Postwar Justice in Bosnia and Herzegovina

• DOI: 10.1177/1057567720984621
• Published date: 01 June 2021
• Author: Darko Datzer,John Hagan,Sanja Kutnjak Ivković
• Date: 01 June 2021
• Subject Matter: Articles

Article

Postwar Justice in Bosnia

and Herzegovina

Sanja Kutnjak Ivkovic

´

1

, Darko Datzer

2

,

and John Hagan

3

Abstract

This article explores the perceptions of justice expressed by victims of severe violations of human

rights in Bosnia and Herzegovina (BiH) who have testified before the International Criminal Tribunal

for the former Yugoslavia (ICTY) and/or the Court of BiH. In 2009, we surveyed 495 members of

a victims’ association and inquired about their perceptions of postwar justice. The respondents

were more likely to assess the ICTY than the Court of BiH as fair both in terms of its decisions and

procedures. Compared to the perceptions of procedural justice, perceptions of distributive

justice were more strongly correlated with the assessments of both courts’ overall fairness.

Multivariate logistic regression models reveal that measures of procedural justice are directly

related to the respondents’ evaluations of the both courts’ fairness, while demographic factors were

mostly unrelated to their evaluations of the two courts. The results of our study suggest that the

respondents who said that they testified at the ICTY had more positive views about both the ICTY

and the Court of BiH than the respondents who said that they either testified at both courts or only

at the Court of BiH.

Keywords

international courts, genocide, procedural justice, distributive justice, former Yugoslavia, Bosnia and

Herzegovina

After Bosnia and Herzegovina (BiH) declared independence from the former Yugoslavia on

March 3, 1992, the war followed soon. Over the next 4 years, the war resulted in over 100,000

people killed (Del Ponte & Sudetic, 2009), 1 million refugees, and 1 million internally displaced

persons (Ronen, 2014). Ball et al. (2007, p. 29) from the Households in Conflict Network estimate

that, of the victims who had died during the war in BiH, 66%were Muslim, 26%Serb, and 8%Croat.

The war eventually ended when the Dayton Peace Accords were signed in December 1995. Based on

these accords, the postwar country is composed of two entities—the Federation (composed primarily

1

Michigan State University, East Lansing, MI, USA

2

University of Sarajevo, Sarajevo, Bosnia and Herzegovina

3

Northwestern University, Evanston, IL, USA

Corresponding Author:

Sanja Kutnjak Ivkovic

´, Michigan State University, 560 Baker Hall, East Lansing, MI 48824, USA.

Email: kutnjak@msu.edu

International CriminalJustice Review

2021, Vol. 31(2) 161-181

ª2021 Georgia State University

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/1057567720984621

journals.sagepub.com/home/icj

of Muslims/Bosniaks and Croats) and the Republika Srpska (composed primarily of Serbs)—and the

self-governing Brcko District (composed of Muslims/Bosniaks, Serbs, and Croats).

The war in BiH (1992–1995) was preceded by the war in Croatia (1991–1995) and, eventually,

followed by the war in Kosovo (1998–1999). The extent and severity of the human rights violations

in the former Yugoslavia in the early 1990s—according to the United Nations (UN) Commission of

Experts (1994), resulting in more than 3 million refugees, about 200,000–250,000 dead, 50,000

tortured, and 20,000 raped—prompted the UN Security Council to create the International Criminal

Tribunal for the former Yugoslavia (ICTY). The ICTY, the first international tribunal established

after the Nuremberg Tribunal and Tokyo Tribunal, had multiple purposes (UN Security Council

Resolution 827, 1993; ICTY, 2006). In addition to serving the goals of specific and general deter-

rence and delivering justice to the victims (ICTY, 1994, p. 11), the ICTY was envisioned to have a

long-term impact on the whole region:

Thus the establishment of t he Tribunal should undoubt edly be regarded as a measur e designed to

promote peace by meting out justice in a manner conducive to the full establishment of healthy and

cooperative relations among the various national and ethnic groups in the former Yugoslavia. (ICTY,

1994, p. 12)

Although the UN Security Council Resolution 827 (1993) and the ICTY Statute (Rule 9, 2009)

claimed that the ICTY and local courts have concurrent jurisdiction over war crimes and crimes

against humanity cases, the ICTY was also given primary jurisdiction over such cases. In accordance

with its temporary nature, a decade after its establishment, the ICTY started implementing its closing

strategy, transferring a number of cases to the local courts in BiH, Croatia, and Serbia. Of the eight

transferred cases with 13 defendants (ICTY, 2020), the majority (six cases with 10 defendants) went

to BiH to be tried at the newly established Court of BiH.

The Court of BiH, a domestic court supported heavily by the international community, was

established in 2002 (Law on the Court of BiH, 2000). The War Crime Chamber within the Court

of BiH, in charge of cases dealing with war crimes and crimes against humanity, became operational

in 2005 (Ivaniˇsevic´, 2008, p. 7):

The War Crimes Chamber was intended to give the national judiciary the capacity to conduct war crimes

trials according to interna tional standards. Its esta blishment was a vital compo nent of the strategy

designed by the Internation al Criminal Tribunal for the for mer Yugoslavia (ICTY) to cl ose all its

proceedings by 2010, as requested by the UN Security Council.

Although the Court of BiH was established as a local court, it has received strong support from

the international community. First, the War Crimes Chamber “was the direct result of an agreement

reached in January 2003 between the OHR [Office of High Representative] and the ICTY”

(Ivaniˇsevic´, 2008, p. 6), resulting from the ICTY planning of its completion strategy and the OHR’s

concern about the fair trials at the local courts in BiH. Second, the Court received substantial funding

from the international community; between 2003 and 2012, the international community invested

€62 million to support judicial institutions in BiH, including the Court of BiH (2016). In recent

years, the Court has been supported solely by the BiH state budget (Court of BiH, 2016). Third,

international judges and prosecutors initially served hand in hand with domestic judges and prose-

cutors, transferring knowledge and practices established by the ICTY. They have been gradually

phased out and, eventually, completely replaced by local judges and prosecutors.

This article expands the very limited literature on justice provided by international and domestic

courts in the aftermath of severe violations of international humanitarian law. It explores and

compares the views of the justice delivered by a transnational court (the ICTY) and a semidomestic

162 International Criminal Justice Review 31(2)