Justice Delayed

In 2003, the new War Crimes Chamber of the BiH State Court had 13 international donors to fund it, and the head of the High Representative’s Rule of Law Office promised that the appointment of judges was at hand.

Šaban Maksumić, Azra Miletić and Nedžad Popovac (Photo: BiH Court)

In 2003, the new War Crimes Chamber of the BiH State Court had 13 international donors to fund it, and the head of the High Representative’s Rule of Law Office promised that the appointment of judges was at hand.

But the final international judge was not sworn in until May 5 of this year, and the Chamber has yet to open its first trial.

Allegations against as many as 4,500 suspects await review by the BiH Prosecutor’s Office before any might move to the Chamber, and the International Criminal Tribunal in the Hague (ICTY), in turn, has yet to transfer the first case from the Netherlands back to Sarajevo.

Ultimately, the success of the Court in establishing the truth of what happened in the war, giving out punishment and championing a justice with which warring sides can build a future together again, depends on the public’s belief in the new Chamber.

In an 11-part series, a team of journalists from the Center for Investigative Journalism in Sarajevo (CIN) is examining the state of reconciliation in BiH, and how the Chamber may contribute to that future.

A CIN/Prism Research poll in March, showed that some 72 percent of BiH citizens aren’t even familiar with the chamber, and that the population is deeply divided over whether it will contribute toward reconciliation among ethnic groups.

In the poll, 61 percent of the respondents also said they were unsatisfied with the slow progress of justice from the ICTY and the new Chamber.

Some officials at the ICTY and the BiH Court see the lethargic pace of justice as just a sign of the hugeness of the task of setting up, first, an international court in The Hague, and now a local court with international standards. But others say that BiH does not have the resources to make their new Chamber deliver on the promises that are being made to its citizens.

Either way, the Chamber is unlikely to change any minds so long as it is not holding trials.

Officially, plans to turn over the bulk of the war crime cases resulting from the 1992-95 conflict in Bosnia from an international court in the Netherlands to the Balkans are on track. There’s no delay, goes the official word, just a complicated procedure that must be followed in shutting down the tribunal after 12 years and letting the Balkans take back the burden of its own war crime cases.

Work at The Hague tribunal, a $1 billion international experiment begun in 1993, that the United Nations Security Council has scheduled to shut down by 2010, began winding down last fall. It will take on only the biggest crimes or defendants until then. The Dutch court has stopped receiving potential cases for review, leaving that task to prosecutors in BiH.

But moving to the next phase – getting cases before a sitting bench of local and international judges in Sarajevo– has hit some sticking points. A number of projected dates for when the chamber would be up and running have come and gone.

In 2003, The Office of the High Representative’s (OHR) Rule of Law Department announced that the War Crimes Chamber would be functioning by the end of 2004. A report by the Organization for Security and Cooperation in Europe (OSCE) gave out that same date.

In January 2005, court President Meddžida Krešo pronounced the chamber ready. BiH Justice Minister Slobodan Kovač told reporters that the chamber would start hearing its first case in the middle of February. It did not. In March the chamber was ceremoniously inaugurated.

Now, estimates by the court are that work in the Chamber will begin by the end of the year.

Meanwhile, Michael Johnson, the American head of the Court Registrar’s office, and the international overseer of the Chamber, argued that much has already been accomplished.

Local and international court officials have been working to make necessary changes to allow for the new chamber, he said. For example, international donations funded a needed detention facility to house defendants awaiting trial in the new Chamber, and local officials passed legislation to create a prison administration to run it, Johnson added.

But there are still no trials in the new courtrooms at the Chamber.

Slobodan Kovač, the BiH justice minister, said he didn’t “have the right answer for the delay,” but that he thought the end of 2005 was a deadline that could be met.

The cases for the new Chamber will arrive from two places. Some existing cases will be transferred from The Hague.

But most of the cases originated in the local courts, were sent to The Hague for review, and have now been sent back to the BiH Prosecutors Office to make the decision on how to handle them. The prosecutors office will decide whether they are “highly sensitive” and should be tried in the Chamber or “sensitive” and tried in the local courts.

While the Sarajevo chamber has yet to receive an assignment from a Hague panel of judges that has been looking at cases involving some dozen defendants for possible transferal to BiH, BiH Chief Prosecutor Marinko Jurčević denies there is any problem.

“They have their procedure,” he said. Before a case is transferred, a three-judge referral bench must consider the matter. This group reviews the case and allows arguments by defense and prosecution lawyers. It then issues a decision and allows either side to appeal it. The process, which can include requests for delays, may be lengthy.

“This is all part of the procedure,” said Florence Hartmann, spokeswoman for the ICTY prosecutor’s office, who rejects any suggestion that activity in the Sarajevo court is beginning more slowly than anyone had foreseen.

Johnson, the court registrar, said it is wrong to imply that Hague officials are waiting for the chamber to be ready to send cases to it.

But Amir Ahmić, the Bosniak liaison officer with The Hague, says flatly: “The Hague thinks that the BiH court is not ready yet. The Hague has not been transferring cases because we have not convinced them that we’re ready for it. There is no other answer to this. The Hague thinks that the time has not yet come.”

As one example of the work that remains to be done before trials can get underway, Rupert Skilbeck, head of the Department for Assistance to Defense at the War Crimes Chamber, said a list of potential court-appointed defenders has not yet been compiled. Even the criteria for selecting these lawyers are incomplete. Skilbeck has no explanation as to why this has not been done.

Jim Landale, spokesman for the Hague tribunal, said tribunal officials had “confidence that much work has been done putting into place the checks and balances needed” to try complex and difficult trials. “We would like to see the War Crimes Chamber start trials and get underway as soon as possible,” he said, “but we recognize more than others how difficult it is to get it right (in setting up a new court.)”

Landale acknowledged that The Hague has been slow in moving cases to Sarajevo and to courts in other Balkan capitals waiting to begin work on them. The judges have moved slowly and deliberately on the first cases they are considering for transferal because they want to set down the guidelines that should be used in making case decisions. Later decisions should move more rapidly, he added.

But, Landale said, “work getting started at the War Crimes Chamber is not entirely dependent on the ICTY. It doesn’t have to wait. I don’t think we’re to blame.”

Just as the Chamber has gotten no assignments from The Hague, it has yet to get a war crimes case from among the thousands of charges being reviewed by the BiH prosecutor’s office. When The Hague decided to stop reviewing war crimes allegations from BiH, it deluged the prosecutor’s office with 1400 suspects in addition to as many as 3,000 suspects it has to review from the BiH lower courts.

Some court observers say the prosecutor’s office may be the key to the delay in getting the War Crimes Chamber started. Attorney Krstan Simić said, “That is a huge amount of work to do and they are simply not ready for it.”

Simić and others said staff was being extensively trained, even over-trained, on prosecuting cases that may attract worldwide attention and scrutiny.

“People in the Court cannot do their work because they are attending all these trainings,” Simić said. “For example, Marinko Jurčević would leave his job to go to a 20-day training in South Africa.”

Jurčević blames the huge caseload that must be reviewed on entity-level prosecutors, who refuse to make difficult decisions on which cases to pursue.

The job of prosecutors is to stop investigations where there is little evidence, which is true of many of the cases from the lower courts. “Many (prosecutors) don’t have that strength because these are sensitive cases,” Jurčević said.

On the other hand, prosecutors who say they don’t have the resources to do war crimes trials are equally timid for the same reason, Jurčević said.

“Most of them (local prosecutors) are biased and tuning into their community and how it is reacting,” when they make a decision on whether to prosecute a war crimes case, Jurčević said.

“If prosecutors on the entity level would approach their work more seriously,“ said Jurčević, who, at the state level, has no authority over them, ”the number of cases would decrease, the number of perpetrators would decrease, and we would have investigations and indictments of higher quality.”

Court officials also ran into some delay in appointing the eight international and the four local judges who will sit in the Chamber.

The High Judicial and Prosecutorial Council (HJPC) played no role in picking the internationals, according to its president, Branko Perić.

Johnson in the Registrar’s office nominated candidates for international judges and HR Paddy Ashdown made the selections.

The final judge was not sworn in until May.

Bill Potter, a now retired Deputy HR said it was his job to make recommendations to Ashdown from a list of 15 to 20 names compiled by Johnson.

Johnson and Potter did not agree on all the candidates, Potter said. One nominee was overturned because he was overage by Bosnian law, two others wanted to work part time and Potter raised questions about the resume submitted by former Rwandan Supreme Court Judge Gerald Gahima , saying it showed no courtroom experience.

After Potter retired, Gahima was seated as an international judge in late March.

Selecting domestic judges for the Court has also taken time. In five rounds of applications since 2002, 498 candidates in judgeships and lawyer’s offices around the country applied for positions. The judge candidates had to be investigated and interviewed by the HJPC. There were 25 judges finally chosen and four of them were assigned to the War Crimes Chamber. As of now, the four war crimes judges and their international counterparts have no trials to run.

Effort and money has clearly gone into establishing the chamber in Sarajevo over the past year. Johnson called progress over the past 11 months “miraculous.”

Through April 2005, 12 donor countries and the European Commission, led by the United States and the United Kingdom, have given out 15.7 million of a 22-million-euro pledge to start up the chamber. The state budget provides another 7 million KM for two years but that benefits the entire State Court, not just the Chamber.

The money appears to have gone into reconstruction of the court building and a new detention center that Johnson notes went up in 76 days, and to pay international judges.

An exact accounting, however, is difficult to come by. Johnson said an independent auditor has been hired and he expected a full audit by the end of the year.

Johnson told CIN that he would provide journalists with an up-to-date financial report immediately but later decided against furnishing any financial information until the next quarterly report.

An EU embassy diplomat from one of the donor countries, who asked not to be named, said, however, that an external auditor’s report had already been done at the end of last year, and it had satisfied the diplomat’s country that their funding had been properly spent.

While Johnson emphasizes the work done in the past year setting up the administrative structure for decades of war crime prosecutions ahead, Potter suggests that Johnson has put money and time into building a slow-moving bureaucracy he calls “a mini-Hague.”

Potter said he would have preferred to see money go to hiring fewer administrators and more judges and prosecutors, with more trial experience, who would be intent on moving cases through the courts.

Local prosecutors will be reluctant enough to reopen cold cases 10 years or more after offenses may have happened, he said, and the addition of the ponderous machinery of the chamber means “a lot of these cases are just going to die.”

Potter estimated that fewer than 150 cases would ever be prosecuted.

Johnson said, however, that he had not heard one complaint about any delay or how money was being spent from the international donors. The EU diplomat said that the donor country was realistic about their expectations for the court project.

“The trials are starting later than we thought they would…” the diplomat said. “But we also prefer that the cases start when the Court is ready rather than rushing to meet a deadline for the sake of it.”

Even with judges in place, finances in shape and case files stacked on desks, operations of the War Crimes Chamber could be thwarted by a lack of money for witness protection and decent detention and prison facilities, according to BiH officials.

“The detention unit is the biggest problem,” said Justice Minister Kovač, who foresees defense attorneys trying to overturn convictions for lack of decent prison facilities. Until there’s a new prison, he said, “We can selectively take cases. Not if someone jams in 3,000 people but one case at a time to chip away at it.”

A new prison would take 20 million euro, said Kovač who has urgently requested help from potential donors.

Asked how he would find funds for the prison and other court needs by this fall when trials are to start, Kovač said, “That is the right question. Of course, I don’t have that (answer) now.”