On 12 May, Representatives of Croatia and Serbia and Montenegro appeared before the ICTY to argue that the Tribunal should transfer the case of the Vukovar Three to their respective countries.
The November 1991 massacre of over 260 Croat and other non-Serb persons who sought sanctuary at the Vukovar Hospital remains one of the most notorious and brutal episodes of the Yugoslav wars. In 1995 the ICTY issued its first indictment for this crime, charging Mile Mrksic, Veselin Sljivancanin and Miroslav Radic (all former Yugoslav People's Army (JNA) officers) with crimes against humanity and violations of the laws of war for overseeing the transport, beatings and murders of the victims. Nearly twelve years after the siege of Vukovar, these accused were finally brought before the ICTY (Sljivancanin was handed over by Serbia in June of 2003, Mrksic and Radic in 2002). In February of this year, however, under intense pressure by the United Nations Security Council to complete all trial proceedings by 2008, the Office of the Prosecutor (OTP) filed a request pursuant to Rule 11bis of the ICTY's Rules of Evidence and Procedure to have the case referred to national jurisdictions in either Croatia or Serbia and Montenegro.
Trial Before the ICTY A Valuable Option
It remains possible that Mrksic, Sljivancanin and Radic, commonly referred to as the 'Vukovar Three,' could still be tried in The Hague, however. In its Request, the OTP stated that the Vukovar case was one that could appropriately be heard before either an international or national court. Furthermore, the OTP did not enunciate a preference for either Croatia or Serbia to take up the matter. All indications here at the Tribunal suggest that the OTP is eager to try the case and that the referral request was submitted principally as a matter of procedural requirement -- in keeping with the UN Security Council-mandated 'Completion Strategy' to wrap up trial proceedings in The Hague by referring certain cases back to courts in the former Yugoslavia. In Resolution 1534, the Security Council called on the ICTY (and ICTR) Prosecutors to review their caseloads to determine which should proceed at the international level and which might be suitably transferred to a national court.
It is surprising that the Vukovar case has now become the pivotal 11bis candidate given its international prominence. The Vukovar incident helped galvanize international public support for the creation of the ICTY and captured the attention of the United Nations Security Council on several occasions. In January of 1993, a report on the forensic investigation of a mass grave discovered near Vukovar was annexed to the Report of the Commission of Experts tasked with making recommendations on establishing a tribunal for war crimes in the former Yugoslavia (UN Doc. S/25274).
In 1996 the UN Security Council specifically addressed the fugitive status of the Vukovar Three after their indictment by the ICTY. The Security Council issued a Presidential Statement calling for the enforcement of the arrest warrants for the Vukovar Three and rebuking the Federal Republic of Yugoslavia for failing to carry out their obligation to the Tribunal. (See S/PRST/1996/23). The ICTY may wish to retain such a serious - and symbolic- case.
The ICTY itself has strong reason to hear the case – the only other suspect brought before the Tribunal to account for crimes at Vukovar, the town's wartime mayor Slavko Dokmanovic, committed suicide a mere week before the trial chamber's judgment (and finding of facts) was to be rendered in June of 1998. A trial by the ICTY on what happened at Vukovar would be valuable not only for the legacy of the Tribunal, but especially for Croatia and Serbia as they embark on their own domestic prosecutions for Vukovar. With both countries eager to try a Vukovar case, an ICTY judgment would provide a finding of fact that would not be subject to criticism as 'politically-charged' or 'ethnically biased' as national courts face. Furthermore, an ICTY trial may have a better prospect of witnesses appearing as some may fear traveling to Croatia or Serbia for fear of reprisal or confronting a hostile population.
Referral Standards: Rule 11bis Considerations
A case referral under Rule 11bis can be initiated either on request of the Prosecutor, or by the Chambers on its own initiative. In this case, the OTP filed the request, after a review of its entire caseload pursuant to the UN Security Council's resolution.
After the request is filed, a three judge panel (known as the Referral Bench) must weigh several factors to determine if the case can be transferred from the ICTY. According to Rule 11bis (C) the Referral Bench must consider the gravity of the crimes charged and the level of responsibility of the accused in accordance with UN Security Council Resolution 1534. The Security Council called on both tribunals to 'concentrate on the most senior leaders suspected of being most responsible for crimes.' The Vukovar Three case was most likely requested by the OTP purely as a perfunctory threshold matter due to the perceived 'intermediate' ranks of the accused – Mrskic was a Colonel, Sljivancanin a Major and Radic a Captain in 1991 at the time of the massacre. To be sure, lower ranking officers have been tried before the Tribunal and, as in the Srebrenica case, continue to be prosecuted.
The Referral Bench must also be satisfied that the accused will receive a fair trial and finally that the death penalty will not be imposed or carried out.
Arguments Heard for Referral Back to the Region
Representatives of Croatia and Serbia and Montenegro appeared before the ICTY's Referral Bench (composed of Judges Orie, Kwon and Parker) at a hearing convened on 12 May to argue that the Vukovar Three case be transferred to their respective countries.
Croatia's delegation, led by Professor Zeljko Horvatic, argued that it should obtain jurisdiction over the case as the crime was committed on its territory and that the victims were mainly Croatian citizens. The delegation from Serbia and Montenegro, led by the Chairman of the National Council for Cooperation with the ICTY, Rasim Ljajic and Belgrade legal expert Vladimir Djeric, argued that Serbia should receive the Vukovar Three as they are all Serbian citizens and because Serbia had effectuated their handover to the ICTY.
Rule 11bis sets forth that a case may be transferred to a country i) in whose territory the crime was committed; ii) in which the accused was arrested; or iii) having jurisdiction and being willing and adequately prepared to accept such a case. Croatia has stated (and the OTP concurred) that Rule 11bis sets forth a hierarchy of preference with territoriality the primary factor. Serbia and Montenegro have argued that all three criteria hold equal weight.
Legal Analysis of Competing Claims
Several principles are recognized as providing the basis for jurisdiction over persons in international criminal cases. They include: the passive personality principle, the nationality principle (or 'active personality'), the territoriality principle and the principle of universal jurisdiction. Croatia's argument is based on both the passive personality and territoriality principles of jurisdiction. The passive personality principle allows a country to obtain jurisdiction over those accused of committing crimes against its citizens – even if the accused are foreign nationals. Under this principle, Croatia may try Mrksic, Sljivancanin and Radic because the victims were Croatian. The territoriality principle provides jurisdiction over any crime that is committed on the territory of the requesting state. Because Vukovar and the Ovcara farm (where the victims were actually killed) are in Croatia, this would also favor Zagreb. Finally Croatia argued that as a matter of principle, it is always preferable to render justice as closely as possible to the victims, a proposition supported by the OTP.
Serbia and Montenegro assert nationality jurisdiction – that is to say, they can claim jurisdiction for the acts of their own nationals wherever those acts are committed, even if outside of their home country. Serbia also claims universal jurisdiction to try the Vukovar Three. Universal jurisdiction is the most controversial of the jurisdiction doctrines and allows any country to try anybody for international crimes. Universal jurisdiction is somewhat recognized by Rule 11bis of the ICTY's Rules of Evidence and Procedure which qualifies any state that has jurisdiction and is 'willing and adequately prepared to accept such a case' to receive an 11bis transfer. In addition to raising the jurisdictional arguments, Serbia and Montenegro urged that the Vukovar Three be transferred to Belgrade as Serbian law prohibits extradition of its citizens to third states. The transfer of the case to Croatia, the Serbian officials argued, would constitute a two-step extradition process of the accused to Croatia, via the ICTY.
Both Croatia and the OTP dismissed this 'extradition' argument. The OTP argued that the ICTY was established by Security Council Resolution to try war crimes suspects and that choice of venue (as long as the venue could provide a fair trial) was the prerogative of the Tribunal. Lawyers for the accused argued that they had an 'expectation' to be tried in The Hague and that they would not have come 'voluntarily' if they knew they would be transferred to Croatia for trial. The OTP argued that the standing of the accused to have a say in the venue of their trial was limited, as the determination was largely a matter for the OTP and the trial chamber, which prompted presiding judge Orie to express concern that as an international human rights court, the ICTY must give the rights of the accused the utmost consideration.
Other Considerations
Conditions in Croatia
Serbia has alleged that the atmosphere in Croatia would not allow for a fair trial. Already Croatia has begun trials in absentia of Serbs wanted for war crimes and Serbia argues that few witnesses would be willing to travel to Zagreb to participate in a trial there under these conditions. Serbian misgivings are bolstered by claims that many former JNA personnel may be under sealed indictment in Croatia and may be arrested if they travel to Croatia. The presence of defense witnesses, many of whom are former JNA soldiers is crucial to a fair trial for the accused. Another factor that militates against trial in Croatia is the fact that only Croatian lawyers may practice before the bar and therefore the current defense teams would not be able to appear in Croatian court. Transfer to Serbia however, Croatia argued, would violate the basic tenets that a state on whose territory a crime was committed should try the perpetrators and that justice should be rendered as close to the victims as possible.
Conditions in Serbia
Currently a trial of over a dozen former JNA soldiers accused of gunning down the victims at Ovcara farm is taking place in Belgrade and various human rights groups as well as the OTP have observed that it is taking place with an encouraging degree of professionalism.
It is possible that if Serbia receives the case and the Belgrade court is able to conduct the trial in a fair manner, the result could be that Serbia can prove to the international community and to its neighbor Croatia that it is capable of achieving justice for crimes committed against non-Serbs: a powerful message for reconciliation. But this is a huge 'if.' Should the case be transferred, there will be intense scrutiny by either Croatia or Serbia of the other country's process and also by the international community. The Tribunal will be watching as well – 11bis provides that the ICTY may revoke the transfer if it is learned that a fair process is not proceeding in the receiving country.
Command Responsibility
The Vukovar Three face charges of persecution, murder, extermination, torture and other inhumane acts not only for their own roles but also under a command responsibility theory of criminal liability. That is to say, they need not have personally committed murder or even ordered it, but if troops under their command did so and the superiors, knowing this, or having reason to know this, failed to prevent or punish such crimes, they may also be criminally liable. This standard of command responsibility has been developed in international war crimes law and rarely dealt with in domestic courts. If a trial of the Vukovar Three is to be held in a national venue, the local jurisdiction should have the means (such as legislation authorizing command responsibility as a mode of liability) and the expertise to render a judgment on this basis. It maybe possible that legal systems unaccustomed to dealing with command responsibility cases may not be able to secure convictions or on the other hand, may interpret the standard to approach that of 'strict liability' rather than the criminal recklessness standard involved. Either way, the experience of the ICTY in trying command responsibility cases also provides an additional incentive to retain the case.
Conclusions
Judge Orie, presiding member of the Referral Bench summarized the 11 bis transfer dilemma succinctly, noting that victims and their relatives 'would think that little weight is being given to their interests' if the case were transferred to Serbia, and that 'the suspects could feel that little weight has been given to their rights' if Croatia received the troika. With a case as politically- and emotionally-charged as this one and domestic courts in the region still struggling for political independence (as well as the perception of independence), retaining the Vukovar Three at the ICTY may be the most practical and even-handed solution.
