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War crimes case load will fall on BiH local courts

Bosnia-Herzegovina is set to receive its first cases from the ICTY. While the new War Crimes Chamber of the Court of BiH has international judges and experts, new facilities and €16 million for two years of funding, the majority of cases will go to district and cantonal courts that are overburdened, under funded and dangerously incapable of handling these complex cases.
The state-of-the-art courtroom in the Hague Tribunal (Photo courtesy ICTY Press Office)

If Radovan Stanković cannot win the fight he is waging to stay in his jail cell at The Hague, he wants to go home – all the way home.

Judges with the International Criminal Tribunal for Yugoslavia (ICTY) at The Hague have ruled that the Bosnian Serb should face charges he enslaved, tortured and raped Bosniak women in Foča after Serbs took over the town in 1992 in a court in Bosnia and Herzogovina, not the Netherlands.

Stanković, whose case is now under appeal, is the first of 11 war crimes suspects originally scheduled to be tried by the ICTY but are now likely to be sent to BiH to face their indictments as the tribunal heads toward a 2010 shut-down.

Another 5900 suspects’ cases were sent from local courts to the ICTY to be reviewed, and have been sent back to BiH.

Most of those cases will end up in local courts. But the BiH Prosecutor’s Office will choose “highly sensitive” cases to be tried in a new war crimes chamber of the State Court located in Sarajevo and staffed by local and international judges.

The 36-year-old Stanković, indicted for holding Bosniak women and teenagers in a house in Foča, where he and other Serb officers allegedly used them for months as sex slaves, is so aware of the “sensitive” nature of his case he is fighting not just transfer out of The Hague, but also transfer to Bosniak-dominated Sarajevo. He argues that he should be tried in a local court in Trebinje in Republika Srpska (RS), which has jurisdiction over Foča, and maybe more importantly, was cleansed of non-Serbs during the war.

Stanković’s case encapsulates many of the practical and philosophical issues of this latest attempt to reconcile the deep bitterness that remains among Serbs, Bosniaks and Croats a decade after war.

By transferring war crimes trials to BiH, the tribunal has pushed onto the new War Crimes Chamber, and the lower BiH courts, multiple problems they are anxious, but not ready, to handle, according to court officials and experts.

In an 11-part series, the Center for Investigative Reporting in Sarajevo (CIN) is examining the implications of this dramatic shift of responsibility for reconciliation from the international community to BiH. The first challenge of the turn-over will be figuring out which cases should be moved out of The Hague − and where to: the untested chamber in Sarajevo or overburdened local courts throughout the country.

On top of that, the BiH courts face serious conflicts between international laws followed, even refined, in the ICTY proceedings and domestic law that threaten the court with appeals and jurisdiction battles between countries.

Other issues threatening the credibility of the new Chamber will be covered in future stories in the CIN series. The presence in lower courts of former members of the wartime military courts with its quick justice has been questioned by former defendants. A lack of resources and witnesses after 10 years leave defense attorneys and prosecutors wondering how they will protect witnesses, and produce fair trials.

War crimes were supposed to be a shared burden between the ICTY and BiH courts.

The tribunal at The Hague was set up in 1993 to show the intent of the world to punish crimes against humanity. The international court was created by the United Nations, which demanded the cooperation of the countries formed by the breakup of Yugoslavia. As the world watched, they turned over cases and suspects to the world community for final judgment.

Over 12 years, 967 million USD have gone into a tribunal that has indicted 162 people and returned verdicts on 35. The biggest and most dramatic trial, that of former Yugoslavian President Slobodan Milošević, began in 2001 and continues. Fifty other defendants await trials with dozens, including Radovan Karadžić and Ratko Mladić still at large.

ICTY spokesperson Jim Landale calls that a success.

It’s not just the numbers that must be considered, he says, but the strides made by the tribunal in holding senior leaders to account for monstrous crimes and building a body of international law on war crimes. The tribunal has helped relieve the suffering of some 4,000 victims who spoke out in its legal proceedings, and it has helped to insure that reconciliation will have a chance in the former Yugoslavia.

One side or another, Landale said, can no longer deny or change the history brought out at the tribunal.

But the tribunal is winding down. Since 2003 plans have been underway to entrust BiH and the other two combatant states with the job of trying its own war crime cases and reconciling its communities.

The returning caseload will be managed by the BiH Prosecutor’s Office but the new war crimes chamber will not have the capacity to handle most of the cases, according to state court officials. The majority of the cases will fall to the local court system, which will not receive any of the international financial support going to the Chamber in the State Court.

“It’s up to the people of BiH to find ways to solve their conflicts and demand resources to fund that (lower court judicial) process,” said Michael Johnson, the international overseer of the Chamber, and the temporary Registrar of the State Court. “This is a good lesson learned that the money spent in The Hague could have been well spent in Bosnia. I think that is the realization of the (U.N.) Security Council and the donor community.”

The people of BiH must make a long-range commitment to the Chamber and the court system if there is a real desire to deal with the war atrocities, Johnson said. One of the last WWII cases in Germany was prosecuted against an SS officer in his 90s, Johnson added.

It will take 30 to 50 years to finish the work in BiH, Johnson predicted.

To some officials, like Amir Ahmić, from the BiH Liaison Office With The Hague, the cost of running the ICTY is one of the reasons for returning the cases to BiH.

“To be running a case such as Milošević, you have to have millions of KM,” he said. “There isn’t enough money…(The ICTY) might focus on the highest level cases, and then they would dump the middle and lower level ones on whichever jurisdiction would take them.”

What is certain is that by 2010 the ICTY will be out of business and BiH will be trying war crimes cases for decades to come after that. And just what cases, the ICTY will play a large role in deciding.

The ICTY has decided to send three suspects’ cases, already underway in the tribunal, to the new BiH Chamber. It is still considering sending an additional eight suspects to BiH.

Stanković, was the first defendant ordered transferred, and the transfer has not gone smoothly.

Landale explains that this is to be expected since judges are being extremely cautious and making sure all protections are in place to insure fair and competent trials for defendants sent out of the Dutch court. While ICTY judges have sent the case back to BiH, the former soldier is appealing and arguing that he does not want to be tried in Sarajevo.

His former attorney Milenko Radović has pointed out his client was “a plain soldier and the gravity of the act, in comparison to some other ongoing proceedings before the Trebinje court, is much less.”

Branko Perić, president of the High Judicial and Prosecutorial Council (HJPC), agrees.

“This will set a bad precedent, which may create distrust of the public if we start prosecuting less important cases at the state court, while the cantonal courts are trying more difficult ones,” he said. “This will be also bad for the credibility of the state court.”

Branko Todorović, president of the Helsinki Committee for Human Rights, said sending Stanković’s case to the RS judiciary would be a mistake. The entity, he maintains, is not ready or capable of handling war crimes. Since 1996, he notes, the RS judiciary has issued only one verdict in a war crimes case and didn’t issue its’ first indictment until 2003.

But most of the cases headed toward BiH are either partially investigated or as yet uninvestigated allegations, which must be reviewed.

The ICTY found that many of the allegations it received from the BiH judiciary dating from the war and right after it were weak. They were filed out of motives of revenge and political retribution and many lacked the kind of evidence that prosecutors needed to take them to trial.

“The truth is that there were at times ridiculous situations,” said Florence Hartmann, a spokeswoman for the ICTY Prosecutor’s Office, “like one neighbor filed a complaint against another neighbor and similar things.”

In 1996, the ICTY made guidelines to evaluate allegations and avoid locally biased complaints. BiH agreed to send the cases to the ICTY for review before locally indicting any suspects.

By the end of September, 2004, the ICTY’s special review unit had sent back cases involving 3,490 people. The unit found that there was sufficient evidence to proceed against 865 of the suspects while the investigation of 2,375 produced no evidence. The rest needed more investigation.

The ICTY’s review unit closed last September in anticipation of transferring war crimes control to BiH. The BiH Prosecutors office took over responsibility, including the cases of 2418 people originally sent to The Hague that the ICTY never got around to looking over.

To avoid a deluge of cases in the new Chamber, the BiH Prosecutor’s office started its own review process, according to BiH’s Chief Prosecutor Marinko Jurčević.

Prosecutors have been working for the last several months reclassifying all the cases into categories of “highly sensitive,” serious cases which would be dealt with by the state-level Chamber, and “sensitive,” which would go back to local courts where the cases originated years ago.

The prosecutors are even re-reviewing the cases already done by the ICTY unit.

Prosecutors have stacks of files from lower courts, so many that they have been unable to count them, according to officials in the BiH Prosecutor’s Office.

In all, Jurčević said there are a total of 10,000 peoples’ names that have been reported for war crimes by someone, somewhere, in the BiH justice system.

Many of the cases are based on evidence that was not legally collected, and those cases will have to be reinvestigated, adding to the prosecutors’ burden, Jurčević added.

Sorting the real cases from the bad is a huge undertaking. Trying them is even a bigger challenge. Over the past nine years, BiH courts have handled 92 cases.

Lower-level courts are hard-pressed to handle their current workloads, much less take on more work, according to prosecutors and officials surveyed by CIN throughout the country. Courtrooms are decrepit. Prosecutors and judges in some towns spend personal money to buy court supplies or cover telephone bills. They can only dream about witness protection measures.

At the start of 2005, cantonal and district courts were coping with 82,866 pending cases, 5,748 of them criminal cases. Basic and municipal courts are saddled with another 1,272,682 cases, according to the 2004 annual HJPC report.

HJPC President Perić is bleak about the quality of justice when delay is inevitable.

“We have a number of cases which will remain pending even up to five years. What does a five years away justice mean for the country and the society? The guilty defendants are pleased when the courts are not efficient.

“Now we’re waiting even for war crimes,” he said, “and we don’t know how many of those will be there and how will they be done.”

Johnson, the Registrar, said that if lower courts don’t get the resources they need, “It’s a credibility issue for BiH, which falls at the feet of all of us who are helping BiH.”

Even after the issue of what war crime cases to take up, and where to try them, are dealt with, experts say BiH will face other difficulties.

The country’s legal provisions are not in sync with the international laws that ICTY prosecutors are pressing.

Under the criminal codes in effect in Yugoslavia at the time of the war, a commander could be held accountable only if he directly ordered killing or other criminal acts. The Statute of the Hague Tribunal, in contrast, maintains that any person in charge of a unit responsible for a war crime is also responsible even if he was not physically present and had no knowledge of the crime.

BiH has amended its laws to be in line with the ICTY, but that only accounts for future acts. New laws are not normally applied to actions in the past, said Branko Lukić, a Belgrade attorney, whose client ICTY defendant, Momčilo Gruban, may be transferred to the new BiH chamber.

Alma Džaferović, a Tuzla prosecutor, said “The bottom line is that it is very difficult to prove that responsibility.” The chief problem is finding evidence that a commander might have known something was going on even in his absence.

Another legal puzzle to be unraveled is what will happen to witness testimonies given in criminal proceedings to the ICTY when cases move back into courts in the Balkans.

Croatia and BiH have announced that they will accept these testimonies, but Serbia and Montenegro has not taken any stand, according to Human Rights Watch.

International oversight over war crime cases will not shut down when the ICTY closes. The OSCE intends to monitor all cases that are moved back to national courts.

But more importantly, the people of Bosnia-Herzegovina will be watching these trials.

Hatidža Mehmedagić, 53, who went back to her Srebrenica home after the war, said she will be watching to see that “all the war criminals who took part in the war crimes are arrested, those who gave orders, those who carried out the crimes, when they are brought before the face of justice.”

Kada Hotić, her former neighbor, now living in Sarajevo, said even just identifying criminals means a lot to her. “If nothing else, people will be spelled out as criminals. At least accused, if not charged. It is not important for me whether Karadžić and Mladić are in prison, are convicted,” she said. “They have to hide.”

Jurčević, the prosecutor, agreed that it will be the effort far more than the numbers or the results that will make a difference toward reconciliation of old enemies. “Because of the Hague tribunal we now have the Chamber here,” he promised, “and we will carry on the job of war crimes prosecution.”


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