That Someone Guilty Be Punished - Open Society Foundations

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legal framework for Rule 11 bis transfers 803 Resolving these issues has inevitably complicated the processing of early cases before the chamber. In similar fashion, some of the requirements built into the transfer process, which were designed to protect the integrity of ICTY indictments, 804 ensure the safety of witnesses who provided evidence to the ICTY prosecutor and preserve the value of other ICTY-generated evidence, have given rise to legal challenges and cumbersome processes that necessarily result in delays. 805 Yet any fundamentally new court like the BWCC would face novel legal challenges, regardless of whether it was bound to honor special rules concerning the transfer of cases from an international court. (Indeed, the ICTY itself had to resolve a raft of legal challenges in its early trials.) In the view of BWCC officials, far more difficult challenges have come from Republika Srpska leaders who oppose an institution whose very existence represents an enhancement of central authority and which could credibly prosecute war crimes. 806 If ICTY requirements for the transfer of cases have at times complicated early BWCC trials, the Tribunal has also been a helpful resource in resolving many of the BWCC’s early challenges. According to staff in the OSCE Mission to Bosnia, ICTY jurisprudence has provided valuable guidance to the BWCC in its resolution of thorny legal issues, including some that may have arisen in part out of the BWCC’s desire to comply with standards emanating from The Hague. The OSCE Bosnia mission cites an example relating to a problem that arose early in the chamber’s life: The BWCC was widely criticized for going too far in its efforts to protect victimwitnesses in two early cases involving allegations of systematic rape, excluding the public from almost the entire trial proceedings in the cases of Radovan Stanković and Nedo Samardžić. 807 Since then, the chamber has been more judicious in its use of closed sessions. While widespread criticism of the closed trials was doubtless a key factor, the OSCE Mission to Bosnia believes that the standards for witness protection developed by the ICTY, along with public trial standards developed in the case law of the European Court of Human Rights, have provided importance guidance to the BWCC as it has adjusted its approach to witness protection. 808 b. Transfer of evidence Another byproduct of Rule 11 bis was that the transfer of evidence that accompanied transferred indictments provided the fledgling SDWC a helpful boost in its early years, enabling it to go to trial without having to undertake the same level of extensive investigation already done by the ICTY. In fact, the SDWC’s first prosecution of an 11 bis case was “based only on Hague evidence,” according to the first chief prosecutor of BiH, Marinko Jurčević. 809 Yet the process of transferring evidence was hardly seamless. Two suspects were transferred to the state court in Bosnia before the evidence supporting their indictments arrived there 810 Branko Perić, then president of Bosnia’s High Judicial and Prosecutorial Council (HJPC), dryly recalled the dilemma facing state court prosecutors: “We have an indicted guy 120 IMPACT ON DOMESTIC WAR CRIMES PROSECUTIONS
ut the documentation is still in their archives. It was senseless [ for the SDWC] to charge him” 811 until supporting evidence arrived from The Hague. According to officials in the SDWC, however, this happened “only once or twice.” 812 Until amended to correct the problem, the Law on the Transfer of Cases imposed another challenge: ICTY documents had to be transferred to Bosnia in hard copy. In the “relatively small case of [Radovan] Stanković,” former ICTY Prosecutor Carla Del Ponte recalled, her staff had to print, authenticate and transfer some 14,000 pages of documents. 813 Processing these documents placed enormous burdens on the receiving end too. 814 This burden was alleviated in July 2006, when the BiH Parliament amended the Law on the Transfer of Cases to allow ICTY documents to be transferred electronically. 815 Other problems were harder to fix. <strong>Be</strong>cause OTP investigations were undertaken with the expectation that cases would be tried in The Hague, ICTY investigators and prosecutors did not prepare files in the local languages of the former Yugoslavia. One of the national prosecutors who worked on an 11 bis case, then SDWC chief David Schwendiman, recalled that he “had terrible trouble because most of the information was in English.” 816 After all, he noted, “No one gave any consideration to the fact that [the Bosnian State Court’s] language is Bosnian.” 817 During interviews in June-July 2006, some former and current members of the SDWC staff described other “teething problems” in their relationship with the ICTY. One of the Bosnian prosecutors told us that, while the ICTY had never failed to fulfill her requests for information, key items were sometimes delivered “in a sea of documents,” many not admissible or useful. 818 In a subsequent interview, SDWC officials recalled that during the early operation of the department, the ICTY prosecutors “didn’t know what we needed, so they gave us everything.” 819 Other staff members described early problems with database formats and technical access to documents. Although the ICTY provided the SDWC access to its evidence disclosure suite—an invaluable resource to the department’s work—the SDWC had not yet received an ICTY index that would facilitate searches for handwritten documents in the database when we interviewed SDWC staff in the summer of 2006. 820 Despite these and other challenges, those interviewed in 2006 gave the ICTY generally high marks for the support it provided even during the “teething” period, saying Tribunal prosecutors had done the best possible in light of the challenges they described. 821 Interviewed three years later, when the SDWC had largely completed first instance trials of 11 bis cases, 822 local prosecutors had high praise for the contributions made by Hague prosecutors. Reflecting on his office’s relationship with the ICTY, Chief Prosecutor of the State Court Milorad Barašin told us: “It’s indisputable that the Hague Tribunal gave us major support in setting up this institution and getting cases going.” 823 Barašin characterized cooperation with the Hague Tribunal as “great,” adding: And really, whatever we asked in accordance with [the law] we have received. Above all, I have to compliment them on their efficiency. Always they have been available, espe- THAT SOMEONE GUILTY BE PUNISHED 121
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That Someone Guilty Be Punished The
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That Someone Guilty Be Punished The
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Table of Contents Acknowledgments 7
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Acknowledgments Diane Orentlicher,
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Methodology This report draws upon
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I. Introduction On May 25, 1993, th
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Victims’ Justice The Security Cou
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in the . Srebrenica genocide. Many
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Journalist Nidžara Ahmetašević r
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survive “ethnic cleansing.” Muh
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ings [of Bosnia’s judiciary were]
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from territories under Serb control
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C. Peace and Justice If the ICTY fa
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groups are approximately the same s
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F. Cooperation by Bosnian Authoriti
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Women [who were captured by Serb so
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Tribunal’s expressive function in
Page 38 and 39:
We found this view to be nearly uni
Page 40 and 41:
Branko Todorović, who heads the He
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full establishment of healthy and c
Page 44 and 45:
Sali-Teržić believes that justice
Page 46 and 47:
committed war crimes, a notion that
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J. “Justice Isn’t Just in Legal
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Vehid Šehić, who believes the ICT
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Because our own research did not in
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imposed on two other perpetrators c
Page 56 and 57:
feared it would be reduced to half
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Enumerating victims’ frustrations
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While some of our Bosnian interlocu
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2. Biljana Plavšić On October 2,
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Others interviewed during the same
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executions, the execution in Korić
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D. Significant Verdicts, Other Ruli
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at least 2012; another, Ratko Mladi
Page 72 and 73: could be legally attributed to Serb
Page 74 and 75: Hasečić leads, the Association of
Page 76 and 77: ings … went before any expectatio
Page 78 and 79: enica survivor Kada Hotić describe
Page 80 and 81: they are in the shadow of Karadži
Page 82 and 83: First, individuals who had been for
Page 84 and 85: Kovačević, who was under indictme
Page 86 and 87: says it was “not the major reason
Page 88 and 89: their names are not publicly disclo
Page 91 and 92: V. Truth and Acknowledgment The off
Page 93 and 94: A. Acknowledging and Condemning Atr
Page 95 and 96: We encountered another brand of non
Page 97 and 98: Herzegovina that only serves to cau
Page 99 and 100: 3. Acknowledgement on the part of o
Page 101 and 102: More generally, Bosnians’ percept
Page 103 and 104: is standard procedure for prosecuto
Page 105 and 106: crimes occurred and meet with local
Page 107 and 108: Srd¯an Dizdarević believes that t
Page 109 and 110: VI. Impact on Domestic War Crimes P
Page 111 and 112: But if his words seemed to invite s
Page 113 and 114: Rules of the Road In the aftermath
Page 115 and 116: Responding to a question about the
Page 117 and 118: In examining the results and prospe
Page 119 and 120: the ICTY’s strategy for completin
Page 121: a. Rule 11 bis cases While Rule 11
Page 125 and 126: December 2006, Vaso Marinković, th
Page 127 and 128: tional judges and prosecutors are n
Page 129 and 130: The ICTY prosecuted just one person
Page 131 and 132: In recent years, state authorities
Page 133 and 134: in the late 1990s, as it finally be
Page 135: oning with the dark pages of its re
Page 138 and 139: 9. Interview with Fadil Budnjo, pre
Page 140 and 141: 38. As we note in Chapter VI, then
Page 142 and 143: 58. Richard J. Goldstone, For Human
Page 144 and 145: 84. In 1997, the Peace Implementati
Page 146 and 147: the Security Council, S/2005/781, D
Page 148 and 149: 135. Interview with Mirsad Duratovi
Page 150 and 151: 160. The ICTY prosecutor issued the
Page 152 and 153: 2009; Patrice C. McMahon and Jon We
Page 154 and 155: 221. An example of such an individu
Page 156 and 157: izručenje” (“Most RS Citizens
Page 158 and 159: 267. In November 2001, Dragan Kolun
Page 160 and 161: Families of Missing, Forcibly Detai
Page 162 and 163: vict’s sentence, including “the
Page 164 and 165: 348. See Marlise Simons, “Crossin
Page 166 and 167: 379. See Judith Armatta, “Srebren
Page 168 and 169: 2001 and was based on U.S. federal
Page 170 and 171: 426. Interview with Kada Hotić, vi
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467. The average length of trials c
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495. Gideon Boas and Timothy L.H. M
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estored to them. The early return o
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561. Murselović recalled that at t
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other charges. See Marlise Simons,
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of the Convention on the Prevention
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admit to the existence of war crimi
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681. “Controversial group in Sreb
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and disruption of war and immediate
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Herzegovina, 46 Colum J. Transnat
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729. International Crisis Group, Wa
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Change, Analysts Say,” New York T
Page 196 and 197:
tation of the Peace Agreement to th
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Republika Srpska (31.9%). See South
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798. E-mail communication with Pipi
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822. As of July 2009, all but one o
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as “horrible,” while noting tha
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Jails Overflow,” BIRN’s Justice
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sarily devoted mainly to prosecutin
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Open Society Justice Initiative The
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When the United Nations Security Co
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