V. Administrative Developments at the War Crimes Chamber

A. Increased focus on transition to national authorities

Competent and efficient administration is necessary for any court to run effectively. The need for effective administration is heightened when addressing complex trials involving large-scale crimes, numerous witnesses and victims, and in some cases, multiple defendants. There is an independent body in the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Registry, which addresses the administrative challenges associated with adjudicating such trials. Some of the responsibilities of the Registry at the ICTY include managing the day-to-day work in the courtrooms, filing and distributing documents, courtroom scheduling, and providing administrative support to the chambers and to the Office of the Prosecutor. In this way, the Registry is the "engine room" of the tribunal, providing essential support that allows the other organs to function.[163]

To develop the long-term sustainable capacity within Bosnia's justice institutions to process war crimes and organized crime cases in accordance with international fair trial standards, in late 2004 the high representative and the Bosnian presidency signed an agreement to establish an independent Registry to function within the State Court.[164] Under that agreement, an international registrar was appointed for a non-renewable term of five years to oversee the administration of the war crimes and organized crime chambers and the development of organs associated with it, including the prosecution, witness protection and support, and outreach.[165] While the document recognized the importance of transition, it did not contain any provisions addressing how this would be realized.

In September 2006 the high representative and the Bosnian presidency put in place a new agreement for the Registry.[166] Unlike the previous document, the agreement provides the legal basis for the transition of staff to national institutions.[167] The new agreement includes an "Integration Strategy," which focuses on the transition of Bosnia's justice institutions from international to qualified national staff and the gradual assumption of financial support of the State Court by the Bosnian authorities. The strategy is aimed at ensuring the presence of competent and sustainable national capacity within the court and the Prosecutor's Office of Bosnia. The new agreement therefore outlines the details of the incorporation of important functions of the Registry into the appropriate national institutions and the eventual dismantling of the Registry upon completion of its mandate, currently scheduled for the end of 2009.

The agreement establishes a Transition Council, an advisory body mandated to coordinate the transition of the Registry into national institutions. The council has a number of responsibilities in executing its mandate, including, for example, providing assistance in the preparation and implementation of the proposal for the transition of the Registry authority to the appropriate national body in relation to witness protection. Further, the Transition Council coordinates and prepares the legal amendments required for implementing the transition of Registry authorities and the integration of national staff into the institutions in Bosnia.[168] The Management Committee, an internal body of the Registry, facilitates the implementation of the "Integration Strategy" and the transition of the Registry. Its responsibilities include recruiting personnel, setting salaries, coordinating with donors, and fundraising.[169]

The agreement also splits the responsibilities of the Registry and creates two registrars: one for the administration of the organized crime and war crimes chambers (the court registrar), and one for the special departments for war crimes and organized crime of the prosecutor's office (the Prosecutor's Office registrar). The separate positions reflect the legal and operational separation between the court and the Prosecutor's Offices.[170] Bosnian nationals must fill these positions, but there is a provision allowing for the appointment of an existing international staff member in either position for a period not exceeding one year. At present, the court registrar is a Bosnian national[171] and the Prosecutor's Office registrar is an international.[172]

We welcome the intensified focus on the transition of the court's administrative structure to the national authorities. In light of the importance of ensuring that complex war crimes trials are processed in a manner that is consistent with international fair trial standards, the smooth transition of the administrative functions executed by the Registry to national authorities is essential. Moreover, by establishing a framework for the transition to national authorities, the new agreement provides a measure of transparency regarding how this commitment to transition is realized in practice.

B. Developments in court management

Maximizing judicial resources through effective court management is essential to preserve a defendant's fair trial rights, including the right to be tried without undue delay. Since it began operations in March 2005, the War Crimes Chamber has made steady progress in conducting trials. For example, during 2005 three trials were conducted, one first instance judgment rendered and one appeal decision revoking in part a first instance verdict. By contrast, during the period of January through September 2006, the war crimes chamber commenced a total of ten trials involving 21 defendants, including one case of 11 defendants charged with genocide. There were three first instance judgments, two of which were appealed, and one final verdict was rendered.[173] Several practices have been implemented to further improve the efficiency of trials and the overall communication between judges of the chamber. These initiatives are discussed in more detail below.

1. Measures to improve efficiency

Maintaining a rigorous hearing schedule is an important aspect of effective court management, provided the defendant's other fair trial rights are respected (for example, the defendant's right to have adequate time and facilities to prepare his or her defense). To promote the efficiency of proceedings, according to the court's own estimates, a panel should ideally spend approximately twelve six-hour days per month (72 hours) in trial or other hearings.[174] This is equal to a panel spending roughly 73-76 percent of its working time in court.[175]

However, none of the four panels conducting trials during the period of AprilJune 2006 met the target of spending 72 hours per month in the courtroom and only one out of five panels exceeded this target in July and September 2006.[176] Factors explaining the discrepancy between the projected figure and the actual time spent in court may include judges' involvement in preliminary matters, deliberations and the drafting of decisions, and adjournments during trial to allow time for parties to prepare or respond to submissions.[177] There were also novel legal issues in the early trials requiring additional out-of-court time for resolution.[178] Another factor that may have influenced the scheduling of hearings is that the Code of Criminal Procedure only requires the presiding judge to hold a hearing once every 30 days.[179]

To address these challenges, an ad hoc system has been developed to better coordinate the scheduling of trials and improve efficiency. At present, there is no centralized mechanism for scheduling trials.[180] Although the presiding judge has the authority to schedule the trial, as a practical matter, he or she now consults with the assigned court officer, the parties, and other members of the panel to prepare a trial plan. In addition, the Court Management Section maintains an overview of scheduling in all cases, summarizes this information, and provides reports to the president of the court, the judges, and court officers to maintain consistency in scheduling in all cases.[181] Other judges can use this information to compare the amount of time their respective panels are spending in the courtroom and make adjustments to the scheduling of trials as considered necessary.

Another strategy to improve efficiency is the increased use of status conferences. A status conference is a pre trial meeting of the parties before the panel to settle preliminary matters before moving ahead to trial. Although not a legal requirement, most panels are now using status conferences to manage issues and to schedule the trial.[182] In one case, for example, a panel held a number of status conferences so that the prosecution and the defense could come to an agreement on the admission of facts established by the ICTY.[183] Agreeing to such facts in advance of the trial meant that the parties did not have to present evidence in relation to these facts during the trial, a process that could have otherwise expended valuable time in court. The panels are also increasingly using status conferences in conjunction with the parties to obtain updates regarding other procedural issues (such as those related to the disclosure of evidence, translation, etc.), to set deadlines for the disposition of these issues and to establish a long-term schedule for the conduct of the trial.

These developments represent important initiatives aimed at improving the court's efficiency. The complexity of war crimes cases means trials can be very lengthy, which underscores the importance of maintaining efficiency in processing these cases. We look forward to the implementation of additional measures to improve the court's efficiency, including further improvements in the scheduling of proceedings, while at the same time safeguarding the fair trial rights of defendants.

2. Communication between judges

As a new institution, one of the challenges facing the chamber is the absence of a body of legal principles specific to the chamber that could serve as a reference point for judges in tackling complex substantive and procedural legal issues. In order to maximize judicial resources, it is important to foster awareness and communication between the different judicial panels about emerging developments in jurisprudence from the chamber. Awareness of other panels' decisions and activities can help judges develop and refine responses to the often novel legal questions that arise in war crimes trials. Such awareness can also promote consistency, where appropriate, in terms of how these issues are addressed.

To facilitate communication within the State Court, the Court Management Section has recently implemented an electronic database containing the confirmed indictments, substantive decisions, and verdicts issued by the organized crime and war crimes chambers. The database contains documents in both English and Bosnian-Croatian-Serbian and is fully searchable in these languages. Although only recently implemented, results indicate that court staff have already consulted this database extensively.[184] Indeed, this comprehensive database has been identified as an important tool in facilitating communication between judges.[185] As such, the database can assist in developing a strong body of jurisprudence in complex trials.