scholarly journals The post-Dayton search for justice: War crimes trials in Bosnia and Herzegovina before competent courts

2021 ◽  
Vol 4 (6) ◽  
pp. 250-282
Author(s):  
Vedad Gurda ◽  
◽  
Dževad Mahmutović ◽  
Maja Iveljić ◽  
◽  
...  
Keyword(s):  
Bosnia And Herzegovina ◽  
International Criminal Tribunal ◽  
Plea Bargaining ◽  
War Crimes ◽  
Armed Conflicts ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Peace Agreement ◽  
Scope Of Application ◽  
The Republic

The armed conflicts in Bosnia and Herzegovina in the period from 1992 to 1995, which ended with the conclusion of the so-called The Dayton Peace Agreement was marked by serious violations of fundamental human rights and freedoms and the commission of horrific war crimes. Prosecution of defendants for these crimes takes place at several levels, ie before: a) the International Criminal Tribunal for the Former Yugoslavia (ICTY), b) domestic courts and c) courts of certain foreign states. The paper analyzes certain indicators related to the prosecution of these crimes, their scope and structure, as well as the ratio of convictions and acquittals for certain war crimes, the scope of application of conventional and summary forms of ending criminal cases and court policy of sanctioning perpetrators. It was learned that by the end of 2020, hundreds of criminal proceedings against approximately a thousand defendants had been completed. Most of the accused were prosecuted before the Court of Bosnia and Herzegovina (Court of B&H), followed by the ICTY, and a slightly smaller number before the courts of the former SFRY and some Western European countries. The research established that before the ICTY, out of the total number of accused for war crimes committed in Bosnia and Herzegovina, as many as 90.2% were convicted of some of these crimes, while the rate of convicted in relation to accused before the Court of B&H was 67.2% , and before the courts in the Republic of Serbia 70.2%. It is interesting that before the ICTY as many as 24.3% of the accused were convicted in summary proceedings on the basis of a plea agreement, while before the Court of B&H 13,3% of the accused were convicted using a plea bargaining as a consensual model for ending criminal cases. So far, 22 people have been convicted of the crime of genocide as the most serious crime before the ICTY, the Court of B&H and German courts, and all convictions related to the activities of the Army of Republika Srpska during the war in Bosnia and Herzegovina. Court of B&H, inherited a relatively mild policy of punishing war crimes. Finally, it was found that certain courts, especially Court of B&H, inherited a relatively mild policy of punishing war crimes.

scholarly journals PLEA BARGAININGS FOR WAR CRIMES IN BOSNIA AND HERZEGOVINA: BETWEEN REPENTANCE AND CONSENSUAL JUSTICE

2020 ◽  
Vol VI (1-2) ◽  
pp. 22-60
Keyword(s):  
Bosnia And Herzegovina ◽  
International Criminal Tribunal ◽  
Plea Bargaining ◽  
War Crimes ◽  
Legal Framework ◽  
Corrective Justice ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Advantages And Disadvantages ◽  
Procedural Law

One of the contemporary tendencies in the development of criminal procedural law is the introduction of simplified (summary) forms of criminal procedure, aimed at accelerated resolution of criminal disputes and reducing the number of criminal cases. Among the most common forms of simplified procedure in comparative law are institute of the plea bargaining (plea agreement), which represents a settlement sui generis between the prosecutor and the suspect/accused, under which the prosecutor offers to accused certain procedural benefits in exchange for a guilty plea to committed crime. These benefits, for example, can be reflected in proposing a more lenient qualification of the crime, or withdrawing certain elements in the charge, proposing the imposition of lenient criminal sanctions etc. There are many arguments pro et contra application of the institute in question. It is undoubted that the application of a plea bargaining contributes to a faster resolution of criminal cases and to a reduction of the costs of criminal proceedings, and at the same time such a confession, especially if it is accompanied by sincere repentance, can be a significant satisfaction for victims, etc. On the other hand, the settlement of parties in criminal proceedings can significantly jeopardize the processes of establishing material truth and corrective justice, especially in war crimes criminal proceedings. These paper presents basic information on war crimes prosecutions in Bosnia and Herzegovina and analyzes the legal framework for its implementation, as well as the advantages and disadvantages of a plea bargaining. Statistical indicators were collected and discussed on the scope of the plea bargaining in war crimes committed in Bosnia and Herzegovina, which have been conducted before the International Criminal Tribunal for the former Yugoslavia (ICTY), serbian and german judiciaries, as well as courts in Bosnia and Herzegovina. It was found that about one-quarter of those convicted by the ICTY have previously concluded an agreement with The Hague Prosecution. In addition, the plea bargaining (plea agreement) applies to war crimes cases to a large extent in the courts of Bosnia and Herzegovina, where, interestingly, the scope of its application in relation to these crimes is at the level of the average application of this institute of all crimes prosecuted by the courts in Bosnia and Herzegovina, and is around 10%. The somewhat smaller scope of the plea agreement for war crimes in Bosnia and Herzegovina has been reported by the courts in the Republic of Serbia

scholarly journals Basic Characteristics of Practical Application the Simplified Forms of Procedures in Criminal Cases of the Republic of Srpska // Osnovne karakteristike praktične primjene pojednostavljenih formi postupanja u krivičnim stvarima Republike Srpske

2018 ◽  
Vol 8 (8) ◽  
pp. 268
Author(s):  
Dragana Kosić
Keyword(s):  
Criminal Procedure ◽  
Plea Bargaining ◽  
Practical Application ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
New Approach ◽  
The Law ◽  
The Republic ◽  
Basic Characteristics ◽  
Penal Order

In the context of numerous measures taken to increase the efficiency of criminal proceedings, a special place belongs to the simplified forms of criminal cases proceedings. Inspired by the desire for saving time, costs and labour and avoiding formalities which seem unnecessary in routine cases, the simplified procedural forms are proposed to traditional criminal proceedings. In this context, the systematic reform of criminal procedural legislation has been executed, both at the level of Bosnia and Herzegovina and in its entities and the Brcko District BiH which has opened a completely new approach to criminal proceedings, in which the emphasis is not only on enhancing the protection of basic human rights and freedom but also the efficiency of the proceedings. The range of simplified and shortened procedures, the new criminal proceedings legislation in the Republic of Srpska is known through the following forms: witness immunity (Article 149 of the Law on the Criminal Procedure of the Republic of Srpska), plea of guilty (Article 244 of the Law on the Criminal Procedure of the Republic of Srpska), plea bargaining (Article 246 of the Law on the Criminal Procedure of the Republic of Srpska), procedure for issuing penal order (Article 358 of the Law on the Criminal Procedure of the Republic of Srpska). In this paper it will be discussed about practical application of the institutes from the aspect of the efficiency of criminal proceedings of the Republic of Srpska. The basic method that will be used in the theoretical part of the paper is a dogmatic and normative method, while in the second part of the paper the statistical method will be used.

scholarly journals The Srebrenica Genocide: Seventeen Years After

ICR Journal ◽  
2012 ◽  
Vol 3 (3) ◽  
pp. 583-585
Author(s):  
Senad Mrahorovic
Keyword(s):  
Bosnia And Herzegovina ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
The Other ◽  
The People ◽  
The Hague ◽  
The Republic ◽  
In The Beginning ◽  
Republika Srpska

In the beginning of 2012, the people of Bosnia and Herzegovina have once again witnessed disturbing events in the Bosnian entity known as Republika Srpska. Several distinguished personalities were awarded the highest decoration, including Boris Tadic, the current president of the Republic of Serbia. With this award, President Tadic has been added to the list of people who previously have received the same decoration, such as Radovan Karadzic, Ratko Mladic, Slobodan Milosevic and others who were indicted by the International Criminal Tribunal for the Former Yugoslavia (ICTY) for charges of genocide and other war crimes committed during the war in Bosnia and Herzegovina in the early 1990s. While the trial of Milosevic lasted for almost two years, it did not end, however, owing to his sudden death. The other two figures namely, Karadzic and Mladic, are currently being tried in The Hague by the ICTY.

scholarly journals Odgovornost za štetu i naknada štete počinjene ratnim zločinom

2018 ◽  
Vol 39 (1) ◽  
pp. 601-628
Author(s):  
Jadranko Jug
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
War Crimes ◽  
Case Law ◽  
Armed Conflicts ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
The Subject ◽  
The Republic ◽  
Responsible Person

<span>War crimes are the most serious criminal offences, which in terms of their characteristics are related to violations of the rules of international law during a war, armed conflict and occupation. One of the consequences of the commission of war crimes is material and non-material harm, caused as a rule to a large number of people. Therefore liability for damages and reparation of the harm caused to the victims of war crimes is equally as important as the criminal prosecution of the perpetrators themselves. In the territory of the Republic of Croatia and neighbouring Bosnia and Herzegovina, wars and armed conflicts were waged in recent history, and war crimes were committed. Still today criminal proceedings and proceedings for payment of damages and reparation for the harm that was caused are being conducted against the perpetrators and the responsible persons. Regarding liability for damages for the war crimes committed, the state will very often appear alongside the wrongdoer as the responsible person, and as a result the question will arise of the expiration of the statute of limitations for reparation towards a state. It is also important to differentiate war damage and acts of terrorism from a possible war crime and, regarding payment of damages to victims of war crimes, it is necessary to conduct rapid and efficient compensation proceedings. The subject of this paper is an analysis of the legislation and case law related to liability for damages and the harm caused by war crimes. The paper first explains the terminology and the differences between a war crime, war damage and an act of terrorism, and then liability is discussed for the harm caused by war crimes and reparation of that harm.</span>

scholarly journals Przedterminowe zwolnienie z kary pozbawienia wolności skazanych za ludobójstwo, zbrodnie przeciwko ludzkości i wojenne na mocy orzeczeń międzynarodowych trybunałów karnych „ad hoc” oraz ich sukcesora w postaci Mechanizmu Rezydualnego ONZ

2021 ◽  
Vol 43 (3) ◽  
pp. 209-226
Author(s):  
Małgorzata Szwejkowska
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
Armed Conflicts ◽  
Former Yugoslavia ◽  
Crimes Against Humanity ◽  
Early Release ◽  
International Crimes ◽  
Domestic Law

In the last decade of the 20th century, a war in the former Yugoslavia broke out, once again making Europe a witness to an armed conflict. Almost at the same time, another local ethnic bloodshed started, but this time in distant Africa — in Rwanda. Both these events included the most horrifying international crimes against humanity: genocide and war crimes. To prosecute the most important commanding figures involved in these conflicts and hold them criminally responsible, two ad hoc United Nations tribunals were created: International Criminal Tribunal for the former Yugoslavia in Hague and International Criminal Tribunal for Rwanda in Arusha. They finished their operation in 2017 and 2015, respectively. The tasks of conducting and completing all ongoing proceedings, including law enforcement, after the completion of their mandates have been entrusted to the UN International Residual Mechanism. One of the crucial assignments of the tribunals and later the Redisual Mechanism was to deal with the request on behalf of the convicted for granting them early release. Although none of the statutes of the aforementioned courts provided any ground for early release, soon it was accepted that both tribunals, as well as their successor, were entitled to proceed despite this issue. As soon as in 2001, the first convict was granted early release, but with no conditions. It is estimated that, to date, more than 2/3 of all convicted by the Tribunals have been released before the termination of their sentence. This should raise the question of how to rehabilitate that kind of offender, convicted of genocide, war crimes, or crimes against humanity, to ensure they do not pose a threat to society anymore. Especially since the offenders serve their punishment outside the country of their origin — meaning, different rules apply according to the domestic law regulation of the state that voluntarily agreed to enforce the sentence. This article analyzes the juridical approach of the tribunals and the Residual Mechanism on the issue of early release of the convicts involved in the armed conflicts in the former Yugoslavia and Rwanda.

Responsibility for war crimes before national courts in Croatia

2006 ◽  
Vol 88 (861) ◽  
pp. 145-168 ◽  
Author(s):  
Ivo Josipović
Keyword(s):  
European Union ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
Former Yugoslavia ◽  
Ethical Standards ◽  
The European Union ◽  
National Courts ◽  
Domestic Courts ◽  
The Republic ◽  
Historical Truth

This article analyses problems with which the Republic of Croatia, as a country in transition, has to contend during war crimes proceedings. A major characteristic of the recent wars waged on the territory of the former Yugoslavia is that war crimes were committed, though on a different scale, by all parties involved, irrespective of the political and other motives that prompted them to engage in armed conflict. Political unwillingness is the principal reason why national courts, including those in the Republic of Croatia, did not prosecute war crimes in accordance with internationally acceptable standards. The international community responded by setting up the International Criminal Tribunal for the former Yugoslavia (ICTY), the main objectives of which are to establish justice, render justice to victims and determine the historical truth. Implicitly, despite political and other opposition to its work, the ICTY is helping to define legal and ethical standards appropriate for a democratic society in the countries established on the territory of the former Yugoslavia. This is particularly important for the reason that all these countries aspire to membership of the European Union. The work of the ICTY, as well as proceedings before domestic courts, is therefore an important legal, political and moral catalyst on their way towards accession to the European Union. This is fully confirmed by the example of the Republic of Croatia.

War Crimes in International Versus Non-International Armed Conflicts: "New Wine in Old Wineskins"?

2008 ◽  
Vol 8 (1-2) ◽  
pp. 319-329 ◽  
Author(s):  
Gauthier de Beco
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
Trial Chamber ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law

AbstractThis note discusses the distinction between international and non-international armed conflicts in the prosecution of war crimes before the International Criminal Court. It analyses the international humanitarian law applicable to both kinds of conflict, and the way in which the International Criminal Tribunal for the former Yugoslavia succeeded in prosecuting war crimes committed in non-international armed conflicts. It also studies the two war crimes regimes provided for in the Rome Statute of the International Criminal Court. The note then examines how Pre-Trial Chamber I dealt with this issue in its Decision on the confirmation of charges against Thomas Lubanga Dyilo and the problems it faced in doing so. It concludes with a plea for the abolition of the distinction between international and non-international armed conflicts with respect to war crimes in the Rome Statute of the International Criminal Court.

scholarly journals The Republic of Srpska between Scylla and Charybdis

2005 ◽  
pp. 125-156
Author(s):  
Milijan Popovic
Keyword(s):  
Bosnia And Herzegovina ◽  
International Community ◽  
Constitutional Court ◽  
Peace Agreement ◽  
Police Reform ◽  
Legal Nature ◽  
Yugoslav Republic ◽  
Dayton Peace Agreement ◽  
The Republic ◽  
National Defence

The Republic of Srpska was created during the civil war in the territory of the former Yugoslav republic of Bosnia and Herzegovina in 1992-1995. Within the general framework of the agreement to establich peace in Bosnia and Herzegovina (the Dayton Peace Agreement), in Novembar 1995 it was recognized as an entity within Bosnia and Herzegovina. According to the Dayton Constitution, by its legal nature The Republic of Srpska was a confederative unit (with some elements of a federal unit) within Bosnia and Herzegovina as a confederation (with the some elements of a federation). During the last ten years, both Bosnia and Herzegovina and The Republic of Srpska underwent deep transformations. An indication of these deep transformations was the decision of the president of the Arbitration Tribunal to establish the District of Brcko as the third entity sui generis (in addition to The Republic of Srpska and The Federation of Bosnia and Herzegovina). Two basic levers in the anti-Dayton transformational processes which occurred in Bosnia and Herzegovina and its entities were The Constitutional Court of Bosnia and Herzegovina, as well as The High Representative of the international community for Bosnia and Herzegovina. The Constitutional Court of Bosnia and Herzegovina passed a series of anti-Dayton decisions; by its consequences the most far-reaching decision was related to the issue U 50/2000 which declared the constitutionality of the Bosniacs, the Croats and the Serbs in the entities. On the basis of that decision, in 2000 a set of amendments to The Constitution of The Republic of Srpska was passed which deeply changed the legal nature of The Republic of Srpska. It was transformed from a confederative into to a federal unit. The anti-Dayton activity of The High Representative of the international community is even more pronounced. He became the main constitutional and legislative factor of Bosnia and Herzegovina and its entities. Under his pressure, in 2003 new amendments to The Constitution of The Republic of Srpska were passed which further diminished the authorities in The Republic of Srpska, specially in the field of national defence and public security. The High Representative himself brought and declared dozens of laws for Bosnia and Herzegovina with which he transformed Bosnia and Herzegovina from the union of states into a federation. With the police reform he announced, he is preparing to regionalize Bosnia and Herzegovina, not taking into account the entity borders, and thus to pave the way for the final abolition of entities including The Republic of Srpska.

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