Questions Raised Over Sarajevo Court Readiness

Concerns are being raised that Sarajevo's new war crimes chamber - designed to take over some of the lower- and mid-ranking Hague tribunal cases - may not start its work in January as scheduled.

The new chamber within Bosnia’s state court is supposed to be the only institution in Bosnia to which the Hague tribunal will transfer its cases in the future.

But six months before its scheduled opening, the chamber is still fighting with a myriad of unresolved issues, including the lack of a prison to house defendants.

The plan to create a war crimes chamber within Bosnia’s state court was prompted by pressure to have the Hague tribunal wrap up its work by 2010.

The tribunal's completion strategy envisages some of its low- and mid-ranking cases being tried in the countries of former Yugoslavia.

Besides the cases transferred to it from The Hague, the chamber is also expected to try those war crimes suspects who were not indicted by the tribunal due to time and financial constraints.

Last autumn, international donors pledged 15.7 million euro for the project’s first two years. In December 2003, work began on the chamber, whose judges and prosecutors will include foreign personnel over a five-year transition period, during which its thought the war crimes chamber would be able to process between 50 and a hundred cases, according to the best-case scenario.

The majority of the latter will have arisen from investigations undertaken here – only a handful are expected to be Hague transfers.

But seven months after work started on the court, IWPR has been told by several sources that there are doubts about whether the chamber will start operating as planned, with particular problems concerning the planned prison.

It was felt that there was a need for one because the prisons in Bosnia are currently under the auspices of the two entities, and are thus still quite clearly divided along the ethnic lines.

For example, it is hard to say whether it would be preferable to detain an ethnic Serb accused of crimes against Muslims in a Serb- or a Muslim-controlled jail. In the former, the suspect might be treated as a hero, while in the latter he’s likely to be viewed as guilty - and thus put at risk - long before a verdict is handed down.

This is why the chamber’s founders proposed building a new prison under the auspices of the central government, which would cost 11 million euro to build and another 8.5 million euro to operate over five years.

But the plans were scrapped last autumn, when a special conference showed more than the usual donor fatigue and it became clear that finding such large sum of funds would be virtually impossible.

“The prison [plans] never really got off the ground,” said Council of Europe deputy special representative Hugh Chetwynd.

The figure being bandied about now is a mere 500,000 euro – nowhere near enough to build a new prison, and not even sufficient to renovate one of Bosnia’s three entity-run jails to house war crimes indictees.

“That money is good seed money, but what we’d like to see is a stand-alone, high-security, pre-trial unit to be built from scratch,” Chetwynd said.

What Chetwynd envisages is a new two-story facility in the backyard of Kula prison, in a Serb-controlled Sarajevo suburb, costing around two million euro to build and about 200,000 euro per year to run.

But observers here say that some of the many international offices scattered around Sarajevo tend to have better security provisions than Kula prison, where there’s only a handful of guards for every 50 inmates.

However, prison staff there do have experience of guarding VIP detainees – former member of the Bosnian presidency Ante Jelavic, charged with fraud and abuse of office, is awaiting his trial at the jail, for example.

The prison problem does not seem to be the only one slowing down the establishment of the chamber. A schedule obtained by IWPR shows that there are even more niggling issues that should have been moving forward by now.

Some concern the cases of people indicted for war crimes by the authorities of Bosnia’s two entities – cases that, according to rules agreed at a conference following the Dayton piece agreement, were all approved by the Hague tribunal’s prosecutors.

Criteria for determining which of these cases the chamber would try are being worked on. The deadline for this is December, so technically the procedure is still on schedule.

But every week that passes without a decision means that entity prosecutors have to wait to see whether their cases will be taken over by the chamber. In this way the chamber, rather than expediting war crimes trials, is actually serving the local prosecutors with an excuse to do nothing.

Also supposed to be underway this summer are measures to establish a witness protection programme within the State Information and Protection Agency, SIPA.

SIPA - Bosnia’s answer to the FBI - is also expected to form its own war crimes investigation unit. But the agency only opened its doors on July 14, and the aforementioned programmes have yet to be launched.

Still, one of Bosnia's most top international diplomats believes that some issues are even more pressing than these. Senior Deputy High Representative Bernard Fassier says that the problems arising from adapting already-existing Hague tribunal indictments to Bosnia’s legal framework presents much more of a challenge.

Tribunal insiders list other legal issues too, such as admissibility of evidence gathered by the Hague court in the new chamber, or the issue of how the new Bosnian legislation could be applied to prosecute war crimes committed years ago.

They, however, insist that “extraordinary progress” has been made in these matters and repeat that January 1 remains the target date for the opening of the new chamber.

In an interview with IWPR, Fassier said he expected that only around half a dozen tribunal cases would be transferred to Bosnia once the detention facility is ready.

After they are tried, the chamber will look at some of the high-profile local cases, as well as those that Hague prosecutors have investigated but which have not resulted in an indictment due to the relatively low rank of the suspects.

But observers agree that the most important issue for the new chamber is whether it will be effective.

Courts are designed to redress grievances, they note, and yet the Hague verdicts have often failed to produce this effect in the eyes of the Bosnian people.

Whether it is the Serbs’ dismissal of the tribunal as "victors’ justice", Muslim anger over the often-reduced sentences for those who pleaded guilty or the prosecutors' focus on the so-called "big fish", most locals don’t have many good things to say about the Hague-based court.

If Bosnia’s war crimes court is to avoid the same fate, it should give more than lip service to the concept of Bosnian “ownership”, said one western diplomat.

“In order for this institution to have credibility, Bosnians should be brought into this process very early on. It has to have legitimacy. They need to be part of the process now,” he said, suggesting that one way of doing this would be to make sure that Bosnian prosecutors and judges have active roles in the chamber, not just a token presence.

Beth Kampschror is an IWPR contributor in Sarajevo. Ana Uzelac IWPR project manager in The Hague contributed to this report.