COURTSIDE: Referring Cases to National Courts

The UN Security Council last week endorsed the tribunal's plan to refer certain intermediary and lower-level war crimes cases to other courts. The council said this would enable the International Criminal Tribunal for the Former Yugoslavia, ICTY, "to achieve its current objective of completing all trial activities at first instance by 2008".

The court's president, Claude Jorda, and Chief Prosecutor Carla Del Ponte submitted a proposal to the UN last November. Last week they met the security council in private to discuss it.

Jorda's address, outlining ICTY strategy, explained that to ensure the tribunal completed all first instance cases by 2008, it would need the help of local courts. Del Ponte estimates that around 100 individuals will be indicted for war crimes by 2004, of which half could be tried by the Bosnian courts. Before it proceeds, the ICTY wants to ensure these trials include witness protection and are "conducted in accordance with the international norms regarding the protection of human rights".

After a visit to Bosnia in June, Jorda and Del Ponte concluded that local district and cantonal courts still faced "significant structural difficulties". As current judicial reforms may take years to complete, the ICTY supports the idea that war crimes trials should take place in a special chamber of the State Court of Bosnia-Herzegovina.

Jorda has asked the council to help establish such a chamber - which would have special jurisdiction to try serious violations of international criminal law - as early as possible. The Bosnian presidency supports the proposal.

The chamber would be provisionally accorded a "minimal international character in order to guarantee its impartiality and independence" through the inclusion of international judges in some key posts for a provisional period.

Interestingly, Jorda suggested these trials should follow Bosnian local procedure, not the international one, as it would make things easier for the local judiciary and ensure the proceedings would be "more in keeping with the legal traditions of Bosnia and Herzegovina and completed more quickly".

The court would only handle ICTY-referred cases, whereas the local district and cantonal courts, which are still undergoing reforms, would continue trying war crimes suspects under the 1996 Rome Agreement, known as the Rules of the Road procedure. For this, they only need ICTY approval to handle cases.

The tribunal president believes it is "essential" to work with the existing organs and judicial institutions. It has also been suggested that such trials be monitored by international observers.

Therefore, Jorda envisages a system whereby the ICTY would monitor the proceedings of the state court, which in turn would be responsible for the proper conduct of the district and cantonal trials.

Mirna Jancic is an IWPR assistant editor