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II. Background to the Establishment and Mandate of the War Crimes Chamber

Pursuant to the Dayton Peace Agreement, the State of Bosnia was divided into two Entities: the Federation of Bosnia and Herzegovina and the Republic of Srpska.8  In addition to the Entities, the Brcko District was established in 2000 as a single administrative unit of local self-government under the sovereignty of Bosnia.  The respective Entities and the Brcko District are organized separately.  The Federation of Bosnia and Herzegovina consists of a number of cantons.  Within each canton, there are municipal and cantonal courts that try less and more serious offenses, respectively.  The Republic of Srpska consists of a number of administrative districts.  As in the Federation, there are a number of municipal courts that exercise jurisdiction over less serious offenses, while the district courts try more serious offenses.  In the Brcko District, the Basic Court handles serious offenses.

The proper functioning of the justice system in Bosnia during and immediately after the conflict was severely impaired for a number of reasons.  The loss of skilled members of the legal profession and the judiciary throughout Bosnia, coupled with the physical destruction and lack of proper equipment or facilities, hindered the ability of the courts to administer justice effectively.9  The situation was compounded by complexities in the legal framework and inappropriate procedural laws.10 Other obstacles included bias of judges and prosecutors, poor case preparation by prosecutors, and ineffective witness protection mechanisms.11  Because of these grave deficiencies, the justice system has had a limited impact on putting an end to the widespread impunity in Bosnia for war crimes.  

In this context, the War Crimes Chamber (WCC) was established in early 2005.  The creation of the WCC was considered necessary to enable effective war crimes prosecutions in Bosnia.12  The creation of the WCC was part of an overhaul of the national justice system by the High Representative.13 This overhaul included numerous reforms of Bosnian criminal law, among them the introduction in 2003 of the state-level criminal and criminal procedure codes, the former of which established the State Court’s jurisdiction over war crimes.14  As part of the State Court, the WCC exercises supreme jurisdiction over the most serious war crimes cases in Bosnia, while the cantonal and district courts can handle other war crimes cases.

The jurisdiction of the WCC consists of several components.  First, the WCC will try those lower- to mid-level perpetrators’ cases referred to it by the ICTY pursuant to Rule 11 bis of the ICTY Rules of Procedure and Evidence.15 The WCC therefore represents an important component of the completion strategy of the ICTY.16  In addition to the Rule 11 bis cases, the WCC will be responsible for those cases submitted to it by the Office of the Prosecutor (OTP) of the ICTY where investigations have not been completed.  This will involve the review of approximately twenty-eight cases.17

As a mark of the progress made by the WCC in its establishment phase, the ICTY Appeals Chamber referred the first-ever case to it on September 1, 2005.  In doing so, it confirmed that the WCC was fully capable of providing the accused, Radovan Stankovic, with a fair trial.18  In accordance with that decision, Mr. Stankovic was physically transferred to Bosnia on September 29, 2005, to stand trial before the WCC for charges of crimes against humanity, including enslavement and rape.  The ICTY has since referred the case of another accused, Gojko Jankovic, to the WCC,19 and additional ICTY referrals to the WCC are expected.20

The WCC also has jurisdiction over “Rules of the Road” cases.  The “Rules of the Road” procedure was first established in response to the widespread fear of arbitrary arrest and detention immediately after the conflict in Bosnia.  Under this procedure, the relevant authorities in Bosnia were required to submit every war crimes case proposed for prosecution in Bosnia to the OTP of the ICTY to determine whether the evidence was sufficient by international standards before proceeding to arrest.  This process of review reduced incidents of arbitrary arrest in Bosnia.  The ICTY ceased reviewing cases on October 1, 2004, and the review function was subsequently assumed by the Special Department for War Crimes within the Office of the Prosecutor of the State Court.21 

The “Rules of the Road” cases are handled in two ways.  Where the case has not yet led to a confirmed indictment, the case must be reported to the Special Department for War Crimes.22 The prosecutor in the Special Department for War Crimes will then decide whether the case is “highly sensitive.”23 If so, the case will be taken up by the Special Department for War Crimes to be tried before the WCC (if not, the case is returned to the cantonal or district court with jurisdiction).  If, however, the indictment has been confirmed, the Special Department for War Crimes does not get involved,24 and the case remains with the relevant cantonal or district court to complete the proceedings.25 

The significant international presence currently within the WCC and those institutions involved with it includes international judges and prosecutors, defense counsel, experts in witness protection and support, as well as other officials engaged in providing substantive and administrative support.  The inclusion of international professionals is intended to ensure that recognized fair trial standards are met in the work of the WCC.26 The goal is to build on the existing expertise of local professionals within the justice sector to ensure a sustainable domestic capacity to address war crimes cases after international involvement has ceased27 (a transition that the WCC aims to complete by 2009).28

The WCC has both trial and appeals chambers.  There are presently five judicial panels allocated to the WCC.29  Panels are comprised of two international judges and one local judge, who is the presiding judge of the panel.30  According to the transition strategy of the WCC, between August 2006 and December 2007 the configuration of the judicial panels will shift to two national judges and one international judge.  By the end of 2009, it is anticipated that there will no longer be any international judges within the WCC.31 

In terms of physical capacity, it is anticipated that by early 2006 there will be sixlarge courtrooms available for trials.32  Once all courtrooms are operational, it is expected that the State Court will have the capacity to run approximately twelve trials simultaneously in both the War Crimes and the Organized Crime Chambers.33  This additional courtroom capacity is necessary in light of the projected increase in the number of trials in 2006. 

[8] The General Framework Agreement for Peace in Bosnia and Herzegovina (also known as the Dayton Peace Agreement), signed December 14, 1995 [online], (retrieved September 19, 2005).  The Dayton Peace Agreement ended the war in Bosnia.

[9] Organization for Security and Co-operation in Europe – Mission to Bosnia and Herzegovina, “War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina: Progress and Obstacles,” March 2005, p. 4 [hereinafter “OSCE War Crimes Report”].

[10] Ibid.

[11] Human Rights Watch, “Justice at Risk: War Crimes Trials in Croatia, Bosnia and Herzegovina, and Serbia and Montenegro,” A Human Rights Watch Report, vol. 16, no. 7(D), October 2004.

[12] See “Joint Preliminary Conclusions of OHR and ICTY Experts Conference on Scope of BiH War Crimes Prosecutions,” January 15, 2003 [online], (retrieved November 15, 2005). 

[13] The position of High Representative was created under the Dayton Peace Agreement to oversee implementation of the civilian aspects of the Peace Agreement. The mission of the High Representative is to work with the people of Bosnia and the international community to ensure that Bosnia is a peaceful, viable state on course to European integration.  For more information, see

[14] OSCE War Crimes Report, p. 9.

[15] Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of Bosnia and Herzegovina and the Use of Evidence Collected by the ICTY in Proceedings Before the Courts in Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, 61/04, art. 2 [hereinafter “Law on the Transfer of Cases”]; and Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia, IT/32/Rev. 36, July 21, 2005, Rule 11 bis  [hereinafter “Rules of Procedure and Evidence”].  This provision of the Rules of Procedure and Evidence allows the ICTY to refer a case to national authorities with jurisdiction after the confirmation of an indictment but before the commencement of the trial. 

[16] The strategy of transferring cases involving intermediate- and lower-level defendants to competent national jurisdictions was endorsed by the United Nations Security Council as part of the ICTY’s completion strategy.  See United Nations Security Council, Statement by the President of the Security Council, July 23, 2002 [online], (retrieved November 15, 2005).  See also United Nations Security Council, Resolution 1503 (2003), S/Res/1503.

[17] Registry for Section I for War Crimes & Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organized Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina, and Ministry of Justice Prison Project, “Project Implementation Plan Progress Report,” October 2005 [online], (retrieved November 7, 2005), p. 50 [hereinafter “Progress Report”].

[18] Prosecutor v. Radovan Stankovic, International Criminal Tribunal for the former Yugoslavia, Case No.: IT-96-23/2-AR11 bis.1, Decision on Rule 11 bis Referral, (Appeals Chamber), September 1, 2005, para. 30.

[19] Prosecutor v. Gojko Jankovic, International Criminal Tribunal for the former Yugoslavia, Case No.: IT-96-23/2-AR11bis.2, Decision on Rule 11 bis Referrals, (Appeals Chamber), November 15, 2005.

[20] Progress Report, pp. 20-21.

[21] Book of Rules on the Review of War Crimes Cases, KTA-RZ 47/04-1, December 28, 2004, art. 2 [hereinafter “Book of Rules”].  See also Rome Agreement, signed February 18, 1996 [online], (retrieved December 16, 2005). 

[22] Book of Rules, art. 6.

[23] Orientation Criteria for Sensitive Rules of the Road Cases (Annex to the Book of Rules on the Review of War Crimes Cases), A-441/04, October 12, 2004, art. 2.  For example, a case against an alleged camp commander involved in the torture of civilians during the conflict could be considered “highly sensitive.”  More details of this procedure of review are highlighted in the next section of the report.

[24] Book of Rules, art. 6(2).

[25] It may be possible for the State Court to assume jurisdiction pursuant to art. 449(2) of the Criminal Procedure Code where the indictment was confirmed after March 1, 2003.  See Prosecutor v. Nedo Samaradzic, Court of Bosnia and Herzegovina, Section I for War Crimes, Case No. X-KRN/05/46, (Trial Chamber), August 31, 2005 (copy on file with Human Rights Watch). 

[26] Progress Report, p. 15. There are also a number of international judges and prosecutors within the Organized Crime Chamber of the State Court. 

[27] See “Declaration by the PIC [Peace Implementation Council] Steering Board,” June 12, 2003 [online], (retrieved November 15, 2005).

[28] Ibid., p. 17.

[29] Court staff e-mail communication to Human Rights Watch, Sarejevo, December 1, 2005.

[30] Balkan Investigative Reporting Network, Balkan Insight, “Address by Meddzida Kreso, President of the Court of Bosnia and Herzegovia,” November 15, 2005 [online], (retrieved November 15, 2005) [hereinafter “Address by the President of the Court of Bosnia”].

[31] Progress Report, pp. 17-18.

[32] Human Rights Watch telephone interview with court staff, Sarajevo, December 1, 2005.

[33] Address by the President of the Court of Bosnia; Progress Report, p. 43.

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