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The Impact of the International Criminal Tribunal for Yugoslavia on War Crime Investigations and Prosecutions in Croatia

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The Impact of the International Criminal Tribunal for Yugoslavia on War Crime Investigations and Prosecutions in Croatia THE IMPACT OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR YUGOSLAVIA ON WAR CRIME INVESTIGATIONS AND PROSECUTIONS IN CROATIA BY KEREN MICHAELI DOMAC/10, DECEMBER 2011 ABOUT DOMAC THE DOMAC PROJECT focuses on the actual interaction between national and international courts involved in prosecuting individuals in mass atrocity situations. It explores what impact international procedures have on prosecution rates before national courts, their sentencing policies, award of reparations and procedural legal standards. It comprehensively examines the problems presented by the limited response of the international community to mass atrocity situations, and offers methods to improve coordination of national and international proceedings and better utilization of national courts, inter alia, through greater formal and informal avenues of cooperation, interaction and resource sharing between national and international courts. THE DOMAC PROJECT is a research program funded under the Seventh Framework Programme for EU Research (FP7) under grant agreement no. 217589. The DOMAC project is funded under the Socio-economic sciences and Humanities Programme for the duration of three years starting 1st February 2008. THE DOMAC PARTNERS are Hebrew University, Reykjavik University, University College London, University of Amsterdam, and University of Westminster. ABOUT THE AUTHOR Adv. Keren Michaeli is a Lecturer in Public International Law and International Humanitarian and Criminal Law at the School of Law, the College of Management, Academic Studies in Israel. She is a PhD candidate at the University of Oxford, St. Antony's College. She received her LL.M. from Georgetown University (2004). This paper represents not the collective views of the DOMAC, but only the views of its author © 2011 Keren Michaeli Published by DOMAC Reykjavik University Menntavegi 1, 101 Reykjavik Iceland www.domac.is EXECUTIVE SUMMARY This report analyzes the impact of the ICTY on national war crimes proceedings in Croatia in three areas: rates of prosecutions, normative changes to relevant criminal law and capacity development. Croatia has processed thousands of war crimes cases since the outbreak of war in 1991. Such prolific legal activity provides many potential tangent points of interaction and mutual influence between the two types of legal mechanisms, which makes Croatia a valuable case-study in the context of DOMAC's mandate: seeking the optimal utilization of international criminal tribunals to enhance the capacity of domestic legal systems to process war crimes so as to maximize the fight against impunity. Despite the potential for substantial contribution to Croatia's capacity to try war crimes, the negative interaction between the ICTY and Croatia in the first years of the Tribunal's existence, which was a critical period in the formation of prosecutorial policies in Croatia, prevented better absorbing of ICTY law and expertise by the Croatian system. As a result the ICTY could not help prevent ethnic bias in war crimes proceedings in Croatia, nor has it inspired better standards of the proceedings. In some respect, it helped vindicate them. While the principle reasons for the sub-standard character of war crimes proceedings in Croatia were the national narrative of victimhood, corruption and lack of capacity of the judiciary – all stemming from the undemocratic and pluralistic political rule – the ICTY did not address them in a constructive manner, but by way of avoidance, which enhanced Croatia's suspicion of its work and mandate, which, in turn, legitimized the country's prosecutorial policy. Positive contributions to law, capacity and trial standards have been made since the democratic change in Croatia and the initiation of the Tribunal's completion strategy, which shifted the Tribunal's focus from itself towards Croatia and facilitated partnership between the two systems. This manifested in the transferring of cases and material to Croatia, better outreach and exchange of knowledge and experience. This analysis demonstrates the vital role played by outreach of international tribunals: Appropriate outreach allows for professional interaction and exchange and prevents misinformation regarding the tribunals that might be used for public manipulation. This is especially true in situations similar to that of Croatia when nationalist agenda, lack of judicial capacity and decentralized jurisdiction to process war crimes constitute the ground realities. The incorporation of standards for war crimes proceedings in Croatia into the EU accession policy has proved an instrumental means to import much of the ICTY's expertise and knowledge to Croatia. Another conclusion of the report is therefore the importance of utilizing international tribunals as professional yardsticks by powerful foreign actors. TABLE OF CONTENTS Executive Summary ........................................................................................................................ 5 Table of Contents ........................................................................................................................... 7 List of abbreviations ........................................................................................................................ 8 1. Introduction ................................................................................................................................. 9 1.1 Object of the Report .................................................................................................................. 9 1.2 Structure of Report .................................................................................................................. 10 1.3 Methodology .......................................................................................................................... 11 2. Conflict Background .................................................................................................................. 13 2.1 The Conflict ............................................................................................................................ 13 2.2 The Mass Atrocities ............................................................................................................... 15 3. Post Conflict Country Background ............................................................................................ 16 3.1 Political Conditions ................................................................................................................. 16 3.2 General description of the legal system ................................................................................. 18 3.3 Capacity of the legal system to prosecute mass atrocity cases ............................................... 23 4. The National Response to the Mass Atrocities .......................................................................... 26 5. The International Response to the Mass Atrocities ................................................................... 32 5.1 The Establishment of the ICTY ............................................................................................... 32 5.2 Prosecutions of Crimes relating to the War in Croatia ............................................................. 36 6. Interaction between the ICTY and Croatian Domestic System ................................................. 40 6.1 General: The Prosecutorial Policy of the OTP ......................................................................... 40 6.1 Assistance by the ICTY to Croatia .......................................................................................... 47 6.1 Assistance by Croatia to the ICTY .......................................................................................... 51 7. The Impact of the ICTY on Domestic Prosecutions In Croatia – Analysis .................................. 56 7.1 Normative Impact ................................................................................................................... 58 7.2. Investigation/Prosecutions Rates ........................................................................................... 64 7.3 Capacity Building ................................................................................................................... 71 8. Conclusions .............................................................................................................................. 80 LIST OF ABBREVIATIONS RSK……………………………………………………………………………... Serb Republic of Krajina SFRY………………………………………………………… Socialist Federal Republic of Yugoslavia BiH……………………………………………………………………………… Bosnia and Herzegovina HDZ………………………………………………………………………….. Croatian Democratic Union SAO………………………………………………………………………... Serbian Autonomous District JNA………………………………………………………………………………………….Yugoslav Army ICTY… The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 SC……………………………………………………………………………………. UN Security Council 1976 SSFRY CC……………. 1976 Criminal Code of the Socialist Federal Republic of Yugoslavia 1993 Croatian CC……………………………...1993 Basic Criminal Code of the Republic of Croatia 1997 CPA……………………………………………………………. The 1997 Criminal Procedure Act 2009 CPA……………………………………………………………. The 2009 Criminal Procedure Act ICC Law……………. Law on the Application of the Statute of the International Criminal Court and on the Prosecution of Criminal Acts against the International Law on War and Humanitarian
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