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Transitional justice: the prosecution of war crimes in Bosnia and Herzegovina under the ‘Rules of the Road’1
Published online by Cambridge University Press: 17 February 2009
Extract
In May 1993, at the height of the wars in the former Yugoslavia, the United Nations' Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY). It did so in response to international outrage at evidence of war crimes being committed with impunity and on a scale unprecedented in Europe since World War II. The Statute empowered the ICTY to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991, in accordance with its provisions.
The ICTY was established by the Security Council rather than the General Assembly because it was thought that the situation in the former Yugoslavia was too serious to wait for a lengthy ratification process. By characterising the war as a breach of the peace, the Security Council could act immediately under Chapter VII of the UN Charter. Part of the international community's motivation in establishing the Tribunal was to prevent further war crimes being committed in the region, particularly against the people of Bosnia and Herzegovina and Croatia.
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References
3. SC Res. 827 (S/Res/827 (1993)), 25 May 1993.
4. For a discussion of the relevant principles, see SC Res. 827, paras. 18–30.
5. Art. 39 of the UN Charter provides that: ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’
6. Commentators note, however, that this objective was not altogether successful. For instance, Antonio Cassese, a former ICTY President, in a newspaper interview given to Slobodna Bosna (a Bosnian and Herzegovinian weekly) and published on 12 May 2001 said: ‘Something has happened that has surprised us all. Not only has the establishment of the Tribunal not persuaded warring factions, not only have future war crimes not been prevented, but in fact the worst crimes in Croatia and Bosnia and Herzegovina have taken place after the establishment of the Tribunal.’
7. As of 21 October 2003.
8. The ICTY's Office of the Prosecutor (OTP) has grown from an initial staff of seven in 1993 to a staff of more than 800. In total, more than 1,500 staff are employed by the ICTY.
9. Art. 9 of the ICTY Statute provides that:
(1) The International tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.
(2) The International tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.
10. In his address to the General Assembly of the United Nations on 4 November 1997, Antonio Cassese, the then-President of the ICTY said:
‘We are not capable of trying every war criminal at The Hague and it would help the tribunal in its task if there were more national prosecutions for the multiple crimes committed in the former Yugoslavia. The two approaches — international and national — should go hand-in-hand. The leaders of warring parties and other accused in command positions should be brought before The Hague Tribunal, whilst the other indictees should be tried by national courts.’
11. The discussions leading to the signing of the Rome Statement were sponsored by the international community and conducted primarily by the United States' Assistant Secretary of State, Richard Holbrooke.
12. Although Presidents Milošević and Tudjman were presidents of neighbouring states, their agreement to the Agreed Measures (a mechanism applying solely to Bosnia and Herzegovina) was on the basis of their roles as the putative leaders of the Bosnian Serbs and Bosnian Croats, respectively.
13. The Agreed Measures and the other documents comprising the Rome Agreement can be found at <http://www.un.org>.
14. The Vienna Convention on the Law of Treaties of 1969, Art. 2(1) defines a treaty as ‘… an international agreement concluded between states in written form and governed by international law…’
15. The only sanction for non-compliance with para. 5 of the Agreed Measures is procedural in nature. In the decision of Bosnia and Herzegovina Federation v. Denis Behram, Supreme Court of the Federation of Bosnia and Herzegovina, 28 May 1998, it was held that a prosecutor cannot indict a suspect unless the prosecutor first tenders to the court the ICTY Prosecutor's notification letter in which it is stated that a Standard Marking ‘A’ has been given in respect of charges against the suspect. The Bosnian and Herzegovinian courts have consistently applied this Supreme Court decision, and it has been discussed and adopted by the Human Rights' Chamber of Bosnia and Herzegovina.
16. Through its organ, the Central and Eastern European Legal Initiative (ABA-CEELI).
17. Funding countries have included the United States, the United Kingdom, Canada, Germany, Switzerland, Sweden, the Netherlands and Denmark.
18. The Rules of the Road unit's legal reviews are conducted by applying international evidentiary standards. In practice, this means that the same evidentiary standards that are applied to ICTY prosecutions are applied to legal reviews done by the Rules of the Road unit.
19. The Language Assistants receive ongoing legal training from the OTP and are able to seek advice from the unit's Legal Officers as needed.
20. The protocols of the Rules of the Road scheme provide for the following Standard Markings on review:
Standard Marking ‘A’ The evidence is sufficient to establish the specified charge.
Standard Marking ‘B’ The evidence is insufficient to establish the charges. The deficiencies in the evidence are specified.
Standard Marking ‘C’ Further evidence is required, as specified.
Standard Marking ‘D’ The Prosecutor seeks a deferral of the prosecution to the ICTY.
Standard Marking ‘E’ The alleged crime is not within the jurisdiction of the Tribunal. An alternative crime, within the domestic jurisdiction of Bosnia and Herzegovina is specified.
Standard Marking ‘F’ The evidence is sufficient to establish a specified charge. The suspect is required as a witness by the ICTY and the local prosecuting authorities are requested to take action to protect the evidence.
Standard Marking ‘G’ The evidence for the charge specified by the local prosecuting authorities is insufficient, but it is sufficient for another crime, as specified by the ICTY.
21. For instance, commenting on recent Rules of the Road funding shortage, the Prime Minister of Bosnia and Herzegovina, Adnan Terzić, was quoted as saying,
‘This is worrying news for us and I intend to speak about it at the session of the Chamber for Peace Implementation in BH. We find that the Section for the Rules of the Road is absolutely necessary in ensuring the legality of the criminal proceedings.’
‘A section of the Hague Tribunal under threat of shutting down’, Oslobodjenje (a Bosnian Herzego-vinan daily newspaper) (29 March 2003).
22. Branko Todorović, President of the Helsinki International Federation for Human Rights, Republika Srpska Branch, commented on the Rules of the Road unit's conferences in October 2001, saying:
‘… the (Rules of the Road) conferences were tasked with giving a lasting contribution towards the completion of criminal procedures in Bosnia Herzegovina against persons suspected for violations of international humanitarian law. It is expected that the ICTY will process 200–300 main agents of the tragic violence in the area of former Yugoslavia. The remaining people, surely a large number, who are under suspicion for the commission of war crimes will be subject to domestic judiciary …
Unfortunately, the courts still function as the longer arm of certain policies, rather than as the arm of justice. Some participants (of the Rules of the Road conferences) stressed the worrying fact that the politicians in Bosnia Herzegovina in various ways, and unfortunately successfully, exercise strong political control over the judiciary.
The essential question is: how could some of the local investigators, prosecutors and judges initiate proceedings aiming to establish criminal responsibility of those politicians who, during the war, participated in violations of international humanitarian law and who are, even today, in very high political positions or exercise public functions? …
The only thing we're left with is hope that the international community will very closely follow and support the activities in the Bosnia Herzegovinan judiciary, in order to punish all those who took part in the ethnic cleansing, violence and crimes. Without that, there is no future for this country.’
23. The Office of the High Representative (OHR) is the chief civilian peace implementation agency in Bosnia and Herzegovina. The High Representative is designated to oversee the implementation of the civilian aspects of Dayton in Bosnia and Herzegovina on behalf of the international community. The Steering Board of the PIC (international community) nominates the High Representative. The UN Security Council, which approved the Dayton Peace Agreement as well as the deployment of international troops in Bosnia and Herzegovina, is then required to endorse the nominee. The current High Representative of the international community in Bosnia and Herzegovina is Lord Paddy Ashdown (UK).
24. See ‘The rapist Vitko “Vili” Jokić arrested’, Oslobodjenje (12 03 2003)Google Scholar.
25. The ICTY Prosecutor's mandate given by para. 5 of the Agreed Measures is limited to a review of the prima facie evidence against a suspect, but only after the suspect has first been identified as a prosecution target. It is entirely a matter for the local prosecuting authorities as to which suspects are identified, and whose files are submitted for review. The Rules of the Road unit is not empowered to identify suspects and request local prosecuting authorities to submit particular files, and the ICTY Prosecutor does not have any other coercive powers in this respect.
26. There are ten Cantonal Courts in the Federation and five District Courts in Republika Srpska.
27. The High Representative was then Wolfgang Petrich.
28. Various Member States of the UN Security Council engaged in a public debate about the merits of establishing a War Crimes Chamber in Bosnia and Herzegovina, and expressed their ‘in principle’ approval of the Chamber, at the 4,837th and 4,838th Meetings of the UN Security Council on 8 and 9 October 2003.
29. Websites that may be of interest: <http://www.un.org>, <http://www.un.org>, <http://www.un.org>, <http://www.un.org>, <http://www.un.org> and <http://www.un.org>.