Academic Year 2016/2017 Corso di perfezionamento/dotoratto in Politics, Human Rights and Sustainability
The Role of the International Criminal Tribunal
for the former Yugoslavia
in Strenghtening the Rule of Law and Public Acknowledgment of War Crimes:
The case of Croatia and Serbia
Author: Emilija DODEVSKA
Supervisor: Professor Andrea de GUTTRY
To my parents, who gave me the passion for Law, and taught me to always believe in myself, and to never give up
Table of Contents List of Abbreviations ... 5 Chapter 1: Introduction ... 6 1.1. Research Background ... 6 1.2. Research Questions and Research Objectives ... 9 1.3. Methodology ... 10 1.4. Outline of the Thesis ... 13 1.5. Thesis within existing research ... 15 Chapter 2: ICTY´s impact on the legal sphere in Croatia ... 17 2.1. Introduction ... 17 2.2. Problems of domestic war crime trials and the need to tackle these problems ... 19 2.3. Efforts for reform of the Croatian judiciary in the context of war crimes ... 38 2.4. The impact of the ICTY on the institutional and judicial reforms in the context of war crimes ... 44 2.5. Conclusion ... 71 Chapter 3: ICTY´s impact on politics in Croatia ... 75 3.1. Introduction: ... 75 3.2. Conflict in Croatia and military operations “Storm” and “Flash” ... 78 3.3. Position of the government in power in relation to domestic war crime trials and the ICTY 82 3.4. The return of HDZ under Prime Minister Ivo Sanader (2004-2009) ... 99 3.5. Croatian politics in relation to war crime prosecution (2009-present) ... 104 3.6. Conclusion ... 110 Chapter 4: ICTY´s impact on the legal sphere in Serbia ... 113 4.1. Introduction ... 113 4.2. Establishment of institutional and legislative framework for prosecuting war crime trials in Serbia ... 114 4.3. Problems in the Serbian judiciary in the context of prosecuting war crimes ... 120 4.4. Efforts to reform the serbian judiciary in the context of war crimes ... 133 4.5. The impact of the ICTY on the institutional and judicial reforms in the context of war crime ... 135 4.6. Conclusion ... 148 Chapter 5: ICTY´s impact on politics in Serbia ... 151 5.1. Introduction ... 151 5.2. Historical overview of Serbia’s position in respect to war crime prosecutions and the ICTY ... 153 5.3. The political circumstances and the legality of the transfer of Slobodan Milošević ... 161 5.4. Political instability and assasination of Prime Minister Zoran Đinđić ... 169 5.5. Full cooperation with the ICTY as EU Conditionality ... 173 5.6. The arrest of Radovan Karađić, Ratko Mladić and Goran Hađić ... 177 5.7. Current relations between Serbia and the ICTY ... 178 5.8. Conclusion ... 180 Chapter 6: ICTY´s impact on the social sphere in Serbia and Croatia ... 182 6.1. Introduction ... 182 6.2. Discussion about the purpose of international criminal trials ... 183 6.3. Brief overview of selected ICTY cases ... 187 6.4. Political statements in relation to the verdicts ... 194 6.5. Conclusion ... 202 Chapter 7: Final Remarks ... 204 7.1. Introduction ... 204 7.2. The ICTY’s impact on the legal sphere ... 205 7.3. Comparison of the ICTY’s impact on the legal sphere: the cases of Croatia and Serbia ... 208
7.4. The ICTY’s impact on the political sphere ... 210
7.5. Comparison of the ICTY’s impact on the political sphere: the case of Croatia and Serbia .. 212
7.6. The ICTY’s impact on the social sphere: the case of Croatia and Serbia ... 213
7.7. Conclusions and Recommendations ... 215
List of Abbreviations
AI Amnesty International
BIH Bosnia and Herzegovina
CCFRY Criminal Code of the Federal Republic of Yugoslavia
DORH Državno Odvjetništvo Republike Hrvatske (State Attorney Office in Croatia) DOS Demokratska opozicija Srbije- Democratic opposition of Serbia
EU European Union
EULEX European Union Rule of Law Mission in Kosovo EDS Evidence Disclosure Suite
ECHR European Court of Human Rights FRY Federal Republic of Yugoslavia
HRW Human Rights Watch
HDZ Hrvatska Demokratska Zajednica (The Croatian Democratic Union) HSLS Hrvatska Socilajna Liberalna Stranka (Croatian Social Liberal Party)
HLC Humanitarian Law Centre
IMF International Monetary Fond ICC International Criminal Court ICJ International Court of Justice
ICTY International Criminal Tribunal for the former Yugoslavia ICCPR International Covenant on Civil and Political Rights
JNA Jugoslovenksa Nacionalna Armija (Jugoslav National Army) MUP Ministarstvo unutrašnjih poslova (Ministry of Internal Affairs) NATO North Atlantic Treaty Organization
OSCE Organization for Security and Cooperation in Europe
OKZRH Osnovni Krivični Zakon (Basic Criminal Code of Republic of Croatia) OTP Office of the Prosecutor
RS Republika Srpska
SFRY Socialist Federal Republic of Yugoslavia
SRS Srpska Radikalna Stranka (Serbian Radical Party)
SDS Srpska Demokratska Stranka (Serbian Democratic Party) SNS Srpska napredna stranka (Serbian Progressive Party) SAA The Stabilization and Association Agreement
UNDP United Nations Development Programme
UN United Nations
UNESCO United Nations Educational, Scientific and Cultural Organization VWS ICTY Victims and Witnesses Section
VSRH Vrhovni Sud Republike Hrvatske (Supreme Court of the Republic of Croatia) WCC War Crimes Chamber in Belgrade
Chapter 1: Introduction
1.1. Research BackgroundFor a large number of civilians on the territory of former Yugoslavia, the year 1993 correlates to a period of great human suffering due to the then ongoing armed conflict. That same year saw the commencement of negotiations about the establishment of an International Tribunal. Among the mediators appointed by the United Nations, the European Community, and the members of the Commission of Experts on crimes committed in the former Yugoslavia, a dilemma emerged as to the primacy of justice over peace or vice versa.1 It was uncertain whether international justice was possible in a time of war, or whether there had to be peace in the first place in order for justice to be rendered. Nonetheless, on 25 May 1993, while the war was still raging on the territory of the former Yugoslavia, the UN Security Council adopted Resolution 827 and established the International Criminal Tribunal for the former Yugoslavia (ICTY). Its formation was a measure empowered by Chapter VII of the Charter of the United Nations as a response to continuous reports of widespread violations of humanitarian law occurring on the territory of the former Yugoslavia, as well as the heavy loss of human life, material damage, and violations of the ceasefire agreement, which constituted a threat to international peace and security.
According to UN Resolution 827, the sole purpose of the ICTY was to prosecute persons responsible for serious violations of international humanitarian law committed on the territory of the Former Yugoslavia (ICTY) between 1 January 1991 and a date to be determined by the Security Council once peace had been restored, as well as to adopt the Statute of the International Criminal Tribunal for the former Yugoslavia.2 Additionally, the member states of the Security Council anticipated that the Tribunal would contribute to the restoration of peace and security, especially through the deterrence of future atrocities in the former Yugoslavia as well as through the promotion of reconciliation. In other words, besides its primary role to deliver justice, the ICTY was expected to contribute significantly to holding leaders accountable regardless of their position, and hence to ending the era of impunity for war crimes. In this respect, Antonio Cassese, the then President of the ICTY stated:
1 Security Council Resolution 780, 6 October 1992, Establishing a Commission of Experts to Examine and
Analyse Information relating to grave breaches of international humanitarian law on the territory of Yugoslavia, available at: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/780(1992).
2 Security Council Resolution 827, available at:
The only civilized alternative of the victim’s desire for revenge is to render justice: to conduct a fair trial by a truly independent and impartial tribunal and to punish those found guilty. If no fair trial is held feelings of hatred and resentment seething below the surface will, sooner or later, erupt and lead to renewed violence.3
Antonio Cassese also stated:
Justice is an indispensable ingredient of the process of national reconciliation. It is essential to the restoration of peaceful and normal relations between people who have had to live under a reign of terror. It breaks the cycle of violence, hatred and extra-judicial retribution.4
It is important to note that although the members of the Security Council expected that the ICTY would play a significant role both in delivering justice and in the process of reconciliation, the ICTY was not welcomed in the former Yugoslav countries. In fact, there has been a general atmosphere against a judicial institution that is geographically distant from the occurrence of the crimes that would indict, prosecute and punish the people responsible for the crimes committed on the territory of the former Yugoslavia. The former Yugoslav countries favoured the prosecution of these persons to be performed in the domestic courts in the region once the war was over. Nevertheless, when the armed conflict ceased there was lack of judicial and legislative capacity at national level for prosecuting war crimes in accordance with international standards. In addition, there was a lack of political will for prosecuting war crimes because the institutions feel under the authority of the persons from the old political regime that were alleged for being involved in committing war crimes. Consequently, the ICTY was established as a non-permanent ad hoc institution to provide a temporary solution to address that problem. The ICTY played a significant role because it enabled justice to be served at a time when national judiciaries were unable to investigate and prosecute war crimes.
Ten years later, with the adoption of Resolution 15035 and Resolution 1534,6 a Completion Strategy was endorsed with the aim of completing all investigations by 2004, all trial activities of the first instance by the end of 2008, and all work by 2010. Among the measures listed for
3 Annual Report of the ICTY, UN doc. A/49/342-S/1994/1007, 29 August 1994, para. 15, in ICTY, Yearbook
1994.
4 ICTY Press Release, Number 27, 24 November 1995.
5 Security Council Resolution 1503 was adopted on 28 August 2003. Available at: http://www.unmict.org/specials/ictr-remembers/docs/res1503-2003_en.pdf.
6 Security Council Resolution 1534 was adopted on 26 March 2004. Available at: http://www.icty.org/x/file/Legal%20Library/Statute/statute_1534_2004_en.pdf.
achieving this aim was the transfer of cases to domestic judiciaries. Namely, both resolutions emphasized the importance of transferring cases involving accused persons of intermediate and lower rank to national jurisdictions as a measure for the implementation of the Completion Strategy. The resolutions also emphasized that the strengthening of competent national judicial systems was of crucial importance both for the rule of law in general and for the ICTY Completion Strategy in particular.7 The resolutions further called for “the international community to assist national jurisdictions as part of the completion strategy in improving their capacity to prosecute cases transferred from the ICTY”.8 The Completion Strategy thus initiated an important phase in the interactions between the ICTY and the judicial systems in the former Yugoslavia by transferring cases to domestic courts for trial. The importance of this new phase lay in assisting the national judiciaries in strengthening the rule of law and enabling domestic courts to try war crime cases. This was very important, since the aim of the ICTY was not to move justice entirely from the domestic to the international level but to provide justice temporarily until the countries in the region were able to investigate and prosecute war crimes in accordance with internationally recognized standards. 9 In other words, the idea was not that
the ICTY would take over responsibility for prosecuting war crimes, since the main responsibility for prosecuting war crimes belongs to the national judiciaries in the former Yugoslav countries. In this regard, Judge Patrick L. Robinson, a former President of the ICTY, stated that “one of the best indicators that the Tribunal’s mandate has been successful will be the states in the region taking full responsibility for war crime trials.”10 Another former ICTY President, Fausto Pocar, confirmed this by stating that:
The primary responsibility for prosecutions rests with States and their judiciaries. As such, ensuring the existence and enhancing the operational capacity of independent and impartial national courts in order to establish and strengthen legal frameworks based on the rule of law remains the greatest challenge for the success of international justice.11
7 Ibid.
8 Security Council Resolution 1503 from 2003. Available at: http://www.unmict.org/specials/ictr-remembers/docs/res1503-2003_en.pdf
9 Fausto.Pocar, ‘The ICTY’s Continuation Strategy: Partnership with Regional Judges and Attorneys’. Richard
H. Steinberg (ed.), Assessing the Legacy of the ICTY, (Koninklijke Brill NV. Printed in the Netherlands, 2011) p.167.
10 Patrick L. Robinson, ‘Creating a Legacy that Supports Sustainable Rule of Law in the Region’, Richard H.
Steinberg (ed.), Assessing the Legacy of the ICTY, (Koninklijke Brill NV. Printed in the Netherlands, 2011), p.21.
11 Fausto.Pocar, ‘The ICTY’s Continuation Strategy: Partnership with Regional Judges and Attorneys’. Richard
H. Steinberg (ed.), Assessing the Legacy of the ICTY, (Koninklijke Brill NV. Printed in the Netherlands, 2011) p.167.
Strengthening the national judiciary and enabling the domestic judiciary to prosecute war crimes in accordance with international standards were therefore fundamental aims, both for strengthening the rule of law and for fulfilling the ICTY Completion Strategy.12 Accordingly, there thus began a process of necessary changes in the institutional and legislative framework in the context of war crimes Croatia and Serbia. In this regard, the ICTY provided suggestions and assistance for the institutional and legislative development in the context of prosecuting war crimes.
In light of the above, this research focuses on examining the impact of the ICTY on the process of strengthening the rule of law and on the process of reconciliation. In order to provide a complete picture of the impact of the ICTY in Croatia and Serbia, the research examines its impact on the legal, political and social spheres in these countries.
1.2. Research Questions and Research Objectives
The Thesis answers the research questions: What has been the impact of the ICTY on the institutional and legislative reforms, domestic politics and the social sphere in Croatia and Serbia?
The PhD Thesis is in line with the interdisciplinary character of the PhD Programme. It demonstrates and compares the benefits and drawbacks of the assistance of the ICTY in the legal and judicial sphere. In particular, the research examines how the ICTY has impacted the institutional and legislative reforms in the context of war crimes in Croatia and Serbia. In addition, the research explores the impact of the ICTY on domestic politics, and on the social sphere in respect to the process of reconciliation.
First, the thesis examines the impact of the ICTY on the institutional and legislative transformations in the context of prosecuting war crimes in Serbia and Croatia. Second, it analyses the impact of the ICTY on domestic politics in the context of war crimes. Third, it examines the impact of the ICTY on the social sphere in relation to the process of the acknowledgment of war crimes. The research covers the period from the establishment of the ICTY until today.
1.3. Methodology
The following methods have been employed to achieve the research objectives: semi-structured interviews as primary sources; analysis of legal documents, laws, court transcripts, case law; analysis of reports on war crimes by local and international non-governmental organizations; media analysis; analysis of international academic literature in the field and comparative research method.
Semi-structured interviews were conducted with judges, and prosecutors who have worked on war crime cases held before the domestic courts in Serbia and Croatia. Interviews were also conducted with political analysts from the region, politicians, and former and current ICTY employees. The interviews served as primary sources regarding the problems the local judiciary have encountered in the context of prosecuting war crimes cases, as well as regarding the development of the legislative and institutional framework in the context of prosecuting war crime cases in these two countries. In addition, information has been provided regarding the impact of the ICTY on the reforms in the context of prosecuting war crime cases, and on domestic politics. Information has also been obtained regarding the impact of the ICTY on the process of reconciliation.
Interviews were conducted in Croatia with the following persons: Judge Marin Mrčela, who acted as the Presiding Judge in the trial of Ademi & Norac in Zagreb, Croatia; and Judge Željko Horvatović from the County Court in Zagreb; employees at the State Attorney Office in Zagreb; Ivo Josipović, who served as the fifth President of Croatia; the Croatian political analyst Žarko Puhovski; members of the leading non-governmental organizations that have been monitoring the prosecution of war crimes in Croatia; Mario Mažiš from the Youth Initiative for Human Rights in Zagreb; Vesna Terselić, the Director of the NGO DOCUMENTA; and Veselinka Kastratović from the Center for Peace, Non-Violence and Human Rights in Osijek.
Interviews were conducted in Serbia with the following persons: judges Siniša Vazić and Omar Hađiomerović, who have been involved in working on war crime cases; the founder of the Humanitarian Law Center, the leading NGO that has monitored the prosecution of war crimes in Serbia; Florence Hartmann, the former spokesperson of the Office of the Prosecutor of the ICTY; David Tolbert, former Deputy Prosecutor of the ICTY; and Geoffrey Nice, the Chief Prosecutor in the ICTY case against Slobodan Milošević.
Comparative Research Method is used in the Thesis to identify and explain the differences and similarities between the two cases: Serbia and Croatia. The reason for selecting Serbia and Croatia for case studies is that they are both nation states with independent judiciaries. In addition, Serbia and Croatia were on opposite sides in the armed conflict that took place in Yugoslavia during the nineties. War crimes were committed on each side: Serbian armed forces committed crimes against Croats, and crimes were committed against Serbs by Croatian armed forces. Once established, the ICTY provided assistance to the legal and judicial systems in these two countries in the context of prosecuting war crimes. Comparing the impact of the ICTY on the legislative and institutional reforms in these countries allows us to examine the extent to which the impact of the ICTY was commensurate, and to identify possible reasons for any disparity in this impact. In addition, both countries were obliged to cooperate with the ICTY because its functioning depended on their cooperation. Nonetheless, as both countries are fully sovereign they have the capacity to challenge cooperation with the Tribunal. Comparing the ways these countries dealt with the issue of cooperation and the involvement of external actors in this process, provides an opportunity to examine differences in cooperation and the most successful means of securing cooperation in such situations. Comparing statements by the politicians in relation to the ICTY judgments, and their impact on society, provides an opportunity to examine the impact of the ICTY on the process of reconciliation in Croatia and Serbia. For this analysis, judgments of ICTY cases that involved crimes committed by Serb forces against Croat civilians and vice versa were selected.
The ICTY also provided legal assistance in Bosnia and Herzegovina (BiH). This country has not been selected for a case study, however, since its complexity as a country would require a separate analysis. Namely, BiH consists of two entities and one district: Republika Srpska and the Federation of BiH, and the district of Brčko. The prosecution of war crime cases in BiH differs from the prosecution of war crime cases in Serbia and Croatia because war crimes in BiH are prosecuted at a hybrid court that consists of domestic and international judges and prosecutors. The case of the Republic of Macedonia has not been selected because the armed conflict in 2001 lasted for a relatively short period of time and the ICTY carried only a few investigations and just two cases stood trial before the ICTY. Four cases were returned to the Macedonian judiciary, but an Amnesty Law was passed and the accused persons were granted immunity. The case of Kosovo was not chosen because it was controlled until 2008 by the United Nations. In 2008, Kosovo claimed independence, but not all countries have granted
recognition and hence it is under international supervision. Thus, the case of Kosovo is not relevant for comparison with Croatia and Serbia.
Analysis of laws, legal documents, and case law: Criminal Codes that apply to prosecuting war crimes both in the case of Serbia and Croatia, from the establishment of the ICTY until the present day, have been analysed. Constitutions, treaties, the ICTY Statute, the ICTY Rules of Procedure and Evidence, and norms of international and national laws have been examined. Various legal documents such as court decisions, trial transcripts, witness testimonies, and indictments issued by the Prosecution Office in Serbia, and the State Attorney Office in Croatia have been analysed. Various ICTY documents have been analysed, such as ICTY Trial and Appeal judgment decisions, ICTY Indictments, decisions for transfer of cases, trial transcripts, and various different decisions and statements by the ICTY.
Examination of existing international academic literature in the field: academic books, and academic journals in the field were critically examined.
Analysis of reports by international, and local non-governmental organizations: Reports and other publications dating from the establishment of the ICTY until today, covering the development of the judiciary in Serbia and Croatia in the context of war crimes, have been analysed.
Analysis of documents and statements: Numerous documents and statements relating to Serbia’s and Croatia’s unpreparedness to prosecute war crime cases in accordance with international standards have been analysed. For instance, European Union progress reports on these two countries have been analysed, as well as statements by the Security Council and by the Commissioner for Human Rights. These documents have provided yearly assessments about the development of judicial institutions and legislation in the context of prosecuting war crimes.
Media analysis: Numerous statements and political discourses in the media have been analysed. This was done by going through the archive of the biggest daily and weekly national newspapers. For Croatia, these included Globus, Nacional, Jutarnji list, while for Serbia they included Večernje Novosti, Blic and Vreme. In addition, statements regarding domestic and ICTY trials were analysed from international and regional newspapers such as The New York
Times, Balkan Investigative Justice, the BBC, The New York Times and The Guardian.
Statements by politicians in relation to ICTY judgments have also been analysed. In addition, various statements in relation to the political relations between the ICTY and the country in question have been examined.
1.4. Outline of the Thesis
The PhD thesis is divided into seven inter-related chapters. Following this introductory chapter, Chapter 2 focuses on the impact of the International Criminal Tribunal for the former Yugoslavia (ICTY) on Croatia’s domestic legal and judicial sphere and the process of strengthening the rule of law in relation to prosecuting war crimes in the Republic of Croatia. The chapter examines the institutional and legislative impact of the ICTY on the national judiciary and legislative framework in the context of prosecuting war crimes in the national courts in Croatia.
Chapter Three explores the impact of the ICTY on domestic politics through some of the changes introduced in the legislative and judicial framework in Croatia, and through Croatia’s interactions with the ICTY. For this purpose, the chapter provides the political context of the analysis by presenting a historical overview of the leading political parties from Croatia’s declaration of independence from the Socialist Federal Republic of Yugoslavia (SFRY) until today. The emphasis is on the position of each government regarding the ICTY and regarding prosecuting war crimes, and their ambitions of joining the European Union. In addition, the Chapter describes the most important military operations, “Storm” and “Flash”, that took place during the governing period of Franjo Tuđman, because they were the main topics for discussion throughout the whole time of Croatia’s interactions with the ICTY, and they remain an important factor in relations between Croatia and Serbia.
Chapter Four focuses on the impact of the ICTY on Serbia’s domestic legal and judicial sphere and on the process of strengthening the rule of law in relation to prosecuting war crimes in the Republic of Serbia. The purpose was to analyse the impact of the ICTY on the process of strengthening the institutions and changing the Serbian laws in the context of prosecuting war crimes at the national courts in Serbia. First, the chapter discusses the establishment of the institutions responsible for prosecuting war crimes. Second, the chapter analyses the problems
that these institutions encountered, and the problems that the Serbian judiciary faced throughout the years, as well as the challenges that Serbia still confronts in the context of prosecuting war crimes. The chapter further examines the efforts undertaken by Serbia to tackle these problems. In addition, it examines the ICTY’s impact on the institutional and legislative changes that were undertaken for the purpose of prosecuting war crime trials in Serbia in accordance with international standards.
Chapter Five focuses on the impact of the ICTY on domestic politics in Serbia in the context of war crimes. It examines the position of each government in relation to the ICTY and the willingness of each government to prosecute war crimes.
Chapter Six focuses on the impact of the ICTY on the process of the acknowledgment of war crimes and the process of reconciliation in Serbia and Croatia. It examines whether the interpretation of the judgments of the selected cases that took place before the ICTY as framed by the political leaders contributed to the process of reconciliation in Serbia and Croatia. This is done by focusing on the reactions, and statements of politicians in relation to judgments of the following cases: Prosecutor v. Radovan Karađić, Prosecutor v. Vojislav Šešelj, Prosecutor
v. Mrkšić et.al, Prosecutor v. Ante Gotovina, and Prosecutor v. Mladen Markač. The reason for
choosing these particular cases for analysis lies in the fact that the defendants in the first three cases are high-ranking Serb nationals who have been accused of committing crimes against Croats. The defendants in the other two cases are high-ranking Croatian generals who have been accused of committing crimes against Serbs.
Chapter Seven provides concluding remarks about the extent of the impact of the ICTY on the institutional and legislative reforms in the two cases studies: Croatia and Serbia. It provides a comparative analysis of the extent of the ICTY’s impact in these countries, and discusses the reasons for the different impacts. Also, it provides a comparison of the ICTY’s impact on domestic politics in both countries under analysis. In addition, it draws conclusions about the ICTY’s impact on the process of reconciliation between the Serbs and the Croats. The Thesis draws on lessons learned, and provides recommendations on how to achieve greater effectiveness in situations of assistance by an international tribunal or the International Criminal Court for strengthening judicial capacity at national level in certain country. It also provides recommendations for future cases of legal reforms in the domestic legal system for incorporating the concept of command responsibility, the crime of rape and sexual violence in
times of war, war crimes and crimes against humanity as values in the domestic legal system of a country as well as in society. Moreover, the research provides recommendations on how to achieve more successful cooperation between international actors, a Tribunal, and a state in situations of transforming national legal systems in post-conflict countries with the help of a Tribunal or the International Criminal Court. In addition, it provides recommendations for the political elite in relation to steps that could be taken in order to contribute to the process of reconciliation in society.
1.5. Thesis within existing research
Abundant scholarly research exists in relation to the military conflict that occurred on the territory of the former Yugoslavia, as well in relation to certain aspects of the work of the International Criminal Tribunal for the former Yugoslavia. However, to my knowledge there has been no scholarly research that explores the impact of the ICTY on legislative and institutional reforms in Croatia and Serbia. This is the first time that a comprehensive methodological approach has been taken to address the role of the ICTY in the process of transforming the national legal and judicial systems in two former Yugoslav countries, Croatia and Serbia. To my knowledge there has been no scholarly research that covers three areas that have been impacted by the work of the ICTY: the legal aspect, the political aspect, and the social aspect. By covering these three aspects that have been impacted by the work of the ICTY, the Thesis provides a clear picture of the overall impact of the ICTY in Serbia and Croatia in a comprehensive and systematic manner.
Since the establishment of the ICTY there has been scholarly analysis in relation to the cooperation of the ICTY with Croatia and Serbia.13 To my knowledge this is the first time that a more specific analysis has been conducted on the impact of the ICTY on domestic politics. Although this Thesis inevitably covers the issue of cooperation of each of the selected countries with the ICTY, it also expands to examine the impact of the institutional and legislative changes in the context of war crimes on domestic politics in Serbia and Croatia. In addition, this research differs from previous research in that previous research on the ICTY’s cooperation with the
13 Analyses have been provided in Victor Peskin, International Justice in Rwanda and the Balkans-Virtual Trials
and the Struggle for State Cooperation, Cambridge University Press, (2008), Victor Peskin and Mieczyslaw P. Boduszynski, Croatia’s Moments of Truth: The Domestic Politics of State Cooperation with the International Criminal Tribunal for the Former Yugoslavia, eScholarship, University of California, 1 January 2003, Christopher Lamont, International Criminal Justice and the Politics of Compliance, Ashgate Publishing
Company, England, (2010), Nicolas M. Rajkovic, The Politics of International Law and Compliance, Routledge, New York, (2012), Mladen Ostojić, Between Justice and Stability, Ashgate, 2014.
selected countries has only covered the period up to 2014, while this Thesis covers the period from the establishment of the ICTY until today. There has been scholarly analysis on the process of dealing with the past in the Balkans,14 but to my knowledge there has been no scholarly analysis that examines the interpretation by the political elites of the judgments in the selected ICTY cases. It is important to note that two of the selected ICTY cases, in particular the cases against Vojislav Šešelj and Radovan Karađić, received first instance judgment in 2016. Hence, to my knowledge there has been no scholarly analysis that covers the interpretation by the political elites of these recent judgments and that examines the impact of their statements on the process of reconciliation in Serbia and Croatia.
14 Analysis has been provided by Jelena Subotic, Hijacked Justice: Dealing with the Past in the Balkans, Cornell
Chapter 2: ICTY´s impact on the legal sphere in Croatia
2.1. IntroductionThis chapter discusses the impact of the International Criminal Tribunal for the former Yugoslavia (ICTY) on Croatia’s domestic legal and judicial sphere and the process of strengthening the rule of law in relation to prosecuting war crimes in the Republic of Croatia. The purpose is to analyze the institutional and legislative impact of the ICTY on the national judiciary and legislative framework in the context of prosecuting war crimes in the national courts in Croatia.
The UN Security Council established the ICTY on 25 May 1993 at a time when the war was still on going and Serbian forces occupied one third of Croatia. The Tribunal was founded ‘with the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed on the territory of the former Yugoslavia’,1 as well as ‘to contribute to the restoration and maintenance of peace’.2 The ICTY was established as a non-permanent ad hoc institution, and provided a temporary solution to address the problem that Yugoslav countries and their national judiciaries did not have the capacity to prosecute perpetrators of war crimes in accordance with internationally recognized standards. The ICTY played a significant role because it enabled justice to be served at a time when national judiciaries were unable to investigate and prosecute crimes.
UN Security Council Resolution 15033 and Resolution 1534,4 endorsed the Completion Strategy with the aim of completing all investigations by 2004, all trial activities of the first instance by the end of 2008, and all work by 2010. In this respect, the Completion Strategy initiated the practice of transferring cases to domestic judiciaries in Croatia. Hence, a process of necessary changes in the institutional and legislative framework in the context of war crimes Croatia started. In this regard, the ICTY provided suggestions and assistance for the institutional and legislative development in the context of prosecuting war crimes.
1 Security Council Resolution 827 from 1993. Available at: http://www.un.org/docs/scres/1993/scres93.htm. 2 Ibid.
3 Security Council Resolution 1503 was adopted on 28 August 2003. Available at: http://www.unmict.org/specials/ictr-remembers/docs/res1503-2003_en.pdf.
4 Security Council Resolution 1534 was adopted on 26 March 2004. Available at: http://www.icty.org/x/file/Legal%20Library/Statute/statute_1534_2004_en.pdf.
It is important to note that Croatia applied for accession to the European Union in February 2003 and that one of the prerequisites for entering the European Union was for Croatia to improve the prosecution of war crimes. As a country that had recently undergone a period of conflict, one of the necessary conditions for Croatia to enter the European Union was the legislative and institutional reform of the judiciary, especially in relation to prosecuting war crimes.5 In this regard, the EU emphasized that the adoption, negotiation and enforcement of the rules listed in Chapter 23 of the EU’s Acquis Communautaire, which stresses the importance of impartiality, integrity and high standards of adjudication by the courts, was essential to ensure the rule of law.6 For this purpose, necessary efforts were taken to ensure the removal of all external influences on the judiciary, to build the capacity of the judiciary through training, and to guarantee fair trials. The ICTY contributed to the transition process in Croatia by providing assistance in incorporating in the domestic judiciary the new standards established by the ICTY that relate to accountability for war crimes, crimes against humanity, and genocide, as well as by providing assistance in the process of enabling domestic war crime trials. During this period, the European Union exerted pressure on Croatia to implement reforms in the judicial system in relation to prosecuting war crimes.7 According to Vesna Teršelić, Director
of the NGO Documenta – Center for Dealing with the Past, in Zagreb, the legislative and institutional reforms in Croatia in relation to prosecuting war crimes were the result of pressure from the European Union and the impact of the work of the ICTY.8 (The role of the European Union in the implementation of the reforms will be analyzed in detail in the following chapter.) The focus of this chapter is the impact of the work of the ICTY on institutional changes in Croatia as well as on the transformations of the Croatian laws and regulations relating to prosecuting war crimes in the national courts. First, the problems of the domestic war crime trials will be examined, as well as Croatia’s response to criticisms of these problems in domestic war crime trials. Second, there will be an analysis of the institutional and legislative reforms
5 Vesna Teršelić, Praćenje suđenja za ratne zločine i reforma pravosuđa u kontekstu pregovora o integraciji u
Europskoj uniju, in Procesuiranje ratnih zločina-Jamstvo procesa suočavanja s prošlošću u Hrvatskoj [ Prosecuting war crime trials in Croatia], Zagreb, 2014, p.35.
6 Chapters of the acquis. Available at: http://ec.europa.eu/enlargement/policy/conditions-membership/chapters-of-the-acquis/index_en.htm.
7 Such emphasis was made in all EU Progress Reports on Croatia. Available on:
http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=505DC0561.
undertaken to tackle the problems identified in domestic war crime trials, with an emphasis on assessing the impact of the ICTY on these changes.
The chapter will argue that the work of the ICTY had an impact on various important changes in the Croatian judiciary. In particular, it had an impact on the following aspects: the use of evidence collected by ICTY investigators in domestic war crime cases; the improvement of the position of victims and witnesses; the interpretation of the concept of ‘command responsibility’ in domestic war crime cases; the recognition of rape as a crime against humanity in Croatian Law; and the process of capacity-building in the national judiciary. The chapter will also argue, however, that this impact of the ICTY could have been much greater, since, due to rooted legacies from the 1990s, most of the changes were only formally implemented and were mainly implemented for the purpose of meeting the requirements for entering the European Union. Once Croatia entered the European Union, efforts for improvements in this area came to a halt, and there is thus a danger that the same problems will return to the system.
2.2. Problems of domestic war crime trials and the need to tackle these problems
Croatia’s national courts began processing cases related to war crimes in the 1990s. At that time, however, the prosecution of war crimes was a highly problematic undertaking. The war was still taking place on Croatian territory, making it extremely difficult either to obtain accurate information about the occurrence of certain events or to collect material evidence, which was often located on occupied territories. Finding eyewitnesses was also a very challenging task, since the only eyewitnesses were often perpetrators of war crimes themselves.9 In addition, the State Attorney Office in Croatia lacked experience in preparing indictments for war crimes or in applying the Geneva Conventions of 1949 and their Protocols, and in applying the Genocide Convention.10 As a result, the indictments prepared by the State Attorney Office in Croatia were vague and inaccurate, typically containing charges against a large amount of people, whilst the trials were inefficient, lacking sufficient and reliable evidence as well as adequate defense lawyers.11 The indictments were mainly against Serbs, and there were no indictments concerning war crimes against Croats because the political and
9 Veselinka Kastratović, Optužnice podignute devedesetih za kaznena jela protiv vrijednosti zaštićenih
međunarodnim humanitarnom pravom, in Procesuiranje ratnih zločina-Jamstvo procesa suočavana s prošlošću u Hrvatskoj, Zagreb, 2014, p.35.
10 Ibid.
11 Mladen Stojanović, Karakteristični primjeri suđenja za ratne zločine, in Procesuiranje ratnih zločina-Jamstvo
legal elite was of the opinion that it was impossible for crimes to be committed during a defensive war for independence.12 Poorly formulated indictments, partial trials based on the national origins of the defendants, and lack of evidence were typical problems during the 1990s, and as will be demonstrated below, the legacies from the nineties were so deeply rooted in the Croatian judiciary that some of these problems still pose a threat to the Croatian judiciary. In order to address and tackle the problems in domestic war crime trials, the Croatian judiciary underwent institutional and legislative reforms as a result of the impact of the work of the ICTY, as well as in response to the prospects for entering the European Union. From the moment that Croatia declared independence13 the functioning of the judiciary has been monitored by both domestic and international NGOs14 and the Organization for Security and Cooperation in Europe (OSCE), which regularly assesses the work of the judiciary and informs public and governmental organizations about the weaknesses as well as the improvements related to the reforms of the judiciary.15 Hence, from 2005 to the present day, domestic NGOs and the OSCE have prepared annual reports in which they have identified problems and provided recommendations for those areas that require further improvement. These reports are discussed with representatives from the judiciary during roundtable meetings organized by local NGOs for the purpose of examining possibilities for improvements in the areas facing problems.16 In the following, I elaborate on the main problems identified by both domestic and international NGOs in the context of domestic war crime trials. These include problems of partiality, trials held in absentia, poor and unclear indictments, poor protection of witnesses, political interference in domestic war crime trials, and the repetition of court trials,17 rendering these trials in violation of international standards for a fair trial.
12 Ibid.
13 Croatia declared independence in June 1991.
14 These organizations later established the NGO Documenta-Center for Dealing with the Past in Zagreb: Center
for peace, non-violence, and human rights, Osijek, Civil Committee for Human Rights (CCHR), Croatian Helsinki Committee for Human rights.
15 Vesna Teršelić, Praćenje suđenja za ratne zločine i reforma pravosuđa u kontekstu pregovora o integraciji u
Europskoj uniju, in Procesuiranje ratnih zločina-Jamstvo procesa suočavana s prošlošću u Hrvatskoj, Zagreb, 2014, p.41.
16 Vesna Teršelić, Praćenje suđenja za ratne zločine i reforma pravosuđa u kontekstu pregovora o integraciji u
Europskoj uniju, in Procesuiranje ratnih zločina-Jamstvo procesa suočavana s prošlošću u Hrvatskoj, Zagreb, 2014, p.42.
17 Katerina Kruhonja, Annual report on Monitoring of War Crimes Trials in the Process of Dealing with the Past,
2.2.1. Lack of impartial trials and poor protection of witnesses
Partial trials and weak protection of witnesses have been the most prevalent problems in domestic war crime trials.
An impartial judiciary is one of the requirements for a fair trial as prescribed by the International Covenant on Civil and Political Rights (ICCPR),18 the Universal Declaration for Human Rights,19 and the European Convention for Human Rights, which stipulates that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.20 When the judiciary is impartial, judges take objective decisions based solely on the law and the facts, without taking into consideration the origins of the defendant or any personal matters or benefits.
In the case of domestic war crime trials in Croatia, one of the main problems was the partiality of trials, which constituted an impediment to the right to fair trial. During the 1990s, partiality based on the national origins of the defendants was very common in war crime trials, when only the war crimes committed by Serbs were prosecuted while there were no charges of war crimes committed by Croatian army and police forces.21 One of the reasons for this different treatment of defendants according to their national origins was that the judges and prosecutors themselves had suffered personal losses during the conflict and therefore found it difficult to maintain impartiality when conducting war crime trials.22 In this regard, the Minister of Justice stated: “Considering the open wounds of the war, an initial greater emphasis on the prosecution of Serbs for war crimes is also readily understandable. For the same reasons, sentencing disparities observed can also be understood.”23 At the same time there was a denial on the part of the judges and prosecutors that the Croats could have committed war crimes during the defensive military operations “Storm” and “Flash” that took place in 1995 with the aim of regaining the Serb-occupied territories. The Croatian elite did not acknowledge the crimes committed by the
18 Article 14(1), International Covenant on Civil and Political Rights. 19 Article 10 of the Universal Declaration for Human Rights.
20 Article 6 (1) of the European Convention for Human Rights (ECHR). 21 Croatia Behind the wall of Silence, p. 10.
22 OSCE Background Report: Domestic War Crime Trials 2005. Available at: http://www.osce.org/zagreb/14425?download=true. p. 40.
23 Prosecutor v. Ademi and Norac, Submission of the Republic of Croatia to the Court’s Order for further
Information on Certain Jurisprudential Aspects of the Croatian Law in the Context of the Prosecutor’s Request under Rule 11 bis, February 2005, pp.4-5; Quoted in OSCE Background Report: Domestic War Crime Trials 2005, available at: http://www.osce.org/zagreb/14425?download=true.pp.40;
Croat forces during these operations because they were convinced that war crimes could not have occurred during a defensive operation that had the aim of liberating Croatia.24 Not only does partiality in the judiciary comprises a serious violation of the right to free trial, it is also contradictory to the rule of law and the international standards for a fair trial. The fact that the political elite publicly justified the partiality in the judiciary signified that the problem had serious dimensions and needed to be addressed immediately in order to establish the rule of law in Croatia.
After 2001 there was a slight improvement in this regard, and there were some allegations for war crimes committed by Croats.25 However, discriminatory practices in war crime trials were still present and there was “a hugely disproportionate number of cases being brought against the ethnic Serb minority, some on far weaker charges than cases against ethnic Croats”.26 Moreover, there was discriminatory practice in the different types of charges levelled at Serbs and Croats: Serbs were typically charged for crimes such as property destruction, abuse and killings, while Croats were charged only for killings.27 The presence of partiality was also
observed in the way the defense lawyers intimidated witnesses when testifying against Croat perpetrators.28 The OSCE observed a discrimination on the basis of national origin in the
verdicts issued in 2002 because the number of Serbs found guilty was much higher than the number of Croats found guilty, since most of the verdicts in 2002 acquitted the Croat defendants.29 In 2004, there were certain improvements in regard to ethnic bias in war crimes proceedings, and public statements were issued by government representatives and the judiciary about the importance of impartiality among judges.30 The Head of the OSCE Mission to Croatia, Ambassador Peter Semneby, emphasized that the national origin of defendants and victims continued to affect war crime proceedings, and that measures still needed to be taken to ensure
24 OSCE Background Report: Domestic War Crime Trials 2005. Available at: http://www.osce.org/zagreb/14425?download=true. p. 44.
25 Katerina Kruhonja, Annual report on Monitoring of War Crimes Trials in the Process of Dealing with the Past,
Center for Peace, Non Violence and Human Rights, Osijek, 2005. Pp.9.
26 Justice at Risk: War Crime Trials in Croatia, Bosnia and Herzegovina, Serbia and Montenegro, Human Rights
Watch, October 2004, available at: https://www.hrw.org/report/2004/10/13/justice-risk/war-crimes-trials-croatia-bosnia-and-herzegovina-and-serbia-and.
27 OSCE Background Report on Domestic War Crime Prosecutions, “Transfer of ICTY Proceedings and Missing
persons”, OSCE Mission to Croatia, 12 August 2005.
28 Annual report on Monitoring of War Crimes Trials in the Process of Dealing with the Past, edited by Katerina
Kruhonja, Center for Peace, Non Violence and Human Rights, Osijek, 2005. p.9.
29 OSCE Background Report: Domestic War Crime Trials 2002, available at: http://www.osce.org/zagreb/24613?download=true.
30 OSCE Background Report: Domestic War Crime Trials 2005, available at: http://www.osce.org/zagreb/14425?download=true.
that all parts of the Croatian judiciary were sufficiently prepared to impartially adjudicate war crime trials.31 “This is essential,” declared Semneby, “to achieve the Government's stated objective of a uniform standard of criminal responsibility, regardless of national origin, as well as a single standard of justice for victims.”32
Nevertheless, partiality based on national origin continued to be present throughout the following years, and there were concerns that the decisions as to which cases were to be investigated and prosecuted were based on the national origins of the accused.33 According to Amnesty International, there was obvious bias in prosecutions conducted during the period 2005–2009, with 73 out of 88 war crimes verdicts in Croatia being related to members of the Jugoslav National Army (JNA) or Serb forces, comprising 83% of all the war crime trials that took place in Croatia throughout that period.34 Partiality in domestic war crime trials was also present in regards to sentencing, with the Croatian judiciary showing obvious disparities in sentencing Croats and Serbs for equally serious crimes. Namely, the sentences given to Croats were significantly lower than the sentences given to Serbs.35 In order to demonstrate the
existence of such disparities in regard to sentencing I shall point to the cases of ‘Kerestinec’ and ‘Borovo selo’.
In the case of ‘Kerestinec’, five defendants were alleged to have committed war crimes against prisoners of war in the prison of Kerestinec in Zagreb during the period from December 1991 to May 1992.36 In a first instance judgement issued in October 2012, the judge established : “There is no doubt whatsoever that prisoners of war in Kerestinec were sexually abused on a number of occasions,” and established beyond reasonable doubt that in the prison of Kerestinec the prisoners of war and a number of civilians were subject to torture, electric shocks and sexual abuse that constituted war crimes. 37 However, the sentences imposed on the defendants were
31 OSCE Background Report: Domestic War Crime Trials 2002. Available at: http://www.osce.org/zagreb/24613?download=true.
32 OSCE Mission calls for reform of domestic war crime procedures in Croatia, 22 June 2004. Available at: http://www.osce.org/zagreb/56444.
33 ‘Behind the Wall of Silence: Prosecution of War Crimes in Croatia’, Amnesty International, 2010, p.23. 34 Ibid., p. 23.
35 Ibid.
36 ‘Crime in prisons in Gajeva street in Zagreb and in Kerestinec’, Documenta-Center for Dealing with the Past,
Zagreb. Available at: http://www.documenta.hr/en/crime-in-prisons-in-gajeva-street-in-zagreb-and-in-kerestinec.html.
37 ‘Crime in prisons in Gajeva street in Zagreb and in Kerestinec’, Documenta-Center for Dealing with the Past,
Zagreb. Available at: http://www.documenta.hr/en/crime-in-prisons-in-gajeva-street-in-zagreb-and-in-kerestinec.html.
below the minimum sentence prescribed by Croatian law for a war crime. Namely, the Croatian law prescribes five to twenty years of imprisonment for a war crime, while the former commander of Kerestinec prison, Stjepan Klarić was sentenced only to three years and six months, the second accused Dražen Pavlović was sentenced to only one year, while the third accused Viktor Ivančin was sentenced to two years, and the fourth and fifth accused received one year.38
The Presiding Judge clarified that the reason for imposing prison sentences lower than the minimum prescribed by Law was the presence of certain mitigating factors. It was established in the judgment that beside taking into consideration the time spent in detention there were certain circumstances that due to “their amount and significance merit the capacity of ‘particularly mitigating’, and as such form the basis for application of the concept of sentence mitigation.”39 In this respect, a broad amount of mitigating factors were taken into account such as: appropriate standing before the court, absence of previous convictions, participation in the Homeland war, and contribution to the defense of Croatia.40
The Appeal Chamber of the Supreme Court of the Republic of Croatia, on 16 April 2014 annulled the first instance verdict due to wrongfully established factual situation and returned the case to the County court in Zagreb for retrial.41 It is important to note that once the case was sent for retrial the indictment was amended, and beside the charge for war crimes against prisoners of war, the indictment also alleged the accused for committing a war crime against civilians. After the retrial proceedings were completed, on 24 March 2016, the Country court in Zagreb delivered a judgment and pronounced the first accused Stjepan Klarić guilty for committing crimes against war prisoners and crimes against civilians, and sentenced him to five years, and eight years for each of these crimes.42 The second accused was sentenced to two years, while the third accused was sentenced to three and five years for each of these crimes. The fourth accused was sentenced to one year and six months, while the fifth accused was
38 Mladen Stojanović and Milena Čalić Jelić, “War Crime Monitoring Report for 2013”, Documenta, March
2014, p.94.
39 Report of the monitoring of the trial in the case Kerestinac, Documenta, 31 October 2012, Available
at:https://www.documenta.hr/assets/files/Nepravomocno%20presudjena/KERESTINEC_izvjestaji_s_pracenja_g lavne_rasprave.pdf.
40 Report of the monitoring of the trial in the case Kerestinac, Documenta, 31 October 2012, Available
at:https://www.documenta.hr/assets/files/Nepravomocno%20presudjena/KERESTINEC_izvjestaji_s_pracenja_g lavne_rasprave.pdf.
41 Crime in prisons in Gajeva street in Zagreb and Kerestinec, Documenta. Available at:
https://www.documenta.hr/en/crime-in-prisons-in-gajeva-street-in-zagreb-and-in-kerestinec.html.
sentenced to two years.43 On 15 February 2017 the Supreme Court of the Republic of Croatia (Vrhovni Sud Republike Hrvatske-VSRH), delivered a final verdict and established that the County court violated the Criminal Procedure Act by infringing the provision “reformation in peius.”44 VSRH referred to the amendment of the indictment and established that the indictment and judgment could not be changed by putting the defendants in a worse position. Hence, VSRH annulled the verdict by the County court in Zagreb, and sentenced Stjepan Klarić to 4 years and 6 months’ Dražena Pavlović to 2 years, Viktora Ivančan to 3 years, Željak Živec to 2 years and Goran Štrukelj to one year and five months’ imprisonment. It is cleat that the imposed sentences were again bellow the minimum prescribed by Law. In this respect, the VSHRS confirmed that the first instance verdict properly addressed the mitigating factors that influence the extent of the sentence. Thus, VSRHS considered the same mitigating factors as the County court, including the participation in the Homeland war.
According to Human Rights Watch (HRW), considering as a mitigating factor that “the defendants were on the ‘right’ side of the conflict defies a well settled principle of international humanitarian law that all parties to a conflict must be treated equally under the law.”45 In
addition this is in contradiction with one of the fundamental purposes of international humanitarian law, which is to protect all people who do not participate in the fighting.46 The ICTY Statute considers as mitigating factors the gravity of the offence and the individual circumstances of the convicted person. 47 In addition, the ICTY case law has established a broader interpretation of the individual circumstances of the convicted persons. However, ICTY case law has established that fighting for the good of one’s community cannot be considered as a mitigating factor. In particular, the Appeals Chamber in the ICTY case Prosecutor v. Dario
Kordic&Cerkez rejected the submission of the defendant to the Appeal Chamber to consider
the motivation of the defendant to assist his community as a mitigating factor.48 In this respect, the Appeal Chamber stated: “The unfortunate legacy of wars shows that until today many perpetrators believe that violations of binding international norms can be lawfully committed, because they are fighting for a “just cause.” Those people have to understand that international
43 Case “ Kerestinec,” County Court in Zagreb Judgment of 24 March 2016, Case No. 3 K-rz-5/14
44 Case “Kerestinec,” Supreme Court of Croatia, Judgment of 17 February 2017, Case No. I- Kž 411-16/11. 45 “Political Considerations in Sentence Mitigation for Serious Violations of the Laws of War before
International Criminal Tribunals,” Human Rights Watch Memorandum, March 2008, p. 5.
46 Ibid.
47 Article 24 (2), ICTY Statute.
48 Prosecutor v. Kordic and Cerkez, Appeals Chamber Judgment of 17 December 2004, Case No. IT-95-14/2-A,
law is applicable to everybody, in particular during times of war. Thus, the sentences rendered by the International Tribunal have to demonstrate the fallacy of the old Roman principle of inter
arma silent leges (amid the arms of war laws are silent) in relation to the crimes under the
Tribunal’s jurisdiction.”49 In this respect, it is clear that the consideration of “participation in the Homeland war,” and “contribution to the defense of Croatia” as mitigating factors is inconsistent with the ICTY jurisprudence, and international humanitarian law.
Clearly, allowing the “participation in the Homeland war,” and the “contribution to the defense of Croatia” to be regarded as mitigating factors does not involve equal treatment of all parties in the conflicts under the law. The participation in the Yugoslav National Army (Jugoslovenska
Narodna Armija-JNA) and the Serbian paramilitary organizations cannot be considered as
mitigating factors because they were Croatia’s enemies during the conflict, while the trial took place before a domestic court in Croatia. Hence, the contribution of the members of the Croatian military forces in the homeland war put the Croatian defendants in a more favorable position than the Serbian defendants.50 According to the local NGO Documenta, the participation of the
members of the Croatian Military forces in the homeland war was perceived per se as a mitigating circumstance in domestic war crime trials in Croatia.51
Hence, it is unacceptable the contribution in the homeland to be regarded as mitigating factor for imposing sentences bellow the minimum prescribed by Law, because it undermines the gravity of the crimes committed. As stated by Documenta, imposing sentences bellow the minimum prescribed by Law to defendants, who were persistent in their commission of criminal offences, and treated the persons in captivity with sexual perversity, sadism and cruelty, cannot accomplish the special purpose of the punishment, let alone the general purpose of punishment.52 In this respect, Amnesty International expressed its concern by stating that the practice of considering the participation of the accused in the Croatian Army or police forces during the war as a mitigating factor in domestic war crime trials in Croatia, contradicts with
49 Prosecutor v. Kordic and Cerkez, ICTY, Appeals Chamber Judgment of 17 December 2004, Case No.
IT-95-14/2-A, paragraph 1082.
50 Mladen Stojanović and Milena Čalić Jelić, “War Crime Monitoring Report for 2013”, Documenta, March
2014, p.95.
51 Marko Sjekavica, Jelena Đokić Jović, Maja Kovačević Bošković, “Analiza zakonske i sudske politike
kažnjavanja počinitelja kaznenih djela ratnih zločina”, in Procesuiranje ratnih zločina-Jamstvo procesa suočavana s prošlošću u Hrvatskoj, Zagreb, 2014, p.241.
52 Mladen Stojanović and Milena Čalić Jelić, “War Crime Monitoring Report for 2013”, Documenta, March
the duty of judges to ensure that ethnicity of the accused does not play a role when imposing a sentence.”53 Clearly, the consideration of the contribution to the Homeland war as a mitigating circumstances is in contradiction with international humanitarian law and ICTY jurisprudence, and as such it is a problem in domestic jurisprudence in Croatia that needs to be addressed. In the “Borovo selo” case, which was also conducted in front of a domestic court in Croatia, the defendants were members of Serbian paramilitary formations alleged to have captured, tortured, and killed civilians in Borovo and to have committed war crimes against civilians.54 The County court in Vukovar, on the 14 December 2005, sentenced the defendants Jovan Curcić to fourteen years, the defendant Miloš Držajić to ten years, the defendant Mladen Maksimović to seven years, the defendant Dušan Mišuć to six years, the defendant Dragan Savić to six years, and the defendant Jovica Vučenović to six years.55 There was an appeal to these sentences, and the Supreme Court in Croatia in its entirety dismissed the appeals of the accused, and confirmed the first instance verdict.56
Thus, it is clear that in both cases “Borovo selo”, and “Kerestinec” the defendants were charged for war crimes. The sentences delivered by the Croatian Court in the Borovo selo case, in which the defendants were members of Serb military formations, were much higher than the sentences delivered in the Kerestinec case where the defendants were members of Croatian military formations. Thus, the only difference in these two cases was the national origin of the defendants, while the length of the sentences differed significantly. These examples show that the domestic courts in Croatia applied double standards when prescribing sentences, based on the national origin of the defendants.57 The existence of double standards was also observed by the Organization for Cooperation and Security in Europe (OSCE): “At all stages of procedure from arrest to conviction, the application of a double standard against Serb defendants and in favor of Croat defendants continues as a general rule.”58
53 “Croatia: Briefing to the human rights committee on follow-up to the concluding observation”, Amnesty
International, 2011, p.10.
54 Judgment, County Court in Vukovar, No. K-12/05, County court in Vukovar, 15 December 2005; Case
“Crime in Borovo selo”, Documenta-Center for Dealing with the Past’. Available at:
http://www.documenta.hr/en/crime-in-borovo-selo.html.
55 Case “Borovo selo”, Judgment of 15 December 2005, No. K-12/05 56 Case “ Borovo Selo, Judgment of 24 May 2006, No. I Kž 257/06-7
57 Drago Hedl, ‘Kerestinec Verdict Shows Double Standard in Croatian Judiciary’. Balkan Insight, 6 November
2012. Available at: http://www.balkaninsight.com/en/article/croatian-judiciary-s-double-standards.>accessed on 10 November 2016.
In a report for 2013, local NGOs emphasized the unwillingness of the prosecution to investigate members of the Croatian military formations for certain crimes, such as the destruction of property of Serb citizens, the intimidation of Serbs for the purpose of expelling them from Croatia, and unlawful evictions of Serb citizens from the larger towns in Croatia.59 The report further pointed out that while there had been an obvious increase in the number of investigations and indictments for serious crimes committed by members of the Croatian military formations during the years when the negotiations for the accession to the European Union was Croatia’s priority, there were no investigations or indictments against Croatian members of military formations after Croatia entered the European Union.60 This statement supports the argument that the Croatian judiciary made efforts to tackle the problems of partiality primarily in response to the EU’s criticism, and for the purpose of entering the European Union. However, the fact that there were no investigations and indictments against Croat military members after Croatia’s entry into the EU proves that the efforts made by Croatia to tackle the partiality problem in domestic war crimes had a political aim and were not the result of their willingness to ensure accountability for war crimes regardless of national origins.
2.2.2. Weak protection of witnesses
Witness testimonies provide a significant contribution to the trial process by establishing crucial evidence and revealing the truth about the occurrence of certain crimes. Nonetheless, since the beginning of war crime trials in Croatia the protection of witnesses has been a problematic issue and witnesses have often been threated, intimidated or murdered. In order to demonstrate that the protection of witnesses was a serious problem in Croatia, I shall point to the case of Milan Levar, a former Croatian Army officer and a volunteer during the Croatian war of independence. In 1997 and 1998, ICTY investigators questioned Milan Levar in relation to crimes that occurred in Gospić. He revealed a lot of important information in the investigation phase, but he never testified in a courtroom because on 28 August 2000 he was killed by a bomb located under his car in the yard of his family house in Gospić.61 Also, in 2008, Vladimir
59 Mladen Stojanović, Milena Čalić, ‘Monitoring War Crime Trials Report for 2013’, Documenta-Center for
Dealing with the Past, Center for Peace Nonviolence and Human Rights-Osijek, Civic Committee for Human Rights, Zagreb and Osijek, 2014. p. 56.
60 Mladen Stojanović, Milena Čalić, ‘Monitoring War Crime Trials Report for 2013’, Documenta-Center for
Dealing with the Past, Center for Peace Nonviolence and Human Rights-Osijek, Civic Committee for Human Rights, Zagreb and Osijek, 2014. p. 56.
61 Jutarnji, “Gospic: Poginuo zastiteni haaski svjedok Milan Levar,”Jutarnji List, 29August 2000, available at: http://www.hsp1861.hr/vijesti/200829leva.htm. > accessed on 10 November 2016
