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tation of the Peace Agreement to the Secretary-General of the United Nations, 28 (May 14, 2002), at http://www.ohr.int/print/?content_id=8069. Their analysis and recommendations are discussed in depth in Bohlander, supra, at 66–85. Then ICTY President Claude Jorda presented the broad outlines of this proposal to the UN Security Council on July 23, 2002. See Address by His Excellency, Judge Claude Jorda, President of the International Criminal Tribunal for the former Yugoslavia, to the United Nations Security Council, July 23 2002, ICTY Press Release JDH/P.I.S./690-e (July 26, 2002), at http://www.icty.org/sid/8080. Following his remarks, the Security Council “endorse[d] the report’s broad strategy for the transfer of cases involving intermediary and lower-level accused to competent national jurisdictions as likely to be in practice the best way of allowing the ICTY to achieve its current objective of completing all trial activities at first instance by 2008.” SC Press Release 7461, at http://www.un.org/News/Press/docs/2002/sc7461.doc.htm. In his memoir, former High Representative Paddy Ashdown recalled that on November 19, 2002, then ICTY Prosecutor Carla Del Ponte “visited Sarajevo and we took the historic decision (private for the moment) that we would take on the task of establishing a domestic war crimes chamber in Bosnia. This $25 million project would give Bosnia a mini-Hague court and make it the first country in the Balkans to be able to try its own war criminals in its own specialized court, on its own territory.” Paddy Ashdown, Swords and Plowshares: Bringing Peace to the 21st Century, p. 256. 763. The OHR’s reforms “essentially moved the country away from its traditional civil law model to one closer to the adversarial system.” Tolbert and Kontić, Transitional Justice, supra, p. 147. By equal measure, accommodating the ICTY’s criteria for a trustworthy local partner placed further demands on a judiciary that was already facing the daunting challenges presented by the OHR’s radical judicial restructuring plan. Although generally complimentary of the ICTY’s contributions to the war crimes section of the Court of BiH, Branko Perić, then president of Bosnia’s High Judicial and Prosecutorial Council (HJPC), noted that the chamber faced some challenges because “the Hague [Tribunal] was trying to solve its own problem instead of Bosnia and Herzegovina trying to solve its problems.” Interview with Branko Perić, then president, HJPC, Sarajevo, Dec. 4, 2006. 764. Donlon, Rule of Law, supra, p. 277. 765. Interview with Mechtild Lauth, then senior legal counsel, The Registry, War Crimes and Organized Crime, Court of BiH, Sarajevo, June 12, 2007; OSCE, Progress and Obstacles, p. 10; see also Tolbert and Kontić, Transitional Justice, supra, at 146. Although the PIC had endorsed the OHR’s comprehensive judicial reform plan in July 2002, the war crimes chamber was not yet included in this plan. See Donlon, Rule of Law, p. 274. 766. Interview with Mechtild Lauth, Sarajevo, June 12, 2007. According to then State Prosecutor Marinko Jurčević, the key law for transferring cases from the ICTY to Bosnia’s War Crimes Chamber “was not passed overnight but prior to that the working groups worked day and night” to lay the groundwork for this law. Interview with Marinko Jurčević, Sarajevo, Dec. 4, 2006. 767. See Tolbert and Kontić, Transitional Justice. supra, pp. 146–47. According to various individuals involved in this process, the OHR “did much of the work” in this process. 768. Donlon, Rule of Law, supra, p. 277. ICTY staff involved in the planning process were also keen to ensure that the joint effort led to sustainable judicial capacity-building. 769. As noted earlier, the chamber is officially known as Section I of the Court of BiH. 770. See id. 194 NOTES
771. See id., p. 280. Other elements came into focus later. For example, following a major donors’ conference in 2004, a decision was made to create a special registrar’s office to administer the BWCC’s international funds. 772. Id., pp. 280–81. As noted below, the role of international prosecutors and judges was extended in December 2009 for an additional three years. See infra, Ch. V, Sec. 5 (Lessons for the Future). 773. SC Res. 1503, UN Doc. S/RES/1503, preambular 7 (Aug. 28, 2003). 774. Id., preambular 11. 775. Id., 5. See also SC Res. 1534, UN Doc. S/RES/1534, 4, 9 and 10 (Mar. 24, 2004). 776. See Donlon, Rule of Law, p. 278; Interview with Mechtild Lauth, then senior legal counsel, the Registry, War Crimes and Organized Crime, Court of BiH, Sarajevo, June 12, 2007. The SDWC was actually created in 2004. David Schwendiman, “Background and Introduction,” p. 1 (July 2009) (on file with author). “Background and Introduction” is an informal document which the SDWC distributes to counterparts from other countries, and other individuals and organizations with whom the department interacts, as a way of providing considered answers to various questions regarding the work of the SDWC. 777. Interview with Mechtild Lauth, supra. According to Lauth, although the High Representative had the legal power to impose the law, he preferred that it be adopted by the national Parliament. Id. 778. ICTY Rules of Procedure and Evidence, Rule 11bis (C), as amended Sept. 30, 2002; July 28, 2004; and Feb. 11, 2005 (internal citation omitted). 779. Id., Rule 11bis (B), as amended Sept. 30, 2002; July 28, 2004; Feb. 11, 2005. 780. ICTY Rules of Procedure and Evidence, Rule 11bis (D) (ii), as amended Feb. 11, 2005. Issues relating to protection of victims and witnesses are addressed in greater depth in a Memorandum of Understanding between the Office of the Prosecutor of the ICTY and the SDWC of the Prosecutor’s Office of BiH, Sept. 2, 2005. 781. The War Crimes Chamber is one of three sections of the Criminal Division of the State Court of Bosnia and Herzegovina. The second section addresses organized crime, while the third section deals with general crime. 782. See OSCE, Progress and Obstacles, p. 5; Address of the Prosecutor, Carla Del Ponte, “Office of the Prosecutor of the ICTY and War Crimes Chamber of BH Court—Way Forward and Challenges,” BIRN Conference, Sarajevo, Nov. 10, 2005, at http://www.un.org/icty/pressreal/2005/speech/cdpbh-BIRN-wcc-10nov05.htm. The OHR had already taken the position that “sensitive Rules of the Road cases would . . . be dealt with by the [BWCC]” in addition to indicted cases transferred by the ICTY. See Donlon, Rule of Law, p. 277. Although the program ended in 2004, the Croat and Bosniak members of the Bosnian presidency charged that Serbia had breached the Rome Agreement when its War Crimes Prosecutor issued indictments against members of Bosnia’s wartime presidency several years later. See “Sarajevo: Serbia broke Rome Agreement,” RTV B92 News, Mar. 20, 2009. 783. Interviews with Nerma Jelačić, then director of BIRN in BiH, Sarajevo, Dec. 1, 2006; Srdjan Dizdarević, president of the Helsinki Committee for Human Rights in BiH, Sarajevo, Dec. 1, 2006. Only 32 percent of Bosnian citizens who participated in a 2002 survey said that they trusted local courts. This figure was almost identical for citizens residing in the Federation (32.0%) and in THAT SOMEONE GUILTY BE PUNISHED 195
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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
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9. Interview with Fadil Budnjo, pre
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38. As we note in Chapter VI, then
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58. Richard J. Goldstone, For Human
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84. In 1997, the Peace Implementati
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Page 148 and 149: 135. Interview with Mirsad Duratovi
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Page 154 and 155: 221. An example of such an individu
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Page 158 and 159: 267. In November 2001, Dragan Kolun
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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
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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
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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 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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