When the ICTY was established, one of the most important concerns raised was related to the remoteness of the Court from the region over which it has jurisdiction. However, one of the key purposes of war crimes court, in addition to penalty and criminal justice function, was to open up the space for a social reconciliation by the means of establishing the truth about the war and accepting it. Reconciliation among the three peoples would fulfill one more purpose of criminal justice and that is prevention of a future conflict by setting the historical record straight. Mentioned objectives, critics were arguing, would be easier to achieve had the ICTY been set in Bosnia. This line of argument had overlooked one important fact: when the ICTY started its work, the war was raging in Bosnia, and even after the war has ended, it was difficult to find consensus among the three peoples over much more mundane issues then the war crimes. So, the war crimes issue for new Dayton partners was far away, in The Hague, and it is pointless to argue whether it was a good solution. It was the only solution, and the record of war crimes prosecuted locally, on the cantonal level in Bosnia, after the war ended, proves this point.

According to the Rome Agreement of 18 February 1996, commonly referred to as the Rules of the Road, “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.” In accordance with this Agreement, Office of the Prosecutor in The Hague has established a special team which reviews case files from Bosnia and Herzegovina and grants permission for prosecution before domestic courts. Up to date, this team gave permission for prosecution of 900 persons. Less then 50 persons were prosecuted in local courts. Common objections to local trials were inefficiency of a court appointed lawyer, insufficient evidence by international standards, problems regarding lack of eye witnesses and generally, weak testimonies…

With the ongoing judicial reform in BiH, and the State Court in place, a condition is met for the establishment of the War Crimes Chamber at the State Court, which will allow prosecution of war crimes on a state level. According to the latest information from the Office of the High Representative, the War Crimes Chamber at the State Court should start with first trials by the end of this year. In the Trial Chambers of this new court international judges shall have majority, while the work of national judges will be consistently monitored. If records of national judges prove to be satisfactory, the number of international judges will be gradually reduced in the Trial Chambers. The same applies for the Office of the Prosecutor.

Considering the magnitude of crimes committed in Bosnia during the four years of war, the establishment of the War Crimes Chamber as part of the State Court seems to be the best possible solution for the future war crimes prosecution. It is encouraging that the Judges Chambers and Prosecutors office will have majority international staff. It is also important that the State Court will have a witness protection department. However, ten years after the war ended, one should be rather careful in showing excessive optimism about the prosecution of war crimes in Bosnia.

Even if the State Court overcomes problem with the partiality of judges, problem of witnesses remains. That was one of the important problems in local trials and the same problem will be transferred to the State Court as well. Most of the witnesses (if we exclude international and expert witnesses) are victims that suffered terrible losses and traumas during the war. According to the definition of victimology as the independent study of the relationship and interactions between offender and victim before, during and after the crime (Nagel, 1959; Schaffer 1968) Bosnia is a rather reach field for research. The third part of this definition (“after the crime”) is not a relationship victims/witnesses have with the offenders only during the court proceedings. In many war crime cases prosecuted locally, it was expected from witnesses to testify against their own neighbors. For example, during the investigation against Bosnian Croat, Zeljko Didi´cin Mostar, prosecutor had 21 witness statement that supported indictment against Didi´c. At the trial most common answer of witnesses was: “I don’t know!” “I don’t remember!” The fear witnesses had during this trial was justified, since the Prosecutor himself confirmed that he feared for his life and the life of his family since individuals who committed war crimes during the war, nowadays in Bosnia are often bosses of organized crime.

Therefore, the question of adequate witness protection remains. It is not possible to overcome that problem with simply establishing a Witness protection department at the State Court. In Bosnia, which is a small country, and where key witnesses could be neighbors of the indicted war criminal, it is very difficult to hide the identity of the witness. Therefore, considering that the former war criminals are most often Mafia bosses in Bosnia, it is necessary to improve a general security situation. I could not see why a witness who feared testifying in Mostar against Zeljko Dzidic would not fear to come and testify in Sarajevo before the State Court, unless this witness is not within the witness relocation program. Considering the magnitude of crimes and the large number of witnesses, it is hard to imagine that relocation of witnesses is a viable solution. The only way to have witnesses testify freely is to have them believe that the bosses of organized crime are loosing influence, and to have them restore the trust in the local police. Therefore, war crimes investigations and prosecutions have to be followed with more vigorous organized crime investigations and prosecution.

In addition, after years of unsuccessful domestic prosecution of war crimes, it is going to be rather difficult to restore confidence of people in possibility of war crimes prosecution within the country.A special media campaign is required for this project that is not going to give space to local journalists to make heroes from indicted war criminals, which was the case so far.