Patricia Whalen: Justice needs to be perfected

In an interview for BIRN’s Justice Report, Whalen estimates that trials for war crimes before the Court of Bosnia and Herzegovina are fair and that the indictees have all the rights, but that the procedures and legal proceedings could be better.

In her opinion, assistance in the acceptance of international law and standards when it is matter of prosecution of war crimes cases, as well as in the management of large cases with thousands of pages of evidence – is the largest contribution of international judges to the work of the Court of Bosnia and Herzegovina.

Whalen worked for 17 years in the judiciary of the State of Vermont, U.S.A., and afterwards she engaged herself in the field of international law. She was appointed in the Court of Bosnia and Herzegovina in 2007, where she worked in Trial Chambers of war crimes.

Regarding her work in Bosnia and Herzegovina, she says that she will most remember the good co-operation with her colleagues in the Court of Bosnia and Herzegovina, and in particular the testimonies of victims, whose stories have become an integral part of her.

JR: Can you tell us what your impressions were when you came to the Court five years ago, in a foreign country? I suppose that many things were different when you compare it with the American judiciary.

WHALEN: Well, I was surprised how many things are actually the same. It was a very familiar environment for me, the courtrooms are almost the same, we all wear robes, while the judges and staff were very professional, so I felt comfortable. Our Criminal Code is very different, but I have been studying it for about four months before I came here, to familiarise myself with it, as well as other laws that are currently in force, but also the laws of the former Yugoslavia.

JR: You worked in the Trial Chambers of war crimes, and you have exhibits and witnesses statements in front of you. However, was it hard for you to understand all the developments of the last war?

WHALEN: I was fortunate to work with the judges in my Chamber who lived here, who have lived through the war. The presiding judge of my Council was a military judge during the war here, so people were helping me to understand things that I could not understand. Initially, what was difficult to understand for me while I listened to the evidences were the differences in names and places, so I had to stay up late every night so that I could learn it. It was hard in the beginning.

JR: In your opinion, what is the greatest benefit that the Court of Bosnia and Herzegovina has received through the engagement of foreign judges?

WHALEN: Most of the judges here, as well as the judges in the U.S.A., are not trained in international law, war crimes, genocide, crimes against humanity. These are very specific legal areas, and usually we are not studying them at law schools, we do not learn about them. So what we have brought is our experience in the field of the international law. Most of the research, the majority of cases has been translated in English, or were originally written in English, so it was very difficult for local judges to access to those documents, because many of them do not speak or read English. Also, I think that the complexity of these trials was a challenge. These are challenges for any judge, no matter where he is located. I come from the court where I had experience with the management of large cases. For example, in the case of Milorad Trbic, we had thousands of exhibits, we had over 60,000 pages of testimonies and transcripts, and our decision itself has over fifteen hundred footnotes. This is a large amount of material. So I think we brought tools to assist judges in managing the evidence. Most judges had no experience in writing large verdicts, which were really required in order to explain the legal reasoning. I think that the community, the public and the world demands much more from us in these decisions. They not only want to know the evidence we based our decisions on, but how we got there. I think that these kinds of explanations were helpful and they are helping judges and legal officials to develop their capacities in these areas.

JR: The Court of Bosnia and Herzegovina says that they have very positive experiences with international judges, especially with those who came from the United States of America. However, we have also heard much criticism in the past, such as for example that the international community sent incompetent judges, especially prosecutors, or the ones that have tried to make a certain political impact. What is your comment on this criticism?

WHALEN: First, I think that you have to see from where these critics come. Do they come from parts of society who simply want to attack the Court, because they are interested in the destruction of state-wide institutions, whether they want to destabilise the state? So, if the critics are coming from that place, I think you have to look at who is attacking. On the other hand, I think that we learned a lot from this model and I think that it is important that people understand that this Court, the State Court, is a great model for future courts and future conflicts. There were problems in establishing of this court. And I think that initially the states may not always looked at who would best fit for this kind of work, but that does not mean that the judge or the prosecutor is incompetent. Some judges may have come with less knowledge than the other ones in that particular area. I think that in 2007, when the High Judicial and Prosecutorial Council (VTSV) took over the selection of judges there were no more cases of donor countries sending their judges at the Court. At that time, the VTSV were really looking for the judges who had considerable experience in criminal and international humanitarian law. So for a group of us who really came at certain time, I think and hope that these critics can no longer stand. Generally, it is a problem with all international courts. Sometimes, states sent their best representatives, and sometimes they do not. But it is the same case with the appointments of locals.

JR: What is your assessment of war crimes trials at the Court of Bosnia and Herzegovina?

WHALEN: If it is a question whether people have a fair trial here, I think that they have. The indictees clearly know for what they are charged in the indictment, the have the opportunity to have their voice be heard, they have the ability to be represented by the attorneys, even for free if it is necessary. They have the possibility that their case will be heard by the people who make decisions impartially and it is certainly one aspect which foreigners brought at the Court because they are neutral when it is a matter of conflict. They receive decisions that are based on the evidence, the procedure is completely transparently recorded and they are subject of considerations of a higher court, and eventually of the European Court of Human Rights. So regarding this, I think that the trials are fair. Could the procedures and processes be better? Of course they could, they could be better in my country, too. Justice is not something in which you are immediately good. It is a bit like recipe for a dish, and every time you make it and try it, it is better.

JR: Are there some specific things that should be better?

WHALEN: Yes, I think that there are things that could definitely be changed in the current system. For example, one thing is a compulsory assessment of custody for the indictees who are detained, which must be given every two months. It takes a lot of time and resources from the Court. Frankly, the majority of it is a complete waste of time. And the reason for this is not that you do not need to assess the custody, of course you do, but only if the change in circumstances has occurred. Otherwise, it happens that you only have a procedure that is repeated without any sense. Changes should also be made in the appeal procedure and in the auditing standards. I think that people are working on it. I think that we should have dissenting opinions. Now, dissenting opinions of the judges are private. They are sealed in the case. I do not support that. I think that dissenting opinions are good for the legal system. They raise questions, important questions for the legal community in order to discuss them and maybe they can implicate a change of the law in the future.

JR: Finally, tell us what you will remember the most during the five years that you have spent in the Court of Bosnia and Herzegovina and what will be your next job, after you leave Bosnia and Herzegovina?

WHALEN: Of course, what I will remember most are the people. This was a great experience and every day I was impressed with the courage of judges with whom I worked. Many of them come to work despite threats to their personal safety, their families, despite the often dishonest and unjustified attacks on them in the print media. I most enjoyed working with the legal officers. They are the future of this country, they will be future judges, they are the hope, and every day when I see them, I feel hope. However, one thing that I will remember the most is the victims, the ones who survived and told their stories at the court. It is very submissive that you are in a position to be a witness to that. All these stories are part of me now and I hope that I will never forget them. As for the future, I do not know. I am working on my final verdict, and as soon as I complete it, I will think about tomorrow. I still have not come to that.