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XII. Reform Proposals

The slow pace of trials before cantonal and district courts, as well as the many difficulties with these trials noted above, have prompted many within Bosnia to call for reform of the judicial structure as part of a national strategy for trying cases dealing with crimes under international law. As one civil society representative commented, “We have to finish this.”²⁵⁰ The fear that if trials continue at this slow pace, these cases will remain unresolved indefinitely has lent a sense of urgency to these reform proposals in the last few years.

A number of working groups have been formed to address proposals for reform. These include the working group on a national strategy for war crimes recovery, a working group focusing on “satellite courts,” and a working group on the creation of an appellate court.²⁵¹ In addition, the High Judicial and Prosecutorial Council has also put forward its own proposal for reform.²⁵² The Justice Sector Reform Strategy, put forth by the Ministry of Justice of Bosnia also proposes changes along the lines of those proposed by several of the other proposals.²⁵³ What form, if any, reform takes in Bosnia around this issue is impossible to predict at this writing. Human Rights Watch does not express a preference for any specific reform proposal. Rather, we urge those officials involved in these discussions to take account of the challenges that we have noted regarding trials before cantonal and district courts and to ensure that any reforms adopted address these challenges and ensure the possibility of fair and effective justice for crimes committed during the war.

A question presented by several of these proposals is whether to continue to try these cases at cantonal and district courts or to expand the jurisdiction and capacity of the State Court over all cases involving war crimes, crimes against humanity, or genocide. Neither solution is inherently superior. It is true that many cantonal and district prosecutors expressed a preference for the State Court conducting all war crimes, crimes against humanity, and genocide trials, but this preference often had to do more with resource limitations than the will to conduct trials.²⁵⁴ Additionally, proposals for increased centralization seemed to meet with more support among prosecutors in the Federation than in Republika Srpska.²⁵⁵

Proponents of expanded State Court jurisdiction over crimes under international law named several advantages to this approach. First, such an approach would allow for the uniform application of the law without requiring constitutional reform.²⁵⁶ Additionally, this approach would allow for an easier coordination of evidence and investigations, which are currently not centralized.²⁵⁷

Proponents of maintaining jurisdiction at the cantonal and district level also presented strong arguments in favor of their view. They stressed the need to build up local courts and prosecutors’ offices so that they can more effectively try cases and to avoid draining their capacity to staff an enlarged State Court.²⁵⁸ Additionally, they urged the importance of justice being accessible and of trials being held in communities where crimes were committed.²⁵⁹ Some prosecutors also argued that undertaking drastic reform at this late stage would only add further delay to the processing of outstanding cases for crimes committed during the war.²⁶⁰

In fact, proponents of both approaches conceded that in many respects, these two approaches need not be contradictory. There is considerable overlap between the various reform proposals, and they agree on several key issues.²⁶¹ All of the proposals agree on the need for law harmonization. Likewise, the creation of a central institution for the coordination of evidence need not have implications either way for the jurisdiction of the state or entity judicial authorities. Whichever approach is adopted, these problems must be addressed comprehensively, in a way that addresses the challenges facing trials at cantonal and district courts currently.

One other reform proposal that must be addressed is the creation of non-punitive “solutions” to the backlog of cases dealing with war crimes, crimes against humanity, and genocide.²⁶² Non-punitive transitional justice techniques, such as truth-telling and reparations for victims, have been used successfully in a variety of contexts and can be invaluable tools for promoting societal healing.²⁶³ However, it is imperative that these approaches not be used as a way to avoid the obligation to punish war crimes, crimes against humanity, or genocide. Victims in Bosnia have been promised justice for the crimes committed during the war, and many have waited more than a dozen years to see justice done. Any use of non-punitive transitional justice approaches must be done in way that truly complements ongoing trials and not as a way to deny justice to victims.