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

In recent years, state authorities have taken further steps to address this issue. 895 In
February 2009 the SDWC adopted draft guidelines for selecting cases for prosecution before
the BWCC that flesh out the barebones criteria set forth in earlier policy statements while
nonetheless avoiding rigid standards. 896 As a foundation for implementing its selection guidelines,
the SDWC has also been working to establish a comprehensive database of all wartime
atrocities and potential defendants, as well as a database of all war crimes cases that have been
instituted before any Bosnian court. 897
Now, fifteen years after the armed conflict in Bosnia came to an end, the need to finalize
and implement the SDWC’s selection strategy is more urgent than ever. As one of our Bosnian
interlocutors noted, when it comes to cases before the BWCC “time is not an ally,” because
many witnesses have already died while others are growing reluctant to testify. 898 “It’s not that
they don’t want to see justice satisfied,” he explained, “they do.” But “this situation is taking
way too long,” and many fear that appearing as a witness in cases before the state court can
disrupt the new lives they have begun to build. 899
5. Lessons for the future
a. Planning a role for domestic courts from the outset
In view of the achievements of Bosnia’s War Crimes Chamber and Special Department for War
Crimes in the Prosecutor’s Office of BiH, the question must be asked: Could the international
community have done more sooner—in particular, before pressure mounted on the ICTY to
hand off lower-level cases to domestic courts—to prepare Bosnian courts to prosecute war
crimes cases fairly? We raise this question not to criticize the ICTY in hindsight, but rather in
the hope of guiding future policy decisions concerning the relationship of international and
domestic courts.
A number of our Bosnian interlocutors believe, in the words of Mirsad Tokača, that
“a local partner” for the ICTY “should have been developed much sooner.” 900 Tokača faults
the Peace Implementation Council, the High Representative, and other international actors
who “ignored this for a long time,” saying “everything will be realized by the ICTY.” 901 In a
December 2006 interview, Nerma Jelačić, then a journalist covering the BWCC for the Balkan
Investigative Reporting Network (BIRN), told us that she too believed the chamber could have
been established earlier, though perhaps with a more heavily international nature, and asked,
“What if you had created it in 2000? Imagine where you would be in 2006.” Where you would
be, Jelačić continued, is “farther along in ending impunity.” 902
In Jelačić’s view, the costs of delay are substantial. Among other tolls, “the passage
of time has allowed some beliefs to become more concrete;” now, it is “harder to change
attitudes.” 903 Nidžara Ahmetašević, the editor of BIRN Bosnia and Herzegovina, agrees that
planning for the war crimes chamber could have taken place sooner. Had this happened, she
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