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:
- 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;
- 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.
- 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:
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.
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.