CYIL 2014

KATEŘINA UHLÍŘOVÁ CYIL 5 ȍ2014Ȏ hamper the application of (international) law. The appointment of international personnel should therefore also be seen as an important safeguard to secure independent and impartial prosecutions and punishment of crimes committed. 70 In other words, not only new domestic legislation incorporating international law (ie the Constitution and CC BiH), but also implementation of such law by judges who are independent and perceived as such, is crucial to judicial decisions being accepted by the local population, and to the success of the rule of law efforts on the ground. Without international personnel at the WCC, political and ethnic considerations could prevail during proceedings before it, thereby influencing its role and limiting effective application of international law. This argument can be supported by the previous negative experience with other judicial institutions in BiH that were also empowered to apply international law: […] local judges at the Human Rights Chamber as well as at the Constitutional Court often took political aspects of a case into consideration or decided depending on the parties’ ethnicity. As soon as a case was relevant for the balance of power between the State of BiH and one of the three ethnic groups , Bosnian judges would always vote in favor of their own ethnicity. This imbalance was particularly obvious in the case of the Serb judges who served at the Constitutional Court until 2002 and who argued as a matter of principle in favor of the constitution and laws of the Republica Srpska. Their arguments were political, not legal ones. 71 It is also clear that international personnel cannot (and should not) stay at the WCC (or in BiH in general) indefinitely. It was originally expected that there should be purely national panels by December 2009. 72 However, representatives of BiH’s judiciary repeatedly stressed that it was necessary to extend the mandates of international judges and prosecutors. For example, the President of the Court, Meddžida Kreso, stated: ‘The unstable political situation in Bosnia and complaints of biased treatment of one ethnic group or another suggest the mandate of international judges and prosecutors needs extending. Local judges are able and ready to tackle these complex cases, but the international judges bring credibility and trust.’ 73 The proposed extension of the mandates of international judges and prosecutors was not, however, adopted by the House of Representatives of the Parliament of BiH, where delegates from Republika Srpska blocked suggested amendments to the Law on Court of Bosnia and Herzegovina, 74 arguing, that ‘Bosnia and Herzegovina cannot be 70 For, on the other hand, some problems encountered in participation of international personnel in BiH see Schröder, supra note 60, pp. 19-30. 71 Schröder, supra note 60, p. 24 (emphasis added). 72 See Judges Leave War Crimes Chamber, Project Implementation Plan Registry Progress Report, Balkan Investigative Reporting Network (BIRN) (October 2004), available at http://www.ohr.int//ohr-dept/ rule-oflaw-pillar/pdf/wcc-project-plan-201004-eng.pdf (visited 10 February 2009). 73 N. Ahmetašević, International Judges Must Stay in Bosnia, BIRN’s Balkan Insight (24 April 2008), available at www.balkaninsight.com/en/main/interviews/9661/ (visited 8 August 2011). 74 ‘Law on the Court of Bosnia and Herzegovina’ regulates operation of the WCC, including its structure, procedural rules, and jurisdiction: Official Gazette of Bosnia and Herzegovina No. 29/00.

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