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The armed conflicts in the former Yugoslavia during the 1990s were characterized by widespread violations of human rights and humanitarian law.  The International Criminal Tribunal for the former Yugoslavia (ICTY) will have adjudicated only a relatively small number of cases involving the most serious crimes by the time it ceases operating.  All other war crimes cases1—whether initiated domestically or referred back from the ICTY—will have to be tried by national courts in the states of the former Yugoslavia.

Human Rights Watch has carried out extensive monitoring of domestic war crimes trials in the states of the former Yugoslavia.  The monitoring indicates that, as a rule, the ordinary national courts of Bosnia and Herzegovina (particularly in Republika Srpska, one of the two “entities” in Bosnia and Herzegovina), Croatia, and Serbia and Montenegro are not currently equipped to hear war crimes cases—which are often politically and emotionally charged, as well as legally complex—in a fair manner.  Key obstacles include: bias on the part of judges and prosecutors, poor case preparation by prosecutors, inadequate cooperation from the police in the conduct of investigations, poor cooperation between the states on judicial matters, and ineffective witness protection mechanisms.

The experience of Croatia illustrates many of the concerns about the shortcomings of trials to date.  Patterns observed by Human Rights Watch in war crimes trials in Croatia include: (i) a hugely disproportionate number of cases being brought against the ethnic Serb minority, some on far weaker charges than cases against ethnic Croats;2 (ii) the use of group indictments that fail to specify an individual defendant’s role in the commission of the alleged crime;3 (iii) use of in absentia trials;4 and (iv) convictions of ethnic Serbs where the evidence did not support the charges.5

Problems of bias have also marred accountability efforts in Republika Srpska, where the majority of people are Serbs.  (The other entity in Bosnia and Herzegovina is Federation Bosnia and Herzegovina, which is inhabited mainly by Bosnian Muslims and Bosnian Croats).  At present, there is only one active war crime prosecution involving Bosnian Serb suspects taking place in Republika Srpska,6 compared to numerous investigations and prosecutions against non-Serbs for crimes against Serbs.7  

Investigative mechanisms remain problematic.  While prosecutors are often forced to rely upon police units to conduct investigations, judicial practitioners and international officials have indicated to Human Rights Watch that there is evidence that police in the region are often unwilling to investigate war crimes when those implicated are other police officers or individuals holding prominent positions in the political and economic spheres.8

The inadequate cooperation in war crimes prosecutions between the states in the region– particularly between Serbia and Montenegro, and Bosnia and Herzegovina–has also hampered war crimes trials.  Lack of cooperation impacts not only on the investigation of crimes, but also on the conduct of the trials themselves, including the attendance of witnesses living in another state, and the ability of judges to travel to another state to take testimony. 

Current practices in the region regarding witness protection also leave much to be desired.  In Serbia and Montenegro, treatment of witness protection under the criminal procedure law is cursory and inadequate.  While Croatia’s witness protection program is based on the most comprehensive legislation in the region, it is too early to assess whether the program works in practice.

Finally, key legal issues remain unresolved, including the admissibility of witness statements taken by the ICTY and the extent to which the doctrine of command responsibility is recognized in the national law of each country.

Bosnia and Herzegovina, Croatia, and Serbia and Montenegro have each taken a significant step toward effective war crimes prosecutions by creating special mechanisms for the adjudication of war crimes: a freestanding war crimes court in Bosnia and Herzegovina; a war crimes chamber in Serbia and Montenegro; and, specialized war crimes chambers in Croatia’s county courts, with the possibility of transfer to a county court in Croatia’s four largest cities.  While these new mechanisms are welcome, their impact on the fairness of proceedings remains to be seen.  Without progress in other areas, these courts may continue to be hampered by a lack of systematic and effective witness protection mechanisms, a lack of interstate cooperation, and weak investigative mechanisms. 

The European Union, other European organizations, such as the Organization for Security and Co-operation in Europe (OSCE) and the Council of Europe, and those countries that have supported the important work of the ICTY all have an interest in seeing that the legacy of the ICTY is carried on successfully.  That legacy can be measured by the extent to which local courts in the former Yugoslavia have the ability to competently and fairly adjudicate war crimes cases.  Proactive engagement is needed in order to resolve the problems that exist, and active monitoring will be required to ensure that, as problems are identified, they are addressed.

While Human Rights Watch recognizes that general reforms are ongoing, it is critical that the international community assist the national court systems to ensure that domestic war crimes trials in the former Yugoslavia meet basic, internationally recognized fair trial standards.  These matters require urgent attention.  Because the ICTY stands ready to refer cases to the courts in the former Yugoslavia, and potentially many more non-referred cases remain to be tried in these courts, the functioning of these courts cannot be ignored.9

This document sets out Human Rights Watch’s current concerns about the conduct of war crimes trials before national courts in Croatia, Bosnia and Herzegovina, and Serbia and Montenegro.10  It sets out detailed recommendations to the international community and to the states in the region on strategies to address those concerns.

[1] For the purposes of this document, the term “war crimes” is meant to encompass cases involving genocide, crimes against humanity, and/or war crimes.

[2] For a comprehensive discussion of such cases, see “Broken Promises: Impediments to Refugee Return to Croatia,” A Human Rights Watch Report, Vol. 15, No. 6(D), September 2003, pp. 47-52 [online], (retrieved July 28, 2004).  The Organization for Security and Co-operation (OSCE) in Europe’s monitoring also concludes: “At all stages of procedure from arrest to conviction, the application of a double standard against Serb defendants and in favor of Croat defendants continues as a general rule.”  OSCE Mission to Croatia, Status Report No. 13, December 2003, p.13.

[3] “Broken Promises,” pp. 49-50.

[4] Ibid., pp. 50-51.  In absentia trials have been a pervasive problem in Croatia.  According to the U.N. Commission for Human Rights, in 554 verdicts for war crimes and genocide reached by Croatian courts between 1991 and 1999, 470 individuals were tried in absentia.  (Quoted in Ivica Dikic & Boris Raseta, “Judicial Sadism,” Feral Tribune (Split, Croatia), January 13, 2001 [online], (retrieved July 28, 2004)).  In an ongoing trial of eighteen defendants before the county court in Vukovar (Croatia) concerning war crimes in the village of Lovas (the “Lovas” trial), all but one are absentee defendants.  (County Prosecutor in Osijek, Indictment No. KT-265/92, December 19, 1994.)

[5] See Human Rights Watch, “Croatia: The Case of Ivanka Savic,” July 2004 [online], (retrieved July 28, 2004).

[6] Ethnic Serbs were indicted in the Republika Srpska capital Banja Luka in 2003.  The case pertains to the 1995 murder of an ethnic Croat Catholic priest in the nearby town of Prijedor.  The trial began in May 2004.

[7] In mid-2002, for example, the district prosecutor in Srpsko Sarajevo was seeking approval from the ICTY for trials against 416 Bosnian Muslims (“Bosniacs”).  “Podignute optuznice protiv 416 Bosnjaka” (“Indictments Issued Against 416 Bosniacs”), Glas Javnosti (Belgrade, Serbia), April 9, 2002 [online], B02040801.shtml (retrieved June 26, 2004) (statement by Rajko Bojat, then-District Public Prosecutor in Srpsko Sarajevo).  In March 2002, the district court in Banja Luka indicated that it was preparing cases against 300 Bosnian Muslims and Bosnian Croats, and 12 Bosnian Serbs.  Milorad Labus, “U Banjoj Luci pod istragom tri stotine Hrvata i Bošnjaka” (“Three Hundred Croats and Bosniacs Under Investigation in Banja Luka”), Slobodna Dalmacija (Split, Croatia), March 22, 2002 [online], (retrieved June 26, 2004) (statement by Nenad Balaban, then-President of Banja Luka District Court).

[8] Human Rights Watch interview with Marinko Jurcevic, Chief Prosecutor of Bosnia and Herzegovina, Sarajevo, April 14, 2004; Human Rights Watch interview with an international official involved in the creation of the legislative framework for the new war crimes prosecution structure in Bosnia and Herzegovina, April 14, 2004; Human Rights Watch interview with an international official monitoring the functioning of the new war crimes prosecution structures, Belgrade, June 25, 2004.

[9] For periodic updates on the workings of the national judiciaries in the former Yugoslavia, see Human Rights Watch’s Balkans Justice Bulletins [online], (retrieved July 28, 2004).

[10] War crimes trials in Kosovo are not a subject of this document because of the specific context that largely distinguishes the accountability efforts in the province from such efforts elsewhere in the former Yugoslavia.  Since June 1999, when the NATO bombing ended and Serbian and Montenegrin troops pulled out from Kosovo, the United Nations Mission in Kosovo (UNMIK) has been running the province.  Under the direction of the Special Representative of the U.N. Secretary-General, UNMIK works at the operation level in four “pillars.”  Pillar I, responsible for police and the administration of justice, includes war crimes prosecutions, using predominantly international prosecutors and judges.

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