Mallinder, Louise

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War Crimes Chamber of the Court of Bosnia and Herzegovina

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484 Encyclopedia of Transitional Justice, Volume 3War Crimes Chamber of the Court of Bosnia-HerzegovinaThe War Crimes Chamber (WCC) of the Court of Bosnia-Herzegovina, inauguratedon March 9, 2005, is tasked with prosecuting crimes that were perpetrated during theconflict in Bosnia-Herzegovina in the early 1990s, in conjunction with the trials at theInternational Criminal Tribunal for the Former Yugoslavia (ICTY; see separate entry)and in Bosnia’s lower entity-level courts. The crimes within the jurisdiction of the WCCinclude genocide, war crimes, and crimes against humanity. The WCC complementsthe work of the ICTY, but the institutions differ as the WCC is located in Sarajevo, isa permanent institution, has local staff working on the cases, conducts its trials in locallanguages, and is governed by Bosnian domestic law (which incorporates internationalhuman rights and humanitarian law). It was anticipated that these differences wouldcreate the potential for the Bosnian population to feel greater “ownership” over thechamber. In addition to prosecuting war crimes cases, the WCC, as part of the Courtof Bosnia-Herzegovina, is responsible for harmonizing prosecutions of suspected warcriminals throughout Bosnia-Herzegovina (see entry on Bosnia-Herzegovina). As a result,the Special Department for War Crimes in the state prosecutor’s office has developed adatabase of all war crimes cases in the country and has been involved in the developmentof a National War Crimes Strategy.Political BackgroundAlthough domestic courts in Bosnia-Herzegovina had prosecuted conflict-related crimessince the war broke out, the standards of fairness in these trials were criticized. Thiscontributed to the UN Security Council’s decision to establish the ICTY to prosecutewar crimes in the former Yugoslavia. Under the Rome Agreement of 1996, all domesticindictments had to be approved by the ICTY before suspects could be arrested (thisprocess was known as the Rules of the Road). This meant that until recent years, very fewprosecutions for war crimes took place in domestic courts. However, in 2001, the ICTYOffice of the Prosecutor presented the idea of establishing a special war crimes court inSarajevo, as part of efforts to develop a completion strategy for the international tribunal.Initially, this proposal received only tentative support from the Bosnian politicians,many of whom held strongly nationalist views. Then, in 2002, the Office of the HighRepresentative (OHR) commissioned a group of experts, led by a former head of ICTY’sinvestigations, to write a report on the need for such a court. The OHR is an ad hocinternational institution responsible for overseeing implementation of civilian aspectsof the Dayton Peace Agreement of 1995, which ended the war in Bosnia-Herzegovina.It has wide-ranging lawmaking powers. This report found that to develop domesticefforts to prosecute war crimes, it was necessary to establish a special chamber in thestate court. The idea received the support of the OHR and the UN Security Council,which was eager for the ad hoc tribunals to complete their work. Once the ICTY andOHR had developed concrete proposals (the ICTY participated heavily in designing theframework of the court), the Bosnian government became involved.In 2003, a new Criminal Procedure Code of Bosnia-Herzegovina was adopted, fol-lowed by efforts to harmonize the criminal procedure codes of the entities (the territorialunits created under the Dayton Peace Agreement). These changes were controversial astheymoved the Bosnian legal system from a purely civil law system to a “hybrid” approachTransitional Justice Institutions and Organizations 485that incorporated elements of the common law system. In particular, investigative judgeswere abolished as part of criminal proceedings, and the possibility of plea bargainingwas introduced. The “Anglo-Saxon” methods were adopted in response to the dramaticincrease in organized crime in Bosnia-Herzegovina during and immediately after thewar, as well as a huge backlog resulting from delays related to the processing of cases.These changes created the framework for the trials before the WCC. The legislationestablishing the chamber was then enacted by parliament at the end of December 2004,and thirty countries donated funds to support its work, leading to the inauguration of theWar Crimes Chamber of the Court of Bosnia and Herzegovina on March 9, 2005.Mission, Organization, and ActivityThe Court of Bosnia-Herzegovina was created by the Law on the Court of Bosnia-Herzegovina, which was promulgated by the OHR on November 12, 2000. This law,adopted by the parliament of Bosnia-Herzegovina on July 3, 2002, established the court.In December 2004, this law was amended to award the court the competence to try warcrimes cases. As a result, the Criminal Division of the court is divided now into threechambers: (1) war crimes; (2) organized crime, economic crime, and corruption; and(3) general crime. TheCourt of Bosnia-Herzegovina has been described as a hybrid courtbecause, although it is part of the Bosnian domestic judiciary, there were internationaljudges and prosecutors among its personnel until 2010.In the December 2004 Agreement between the OHR and the Bosnian governmenton the creation of the WCC, the new chamber and the related Special Department forWar Crimes within the national prosecutors’ office were described as “an integral partof the establishment of the rule of law principle in Bosnia and Herzegovina” (Agree-ment between the High Representative for Bosnia and Herzegovina and Bosnia andHerzegovina 2004), and part of the signatories’ commitment was to “hold accountablethe perpetrators of serious violations of international humanitarian and human rightslaw and the criminal law in Bosnia and Herzegovina” (Agreement between the HighRepresentative for Bosnia and Herzegovina and Bosnia and Herzegovina 2004). TheAgreement also stated that the creation of the court was necessary to ensure that theBosnian judiciary could receive cases transferred from the ICTY, as part of the interna-tional tribunal’s completion strategy.Initially, the trial panels and the appellate panel were composed of two internationalmembers, appointed by the OHR, and one national judge. Most of the international staffat the WCC in its early days were former ICTY officials, including several prosecutorsand some judges. However, since July 2006, judicial and prosecutorial appointmentsto the court have been conducted by the High Judicial and Prosecutorial Council ofBosnia-Herzegovina, and since 2008, each panel has been composed of one internationaljudge and two national jurists. The High Judicial and Prosecutorial Council also appointthe president of the Court of Bosnia-Herzegovina, who, since 2004, has been Judge KresoMeddzˇida.The Special Department for War Crimes of the Prosecutor’s Office of Bosnia-Herzegovina was created at the same time as theWCC and is responsible for prosecutionof war crime cases committed in the territory of Bosnia-Herzegovina during the conflict.The head of the Special Department is international prosecutor, David Schwendiman,and his deputy is prosecutor Milorad Barasˇin. The department has fourteen national and486 Encyclopedia of Transitional Justice, Volume 3five international prosecutors, together with a large number of international and nationallegal associates, case managers, administrative, and other professional personnel. Thestaff is divided into teams that focus on specific geographical areas. In both the judiciaryand the prosecution, the involvement of international legal professionals was deemednecessary to counteract mistrust of the local judiciary and to create the impression thatthe prosecutions were impartial.TheWCChas jurisdiction over the crimes of genocide, torture, multiplemurders, andmultiple rapes, and adheres to the legal principles employed by the ICTY. The SpecialDepartment is empowered to launch investigations of these crimes for both cases referredfrom the ICTY (including cases where indictments have been issued, known as rule 11biscases, and cases where the ICTY prosecutor had not completed investigations) and casesresulting from the prosecution’s own investigations. The WCC also has jurisdiction overthe outstanding Rules of the Road cases.As part of its review of the cases, the Special Department for War Crimes of theProsecutor’s Office of Bosnia-Herzegovina has developed a centralized data collectionsystem for gathering statistical data on all war crimes cases pending before the domesticjudiciary. In the figures it released relating to cases before the courts’ and prosecutors’offices in Bosnia up to October 1, 2008, the study found a total of 9,879 suspects andaccused. The term “suspect” refers to a person with respect to whom there are groundsfor suspicion that the person may have committed a criminal offense and against whomthe indictment has not been confirmed; the term “accused” denotes persons againstwhom one or more counts in an indictment have been confirmed. In the contextof the ICTY’s completion strategy, the responsibility for prosecuting the thousands ofoutstanding cases falls to the domestic courts. In addition, to identify the sites of massatrocity, the Prosecutor’s Office has developed “a catalog of war crimes and crimes againsthumanity, including genocide” that were committed across different regions withinBosnia-Herzegovina (National War Crimes Strategy 2008). This catalog is intended tofacilitate “a preliminary crime selection” on the basis of available data.The Special Department reviews the cases according to the Orientation Criteria forAssessment of Sensitivity of the Rules of the Road Cases to determine whether thesecases are “most sensitive” and to be prosecuted before the WCC or “sensitive” and tobe processed by the entity-level courts. These criteria recommend that the Prosecutor’sOffice consider factors like the number of crimes, the number of victims, and the rankof the suspects involved in a particular case. Crimes such as genocide, mass murders,multiple rapes, systematic and widespread persecution, and the use of concentrationcamps, which involve large numbers of victims, fall within the “very sensitive” category.The expectation is that the entity-level courts will process the majority of the cases,although considerable doubts have been expressed by international monitors over thecapacity of these courts.From 2006, international agencies working within Bosnia-Herzegovina, in particularthe European Union, called on the Prosecutor’s Office of Bosnia-Herzegovina to developa plan to improve the capacity of the domestic courts and develop approaches to harmo-nize the capacity of courts at all levels to prosecute the remaining war crimes cases. Inresponse, theMinistry of Justice of Bosnia-Herzegovina created aWorking Group for theDevelopment of a National Strategy for Work onWar Crimes andWar Crimes Recoveryin July 2007. This Working Group was composed of representatives of the Ministry ofTransitional Justice Institutions and Organizations 487Justice, the State Court, the Prosecutor’s Office, the High Judicial and ProsecutorialCouncil, and the finance ministries of the entity-level governments in the Federationand Republika Srpska. The UNDevelopment Programme was granted observer status atthe Working Group.In December 2008, the Working Group adopted the National War Crimes Strategy,which prescribes a number of measures to improve efficiency in the prosecution ofwar crimes cases, promote regional cooperation, and facilitate support and protectionof victims and witnesses. It also analyzed the budgetary requirements of the prosecu-tions. The strategy anticipates the prosecution of the most complex and top-prioritywar crimes cases within seven years and of other war crimes cases within fifteen yearsfrom the adoption of this strategy (that is, about thirty years after the crimes werecommitted).Following the adoption of theNationalWarCrimes Strategy, concerns about its imple-mentation have continued to be raised as deadlines within the strategy have been missedand entity-level prosecutors have been criticized for failing to hand over informationrelating to ongoing investigations. The president of the Court of Bosnia-Herzegovina hasattributed the lack of cooperation to political interference.Victims’ groups and civil societymore broadly were not consulted on the establishmentof the WCC. The court does have an outreach strategy and a Court Support Network ofnongovernmental organizations was created, but the organizations involved suspendedtheir cooperation in 2006 because of what they described as the lack of interest incooperation of the court’sWitness andVictims Section. The court attributed the shortfallsin its outreach policy to a lack of personnel rather than an unwillingness to engage.Furthermore, there has been limited public attendance in the court proceedings andlittle media coverage. This public disinterest has been argued to be a symptom of Bosnia’seconomic crises, which may make it difficult for people to take days off work and travelto Sarajevo to watch the proceedings. In addition, public surveys have indicated thatrespondents prioritize improvements in their living standards, the resolution of ongoingdisputes on the powers of the federal and entity-level governments, and anti-corruptionmeasures over the prosecution of war crimes.Although since their creation, the WCC and the Special Department on War Crimeshave been heavily involved in building the capacity of the Bosnian domestic legal systemto handle the thousands of cases that have yet to be prosecuted, they have also beenactive in investigating and prosecuting war crimes. To date, the court has issued severalnotable judgments relating to some of the conflict’s most notorious events, such as thesystematic use of sexual violence in the town of Focˇa and the genocide at Srebrenica.ConclusionIn the four years since its creation, the WCC has made progress toward its goals ofprosecuting war criminals, contributing to the restoration of the rule of law in Bosnia-Herzegovina and harmonizing war crimes prosecutions within the country. However,this progress has been slow and has faced considerable obstacles, in particular the lackof political will for trials among some nationalist politicians and the limited capacityof the entity-level courts. Furthermore, the sheer scale presented by the thousands ofperpetrators who may be liable for prosecuting is daunting. The adoption of the National488 Encyclopedia of Transitional Justice, Volume 3War Crimes Strategy offers the possibility of a systematic approach to address theseproblems, and it is hoped that is implemented fully.Louise MallinderCross-references: Bosnia-Herzegovina; Commission for Investigation of the Events inand around Srebrenica between 10 and 19 July 1995; Hybrid Tribunals; InternationalCriminal Tribunal for the Former Yugoslavia.Further ReadingsAgreement between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovinaon theEstablishment of the Registry for Section I forWarCrimes and Section II forOrganizedCrime,Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosniaand Herzegovina and the Special Department for War Crimes, Organized Crime, Economic Crimeand Corruption of the Prosecutor’s Office of Bosnia. BiH Official Gazette, No 12/04 (December 1,2004).Human Rights Watch. 2007.Narrowing the Impunity Gap: Trials before Bosnia’s War Crimes Chamber.Available at: http://www.hrw.org/en/node/11032/section/1 (accessed October 23, 2009).Ivanisˇevic´, Bogdan. 2008. The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid toDomestic Court. New York: International Center for Transitional Justice.Jelacic, Nerma. 2006. In Pursuit of Justice: Guide to the War Crimes Chamber of BiH. Sarajevo: BalkanInvestigative Reporting Network.NationalWarCrimes Strategy, December 2008. Available at: http://www.adh-geneva.ch/RULAC/news/War-Crimes-Strategy-f-18–12-08.pdf (accessed October 23, 2009).World Tribunal on IraqThe World Tribunal on Iraq was an international citizens’ tribunal designed to investi-gate, document, and bear witness to the illegality and injustice of the U.S.-led invasionand occupation of Iraq in 2003 (see entry on Iraq). Organized within civil society in adecentralized fashion and without a formal mandate from any government or interna-tional institution, the Tribunal consisted of more than twenty sessions held in at leastthirteen countries between November 2003 and June 2005. Among other things, the Tri-bunal examined theUnited States’ andUnitedKingdom’s legal and political justificationsfor the invasion, the media’s role in justifying the war to the public, the conduct of coali-tion soldiers during the invasion and occupation, the use of depleted uranium weapons,the destruction of Iraq’s cultural heritage, and the torture, forced disappearances, andother human rights violations allegedly committed by theUnited States and its allies. Thesessions publicly gathered documentary and testimonial evidence about the violation ofinternational law and about the failure of the international community to enforce inter-national standards. The Tribunal’s findings lent open support to the antiwar movementand offered recommendations for holding the organizers of the war accountable.Political BackgroundThe motivation for organizing a tribunal about the invasion and occupation of Iraqarose from the conviction among antiwar activists that the invasion of Iraq had beenan ideologically motivated war of aggression that had openly violated international lawand that had been waged against global public opinion and in a manner that entailedcrimes against the Iraqi people. The rationale for holding a nongovernmental tribunal

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War Crimes Chamber of the Court of Bosnia and Herzegovina

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