Address of the Prosecutor at the Inauguration of the War Crimes Chamber of the Court of BH, Sarajevo, 9 March 2005

Excellencies, Ladies and Gentlemen, dear colleagues,

Many of the right words were uttered today in regard to the inauguration of the War Crimes Chamber of the Court of Bosnia-Herzegovina. I would like to be brief and wholeheartedly join the previous speakers in welcoming this important event. I wish our partners - Judges and Prosecutors of the Court and its War Crimes Chamber - full success and a lot of courage, both professional and moral. I appeal to the International Community to continuously and generously support this effort, as the majority of most terrible crimes in the 1990’s were committed in Bosnia-Herzegovina.

Bosnia-Herzegovina, finally, has received a legal forum at the state level to deal with war crimes, including the cases to be referred from the ICTY. Together with special Courts for war crimes in Croatia and Serbia, and subject to effective regional co-operation, the Sarajevo-based War Crimes Chamber is bound to join the legal battle against impunity. My Office has for a long time supported domestic war crimes prosecutions and promoted direct co-operation between relevant states. With the resources available to me we will continue to assist this process.

The importance of the Sarajevo War Crimes Chamber is clear to all of us. Allow me to stress only a couple of issues, which, in my view, will be at the core of domestic war crimes prosecutions. First, they must be victims-oriented and victims-driven, and not be seen as a process for the sake of the process, justice for the sake of justice. Secondly, they must be credible and seen as apolitical and depoliticised proceedings - which is of tremendous importance for the witnesses. And thirdly, they will have to fight against deeply embedded prejudices, public misconceptions, unsettled grievances and probably political interference. Clearly, there will be numerous challenges and obstacles in the way. However, you will have the luxury of no deadlines to complete the task.

We always say that there were thousands of perpetrators of war crimes and the Tribunal was not designed to deal with all of them. Concurrent jurisdiction of the ICTY and national courts unfortunately did not work as expected and a lot of time was wasted, much of the evidence lost with witnesses passing away and becoming increasingly reluctant to testify. However, the legacy of the ICTY and its jurisprudence will be of great assistance to you.

All of us working on war crimes are under the scrutiny of the thousands of victims on different sides. Thus we must always keep in mind Martin Luther King’s words: ‘Injustice anywhere is a threat to justice everywhere.’ Those of you working for the War Crimes Chamber in Sarajevo will be monitored not only by the international community, but even more so by your three peoples, two entities, your neighbours. The Court of BH must become a truly national court, which will mean a big step forward towards reconciliation. Enormous effort and crystal-clear fairness are needed to destroy suspicion, prejudice, lack of confidence. It is a great challenge, not a privilege. And in many ways your task will be more difficult, as you do not have the powers of the International Tribunal. However, your power and authority are even greater since this is your country.

Since the Nuremberg and Tokyo tribunals, this is the first time that the authority to prosecute war criminals is being transferred to a national jurisdiction. It would be wrong to think that success is guaranteed. We shall all have to see how the practice and experience of the ICTY are to be translated into trials on the national level. Recently-held hearings at the ICTY in regard to the transfer of cases to national courts revealed many problems. There remain issues due to the different legal systems, issues related to command responsibility and retroactivity. We often hear unfair and unnecessary attempts commonly used to distinguish between ‘defenders’ and ‘aggressors’, us and them. My message is - there shall be no credit given to a ‘defender’ if he killed or ordered the killing of innocent civilians: all are equal in front of the court of law. The criteria for success should be the same and simple: the victims must be satisfied as far as possible, since there were hundreds of thousands of them; and their suffering must be addressed in the first place.

The debate on war crimes in the former Yugoslavia is not subsiding. It is present in the daily life and media, and always politicised. This is the environment you will have to work in: the public is interested only in those suspected or accused, i.e. in politically rather than judicially defined truth. I am far more concerned about the victims of war crimes and their families, and I appeal to you to make the victim aspect of any legal process a priority.

Finally, the main point. National courts are to continue our work, impunity should not be tolerate,d and this is our moral and professional obligation as lawyers. Rephrasing the words of the famous Russian writer Solzhenitsyn, known for his personal ordeal thanks to the horrible injustice of Stalin’s regime, we can all agree with him that without punishment of those who committed crimes we are taking away the foundations of justice from beneath new generations… For the sake of the future generations in this country, I wish the War Crimes Chamber and the Court of B-H full success in bringing criminals to justice. Thank you.

Press release from the Office of the Prosecutor, The Hague, 9 March 2005