Clemency is a Principle of Criminal Law

A REFUTATION OF ACCUSATIONS BY MS. LOMIGORA & PARTS OF THE BOSNIAK COMMUNITY AGAINST SWEDISH F. M. CARL BILT

The reactions to the early release of Biljana Plavšić from the Swedish Prison, after serving two-thirds of her ICTY-delivered sentence for war crimes in Bosnia, show that passions in the Balkans have not yet settled and that vengeful feelings arising from the war still fly high. The article by Selma Lomigora, accusing the Swedish Foreign Minister, Carl Bildt, for somehow conniving with Biljana Plavšić to secure her release, shows just how difficult it can be for academics to distance themselves from the passions arising from war-time victimisation.

Biljana Plavšić is an 80-year old woman, who participated in the top echelon of the Bosnian Serbian leadership during the Bosnian civil war 1991-95. As such, she simply had to be counted responsible for the decisions taken by that leadership, regardless of any personal involvement in their execution. Some of the statements she made during the war, in the frenzy of nationalism in the Western Balkans, at least seem to suggest that she condoned the policies that led to crimes committed by the Serbian side in the conflict. For this, she was sentenced, not least leniently, and spent years at this late stage in her life among thieves, robbers and killers, in a cell that only had artificial ventilation, in a prison far away from the family and friends, in Sweden.

The Swedish legal system is one of the most advanced systems in the world. Sweden is the country with one of the most successful crime-control policies, with the lowest rate of recidivism of offenders, and with one of the lowest crime rates in Europe. This is a system that contains the rule that a prisoner may be subject to an early release upon serving two thirds of the sentence, the rule that is the subject of critique by Ms. Lomigora. However, the same rule exists in the criminal legislation of the former Yugoslav states, including Bosnia and Serbia.  Moreover, the same rule exists in virtually all European countries' criminal laws. This rule is a civilisational achievement, so it is unclear what Ms. Lomigora finds so offensive in it.

The article suggests that somehow Minister Bildt is at fault for having Mrs. Plavšić serve her prison term in Sweden. Does Ms. Lomigora suggest that the judicial chambers of ICTY are corrupt, so that decisions on where the convicted persons will serve their prison terms are made by somebody else, including ministers of member countries? The decisions in the Plavšić case, just like in any other case, were made by the judges, not by Mr. Bildt, who as Ms. Lomigora admits is one of the most capable foreign ministers world-wide. The anger present in the reactions in Sarajevo, including calls on the Sarajevo government to proclaim Minister Bildt a persona non-grata in Bosnia, frankly speaking, borders with serious stupidity. Academics should not take part in such irrational demonstrations of rage against the principles of criminal law and the basic functioning of the international political community.

 

It is unclear to the reader what Ms. Lomigora would like ICTY to have done with Mrs. Plavšić. Surely she could not have been killed, as there is no death sentence in international criminal law. Perhaps Ms. Lomigora would have liked Mrs. Plavšić to have been sent to a country like Iran or Afghanistan to serve her sentence? Perhaps these are examples of high quality judicial systems where prisoners have no rights to early release? If so, then Ms. Lomigora would have a very hard task to argue just how such decisions would be justified by reference to the same civilisational standards that were used to try Mrs. Plavšić for the barbarities committed against the innocent Bosniak civilians during the war. Should there be a double standard, so that the rights of seceding populations should be judged in accordance with the international humanitarian law, standards of the EU Convention on Human Rights, which is the highest standard in existence, and the somewhat lower, still highly effective, standard of the UN Convention, while at the same time the rights of those accused in such trials should be determined at the level of Sheriah law? Ms. Lomigora does indeed need to make it clear what her perspective is.

Equally distasteful is her label for Mrs. Plavšić "convicted war criminal". Mrs. Plavšić might have been a convicted war criminal prior to serving her dues in prison. After release, she is a full-fledged citizen, certainly a person, and can no longer be labeled "convicted war criminal" any more than a person that serves a sentence for robbery is a "convicted robber". These people have a criminal record, but they are free persons with a right to human dignity.

 

Finally, let us do justice to Ms. Lomigora's article. The fate that befell the Bosniak population during the civil wars in Bosnia was horrifying. Bosnia is filled with graveyards of young men who had fallen in the war, whose lives were cut short. The Bosniak citizens of Bosnia have every right to be sad and to harbour the memory of the victims of the war in the historical memory of their people, as well as to do everything they can to prevent the tragedy that happened to their people from occurring ever again. However, the Bosniak people do need to move on and work constructively with the other two nations, the Serbs and the Croats, to make Bosnia a true European country. They cannot continue politics and academic discourse based on the hatreds and resentments that are perpetuated by the active politicians who date back to the time of war time atrocities. Only Bosniak leaders today include at least one politician who has continued work in politics since the 1991-95 period. Both the Serbs and Croats have brought in new people, free of the pressures of the past. In this sense, the psychological and emotional pressures that the elite politics exert on the Bosniak citizens of Bosnia stifle their ability to heal the wounds.

 

Arguably, the Bosniak population was the greatest victim of the war in Bosnia; however, let us not forget that the other two nations, the Serbs and the Croats, also suffered grave victims. The continual perpetuation of the discourse that basically does not differ from that of the wartime years does not help Bosnia prosper, and fuels calls for its partition. A rational social elite would take that into account and, rather than battering the 80-year old lady who certainly did not do any harm to anyone herself, and still had the courage to admit political guilt and go to prison, work on saving Bosnia as a functional country.

 

The comments on Foreign Minister Bildt are quite another matter. They truly do not deserve to be commented on. Minister Bildt, amongst other major political decision-makers in the EU, is one of the main supporters of Bosnia's reforms and EU accession. The fact that he is been made the target of such vicious attacks in Sarajevo merely shows just how irrational the reactions to the war still are amongst the Bosniak political elite. This is unfortunate. The Bosniak social elite, unlike the political one, has much to offer and contribute to Bosnia's progress towards the EU, and to the development and preservation of international law.

 

Finally, one point from jurisprudence: criminal law is subject to two basic principles: (1) conservatism and (2) clemency. Conservatism means that no radical solutions should be adopted in the imposition of criminal sanctions, because of their devastating effect in case of judicial error, and clemency means that the dignity and value of human life should be recognised through the principle of making sure that the convicted people are treated fairly and not excessively harshly with a view of their guilt. These principles are built into all international instruments of criminal law. Should they have been taken note of by Ms. Lomigora, surely her critique of Sweden and Ms. Bildt would have been less scathing.

 

* Dr Aleksandar Fatic is the Director of the Centre for Security Studies, Belgrade