BY: MARIA THERESA MAAN - BEŠIĆ
SARAJEVO, BOSNIA ND HERZEGOVINA
OCTOBER 29, 2008
SCRIPT SUMMARY:
International legal precedents
and local BiH law function together to established guidelines for the Sud BiH
to utilize in protecting witness’s rights. However, without the commitment of
all of the court’s staff involved in working with witnesses to follow and take
advantage of these guidelines, the laws are simply symbolic protections without
the potential for practical application. In addition, if the external
institutions supposedly working in partnership with the Sud BiH are unaware as
to the specific roles intended for them, it is unlikely that a functional
network of support systems can be created for survivor witnesses throughout the
entire duration of their testifying process. The significant emotional effects
of retelling a traumatizing story in a public forum, combined with the larger
social and economic concerns of survivor witnesses makes them a particularly
vulnerable group of people. The Sud BiH needs to take the first step in
recognizing this, and establishing trust between itself and witnesses in order
to make the process of testifying mutually beneficial.
The legal precedents set by
courts in the international community have the potential to serve survivor
witnesses from BiH testifying in the Sud BiH. The decisions set forth in
several cases in the ECHR are designed to set important precedents in
protecting the rights of witnesses and in particular the rights of survivors of
sexual violence who are acting as witnesses in court. The Sud BiH is legally
able to refer to these decisions as legitimate foundations for some of its own
decisions, and as such should consider some of the more rigorous protections
for the witness set forth by the ECHR.
The ICTY has set an important
international standard in prosecuting wartime sexual violence. However, it too
was once a new institution and as such has made many mistakes and had to learn
from them. The Sud BiH should learn from those mistakes as well, in order to
prevent making the same mistakes that can destroy trust between local
communities and legal institutions, and therefore eliminating the possibility
that injured parties will willingly come forward to act as witnesses in the
court.
The WSO in the Sud BiH could also
benefit from some internal improvements. Judging from the interview with Lucia
Dighiero, while the office and its staff are clearly focused on the needs of
the witness and his or her psychological well-being before and during the
testifying process, their
focus is incredibly narrow. The lack of dedication to creating any kind of
large scale, court-sponsored witness outreach program, and to working with
local NGOs in order to have a presence in local communities and gain the trust
of potential witnesses living there is truly limiting the WSO’s effectiveness.
Without any apparent interest in the local communities of the Sud BiH, the WSO
is restricting its ability to build trust with potential witnesses. The support
it provides witnesses before and during the giving of testimony in the
courtroom is no doubt incredibly important, and, it seems, generally effective
and helpful. However, it is the more long-term concerns of survivor witnesses
that have the greatest impact on their lives, and that seem to be the least
important to the WSO.
Organizations unaffiliated with
the court are all doing important work on their own to improve the experiences
of survivor witnesses both in the court itself, pressuring the Sud BiH to
engage in more transparent and consistent practices, and outside of the court
in broader social, economic, and public health contexts. However, the work of
these organizations will never reach its true potential in helping survivor
witnesses until coalitions are built between organizations working on different
aspects of the witness’s experience. When that happens, the organizations will
not only become stronger in their own work, but also will be able to clearly
identify their own roles in the process, eliminating extra work that another
organization can take on, and eradicating overlap in the work of different
organizations. In addition, all of these organizations need to continue an open
dialogue with the Sud BiH itself. A significant part of this responsibility
lies on the part of the Sud BiH in establishing a dedication and commitment to
community outreach, which at the moment is certainly does not have.[1]
The Sud BiH and external organizations supporting the court’s work need to
establish the roles of each in making the processes of the court as transparent
and effective as possible. If this happens, survivor witnesses will certainly
begin to benefit from the improved capacity of both the court and NGOs to serve
them and directly address their needs.
The Sud BiH is a new institution
with great responsibility, and plays important role in the success of
transitional justice not only in BiH itself, but also in the region of the
former Yugoslavia as a whole. As a new
legal institution, the Sud BiH has handed down unprecedented and absolutely
important sentences for war criminals that committed some of the most
devastating crimes during the war in BiH in the 1990s. These decisions and the
positive effect they have had on the healing of a nation do not absolve the
court of improving the more minute aspects of its practices. A legal
institution must constantly scrutinize its own practices in order to be sure
that it is fairly and equally serving all parties involved in the cases it
takes on.
Given the importance of witnesses
in prosecuting war crimes cases in the Sud BiH, it is only logical that the
court would do everything in its power to protect the rights of the witness and
establish trust in communities where potential witnesses live. Using precedents
set in international law, its own national laws, and working together with the
media, NGOs, and international organizations, the Sud BiH can improve its
practices regarding witnesses. Until it does, it is unlikely that survivor
witnesses will receive the kind of support and care that they need when going
through such a difficult experience.
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[1] Based on interview of Ms. Brett, stated
that Nerma Jelaćić indicated the serious lack of any commitment to the
community on the part of the Sud BiH when she mentioned that when it was
requested of the court to go into the communities in which it handed down a
sentence and explain the sentence to locals, it flat out refused and claimed
that it was not its responsibility to do so. This and other stories cause me to
believe that the Sud BiH has a long way to come in showing its commitment to
the communities of BiH.
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