International Judge Details Stint on War Crimes Court

March 26, 2009

Judge Elizabeth Fahey speaks to students about her experience on  the War Crimes Chamber of the Court of Bosnia and Herzegovina.

In a talk at Brandeis yesterday, Massachusetts Superior Court Judge Elizabeth Fahey detailed the wrenching cases she oversaw – including one involving a massacre of Muslims – during her yearlong service on the bench of the War Crimes Chamber of the Court of Bosnia and Herzegovina.

The talk was the first of a series that Programs in International Justice and Society is organizing to introduce Brandeis students to the wide array of professions available in the field of international justice.

Speaking on “Judging War Crimes in Bosnia and Herzogovina: The Perspective of an International Judge,” Fahey catalogued the rewards and frustrations of serving on the court, which was established in March 2005 to investigate and prosecute the most serious of war crimes committed on Bosnian territory. Both national and international judges serve on the War Crimes Chamber, in accordance with the terms of the Dayton Peace Accords of 1995 that ended hostilities in the Balkans.

“I’ve always been interested in war crimes,” said Fahey. “It never occurred to me that I’d be able to get a job as an international judge.”

Chosen for the court on the recommendation of Massachusetts Appeals Court Chief Justice Phillip Rapoza, who himself served as an international judge on the Special Panels for Serious Crimes in East Timor, Fahey arrived in Sarajevo in September 2007 after taking a leave of absence from her regular position. She described having to learn a new judicial system, one with different statues and with a three-judge panel deciding cases rather than juries.

“I really appreciated, being a judge on war crimes cases, that jurors have the harder job,” she said. “Finding guilt or innocence in war crimes cases isn’t easy.”

The most serious case involved Serbian soldiers who, after a funeral of a fellow soldier, rounded up and shot 28 Muslims, 23 of whom were killed (three survivors testified in the case). She cited another case involving murder and rape, describing her disagreement with another judge who didn’t believe an alleged rape victim because she couldn’t remember what she was wearing at the time of the incident more than a decade before. “Rape was used, as far as I’m concerned, as an act of war,” Fahey said.

Acknowledging some problems related to the experience, Fahey noted that relying on translation made deliberations difficult. She also criticized the court practice of not making public judges’ dissents, which when available advance the development of law, she said. In addition, she said she was “furious” that she presided over only four cases during her tenure, contending that the court should have worked longer days in order to hear more.

Nevertheless, she noted how important the cases were to the local public, who followed the proceedings closely on popular audio and video feeds. “We do realize in the court that we are making a historical record, and that’s why the cases can take so long,” said Fahey.

Fahey recounted some of that history, including the fact that the war claimed more than 100,000 lives and displaced anywhere from 1 million to 2 million people. Many of the perpetrators and victims knew each other and each other’s families, she said. She recalled an elderly man who wept uncontrollably during a criminal proceeding, one of the many victims of the war and one of the many people on whose behalf Fahey worked.