Bosnia: Future of International Judges and Prosecutors in Doubt

Velma Šarić

IWPR-trained journalist

Sunday, 13 September, 2009

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The Bosnian authorities are divided over whether the mandate for international judges and prosecutors working on national war crimes trials should be extended when it is set to expire in December this year.



The council of ministers of Bosnia and Hercegovina, BiH, recently voted in favour of a ministry of justice proposal to amend legislation to extend the mandate of international judges and prosecutors working in the war crimes section for three years. This proposal has now been submitted to parliament for consideration.



“By the proposed changes and amendments to the law on the court of BiH, the ministry of justice extends the mandate of international judges in the first instance and appellate chambers of the war crimes section for a transitional period that will last until December 31, 2012,” Marina Bakic, spokeswoman of the ministry of justice, told IWPR.



“The proposal will provide for the extension of the mandates of international prosecutors in the special department for war crimes after December 31, 2009. That transitional period may last no longer than December 31, 2012,” she added.



With many politicians from the Bosnian Serb entity Republika Srpska, RS, opposed to the amendment, arguing that the country should be left to run its own courts, it is not clear if it will be passed or not.



Local and international observers, meanwhile, warn that if the parliament fails to vote to retain the staff, the work of the country’s war crimes court could be seriously undermined.



INTERNATIONAL INVOLVEMENT



The Bosnian state court was established in the summer of 2002, and the war crimes chamber started work in March 2005.



Currently, international legal experts work in the state court’s war crimes chamber and the state prosecution’s special department for organised crime, economic crimes and corruption, where they have been engaged from the beginning of the work of these institutions. There is no international involvement in ordinary criminal cases.



In the war crimes chamber, ten international judges and four international prosecutors are currently employed. In every case, the trial panel comprises two local and one international judge.



According to Boris Grubesic, spokesman for the war crimes chamber, “In December 2008, there were open investigations against 1,050 persons, which basically means that there are around 300 war crimes cases led by internationals.”



In addition to their involvement in war crimes trials, international staff are also working on more than 200 cases with the department for organised crime, corruption and terrorism.



As part of the state court’s “exit strategy”, all international staff are set to leave at the end of the year and are to be replaced by local staff, although no funding has been guaranteed for this. The costs of the international staff are met by foreign donations.



SOME HOSTILITY



The council of ministers failed to adopt a similar proposal to extend the mandate of the international personnel in June.



Representatives of the country’s larger entity the Bosnian Federation opposed the proposal that the judges and prosecutors be retained only in the war crimes chamber, and not the department for organised crime, while ministers from Republika Srpska opposed any international involvement in the country’s courts.



Republika Srpska prime minister Milorad Dodik has been firm in his opposition to extending the mandate.



In a public statement given to state TV at the end of May 2009, Dodik said, “It is totally unacceptable that the internationals stay. That won’t happen with our support. I think that the state court and the prosecutor’s office are political institutions and not judicial.”



Dodik also said, “Internationals are controlling judicial institutions in Bosnia and the institutions are being used against Serbs and certain politicians who do not conform to them. Internationals should know that after January 1, 2010, they will not remain in Bosnia any more.”



When IWPR put these allegations of political interference in the state judiciary to the ministry of justice, it declined to respond.



Nebojsa Radmanovic, the Serbian member of Bosnia’s tripartite presidency, agreed with Dodik in a statement to state television the following month.



“[The international staff’s] time is up and they should leave the country. Anyone who has a contrary opinion does not want a European future for BiH, because how can we become a part of Europe when we have foreigners in our judiciary?” he asked.



Radmanovic suggested that the country would not be taken seriously as an international player until it began to manage its own affairs.



“Because of the presence of internationals, BiH is not equal to other states in the region,” he said.



In July, the council of ministers voted in favour of the law. It is unclear why they changed their minds, although some politicians who did not want to be quoted told IWPR that they felt under pressure to do so from the international community.



But observers say that ongoing hostility towards the presence of international staff could mean that the bill encounters resistance in parliament, which according to an IWPR source looks likely to vote on it next week.



CONCERN FOR FUTURE OF COURT



Many local and international experts are in favour of continued international presence in the war crimes court, citing the achievements of the court so far, and expressing concern that local staff could come under political pressure if internationals left.



The ministry of justice declined to comment on what the consequences might be if the international staff left Bosnia at the end of the year.



A spokeswoman for the Hague Tribunal, Nerma Jelacic, said that the Bosnian court – with the support of international staff – had achieved a significant amount.



“The tribunal is satisfied with the progress that the court of BiH has made in the prosecution of war crimes cases since [the war crimes chamber’s] establishment in March 2005.”



“Even the president of the Hague tribunal, Judge Patrick Robinson, during his keynote address in Sarajevo, stated that the achievements of the war crimes chamber department to date are impressive – marking a significant advancement of the prosecution of war crimes, genocide, and crimes against humanity in BiH,” she added.



During his first official visit to Sarajevo in June 2009, Judge Robinson was quoted in regional media as saying he was concerned that the mandates of the international judges and prosecutors had not yet been extended, as they were “still critical to protecting the integrity of the judiciary”.



While Judge Robinson acknowledged that “sooner rather than later” the Bosnian court should be staffed by local people, he added that this could not happen yet.



“On the contrary, all reports indicate that at this particular time, the war crimes chamber which is only four years old, needs the balancing influence of the international judges,” Judge Robinson added in the reports.



James Rodehaver of the Organisation for Security and Co-operation in Europe, OSCE, mission to Bosnia, which monitors trials in the country, told IWPR that the Bosnian court still needs international staff both to protect its judicial independence and to help it process cases effectively.



He said the OSCE currently “supports the development of BiH’s professional and operational capacity to carry out all functions related to the judicial sector”.



“However, until that capacity is developed and put in place, international personnel should continue to play their vital roles in order to ensure that ongoing judicial and prosecutorial activities continue in an effective and independent manner,” Rodehaver said.



“The judicial sector requires the continuation of an international presence as a safeguard to its independence and in order to retain the capacity to process sensitive and complex cases,” he added.



According to Rodehaver, the failure to extend the mandate of the international staff – along with the failure to ensure sufficient financial resources to build national capacity – “would send a message that the most serious cases of organised crime and economic crime processed at these institutions are not priorities”.



He pointed out that if the mandates are not extended, then vital international personnel working in supporting roles – such as interns and legal assistants – would also have to leave the country.



JUDICIAL INDEPENDENCE



Regional legal experts agree that country’s court still needs international support.



According to Mirsad Tokaca, president of the Research and Documentation Centre, which also monitors war crime trials conducted at the state court, “[The international staff] should absolutely stay.”



Tokaca said that internationals could teach local staff how to maintain judicial independence.



“National judges and prosecutors should learn about independent judgment. Our local judges and prosecutors should learn how to protect themselves from different kinds of political pressures. We also need the transfer of knowledge from international staff.”



“We have a number of young and hardworking capable lawyers and judges, but for our judicial process, it is important to get people who have worked for the Hague tribunal. I would even like to see in BiH some experts like senior trial attorneys Alan Tieger or Dermot Groome or some other excellent prosecutors.”



Kasim Trnka, a law professor at the University of Sarajevo, invoked the Dayton Agreement – which was signed in 1995 and brought an end to the Bosnian war – to challenge the idea that the time for the internationals had expired.



“The truth is that the whole concept of the Dayton Accord was based on an idea of creating a normal state, and that only when certain conditions were met, could the international community leave,” he told IWPR.



“In BiH, we still don't have the ability to create an atmosphere without ethnic tensions causing problems.



“This is especially true in the legal system of BiH because some of the people who are accused of war crimes were not only never tried, but they still work in the government and they are working at the most important levels,” he added.



SEAMLESS TRANSFER



Representatives of the Bosnian court say that the sudden departure of the international staff in December could leave the justice system in turmoil.



Milorad Barasin, Bosnia’s chief state prosecutor, cautioned that the premature exit of international prosecutors would create “huge problems”, with progress on cases grinding to a halt.



“New prosecutors would have to be hired who would need time to adapt to their new functions. The result could be a judicial blockage,” he told IWPR.



David Schwendiman, who heads the special department for war crimes of the Bosnian prosecutor’s office, was concerned about what would happen to ongoing trials.



“There are practical consequences of judges leaving. Trials may have to be started again if they aren't completed before an international judge leaves,” he told IWPR.



“Replacing an international prosecutor who has investigated and developed a case and is prosecuting the matter is not an easy thing to do. Even if the national government stepped up and gave the prosecutor's office replacements [for each of the] international prosecutors who will be leaving, the loss in expertise, experience and in the knowledge of the cases that have to be handed over would be considerable and would have an impact.”



Schwendiman also pointed out that if the international staff leave, there would be “no language assistants to help the local prosecutors work with materials that only exist in English”.



FUNDING ISSUE



There are also concerns that if the internationals leave, the Bosnian government will struggle to find money to pay salaries of local replacements.



The international judges and prosecutors – along with critical support staff – are currently funded by international donations, Schwendiman said.



According to Rodehaver, “Unfortunately, state legislative authorities have still not committed sufficient funding to develop national capacity, and even after funding, that process will take time.



“In the interim, it is our assessment that an early departure of international personnel would lead to a dramatic downturn in the hitherto admirable productivity of the state court and prosecutor's office,” he said.



“International capacity should be maintained until enhanced national capacity is both funded and trained to provide a seamless transfer,” Rodehaver added.



The ministry of justice declined to comment on whether there was a budget to fund national replacements for the international staff but an official source told IWPR that no money had been provided for this.



Observers outside the region are also concerned about the departure of international legal staff, warning that this could threaten the progress that has been made so far towards reconciliation.



“Thus far, international prosecutors and judges have been instrumental in making the court an impartial, effective instrument of justice in Bosnia,” Robert Donia, professor of history at the University of Michigan, said.



“The court today stands as one of the signal achievements of internationally supported transitional justice, thanks in large measure to the presence of judges and prosecutors who have helped the court withstand intense political pressures from RS political leaders and other critics.”



“Without great fanfare, the court has tried accused war criminals of all ethnicities, convicted the guilty, acquitted the innocent, and handed down sentences generally appropriate for the crimes committed,” he told IWPR.



“If the international participants are suddenly withdrawn at year's end, this singularly successful institution will be in greater jeopardy of collapsing or being compromised.”



Greg Stanton, human rights professor at the University of Mary Washington in Fredericksburg, Virginia, and founder and director of the organisation Genocide Watch, said the departure of the judges and prosecutors could contribute to a sense of impunity in Bosnia.



“Republika Srpska continues to deny that the war crimes its troops carried out were crimes at all. If they [international prosecutors and judges] leave in December, hundreds of crimes committed by forces from the Republika Srpska will remain unpunished, a climate of impunity and denial will continue there, and the rule of law will be denied to the victims,” he said.



Florian Bieber, politics lecturer at the University of Kent, England, said that while it was understandable for Bosnia to want to staff its own institutions, there were good reasons to continue having international prosecutors and judges.



“Many other institutions have performed considerably worse once international members were withdrawn,” he said.



“If the prosecutors and judges leave in December, the courts and prosecutors' offices might suffer a fate similar to other state institutions which have seen either a blockage or a strong politicisation and the divisions of the institution into party turfs as a result of the transition,” Bieber said.



“Secondly, it would mean that courts and the legal system might further lose credibility and effectiveness, and this at a time when there is already little trust in the rule of law in BiH.”



VICTIMS’ REPRESENTATIVES



Representatives of victims’ groups had differing views about the presence of international legal staff, seemingly split along ethnic lines.



Branislav Dukic, president of the Association of Detainees of Republika Srpska, was not concerned about the possible departure of the international staff.



“Regarding their work, I don’t think they have done anything special,” he said.



He argued that internationals were not able to conduct trials adequately because as outsiders, they could not understand what went on during the war, or what caused it to erupt in the first place.



“We don't have adequate prosecutors and judges, especially the internationals, because first of all, they cannot adequately understand what is going on in BiH nor what happened here before,” he said.



Dukic said he wanted to see the country manage its own judiciary without external involvement.



“I think that the international judges and prosecutors should go from BiH as soon as possible, quickly, and let BiH function as an independent state with its own local legal system,” he said.



But Murat Tahirovic, president of the Association of Detained People of Bosnia and Hercegovina, disagreed.



According to Tahirovic, “We think that local judges and prosecutors are not totally ready to take over responsibility for proceedings for the worst war crimes cases because of their lack of objectivity.



“There is still some doubt regarding the ability of Serbs, Croats, and Muslims not to take the side of their own ethnic group. That is why we really think that international judges and prosecutors should stay for some period, to help us finish the process of transition following the conflict.”



He said that while local staff were capable, there was still a risk that they could succumb to political interference.



“It is not that I doubt in the abilities of local judges and prosecutors, because I do think they know how to perform their job; but I am just afraid that without the help of internationals, political pressures can become a factor [in their decisions].”



Velma Saric and Maria Hetman are IWPR contributors in Sarajevo.