Thursday, December 6, 2012

In Bosnia, Prosecuting War Crimes at Home

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

In my article, "Prosecuting war crimes at home: lessons from the War Crimes Chambers of the State Court of Bosnia and Herzegovina", published recently in the International Criminal Law Review, I explore the challenges of multilevel justice for prosecuting international crimes.
It is now nearly twenty years since the establishment of the ad hoc international criminal tribunals, and ten years since the entry into force of the Statute of the International Criminal Court. In these two decades international criminal justice has evolved greatly, both from a substantive and procedural point of view but also with regards to its goals and aspirations.
International justice has transformed from a purely retributive system of justice to one which aspires to bring justice closer to the victim, to contribute to restoration and play a part in reconciliation whilst still upholding international standards of fair and due process.  As it develops further, we will see a complex web of prosecutions at the international level, in hybrid or internationalised bodies, and in national courts, either in centralised bodies or scattered around local courts.
This process of fragmentation inevitably brings challenges to international criminal law.
My article focuses on the experience of prosecuting war crimes in Bosnia and Herzegovina, where the multilevel system is as complex as it can get.
In Bosnia and Herzegovina (flag at right), the work begun by the International Criminal Tribunal for the Former Yugoslavia at The Hague is been carried on by the War Crimes Chamber in Sarajevo. In parallel, local courts continue to have jurisdiction over war crimes committed in their territory.
All post-conflict situations are different, and therefore, too, are the institutional and political frameworks within which prosecutions take place. Unfortunately, the crimes are not different, and the need for justice and redress for the victims isn’t, either. In this regard, the Bosnia and Herzegovina experience provides important insights for future practice, both for the international community supporting a complementary system of prosecutions and for national authorities establishing their own procedures.
My article focuses on the work of the War Crimes Chamber, conceived as a national institution with a temporary hybrid nature. Despite the challenges it has had to confront, the work of the War Crimes Chamber can be considered a success. In 6 years, it has:
►  Become a national institution,
►  Completed over a 100 cases, and
►  Been praised by international organisations for complying with international standards of justice.
In this post, I briefly summarise some of the conclusions I reached in my article.

Need for meaningful international-national engagement
The first conclusion regards the nature of the institutions tasked with the prosecution and adjudication of international cases.
The process in Bosnia and Herzegovina represents the first time a hybrid court has become a national institution. The presence of international staff has been crucial to guarantee a good start, from several points of view. In a highly politicised environment, internationals have, in a way, “shielded” the institutions, and taken most of the burden of politically manipulative discourses and attacks that are still prevalent in the country. They have also contributed to capacity-building and to training of their counterparts and for knowledge to be shared, both from a substantive point of view and from the perspective of court and prosecution management.
However, these capacity-building processes are more complex than simply creating sets of training materials, having national staff sitting in seminars, or lecturing them about international humanitarian law.

The Bosnia and Herzegovina experience shows that a more meaningful engagement is needed to maximise the benefit of having international and national professionals working together. It also exposes the difficulties that national courts may have when applying concepts of international humanitarian law. Finally, it illustrates how beneficial the presence of international staff with experience in war crimes prosecutions or complex criminal procedures may be in guiding their national counterparts, if the collaboration is perceived as a mutual learning process rather than an externally imposed demand.

Need for  well-established strategy
The process of phasing out international staff and assumption of full ownership of national staff in Bosnia and Herzegovina draws another important lesson: the relevance of having a well-established strategy from the outset.
Post-conflict settings are by nature volatile and highly politicised environments that make courts conducting war crimes prosecution and adjudication particularly vulnerable. Abrupt, unplanned, and non-transparent transition to national institutions may weaken their capacity to fulfill their mandates. Equally, in a context where national economic resources are tight, the end of international assistance to war crimes prosecution may provide an opportunity for national authorities and political elites to interfere in the role of courts.

Complexity of articulating multilevel justice
A further reflection regards the complexity of articulating multilevel justice in practice.
The example of Bosnia and Herzegovina exemplifies the dilemma between having justice centralised at state level or having local courts implicated in war crimes processing. The arguments for local courts to hear certain less complex cases are compelling, from the engagement of a multiplicity of resources that could advance prosecutions to bringing justice to the communities involved. Equally, from a justice standards and judicial economy point of view, a system in which lower-level courts may be able to use evidence collected by and refer to facts adjudicated in higher courts may contribute greatly to international justice.
However, the experience in Bosnia and Herzegovina is not too encouraging.
I found that in an extremely complex and fragmented judicial system, there are too many issues of conflict and overlap. Flawed systems of case review, inconsistent application of distribution criteria, lack of respect for jurisdictional competence, poor communication among courts, and obstacles in regional cooperation have made this multilevel option less attractive.

How many courts, how many crimes?
The final conclusion on which I would like to comment here regards a question:
How many courts are needed to prosecute how many crimes?
Bosnia and Herzegovina aims to bring justice to most of the crimes perpetrated, having calculated the remaining suspects to be around 10,000, a figure that has been considered simply impossible to attain. Ideal as it would be that no crime goes unpunished, it is obvious that the horrific legacy of hundreds of thousands of criminal offences in conflict cannot to be solely addressed in a courtroom. It is extremely important to have a well-designed and realistic prosecutorial strategy, one that allows for systematisation of data and prioritization of cases.
Prosecutions at national level do not have as many constraints in terms of the life-span of the judicial institution as some of the international and hybrid tribunals have. However, they do have other constraints, such as the need for prioritisation of resources in a post-conflict environment, or with regards to the quality of the evidence and the age of those involved in the crimes when a significant amount of time has passed.
Therefore, drafting a national strategy must not only be a political exercise, but a highly technical, well-advised and internationally supported process.
Equally important, complementary transitional justice measures must remain part of the debate. Resources must be allocated for these measures to accompany judicial procedures, in order to support societies in the process of facing their past and providing justice to their victims.

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