary contributing to the emergence of a new national narrative about the Bosnian war.

    Regarding your second point, I am myself struggling to understand the contours of Ganic’s arrest. Up to now I haven’t been able to find anyone who could explain me the English system.

    The arrest warrant from the Westminster Court is so ridiculous that when I first read it I asked myself whether it was the real document or merely a forgery as so many fake documents that circulate in the internet.

    Amila, indeed it is shocking… and even more if you bear in mind that, still, the work of the special court represents a significant improvement in the way Serbia deals with the wars in the 1990s.

  4. I suspect that the ultimate outcome of this case will matter little in the West. The damage has been done by the British and the idea that all sides were equally guilt has been furthered. I am sure Bosnian officials are going to assume a lower profile in order to avoid being a target of Serbia wrath. Keep in mind these cases can take months if not years to resolve, assuming that, unlike Ganic, they bring the right person to the bail hearing.

    Nobody, in the United States anyway, particularly cares about Ejup Ganic whose name they cannot pronounce. Nor does it seem that a major group like HRW or AI are going to champion his cause. So whether he is released, sent to Bosnia and released, or dispatched to Serbia for a trial that few outside of Serbia will accept as legitimate means little.

  5. Pingback: UK: Galic Freed on Bail « Justice Updated

  6. Sebaneau

    What business does the Serbian state complaining about an event which happened in a foreign country, in which it claims its army was allegedly “not involved” ?
    This, in law, is called “lack of standing”.

    As far as so-called “universal jurisdiction” is concerned, it does not exist. To purport toproseute crimes committed in foreign states is a challenge on their sovereignty which could only be tolerable if such states have proved systematically unwilling to try some of their worst criminals. Otherwise, it is a way of waging war through other means, as we are now seeing.
    Yet, guess which is the only state which may qualify as such in the region?

  7. Sarah Correia

    You’re right about the principle of universal jurisdiction, especially because in the case of Serbia, the ICTY didn’t find this case worthy of an indictment and that Bosnia is already investigating this.

    My purpose now was to show that Ganic could never receive a fair trial in Serbia, and although this seems self-evident, I don’t think we should ever treat facts as self-evident even when they are.

    But for me the behaviour of Serbia in this case, as in the Tuzla column case, should have implications in its prospects of EU accession. The reason that Serbia feels comfortable to go one step further with this case is the lack of reaction in Jurisic case.

  8. JonH

    History Punk: “The damage has been done by the British and the idea that all sides were equally guilt has been furthered.”
    ————-

    I don’t agree. I think most fair minded people understand that the Serbs bear most of the blame for the conflict. But it doesn’t follow from this that all of the people from the other sides were spotless and pure.

    Justice should indeed be blind, and that means that anyone who has a case to answer for war crimes should stand trial – even if there is the odd case where the accused (shock! horror!) wasn’t wearing a Serb uniform.

  9. Owen

    Sarah, shame on you, you never warned me you’d emerged into the Northern Hemisphere daylight again!

    I’m glad you didn’t waste too much effort trying to work out how the English legal system could have arrested Ganic for a crime committed in the city of Sarajevo located on Serbian territory. The whole issue was concocted by Britain’s national enemies to make the British legal system into something for the rest of the world to laugh at in rather embarrassed amazement.

    You probably know my theory already – this was an opportunistic coup-de-main by Jack Straw, who wants to do away with the legal right of private individuals to seek a warrant for the arrest of the likes of Tzippi Livni when she visits London to do her grocery shopping in Harrods, I mean revive peace talks on Palestine. He didn’t want to be seen going soft on war crimes, particularly given how many people remember his exploit of a few years back when he helped spring Thatcher’s friend the supposedly ailing butcher Pinochet out of jail and back home to the comfort of his doctors and bankers.

    So when his idea-a-minute friends in Belgrade (perhaps relying on the inventiveness of their Austin Powers revivalist Mr Trifunovic) came up with the super wheeze of nabbing a suspected war criminal passing through London who could then be easily shipped off abroad again after the kudos of a Justice Secretary coup, Straw leapt at it, particularly as the plan came with the insurance policy of tangling up the innocent-faced David Miliband in his devious plans.

    Wonderful of course that this Bosnia place Mr Ganic comes from is a non-country that could never cause trouble to anyone else because it’s so busy causing trouble to itself.

    But how could poor Jack have imagined that Serbia would put pepper in the custard and relocate Sarajevo across national boundaries? And more importantly how could he have forgotten that Mr Ganic is also a friend of the Baroness Thatcher and had been doing business with her pals in the University of Buckingham? And how could he have forgotten that Britain’s over-crowded prisons and its privatised courts and prison services have been a long-standing accident-in-waiting, starining to blow up in some innocent Justice Secretary’s face? He’s just lucky they didn’t succeed in delivering Momcilo Krajisnik from his Wakefield eyrie to Westminster Magistrate’s Court – those ex-Yugoslavs all look pretty much the same, don’t they?

    Makes you really proud to be British – or maybe I should say English (I’m sure the Scots, Welsh and Northern Irish are busy disclaiming all connection with this benighted country as well). Of course none of this conspiracy theory bears any relationship to fact, but after thirteen years of our last hopes for a better society, I’m prepared to believe anything of them.

  10. Owen

    Jon H. nobody believes everyone except for the Serbs were spotless. But before we talk about everyone else let’s see some genuine sign that Serbians are familiar with the concept of biological washing powder.

  11. Ben

    Sarah – a really good post. The arrest of Ejup Ganic has caused quite a lot of fuss in the Bosnian community, and rightly so. It seems to be trend where the victims are branded as aggressors, and often apparently against themselves. For example, many ultra-nationalist Serbs swear that the Markale Massacre in Sarajevo was the Bosnian Army shelling its own people. Pity that the UN was quickly on the scene to measure the trajectory, and the source of this shell (from Serb-controlled hilltops surrounding Sarajevo) that killed dozens of civilians.

    So in the same trend, the defenders of Sarajevo are given the equivalence of the war criminals who kept the city besieged for 4 years – ruthlessly killing 12,000 people. For many, the deaths of soldiers of an aggressor force cannot have equivalence with killing of civilians lining up for bread and water by sniper.

    Owen, you make a great point as always… “Wonderful of course that this Bosnia place Mr Ganic comes from is a non-country that could never cause trouble to anyone else because it’s so busy causing trouble to itself.” I fear what the future holds for my birth country – the lack of justice and any progress towards a democratic state has been unravelling quite dramatically.

  12. Owen

    Ben,

    http://www.balkaninsight.com/en/main/news/27360/

    “Despite statements by the Bosnian State Prosecutor’s Office that a request for the extradition of former Bosnian presidency member Ejup Ganic has been submitted, it has become apparent that the request was never sent to the UK by the Bosnian Justice Ministry.

    “We submitted a request for his extradition to the Bosnian Ministry of Justice and we are expecting to receive information about what is going on. The information should be given to us by the Ministry,” Boris Grubesic, the Bosnian Prosecution spokesperson, told Balkan Insight.

    Sources from the Bosnian Ministry of Justice confirmed to Balkan Insight that the Ministry had received the extradition request from the Prosecution, but that nothing had been sent to the UK.

    Serbian war crimes prosecutor Vladimir Vukcevic was present at the hearing on April 13 in London when the Magistrate’s Court ruled that the extradition process could proceed and set April 20 as the date for the next hearing.

    Vukcevic told media after the hearing that the Serbian extradition request is currently the only request before the court.”

    What can one say?

  13. Perotin

    umm, your views are extremely biased… just saying, not that it will change anything…

    your friendship with Mr. Attila, and blogs like americanforbosnia speaks for itself ….

    … and to think that you will one become most likely a diplomat of some sort, maybe someone like Jelko, another one of Serbia’s friends :shudder:

  14. “umm, your views are extremely biased… just saying, not that it will change anything…”

    Such insight. Without doubt, next you will explain to us why she wrong and how she was so wrong.

    “your friendship with Mr. Attila, and blogs like americanforbosnia speaks for itself ….

    … and to think that you will one become most likely a diplomat of some sort, maybe someone like Jelko, another one of Serbia’s friends :shudder”

    Wrong again. Nostradamus, I am not.

  15. Owen

    I don’t think biased is the word. Thoughtful might come closer to it. Shame her observations are wasted on some less than appreciative visitors.

    I think we know where we are with Sarah. We don’t really have much idea about you, Perotin.

  16. Sarah Correia

    Owen, thank you for the comments!

    Ben, you’re absolutely right, this is an inversion of the truth.

    In what regards ‘Perotin’, well, I couldn’t care less about his concern over my opinions and possible carreer options, and I’m very proud of my friends.

    Nonetheless, it was nice to read the comments by History Punk and Owen.

  17. ida

    “If no Serbian soldier ever set foot in BiH, how can any crime have been committed against them?”

    The reason is that they were technically “Yugoslav” soldiers and they had been stationed all about Yugoslavia, including Bosnia legally until the international community suddenly decided they had to go.
    The Bosnian Muslims and Croats declared “independence” without the Serbs – who were 1/3 of the population. They convened secretly at midnight to do this so the independence really wasn’t legal. Nonetheless many European countries decided to recognize it.
    The Croats and Muslim started besieging many of the barracks at the very beginning of the war – one in Mostar, for instance was attacked on April 6, 1992.
    Now you needed a way for those soldiers to safely get out once they agreed to leave – and they did within weeks after the war started.

    The killings actually got much worse after they left.

    Also, you left out that the Sarajevo airport was handed over to the UN already by late June 1992. Airplanes were able to fly in and out at will and anyone the Muslim government allowed could leave.
    You leave out that it was the Muslim government that blockaded all the roads and prevented people from leaving the area of Sarajevo which they controlled.

    That’s why the international community had to get their permission for buses with Jews and others to leave Sarajevo. It was the Izetbegovic government which decided if people could leave or not and so their soldiers and paramilitary would allow them to pass.

  18. Filip

    >>If the Serbian government wants to stick to the idea that Serbia and its army never had anything to do in Bosnia (to quote Sonja Biserko and Edina Becirevic) then what business does it have in demanding the extradition of Bosnian citizens for alleged crimes committed in BiH? If no Serbian soldier ever set foot in BiH, how can any crime have been committed against them?<< Shameless lies.

    Serbian soldiers killed in Dobrovoljacka were NOT sent to Bosnia. They were sent all over Yugoslavia to serve the mandatory military service. I am from Serbia and my own friends were sent all over Yugoslavia when the crisis began. And it was many other nationalities in the Army at a time, not only Serbs of course. Suddenly, they realized they are not anymore in Yogoslavia but in independent territory of some other country. They wanted just to get out, to come back to Serbia and were shot by the criminals. These soldiers were young, not well trained and didn't care for war at all – they just wanted to get out of there alive.

    Now, although many of the murdered were not from Serbia, some of them are and that's why Serbia has full right to demand extradition of the criminals.

  19. Filip

    correction:

    >>I am from Serbia and my own friends were sent all over Yugoslavia BEFORE the crisis began.<

  20. Pingback: UK: Galic Freed on Bail | JusticeUpdated

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