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Republika Srpska (31.9%). See South East Europe Public Agenda Survey, January–February 2002, Bosnia and Herzegovina (Federation), p. 19; South East Europe Public Agenda Survey, Republic of Srpska, January-February 2002, p. 17. In contrast, among those residing in the Federation, where a majority of victims of wartime atrocities reside, 50.5 percent reported that they trusted the ICTY. South East Europe Public Agenda Survey, January–February 2002, Bosnia and Herzegovina (Federation), p. 26. For Republika Srpska, the percentage of respondents who said they trusted the ICTY was only 3.6. South East Europe Public Agenda Survey, Republic of Srpska, January–February 2002, p. 24. 784. See “Bosnian Serb war criminal fakes toothache to escape,” Reuters, May 25, 2007, at http:// www.reuters.com/article/latestCrisis/idUSL25390302. Three years after his escape, Stanković remains at large. 785. The most common concern voiced by Bosniak victims is that sentences imposed by the BWCC are too short in relation to the crimes committed, whereas Serbs are likely to say that Serb perpetrators receive harsher sentences. In addition, just as Bosnian citizens are troubled by apparent inconsistencies among sentences imposed by the ICTY, “it is very difficult [ for them] to make sense of disparities in sentences” imposed by the BWCC. Interview with Dubravka Piotrovski, then ABA CEELI, Sarajevo, Nov. 29, 2006. Some fault the BWCC for devoting too much time prosecuting lower level perpetrators, e.g., interview with Emir Suljagić, author, Sarajevo, July 14, 2009. 786. “Public Perceptions of the work of the Court and Prosecutor’s Office of BiH,” Prism Research for the Registry of the Court of BiH and The Registry of the Prosecutor’s Office of BiH, p. 10, July 2008. Although this survey was not limited to perceptions of the BWCC and the SDWC, many of its questions pertained specifically to war crimes prosecutions before the State Court. The study found, moreover, that the most common association of BiH citizens with the words “Office of the Prosecutor of BiH” was “(war) crimes and criminals.” Id., p. 14. 787. Id. As we note below, the Court of BiH has been challenged by Republika Srpska President Milorad Dodik. 788. See Final Report of the International Criminal Law Services (ICLS) Experts on the Sustainable Transition of the Registry and International Donor Support to the Court of Bosnia and Herzegovina and the Prosecutor’s Office of Bosnia and Herzegovina in 2009 (ICLS Report), available at http://www.iclsfoundation.org/wp-content/uploads/2009/05/icls-bih-finalreportwebsitecorrected. pdf. 789. Interview with Mirsad Tokača, director, Research and Documentation Center, Sarajevo, July 24, 2009. 790. Interview with the Human Rights Department (OSCE Mission to Bosnia and Herzegovina), Sarajevo, June 8, 2007. 791. See generally ICTJ, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court (2008); Human Rights Watch, Narrowing the Impunity Gap: Trials before Bosnia’s War Crimes Chamber (Feb. 2007). Concerns highlighted by both ICTJ and HRW in their respective reports include the BWCC’s over-use of closed sessions in some early trials, the need for the prosecutor to develop a strategy for selecting cases, and the need for more effective outreach by the court. As discussed above, a July 2008 survey suggests that the chamber has received more positive reviews among experts who closely follow its work than the Court of BiH has generally received from the Bosnian public. But international experts have raised a range of concerns about 196 NOTES
the Court. See, e.g., Final Report of the International Criminal Law Services (ICLS) Experts on the Sustainable Transition of the Registry and International Donor Support to the Court of Bosnia and Herzegovina and the Prosecutor’s Office of Bosnia and Herzegovina in 2009 (15 Dec. 2008) (ICLS Report), available at http://www.iclsfoundation.org/wp-content/uploads/2009/05/icls-bihfinalreportwebsitecorrected.pdf. 792. Dobrila Govedarica describes the ICTY’s role in the establishment of the BWCC as its “second most important achievement,” its most important being its ruling that genocide was perpetrated in Srebrenica. Interview with Dobrila Govedarica, executive director of the Open Society Fund BiH, Sarajevo, Nov. 30, 2006. ICTY Liaison Office Refik Hožić, who at one point worked with the BWCC, describes the chamber as the “greatest legacy of the Tribunal outside its cases.” Interview with Refik Hodžić, ICTY liaison officer for BiH, Sarajevo, July 13, 2009. 793. David Schwendiman, “Background and Introduction,” p. 14 (July 2009) (on file with author). While this number is small, the ICTY transferred the largest number of Rule 11 bis cases to Bosnia. According to the ICTY’s Web site, “A total of eight cases involving 13 persons indicted by the ICTY have been referred to courts in the former Yugoslavia, mostly to Bosnia and Herzegovina.” ICTY Web site at http://www.icty.org/sections/Outreach/TransferofCases. The ICTY does not contemplate any further 11 bis transfers. See id. The ICTY prosecutor unsuccessfully sought authority to refer a number of other cases to Bosnia and Herzegovina. 794. The Constitution of Bosnia and Herzegovina, included in an annex to the Dayton Peace Agreement, provides that “the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.” General Framework Agreement for Peace in Bosnia and Herzegovina, Annex IV, Article II (2), available at http://www1.umn. edu/humanrts/icty/dayton/daytonannex4.html. The same Annex also confers on the Constitutional Court of BiH jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with the Convention. Id., Art. VI (3)(c). In addition, a Commission for Human Rights exists within the Constitutional Court with a mandate to consider alleged or apparent violations of human rights as provided in the European Convention for the Protection of Human Rights and the Protocols thereto. The Commission is the successor institution to the Human Rights Chamber, a judicial body established under Annex VI of the Dayton Peace Agreement. See Web site of the Human Rights Commission, at www.hrc.ba/ commission/eng/default.htm. 795. Rule 11 bis provides for the prosecutor to send observers to monitor domestic trials arising from transferred indictments. ICTY Rules of Procedure and Evidence, Rule 11 bis (D)(iv), as amended on Sept. 30, 2002. 796. Id., (F)–(G). It is unclear how viable a threat this is in practice. Under pressure to complete the cases already in or heading toward trial, it is difficult to imagine the ICTY actually recalling a case it has transferred to Bosnia. Nonetheless, when we interviewed him in late 2006, then HJPC President Branko Perić said that “judges and prosecutors are well aware of The Hague’s ability to take back cases and they are very motivated to show that they are just as capable of trying cases as the ICTY.” Interview with Branko Perić, then president of the HJPC, Sarajevo, Dec. 4, 2006. 797. See Decision No. 673, Cooperation Between the Organization for Security and Cooperation in Europe and the International Criminal Tribunal for the Former Yugoslavia, PC.DEC/673, May 19, 2005, www.osce.org/documents/pc/2005/05/14531_en.pdf. THAT SOMEONE GUILTY BE PUNISHED 197
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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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the Security Council, S/2005/781, D
Page 148 and 149: 135. Interview with Mirsad Duratovi
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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 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 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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