INSTITUTION BUILDING AND HUMAN RIGHTS
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. 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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