Journal of International Criminal Justice Advance Access originally published online on April 13, 2006
Journal of International Criminal Justice 2006 4(2):258-282; doi:10.1093/jicj/mql015
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War Crimes Prosecution in Bosnia and Herzegovina (1992–2002)
An Analysis through the Jurisprudence of the Human Rights Chamber
* Respectively the former Registrar and a former lawyer in the Registry of the Human Rights Chamber for Bosnia and Herzegovina, Sarajevo. The authors wish to thank Mr Jakob Möller and Mr Christopher Harland for their valuable comments on an earlier draft. Any mistakes or other shortcomings remain of course the authors' sole responsibility.
[ugarms{at}yahoo.com; katja_peschke{at}yahoo.de]
The authors examine the efforts to bring persons suspected of war crimes committed during the 1992–1995 war in Bosnia and Herzegovina (BiH) to justice before the national judiciary. The analysis is based on the case law of the Human Rights Chamber for BiH, which from 1996–2003 was the highest court competent to adjudicate violations of human rights in post-war BiH. The Chamber heard complaints linked to war-time atrocities from two main perspectives: (i) that of persons put on trial for war crimes and (ii) the perspective of the relatives of war-crimes victims complaining about the failure to investigate and prosecute. The Chamber cases establish that (a) the few prosecutions which took place were nearly exclusively directed against suspects belonging to the war-time adversary, (b) the authorities failed to comply with the Rules of the Road (a procedure put in place to enable the International Criminal Tribunal for the former Yugoslavia (ICTY) to supervise Bosnian war-crimes prosecutions) and (c) suspects were often severely ill-treated to extort confessions and denied a fair trial. The rule, however, was the lack of any investigatory or prosecutorial action, with the exception of the so-called ‘ethnically mixed’ Cantons of the Federation of BiH, where proceedings were sometimes initiated but failed to yield an appreciable outcome. The authors discuss three reasons for the poor record: (i) ethnic bias among the authorities, (ii) disempowerment and passivity of the victims and (iii) failure to enact legislation that would give effect to and clarify the BiH side of the obligation to exercise jurisdiction concurrently with the ICTY. They finally set forth some suggestions on lessons to be learned for future attempts to bring justice to a war-torn society by the concurrent exercise of criminal jurisdiction by an international court and the judiciary of the country in transition.