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Bringing Justice to Victims? Report on ICTY’s work in progressDecember 2014 - January 2015

ICTY believes it will complete its work in 2017, though challenges remainSpecial analysis by Zuzana Pavelková, Intern, PCRC, Bosnia and Herzegovina

On the 10th Of December 2014, the ICTY Presi-dent Judge The-odor Meron, as well as the Pros-ecutor Serge B r a m m e r t z , addressed the United Nations Security Coun-cil with regard to the Tribunal’s completion strategy report presented earlier in 2014.

At present, there are four trial and five appeal cases remain-ing to be ruled by the Tribunal. The ICTY is hoping to deliver three trial and four appeals judgements in 2015, making it one of the most important years in its history. The deci-sions to be rendered include some of the most long-await-ed and crucial ones, involv-ing high-level accused such as Vujadin Popović, Ljubiša Beara, Vojislav Šešelj or Ra-dovan Karadžić. By the end of 2015, the Tribunal expects

the Mladić and Prlić cases to be the last ones remaining, confirming once again the end of 2017 as the anticipated date of the ICTY’s disclosure.

However, the public has seen the disclosure date being postponed repeatedly on sev-eral occasions in the past, with the last disclosure date being December 2014 - a matter for which the ICTY has been at times subject of critique. A healthy scepticism remains around the currently suggest-ed disclosure date even at this

The International Criminal Tribunal for the Former Yugoslavia, founded in 1995 and located in The Hague. Author: Goldorak/Wikimedia Commons.

Key pointsThe ICTY is to complete its work by 2017. Detainees’ health conditions might prove a major obstacle in meeting the deadline.

Witness testimonies in defence of Ratko Mladić give further insight in the role of the media in the 1992-1995 conflict.

The ICTY Appeals Chamber confirmed the sentences for five high-ranking Bos-nian Serb military officials responsible for the Srebrenica massacre of 1995.

When provisonally releasing Vojislav Šešelj, the ICTY failed to take the appropriate and necessary measures to ensure his release would not endanger witness and victims’ communitites.

Note: In the meantime before publishing this report, the decision on the provisional release of Vojislav Šešelj has been revoked by the ICTY Appeals Chamber on the 30th of March 2015. Šešelj announced he will “try to question” the decision. We will bring you more details in our up-coming reports.

About PCRCThis ICTY report is a service of the Post-Conflict Research Center (PCRC) in Sarajevo, Bosnia and Herzegovina.

PCRC’s mission is to cultivate an envi-ronment for sustainable peace in Bosnia and Herzegovina (BiH) and the greater Balkans region using creative multime-dia projects that foster tolerance, moral courage, mutual understanding, and positive change.

For more information, visit p-crc.org.

Post-Conflict Research Center

time. The ICTY President puts it very clear-ly: With the judicial process being inher-ently dynamic and mutable, taking place against a background of great legal and logistical complexity and affected by any matter of unforeseen developments, the forecasts regarding the Tribunal’s comple-tion must be “inevitably subject to revision”.

Detainees’ health cOnDitiOn remains a cru-cial challenge

at present, the health cOnDitiOns Of several Detainees appear to pose a major obstacle to finishing the ICTY’s work in a timely manner. The proceedings in the Goran Hadžić-case have been temporarily adjourned since Oc-tober 2014 due to Hadžić’s deteriorating health status. Similarly, following medical advice the proceedings with Ratko Mladić have been limited to four sitting-days weekly, further delaying the judgement until March 2017, or even later. Besides impacting the Tribunal’s work in the pro-cedural regard, the detainee’s health status according to Meron also raises humanitar-ian concerns, and is thus an “unavoidable matter” for the Tribunal, and him personally.

The Prosecutor puts the matters even more clearly, stating that measures deemed necessary with regard to detain-ee’s health, make the ultimate disclosure of trials in fact “beyond his control”. More-over, he expressed concerns as to the “intense reaction” around the health-re-lated provisional release of Vojislav Šešelj, which in his opinion shows that recon-ciliation in the region remains “fragile”.

Indeed, Judge Meron has sometimes been perceived as a controversial figure in the past, and the Prosecutor is cer-tainly right to claim that without provid-ing further explanation to the victims’ and witness’ communities, such measures only threaten to strain the Tribunal’s rela-

tionship with these communities further.  

cOOperatiOn with bOsnian authOrities is satisfactOry, says the prOsecutOr

as his Office relies On cOOperatiOn with the states of the former Yugoslavia in or-der to achieve its work successfully, the Prosecutor underscored in his speech what needs to be further improved at the national level in Bosnia and Herzegovina.

As noted already in the completion strat-egy report from November 2014, Bram-mertz showed his satisfaction with the overall level of cooperation between the Office of the Prosecution and the author-ities in Bosnia and Herzegovina, Croatia, and Serbia in completing the Tribunal’s work. During the reporting period dating from May to November 2014, he received answers to almost all of his requests for assistance. Especially in Bosnia and Her-zegovina, the authorities have responded promptly and adequately to his requests, and have made an important contribu-tion to both witness protection and en-abling their appearance at the Tribunal.

yet further imprOvement in natiOnal war crimes prOsecutiOn still necessary

The main issue of concern remains there-fore, the process of transition of war crimes cases from the Tribunal to national institu-tions, and the question of effective prose-cution of those at the national level. Bram-mertz urged the national justice authorities to focus more on the most complex, high priority cases involving senior- and mid-lev-el suspects. In his opinion, the contrary is being done at present. He further de-scribed as problematic the fact that prose-cutorial decisions against a number of sus-pects are still pending, and multi-suspect cases continue to be broken up into indi-vidual indictments. He also expressed con-

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cerns that the quality of prosecutorial work seems to be at times sacrificed, in order to increase the quantity of indictments. The quality of indictments appears to the Pros-ecutor especially “uneven” as not enough of them charge crimes against humanity.

All in all, although progress is being done and cooperation could be described as satisfactory, the significant investments made in building the capacities of national justice authorities, have according to the Prosecutor, not yet brought about proportionate results. He stated that the national courts will not be able to complete the most complex cases by 2015, as has been previously laid down in the National War Crimes Strategy from 2008.

Describing the circumstances of the delays the ICTY is facing in completing its work as “beyond the Prosecutor’s control”, and yet at the same time criticizing national authorities for sim-ply not working efficiently enough, could be perceived as hypocrisy. The ICTY and national war crimes jurisdiction alike must inevitably face very similar, if not identical challenges as to the mutable, dynamic and hardly foreseeable nature of the proceed-ings, and the complexity of the cases to be dealt with preferably. The ICTY Prosecutor seems to acknowledge that at least par-tially, as he appeared reassured that “good management and leadership in the BiH Prosecutor’s Office can put matters back on the right track“. Indeed, a more effective case management would surely not harm both the ICTY and national courts alike.

hearing Of witnesses in Defense Of ratkO Mladić continues

the trial proceedings with ratko Mladić

continued with hearings of several defence witnesses in the course of December 2014 and January 2015. Among the most interesting of them was the one delivered by Snježan Lalović, a TV journalist in Pale during the relevant period, which provid-ed several interesting insights into the role of media during the 1992-1995 conflict.

Between May and June 1995 more than two hundred peacekeepers and military personnel were taken hostage at various

locations in Bosnia and Herzegovina. Ac-cording to the indictment, the hostage tak-ing formed part of a war strategy whose goal was to compel NATO forces to ab-stain from bombing Bosnian Serb military targets. When cross-examining the wit-ness, the Prosecutor tried to find further supportive evidence for these allegations.

Lalović testified that as soon as the NATO bombing of Pale started on the 26th of May 1995, he received the assignment to write about its circumstances. There he ran into a group of uniformed man, who were holding two members of the United Nations Protection Force (UNPROFOR) as hostages, handcuffed to a bridge. Lalović asked the uniformed men for permission to

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“General Mladić, you gave them chocolate and they said you were a criminal!“ A rally in support of Ratko Mladić. Banja Luka, Mai 2011. Author: Rade Nagraisalović/Wikimedia Commons.

record the scene and was told that the UN-PROFOR member from Ghana would an-swer his questions (video footage from this event is to be found on YouTube). He de-nied having forced the UNPROFOR mem-bers to give the interview, but was not able to reply to the Prosecution’s question as to whether the armed men did in fact force them. Lalović also stated that he cannot tell whether the uniformed men were Vojska of Republika Sprska (VRS) soldiers or not, since they were not wearing any official insignia.

tv repOrts maDe tO fenD-Off natO bOmb-ings?

Despite the fact that the witness cOulD nOt iDentify the unifOrmeD men, one of the judg-es was particularly interested as to wheth-er Lalović was receiving direct orders from them. Especially as he testified that having finished the film shooting, he drove them

and the hostages from Pale to Jahorina. After a discussion with the judge, Lalović replied again vaguely, stating that whether he was or was not taking direct orders from the military was a “matter of interpretation”.

Moreover, the witness denied having any contact with Mladić whatsoever as far as this assignment was concerned. Mladić’s

name was according to Lalović’s testimony not mentioned even once, and he was not seen anywhere near the facilities where he was recording. Consequently, Lalović concluded that the hostage taking was not carried out on the basis of Mladić’s orders. However, in contradiction to the witness’ view, the Prosecution recalled the recorded communications between General Mladić and General Rupert Smith, who was responsible for the UN mission during the relevant period. In two of those communications, Mladić claimed the UN-PROFOR members would be killed on TV, if NATO bombings were to continue.

In this context, the Prosecution asked the witness whether his TV reports were in fact to fend off NATO bombings, and whether the purpose of taking hostages as such was to stop NATO from bomb-ing VRS facilities. After a longer discus-

sion the witness concluded he could not answer the question with a simple “yes or no”, as the reporting in his opinion also served to inform, and above all warn the general public.

meDia likely tO serve cOncrete military aims During situatiOns Of cOnflict

even in absence Of certainty as tO whO the unifOrmeD men were and what the goal of the report-ing was, Lalović’s testimony still

gives some interesting insights into the role of media during the Bosnian conflict. What we can identify is at least that a reporter was either willing, or was forced to coop-erate to a certain extent with one side of the conflict. It is clear that the uniformed men not only decided whether filming took place and who would be filmed, but also exercised influence over the content of the footage. One of the UNPROFOR members who testified at the court earlier during the

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Media play a crucial role in situations of conflict but can also prove a mean-ingful tool for reconciliation. In the picture: Velma Šarić from Post-Conflict Re-search Center (PCRC) giving and interview to the Goražde TV about the PCRC’s project aiming at creating sustainable peace. Author: Clara Maria Casagrande.

proceedings claimed they were forced by the armed soldiers to accuse NATO of bombing ci-vilian targets, and were threat-ened with harm had they said something different. Admit-tedly Lalović hadn’t received direct orders from the military, yet it is hard to believe his re-porting served purely public or civil purposes. Even if Lalović’s reports were not deliberately directed at military goals, they were at least capable of serv-ing certain military aims – namely to force NATO to abstain from bombing Bosnian Serb targets. This only confirms what a cru-cial, and at times problematic role the me-dia may play during situations of conflict.  appeals chamber cOnfirms trial chamber JuDgement in srebrenica-case

On the 30th Of January, the ICTY Ap-peals Chamber largely confirmed the Trial Chamber’s judgment in Popo-vić et al., convicting five high-rank-ing Bosnian Serb military officials for the Srebrenica-massacre of July 1995.

The Srebrenica-case originally involved sev-en different accused, and was the largest case the ICTY ever dealt with. In its initial judgment from June 2010, the Trial Cham-ber held the accused Vujadin Popović, Lju-biša Beara, Drago Nikolić, Vinko Pandure-vić, Radivoje Miletić, Ljubomir Borovčanin, and Milan Gvero responsible for a range of crimes committed in July 1995. In the course of which at least 7,000 Muslim men and boys were killed, following the takeover of the UN-declared ‘safe zone’ of Srebren-ica by Bosnian Serb forces on July 11. Ini-tially, the Trial Chamber imposed sentenc-es on the inductees ranging from life to 5 years imprisonment. As Gvero died during the appeals procedure and Borovčanin did not appeal against the decision, the Ap-

peals Judgment delivered a few weeks ago concerns only the five remaining indictees.

In the decision rendered on the 30th of January, the Appeals Chamber dismissed, either unanimously or by majority, most of the Defense challenges, yet at the same time, granted several of the Prosecution’s grounds of appeal. As a result, Popović and Beara’s life imprisonment sentences were confirmed, as well as Nikolić’s 35 years and Pandurević’s 13 years imprisonment. The only marginal modification was undertak-en in Miletić’s case, whose sentence was reduced from the initial 19 to 18 years.

an unexpecteD yet welcOmeD DevelOpment

this is a rather unexpecteD DevelOpment as in the past, the Appeals Chamber tended to largely change, or even completely over-throw the Trial Chamber judgments and acquit the inductees. In fact, the Appeals Chamber ruled that the Trial Chamber had made errors on several occasions even this time. However, in the appeals judg-es’ opinion, these errors did not result in a miscarriage of justice. Thus despite the errors, almost no changes in the sentenc-es were deemed necessary. This should be acknowledged as a positive change in the Appeals Chamber approach; not howev-

The Srebrenica-Potočari memorial center and cemetery for the more than 8000 victims of the 1995 genocide. About 1000 people are still being missed. Author: Tomáš Jungwirth.

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er, because the Appeals Chamber should refrain from correcting the Trial Chamber decisions. It is rather that it could be con-sidered as a more consistent approach in the jurisprudence the ICTY produces as an institution, first by enhancing legal certain-ty and the rule of (international criminal) law in general, and second by helping to improve the ICTY’s standing and reliabili-ty among the inflicted victim’s population. Needless to say, these were largely hit by the acquittals of past years. And thus al-though some aspects of the reasoning were perceived as not entirely unprob-lematic from a purely legal point of view (See for example David Ohlin’s thoughts on Opinio Juris and Rogier Bartels‘ com-ment on EJIL-Talk), the outcome was large-ly welcomed by international legal schol-ars and commentators alike. Furthermore, it could also prove to be a step towards improving the ICTY’s standing among the Bosnian population and both the inter-national and academic communities alike.

ŠeŠelJ cOntinues insulting victims anD wit-nesses yet remains prOvisiOnally releaseD

the name Of vOJislav ŠeŠelJ has been fill-ing international and regional front-pag-es since his provisional release from custody, and his “spectacular” return

to Serbia for medical treat-ment in November last year.

Vojislav Šešelj is founder and president of the Serbian Rad-ical Party and former member of the Assembly of the Repub-lic of Serbia during the 1992 to 1995 conflict in Bosnia and Herzegovina. He stands ac-cused of having committed crimes against humanity such as forcible deportations and other persecutions on political,

racial or religious grounds, and war crimes such as murder, torture or inhumane treat-ment during the relevant period (See Third Amended Indictment from 2007). Šešelj has spent more than ten years in custo-dy while awaiting his judgment which has been postponed repeatedly in the past years, leading to a frustration among the victims’ and witnesses’ populations, as well as on the part of the Prosecutor. As Šešelj’s health condition deteriorated in the past year, the Tribunal engaged in dis-cussions on the conditions of his provi-sional release during the summer of 2014. Trying to avoid the “Milošević”-scenario, meaning Šešelj dying in custody before the issuance of the judgment, the Trial Chamber aimed for Šešelj to undergo the necessary medical treatment in his home country. However, this procedure was soon abandoned as the inductee did not consent to adhere to the conditions of his release the Trial Chamber was about to im-pose on him. Nevertheless, as his health deteriorated very severely shortly after that, he was rapidly granted provisional re-lease without any further restrictions, ex-cept for the obligation not to contact any of the witnesses or victims and to return to the Tribunal when he is asked to do so.

And so here we are today, with Vojislav Šešelj having all the media attention he desires. It

“Our biggest wish is that all the missings will finally be found.” Mothers of Srebrenica continue in their struggle for truth and justice. Author: Clara Maria Casagrande.

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did not take him all too long from stepping out of the airplane to revoking the rhetoric of “Great Serbia” from 20 years ago, while

articulating desires such as “Separation or the whole of BiH returned to Serbia!”. Šešelj assures everybody repeatedly that he will certainly not return to the Hague volun-tarily, asking simply “Why would I go?”. And not very surprisingly, he continues insulting not only his political opponents, by highlighting “How I spilt up with Tomo and Vučić”, but also the witnesses, calling them “traitors who made deals with the Prosecution”. Most importantly however, by congratulating Serbian Chetniks for the Liberation of “Serbian Vukovar”, he showed disregard for the victims of war crimes, and potentially spread this attitude to others.

“we believe he will cOmply anD thus we DOn’t neeD tO ask him”

nO DOubt, making a persOn stay ten years in custODy withOut Delivering a JuDgment does not uphold the principle of innocent until proven guilty, and should definitely be of concern to the Tribunal. This is of even more concern when the inductee’s health status deteriorates severely, as Vojislav Šešelj’s apparently did. However, it is not only the health status of the detainee, but

also a range of other aspects which the Tri-bunal is obliged to take into consideration when deciding about his or her provisional

release. Clearly, although they sometimes do, it is definitely not the role of internation-al tribunals to take into account possible political consequences of their decisions. It is thus right that the Tribunal did not allow its discretion to be influenced by a possibly negative impact of Šešelj’s return on Serbi-an politics. Nevertheless, acting under Rule 65 of its Rules of Procedure and Evidence, what the Tribunal should have considered is the potentially negative impact of Šeše-jl’s release on the victims and witness, and specifically whether his release will pose a danger to any victims, witness, or any other person. However, somewhat paradoxically, the Trial Chamber ruled being simply sat-isfied Šešelj would not try to contact any of the victims, without even asking him to consent to the obligations imposed. With regard to Šešelj’s previous rhetoric, to his repeated disregard for the judges, the pros-ecutor and the Tribunal (numerous videos of which are to be found on YouTube), and to the fact the he did disclose the identi-ty of three protected witnesses, it seems hard to understand on which grounds such a strong assumption was based.

Having returned from The Hague, Vojislav Šešelj was all over the newspapers in the Balkans. Illustrative picture. Author: Rade Nagraisalović/Wikimedia Commons (original), Zuzana Pavelková (edited vision).

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About the AuthorZuzana holds a bachelor’s degree in International Relations from the Dresden University of Technolo-gy. Throughout her studies, Zuzana placed a special focus on public international law. As an intern with the Post-Conflict Research Center, she focuses on transitional justice as well as international criminal law mechanisms. She monitors and analyzes recent devel-opment in the remaining cases before the International Criminal Tribunal for the Former Yugoslavia.

The Trial Chamber does not provide any reasonable explanation in its decision ei-ther. And the one provided by Judge Niang in his dissenting opinion seems somewhat even more compromising. Niang claims the majority of the judges in fact feared the deadlock from summer 2014 would repeat itself. If this is true, it means the judges knew that Šešelj would very probably not agree with the conditions of his release. Consequently, they knew or should have known that their reasoning for Šešelj not being of any danger to the victims and wit-nesses was based on an assumption which was at least weak, if not completely mis-placed. And indeed, later Niang put matters even more clearly by stating that “every-body knew” what was to follow Šešelj’s re-lease. By basing victims’ protection only on the assumption that the accused will obey the Tribunal’s order when he in the past proved the complete opposite, the Tribunal failed to take the appropriate and neces-sary measures to ensure his release would not actually endanger them. This miscal-

culation appears a slap in the face to the victims’ communities.

tOO late tO reverse the DecisiOn?

in this regarD, it is surprising the prOsecutOr DiD nOt file an ap-peal as soon as the provisional release decision was delivered. By not delivering the appeals motion in good time, the only option left to the Prosecutor is now a so-called motion to revoke

Šešelj’s provisional release. This however, requires him to present newly arising ev-idence. The door to a reversal of the de-cision might therefore be closed once for all, as even the previously dissenting judge Niang declared a willingness to deliber-ate on the material issue of the case, yet agreed to dismiss the motion for recon-sideration in the first instance on formal grounds. The Prosecutor appealed the dis-missal and is now trying to convince the judges that he in fact is presenting them new evidence, as it is in his opinion Šešelj’s post-release statements and behavior which undermine the basis on which he has been released. Whether the Prosecu-tor will succeed this time remains unclear.

“Serbia awaits Šešelj!” grafiti in Novi Sad. Author: Aktron / Wikimedia Commons.

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