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Bosnia: Key Lessons From War Crimes Prosecutions

Court’s Experience Offers Insights for Domestic Prosecutions of Atrocities

(New York)– Countries that want to prosecute atrocity crimes can learn from Bosnia’s experience with its War Crimes Chamber, Human Rights Watch said in a report released today. National governments, policymakers, and international donors who want to support domestic trials for these crimes should learn from the successes and shortcomings of the Bosnian chamber, Human Rights Watch said. 

The 47-page report, “Justice for Atrocity Crimes: Lessons of International Support for Trials before the State Court of Bosnia and Herzegovina,” highlights key lessons from the involvement of international judges and prosecutors to boost national staff capacity to try sensitive and complex cases stemming from the 1992-1995 war. In the seven years since the State Court began operations, its chamber and the Special Department for War Crimes (SDWC) in the Prosecutor’s Office have completed more than 200 cases.

“Building a court from scratch in a post-conflict country is a herculean task,” said Param-Preet Singh, senior counsel in Human Rights Watch’s international justice program. “The successes of the chamber and the Prosecutor’s Office are a testament to what can be achieved when national governments and international donors make justice for atrocity crimes a priority.”

The report is based on interviews with a number of officials in Sarajevo, including international and national staff members of the War Crimes Chamber, the Special Department for War Crimes in the Prosecutor’s Office, the defense office, the State Investigation and Protection Agency of Bosnia, the Organization for Security and Co-operation in Europe, diplomats, and donor agencies.

While the accomplishments of the chamber and the Prosecutor’s Office are significant, the Bosnian model of making use of international assistance has not been without flaws, Human Rights Watch said. For example, international donors, policymakers, and the Bosnian authorities did not make the best use of the international expertise to build Bosnia’s own court system and bring cases to trial, Human Rights Watch found. If these shortcomings had been addressed earlier, the chamber and the Prosecutor’s Office could have been in a better position to withstand a political climate in Bosnia that has become increasingly hostile to state institutions such as the court.

The tenure of international judges and prosecutors was originally set to expire at the end of 2009. However, at the last minute the high representative in Bosnia, the top international official there, extended the deadline amid widespread national and international concern that the premature departure of international staff would make it harder to complete cases successfully.  International judges and prosecutors are now expected to leave at the end of 2012.

“As the chamber and the Prosecutor’s Office shift to purely national institutions, it is even more important for the Bosnian government and international donors to express strong support for the work of the chamber and the Prosecutor’s Office,” Singh said. “Those responsible for the worst crimes committed during the war should be reminded that they cannot escape justice simply because international staff have left Bosnia.”

The report is part of a wider body of Human Rights Watch work on national trials for war crimes, crimes against humanity, and genocide, which includes research relating to Uganda, Democratic Republic of Congo, Guinea, and Kenya.

The need for accountability for the mass killings, rapes, widespread destruction, and displacement of the population which characterized the Bosnian war led to the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993. Spurred in part by the impending closure of the ICTY, in 2003, the Office of the High Representative in Bosnia and Herzegovina (OHR), together with the Yugoslav tribunal, pushed for the creation of a specialized War Crimes Chamber at the state level to handle many of the cases that remained.

A crucial component was the temporary inclusion of international judges in the chamber and international prosecutors in the Special Department for War Crimes of the Prosecutor’s Office to bolster capacity to accomplish that effectively. Following the adoption of the relevant laws by the Bosnian authorities, the War Crimes Chamber began operations in March 2005.

The political landscape in Bosnia has deteriorated significantly since the War Crimes Chamber and the special department began operations, though. The prosecution of atrocity crimes cases stemming from the war era has run afoul of increasingly forceful nationalist rhetoric. The situation has its roots in longstanding ethnic tensions and is part of a broader political agenda aimed at undermining state institutions, which, under an agreement that ended the war, brought together Bosnian Serbs, Muslims, and Croats under a tripartite presidency. Some national politicians, particularly in theRepublic of Srpska, the Bosnian Serb region, have led forceful efforts to undermine the Bosnian State Court and prosecutors. They have alleged, among other things, that the institutions are biased because of the higher number of cases against ethnic Serbs.

The report discusses the importance of devising a realistic plan to phase out international staff and of engaging public opinion through effective outreach to help create a climate that favors justice through fair trials.

“The Bosnia experience has shed light on the value-added of international staff, but also on missed opportunities to make the most of what international judges and prosecutors have to offer,” Singh said. “Policymakers and donors should carefully consider the Bosnia experience to avoid reinventing the wheel in other countries where national justice for serious international crimes is being pursued.” 

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