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vict’s sentence, including “the gravity of the crime or crimes for which the prisoner was convicted [and] the treatment of similarly-situated prisoners.” 319. Decision of the President on the Application for Pardon or commutation of Sentence of Mrs. Biljana Plavšić, Case No. IT-00-39 and 40/1-ES, Sept. 14, 2009, 10. Judge Robinson did not provide any citation to decisions relating to “similarly-situated” defendants. As noted earlier, Plavšić is among the more senior Bosnian Serbs ever convicted by the ICTY. 320. See also Mark B. Harmon and Fergal Gaynor, Ordinary Sentences for Extraordinary Crimes, 5 J. Int’l Crim. Just. 683, 707 n.101 (2007) (noting that “criticisms of ICTY sentences have been particularly sharp in respect of sentences imposed in cases of plea agreements”). 321. Plea agreements are reached through negotiations between a defendant and the ICTY prosecutor, who can agree to drop certain charges or recommend a sentence lower than what she would otherwise seek in exchange for the defendant’s guilty plea. See Mark B. Harmon and Fergal Gaynor, Ordinary Sentences for Extraordinary Crimes, 5 J. Int’l Crim. Just. 683, 705-06 (2007). Trial Chambers are not required to accept the plea agreement, however. See ICTY Web site at http://www.icty.org/ sections/TheCases/GuiltyPleas. 322. Criminal Procedure Code [of Federation of BiH], Official Gazette of Federation of BiH, Nos. 43/98 and 23/99; Criminal Procedure Code [of Republika Srpska], Official Gazette of SFRY, Nos. 26/86, 74/87, 57/89 and 3/90, and Official Gazette of Republika Srpska, Nos. 4/93, 26/93, 14/94, 6/97 and 61/01. 323. Interview with Zdravko Grebo, director, Center for Interdisciplinary Postgraduate Studies, University of Sarajevo, Sarajevo, July 13, 2009. 324. See Marlise Simons, “Plea Deals Being Used to Clear Balkan War Tribunal’s Docket,” New York Times, Nov. 18, 2003. 325. Interview with Hajra Čatić, president, Women of Srebrenica, Tuzla, July 21, 2009. 326. Sanja Kutnjak Ivković and John Hagan, The Politics of Punishment and the Siege of Sarajevo: Toward a Conflict Theory of Perceived International (In)justice, 40 L. and Soc’y R. 369, 396 (2006). The ICTY itself avoids using the phrase “plea bargaining” and instead prefers “plea agreement.” See Marlise Simons, “In a Startling Plea, a Serbian Policeman Confesses to Atrocities,” New York Times, July 27, 2003. 327. In addition to examples from ICTY sentencing judgments cited below, see Mark B. Harmon and Fergal Gaynor, Ordinary Sentences for Extraordinary Crimes, 5 J. Int’l Crim. Just. 683, 707 n.101 (2007). 328. See Nancy Amoury Combs, Copping a Plea to Genocide: The Plea Bargaining of International Crimes, 151 U. Pa. L. Rev. 1, 90 (2002); Mark B. Harmon and Fergal Gaynor, Ordinary Sentences for Extraordinary Crimes, 5 J. Int’l Crim. Just. 683, 703 (2007). 329. Marlise Simons, “Plea Deals Being Used to Clear Balkan War Tribunal’s Docket,” New York Times, Nov. 18, 2003. 330. Until then, ICTY investigators were not even aware of this massacre site. Alex Whiting, In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered, 50 Harv. Int’l L.J. 323, 336 (2009). 331. See Jane Perlez, “Serb Leader Expected to Turn Over Key War Crimes Suspects,” New York Times, Mar. 13, 1996. 160 NOTES
332. See Monika Nalepa, “Why Do They Return? Evaluating the Impact of ICTY Justice on Reconciliation,” pp. 17–18 n.20 (Jan. 26, 2007). 333. See Excerpt of Guilty Plea Statement of Dražen Erdemović at http://www.icty.org/sid/212. Alongside his remorse, Erdemović made a statement that would later provide a basis for resentencing: “Your Honour, I had to do this. If I had refused, I would have been killed together with the victims. When I refused, they told me: ‘If you’re sorry for them, stand up, line up with them and we will kill you too.’ I am not sorry for myself but for my family, my wife and son who then had nine months, and I could not refuse because then they would have killed me.” Prosecutor v. Dražen Erdemović, Case No. IT-96-22-T, Sentencing Judgment, 10 (Nov. 29, 1996). 334. Prosecutor v. Dražen Erdemović, Case No. IT-96-22-T, Sentencing Judgment, 55 (Nov. 29, 1996). 335. Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgment (Oct. 7, 1997). 336. This time, Erdemović pleaded guilty to a war crimes charge; the ICTY prosecutor withdrew the crime against humanity charge. See Prosecutor v. Dražen Erdemović, Case No. IT-96-22-Tbis, Sentencing Judgment, 8 (Mar. 5, 1998). 337. Id., 21. 338. Interview with Kada Hotić, vice president, Mothers of Srebrenica and Žepa Enclave, Sarajevo, July 24, 2009. 339. Interview with Hatidža Mehmedović, Mejra Ðogaz, and Hanifa Ðogaz, Association of Srebrenica Mothers, Potočari, July 21, 2009. When he pleaded guilty, Erdemović said that in one instance, when he was able to resist orders to execute Muslim men without being killed himself, he did in fact refuse those orders. See Prosecutor v. Dražen Erdemović, Case No. IT-96-22-T, Sentencing Judgment, 81 (Nov. 29, 1996). 340. Interview with Zdravko Grebo, director, Center for Interdisciplinary Postgraduate Studies, University of Sarajevo, Sarajevo, July 13, 2009. 341. Interview with Mirsad Tokača, director, Research and Documentation Center, Sarajevo, Dec. 6, 2006. 342. Interview with Nidžara Ahmetašević, editor, Balkan Investigative Reporting Network in BiH, Sarajevo, July 13, 2009. 343. Plavšić had surrendered to the ICTY after learning that there was a sealed indictment against her. See Carla Del Ponte in collaboration with Chuck Sudetic, Madam Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity, p. 161 (Other Press, 2009). 344. See Marlise Simons, “Ex-Bosnia Leader Enters Guilty Plea to The Hague,” New York Times, Oct. 3, 2002. 345. Prosecutor v. Biljana Plavšić, Case No. IT-00-39and40/1-S, Sentencing Judgment, 74 (Feb. 27, 2003), quoting Plavšić Written Statement (hereafter Plavšić Sentencing Judgment). 346. Marlise Simons, “Ex-Bosnia Serb Leader Enters Guilty Plea to The Hague,” New York Times, Oct. 3, 2002 (quoting Judith Armatta of the Coalition for International Justice). 347. Humanitarian Law Center, “Acknowledgment, Taking of Responsibility, Remorse—The Way to Reconciliation,” Oct. 3, 2002. THAT SOMEONE GUILTY BE PUNISHED 161
Page 1:
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
Page 9 and 10:
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
Page 36 and 37:
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
Page 48 and 49:
J. “Justice Isn’t Just in Legal
Page 50 and 51:
Vehid Šehić, who believes the ICT
Page 52 and 53:
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
Page 58 and 59:
Enumerating victims’ frustrations
Page 60 and 61:
While some of our Bosnian interlocu
Page 62 and 63:
2. Biljana Plavšić On October 2,
Page 64 and 65:
Others interviewed during the same
Page 66 and 67:
executions, the execution in Korić
Page 68 and 69:
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
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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
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
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is standard procedure for prosecuto
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crimes occurred and meet with local
Page 107 and 108:
Srd¯an Dizdarević believes that t
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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 160 and 161: Families of Missing, Forcibly Detai
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
Page 214:
When the United Nations Security Co
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