337 / 532
321
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.’