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Decision Close on Bosnia’s International Judges and Prosecutors

Sud BiH

16 September 2009  Serbs and Bosniaks remain bitterly divided over whether presence of international judges and prosecutors is a help or a hindrance.

By: Erna Mackic

On September 16, parliament of Bosnia and Herzegovina will have the last opportunity to pronounce on the proposal to extend the mandates of international judges and prosecutors in the country.

Judging by earlier media statements, the delegates from Bosnia’s two entities remain divided over whether the extension of the mandate is needed.

Those from Republika Srpska explicitly oppose any extension, while those from the Federation mainly support international staff remaining at appellate levels. Tensions over this issue have become severe.

Besides divisions among politicians, victims of the 1992-5 war also differ over extending the mandates of international judges and prosecutors, depending on whether they are from the Federation or the Bosnian Serb entity.

If parliament fails to adopt a decision on the mandates of international judges and prosecutors, the High Representative, the international community’s top official in Bosnia and Herzegovina, may make a decision on his own authority. However, the Office of the High Representative, OHR, does not wish to speculate on that possibility.  

Following a meeting attended by Valentin Inzko, the High Representative, Meddzida Kreso, President of the State Court, and Milorad Barasin, the State Prosecutor, the OHR issued a statement merely saying that “the international community unanimously supports the work of international staff at the state level, particularly in the field of war crimes processing.  

“I hope the State Parliament will adopt the right decision on September 16,” Inzko added.

A threat to Bosnia’s sovereignty?

The decision on the mandates comes as parliamentarians discuss changes and amendments to the Law on the Court and Prosecution of Bosnia and Herzegovina, which the Council of Ministers adopted in July.  

Under the mentioned changes, the mandate of the international judges would be extended until the end of 2012. However, this would apply only to judges working in the second-instance chambers with the War Crimes Chamber of the Court of Bosnia and Herzegovina.

The mandate of international prosecutors working with the War Crimes Section of the State Prosecution would be extended until the same date.    

Judges working on war crime cases in first-instance chambers would remain in the country only until these ongoing cases were completed. They would not be assigned new cases.  

The mandates of judges and prosecutors working with the Special Section for Organized Crime of the Prosecution and Court of Bosnia and Herzegovina would not be extended at all under the mentioned proposal.

Foreign prosecutors would also not be permitted to hold managerial functions with the State Prosecution after the end of this year.  

Today, an international prosecutor, David Schwendiman heads the War Crimes Section with the State Prosecution, while another foreigner, Drew Engel, heads the Special Section for Organized and Economic Crime and Corruption.

Nine international judges work with the State Court and the same number of international prosecutors works with the Prosecution of Bosnia and Herzegovina.

There are four international prosecutors within the War Crimes Section of the State Prosecution, one of whom is Chief of the Section. A number of foreign legal experts work as advisors or perform other functions with the State Court and its Prosecution.

BIRN–Justice Report has learnt that some international judicial figures in Bosnia are already leaving because they do not want their future to depend on a decision of local politicians.  

At the last session of parliament’s House of Representatives on September 2, the delegates did not pass an extension to the mandate of international personnel because the changes and amendments to the law did not get the required majority of votes from each entity.  

The most conspicuous opponents to the extension of the mandate come from the Union of Independent Social-Democrats, SNSD, the Bosnian Serb party led by Milorad Dodik, Prime minister of the Serb-dominated entity.

“Foreign judges and prosecutors have deprived law and justice in Bosnia and Herzegovina of its sense,” Biljana Bokic, spokesperson of the Republika Srpska Prime Minister, told Justice Report.

“Thanks to them, the Court of Bosnia and Herzegovina and its Prosecution have become illegal judicial institutions, cause of political witch-hunts,” she continued.

“The citizens of this country have had to pay for the consequences of their legal actions and lack of action for years,” she concluded.

The other political parties from Republika Srpska represented in the State Parliament support Dodik’s stand.

Momcilo Novakovic, an independent delegate, said he objected to extending the mandates of international personnel “for principled reasons”.

He added: “There mustn’t be a vacuum in the functioning of those institutions, so we need to make sure local judges and prosecutors start working right away.”

Slavko Jovicic, an SNSD delegate at the State Parliament, takes a harder line. “Foreign judges and prosecutors should have packed their stuff and left by now,” he says.

“What does a Frenchman or a German know about the [1992-5] war? Nobody checks even their references,” he says. “Why are we paying for all these interpreters [to work for] one foreigner? We should not. This is a sovereign state.”

From the opposite corner, Semsudin Mehmedovic, from the mainly Bosniak Party of Democratic Action, SDA, told Justice Report that those opposed to extending the mandate were mainly “afraid of eventual trials against them, in particular before the Organized Crime and Corruption Section.

He said Dodik wanted to abolish all courts and prosecutors, “so that his own case was never tried”.

Mehmedovic was referring to an investigation opened in 2006 by the State Prosecutor against Dodik on suspicion on involvement in the loss of 115 million Konvertible Marks [around 50 milion Euros] from the entity budget.  

Dodik’s office replied that the very existence of bodies like the Court and Prosecution of Bosnia and Herzegovina “demonstrates that Bosnia and Herzegovina is not a legal state”.  

“How would you explain to anyone living in a normal and civilized country that the key judicial institutions in this country are not familiar with its Constitution,” is said from his office to BIRN’ Justice Report.

More time needed:  

Bosnian Croatian delegates support the retention of international personnel at the State Court and Prosecution. Martin Raguz, parliamentarian for the Croatian Democratic Community 1990, HDZ 1990, is one of them.

“I am aware local people like us should take responsibility for legislative administration and… managing court processes but under the current conditions more time is needed before that [can happen],” Raguz said.

Raguz also said the issue of the mandate of international judges and prosecutors should not be politicized. Objective analysis should determine when the preconditions have been met for the foreigners’ departure.

“We need to define the realistic dynamics in agreement with judicial institutions,” he continued. “The Council of Ministers should propose these dynamics to parliament and the public. This would be an objective analysis.”

Judge Kreso, president of the State Court and Chief Prosecutor Milorad Barasin have repeatedly said the mandates of the international staff need to be extended.  

“The departure of international prosecutors and judges would cause irrevocable damage because those judicial experts are already involved in complex cases,” Barasin said, following the meeting held at the OHR.

“Their departure would lead to the loss of precious time because local staff members would need a long time to prepare for those cases,” he added.
 
Leo Plockinic, head of Croatia-Libertas, a local NGO that deals with wictimess of war crimes, says international judges and prosecutors still have useful work to do in the country. “The State Court and its Prosecution could use any kind of help,” Plockinic told Justice Report.

Bosniak victim’s associations are most vociferously opposed to the departure of the international official judicials.

Bakira Haseciv, president of the Association of Women, Victims of War, says it was only thanks to their efforts that any war criminals had been sent to prison at all.

The departure of international judges and prosecutors would effectively mean the victims having to leave Bosnia and Herzegovina as well, she insisted.

“Not one war crimes perpetrator would have been sentenced had it not been for the international judges and prosecutors,” she said.  

But the Bosnian Serbs are not backing down either. Dodik maintains that a country cannot call itself sovereign if it is “obviously controlled by foreign citizens”.  

“Even if the State Court and its Prosecution, in their current state, are legal institutions – although everybody knows that they are not – having foreign judges and prosecutors work with them is inadmissible,” Dodik says.  

Erna Mackic is a BIRN–Justice Report journalist. erna@birn.eu.com. Justice Report is an online BIRN weekly publication. 

See:

No Mandate Extension for International Judges and Prosecutors

The Million Dollar Question

Mandate of Foreign Judges and Prosecutors to be Discussed by Parliament

Bosnia Risks ‘Judicial Chaos’ if Foreign Judges Leave