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

This is not to minimize the ICTY’s role in creating the BWCC and ensuring its effective
operation. 884 Yet the Bosnia experience highlights an important lesson for other contexts in
which international courts may play a role in addressing mass atrocities. Specialized courts
may play a necessary and essential role in prosecuting certain cases but their capacity will
always be limited. Accordingly, planning for prosecutions should always take account of the
role that regular courts ultimately should play in complementing their work.
Just as important, the ICTY’s experience highlights an important lesson that the SDWC
failed to take on board in its crucial start-up years: Specialized war crimes bodies like the
ICTY, the BWCC, and the SDWC will surely be faulted if they devote their finite resources to
prosecuting comparatively low-level suspects. Just as the ICTY was faulted for taking on comparatively
low-level cases in its earlier years—a misstep eventually addressed in part through
the vehicle of 11 bis transfers—the SDWC’s early indictments have drawn wide criticism. 885
The pith of this criticism is that the SDWC has failed to develop a coherent approach to
determining the cases it will prosecute886 and those it will refer to district or cantonal courts
for prosecution. 887 The Collegium of Prosecutors of BiH took a first cut at this question in
guidelines adopted in late 2004. Under those guidelines, the Court of BiH would try “highly
sensitive” cases, while “sensitive cases may, contingent upon the discretion of the Chief Prosecutor,
be remitted for trial to the cantonal and district courts.” 888 It quickly became clear, however,
that the criteria of “highly sensitive” and “sensitive” provided scant practical guidance.
Two years after these criteria were adopted, Branko Perić, then president of the HJPC,
stated bluntly, “The prosecutor’s office doesn’t have a strategy.” 889 According to Perić, the state
prosecutor had “taken over more than 100 war crimes cases from cantonal courts, … and then
they were overloaded with cases they can’t solve” given the SDWC’s finite capacity. 890 In his
view—one that is widely shared—many of the cases taken over by the state court included
comparatively low-level suspects, which should be left for prosecution by cantonal and district
courts. 891
Delays in developing clear and principled criteria for selecting cases has left victims to
wonder why their own cases did not merit prosecution at the state level while other victims’
cases did. 892 In a country starkly divided along ethnic lines, the seeming lack of neutral principles
for selection has needlessly provided further grist for Bosnian Serbs’ recurring charge that
case selection is fueled by ethnic bias. 893 (Reflecting the fact that Serb forces committed the
largest proportion of war crimes, the SDWC has indicted more Serbs than Bosniaks or Croats.)
Closely related to the importance of finalizing appropriate criteria for the selection of
cases and ensuring that these are understood by the Bosnian public, the SDWC needs to make
a realistic assessment of the number of cases it will be able to prosecute, prioritize its caseload
accordingly, and manage public expectations about what it can realistically achieve. Otherwise,
it risks repeating a major misstep by the ICTY—devoting substantial resources to prosecuting
comparatively low-level cases in its early years and then having to readjust its caseload in the
face of finite time. 894
128 IMPACT ON DOMESTIC WAR CRIMES PROSECUTIONS