The Impact of the ICTY on Atrocity-Related Prosecutions in the Courts of Bosnia and Herzegovina

Penn State Journal of Law & International Affairs Volume 3 Issue 1 3:1 April 2014 The Impact of the ICTY on Atrocity-Related Prosecutions in the Courts of Bosnia and Herzegovina Yaël Ronen Sha’arei Mishpat Law School ISSN: 2168-7951 Custom Citation Yaël Ronen, The Impact of the ICTY on Atrocity-Related Prosecutions in the Courts of Bosnia and Herzegovina, 3 Penn. St. J.L. & Int’l Aff. 113 (2014). The Penn State Journal of Law & International Affairs is a joint publication of Penn State’s School of Law and School of International Affairs. Penn State Journal of Law & International Affairs 2014 VOLUME 3 NO. 1 THE IMPACT OF THE ICTY ON ATROCITYRELATED PROSECUTIONS IN THE COURTS OF BOSNIA AND HERZEGOVINA Yaël Ronen* INTRODUCTION The establishment of international criminal tribunals since the 1990s has been part of a general move by the international community toward a clear condemnation of atrocities and an expression of a collective determination to end impunity. Yet the international tribunals cannot achieve these goals by themselves.1 Domestic courts are an essential component in the enforcement of international criminal law because they help to ensure that accountability does not remain the lot of an exclusive few while thousands of perpetrators walk free. Without large-scale domestic action, the international community’s message of ending impunity, as expressed in the establishment of international tribunals, would be severely undermined. This holds true for the era of the International * Yaël Ronen, Senior Lecturer, Sha’arei Mishpat Law School, Hod Hasharon, Israel. This article was written as part of the DOMAC Project, a research program funded by the Socio-Economic Sciences and Humanities Programme of the Seventh Framework Progamme for E.U. Research (FP7), 20082011. Sources include personal interviews conducted by DOMAC researches in 2008 with professionals in the ICTY and in Bosnia-Herzegovina. The identity of interviewees has been kept confidential; transcripts and related information are on file with the author. Section IV.B draws, inter alia, on an early DOMAC report by Alejandro Chehtman, later published as Developing Bosnia and Herzegovina´s Capacity to Process War Crimes Cases: Critical Notes on a “Success Story,” 9 J. INT’L CRIM. JUST. 547 (2011). I am grateful to Judge Shireen Avis Fischer, Thorbjorn Bjornsson, Rotem Giladi, Yuval Shany, Harmen van der Wilt, and the anonymous reviewers for their helpful comments on earlier versions. 1 Yuval Shany, How Can International Criminal Courts Have a Greater Impact upon National Criminal Proceedings? Lessons from the First Two Decades of International Criminal Justice in Operation, 46 ISR. L. REV. 431 (2013). 2014 Penn State Journal of Law & International Affairs 3:1 Criminal Court no less than for the experience of its ad hoc antecedents. The international and the domestic arenas are not isolated from each other. They interact both intentionally and implicitly, including through judicial bodies. The latter interaction naturally varies from one instance to another depending on the particular circumstances. Yet because the shift in emphasis from international to domestic enforcement of international criminal law is a recurring one, the question arises whether there are characteristic patterns in the institutional interaction that allow for lessons to be learned as to best practices, or, on the other hand, as to potential pit falls in future processes. This article concerns the experience in effecting this shift from international to domestic enforcement of international criminal law with respect to Bosnia and Herzegovina (BiH), namely the interaction between the International Criminal Tribunal for Yugoslavia (ICTY) and the courts of BiH. In the case of BiH, the distinction between international and domestic institutions is not self-evident. While the ICTY’s international character is beyond dispute, as is the domestic character of the ordinary courts of BiH, the classification of the federal-level BiH court dealing with international crimes is less straightforward. It was set up while BiH was under international administration, and it employs international, as well as national, judges and prosecutors. However, the source of authority of the court is domestic law; it applies domestic law, and, ultimately, will employ only national personnel.2 Thus, while at present it is best characterised as a hybrid, its terms of reference envisage an entirely domestic mechanism. For the purposes of the present article, institutions within BiH, irrespective of their provenance and composition, are therefore regarded as domestic, although the hybrid character of the federallevel BiH court will be analyzed in context. Cf. Cesare P. R. Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 J. OF INT’L L. & POL. 709, 713-14 (1999) (defining an international tribunal as one which must have been established by an international legal instrument and resorts to international law). 2 114 2014 Ronen 3:1 Sections I to III of this article are introductory and therefore brief. Section I provides a historical and institutional background to the situation in BiH; Section II recalls the international response to the mass atrocities in BiH, namely the establishment of the ICTY; and Section III reviews the domestic judicial response of BiH to the mass atrocities. Section IV constitutes the heart of the article and considers the impact of the ICTY on the domestic response to warrelated crimes through qualitative, quantitative, and normative parameters. The article concludes with a tentative characterization and assessment of the ICTY’s impact on the domestic response. This article does not purport to provide a comprehensive study of the international involvement in BiH, the significance of which cannot be overstated in the context of addressing war-related crimes. Important international processes and actors other than the ICTY, such as the Office of the High Representative (OHR) and the European Union (E.U.), have undoubtedly affected the policy and practice in BiH, arguably to an even greater extent than the ICTY. While this article is nonetheless limited to the potential trickle-down effect of the ICTY in its direct interaction with the domestic legal system, there is no doubt that political stances toward the international involvement have had an impact on the reception in BiH of the ICTY and, accordingly, on its ability to impact domestic institutions—particularly the judiciary. Arguably, whatever success the ICTY has had in influencing BiH institutions was the result of the tight control that the international community has exercised over the country, and, correspondingly, limited to the state of BiH, where it enjoyed such control. I. BACKGROUND BiH’s descent into ethnic war in 1992 was the culmination of over seven decades of pent-up ethnic animosity among Serbs, Croats, and Bosnians, nurture (...truncated)