The domestic influence of international criminal tribunals: The international criminal tribunal for the former Yugoslavia and the creation of the State Court of Bosnia & Herzegovina

Columbia Journal of Transnational Law

Volumn 46, Issue 2, 2008, Pages 279-350

  Burke White, William W ^a,b,c  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

^b HARVARD LAW SCHOOL   (United States)

^c UNIVERSITY OF CAMBRIDGE   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 39649105923     PISSN: 00101931     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (321)

1. For a discussion of the justifications of using international criminal tribunals to punish international crimes, see MARK DRUMBL, ATROCITY, PUNISHMENT AND INTERNATIONAL LAW 59-70, 149-180 (2007).
2. See, e.g., Jose E. Alvarez, Crimes of States/Crimes of Hate: Lessons From Rwanda, 24 YALE J. INT'L L. 365, 414 (1999) (noting that "[e]ven if one concedes that present Rwandan procedures for trying perpetrators are fundamentally flawed, it is appropriate to ask whether enough attention and resources have been devoted, internationally, to assisting local Rwandan processes as have been to the creation and ongoing efforts of the ICTR. What would have been the state of Rwandan justice today if, instead of spending between forty and fifty million dollars a year on the ICTR, comparable sums of money and effort had been put into assisting the Rwandan government in overcoming the enormous obstacles it faced in the pursuit of criminal accountability?").
3. Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities? 44 (Hofstra U. Sch. L. Legal Stud. Res. Series, Res. Paper No. 06-22, 2007) (noting that international tribunals "will often enable politicians in weak states to escape accountability and avoid making hard policy decisions in the context of a crisis").
4. For a report examining some of the ICTY's early failures, see Expert Group, Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, U.N. DOC. A/54/634 (Nov. 22, 1999). For a critique of the inability of the International Criminal Tribunal for Rwanda to enhance capacity there, see generally Alvarez, supra note 2.
5. The argument presented here is based on an in-depth evaluation of the interactions between the ICTY and Bosnia & Herzegovina. The primary data analyzed herein derive from documentary analysis and more than fifty interviews conducted in 2005 and 2006 in Sarajevo and Mostar, Bosnia & Herzogovina, The Hague, Netherlands, and New York, N.Y. with government officials, national judicial personnel, international legal officials, and both local and international NGOs. The interview findings were supplemented and corroborated with key documents made available by Bosnian governmental institutions, the ICTY, the United Nations, and various NGOs. For a discussion of the basic techniques used in qualitative interview analysis, see Jody Miller and Brian Glassner, The "Inside" and the "Outside": Finding realities in interviews, in QUALITATIVE RESEARCH, THEORY, METHOD AND PRACTICE 99-111 (David Silverman ed., 1997);
6. Janice M. Morse, "Emerging from the Data": The Cognitive Processes of Analysis in Qualitative Inquiry, in CRITICAL ISSUES IN QUALITATIVE RESEARCH METHODS 23,35 (Janice M. Morse ed., 1994).
7. For domestic legal analogies, see JOHANNES ANDENÆ S, PUNISHMENT AND DETERRENCE (1974) (providing a traditional account of the logic of criminal deterrence);
8. DETERRENCE AND INCAPACITATION: ESTIMATING THE EFFECTS OF CRIMINAL SANCTIONS ON CRIME RATES (Alfred Blumstein, Jacqueline Cohen & Daniel Nagin eds., 1978) (examining how punishments impact criminal behavior).
9. For an application to the work of the ICTY, see Payam Akhavan, Beyond Impunity: Can International Criminal Justice Deter Future Atrocities, 95 AM. J. INT'L L. 7, 12 (2001) (observing that "the threat of punishment may persuade potential perpetrators to adjust their behavior");
10. Jan Klabbers, Just Revenge? The Deterrence Argument in International Criminal Law, XII FIN. Y.B. INT'L L. 249, 251 (2001).
11. For discussions of the role of international institutions in monitoring state behavior, see ROBERT KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD POLITICAL ECONOMY (1984);
12. Barbara Koremenos, Charles Lipson & Duncan Snidal, The Rational Design of International Institutions, 54 INT'L ORG. 761 (2001);
13. Andrew Kydd & Duncan Snidal, Progress in Game-Theoretical Analysis of International Regimes, in REGIME THEORY AND INTERNATIONAL RELATIONS 112 (Volker Rittberger & Peter Mayer eds., 1993).
14. Anne-Marie Slaughter & William Burke-White, The Future of International Law is Domestic (or the European Way of Law), 47 HARV. INT'L L.J. 327-29 (2006).
15. For a discussion of the design of international institutions, see the range of articles contained in THE RATIONAL DESIGN OF INTERNATIONAL INSTITUTIONS (Barbara Korememos, Charles Lipson & Duncan Snidal eds., 2003).
16. For a discussion of the history of Bosnia & Herzogovina, see MISHA GLENNY, THE BALKANS: NATIONALISM, WAR AND THE GREAT POWERS 1804-1999 (2000);
17. NOEL MALCOLM, BOSNIA: A SHORT HISTORY (1994);
18. MARK MAZOWER, THE BALKANS (2000);
19. LAURA SILBER & ALLAN LITTLE, YUGOSLAVIA: DEATH OF A NATION (1997).
20. For a discussion of the plan and the process leading up to it, see DAVID OWEN, BALKAN ODYSSEY (1995).
21. For a discussion of Holbrooke's efforts, see RICHARD HOLBROOKE, TO END A WAR (1998).
22. For a discussion of the agreement, see id. For the agreement itself, see Office of the High Representative, Dayton Peace Agreement, The General Framework Agreement for Peace in Bosnia & Herzogovina, Bosn. & Herz.-Croat.-Yugo., Dec. 14, 1995, available at http://www.ohr.int/dpa/ default.asp?content_id=380.
23. For all relevant documents to the Yugoslav crisis, see THE YUGOSLAV CRISIS IN INTERNATIONAL LAW (Daniel L. Bethlehem & Marc Weller eds., 1997).
24. Annex 4 of the Dayton Peace Accords includes the Constitution of Bosnia & Herzogovina. The Constitution has never been passed through domestic parliamentary channels but is the result of the international peace settlement.
25. See CONST. BOSN. & HERZ., annexed to the Dayton Peace Agreement, supra note 12, annex 4, art. I(3).
26. See id. art. III(1). Although the Dayton Agreements initially created a relatively weak federal structure, retaining strong powers for the constituent entities, the Constitutional Court of Bosnia & Herzogovina significantly expanded the powers of state level institutions during its first term. Interview with David Feldman, Judge, Constitutional Court of Bosnia & Herzogovina, in Cambridge, U.K. (Aug. 2, 2005).
27. See CONST. BOSN. & HERZ. art. V.
28. See id. art. IV.
29. See Dayton Peace Agreement, supra note 12, annex X, art. V. The first holder of the position was Carl Bildt of Sweden and the High Representative as of 2005 is Paddy Ashdown.
30. See War Crimes Trials Before the Domestic Courts of Bosnia & Herzogovina, Progress and Obstacles, Organization of Security and Cooperation in Europe Report 3 (2005). In the FBiH and the RS, there is a multi-tiered court system. Municipal courts in the FBiH and Basic Courts in the RS are the courts of first instance. Cantonal courts in the FBiH and District Courts in the RS are at the middle tier and Entity Constitutional Courts provide final appellate review. Id. at 85. Basic Courts in the RS have jurisdiction in criminal cases up to a maximum 20 year sentence and Cantonal courts in the FBiH have criminal jurisdiction up to a 10 year sentence. In addition, both entities have a series of minor offence courts outside the normal judiciary. Id.
31. Dayton Peace Agreement, supra note 12, arts. III(2)(c), III(1)(g).
32. See id. art. VI; Interview with David Feldman, supra note 15. See also, Final Report of the Independent Judicial Commission 84 (March 2004) (on file with author) (observing that "[m]ost matters, including the establishment and organization of the judicial system, were made the responsibility of the two Entities").
33. See S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993).
34. For an extensive treatment of the ICTY and its early work, see RACHEL KERR, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA: AN EXERCISE IN LAW, POLITICS, AND DIPLOMACY (2004).
35. War Crimes Trials Before the Domestic Courts of Bosnia & Herzogovina, Progress and Obstacles, supra note 19, at 5-6.
36. See Final Report of the Independent Judicial Commission, supra note 21, at 97. See also Interview with John Peyton, Head of Legal Section, Office of the High Representative, in Sarajevo, Bosn. & Herz. (Aug. 5, 2005). The number of municipal courts in FBiH was reduced from 53 to 28 and the number of Basic Courts in the RS was reduced from 25 to 19.
37. See Final Report of the Independent Judicial Commission, supra note 21, at 99. In the process, a number of courts were merged, some eliminated and others expanded. See id. at 104. In addition, commercial divisions of the courts were established. As a result, the number of courts and judges was reduced by 41%, bringing the previously inflated Bosnian judicial system closer in relative size to that of more developed European neighbors.
38. See Final Report of the Independent Judicial Commission, supra note 21, at 95.
39. See Final Report of the Independent Judicial Commission, supra note 21, at 95. In effect, all judges were fired and a select group rehired. Judicial salaries are now on the order of €3,000 per month, among the highest paid professionals in the country. See Interview with John Peyton, supra note 26. New legislation governing judicial budgets was also passed.
40. See Final Report of the Independent Judicial Commission, supra note 21, at 111.
41. See Final Report of the Independent Judicial Commission, supra note 21, at 117-119. These efforts included the introduction of case management systems, increasing the power of court presidents to organize caseload, and changing the opening hours of courts.
42. See Final Report of the Independent Judicial Commission, supra note 21, at 161-62. In short, "Some elements of the inquisitorial process were abandoned in favour of a more adversarial process, with parties having the right to determine how their case will be presented." Id. The French and German governments were strongly opposed to the change. See Interview with John Peyton, supra note 26.
43. Michael Bohlander, a German Judge and former ICTY Senior Legal Advisor has referred to the change as "yet another example of legal colonialism." Michael Bohlander, The Transfer of Cases from International Criminal Tribunals to National Courts 11 (working paper on file with author). It has not proved easy for the local judiciary to adapt. See Interview with Rupert Skilbeck, Head of OKO (Criminal Defense Service), in Sarajevo, Bosn. & Herz. (Aug., 10 2005).
44. See War Crimes Chamber Project, Court of Bosnia & Herzogovina, Project Implementation Plan Progress Report (Oct. 20, 2004) (on file with author).
45. See ROBERT KEOHANE & JOSEPH NYE, POWER AND INTERDEPENDENCE: WORLD POLITICS IN TRANSITION (1977) (developing an institutionalist theory of international relations). KEOHANE, supra note 7, at 89-109.
46. See ABRAM CHAYES & ANTONIA H. CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 22-24, 135-73 (1995).
47. See Downs George, David Rocke & Peter Barsoom, Is the Good News about Compliance Good News about Cooperation?, 50 INT'L ORG. 379-406 (1996).
48. INTERNATIONAL REGIMES 359-61 (Stephen Krasner ed., 1983);
49. see also ANDREAS HASENCLEVER, PETER MAYER & VOLKER RITTBERGER, THEORIES OF INTERNATIONAL REGIMES (1997).
50. HOWARD RAIFFA, THE ART AND SCIENCE OF NEGOTIATION 13, 285-87 (1982) (discussing the positive impact of linkages in the negotiation process); Keohane, supra note 7, at 91-93.
51. See generally ALEXANDER WENDT, SOCIAL THEORY OF INTERNATIONAL POLITICS (1999).
52. See also Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DUKE L.J. 621 (2004);
53. Alastair Ian Johnson, The Social Effects of International Institutions on Domestic (Foreign Policy) Actors, in LOCATING THE PROPER AUTHORITIES: THE INTERACTION OF DOMESTIC AND INTERNATIONAL INSTITUTIONS 145 (Daniel W. Drezner ed., 2002);
54. Harold Koh, Transnational Legal Process, 75 NEB. L. REV. 181 (1996).
55. See generally LEGALIZATION AND WORLD POLITICS 1-104 (Judith L. Goldstein, Miles Kahler, Robert O. Keohane & Anne-Marie Slaughter eds., 2001).
56. See Project on International Courts and Tribunals, http://www.pict-pcti.org/.
57. International courts might, however, be in a position to adjudicate violations of underlying substantive legal rules that could well generate lags or issue linkages. The WTO is perhaps the best example thereof. See, e.g., Jose E. Alvarez, International Organizations: Then and Now, 100 AM. J. INT'L L. 324 (2006);
58. Jose E. Alvarez, The Boundaries of the WTO: The WTO as Linkage Machine, 96 AM. J. INT'L L. 146 (2002).
59. Goldstein, Kahler, Keohane & Slaughter, supra note 36, at 1-104.
60. See generally Downs, Rocke & Barsoom, supra note 32.
61. See generally Goodman & Jinks, supra note 35.
62. Even here, however, the record of international courts is somewhat mixed. See CONSTANZE SCHULTE, COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE (2004) (tracing the record of state compliance with ICJ decisions). Except to the degree that the underlying legal rules subject to the court's jurisdiction require some degree of domestic political change or transformation, the standard explanations for the domestic impact of international institutions on state behavior neither anticipate nor explain the influence of international tribunals on domestic policy choices beyond enhancing compliance with underlying legal rules.
63. For a more general discussion of international relations theories and compliance with international law, see Anne-Marie Slaughter & Kal Raustiala, International Law, International Relations, and Compliance, in HANDBOOK OF INTERNATIONAL RELATIONS 538 (Walter Carlsnaes, Thomas Risse & Beth A. Simmons eds., 2002).
64. See, e.g., Statute of the International Criminal Tribunal for the Former Yugoslavia, May 25, 1993, 32 I.L.M. 1203;
65. Statute of the International Criminal Tribunal for Rwanda, Nov. 8, 1994, 33 I.L.M. 1598.
66. See, e.g., Statute of the International Criminal Tribunal for the Former Yugoslavia, supra note 43;
67. Statute of the International Criminal Tribunal for Rwanda, supra note 43.
68. Anne-Marie Burley (now Slaughter) & Walter Mattli, Europe Before the Court: A Political Theory of Legal Integration, 47 INT'L ORG. 41-43 (1993).
69. According to Emst Haas, neofunctonalism addresses the way in which "political actors in several distinct national settings are persuaded to shift their loyalties, expectations, and political activities toward a new and larger center, whose institutions posses or demand jurisdiction over the pre-existing national states." ERNST HAAS, THE STUDY OF REGIONAL INTEGRATION 610 (1970).
70. Burley & Mattli, supra note 45, at 53. For a discussion of neo-functionalism in the context of European integration, see generally ERNST HAAS, THE UNITING OF EUROPE (1958).
71. Burley & Mattli, supra note 45, at 53-56.
72. Id. at 58.
73. For a discussion of global governance, see James N. Rosenau, Governance, Order, and Change in World Politics, in GOVERNANCE WITHOUT GOVERNMENT: ORDER AND CHANGE IN WORLD POLITICS 1, 4 (James N. Rosenau & Ernst-Otto Czempiel eds., 1992). Elements of global governance thinking, can be found in the earlier writings of the English School in political science.
74. See HEDLEY BULL, THE ANARCHICAL SOCIETY: A STUDY OF WORLD POLITICS (1977). The growing scholarship in the field of global governance led to the foundation of a new journal in the 1990s entitled GLOBAL GOVERNANCE, which has been the focal point of writings on the topic.
75. Anne-Marie Slaughter, Everyday Global Governance, DÆDALUS, Winter 2003, at 83.
76. See generally DAVID HELD, DEMOCRACY AND THE GLOBAL ORDER: FROM THE MODERN STATE TO COSMOPOLITAN GOVERNANCE (1995) (considering the implications of global governance on cosmopolitanism);
77. ORAN YOUNG, GLOBAL GOVERNANCE: DRAWING INSIGHTS FROM THE ENVIRONMENTAL EXPERIENCE (1997) (examining the operation of global governance in international environmental affairs).
78. Rosenau, supra note 50, at 153.
79. Historically, the exercise of criminal jurisdiction was largely left to the domestic courts of the territorial state. As Vattel observed ". . . the justice of each nation ought in general to be confined to the punishment of crimes committed in its own territories . . . ." E. DE VATTEL, THE LAW OF NATIONS bk. 1, ch. 19, § 233 (Charles G. Fenwick trans., 1916) (1758).
80. For a general discussion of the exercise of jurisdiction with respect to crime, see Draft Convention on Jurisdiction with Respect to Crime, 29 AM. J. INT'L L. SUP. 435 (1935).
81. This is, essentially, the jurisdictional structure of the ICTY and ICTR, at least prior to the Completion Strategy. See Statute of the International Criminal Tribunal for the Former Yugoslavia, supra note 43;
82. Statute of the International Criminal Tribunal for Rwanda, supra note 43.
83. See Rome Statute of International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3;
84. Mohamed El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law, 23 MICH. J. INT'L L. 869 (2002).
85. In such a jurisdictional relationship, the critique of Ku and Nzelibe that international tribunals create perverse incentives for national actors may well be correct. See Ku and Nzelibe, supra note 3, at 42.
86. The ICTY exercised this form of absolute international primacy in a particularly notorious way in the early Tadić case in which it essentially removed the case from German courts to the international tribunal. See Prosecutor v. Tadić, Case No. IT-94-1-D, Decision of the Trial Chamber on the Application by the Prosecutor for a Formal Request for Deferral (Nov. 8, 1994).
87. Ku and Nzelibe, supra note 3, at 42.
88. For a discussion of complementarity in the context of the Rome Statute of the ICC, see Flavia Lattanzi, The International Criminal Court and National Jurisdictions, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A CHALLENGE TO IMPUNITY 177 (Mauro Politi & Giuseppe Nesi eds., 2001);
89. see also John T. Holmes, Complementarity: National Courts versus the ICC, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 667 (Antonio Cassese et al. eds., 2002) (noting that "[i]ronically, however, the provisions of the Rome Statute itself contemplate an institution that may never be employed");
90. John T. Holmes, The Principle of Complementarity, in THE INTERNATIONAL CRIMINAL COURT, THE MAKING OF THE ROME STATUTE ISSUES, NEGOTIATIONS, RESULTS 41 (Roy Lee ed., 1999).
91. This is not unlike the situation that faces inferior domestic judges in a national judicial system. Such judges know that their decisions are subject to review and reversal by higher courts, should their decisions not meet requisite standards. See, e.g., Matthew Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 ADMIN. L. REV. 753 (2006).
92. Here "sovereignty costs" is used to refer to what Duncan Snidal and Kenneth Abbott call "the symbolic and material costs of diminished national autonomy." Kenneth Abbott, Symposium on Method in International Law: International Relations Theory, International Law, and the Regime Governing Atrocities in International Conflicts, 93 AM. J. INT'L L. 361, 375 (1999).
93. While, in general, the threat of intervention by an international tribunal with a complementarity jurisdictional relationships may be low, once such a tribunal has begun to investigate a particular situation or is tasked with providing accountability in a given state, then the threat of international intervention becomes high, increasing the perceived sovereignty costs of domestic inaction and the potential for such a structural relationship to promote domestic judicial development.
94. For an introduction to rational choice theory, see James M. Buchanan, Politics Without Romance: A Sketch of Positive Public Choice Theory and Its Normative Implications, in THE THEORY OF PUBLIC CHOICE-II 11 (James M. Buchanan & Robert D. Tollison eds., 1984).
95. For a discussion and critique of such rational choice analysis, see DONALD P. GREEN & IAN SHAPIRO, PATHOLOGIES OF RATIONAL CHOICE THEORY: A CRITIQUE OF APPLICATIONS IN POLITICAL SCIENCE (1994).
96. See generally DOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE, AND ECONOMIC PERFORMANCE (1990) (discussing how institutions can create or alter the incentive structure in the economic context).
97. See generally PUBLIC DUTIES: THE MORAL OBLIGATIONS OF GOVERNMENT OFFICIALS (Joel L. Fleishman et al. eds., 1981) (discussing interests and duties of government officials).
98. Such influence need not come through controlling judicial outcomes, but rather could be the result of political recognition from serving as a champion of the judiciary.
99. Most officials of an international tribunal remain for only a relatively short period before moving on to other posts either in international institutions or within their own domestic governments. Such individuals will usually seek self-promotion, related to but independent from the ultimate success of the tribunal.
100. According to the UN Security Council when it established the ICTY, the Tribunal had the "sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia." S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993).
101. Domestic prosecutions could well interfere with the work of the international tribunal through, for example, compromising witnesses or due to the potential for double jeopardy if the domestic tribunal prosecuted an individual who the international tribunal subsequently chose to pursue.
102. Luis Moreno-Ocampo, Chief Prosecutor of the ICC, Statement made at the ceremony for the solemn undertaking of the Prosecutor of the International Criminal Court (June 16, 2003) (available at http://www.icc-cpi.int/ library/organs/otp/030616_moreno_ocampo_english_final.pdf).
103. See generally William Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 HARV. INT'L L.J. 53 (Winter 2008).
104. For a discussion of these leverage points, see generally id.
105. See generally Rosenau, supra note 50.
106. By turning to the role of norms in the third part of this model, the model simultaneously adopts a rational choice and a constructivist approach to explaining the influence of international criminal tribunals. For a discussion of mixing rational choice and constructivist approaches, see generally Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, 52 INT'L ORG. 887-88 (1998) (noting that "the current tendency to oppose norms against rationality or rational choice is not helpful in explaining many of the most politically salient processes . . .").
107. See id. at 891; Ronald Jepperson, Alexander Wendt, Peter Katzenstein, Norms, Identity, and Culture in National Security, in THE CULTURE OF NATIONAL SECURITY 33-75 (Peter Katzenstein ed., 1996).
108. For discussions of norms in the legal literature, see ROBERT C. ELLICKSON, ORDER WITHOUT LAW 246-54 (1991);
109. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338, 340 (1997).
110. See Finnemore & Sikkink, supra note 75, at 893 (noting that "many international norms began as domestic norms" and that "international norms must always work their influence through the filter of domestic structures"). While most of Finnemore & Sikkink's argument looks at the move of norms from domestic to international, the inverse is equally possible.
111. Id. at 895.
112. See Jenia Iontcheva Turner, Transnational Networks and International Criminal Justice, 105 MICH. L. REV. 985 (2007) (discussing the potential of transnational networks in international criminal justice); see also Burke-White, supra note 72.
113. See ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 65-103 (2005) (discussing judicial networks).
114. In the area of international criminal law enforcement, for example, the ICTY has organized a number of training sessions for judges, prosecutors, and judicial officials in Bosnia, Croatia, and Serbia. Interview with David Tolbert, Deputy Prosecutor, ICTY, in The Hague, Neth. (July 1, 2005).
115. See Report of Judicial Colloquium on the Domestic Application of International Human Rights Norms, Bangalore, India,
116. reprinted in The Bangalore Principles on "the Domestic application of international human rights norms," 14 CMMW. L. BULL. 1196 (1988).
117. For a discussion of their influence, see Michael Kirby, International Law: Impact on National Constitutions, 21 AM. U. INT'L L. REV. 327, 332-45 (2006).
118. See, e.g., Rome Statute of the International Criminal Court art. 17, 1998.
119. Statute of the International Criminal Tribunal for the Former Yugoslavia, annexed to S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993).
120. See id. art. 9.
121. For a discussion of jurisdictional primacy, see Bartram S. Brown, Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals, 23 YALE INT'L L.J. 383, 395-400 (1998).
122. See ICTY Rules of Procedure and Evidence , Rule 8, UN Doc. IT/32/Rev.40 (July 12, 2007) [hereinafter ICTY Rules], available at http://www.un.org/icty/legaldoc-e/index.htm. Rule 8, unlike Rule 9 discussed below, specifically provides that compliance with these requests is to be legally binding under article 29 of the Statute.
123. Id. at Rule 9. Rule 9 also provides certain guidance as to the ICTY's assumption of jurisdiction, which is appropriate if the acts are being prosecuted as an ordinary crime; if national proceedings lack impartiality; or if the acts are related to a case being investigated or prosecuted by the Tribunal.
124. Prosecutor v. Tadić, Case No. IT-94-1-T, Decision on the Defence Motion on Jurisdiction, ¶ 41 (Aug. 10, 1995).
125. See Prosecutor v. Tadić, Case No. IT-94-1, Judgment (July 15, 1999).
126. See Prosecutor v. Tadić, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 58 (Oct. 2, 1995) (observing: "Indeed, when an international tribunal such as the present one is created, it must be endowed with primacy over national courts. Otherwise, human nature being what it is, there would be a perennial danger of international crimes being characterized as 'ordinary crimes' (Statute of the International Tribunal, art. 10, para. 2(a)), or proceedings being 'designed to shield the accused,' or cases not being diligently prosecuted (Statute of the International Tribunal, art. 10, para. 2(b))"). Although the ICTY's primacy was upheld, political statements from the Security Council have, at times, sought to limit its application. See Brown, supra note 86, at 398-400. The Russian, British, French, and American Security Council Members have, at times, all spoken of a more limited role of primacy. See id.
127. See Paul R. Williams & Patricia Taft, War Crimes Research Symposium: The Role Of Justice In Building Peace: The Role Of Justice In The Former Yugoslavia: Antidote Or Placebo For Coercive Appeasement?, 35 CASE W. RES. J. INT'L L. 219, 253 (2003).
128. See "Rules of the Road" provision of the Rome Agreement, Feb. 18, 1996, as cited in Mark S. Ellis, Bringing Justice to an Embattled Region - Creating and Implementing the "Rules of the Road" for Bosnia-Herzegovina, 17 BERKELEY J. INT'L L. 1, 7 (1999). The agreement provided: "Persons, other than those already indicted by the International Tribunal, may be arrested and detained for serious violations of international humanitarian law only pursuant to a previously issued order, warrant, or indictment that has been reviewed and deemed consistent with international legal standards by the International Tribunal." Id.
129. See, e.g., Politics of Revenge in Bosnia's Una Sana Canton Systematically Violate the Dayton accords and International Law, Human Rights Watch, Aug. 8, 1997, http://hrw.org/english/docs/1997/08/08/bosher1541. htm (discussing ethnically motivated detentions and prosecutions in Bosnia); see also Ellis, supra note 93, at 5 (noting an "intense campaign to bring individuals suspected of committing war crimes to justice. Each of the three parties has maintained exhaustive, if not accurate, files on persons among the 'other' group whom they 'know' to be war criminals").
130. See also War Crimes Trials Before the Domestic Courts of Bosnia & Herzegovina, Progress and Obstacles, supra note 19, at 5 (noting the possibility of "arbitrary arrests and unfair trials").
131. See Procedures and Guidelines for Parties for the Submission of Cases to the International Criminal Tribunal for the Former Yugoslavia under the Agreed Measures of 18 February 1996 (on file with author). In making these determinations, the OTP accepts the evidence as presented, draws all inferences in favor of national prosecution, and accepts the reasonable hypotheses of the case. See Ellis, supra note 93, at 15.
132. War Crimes Trials Before the Domestic Courts of Bosnia & Herzegovina, Progress and Obstacles, supra note 19, at 5.
133. Id.
134. In one case, for example, local authorities decided to proceed with a prosecution despite a finding of insufficient evidence by the ICTY. See Ellis, supra note 93, at n.149. At that point the High Representative issued a press statement noting that "the responsible authorities breached their legal obligations to prosecute only those crimes where the Tribunal has found sufficient evidence under international standards." Memorandum from Peggy L. Hicks, the Office of the High Representative, to CEELI (May 25, 1998), cited in Ellis, supra note 93, at n.151.
135. See Ellis, supra note 93, at 19 (noting that "a shortage of resources left the Tribunal ill-equipped to review case files simply to determine whether or not they met the required evidentiary standards"). The slow pace of the ICTY's review under the Rules of the Road Agreement is an ongoing criticism in the Balkans. See Interview with Biljana Potparić-Lipa, President, Court of Bosnia & Herzogovina, in Sarajevo, Bosn. & Herz. (Aug. 9, 2005).
136. War Crimes Trials Before the Domestic Courts of Bosnia & Herzegovina, Progress and Obstacles, supra note 19, at 50.
137. Interview with Biljana Potparic-Lipa, supra note 99.
138. See Williams and Taft, supra note 92, at 253-54.
139. Telephone Interview with Dan Beckwith, Former OSCE Consultant and U.S. State Court Judge (Aug. 19, 2005).
140. War Crimes Trials Before the Domestic Courts of Bosnia & Herzegovina, Progress and Obstacles, supra note 19, at 6.
141. Id.
142. Id. at 4.
143. Slobodan Milošević, for example, decried the Tribunal's work as an attack on Bosnian Serbs. See Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities, 95 AM. J. INT'L L. 7, 9 (2001). Local Serb newspapers in Bosnia were also regular critics of the ICTY and any potential domestic prosecutions. See Interview with Matais Hellman, ICTY Public Affairs Officer, in Sarajevo, Bosn. & Herz. (Aug. 5, 2005). In Serbia, Milošević regularly denied visas to tribunal prosecutors. See Williams & Taft, supra note 92, at 251.
144. For example, the Geneva Conventions include an affirmative obligation to search for and prosecute the perpetrators of grave breaches of international humanitarian law in international armed conflicts. See Geneva Convention Relative to the Treatment of Prisoners of War part I, art. 129, Aug. 12, 1949. The ICTY has found the conflict in the former Yugoslavia to be of an international character and thus the obligations of the Geneva Conventions applicable. See Prosecutor v. Tadić, Case No. ICTY IT-94-1-A, Judgment, ¶ 87 (July 15, 1999).
145. See Interview with Matais Hellman, supra note 107. Such support was generally necessary to maintain foreign financial assistance and the good will of internationals working in Bosnia.
146. Generally these were calls for prosecutions of other ethnic groups. In effect there was a triangle of blame whereby each ethnic group blamed the other two and advocated prosecutions of the other two groups. See id.
147. See id. Hellman notes that though there was significant opposition to the ICTY, it was occasionally used as a shield for initiating serious domestic prosecutions.
148. War Crimes Trials Before the Domestic Courts of Bosnia & Herzegovina, Progress and Obstacles, supra note 19, at 6.
149. Id.
150. Id.
151. Of these, only two trials have been in the RS, with the remainder in the FBiH. See id.
152. Id. at 4.
153. For example, one notable trial in the District Military Court of Sarajevo involved the conviction of Sretko Damjanović for genocide and crimes against humanity in 1993. See id. at 4. The Human Rights Chamber of BiH eventually overturned the case in 2002 on grounds that the District Military Court "lacked a sufficient appearance of independence." Id. The conviction was quashed in 2002. International observers similarly condemned another trial of Ibrahim Dedović in 1997 for war crimes and crimes against humanity in the Sarajevo Cantonal Court. His conviction was overturned in a second trial in 2000. See id. at 4.
154. For example, in the Gulubović case, though investigations were launched in 1994, the trial did not commence until February 2000. Id. at 4.
155. Interview with Dan Beckwith, supra note 103.
156. For a consideration of the nature of violations of international humanitarian law during the conflict in the former Yugoslavia, see Final Report of the Commission of Experts on Violations of International Humanitarian Law in the Former Yugoslavia, UN Doc. S/1994/674 (May 27, 1994).
157. See Williams & Taft, supra note 92, at 254 (observing that "the Tribunal not only failed to create an environment conducive to the growth of other mechanisms of justice, but affirmatively sought to prevent the creation of a Bosnian Truth Commission").
158. Press Release, ICTY President Judge Claude Jorda, Address to the United Nations Security Council U.N. Doc. JDH/P.I.S./690-e (July 26, 2002) [hereinafter Jorda July 2002 Address].
159. Interview with Herman Van Hebel, in The Hague, Neth. (July 1, 2005).
160. The BiH Presidency accepted the revocation of the Rome Agreement. War Crimes Trials Before the Domestic Courts of Bosnia & Herzegovina, Progress and Obstacles, supra note 19, at 5.
161. Id. at 6.
162. Of these, 15 defendants were acquitted. Id. at 6.
163. Id.
164. Interview with Dorthee Marotine, OSCE Legal Advisor, in Sarajevo, Bosn. & Herz. (Aug. 3, 2005).
165. See generally Larry D. Johnson, Closing an International Criminal Tribunal While Maintaining International Human Rights Standards and Excluding Impunity, 99 AM. J. INT'L L. 158 (2005).
166. ICTY Rules, Rule 11bis (A). A similar amendment to the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda was also undertaken although there have not yet been ay motions for transfer under the Rule.
167. ICTY Rules, Rule 11bis (C). Rule 28(A) was also amended to give the judges the ability to review cases to determine if the level of seniority of the accused is appropriate for prosecution before the ICTY. See Daryl A. Mundis, The Judicial Effects of the Completion Strategies on the Ad Hoc International Criminal Tribunals, 99 AM. J. INT'L L. 142, 146 (2005).
168. ICTY Rules, Rule 11bis (B).
169. ICTY Rules, Rule 11bis (F).
170. See Mundis, supra note 131, at 142-44.
171. International Criminal Tribunal for the Former Yugoslavia, Report on the Judicial Status of the International Criminal Tribunal for the Former Yugoslavia and the Prospects for Referring Certain Cases to National Courts, ¶ 84, U.N. Doc. S/2002/678 (June 19, 2002).
172. Id.
173. See Interview with Larry Johnson, Chief of Staff to the President of the ICTY, in The Hague, Neth. (July 1, 2005).
174. In its submissions to the ICTY, Bosnia has made clear that the Court of Bosnia & Herzegovina is the only competent institution to receive the case. See Prosecutor v. Zeljko Mejakic et al., Case No. IT-02-65-PT, Response by the Government of Bosnia and Herzegovina (BiH) to Questions Posed by the Specially Appointed Chamber in its Decision for Further Information in the Context of the Prosecutor's Request under Rule 11bis (Feb. 9, 2005).
175. See id.
176. See Interview with Biljana Potparić-Lipa, supra note 99.
177. Prosecutor v. Milošević, Case No. IT-98-29/1-PT, Response by the Government of Bosnia & Herzegovina (BiH) to Questions Posed by the Specially Appointed Chamber in its Order for Further Submissions on the Gravity of the Crimes and the Level of Responsibility of the Accused, at 3-4 (Feb. 9, 2005). Note that in this case the Government of BiH opposed transfer on the ground that the level of responsibility of the accused was sufficiently high that he should be tried before the international forum. For a more detailed argument of the preparedness of the Bosnian judiciary, see Prosecutor v. Mejakić, Gruban, Fuštar & Knežević, Response by the Government of Bosnia & Herzegovina (BiH) to Questions Posed by the Specially Appointed Chamber in its Decision for Further Information in the Context of the Prosecutor's Request under Rule 11bis (Feb. 9, 2005) (on file with author).
178. See Interview with Larry Johnson, supra note 137.
179. Prosecutor v. Rašević & Todović, Case No. IT-97-25/1-PT, Decision on the Referral of Case under Rule 11bis, ¶ 84 (July 8, 2005).
180. See Interview with David Tolbert, supra note 81. The Tribunal has been careful to note its ability to recall cases in its 11bis decisions as a way to ensure compliance. In the Stanković case, for example, the tribunal noted that if fair trial requirements were not met, "then a referral order may be revoked by this tribunal." Prosecutor v. Stanković, Case No. IT-96-23/2-PT, Corrigendum to Decision on Referral of Case under Rule 11bis, ¶ 68 (May 27, 2005).
181. The OSCE has already been involved in extensive monitoring of trials at the cantonal and district levels. See War Crimes Trials Before the Domestic Courts of Bosnia & Herzegovina, Progress and Obstacles, supra note 19. The OSCE has recruited and trained Bosnian staff in trial monitoring.
182. The exact recipient of such reports has yet to be determined as it is necessary to ensure that the prosecution, defense, and chambers all receive reports in a like fashion. Interview with Dan Beckwith, supra note 103.
183. See ICTY Rules, Rule 11bis.
184. See CONST. BOSN. & HERZ. art. VI(3)(b) ("The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia & Herzegovina").
185. See CONST. BOSN. & HERZ. art. 11(2) ("The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia & Herzegovina. These shall have priority over all other law."); see also Interview with David Feldman, supra note 15 (suggesting that such a challenge was entirely possible). The Constitutional Court has, in fact, reviewed the constitutionality of the State Court itself. See Decision on the Law of the Court of Bosnia & Herzegovina is Hereby Declared to be in Conformity with the Constitution of Bosnia & Herzegovina, Case No. U26/01, (Sept. 28, 2001). The decisions of the ICTY trial and appeals chambers to refer a case to Bosnia or recall it from Bosnia, however, would be beyond the jurisdiction of the Constitutional Court. The Constitutional Court has routinely held that it does not have the power to review the decisions of international institutions or the Dayton Accords themselves. See Interview with David Feldman, supra note 15. For Constitutional Court jurisprudence limiting the powers and jurisdiction of the court with respect to international agencies or the Dayton Accords, see Decision, The Appeal of the Office of the Public Attorney of the Federation of Bosnia & Herzegovina against the Decision of the Human Rights Chamber of 11 March 1998 in Case No. CH/96/30, S.D. v. The Federation of Bosnia & Herzegovina, Case No. U7/98, (finding that "[t]he Constitutional Court of Bosnia & Herzegovina does not have appellate jurisdiction over decisions of the Human Rights Chamber for Bosnia & Herzegovina" because it is an equal institution established under the Dayton Accords). The Constitutional Court has clearly stated that it cannot review a decision of the High Representative as his powers were conferred through an international agreement. See Ruling, The Appeal of 37 Representatives of the House of Representatives of the Parliament of the Federation of Bosnia & Herzegovina against the Decision of the High Representative of Bosnia & Herzegovina No. 86/01 of 23 February 2001 is Rejected, Case No. U37/01, OFFICIAL GAZETTE OF BIH (Bosn. & Herz.).
186. Jorda July 2002 Address, supra note 122.
187. Id. For the Prosecutor's view of this proposal, which accords closely with that of Jorda, see Press Release, Office of the Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, Address by the Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, Mrs. Carla Del Ponte to the United Nations Security Council (Oct. 30, 2002), available at http://www.un.org/icty/pressreal/ p709-e.htm.
188. See Prosecutor v. Janković, Case No. IT-96-23/2-PT, Decision on Referral of Case under Rule 11bis (July 22, 2005); Prosecutor v. Mejakić, Gruban, Fustar & Knežević, Case No. IT-02-65-PT, Decision on Prosecutor's Motion for Referral of Case Pursuant To Rule 11bis (July 20, 2005); Prosecutor v. Rašević" & Todović, Case No. IT-97-25/1-PT, Decision on the Referral of Case under Rule 11bis (July 8, 2005); Prosecutor v. Stanković, Case No. IT-96-23/2-PT, Corrigendum to Decision on Referral of Case under Rule 11bis (May 27, 2005).
189. The Referral Bench consists of Judge Alphons Orie, Presiding, and Judges O-Gon Kwon and Kevin Parker.
190. In all of the cases to date, defense has sought to avoid referral back, preferring instead trial before the ICTY. This is not at all surprising given both the quality of justice and the significant differences between imprisonment in Bosnia & Herzegovina and the states that generally incarcerate ICTY convicts. In some cases, the defense has sought, as an alternative, transfer to Serbia. See, e.g., Prosecutor v. Rašević & Todović, Case No. IT-97-25/1-PT, Decision on the Referral of Case under Rule 11bis, ¶ 27, 28 (July 8, 2005). In that case, Rašević sought transfer to Serbia on grounds that it was the state in which the accused was arrested, a valid state for transfer pursuant to Rule 11bis. Todović argued that based on his Serbian nationality he should also be transferred to Serbia and Montenegro.
191. See id. ¶ 109, (noting "the standing of the OSCE and the neutrality of its approach ought to ensure that the reports it provides will adequately reflect Defense as well as Prosecution issues").
192. Prosecutor v. Stanković, Case No. IT-96-23/2-PT, Corrigendum to Decision on Referral of Case under Rule 11bis, (May 27, 2005).
193. Id. ¶ 24. The relevant legislation is Law on Transfer of Cases from the International Criminal Tribunal for the Former Yugoslavia to the Prosecutor's Office of Bosnia & Herzegovina and the use of Evidence Collected by the International Criminal Tribunal for the Former Yugoslavia in Proceedings Before the Court of Bosnia & Herzegovina, OFFICIAL GAZETTE OF BIH 61/04 (Bosn. & Herz.) [hereinafter Law on Transfer of Cases].
194. Prosecutor v. Stanković, Case No. IT-96-23/2-PT, Corrigendum to Decision on Referral of Case under Rule 11bis, ¶ 68 (May 27, 2005).
195. Id. ¶ 96.
196. Interview with Refik Hodzić, Public Affairs Director, Court of Bosnia & Herzogovina, in Sarajevo, Bosn. & Herz. (Aug. 9, 2005).
197. Id. For some examples of local reporting, see Press Release, Fena, ICTY Decides to Refer Case against Mejakic, Gruban, Fustar and Knezević to BiH (July 20, 2005).
198. Interview with Mustafa Bisić, Assistant Minister of Justice, in Sarajevo, Bosn. & Herz. (Aug. 8, 2005).
199. See supra, text accompanying notes 19-20.
200. See GENERAL FRAMEWORK AGREEMENT, supra note 12.
201. See Consultants' Report to the OHR: The Future of Domestic War Crimes Prosecutions in Bosnia & Herzegovina, May 2002, annex I at 1 (on file with author) [hereinafter Consultants' Report] (observing that "there appears to be little confidence that such cases can be tried impartially, independently, and free of political, criminal or other influence or without ethnic bias").
202. Interview with David Feldman, supra note 15, at 5. See, e.g., Decision, The Appeal of the Office of the Public Attorney of the Federation of Bosnia & Herzogovina against the Decision of the Human Rights Chamber of 11 March 1998 in the Case No. CH/96/30, S.D. v. The Fed'n of Bosn. & Herz., Case No. U 7/98 (Const. Ct. Bosn. & Herz. 1999) (affirming the power of the Human Rights Chamber for Bosn. & Herz.). The existence of the Court of BiH was itself challenged before the Constitutional Court. See also Decision, The Law on the Court of Bosnia & Herzogovina, OFFICIAL GAZETTE BIH 29/00) is hereby declared to be in Conformity with the Constitution of Bosnia & Herzogovina, Case No. U 26/01 (Const. Ct. Bosn. & Herz. 2001) (finding that the Dayton Accords granted federal powers to establish a state court and that "the establishment of the Court of Bosnia & Herzegovina can be expected to be an important element in ensuring that the institutions of Bosnia & Herzegovina act in conformity with the rule of law . . ."). See also Consultants' Report, supra note 165, at 37.
203. Other legislation imposed by the High Representative at this time included: HR Decision Enacting the Law on Amendments to the Law on the Court of Bosnia & Herzogovina, OFFICIAL GAZETTE BIH 24/02 (Bosn. & Herz.);
204. HR Decision Enacting the Law Reamending the Law on the Court of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 3/03 (Bosn. & Herz.);
205. Decision Enacting the Law on Further Re-amending the Law on the Court of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 37/03 (Bosn. & Herz.);
206. HR Decision Enacting the Law on the Amendments to the Law on Court of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 4/04 (Bosn. & Herz.);
207. HR Decision Enacting the Law on the Prosecutor's Office of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 24/02 (Bosn. & Herz.), available at http://www.ohr.int/decisions/judicialrdec/ default.asp?content_id=27652;
208. HR Decision Enacting the Law on Amendments to the Law on the Prosecutor's Office of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 3/03 (Bosn. & Herz.), available at http://www.ohr.int/ decisions/judicialrdec/default.asp?content_id=29093;
209. HR Decision Enacting the Law on Re-amending the Law on the Prosecutor's Office of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 37/03 (Bosn. & Herz.), available at http://www.ohr.int/ decisions/judicialrdec/default.asp?content_id=31102;
210. HR Decision Enacting the Law on the Judicial Police of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 3/03 (Bosn. & Herz.), available at http://www.ohr.int/decisions/judicialrdec/ default.asp?content_id=29090;
211. HR Decision Enacting the Criminal Procedure Code of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 3/03 (Bosn. & Herz.);
212. HR Decision Enacting the Law on Protecting Witnesses under Threat and Vulnerable Witnesses, OFFICIAL GAZETTE OF BIH 3/03 (Bosn. & Herz.).
213. See HR Decision Enacting the Criminal Procedure Code of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 3/03 (Bosn. & Herz.).
214. See Law on the Court of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 16/02 (Bosn. & Herz.) arts. 13-15.
215. Interview with John Peyton, supra note 25, at 6.
216. See id.
217. See Interview with Mustafa Bisic, supra note 162, at 36. The 2002 Consultants' Report further observed: "[I]n meetings with representatives of the Federation and Brčko District, there was considerable support for a special state level court to deal with war crimes cases. In Republika Srpska there was support for special courts to deal with war crimes at the Entity level." Consultants' Report, supra note 165, at 37.
218. See Interview with Biljana Potparić-Lipa, supra note 99, at 25. For an official ICTY statement indicating the readiness of Bosnian courts to receive cases, see Prosecutor v. Mejakić, Case No. IT-02-65, Decision for Further Information in the Context of the Prosecutor's Request under Rule 11bis (Feb. 9, 2005).
219. The issue was argued before the Constitutional Court of Bosnia & Herzegovina in 2000 and the power of the state to create a federal level judiciary was upheld in 2001. See Decision, The Law on the Court of Bosnia & Herzogovina, OFFICIAL GAZETTE BIH 29/00 is hereby declared to be in Conformity with the Constitution of Bosnia & Herzogovina, Case No. U 26/01 (Const. Ct. Bosn. & Herz. 2001).
220. See, e.g., State Department Noon Briefing, Richard Boucher, State Deptartment Spokesman (Jan. 28, 2002), available at http://www.usembassy- israel.org.il/publish/peace/archives/2002/march/030106.html.
221. The prevalence of lower level indictees and detainees was largely the result of the Tribunal's early prosecutorial strategy. At that time, the apprehension of higher level suspects was not possible, so then prosecutors Richard Goldstone and Louise Arbour focused instead on lower level suspects who could be apprehended. See Interview with Richard Goldstone, in Princeton, N.J. (Nov. 14, 2003); David Sloss, Hard Nosed Idealism and U.S. Human Rights Policy, 46 ST. LOUIS L. J. 431, 438 (2002).
222. Jorda July 2002 Address, supra note 122, at 30; Judge Claude Jorda, Address to the UN Security Council, ICTY Press Release JDH/P.I.S./708-e (Oct. 30, 2002) [hereinafter Jorda October 2002 Address]. For a discussion of plea bargaining, see Marlise Simons, Plea Deals Being Used to Clear Balkan War Tribunal's Docket, N.Y. TIMES, Nov. 18, 2003, at A1;
223. Michael Bohlander, Plea-Bargaining before the ICTY, in ESSAYS ON ICTY PROCEDURE AND EVIDENCE IN HONOUR OF GABRIELLE KIRK MCDONALD 151 (Richard May, et al. eds., 2001).
224. Judge Claude Jorda, Address to the UN Security Council, ICTY Press Release (Nov. 7, 2001), JD/P.I.S./641-e [hereinafter Jorda November 2001 Address].
225. See id.
226. Interview with David Tolbert, ICTY Deputy Prosecutor, in The Hague, Neth. (July 1, 2005).
227. The consultants were Peter Bach (Den.), Kjell Björnberg (Swed.), John Ralston (Austl.) and Almiro Rodrigues (Port.). See Consultants' Report, supra note 165, at 37. For an analysis of the report, see Michael Bohlander, The Transfer of Cases from International Criminal Tribunals to National Courts, 14 CRIM. L. FORUM 59 (2003).
228. Consultants' Report, supra note 165, at 37.
229. See id.
230. Id. annex 9.
231. Id. at 19-20.
232. Id. annex 14.
233. See generally Consultants' Report, supra note 165, at 37. As the October 2004 Project Implementation Plan states, a "major objective of the Project is to introduce international professional support into the management and litigation functions of the Court and Prosecutor's Office over the course of the five-year project . . . . The ultimate absorption of War Crime Chamber's capacity into the justice system of Bosnia & Herzegovina and its national funding system is essential to the mandate of the project." See Project Implementation Plan Progress Report, supra note 29, at 7.
234. Jorda July 2002 Address, supra note 122, at 30. Jorda observed the goal was to "prosecute as a priority before the International Tribunal, those presumed responsible for crimes which most seriously violate international public order and to give certain cases of lesser significance to the national courts."
235. Id.
236. Among the problems Jorda recognized were "the excessive compartmentalization of the judicial systems of the Federation and Republika Srpska, the lack of cooperation between the two entities, the political influence brought to bear on judges and prosecutors, the often "mono-ethnic" composition of the local courts, the difficulty of protecting the victims and witnesses effectively, the court personnel's lack of training and the backlog of cases at the courts." Id.
237. The benefit of this approach is that, "aside from meaning that the International Tribunal could be relieved of a part of its caseload, this solution would guarantee that international humanitarian law was applied uniformly at the state level and address the issue of the separation of the two entities' judicial system." Id.
238. Statement by the President of the Security Council, U.N. Doc. S/PRST/2002/21 (July 23, 2002). The Security Council itself has made the call for transfer of cases a refrain in resolutions relating to the two tribunals. See S.C. Res. 1503, ¶ 7, U.N. Doc. S/RES/1503 (Aug. 23, 2003) (reaffirming that the ICTY's goal should be "concentrating on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY's jurisdiction and transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions, as appropriate, as well as the strengthening of the capacity of such jurisdictions").
239. The working groups were a multi-agency effort with representation from international institutions, NGOs, and officials from the government of BiH. The groups were responsible for issues such as legal reform, witness protection, building renovation, review of cases, war crimes investigations, and staffing and training. These working groups included representatives from the Ministry of Justice of BiH, the State Court, the ICTY Office of the Prosecutor, the ICTY Chambers and the OSCE, among others. Id.
240. See id. It is worth noting that the ICTY did not always have a common voice in the process as OTP, Chambers and Registry often had different interests and provided sometimes-conflicting advice in the process. Interview with Mechtild Lauth, Judicial Affairs Section Chief, CBiH, in Sarajevo, Bosn. & Herz. (Aug. 9, 2005).
241. The proposed legislation included a revised Law on the Court of Bosnia & Herzegovina, a Law on the Office of the Prosecutor of BiH, a Law on Transfer of Cases, a Law on the Protection of Victims and Witnesses, and a new Criminal Code. See id.
242. Id.
243. In an inter-agency process the proposals were also shared with a number of other institutions including international prosecutors and judges as well as the Ministry of Justice of BiH. Id.
244. See id.
245. See id.
246. The US provided €7.959 million. Other major contributors included the United Kingdom (€1.132 million), Germany (€1.7 million) and the Netherlands (€1 million). Some of these funds came in the form of pledges that have yet to be paid. See Project Implementation Plan Progress Report, supra note 29, at 35.
247. See Interview with Mechtild Lauth, supra note 194; Interview with John Peyton, supra note 25. Over time the High Representative has tried to put more legislation through standard domestic channels rather than use the power of imposition. OHR has indicated that they believe even the initial legislation would have passed had it been sent through parliament, but that there was a desire to avoid a political confrontation with the Republika Srpska.
248. See Interview with Mechtild Lauth, supra note 194. The High Representative provided significant pressure with respect to organized crime jurisdiction, which remained his priority. Johnson, in contrast, pushed hard for the establishment of the war crimes chamber.
249. The package included three major laws. See Law on Amendments to the Law on the Court of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 35/04 (Bosn. & Herz.). This law provided for the establishment of a special war crimes division within the CBiH.
250. See also Law on Transfer of Cases, supra note 157. The Law on Transfer of Cases allows for cases to be transferred from the ICTY to the CBiH, gives the Prosecutor of BiH the power to reform an ICTY indictment to bring it into conformity with Bosnian procedure and specified that an accused's time in custody at the ICTY shall not count toward custodial limits of Bosnia law. In addition the law made clear that evidence gathered by the ICTY would be admissible before the CBiH and that facts established by legally binding decisions of the ICTY shall be controlling in the CBiH.
251. See also Law on Amendments to the Law on the Prosecutor's Office of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 35/04 (Bosn. & Herz.);
252. Law on Amendments to the Law on the Prosecutor's Office of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 61/04 (Bosn. & Herz.). These two laws created a special war crimes division within the Office of the Prosecutor of the CBiH and provided for the appointment of international prosecutors during the transitional period.
253. See Criminal Code of Bosnia & Herzogovina ch. XVII, OFFICIAL GAZETTE OF BIH 3/03 (Bosn. & Herz).
254. For other relevant laws, see Law on Amendments to the Criminal Code of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 61/04 (Bosn. & Herz.). A number of other laws relevant to the establishment of the War Crimes chambers were also passed, though they are of lesser importance.
255. For a complete collection of legislation, see BENCH BOOK OF THE COURT OF BOSNIA & HERZEGOVINA (2005 ed.) (on file with author).
256. Criminal Code of Bosnia & Herzogovina ch. XVII, OFFICIAL GAZETTE OF BIH 3/03 (Bosn. & Herz.). Officials involved in the drafting process note that both the ICTY Statute and the Rome Statue were instrumental in shaping the international criminal law provisions of the new criminal code. Interview with Almiro Rodrigues, Judge, Court of Bosnia & Herzogovina, in Sarajevo, Bosn. & Herz. (Aug. 5, 2005, Aug. 8, 2005).
257. For example, article 172 of the Criminal Code provides detailed definitions of key elements including attack directed against any civilian population, extermination, deportation, and torture. See Criminal Code of Bosnia & Herzogovina, supra note 204, at art. 172.
258. See Agreement between the High Representative for BiH and Bosnia and Herzegovina on the Establishment of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Division of the Court of BiH and the Special Department for War Crimes and the Special Department for Organized Crime, Economic Crime and Corruption of the Prosecutor's Office of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 16/02, International Agreements 11/04 (Bosn. & Herz.).
259. See id. arts. 2, 4. For a detailed explanation of the work of the Registry to date, see Project Implementation Plan Progress Report, supra note 29; Open Letter from Michael Johnson (June 22, 2005) (on file with author).
260. See Open Letter from Michael Johnson, supra note 208.
261. Project Implementation Plan Progress Report, supra note 29, at 4.
262. Project Implementation Plan Progress Report, supra note 29, at 49-52.
263. See Open Letter from Michael Johnson, supra note 208.
264. This analysis is based on personal observations of the courtroom technology in August 2005.
265. Interview with Refik Hodzić, supra note 160.
266. See Open Letter from Michael Johnson, supra note 208.
267. Interview with Michael Johnson, Registrar of the CBiH, in Sarajevo, Bosn. & Herz. (Aug. 4, 2005).
268. See also Project Implementation Plan Progress Report, supra note 29; Interview with Mechtild Lauth, supra note 194.
269. Law on the Court of Bosnia & Herzegovina art. 15, OFFICIAL GAZETTE OF BIH 29/00 (Bosn. & Herz.). The appellate division is supported by a legal officer (Bosnian), two interpreters (both Bosnian), two law clerks (one international and one Bosnian), and two interns (one international and one Bosnian). Project Implementation Plan Progress Report, supra note 29, at 42.
270. Each team includes a head domestic prosecutor, an international prosecutor, a national investigator, two legal associates (one national and one international) and a national case coordinator. See Project Implementation Plan Progress Report, supra note 29, at 53. The geographic regions are Northwest BiH, Central Bosnia, Eastern Bosnia, Sarajevo and Eastern Herzegovina, and Neretva and Western Herzegovina.
271. The staff presently includes four data management and trial support staff (two of whom are international) as well as five national interpreters. See id.
272. Interview with Ramiz Huremagic, Deputy Prosecutor of Bosnia & Herzegovina, in Sarajevo, Bosn. & Herz., (Aug. 8, 2005).
273. Indictment of June 28, 2005, Prosecutor v. Boban, Case No. KT-RZ-2/05 (Ct. of Bosn. & Herz. 2005).
274. OKO is under the stewardship of Rupert Skilbeck, a British barrister from 36 Bedford Row Chambers for a six month to one year initial term. Skilbeck was previously defense advisor for the Special Court in Sierra Leone. He is author of Rupert Skilbeck, Building the Fourth Pillar: Defense Rights at the Special Court for Sierra Leone, 1 ESSEX HUMAN RIGHTS REVIEW 66 (2004), available at http://projects.essex.ac.uk/EHRR/ archive/pdf/54.pdf. Interview with Rupert Skilbeck, supra note 28.
275. Detailed training modules have been developed and local Bosnian experts have been employed to run the training sessions themselves. Interview with Rupert Skilbeck, supra note 28.
276. Id. Accreditation requires either that lawyers have tried a serious criminal case before the CBiH or more than two such cases at the cantonal or district level or that the attorneys attend a 100 hours of training sponsored by OKO. In addition, annual continued legal education credits are to be implemented.
277. Attorneys must be a current member of either the bar association of the RS or FBiH, have expertise in the relevant areas of law, and completed sufficient continuing professional training. See Additional Rules of Procedure for Defense Advocates Appearing before Section I For War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Court of Bosnia & Herzogovina, Odsjek Krivicne Odbrane, Sarajevo (on file with the author).
278. The law provides that "[d]uring a transitional period, a maximum number of six (6) international judges may be appointed to the Special Panels for Organized Crime, Economic Crime and Corruption within the Criminal and Appellate Division. International judges shall not be citizens of Bosnia & Herzegovina or of any neighboring state. The transitional period shall last not more than four years." See Law Re-amending the Law on the Court of Bosnia & Herzegovina art. 12, OFFICIAL GAZETTE OF BIH 42/03 (Bosn. & Herz.).
279. See Interview with Biljana Potparić-Lipa, supra note 99. She noted that having "the international judges present helps our understanding of international criminal law, gives us more confidence, and allows our decisions to have an international character, while we can remain firmly a domestic court. This is a good thing for the transitional period."
280. Interview with Almiro Rodrigues, supra note 205.
281. See Interview with Rupert Skilbeck, supra note 28.
282. See Interview with Matais Hellman, supra note 107.
283. See Interview with David Tolbert, supra note 81.
284. Interview with Almiro Rodrigues, supra note 205.
285. See Interview with Matais Hellman, supra note 107. These training sessions were often linked to the ICTY's "Bridging the Gap Program" through which prosecutors came to Bosnia to share their work with affected communities. See ICTY, Bridging the Gap Between the ICTY and Communities in Bosnia & Herzogovina, Program CD, Oct. 9, 2004, (on file with author).
286. See Open Letter from Michael Johnson, supra note 208.
287. Interview with Mirela Mehic, Librarian, Court of Bosnia & Herzogovina, in Sarajevo, Bosn. & Herz. (Aug. 8, 2005). The library is housed in a local computer database to facilitate ease of access even if Internet connections are not reliable. Id.
288. Interview with Almiro Rodrigues, supra note 205.
289. Id.
290. For a discussion of the dangers of legal fragmentation and the ways in which an inter-judicial dialogue can preserve uniformity, see William W. Burke-White, International Legal Pluralism, 25 MICH. J. INT'L L. 963, 971 (2004) ("This dialogue has important implications for the unity of the international legal order as it provides actors at all levels with means to communicate, share information, and possibly resolve potential conflicts before they even occur").
291. The ICTY applies international law, as specified in its statute, and only looks to domestic law in "determining the terms of imprisonment."
292. See Criminal Code of the Socialist Federal Republic of Yugoslavia, OFFICIAL GAZETTE OF SFRJ 44/76 (Yugo.). Cantonal courts in the FBiH apply the Federation Penal Code; district courts in the RS apply the Serb Penal Code; and the CBiH applies a federal penal code.
293. The relevant instruments are Criminal Code of the Federation of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 3/03 (Bosn. & Herz.);
294. and Criminal Code of the Republika Srpska, OFFICIAL GAZETTE OF THE RS 49/03 (Bosn. & Herz.).
295. In addition, the semi-independent Brcko District applies the Criminal Code of the Brcko District, OFFICIAL GAZETTE OF THE BRCKO DISTRICT, 10/03 (Bosn. & Herz.).
296. See Law on the Court of Bosnia & Herzogovina, OFFICIAL GAZETTE OF BIH 16/02 arts. 13-15, 34 (Bosn. & Herz.).
297. Law on Transfer of Cases, supra note 157, art. 4.
298. Id. arts. 3, 5.
299. Prosecutor v. Maktuf, Case No. K-127/04, Verdict of July 1, 2005 (Ct. of Bosn. & Herz. 2005).
300. The case began as an organized crime case, but due to the insufficiency of evidence on organized crime charges, Maktuf was convicted of war crimes for which there was better evidence.
301. For example, the statement of witness Dalibor Adzaip, used in the trial, was given at a trial before the ICTY on Sept. 7, 2004. See Prosecutor v. Maktuf, Case No. K-127/04, Verdict of July 1, 2005 (Ct. of Bosn. & Herz. 2005). Such admission of witness statements and evidence from the ICTY was allowed by article 5 of the Law on Transfer of Cases, supra note 157.
302. Interview with David Tolbert, ICTY Deputy Prosecutor, in The Hague, Neth. (July 1, 2005). A special team has been established for this purpose. Law on Transfer of Cases, supra note 157.
303. Interview with Ramiz Huremagic, Deputy Prosecutor of Bosnia & Herzogovina, in Sarajevo, Bosn. & Herz. (Aug. 8, 2005).
304. Id.
305. Prosecutor v. Boban, Case No. KT-RZ-2/05, Indictment of June 28, 2005 at 11 (Ct. of Bosn. & Herz. 2005). The cited ICTY case is Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment (Nov. 29, 2002).
306. See supra text accompanying notes 135-136.
307. Until the proposed federal prison is built, anyone convicted by the CBiH would have to serve his/her sentence in an FBiH or RS prison. These prisons are notoriously poor and raise serious dangers of ethnic bias. Rupert Skilbeck referenced serious detention problems. See Interview with Rupert Skilbeck, supra note 28. Construction of a federal prison for the State Court is now underway, with the cornerstone laid in August 2006. See Press Release, The Cornerstone Ceremony Inaugurating the Construction of the BiH Prison was held Today (Aug. 12, 2006), http://www.sudbih.gov.ba/?id= 51&jezik=e.
308. Although many have lauded the quality of Bosnian lawyers, see, e.g., Interview with Dan Beckwith, supra note 103, the transition to the adversarial system has not been easy and few have relevant war crimes prosecution experience. See Interview with Rupert Skilbeck, supra note 28.
309. For a discussion of equality of arms problems in other hybrid courts, see Burke-White, supra note 239, at 65-71.
310. Equality of Arms is guaranteed in the CODE OF CRIMINAL PROCEDURE, Aug. 1, 2003 art. 14, (Bosn. & Herz.). But, OKO's budget is less than one third of that for the international staff at the CBiH Office of the Prosecutor alone. Interview with Rupert Skilbeck, supra note 28. Moreover, the structure of defense payments in Bosnia is nowhere near that of the ICTY, meaning that there is likely to be a significant decline in defense resources when cases are transferred. No funding is available for defense investigation. Defense lawyers are not paid for pretrial work, offering no incentives for pretrial motions but instead to argue such issues during the trial itself, thereby delaying proceedings. Id.
311. While the Court is far less expensive than the ICTY, its costs are likely beyond the resources of the Bosnian domestic budget. For example, the five year proposed budget for the CBiH of €60 million is less than six months of the ICTY operating budget, which regularly runs to more than €100 million annually. For the complete budget proposals for the CBiH, see Project Implementation Plan Progress Report, supra note 29.
312. Interview with Michael Johnson, supra note 216. Of particular concern to many officials at the CBiH is the fact that, while the ICTY has handed off a portion of its caseload equivalent to approximately two years of trials, it has provided no direct financial contribution to the Bosnian court. Id.
313. See Press Release, Ct. Bosn. & Herz., Niset Ramić Convicted of War Crimes against Civilians and Sentenced to 30 Years Long Term Imprisonment (July 17, 2007), http://www.sudbih.gov.ba/?id=457&jezik=e;
314. Press Release, Ct. Bosn. & Herz., Goran and Zoran Damjanović Convicted of War Crimes against Civilians (June 18, 2007), http://www.sudbih. gov.ba/?id=436&jezik=e;
315. Press Release, Ct. Bosn. & Herz., Radmilo Vuković Convicted of War Crimes against Civilians (Apr. 16, 2007), http://www.sudbih.gov.ba/?id= 406&jezik=e;
316. Press Release, Ct. Bosn. & Herz., Marko Samardžija Convicted and Sentenced to 26 Years Imprisonment (Mar. 11, 2006), http://www.sudbih.gov. ba/?id=269&jezik=e;
317. Press Release, Ct. Bosn. & Herz., Nikola Kovačević Convicted and Sentenced to 12 Years Imprisonment (Mar. 11, 2006), http://www.sudbih.gov.ba/?id=268&jezik=e;
318. Press Release, Ct. Bosn. & Herz., NeCrossed d signo Samardžić Found Guilty and Sentenced to 13 Years and 4 Months Imprisonment (Apr. 7, 2006), http://www.sudbih.gov.ba/?id=133&jezik=e.
319. See generally Burke-White, supra note 8 (discussing the impact of the International Criminal Court in the Democratic Republic of Congo).
320. This is not to say that complementarity will always be the best jurisdictional relationship. Other goals, such as avoiding biased domestic prosecutions, may at times take precedence over encouraging domestic institutional development. Over time, however, priorities may change and international criminal tribunals may be well served by modifying their jurisdictional relationships with national governments toward relationships such as complementarity that are more likely to facilitate domestic judicial development.
321. For a broader discussion of how the ICC can more effectively use complementarity to promote domestic judicial development, see Burke-White, supra note 72.