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C. Peace and Justice If the ICTY faced daunting practical challenges in its early years, political challenges were just as formidable. From the outset of the Tribunal’s work, diplomats working to bring the conflict in Bosnia to a negotiated end feared that the ICTY might impede their efforts. 64 As we explain in Chapter III, one of the principal justifications the Security Council cited in establishing the ICTY was its conviction that the Tribunal would help restore and maintain peace in a region still at war. But from the outset of his work, Chief Prosecutor Richard Goldstone had to address diplomats’ attraction to the idea of offering deals that might include promises of immunity to suspected war criminals in exchange for a peace agreement. 65 After all, for a time the chief negotiator on behalf of Bosnian Serbs was Radovan Karadžić, a man who risked indictment someday—and indeed is now on trial in The Hague—for his leadership role in “ethnic cleansing.” 66 A massacre that would surpass all others in the war brought this issue to a head. For several days in July 1995, Bosnian Serb forces systematically executed more than 7,000 Muslim males who, with their families, had been living in the eastern Bosnian town of Srebrenica. The final operation, 67 which would later be judged a genocide by both the ICTY and the International Court of Justice, began on July 11, 1995. By July 25, 1995, the ICTY had issued an indictment charging wartime Bosnian Serb leaders Radovan Karadžić and Ratko Mladić with genocide and other crimes. This indictment did not include the July 1995 massacre in Srebrenica—the prosecutor had not yet had time to prepare an indictment for this—but it is widely thought that Goldstone rushed out an indictment already in the works to ensure a swift response to Srebrenica. 68 While much of the world welcomed the long-awaited indictment, then UN Secretary-General Boutros Boutros-Ghali later told Goldstone that, had the prosecutor consulted him first, he would have advised against indicting Karadžić “before peace had been brokered in Bosnia.” 69 Although long authorized to use military force to protect Srebrenica and other so-called “safe areas” in Bosnia, NATO had been reluctant to do so. 70 But the Srebrenica massacre, soon followed by another in downtown Sarajevo, finally led NATO to use unprecedented firepower against Bosnian Serb forces in late August 1995. 71 NATO’s intervention, along with the crippling effects of international sanctions against Serbia and a decisive Croatian offensive against Serb forces in the Croatian-Serb war, brought Serb leaders to the negotiating table, now under U.S. mediation. After years of inconclusive negotiations under European and then joint European-United Nations auspices, this time the Serbs were ready to reach an agreement to end the war. Less than four months after the Srebrenica massacres, peace talks led by U.S. negotiator Richard Holbrooke got underway at the Wright Patterson Air Force Base outside Dayton, Ohio. In the lead-up to Dayton, U.S. officials were divided about whether Karadžić and Mladić—now 26 BACKGROUND
ICTY indictees—could participate in peace talks, and at Holbrooke’s insistence the United States determined that it would deal with the Bosnian Serbs principally through Milošević, but the U.S. government did not rule out meeting with the indictees in the region and in fact did so in September 1995. 72 Serbian President Slobodan Milošević, who would later face charges himself, represented the Bosnian Serbs in Dayton. If the indictment of Karadžić had any impact on the peace process, it was inadvertently facilitative: The Bosnian government’s then President Alija Izetbegović would not have attended the peace talks if Karadžić had. 73 But there remained another challenge to the Tribunal, again grounded in a perceived trade-off between justice and peace: There appeared to be a real risk that the Tribunal’s work would be compromised by negotiators willing to offer amnesty as part of a peace package. 74 At the beginning of the Dayton talks, the ICTY sent then U.S. Secretary of State Madeleine Albright a letter asking the United States to include in the peace accords a requirement that indicted war criminals be surrendered to the ICTY. 75 Soon after, Goldstone issued a second set of indictments against Karadžić and Mladić, this time charging them with genocide for their roles in Srebrenica. With these and other high profile indictments again in the headlines, 76 it would have been difficult but not impossible for diplomats to neutralize the indictments in Dayton. Still, the United States would not go as far as the Bosnian delegation hoped; the latter had wanted the Dayton accords to include detailed obligations to arrest ICTY indictees, with a robust mandate for the NATO-led implementation force, known by its acronym “IFOR,” to do so. 77 There were also divisions between lead negotiator Holbrooke, who thought arresting war criminals would be vital to the peace, and the Pentagon, which wanted the NATO force to focus on what it considered core military missions. A compromise was reached: IFOR would be authorized but not required to arrest ICTY suspects. 78 Moreover, parties to the agreement signed on to cooperate fully with the Tribunal, including by arresting those indicted by the ICTY. 79 As we discuss shortly, whether IFOR would exercise its authority was another matter altogether. First, we briefly describe the governing structure that was finalized at Dayton. D. Governance Structure The peace agreement finalized in Dayton and officially signed in Paris in December 1995, formally called the General Framework Agreement for Peace in Bosnia and Herzegovina but more widely known as the Dayton Peace Agreement (DPA), established two largely autonomous entities. Under the DPA, roughly 49 percent of Bosnia’s territory was assigned to the largely self-governing entity Republika Srpska (RS); approximately 51 percent became the Federation of Bosnia and Herzegovina (“Federation”) entity. The Federation is divided into ten cantons: five with a Bosniak majority, three in which Croats are numerically predominant, and two (Central Bosnia Canton and Herzegovina-Neretva Canton) in which the two ethnic THAT SOMEONE GUILTY BE PUNISHED 27
Page 1: That Someone Guilty Be Punished The
Page 5 and 6: That Someone Guilty Be Punished The
Page 7 and 8: Table of Contents Acknowledgments 7
Page 9 and 10: Acknowledgments Diane Orentlicher,
Page 11 and 12: Methodology This report draws upon
Page 13 and 14: I. Introduction On May 25, 1993, th
Page 15 and 16: Victims’ Justice The Security Cou
Page 17 and 18: in the . Srebrenica genocide. Many
Page 19 and 20: Journalist Nidžara Ahmetašević r
Page 21 and 22: survive “ethnic cleansing.” Muh
Page 23: ings [of Bosnia’s judiciary were]
Page 26 and 27: from territories under Serb control
Page 30 and 31: groups are approximately the same s
Page 32 and 33: F. Cooperation by Bosnian Authoriti
Page 34 and 35: 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
Page 70 and 71: 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
Page 76 and 77: ings … went before any expectatio
Page 78 and 79:
enica survivor Kada Hotić describe
Page 80 and 81:
they are in the shadow of Karadži
Page 82 and 83:
First, individuals who had been for
Page 84 and 85:
Kovačević, who was under indictme
Page 86 and 87:
says it was “not the major reason
Page 88 and 89:
their names are not publicly disclo
Page 91 and 92:
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
Page 103 and 104:
is standard procedure for prosecuto
Page 105 and 106:
crimes occurred and meet with local
Page 107 and 108:
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 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 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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