Bosnia: War Crimes Trials Process Stalled

As the deadline for establishing a Bosnian war crimes chamber approaches, the upper house of the country’s multi-ethnic parliament has stalled a package of bills meant to provide a legal basis for trying cases sent to Bosnia from the Hague tribunal, and for other major war crimes trials.

The four bills in question had been approved by the lower house of parliament in late September, but only two of them – aimed at strengthening witness protection legislation and bringing the Bosnian penal code into line with European human rights standards – passed subsequent voting in the upper house on September 30.

Bosnian Serb representatives blocked the remaining two, which are crucial for establishing a specialised chamber in the Bosnian state court for trying senior war crimes suspects, including those transferred from the Hague tribunal. It is to this chamber that the Hague plans to send cases as part of its completion strategy, which foresees the UN court winding down its work by 2010.

One of the stalled bills provides for the creation of an influential registrar's office for the new chamber. The other lays outs how cases and evidence from the Hague would be transferred into the domestic system.

The bills are still expected to make it through parliament sometime this month, but observers say the delays are cutting down the time available to lawyers, judges and prosecutors to get acquainted with the new system before the chamber opens its doors in January next year.

War crimes proceedings in Bosnia have long been kept in check by the so-called “rules of the road”. Agreed in 1996 as an extended part of the Dayton peace accords, these regulations required the approval of tribunal prosecutors for any war crimes indictment to be issued by a Bosnian prosecutor

But the rules of the road agreement expired on October 1, leaving Bosnian prosecutors free to issue war crimes indictments as they see fit and try suspects regardless of their rank.

Until recently, Bosnia’s domestic courts only dealt with relatively low profile cases. And the legislation they applied was only gradually changed from the Napoleonic civil law system used in the former Yugoslavia into a system closer to that applied in the Hague tribunal, which combines the European, or civil, and the Anglo-Saxon, or common, legal systems.

The new chamber is supposed to operate along much the same lines as the UN tribunal.

And much like the latter, it was envisaged to have a powerful registry, in charge of the finances and staffing of the court – a proposal which was hard to accept for the hardliners controlling the Serb parliamentary group in the upper house.

The proposed registry would be initially staffed partially by foreigners, and would maintain a degree of independence from the Bosnian legal system, with its foreign staff enjoying diplomatic privileges.

For the first 18 months, the department would be run by an international figure and, for the remainder of a five-year transition period, the international community would maintain a significant say in how things are done. After that, the registrar would pass into Bosnian hands.

The international community’s high representative Paddy Ashdown has said the establishment of this kind of registry is one of the conditions which must be fulfilled before he will allot a promised 39 million euro of aid to the new court.

But the idea did not appeal to some of the state court’s judges, who released a memo in mid-September saying the proposals “run counter to principles” existing both internationally and in Bosnia, “which define the role, job and duties of the registrar within an independent and unbiased judiciary”.

But the current president of the court later went back on the statement and expressed support for the registry plans.

Some government figures have also grumbled about the international community’s patronising approach.

“Unfortunately, representatives of the international community do not trust us and that is something we have to reconcile ourselves to,” Bosnian foreign minister Mladen Ivanic, a Serb, told IWPR.

Ivanic maintained that however unpleasant, these considerations are secondary to the need for Bosnia to start conducting its own war crimes trials.

But the proposal for the registry – which to be passed would have needed majority support from each of the three ethnically based parliamentary groups in the upper house of parliament – failed to get through after the biggest faction within the Serb parliamentary group, the Serb Democratic Party, SDS, opposed it.

The bill regulating the transfer of cases and evidence from the Hague to the Bosnian court was also rejected, despite arguments that using evidence gathered by Hague prosecutors would save a lot of time in Bosnian proceedings.

Changes to the penal code and witness protection legislation, on the other hand, caused comparatively little difficulty.

The penal code amendments relate to the relatively uncontroversial matter of bringing Bosnian law into line with the European Convention on Human Rights, of which Bosnia is already a signatory.

And Bosnia's witness protection legislation has long been widely considered inadequate and in need of updating.

Under current law, someone who reveals the identity of a protected witness cannot be punished – consequently, many witnesses don't even bother to ask for protection.

The new legislation will simply strengthen the powers available to judges – including such measures as media restrictions and the use of pseudonyms in court – to prevent witnesses’ identities becoming public.

Sources within the office of the international representative for Bosnia seem confident that the September 30 result is just a hold-up for the two controversial bills and that they will be passed this month instead. And in Sarajevo, the home of Bosnia's state court, preparations are already underway to make sure the existing court building and detention unit are equipped to handle high profile war crimes trials.

Banja Luka lawyer Krstan Simic, who has defended a number of war crimes suspects before the Hague tribunal, told IWPR that the creation of the Bosnian court will allow trials to go ahead of a great number of people against whom the tribunal has gathered large amounts of evidence but who it just doesn't have the resources to deal with.

“Those persons must be tried - any delay in proceedings is not acceptable,” he said.

But he warned that given the scale of the task in hand, the process has already started too late, “Our judges, prosecutors and lawyers have to get acquainted with a series of regulations and legal practice which they are not familiar with. Establishing the court and adopting laws is one thing, but practice is another.”

Gordana Katana is a Banja Luka based correspondent for the Voice Of America. IWPR Reporter Michael Farquhar contributed to this report from The Hague.