his piece is part three of a conversation with David Schwendiman, chief prosecutor and head of the Special Department for War Crimes of Bosnia and Herzegovina. Part one can be found here, and part two can be found here.
In part one and part two of this series, David Schwendiman encouraged Ukraine to follow Bosnia and Herzegovina’s model as they seek options for prosecuting crimes of aggression. But while Bosnia and Herzegovina involved foreign experts after the International Criminal Court completed their work, Schwendiman argues that Ukraine can welcome foreign prosecutors and judges now to assist in their prosecutions, working in tandem with the ICC. Doing so, Schwendiman believes, will allow Ukraine to successfully prosecute urgent cases while avoiding bias and strengthening their judiciary.
The most obvious advantage of following Bosnia and Herzegovina’s model is that cases are handled by expert international prosecutors and judges. Given the complexity of many cases, the International Criminal Tribunal for the Former Yugoslavia feared local judges and prosecutors would be vulnerable to bribes and threats. “This [model] ensured these cases wouldn’t go back to local courts and fail,” Schwendiman explained. Using a similar model in Ukraine would reassure the international community that cases are prosecuted efficiently and fairly. This is important because Ukraine has already somewhat undermined confidence in their ability to prosecute war crimes domestically. In May 2022, Ukraine prosecuted its first prisoner of war, finding him guilty of war crimes. Under the Third Geneva Convention, prisoners of war should be tried in a military court, unless the Detaining Power (in this case, Ukraine) permits otherwise. Ukraine abolished its military courts in 2010, so the Russian soldier was tried in a domestic court.
Schwendiman expressed concerns about the case’s handling, commenting that even when tried in a domestic court, Russian soldiers must still be afforded their basic rights. “By all accounts, [the defendant] had a reasonable defense, and it was never really considered…he was probably induced to plead guilty. A defense counselor certainly didn't do anything to raise the defense.” Schwendiman added that while he was not persuaded by the defendant's defense, it was a defense nonetheless and “should have been presented to make the outcome more legitimate.” Other legal experts have expressed similar concerns about the case.
Implementing Bosnia and Herzegovina’s model now would reduce the potential for bias (and accusations of bias) in Ukraine’s current prosecution of war crimes. In Bosnia and Herzegovina, when local politics and ethnic loyalties threatened to jeopardize investigations, Schwendiman represented a neutral voice. “In the really tough cases where decisions had to be made that had a political tone to them, I could step up and say ‘no, I made that decision,’” he recalls. As a foreign prosecutor, he could make controversial decisions without being accused of national or ethnic bias, which “[took] the heat off” local officials. Officials in Ukraine could similarly benefit from the immediate involvement of outside prosecutors.
Allowing international prosecutors to begin now in assisting Ukraine’s work would ensure the best possible outcome for current cases while training and improving the local judiciary to handle the enormous workload ahead. Schwendiman says Bosnian prosecutors appreciated that international experts assisted them in their work. Schwendiman paired local and international prosecutors for difficult cases like the genocide cases in Srebrenica: “They just got to know each other really really well. They learned from each other. I mean I learned as much from the Bosnian prosecutors I worked with as they did from me.” Building prosecutorial partnerships as soon as possible may benefit everyone involved.
Schwendiman offered advice for amicably involving international figures: “The only way this is going to work is if people come in and actually do the work. Not just come in and tell people how to do the work, but come in and work with them side by side, and be part of the system.” Schwendiman explained that years of Tito-era prosecutions had left Bosnian prosecutors feeling despondent and lethargic. “They didn’t like to argue to the court because that’s not how it was done in the Tito era. You didn’t argue with the court.” Schwendiman described the positive effect of having domestic prosecutors work alongside aggressive international prosecutors and before international judges who expected strong cases. Over time, the culture of the office changed. “By the end [the local prosecutors] were as aggressive about working the investigation and getting out on the ground as we were.”
Assisting Ukraine in their prosecutorial work today will set their judiciary up for future success. The West has lauded Ukraine as a bastion of democratic values since the outbreak of the war. That being said, Ukraine’s judiciary is still “hampered by corruption and political interference,” according to Freedom House. In some ways, the West has fashioned large democratic shoes for a post-war Ukraine to fill. International experts working alongside domestic prosecutors and judges will help Ukraine, strengthen their judiciary, find justice for their citizens, and rebuild their democracy as they strive to fulfill their potential as a free democratic state. That work should begin immediately.
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Lessons from Bosnia and Herzegovina for Ukraine
Artwork memorializing the Srebrenica massacre in Bosnia, 1995. Image by farukgarib from Pixabay.
January 15, 2023
In the final part of a 3-part series, CSPC's Sophie Williams explores suggestions by David Schwendiman on what Ukraine can do now to bring in foreign prosecutors and judges to assist in prosecuting war crimes now, referencing Bosnia and Herzegovina as a model.
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his piece is part three of a conversation with David Schwendiman, chief prosecutor and head of the Special Department for War Crimes of Bosnia and Herzegovina. Part one can be found here, and part two can be found here.
In part one and part two of this series, David Schwendiman encouraged Ukraine to follow Bosnia and Herzegovina’s model as they seek options for prosecuting crimes of aggression. But while Bosnia and Herzegovina involved foreign experts after the International Criminal Court completed their work, Schwendiman argues that Ukraine can welcome foreign prosecutors and judges now to assist in their prosecutions, working in tandem with the ICC. Doing so, Schwendiman believes, will allow Ukraine to successfully prosecute urgent cases while avoiding bias and strengthening their judiciary.
The most obvious advantage of following Bosnia and Herzegovina’s model is that cases are handled by expert international prosecutors and judges. Given the complexity of many cases, the International Criminal Tribunal for the Former Yugoslavia feared local judges and prosecutors would be vulnerable to bribes and threats. “This [model] ensured these cases wouldn’t go back to local courts and fail,” Schwendiman explained. Using a similar model in Ukraine would reassure the international community that cases are prosecuted efficiently and fairly. This is important because Ukraine has already somewhat undermined confidence in their ability to prosecute war crimes domestically. In May 2022, Ukraine prosecuted its first prisoner of war, finding him guilty of war crimes. Under the Third Geneva Convention, prisoners of war should be tried in a military court, unless the Detaining Power (in this case, Ukraine) permits otherwise. Ukraine abolished its military courts in 2010, so the Russian soldier was tried in a domestic court.
Schwendiman expressed concerns about the case’s handling, commenting that even when tried in a domestic court, Russian soldiers must still be afforded their basic rights. “By all accounts, [the defendant] had a reasonable defense, and it was never really considered…he was probably induced to plead guilty. A defense counselor certainly didn't do anything to raise the defense.” Schwendiman added that while he was not persuaded by the defendant's defense, it was a defense nonetheless and “should have been presented to make the outcome more legitimate.” Other legal experts have expressed similar concerns about the case.
Implementing Bosnia and Herzegovina’s model now would reduce the potential for bias (and accusations of bias) in Ukraine’s current prosecution of war crimes. In Bosnia and Herzegovina, when local politics and ethnic loyalties threatened to jeopardize investigations, Schwendiman represented a neutral voice. “In the really tough cases where decisions had to be made that had a political tone to them, I could step up and say ‘no, I made that decision,’” he recalls. As a foreign prosecutor, he could make controversial decisions without being accused of national or ethnic bias, which “[took] the heat off” local officials. Officials in Ukraine could similarly benefit from the immediate involvement of outside prosecutors.
Allowing international prosecutors to begin now in assisting Ukraine’s work would ensure the best possible outcome for current cases while training and improving the local judiciary to handle the enormous workload ahead. Schwendiman says Bosnian prosecutors appreciated that international experts assisted them in their work. Schwendiman paired local and international prosecutors for difficult cases like the genocide cases in Srebrenica: “They just got to know each other really really well. They learned from each other. I mean I learned as much from the Bosnian prosecutors I worked with as they did from me.” Building prosecutorial partnerships as soon as possible may benefit everyone involved.
Schwendiman offered advice for amicably involving international figures: “The only way this is going to work is if people come in and actually do the work. Not just come in and tell people how to do the work, but come in and work with them side by side, and be part of the system.” Schwendiman explained that years of Tito-era prosecutions had left Bosnian prosecutors feeling despondent and lethargic. “They didn’t like to argue to the court because that’s not how it was done in the Tito era. You didn’t argue with the court.” Schwendiman described the positive effect of having domestic prosecutors work alongside aggressive international prosecutors and before international judges who expected strong cases. Over time, the culture of the office changed. “By the end [the local prosecutors] were as aggressive about working the investigation and getting out on the ground as we were.”
Assisting Ukraine in their prosecutorial work today will set their judiciary up for future success. The West has lauded Ukraine as a bastion of democratic values since the outbreak of the war. That being said, Ukraine’s judiciary is still “hampered by corruption and political interference,” according to Freedom House. In some ways, the West has fashioned large democratic shoes for a post-war Ukraine to fill. International experts working alongside domestic prosecutors and judges will help Ukraine, strengthen their judiciary, find justice for their citizens, and rebuild their democracy as they strive to fulfill their potential as a free democratic state. That work should begin immediately.
