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Transitional Justice and ‘National Ownership’: An Assessment of the Institutional Development of the War Crimes Chamber of Bosnia and Herzegovina

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Abstract

In anticipation of its closure in 2014, the International Criminal Tribunal for the former Yugoslavia has begun to set out proposals for preserving and promoting its legacy of prosecuting persons responsible for violations of humanitarian law during the conflicts of the 1990s. A key aspect of this legacy has been to support the ‘national ownership’ of the justice systems in the former Yugoslavia that will continue to try war crimes cases in the years to come. This study explores the institutional development of the War Crimes Chamber of the Court of Bosnia and Herzegovina (WCC) to national ownership. In particular, it considers three critical aspects of the WCC's functioning that highlight the challenges that it faces as a mechanism of transitional justice in Bosnia and Herzegovina (BiH). These are the composition of prosecutors and judges, prosecutorial practices and outreach and communication activities. The article shows that the continued difficulties with these areas of legal practice figure as significant obstacles to the WCC's transition to full national ownership by both the legal professionals and local populace of BiH.

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Notes

  1. This definition is adapted from Hansen et al's (2007, p. 4) definition of local ownership as ‘the recognition that a justice and security sector reform process is of integral concern to the local population and that local actors should have a say in formulating the outcomes of the process’. To emphasise the role of national authorities in the process of national ownership, this definition is adapted to incorporate political and judicial leaders and the necessity of their support and commitment to the development of mechanisms of transitional justice.

  2. The adversarial system ‘is premised on two adversarial parties each bringing its case to court, the prosecution and the defence. Hence the two parties conduct their own investigations and the role of the judge at trial is (traditionally) like a referee, mainly deciding procedural issues raised by the parties’ (Cryer et al. 2007, p. 350). In contrast, within an inquisitorial system ‘[s]tate agencies are obliged to carry out objective criminal investigations and prosecutions and, essentially, only one case is presented to the court. Defence interests are looked after in the investigation and there is judicial supervision, often by an examining judge’ (Cryer et al. 2007, p. 350).

  3. United Nations Security Council Resolution 1503, 28 August 2003 (S/RES/1503 (2003)).

  4. Ibid.

  5. United Nations Security Council Resolution 1534, 26 March 2004 (S/RES/1534 (2004)).

  6. In 2003, the High Judicial and Prosecutorial Councils undertook a program of the reappointment of all prosecutors and judges to ensure the appropriate balance of persons of different ethnicities (OSCE 2005).

  7. See ‘Project Plan for the Registry’, http://www.registrarbih.gov.ba/files/docs/Project_plan_240904.pdf. Accessed 11 September 2011.

  8. It should be noted that scholars of transitional justice often the use the terms ‘national ownership’ and ‘local ownership’ interchangeably. As set out above, this article uses the term ‘national ownership’ to encompass both the ownership of the WCC by the prosecutors and judges and the local populace.

  9. Hybrid courts such as those of Sierra Leone, Cambodia and East Timor all incorporate both international and national judges (and often prosecutors and other staff members) in their Trial and Appellate Panels (Kermani Mendez 2009). Unlike the WCC, however, this mixed composition of judges and prosecutors is typically expected to continue for the life span of their functioning.

  10. One notable exception is Artz (2006), who explores public perceptions of the Special Court for Sierra Leone.

  11. Interview with a staff member of the Office of the Prosecutor of the ICTY, 28 June 2006. Fifteen interviews were conducted with ICTY staff during two fieldwork visits in 2006 and 2007 in The Hague, The Netherlands. Interviews were conducted with staff of the Office of the Prosecutor, Victims and Witnesses Section, Outreach Programme and Military Analysis Team. All the interviews followed a semistructured format and were focused on the structure of each of these sections of the ICTY and their role in transitional justice processes in the former Yugoslavia. Several of the interviewees requested anonymity in any future reference to these interviews. For this reason, the role of the interviewees within the ICTY, but not individual names, are given in this article.

  12. Interview with a staff member of the Outreach Programme of the ICTY, 3 April 2006.

  13. For a detailed overview of the ICTY's capacity building measures for the WCC and other domestic justice systems of the former Yugoslavia, see http://www.icty.org/sections/Outreach/CapacityBuilding. Accessed 11 September 2011.

  14. As of September 2010, a total of 22 war crimes cases were completed by courts in the RS; 48 in the FBiH and 3 in Brčko District (OSCE 2011). In regard to regional courts in the former Yugoslavia, the OSCE reports that more than 600 people have been convicted in Croatia. See http://www.osce.org/zagreb/45126 for more detail. The Office of the War Crimes Prosecutor of the Republic of Serbia reports that 383 people have been prosecuted before courts in Serbia. See http://www.tuzilastvorz.org.rs/html_trz/predmeti_eng.htm for more detail.

  15. Analysis undertaken by the author. Correct as of 1 August 2011.

  16. The OSCE (2010b, p. 7) identified issues with custody, witness protection and support, transparency of proceedings, injured party compensation claims, plea bargaining, use of evidence from the ICTY, effectiveness of defence, clarity of judgements, and methodology of training and knowledge transfer. Recommendations and advocacy activities were undertaken by the OSCE (2010b, p. 35) to attend to these issues.

  17. It should be noted that not all of these 126 accused had their cases heard by the ICTY. For example, 13 accused had their cases transferred to a national jurisdiction, including 10 accused to the Court of BiH, while 36 accused had their indictments withdrawn or died prior to their cases coming to trial.

  18. The Special Department is composed of six teams covering different areas of BiH. See http://www.tuzilastvobih.gov.ba/?opcija=sadrzaj&kat=2&id=4&jezik=e for more detail. Accessed 12 September 2011.

  19. See ‘Decision Enacting the Law on Amendments to the Law on Prosecutor's Office of Bosnia and Herzegovina’, 14 December 2009, available at: http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=44287. Also ‘Decision Enacting the Law on Amendments to the Law on the Court of Bosnia and Herzegovina’, 14 December 2009, available at: http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=44283. Accessed 24 August 2011.

  20. Most notably, the Bosnian Parliament in September 2009 voted not to extend the mandates of the international prosecutors and judges. There has been particular opposition from the RS over the inclusion of these staff members (UNDP 2009).

  21. National War Crimes Strategy.

  22. National War Crimes Strategy.

  23. Defined in the Strategy as ‘multiple and systematic rape, establishment of detention facilities for the purpose of sexual slavery’. See ‘Annex 2, Criteria for the Review of War Crimes Cases’, National War Crimes Strategy, 2008 (‘Annex 2, National War Crimes Strategy’).

  24. As set out in the Strategy, this offence should take into account ‘the intensity and the degree of mental and physical injuries, large scale consequences’. See ‘Annex 2, National War Crimes Strategy’.

  25. Annex 2, National War Crimes Strategy.

  26. Annex 2, National War Crimes Strategy.

  27. Annex 2, National War Crimes Strategy. See Bergsmo et al (2010) for further discussion.

  28. Indictments for cases that could reasonably be understood to involve ‘lower-level’ accused and ‘lower-level’ crimes that do not meet the criteria of the Strategy are also evident prior to 2011. Among others, see, for example, the cases of Elvir Jakupović (indicted in 2010), Novica Tripković (indicted in 2010) and Dragan Đokić (indicted in 2009).

  29. Trials at the ICTY are held in English or French and translated into BCS in the courtroom. However, it was not until relatively recently that either judgements or transcripts of the cases were available in BCS.

  30. For further detail, see http://www.sudbih.gov.ba/?opcija=sadrzaj&kat=7&id=81&jezik=e. Accessed 24 August 2011.

  31. Annual Report (2010, p. 13).

  32. For further detail, see http://www.sudbih.gov.ba/?opcija=sadrzaj&kat=7&id=83&jezik=e. Accessed 24 August 2011.

  33. Beyond the WCC's own outreach, protection and support activities, there are a number of civil society initiatives in BiH and across the region of the former Yugoslavia working to promote redress for war crimes during the conflict. For example, the Coalition for RECOM consists of a network of NGOs, associations and individuals who represent and promote an initiative for the establishment of a regional commission tasked with establishing the facts about all victims of war crimes and other serious violations of human rights during the conflict. See http://www.zarekom.org/The-Coalition-for-RECOM.en.html for further information.

  34. See OSCE (2011).

  35. Analysis undertaken by the author. Correct as of 1 August 2011. Nine cases do not explicitly state the ethnicity of the accused or such information is currently unavailable. Identification of the ethnicity of the accused of these cases is taken from the WCC's indictments and judgements.

  36. Author analysis.

  37. E-mail correspondence with Manuela Hodžić, Head of the Public Information Section of the Court of BiH, 27 April 2011. The author requested information as to the composition of PIOS in terms of staff members and the source of its funding through the contact e-mail address pios@sudbih.gov.ba. As part of this correspondence, PIOS staff stated that they do participate in seminars within BiH organised by NGOs but are only able to hold their own seminars at the Court.

  38. E-mail correspondence with Manuela Hodžić, Head of PIOS, 27 April 2011.

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Acknowledgements

The research leading to this paper has received funding from the European Research Council as part of the project ‘Bosnian Bones, Spanish Ghosts: ‘Transitional Justice’ and the Legal Shaping of Memory after Two Modern Conflicts’. I would like to thank Kirsten Campbell and Sari Wastell for their useful comments on an earlier draft of this paper.

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  1. Unit for Global Justice, Department of Sociology, Goldsmiths, University of London, New Cross, London, SE14 6NW, UK

    Claire Garbett

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Garbett, C. Transitional Justice and ‘National Ownership’: An Assessment of the Institutional Development of the War Crimes Chamber of Bosnia and Herzegovina. Hum Rights Rev 13, 65–84 (2012). https://doi.org/10.1007/s12142-011-0209-8

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