Srebrenica Sentencing Conundrum

The sense of relief in the Hague courtroom was palpable for the defence, the accused and the prosecution this week when a three-judge panel passed judgment on former Bosnian Serb army officer Dragan Obrenovic.

On December 10, the court sentenced the 40-year-old former chief of staff and deputy commander of the Zvornik Brigade to 17 years in prison for his role in the July 1995 Srebrenica massacre - a ruling that was in line with 15-20 years the prosecution had recommended as part of a plea agreement with Obrenovic last spring.

Just over a week earlier, the same panel of judges had sentenced Momir Nikolic, another Bosnian Serb officer indicted for his role in the atrocity, to 27 years in prison even though he too had negotiated a plea agreement in which prosecutors recommended 15-20 years.

The unorthodox ruling - the first in which judges have ignored a prosecutors' recommendation in favour of a harsher punishment - shocked the courtroom and led many to believe that Obrenovic might share a similar fate.

Both men were charged with crimes against humanity, violations of the laws and norms of war and complicity to commit genocide. The two initially denied any knowledge of the massacre and pleaded not guilty. Then, within days of one another, they changed their pleas.

In exchange for accepting guilt, and agreeing to cooperate with the prosecution by testifying against fellow army officers who helped plan and carry out the atrocity, prosecutors dropped the most serious charges and agreed to request 15-20 year sentences.

Both men gave groundbreaking and unprecedented confessions that the trial chamber acknowledged did much to help establish truth and promote reconciliation. They also expressed what appeared to be genuine remorse, and spent several days testifying against other Bosnian Serb army officers indicted for Srebrenica.

So why did the same trial chamber that sentenced Nikolic to 27 years give Obrenovic a sentence that was ten years shorter?

The difference seems to lie not only in the extent to which both participated in the killings, but also in the court's interpretation of the men's character and their cooperation with the prosecution.

In its ruling on the Nikolic case, the trial chamber concluded that he took a "very active - even proactive - role in ensuring that the operation went forward and was, in his words, 'successful'."

By contrast, the judges said that Obrenovic "did not conceive of the murder operation" or participate in it himself. His crime, they said, was to allow several men under his command to participate in the killing, which he knew was taking place.

The judges also appeared to cast doubt on Nikolic's integrity. Although they described him as "a respected member of his community" before the war, and said that his cooperation with the prosecution was a mitigating factor, the trial chamber pointed out that he had lied to the prosecution in the days before his plea was accepted, claiming responsibility for crimes he did not commit. They added that he was at times "evasive" and not "fully forthcoming" during his testimony.

As a result, the judges concluded that while Nikolic's expression of remorse and willingness to cooperate was a mitigating factor, the trial chamber could not "afford substantial weight to this factor".

For Obrenovic, the judges said evidence heard before the court showed him to be a man of exceptional character who accepted "unreserved and unqualified" responsibility for his role in the crimes committed in Srebrenica. They said that he provided "truthful testimony and detailed information" when testifying against his follow officers and answered questions clearly and precisely, concluding that his cooperation with the tribunal was a "significant mitigating circumstance".

Unlike Nikolic, who broke down in tears when his verdict was read, Obrenovic calmly bowed his head, seemingly thankful.

Shortly after he was escorted out of the courtroom by tribunal guards, prosecutors walked over to the defence lawyers and offered their hands.

They too, no doubt, were relieved.

Stacy Sullivan is IWPR project manager in The Hague.