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and disruption of war and immediate post-war, but also emerged from a communist culture in which there was no separation of powers and no tradition of judicial independence. Furthermore, judges and prosecutors continue to lack the capacity to deal with complex cases….”). 703. Id., p. 5. 704. Donlon, Rule of Law, supra, p. 267. 705. See Chris Hedges, “Muslim Detention of Bosnian Serbs Threatens Truce,” New York Times, Feb. 7, 1996. The Bosnian government arrested several other Bosnian Serbs during the same period, but the arrest of these two men proved especially controversial. 706. Richard Holbrooke, To End A War, p. 332 (Random House, 1998). 707. Organization for Security and Cooperation in Europe, War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina: Progress and Obstacles, p. 5 (March 2005). 708. Id. See also Stacey Sullivan, “Bosnian Serb Leaders Halt Contacts with Government; Arrest of 8 Military Men Threatens Fragile Peace,” Washington Post, Feb. 7, 1996. 709. Chris Hedges, “Muslim Detention of Bosnian Serbs Threatens Truce,” New York Times, Feb. 7, 1996. 710. See Jack Kelley, “Bosnia arrests 2 top Serbs, seeks charges,” USA Today, Feb. 6, 1996. 711. See ICTY Press Release, “Tribunal’s Prosecutor requests Bosnia to provisionally arrest General Ðjukić and Colonol Krsmanović,” CC/PIO/031-E, at http://www.icty.org/sid/7419. Contemporaneous press reporting suggested that Goldstone’s intervention helped dispel the crisis provoked by the arrests. See, for example, Stacey Sullivan, “Bosnian Serb Leaders Halt Contacts with Government; Arrest of 8 Military Men Threatens Fragile Peace,” Washington Post, Feb. 7, 1996 (reporting that the commander of NATO forces in Bosnia, Adm. Leighton W. Smith, Jr., had “released a statement saying he was reassured that the Bosnian government would abide by the decision of the war crimes tribunal”). So, too, does a more recent account: see Donlon, Rule of Law, supra, p. 263. Richard Holbrooke, the lead negotiator at Dayton, had a different view of the ICTY’s involvement, which was illustrative of the international community’s general approach during the Tribunal’s early years, often downgrading the pursuit of justice in the belief that this could destabilize a fragile peace. In his memoir of the Dayton peace negotiations and their early implementation, Holbrooke asserted that, since the two Serbian officers had been apprehended in a manner that violated the Dayton accord, “we would normally have insisted that the Muslims release them immediately.” Holbrooke continued: “But Justice Goldstone complicated matters considerably; from the International War Crimes Tribunal in The Hague, he issued a warrant for the two men—even though they had not been indicted.” Richard Holbrooke, To End a War, p. 332 (Random House, 1998). Although General Ðjukić was soon indicted by the ICTY, he was provisionally released due to ill health in late April 1996 and the proceedings against him were terminated following his death in May 1996. See ICTY Press Release, “Ðjukić case terminated by the death of the accused,” CC/PIO/082-E, June 3, 1996, at http://www.icty.org/sid/7346. The ICTY released the other potential suspect, Col. Krsmanović, without charge in late March 1996. See ICTY Press Release, “Colonel Krsmanović remanded back to Bosnia and Herzegovina,” CC/PIO/058, Apr. 3, 1996, at http://www.un.org/icty/pressreal/p058-e.htm. 712. Holbrooke, supra, at 334. Like other commitments set forth in the Rome Agreement, the Rules of the Road undertaking was understood primarily as an “action to strengthen and advance the peace process.” Agreed Measures, preamble (Feb. 18, 1996), at http://www.nato.int/IFOR/rome/rome2. htm. 186 NOTES
713. The Rome Agreement signed by the three Balkan presidents provided in part: Persons, other than those already indicted by the International Tribunal, may be arrested and detained for serious violations of international humanitarian law only pursuant to a previously issued order, warrant, or indictment that has been reviewed and deemed consistent with international legal standards by the International Tribunal. Procedures will be developed for expeditious decision by the Tribunal and will be effective immediately upon such action. Agreed Measures, 5 (Feb. 18, 1996), at http://www.nato.int/IFOR/rome/rome2.htm. 714. ICTY Web site, at http://www.icty.org/sid/96. Other sources, including some cited below, use slightly different figures than those provided on the Tribunal’s Web site. 715. David Tolbert and Aleksandar Kontić, The International Criminal Tribunal for the former Yugoslavia: Transitional Justice, the Transfer of Cases to National Courts, and Lessons for the ICC, in Carsten Stahn and Goren Sluiter (eds.), The Emerging Practice of the International Criminal Court, p. 142 (2008) (hereinafter Tolbert and Kontic, Transitional Justice). 716. Interview with Damir Arnault, advisor for legal and constitutional affairs, Cabinet of Dr. Haris Silajžić, Sarajevo, July 16, 2009. 717. As two former OTP attorneys recalled, the office’s review role under the Rules of the Road agreement “was a limited one,” aimed solely at determining whether the evidence submitted by local authorities “was sufficient under international standards to justify the arrest or indictment of a suspect or continued detention of a prisoner.” Id. 718. When the OTP reviewed a file submitted by Bosnian prosecutors, it assigned one of seven possible designations. A marking of “A” indicated that the file contained sufficient evidence to establish reasonable grounds for suspicion that a person committed a war crime, while a marking of “B” indicated the opposite. See id. A “C” marking reflected the OTP’s inability to make a judgment based on the evidence in the file. See id., pp. 142-43. For a brief description of other notations, see id., p. 143 n.32. 719. Id., p. 145. The Transitional Justice Guidebook for Bosnia and Herzegovina, produced by the United Nations Development Programme, credits the Rules of the Road program with “raising the professional level of BiH’s judicial institutions.” Executive Summary, p. 17. (Only the Executive Summary is available in English.) 720. The Rome Agreement placed a time-consuming and unfunded responsibility on the OTP beyond the core mandate set forth in its statute. Tolbert and Kontić later recalled the immediate impact of the Agreement on the OTP: [T]here were no resources or funding provided for the project in the ICTY’s budget, and the extra-budgetary funds had to be raised to support the project. Moreover, given that the OTP’s staff were fully focused on investigations, trials, and appeals, additional external legal specialists were required to be identified and recruited to handle the demands of the project. There was also a heavy demand for translation resources to support the effort of these specialists, except to the extent lawyers with the requisite language skills could be identified. Id., p. 143. 721. William W. Burke-White, The Domestic Influence of International Criminal Trials: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia and THAT SOMEONE GUILTY BE PUNISHED 187
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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
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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
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VI. Impact on Domestic War Crimes P
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But if his words seemed to invite s
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Rules of the Road In the aftermath
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Responding to a question about the
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In examining the results and prospe
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the ICTY’s strategy for completin
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a. Rule 11 bis cases While Rule 11
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ut the documentation is still in th
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December 2006, Vaso Marinković, th
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tional judges and prosecutors are n
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The ICTY prosecuted just one person
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In recent years, state authorities
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in the late 1990s, as it finally be
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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
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 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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