Introduction to Balkan War Crimes Courts
Bosnia and Herzegovina
The War Crimes Chamber of the Court of Bosnia and Herzegovina is the first permanent and specialised domestic court designed to prosecute people held accountable for the human rights violations and war crimes that took place in Bosnia during the 1992-1995 conflict. The WCC began as a joint initiative between the International Criminal Tribunal for the former Yugoslavia, ICTY, and the Office of High Representative, OHR.
After the armed conflict in the former Yugoslavia, the United Nations Security Council established the ICTY to prosecute four types of crime:
- Grave breaches of the 1949 Geneva conventions.
- Violations of the laws or customs of war.
- Crimes against humanity.
Based in The Hague, the ICTY was originally proposed by German foreign minister Klaus Kinkel and passed by Security Council resolution 827 on May 25, 1993. While the court successfully prosecuted scores of war crimes suspects, there are many more at large. So in order to support the ICTY and help it continue its work beyond the end of its mandate in 2010, the Bosnian War Crimes Chamber was established.
A small number of the WCC cases are referred by the ICTY and usually deal with mid- and lower-ranking defendants. The rest of the cases are locally initiated.
The WCC began operations in Sarajevo on March 9, 2005. Unlike many other war crimes courts, the WCC is fully a part of the domestic legal system of the country in which it operates. While it is a domestic institution, it was founded and continues to function with funding, resources and personnel from the international community.
How the WCC works
The WCC consists of five panels of two international judges and one national judge, with the national judge presiding. Over about a five-year transitional period, the composition of the judging panels will change to two national and one international judge, and finally to strictly national judges by 2010.
The Appellate war crimes chamber has one panel with two international judges and one national judge, with the national judge serving as the panel’s president.
National judges are appointed by the High Judicial and Prosecutorial Council, HJPC, of Bosnia and Herzegovina for life terms. International judges are appointed to the WCC for two-year renewable terms by the international community’s High Representative in Bosnia in conjunction with recommendations from the court’s president and the HJPC President. Both national and international judges are then assigned to specific divisions and chambers by the president of the court.
The WCC has jurisdiction over crimes including: genocide, crimes against humanity, war crimes, violations of laws of war and individual criminal responsibility for these acts as defined by the Criminal Code of Bosnia and Herzegovina, and issues involving international and inter-entity law enforcement like extradition, surrender, and the transfer of persons requested by Bosnian authorities, authorities of foreign states or international courts and tribunals.
Cases are heard at the request of:
- Any court of Bosnia’s two entities.
- The Brcko District.
- The chamber may initiate its own proceedings.
Funding and Budget
The funding for the WCC comes from both the state budget of Bosnia and Herzegovina, as well as from international donors.
Kosovo’s “Regulation 64” panels attempt to provide a domestic answer to the question of how best to prosecute those suspected of crimes during the Kosovo conflict of the late Nineties.
The United Nations Mission in Kosovo, UNMIK, established an interim civilian administration to help the region transition to autonomy in 1999. To prosecute war crimes and acts of genocide, UNMIK originally planned to establish a court with a mixture of international and national judges that held parallel but primary jurisdiction with domestic courts.
The idea was soon abandoned due to high costs and political sensitivities. In its place, UNMIK set up a system with international judges and prosecutors implanted in Kosovo’s regular courts. UNMIK issued new legislation for the courts including the Provisional Criminal Code of Kosovo and the Provisional Criminal Procedure Code of Kosovo. These new codes include more modern definitions of genocide, crimes against humanity and war crimes, among others. Older crimes are tried under the law that was enforced at the time unless a new law is more favourable to the defendant.
Regulation 64 panels
On December 15, 2000, UNMIK Regulation 2000/64 was passed granting the right of prosecutors, the accused or defence counsels to petition the Department of Justice to assign international judges or prosecutors to a case or to change the venue of the trial. The DoJ may take these measures where this is “necessary to ensure the independence and impartiality of the judiciary or the proper administration of justice”. If a petition is made, the DoJ may review it and make recommendations to the UN Secretary-General in Kosovo, SRSG, who can approve or reject it. The DoJ can also make its own motion if no petition is brought. If the SRSG approves the petition, a “Regulation 64” panel is convened.
A Regulation 64 panel consists of two international judges, one local judge and an international prosecutor. One of the international judges serves as the president. The international judges sit on the regular courts of Kosovo while the international prosecutors work on a national level. The judges receive their case assignments from the DoJ or they can petition to take on a specific case.
As of December 2007, there were 13 international judges and eight international prosecutors operating in Kosovo.
The appointment of a Regulation 64 panel can occur at any time during the judicial proceedings except if an appeal has begun or the trial is in session.
Due to the low number of international judges and prosecutors, they are often swamped with work.
There is no concrete policy or criteria on which to measure whether the petitions should be accepted or rejected. This leads to inconsistent justice, as similar cases receive different treatment.
In June 2003, the Serbian parliament passed a law creating the Office of the War Crimes Prosecutor in Belgrade and a special War Crimes Panel within the Belgrade District Court to prosecute individuals accused of war crimes within Serbia, Bosnia and Croatia during the 1992-1995 conflict. The panel officially opened in October 2003 and began its first trial in March 2004.
War Crimes Chamber
The War Crimes Chamber consists of two panels of three judges that are selected from the Belgrade District Court or seconded from other courts. The president of the court assigns judges to the War Crimes Panel for four-year terms.
Prosecutor’s Office for War Crimes
The Prosecutor’s Office for War Crimes is made up of the prosecutor, deputy prosecutor and their staff. The prosecutor is elected to a four-year term by the national assembly and may be re-elected. The prosecutor is then in charge of appointing and dismissing the deputy prosecutor. The deputy prosecutor is appointed for four-year terms and may also be reappointed.
While not founded under the direct jurisdiction of the ICTY, the Serbian war crimes court may take on cases from the Hague tribunal. Handing down the cases of lower-level war crime perpetrators is part of the ICTY’s bid to finish prosecuting cases by the end of its mandate in 2010. The ICTY officially transferred its first case to the Serbian special war crimes court in March 2007.
The War Crimes Chamber has encountered challenges since its inception in 2003. The Serbian Supreme Court has slowed the process by frequently overturning judgments by the lower War Crimes Chamber. There have been widespread questions about why these trial verdicts have been overturned. The court also suffers from a lack of broad public or political support.
Differences between the Bosnian, Croatian and Serbian justice systems have also hampered the process. Constitutional and legal bans on the extradition of nationals in all three countries have made the prosecution of alleged perpetrators difficult.