Plavsic Plea & Sentencing: What to Make of It

When three ambassadors, a Nobel Peace laureate and the Co-Chair of the South African Truth and Reconciliation Commission testify in the same proceeding, you know it's important. In opening remarks, defense counsel told the Court, 'It is not an overstatement to describe what will take place in this courtroom as the most important sentencing hearing which has been or will be conducted at this Tribunal. A political leader charged with serious violations of international law including crimes against humanity has voluntarily submitted to the International Criminal Tribunal for the Former Yugoslavia.'

That political leader was Biljana Plavsic, former President and wartime leader of the Republika Srpska who pled guilty October 2, 2002, to persecution of non-Serbs in Bosnia and Herzegovina in a campaign of ethnic cleansing. Persecution is a crime against humanity and more specifically includes, discrimination, killings, cruel and inhumane treatment, forced transfer or deportation, unlawful detention, cruel and inhumane treatment and inhumane conditions in detention facilities, destruction of cultural and sacred objects, plunder, wanton destruction, forced labor and use of human shields.

Chief Prosecutor Carla Del Ponte, in her opening statement, also stressed the importance of the proceedings. 'I believe that today's hearing is of unusual importance in bringing to light what occurred during the conflict in Bosnia and Herzegovina. It is the first time in this Tribunal that a senior figure in the former Yugoslavia, indicted in a top leadership role, has admitted responsibility for horrific crimes committed during the conflict in Bosnia and Herzegovina.'

During the two and a half day hearing, witnesses repeatedly stressed the unique role and responsibility of the ICTY. For not only is it charged with determining individual guilt and innocence of the crimes under its jurisdiction. The UN Security Council conceived of it also as an important element in the maintenance of peace and the process of reconciliation. That is a big order for any institution, even an international court authorized and supported by the nations of the world. In the end, it will not be the ICTY alone that determines the success or failure of these goals. Ultimately, it will be the people of the former Yugoslavia and what they choose and are able to make of the justice rendered by the Court.

Mrs. Plavsic's admission of guilt, acceptance of responsibility and expression of remorse brings this into stark relief. The hearing which explored these issues generated more passionate discussion among court observers than anything since my arrival last February. Was her expression of remorse genuine? Was it enough? What would victims and survivors make of it? Had she really addressed them? Would other perpetrators be encouraged to come forward and confess? Would her confession initiate a re-assessment among Serbs who continue to support Karadzic and Mladic? Will it promote reconciliation among former Yugoslavs? How? Will it begin to establish a 'truth' that former enemies can agree on? What length sentence would be fair and just? How should victims? needs be weighed? How should Mrs. Plavsic's actions before, during and since the war be assessed?

Of course, it is the three judges who must address at least some of these questions as they consider the submissions of the parties and the testimony of the witnesses. They will be guided by the statute and rules of the Tribunal, as well as decisions in other cases. But the importance everyone places on this sentencing, the competing and seemingly irreconcilable interests involved expands their responsibility to Olympian proportions. It is as if the future of countless generations hinges on it.

While it is an important decision, and it will have implications, it is wrong and dangerous to set it outside and above the other work of the Tribunal. It is equally wrong and dangerous to consider it something that is being done to the region -- to victims, perpetrators and bystanders. Whatever the Court decides in this case and others, the ultimate responsibility lies with people from the former Yugoslavia . . . to make of it what they will. They, not the three judges and not the prosecutors or the defense lawyers, will decide whether they can use it or not -- in their healing, their need for justice or closure, the building of a common truth, the future possibility of reconciliation.

This assumes that the Court will fulfill its role responsibly, by grappling with the issues, considering the testimony and submissions, being guided by the law and rendering a well-reasoned decision. Without some measure of proportion, and some understanding of the limits of justice-making, the sentence imposed on Biljana Plavsic will be misused to undermine the very process everyone now exalts. Ultimately, it will be a decision by three professional, experienced, thoughtful, well-informed and intelligent judges who are human beings, not Olympians. It is quite likely the sentence, whatever it is, will displease some, and also possible that no one will be happy with it. How it's received will depend on what people expect and want from it. It cannot bring perfect justice. That doesn't exist in this world, since we can neither restore what was lost nor make the perpetrators suffer equally without losing our humanity.

What the judges can do is fulfill their role responsibly, by grappling with the issues, considering the testimony and submissions, being guided by the law and rendering a well-reasoned decision. They can neither insure reconciliation in the region nor prevent it. While their decision will have an impact, it is for the people in Bosnia-Herzegovina and the rest of the former Yugoslavia to decide what that impact will be. No one can tell those who have been so terribly victimized how they should react to the sentence, anymore than how they should respond to Mrs. Plavsic's acceptance of responsibility and expression of remorse. As Dr. Alex Boraine, former Co-Chair of the South African Truth and Reconciliation Commission, told the Court during the hearing, victims are not monolithic and will not all respond the same. Nor can anyone predict how other perpetrators will react, whether Mrs. Plavsic's plea and sentence will encourage others to come forward.

For the broader public who followed Mrs. Plavsic's racist policies or believed the war of Serbian aggression was a war of defense, the sentence handed down is unlikely to influence them. It is the truth of her plea itself that they must decide whether to accept or reject. Until that broader public accepts her present rendering of events as true rather than that of her one-time partners, Milosevic, Karadzic, Mladic and Krajisnik, reconciliation will remain a word on paper. By her admission of guilt, she has given them the opportunity to move toward a more hopeful future. It is up to them to take the next step.

Mrs. Plavsic's sentence for the grave crimes she has admitted will be decided by three judges in The Hague. The ultimate significance of her acceptance of responsibility will be determined by the people in the former Yugoslavia.