ICTY - The Hague, Sarajevo

The first case for the newly established Bosnian War Crimes Court is going to be held soon. Within one month the first indictee might be transferred from The Hague to Sarajevo, under the 'vigilant glance' of the OSCE.

On the 17th of May 2005, a Referral bench, appointed by the ICTY's President and presided by Judge Alphons Orie, issued an important decision in the 'Foca Case' under 'Rule 11bis' of the Tribunal's Statute, which gives the possibility of tranferring cases to countries other than The Netherlands. The ICTY's mandate ends in 2010 and the Tribunal is now focusing only on the 'big fishes', Radovan Stankovic was only a 23 years old soldier in 1992.

In 1992 militias occupied Foca, a small town close to the accused's village. Armed forces jailed and killed men and enslaved women and girls. The accused is allegedly responsible for 'ruling' a house where 9 girls as young as 12 were repeatedly raped and sexually enslaved, to have raped at least two women and to have been the person who was 'assigning' the girls to the soldiers for sexual enslavement. This is one of the low ranks cases - says the Prosecution - so there is no real urgence to hold the trial at the International Criminal Tribunal. The Judges agree, especially taking into consideration that there will be a OSCE 'supervision', that the trial will be held in a tribunal with international judges, and that there won't be a death penalty sentence (the death penalty is banned by the ICTY).

This is a first important step in the reconciliation efforts, but still there are things which are not clear to me.

He allegedly commited the crimes in 1992, he was arrested in 2002, after 3 years he will be transferred to Sarajevo and tried by another Court with different standards and punishments.

Let's admit for a moment that he is innocent - and probably he isn't: in small towns people know each other by name, and the ICTY is charging him with four counts of crimes against humanity (two counts of enslavement under Article 5(c) and two counts of rape under Article 5(g)) and four counts of violations of the laws or customs of war (two counts of rape and two counts of outrages upon personal dignity under Article 3 :) - this person will have a fair trial and, if condemned, will be jailed in his country, not in a luxury prison (as the ICTY's prisons in Scheveningen are if compared to many European prisons)

The funny thing of international courts is that they must have a 'high-standard' for crimes (you must be allegedly responsible for crimes against humanity, war crimes, genocide), that there must be a kind of graduatory for punishments, and that individual responsibility doesn't mean at all that a person has effectively killed/raped/tortured/etc. a person.

So a person who has never phisically killed a person might get a life sentence and a person who has killed/raped/tortured dozens of people might get quite a 'short' sentence.

This soldier, if tried at the ICTY, could get a really 'short' sentence, but the crimes he has allegedly committed might have destroyed a 12 years old girls life and the integrity and life of other girls and women

Judge Alphons Orie, Presiding
Judge O-Gon Kwon
Judge Kevin Parker


ICTY - Decision on Referral of Case Under Rule 11 Bis, Case No. IT-96-23/2-PT, 17 May 2005

IWPR - Bosnian Court Prepares for First Hague Case Nerma Jelacic, Sarajevo,

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