BIRN Conference, Sarajevo, 10 November 2005
"In pursuit of justice: An overview of progress in the transitional justice system of Bosnia and Herzegovina"

Dear colleagues, Ladies and Gentlemen,

It was not long ago – in March – that the War Crimes Chamber of the Court of Bosnia and Herzegovina was inaugurated and we all applauded this development. The first war crimes indictments have been issued by the Court and one ICTY case (Stankovic) was transferred to this Chamber. While the results are modest, thus far, certainly, this is just a beginning.

It is important that Bosnia and Herzegovina, finally, has a legal forum at the state level to deal with war crimes, in close partnership with the ICTY – in partnership against impunity. Together with the special Courts for war crimes in Croatia and Serbia, the Sarajevo based War Crimes Chamber has joined this important legal battle for truth and justice. My Office with the resources available to us we will continue to assist this process.

Expressing our appreciation and gratitude to the organisers of this conference – namely, the Institute for War and Peace Reporting and Balkans Investigative Reporting Network – I wish to emphasize importance of the correct, fair and well-informed media coverage of the war crimes trials, be it in The Hague or in Sarajevo, Belgrade and Zagreb. Without stepping on journalistic turf, which is supposed to be also independent of political interference and pressure, allow me only to stress couple of points.

First, the right of the public to receive correct and well informed coverage of the trials and pre-trial proceedings. Second, respect of the court proceedings and rules which govern confidentiality of court documents and witnesses. And, third, the need for independent and, again, well-informed, critical analysis of such trials and proceedings (not based on politics or sensationalism, but with a view of pointing to possible inaccuracies, mistakes or even injustice).

Not a single institution is beyond criticism, including the ICTY. But it is very important that this public scrutiny has the same goal as judicial institutions – justice for the victims and proper trials and punishment for the perpetrators.

Returning back to my turf, I wish to say that my Office and staff have been in close co-operation with Mr. M.Jurcevic’s Office and prosecutors since the establishment of the Court of BH. Last year (in October-November) we transferred all authority over the Rules of the Road files/ cases to the national jurisdiction, namely to the office of the State Prosecutor. Also last year, we initiated the process of transferring some of the ICTY’s cases under the Rule 11 bis to the national courts. Presently, out of 12 applications we received 5 positive decisions (involving some 10 accused) of the Tribunal’s Referral Bench – 4 of them for the transfer to the War Crimes Chamber in Sarajevo. The first ICTY case (that of Radovan Stankovic) was fully transferred to Sarajevo: the accused himself – on 29 September; the case itself was handed over – on 1 October.

We also will be transferring other files to the state Court Prosecutor, where no indictment has been issued at the ICTY, but where we have conducted an investigation. It will then be up to the State Prosecutor to decide how to handle these cases.

Speaking about the transfer of cases, we had to face an unexpected problem, which placed a serious burden on my Office and our resources. The form of the transfer was suddenly in dispute – while we were ready to transfer the case in the electronic form, easy and searchable, the national prosecutors – prompted by the national legislation and the firm position of the national judges – insisted on the transfer of the hard certified copies of Tribunal’s documents. In a relatively small case of R.Stankovic it was about 14,000 pages for printing and stamping. Larger cases will be more difficult to handle. I would like to think that it is possible to find more flexible solutions, including, if needed, by amending national law. We do not have such problems with Belgrade and Zagreb.

Apart from that, my Office is continuously in touch with colleagues – prosecutors from Sarajevo. On a number of occasions prosecutors and judges of the Court of BH visited the ICTY, had working meetings and actually worked with the Tribunal’s evidence, its database. We responded to almost all of 34 requests for assistance from our colleagues-prosecutors of the state Court and Cantonal courts this year alone. Following the necessary deliberations, a specific Memorandum of Understanding, regulating mutual assistance, requests and exchange of information, was signed on 2 September 2005 between the OTP and Mr. Jurcevic’s office.

In furtherance of our co-operation a number of international prosecutors in the Sarajevo Court received licences for remote electronic access to the so called EDS – Evidence Disclosure Suite of the ICTY (which is now normally used before the Tribunal for disclosure of evidence to the defence). The licensing of such access is within the powers of the Registrar of the ICTY, and obviously has to be limited for technical and security reasons. However, in my view, it would be beneficial for the whole process of domestic war crimes prosecutions if, in due course, more licenses are made available to the national prosecutors working on the Rule 11 bis cases and other important war crimes cases.

As I said, this is just a beginning for the War Crimes Chamber, while we are more concentrated on achieving successful "finale" of the Tribunal’s mandate. My Office and Tribunal in general will remain of assistance to the national courts in facing the task of bringing war criminals to justice. I know that it will not be easy, but I hope, and indeed I have already seen, that the national prosecutors are really full of energy and resolve to get things moving, to get the job done. The legacy of the ICTY and its jurisprudence will be of great assistance to the Court of Bosnia and Herzegovina.

My appeal to the colleagues – prosecutors and Judges of the War Crimes Chamber to always keep in mind that the war crimes trials must be victim oriented/ victim-driven, that the prosecutions must be credible and fair and seen as totally a-political, which is of tremendous importance for the witnesses. These trials will have to fight against deeply embedded prejudices, public misconceptions, unsettled grievances and probably political interference. It is also of the utmost importance that a credible and effective witness protection system be in place so that witnesses can testify with confidence and without fear of retribution. My appeal to the colleagues is to stay firm and calm in face of problems and obstacles, as here you have the luxury of no dead-lines to complete the task and no UN administration over your head. And the Law is on your side.

At the same time, clearly, a new legal culture is necessary. The war crimes cases, with all their sensitivity and complexity, with their political implications and constant media attention, must be handled with utmost caution. It is absolutely inappropriate and unacceptable to speak about criminal investigations or evidence collected in the course of investigations through the media, press-conferences, before an indictment is confirmed, issued and made public.

Another aspect – individual responsibility. Crimes committed should have their authors with a face and name. This is the only way to stop collective accusations and hostility between the national groups. In a war one can easily find a criminal among "defenders" or a victim among "aggressors" and vice-versa. My message is – there shall be no credit given to a "defender" if he killed or ordered killing of innocent civilians, while there shall be no more severe punishments for the other side only because somebody belonged to "aggressors". All shall be equal in front of the court of law, and severity of punishment shall be only proportionate to severity of crime.

My wish is that the criteria of success for the War Crimes Chamber in Sarajevo should be the same for all and simple – victims must be satisfied, as they were in hundreds of thousands, and their suffering must be addressed in the first place. Interests of the warring parties, mainly of political nature, should be of no interest for the Court.

Thank you.

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Courtroom proceedings can be followed on the Tribunal’s website.