Argument

Justice Undone

Why is Bosnia releasing people convicted of genocide?

On Nov. 18, convicted war criminal Slobodan Jakovljevic went home to his Bosnian village of Skelani 20 years before his sentence was supposed to end. Freed after serving eight and a half years in jail for committing genocide during the Bosnian War, he was greeted as a hero: Neighbors and supporters threw a celebration at his local Orthodox church. The head of the government assembly in Srebrenica, the municipality where Skelani sits, attended the event, which reportedly included the shooting of automatic weapons and tossing of grenades.

Jakovljevic, a Bosnian Serb, was not released because his guilt was in question. Rather, he was freed along with nine other war criminals, five of them also convicted of genocide, because an international court said Bosnia sentenced them according to the wrong law.  Some of the released men have returned home like Jakovljevic; at least two have already left Bosnia, reportedly for Serbia. And there are now concerns that many more war criminals -- at least 20, but possibly up to 100 -- could also be let go.

According to a press release, the Bosnian courts released the men, even though their guilty verdicts still stand, because no legal procedure exists in Bosnia to separate a conviction from sentencing. Consequently, the proceedings that put the men in prison must be repeated.

The decision to release the 10 men has exacerbated public distrust of Bosnia's already fragile judicial institutions, and it has angered families of the 8,000 Muslim men and boys killed in the July 1995 Srebrenica massacre, the single worst atrocity in Europe since the Holocaust and a legally recognized instance of genocide. (Jakovljevic was convicted for his participation in the killing of some 1,000 civilians in a warehouse.) It has heightened tensions in and around Srebrenica, a predominately Serb area to which some displaced Muslims have returned since the war. Witnesses who testified against the men fear reprisals.

"Nothing has undermined the stability in this country since the war more than the release of 10 sentenced, convicted war criminals," Emir Suljagic, a Bosnian Muslim who survived the massacre and has returned to his home in Srebrenica, told FP. "You are letting the fox back into the chicken coop."

Munira Subasic, president of Mothers of Srebrenica, a victims association, said she filed complaints on Nov. 26 to Bosnian courts. "This ruling is shameful. We believe the court has just played with the victims," said Subasic, who lost 22 family members in the war, testified against the perpetrators of Srebrenica, and now lives in the municipality. "Yesterday, I spent the whole day on guard, looking to see if someone was behind my back. The police who should be protecting us are the same men who 18 years ago separated wives from their husbands, mothers from their sons, and wanted us killed."

The story of the procedural error that led to such anger and fear is one of bureaucracy and oversight: In 2005, the International Criminal Tribunal for the former Yugoslavia (ICTY), the ad hoc tribunal set up by the United Nations to try the Balkans's most egregious crimes, transferred the bulk of its Bosnia-related cases to the country's state court. There, the 10 now-released men -- among others -- were sentenced according to a criminal code passed in 2003. Fast forward to July 2013, when the Strasbourg-based European Court of Human Rights (ECtHR) found that two men convicted of war crimes should have instead been sentenced based on a law that was in place when the Bosnia War was happening: the 1976 criminal code of Yugoslavia.

The 1976 law specified a maximum penalty of death for genocide. The 2003 code, in conformity with European standards, abolished the death penalty but also imposed longer sentences for war crimes and added the offense of crimes against humanity, absent in the Yugoslav code. The 2003 law was written and imposed by Bosnia's Office of the High Representative (OHR), the international viceroy put in place by the 1995 Dayton Peace Agreement, which established Bosnia's post-conflict constitution. (The OHR has the power to remove politicians from posts and to enact laws.) Judges in Bosnia's domestic war crimes chamber, which was created in 2004, were not required to use the 2003 code, but it is widely believed that they were pressured by the OHR to apply it.

The ECtHR said that while all uses of the 2003 code in deciding sentences for war crimes did not necessarily constitute a violation of rights, each case had to be assessed separately. Soon after, in October, Bosnia's Constitutional Court ruled that, in light of the ECtHR decision, the group of men, including Jakovljevic, had to be given new trials within three months.

Now, the specter of dozens more appeals and of new strains on Bosnia's war crimes chamber looms large. The chamber, which represents one of the most substantial efforts to hold war criminals accountable since the Nuremberg trials, has cost hundreds of millions of dollars, but less than 250 cases have been completed. There is a backlog of some 1,300 more. And already, Serb representatives in Bosnia's parliament have proposed legislation to annul all sentences dictated pursuant to the 2003 code.

Bosnian Serb leaders have long applied pressure to the war crimes chamber and the prosecutor's office because they believe both entities are biased against Serbs. (Generally, they oppose much of the work and structure of state-level institutions, preferring decentralization instead.) Complicating matters, the decision to release convicted criminals comes on the heels of other controversial moves by the Bosnian judiciary, including a 2012 decision to anonymize indictments and judgments for war crimes and the common practice of letting some war crimes indictees defend themselves without being in detention.

The messy state of affairs holds lessons and warnings for future transitional justice and state-building efforts -- particularly about the dangers of overreach by the international community if it remains involved in a country's domestic institutions. "The Dayton Peace Agreement had the seeds of Bosnia's destruction in it, and it is playing out now," said Madeleine Rees, who led the U.N. Office of the High Commissioner for Human Rights in post-war Bosnia and is now secretary general of the Women's International League for Peace and Freedom. "Either you are the government, or you are not. It didn't work. And this is a lesson learned for Syria."

Echoing these concerns, a former international employee of the war crimes prosecutor's office, who spoke on condition of anonymity, said recent events have undermined any remaining authority the international community has in Bosnia. "Locals have lost faith, and there are not enough skilled prosecutors to do the job," the source said. "This is due in large part to the international community making a mess of it."

New custody hearings for the 10 men, including Jakovljevic, who should be retried under the 1976 criminal code, will take place in the coming days. But there's a good chance that, at the very least, the two men who have left Bosnia will remain free: Serbia and Bosnia signed an extradition treaty this September, but it does not apply to people indicted for war crimes or genocide. And the sentencing limits from the 1976 Yugoslav code could mean that even those sent back to prison might not be there very long. Jakovljevic, for instance, could get out in as little as a year and a half. 

Meanwhile, angry families in Srebrenica are swearing off Bosnia's judicial system. "We will no longer respond to the court as witnesses, not anyone in my family and not anyone else," Munira Subasic said. "We will not go through that painful experience once again."

ELVIS BARUKCIC/AFP/Getty Images

Democracy Lab

The Curse of Low Expectations

Lessons for democracy from Madagascar's election.

On Oct. 25, Madagascar -- one of the poorest countries in the world -- held its first election since a 2009 coup d'état. The first round of elections were lauded abroad as "free and fair," and many anticipated a smooth transition to democracy. But just one month later, on Nov. 22, current President Andry Rajoelina conducted what some have called a "partial coup," in which he sacked a third of the country's regional governors and replaced them with loyal military officers.

Madagascar's "free and fair" elections were severely flawed from the start, with mass disenfranchisement and uneven media coverage. But because international election monitors used such rosy rhetoric, these defects were left unchecked -- fostering favorable conditions for instability and corruption heading toward the Dec. 20 second round vote. 

Madagascar's road to democracy has been a rocky one ever since the 34-year-old Rajoelina (a radio DJ-turned-mayor) unseated Marc Ravalomanana (a dairy magnate-turned-president) in 2009. The ramifications of the coup were severe. Kicked out of the African Union and isolated diplomatically, the government saw 40 percent of its budget evaporate overnight as foreign aid was withdrawn.

In the following years, lawlessness prevailed. Heavily armed bandit militias took control of the southern part of the island, stealing tens of thousands of cattle and killing dozens of villagers in the process. The coup regime neglected to address repeated cyclone damage, creating perfect breeding conditions for locusts, which infested the island on a biblical scale, pushing millions of Malagasy even closer to starvation. Critical habitat loss threatens the world's premier biodiversity hotspot with a wave of extinctions. With public health programs virtually non-existent under the coup regime, diseases -- including the bubonic plague -- have spread. The 14th-century Black Death is a scourge of 21st-century Madagascar.

As these problems grew, politicians indulged in a prolonged, self-interested bickering match. Elections were scheduled, canceled, re-scheduled. This continued for four and a half years as international diplomacy sought to restore democracy to the Indian Ocean island.

Elections were made possible only when a reconstituted electoral court issued a surprise ruling banning Rajoelina, Ravalomanana, and former president Didier Ratsiraka from running. The vote proceeded with proxy candidates: former Minister of Budget and Finance Hery Rajaonarimampianina for Rajoelina and ex-World Health Organization official Jean-Louis Robinson for Ravalomanana. Both men made it through the first round of voting on Oct. 25 and into the two-man runoff scheduled for Dec. 20.

Almost immediately after polls closed, the international community eagerly gave Madagascar's election their democratic seal of approval. With only a few hundred of the 20,000 precincts reporting, they already considered the election a done deal. Madagascar had returned to democracy. The EU's chief election observer, Maria Muniz de Urquiza, declared the elections "free, transparent, and credible." Netumbo Nandi-Ndaitwah, head of the Southern African Development Community mission, said the vote was "free and transparent and reflected the will of the people."

Now, with the second round looming, the horse-trading has begun, as the two first-round winners try to convince their vanquished opponents to support them in the second round. Nobody pretends this was ever about democratic expression or policy. It is about winning, whatever it takes. And because the international community failed to sanction the elections, the government and aspiring presidents have no incentive to change for the better.

These dynamics of Madagascar's election reveal three valuable truths about transitions in countries like Madagascar.

First: Election monitors have lower standards for Africa than they do for the West -- and that can be dangerous.

Madagascar's elections were marred by obvious irregularities. Census agents covered just 30 percent of the country, so the extremely outdated electoral lists included only 7.8 million of Madagascar's estimated 10-11 million voting age citizens. Media time was severely skewed toward Rajaonarimampianina. Illicit funding -- particularly from the illegal rosewood trade -- likely filled the campaign coffers of those close to the "transitional" regime.

This combination of irregularities made it easier for Rajoelina's candidate to clear the hurdle to the second round. After all, only 245,000 votes separated him from the third-place finisher, who is now out of the electoral contest.

If an election like this had happened in the United States, it would never be deemed "free and fair" -- but apparently, this is good enough for Africa.

To be clear, this doesn't mean that international observers should abandon Madagascar altogether. Further isolation would not help Madagascar break out of its continuing crisis of gridlock and stagnation. But likewise, this over-eagerness to celebrate severely flawed elections as paragons of democracy does not do the country any favors. And this problem is not unique to Madagascar.

Kenya's 2013 election was labeled "free and fair," and "free, fair, and credible," even though there were problems with voter lists and 28 polling stations reported turnout above 100 percent -- problems that matter especially since the winner avoided a runoff by just 8,000 votes.

Outside Africa, in Azerbaijan, the results for this year's election were seemingly accidentally released before the election happened. Vote counting irregularities occurred in 58 percent of precincts. Some observers still deemed the election "free, fair, and transparent." In reality, it was an electoral joke.

Until higher standards exist, autocrats will be able to use the words "free and fair" to validate the outcomes of undemocratic elections.

Second: Madagascar's elections demonstrate that the international community is willing to place expediency above principle.

International observers did not protest when Lalao Ravalomanana -- the former president's wife -- was barred from running on a technicality. Banning her from the ballot was expedient, but it was also bad democratic precedent. Moreover, barring the three former presidents may have been the only way to smash through the bitter roadblocks to elections -- but it is hard to argue that the resulting election represented the will of the people when three of the most popular candidates were not on the ballot. Yet this stratagem won the blessing of international mediators. This is not to say that the decision was a bad one: elections needed to happen. It is simply yet another illustration that in the messy wrangling that is African democracy, expediency often trumps democratic principle.

Third, and finally: the Malagasy election demonstrates that a sea change is needed to lower the stakes of defeat in fragile democracies.

Upon losing the U.S. presidential election in 2012, Republican candidate Mitt Romney faced the prospect of making millions on book deals or speaking tours, not exile or jail. In Madagascar, the loser of any election has a choice: go into exile, or face imprisonment. Exile is a tradition in Malagasy politics, where losers need travel agents to save their lives. This is not the recipe for long-term stability.

As long as losers in places like Madagascar face exile or (political) death if they lose, volatility and the risk of post-electoral violence is practically guaranteed. The international community should pressure regimes to respect their defeated opponents, and condition future aid guarantees on the post-electoral treatment of former rivals.

Of course, the international community cannot be blamed for everything. Certainly, these points are also important for transitioning countries to bear in mind: hold elections to a high standard, do not rush a vote, and make sure candidates can run for elections without fearing the consequences of losing. These lessons could help countries with constitutional assemblies and structured transitional roadmaps. But international pressure plays an important role in ensuring healthy transitions, and in this case -- as in so many others -- election monitors let the country down. For now, whether democracy can germinate in Madagascar from the broken seeds of the Oct. 25 vote remains to be seen.

STEPHANE DE SAKUTIN/AFP/Getty Images