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Nonprosecutorial Sanctions for Grave Violations of International Humanitarian Law: Wartime Conduct of Bosnian Police Officials

Published online by Cambridge University Press:  27 February 2017

Gregory L. Naarden
Gregory L. Naarden*
Affiliation:
Department of Justice, United Nations Interim Administration Mission in Kosovo
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Extract

Addressing accountability for human rights atrocities takes on particular significance in postconflict situations. To the extent that mechanisms for accountability facilitate the pursuit of justice against individual perpetrators, the reform of institutions staffed by perpetrators, and the initiation of reconciliation processes, identifying those who committed atrocities is a fundamental aspect of a peacekeeping mission.

The international community has established tribunals to try those who committed atrocities and will not be tried in domestic courts. Such tribunals, however, limit the scope of prosecutions to high-ranking officials, and do not command sufficient resources to pursue the multitude of individuals who participated in atrocities. Domestic courts have jurisdiction to try individuals who participated in atrocities, but judicial systems in postconflict. countries find themselves in disarray and generally unable to cope with sensitive cases, because of both the subject matter and the potential number of cases.

Type
Current Developments
Information
American Journal of International Law , Volume 97 , Issue 2 , April 2003 , pp. 342 - 352
Copyright
Copyright © American Society of International Law 2003

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References

1 For a discussion of the context of imposing mechanisms for accountability, see Ratner, Steven R. & Abrams, Jason S., Accountability for Human Rights Atrocities in International Law 155–59 (2d ed. 2001)Google Scholar.

2 See 2 Transitional Justice: How Emerging Democracies Reckon With Former Regimes (Neil J. Kritz ed., 1995).

3 General Framework Agreement for Peace in Bosnia and Herzegovina, Dec. 14, 1995, Bosn.-Croat.-Serb., 35 ILM 75 (1996)Google Scholar [hereinafter GFAP].

4 See, e.g., International Crisis Group, War Criminals in Bosnia’s Republika Srpska: Who are the People in Your Neighbourhood? (ICG Balkans Report No. 103, 2000), available at <http://www.crisisweb.org/>. Sefer Halilović, the former chief of staff of the Bosnia-Herzegovina army, had been serving as the Federation of Bosnia and Herzegovina’s deputy minister for refugees and displaced persons prior to surrendering to the International Criminal Tribunal for the Former Yugoslavia in September 2001. Ironically, he was indicted by the ICTY for atrocitiesin the Mostar area that caused the deaths or displacement of Croats. Prosecutor v. Halilovic, Indictment, No. IT–01–48–I (Sept. 10, 2001). Miroslav Deronjic was a member of the Bratunac Municipal Assembly. There is no comprehensive study on the backgrounds of all Bosnian public officials, but research conducted by the ICG and UNMIBH, as well as Bosnian media reports, supports the contention that Bosnian public life is strongly influenced by individualswith problematic pasts. See Esad, Hećimović, Ko je sljedeći? Bosansko-Hercegovački Dani, Aug. 10, 2001, at 20 Google Scholar; Vildana, Selimbegović, Oči u oči sa upravnikom koncentracionog logora, Bosansko-Hercegovački Dani, Mar. 8, 2002, at 18 Google Scholar.

5 For a discussion of Bosnian power structures, referencing the influence of wartime leaders, see European Stabiliry Initiative, Reshaping International Priorities in Bosnia and Herzegovina—Part I: Bosnian Power Structures (Oct. 14, 1999), available at <http://www.esiweb.org/>>Google Scholar. See also Emir, Suljagić, Kosvečeka zaborav genocida, Bosansko-Hercegovacki Dani, July 15, 2001, at 23 Google Scholar.

6 International Crisis Group, Courting Disaster: The Misrule of Law in Bosniaand Herzegovina 31 (ICG Balkans Report No. 127, 2002), available at <http://www.crisisweb.org/>.

7 Prosecutor v. Drljača, Initial Indictment, No. IT–97–24 (Mar. 13, 1997); Prosecutor v. Meakič, Amended Indictment, No. IT–95–4–I (July 18, 2001).

8 For example, the group of police crime investigators who were regularly brought to Omarska to interrogate non-Serb detainees.

9 Prosecutor v. Kunarac, Judgment, Nos. IT–96–23, IT–96–23/1, paras. 567–92 (Feb. 22, 2001).

10 Dženana, Karup-Druško, Foča: mjesto zločna— Srbinje, predgrade Haaga, Bosansko-Hercegovački Dani, Mar. 2, 2001, at 65 Google Scholar.

11 Crim. C ch. 34 (RS); Crim. C. ch. 16 (Fed’n); Crim. C. ch. 16 (Brčko); Crim. C ch. 16 (Bosn. & Herz.), all available at <http://www.ohr.int/ohr-dept/legal/>. Recently, legislation was adopted that creates a state-level court superior to the entity courts and allows the higher court to select war crimes cases from the entity courts.

12 Agreed Measures, Feb. 18, 1996, Bosn.-Croat-Serb., para. 5, available at <http://www.ohr.int/other-doc/contact-g/>.

13 On criteria for effective domestic prosecutions, see Ratner & Abrams, supra note 1, at 182–86.

14 By March 2002, UNMIBH had identified forty cases involving atrocities allegedly committed by currently serving police officials. All of the cases had received clearance from ICTY, but none had moved beyond the judicial investigation stage (all were pending in Federation courts). None of the forty were arrested, and none had been indicted.In nine cases involving Federation police forces, six officers had been suspended, but only after UNMIBH officials initiated inquiries with Federation prosecutors and ministries of the interior (MOIs). No serious attempts had been made to pursue the prosecutions. In one case, a Croat police officer remained on the payroll of the Canton 7 Ministry of theInterior—and continued to receive his full salary—six months after ICTY gran ted approval to the Mostar cantonal prosecutor to proceed with a criminal prosecution. UNMIBH Human Rights Office, Internal Memorandum, RoR Category A Cases—Police Officials (Mar. 1, 2002) (UNMIBH internal memos cited in this Note are on file with the author).

15 International Crisis Group, supra note 6, at 31. It is estimated that over six thousand individuals are under investigation by Bosnian authorities; domestic court verdicts have been rendered against seventy.

16 Of the forty cases identified by UNMIBH, thirty-one involved allegations against officers in RS police forces.No significant attempts had been made by Federation officials to secure the assistance of RS officials in identifyingthe suspects and compelling their appearance before courts. The thirty-one suspects were allowed to continue serving in the RS MOI with no threat of suspension. One suspect served as the head of the RS MOI Documentation Unit, which was charged with preparing dossiers on war crimes suspects. UNMIBH Human Rights Office, supra note 14.

17 Laws on internal affairs exist at the RS and Federation entity levels, as well as at cantonal levels in the Federation;a separate law governs the Brčko District.

18 Code Crim. Proc. Art. 151 (RS); Code Crim. Proc. Art. 143 (Fed’n).

19 Code Crim. Proc. ch. 15 (RS); Code Crim. Proc ch. 15 (Fed’n).

20 See, e.g., Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 3, 6 UST 3516, 75 UNTS 287.

21 Crim. C. Art. 433 (RS); Crim. C. Art. 154 (Fed’n).

22 For a discussion of UNMIBH’s mandate, see Human Rights Watch, Bosniaand Herzegovina: Beyond Restraint—Politics and the Policing Agenda of the Un International Police Task Force (1998).

23 GFAP, supra note 3, Annex 11, Art. I. Id., Articles III, IV, and V provide, inter alia, that:

  • —

    — parties are obliged to cooperate fully with the International Police Task Force (IPTF);

  • —

    — the IPTF commissioner will advise the authorities of Bosnia and Herzegovina on the organization of effective civilian law enforcement agencies; and

  • —

    — failure by local authorities to cooperate with the IPTF constitutes failure or refusal to comply with IPTF requests.

24 SC Res. 1088, para. 28 (Dec. 12, 1996). The resolution also required the Secretary-General to report on the Bosnian authorities’ “compliance with IPTF-prescribed guidelines including their taking prompt and effective action, which could include dismissal [of local police officers] where appropriate.” These investigations could relate to the direct commission of crimes by law enforcement officers or the conduct of law enforcement officers in investigating crimes.

25 Authorities in both entities of Bosnia and Herzegovina explicitly accepted the quasi-executive authority of the IPTF commissioner in agreements signed in 1996 and 1998. Agreement on Restructuring the Police Federation of Bosnia and Herzegovina, Apr. 25, 1996, UNMIBH-Fed’n (on file with author) [Bonn-Petersberg Agreement];Framework Agreement on Police Restructuring, Reform and Democratisation in the Republika Srpska, Dec. 9, 1998, UNMIBH-RS (on file with author) [hereinafter RS Police Restructuring Agreement].

26 RS Police Restructuring Agreement, supra note 25, para. 22, which stipulates:

To further assist the Republika Srpska, . . . the IPTF Commissioner has established procedures for the decertification of police officers. On the basis of IPTF records and findings, the IPTF Commissioner may issue instructions to the RS [Ministry of Internal Affairs] to investigate, suspend, and, if required by the IPTF, dismiss the offending officers.

27 UNMIBH Registration, Provisional Authorisation and Certification, IPTF Policy No. IPTF–P02/2000 (effective May 15, 2000) [hereinafter Policy No. IPTF–P02/2000].

28 The term “exercising police powers” refers specifically to individuals who are authorized to carry out standard law enforcement actions, such as arresting, and carrying and using an official weapon. The term distinguishes such individuals from other employees of police institutions who carry out management or administrative tasks.

29 Policy No. IPTF–P02/2000, supra note 27.

30 UNMIBH/IPTF Human Rights Office, Human Rights Reports, at <http://www.unmibh.org/unmibh/humrigh/hr.asp> (visited Apr. 21, 2003).

31 UNMIBH, Removal of Provisional Authorization and Disqualification of Law Enforcement Personnel in BiH, IPTF Policy No. IPTF–P10/2002 (effective May 24, 2002) [hereinafter Policy No. IPTF–P10/2002].

32 De-authorized officers were given an opportunity to protest this sanction by submitting relevant information to UNMIBH. An UNMIBH panel—members of which are independent of the IPTF commissioner—would review the submissions and recommend changes of decisions if necessary.

33 Policy No. IPTF–P10/2002, supra note 31, para. 2(h).

34 See Memorandum from UNMIBH Human Rights Office to IPTF Commissioner, Local Police Officers Suspectedof War Crimes (Aug. 6, 2001).

35 See Code Crim. Proc. Art. 151 (RS); Code Crim. Proc. Art. 153 (Fed’n).

36 Republika Srpska Law on the Prosecutor’s Offices, RS Off. Gaz. 55/02; and Federation of Bosnia and Herzegovina Law on the Federation Prosecutor’s Office, Fed’n Off. Gaz. 42/02.

37 As of July 1, 2002, UNMIBH had de-authorized forty-seven police officers on suspicion of liability for acts committed during the war, including fourteen from the Federation and thirty-three from the RS. The total rose to sixtyfive by the time UNMIBH ceased operations on December 31, 2002.

38 For example, it was difficult to judge the quality of witness statements when they could only be reviewed in the Hague. UNMIBH addressed this problem by keeping in regular contact with the Dutch ICTY investigators, making specific requests for information, and visiting the investigators.

39 Such provisions were simply not feasible, given the scale of UNMIBH’s tasks in reviewing twenty-five thousand employees of the Ministry of the Interior and the limited amount of time given UNMIBH to complete its mandate.

40 Memorandum from UNMIBH Human Rights Office to IPTF Commissioner (Oct. 10, 2001).

41 See, e.g., Prosecutor v. Kvočka, Second Amended Indictment, No. IT–8–30–PT (May 31, 1999).

42 See note 21 supra and corresponding text.

43 Prior to the de-authorizations, the officers had not been the subject of any particular scrutiny by RS officials.Each of the men held a high-ranking position in the Prijedor police force, including in the Crime Department.

44 Letter from IPTF Commissioner Vincent Coeurderoy to RS Minister of Interior Dragomir Jovičić (Nov. 20, 2001).

45 Memorandum from UNMIBH Human Rights Office to IPTF Commissioner (Feb. 12, 2002).

46 Prosecutor v. Hadžihasanović, Amended Indictment, No. IT–01–47–PT (Jan. 11, 2002).

47 e.g., id., para. 61.

48 At the time of their de-authorization, one of the officers was the chief of the Federation MOI Internal Control Unit; the other was the Bugojno police chief.

49 See Prosecutor v. Kunarac, supra note 9.

50 Memorandum from UNMIBH Human Rights Office to IPTF Commissioner (Nov. 9, 2001).

51 Memorandum from UNMIBH Human Rights Office to IPTF Commissioner (Feb. 13, 2002).

52 At the time of their de-authorization, one of the officers was the chief of the Foča Traffic Police; the other was Foča police chief.

53 This role was expanded in mid-2002 to include consultations on fostering domestic war crimes prosecutions.

54 Office of the High Representative, Decisions on Removals and Suspensions from Office, at <http://www.ohr.int/decisions/archive.asp> (visited Apr. 21, 2003).

55 Organization for Security and Co-operation in Europe, Mission to Bosnia and Herzegovina, Rules and Regulations for General Elections 2000, available at <http://www.oscebih.org/elections/implementation/rules.asp>.