Defence attorney for a number of war crimes indictees before the Court of Bosnia and Herzegovina and the Hague Tribunal says gap is too wide between former combatants for verdicts to bring much closure.
Lawyer Miodrag Stojanovic says war crimes verdicts have not led to much reconciliation in the region because the gap between the positions of the former warring parties remains so wide.
Stojanovic says another problem facing the justice system generally is the passage of time since the crimes took place, making it ever more difficult to track down witnesses and material evidences.
“The biggest problem we’re facing now is the fear of many witnesses of testifying and of trials - getting them to the courtroom – where their witness is relevant and specific regarding war crimes.”
When it comes to alleged problems in communicating with clients before the courts, Stojanovic says it’s not been an issue with him. Had he had a sharp difference a client over the defence strategy, he would simply resolve it by withdrawing from the case.
Stojanovic, who has also worked on organized crime cases, says it is more difficult preparing the defence of war crime indictees.
“Organised crime is something happening lately, in recent years, and the possibility of access to documents and the defense witnesses give us the opportunity to better and more appropriately prepare for the defense of the indictee,” he says.
Stojanovic added that war crimes in Bosnia and Herzegovina happened in the early 1990’s, and access to documents and defense witnesses is much harder.
After recently being appointed counsel in the defence team for General Ratko Mladic, and having defended other indictees before the International Criminal Tribunal for former Yugoslavia, ICTY, Stojanovic says conditions in the Hague court facilitate better work, though the Court of Bosnia and Herzegovina has achieved high standards in the technical sense.
“In the Hague Tribunal you get the transcript and access to documentation search virtually immediately after leaving the courtroom,” he notes.
“In terms of the lawsuit, the approach to the Rulebook on Evidences and Procedure before the Hague Tribunal in relation to our Criminal Code is also of better quality, which also applies to access to documents that can exonerate the client,” he adds.
Stojanovic defended Ljubomir Borovcanin before the Hague tribunal who was sentenced to 17 years in prison for crimes in Srebrenica in June 2010. He also defended Dragan Jokic, who was sentenced to nine years in prison in May 2007, for his role in Srebrenica.
Regarding the status of the defence of indictees of war crimes in the Court of Bosnia and Herzegovina, in relation to the Hague Tribunal, Stojanovic says we still live in a system in which the prosecutor is always “with the state” and protecting its interests, while the defence is seen as someone working against it.
“There are no such prejudices in The Hague, where prosecutor and defence are fully equal in court: two sides of the same story whose aim is establishing the full truth about an event,” he says.
When it comes to the re-socialization of offenders after they have served their sentences for war crimes, Stojanovic believes that this will be done.
“I have no doubt that they will be able to return to their regular life and to professional and family activities,” he says.
But he says most war crime indictees feel “used” by society, since they were mostly at one time, as members of the military and the police, executing tasks that others had given them.
“The sentence I often hear is that they ‘didn’t want this war but found themselves in this war’, and then found themselves being perpetrators, accomplices or helpers in the commission of crime.
“Now no one looks at them in the eye and no one is concerned about their position and the positions of their families,” he says.
Regarding the indictment of people for so-called command responsibility, Stojanovic says they often base their defence on the fact that they could not have predicted that members of their teams would commit crimes and therefore could not have prevented them.
“The standard defensive standpoint of persons who have held positions is that they could not have punished anyone [beforehand] when they could not have assumed anything would happen,” Stojanovic says.
Regarding second-instance verdicts, he says that they do not bring about reconciliation since the gap between the positions of the former warring parties remains almost irreconcilable.
“The atmosphere is still inflamed here, with parties are behaving as supporters. ‘My crime is smaller than someone else’s,’ they say… I can’t honestly say verdicts contribute to reconciliation,” Stojanovic says.
However, he says it is very important to individualize criminal liability. There is no such thing as collective responsibility.
“Culpability must be established in each of the former warring nations, as this will lead to the rebuilding of confidence amongst people and the creation of an environment in which it will be clear who is was blame for something,” Stojanovic says.
He says victims have a right to satisfaction, and that the procedures for this are therefore very necessary.
“I stand by the viewpoint that everyone must bear their burden of responsibility for the future of this country, for the people who live here and for our children,” he concludes.
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