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«Martina Fischer/Ljubinka Petrović-Ziemer Forschung DSF Nº 36 Dealing with the Past and Peacebuilding in the Western Balkans1 Martina ...»

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4. Sample chapter:60 Analysis of Interviews with TJ Institutions: ICTY, Domestic Judiciary and Commissions for Missing Persons (by Lj. Petrović-Ziemer) A total of 20 interviews were conducted with representatives of the ICTY’s regional outreach offices, the domestic courts and prosecutor’s offices, and the Commissions for Missing Persons (CMPs) in Bosnia, Serbia and Croatia during the period October 2010 to March 2011. The ICTY regional outreach offices, which are located in Sarajevo, Zagreb and Belgrade, aim to serve as a liaison mechanism that enhances cooperation between the Hague Tribunal, state institutions and societies in the region. Another goal is to increase awareness of the work and achievements of the ICTY in the region.

Representatives of domestic legal institutions state that providing fair trials in war crimes prosecution and concluding as many cases as possible in the near future is a central goal for them, as this will also help to restore the social trust in justice, delegitimise and prevent revenge, and prepare the ground for inter-ethnic dialogue and understanding. In accordance with their official mandates, the Commissions for Missing Persons aim to search for and register missing persons in cooperation with the legal institutions and police, and by exchanging information with the commissions in other countries. They are actively involved in exhumations of individual and mass graves and are responsible for the identification and storage of human remains.

4.1. Relevance and dynamics of dealing with the past

Asked why they think that societies in the region should deal with the past right now, representatives of the Hague Tribunal, domestic courts and prosecution offices agree that impunity cannot be tolerated, given the gross human rights violations and atrocities committed in the war(s) of the 1990s. They insist that those who are responsible for such crimes have to be punished and prevented from holding high-ranking political positions. It is emphasised that uncovering individual responsibility avoids debates on collective guilt and can thus ease the painful task of facing the past. Representatives of the domestic legal institutions see war crimes prosecution also as a prerequisite for re-establishing a moral value system in the region of the former Yugoslavia.

Regarding the dynamics of dealing with the past in the region, the interviewees outline some positive developments. They are convinced that right after the end of the war(s) in the 1990s, citizens as well as governments and parliaments did not show much willingness for war crimes prosecution. Meanwhile, significant political changes towards democracy have taken place and at present societies show increasing willingness to face the past, as representatives of the domestic courts and prosecution offices in all three countries emphasise. At the same time, ICTY representatives point out that a large part of the population is not yet willing to accept judgments that prove the guilt of individuals belonging to their respective national community.

The representatives of the Commissions for Missing Persons (CMPs) point out that, as a legacy of the wars, in all three countries persons are missing whose fate has yet to be determined. As long as this remains an unsolved matter, they see a risk that this

60 This section presents a reprint of Petrović-Ziemer 2013a.

uncertainty will contribute to increasing conflicts or social tensions. Therefore gathering information on the circumstances of disappearances, detecting mass graves, and the exhumation and identification of human remains are an ongoing challenge. Collecting data on these issues also provides the courts with evidence. Furthermore, the interviewees are convinced that this form of truth recovery assists the societies involved in the violent conflicts of the 1990s in coming to terms with their past in a broader sense. The representatives of the Commissions also agree that accountability is important as well, and that punishment of the perpetrators is a central component of justice.

4.2 Potential, legitimacy and acceptance of TJ mechanisms 4.2.1. Assessments of the work of the ICTY Contributions and achievements All interviewees agree that the establishment of the ICTY in 1993 made an important contribution to dealing with the past in the Western Balkans. Representatives of the Commissions for Missing Persons in all three countries underline that the ICTY has taken over the responsibility for war crimes prosecution at times when the domestic courts have not been prepared to perform this task. Apart from establishing accountability, the Hague Tribunal’s trials have disclosed valuable information on the types and sites of crimes. The data gained through investigations and testimonies and the material presented in evidence at the trials were also supportive of the work of the commissions. The representative of the State Commission for Missing Persons in Serbia explains that in particular, the trials related to the crimes that were committed around Vukovar, in detention camps in Serbia, in Srebrenica and Kosovo helped to find a significant number of missing persons. However, the search process is still far from completed. Further progress will largely depend on the efforts that will be undertaken in the future by domestic courts and prosecutors in the course of investigations for pending war crimes cases.

Interviewees from legal institutions (ICTY and domestic judiciary) emphasise that the Hague Tribunal has successfully investigated massive violations of international humanitarian law and crimes committed by all sides involved in the wars of the early 1990s. Many high-ranking military commanders and politicians have been arrested and indicted. Besides, interviewees explain that the ICTY helped to further develop international humanitarian law. The Tribunal classified the mass murder in Srebrenica as genocide61 and found that in the former Yugoslavia not only war crimes but also crimes against humanity were committed. All interviewees consider these findings to be the ICTY’s most significant contributions.

The interviewees also appreciate that the ICTY has set new norms and reformed some judicial procedures with regard to sexual violence and gender-specific war crimes. Due to normative changes, rape is classified as a war crime. Investigations by the ICTY have 61 In its proceedings in the Krstić, Erdemović and Obrenović cases, the ICTY found beyond reasonable doubt that Bosnian Serbs and other forces killed between 7,000 and 8,000 Bosnian Muslim men and boys between approximately 11 and 19 July 1995, that the vast majority were not killed in combat, but were victims of executions, and that the killings were the product of a well-planned and coordinated operation. Hence the Tribunal found that the killing of 7,000 to 8,000 Bosnian Muslim prisoners was genocide. See http://www.icty.org/x/file/Outreach/ view_from_hague/jit_srebrenica_en.pdf.

revealed that sexual violence has been committed against men and women. However, the interviewees confirm that in cases of gender-based violence, the percentage of women witnesses is higher than the percentage of men. Furthermore, the evidence established by the ICTY shows that rape of women in BiH was organised as a mass criminal act and more systematically compared to gender-based violence against men. The ICTY established a legal practice that allows victims/witnesses of rape to testify in closed sessions. The procedure for cross-examination is strictly regulated. For instance, as a consequence of the ICTY’s reforms of legal procedures it is not permitted to ask victims/witnesses about their pre-war intimate life. It is reported that these innovations have also been adopted by the domestic courts in the region.

Furthermore, the representatives of legal institutions highlight that the ICTY established an important archive that can be used for in-depth research. Additionally, it is acknowledged that the ICTY has paved the way for the establishment of war crimes chambers in the region. With regard to the achievements of the ICTY, assessments by representatives of international and domestic legal institutions overlap to a great extent. With respect to the deficits, however, the answers vary.

Deficits Several representatives of domestic legal institutions come to the conclusion that the components of Anglo-Saxon (common) law practised by the ICTY have proved inappropriate for cases of gross human rights violations committed during the wars in the former Yugoslavia. The most critical assessment refers to the practice of plea bargaining that was deployed in order to shorten legal proceedings in cases that would otherwise have required complex and costly investigations. If the defendant agrees to plead guilty to a particular charge, the prosecutor might in return drop some of the other charges and reduce the sentence. Part of this agreement may also be that the defendant cooperates with the prosecutor in respect to other crimes/cases by testifying or providing relevant evidence. However, there are no mechanisms that would oblige the defendant to cooperate. The most prominent example mentioned by the interviewees is the case of Biljana Plavšić62 who signed a plea agreement but refused to testify in the case of Momčilo Krajišnik, contrary to the ICTY’s expectations.63 As already noted, through plea agreements, sentences can be reduced. In particular, representatives of legal institutions in Bosnia criticise this practice. They argue that the pre-term release of convicted persons leads to distrust and endangers community rebuilding since it puts the victims in a position where, after the return of the ex-prisoners, they have to live next to perpetrators in their respective communities.

62 Biljana Plavšić was a leading Bosnian Serb politician from 1990 until the end of the war. She was the Serb representative to the collective Presidency of Bosnia and Herzegovina, and a member of the collective and expanded Presidencies of the Bosnian Serb Republic (later Republika Srpska). She had de facto control and authority over members of the Bosnian Serb armed forces. She was indicted for genocide and/or complicity to commit genocide, extermination, persecutions on political, racial and religious grounds, deportation and inhumane acts (crimes against humanity), and murder (violations of the laws or customs of war during the armed conflict). As a consequence of plea bargaining, her sentence was reduced and seven out of eight counts of the indictment were dropped. She was sentenced to 11 years’ imprisonment by the ICTY after being found guilty of persecutions on political, racial and religious grounds (crimes against humanity) in 2003. She served two-thirds of her sentence in Sweden and was granted early release in 2009. See http://www.icty.org/x/cases/plavsic/tjug/en/pla-tj030227e.pdf.

63 Momčilo Krajišnik was a member of the Bosnian Serb (later Republika Srpska) leadership during the war. He was on the Main Board of the Serbian Democratic Party of Bosnia and Herzegovina (SDS) and was President of the Bosnian Serb Assembly. He was convicted of persecutions, deportation and forced transfer (crimes against humanity). He was indicted for genocide and/or complicity to commit genocide, extermination, persecutions on political, racial and religious grounds, deportation and inhumane acts (crimes against humanity), and murder (violations of the laws or customs of war during the armed conflict). He was acquitted of charges of murder as war crime, genocide and complicity in genocide and was convicted of persecutions, deportation and forced transfer. He is serving his 20-year sentence in the United Kingdom. See http://www.icty.org/x/cases/krajisnik/cis/en/cis_krajisnik_en.pdf.

A further point of criticism is that the trial of the former President of Serbia, Slobodan Milošević64, could not be concluded. Vast material has been collected that will help to broaden the knowledge on the wars in the 1990s but due to Milošević’s death in 2006 the ICTY was not able to prove or disprove his criminal responsibility. Furthermore, the interviewees express harsh criticism with regard to the case of the former officer of the Kosovo Liberation Army (KLA), Ramush Haradinaj.65 In particular, the interviewees criticise the pre-trial proceedings, since the Trial Chamber permitted Haradinaj to be actively involved in politics while he was on provisional release between October 2005 and February 2007, although he was charged with crimes against humanity and violations of the laws or customs of war. The interviewees cannot understand how an indicted war crimes suspect can be given permission to engage in political activities. This is described by representatives of legal institutions in Serbia as a grave mistake.

ICTY representatives also concede that there are deficits in the Tribunal's work. Their selfcritical assessments are not focused so much on the legal practice but more on the outreach and communication strategy. They regret that due to the geographical distance, there was no direct exchange of information between the ICTY and the population in the countries of the former Yugoslavia. This has also contributed to the negative image of the ICTY in the region. The setup of outreach offices is considered to have been undertaken far too late. Both international and local interviewees agree that the reputation of the ICTY is rather tarnished in some areas, and that the highest degree of mistrust can be observed within the Serb communities in Serbia and Bosnia. Representatives of legal institutions

from Serbia and members of the ICTY outreach office in Belgrade confirm this impression:

the image created by the media in this country is that the ICTY is an anti-Serb tribunal, and therefore its impartiality is also seriously questioned by relevant parts of the population.

4.2.2. Assessments of the work of the domestic courts and prosecutors

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