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

Responding to a question about the Berkeley/University of Sarajevo study during a
July 2009 interview, Damir Arnault, a senior advisor to the Bosniak member of the Bosnian
Presidency, suggested that its “anti-imperialistic instinct” was well meaning but misplaced.
“Some of these [judges] are incompetent. These courts were trying to do war crimes cases and
they just couldn’t do it.” 732 Interviewed the same week, a representative of the Bosnian Serb
government, Jovan Spaić, did not say anything that would call Arnault’s assessment into question.
Instead, he offered various explanations for why investigating judges in Republika Srpska
did not aggressively pursue war crimes cases during or in the years after the 1990s conflict,
none of which even hinted at the harmful effects of the Rules of the Road process. In Spaić’s
view, “It would be hard to expect … judges to operate so soon after the war when everything
was so unstable, people were moving; it would have been hard to make witnesses come.” 733
The perceptions of Bosnian jurists who participated in the Berkeley/University of Sarajevo
study should, moreover, be placed in context. At the time that study was conducted,
Bosnian judges felt “beleaguered” as a result of well-founded criticism from a wide range of
international actors as well as “pressure from those within, particularly politicians and criminal
elements who act with impunity.” 734 (Indeed, a former judge, Vehid Šehić, told us that
he resigned from his position as a judge in the District Court of Tuzla in 1994 because the
judiciary was at that time in the thrall of a “political climate” inimical to war crimes prosecu-
tions.) 735
The real question, then, is not whether the ICTY can fairly be blamed for the troubling
record of Bosnian courts in prosecuting war crimes during the first half of the Tribunal’s life.
Instead, it is whether a different approach by relevant international actors—and here, the ICTY
would not be the logical lead actor736 —could have been more effective in helping prepare the
Bosnian judiciary to mount credible war crimes prosecutions sooner. We come back to this
question at the end of this chapter.
B. Creating a National Partner 737
After years of stagnation, Bosnia’s courts became the focus of ramped up international reform
efforts in the early 2000s. The reform that followed was far-reaching, and included comprehensive
vetting of the country’s judges and prosecutors as well as the replacement of an
inquisitorial with an adversarial criminal procedure. 738 The ICTY’s prosecution office played
an important role in this vetting process. 739
By 2002-03 the reforms also included key steps toward the establishment of a domestic
war crimes chamber within a new Court of Bosnia and Herzegovina. 740 This facet of broader
judicial reform efforts received significant impetus from the ICTY, which was coming under
pressure to plan for an eventual hand-off process. With this, the ICTY’s relationship with
Bosnian courts underwent a major transformation.
THAT SOMEONE GUILTY BE PUNISHED 113