Guilt, Responsibility, and Denial. Eric Gordy
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a situation in which the legitimacy of legal institutions and even basic legal documents remained open to debate. This offered at best an unstable framework for extensive engagement on the part of judicial institutions.
The capacity for domestic prosecution was enhanced after 2000, when the last of the wartime regimes left power. Vladimir Vukčević became the first special prosecutor for war crimes in Serbia in 2003. Bosnia-Herzegovina’s War Crimes Chamber was established in December 2004 and began work in March 2005. While the Croatian parliament had made a declaration on the legitimacy of the state’s military efforts in 2000,41 in response to pressure from the European Union special war crimes chambers were designated and the first cases began to be referred to them in 2005.
Throughout the region credible domestic prosecution started slowly. Early prosecutions in Croatia had been widely perceived as being selective.42 With the establishment of special chambers major cases began to be tried on a larger scale by domestic legal institutions, with a shift away from a balance that favored prosecutions of Croatian Serbs for violations committed as members of rebellious paramilitary forces, and an increasing number of cases involving violations by Croat forces against civilians. The periodic OSCE report raised concern about systematic bias as late as 2006.43 But dramatic instances of impunity in Croatia, including the longstanding untouchable status of such former paramilitary commanders as Tomislav Merčep and Branimir Glavaš, began to be aggressively addressed following the accession of Ivo Josipović to the presidency in 2010.44 Nonetheless, concern remains that many cases that could be referred to the specialized war crimes chamber remain instead in the regular courts.
The special chamber for war crimes was established in Bosnia-Herzegovina in 2005, and 122 cases had begun to be heard by 2009.45 The number of cases hardly corresponds, and probably never can do so, to the number of people who could potentially be charged with offences. Some barriers to prosecution were imposed by basic political structures like the Dayton Peace Agreement, while there are also persistent issues of jurisdiction arising from the simultaneous operation of three different judicial systems, as well as from ongoing confusion as to whether the applicable law derives from the Criminal Code of Yugoslavia, which was in force at the time of the conflict, or from the Criminal Code of Bosnia-Herzegovina, which addresses issues of war crimes in greater detail but did not come into force until 2003.46
Serbia faces both a large number of cases and large challenges to prosecuting them. Some of the most prominent war crimes prosecutions since 2000 have involved the members of the “Scorpions” paramilitary group, members of which were convicted and sentenced in 2005 for a massacre of ethnic Albanian civilians in Podujevo, and in 2007 for participation in the Srebrenica genocide.47 The Scorpions cases crucially involve the role of military and state security services in the supply, organization and command of paramilitary forces—an issue highlighted by nongovernmental advocacy groups that participated in the cases. Efforts to try the perpetrators of the Ovčara massacre near Vukovar in 1991 failed. A conviction with harsh sentences was rendered in 2005, though this was subsequently overturned. The last word in the case was thereby forfeited by Serbian courts and fell to ICTY, which convicted two of the main suspects in the massacre and released a third.48
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