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Families of Missing, Forcibly Detained and Murdered Bosniaks of Bosnia and Herzegovina, Brčko, July 22, 2009. 292. Prosecutor v. Tihomir Blaškić, Case No.: IT-95-14-A, Appeal Judgment (July 29, 2004). 293. Interview with Sadik Trako, president of Association of Victims and Missing Persons in Lašva Valley, Vitez, Dec. 6, 2006. 294. Interview with Jasna Bakšić Muftić, professor, Faculty of Law, University of Sarajevo, Sarajevo, Nov. 30, 2006. 295. Interview with Ljubiša Simović, president, Association of Displaced and Refugees in Republika Srpska, Foča, July 20, 2009. 296. Interview with Josip Davidović, president, Association of Families of Fallen Soldiers and Missing and Detained Persons, Foča, July 20, 2009. 297. Prosecutor v. Naser Orić, Case No. IT-03-68-A, Appeal Judgment (July 3, 2008). As the Justice Initiative noted in its 2008 report on the impact of the ICTY in Serbia, the Orić case has caused considerable consternation in Serbia. See Diane F. Orentlicher, Shrinking the Space for Denial: The ICTY’s Impact in Serbia, p. 82 (Open Society Justice Initiative, 2008). 298. Prosecutor v. Naser Orić, Case No. IT-03-68-T, Trial Judgment (June 30, 2006). 299. Interview with Branko Todorović, president, Helsinki Committee for Human Rights in Republika Srpska, Bijeljina, Dec. 5, 2006. 300. Interview with Senad Pećanin, editor, Dani, Sarajevo, Dec. 6, 2006. 301. Interview with Fabijan Barać, president, Association for Tracking of Killed and Missing Croats of Central Bosnia and Herzegovina, Lašva Valley, Dec. 7, 2006. Barać appeared to have in mind the sentences imposed on Enver Hadžihasanović and Amir Kubura for crimes committed principally against Bosnian Croats, and also against Bosnian Serbs, in central Bosnia. He mentioned Kubura’s sentence of two and one-half years in prison, which an ICTY Trial Chamber had imposed earlier in the year; Kubura’s sentence was subsequently reduced to two years. Hadžihasanović had been sentenced to five years in prison; his sentence was later reduced on appeal to three and onehalf years in prison. Barać contrasted the two and one-half year sentence imposed on Kubura with the 25-year sentence imposed on Bosnian Croat commander Dario Kordić for crimes committed against Muslims in central Bosnia. 302. Interview with Srećko Mišković, administrative secretary, War Veterans of Travnik, Lašva Valley, Dec. 7, 2006. Mišković was apparently referring to the sentences imposed on Enver Hadžihasanović and Amir Kubura earlier that year. See previous footnote. 303. This figure is derived in part by treating a sentence of life imprisonment as 60 years’ imprisonment. 304. These figures are based on analysis by Kimi Takakuwa Johnson, a law student at American University. 305. James Meernik and Kimi Lynn King, The effectiveness of international law and the ICTY—preliminary results of an empirical study, 1 Int’l Crim. L. Rev. 343, 366 (2001) [hereafter Effectiveness of the ICTY]. 306. The study found that in general crimes against humanity convictions were sentenced more harshly than war crimes convictions, see id., p. 364; at the time of this study, no one had yet 158 NOTES
een convicted of genocide. The ICTY Appeals Chamber itself has declined to rank crimes against humanity as a more serious crime than war crimes. See Prosecutor v. Duško Tadić, Case No.: IT-94- 1-A and IT-94-1-Abis, Judgment in Sentencing Appeals (Jan 26, 2000), 69; see also Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Appeal Judgment (July 21, 2000), 247. 307. The study authors wrote that “[t]he ‘Level of Responsibility’ exercised by the guilty has a profound impact on sentencing by our statistical analysis.” Meernik and King, Effectiveness of the ICTY, supra, p. 365. 308. Interview with Sevima Sali-Terzić, senior legal advisor, BiH Constitutional Court, Sarajevo, Nov. 30, 2006. 309. Interview with Hatidža Mehmedović, Association of Srebrenica Mothers, Potočari, July 21, 2009. 310. Interview with Dobrila Govedarica, executive director, Open Society Fund BiH, Sarajevo, Nov. 29, 2006. 311. Interview with Mirsad Tokača, president, Research and Documentation Center Sarajevo, Sarajevo, Dec. 6, 2006. Tokača apparently was referring to Milomir Stakić, who was sentenced to 40 years in prison for crimes committed in Prijedor, which is located in the northwest area of Bosnian known as the Bosanska Krajina. Because both of these defendants are ethnic Serbs, there does not appear to be grounds for alleging that this sentencing disparity reflects ethnic bias. 312. Mark A. Drumbl, Atrocity, Punishment, and International Law 59 (Cambridge Univ. Press 2007). 313. Jennifer J. Clark, Zero to Life: Sentencing Appeals at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 96 Geo. L.J. 1685, 1691 (2009); Judith Armatta, “The Need for Sentencing Standards,” Coalition for International Justice, Feb. 28, 2003. See generally Olaoluwa Olusanya, Sentencing War Crimes and Crimes against Humanity under the International Criminal Tribunal for the Former Yugoslavia (Europa Law Publishing 2005). 314. Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Appeal Judgment, 756 (Feb. 20, 2001). See also Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Appeal Judgment, 96 (July 5, 2001). 315. Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Appeal Judgment, 715 (Feb. 20, 2001); see also Jennifer J. Clark, Zero to Life: Sentencing Appeals at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 96 Geo. L.J. 1685, 1697-98 (2009). 316. See Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Appeal Judgment, 717 (Feb. 20, 2001) (noting that Trial Chambers exercise considerable discretion in sentencing, the Appeals Chamber explained: “This is largely because of the overriding obligation to individualise a penalty to fit the individual circumstances of the accused and the gravity of the crime”); Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Appeal Judgment, 680 (July 29, 2004) (“The Appeals Chamber has emphasised in previous judgements that sentencing is a discretionary decision and that it is inappropriate to set down a definitive list of sentencing guidelines. The sentence must always be decided according to the facts of each particular case and the individual guilt of the perpetrator.”) 317. Mark A. Drumbl, Atrocity, Punishment, and International Law 59 (Cambridge Univ. Press 2007). See also id. at 66–68. 318. Pursuant to Rule 125 of the ICTY’s Rules of Procedure and Evidence, the ICTY president is to take into account several factors when determining whether to approve commutation of a con- THAT SOMEONE GUILTY BE PUNISHED 159
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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
Page 30 and 31:
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
Page 42 and 43:
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
Page 54 and 55:
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
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could be legally attributed to Serb
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Hasečić leads, the Association of
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ings … went before any expectatio
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enica survivor Kada Hotić describe
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they are in the shadow of Karadži
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First, individuals who had been for
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Kovačević, who was under indictme
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says it was “not the major reason
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their names are not publicly disclo
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V. Truth and Acknowledgment The off
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A. Acknowledging and Condemning Atr
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We encountered another brand of non
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Herzegovina that only serves to cau
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3. Acknowledgement on the part of o
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More generally, Bosnians’ percept
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is standard procedure for prosecuto
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crimes occurred and meet with local
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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 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 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
Page 172 and 173: 467. The average length of trials c
Page 174 and 175: 495. Gideon Boas and Timothy L.H. M
Page 176 and 177: estored to them. The early return o
Page 178 and 179: 561. Murselović recalled that at t
Page 180 and 181: other charges. See Marlise Simons,
Page 182 and 183: of the Convention on the Prevention
Page 184 and 185: admit to the existence of war crimi
Page 186 and 187: 681. “Controversial group in Sreb
Page 188 and 189: and disruption of war and immediate
Page 190 and 191: Herzegovina, 46 Colum J. Transnat
Page 192 and 193: 729. International Crisis Group, Wa
Page 194 and 195: Change, Analysts Say,” New York T
Page 196 and 197: tation of the Peace Agreement to th
Page 198 and 199: Republika Srpska (31.9%). See South
Page 200 and 201: 798. E-mail communication with Pipi
Page 202 and 203: 822. As of July 2009, all but one o
Page 204 and 205: as “horrible,” while noting tha
Page 206 and 207: Jails Overflow,” BIRN’s Justice
Page 208 and 209: sarily devoted mainly to prosecutin
Page 211 and 212:
Open Society Justice Initiative The
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When the United Nations Security Co
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