The armed conflicts in the former Yugoslavia during the 1990s were marked by extensive violations of human rights and international humanitarian law. To ensure some measure of accountability for the widespread killings, rapes, destruction of property, and massive displacement of people, the United Nations established the International Criminal Tribunal for the former Yugoslavia (ICTY). As the first ad hoc international criminal tribunal, the ICTY has had important success in bringing individuals to trial for atrocities committed in the countries that comprise the former Yugoslavia. However, it was never intended to be the sole measure to end impunity for these crimes. Because the ICTY will only prosecute a relatively small number of perpetrators before it closes, prosecutions in national courts are essential to ensuring justice is done.
In order to try war crimes cases1 in its national courts, Serbia established a War Crimes Chamber in July 2003 with support from the United States government and the ICTY.2 In October 2004 Human Rights Watch issued a report, Justice at Risk: War Crimes Trials in Croatia, Bosnia and Herzegovina, and Serbia and Montenegro, examining domestic efforts to prosecute these cases. Although the Serbian War Crimes Chamber was still in its early stages, the report highlighted a number of issues that might affect the Serbian courts effectiveness. Those issues included lack of political support for the trials, inadequate investigative support from the police, and lack of cooperation between Bosnia and Herzegovina,3 Croatia, and Serbia. In addition, Human Rights Watch raised concerns about inadequate witness protection mechanisms, and about uncertainty regarding the doctrine of command responsibility and admissibility of ICTY evidence.
In the nearly three years since that report was issued, Serbias War Crimes Chamber has made substantial progress in a number of ways. It has completed three trials so far (though one is currently in retrial) and three others are ongoing. The trials include the Ovcara case in which 16 people were tried for the murder of 200 non-Serbs taken from the hospital in Vukovar, Croatia, and killed at a nearby farm; and the Scorpion case relating to execution of Bosnian Muslim civilians from Srebrenica by Serb paramilitaries as caught on a now-notorious videotape shown at the ICTY trial of former President of Serbia and the Federal Republic of Yugoslavia Slobodan Milosevic. An estimated 32 to 35 cases are currently in the pretrial or investigative stage, including cases relating to Kosovo and mass crimes in Croatia. The fact that most of the cases involve prospective prosecution of Serbs for the killings of non-Serbs is in and of itself an important achievement.
Cooperation with Bosnia and Croatia has improved dramatically in the past few years. In fact, Serbia and Bosnia are currently undertaking a joint investigation into crimes that occurred in Zvornik, Bosnia. The War Crimes Prosecutors Office is also now working successfully on investigations with the ICTY. The first case was officially transferred from the ICTY to Serbia in March 2007. A new comprehensive list of witness protection measures was enacted into law and a new Witness Protection Unit has been established and trained to put these measures into practice.
However, a number of substantial concerns remain. Overall, the number of prosecutions remains low. The political will necessary to support the trials remains problematic. The investigative unit is a major weak link in the courts operations and has until very recently been unwilling to do more than the minimum required by specific instructions from the prosecutor. Uncertainties still exist with respect to the prosecutors ability to charge on the basis of command responsibility. Questions remain about how high up the chain of command the prosecutor is willing or able to go. A string of reversals by the primarily Milosevic-appointed Supreme Court is slowing the courts progress, and a recent conservative decision by the War Crimes Chamber on the Scorpions case has further undermined the credibility of the court in the eyes of victims. Furthermore, although the War Crimes Prosecutors Office has made significant efforts to change the attitude of the press about war crimes trials, it has had less success in reaching a broader audience in Serbia to educate people about the offices work. Outreach has been hampered by limited resources and stringent requirements effectively excluding television cameras from court; legislation making it easier to televise proceedings is stalled indefinitely. The War Crimes Chamber, the prosecutors office and the Witness Protection Unit remain underfunded. Legislative restrictions prohibiting extradition of nationals also limit cooperation with Bosnia and Croatia.
In short, although the court has made significant progress, without increased backing from political leadership, including improved police support and possibly new Supreme Court appointments, there is a limit to how successful the War Crimes Chamber can be in prosecuting those responsible for atrocities.
1 For the purpose of this document, the term war crimes refers to violations of international humanitarian law committed during the armed conflicts in Croatia, Bosnia and Herzegovina, and Kosovo including genocide, crimes against humanity, and war crimes.
2 The ICTY participated in the training of judges and prosecutors in the War Crimes Chamber, and provides technical assistance on matters such as regional cooperation, access to evidence, and witness protection. The US provided financial assistance for the creation and operation of the Chamber. See, for example, Ana Uzelac, Serb Judges Meet Hague Officials, Institute for War and Peace Reporting, Tribunal Update No. 358, May 15, 2004; UN Security Council, 59th session, 4999th meeting, June 29, 2004, U.N. Doc. S/PV.4999 (2004), p. 7; Mark S. Ellis, Coming to Terms with its Past Serbias New Court for the Prosecution of War Crimes, Berkeley Journal of International Law, vol. 22, 2004, p. 189; US Department of State, U.S. Government Assistance to Eastern Europe under the Support for East European Democracy (SEED) Act, January 2004, http://www.state.gov/p/eur/rls/rpt/37000.htm (accessed May 10, 2007).
3 Hereinafter Bosnia.