Appalling notes on domesticity

There is an interesting conflict over jurisdiction in the case of the notorious KP Dom in Foca, which ICTY would like to refer to a domestic court. But which domestic court? Both Bosnia-Hercegovina and Serbia-Montenegro are claiming jurisdiction. The ICTY prosecutor wants the case referred to a Bosnian court, in the territory where the crimes were committed.

As reported by SENSE, the accused are offering different strategies to argue that their cases should either remain before ICTY or moved to a venue friendlier than the one where they committed their crimes. The deputy warden of the KP Dom in Foca, Savo Todovic, claims that he would be unable to present a defence in a Bosnian court. The commander of the guards, Mitar Rasevic, raises a similar concern but does not oppose a trial in Bosnia-Hercegovina as long as it is speedy. Accused rapist Gojko Jankovic argues that Bosnia-Hercegovina's witness protection regime makes a fair trial impossible.

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The accused: top to bottom, Gojko Jankovic, Savo Todovic and Mitar Rasevic. Photos courtesy of ICTY.

Gojko Jankovic argues that he can be considered a citizen of Serbia-Montenegro since he lives there and has applied for dual citizenship. Savo Todovic justifies the claim for competing jurisdiction on the fact that he has been a citizen of Serbia-Montenegro for the past two weeks.

The case is an early illustration of one of the basic dilemmas that is going to confront ICTY as it prepares to close shop and refer cases to domestic courts. First, it is not clear which courts are "domestic," as governments continue to claim proprietary rights over their victims and their criminals. Second, the obligation to prosecute would seem to be on a permanent collision course with the right to a defence. Serbia-Montenegro has compromised more than the law by appearing to offer fast-track citizenship to individual criminals from neighbouring states. People have been complaining for years that an outside institution like ICTY cannot dispense justice--but is it possible that an outside institution protects both witnesses and accused better than a kobajagi domestic one can?

Thanks to loyal reader and regional cuisine specialist AR for tips and links. This was important enough for East Ethnia to break its pre-travel silence.


Yakima_Gulag said...

Thanks for breaking this story, it's really dismayed me that the ICTY is closeing shop. I think that it's important to try EVERYONE where they cannot so easily game the system, and I do mean EVERYONE!
Sretan Put!

T K Vogel said...

Not being a lawyer, I'm not sure I understand. These guys have claimed for the past fifteen years that what happened in Bosnia (as regrettable as it may have been -- that's when you talk to a *liberal*) was a civil war, that Serbia was only, perhaps, helping a little bit but had no responsibility for what was going on. The crimes took place on what was indisputably Bosnian territory and was committed by folks who were indisputably (I believe) Bosnian citizens, never mind what other citizenship they may hold now. What's the deal?

Eric Gordy said...

Yes, it looks like all three of them are BH citizens. But it is not clear why this should make a difference in principle -- the state where the crime was committed generally has jurisdiction for violations of its law (get a parking ticket in China, you can't pay it in Canada).

I think what is different here is that ICTY's standard for referring cases to a domestic court is "the interest of justice." They are interpreting this as meaning which court is best able to give a fair trial. The defendants are arguing that they cannot present the defence they planned in BH, on the basis of access to witnesses. The prosecution has better access to witnesses in BH. But it is not clear to me why ICTY has a choice of where to refer it, except that their jurisdiction is "the territory of the former Yugoslavia." The dispute is clearer in the Vukovar case, where SCG citizens (obligation to prosecute) committed crimes on the territory of Croatia (jurisdiction).