Transitional Justice and ‘National Ownership’: An Assessment of the Institutional Development of the War Crimes Chamber of Bosnia and Herzegovina

Garbett, Claire

doi:10.1007/s12142-011-0209-8

Cited by 5 publications

(3 citation statements)

References 22 publications

(18 reference statements)

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“…22 Pa iako se tokom posljednjih decenija uočavaju trendovi jačanja kulture sporazumjevanja i na evropskom kontinentu, te se prema nekim procjenama, primjera radi, u Njemačkoj oko 50% krivičnih predmeta riješi primjenom određenog oblika sporazumjevanja, 23 obim primjene sporazuma o priznanju krivnje nije ni približan onome na prostorima SAD-a, u kojima se 95% krivičnih predmeta koji se okončaju donošenjem osuđujuće presude temelji na primjeni sporazuma o priznanju krivnje. 24 Neke procjene govore da tokom redovnog radnog vremena svake dvije sekunde neka osoba na tlu SAD-a prizna 20 Pojednostavljene forme i načine postupanja karakterizira manji stepen složenosti procesne strukture u odnosu na opći krivični postupak, koja se obično ogleda u izostavljanju pojedinih stadija krivičnog postupka, skraćenju procesnih rokova te izostavljanju određenih procesnih formalnosti i garacija, odnosno tzv. deformalizaciji postupka.…”

Section: Sporazum O Priznanju Krivnjeunclassified

Plea Bargainings for War Crimes In Bosnia and Herzegovina: Between Repentance And Consensual Justice

2020

Zb. rad. Pravnog fak. Tuzli

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One of the contemporary tendencies in the development of criminal procedural law is the introduction of simplified (summary) forms of criminal procedure, aimed at accelerated resolution of criminal disputes and reducing the number of criminal cases. Among the most common forms of simplified procedure in comparative law are institute of the plea bargaining (plea agreement), which represents a settlement sui generis between the prosecutor and the suspect/accused, under which the prosecutor offers to accused certain procedural benefits in exchange for a guilty plea to committed crime. These benefits, for example, can be reflected in proposing a more lenient qualification of the crime, or withdrawing certain elements in the charge, proposing the imposition of lenient criminal sanctions etc. There are many arguments pro et contra application of the institute in question. It is undoubted that the application of a plea bargaining contributes to a faster resolution of criminal cases and to a reduction of the costs of criminal proceedings, and at the same time such a confession, especially if it is accompanied by sincere repentance, can be a significant satisfaction for victims, etc. On the other hand, the settlement of parties in criminal proceedings can significantly jeopardize the processes of establishing material truth and corrective justice, especially in war crimes criminal proceedings. These paper presents basic information on war crimes prosecutions in Bosnia and Herzegovina and analyzes the legal framework for its implementation, as well as the advantages and disadvantages of a plea bargaining. Statistical indicators were collected and discussed on the scope of the plea bargaining in war crimes committed in Bosnia and Herzegovina, which have been conducted before the International Criminal Tribunal for the former Yugoslavia (ICTY), serbian and german judiciaries, as well as courts in Bosnia and Herzegovina. It was found that about one-quarter of those convicted by the ICTY have previously concluded an agreement with The Hague Prosecution. In addition, the plea bargaining (plea agreement) applies to war crimes cases to a large extent in the courts of Bosnia and Herzegovina, where, interestingly, the scope of its application in relation to these crimes is at the level of the average application of this institute of all crimes prosecuted by the courts in Bosnia and Herzegovina, and is around 10%. The somewhat smaller scope of the plea agreement for war crimes in Bosnia and Herzegovina has been reported by the courts in the Republic of Serbia

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Section: Sporazum O Priznanju Krivnjeunclassified

Plea Bargainings for War Crimes In Bosnia and Herzegovina: Between Repentance And Consensual Justice

2020

Zb. rad. Pravnog fak. Tuzli

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“…Scholars have accordingly examined the role of professionals in international tribunals and other international endeavors (Lefranc and Vairel 2014). These professionals include the lawyers, judges, and other legal personnel who staff international tribunals (e.g., Hagan 2003;Garbett 2012) as well as the international actors who have become transitional justice experts and entrepreneurs, such as representatives of international governmental organizations and human rights activists (e.g., Madlingozi 2010).…”

Section: Professions and Transitional Justicementioning

confidence: 99%

Producing Expertise in a Transitional Justice Setting: Judges at Rwanda’s Gacaca Courts

Brehm¹,

Smith²,

Gertz³

2019

Law Soc. Inq.

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In the aftermath of the 1994 Genocide Against the Tutsi, the Government of Rwanda created courts to hold hundreds of thousands of suspected g enocidaires accountable. Faced with an unprecedented volume of cases, each community elected lay judges known as inyangamugayo to preside over the court proceedings. With no prior legal training, these individuals held trials for a decade, levying sentences ranging from minor fines to life in prison. This article draws from forty-six interviews with former inyangamugayo to make two primary contributions. First, we examine how professional boundaries shifted during a period of upheaval such that laypeople performed tasks typically undertaken by professionals. Second, we highlight the centrality of social capital-and, more specifically, reputations-in the inyangamugayo's election and tasks. In doing so, we illustrate how the inyangamugayo leveraged their reputations to secure the cooperation of fellow community members in adjudicating crimes of genocide.

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“…Yet, as discussed later in this article, the ICTY's record of actually achieving reconciliation and facilitating transitional justice in the former Yugoslavia has been the subject of much criticism, with many arguing that the ICTY either failed to promote reconciliation, or in fact hindered this process (Subotić 2014, 172). A key problem regularly cited in this critical literature is that the ICTY lacked local legitimacy; the absence of any national control over, or involvement in, the establishment and proceedings of the ICTY, coupled with the court's physical distance from the former Yugoslavia, and its lack of engagement with people on the ground, meant that the ICTY was largely perceived-by all national groups-as 'alien' and ultimately illegitimate (Garbett 2012;Milanovic 2016;Subotić 2009a).…”

Section: Introductionmentioning

confidence: 99%

Lessons Learned? The Kosovo Specialist Chambers’ Lack of Local Legitimacy and Its Implications

Hehir

2019

Hum Rights Rev

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The experiences of many transitional justice mechanisms have led to a general consensus on the central importance of local legitimacy and local ownership; this indeed is repeatedly avowed by both the UN and the EU in their prescriptions on effective transitional justice mechanisms. Yet, I argue that the Kosovo Specialist Chambers was established in the absence of both. The court was not created in response to domestic pressure from within Kosovo; rather, it was the result of external pressure which by definition compromised local ownership and legitimacy. Drawing on the findings from first-hand qualitative research, I demonstrate that the court's local legitimacy has not improved since its establishment. This lack of legitimacy, I argue, has potentially negative implications as, without popular legitimacy, the court's proceedings and judgements are unlikely to command sufficient public support to either catalyse the societal changes promised by the court's external sponsors, or withstand opposition to the court from within the Kosovo Albanian population resulting from any perceived slight against the 'heroic' KLA.

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Transitional Justice and ‘National Ownership’: An Assessment of the Institutional Development of the War Crimes Chamber of Bosnia and Herzegovina

Cited by 5 publications

References 22 publications

Plea Bargainings for War Crimes In Bosnia and Herzegovina: Between Repentance And Consensual Justice

Plea Bargainings for War Crimes In Bosnia and Herzegovina: Between Repentance And Consensual Justice

Producing Expertise in a Transitional Justice Setting: Judges at Rwanda’s Gacaca Courts

Lessons Learned? The Kosovo Specialist Chambers’ Lack of Local Legitimacy and Its Implications

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