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

Herzegovina, 46 Colum J. Transnat’l L. 279, 313 (2008). Citing an OSCE report, Burke-White writes
that “more than 2,300 cases sent to the ICTY were never reviewed and lost in administrative limbo.”
Id. This appears to be an inference, as the OSCE report notes without comment that the ICTY Rules
of the Road unit received criminal files against 5,789 people since the program began, and by the
time it ended “reviewed and [made determinations] against a total of 3,489 persons.” OSCE, War
Crimes Trials before the Domestic Courts of Bosnia and Herzegovina; Progress and Obstacles, p. 6 (Mar.
2005). In a December 2006 interview, then War Crimes Prosecutor for BiH Vaso Marinković told
the Justice Initiative that “The Hague” had transferred more than 300 cases that it had not reviewed
before the Rules of the Road program ended. Interview with Vaso Marinković, head of SDWC,
Sarajevo, Dec. 4, 2006. Burke-White suggests that the ICTY not only lacked the resources and
substantial incentive to clear cases for prosecution by Bosnian courts, but in fact had a disincentive
to do so lest domestic prosecutions “should interfere with a case presently before or potentially to
be brought by the international court.” Burke-White, supra, p. 317. Others suggest that the numbers
of unreviewed cases cited above are incorrect. David Tolbert and Aleksandar Kontic write: “W. W.
Burke-White … claims that more than 2300 cases sent to the ICTY were never reviewed and were
lost in administrative limbo …. In fact, this is not accurate. First, the ICTY Prosecutor transferred
all of the un-reviewed Rules of the Road files to the POBiH in October 2004 …. Moreover, Burke-
White incorrectly cites the relevant OSCE report … by apparently confusing the number of cases and
number of persons who were the subject of those Rules of the Road cases sent to the OTP. In fact,
during its existence the Rules of the Road Unit received 1,235 case files regarding 4985 suspects. A
total of 5,868 Standard Markings were issued for 3,360 suspects (some cases involved more than
one suspect and certain suspects were allegedly involved in multiple crimes). Apparently, he subtracted
the number of suspects from the number of standard markings and thus determined that
some 2,300 remained unexamined. Instead, the salient number is that approximately 1,235 case
files were provided to the OTP, of which 1072 were reviewed, leaving approximately 163 case files
not reviewed; this is a far cry from 2,300. Moreover, as noted above, these were all handed over to
the POBiH, not sent into some kind of limbo.”
722. Interview by William W. Burke-White with Biljana Potparić-Lipa, then president of the State
Court of Bosnia and Herzegovina, Sarajevo, Aug. 9, 2005, quoted in Burke-White, supra, p. 314.
723. Human Rights Center, International Human Rights Clinic, University of California, Berkeley,
and Centre for Human Rights, University of Sarajevo, Justice, Accountability and Social Reconstruction:
An Interview Study of Bosnian Judges and Prosecutors, p. 36, at http://www.law.berkeley.
edu/files/IHRLC/Justice_Accountability_and_Social_Reconstruction.pdf. The study noted that one
Bosnian Serb judge expressed satisfaction with the ICTY’s treatment of him, asserting: “Everything
I did was accepted by the Tribunal with no objections.” Id., p. 37. It is difficult to know how to
interpret this, however, as only two cases approved for prosecution by the ICTY under the Rules of
the Road process had reached the trial stage in RS courts, according to a report published in March
2005. OSCE, War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina; Progress and
Obstacles, p. 6 (March 2005).
724. Paul R. Williams and Patricia Taft, War Crimes Research Symposium: The Role of Justice in
Building Peace: The Role of Justice in the Former Yugoslavia: Antidote or Placebo for Coercive Appeasement?,
35 Case W. Res. J. Int’l L. 219, 253-4 (2003). In larger perspective, Williams and Taft believe
that, put into place at a time when the ICTY itself had indicted only a handful of suspects, the Rules
of the Road process “severely limited the role of justice” for atrocities committed in Bosnia. Id. at
188 NOTES