Before anyone raises their eyebrows at this obvious oxymoron, there is something we should clarify. The trial of Kos et al. [the et al. being Kojic, alias Savanovic, Golijan, and Goronja] in Sarajevo was a farce, but if the sentence was unjust that was more on the side of leniency. Tenth Sabotage Detachment soldiers Franc Kos and Zoran Goronja were sentenced to 40 years of prison each, Stanko Kojic [alias Savanovic] to 43, and Vlastimir Golijan to 19. The sentences were motivated, as the Chamber under the presidency of judge Mira Smajlovic put it, by the execution on July 16, 1995 of "800 men and boys" on the Branjevo farm near the village of Pilica. Is that all, for such a horrid crime? What exactly is cooking at the Court of Bosnia and Herzegovina and whence is it receiving its operational signals?

   We should commence by reviewing the main points of judge Smajlovic's sentencing statement. It turns out that what she did on 15 June was to merely use the opportunity to declare the accused guilty and to pronounce their sentences, but should anyone be curious about the Chamber's reasoning they will have to wait another five or six months [presumably till after the summer holidays] until the Chamber comes round to formulating its judgment. Even legal laymen will put the obvious question: how can anyone in the intervening period [on the prosecution or defence side] possibly file a meaningful appeal not knowing the basis for the court's decision? A good question, but quite redundant in Sarajevo.

    The main points of judge Smajlovic's statement of 15 June are the following [it is not clear under the protocol what it ought to be called: in America it would probably be a sentencing hearing but for the fact that such hearings there are usually not held in the absence of an already available and published verdict]:

(1) The accused are found guilty of taking part in a "widespread and systematic attack" against the "Bosniak civilian population" in the Srebrenica enclave. That population is estimated by the Chamber at "up to 40,000" while the number of "executed men and boys" is put at "more than 7,000".

(2) The crime is classified as a "crime against humanity" without any reference to genocide, as urged by the Prosecution.

(3) It is imputed to the accused that "they were aware of the attack and that their conduct formed an integral part of that attack" and furthermore that they "committed acts of persecution against the civilian Bosniak population ... on an ethnic basis, including execution".

(4) Operationally, the crime was committed on 16 June 1995 "between 10 am and 15 pm" and had as a consequence the "execution of 800 Bosniaks".

    To increase the confusion, the audio recording of the hearing which was posted on the Court of Bosnia and Herzegovina website [1] does not contain exactly the same information as media reports from the courtroom such as the Associate Press report [2].

    According to news agencies judge Smajlovic explained the rejection of the genocide charge on the ground that the accused committed the crime for monetary reward, not prompted by genocidal intent. However, that significant explanation cannot be heard on the official audio recording posted by the Court.

    Whatever the case may be, it seems that the Court of Bosnia and Herzegovina in Sarajevo – as they say in America – just can't get it right, even when in principle its sentence seems correct.

How is it possible that members of a group who are all arraigned for essential the same crime, in which they participated in essentially the identical way, should receive sentences that vary between them up to 24 years, 19 years of prison at the lower and 43 years at the topmost end? That sentencing range for defendants all of whom are essentially in the same position is inexplicable and it does not inspire confidence that the Chamber sought a rational basis when deciding what sentence to impose. Rational basis is a key component of fair trial and it plays an important role in the sentencing policy of professional courts.

     The next question is what disposition can be expected by individuals in roughly the same circumstances in cases that were adjudicated already (the Stupar case comes to mind) and to whom genocidal intent was attributed, but whose state of mind could not possibly have differed significantly from that of the Pilica Four? Will their sentences now be reassessed in light of these new conclusions of the Kos Chamber?

     Finally, the factual matrix of the crime committed in Pilica has now undergone a significant revision, arbitrarily and without any explanation. What new counting methodology was used to reduce the previously recognised number of Pilica victims (said by Drazen Erdemovic to have been 1,200, a figure which until now enjoyed unquestioned acceptance at all Srebrenica-related trials in Sarajevo and at the Hague) to 800? Why not make it 500, 350, or some other out-of-the-hat number?

     The issue is of some importance because the integrity of the legal proceedings depends in large measure upon the answer to the question: how have 400 persons from the list of victims which until recently was taken for granted so suddenly and so completely disappeared? Who recounted the victims, and how, especially bearing in mind that at the crime scene in Pilica the remains of between 115 [3] and 124 [4] persons were exhumed. The discrepancy is glaring. The empirical evidence suggests one thing, while the arbitrary figures publicised by the prosecutors in Sarajevo and at the Hague point in a substantially different direction. Why wasn't the figure which reflects the number of actually exhumed human remains at the execution site used as the basis for pronouncing sentence? Everything beyond that is clearly arbitrary and perhaps even politically shaded. And to make the judges' task simpler, even if they had used the evidence actually found at the crime scene, which points to a much lower number of execution victims, the crime is still grave enough for the defendants not to have fared significantly better. But the proceedings would have been more credible by far.

     It is also worth noting one of the consequences of the reduction of the number of execution victims from 1,200 to 800 while keeping unchanged the temporal parameters of the crime (as judge Smajlovic can be heard in the audio to explicitly say): it occurred between 10 am and 3 pm, or during a total of five hours. It should be recalled that based on the evidence of "crown witness" Drazen Erdemovic, the Bulgarian analyst Germinal Civikov calculated that if 1,200 men had to be executed over a five hour period in groups of ten – as Prosecution witness Erdemovic had claimed – that would have allowed a mere 2,5 minutes for the execution of each group. Civikov concluded that this was physically impossible. With the now conveniently reduced number of victims, instead of having 2,5 minutes the execution squad would have had 3,75 minutes to finish its task. Does it become possible now? Let the reader decide.

     Incidentally, during the trial judge Smajlovic and her colleagues heard the opinion of the Prosecution's military expert, Richard Butler, that the preparation and execution in June and July of 1995 of the Army of the Republic of Srpska attack aiming to separate the enclaves of Srebrenica and Zepa was an entirely legitimate military operation, aside from the crimes that may have been committed afterwards. What, then, is the origin of the Chamber's idea that the operation, starting in June of 1995, constituted a "widespread and systematic attack" on the Bosniak civilian population? Civilian? One was under the impression that there was in the enclave the 28th Division of the Army of Bosnia and Herzegovina with 5,000 armed soldiers. Were the Chamber aware of that? Hopefully we shall have the full text of the verdict fairly soon so that these and other points might be clarified.

     The sentencing procedure in the Kos at al. case before the Court of Bosnia and Herzegovina fully reflects that court's political and unprofessional character. It seems that you cannot get a fair trial there even when the sentence is arguably correct.

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[1]   http://www.sudbih.gov.ba/files/media/893-1.mp3
[2] “4 Bosnian Serbs sentenced for Srebrenica killings,” Associated Press, http://www.sacbee.com/2012/06/15/4564634/4-bosnian-serbs-sentenced-for.html#storylink=cpy
[3]  The figure suggested at the Pelemis and Peric trial before the Court of BiH by defence expert witness Dr Ljubisa Simic.
[4] The figure suggested at the Pelemis and Peric trial before the Court of BiH by Prosecution expert witness Dr Rifat Kesetovic..