Comment: Plavsic Plea Bolsters Reconciliation

Until now, denial of guilt has been the rule for Hague war crimes defendants: since the first "I plead guilty" uttered in May 1996 by Drazen Erdemovic, only seven out of more than one hundred accused have entered guilty pleas.

With the exception of Erdemovic, who readily admitted his crime in the interviews given to the media even before he came to the tribunal, every one of those indicted since has pleaded not guilty on their first appearance in court.

Only after several months or even years - when prosecutors disclosed evidence against them - would they change their mind.

The most senior of those who pleaded guilty were two Bosnian Serbs - Stevan Todorovic and Milan Simic, Bosanski Samac police chief and municipality president respectively.

The other penitents, Erdemovic, Goran Jelisic, Dusko Sikirica, Damir Dosen and Dragan Kolundzija, were small fish: ordinary soldiers or camp guards commanders.

And then, on October 2, 2002, quite unexpectedly, Biljana Plavsic pleaded guilty. Among the highest-ranking officials in the Bosnian Serb leadership during the war, she went on to become the president of Republika Srpska, RS, after the conflict.

Her former political allies and adversaries in RS, and some in Serbia, joined forces to try to present her admission as a personal decision, or even attempted to question her state of mind.

The prosecution and defence, however, joined forces to persuade the judges and the public that the confession and remorse of Plavsic could be a significant and essential contribution to the process of reconciliation in Bosnia-Hercegovina, BiH, and former Yugoslavia.

The greatest value of the statements of those who pleaded guilty is in the fact that they make any plausible denial of their crimes more difficult: the execution of more than one thousand Muslim men at the farm of Branjevo near Srebrenica in July 1995 (Erdemovic); innumerable killings of Croats and Muslims in Brcko in May 1992 (Jelisic); inhuman conditions, killings and torture at Keraterm camp in the summer of 1992 (Sikirica, Dosen, Kolundzija); the campaign of ethnic cleansing of Bosanski Samac carried out from April until the end of 1992 (Stevan Todorovic and Milan Simic).

Of course, there are always those who keep denying what cannot be denied and offer their own revisionist versions of the same events.

For example, Milosevic recently described the massacre at Branjevo farm and other Srebrenica crimes as a plot of the French intelligence agency and one “mentally deranged Croat” (Erdemovic).

Yet, after the perpetrators’ confessions, such denials are stripped of all credibility.

However, Plavsic has confessed to much more than any particular crime.

The greatest significance of her act – according to Alex Borain, former co-president, along with bishop Tutu, of the South African Commission for Truth and Reconciliation – is the fact that this confession of the former nationalist leader carries "a crucial message about the true criminal character of the enterprise".

By accepting her own responsibility, the jurisdiction of the tribunal and the sentence that will be passed in her case, Plavsic made a major break in the stubborn resistance and denial, which continue to dominate in the war ravaged countries of former Yugoslavia, according to Borain.

The “criminal enterprise” in which Plavsic took part, and for which she pleaded guilty, is defined as persecution on political, racial or religious grounds and qualified as a crime against humanity.

In the document signed by the accused and her defense, the Factual Basis for Plea of Guilty, this “enterprise” is defined as conscious and deliberate "separation of the ethnic communities", including "the permanent removal of ethnic population... either by agreement or by force".

Criminal enterprise, according to the same document, was designed and managed by Milosevic, Radovan Karadzic, Momcilo Krajisnik, Ratko Mladic, Nikola Koljevic, and others... and Plavsic confessed that she publicly supported and encouraged forced separation of the ethnic communities by means of criminal acts, such as mass killings, forced deportations, illegal detention of civilians, torture and cruel treatment, destruction of settlements, devastation of cultural and sacral objects and looting.

During a three-day pre-sentencing hearing at The Hague from December 16 to 18, 2002, Borain stated another three important points in her confession of guilt.

By turning herself in and accepting responsibility and punishment, Plavsic recognised the legitimacy of the tribunal.

Second, she invited other leaders – on all sides – to follow her example and re-examine what they did during the war. Borain expressed his hopes that some of those indicted for war crimes and still at large will accept this invitation and warned that true reconciliation cannot be achieved until responsibility is accepted by those who "through defiant declarations or silent indifference explicitly or implicitly endorsed these atrocities".

Finally, stating her apology to the victims, Plavsic showed that she recognised their suffering and ordeals.

Borain appeared before the court as a joint witness of the prosecution and defence. Former US secretary of state, Madeleine Albright, and Elie Wiesel, winner of the Nobel prize for peace, appeared in the same capacity.

Although the whole procedure before the tribunal is known as “adversarial”, during the first two days the prosecution and defence acted as a single team, motivated by the wish to present Plavsic’s act as a contribution to reconciliation.

The defence did not try to deny the gravity and scope of the crimes which the prosecution illustrated with the testimonies of three representatives of the victims: Mirsad Tokac, secretary of the State Commission for War Crimes of BiH; Adil Draganovic, former inmate at Manjaca and representative of the Association of Camp Detainees of BiH; and Teufika Ibrahimefendic, psychotherapist at the organisation Viva Zene from Tuzla, who spoke of the permanent psychological damage on the surviving victims and members of their families.

Wiesel spoke to the court on behalf of the victims.

Also, the prosecution did not contest the evidence presented by the defence pertaining to the post-war role of Plavsic; her contributions to realisation of the Dayton agreement; cooperation with international organisations and her confrontation with the corrupt regime in Pale.

In addition to evidence from Albright, these issues were addressed by the former High Representative for BiH Carl Bildt; the first head of OSCE in BiH, Robert Frowick; and the former prime minister of RS, Milorad Dodik.

On the third day of the hearing, when it came to sentencing Plavsic, the parties turned adversarial.

The prosecution requested between 15 and 25 years in prison, indicating that – without confession of guilt – the only possible sentence for such crimes would be life imprisonment.

Under condition, of course, that the indictment against her was substantiated in court.

The defence, on the other hand, holds the opinion that in the case of Plavsic, who is 72, any sentence above eight years in prison would be equal to a life sentence.

Although the prosecution accepts the notion that the age of the accused may be relevant in sentencing, they refute the defence’s thesis that the sentence “should be shorter than life expectancy”.

According to the prosecution, the key factors in determining the length of sentence should be gravity and scope of the crime, then the humiliation and degradation to which the innocent and victims of such crimes were exposed and finally the fact that the accused took part in all this in capacity of a leader.

On the other hand, the defence indicated that the sentence requested by the prosecution will not encourage other leaders to follow Plavsic’s example and turn themselves in, plead guilty and accept responsibility.

And such an outcome, the defence said, could neutralise potentially positive effects of Plavsic’s act on the process of reconciliation.

At least one of the three judges - namely, Patrick Robinson from Jamaica - was highly sceptical about the joint thesis of the prosecution and defence, which presented confession as a contribution to reconciliation.

He asked most of the witnesses about the specific manner and measure in which this confession can contribute to reconciliation and whether there were any exact indicators that can establish and express this contribution.

According to him, the legal process itself, the procedure for establishment of truth before the tribunal, contributes to reconciliation, regardless of the outcome.

The witnesses replied to this question differently and in most cases confessed that they were speaking of their hopes and expectations and not of any certain outcome.

In his answer to Judge Robinson, Tokaca repeated the statement for which he was criticised in some of the media in BiH.

Namely, he stated that Plavsic’s act was “brave”; that it made denial or concealment of the crimes more difficult and that it could even produce a “domino effect”; that is, it could inspire other perpetrators to confess their crimes.

The most comprehensive answer to dilemmas presented by Judge Robinson came from Borain.

Without denying the “transformative potential” of Plavsic’s statement, Borain indicated that reconciliation and healing take “more than confession”. He specified two things that are necessary.

First, that her punishment “takes into consideration the severity and scope of the crimes confessed”, so that “justice is not done at the expense of the victims”.

Second, he spokes of a certain “programme of compensation” for the victims and society.

Boran did not elaborate on the latter, but during his testimony he indicated what he thought Plavsic’s next step should be. He said she should now explain to the world and the tribunal "how it was possible for such madness to occur”.

Not because "we are merely curious, but because... it would assist people in the region to have a better understanding in helping them to come to terms with this. It could help other countries to avoid the same mistakes."

The prosecution described this process as “cooperation”, and Plavsic, as it was stated during the hearing, refused to cooperate.

She is unwilling to testify in other processes in which she could contribute a lot to understanding not only the responsibility of other accused (such as, for example, Milosevic), but also the establishment of the truth about what happened and why.

Since the accused is refusing to cooperate, the prosecution holds the opinion that this cannot be taken as an extenuating circumstance.

The defence, however, emphasised that her confession of guilt represents the “highest level of cooperation possible”, and invited the judges to take this into consideration.

Out of the seven accused who have pleaded guilty so far, only two fully cooperated with the prosecution, and this fact was taken into consideration as a major extenuating circumstance in determining their sentence.

Thanks to his confession, remorse and cooperation, Erdemovic was sentenced to five years in prison, while the sentence for Todorovic – who testified in the processes against his co-accused – was practically halved: instead of 20-25 years the prosecution said it may request if the case came to trial, he was sentenced to 10 years.

However, the fate of Jelisic was quite different. After confessing that he personally killed 12 people (out of dozens of killings specified in the indictment), he was sentenced to 40 years in prison and the sentence was confirmed after appeal.

In spite of his confession, Jelisic, according to the judges, failed to display remorse, and the prosecution denied that the accused cooperated in any way in the process of establishing the truth about the events in Brcko in the spring of 1992.

The truth is that Jelisic talked to the investigators, but during these talks – according to the opinion issued by the prosecution and accepted by the judges – he tried to present a “sanitised” version of these events.

The real question in the case of Plavsic is whether confession of guilt and certain facts about crimes (stated in the “Factual Basis” document) can be regarded as “significant cooperation”, for which the tribunal's rules specify a significant reduction in sentence.

And to what extent this can be applied in case of the accused, at the same time giving proper regard to the suffering and ordeals of the victims? Borain warned, "full justice cannot ever be delivered if it is done at the expense of the victims. Reconciliation can all too easily be undermined if victims feel that their pain and suffering has not been given sufficient recognition.”

The judges are now facing the very complicated task of assessing all these opposing and seemingly incompatible factors in order come to a decision on a sentence, which, Wiesel has warned, will "reverberate across national and ethnic borders... and will be studied and remembered far beyond the frontiers and far across the centuries".

This sentence is expected to be announced at the end of January or beginning of February 2003.

Mirko Klarin is an IWPR senior editor in The Hague and the editor in chief of SENSE news agency.