Prosecutions and Sentencing in the Western Balkans

Transcription

PROSECUTIONS AND SENTENCING IN
THE WESTERN BALKANS
BY YAËL RONEN, WITH THE ASSISTANCE OF
SHARON AVITAL AND OREN TAMIR
DOMAC/4, FEBRUARY 2010
ABOUT DOMAC
THE DOMAC PROJECT focuses on the actual interaction between national and international
courts involved in prosecuting individuals in mass-atrocity situations. It explores what impact
international procedures have on prosecution rates before national courts, their sentencing
policies, award of reparations and procedural legal standards. It comprehensively examines the
problems presented by the limited response of the international community to mass-atrocity
situations, and offers methods to improve coordination of national and international proceedings
and better utilization of national courts, inter alia, through greater formal and informal avenues of
cooperation, interaction and resource sharing between national and international courts.
THE DOMAC PROJECT is a research program funded under the Seventh
Framework Programme for EU Research (FP7) under grant agreement no.
217589. The DOMAC project is funded under the Socio-economic sciences
and Humanities Programme for the duration of three years starting 1st
February 2008.
THE DOMAC PARTNERS are Hebrew University, Reykjavik University, University College
London, and University of Amsterdam.
ABOUT THE AUTHORS
Dr Yaël Ronen is Assistant Professor of international law at Sha‟arei Mishpat Law College, Israel.
She received her PhD from the University of Cambridge (2006) for her thesis titled „Legal Aspects
of Transition from Illegal Regimes under International Law‟. She has taught public and private
international law in Cambridge and in Israel since 2005.
Sharon Avital, who provided the statistical analysis, holds a BA in political science and sociology
(1999) and an MBA (2002), both from the Hebrew University in Jerusalem. She has authored a
student study-guide in statistics. She is currently a third-year law student at the College of
Management, Israel.
Oren Tamir is a fourth year law student and a third year student of philosophy and economics,
both at the Hebrew University of Jerusalem. He is also a legal consultant at the Association of Civil
Rights in Israel, specializing in rights related to the criminal process.
ACKNOWLEDGEMENTS
The report was prepared under the supervision of Prof. Yuval Shany. We are indebted to Robert
Mrljić for collecting the data in Croatia; to Yaël Vias for her work on previous drafts; and to Ivan
Jovanović, Jelena Stevancević and Zarko Marković for their useful comments on previous drafts.
We are indebted to Bogdan Ivanišević and to Judge Vojislav Dimitrijević of the Supreme Court of
the Republika Srpska, Bosnia and Herzegovina, for assistance in obtaining updated data. We are
also grateful to participants in the Seminar on the Impact of International Courts of Domestic
Proceedings held in Belgrade on 19-20 November 2009 for their comments on the draft report.
Responsibility for any errors or omissions remains with the authors.
This paper represents not the collective views of the DOMAC Project but only the views of its
authors.
© 2009 Yaël Ronen, Sharon Avital, Oren Tamir
Published by DOMAC
Reykjavik University
Ofanleiti 2, 103 Reykjavik
Iceland
www.domac.is
TABLE OF CONTENTS
Table of Contents ............................................................................................................ 5
List of Abbreviations ........................................................................................................ 6
Working definitions .......................................................................................................... 6
1. Introduction ................................................................................................................. 7
2. Bosnia and Herzegovina ............................................................................................. 9
2.1 Bosnia and Herzegovina Institutions ................................................................ 9
2.2 Bosnia and Herzegovina prosecutions and sentencing.................................. 11
2.3 Bosnia and Herzegovina landmarks............................................................... 40
3. Croatia....................................................................................................................... 45
3.1 Croatia Institutions ......................................................................................... 45
3.2 Croatia prosecutions and sentencing ............................................................. 46
3.3 Croatia Landmarks ......................................................................................... 55
4. Serbia ........................................................................................................................ 61
4.1 Serbia Institutions........................................................................................... 61
4.2 Serbia prosecutions and sentencing .............................................................. 62
4.3 Serbia landmarks ........................................................................................... 70
5. Kosovo ...................................................................................................................... 76
5.1 Kosovo Institutions ......................................................................................... 76
5.2 Kosovo prosecutions and sentencing............................................................. 78
5.3 Kosovo landmarks.......................................................................................... 87
6. ICTY .......................................................................................................................... 91
7. Analysis ................................................................................................................... 102
8. Sources ................................................................................................................... 106
LIST OF ABBREVIATIONS
BiH
Bosnia and Herzegovina
EU
European Union
FBiH
Federation of Bosnia and Herzegovina
ICC
International Criminal Court
ICTY
International Criminal Tribunal for Yugoslavia
NATO
North Atlantic Treaty Organization
RS
Republika Srpska
SRSG
Special Representative of the UN Secretary General
UNMIK
United Nations Mission in Kosovo
UNSCR
United Nations Security Council Resolution
WCC
War Crimes Chamber within the District Court in Belgrade
WORKING DEFINITIONS
Classification of crimes: Where a person was convicted of more than one type of international crime, the case was
classified according to the most severe crime convicted, with genocide regarded as the most severe crime, followed by
crimes against humanity, and finally war crimes.
1
Ethnicity: The interest in ethnicities focuses on the ethnicities identified with the countries involved in the break-up
conflict in the former Yugoslavia, indictees and defendants are classified as Serb, Bosnian, Croat, Kosovar or „other‟.
„Serb‟ indicates ethnic Serbs whether in Serbia or elsewhere (e.g. in Republika Srpska), „Bosnian‟ indicates Muslim
Bosnians, whether or not identifying themselves as Bosniak.
Withdrawals: Withdrawals take place at various stages of the process, although mostly after indictment and prior to trial
judgment. Because of withdrawals, there may be a large gap between the number of indictments and the number of trial
judgements.
Sentencing: the information on sentencing includes the most recent information available, whether or not the sentence
is final or still pending appeal.
Date of sentencing: Where a conviction and a sentence were upheld by the appellate instance, the date of sentencing
was
1
recorded
as
the
date
of
the
appeal,
rather
than
as
the
date
of
the
original
sentence.
The international criminal tribunals have frequently insisted that there is no hierarchy among the crimes within their jurisdiction.
However, their sentencing policy is such that genocide consistently attracts a more serious penalty, see table 6.4.3. The prosecutors
have reached several plea agreements with defendants involving admission of guilt for crimes against humanity in exchange for
withdrawal of genocide charges, suggesting a perception by both the prosecutors and the accused that genocide is the more serious
crime. William Schabas, „Genocide‟, in Rudolf Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford
University Press, 2008) para. 31 online edition, <http://www.mpepil.com>.
DOMAC/4: PROSECUTIONS AND SENTENCING – WESTERN BALKANS
1. INTRODUCTION
This paper is to provide the empirical basis for assessing the impact of international courts on the
functioning of domestic courts in criminal prosecutions in mass-atrocity situations and vice versa,
i.e. whether the conduct of international criminal proceedings encourages or discourages the
operation of domestic courts; whether such an effect is dependent on the size of the international
case load; and whether sentencing policies of the two sets of tribunals are compatible with one
another.
The present report provides data on prosecutions and sentencing with respect to war-related
crimes2 in domestic courts in the Western Balkans. Four jurisdictions were chosen as case studies:
Bosnia and Herzegovina, Croatia, Serbia3 and Kosovo. For each country, the report contains three
sections:
1. Description of judicial bodies which adjudicate war-related crimes institutions.
2. Data on prosecutorial and judicial activities.
3. Domestic and international events („landmarks‟) that may have influenced the prosecutorial and
judicial policies concerning war-related crimes.
In addition, the report presents data on the ICTY according to the same parameters as that
provides for the domestic jurisdiction, as a benchmark for assessing policies and trends.
The data is divided into sections on indictments, trials, appeals and sentencing. Since the
primary aim of the report is to enable the assessment of trends in domestic policies through time,
all data is presented by annual breakdown. The volume of domestic activity is reflected in the
overall numbers of indictments (1.1), trial judgements (2.1), appeal submissions (3.1) and appeal
decisions (3.3). In order to assess the quality of domestic prosecutions, we provide data on
convictions and acquittals (2.3), as well as on the outcome of appeals on each of those, namely
whether the appeal was upheld, reversed or sent to retrial (3.5). To provide a more nuanced
picture, we examined the ethnic distribution of indictees (1.2), defendants (2.2) and appellants
(3.2, 3.4), as well as the link between ethnicity and the outcome of the judgment (2.4) and appeal
(3.6, 3.7).
The data on sentencing is likewise presented by reference to year. The information is broken
down according to the type of international crime of which the defendant was convicted or to the
international crime to which the facts correspond most closely (4.3). Here too we provide an ethnic
2
In this report the term “war-related crimes” refers to crimes committed during the conflicts related to the breakup of Yugoslavia by
State or non-State agents representing de jure or de facto authorities, that meet the international definitions of genocide, crimes against
humanity and war crimes. The selection of cases was made regardless of whether the indictment was by reference to international
crimes or ordinary, domestic ones; rather, the criterion for choosing the cases was mainly the conflict-context in which they occurred.
3
For convenience, the report refers to „Serbia‟ throughout, including with respect to the period when it was designated „Federal
Republic of Yugoslavia‟ or „Serbia and Montenegro‟.
7
8
breakdown (4.2). Since the number of cases in all four countries is not high, and in some cases
very small, all data is provided in absolute numbers.
The report does not purport to provide a detailed account of individual cases, international or
domestic, since it is geared towards identification of general trends. It is premised on the reader‟s
acquainted with major events in the ICTY which are mentioned as potentially impacting domestic
policies.
The report is based on Information available on FBiH, Republika Srpska and Brčko District as of
31 December 2009, and on other jurisdictions as of 30 September 2009.
addresses are correct as of February 15th 2010.
Citations to web
2. BOSNIA AND HERZEGOVINA
2.1 BOSNIA AND HERZEGOVINA INSTITUTIONS
The state of Bosnia and Herzegovina (BiH) comprises two administrative divisions („Entities‟), the
Bosnian/Croat Federation of Bosnia and Herzegovina („FBiH‟) and the Bosnian-Serb Republika
Srpska („RS‟); and the internationally-supervised Brčko district in northeastern BiH. The division of
competences between the Entities and the State is stipulated in the Constitution of BiH. The Brčko
district was established following an arbitral award by a 1997 Tribunal for Dispute over Inter-EntityBoundary in Brčko Area, and was formally inaugurated on 8 March 2000. It remains under
international supervision until the Entities have fully complied with their obligations to facilitate the
establishment of the District institutions as described in the Tribunal's Final Award of 1999 and
such institutions function effectively and apparently permanently.
At the BiH level, war-related crimes are prosecuted in the War Crimes Chamber which was
formally established within the Court of Bosnia and Herzegovina („State Court') on 6 January 20054
and which began operating on 9 March 2005,5 at the same time as the Department for War Crimes
of the Prosecutor of BiH. Its jurisdiction encompasses genocide, crimes against humanity and war
crimes. The State Court also issues practice directions on the application of the substantive
criminal law of BiH falling within its jurisdiction
Appeals on judgments of the War Crimes Chamber are heard by the Appellate Division within
the State Court. The appellate instance may uphold a judgment, reverse it or sent the case to be
retried.6
Initially both trial and appeal panels in the State Court were composed of one national judge
and two international judges. National judges (including the Court President) lay judges and
reserve judges are by law appointed by the High Judicial and Prosecutorial Council. International
judges are appointed by a three-member commission of the High Judicial and Prosecutorial
Council, consisting of BiH citizens and international members.7 It is intended that by the end of
2009 there will no longer be any international judges within the State Court. By mid-2008, all firstinstance panels were still composed of one international judge and two national judges, who rotate
as presiding judges.8 A proposal to extend the mandate of international judges and prosecutors
4
OSCE Mission to Bosnia and Herzegovina, Human Rights Department, „War Crimes Trials Before the Domestic Courts of Bosnia and
Herzegovina, Progress and Obstacles‟ (March 2005) 9, <http://www.oscebih.org/documents/1407-eng.pdf>.
5
BIRN, „Pursuit of Justice, Guide to the War Crimes Chamber of the BiH Court‟ vol. II (undated) 7.
6
BIRN, „Pursuit of Justice, Guide to the War Crimes Chamber of the BiH Court‟ vol. II (undated) 24
7
BIRN, „Pursuit of Justice, Guide to the War Crimes Chamber of the BiH Court‟ vol. II (undated) 10-11.
8
The Registry for Sections I And II of the Court of Bosnia And Herzegovina, Annual Report 2008, 16-17,
<http://www.registrarbih.gov.ba/files/docs/REPORT_2008_FINAL.pdf>.
9
until 2012 was rejected by the BiH Parliament in September 2009, following opposition mainly from
RS.9
In the FBiH, jurisdiction over war-related crimes lies with 10 cantonal courts. In RS it lies with 5
district courts and 19 basic courts, and in Brčko District it lies with the Basic Court. Appeals on
these courts' judgments are heard by the Supreme Court in the respective Entity and by the Brčko
Appellate Court. Each Entity and the Brčko district has its own prosecutor‟s office.10
Cases are channelled to the State Court or to Entity courts according to their sensitivity. Highly
sensitive cases, to be tried by the State Court, include those which concern genocide,
extermination, mass killings, rapes and other forms of sexual abuse as a part of organised criminal
undertakings, plunder, torture, widespread, systematic forced evictions and large-scale detentions
in concentration camps. They also include cases involving former or current high-ranking military
officers, political leaders, and State officials, extremely violent individuals and perpetrators of mass
rapes; cases where there is a risk of tampering with evidence; and cases for which there is a
credible fear that the local authorities may be interested in protecting the suspects.11
Petitions of defendants against violations of the right to a fair trial, and against failure by state
authorities to investigate and prosecute are heard by the BiH Constitutional Court.
9
BIRN, 'No Mandate Extension for International Judges and Prosecutors' (4 September 2009), <http://www.bim.ba/en/182/10/21995/>;
Erna Mackic, „Decision Close on Bosnia‟s International Judges and Prosecutors‟, BIRN Justice Report (16 September 2009),
<http://www.bim.ba/en/184/10/22245/>.
10
Human Rights Department, OSCE Mission to Bosnia and Herzegovina, „War Crimes Trials Before the Domestic Courts of Bosnia and
Herzegovina, Progress and Obstacles‟ (March 2005) 9, <http://www.oscebih.org/documents/1407-eng.pdf>.
11
BIRN, „Pursuit of Justice, Guide to the War Crimes Chamber of the BiH Court‟, Vol. II (undated) 9.
10
2.2 BOSNIA AND HERZEGOVINA PROSECUTIONS AND SENTENCING
2.2A STATE COURT OF BOSNIA AND HERZEGOVINA
2.2A.1 INDICTMENTS
2.2A.1.1 Indictments by year
2.2A.1.2 Indictments by ethnicity and year
11
2.2A.2 TRIAL AND RETRIAL JUDGMENTS
2.2A.2.1 Trial and retrial judgments by year
2.2A.2.2 Trial and retrial judgments by ethnicity and year
12
2.2A.2.3 Trial and retrial judgments by outcome and year
The outcome of one judgement given in 2009 with respect to a Serb defendant is unknown.
2.2A.2.4 Trial and retrial judgments by outcome and year – by ethnicity
2.2A.2.4A Trial and retrial judgments by outcome and year - Serbs
13
2.2A.2.4B Trial and retrial judgments by outcome and year - Bosnians
2.2A.2.4C Trial and retrial judgments by outcome and year – Croats
14
2.2A.3 APPEALS
2.2A.3.1 Appeals submitted by year
2.2A.3.2 Appeals submitted by ethnicity and year
15
2.2A.3.3 Appeals decided by year
2.2A.3.4 Appeals decided by ethnicity and year
16
17
2.2A.3.5 Outcome of appeals on conviction by year
There have been no reversals of convictions.
2.2A.3.6 Outcome of appeals on conviction by ethnicity and year
Year
Serb
Bosnian
Upheld
Sent to
Retrial
--
2006
1
1
2007
7
3
2008
5
4
2009 (30 Sept)
5
2005
Multi-year
18
Upheld
Croat
Sent to
Retrial
1
--
1
1
--
1
Sent to
Retrial
--1
-8
Upheld
2
1
2
2
2.2A.3.7 and 2.2A.3.8 Outcome of appeals on acquittal by ethnicity
There have been 3 appeal decisions on acquittals. The acquittal of a Serb defendant was upheld
in 2007. The case of a Bosnian defendant was sent for retrial in 2008. The case of a Croat
defendant was sent to retrial in 2009.
There are 8 appeals on acquittal still pending.
2.2A.4 SENTENCES
2.2A.4.1 Judgements by year (convictions and acquittals)
2.2A.4.2 Average sentence by year (convictions only)
Year
2006
2007
2008
2009 (30 Sept)
Multi-Year
Average sentence
16.3
18
18.6 (S.d 14.5)
14 (S.d 6.1)
17.2 (S.d 11.5)
No. of
sentences
3
9
27
14
53
S.d (standard deviation) indicates the dispersion of data around the average.
18
19
2.2A.4.3 Average sentence by ethnicity and year (convictions only)
Year
2006
2007
2008
2009 (30 Sept)
Multi-Year
Serb
Average
No. of
sentence
sentences
22
16.6
21.6 (S.d
15.7)
15 (S.d 6.6)
18.8 (S.d
12.2)
Bosnian
Average No. of
sentence sentences
2
8
20
5
30
8.3
11
41
12
Croat
Average
sentenc
e
No. of
sentences
1
1
3
11.4
4
5
10.7
11.1
3
7
--
---
2.2A.4.4 Average sentence by crime and year (convictions only)
Year
Genocide
Average
sentence
2006
2007
2008
2009 (30 Sept)
Multi-Year
40.6
40.6
No. of
sentences
--7
-7
Crimes Against
Humanity
Average
No. of
sentence
sentences
22
2
18.3
6
11.3
9
13.1
8
14.4 (S.d
25
7.4)
War Crimes
Average
sentence
5
17.5
10.6
15.3
12.7 (S.d
7.6)
No. of
sentences
1
3
11
6
21
2.2A.4.5 Plea bargains
In 2008 there were 6 convictions on the basis of plea bargains, of 2 Serb defendants, 2 Bosnian
defendants and 2 Croat defendants.
2.2B COURTS OF THE FEDERATION OF BOSNIA-HERZEGOVINA (FBIH)
2.2B.1 INDICTMENTS
2.2B.1.1 Indictments by year
2.2B.1.2 Indictments by ethnicity and year
In addition to the above, one indictment is with other ethnicity in 2007, and another indictment with
unknown ethnicity in 2006
20
2.2B.1.3 Withdrawals
Nine indictments were withdrawn before trial: 2 in 1996 against Croats, 2 in 1997, against a
Bosnian defendant and against a Serb defendant; three in 2000 against Bosnians, and 1 in 2003,
against a Serb defendant.
2.2B.2 TRIAL AND RETRIAL JUDGMENTS
2.2B.2.1 Trial and retrial judgments by year
In addition there have been 47 convictions of Serb defendants before military courts (at unknown
dates in the years 1993-1996).
21
2.2B.2.2 Trial and retrial judgments by ethnicity and year
dates in the years 1993-1996).
2.2B.2.3 Trial and retrial judgments by outcome and year
dates
22
2.2B.2.4 Trial and retrial judgments by outcome and year - by ethnicity
2.2B.2.4A Trial and retrial judgments by outcome and year - Serbs
In addition 47 other Serb defendants have been convicted by military courts at unknown dates in
the years 1993-1996.
2.2B.2.4B Trial and retrial judgments by outcome and year - Bosnians
23
2.2B.2.4C Trial and retrial judgments by outcome and year – Croats
2.2B.2.5 Withdrawal at trial stage
In 2000, three cases were withdrawn after judgment, all of Bosnian defendants. In 2002 a case
against a Serb defendant was withdrawn after retrial. One indictment against a Serb defendant
was withdrawn before the beginning of retrial in 2002.
2.2B.3 APPEALS
2.2B.3.1 Appeals submitted by year
24
2.2B.3.2 Appeals submitted by ethnicity and year
2.2B.3.3 Appeals decided by year
25
2.2B.3.4 Appeals decided by ethnicity and year
2.2B.3.5 Outcome of appeals on conviction by year
26
27
2.2B.3.6 Outcome of appeals on conviction by ethnicity and year
Year
Serb
Upheld
1992
Bosnian
Sent to Retrial
Upheld
1
Croat
Sent to Retrial
Upheld
Sent to Retrial
--
--
1993
--
--
--
1994
--
--
--
1995
1
1996
--
1997
4
1998
18
1999
1
2000
2
4
2
--
1
2
--
1
-1
--
--
2001
2002
--
1
1
--
1
2003
--
3
1
2
1
--
--
2004
2
1
4
2005
1
1
1
2006
--
2007
3
2008
4
1
1
--
2
3
9
2
2009
---Multi31
6
9
3
9
year
0
There have also been two reversals of convictions, in 2008, of a Croat defendant and of a
defendant of another ethnicity
2.2B.3.7 Outcome of appeals on acquittal by year
28
2.2B.3.8 Outcome of appeals on acquittal by ethnicity and year
Year
Serb
Upheld
Bosnian
Sent to Retrial
Upheld
Croat
Sent to Retrial
Upheld
Sent to Retrial
1992
--
--
--
1993
--
--
--
1994
--
--
--
1995
--
--
--
1996
--
--
--
--
--
1997
1
1998
1
1999
1
2000
4
2001
2002
1
--
--
1
--
---
1
2003
--
--
1
--
1
--
1
2004
1
--
--
2005
1
--
--
2006
--
--
--
2007
--
--
--
2008
1
2009
Multiyear
1
--
9
--
-2
3
-1
2
0
In three cases acquittals were reverses: two of Serb defendants (in 1997 and in 2006); and one
of a Bosnian defendant (in 2008).
29
2.2B.4 SENTENCES
2.2B.4.1 Judgments by year (convictions and acquittals)
In addition there have been 34 sentences (at unknown dates) of Serbs defendants indicted in the
years 1993-1996 (in military courts).
2.2B.4.2 Average sentence by year (convictions only)
Year
Average
sentence
No. of
sentences
1992
15
1
1993
3
1
1994
--
1995
15
2
1996
8
1
1997
11.2
8
1998
16 (S.d 6.5)
19
1999
10
1
2000
20
2
2001
11
3
2002
8.5
3
2003
8.8
3
2004
6.9
7
2005
6.5
2
2006
3.5
2
2007
6.3 (S.d 2)
10
2008
5.2 (S.d 4.6)
16
2009
4.5
2
Multiyear
9.7 (S.d 6.3)
83
30
2.2B.4.3 Average sentence by year and ethnicity (convictions only)
Year
1992
1993
Serb
Average
sentence
15
3
1994
1995
No. of
sentences
1
Bosnian
Average
No. of
sentence
sentences
--
1
1996
Average
sentence
--
-10
Croat
--
-1
--
1997
11.2
5
11.3
1998
16.9 (S.d 5.9)
18
1.5
No. of
sentences
---
--
20
1
--
8
1
3
--
1
--
1999
10
1
--
--
2000
20
2
--
--
2001
2002
-10
2003
1
--
11
3
13
1
8.8
-2.5
3
--
2004
6.7
3
2005
2006
6
2.5
1
1
4.5
1
2007
6.3
4
6
2
7.7
4
2008
10.5
5
2.9
9
2.3
2
2
1
7
1
2009
Multiyear
12.4 (S.d 6.4)
45
--
1
7.1
--
6.5 (S.d 4.1)
4
7
24
1
--
-7.2 (S.d 5.3)
14
In addition there have been 34 unknown sentences (at unknown dates) of Serb defendants
indicted in the years 1993-1996 (in military courts)
31
2.2B.4.4 Average sentence by crime and year (convictions only)
Year
Genocide
Average
sentence
1992
No. of
sentences
--
1993
--
--
1994
--
--
1995
10
Non International Crimes
War Crimes
1
Average
sentence
15
No. of
Sentences
1
Average
sentence
No. of
sentences
--
3
1
--
20
1
--
1996
--
8
1
--
1997
--
11.2
8
--
16.4
18
--
10
1
--
1998
9
1999
2000
1
--
20
2
--
--
2001
--
11
3
--
2002
--
8.5
3
--
2003
--
8.8
3
--
2004
--
6.9
7
--
2005
2006
---
6.5
3.5
2
2
---
2007
--
6.3 (S.d 2)
2008
--
5.2 (S.d 4.6)
2009
--
4.5
Multi-year
14.7
4
9.6 (S.d 6.2)
10
3
1
16
--
--
2
--
--
78
3
1
There have been no convictions for crimes against humanity.
2.2B.4.5 Plea bargains
One Serb defendant and 2 Bosnian defendants have been convicted, and 1 Serb defendant was
acquitted, on the basis of plea bargains (at unknown dates).
2.2C COURTS OF REPUBLIKA SRPSKA
2.2C.1 INDICTMENTS
2.2C.1.1 Indictments by year
2.2C.1.2 Indictments by ethnicity and year
2.2C.1.3 Withdrawals
One indictment against a Serb defendant was withdrawn prior to trial (at an unknown date).
32
2.2C.2 TRIAL AND RETRIAL JUDGMENTS
2.2C.2.1 Trial and retrial judgments by year
2.2C.2.2 Trial and retrial judgments by ethnicity and year
.
33
2.2C.2.3 Trial and retrial judgements by outcome and year
2.2C.2.4 Trial and retrial judgments by outcome and by year - by
ethnicity
2.2C.2.4A Trial and retrial judgments by outcome and by year - Serbs
2.2C.2.4B Trial and retrial judgments by outcome and by year – Bosnians
There have been 2 convictions of Bosnian defendants in 2009.
2.2C.2.4C Trial and retrial judgments by outcome and by year - Croats
There has been one conviction of a Croat defendant in 1997.
34
2.2C.3 APPEALS
2.2C.3.1 Appeals submitted by year
2.2C.3.2 Appeals submitted by ethnicity and year
35
2.2C.3.3 Appeals decided by year
2.2C.3.4 Appeals decided by ethnicity and year
36
2.2C.3.5 and 2.2c.3.6 Outcome of appeals on conviction by ethnicity and
year
The conviction upheld in 1997 was of a Croat defendant. All other convictions upheld or sent to
retrial were of Serb defendants.
2.2C.3.7 and 2.2C.3.8 Outcome of appeals on acquittal by ethnicity and
year
All appeals on acquittal concerned Serb defendants.
37
38
2.2C.4 SENTENCES
2.2C.4.1 Judgments by year (convictions and appeals)
2.2C.4.2 and 2.2C.4.3 Average sentence by year and ethnicity
Year
Serb
Bosnian
Croat
Average
No. of
Average
No. of
Average
No. of
sentence
sentences
sentence
sentences
sentence
sentences
1992-1997
--
--
1998
--
--
1999
--
--
--
2000
--
--
--
2001
--
--
--
2002
--
--
--
2003
--
--
--
2004
--
--
--
--
--
2005
18.8
4
--
-15
1
--
--
2007
8.1
7
--
--
2008
6.4
5
--
--
2009
11.5
2
13
2
1
1
10.4 (S.d 5)
18
13
2
8
2
2006
Multi-year
2.2C.4.4 Average sentence by crime and year (convictions only)
All convictions were of war crimes. The average sentence is 10.4 years (S.d – 5.2).
2.2D COURT OF BRČKO DISTRICT
One Serb defendant was indicted in Brčko in 2005 for war crimes. He was convicted on the basis
of a plea bargain in 2005 and was sentenced to 6 years‟ imprisonment. There was no appeal.
Three Serb defendants were indicted in Brčko in 2006 for war crimes. In 2007 two were acquitted
and one was convicted and sentenced to 15 years‟ imprisonment. All cases were appealed and
decided in 2007. The judgments were upheld.
One Croat defendant was indicted in 2007 for war crimes. He was acquitted in 2007.
One Bosnian defendant and one Serb defendant were indicted in 2008 for war crimes. They were
both convicted and sentenced to 6 years‟ imprisonment. Their appeals, submitted in 2009, were
decided on the same year. The conviction of the Bosnian defendant was reversed, the conviction
of the Serb defendant was upheld.
39
2.3 BOSNIA AND HERZEGOVINA LANDMARKS
1992
March 3: BiH declares independence. War breaks.
February 21: UNSCR 743(1992) establishes UNPROFOR.
April 5: Siege of Sarajevo begins.
1993
May 25: UNSCR 827(1993) establishes the ICTY.
1994
July 8: UNSCR 936(1994) appoints Richard Goldstone Prosecutor of the ICTY.
August 15: Richard Goldstone takes up position of Prosecutor of the ICTY.12
November 4: The ICTY issues its first indictment (Dragan Nikolić, Kosovo Serb).13
1995
July 11-20: Srebrenica massacre.14
October 11: Fighting in Bosnia and Herzegovina ends.15 UNPROFOR monitors the
ceasefire.
December 14: The Dayton Accords are signed.16
December 20: NATO-led IFOR replaces UNPROFOR.17
December 21: UNSCR 1035(1995) establishes the UN International Police Task Force and
UN civilian office under the UN Mission in BiH (UNMIBH).
1996
February 18: The Rules of the Road procedure is adopted, requiring authorities in BiH to
receive ICTY Prosecutor authorization prior to the arrest and indictment of individuals not
previously indicted before the ICTY. The procedure is in place until October 2004.18
February 29: UNSCR 1047(1996) appoints Louise Arbour Prosecutor of the ICTY.
March: A Human Rights Chamber begins operating in BiH Constitutional Court.19
May 7: First ICTY trial begins (Duško Tadić, Bosnian Serb).20
July 11: ICJ rejects Federal Republic of Yugoslavia‟s objections to the admissibility of BiH‟s
application in the case concerning the application of the Genocide Convention.21
September 13, 14: General Elections in BiH.22
12
ICTY, Former Prosecutors, <http://www.icty.org/sid/101>.
ICTY timeline, <http://www.icty.org/action/timeline/254>.
14
UNGA, „Report of the Secretary-General pursuant to General Assembly resolution 53/35, The fall of Srebrenica‟ (15 November 1999)
Un Doc A/54/549 72.
15
CNN, „Balkan parties agree to cease-fire„ (11 October 1995), <http://edition.cnn.com/WORLD/Bosnia/updates/oct95/1011/index.html>.
16
Security Council, „General Framework Agreement for Peace in Bosnia and Herzegovina‟ attached to Letter dated 29 November 1995
from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General (30
November 1995) UN Doc S/1995/999.
17
SFOR Informer Online, „Transfer of Authority UNPROFOR to IFOR‟, <http://www.nato.int/SFOR/historic-moments/toaifor/t990925b.htm>.
18
ICTY, Working with the Region, <http://www.icty.org/sid/96>.
19
Human
Rights
Chamber
for
Bosnia
and
Herzegovina,
Annual
Report
2002,
<http://www.hrc.ba/ENGLISH/annual_report/2002/INTRO.Htm>.
20
21
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and
Montenegro) [1996] ICJ Rep 595.
22
OSCE, Office for Democratic Institutions and Human Rights - Elections, Bosnia and Herzegovina, <http://www.osce.org/odihrelections/14354.html>.
13
40
October 1: Louise Arbour takes up the position of Prosecutor of the ICTY.
November 27: First ICTY judgment (Dražen Erdemović, a soldier in the Bosnian Serb
Army).23
December 20: NATO-led IFOR is replaced by NATO-led SFOR.24
1997
April 29: The European Council defines the Stabilisation and Association Process (SAP)
conditionalities, including co-operation with the ICTY and Regional co-operation.25
November 22, 23: National Assembly Election in RS.26
1998
September 12, 13: General Elections in BiH.27
November 16: First ICTY conviction of Bosnian Muslims and Croat defendants (Zdravko
Mucić, Hazim Delić, Esad Landžo & Zejnil Delalić, Čelebići Case).
December 12: FBiH parliament confirms inauguration of the Government of FBiH.28
1999
May 26: The European Commission proposes the creation of a SAP for the Western Balkan
countries, offering them for the first time the prospect of EU integration.29
August 11: UNSCR 1259(1999) appoints Carla del Ponte Prosecutor of the ICTY.
September 15: Carla del Ponte takes up the position of Prosecutor of the ICTY.30
December 3: FBiH adopts Law on Amnesty for crimes committed between 1 January 1991
and 22 December 1995, excluding crimes against humanity and international law, crimes
defined under the ICTY Statute, and other specified crimes.31
2000
June 19, 20: The European Council declares BiH a potential candidate for EU
membership.32
November 11: Presidential and National Assembly elections in RS, parliamentary elections
in FBiH.33 In RS the Serb nationalist party forms a coalition government.34
2001
March 12: FBiH Parliament confirms the appointment of the Government of the FBiH.35
August 2: ICTY sentences Bosnian Serb Gen Radislav Krstić to 46 years for his role in the
massacre in Srebrenica. The sentence is later reduced by the Appeals Chamber to 35 years
(Srebrenica-Drina Corps Case).36
23
NATO, „History of the NATO-led Stabilisation Force (SFOR) in Bosnia and Herzegovina,
<http://www.nato.int/SFOR/docu/d981116a.htm>.
25
Conclusions of the General Affairs Council of 29 April 1997,
<http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/gena/028a0057.htm>.
26
OSCE, Office for Democratic Institutions and Human Rights - Elections,Bosnia and Herzegovina, <http://www.osce.org/odihrelections/14354.html>.
27
OSCE, Office for Democratic Institutions and Human Rights - Elections,Bosnia and Herzegovina, <http://www.osce.org/odihrelections/14354.html>.
28
Government of the Federation of Bosnia and Herzegovina, Government of the Federation of Bosnia and Herzegovina in the 19982000 Term, <http://www.fbihvlada.gov.ba/english/sastav%20vlade/vlada%201998-2000.php>.
29
European Commission, Enlargement, Stabilisation and Association Process - Background Documents,
<http://ec.europa.eu/enlargement/press_corner/key-documents/sap_en.htm>.
30
UN Doc S/RES/1259(1999).
31
Official Gazette of FBiH No. 48/99 of 3 December 1999, translation available at
<http://www.unhcr.org/refworld/docid/3ae6b528c.html>.
32
European Council, 19 and 20 June 2000, Conclusions of the Presidency, para. 67,
<http://www.europarl.europa.eu/summits/fei1_en.htm>.
33
OSCE, „Barry Declares Yesterday‟s Elections A Success‟ (12 November 2000),
<http://www.oscebih.org/public/print_news.asp?id=995>.
34
BBC Timeline: Bosnia Hercegovina, <http://news.bbc.co.uk/2/hi/europe/country_profiles/1066981.stm>
35
24
41
November 22: Initial ICTY indictment against Slobodan Milošević for crimes in BiH.37
2002
April 24: BiH joins the Council of Europe.38
July 3: BiH parliament adopts the Law establishing the State Court of BiH.39
July 12: BiH accedes to the European Convention on Human Rights.40
October 5: Federation, parliamentary and local elections.41 Nationalists take the lead at all
three levels.42
2003
January 1: EU Police Mission takes over from UNMIBH.43
February 1: FBiH Parliament confirms the appointment of the Government of the FBiH.44
March 1: BiH Criminal Code enters into force.45
April 2: EU High Representative amends the constitutions of RS and FBiH to remove
references to statehood.46
August 28: UNSCR 1503(2003) endorses the ICTY‟s completion strategy and calls on BiH
and on RS to intensify cooperation with and render all necessary assistance to the ICTY,
particularly in bringing all indictees to the ICTY.
October 2: General Elections in BiH.47
November: The European Commission produces a feasibility study assessing BiH‟s capacity
to implement a Stabilisation and Association Agreement (SAA).48
2004
June 14: The EU decides on the first European Partnership for BiH.49
December 2: NATO-led SFOR is replaced by EU-led EUFOR.50
2005
January 6: Legislation setting up the Special War Crimes Chamber in the State Court of BiH
enters into force.51
January 21: Chief Prosecutor of BiH and State Attorney of Croatia sign a protocol which
establishing direct cooperation on prosecutorial matters in the pre-trial stage.52
36
ICTY, The Cases, <http://www.icty.org/cases/party/711/4>.
Milošević Case Information Sheet, ICTY-IT-02-54,
<http://www.icty.org/x/cases/slobodan_milosevic/cis/en/cis_milosevic_slobodan.pdf>.
38
Council of Europe in Brief, <http://www.coe.int/aboutcoe/index.asp?page=47pays1europe&l=en>.
39
Court of Bosnia and Herzegovina, Frequently Asked Questions, <http://www.sudbih.gov.ba/?opcija=sadrzaj&kat=7&id=15&jezik=e>.
40
41
42
Nicholas Wood, „Nationalists Take Lead In Bosnian Elections; U.S., Others Pushed For Moderate Parties‟ The Washington Post (8
October 2002), <http://www.highbeam.com/doc/1P2-404923.html>.
43
Bosnia and Herzegovina – UNMIBH – Background, <http://www.un.org/Depts/dpko/missions/unmibh/background.html>.
44
45
Translation of the code available at <http://www.iccnow.org/documents/criminal-code-of-bih.pdf>.
46
Decision Enacting the Law on Amendments to the Law on Defence of Republika Srpska, translation available at
<http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=29618, Decision Enacting the Law on Amendments to the Law on
Army of Republika Srpska, translation available at <http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=29620.
47
48
Delegation of the European Union to Bosnia and Herzegovina, BiH's Road to Europe,
<http://www.europa.ba/?akcija=clanak&CID=16&jezik=2&LID=31>.
49
European Council Decision of 14 June 2004 on the principles, priorities and conditions contained in the European Partnership with
Bosnia and Herzegovina, 2004/515/EC, replaced by Council Decision 2006/55/EC, 30 January 2006, OJ L 221 (22 June 2004) 10-16,
replaced by Council Decision 2008/211/EC, OJ L 080 (19 March 2008) 18-31.
50
SFOR Stabilisation Force, ‟Goodbye SFOR, hello EUFOR‟, <http://www.nato.int/SFOR/>.
51
BIRN, Pursuit of Justice, Guide to the War Crimes Chamber of the BiH Court, vol. II (undated) 7.
37
42
March 9: War Crimes Chamber in the State Court of BiH begins to work.53
July 1: Public Prosecutor's Office of the Republic of Serbia and the Prosecutor's Office of
BiH sign an Agreement/Memorandum on Realization and Enhancement of Co-operation in
Fighting all Forms of Grave Crimes.54
September 29: First transfer of indictee from the ICTY to BiH (State Court) under Rule 11bis
(Radovan Stanković, a Bosnian Serb militia man, Foča Case).55
November 25: SAA negotiations open in Sarajevo.56
2006
February 26: The ICJ begins hearings in Genocide Case brought by BiH against Serbia and
Montenegro.57
Early June: EU officials agree that the Office of the High Representative to BiH begin
preparations to close by 30 June 2007.58
October 1: General Elections in BiH.59
November 8: European Commission Report on Enlargement Strategy 2006-2007 notes the
need for further action to locate indictees remaining at large; progress in the prosecution of
war crimes by the Court of BiH; and the need to improve prosecution at Entity-level.60
November 14: The State Court of BiH renders its first judgment in a case transferred by the
ICTY under Rule 11bis (Stanković, sentenced to 16 years‟ imprisonment).61
December 14: NATO admits BiH to its Partnership for Peace programme,62 after overturning
a decision to exclude it because of its failure to apprehend Radovan Karadžić.63
2007
February 26: ICJ rules that Serbia has not committed genocide but has violated its
obligations under the Genocide Convention to prevent genocide and to arrest and transfer
Mladić to the ICTY.64
1 June: Zdravko Tolimir (Commander in the Bosnian Serb Army (Srebrenica case) is
arrested and transferred to the ICTY.65
November 6: European Commission Report on Enlargement Strategy 2007-2008 notes that
BiH still needs to achieve full cooperation with the Tribunal.66
November 28: UNSCR 1786(2007) appoints Serge Brammertz Prosecutor of the ICTY.
December 4: The SAA between BiH and the EU is initialed.67
52
Protocol on Agreement in Establishing Mutual Cooperation in Combating All Forms of Serious Crime between the State Attorney‟s
Office of the Republic of Croatia and the Prosecutor's Office of Bosnia and Herzegovina,
<http://www.tuzilastvobih.gov.ba/files/docs/sadrzaji/eng/MOU_BiH_Croatia_Cooperation_criminal_matters.pdf>.
53
BIRN, Pursuit of Justice, Guide to the War Crimes Chamber of the BiH Court, vol. II (undated) 7.
54
Republic of Serbia, Office of the War Crimes Prosecutor, Co-operation,
<http://www.tuzilastvorz.org.rs/htm>.l_trz/SARADNJA_ENG.htm>.
55
56
European Commission, Enlargement, Bosnia and Herzegovina - Relations with the EU, <http://ec.europa.eu/enlargement/potentialcandidate-countries/bosnia_and_herzegovina/eu_bosnia_and_herzegovina_relations_en.htm>.
57
ICJ list of contentious cases, <http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=f4&case=91&code=bhy&p3=2>.
58
Security Council Report Timeline: Bosnia and Herzegovina Historical Chronology,
<http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2701427/k.75A4/Bosnia_and_Herzegovinabr_Historical_Chronology.htm>.
59
60
COM(2006) 649 final – SEC(2006) 1389, section 5.3, annex 2, <http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2006&nu_doc=649.
61
62
NATO, „Bosnia and Herzegovina, Montenegro and Serbia join NATO Partnership for Peace‟,
<http://www.nato.int/cps/en/natolive/news_22059.htm>.?selectedLocale=en>.
63
BBC Timeline: Bosnia Hercegovina, <http://news.bbc.co.uk/2/hi/europe/country_profiles/1066981.stm>.
64
Application of the Convention on the Prevention and Punishment Judgment, of the Crime of Genocide (Judgment) General List No.
91 [2007], <http://www.icj-cij.org/docket/files/91/7349.pdf>.
65
Tolimir Case Information Sheet, ICTY-05-88/2, <http://www.icty.org/x/cases/tolimir/cis/en/cis_tolimir_en.pdf>
66
COM(2007) 663 final – SEC(2007) 1435 section 2.1, annex, <http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2007&nu_doc=663.
43
2008
January 1: Serge Brammertz take up the position of Prosecutor of the ICTY.68
February 20: BiH and the EU sign the IPA (Instrument for Pre-Accession Assistance)
Framework Agreement.69
February 26: EU Enlargement Commissioner Olli Rehn announces that BiH might be able to
sign the SAA at the end of April.70
February 27: The mandate of the Office of the High Representative in BiH is extended until
political benchmarks are met, including entrenchment of the rule of law, demonstrated inter
alia through adoption of a national strategy for dealing with war crimes.71
April 3: NATO invites BiH to „intensified dialogue‟ towards membership.72
April 10: BiH Parliament adopted two police reform bills.73
June 16: BiH sign the SAA74 and an Interim Agreement on Trade and Trade-Relations
Issues.75
June 21: Former Bosnian Serb chief of regional security services center, Stojan Zupljanin, is
transferred to the ICTY.76
July 21: Former Bosnian Serb leader Radovan Karadžić is arrested in Serbia
July 30: Former Bosnian Serb leader Radovan Karadžić is transferred to the ICTY.77
July 31: BiH and the EU sign the financing agreement for the IPA 2007 National
Programme78
BiH has maintained satisfactory cooperation with the ICTY.79
2009
September: BiH Praliament rejects a proposal to extend the mandate of international judges
and prosecutors until 2012.80
67
Delegation of the European Union to Bosnia and Herzegovina, „BiH's Road to Europe‟,
68
SC Res 1786 (28 November 2006) S/RES/1786/2006.
69
Delegation of the European Union to Bosnia and Herzegovina, „IPA Framework Agreement Signed in Sarajevo‟,
<http://www.europa.ba/?akcija=vijesti&akcija2=pregled&jezik=2&ID=186>.
70
Delegation of the European Union to Bosnia and Herzegovina, „Discussing the EU with Bosnia and Herzegovina representatives„,
<http://www.europa.ba/?akcija=vijesti&akcija2=pregled&jezik=2&ID=190>.
71
Declaration by the Steering Board of the Peace Implementation Council, PIC SB Political Directors,
<http://www.ohr.int/pic/default.asp?content_id=41352>.
72
NATO, „NATO‟s relations with Bosnia and Herzegovina‟,
<http://www.nato.int/cps/en/natolive/topics_49127.htm>.?selectedLocale=en>.
73
74
75
The latter entered into force on 1 July 2008. Delegation of the European Union to Bosnia and Herzegovina, „BiH's Road to Europe‟,
76
77
78
European Commission, Enlargement, Bosnia and Herzegovina - Relations with the EU, <http://ec.europa.eu/enlargement/potentialcandidate-countries/bosnia_and_herzegovina/eu_bosnia_and_herzegovina_relations_en.htm>.
79
Commission of the European Communities, Enlargement Strategy and Main Challenges 2008-2009 COM(2008) 674 final annex 2 (5
November 2008), <http://ec.europa.eu/enlargement/pdf/press_corner/keydocuments/reports_nov_2008/strategy_paper_incl_country_conclu_en.pdf>.
80
BIRN, 'No Mandate Extension for International Judges and Prosecutors' (4 September 2009), <http://www.bim.ba/en/182/10/21995/>;
Erna Mackic, „Decision Close on Bosnia‟s International Judges and Prosecutors‟ BIRN Justice Report (16 September 2009),
<http://www.bim.ba/en/184/10/22245/>.
44
3. CROATIA
3.1 CROATIA INSTITUTIONS
In Croatia, twenty-one county courts (zupanijski sudovi) have first instance jurisdiction over crimes
punishable by over ten years‟ imprisonment,81 including war-related crimes. Appeals are heard by
the Supreme Court. The Law on the Application of the Statute of the International Criminal Court
and on the Prosecution of Criminal Acts against the International Law on War and Humanitarian
Law (ICC Law), enacted in October 2003, grants non-exclusive jurisdiction over international
crimes to the County Courts in Osijek, Rijeka, Split and Zagreb, alongside courts with ordinary
territorial jurisdiction.82 These four courts benefit from special institutional resources, such as
expert judges and criminologists83. Appeals on judgments of the county courts are heard by the
Supreme Court.
81
Croatia Judiciary Act, art 17(1), translation available at <http://www.vsrh.hr/CustomPages/Static/HRV/Files/Legislation__JudiciaryAct_Law-on-Courts_1994.pdf>
82
Law on the Application of the Statute of the International Criminal Court and on the Prosecution of Criminal Acts against the
International Law on War and Humanitarian Law art 12(1), available at
<http://www.vsrh.hr/CustomPages/Static/HRV/Files/Legislation__Implementation-Statute-International-CCPCI.pdf>. (ICC Law)
83
ICC Law, art 13.
45
3.2 CROATIA PROSECUTIONS AND SENTENCING
3.2.1 INDICTMENTS
3.2.1.1 Indictments by year
3.2.1.2 Indictments by ethnicity and year
Since 2005 there have been 22 withdrawals of indictments.
46
3.2.2 TRIAL AND RETRIAL JUDGMENTS
3.2.2.1 Trial and retrial judgments by year
3.2.2.2 Trial and retrial judgments by ethnicity and year
47
3.2.2.3 Trial and retrial judgements by outcome and year
3.2.2.4 Trial and retrial judgments by outcome and year – by ethnicity
3.2.2.4A Trial and retrial judgments by outcome and year – Serbs
48
3.2.2.4B Trial and retrial judgments by outcome and year – Bosnians
In 2009 one Bosnian defendant was acquitted and another was convicted.
3.2.2.4C Trial and retrial judgments by outcome and year – Croats
3.2.2.4D Trial and retrial judgments by outcome and year – Kosovars
One Kosovar defendant was acquitted in 2008.
49
3.2.3 APPEALS
3.2.3.1 Appeals submitted by year
3.2.3.2 Appeals submitted by ethnicity and year
50
3.2.3.3 Appeals decided by year
3.2.3.4 Appeals decided by ethnicity and year
51
52
3.2.3.5 Outcome of appeal on conviction by year
3.2.3.6 Outcome of appeals on conviction by ethnicity and year
Year
Serb
Upheld
2002
Croat
Sent to Retrial
Upheld
--
2003
-6
2004
--
--
2005
-6
1
2006
6
2007
3
3
2008
7
10
2009 (30 Sept)
1
1
5
17
26
16
Multi-year
Sent to Retrial
-10
--
There were no appeals on convictions by defendants of other ethnicities.
--
3.2.3.7 and 3.2.3.8 Outcome of appeals on acquittal by ethnicity and
year
There have been 17 appeal decisions on acquittal. Two acquittals of Serb defendants were upheld
in 2008 and 2 more in 2009. The case of 1 Croat defendant was sent to retrial in 2005, and the
cases of 12 more were sent to retrial in 2007.
3.2.4 SENTENCES
3.2.4.1 Judgments by year (convictions and acquittals)
3.2.4.2 Average sentence by year (convictions only)
Year
Average sentence
2002
2003
No. of cases
--
7
2004
3
--
2005
15
1
2006
9.25
8
2007
6.7 (S.d 3.5)
17
2008
7.5 (S.d 5.1)
12
2009 (30 Sept )
7.1 (S.d 4.2)
42
Multi-Year
7.4 (S.d 4.3)
83
53
54
3.2.4.3 Average sentences by ethnicity and year (convictions only)
Year
Serb
Average
sentence
2003
Croat
No. of
sentences
7
3
2004
--
2005
-8
2007
10
3
2009 (30
Sept)
Multi-Year
Average
sentence
--
15
9.25
7.5 (S.d
5.1)
6.1 (S.d
3.8)
7.3 (S.d
4.4)
No. of
sentences
-1
--
-6 (S.d 3.2)
12
No. of
sentences
--
--
2006
2008
Average
sentence
Other
-14
--
--
--
23
8.3 (S.d 4.6)
18
7
1
49
7.5 (S.d 4.3)
33
7
1
3.2.4.4 Average sentence by crime and year (convictions only)
All defendants were convicted for war crimes.
3.3 CROATIA LANDMARKS
1991
June 25: Croatia declares independence. War breaks out in Croatia.
1992
Croatia becomes involved in the war in BiH.
August: Franjo Tudjman is re-elected president of Croatia.84
1993
April: Croatian Criminal Code is adopted, containing prohibitions on war crimes and
genocide but not on crimes against humanity.85
1994
August 15: Richard Goldstone takes up position of Prosecutor of the ICTY.86
November 4: The Tribunal issues its first indictment (Dragan Nikolić, Kosovo Serb).87
1995
1-3 May: The Croatian Army launches Operation Flash, designed to remove Serb forces
from the self-declared Republic of Krajina. The offensive is the precursor for Operation
„Storm‟.
August 5: The Croatian Army launches Operation Storm, an offensive to retake the Krajina
region, which had been controlled by separatist ethnic Serbs since early 1991. 250,000
Croatian Serbs are estimated to flee to Serbia and to BiH.88
November 12: Erdut Agreement signed by Croatia and Serbia on the reintegration of
Eastern Slavonia into Croatia.89
December 14: Dayton Accords are signed.90
1996
April 19: Croatia adopts the Constitutional Law on the Cooperation of the Republic of
Croatia with the ICTY91 and establishes (July 4) the Office of the Government for cooperation with the International Court of Justice and International Criminal Courts.
May 7: First ICTY trial begins (Duško Tadić, Bosnian Serb, „Prejidor‟ case).92
September 25: entry into force of amnesty law for crimes committed during the 1991-1995
war. The amnesty excludes „perpetrators of the most serious violations of humanitarian law
having the character or war crimes‟, including acts of genocide.93
84
BBC Timeline: Croatia, <http://news.bbc.co.uk/2/hi/europe/country_profiles/1097156.stm>.
Thierry Cruvellier and Marta Valinas, Croatia: Selected Developments in Transitional Justice (ICTJ, 2006) 14
86
87
88
UNHCR, „Home again, 10 years after Croatia's Operation Storm‟ (5 August 2005), <http://www.unhcr.org/42f38b084.html>.
89
Erdut Agreement, available at <http://www.pcr.uu.se/gpdatabase/peace/Cro%2019951112.pdf>.
90
November 1995) UN Doc S/1995/999.
91
Constitutional Law on the Cooperation of the Republic of Croatia with the ICTY, Narodne novine No. 32/96, available at
<www.icty.org/x/file/Legal%20Library/Member_States_Cooperation/implementation_legislation_republic_of_croatia_1996_en.pdf>.
92
Tadić Case, ICTY-IT-94-1, ICTY timeline, <http://www.icty.org/action/timeline/254 .
93
Law concerning abolition of criminal prosecutions and procedures for criminal acts committed in armed conflict and in the war against
the Republic of Croatia, RC Official Gazette No. 58/92, replaced by the Law on General Amnesty, 5 October 1996, HRV-110, translation
available at <http://www.unhcr.org/refworld/docid/3ae6b4de2c.html>. The exemption from benefit noted above appears in section 3 of
the 1996 law but existed in some form previously (original not found).
85
55
October 1: Louise Arbour takes up the position of Prosecutor of the ICTY.94
November 6: Croatia joins the Council of Europe.95
November 27: First ICTY judgment (Dražen Erdemović, a soldier in the Bosnian Serb
Army).96
1997
June 15: Presidential elections.98 Tudjman re-elected as president. The EU decides not to
invite Croatia to start membership talks, criticising the Tudjman regime's authoritarian
tendencies.99
November 5: Croatia accedes to the ECHR.100
1998
November 16: First ICTY conviction, of Bosnian Muslims and Croat defendants (Zdravko
1999
May 26: The Commission proposes the creation of a SAP for the Western Balkan countries,
offering them for the first time the prospect of EU integration.101
September 15: Carla del Ponte takes up position of Prosecutor of the ICTY.102
December 10: President Tudjman dies.103
2000
January 2, 3: Parliamentary elections.104 The Social Democrats and Social Liberals establish
a coalition government.105
January 24 and February 7: Extraordinary presidential elections. Stjepan Mesić of the
Croatian People‟s Party (HNS) is elected president.
May 24: The European Commission proposes the opening of negotiations for a Stabilisation
and Association Agreement (SAA).106
June 19, 20: The European Council states that Croatia is a potential candidate for EU
membership.107
September 18: Croatia begins to benefit from the autonomous trade measures granted
unilaterally by the EU to the countries of the SAP.108
94
UN Doc S/RES/1047(1996).
97
Conclusions of the European General Affairs Council of 29 April 1997,
98
OSCE, Office for Democratic Institutions and Human Rights - Elections, Croatia, <http://www.osce.org/odihr-elections/14356.html>.
99
100
101
102
UN Doc S/RES/1259 (1999).
103
104
105
106
Commission report on the feasibility of negotiating the Stabilisation and Association Agreement with the Republic of Croatia:
COM(2000) 311 (24 May 2000); Bull. 5-2000
107
Santa Maria da Feira European Council, 19 and 20 June 2000, conclusions of the presidency, para. 67,
108
Communication from the Commission - Opinion on Croatia's Application for Membership of the European Union, COM/2004/0257
final, part A, <http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=504DC0257
(original source not available online).
95
96
56
2001
February 21: Mirko Norac gives himself up to a Croatian court on the understanding that he
would not be extradited to the ICTY.109
May 14: The SAA between Croatia and the EU is initialed.110
July: Prime Minister Račan survives a no-confidence vote following his decision to comply
with an ICTY request for the extradition of Rahim Ademi and Ante Gotovina.
July 25: Rahim Ademi surrenders to the ICTY.111 Ante Gotovina goes into hiding.112
October 8: Initial ICTY indictment against Slobodan Milošević for crimes committed in
Croatia.113
October 29: Croatia and the EU sign the SAA.114
2002
11 July: Croat Chief State Prosecutor instructs the Justice Department to review
approximately 1,850 cases where indictments had not yet reached the trial phase, in order to
ensure that the evidentiary standards used in these cases conformed to international
standards.115
2003
February 21: Croatia presents its application for EU Membership.116
March 24: Norac sentenced by the Rijeka County Court to 12 years (Gospić Massacre
Case).117
August 28: UNSCR 1503(2003) endorses the ICTY‟s completion strategy and calls on
Croatia to intensify cooperation with and render all necessary assistance to the ICTY,
particularly in bringing Ante Gotovina and all other indictees to the ICTY.
October 1: Croatia adopted the Law on Witness Protection.118
November 4: Croatia adopts the Law on the Application of the Statute of the ICC and on the
Prosecution of Criminal Acts against the International Law on War and Humanitarian Law
(ICC Law).119
November 23: Parliamentary elections.120 Ivo Sanader of the Croatian Democratic Union
(HDZ) subsequently leads a minority government.121
2004
March 26: UNSCR 1534(2003) reiterates the call on Croatia to bring Ante Gotovina and all
other indictees to the ICTY.
109
final, part A, <http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=504DC0257>,
<http://www.mvpei.hr/ei/download/2003/09/16/Interim_Agreement.pdf>.
111
Norac and Ademi Case Information Sheet, ICTY-IT-04-78, <http://www.icty.org/x/cases/ademi/cis/en/cis_ademi_norac.pdf>.
112
113
114
Delegation of the European Commission to Croatia, Key Events, <http://www.delhrv.ec.europa.eu/?lang=en&content=63>.
115
OSCE, „BACKGROUND REPORT: DOMESTIC WAR CRIME TRIALS 2002 (undated) 2,
<http://www.osce.org/documents/mc/2004/03/2185_en.pdf>.
116
Delegation of the European Commission to Croatia, Key Events, <http://www.delhrv.ec.europa.eu/?lang=en&content=63>.
117
118
Law on Witness Protection, available at <http://www.vsrh.hr/CustomPages/Static/HRV/Files/Legislation__Witness-protectionAct.pdf>.
119
Translation available at
<http://www.nottingham.ac.uk/shared/shared_hrlcicju/Croatia/November_2003_Law_on_the_Application_of_the_Statute_of_the_Intern
ational_Criminal_Court__English_.pdf
120
121
110
57
April: The ICTY Prosecutor states that Croatia is co-operating fully with ICTY, but needs to
take all necessary steps to ensure that remaining indictee (Gotovina) is located and
transferred to ICTY.122
April 20: The European Commission issues a positive opinion on Croatia‟s application for
EU membership.123
May 21-22: Representatives of the ICTY take part in the first session of a training
programme for Croatian Judges and Prosecutors involved in war crimes cases.124
June 17, 18: The European Council confirms Croatia as candidate country.125
August 5: The UN Security Council calls upon Croatia to intensify its co-operation with ICTY
and in particular to surrender indicted fugitive General Ante Gotovina to the Tribunal..126
September 2: The ICTY Prosecutor files a motion for referral of the case against Ademi and
Norac to Croatia under rule 11bis.127
October 17: Croatia adopts ICC Law.128
December: Parliament adopts the Law on International Legal Assistance in Criminal Matters,
setting out procedures for various forms of legal assistance between Croatian and foreign
judicial organs.129
December 13: EU Council decides on the first European Partnership for Croatia, and the
The European Council and Commission both approve the SAA .130
December 16, 17: The European Council sets 17 March for opening accession negotiations
with Croatia, conditional upon Croatia‟s full cooperation with the ICTY.131
2005
January 2, 15: Presidential elections. Stjepan Mesić is re-elected.132
January 21: Croatia and BiH sign a protocol establishing a mechanism for direct cooperation
on prosecutorial matters in the pre-trial stage.133
February 1: The SAA enters into force.134
February 5: Serb Public Prosecutor and War Crimes Prosecutor sign with Croatian Chief
Prosecutor an Agreement Memorandum on Realization and Enhancement of Co-operation in
Fighting All Forms of Grave Crimes.135
122
final, part B.1.3.1, <http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=504DC0257.
123
COM(2004) 257 final, <http://eur-lex.europa.eu/LexUriServ/site/en/com/2004/com2004_0257en01.pdf>.
124
ICTY, „ICTY to Take Part in the Training Programme for Croatian Judges and Prosecutors Involved in War Crimes Cases‟ Press
Release, <http://www.icty.org/sid/8423>.
125
Brussels European Council 17 and 18 June 2004, Presidency Conclusions, 10679/2/04 REV 2,
<http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/81035.pdf>.
126
final, part B.1.3.1, <http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=504DC0257>.
127
128
final, part B.1.3.1 6, <http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=504DC0257>.
129
http://www.osce.org/documents/mc/2005/04/14056_en.pdf>.
130
Council Decision of 13 September 2004 on the principles, priorities and conditions contained in the European Partnership with
Croatia (2004/648/EC), replaced by Council Decision 2006/145/EC (20 February 2006) OJ L 55/30 replaced by Council Decision
2008/119/EC (12 February 2008) OJ L 42/51, Council and Commission Decision (13 December 2004) concerning the conclusion of the
Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the
Republic of Croatia, of the other part, OJ L26/1 (28 January 2005) operative para 1.
131
Brussels European Council (16, 17 December 2004) Presidency Conclusions, 16238/1/04 REV 1, para 5.
132
133
Available at <http://www.tuzilastvobih.gov.ba/files/docs/sadrzaji/eng/MOU_BiH_Croatia_Cooperation_criminal_matters.pdf>.
134
EU Commission Enlargement, „EU Croatia Relations‟, <http://ec.europa.eu/enlargement/candidatecountries/croatia/eu_croatia_relations_en.htm>.
135
58
March: ICTY Chief Prosecutor concludes that Croatia is no longer fully cooperating with the
Tribunal.136
March 16: The European Council decides to postpone the start of accession negotiations
with Croatia but adopts a framework for negotiations.137
February 9: ICTY Prosecutor files a motion for referral under Rule 11bis of the Vukovar
Case to Serbia or Croatia.138
June 9: The ICTY Prosecutor files motion for withdrawal of the motion of referral of the
Vukovar Case.139
June 30: The ICTY grants the motion for withdrawal of motion for referral of the Vukovar
Case.140
September 14: The Referral Bench renders its decision to refer Norac and Ademi (Medac
Pocket Case) to Croatia.141
October 3: ICTY Chief Prosecutor assesses that Croatian cooperation with the ICTY is
full.142
October 3: EU-Croatia accession negotiations begin.143 The Council agrees that less than
full cooperation with ICTY at any stage would affect the overall progress of negotiations and
could be grounds for their suspension.144
November 1: The ICTY refrers Norac and Ademi (Medac Pocket Case) to Croatia under
Rule 11bis.145
November 9: European Commission issues Croatia 2005 Progress Report.146
December 10: Ante Gotovina is arrest in Spain and transferred to the ICTY.147
2006
July 28: Croatia and Montenegro sign an Agreement on Cooperation in Prosecution of War
Crimes, Crimes against Humanity and Genocide.148
October 13: Croatia and Serbia sign an Agreement on Cooperation in Criminal Prosecution
of Perpetrators of War Crimes, Crimes Against Humanity and Genocide.149
Croatia‟s full cooperation with the ICTY continues. Prosecution of war crimes in Croatia
continues to improve, but bias against Serb defendants still needs to be fully addressed.150
2007
November 6: European Commission Report on Enlargement Strategy 2007-2008 notes
insufficient progress on reform to the judicial system and in war crimes proceedings. Full
136
European Commission, Croatia 2005 Progress Report, {COM (2005) 561 final} 24, (9 November 2005).
Council Conclusions on Croatia, 16 March 2005, <http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/gena/84190.pdf>.
Prosecutor v. Mile Mrkšić, Miroslav Radić, Veselin Šljivančanin (Referral Bench Decision on Prosecutor‟s Motion to Withdraw Motion
and Request for Referral of Indictment under Rule 11bis) ICTY-IT-95-13/1-PT (30 June 2005).
139
140
141
142
ICTY, „Assessment by the Prosecutor of the Co-operation Provided by Croatia‟, Press Release, <http://www.icty.org/sid/8535>.
143
European Commission Enlargement, Croatia – Key Documents, <http://ec.europa.eu/enlargement/candidatecountries/croatia/key_documents_en.htm>.
144
Negotiating Framework, Luxembourg (3 October 2005), <http://ec.europa.eu/enlargement/pdf/st20004_05_hr_framedoc_en.pdf>.
145
,Norac and Ademi Case Information Sheet, ICTY-IT-04-78, <http://www.icty.org/x/cases/ademi/cis/en/cis_ademi_norac.pdf>.
146
European Commission, Croatia 2005 Progress Report, {COM (2005) 561 final}, 9 November 2005.
147
UN Doc S/RES/1503 (2003) operative para. 2.
148
Available at <http://www.undp.org.me/home/archive/tj.html>.
149
150
COM(2006) 649 final – SEC(2006) 1389 annex 2, <http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2006&nu_doc=649
137
138
59
cooperation with the ICTY continues. Impartial prosecution of cases transferred from the
ICTY to Croatia and of domestically-initiated cases needs to be ensured.151
November 25: Parliamentary elections.152
2008
January: Parliament approves an HDZ-led government with Serb Deputy Prime Minister.153
January 1: Serge Brammertz takes up the position of Prosecutor of the ICTY.154
February 12: The European Council adopts the new Accession Partnership with Croatia.155
March 11: Trial of Ante Gotovina, Ivan Cermak and Mladen Markac (Operation Storm case)
begins.156
April: NATO invites Croatia to start accession talks towards NATO membership.157
May 30: The Zagreb District Court sentences Mirko Norac to seven years‟ imprisonment.
Ademi is acquitted of all charges.158
July 9: NATO Allies sign protocol on Croatia‟s accession.159
the final stage of accession negotiations with Croatia can be reached by the end of 2009,
provided that Croatia fulfils all the necessary conditions, including the pursuit of war crime
trials and ICTY access to documents.160
2009
April 1: Croatia becomes a member of NATO.161
151
COM(2007) 663 final – SEC(2007) 1435 annex, <http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2007&nu_doc=663.
152
153
154
UN Doc S/RES/1786/2006.
155
Council Decision 2008/119/EC of 12 February 2008 on the principles, priorities and conditions contained in the Accession
Partnership with Croatia and repealing Decision 2006/145/EC, OJ L 042, 16/02/2008 p. 51-62.
156
157
NATO, „NATO‟s Relations with Croatia‟, <http://www.nato.int/cps/en/natolive/topics_31803.htm>.
158
159
NATO, „NATO‟s Relations with Croatia‟, http://www.nato.int/issues/nato_croatia/index.htm>.l#framework>.
160
Commission of the European Communities, Enlargement Strategy and Main Challenges 2008-2009 COM(2008) 674 final annex 2 (5
November 2008), <http://ec.europa.eu/enlargement/pdf/press_corner/keydocuments/reports_nov_2008/strategy_paper_incl_country_conclu_en.pdf>.
161
NATO, „NATO‟s Relations with Croatia‟, <http://www.nato.int/cps/en/natolive/topics_31803.htm>.
60
4. SERBIA
4.1 SERBIA INSTITUTIONS
From 1996 until 2003, jurisdiction in Serbia over international war-related crimes lay with 30 district
courts. The 2003 Law on Organization and Competence of Government Authorities in War Crimes
Proceedings established a special War Crimes Chamber within the District Court (WCC) in
Belgrade, which has exclusive first instance jurisdiction over crimes against humanity and
international law as defined under Serb law, serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since 1 January 1991 as stipulated in the
Statute of the ICTY; and the crime of aiding a war crimes offender under Serb law. 162 The threemember trial panels of the WCC are composed of professional judges only, as opposed to district
courts‟ panels which comprise two professional and three lay judges. All judges are Serb nationals.
Appeals on judgments of the districts courts and of the WCC are heard by the Supreme
Court.163 By 2010 an Appellate court system is scheduled to be established, sitting in Belgrade,
Kragujevac, Nis, and Novi Sad. With the establishment of the new appellate courts, the Supreme
Court of Serbia will function as a court of cassation, rendering decisions on appeals issued by the
appellate courts below.164
162
Law on Organization and Jurisdiction of Government Authorities in Prosecuting Perpetrators of War Crimes, art 9. Indictments based
on the war crimes indictments that had been confirmed before the Law on Organization and Jurisdiction of Government Authorities in
Prosecuting Perpetrators of War Crimes entered into force (1 July 2003) continue to be handled by the district courts, Law on
Organization and Jurisdiction of Government Authorities in Prosecuting Perpetrators of War Crimes, art 21.
163
Law on Organization and Jurisdiction of Government Authorities in Prosecuting Perpetrators of War Crimes, arts 27)1_and 9.
164
American Bar Association, Overview of the Serbian Legal System (2007) 3-4, <http://www.abanet.org/rol/publications/serbia-legalsystem-eng.pdf>.
61
4.2 SERBIA PROSECUTIONS AND SENTENCING
4.2.1 INDICTMENTS
62
The single indictment of a Bosnian is still pending trial.
63
Two judgments were given in 1996 in the district courts, the outcome of which is unknown.
4.2.3 APPEALS
64
65
4.2.3.5 Outcome of appeals on conviction by year
There have been no reversals of convictions
66
Six convictions by the WCC have been upheld on appeal: one of a Kosovar defendant in 2007, 4
of Serb defendants in 2008 and 1 of a Serb defendant in 2009; the cases of 16 Serb defendants
have been sent to retrial, 15 in 2006 and one in 2008.
Seven convictions in the Serb district courts (of Serb defendants) have been upheld (2 in 1998, 4
in 2003 and 3 in 2008); the cases of 10 Serb defendants have been sent to retrial (5 in 2001, 5 in
2004).
4.2.3.7 and 4.2.38 Outcome of appeals on acquittal by ethnicity and year
Two acquittals in the district courts were appealed in 2007. In 2008 the appeal instance sent these
cases to retrial.
With regard to acquittals by the WCC: one appeal against the acquittal of a Serb defendant was
submitted in 2007 and upheld in 2008. Two appeals against acquittals of Serb defendants were
submitted, one in 2006 and one in an unknown dated. Both cases were sent to retrial in 2006. In
addition, 6 appeals against acquittals are still pending: one submitted in 2008 regarding a Serb
defendant, 4 appeals submitted in 2009 regarding Serb defendants, and 1 appeal submitted in
2009 regarding a Kosovar defendant.
67
4.2.4 SENTENCES
4.2.4.2 and 4.2.4.3 Average sentence by year (convictions only)
Year
Average
sentence
No. of
sentences
1992
--
1993
--
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009 (30
Sept)
Multi-Year
----5.2
2
----
11.5
7.8
2
8
-20
18.8
13
16.1 (S.d 11.6)
1
4
1
10
10 (S.d 5.8)
25
14.1 (S.d 7.4)
53
All defendants were Serbs except one Kosovar defendant sentenced in 2007.
68
Year
War Crimes
Average
sentence
Non-international crimes
1992
No. of
sentences
--
1993
--
--
1994
--
--
1995
--
--
1996
--
--
1997
--
--
1998
10
1
Average
sentence
No. of
sentences
--
0.33
1
1999
--
--
2000
--
--
2001
--
--
2002
11.5
2
2003
5
1
2004
-8.3
--
7
--
2005
20
1
--
2006
18.8
4
--
2007
13
1
--
2008
11.6
7
10 (S.d 5.8)
25
14.5 (S.d
5.9)
42
2009 (30 Sept)
Multi-Year
26.7
3
--
12.6
11
69
4.3 SERBIA LANDMARKS
1992
The UN imposes sanctions on the Federal Republic of Yugoslavia (FRY).165
April 27: Constitution of the FRY is adopted.
The FRY adopts the SFRY‟s Criminal Code as its own Basic Criminal Code.
1993
1994
August 15: Richard Goldstone takes up the position of Prosecutor of the ICTY.166
November 4: The Tribunal issues its first indictment (Dragan Nikolić, Bosnian Serb).167
1995
November 22: UNSCR 1022(1995) lifts sanctions off FRY.
December 14: The Dayton Accords are signed.168
August 5: The Croatian Army launches Operation Storm, designed to retake the Krajina
region, which had been controlled by separatist ethnic Serbs since early 1991. Some
250,000 Croatian Serbs are estimated to flee to Serbia and to BiH.169
1996
May 7: First ICTY trial begins (Duško Tadić, Bosnian Serb).170
July 11: The ICJ rejects Serbia‟s objections to the admissibility of BiH‟s application on the
application of the Genocide Convention.171
October 1: Louise Arbour takes up the position of Prosecutor of the ICTY.172
November 27: First ICTY judgment (Dražen Erdemović, Bosnian Serb).173
November 1996–March 1997: Milošević cancels the results of opposition victories in local
elections. Following opposition protests over election fraud he is forced to recognize
opposition victories in most major cities and towns in Serbia.174
1997
September 21, October 5: Parliamentary and presidential elections.176
December 7, 21: Rerun of presidential elections.177 Milutinović is elected president of Serbia.
Milošević becomes president of the Federal Republic of Yugoslavia.178
165
UN Docs S/RES/752(1992), S/RES/757(1992), S/RES/758(1002), S/RES/760(1992).
167
168
November 1995) UN Doc S/1995/999..
169
UNHCR, „Home again, 10 years after Croatia's Operation Storm (5 August 2005), <http://www.unhcr.org/42f38b084.html>.
170
171
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and
Montenegro) [1996] ICJ Rep 595.
172
UN Doc S/RES/1047(1996).
173
174
Andrej Krickovic , „A Serbian Opposition ot Milosevic?‟,<http://www.salon.com/news/feature/1999/05/03/serbs/print.html>.
175
Conclusions of the General Affairs Council of 29 April 1997,
176
OSCE, Office for Democratic Institutions and Human Rights – Serbia, <http://www.osce.org/odihr-elections/14610.htm>.l>
166
70
1998
Escalation of the conflict between Kosovo Liberation Army and Serb forces. Serb forces
launch brutal crackdown. Hundreds of thousands of Kosovo Albanians flee.179
November 16: First ICTY conviction of Bosnian Muslims and Croat defendants (Zdravko
November 17: UNSCR 1207(1998) condemns Serbia for failing to execute three arrest
warrants.
1999
January: conflict in Kosovo flares up again.180
March 24: NATO bombing campaign against Serb military and security targets ('Operation
Allied Force') begins.181
May 24: Initial ICTY indictment against Slobodan Milošević for crimes committed in
Kosovo.182
May 26: The European Commission proposes the creation of a SAP for the Western Balkan
countries, offering for the first time a prospect of EU integration.183
June 9: Military Technical Agreement („Kumanovo Agreement‟) is signed between NATO-led
KFOR and the Governments of the Federal Republic of Yugoslavia and the Republic of
Serbia, concluding the „Kosovo War‟.184
September 15: Carla del Ponte takes up the position of Prosecutor of the ICTY.185
2000
June 19, 20: The European Council states that Serbia is a potential candidate for EU
membership.186
September 24: Federal (presidential and parliamentary) and local elections.187
October 6: Milošević quits presidency after being accused of rigging presidential election.188
Koštunica sworn in as President.189
November 1: Serbia (Federal Republic of Yugoslavia) admitted to the UN.190
November: Serbia signs the Framework Agreement Federal Republic of Yugoslavia-EU for
the Provision of Assistance and Support by the EU to the Federal Republic of Yugoslavia.
Serbia benefits from Autonomous Trade Preferences from the EU.191
December 23: Parliamentary elections.192 Reformist alliance wins. Zoran Đinđić becomes
Serb Prime Minister.193
177
OSCE, Office for Democratic Institutions and Human Rights – Serbia, <http://www.osce.org/odihr-elections/14610.html>.
BBC Timeline: Serbia, <http://news.bbc.co.uk/2/hi/europe/country_profiles/5055726.stm>.
NATO, „NATO‟s role in relation to the conflict in Kosovo‟, <http://www.nato.int/kosovo/history.htm>.
180
181
European Commission, Enlargement, EU-Kosovo relations, <http://ec.europa.eu/enlargement/potentialcandidates/kosovo/relation/index_en.htm>.
182
183
184
NATO, Military Technical Agreement, <http://www.nato.int/kosovo/docu/a990609a.htm>.
185
UN Doc S/RES/1259 (1999).
186
Santa Maria da Feira European Council, 19 and 20 June 2000, Conclusions of the presidency, para. 67,
187
OSCE, Office for Democratic Institutions and Human Rights – Elections, Serbia, <http://www.osce.org/odihr-elections/14615.html>.
188
BBC, „2000: Milosevic quits, street celebrations continue‟,
<http://news.bbc.co.uk/onthisday/hi/dates/stories/october/6/newsid_2516000/2516673.stm>.
189
190
UN Doc A/RES/55/12.
191
European Commission, Enlargement, EU-Serbia Relations, <http://ec.europa.eu/enlargement/potential-candidatecountries/serbia/eu_serbia_relations_en.htm>.
192
178
179
71
2001
March 29: Serb President Koštunica establishes a Truth Commission, which is met with
distrust by human rights groups in Serbia.194
April 1: Milošević is arrested in Belgrade and charged with misuse of state funds and abuse
of office.195
June 28: Serb government headed by PM Đinđić decides to extradite Milošević to the
ICTY.196
June 29: Slobodan Milošević is transferred to the ICTY.197
March: Serb authorities issue arrest warrants for Serb President Milutinović and three other
top high-ranking officials. One of them, former Interior Minister Stojiljković, commits
suicide.198
2002
February 12: The Milošević trial begins at the ICTY.199
September 29, October 13, December 8: Presidential elections.200
2003
February 12: The Truth Commission, which has never functioned, is dissolved.201
January 20: Former Serb president Milutinović surrenders to the ICTY.202
March 12: Serb Prime Minister Djindjić is assassinated by members of the Special
Operations Unit in Belgrade.203
April 3: Serbia joins the Council of Europe.204
30 May, June 11: Jovica Stanišić and Franko Simatović, former top two Serb security
service officials, are transferred to the ICTY.205
July 1: Law on Organization and Jurisdiction of Government Authorities in Prosecuting
Perpetrators of War Crimes is enacted, establishing the War Crimes Chamber of the District
Court of Belgrade (WCC) and the Office of the War Crimes Prosecutor, both of which have
exclusive jurisdiction over war crimes cases.206
August 28: UNSCR 1503(2003) endorses the ICTY‟s completion strategy and calls on
Serbia to intensify cooperation with and render all necessary assistance to the ICTY,
particularly in bringing Karadžić, Mladić and all other indictees to the ICTY.
October 2003: The WCC is set up.207
November 26: Presidential elections.208
December 28: Parliamentary elections.209
193
International Center for Transitional Justice, „Serbia And Montenegro: Selected Developments In Transitional Justice‟ (October 2004)
7-9, <http://www.ictj.org/images/content/1/1/117.pdf>.
195
196
197
198
199
200
OSCE, Office for Democratic Institutions and Human Rights – Serbia, <http://www.osce.org/odihr-elections/14610.htm>.l>
201
8, <http://www.ictj.org/images/content/1/1/117.pdf>.
202
„Former Serbian President Surrenders to ICTY‟ (January 21, 2003), <http://www.unwire.org/unwire/20030121/31532_story.asp.
203
„Serbian premier assassinated‟ (12 March 2003), <http://news.bbc.co.uk/2/hi/europe/2843433.stm>.
204
205
ICTY Case Information Sheet, Simatovic, <http://www.icty.org/x/cases/stanisic_simatovic/cis/en/cis_stanisic_simatovic_en.pdf>.
206
Available at <http://www.osce.org/documents/fry/2003/07/446_en.pdf>.
207
11, <http://www.ictj.org/images/content/1/1/117.pdf>.
208
209
194
72
2004
March 3: Serbia ratifies the European Convention on Human Rights.210
March 26: UNSCR 1534(2003) reiterates the call on Serbia to bring Karadžić and Mladić and
all other indictees to the ICTY.
March 3: Koštunica becomes prime minister of Serbia in centre-right coalition government
which relies on support of Socialist Party.211
March 9: Serbia's first major war crimes trial (Vukovar Case) opens in Belgrade before the
WCC.212
June 13, 27: Presidential elections.213 Democratic Party leader Tadić is elected President.214
June 14: The EU decides on the first European Partnership for Serbia.215
October 2004: European Council conclusions open up a process for a Stabilisation and
Association Agreement (SAA) with Serbia.216
2005
February 5: Serb Public Prosecutor and War Crimes Prosecutor sign with Croatian Chief
Prosecutor an Agreement/Memorandum on Realization and Enhancement of Co-operation in
Fighting All Forms of Grave Crimes.217
July 1: Public Prosecutor's Office of the Republic of Serbia and the Prosecutor's Office of
BiH sign an Agreement Memorandum on Realization and Enhancement of Co-operation in
Fighting all Forms of Grave Crimes.218
February 9: ICTY Prosecutor files a motion for referral under Rule 11bis of the Vukovar
Case to either Serbia or Croatia.219
June 9: The ICTY Prosecutor files motion for withdrawal of the motion of referral of the
Vukovar Case.220
June 30: The ICTY grants the motion for withdrawal of motion of referral of the Vukovar
Case.221
September: Serb Law on Witness Protection is adopted.222
October: Launch of the negotiations for an SAA with Serbia.223
210
212
Vesna Peric Zimonjic . „Vukovar Massacre Trial Opens in Belgrade‟ (9 March 2004),
<http://www.independent.co.uk/news/world/europe/vukovar-massacre-trial-opens-in-belgrade-565714.html>.
213
214
215
Council Decision 2004/520/EC (14 June 2004) on the principles, priorities and conditions contained in the European Partnership with
Serbia and Montenegro including Kosovo as defined by the United Nations Security Council Resolution 1244 (10 June 1999), OJ L 227,
(26 June 2004) 21-34, replaced by Council Decision 2006/56/EC (30 January 2006) OJ L 35, (7 February 2006) 32–56, replaced by
Council Decision 2008/213/EC (18 February 2008), OJ L 80, (19 March 2008) 46-70
216
217
218
219
220
221
222
International Center for Transitional Justice, „Against the current: War Crimes Prosecutions in Serbia‟ (2007) 22,
<http://www.ictj.org/images/content/7/8/780.pdf>.
223
211
73
2006
January 1: New Serb Criminal Code enters into force,224 including crimes against humanity.
The new offense applies only prospectively.225
February 26: ICJ begins hearings in Genocide Case (BiH v. Serbia and Montenegro).226
March 11: Milošević dies in his cell in the Hague.
May 3: SAA negotiations called off due to lack of progress on Serbia's co-operation with the
ICTY.227
June 4: Montenegro declares independence.228
October 13: Serb War Crimes Prosecutor and Croatian Chief State Prosecutor sign an
Agreement on Cooperation in Criminal Prosecution of Perpetrators of War Crimes, Crimes
Against Humanity and Genocide.229
Serbia has not yet met its international obligation to fully co-operate with the ICTY, which is
the condition for resuming the SAA negotiations.230
November 17: First referral from the ICTY to Serbia under Rule 11bis (Vladmimir Kovačević,
Serb, Dubrovnik Case).231
December 14: NATO admits Serbia to its Partnership for Peace programme,232 despite
having earlier expressed reservations over the failure to apprehend war crime suspects.233
2007
January 21: Parliamentary elections.234 The right-wing Serb Radical Party (SRS) makes
gains but fails to win enough seats to form a government.235
February 26: ICJ rules that the Serbia has not committed genocide but has violated its
obligations under the Genocide Convention to prevent genocide and to arrest and transfer
Mladić to the ICTY.236
March 26: UN Secretary General Ban Ki-moon forwards to the UN Security Council the
Comprehensive Proposal for the Kosovo Status Settlement.237
June 13: SAA negotiations with Serbia resume.238
June 17: Former Serb Police General Vlastimir Đorđević is arrested in Montenegro and
transferred to the ICTY.239
November 7: The SAA with Serbia is initialed.240
224
Available at <http://www.osce.org/documents/fry/2006/02/18196_en.pdf>.
Serb Criminal Code, art 371.
226
ICJ list of contentious cases, <http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=f4&case=91&code=bhy&p3=2>.
227
228
BBC, „Montenegro Declares Independence‟, <http://news.bbc.co.uk/2/hi/europe/5043462.stm>.
229
230
COM(2006) 649 final – SEC(2006) 1389 section 5.3, annex 2, <http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2006&nu_doc=649
231
232
NATO, „Bosnia and Herzegovina, Montenegro and Serbia join NATO Partnership for Peace‟,
<http://www.nato.int/cps/en/natolive/news_22059.htm>.?selectedLocale=en>.
233
234
235
236
Application of the Convention on the Prevention and Punishment Judgment, of the Crime of Genocide (Judgment) General List No.
91 [2007], <http://www.icj-cij.org/docket/files/91/7349.pdf>.
237
UN Doc S/2007/168 and Add.1 (26 March 2007).
238
239
ĐorĎević Case information sheet, ICTY-IT-05-87/1, <http://www.icty.org/x/cases/djordjevic/cis/en/cis_djordjevic_en.pdf>.
240
225
74
Serbia had achieved early positive results on cooperation with the ICTY, which enabled the
Commission to finalise negotiations on an SAA. Serbia has still to meet its international
obligation to fully cooperate with the ICTY before the SAA can be signed.241
2008
January 1: Serge Brammertz take up the position of Prosecutor of the ICTY.242
January 20 and February 3: Presidential elections.243 Democratic Party leader Boris Tadić
re-elected president.244
February 17: Kosovo declares independence.245 Serbia regards the declaration as illegal.246
March 9: Serb Prime Minister Koštunica resigns following internal controversy over Kosovo's
declaration of independence.247
April 29: The EU and Serbia sign the SAA and the Interim Agreement on Trade and Traderelated issues.248
May 11: Parliamentary elections.249
June 12: Former Bosnian Serb police chief Zupljanin is arrested in Serbia and transferred to
the ICTY.250
July: Mirko Cvetković sworn in as new Prime Minister, leading a coalition government of the
pro-EU Democratic Party and the Socialist Party.251
July 30: Serbia transfers Karadžić to the ICTY.252
September 9: Serb parliament ratifies the SAA.253
Serbia needs to build on positive developments through full cooperation with ICTY. It should
be possible to grant candidate status to Serbia in 2009, if this and other conditions are
met.254
2009
March: Serbia concludes an agreement on its first Individual Partnership Programme with
NATO.255
241
COM(2007) 663 final – SEC(2007) 1435 section 2.1, annex, <http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2007&nu_doc=663.
242
UN Doc S/RES/1786(2006).
243
244
245
Republic of Kosovo Assembly, Documents, <http://www.assembly-kosova.org/?cid=2,100,45>.
246
UN Doc S/2008/103.
247
Security Council Report, Kosovar Historical Chronology,
<http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2693009/k.2A9E/Kosovobr_Historical_Chronology.htm>.
248
249
250
251
252
ICTY timeline, <http://www.icty.org/action/timeline/254
253
254
COM(2008) 674 final, 5 November 2008, sections 3.2, 4.5, section 3.1, 4.11, <http://ec.europa.eu/enlargement/pdf/press_corner/keydocuments/reports_nov_2008/strategy_paper_incl_country_conclu_en.pdf>.
255
NATO, NATO‟s Relations with Serbia, <http://www.nato.int/cps/en/natolive/topics_50100.htm>.
75
5. KOSOVO
5.1 KOSOVO INSTITUTIONS
From the cessation of hostilities in June 1999 until 2008 Kosovo was administered by the United
Nations Mission in Kosovo (UNMIK), an international civil administration and military security
presence, authorized under UNSCR 1244(1999)256 and headed by the Special Representative of
the UN Secretary General (SRSG). On 4 February 2008, shortly prior to the Kosovo independence
declaration in 17 February 2008, the European Council established EULEX, an EU operation set
up to monitor, mentor and advise whilst retaining a number of limited executive powers. 257 On 9
December 2008, UNMIK transferred powers to EULEX, which works under the general framework
of United Nations Security Resolution 1244(1999). The judiciary structure was not changed under
EULEX auspices. Security in Kosovo is administered by the NATO Kosovo Force (KFOR).
Prosecution of war-related crimes in Kosovo is carried out in 5 district courts, located in each of
Kosovo‟s 5 regional capitals (Pristina, Gjilan, Peja, Prizren, and Mitrovica). These courts have
jurisdiction over criminal offenses punishable by more than 5 years‟ imprisonment.258 District trial
panels are composed of one professional judges and 2 lay judges, or 2 professional judges and 3
lay judges when hearing cases punishable by imprisonment of more than 15 years. Appeals are
heard by the Supreme Court.259 The Supreme Court of Kosovo operates as a court of appeal on
decisions of the district courts. It is also charged with ensuring uniform application of the law by all
courts and it may give instructions to lower courts. The Supreme Court generally operates in
panels of 3 professional judges; however, 5-judge panels hear cases punishable by more than 15
years‟ imprisonment.
When UNMIK arrived in Kosovo in June 1999 the SRSG appointed the Joint Advisory Council
on Provisional Judicial Appointments (JAC) to recommend the provisional appointment of judges
and prosecutors for an emergency justice system. The SRSG later replaced the JAC by the
Advisory Judicial Commission (AJC).260 By June 2000, after a selection and appointment
procedure, a regular and functional criminal court system was put in place throughout Kosovo.
256
UN Doc S/RES/1244(1999).
European Council Joint Action 2008/124/CFSP, OJ L 42/92 (16 February 2008), <http://www.eulexkosovo.eu/home/docs/JointActionEULEX_EN.pdf>.
258
International Center for Transitional Justice, „Lessons from the Deployment of International Judges and Prosecutors in Kosovo‟
(March 2006) 28-29, <http://www.ictj.org/static/Prosecutions/Kosovo.study.pdf>.
259
American Bar Association, „Judicial Reform Index for Kosovo‟ (August 2007),
<http://www.abanet.org/rol/news/news_kosovo_third_jri_launched.shtm>.l>.
260
The AJC was dissolved on 28 June 1999, the JAC began operating on 27 October 1999.
257
76
The low level of participation of minority community members – particularly Kosovo Serbs – in
the justice system, in combination with the continuing climate of ethnic conflict, had given rise to
much concern of actual or perceived bias towards the Serb community,261 particularly in
investigating and trying minority community members implicated in crimes committed between
autumn 1998 and spring 1999. To address such concerns and also in response to public unrest
and violence in Mitrovica in February 2000, the SRSG passed UNMIK Regulation 2000/6 providing
for the appointment of an international judge and an international prosecutor to Mitrovica. 262 On 29
May 2000, the SRSG passed UNMIK Regulation 2000/34 that extended the power to appoint
international judges and prosecutors to the whole territory of Kosovo.263 The role of international
judges and prosecutors was reinforced by UNMIK regulation 2000/64, which granted the SRSG
the authority to appoint a special panel of three judges with international majority („Regulation 64
panel‟) proprio motu, or upon the request of a competent prosecutor, the defendant or defense
counsel, if this is „necessary to ensure the independence and impartiality of the judiciary or the
proper administration of justice‟.264 International judges could also take cases at their own
discretion. By the end of 2000 all war crimes cases were supposed to be handled by international
prosecutors and heard by Regulation 64 panels.265 In 2006, UNMIK relocated all international
judges back to Pristina, from where they are to handle cases from around Kosovo.266
Until 2004, the applicable law in Kosovo was the criminal code of the FRY. This code
incorporated only war crimes and genocide, while it did not recognize crimes against humanity. A
new Provisional Criminal Code was introduced in April 2004, which maintains the previous
definition of crimes and jurisdictions..267
261
OSCE, „Kosovo‟s War Crimes Trials:A Review‟ (September 2002) 10, <http://www.osce.org/documents/mik/2002/09/857_en.pdf>;
International Center for Transitional Justice, „Lessons from the Deployment of International Judges and Prosecutors in Kosovo‟ (March
2006) 19, <http://www.ictj.org/static/Prosecutions/Kosovo.study.pdf>
262
UNMIK Regulation 2000/6 ON THE Appointment and Removal from Office of International Judges and International Prosecutors.
263
Regulation No. 2000/34 Amending UNMIK Regulation No. 2000/06 of 15 February 2000 On the Appointment and Removal From
Office of International Judges and International Prosecutors.
264
Regulation No. 2000/64 on the Assignment of International Judges/Prosecutors and/or Change of Venue.
265
OSCE, „Kosovo‟s War Crimes Trials:A Review‟ (September 2002) 11, <http://www.osce.org/documents/mik/2002/09/857_en.pdf>.
However, this is not the case in practice. Amnesty International, „Kosovo (Serbia): The challenge to fix a failed UN justice mission
Source‟ (28 January 2008) 15, AI Index: EUR 70/001/2008.
266
Amnesty International, „Kosovo (Serbia): The challenge to fix a failed UN justice mission Source‟ (28 January 2008) 16, AI Index:
EUR 70/001/2008
267
International Center for Transitional Justice, „Lessons from the Deployment of International Judges and Prosecutors in Kosovo‟
(March 2006) 28-29, <http://www.ictj.org/static/Prosecutions/Kosovo.study.pdf>.
77
5.2 KOSOVO PROSECUTIONS AND SENTENCING
5.2.1 INDICTMENTS
78
5.2.1.3 Withdrawals
There have been 25 withdrawls of indictments: 18 indictments against Serbs were
withdrawn, 17 of them before the trial judgment and 1 before the retrial judgment. Fifteen of
the pre-trial withdrawals followed the escape of the indictees. Six cases against Kosovars
were withdrawn before the trial judgment. One case against a Roma was withdrawn before
the retrial judgment.
79
80
5.2.2.4 Trial and retrial judgments by outcome and year – by ethnicity
5.2.2.4A Trial and retrial judgments by outcome and year – Serbs
5.2.2.4B Trial and retrial judgments by outcome and year - Kosovars
5.2.2.4C Trial and retrial judgments by outcome and year - Others
In 2000 a Roma defendant was convicted.
81
5.2.3 APPEALS
82
83
84
5.2.3.5 Outcome of appeals on conviction by year
There have been no reversals of acquittals.
Year
Serb
Upheld
2000
Sent to Retrial
Upheld
--
2001
3
2002
1
2003
-1
--
--
-3
2005
Sent to Retrial
8
2004
2006
Kosovar
--
--
3
1
--
2007
--
--
2008
--
--
2009 (30 Sept)
--
Multi-year
5
3
11
3
4
In addition to the above, in 2001 the case of 1 convicted Roma defendant was sent to retrial. The
case was withdrawn in 2002.
5.2.3.7 and 5.2.3.8 Outcome of appeals on acquittal by ethnicity and
year
The acquittal of one Serb defendant was sent to a second retrial in 2003.
5.2.4 SENTENCES
5.2.4.2 Average sentence by year (convictions only)
Year
No. of sentences
Average sentence
1999
--
2000
16.7
3
2001
12.3
3
2002
15
1
2003
10
6
2004
--
2005
6.7
3
2006
3.3
1
2007
15
1
2008
8
1
8.4
5
10.4 (S.d 5.4)
24
2009 (30 Sept)
Multi-Year
85
86
5.2.4.3 Average sentence by year and ethnicity (convictions only)
Year
Serb
Average sentence
1999
Kosovar
No. of sentences
Average sentence
--
No. of sentences
--
2000
20
1
2001
12.3
3
--
2002
15
1
--
2003
7.5
2
2004
--
2005
--
2006
Multi-Year
11.2
4
6.7
1
--
3
--
15
8
1
2009 (30 Sept)
1
--
3.33
2007
2008
20
-10.9
9
1
--
8.4
5
10.1 (S.d 5.2)
14
In addition, in 2000, a Roma defendant was sentenced to 10 years‟ imprisonment.
Year
War Crimes
Average sentence
Non-International Crimes
No. of sentences
Average sentence
No. of sentences
2000
20
1
15
2
2001
20
1
8.5
2
15
1
2002
2003
-10
2004
2005
6
--
-6.7
-3
--
2006
--
3.33
1
2007
--
15
1
2008
2009 (30 Sept)
Multi-Year
8
1
--
8.4
5
--
10 (S.d 5.2)
17
11.5
There have been no convictions for genocide or for crimes against humanity.
7
5.3 KOSOVO LANDMARKS
1998
Escalation of the conflict between Kosovo Liberation Army and Serb forces. Serb forces
launch brutal crackdown. Hundreds of thousands of Kosovo Albanians flee.268
1999
January: Conflict in Kosovo flares up again.269
February 6: The Rambouillet peace talks convened.270
March 19: Rambouillet peace talks break down.271
March 24: NATO bombing campaign against Serb targets begins ('Operation Allied
Force').272
June 10: UNSCR 1244(1999) establishes the United Nations Interim Administration Mission
in Kosovo (UNMIK).
June 12: NATO-led KFOR enters Kosovo.273
July 16: First meeting of the Kosovo Transitional Council towards development of selfgovernment in Kosovo.274
September 4: UNMIK Regulation 1999/05 on the Establishment of an Ad Hoc Court of Final
Appeal and an Ad Hoc Office of the Public Prosecutor.275
September 7: UNMIK Regulation 1999/07 on the Appointment and Removal from Office of
Judges and Prosecutors.276
November 4: The ICTY issues its first indictment (Dragan Nikolić, Kosovo Serb).277
December 12: UNMIK Regulation 1999/24 on the Law Applicable in Kosovo.278
December 22: UNMIK Regulation 1999/26 on the Extension of Periods of Pre-Trial
Detention.279
2000
February 3: Riots begin in Mitrovica.280
February 15: UNMIK Regulation 2000/6 allows the appointment of international judges in
Mitrovica.281
May 27: UNMIK Regulation 2000/34 allows appointment of international judges throughout
Kosovo.
December 15: UNMIK Regulation 2000/64 authorizes the SRSG to assign an international
judges-majority panels to particular cases.282
268
270
Security Council Report, Kosovo Historical Chronology,
271
272
273
NATO, „The evolution of NATO‟s role in Kosovo, <http://www.nato.int/cps/en/natolive/topics_48818.htm>.#evolution.
274
275
On the Establishment of an Ad Hoc Court of Final Appeal and an Ad Hoc Office of the Public Prosecutor.
276
On Appointment and Removal from Office of Judges and Prosecutors.
277
278
On the Law Applicable in Kosovo.
279
On the Extension of Periods of Pretrial Detention.
280
UNMIK, „Update on Mitrovica Situation‟ Press Release (5 February 2000) UNMIK/PR/152,
<http://www.unmikonline.org/press/press/pr152.html>.
281
Regulation No. 2000/6 on the Appointment and Removal From Office of International Judges and International Prosecutors.
282
Regulation No. 2000/64, on the Assignment of International Judges/Prosecutors and/or Change of Venue.
269
87
2001
January 12: UNMIK Regulation 2001/1 prohibiting trials in absentia for serious violations of
international humanitarian law.283
January 12: UNMIK Regulation 2001/2 allows international prosecutors to take up cases
abandoned by Kosovar prosecutors without recourse to procedures required by Kosovo
law.284
April 6: UNMIK Regulation 2001/8 on the Establishment of the Kosovo Judicial and
Prosecutorial Council.285
May 15: UNMIK Regulation 2001/9 on a Constitutional Framework for Provisional SelfGovernment.286
November 17: Kosovo holds general elections.287
2002
February 28: Main Kosovo Albanian parties sign agreement on the identity of the president
and composition of the government of Kosovo.288
March 4: Kosovo provisional self government formed, headed by President Ibrahim Rugova
(Democratic League of Kosovo, LDK).289
2003
July 6: UNMIK Regulation 2003/25 on the Provisional Criminal Code of Kosovo.290
July 6: UNMIK Regulation 2003/26 on the Provisional Criminal Procedure Code of
Kosovo.291
December 12: The Security Council endorsed Standards for Kosovo.292
2004
March 17-20: Riots led by Kosovar Albanians break out against Serb, Roma and Ashkali
communities.293
March 31: UNMIK releases the „Standards Implementation Plan‟.294
November 17: New coalition government formed, headed by Ramush Haradinaj (Alliance for
the Future of Kosovo, AAK).295
November 30: UN Secretary-General Annan endorses Special Envoy Eide‟s
recommendation to replace the „Standards before Status‟ policy by a priority-based
standards policy aimed at facilitating orderly future status discussions.296
283
On the Prohibition of Trials in Absentia for Serious Violations pf International Humanitarian Law
UNMIK Regulation 2001/2 Amending UNMIK Regulation 2000/6 on the Appointment and Removal from Office of International
Judges and International Prosecutors.
285
UNMIK Regulation 2001/8 on the Establishment of the Kosovo Judicial and Prosecutorial Council.
286
UNMIK Regulation 2001/9 on the Executive Branch of the Provisional Institutions of Self-Government in Kosovo.
287
288
„Main Kosovo Albanian Parties sign Agreement on President and Government of Kosovo‟. UNMIK/PR/698 (28 February 2002),
<http://www.unmikonline.org/press/2002/pressr/pr698.htm>.
289
„Kosovo Provisional Self Government Formed‟, UNMIK/PR/699 (4 March 2002),
<http://www.unmikonline.org/press/2002/pressr/pr699.htm>.
290
UNMIK Regulation 2003/25 on the Provisional Criminal Code of Kosovo.
291
UNMIK Regulation 2003/26 on the Provisional Criminal Procedure Code of Kosovo
292
UN Doc S/PRST/2003/26.
293
BBC, „Kosovo clashes 'ethnic cleansing'‟ (20 March 2004), <http://news.bbc.co.uk/2/hi/europe/3551571.stm>.
294
UNMIK, „SRSG‟s Remarks at the Launch of Kosovo Standards Implementation Plan‟ Press Release (31 March 2004),
UNMIK/PR/1158, <http://www.unmikonline.org/press/2004/pressr/pr1158.pdf>.
295
SRSG statement on the announcement of a coalition agreement, UNMIK/PR/1270, 17 November 2004,
<http://www.unmikonline.org/press/2004/pressr/pr1270.pdf>.
296
UN Doc S/2004/932, UNMIK, The Kosovo Standards Process 2003-2007, UNMIK/StratCo 070420,
<http://www.unmikonline.org/standards/docs/KSP2003-2007.pdf>.
284
88
2005
March 8: Kosovar Prime Minister Haradinaj resigns and voluntarily surrenders to the
ICTY.297
March 23: The Kosovo Assembly elects a new government, headed by Bajram Kosumi
(AAK).298
October 24: The Security Council declares it is time to begin the political process to
determine the future status of Kosovo.299
November 10: UN Secretary-General Annan appointed Martti Ahtisaari as Special Envoy to
Kosovo for status talks.300
2006
January 21: Kosovar President Ibrahim Rugova dies 301
February 10: Fatmir Sejdiu (LDK) is elected President.302
February 20: Negotiations on the future status of Kosovo begin under UN auspices.303
March: UNMIK Department of Justice transfers responsibility over prosecutions to a new
Ministry of Justice within the Provisional Institutions of Self-Government (PISG), composed
of local personnel.
March 1: Prime Minister Kosumi resigns following international criticism his failure to create a
multi-ethnic political entity.304
March 10: Parliament elects Agim Çeku as Prime Minister.305
July 24: First direct talks since 1999 between ethnic Serb and Kosovar leaders on future
status of Kosovo take place in Vienna.306
October 28-29: A referendum in Serbia approves a new constitution which declares that
Kosovo is an integral part of the country. Kosovo's Albanian majority boycotts the ballot and
UN sponsored talks on the future status of Kosovo continue.307
November 8: European Commission Report on Enlargement Strategy 2006-2007 includes
an assessment of Kosovo‟s judicial system.308
2007
March 26: UN Secretary General Ban Ki-moon forwards to the UN Security Council the
Comprehensive Proposal for the Kosovo Status Settlement prepared by Special Envoy
Ahtisaari.309
November 17: Elections are held in Kosovo. The Democratic Party of Kosovo (PDK) wins
35% of the votes.310
297
SRSG‟s statement on the Prime Minister‟s resignation, UNMIK/PR/1325 (8 March 2005),
<http://www.unmikonline.org/DPI/PressRelease.nsf/0/3E2ABB3982C87D7CC1256FBE00481E7B/$FILE/pr1325.pd.
298
SRSG statement on the election of the new government, UNMIK/PR/1333 (23 March 2005),
<http://www.unmikonline.org/DPI/PressRelease.nsf/0/72FF02C15D43DCD0C1256FCE002CCFB8/$FILE/pr1333.pdf>.
299
UN Doc S/PRST/2005/51, following Special Envoy Eide‟s „comprehensive review of the situation in Kosovo‟, recommending that a
process should begin to determine Kosovo‟s final status. UNMIK, The Kosovo Standards Process 2003-2007, UNMIK/StratCo 070420,
<http://www.unmikonline.org/standards/docs/KSP2003-2007.pdf>.
300
UN Docs S/2005/708, S/2005/709 (10 November 2005).
301
302
, <http://www.theodora.com/wfbcurrent/kosovo/kosovo_government.html>.
303
European Commission, Enlargement, EU-Kosovo relations, <http://ec.europa.eu/enlargement/potentialcandidates/kosovo/relation/index_en.htm>. .
304
SRSG‟s statement on resignation of Prime Minister Bajram Kosumi, UNMIK/PR/1499 (1 March 2006),
<http://www.unmikonline.org/dpi/pressrelease.nsf/p0402?OpenPage>.
305
BBC, „New Kosovo PM wants independence‟ (10 March 2006), <http://news.bbc.co.uk/2/hi/europe/4794258.stm>.
306
BBC Timeline: Kosovo, <http://news.bbc.co.uk/2/hi/europe/country_profiles/3550401.stm>.
307
BBC Timeline: Kosovo, <http://news.bbc.co.uk/2/hi/europe/country_profiles/3550401.stm>.
308
COM(2006) 649 final – SEC(2006) 1389 – Not published in the Official Journal, section 5.3, annex 2, <http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2006&nu_doc=649
309
UN Doc S/2007/168 and Add.1.
89
November 6: European Commission Report on Enlargement Strategy 2007-2008 highlights
a considerable backlog of cases in Kosovo, including cases related to the March 2004 riots,
and notes that some progress was achieved as regards cooperation with the ICTY but that
witness intimidation continues.311
December 10: The EU/US/Russia troika inform the Security Council that negotiations to
settle the Kosovo status dispute have failed.312
December 14: The EU underlines its readiness to play a leading role in implementing a
settlement defining Kosovo's future status and to assist Kosovo in the path towards
stability.313
2008
January 9: Hashim Thaçi is elected Prime Minister of Kosovo.314
February 4: The EU establishes the EU Rule of Law Mission (EULEX) to provide support for
Kosovo.315
February 17: Kosovo declares independence.316 Serbia regards the declaration as illegal.317
February-March: Serb opponents of independence seize a UN courthouse in Mitrovica, and
more than 100 people are injured in subsequent clashes with UN and NATO forces. A UN
police officer is killed.318
April 9: The Kosovo Assembly adopts a new constitution.319
June 15: The Constitution of Kosovo enters into force.320
June 20: UN Secretary General Ban Ki-moon acknowledges the need for the UN to
reconfigure the international presence in Kosovo and for the EU to deploy a European
Security and Defence Policy (ESDP) rule of law mission.321
October 3: UNMIK announces the reopening of the Mitrovica District Court.322
October 8: The UN General Assembly votes (77-6-74) to request the ICJ to give an advisory
opinion on the legality of Kosovo's unilateral declaration of independence.323
November 5: European Commission Report on Enlargement Strategy 2008-2009.324
December 9: EULEX replaces UNMIK.325
2009
February 26: ICTY acquits former Serb President Milutinović of all charges with regard to a
campaign of terror against Kosovo Albanians in the 1990s.326
310
311
COM(2007) 663 final – SEC(2007) 1435, section 2.1, annex, <http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2007&nu_doc=663
312
Un Doc S/2007/723.
313
314
Office of the Kosovo Prime Minister, <http://www.ks-gov.net/pm/?page=2,4>.
315
European Joint Action 2008/124/CFSP, O. J. L 42 p. 92-98 (16 February 2008).
316
317
UN Doc S/2008/103.
318
BBC World News, „UN officer dies after Kosovo riot‟ (18 March 2008), <http://news.bbc.co.uk/2/hi/europe/7300015.stm>.
319
320
321
322
US Department of State, Bureau of Democracy, Human Rights, and Labor 2008 Human Rights Report: Kosovo (25 February
2009).
323
UN Doc A/RES/63/3, Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration
of independence of Kosovo is in accordance with international law
324
COM(2008) 674 final, section 3.1, 4.11 (5 November 2008), <http://ec.europa.eu/enlargement/pdf/press_corner/keydocuments/reports_nov_2008/strategy_paper_incl_country_conclu_en.pdf>.
325
EULEX, „EULEX Begins‟, <http://www.eulex-kosovo.eu/?id=8&n=47>.
326
Prosecutor v. Milutinović et al. Judgment, ICTY-IT-05-87 (26 February 2009).
90
March 4: In the first war crimes trial held under EULEX auspices, defendant Gani Gashi is
sentenced to 17 years in jail.327
April 17: Time limit for presenting written statements to the ICJ on the question of the legality
of Kosovo‟s declaration of independence.328
6. ICTY
6.1 INDICTMENTS
6.1.1 Indictments by year
6.1.2 Indictments by ethnicity and year
327
EULEX, „EULEX's first war crimes trial‟, <http://www.eulex-kosovo.eu/?id=8&n=73>.
Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government
of Kosovo (Request for Advisory Opinion) Order Fixing of time-limits: Written Statements and Written Comments, General List No. 141
17 October 2008, <http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=3.
328
91
6.1.3 Withdrawals
Since 1994 there have been 37 withdrawals of indictments.
6.1.4 Transfers under Rule 11bis
The indictments of 13 defendants have been transferred under Rule 11bis: 10 to BiH (2 in 2005, 7
in 2006, 1 in 2007), 2 to Croatia in 2005, and 1 to Serbia in 200 .
Two indictees remain at large.
6.2 TRIAL AND RETRIAL JUDGMENTS
6.2.1 Trial and retrial judgments by year
92
6.2.2 Trial and retrial judgments by ethnicity and year
6.2.3 Trial and retrial judgements by outcome and year
93
6.2.4 Trial and retrial judgments by outcome and year – by ethnicity
6.1.2.4A Trial and retrial judgments by outcome and year - Serbs
6.1.2.4B Trial and retrial judgments by outcome and year - Bosnians
94
6.1.2.4C Trial and retrial judgments by outcome and year - Croats
6.1.2.4D Trial and retrial judgments by outcome and year - Kosovars
95
6.3 APPEALS
6.3.1 Appeals submitted by year
6.3.2 Appeals submitted by ethnicity and year
96
6.3.3 Appeals decided by year
6.3.4 Appeals decided by ethnicity and year
97
98
6.3.5 Outcome of appeal on conviction by year
6.3.6 Outcome of appeals on conviction by ethnicity and year
Year
Serb
Upheld
Bosnian
Reversed
Upheld
Croat
Reversed
Upheld
Reversed
1994
--
--
--
1995
--
--
--
1996
--
--
--
--
--
1997
1
1998
--
--
--
1999
--
--
--
2000
1
2001
1
2002
3
--
--
2003
1
--
--
2004
2
--
2005
9
--
2006
4
2007
4
--
2008
4
--
--
2009 (30 Sept)
3
--
--
Multi-year
33
--
2
3
2
3
-1
0
3
3
2
1
1
10
In addition to the above, the conviction of a Kosovar defendant was upheld in 2007.
3
99
6.3.7 and 6.3.8 Outcome of appeals on acquittal by ethnicity and year
There have been four decisions on appeals on acquittal. The acquittals of two Bosnian defendants
were upheld in 2001 and 2007. The acquittals of two Kosovar defendants were upheld in 2007.
6.4 SENTENCES
6.4.1 Judgments by year (convictions and acquittals)
6.4.2 Average sentence by year (convictions only)
Year
1994
No. of
sentences
--
1995
--
1996
--
1997
--
1998
Average
sentence
5
1999
1
2003
11.9
9
2004
17.8
7
2005
14.1
9
2006
20.8
6
2007
19.3
7
2008
9.8
7
19.2
9
15.4 (S.d
8.8)
70
2009 (30 Sept )
--
2000
12.3
3
2001
13.
8
2002
16.2
4
Multi-Year
Two Serb defendants were sentenced to life imprisonment, one in 2006 and one in 2009
100
6.4.3 Average sentences by ethnicity and year (convictions only)
Year
Serb
Average
sentence
Bosnian
No. of
cases
Average
sentenc
e
Croat
No. of
cases
Average
setnence
No. of
cases
1994
--
--
--
1995
--
--
--
1996
--
--
--
1997
--
--
--
--
--
--
--
1998
5
1999
1
--
2000
20
1
--
8.5
2
2001
13.2
6
--
15
2
2002
16.2
4
--
2003
10.8
6
2004
21.2
4
--
2005
14.1
9
--
2006
25
3
--
16.7
3
2007
20.4
5
--
20
1
2008
12
4
19.2
9
16.2 (S.d 9.5)
52
2009 (30
Sept )
MultiYear
14
-3
3
-13.3
--
1
--
-11.2
3
-4
14.3 (S.d
6.2)
11
In addition to the above, in 2007 a Kosovar defendant was sentenced to 13 years‟ imprisonment.
In 2008, a Kosovar defendant was sentenced to 6 years‟ imprisonment and a Macedonian
defendant was sentenced to 12 years‟ imprisonment. In 2006 and 2009 Serb defendants were
sentenced to life imprisonment.
101
6.4.4 Average sentence by crime and year (convictions only)
Year
Genocide
Average
sentence
Crimes Against
Humanity
Average
No. of
sentence
cases
--
War Crimes
1994
No. of
cases
--
1995
--
--
--
1996
--
--
--
1997
--
--
--
1998
--
1999
--
2000
--
20
1
8.5
2
2001
--
13.6
8
14
3
2002
--
16.2
4
--
2003
--
10.8
6
--
15
6
--
2004
35
5
Average
sentence
1
--
--
1
No. of
cases
--
--
2005
--
15
8
7
1
2006
--
22.6
5
12
1
2007
--
21.4
5
14
2
2008
--
20.5
2
5.6
5
2009 (30
Sept)
Multi-Year
--
19.1
8
20
1
16.4 (S.d
8.7)
54
35
1
10.3 (S.d
5.2)
15
In addition to the above, 2006 and in 2009 Serb defendants convicted of crimes against humanity
were sentenced to life imprisonment.
6.4.5 Plea bargains
There have been 21 convictions on the basis of plea bargains.
7. ANALYSIS
The purpose of this report is to observe whether the ICTY had a noticeable trickle-down effect on
the policies of any of the case-study countries, in terms of prosecution and sentencing. The
assessment of this effect can be broken into specific questions:
- Have the different countries taken the cue from the ICTY by pursuing perpetrators of
international crimes more forcefully or less so?
- Are there any general trends in the sentencing ICTY that are mirrored in the national
jurisdictions?
- Has any particular action by the ICTY, such as Rule 11bis referrals or a specific judgment or
sentence, caused a change in domestic policies, either increasing law enforcement or reducing
it?
- What is the relationship between the sentencing standards of the ICTY and that of the national
tribunals? Has the domestic sentencing policy been affected by the practice of the ICTY in any
way?
In order to establish whether the ICTY has had an effect on national policies, it was necessary
first to assess whether there are discernible trends in the practice of the national jurisdictions, and
then consider whether these trends are attributable in any way to interaction with the ICTY. Since
national policies may be affected by factors other than the one we are interested in, namely the
ICTY, we examine other potentially-impacting factors that may influence national policies. These
include both domestic political and personal changes, as well as international factors, such as the
relationship between the various countries and the EU. At any rate, one must be careful not to be
too quick to jump to conclusion on causal links in complex legal-political environments.
Perhaps the most important finding is the negative one: it is very difficult to make any
substantive assessments of trends and linkages, since the number of cases is usually too small
for any finding to be statistically significant. In other words, there are no major trends in the
national jurisdiction that are identifiable on the basis of numbers alone. This does not imply that
there are no trends or policies but only that they are not evident from the volume of cases before
the national tribunals.
It is even more difficult to establish a link between apparent trends and external factors such
as the work of the ICTY, EU accession negotiations, national politics, etc. Again, this is not to say
that there is no such link, but that it cannot be proven by numbers and dates alone. The following
are some patterns that are nonetheless discernible.
102
Rate of indictment: The rate of indictment in the State Court of BiH has remained more or
less constant (2.2A.1.1). In FBiH there was a gradual decrease from the termination of the conflict
(the same is true for Kosovo, 5.2.1.1). However, in 2006 there was a surge in indictments
(2.2B.1.1), which is also visible in RS (2.2C.1.1). This may be a reaction to the completion
strategy of the ICTY, which prompted the Entities to demonstrate their capability in addressing
international crimes. With respect to FBiH this links with the finding relating to the ethnic
distribution of indictees. In Croatia the rate of indictments since 2002 has remained more or less
constant (3.2.1.1). In Serbia there has been a rise in indictments since 2003 (4.2.1.1), which may
be associated with the establishment of the WCC.
Ethnicity of indictees: In all jurisdictions, indictees (and later defendants) are overwhelmingly
Serb (2.2A.1.2, 2.2B.1.2, 2.2C.1.2, 3.2.1.2, 4.2.1.2, 5.2.1.2). This is in line with the situation at the
ICTY (6.2.2). A certain trend in the ethnic distribution of indictments through the years is visible in
FBiH and Kosovo (2.2B.1.2, 5.2.1.2). An opposite trend is visible in Serbia, namely of a shift form
the ethnic Serb majority towards indictment of Kosovars (4.2.1.2). An indication in the same
direction may also be discernible in RS (2.2C.1.2)
Outcome of trial judgments: as in the ICTY, in all national jurisdictions the majority of cases
conclude in conviction, and the ratio between conviction and acquittal appear more or less steady
(2.2A.2.3, 2.2B.2.3, 2.2C.2.3, 3.2.2.3, 4.2.2.3, 5.2.2.3). One exception is Croatia, where there
appears to have been a change with respect to Croat defendants. While in the early years since
2002 their cases concluded overwhelmingly in acquittal, since around 2006 there is a greater
share of convictions of Croat defendants (3.2.2.4C).
Outcome of appeals: Another finding that may be related to the outcome of trial judgment
concerns appeals. In some jurisdictions, convictions have been for the most part upheld (e.g.
2.2A.2.5, 2.2B.3.5, 2.2C.3.5). The situation is different in Croatia. While generally the majority of
appeals in Croatia conclude in the upholding of conviction (3.2.3.5), an ethnic distribution reveals
a more nuanced picture: convictions of Serbs have more often been sent to retrial on appeal than
upheld, while the convictions of Croats have all been upheld (3.2.3.6). This may be related to the
previous finding because together they indicate a shift from a prosecution policy that is relatively
anti-Serb and pro-Croat, to a more objective and balanced one, in which previous convictions of
Serbs are quashed, while not every Croat defendant can expect to be acquitted. Another
jurisdiction where retrial is more common than the upholding of a conviction is Kosovo (5.2.3.5).
In neither Croatia nor Kosovo, however, is it possible to discern a trend through time in this
respect.
In Serbia, too, there is a majority of cases sent to retrial rather than convictions upheld (all
Serbs except one Kosovar, 4.2.3.5). However, in Serbia the explanation would be the opposite of
103
that applicable in Croatia and Kosovo. While in Croatia and Kosovo the sending to retrial of Serb
defendants as opposed to Croats or Kosovars, respectively, suggest a less negative bias attitude
towards the ethnic minority; in Serbia the sending to retrial of Serb defendants rather than
upholding the convictions may suggest some lenience towards the ethnic majority.
Another factor which may affect the ratio between upholding of convictions and resending
them to retrial is the structure of the system: in BiH and its entities, retrials are conducted by the
appeal court. This may affect the willingness of appeal instances to send a case to retrial rather
than uphold the conviction.329
Sentencing: The ICTY has rejected the notion of a hierarchy of crimes, although practice
suggests that there may be a perception of hierarchy. The single conviction for a genocide-related
crime in the ICTY does carry a heavier sentence but is insufficient to establish a pattern.330 In the
national jurisdiction, it should be pointed out that only in BiH and FBiH have there been
convictions for genocide (in RS, Croatia, Serbia, Kosovo – only war crimes). Interestingly, the
hierarchy in sentencing is very apparent in BiH (2.2A.4.4), but not elsewhere (2.2B.4.4). In FBiH,
for example, the average sentence for genocide is 14.7 years and for war crimes it is 12. This is a
miniscule difference, particularly taking into account the number of sentences given in each
category and their distribution. In Serbia and Kosovo, where we also took into account domestic
crimes that are substantively related to international crimes, the average sentence for war crimes
was even lower than that of the domestic crime (4.2.4.4, 5.2.4.4). With the exception of BiH State
Court, the average sentences within each jurisdiction do no seem to be significantly dependent on
the crime.
Another factor affecting sentencing may be the sentencing range available to the court. The
smaller it is, the less likely it is for significant differences to exist among the sentences associated
with different crimes.331 The maximum sentence of life imprisonment In the ICTY allows greater
gradation than in jurisdictions where the range between the minimum and the maximum sentence
may be as small as 10 or 15 years.
329
Comment by a participant in the Seminar on the Impact of International Courts of Domestic Proceedings held in Belgrade on 19-20
November 2009.
330
Arguably, sentencing reflects the gravity of the acts rather than the formal offense for which a person was convicted, which is often
a matter of prosecution-defense negotiations. If one examines at the 10 cases where the defendant was indicted of genocide-related
offenses rather than only the one case where the defendant was also accused of such an offense, a hierarchy between the act and
the sentence becomes more pronounced: the average sentence for genocide-related acts is 24 years, for crimes against humanity is
16, and for war crimes around 8 years.
331
Comment by a participant in the Seminar on the Impact of International Courts of Domestic Proceedings held in Belgrade (19-20
November 2009).
104
Conclusion: There are many difficulties in attempting to identify a link between the national
and international tribunals other than the small number of cases. For example, if a change is
discernible, to which event, if at all, can it be linked? How much time should be allowed to lapse
before a certain event is deemed to have been influential or not? An example is the establishment
of the ICTY on the one hand and the completion strategy on the other hand: In some of the
countries, there was a long delay before international crimes began to be addressed, or before
specialized institutions were put in place to address them (the State Court‟s Special Chamber
was set up in 2006, the Serb WCC was set up in 2003 and began operating in 2005). Can the
same delay be expected with respect to the completion strategy? Probably not, as the completion
is linked to national participation. The loose linkage with respect to sentencing is also interesting.
Does it reflect a true detachment of the national and international tribunals or does it reflect the
different perpetration levels considered at the ICTY and in national tribunals? To answer all these
questions, a contextual analysis of the numbers is essential.
105
8. SOURCES
BiH (including FBiH, RS, Brčko):
1. Bogdan Ivanisevic, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to
Domestic Court, International Center for Transitional Justice (2008).
http://www.ictj.org/images/content/1/0/1088.pdf.
2. OSCE Database, http://www.oscebih.org/human_rights/impunity.asp?d=1.
3. Website of the State Court of BiH: http://www.sudbih.gov.ba/?id=1268&jezik=e.
4. American Bar Association, Practical Guide to War Crimes Prosecution in Bosnia and
Herzegovina 1992-2006 (2006).
5. Original cases from FBiH, RS, Brčko for the years 2007-2009.
Croatia:
Data collated by Robert Mrljic, PhD candidate, Assistant, Chair of International Law, Faculty of
Law, University of Zagreb.
Serbia:
1. OSCE, War Crimes before Domestic Courts, (2003) http://www.osce.org/serbia/13161.html.
2. Humanitarian Law Center Belgrade, War Crimes Trials in Serbia, (2007) http://www.hlcrdc.org/stranice/Documentation-and-Memory.en.html.
3. Bogdan Ivanišević, Against the Current – War Crimes Prosecutions in Serbia, International
Center for Transitional Justice (2007) http://www.iccnow.org/documents/780.pdf.
4. Website of the War Crimes Prosecutor of the Republic of Serbia:
http://www.tuzilastvorz.org.rs/html_trz/index_eng.htm.
5. OSCE mission to Serbia, Rule of Law and Human Rights Department, War Crimes trial
monitoring, June 2009 Update (on file with authors)
6. OSCE mission to Serbia, Rule of Law and Human Rights Department, War Crimes trial
monitoring Adjudicated Cases, June 2009 Update (on file with authors)
Kosovo:
1. EULEX website: http://www.eulex-kosovo.eu/.
2. UNMIK website: http://www.unmikonline.org/.
3. Humanitarian Law Center Belgrade, Trials for Ethnically Motivated Crimes and War Crimes in
Kosovo, (2007). http://www.hlc-rdc.org/uploads/editor/Izvestaj_sudjenja_KOSOVO_engleski.pdf.
4. OSCE, Kosovo's War Crimes Trials: A Review, (2002)
http://www.osce.org/documents/mik/2002/09/857_en.pdf.
5. Amnesty International, Serbia (Kosovo): The Challenge to Fix A Failed UN Justice Mission,
(2008) http://www.amnesty.org/en/library/info/EUR70/001/2008/en.
ICTY:
Website of the ICTY, http://www.icty.org.
106
ALSO AVAILABLE FROM DOMAC

Equal Standards? On the Dialectics between National Jurisdictions and the
International Criminal Court, by Harmen van der Wilt, International Criminal Law
Review, Volume 8, Numbers 1-2, 2008 , pp. 229-272.

Procedural Obligations Under the European Convention on Human Rights: Useful
Guidelines for the Assessment of ‘Unwillingness’ and ‘Inability’ in the context of the
Complementarity Principle, by Harmen van der Wilt & Sandra Lyngdorf,
International Criminal Law Review, Volume 9, Number 1, 2009 , pp. 39-75.

Comparative Analysis of Prosecutions for Mass Atrocity Crimes in Canada,
Netherlands, and Australia, by Antonietta Trapani, DOMAC/1, August 2009.

Capacity Development in International Criminal Justice: A Mapping Exercise of
Existing Practice, by Alejandro Chehtman and Ruth Mackenzie, DOMAC/2,
September 2009.

Sierra Leone:
Interaction between International and National Responses to the
Mass Atrocities, by Sigall Horowitz, DOMAC/3, December 2009.

The ICJ Armed Activity Case – Reflections on States´ Obligation to Investigate and
Prosecute Individuals for Serious Human Rights Violations and Grave Breaches of
the Geneva Conventions,
by Thordis Ingadottir, Nordic Journal of International
Law, Volume 78, No. 4, 2009, pp. 581-598.

Prosecutions and Sentencing in the Western Balkans

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