1. Background
The Security Council has recently (resolution 1503 of 28 August 2003) reiterated that the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) should concentrate on the prosecution and trial of “the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction” and transfer cases of those not bearing this level of responsibility “to competent national jurisdictions”. It also noted the obligation of the countries of the former Yugoslavia to investigate those accused whose cases would not be tried by the ICTY and take appropriate action with respect to indictment and prosecution, while bearing in mind the primacy of the ICTY over national courts.

In the case of Bosnia-Herzegovina (BiH), it had become apparent that the prosecution of war crimes by domestic (Entity) courts had proven ineffective and/or not in compliance with international standards. The Office of the High Representative in BiH (OHR) joined with the International Criminal Tribunal for the former Yugoslavia (ICTY), to launch in 2003 an initiative to establish as part of the new State Court of BiH a special Chamber for War Crimes (WCC).

The Chamber would consist of three panels–two trial panels and one appeals panel. They would operate under the laws of BiH, which would be modified to provide for the effective prosecution of war crimes in accordance with international standards. In the first phase, the institution would have a temporary international component, such as a majority of international judges on each panel and an international Chief Deputy Prosecutor assisted by international and national prosecutors. After the initial period of operation, the international compenent would eventually be phased out.

Besides its own investigations and prosecutions, the WCC would also take up cases “coming down from the Hague”. These involve a mix of so-called cases, ranging from mere materials and information gathered by the ICTY Prosecutor on un-indicted persons to full-fledged cases involving indicted persons, possibly in custody, which a Trial Chamber of the ICTY has decided, under the applicable rule of procedure and evidence, to transfer to the authorities of a State for referral forthwith to the appropriate court for trial within that State.

It is anticipated that the WCC would begin functioning towards the end of 2004 or the beginning of 2005.

2. Most acute current questions regarding the topic
a) Financing the project. The international community, through OHR, is to finance the WCC project. Thus far, approximately 16 million Euros have been pledged for the first two years of operation of the WCC. An additional 21 million Euros will be required for years three to five.

b) Involvement of BiH in the project. While the international community took the initiative in establishing and financing the WCC, BiH authorities must be actively engaged in the successful organization and operation of the WCC and its public at large alerted to its importance and value. Successful prosecution of the war crimes in BiH itself is, as stated earlier by OHR and ICTY, an essential component in showing that justice is being served, promoting reconciliation among BiH’s communities and in bringing closure to the relatives of the approximately 250,000 war victims.

c ) Issues to be addressed for the successful operation of the WCC
– The legal framework: assessing the adequacy of national legislation and procedures for the prosecution of war crimes in accordance with international standards and the “receivability” of ICTY evidence, materials, etc. – Procedures for the review of potential cases with a view to deciding which should be taken up by the WCC.
– Staffing of the international component of the WCC and the State Prosecutor’s Office.
– Witness protection measures.
– War crimes investigations and arrests.
– Trial Monitoring by the ICTY and other representatives of the international community.
– Detention of the accused and imprisonment of the convicted.
– Renovation of premises assigned to the WCC.

3. Solutions/Recommendations
The solutions and recommendations are general but require commitment and follow-through:

a) Full support by the international community to the project, both in terms of monetary contribution and contributions in kind (personnel, etc.). This will be needed for years 3 to 5 of the project (approx. 2006- 2008). It is imperative that the international community commit resources in support of capacity-building measures which enhance the ability of BiH institutions to meet international standards of the rule of law and the promotion of equal justice for all.

b) BiH must engage its personnel, media and general public in the organization, operation and support of the WCC.

c) Strong and effective management of the project is required, in view of the need to coordinate the collaborative efforts of BiH, OHR, ICTY and other international actors.