Can Balkan Courts be Trusted with Tribunal Cases?

To meet its completion deadline the tribunal may transfer some cases to former Yugoslavia – but there are question marks over local courts' ability to try them fairly.

Can Balkan Courts be Trusted with Tribunal Cases?

To meet its completion deadline the tribunal may transfer some cases to former Yugoslavia – but there are question marks over local courts' ability to try them fairly.

Wednesday, 9 November, 2005

This is a landmark year for the Hague tribunal. By the end of it, prosecutor Carla del Ponte is expected to complete her investigations and announce the last of her indictments.

The end of this process will mark the start of the countdown to the eventual closure of the tribunal - whose work on war crime trials committed in former Yugoslavia and Rwanda represents the biggest single contribution to the international war crimes jurisprudence since Nuremberg.

The next four years will be dedicated to finishing the first-instance trials, and the following two will see the winding up of the appeals. The tribunal is expected to close its doors in 2010.

In order to meet these deadlines, the tribunal has had to make some crucial strategic choices, which may lead to some of its cases involving low- to mid-ranking suspects being sent to the courts in former Yugoslavia.

The court has also found itself under pressure to significantly speed up its work. And in the past few years, a number of serious internal procedural reforms have been undertaken to achieve this.

The court’s most important legal document - the Statute - has been amended in order to supplement the body of 16 permanent judges with additional nine temporary, or ad litem, judges. This change theoretically allows for as many as six trials to be held simultaneously in the tribunal’s three courtrooms.

The controversial policy of striking plea agreements - almost unused before 2000 - is now being vigorously pursued by the prosecutor’s office, with an increasing number of indictees pleading guilty in exchange for the prosecutor’s promise to ask for lower sentences.

And just a few weeks ago, the court’s other crucial document - the Rules of Procedure and Evidence - was amended to give the judges more authority to oversee who is brought before the tribunal. The judges established additional check on the prosecutor's power to indict whomever she wants, by making all of the new indictments subject to review by the special tribunal bureau, consisting of the five highest-ranking judges.

But even with all these changes, it is highly unlikely that the tribunal will be able to finish trying all the indictees within the set deadline.

Such a development was almost certainly anticipated by the tribunal’s officials and the members of the UN Security Council, who in 2001 amended the tribunal’s Statute in order to allow for the possibility of transferring cases to courts in former Yugoslavia.

But the tribunal has repeatedly stressed that only the cases of mid- and lower-level indictees may in the coming years be transferred to the local courts - if, that is, their judicial systems are able to demonstrate their capacity to conduct such trials fairly.

There are no clearly defined rules determining when the country’s judiciary is deemed fit to take the tribunal’s cases - but court insiders say the political independence of judiciary, the resolution of problems relating to the admissibility of evidence collected by the tribunal’s prosecutors and the provision of witness protection measures are some of the crucial conditions that will have to be met before indictees are referred to these republics for trial.

The total number of such transfers will probably not be so large - the tribunal has so far indicted around 140 people, and around two-thirds of them have either already been sentenced or are currently on trial.

But what about other war crimes that have been committed in the former Yugoslavia - and the hundreds of perpetrators whom the tribunal will not investigate or prosecute due to time limitations and their relatively low rank?

These cases will be left to the local judiciaries to deal with – systems recovering from years of misuse by autocratic, nationalist regimes, anchored in societies that still have problems facing their past.

So will they be able to handle war crimes trials?

IWPR is producing a series of articles aimed at answering these questions. In the coming weeks, we will be looking at whether the judiciaries in Croatia, Serbia and Montenegro are ready to deal with tribunal cases. The series begins this week with a look at the court system in the Bosnian Federation.

Ana Uzelac is IWPR project manager in The Hague.

Balkans, Serbia, Croatia
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