Robust Rule of Law Crucial in Balkans

The president of the International Criminal Tribunal for the Former Yugoslavia this week told the UN Security Council that strengthening the rule of law in the Balkans is crucial ahead of the ICTY’s closure in 2009.



With local courts in Bosnia, Croatia and Serbia taking on more war crimes cases as the tribunal winds down, Judge Fausto Pocar urged the Security Counsel to “take steps to entrench the rule of law” in the region by providing support to local judiciaries.



Because some high-profile indictees still remain fugitives, most notably Ratko Mladic and Radovan Karadzic, national courts could be in the position of trying some of the Balkan’s most notorious figures, if they are apprehended after 2009.



Pocar insisted that national trials must uphold the highest standards to ensure that “justice is done, and seen to be done, by the victims and the international community as a whole”. This is crucial to the tribunal’s legacy, he said, and will help with Balkan stability and reconciliation.



However, some Balkans commentators like Muhamed Mesic from the Institute for Research of Crimes against Humanity and International Law in Sarajevo believe that Bosnia, Serbia and Croatia already have a functioning and effective rule of law.



Though admitting there is a serious corruption problem in Bosnia, Mesic said, “These countries are not in a state of lawlessness”. Mesic highlighted the Bosnia’s constitutional court as one problem area, saying objectivity and impartiality is endangered there, because judges “favour their side’s point of view” when imposing judgements.



Nevertheless, he argued there are enough judges from the former Yugoslavia able to render impartial judgements for war crimes cases.



Until the end of its mandate, the ICTY will continue to try high-ranking accused in its courtrooms in The Hague, with only lower level indictees referred to domestic courts.



Nine cases have so far been transferred to the Bosnian War Crimes Chamber and two to Croatian courts. In Serbia, however, there have been suggestions that all accused - even high-ranking officials - could be tried domestically.



Nenad Golcevski, from Belgrade’s Centre for Humanitarian Law, said this would be good for the civilian population but added that an effective system of court monitoring by impartial NGOs needs to exist across the former Yugoslavia.



Pocar stressed to the UN that the ICTY must not wash its hand of cases once they have been referred to the regions.



“Under our rules, the tribunal continues to monitor domestic trials in order to ensure they are conducted fairly and with full adherence to human rights norms,” he said.



He highlighted the recent case against Radovan Stankovic - the first referred accused to be tried at the War Crimes Chamber - as an example of a trial that met the ICTY’s requirements. Stankovic was sentenced to 16 years imprisonment for rape and other crimes against humanity committed in the Bosnian town of Foca in 1992.



Golcevski agrees that courts in the former Yugoslavia are conducting fair trials and have shown a “willingness and a capability” to try lower-ranking personnel involved in the Balkans conflict. He believes local judges and lawyers have “professional knowledge and experience” but wonders whether national courts have “political and public backing” which he says is “not something the ICTY can influence”.



Golcevski told IWPR that the best way to facilitate trials in the former Yugoslavia is to “secure public opinion” but said the tribunal cannot directly influence the judiciaries in the former Yugoslavia, as they are independent.



Therefore, he said, the role of the tribunal is to “share their experience and expertise” and put pressure on the countries of the former Yugoslavia to arrest those accused still at large.



He added that the ICTY must also insist on cooperation between the prosecutors in Bosnia, Serbia and Croatia to facilitate a constant flow of documents between the three countries.



Golcevski urged the tribunal to ensure it disseminates information about cases in the region, so they are understood in the countries to which they refer and make documents and video materials available in Bosnian-Croatian-Serbian.



Although the tribunal’s outreach budget is at its lowest level yet - approximately 600,000 euro compared with 900,000 euro in the past - Golcevski said it is important that lawyers and court representatives from the Balkans continue to visit The Hague.



Pocar acknowledged the importance of explaining verdicts locally and said the court’s outreach department has participated in conferences, summers schools and workshops for young lawyers, politicians and civil society activists to do just this.



He told the Security Counsel that the tribunal is also supporting local judiciaries by holding meetings with staff, local NGOs and state officials to talk about issues like witness protection in Croatia.



In Bosnia, Pocar said that liaison officers from the tribunal’s Registry chaired the first-ever countrywide conference for local judges and prosecutors on war crimes issues and also gave seminars and training sessions for defence lawyers.



Chris Engels, director of the criminal defence section at the Bosnian war crimes court, told IWPR that although training is a stepping-stone to establishing the rule of law, also important is ensuring that defence teams have access to all the evidence that the tribunal holds. He added the court has been responsive to requests for help and given his office access to ICTY databases containing evidence, judicial submissions and decisions.



Katy Glassborow is an IWPR reporter in The Hague.