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

face” in having to seek international approval to proceed, a process they found “shameful.” 722
The sense of shame inherent in this process was, according to a study by the human rights
centers of Berkeley University and the University of Sarajevo, compounded by the ICTY’s poor
communication with some of the jurists who submitted files for approval. Based on interviews
with “thirty-two Bosnian judges and prosecutors with primary or appellate jurisdiction for
national war crimes trials” in 1999, this study reported that:
ICTY officials failed to keep their Bosnian colleagues informed of the status of the [Rules
of the Road] investigations, even in response to direct inquiries. … A judge reported
that after having submitted twenty-five case and waiting eight months, the ICTY had
not responded. Other judges and prosecutors stated that they too had submitted files
several years before and had received no communication … These professionals viewed
the ICTY as unresponsive and detrimental to the ability of Bosnian courts to conduct
national war crimes trials. 723
Several observers share the jurists’ judgment that the Rules of the Road process inadvertently
contributed to Bosnian courts’ protracted inability to play a major role in war crimes
prosecutions. The overall impact of the Rules of the Road process, in two writers’ words, was
to “shut down all efforts by Bosnian government authorities to utilize justice to remove war
criminals from powerful post-war positions.” 724 Believing that the process of seeking ICTY
approval had a demoralizing effect on Bosnian prosecutors, Burke-White draws a link to Bosnian
courts’ desultory performance in respect of cases cleared for prosecution by the ICTY.
Of the 846 cases in this category, 725 Burke-White notes, “only fifty-four (11%) had reached trial
stage in domestic courts by January 2005.” 726
But it would be unfair to lay primary or even major blame for the Bosnian judiciary’s
failures at the ICTY’s doorstep. 727 As noted earlier, by all accounts the Bosnian judicial system
suffered serious, systemic problems as it emerged from the wreckage of armed conflict as well
as from a deeper legacy of communist rule728 and these were hardly limited to war crimes
prosecutions. A November 2000 report by the International Crisis Group squarely laid blame
for the abysmal record of follow-up by courts in Republika Srpska on the nationalist structures
in which they were embedded: “A number of war crimes cases have already been referred by
The Hague to local courts and more can be expected,” the ICG wrote, “but these cases have
simply shown up the inability of the Bosnian justice system, as presently constituted, to handle
war crimes cases.” 729
Years after the Rules of the Road program ended, moreover, courts in Republika Srpska
have been slower than courts in the Federation in bringing war crimes suspects to justice. 730
While the district prosecutor’s office in Banja Luka has been proactive in prosecuting war
crimes cases, 731 it is typically described as an exception to the general rule.
112 IMPACT ON DOMESTIC WAR CRIMES PROSECUTIONS