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

in the late 1990s, as it finally began to secure custody of indicted suspects. In this setting,
governments might have seen efforts to build a domestic war crimes court as a “ploy to get
around the ICTY” just when it was finally becoming truly effective. 915
In a somewhat similar vein, Fidelma Donlon, a former head of the OHR’s Criminal
Institutions and Prosecutorial Reform Unit and former deputy registrar of the Court of BiH,
believes that key donors’ already substantial financial contribution to the ICTY may have contributed
to the international community’s tardiness in preparing domestic courts to handle
war crimes cases: donors thought their existing contributions were sufficient. 916 Additionally,
she writes, “many diplomats misconstrued the Rules of the Road agreement” in ways that led
them to “believe that there were procedures in place to address problems with national trials,
when in fact there were not.” 917 “With the benefit of hindsight,” Donlon concludes, the Peace
Implementation Council’s 1998 meeting, in which it addressed the need for judicial reform
but failed to address war crimes prosecutions in particular, was a lost opportunity to “comprehensively
audit the work of the national authorities in relation to war crimes cases and develop
a strategy to combat impunity.” 918
It is of course impossible to know whether the international community could have
made greater headway in preparing Bosnian courts to handle war crimes prosecutions had it
made concerted efforts sooner. What seems relatively apparent, however, is that “there was
no clear strategy” about judicial reform for years, and “a lot of time was wasted.” 919 At the very
least, the experience in Bosnia highlights the risk that the operation of an international court,
however necessary, may induce an unwarranted complacence when it comes to domestic
courts.
More broadly, the Bosnia experience highlights the crucial importance of recognizing
early on that any international court can try only a small fraction of those responsible for mass
atrocities and national courts must be adequately prepared to play a major role in providing
justice. If the need for effective local partners became clear only when the ICTY was pushed
to contemplate winding up its work, in the future this point should be clear from the moment
that an international court becomes involved in prosecuting mass atrocities.
During an interview in March 2007, ICTY Judge Wolfgang Schomburg drew the same
conclusion. Noting that “the ICTY is only one wheel in the entire machinery” of transitional
justice, he said that “one of the most important lessons to be learned … in the future, when
establishing an international tribunal, is that you must take care to ensure that a functioning
judiciary worth its name be established at the same time in the area, i.e. capacity building
from the outset.” 920
b. The role of international actors
While the best approach for bolstering domestic courts’ capacity to undertake complex war
crimes cases depends on the particular circumstances of each context, the model forged in
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