Expanding Educational Content on War Crime Trial Narratives in the Western Balkans: The Cases Selection Procedure & Outcome The investigative educational research project "Expanding Educational Content on War Crime Trial Narratives in the Western Balkans" is funded under BIRN's Balkan Transitional Justice Programme. The goal M O D E L I N T E R N A T I O N A L of the research project is to investigate International Criminal Tribunal C R I M I N A L C O U R T for the former Yugoslavia (ICTY) archives and to identify and develop as W E S T E R N B A L K A N S educational content two additional legal cases that would be implemented at the MICCWeB sessions from 2020-onward. The research project is divided into four phases: M I C C W E B (1) Preliminary Analysis of ICTY Archives & Pre-Selection of Legal Cases January - March, 2020 (2) Expert Review Committee Survey, Outcome & Cases Final Selection April - July, 2020 (3) Legal Simulation Cases Development & Materials Synthesis August - September, 2020 (4) Development of Two Lesson Plans Inspired by the New Cases September - October, 2020 Annex I specifies the process and work carried out during Phase 1. This document describes the process and work carried out during Phase 2, i.e. the Expert Review Committee survey, results, and final cases selection. Please note that prior to kicking off the Phase 3, BIRN input and www.webalkans.org approval is required for the two cases that were selected/suggested for development by the MICCWeB Expert Review Committee team. [email protected] [email protected] 1 The Cases Selection Procedure & Outcome In April, an expert survey questionnaire was drafted for the Expert Review Committee, based on the following criteria: Do the potential new cases add variety to the already existing MICC legal cases (Flick; Bikindi; Ruggiu; Erdemović)? Are the potential new cases pedagogically appropriate for the participant age group of the MICC educational program (high school students, ages ~16 - 18)? MODEL Are the cases balanced, bearing in mind that participants in the INTERNATIONAL MICCWeB program come from Bosnia-Herzegovina, Croatia and CRIMINAL COURT WESTERN BALKANS Serbia? Are the cases educationally rich and do they provide fertile ground for facilitated discussions (especially if relevant for contemporary issues of nationalism and politicization of history in the region)? MICCWEB The following five cases have been pre-selected following the initial investigation into the ICTY Archive: Slobodan Praljak; Biljana Plavšić; Ante Gotovina; Rasim Delić; Dragoljub Kunarac. Preliminary research and cases pre-selection was conducted by Tvrtko Noa Pater - MICCWeB Head of Legal Training and MICCWeB Human Rights Trainer. www.webalkans.org [email protected] [email protected] 2 The Cases Selection Procedure & Outcome All the members of the review committee were required to fill out the same survey 5 times, for each of the suggested pre-selected cases. Here are the questions they needed to answer for each case: M O D E L I N T E R N A T I O N A L C R I M I N A L C O U R T W E S T E R N B A L K A N S M I C C W E B The outcome of the expert review committee survey were very varied opinions on which of the two cases should be included. Biljana Plavšić case received some 'votes' on account of her being a woman indicted for war crimes, and as such a particularly interesting case. However, her hero's treatment and post-release recanting of confession and statements made during her trial made her case more problematic, in the light of contemporary polarization and persistent nationalism in the region. Also, legally, Plavšić case was not necessarily as 'rich' as the other ones (in terms of balance between prosecution and defense materials). To quote some of the opinions from the Review committee: "Plavšić case would be appropriate. I think it would add new legal terminology (plea bargain) and help open up a discussion about the success of the International Criminal Court. It would be also nice to have a discussion about www.webalkans.org women who are capable of doing horrible things (contrary to a common belief that women are gentle, fragile, and emotional) and have feminist discussions. The only question is - how emotional should the kids be during MICC sessions? Because with the genocide on the table and such an impactful person during the 90s, I think it could become more emotional than during the regular sessions." "Seeing we would likely be discussing her responsibility and position as head of (quasi) state at the time, there are no pedagogical reasons for caution. [email protected] (Though the story of her later release, and retraction, as well as subsequent welcome back in RS/Serbia might be a highly disillusioning message for [email protected] young participants of MICCWeB sessions...)" In the case, the Plavšić case was not recommended for further development into an MICCWeB legal simulation case. 3 Slobodan Praljak case was also contentious among the reviewers. Some believed that his death and subsequent divisive commemorations sparked a cause for concern that discussing his case would be very polarizing and problematic in the MICCWeB session context. Others believes that his case has particular merit, especially if adapted for use in the MICCWeB context by focusing exclusively on the topic of destruction of cultural heritage as a war crime. In the words of some of the experts: "Dealing with Praljak case has high contemporary relevance for youth in the Western Balkans because of the divisive effect that his suicide had on the M O D E L region. For some viewed as hero/martyr, for others as convicted war criminal - I N T E R N A T I O N A L perhaps arguing his case in our simulated court, by youth, would offer C R I M I N A L C O U R T W E S T E R N B A L K A N S additional space for consideration, learning and more balanced views." "I recommend this case, because it adds completely new perspective of importance of cultural heritage and how it's treated during war times. Furthermore, it helps us address the issue of glorification of war criminals in M I C C W E B our respective countries." "More than 20 years after the war, it is still an important question, since we are witnessing the shift in building monuments, not taking care of the old ones and even destroying monuments from previous periods." "I would not include Praljak case because explaining 'joint criminal enterprise' to the high school students will not be easy. Furthermore, he is too well known in the region and having his case there might be too complex." In the end, the Praljak case was recommended for further development into an MICCWeB legal simulation case. The adaptation of the case will be focusing on the indictment charge that relates to the destruction of cultural heritage, rather than on the crimes committed in Ahmići (simply because having multiple crimes in the legal simulation is not tenable owing to the age of the participants, the complexity of the legal argument and the short 5-day duration of the MICCWeB sessions). Ante Gotovina case was also recommended by some reviewers and rejected by others. Similarly to Praljak, some team members feared that his case was too www.webalkans.org prominent and high profile in modern Croatia for it to be properly addressed and discussed by all students in the MICCWeB sessions. Others also cautioned that the burden of proving involvement in joint criminal enterprise was too high for the prosecution, fearing this would result in repeated simulation acquittals, which would then lead to the reproduction of the narrative that 'only Serbs are punished in The Hague'. In the words of some of the experts: [email protected] "The Gotovina case has contemporary relevance, because it would shed more light and understanding of the Operation Storm in Croatia and the civilian casualties resulting from it. However, given the high-profile of the case, I am [email protected] not sure that discussing this case would generate more understanding among youth from Croatia and Serbia - the case of Gotovina might be too polarizing for them to even properly simulate or discuss in an MICCWeB session." 4 "I recommend this case, because it would add balance in terms of having a Croatian war criminal on trial." "I think this case could be too big for kids to handle. As much as I would love to see it (and work on it as a trainer), I am not sure that this will be welcomed (kids from Serbia and Croatia). As with the Plavšić case, the concern is that they will get to emotional to work on that case and discuss it." "Personally, I find this case the least interesting compared to other cases on the list." M O D E L I N T E R N A T I O N A L C R I M I N A L C O U R T In the end, the Gotovina case was not recommended for further development W E S T E R N B A L K A N S into an MICCWeB legal simulation case. M I C C W E B Rasim Delić case, as the previous ones, did not receive a unanimous acceptance or rejection. Some experts believed that having a Bosniak army general would be a welcome addition to the MICCWeB cases roster, while others believed that his case did not have sufficient material for an interesting full trial simulation by both the prosecution and defense.