That Someone Guilty Be Punished - Open Society Foundations

elieves, Bosnia could have gone farther, sooner in “fac[ing] the past”—which she is convinced
is “the only way for us … to look to the future.” 904
Others insist that the BWCC could not have been established sooner. When asked
whether he agreed with one assessment, described below, which identified 1998 as a year of
lost opportunity to begin the process of bolstering domestic capacity to prosecute war crimes,
the chief prosecutor of BiH emphatically disagreed, saying “it was not possible at all” in view
of the prevailing security situation and political will at the time. “Even today everybody is trying
to destroy this court,” he noted. “If it had been established sooner, it would never be operational.”
905 In similar fashion, civil society leader Tarik Jusić considers suggestions that the
BWCC could have been established sooner to be “absurd,” and notes: “That it actually works
and there are no bombs are amazing. Ten years ago this would have been unimaginable.” 906
Judge Meddžida Kreso, president of the Court of BiH, insists that it was “impossible to
transfer cases sooner” but offers a different reason, citing the absence until several years ago
of the legal framework and institutions needed to support the BWCC. 907 Branko Perić, former
president of the HJPC, made much the same point, saying he did not believe “domestic courts
were capable of handling war crimes cases before January 1, 2005.” 908
Edin Ramulić, a survivor of the infamous Omarska camp in Prijedor who helped found
the victims’ association Izvor, agrees that “it was impossible to create the state court sooner,
before these [judicial] reforms occurred.” 909 But he recognizes that this point begs the question
whether comprehensive judicial reform could have occurred sooner. In his view, the
international community “would have initiated [judicial] reforms sooner” if the ICTY had “not
been there as an excuse.” 910 With the ICTY operating in The Hague, however, and with other
international actors involved in postwar Bosnia facing a long list of urgent and demanding
priorities—among them, securing the return of refugees and addressing housing needs—
judicial reform “wasn’t on the list” 911 and “a few very important years were simply lost.” 912 But
while Ramulić believes that the very existence of the ICTY delayed judicial reform by creating
the “illusion that the Tribunal would solve the problem on its own of all the war criminals,”
he adds that the BWCC “would not have been established” at all if the Hague Tribunal had
never existed. 913
Damir Arnault, a senior advisor to the Bosniak member of the Presidency, has a somewhat
different take on the question but ends up close to Ramulić’s view. He notes that even
in 2004, it was impossible to create the Court of BiH “through the will of political elites” in
Bosnia. Instead, laws establishing the Court and Prosecutor’s Office of BiH, respectively, were
imposed by the High Representative that year. Because this action did not rest upon on the
support of Bosnian leaders, Arnault reasoned, “It’s not clear why the High Representative
couldn’t have done this sooner.” Indeed, he continued, in some respects the High Representative’s
action was “riskier in 2004” than when NATO forces were in Bosnia “in force in the
1990s.” 914 “The question,” Arnault concluded, “is whether you could convince governments
to give money for the project sooner.” After all, the ICTY “was just beginning to do its work”
130 IMPACT ON DOMESTIC WAR CRIMES PROSECUTIONS