COMMENT: Bosnian State Court Should Try Indictees

Tuesday, 22 February, 2005

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IWPR ICTY

The Hague tribunal has for a long time now been under pressure to investigate hundreds of allegations of war crimes involving high-ranking persons during the 1992-1995 conflict.

Because of that, for some time now talks have been held to establish another institution that could conduct trials of lower-ranking persons.

Only when this is done will people in the Balkans accept that justice has been served, a key factor for the stability of the country and inter-ethnic reconciliation.

Last week, negotiations were held in Sarajevo between officials from the Office of the High Representative and The Hague to establish a special department for processing war crimes cases within the state court and prosecution office of Bosnia-Herzegovina, BiH.

The officials will meet again in February and will then send their conclusions to the United Nations Security Council, whose support, both political and financial, is of utmost importance.

The establishment of a special war crimes department within the existing state court would, to start with, improve the process of democratic reform in the area of local judiciary, through its objectivity and the fact that it would be state- not entity-based. It would be educational for the prosecutors and judges by harmonising domestic and international judicial standards.

The department is also important because the local judiciaries, with all due respect, may find it difficult to investigate objectively war crimes cases.

The prosecution in the Federation has so far had to deal with 717 war crimes charges that were filed against 6,345 persons. There is no data for the Republika Srpska, RS. The work of the prosecutors and the courts on these cases has been heavily criticised for bias while handling these cases.

Under a 1996 agreement in Rome, local courts must ask the tribunal’s permission before trying any war crimes suspect. Out of 3,567 applications to prosecute that have been sent for such approval, The Hague has sanctioned just 410. Cantonal courts have given the go ahead for just 70 by January.

There is, therefore, some justification for trying war crimes cases at state level.

The presence of international judges and prosecutors would give the trials objectivity and dignity; overcome complaints that, for instance, trials are conducted on ethnic grounds and that they have no legal basis.

As all cases would be held before one court, the authorities would have clear data on, for instance, the number of people indicted for war crimes locally - which is something that no-one in Bosnia can confirm at the moment.

A unified legal procedure, as well as unified court practice, would also prove very effective because there are currently four different ones: one for the Federation, RS, the Brcko district and the state.

Also, a unified procedure would contribute to the building of trust in the legal procedure, with witnesses more inclined to testify and willing to take a more active role in the legal process.

All the cases before the new chamber would be solved with more efficiency, as the local bodies such as police would be more cooperative, because legal mechanisms would be built based on which they would be obliged to cooperate with the court.

It would surely have a positive effect on the general consciousness of the Bosnian population about the need to determine the individual responsibility of every perpetrator of war crimes, and thus remove the curse of collective guilt from the peoples of the BiH.

The tribunal should have supervisory and a monitoring role in this new court, and could take over certain cases and proclaim its jurisdiction over them if it concludes that they are being unnecessarily slowed down.

Marinko Jurcevic is public prosecutor in the Bosnian Federation.