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1. Impetus for change Although the ICTY had from the outset been pressed to produce results, 741 this intensified several years into its work, when the United Nations expected to see more in the way of tangible results. In a 1999 study commissioned by the UN General Assembly, a group of experts noted that “[m]ajor concerns” had been voiced by a range of actors about “the slowness of the pace of proceedings” before the ICTY and its sister court, the International Criminal Tribunal for Rwanda (ICTR), as well as about the associated costs. The experts asked, “more pointedly … why, after almost seven years and expenditures totaling $400 million, only 15 ICTY and ICTR trials have been completed.” 742 While the experts’ recommendations focused on ways the two tribunals could streamline procedures, their report served to catalyze planning of a different sort in The Hague: It provided “a little nudge” to the ICTY judges to begin “thinking ahead towards formulating a completion or exit strategy.” 743 Anticipating that the Security Council would soon press them to wind up the ICTY’s work, the Tribunal’s judges seized the initiative to shape the Hague Tribunal’s completion strategy. Transferring cases not yet tried in The Hague to domestic courts—a subject addressed only briefly in the experts’ study744 —became a key component of the completion strategy that emerged from the ICTY and which was later adopted by the UN Security Council. 745 More particularly, transferring cases of comparatively low-level suspects746 would free up human resources in The Hague and thereby enable the Tribunal to focus on high-level suspects—the centerpiece of what became the ICTY’s completion strategy. 747 There were, to be sure, other reasons for transferring some of its caseload to local courts. In an address to the Security Council on November 27, 2000, then ICTY President Claude Jorda introduced the idea of “relocating” some ICTY cases to domestic courts by noting the potential implications of recent political changes in the former Yugoslavia: 748 The political upheavals recently witnessed in the Balkans have gradually changed the perception of the International Tribunal held by the States from the region. However, must these upheavals not also lead us to change our own view as to the ability of these States to try some of the war criminals in their territory? From this perspective, must we not, for example, further promote the new national reconciliation processes the Balkan States are setting up, such as the truth and reconciliation commissions? 749 Even so, ICTY officials appeared to be motivated more by the Tribunal’s need to complete its core work than by their secondary desire to foster greater participation by local courts in the project of accountability for wartime atrocities. This came across in Judge Jorda’s November 2000 address to the UN Security Council as well as in his subsequent remarks to the Council. Describing recent discussions among judges of the ICTY and ICTR and then UN Legal Advisor Hans Correll, Judge Jorda made the case for transferring some cases to Balkan courts: 114 IMPACT ON DOMESTIC WAR CRIMES PROSECUTIONS
In examining the results and prospects of their mission after eight years’ activity, [the judges] first discussed whether … the International Tribunal should not focus more on prosecuting those crimes constituting the most serious breaches of international public law and order, that is mostly, the crimes committed by the high-ranking military and political officials. After all, it is those crimes which principally jeopardise international peace and security. … The cases of lesser importance for the Tribunal could, under certain conditions, be “relocated”, that is, tried by the courts of the States created out of the former Yugoslavia. This solution would have the merit of considerably lightening the International Tribunal’s workload, thereby allowing it to complete its mission at an even earlier juncture. Moreover, it would make the trial of the cases referred before the national courts more transparent to the local population and so make a more effective contribution to reconciling the peoples of the Balkans. 750 2. Joint planning for the future War Crimes Chamber The ICTY would not, however, be in a position to transfer cases to the former Yugoslavia unless the judges were satisfied that transferred cases would be fairly tried. As then ICTY President Claude Jorda explained to the Security Council, the “[m]ost important” condition for transferring cases to national courts was their ability “fully to conform to internationally recognised standards of human rights and due process in the trials of referred persons.” 751 Strongly preferring to transfer cases involving crimes committed in Bosnia—the overwhelming majority of its docket—to Bosnian courts, 752 senior ICTY officials nonetheless believed that its judiciary “display[ed] shortcomings too great for it to constitute a sufficiently solid judicial foundation to try case referred by the Tribunal.” 753 Thus they intensified their efforts to ensure that the Bosnian judiciary would be capable of receiving transferred cases. 754 A solution was found when the Tribunal’s efforts linked up with a broader judicial reform drive already underway. The Office of the High Representative (OHR) had recently initiated a comprehensive judicial reform effort in Bosnia. 755 While the ICTY’s goal was to “identify a trustworthy domestic court” to which it could transfer war crimes cases, 756 the OHR was engaged in broader efforts aimed at streamlining and modernizing Bosnia’s judiciary; assuring judicial and prosecutorial independence, integrity, and competence; and ensuring an appropriate ethnic balance among judges. 757 While the ICTY naturally focused on war crimes prosecutions, the key preoccupation of the OHR was the development of judicial institutions that could tackle organized crime—a pervasive and daunting challenge in Bosnia even today. 758 In due course, the two institutions’ interests converged and a consensus plan emerged. 759 Crucially for the ICTY, the broader reforms instituted by the OHR included the establishment of a new Court of Bosnia and Herzegovina (BiH), as well as imposition by the High Repre- THAT SOMEONE GUILTY BE PUNISHED 115
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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
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We found this view to be nearly uni
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Branko Todorović, who heads the He
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full establishment of healthy and c
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Sali-Teržić believes that justice
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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
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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
Page 66 and 67: executions, the execution in Korić
Page 68 and 69: D. Significant Verdicts, Other Ruli
Page 70 and 71: 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: Responding to a question about the
Page 119 and 120: the ICTY’s strategy for completin
Page 121 and 122: a. Rule 11 bis cases While Rule 11
Page 123 and 124: ut the documentation is still in th
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
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379. See Judith Armatta, “Srebren
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2001 and was based on U.S. federal
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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
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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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