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Ten days after her term in office began, one of the first tasks undertaken by Graciela Gatti Santana, the new president of the International Residual Mechanism for Criminal Tribunals, was to deliver a speech at the commemoration of the 27th anniversary of the Srebrenica genocide.
As the first female head of the Hague-based war crimes court that was established by the United Nations Security Council to complete the work of the UN’s tribunals for the former Yugoslavia and Rwanda, Santana emphasised during her speech how much she was affected by the stories she had heard about the women of Srebrenica, some of whom have struggled for decades to preserve the truth about what happened in July 1995.
“Preservation of the truth is really the essence of our presence here,” Santana said in her speech.
Uruguay-born Santana has worked as a judge in The Hague for more than a decade, including as a member of the judging panel in Bosnian Serb wartime political leader Radovan Karadzic’s appeal against his conviction for the Srebrenica genocide and other crimes.
In an interview with BIRN, she said that it is necessary to accept the truth about Srebrenica as established by the court in order to achieve reconciliation.
“Because you cannot achieve a meaningful reconciliation if you don’t consider the truth – you cannot forget what happened,” she said.
In her speech at the Srebrenica Memorial Centre, Santana pointed out that although the truth is known, genocide denial persists. “Those engaging in such rhetoric are in a minority but their voices are loud,” she said.
The authorities in Serbia and Bosnia’s Serb-dominated Republika Srpska entity both refuse to accept that the massacres of Bosniaks by Bosnian Serb forces constituted genocide.
Santana told BIRN that genocide denial is a worrying phenomenon: “That narrative is really problematic of course because it tries to undermine the findings of the Tribunal, they are trying to undermine the judgements of the Tribunal, and it also impacts the victims and the survivors, because it is like making them victims again, trying to forget what happened and silencing their voices. That really worries me and it is really problematic,” she said.
Santana says she is proud of the legacy of the Hague court, which has so far convicted seven Bosnian Serb military and political leaders of genocide against Bosniaks. Five of the defendants, including Karadzic and wartime military chief Ratko Mladic, were given life sentences.
Mladic’s life sentence was upheld in June last year but it still hasn’t been decided where he will serve his jail term. Santana said he is still being held at the UN Detention Unit in the Netherlands.
She explained that the registrar at the International Residual Mechanism for Criminal Tribunals is currently negotiating with various countries to find a suitable prison for Mladic.
“This is normal, it takes time to find the right enforcement state, because it is a very big responsibility for a state to assume these obligations, so it is something that takes time – it’s normal. There is nothing to be worried about,” she said.
Remorse is important
Graciela Gatti Santana in the Memorial Center in Potocari. Photo: Memorial Center
The last trial dating back to the 1990s Yugoslav conflicts that is still awaiting a final verdict at the Hague court is in the case against Serbian State Security Service chiefs Jovica Stanisic and Franko Simatovic, who were sentenced to 12 years in prison each in June last year for wartime crimes in Bosnia and Herzegovina.
Both defendants and prosecutors have appealed, and the verdict is expected to be delivered in June 2023. But even after this, Santana will continue to make decisions about people who are already serving their sentences, ruling on issues like requests for early release.
Santana’s predecessor, Carmel Agius, rejected several requests for early releasefiled by war crimes convicts because he said they had not demonstrated that they had been rehabilitated and shown remorse for their crimes. His decisions were welcomed by Bosniak war crimes victims’ associations.
Santana said that, in general terms, she agrees with this approach, but when the time comes, she will have to make her own decisions.
“Remorse is something that is important to consider in the whole panorama that you have to take into account. I cannot anticipate what will be my decision, as a judge you can never do that. Every case is not exactly the same as another one so I will examine all the elements when the moment comes related to every case,” she said.
However, she noted: “Of course [remorse] is an element that is important for the reconciliation process.”
