THE MILLION DOLLAR QUESTION

By: Erna MACKIC:

The International Community has made it clear how it thinks the members of the BiH House of Representatives should vote when it comes to extending the mandates of foreign judges and prosecutors in Bosnia and Herzegovina.

The House of Representatives of the State Parliament of Bosnia and Herzegovina is due to discuss the mandate of international judges and prosecutors at its session on Wednesday, September 2. After that it will make a final decision on the issue, which has generated controversy in recent months.

According to the exit strategy of the Court of Bosnia and Herzegovina, the mandate of international judges and prosecutors expires in December 2009. Back in 2004, when these two institutions were created through a Decision issued by the High Representative, it was hoped that five years would be sufficient for the local judiciary to become self-supporting and strong enough to resist political pressure.

In addition to the War Crimes Chamber of the Court and Prosecution of Bosnia and Herzegovina, international judges and prosecutors are deployed with the Special Chamber for Organized and Economic Crime and Corruption.

At the end of 2007 the State Court and its Prosecution publicly appealed for the extension of mandates of some international judges and prosecutors. As part of this initiative, a proposal was made to have international judges stay as members of the appellate chambers of the War Crimes Chamber beyond 2009. The proposal also supported, in principle, the stay of international prosecutors with the State Prosecution beyond the end of 2009.

Irrespective of the recommendations made by the management of the State Court and its Prosecution, in early July this year the Council of Ministers of Bosnia and Herzegovina adopted a decision rejecting the proposal made by the Ministry of Justice of Bosnia and Herzegovina, which had requested the extension of mandates of international personnel.

A month and a half later the Council adopted another proposal, extending only the mandates of international judges working with the second-instance chambers and prosecutors working with the Special War Crimes Section.

According to the same proposal, international judges “may only be involved in cases which were ongoing prior to the enactment of this law”.

The data used by the Council of Ministers indicates that there are five cases in which international judges are involved.

Local politicians do not have a unified stand on the issue. Some advocate that international staff should be kept on because if their mandates are not extended the State Court and the Prosecution will face obstacles in their work. Their opponents contend that the international staff should leave since they “have not demonstrated a sufficient level of knowledge” in individual cases.

The Parliamentarians will discuss the Council of Minister’s proposed amendments to the Law on Court and Prosecution, which would extend only the mandates of international judges with second-instance chambers and prosecutors with the Special War Crimes Section, until December 31, 2012.

Principal Deputy High Representative Raffi Gregorian told BIRN – Justice Report that “the Bosnian Parliament should use the opportunity and correct the current situation”. Gregorian believes that if this does not happen the decision of the State Council of Ministers will result in “preventing the efficient work of the judicial system in Bosnia and Herzegovina”.

“Javier Solana, the senior representative of the European Union, and members of the Steering Board of the Peace Implementation Council clearly expect the Bosnian authorities to fulfill the requests made by judicial institutions of this country,” Gregorian said.

Representatives of the International Community in Bosnia and Herzegovina generally support the stay of international experts without any change to their current mandates. Well-informed sources say that if the parliamentarians’ decision is not in line with this, the Office of the High Representative, OHR, may intervene.

For a long time, the ambassadors of some countries that belong to the Peace Implementation Council, whose citizens work in Bosnia and Herzegovina as judges and prosecutors, have led a public campaign for the mandates to be extended, and have lobbied actively for this at closed-door meetings with policymakers. However, they have been reticent about speaking out immediately before the matter is debated in Parliament.

The Dutch Embassy, for example, told BIRN – Justice Report that it will not respond to questions about the mandate of international legal experts in BiH. However, the position of the Netherlands on the issue is clear.

“The Netherlands Embassy in Bosnia and Herzegovina supports the approach and hopes of the High Representatives for a reasonable and responsible reaction of the local authorities in Bosnia and Herzegovina,” an Embassy statement said.

UK Ambassador Michael Tatham said the international judges and prosecutors “play a vital role in increasing efficiency and strengthening capacities of judicial institutions, as well as reinforcing the establishment of the rule of law in Bosnia and Herzegovina.”

In a media statement Tatham said he hoped the Parliamentary Assembly “will give a positive consideration of the stands of local judicial institutions, which have publicly said that they would like to see the mandates of international judges and prosecutors extended.”

Assistant Professor from Simon Fraser University Lara Nettelfield believes that the international judges and prosecutors should remain, and that “their departure should be based on the status of the local judiciary, which will be checked by using objective criteria and not by sticking to arbitrary dates”.

Intentional attempt to create chaos
“The changes and amendments adopted by the Council of Ministers simply do not comprise all requests made by the President of the State Court, the Chief Prosecutor of Bosnia and Herzegovina and the President of the High Judicial and Prosecutorial Council,” Raffi Gregorian said, adding that “the Council of Ministers has intentionally waited until the last moment, hoping the international judges and prosecutors will leave the country and abandon their cases.”

The Court of Bosnia and Herzegovina has already made some preparations for a scenario in which the mandate of international judges is not extended. To this end, all chambers sitting at new trials consist only of local judges.

The State Prosecution says that the departure of foreign prosecutors will create huge problems, adding that “a legal blockade” may also occur. It further points out that even if new prosecutors are employed, these prosecutors will need time to familiarize themselves with complex war-crimes cases.

“Not only have the authorities failed to secure resources needed for employment of local personnel to replace the international staff, who have been financed by international donors and not taxpayers in Bosnia and Herzegovina, but they have decreased the budget for the judicial sector,” Gregorian said.

The Deputy High Representative said these moves by the Bosnian authorities constitute “an intentional attempt to create chaos in the field of the judiciary and further delay the fulfillment of justice”. He added that the proverb “justice delayed is justice denied” is in danger of coming true in the case of Bosnia and Herzegovina.

“There is no doubt that this is political interference in the judiciary and the application of the law,” Gregorian said.

Victory declared too soon
Lara Nettelfield said the international community had made developing the rule of law a priority rather late in the postwar recovery process. For instance, the War Crimes Chamber was established just four years ago. Nettelfield added that key issues such as compiling a countrywide and comprehensive database of war-crimes cases will be tackled only in the coming months.

“It seems that the international community declared victory too soon. At the same time, the political forces that would like to see war-crimes go unpunished have gained power. When prosecutors announce the opening of an investigation against some powerful perpetrators, they actually start a personal campaign against the stay of international prosecutors and judges. No wonder they do that. We have seen the same strategy being applied in many fields in the post-Dayton period,” Nettelfield told BIRN – Justice Report.

Gregorian points out that the decision by the Council of Ministers and the State Parliament will affect Bosnia and Herzegovina’s progress towards the European Union, which lays out clear requirements in the fight against crime and corruption.

Under the proposal to be discussed by the Parliamentarians foreign prosecutors will not stay at the Section for Organized and Economic Crime and Corruption of the Prosecution of Bosnia and Herzegovina.

“I should like to hear the Ministers’ explanation as to why they have disregarded the recommendations made by Mr. Solana and the Steering Board of the Peace Implementation Council to extend the mandate of international judges and prosecutors. That’s the million dollar question, and the public in Bosnia and Herzegovina has the right to hear the answer – whose recommendations have the Ministers taken into consideration if not the ones made by domestic judicial officials or high-ranking international officials supporting Bosnia’s ambitions to joint Euro-Atlantic integration?” Gregorian said.

When asked whether the Office of the High Representative would us its Bonn Powers in relation to the mandate of international judges and prosecutors, Gregorian declined to comment.

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