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Meron Voices Doubt Over Bosnian Court
Tribunal president Judge Theodor Meron expressed doubts this week about the prosecution’s request to transfer a case from The Hague to Bosnia’s fledgling war crimes chamber.
Meron asked the Office of The Prosecutor for additional arguments to support their request to transfer the case of four Bosnian Serbs accused of crimes committed in the notorious Omarska and Keraterm camps to Sarajevo, and has given them until October 1 to do so.
The Omarska and Keraterm indictees - Zeljko Mejakic, Momcilo Gruban, Dusan Fustar and Dusko Knezevic - are charged with beating, physically abusing and killing Muslim and Croat detainees. At the time, the accused held intermediate and low-ranking positions, which, under the tribunal’s rules, qualifies them for a trial in a local court.
Such referrals are a vital part of the tribunal’s completion strategy, which is designed to ease its caseload and ensure that the UN court brings all its indictees to justice by 2008, before closing down altogether in 2010.
But cases can only be transferred with the agreement of a trial chamber which, according to Rule 11 bis of the tribunal’s statute, must be convinced that the accused will receive a fair trial and will not face the death penalty if convicted.
Earlier this month, Chief Prosecutor Carla del Ponte had asked for the case to be transferred to Bosnia, even though the new war crimes chamber is not expected to open its doors until January 2005.
In her September 2 request, Del Ponte argued that “Bosnia and Herzegovina would provide all necessary legal and technical conditions for fair trials”.
But at that time, not only did the relevant chamber not exist, but the local war crimes legislation was far from complete, with crucial laws on witness protection and usage of the evidence collected by the Hague tribunal not yet adopted.
Meron appeared less than convinced that necessary conditions for the referrals had been met. In his response, he noted, “It is not obvious how a trial chamber could make [such a decision] before [the war crimes chamber] has even been established.” He added that Del Ponte herself had admitted that “no court capable of adequately addressing the defendant’s case will exist until January 2005”.
A day after Meron requested more evidence to convince him that the Bosnian state court could handle this task, the Bosnian parliament urgently adopted a set of laws aimed at creating the necessary conditions for prosecuting war crimes cases in the country – including laws on witness protection and on admissibility of evidence gathered by Hague tribunal prosecutors.
The adoption of laws to prosecute war crimes in Bosnia has been a subject of protracted political battles in the country, pitting the main national parties against one another.
Tribunal insiders claim that the real intent behind the prosecutor’s seemingly paradoxical behaviour may have been exactly to force the local authorities to create conditions which would allow the tribunal to make war crimes referrals.
Meron had also written to Ambassador Bernard Fassier, senior deputy High Representative in Bosnia and Herzegovina, to ask if Hague indictees could currently be tried locally “in a manner which meets international human rights and due process standards”.
In his response, Fassier strongly recommended that no referral of cases be made before January 2005, noting that it would not be possible to hold trials to a high international standard before that time.
“Any premature referral to Bosnia before January could … undermine the current efforts to create a judicial system capable of conducting war crimes trials,” he wrote.
The Hague has come under increasing pressure to make more of these referrals in order to support the completion strategy, which has been rubber-stamped by the UN Security Council.
A trial chamber has already been appointed to decide whether or not to refer the case of Croatian army commanders Mirko Norac and Rahim Ademi - who are accused of crimes committed against Serb civilians in the Medak Pocket area of Croatia in 1993 - to a war crimes court in Zagreb.
Merdijana Sadovic is an IWPR reporter in The Hague.
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