That Someone Guilty Be Punished - International Center for ...

But if his words seemed to invite states to exercise jurisdiction, Judge Cassese’s message
was more likely directed at Western European countries that were capable of prosecuting
fugitives from justice rather than courts in the Balkans. Noting “the huge number of potential
cases and the fact that many defendants may find themselves in countries whose authorities are
willing and prepared to bring them to justice,” Judge Cassese explained that “it was felt it would
be salutary if national courts exercised their jurisdiction under their own legislation or on the
strength of the 1949 Geneva Conventions.” 697 For good reason, courts in Bosnia-Herzegovina
and elsewhere in the former Yugoslavia were not seen as credible partners in the ICTY’s
project of justice during its early years. When the ICTY was created in May 1993, the war in
Bosnia was in full rage—hardly an ideal setting for impartial and secure prosecutions of those
responsible for depredations still underway. While Bosnian courts undertook a limited number
of war crimes prosecutions even before the conflict ended, these were widely and strongly
criticized by independent observers. 698 Indeed, Bosnia’s Human Rights Chamber later found
“[m]any of the trials” 699 processed by local courts in this period to have been unfair.
Particularly in the immediate aftermath of Dayton, there were powerful disincentives
for Bosnian courts to hold credible war crimes trials. Until 2003, such trials were held before
cantonal and district courts in the two entities and before the Basic Court in Brčko. 700 Entity
courts “would only have jurisdiction over individuals of their own ethnic group—whom they
did not want to subject to criminal prosecution,” 701 and there was not yet a state-level court
that could transcend the partiality of these courts.
While Bosnian courts were particularly ill-suited to render impartial justice for wartime
atrocities, the 1990s conflict had wider implications for Bosnia’s judiciary, shattering a
system that was already burdened by the legacy of its communist tradition. The Organization
for Security and Cooperation in Europe (OSCE) described the Bosnian judiciary in the early
years of peace this way:
[The] loss of skilled members of the legal profession and the judiciary, as well as the
physical destruction and lack of proper equipment or facilities significantly hampered
the ability of the courts to administer justice properly or efficiently. … Outdated and
inadequate procedural laws contributed to the inefficiency of the system. The loss of
many pre-war judges resulted in the judiciary and prosecutors’ offices, in different parts
of the country, being dominated by the majority ethnicity. New, inexperienced judges
and prosecutors were appointed on ethnic and political grounds. The prosecution of
war crimes, in particular, ineffectual investigations, excessive and systematic delays in
the resolution of trials and dubious decisions, compounded by a lack of public faith in
the judicial system, brought into serious question the applicability of the rule of law. 702
Far from seeking to encourage war crimes prosecutions by Bosnian courts in the years
immediately following Dayton, then, the international community was instead more concerned
about “[t]he possibility of arbitrary arrests and unfair trials” there. 703
THAT SOMEONE GUILTY BE PUNISHED 109