Brussels must do what it can to stop Bosnian Serb leaders from undermining the country’s state court.

by David Tolbert

The War Crimes Chamber of Bosnia’s State Court, the Court of Bosnia and Herzegovina, is one of the most successful undertakings when it comes to addressing the legacy of mass atrocities and to bringing the perpetrators to justice in national courts.

It serves as a model of international assistance, which has been used to create institutions capable of addressing complex cases of serious crimes in countries where systematic and widespread violence occurred.

As this important institution finds itself under serious threat, the European Union must act quickly to put a stop to attempts of the Bosnian Serb political leadership to undermine both this court and Bosnia’s capacity to prosecute war crimes at state level.

The War Crimes Chamber was established in 2005 to ensure that war-crimes proceedings were conducted free of political or ethnic bias. The record of this institution and the model, in which international judges and prosecutors work alongside Bosnian counterparts of all ethnicities, is viewed internationally as an important example of best practices.

This court received the vast majority of cases transferred by the International Criminal Tribunal for former Yugoslavia, ICTY, to local judiciaries in the Balkans. It has completed these trials in accordance with international standards, as monitored and assessed by the Organization for Security and Co-operation in Europe, OSCE. To date, the War Crimes Chamber has issued final verdicts in more than 80 cases of war crimes, crimes against humanity, and genocide, making it one of the most effective national institutions of its kind in the world.

With the advent of the International Criminal Court, ICC, as a court of last resort equipped to deal only with those most responsible for international crimes, responsibility to comprehensively combat impunity falls primarily on national courts. The War Crimes Chamber is widely recognized as a model of success in the ongoing discussion on how to ensure successful complementarity between national judiciaries and the ICC.

However, the State Court has been under severe political pressure for some time now, primarily from the political leadership of Republika Srpska, one Bosnia’s two administrative entities.

A sustained campaign to undermine the court’s work has included budget cuts, the stalling of the National War Crimes Strategy—a system envisaged to complete the majority of Bosnian war crimes cases within 15 years—and a relentless campaign of public attacks. This onslaught has now culminated in the demand by Republika Srpska’s parliament to have the court abolished.

The call for dissolution of the State Court is being justified by the decision of the state prosecutor to terminate an investigation into the May 1992 attack on a Yugoslav Army convoy by Bosnian government soldiers in Sarajevo.

The proposed course of action envisages transfer of current state jurisdiction to the courts in Republika Srpska, which would be given resources to “ensure that crimes against Serbs are properly prosecuted”.

The statements validating this dangerous campaign parrot identical attacks by Serb nationalists directed over the years at the ICTY—“the court is anti-Serb; it is trying to re-write history and blame Serbs for majority of committed crimes”, which we naively believed to be rhetoric of times that passed with the Milosevic regime.

In April 2011, the World Bank issued its World Development Report, WDR, which for the first time places massive human rights abuses and transitional justice at the heart of its analysis of conflict, and links them directly with development and security.

The findings are clear: transitional justice measures—such as criminal prosecutions of perpetrators of atrocities—can be crucial tools to prevent the recurrence of cycles of violence. Governments can restore civic trust by indicating a break with the past, in addition to performing basic tasks such as ensuring citizen security and promoting employment.

Bosnia is possibly one of most documented examples of how development and security are directly linked to society’s capacity to achieve accountability and justice for the crimes of a recent conflict. Republika Srpska’s actions against the State Court and the return to wartime rhetoric of ethnic mistrust and stereotyping—on the rise in all Bosnian communities—speak of dynamics diametrically opposite to those prescribed by the WDR. This is of direct concern to all in Bosnia and Herzegovina and the region, but also to the European Union, which continues to support Bosnia in its effort to join the EU.

The EU is actively engaged in the discussion of how to make the principle of complementarity between the ICC and national judiciaries work effectively. In view of this, it is high time Brussels sent a clear message that any intent to undermine Bosnia’s capacity to bring war criminals to justice is not acceptable in the EU or anywhere else. Pursuit of such agenda will not lead Bosnia and Herzegovina to the EU; on the contrary it threatens to lead to a very different outcome—one of instability and dangerous uncertainty where politicians direct the courts.

David Tolbert is president of the International Center for Transitional Justice and former Deputy Prosecutor of the ICTY.