BOSNIA RISKS ‘JUDICIAL CHAOS’ IF FOREIGN JUDGES LEAVE

By Erna Mackic: Judge Kreso, writing in the draft version of the war crimes processing strategy, said the judicial transition process “does not exclude … the possibility of extending the mandate of a number of international judges and prosecutor, owing to their significant contribution in working on those [war crime] cases”. Chief Prosecutor Barasin, meanwhile, warns that the premature departure of international prosecutors will create “huge problems”.

If the mandates of international judges and prosecutors are not extended, some trials conducted before the War Crimes Chamber may have to restart – although they are in their final stages – BIRN – Justice Report has learned.

As part of the so-called “exit strategy” of the Court of Bosnia and Herzegovina, their mandates are due to expire this December.

Besides trials before the War Crimes Chamber, the same fate may befall cases conducted before the Special Section for organized, economic crimes and corruption of the Prosecution of Bosnia and Herzegovina. This Section is also a part of the State Court.

Meanwhile, members of victims’ groups, the judicial profession and politicians disagree over whether the mandates of international judicial officials need to be extended.

Some favor extension and others firmly disagree – usually depending on whether they come from the Federation or the Republika Srpska.

Those in favor of extending the mandates include Meddzida Kreso, President of the State Court, and Milorad Barasin, Chief Prosecutor of the State Prosecution, as well as ambassadors and representatives of donor countries that cooperate with these institutions. They have called for changes to the law to extend the mandate of international judges and prosecutors.

Judge Kreso, writing in the draft version of the war crimes processing strategy, said the judicial transition process “does not exclude … the possibility of extending the mandate of a number of international judges and prosecutor, owing to their significant contribution in working on those [war crime] cases”.

Chief Prosecutor Barasin, meanwhile, warns that the premature departure of international prosecutors will create “huge problems”.

New prosecutors would have to be hired who would need “time to adapt” to their new functions, he says. The result could be “a judicial blockade”.

Mirsad Tokaca, president of the Research and Documentation Center, which monitors the war crime trials conducted before the Court of Bosnia and Herzegovina, agrees.

“International judges and prosecutors need to stay here to enable us to transform our institutions into an independent judiciary,” he says.

Back to Square One:

The Court of Bosnia and Herzegovina and the Prosecution supported an initiative to extend the mandates of a number of international judges and prosecutors at state level after the transitional period expired back in 2007.

The proposal was for judges to remain in the appellate chambers of the War Crimes Chamber beyond 2009, and for international prosecutors also to remain with the Prosecution beyond 2009.

But early in June 2009 the Council of Ministers of Bosnia and Herzegovina rejected the Ministry of Justice’s proposal.

BIRN – Justice Report has learnt that the Justice Ministry is now conducting “consultations, concerning the preparation of a new proposal”.

The ministry still believes international judges need to remain in second-instance chambers of the State Court, dealing with war-crime cases only.

If the ministry’s proposal is rejected again some trials conducted before the Court of Bosnia and Herzegovina, may have to restart, even though they are in an advanced stage.

“In cases that have lasted for a long time already, involving international judges, the State Court is undertaking the necessary measures to close them in a timely manner, i.e. before the mandates of the international judges expire,” the State Court said. “If a trial is not completed by then, the Court of Bosnia and Herzegovina will act upon the Law on Criminal Proceedings.”

However, if the Law the Criminal Proceedings Code is applied, those cases would be restarted because the international judges will have left the Trial Chamber before the pronouncement of the verdict.

This may happen in the case of Gojko Klickovic, Mladen Drljaca and Jovan Ostojic, charged with crimes against humanity in the Bosanska Krupa area from April to December 1992.

The Prosecution accuses the three men of taking part in a joint criminal enterprise that began in the summer of 1991. The trial of Klickovic and others began in April 2008 and the first witnesses for the defence of the first indictee are only now being examined. The defence has said it intends to examine more than 50 witnesses.

The trial of Vinko Kondic, Bosko Lukic and Marko Adamovic may also have to start again. The trial of these three, charged over crimes committed in the Kljuc area during 1991 and 1992, began in September 2008. The prosecution is still presenting evidence.

Should the international judges leave and the Bosnian Criminal Code be implemented, the trial of six indictees charged over crimes committed at Koricanske stijene would also have to start from the beginning.

The trial began in March and the Prosecution is still presenting evidence.

A trial for the mass slaughter of thousands of Bosniaks in Srebrenica in 1995 may also have to restart.

Momir Pelemis, former Deputy Assistant Commander and Chief of Staffs of the First Battalion with the Zvornik Brigade, and Slavko Peric, former Assistant Commander for Security, are charged with genocide.

The prosecution is currently presenting evidence at this trial, which began in March.

If the mandate of international judges is not extended, the trial would also have to restart in the case of Nisvet Gasal, Musajb Kukavica, Enes Handzic and Senad Dautovic, charged with committing crimes against Croats in the Bugojno area. The trial began in February 2008. The Prosecution of Bosnia and Herzegovina is still presenting evidence.

The Court of Bosnia and Herzegovina told BIRN-Justice Report that it had undertaken certain preparations if the international judges’ mandates are not extended, with the aim of reducing the number of trials that would have to start again.

They explained that new cases were now being assigned only to “chambers consisting of local judges”, for example.

In two cases now conducted before the Court of Bosnia and Herzegovina, only local judges are involved. One pertains to war crimes committed in Rogatica, for which Stojan Perkovic is being charged. The other refers to the trial of Mehur Selimovic, Adil Ruznic and Emir Mustafic, for crimes committed in Bihac, Cazin and Bosanski Petrovac.

Views of Bosniaks and Serbs Differ:

The Prosecution maintains that if international prosecutors involved in war crime cases leave, new prosecutors will have to be hired. These, Barasin says, would then need time “to adapt” to the new roles.

“I think the mandate of international judges and prosecutors will [have to] be extended, or a legal blockade will happen,” Barasin told Justice Report.

But opinions differ among attorneys involved in war crime cases conducted before the Court of Bosnia and Herzegovina.

Attorney Senad Kreho told Justice Report that he felt international judges and prosecutors should stay, “not because we do not have good quality local judicial staff but because the indictees come from both entities [and because] local judges and prosecutors were [usually] with one or other of the conflicting parties during the war”.

On the other hand, attorney Radivoje Lazarevic says that he is not impressed by the international judges and prosecutors; local judges and prosecutors should be given a chance. “I think that international judges and prosecutors do not have a better knowledge than local judges,” Lazarevic maintained.

The views of victims on the stay of international judges and prosecutors with the State Court and its Prosecution also differ sharply.

Bakira Hasecic, president of the Association of Women, Victims of War, says the departure of international judges and prosecutors would mean that the victims themselves would have to emigrate.

“Not one war crime perpetrator would have been punished without the international judges and prosecutors,” she says. “We should not let politics interfere with the mandate of international judges and prosecutors.”

Hasecic insists that NGOs and victims’ associations will “raise their voice and call for the international judges and prosecutors to remain”.

However, Branislav Dukic, president of the Association of Detainees of Republika Srpska, takes the opposite view, accusing the foreign judges of bias against Serbs.

“The foreign judges and prosecutors only want to have crimes committed against members of one people [the Bosniaks] tried, in order to create dissatisfaction among the three constituent peoples in Bosnia and Herzegovina,” he says.

“If we want people in Bosnia and Herzegovina to live together, crimes committed against Serbian people have to be processed as well,” Dukic adds.

Meanwhile, on his visit to Bosnia in June, Patrick Robinson, President of the Hague Tribunal, said that international judges and prosecutors should remaining Bosnia, because they “still have a crucial role” in protecting the integrity of the judiciary.

Mirsad Tokaca agrees; the stay of international judges and prosecutors, in particular those working with the War Crimes Chamber and the Prosecution, “is no longer an issue of expertise but of [political] independence.

“International judges and prosecutors cannot be pressurized by politicians,” he maintains. “Their stay, that is the extension of their mandates, guarantees our transition to an independent judiciary.”

Tokaca said the Office of the High Representative, OHR, should exercise the so-called “Bonn” powers on the issue if local politicians fail to agree on an extension of mandate of the prosecutors.

The OHR, for its part, says that it supports the proposal of Judge Kreso and Chief Prosector Barasin to extend the mandate of international judges and prosecutors.

“These two key institutions of an independent Bosnian judiciary have the best possible opportunity to assess their needs in and what needs to be done in order to strengthen the rule of law in Bosnia…,” the OHR told Justice Report.

The Management Board of the Peace Implementation Council, PIC, comprising the big powers involved in maintaining the peace in Bosnia, takes the same line.

The PIC “encourages the Bosnian authorities to affirm their commitment to strengthening the rule of law by taking the necessary steps in order to extend the mandate of international judges and prosecutors, by giving positive consideration of the recommendations made by the Hague Tribunal and taking into consideration the stands expressed by local judicial institutions,” the PIC said in a statement to the public.

Erna Mackic is BIRN – Justice Report journalist. [email protected] Justice Report is online weekly BIRN publication.