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International Review Praises War Crimes Chamber

14 October 2008  ICTJ hails Bosnia court as role model elsewhere, while lamenting lack of solid relationship with the general public and media.

By Nidzara Ahmetasevic

The International Center for Transitional Justice, ICTJ, has given a thumbs-up to the work of the local courts in the processing of war-crime indictees in Bosnia and Herzegovina, stressing its importance as a model for other countries.

 
In the first comprehensive review of the work of the War Crimes Chamber of the State Court by an international organization, experts said the Chamber – which began work in March 2005 – “might serve as a promising model for hybrid tribunals in other countries”.
 

Turning to the biggest problems, they refer to “a delay in the adoption of a clear strategic approach to the eventual solving of a large number of pending cases before the Court”, adding that this has the potential generate to partially undermine “the progress made so far”. 

 
The ICTJ underlined that determining priority cases presents a major challenge. But on a more positive note, it said trials conducted before the War Crimes Chamber in general were fair, though initial hearings “were too often closed to the public”.  The Court and the War Crimes Chamber were urged to present their work in view of the public as much as possible, for visibility purposes.
 

Also on a positive note, the report said it was encouraging that local judges and prosecutors were assuming more and more of the work pertaining to war crimes. And while noting the significant contribution of international staff in the Court and the Prosecution in the past, the report stressed that their withdrawal “should not be further delayed without any justifiable reasons”. 

 
Like many other experts and observers dealing with the War Crimes Chamber, the ICTJ spotlighted the need to draw up a national strategy for the processing of war crimes. “Without the strategy, hopes arising from the promising success achieved in Sarajevo might soon disappear”, they warned.

 
 
Number of future trials still unknown:
 

Addressing the rationale for the existence of the War Crimes Chamber, the report said it represented “the determination of Bosnia and Herzegovina to investigate and criminally process at state level the persons who participated in severe violations of the international humanitarian law”.

 
The Court of Bosnia and Herzegovina has jurisdiction over both the country’s entities, the BiH Federation and the Republika Srpska. Following the establishment of the State Court, trials for war crimes committed in Bosnia in the early 1990s were transferred to higher instances, both international and local, while trials conducted within the country have been conducted at state and entity levels.

 
The report says that in its past work, the War Crimes Chamber has justified one of its main purposes, which was to provide the local judiciary with the capacity to hold war crime trials in line with international standards. 
 

But determining the total number of cases still to be processed presents an important challenge. The public still does not know how many cases are to be tried before local judiciary.
 

The ICTJ notes that the International Criminal Tribunal for former Yugoslavia in The Hague, the ICTY, has so far reviewed and classified 3,489 cases. The 877 in “A” category are cases for which grounds exist for processing. “Due to the high sensitivity of these cases, it has been decided that 202 cases will be processed before the Chamber, while the others will be processed at the entity level,” the report said. The ICTY has identified 2,379 cases in “B” category. For these, evidence is insufficient to file an indictment. The 702 cases listed in “C” category require additional investigation, and those cases have been referred to the Court of Bosnia and Herzegovina. 

 
Concerning the number of cases to be conducted in Bosnia and Herzegovina in the near future, Mirsad Tokaca, Director of the Research and Documentation Center, who was consulted by the ICTJ during the preparation of this analysis, says the number should not exceed 6,000 cases. 
 

Since March 2005, the report noted, the Chamber has tried 84 indictees within 48 different cases, pronouncing 32 verdicts so far  - 27 guilty verdicts and five ordering release. Fifteen second-instance verdicts have been pronounced prior the completion of this report.
 

“The trials conducted before the Chamber run much quicker than ones conducted before the ICTY. However, making direct comparison has some deficiencies,” the report stated. This is because cases conducted before the Hague Tribunal are more complex, while the Court in Sarajevo mainly processes direct perpetrators, except in the case of Momcilo Mandic, former minister in Radovan Karadzic’s government, who was acquitted of all charges in a first-instance verdict, owing to lack of evidence on the Prosecution’s side. 
 

It is also determined that most cases cover crimes against humanity, including murder, detention, torture, deportation and prosecution. “Indictments refer to crimes committed in various parts of the country, while indictees belong to all three constituent peoples,” the analysis noted. 
 

 
Weakness of defence teams:
 

The ICTY says the participation of local lawyers in the whole process is one of the key elements behind the success of the Chamber. Nevertheless, it notes the important role of international judges and prosecutors whose work is often more visible in general.
 

It also makes some criticisms of the solutions applied to the internal functioning of the Chamber.  “Difficulties related to its functioning have been caused by the confusion and uncertainty in application of laws. Some problems also arise due to the fact that this is a relatively young court,” the report said. The application of different laws at different levels is one problem that has generated many controversies in the past.
 

The report also mentioned guilt-admission agreements, whose implementation before the Chamber started only recently. The experts criticized the fact that the law on criminal proceedings does not foresee participation of victims in guilt-admission processes. It “would be advisable to give an opportunity to victims to express their opinions to prosecutors in the course of negotiations related to guilt-admission agreements, or let them participate at hearings at which such agreements are discussed,” the report said.  However, “This does not mean that victims should be given the right to put a veto on such agreements.”

 
Another problem spotted by the ICTJ is the defence system. The experts consider that respecting the legal principle of equality of all parties in the process is still not fully implemented before this Chamber. The report said too few lawyers have experience in international humanitarian law, although it mentions that the Criminal Defence Section does provide them with education.
 

It further points to the quantity of evidence obtained by the ICTY, most of which is written in English and not always easily accessible to defence teams. In the end, the report points to the issue of insufficient resources for investigations conducted by defence teams. Because there is not always a separate budget for such investigations, the result is inadequate preparation by some lawyers. “This issue is so serious that it certainly requires more attention by competent Bosnian authorities”. 
 

 
Regional cooperation imperfect:
 

Another shortfall noticed by the ICTJ is the lack of a system of legal representation of victims, even though the law foresees this. The Law on Criminal Procedure gives an opportunity to witnesses, as well as victims who appear as witnesses, to have a lawyer during the course of their testimonies, so they can be apprised on their rights in detail. However, this is not possible before the State Court “due to lack of resources”.  “Most witnesses are not even aware of the possibility of hiring a legal representative. There is no system in place, which would enable such representation to take place,” the report stated.
 

The ICTJ considers the level of cooperation between the ICTY and the Court of Bosnia and Herzegovina satisfactory overall, but outstanding issues exist, such as access to the ICTY archives, because it is still not known who will administer the archives once the Tribunal has closed. 
 

Regional cooperation is a bigger problem. The laws in Bosnia and Herzegovina, Serbia, Croatia and Montenegro do not permit extradition of indictees with dual citizenships. The ICTJ considers this a serious obstacle.
 

Nevertheless, the report notices progress in terms of exchange of documentation and extradition of persons who have got Bosnian citizenship only and reside on the territory of one of the neighbouring countries.
 

“To solve the issues related to the cooperation between Bosnia and its two neighbouring countries, it is necessary for all those countries to abolish the ban on extradition of their citizens charged with war crimes. In case it is more practical for a proceeding to be conducted in another country, Bosnia should make it possible to give over the indictment to that country,” the ICTJ considers.
 

The report notices problems in the cooperation of the State Court with local courts in the country. This cooperation is “sporadic”, the report said.  “In reality… Its court practices are not binding for cantonal and regional courts. There are three independent systems, which are different in several important aspects.” 

 
The ICTJ considers that a national strategy would help solve this problem, as it would answer the question about which level trials are to be conducted at. 
 
 

Relations with public could be better:
 

The ICTJ expressed most criticism concerning relations between the public and the War Crimes Chamber.
 

“The War Crimes Chamber does not have close relationship with the media,” the report said, noting that the media has not shown much interest about the processes conducted before the Chamber and when reports are carried, they are usually brief and rarely made in a form of an analysis. There are no regular press conferences and the media are not provided with the documents they require, even if they ask for public documents. 
 

However, it stated that NGO sector representatives have noticed an increased interest by victims in the Chamber’s activities, while they predominantly want future trials to be conducted before the State Court. 
 

“The interaction between the Court and the general public can also be improved,” the ICTJ stated, adding that this is necessary in order to encourage as many potential witnesses as possible to appear at the Court and testify. 
 

“If the people who live in the areas in which crimes were committed are not informed about the verdicts, which has been the case up to now, the Court will miss a chance to contribute to telling the truth by those verdicts. This issue requires the full attention of the working group for preparation of the war crimes processing strategy”.

 
You can download the full report from the International Center for Transitional Justice page www.ictj.org. “War Crimes Chamber in Bosnia and Herzegovina: From a hybrid to a local court (2008)” Author, Bogdan Ivanisevic