REGIONAL REPORT: Former Defendants Fight for Damages

Zejnil Delalic and the Kupreskic brothers may have cleared their names after standing trial in The Hague for war crimes, but they will face an uphill struggle in their fight for compensation.

For when the United Nations Security Council created the tribunal, its statute included no provision for remuneration of defendants falsely accused of committing crimes. The Hague called on the UN to reconsider the matter in September 2000, but no changes have been made to date. This has serious implications for a number of acquitted defendants.

Delalic, a Bosniak commander indicted for crimes at the Celebici prison camp, was detained at The Hague from March 1996 to November 1998. The case against him was dismissed as it could not be proved that he knew about the crimes committed in the camp.

After his conviction was overturned, Delalic appealed to the tribunal and the UN Security Council to be compensated 255,000 euros for his legal fees and his suffering in detention. A businessman who owned a number of construction companies in Vienna, he also believed he was entitled to potential earnings from this period.

There was no answer from the UN, while the tribunal was unable to consider his request for suffering because it does not have the powers to do so. The latter might have been able to pay Delalic's defence costs, but since he had not applied for legal aid at the beginning of his trial this was not possible, said Hague official Christian Rhode.

In legal aid cases the tribunal's administrative wing - known as the registry - examines individual cases and calculates payment based on the financial situation of the defendant and the complexity of the case. Rhode said that Delalic had made a retroactive bid for the money after his release, insisting that such a claim was not permitted.

Delalic, now a deputy justice minister in the Herzegovina Neretva canton, has pledged to keep up the pressure on the tribunal. "I will persevere in my quest to get justice," he told IWPR.

Zoran, Mirjan and Vlatko Kupreskic - who were indicted for one of the worst massacres of the war but whose convictions were overturned on appeal - had legal aid approved by the tribunal.

Vlatko told IWPR that they now intend to hire two British lawyers to sue for other associated costs. "It is hard to talk about exact figures but, in any case, there are material damages and non-material damages," he said.

The Kupreskics had been charged over the massacre of around 100 Muslim civilians in Ahmici and detained at The Hague from 1995 to 1999. An appeal court freed them after finding some witnesses "unreliable".

"As far as I am concerned, four years of my life have been destroyed. My family, my mother and my businesses have been devastated. I think ten million US dollars is the very minimum that could make up for all these losses," said Vlatko

Zagreb lawyer Jadranka Slokovic-Glumac recently said there is no point in pursuing compensation while the tribunal's original statue remains unchanged by the security council, a view shared by Rhode.

Registry spokesman Jim Landale told IWPR that the matter is being looked into. "The judges are worried that this provision is missing in the statute. The tribunal has asked the security council to look into the matter in order to enable those who were mistakenly charged to ask for damages," he said.

Sources close to the tribunal claim a decision on the issue has been postponed because such a change in regulations would require proper compensation procedures and a fund to be put in place - raising difficult questions about where the money will come from.

Indeed, many believe money is the main reason why the UN Security Council is delaying action. With the tribunal's work scheduled to end in 2007 or 2008, it may not be considered worthwhile for the UN to create new rules that would require extra expenditure.

Even if everything ends well for the Kupreskic brothers and Delalic, and the possibility of compensation arises, the damages would be paid only in the case of a "grave miscarriage of justice" on the part of the court. Any payment would not follow automatically but would be conditioned upon an investigation into how much suffering the tribunal was deemed to have inflicted upon the defendant.

Ekrem Tinjak is a journalist with Start magazine in Bosnia and Herzegovina. Mirna Jancic is assistant editor in IWPR.