By Denis Dzidic
Legal experts have criticised the UN decision to set up an international "Residual Mechanism" to process the Hague Tribunal's two remaining fugitives, Ratko Mladic and Goran Hadzic.
They say it appears to reflect suspicions in the international community concerning the two men's ability to secure a fair trial in the region.
Representatives of the International Criminal Tribunal for the Former Yugoslavia, ICTY, and the Court of Bosnia and Herzegovina dispute this interpretation.
They maintain that the international community has already shown that it respects the professional work and high standards of criminal proceedings of courts in the region.
But disagreement about what the new body means has continued.
While representatives of Serbia and Bosnia and Herzegovina maintain that questions about the capacities of courts in these countries have not affected the UN decision, Croatia's head of cooperation with the ICTY said the UN clearly had taken this factor into consideration when making its decision.
The UN Security Council adopted a resolution last December establishing the Residual Mechanism, tasking it with continuing the ICTY's work after that court's expected closure.
The mechanism allows the basic functions of the ICTY to continue beyond the parent court's demise. The resolution defines the new body as a "small, temporary and effective structure, whose functions and size will be reduced over time".
The Residual Mechanism will have the power to prosecute persons against whom the ICTY issued indictments and who are arrested after the ICTY closes, as well as other persons seen as obstructing the implementation of justice.
It will also have the power to review judgments, oversee the enforcement of sentences and decide parole.
According to plan, the Hague Tribunal will stop in 2014, after which the Residual Mechanism will have an initial term of four years, which can be extended every two years.
Mladic, former commander of the General Staff of the Army of the Republic of Srpska, is indicted for genocide and other grave crimes in committed in Bosnia and Herzegovina during the 1992-war war.
Hadzic, a former leader of the wartime Serbian entity in Croatia, is indicted with a number of crimes committed in eastern Slavonia, Croatia. Both men are still on the run.
Lack of confidence:
"I think the UN lacks confidence in the capacity of the local judiciary to deal with these cases [about Hadzic and Mladic], and of course there is also doubt about the impartiality [of local courts] in such big cases," said Sluiter.
Alexander Knoops, a professor of international criminal law at the University of Utrecht, agrees. The UN will "have to explain its decision to the public," he said.
"It's possible that the formation of the Residual Mechanism shows a lack of confidence in local courts because such a mechanism is not necessarily a better option for the prosecution of Mladic and Hadzic than the courts in the former Yugoslavia," Knoops added.
This concern is also shared by Peter Robinson, the defence lawyer for Radovan Karadzic, the former president of the Republika Srpska now on trial before the ICTY.
"It's always better that trials are conducted in the locality where the crimes were committed and that trials are conducted in communities that are the most affected," he said.
"The attitude of the UN, that a Residual Mechanism is needed to prosecute the remaining two fugitives, must be based on a conclusion that Serbian leaders like Mladic and Hadzic cannot get a fair trial in the courts in Bosnia and Herzegovina and Croatia," Robinson told BIRN-Justice Report.
But representatives of the ICTY itself and the Court of Bosnia and Herzegovina dispute the truth and the validity of such a conclusion.
They say Bosnia's State Court has proved already that is amply qualified and mature enough to judge complex war crimes cases.
Medzida Kreso, president of Bosnia's State Court, argues that the decision to set up a Residual Mechanism was probably made to "prevent potential misunderstandings with regard to the jurisdiction of the prosecution of the two fugitives.
"Even if the Residual Mechanism was not established, the Court of Bosnia and Herzegovina would probably not be able to prosecute these persons because it's unrealistic to expect that they'll be arrested on the territory of Bosnia," she told BIRN-Justice Report,
"If they were arrested in another state in the region, that state would certainly retain the right to prosecute them", she noted. "If they were arrested on the territory of a third country... it would [also] be a huge struggle for us to extradite them to Bosnia", Kreso added.
Amir Ahmic, Bosniak liaison officer with the ICTY, produces similar reasoning, arguing that the prime reasoning behind the Residual Mechanism "is to prevent obstruction of the work of the [Hague] tribunal by Serbia.
"I don't think it's about lack of confidence [in Bosnia's courts]," he added.
"The aim of The Tribunal was to bring the accused to justice. What would be the message if the tribunal did not succeed in its task? The message would be: 'If you hide yourself well and enjoy the protection of a state, you can commit genocide and never answer for it.'"
Were the Hague Tribunal to close before completing its task and have no successor, "it would be the end of the story of international justice", Ahmic continued.
On behalf of the ICTY, the court's Department of Information said that the Hague Tribunal would consider its mandate unfulfilled if it did not have the opportunity to prosecute Mladic and Hadzic if and when they are finally caught.
This was not to be seen as casting any reflection on the region's own courts. The tribunal maintains "a positive attitude regarding the courts in the region," the department said, in a statement.
The departments for cooperation with the ICTY in Serbia and Croatia also express diverging views on the issue.
Gordan Markotic, in charge of Cooperation with International Criminal Courts for Croatia, said that the formation of the Residual Mechanism clearly denoted "a lack of confidence in the courts of the countries in the region and the fact that they are burdened with numerous war crimes trials".
On the other hand, Dusan Ignjatovic, head of Serbia's National Council for Cooperation with the Hague Tribunal, defends the move as rational. "It's important that the remaining two fugitives face an international trial chamber," he said.
"That alone will not dispel objections to these proceedings, which we've heard for years now... but there would certainly be far fewer complaints against trials before an international court than if such cases were ceded to any national courts in the region," Ignjatovic said.
UN 'risking its credibility':
Professor Knoops expressed other concerns about the Residual Mechanism as a "small, temporary... structure, whose function and size would be reduced by time".
He fears that the reduced capacity of such a body will inevitably have a negaitve impact on the indictees's defence rights. This in turn would "make the trial unfair and have a negative impact on the credibility of the court," he said.
"On the other hand, reducing the capacities of the prosecution could lead to problems in proving any charges against the two fugitives. In this way, the UN would be risking its own credibility as an institution," Knoops added.
To prevent this, Professor Sluiter said that the UN Security Council must ensure that the new body has sufficient money and other resources.
"If it comes to arrests, this body will immediately have to increase the number of staff," he said. "If there aren't enough staff to make preparations, each trial could last ten years," Sluiter suggested.
Ahmic, Ignjatovic and Markotic, as well as Peter Robinson, do not agree.
They believe that the Residual Mechanism, even with reduced capacity, will maintain the ICTY's professional level and ability to deal with complex cases.
"If it comes to the trials before the Residual Mechanism, the indictee should have the same rights to defence as he does before the ICTY," Robinson maintained.
But Knoops is still skeptical. Even the current structure of the ICTY "can barely cope with the complexity of war crimes cases," he said.
"I doubt such a reduced Residual Mechanism could be able to prosecute the complex cases awaiting it, if it comes to the arrest of Mladic and Hadzic," he added.
Answers to some of these questions and doubts may come in June. That month, the UN Secretary General is due to draw up the procedure rules for the Residual Mechanism, as well as determining where its headquarters will lie.
