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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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Contributions and deficits Representatives of the domestic courts and prosecutor’s offices emphasise that in all three countries, legal frameworks have undergone reforms which helped to improve the conditions for war crimes prosecution. All representatives of domestic legal institutions are optimistic about the future development of these institutions and think that they are well prepared to cope with the pending war crimes cases. The interviewees are convinced that the legal institutions that are in charge of war crime prosecution are staffed with highly 64 Slobodan Milošević was President of Serbia from 26 December 1990 and President of the Federal Republic of Yugoslavia (FRY) from 1997 until 2000; as FRY President, he was also the President of the Supreme Defence Council of the FRY and the Supreme Commander of the Yugoslav Army. He was indicted in 1999 and accused of 66 counts of crimes against humanity, genocide and war crimes in Croatia, Bosnia and Kosovo for the period from 1991 to 1999. He died in custody in 2006. See http://www.icty.org/x/cases/slobodan_milosevic/cis/ en/cis_milosevic_slobodan_en.pdf.

65 Ramush Haradinaj was Commander of the Kosovo Liberation Army (KLA) in the Dukagjin operational zone, located to the west of Priština/Prishtine, in 1998, and became Prime Minister of Kosovo in 2004. In 2005, he was accused by the ICTY of persecutions: harassment, torture, deportation or forcible transfer of civilians, murder, rape, torture and cruel treatment of Kosovar Serb and Roma civilians as well as Kosovar Albanians who were alleged to have collaborated with Serbian forces during the Kosovo war in 1998. He surrendered to the ICTY on 9 March 2005, but on 6 June 2005 he was granted provisional release. In response to a request from Haradinaj, on 12 October 2005 the Trial Chamber decided that he was allowed to appear in public and engage in political activities in Kosovo, subject to specific conditions. Haradinaj had to return to the UN Detention Unit on 26 February 2007 for the start of the trial. Haradinaj was found not guilty in 2008, due to lack of evidence, and released. In 2010 the Appeals Chamber ordered a partial re-trial. Haradinaj was arrested and transferred to The Hague again. See www.icty.org/x/cases/haradinaj/tdec/en/051012.htm;

www.icty.org/x/cases/haradinaj/cis/en/cis_haradinaj_al_en.pdf. [The re-trial ended in acquittal; see http://www.bbc.co.uk/news/world-europe-20536318?print=true, accessed on December 3, 2012, M.F.] qualified experts who are willing to professionalise their work by regularly attending further training. The representatives of the Commissions for Missing Persons in all three countries agree with this view. They also express entirely positive assessments of the domestic judiciary’s efforts for war crimes prosecution and willingness for cooperation.

Assessing the specific context in the three countries, the interviewees outline significant differences.

Bosnia Interviewees in Bosnia state that the judiciary in both Bosnian entities (the Federation of BiH and the RS) has gained experience in war crimes prosecution since 1995. However, due to support and pressure from the international community, judicial reforms were implemented and the Court of BiH was established as a hybrid tribunal, combining local expertise with the knowledge and engagement of international experts. All this has contributed to a situation where the quality of investigations and proceedings has significantly increased. The peak for the work of the legal institutions was in March 2005 when the War Crimes Chamber at the Court of Bosnia and Herzegovina was inaugurated.

There were high hopes that the domestic judiciary had reached the state of maturity needed to deal with war crime prosecution on its own.

Despite many achievements, as explained by the interviewees, the Bosnian judiciary also had to face some problems and setbacks. Legal institutions still face difficulties with regard to the protection of witnesses, and often the police fail to offer the appropriate support.

Deficits are also revealed with regard to the outreach of the domestic courts. The interviewed representative of the Chief Prosecutor's Office in Republika Srpska complains that war crime prosecution efforts in the RS are under-reported by the media in the Federation of BiH. As a result, a highly negative image is created of the judiciary in the RS.

This interviewee also reports that Bosniak victims regularly accuse the judiciary in this entity of intentionally obstructing war crimes prosecution (L-BiH-4). Finally, the representatives of the judiciary in Bosnia highlight the fact that this country experienced the largest number of war crimes and gross human rights violations compared with the other successor states of the former Yugoslavia. One interviewee pointed out that at the time of the interview, in Bosnia “the courts employ 18 prosecutors and are mandated to try approximately 20,000 war crime cases” (L-BiH-3).66 Croatia The representatives of legal institutions from Croatia explain that the Croatian judiciary

went through two phases:

The first phase (during the 1990s) was characterised by a non-selective approach in compiling the lawsuits concerning war crimes. This means that quite often, all members of an ethnic group in a local community were accused of a crime that was assumed to have been committed by one of them. The same principle was applied to army units in cases where soldiers were suspected of having committed a crime. It is assumed that these collective indictments were formulated due to lack of evidence, which was difficult to obtain at times of war. Others assume that this approach was in some cases a manifestation of insufficient experience on the part of the legal institutions. And it is believed that in some 66 All interview quotations in this chapter have been translated from Bosnian, Croatian and Serbian into English by the author. [As many interviewees asked for confidentiality we present quotes in an anonymised form; short-cuts relate to our internal database, M.F.] cases, the judiciary was simply biased. As international actors criticised this approach, the domestic courts started to apply the amnesty law, a practice that was again opposed by human rights NGOs and journalists. Apart from issuing collective indictments in the 1990s, trials in absentia were also conducted, only to be reviewed later due to pressure from the international community when it became aware of irregularities related to such trials from reports on domestic war crime prosecution issued by local human rights activists.

In the second phase (since 2000), legal institutions in Croatia aimed to identify and avoid the above- mentioned failures and have been prosecuting war crimes that were committed by members of the Croatian Army. Specialised war crimes chambers were established at four county courts in 2003, and this is considered to be a significant step forward.

According to the interviewees, complex cases could thus be concluded in a more professional manner, such as the trials of the commanders Branimir Glavaš,67 Mirko Norac and Rahim Ademi68 and the “Lora” case.69 In all of these cases, the criminal responsibility of members of the Croatian forces was determined. For the interviewees, this indicates that the domestic judiciary is willing to prosecute all war crimes, regardless of the ethnic background of the accused.

Serbia The interviewees from Serbia state that the judiciary in this country is also sufficiently prepared and equipped to conduct war crime prosecution. In 2003, the Parliament of Serbia passed a Law on the Organisation and Jurisdiction of government Authorities in Proceedings against Perpetrators of War Crimes that defines the organisation and responsibilities for war crimes prosecution in respect to crimes committed in the 1990s on the territory of the former Yugoslavia. By virtue of this law, the War Crimes Chamber at Belgrade District Court and the Office of the Prosecutor for War Crimes were established.

Investigation services within the Ministry of Internal Affairs and a special detention unit were also set up. According to the interviewees, this law has created a legal framework with clearly defined competences and responsibilities with the purpose of investigating, prosecuting and issuing binding judgments on war crimes perpetrated during the wars in the 1990s. Furthermore, the interviewees are convinced that the legal institutions in charge of war crime prosecution are now equipped with experienced professional staff, guaranteeing that trials are conducted in an unbiased manner and meet international standards.

It can be concluded that representatives of the domestic judiciary are convinced that in general – although to different degrees - the courts in Bosnia, Serbia and Croatia are wellprepared for war crimes prosecution. The ICTY representatives are reluctant to give detailed assessments of the state of preparedness of the domestic institutions. However, 67 Branimir Glavaš was the commander responsible for the defence of Osijek and Slavonia during the war in East Slavonia. In May 2009 the County Court of Zagreb found him guilty of torture and murder of Serb civilians in Osijek.

He was sentenced to eight years of imprisonment; www.centar-za-mir.hr/index.php?page=article _sudjenja&trialId=50&article_id=48&lang=hr.

68 The Mirko Norac/Rahim Ademi case refers to war crimes committed against Serb civilians in south Croatia in 1993.

The former general of the Croatian Army Mirko Norac and the former commander of the Gospić military district Rahim Ademi were both indicted by the ICTY with crimes against humanity and violations of the laws and customs of war committed in the operation “Medak pocket” and tried in 2004. See http://www.icty.org/x/cases/ademi/ind/en/adeci040730e.htm. In 2005, the ICTY transferred the case to the County Court in Zagreb. The trial at this court resulted in an acquittal for Ademi and a seven-year term of imprisonment for Norac. See http://www.centar-za-mir.hr/uploads/ PRESUDA_Ademi_i_Norac.pdf.

69 The military investigation prison “Lora” served as a prison camp in Split and was active from 1992 until 1997. The majority of the detainees were Serb residents of Split and prisoners of war. Detainees were tortured, beaten and killed. Eight Croatian military officers were tried in 2002 at the County Court in Split and acquitted. In 2005 they were re-tried at the same court and found guilty of war crimes. See http://www.centar-za-mir.hr/uploads/ 2AI2d_2.pdf___1._dio.pdf;http://www.centar-za-mir.hr/uploads/2AI2d_2.pdf___2._dio.pdf.

they express two concerns. One relates to the slowness of the domestic war crimes proceedings. The other concern stems from the observation that a great deal of the activities in this field have been undertaken as a consequence of international pressure and the policy of conditionality, and the interviewees see a danger that as soon as the successor states to the former Yugoslavia gain EU membership, war crimes prosecution will be reduced to a minimum.

4.2.3. Assessments of the potential of truth commissions and the campaign for REKOM Representatives of the domestic legal institutions are convinced that non-judicial mechanisms for fact-finding can support the courts’ investigations, provided that the facts are legally valid and the cooperation between the courts and such a commission is clearly defined. Nevertheless, some interviewees also express a concern that truth commissions could undermine the work of the legal institutions, if they understand their work as an alternative approach and not as complementary to the work of the judiciary. It is stated that fact-finding commissions could help to counter manipulation of numbers, figures and events. Furthermore, if their work is based on inclusiveness, they can open a space for multiple perspectives on the past. The interviews reveal that the representatives of the ICTY show more confidence in the potential of truth commissions than domestic legal experts.

The campaign for a regional fact-finding commission (REKOM) Representatives of the ICTY assess the REKOM initiative as highly beneficial and worth being extensively supported. They express surprise that it took such a long period for the idea of a regional commission to emerge. In contrast to this, in their assessments, representatives of domestic legal institutions focus more on the ambivalence of a regional commission. Some interviewees state that they would support such a commission and that they regard the REKOM initiative as well prepared and professionally organised. Others believe that the idea for this commission has emerged far too late. Now that the ICTY and the domestic courts have gathered a vast amount of material, this commission seems dispensable. They claim that instead of establishing an additional mechanism, systematising and analysing the existing material should be a priority. All the representatives of legal institutions agree that a regional fact-finding commission would be useful only if it were able to secure additional data that have been undiscovered so far.

The interviewees also doubt that such a commission would be able to supply the courts with valid facts. They insist that, in order to be supportive of legal institutions, the facts need to be validated by official institutions like the police and the prosecutors’ offices.

Furthermore, several interviewees express strong reservations about the format of a commission as suggested by the REKOM campaign. They are particularly concerned about the public hearings that are already being organised by the REKOM team in order to give space to the victims’ narratives. The legal experts emphasise that the testimonies made in such a setting cannot be used for legal war crimes prosecution unless they are forwarded to the police, courts or prosecutors. The interviewees are concerned that victims who speak out at the public hearings are not informed about this by the organisers of REKOM and might have the expectation that legal prosecution and the regulation of reparation programmes will result from their testimony.

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