Dealing with the past, especially in the context of the 1990s war, has always been a contentious issue in Bosnia and Herzegovina (BiH). The country has been the subject of experiments for “neoliberal peace,” and many initiatives aimed toward dealing with the past were individualized and private in their nature.

One of the rare institutionalized attempts in dealing with the past was the prosecution of war crimes. Through this framework many important facts about crimes committed during the war have been established.

However, the courts have not proven to be an adequate arena to address the failure of the Dayton Peace Agreement to deal with the political ideologies, and the representatives of those ideologies that were responsible for the war.

By allowing the ideologists of the war, ideology shaped by the war, and war leaders to be the ones to agree on and inform the peace agreement, the possibility was created to enable those same forces to actively work towards negating the achievements of the courts.

One of the most flagrant examples is the case of Marko Radić.

The story of Marko Radić

In 2011, the Court of Bosnia and Herzegovina established that, during the period between July 1993 and March 1994, Radić was a superior in the Croatian Defence Council (HVO) and had responsibility over Commander Mario Mihalj (deceased), his Deputy Commander Dragan Šunjić, Mirko Vračević, Damir Brekalo and other prison guards and soldiers in the Vojno camp in the Mostar area. The camp was part of Herceg-Bosna — the 1990s war endeavor of ethno-nationalistic ideologists at creating a Croat entity in Bosnia and Herzegovina.

The case involving Radić and the others is closely connected to the trial of Prlić et al. (also known as the Herceg-Bosna case) at the ICTY. In 2017, all six accused in the Prlić case (Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić and Berislav Pušić) were found guilty of being members of a joint criminal enterprise (along with the then Croatian war leaders Commander of the Croatian Army Janko Bobetko, wartime defence minister Gojko Šušak and former Croatian president Franjo Tuđman).

According to the ICTY, this joint criminal enterprise had as its common criminal purpose the “domination by [Croats of the Croat Republic of Herceg-Bosna] through ethnic cleansing of the Muslim population.”

In March 2011, Marko Radić was sentenced by the Court of Bosnia and Herzegovina in Sarajevo to long-term imprisonment of 21 years, Šunjić to 16 years, Brekalo to 20, and Vračević to 12 years imprisonment. According to the judgment, he and his soldiers “contributed to, and furthered the functioning of, the Vojno prison system in ill-treating and persecuting the Bosnian Muslims by ordering, committing, or otherwise aiding and abetting the commission of various forms of physical, mental and sexual violence, whereby the atmosphere of terror was created.”

Among the detainees in the Vojno camp were around eighty women and children. Many women and underaged girls were sexually assaulted and raped.

The case not only went through the appeal procedure at the Court of BiH, but Radić also appealed to the Constitutional Court, which did not find violations of defendant’s right to a fair trial.

Nevertheless, from its beginning this case has been smeared with political interventions by followers of the political ideologies that have remained in power in Bosnia and Herzegovina since the war. Marko Radić represents an important figure for the elites currently in power in Bosnia and Herzegovina, and the perseverance of their power, as he has been the part of the discourse that enabled them.

Everything that follows happens in the context of renewed calls for the revival of Herceg-Bosna (or, as it is often referred to, “the third entity”), which have been more and more active and visible since 2016, and the celebrations of the 25th anniversary of its establishment.

Radić’s privileged status

Even though Radić was sentenced to serve in the closed prison in Zenica, in October 2011 he was transferred to a less restrictive prison in Mostar.

The power to transfer prisoners from one prison to another is given to the Minister of Justice. This is how the political elites in power (for which the Constitution of BiH — part of the Peace Agreement — provides to always be ethno-nationalistic elites that were part of the war narrative) ensured that they could override any court processes.

At the time of transfer, the Minister of the Justice in BiH was from the Croatian Democratic Union (HDZ) party, which was part of the war narrative. One curiosity is that the HDZ has somehow positioned itself (always in agreement with the other two ethno-nationalistic political powers) to continuously be in charge of the Ministry of Justice of BiH since 2007.

This trend has continued with current Minister Josip Grubeša, who had nothing to do with law before his appointment (from his bio at the Ministry site it is not clear what his occupation is, but it is clear that he worked for the university in Mostar).

Human rights activists and victims of war crimes have on numerous occasions questioned the procedures used in the transfers of convicts for war crimes to the less restrictive prison, especially as the sentence determines the sanction be served in closed prison.

That Marko Radić had a special, privileged, status within the HDZ establishment was further demonstrated by visits made to him by politicians from the party in their capacities as officials of either the state of Bosnia and Herzegovina, or the Federation of BiH. In the same manner that competent prosecutors never questioned whether the Ministers of Justice abused their power when transferring prisoners from closed to less restrictive prisons, so the political elites of other parties never questioned those visits.

But that was not all. After the confirmation by the Constitutional Court that the trial did not violate the rights of Marko Radić, the HDZ has found a way to half his sentence and, very soon, release him. Again it was through (ab)using the power vested into the office of the Minister of the Justice to act on the transfer of prisoners.

Radić’s transfer to Croatia was secured on October 8, under questionable circumstances and questionable interpretations of international treaties. Article 80 of the Law on International Legal Aid in Criminal Matters, from which the Minister drew his authority to adopt a Ruling on Transfer, only applies to the transfer of foreigners.

Marko Radić though, is a dual citizen of Bosnia and Herzegovina and Croatia. Based on Article 3 of the bilateral Agreement between Croatia and Bosnia and Herzegovina on dual citizenship from March 2007, when in the territory of Bosnia and Herzegovina, persons with dual citizenship shall be deemed to be exclusively a citizen of that country, unless otherwise provided by the Agreement.

The Agreement does not regulate the serving of prison sentences and consequent transfers. Accordingly, it appears that the Minister misused his office by incorrectly using authority from the law, by incorrectly defining Radić as a foreigner.

However, the misuse of office does not stop here.

The Minister of Justice’s ruling on the transfer contains several other references that point to misuse of the purpose of the legal institute that enables convicts the convenience to serve their sentence in another country (the country of their citizenship), and the purpose of the legal institute of the recognition of foreign judgments.

Without specifying exact provisions, the Minister states that he based his decision on the transfer on provisions in the Agreement between Bosnia and Herzegovina and the Republic of Croatia on Mutual Execution of Court Decisions in Criminal Matters, and the European Convention on the Transfer of Sentenced Persons.

According to the judgment from Zagreb, based on the request of Marko Radić for a transfer to Croatia to continue serving his sentence there, the Ministry of Justice of the Republic of Croatia (upon receiving Radić’s request via the Ministry of Justice of Bosnia and Herzegovina) submitted the case to the Supreme Court of the Republic of Croatia to determine the competent court. In its ruling from July 25, 2018, the Supreme Court determined the County Court of Zagreb to be competent for the procedure.

Based on this, the County Court of Zagreb adopted the judgment on August 31, 2018. The Court actually adopted the decision to partially accept the judgment of the Court of BiH, and subsequently reduced Radić’s sentence from 21 years of imprisonment to 12 years and 6 months.

Trying to justify the significant reduction of the sentence, the County Court admits that the foreign judgment was not accepted in its entirety, and that the punishment the County Court determined is not the result of adjustments to domestic laws, but a consequence of the fact that part of the convicting judgment is not accepted at all.

According to Article 10 of the European Convention on the Transfer of Sentenced Persons, the Republic of Croatia is bound by the legal nature and duration of the sentence as determined by the sentencing State. Departure from the nature and duration of the sanction is only allowed if the Croatian law does not prescribe them. In this instance, this is not the case.

The Republic of Croatia in this case departed from the type of determined sanction by pronouncing a sentence of imprisonment instead of long-term imprisonment (even though the Criminal Code of Republic of Croatia recognizes long-term imprisonment sentences as one of the types of punishment). It also significantly departed from the duration of the sentence as determined by the Court of BiH.

In this instance the County Court referred to the sentencing policy of Croatia even though the Convention on Transfer does not allow for this to be reason for departure from the sentence determined by Bosnia and Herzegovina.

Furthermore, paragraph 54 of the Explanatory Report to the Convention on the Transfer of Sentenced Persons (March 21, 1983) lists obligations under Article 11 of the Convention on Transfer and points to the fact that the Republic of Croatia had only two options: either to accept the judgment in its entirety or to reject it because the condition relating to the dual criminal liability was not met. The partial acceptance of the judgment has no basis in the Convention on Transfer.

Croatia was obliged by the Convention on Transfer to reject the judgment from Bosnia because the condition relating to the dual criminal liability was not met. If the acts that include joint criminal enterprise are not punishable under the laws of Croatia (because they do not know and do not recognize the legal institute of joint criminal enterprise), the transfer of the convicted person should not be possible and should not be approved.

Another matter of concern is the fact that even though the County Court obviously incorrectly interpreted the Convention, the Minister still approved the transfer. The Minister could have simply not signed the Ruling on Transfer once he received the judgment, in which he could see the problem relating to the condition of dual criminal liability.

However, he signed it regardless. His legal illiteracy can in no way be an excuse for the flagrant disregard of the laws, obligations and public interests of Bosnia and Herzegovina.

Victims interests

The question remains how do we then support the interests of victims, especially in the cases where the state of BiH was the one that, via the Prosecutor’s Office of BiH, in the first instance took responsibility to represent the victims, while at the same time the Minister of the Justice of BiH participated in the illegal transfer?

It remains to be seen if the Prosecutor’s office will pay more attention to the actions of the Minister of Justice in this case, and examine whether they actually amount to criminal charges.

In the context of the criminal proceedings and the way they are set up at the moment, we really do not have anyone who represents the interests of the victims. The fuss is all about the perpetrator and his actions.

Radić has profited from judicial checks and balances in regard to respect for his human rights. The victims unfortunately were not provided with this privilege. In addition to the suffering they survived in the Vojno concentration camp, the judicial checks and balances, dedicated to securing fair trial for the defendant, inflicted additional trauma on them.

The victims and witnesses, due to the specificities of life in small villages, were exposed to threats, physical and psychological attacks, burglaries and even their private property being set on fire by Radić’s fellow ex-HVO soldiers and their supporters. Threats and attacks on their physical safety were never adequately addressed, neither by the institutions nor by the public. The attacks were never prosecuted.

When Radić was transferred to the less restrictive prison in Mostar, many of the victims and witnesses were forced to retreat to their homes. They were scared for their safety, as Radić had far more power being close to their homes and able to freely communicate from the prison with those by whom the victims felt threatened.

The striking off of a significant part of the conviction, reduction of the sentence and the potential upcoming release of Marko Radić, additionally affected the victims. Certainly, as noted by Serge Brammertz, the chief prosecutor in the Hague, this “will radically undermine the trust of victims and the public in the Ministry of Justice, and in the justice system in Bosnia and Herzegovina.”

To this we need to add that Radić’s supporters already started posting welcoming banners around Mostar, once the decision about almost halving his sentence became publicly known and human rights activists raised their voice against such an outcome. This additionally disturbed the victims in an already tense post general election situation.

Nevertheless, there is still the chance for Bosnia and Herzegovina to overturn this situation.

After Radić serves the part of the sentence the court in Zagreb recognized, Bosnia and Herzegovina can ask for his return to serve the rest of the sentence. Thus, it is on the State to act speedily and make this request before Radić is released.

Furthermore, the state also has the obligation to punish the official who misused office. By undermining the criminal option provided by the law, he also disregarded the need to protect the fundamental values of society in cases with extreme situations such as war crimes and crimes against humanity.

Once it became known that the transfer occurred thanks to the Ministers’ misuse of the office, the Association of Victims submitted criminal report to the Prosecutor’s Office. It is now upon the acting Chief Prosecutor Gordana Tadić to seriously approach this task.

It is not only her reputation that is at stake, given that in many situations she has been seen as inappropriately close to HDZ. It is the entire institutionalized mechanism of dealing with the past that is currently at stake, and relying on her actions.

By allowing the political ideologies that were part of the war to remain in power, it was easy for the minister of justice to (ab)use the power given to him. No matter how much energy, scrutiny, time, knowledge, and money we have put in improving prosecutions of war crimes, the warmongering ethno-nationalist elites and ideologies which were left in power through the Peace Agreement have found ways to overturn all of that.

Feature image: Besnik Bajrami / K2.0.