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Croatia and Serbia Vie for Highly-Charged Vukovar Case as Tribunal Under Pressure to Complete Trials by 2008
On 12 May, Representatives of Croatia and
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
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
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
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
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
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.
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.
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.
Currently a trial of over a dozen former JNA soldiers accused of gunning down the victims at Ovcara farm is taking place in
It is possible that if
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.
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.
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