WELCOME TO IWPRS TRIBUNAL UPDATE No. 532, 5 January, 2008 PERFECT BELGIAN TAKES OVER AS HAGUE PROSECUTOR Serge Brammertz faces a tough job as the tribunals new chief prosecutor. By Simon Jennings in The Hague
ICTY SENTENCES UNDER SCRUTINY Apparent lack of consistency in length of tribunal sentences blamed on loose guidelines. By Simon Jennings in The Hague CROATIAN MINISTER QUITS AFTER HUNT CONTROVERSY Premier insists, however, his government has not lost credibility over officials breach of tribunal rules. By Goran Jungvirth in Zagreb **** IWPR RESOURCES ****************************************************************** NEW PUBLICATION: SYRIA PRESS MONITOR. Weekly round-up of news and opinion from the Syrian national and diaspora press. To find out more or subscribe to RSS feed please go to: http://iwpr.net/syriapressmonitor.html SAHAR JOURNALISTS ASSISTANCE FUND: IWPR is establishing a fund, in honour of Sahar al-Haideri, to support journalist participants in its training and reporting programmes around the world. The Sahar Journalists Assistance Fund will be used to support local journalists in cases of exile or disability, or to assist their families in case of death in service. 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By Simon Jennings in The Hague Serge Brammertz, known in his homeland as the perfect Belgian, was this week appointed chief prosecutor at the Hague tribunal. with three years left to find top Bosnian Serb fugitives Radovan Karadzic and Ratko Mladic. Brammertz, who was formerly in charge of the United Nations investigation into the assassination of former Lebanese prime minister Rafik Hariri, replaces Carla Del Ponte who stepped down at the end of December after eight years at the tribunal. He will have his work cut out as the tribunal continues to put pressure on Belgrade to arrest Karadzic and Mladic, who are both indicted for atrocities including the massacre of 8,000 Bosniak men and boys at Srebrenica in 1995. He will also be responsible for bringing the tribunal to a close at the end of 2010, by which time all trials and appeals must have been completed, unless Karadzic and Mladic are brought to The Hague in the mean time. Brammertz is the fourth chief prosecutor at the tribunal, succeeding Richard Goldstone, Louise Arbour and Carla Del Ponte. Unlike his immediate predecessor, Del Ponte, he does not welcome media interest. Mr Brammertz is very discreet, I can hardly remember [him] giving an interview since he has held international jobs and I do not think that he will be doing so straight away, said Belgian journalist Jan Balliauw. With degrees in law and criminology, Brammertz was professor of law at the University of Liège in Belgium. He has worked in Hague institutions before, as a prosecutor at the International Criminal Court leading investigations into war crimes carried out in Uganda, Sudan and the Democratic Republic of Congo. Having climbed the ranks of Belgiums national prosecution service to become federal prosecutor, Brammertz is highly regarded in the fields of international legal cooperation and human rights. But despite his international success and reputation for diplomacy, Brammertzs appointment was not the popular choice among tribunal staff. Many had asked UN Secretary-General Ban Ki-moon to promote David Tolbert, the deputy prosecutor. It was felt that Brammertz would have to learn the job from scratch, whereas Tolbert knew what was required from having worked under Del Ponte. Simon Jennings is an IWPR reporter in The Hague. ICTY SENTENCES UNDER SCRUTINY Apparent lack of consistency in length of tribunal sentences blamed on loose guidelines. By Simon Jennings in The Hague It is hard to find anyone in the Balkans who agrees with the 33-year sentence passed on war crimes convict Dragomir Milosevic last month. The Bosnian Serb, who commanded the Sarajevo-Romanija Corps for the last 15 months of the 1992-5 siege of Sarajevo, in which 10,000 people were killed, received one of the harshest sentences yet handed down by the International Criminal Tribunal for the Former Yugoslavia, ICTY. But it still was not nearly enough for Senida Karovic, president of the Union of Civilian Victims of War from Sarajevo. "He should have been sentenced to life imprisonment, she told Bosnia's Avaz daily. No punishment would ever be adequate for all the pain and suffering the innocent citizens of Sarajevo had to endure during the war. In Serbia, however, the tariff was deemed unnecessarily harsh, especially when compared to that imposed on Naser Oric, a Bosniak commander who was convicted in 2006 of failing to prevent the deaths and mistreatment of Bosnian Serb detainees. "This verdict is a shame! They sentenced General Milosevic to 33 years in prison, while Naser Oric received only two years. This clearly shows the Hague tribunal is a political court," posted one blogger on the website of the Serbian daily Blic. Behind the often emotional rhetoric lies a serious issue: the apparent lack of consistency in sentences imposed by the ICTY. When passing sentence, judges are subject to the tribunal's Rules of Procedure and Evidence. These demand that they consider various factors before deciding a sentence, including the seriousness of an offence, the circumstances of the person convicted, and any mitigating factors involved. However, none of this imposes rigid limits on the length of sentence. This is a very complex subject. I think sentencing is more art than science. It is something that is left to the discretion of judges and that's probably as it should be, Professor William Schabas, Director of the Irish Centre for Human Rights, told IWPR. However, such loose guidelines leave judges at the mercy of criticism when they are forced to exercise discretion. Tribunal defence lawyer Michael Karnavas said judges took great care to avoid giving the impression that they were following anyone's lead in sentencing, I believe judges jealously guard, in the trial chambers, their independence. They don't care how chamber X did in this particular case. They're going to follow what they believe is best. And judges have taken vastly different approaches to mitigating factors, such as whether a suspect pleaded guilty or not. Miroslav Deronjic, who was convicted of persecuting non-Serb civilians in Glogova, Bosnia in 1992, received a prison sentence of just ten years which was recommended by prosecutors in return for his guilty plea. Momir Nikolic, meanwhile, was handed a sentence of 27 years imprisonment by the trial chamber for his role in the detention and execution of Bosniak men and women who had fled from Srebrenica in 1995. He received this punishment despite a request by the prosecution that on account of his guilty plea, the sentence should not exceed 20 years. Perhaps one reason for the inconsistency in sentences passed lies in the experience of the judges themselves. Several judges have a background in academia or diplomacy, rather than in criminal law. According to Judge Wolfgang Schomburg of the tribunal's appeals chamber, many of them find it difficult to take responsibility for a harsh sentence. Academics are eager to develop the law but when it comes to sentences they are a little bit hesitant, he told IWPR. It may also be said that judges come from various legal traditions and have different experiences, and so will approach each case differently from one another. Some observers believe that inconsistency can result from judges not always considering the same factors when passing sentences. When you compare cases you see that they are not consistent in discussing sentencing factors under specific headings, said Denis Abels, a researcher in International Detention Law at Amsterdam University. Abels advocates a system where judges are much more explicit in sentencing by stipulating the specific factors they have considered. But Judge Schomburg believes it would be impossible to impose more binding guidelines when it comes to sentencing. Judicial discretion is a highly valued aspect of sentencing, he said, because it is about taking into account the individual factors of each case, [as] no case can be compared with another case. Both Abels and Karnavas believed the problem would be solved if the tribunal introduced separate sentencing hearings similar to those which take place at the UN Special Court for Sierra Leone. This would allow both prosecution and defence lawyers to address the specific aggravating and mitigating factors relevant to sentencing in a given case. As it stands, the judge passes sentence based on arguments made during the case about whether the accused is guilty or not guilty rather than on facts that may help or hinder the accused after a guilty verdict is passed. How can you discuss mitigating factors if you are trying to achieve a not guilty verdict? You're not conceding that your client was involved. Where the system does need fixing in my opinion would be to be to have the sentencing phase separate, Karnavas told IWPR. According to Abels, introducing such hearings would make it clearer for all parties as to what factors have been considered in the sentencing judgment, thus taking the pressure off the judges. If [the tribunal judges] would look at the sentences meted out at the Special Court for Sierra Leone, they would see that [this court] has done quite a good job by having separated sentencing hearings They are much more explicit in the sentencing which is a good thing, he said. Simon Jennings is an IWPR reporter in The Hague. CROATIAN MINISTER QUITS AFTER HUNT CONTROVERSY Premier insists, however, his government has not lost credibility over officials breach of tribunal rules. By Goran Jungvirth in Zagreb The Croatian interior minister, Ivica Kirin, resigned last week after photographs of him hunting with a war crimes suspect under house arrest were leaked to the press. Suspect General Mladen Markac was arrested after officials from the International Criminal Tribunal for the former Yugoslavia, ICTY, heard about the unauthorised excursion, which broke the terms of his provisional release. The suspect is accused by ICTY prosecutors, along with generals Ivan Cermak and Ante Gotovina, of seeking to expel Croatia's ethnic Serb population from eastern Croatia during a Croatian military offensive in 1995, Operation Storm. Markac, who voluntarily surrendered to the ICTY in 2004, was given permission by judges to await trial under house arrest. However, a local official sent photographs to the media of the suspect and Kirin taking part in a hunt together last month, causing major embarrassment for the government. Kirin submitted his resignation on December 29, a week after the trip. He not only went hunting with Markac, whose house arrest he was supposed to be monitoring, but also failed to notify the Hague tribunal that Markac had violated the terms of his parole. I express greatest regret and apologise to everyone who was in any way hurt or damaged because of it, said Kirin in a letter to President Stjepan Mesic, as quoted in an interior ministry statement. I thank you, Mr President, for your trust and cooperation and wish you success in the further running of the Croatian cabinet. The ICTY issued a warrant for Markac's arrest on December 28, saying in a statement that it had received information that Markac left his home and participated in a hunt at Bilogora six days earlier. It said the Croatian authorities had not notified the tribunal themselves about Markac violating the terms of his provisional release, nor had they detained him as they are obliged to do if the defendant violates a condition of his house arrest. Markac was arrested at his home in Zagreb on December 29, and transferred to The Hague the following day. President Mesic told reporters Croatia had lost credibility because of the scandal and should apologise to the tribunal. However, Prime Minister Ivo Sanader disagreed. What I can definitely say is that the Croatian government has not lost credibility, he said on January 2, after 11 days of silence over the affair. The government has proved that it respects Croatian laws, above all the constitutional law on cooperation with the Hague tribunal, and its international obligations in accordance with Security Council resolutions. The same day, Virovitica mayor Zvonko Koznjak, organiser of the ill-fated hunting trip, also made his first public appearance since the incident. He apologised to Markac and to his family for their troubles, saying his spokesman had sent the photographs to the media without his knowledge. The scandal was a case of déjà vu for followers of the war crimes tribunal. Last winter, Markacs co-defendant General Ivan Cermak was accused of having violated the terms of his parole by celebrating a birthday in a restaurant, marking New Year's Eve in a hotel and going skiing. Cermak, however, was allowed to remain at liberty, perhaps because the parole violations did not involve a top state official. Goran Jungwirth is an IWPR journalist in Zagreb. **** www.iwpr.net ******************************************************************** TRIBUNAL UPDATE, the publication arm of IWPR's International Justice Project, produced since 1996, details the events and issues at the International Criminal Tribunal for the Former Yugoslavia, ICTY, at The Hague. These weekly reports, produced by IWPR's human rights and media training project, seek to contribute to regional and international understanding of the war crimes prosecution process. The opinions expressed in Tribunal Update are those of the authors and do not necessarily represent those of the publication or of IWPR. Tribunal Update is supported by the European Commission, the Dutch Ministry for Development and Cooperation, the Swedish International Development and Cooperation Agency, the Foreign and Commonwealth Office, and other funders. IWPR also acknowledges general support from the Ford Foundation. 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