Dispute Over Prison Camp Case Referral

The Hague tribunal convened a hearing this week to discuss the first possible referral of an indictment to the new specialist war crimes chamber due to open at the Bosnia State Court on March 9.

The transfer of all but the highest-ranking cases to the Balkans is part of the tribunal’s completion strategy, which envisages the Hague court wrapping up its work by 2010.

At the March 3 hearing the prosecution and representatives of Bosnia and Hercegovina addressed a specially appointed chamber made up of judges Alphonsus Orie, O-gon Kwon and Kevin Parker.

They said the Sarajevo court is “able, willing and eager” to accept the case of Zeljko Mejakic, Momcilo Gruban, Dusan Fustar and Dusko Knezevic, charged with crimes at the Omarska and Keraterm prison camps in 1992.

In response, a spokesperson from Serbia and Montenegro – which is also keen to host the trial – argued that the same considerations apply to Belgrade.

And defence counsel – who say Belgrade would be preferable to Sarajevo, where their clients couldn’t receive a fair trial – insisted that the best option is for the case to stay in The Hague.

The Omarska and Keraterm camps were set up following the capture by ethnic Serb forces of the town of Prijedor in northeastern Bosnia, in order to house those suspected of sympathising with local resistance efforts. During the few months that the facilities existed, thousands of non-Serb detainees spent time there, where they were exposed to torture, starvation, rape and murder.

Chief prosecutor Carla Del Ponte has said that her preference is generally for a case to be heard in the country where the alleged crimes took place, “so that justice is rendered as closely as possible to the victims”.

But counsel for the four accused responded at this week’s hearing with concerns that their clients wouldn’t receive a fair trial in Sarajevo. Ethnic, political and religious intolerance in Bosnia, they said, as well as a media flurry at the prospect of this case being tried there, has created an atmosphere in which the trial could not be objective.

They added that ethnic Serb defence witnesses - including people named by the prosecution as potential war crimes suspects themselves - would be unwilling to travel to Sarajevo to testify, especially if they might risk arrest in doing so.

And they argued that a transferral would cause unnecessary delays in the trial, which would otherwise be ready to begin very soon in The Hague.

They also objected to the application in this case of current tribunal rules concerning referral of indictments, which weren’t in place when three of the accused gave themselves up.

Finally, defence counsel argued that “re-extraditing” their clients to Bosnia and Hercegovina without the consent of Serbia and Montenegro – where the four originally surrendered – would go against internationally accepted principles.

The last point appeared to come down to a question of whether the four men’s original trip to The Hague technically counted as an extradition, given that they surrendered voluntarily.

Medzida Kreso, president of the Bosnia State Court, told judges that a great effort had been made to ensure trials at the new Sarajevo war crimes chamber will meet international standards of fairness. She pointed out that international judges and prosecutors are present to help ensure objectivity, and she said work is in progress to guarantee safe passage for witnesses who fear arrest by the Bosnian authorities.

Zoran Loncar, a member of Serbia and Montenegro’s National Council for Cooperation With The Hague Tribunal, replied that Belgrade is equally willing and able to handle the case in its own specialist war crimes chamber.

He said it would in fact be better to try the four men in a country where the crimes in question are not alleged to have been committed because, he claimed, this would allow greater objectivity.

And he voiced his government’s support for the argument put forward by defence counsel about the legality of “re-extraditing” the accused to Bosnia.

The chamber and parties reconvened the following day to discuss more technical points, including exactly what basis exists in Bosnian and Serbian law for trying war crimes.

Earlier this week, the tribunal’s appeals chamber upheld sentences of between five and 25 years against another four men – Miroslav Kvocka, Mladjo Radic, Zoran Zigic and Dragoljub Prcac – convicted of crimes at the Omarska camp.

Michael Farquhar is an IWPR reporter in The Hague.