Devolving War Crimes Justice

This summer was a busy one for Balkan states struggling to fulfil the cherished dream of the tribunal handing its powers to national courts.

But these are early days and much work still has to be done. The Hague court has said it will stop work in 2008. This deadline is likely to slip to 2010 to finish the last appeals. Beyond that war crimes trials will be conducted by the nations of former Yugoslavia.

SERBIA

On July 1, Serbia's parliament passed legislation establishing a national prosecutor's office for war crimes, to be based in Belgrade. The law came into force on July 9.

Under the Serbian law, a special war crimes prosecutor is authorised to conduct proceedings against perpetrators of war crimes committed on the territory of the former Yugoslavia during the Balkan wars of the 1990s, irrespective of the citizenship of the perpetrator or victim. Vladimir Vukcevik, formerly Serbia's deputy public prosecutor, was appointed to this post on July 22. He is expected to begin work in September.

BOSNIA-HERZEGOVINA

In June, Hague tribunal president Judge Theodor Meron visited Sarajevo, where he expressed support for the creation of a war crimes chamber within the state court of Bosnia-Herzegovina and a war crimes department within the state prosecutor's office.

While Meron indicated that this court should initially be composed of domestic and foreign judges and prosecutors, he stressed that international roles must be eventually phased out.

CROATIA

Croatia's justice minister Ingrid Anticevic-Marinovic said in June that his cabinet would soon consider its own war crimes legislation and send it to parliament "as a matter of urgency".

The passage of national war crimes legislation in the Balkan states is perhaps more important than ever. Many believe that with the establishment of the International Criminal Court, the international community's willingness to fund ad hoc tribunals will likely wane.

Considering this limited time frame, the UN Security Council has instructed the tribunal to concentrate on leaders from the Balkan wars, "rather than on minor actors".

The tribunal has thus decided to turn over cases of intermediate and lower level defendants to national courts. When the tribunal closes, these courts will be left to prosecute war crimes suspects on their own.

As Judge Meron has suggested, devolving trials to local courts will bring advantages, as trials conducted near victims and crime scenes tend to resonate strongly in local communities. But before these benefits may be realised, much work must be done.

Few domestic war crimes trials have been conducted to date. Those that have gone forward have received generally poor reviews. Judges have been accused of ethnic bias. Witness protection measures have been lacking. States have refused to cooperate with one another on extradition and evidentiary matters.

Despite these shortcomings, a ready bench-mark of legal standards already exists for national courts to measure themselves against: the International Covenant for Civil and Political Rights lays out criteria that must be met for all such prosecutions.

This code includes the right to a fair trial, held in public, before an independent court. It demands that defendants have enough time and facilities to mount a defense, and guarantees them the right to humane treatment.

A more difficult question concerns funding for domestic war crimes cases in the Balkans. The states themselves were impoverished by war. The tribunal has never had so many demands on its own limited resources; it is in the midst of 56 ongoing proceedings and 18 of its indictees remain at large.

Still, the war crimes court must provide substantial backing for national prosecutions, according to former tribunal president Claude Jorda.

He told the UN General Assembly that should the tribunal refer cases to domestic courts, "we will be responsible for ensuring that these courts have the resources required so that they may accomplish their mission of justice".

Indeed, the tribunal has begun to offer support to those working on local cases. Its Outreach Programme has conducted workshops for judges, prosecutors, attorneys, and police investigators from states in the former Yugoslavia.

But more such assistance is needed, as the gulf between enthusiasm for local war crimes prosecutions and the ability of states to conduct them remains wide.

For example, 64 per cent of Serbs polled this spring supported trying indictees at home, James Fisfis, Resident Program Officer for Serbia at the International Republican Institute, told a U.S. Congressional briefing in June. But Serbia says its courts are still working at limited capacity and that it needs assistance paying the salaries and costs of its national judiciary.

If the tribunal is therefore to complete its mandate and pass on war crimes cases to national courts capable of meting out justice, it must devote a substantial amount of effort to building these courts' competencies in the months ahead.

Rachel S. Taylor, a New York-based lawyer, is Special Projects Editor for the international affairs magazine World Press Review.