CYIL 2014

THE ROLE OF INTERNATIONAL LAW IN THE RULE OF LAW EFFORTS IN POSTǧDAYTON… part of its completion strategy and in order to reduce its workload, the ICTY decided to refer certain cases to national authorities. However, as was noted by the former President of the ICTY, the completion strategy should not be understood simply as the need to get rid of cases, but it was planned as ‘a strategy for the continuation by domestic actors of those activities that were initiated by the ICTY’, with the aim of ‘upholding the international rule of law , preventing impunity and widely sharing the Tribunal’s institutional knowledge and jurisprudence ... the “Completion Strategy” is an unprecedented attempt to contribute to the development of the rule of law , both in the region of the former Yugoslavia and beyond’. 66 Accordingly, on the basis of a ‘continued legacy building’, 67 assistance in strengthening of the capacity of local jurisdictions was provided to national authorities in BiH. It follows that the establishment of the WCC was a joint initiative of the ICTY and the OHR and was therefore a result of a top-down, rather than bottom up, approach. The two judicial institutions cooperate extensively, as can be seen by the fact that the WCC basically accepted the ‘legal concept’ of the ICTY. 68 In addition, many former ICTY employees have joined the WCC and brought to it their expertise. This brings us to the question of legal personnel serving at the WCC. It was agreed that mixed panels of both international and national judges would be created. The OHR appointed the international judges (and prosecutors), and the High Judicial and Prosecution Council of BiH appointed the domestic ones. The WCC began its work in 2005 with a majority of international judges, and their gradual phasing out was envisaged over five years. 3.2 Contribution of International Personnel at the WCC to Rule of Law Efforts in BiH The contribution of international personnel to the rule of law efforts in this area is at least twofold. First, international personnel, if properly chosen and trained, can bring expertise in the application of international law and modern approaches to legal interpretation. 69 Second, international crimes are characterized by a collective and large-scale character, often with a political dimension. Accordingly, their investigation, prosecution, and punishment are politically very sensitive. Possible interference by local politicians or decisions of judges appointed on political grounds could seriously Herzegovina shall cooperate and provide unrestricted access to […] the International Tribunal for the Former Yugoslavia[…].’ 66 J. Pocar, Completion or Continuation Strategy? Appraising Problems and Possible Developments, 6 International Criminal Justice 655-665 (2008) (emphasis added). 67 Ibid. 68 Such as use of adjudicated facts established by the ICTY or reliance on the ICTY’s case-law with regards to substantive law issues. 69 On this point, see Schröder, supra note 60, pp. 5-6: ‘Judges in the Yugoslav legal system had very little competence in interpreting the law. This exclusion of judges from the interpretation of laws is a clear violation of the principle of the separation of powers. Under the socialist legal system judges were in effect not much more than executive organs of the ruling party.’

321