Court Working to Preserve Legacy

Tribunal is taking steps to help former Yugoslav courts continue its work once it closes in 2010.

By Denis Dzidic in Sarajevo (TU No 560, 18-Jul-08)

The Hague tribunal is carrying out legacy projects intended to assist Balkans states when they take over all war crimes prosecutions in two years.

Tribunal president Judge Fausto Pocar and Ambassador Christian Strohal of the OSCE Office for Democratic Institutions and Human Rights, ODIHR, signed an agreement in May to cooperate on a joint project to provide support for national judicial authorities in the former Yugoslavia.

This initiative, along with a similar project established in April with the UN Interregional Crime and Justice Research Institute, UNICRI, will identify the tribunal’s best practices since it was established in 1993.

Observers say such projects are essential for creating a record of the court’s accomplishments, as well as lessons learnt from its work.

Court spokesperson Nerma Jelacic said the tribunal had set many precedents and accomplished a great deal in the field of international criminal law – achievements which should be treasured.

“The UNICRI project is about transferring best practices [to the Balkans courts] – essentially, the experiences of the tribunal in dealing with complex cases,” she said.

“It will highlight the priorities of national authorities in the years to come and provide a model for other international courts in determining how to support domestic institutions effectively.”

The OSCE project, meanwhile, will assess the success of the court’s training and outreach work.

As the tribunal is preparing to wind down, the projects are timely, say analysts.

“Due to the approaching deadline for the closure of the [tribunal], the opportunity to conduct the ‘lessons-learned’ process will exist for a limited period of time,” said Jens-Hagen Eschenbaecher, spokesperson for the OSCE Office for Democratic Institutions and Human Rights.

“It is therefore important to ensure that the institutional memory of both organisations is retained, while the experience is still fresh in the minds of staff, partners and interlocutors.”

Experts believe the legacy work could help promote the progress made by the tribunal in advancing international criminal law.

However, professor of history at the University of Michigan Robert Donia said that while the Hague court has improved attitudes towards international humanitarian law, it must ensure that all documentation – including all the evidence presented – is made accessible to the public.

“Although it is not too late, the tribunal has to date proven to be far from transparent, and the value of its contributions are little understood by the global public,” said Donia, who has appeared as an expert witness at the Hague tribunal.

The projects are designed to tackle this lack of understanding, as well as to establish effective communication between the tribunal and national justice systems.

“Upon completion of the [UNICRI] project, conferences will take place and will be aimed at transferring the practices of the tribunal to all those involved in war crimes cases. UNICRI will organise the conferences and local and international jurisdictions will be invited to these events,” explained Jelacic.

The OSCE project will run a series of workshops and carry out interviews with the tribunal, OSCE, national justice professionals and members of civil society to learn from their experiences and see what suggestions they have.

According to Eschenbaecher, this will help enhance the manner in which war crimes cases are handled at the national level after the closure of the Hague court.

While the final timetable for the projects has not been set, the initial analytical phase is expected to take between nine and 12 months, after which reports will be completed and recommendations made.

“It is crucial that such recommendations are based on a systematic and comprehensive analysis of the current situation in order for the resulting proposals to be as effective as possible for supporting our national colleagues,” said Eschenbaecher.

André de Hoogh, a senior lecturer in international law at the University of Groningen, said there is no doubt the tribunal case law will serve as a persuasive authority for both domestic and international courts.

However, he believes the tribunal’s legacy will depend on whether national courts choose to follow its lead, adding that there is no doctrine which binds domestic court to the decisions of international courts.

Donia said that local courts prosecuting war crimes in the region have looked to the work of the tribunal.

“The tribunal has sharpened the meaning of genocide in international law and fostered the principle of individual rather than group responsibility for major crimes. This is now bequeathed to courts in the region, which have been established following the [tribunal] model in many ways,” he said.

There is a widespread belief, especially in Bosnia, that it is too early to asses the tribunal’s legacy.

Dalida Demirovic, president of the Mostar-based Centre for Civil Initiatives, said this will only be possible after the Hague court closes.

“We will only see in the future how much the tribunal will assist the local courts with its experience and capacities.”

Denis Dzidic is an IWPR-trained journalist in Sarajevo.