Cooperation with Bosnia and Croatia
One of the greatest challenges for the Serbian prosecutions has been overcoming obstacles inherent in investigating crime scenes in other countries. The fact that the crimes occurred years ago is also problematic. Additional complications exist as a result of differences between the Bosnian, Croatian, and Serbian justice systems. For example, a system using investigative judges no longer exists in Bosnia but does in Croatia and Serbia. (Under a system that has investigative judges, the judiciary takes a more active role in investigations and gathers evidence against the suspect before deciding whether to bring the case to trial.) Thus, even determining the appropriate people in each state with whom to conclude cooperation agreements is not straightforward. Constitutional and legislative bans on the extradition of nationals exist in all three countries.35 Nonetheless, within the limitations of the laws prohibiting extradition, a great deal of progress has been made in this area in the past few years.
As a result of good will on all sides, cooperation has improved dramatically between Serbia, Bosnia, and Croatia.36 The OSCE and the U.S. government convened a number of regional conferences to facilitate cooperation. The Humanitarian Law Center also arranged meetings between the different prosecutors. Regional agreements for cooperation in criminal matters now exist between Bosnia, Croatia, Serbia, and Montenegro, and bilateral agreements are in place between the prosecutors of Serbia, Croatia, and Bosnia.37 A Memorandum of Understanding with Croatia allows Serbia and Croatia to share evidence in cases where the suspect cannot be extradited, to help ensure that prosecutions take place nationally and the accused will not escape justice.38 A Memorandum of Understanding also exists between Bosnia and Serbia that allows prosecutors offices to share information and evidence during the early phase of an investigation before a case is referred to an investigative judge.39 The major benefit of these memoranda is that they allow for information sharing on an informal basis without going through lengthy legal processes often required for intergovernmental cooperation.40
Serbia and Croatia successfully cooperated in the investigation of the Ovcara case in Croatia. A joint investigation is currently underway in Zvornik, Bosnia. As a result of meetings between the War Crimes Prosecutors Office and the cantonal prosecutors office in Tuzla, Bosnia, the Bosnian prosecutors office was able to assist in providing witnesses for the Zvornik case, cooperation that led to an investigation into the killing of 700 Bosnians at the Technical School Centre in Zvornik being initiated. Other joint investigations are underway and there is now regular contact and cooperation between the Bosnian and Serbian war crimes prosecutors offices.41 Staff from the Bosnian prosecutors office has found no impediments to information sharing from Serbia.42 These joint investigations are crucial for the successful prosecution of these crimes.
This successful cooperation has come as something of a surprise to foreign observers, due to the sensitive nature of the crimes.43 It has also resulted in positive spillover effects, such as the fact that the agreements between the prosecutors to cooperate cover all forms of serious crimes, not just war crimes. Additional cooperation is apparent in police matters relating to human trafficking and organized crimes, and between justice ministers.
Although there has been significant progress in cooperation with Croatia and Bosnia, a number of issues still exist. First, there will be limits on cooperation until the constitutional or legislative bans on extradition of nationals in all three countries are lifted. As mentioned above, each of the three states has a prohibition on the extradition of its nationals. Yet prosecutors in Croatia and Bosnia pursue investigations of war crimes that took place in their territorial jurisdiction even if the suspect is no longer present in their territory. Should the case then be taken up in the country where the suspect resides, the result can be that some crime scenes are investigated twiceonce by each country. This is not entirely avoidable. Efforts to avoid duplication in investigations are increasing, but it will take time for each country to feel comfortable yielding the investigation to another state.44 In the case of Bosnia, the law does not permit the transfer of proceedings where the underlying offense carries a maximum penalty of less than 10 years imprisonment.45 The Bosnian prosecutor is under a great deal of pressure from victims groups to try cases in the country where the crimes occurred. Bosnian victims remain reluctant to travel to Belgrade to testify out of fear for their security and because they are distrustful of the court. Since the crimes were committed in Bosnia, transferring cases to Belgrade was described as a hard political sell and not realistic.46 This is all the more true after the Scorpion decision (discussed above), which may be a major setback for more comprehensive cooperation agreements and for efforts to get victims to testify in Belgrade. If, however, other cases are prosecuted more successfully in Belgrade and if witnesses are made aware of Serbias witness protection measures, witnesses resistance to testifying may diminish over time. People may also realize that without transfers to Serbia, those cases may not get prosecuted unless the extradition laws are changed.
Another potential obstacle to cooperation arose very recently when the High Judicial and Prosecutorial Council of Bosnia and Herzegovina invalidated the cooperation agreement between the Tuzla prosecutors office and the War Crimes Chamber in Serbia because it was not approved by the High Judicial and Prosecutorial Council before going into effect.47 The High Judicial and Prosecutorial Council is an independent body established to oversee judicial and prosecutorial matters. Prior to the decision, the chamber and the local prosecutors office had been successfully investigating the Zvornik case together. It is unclear how this will affect future cooperation.
Finally, the three countries do not have the same standards or methods for collecting and preserving evidence. Thus, in some cases evidence that is shared from one country is not usable in another. Developing a standard protocol for gathering, preserving, and transferring information that takes into consideration the different country practices would be helpful to facilitate evidence sharing.48 Continuing close collaboration between prosecutors and police forces is needed going forward.
Less progress has been made in cooperation with the international and national institutions in Kosovo. Judicial cooperation with Kosovo on war crimes is sensitive and complex. Serbia considers Kosovo to be an integral part of its territory. Its forces withdrew from the territory in 1999 only after a NATO bombing campaign. Serbia strongly opposes the current United Nations (UN) proposal to grant the province conditional independence.
When the United Nations Interim Administration Mission in Kosovo (UNMIK) arrived in Kosovo after the armed conflict and the NATO bombing campaign, it faced a collapsed justice system and a need to quickly establish a functioning judiciary.49 After initial efforts to appoint local judges raised concerns relating to bias and professionalism, UNMIK passed a regulation allowing majority panels of international judges if it determines that this is necessary to ensure the independence and impartiality of the judiciary or the proper administration of justice.50 Since enactment of the regulation, all war crimes cases have been brought by international prosecutors and held in front of courts with a majority panel of international judges.51 Despite investigating dozens of cases, not many war crimes cases have been brought in Kosovo, and hardly any of these involved victims from minority communities,52 notwithstanding that Serb, Roma, Ashkali, and other non-Albanian communities were also victims during the armed conflict in Kosovo.53 The vast majority of the casesinvolving Serb defendantswere first tried by panels of national judges, and were characterized by serious errors. On appeal and retrial before majority international panels, almost all of the cases have resulted either in acquittals or a conviction for lesser charges.54
Cooperation between the Kosovo Department of Justice and the Serbian War Crimes Prosecutors Office has been hindered by a number of complications. First, there is a basic dispute over jurisdiction. The UN Security Council resolution establishing UNMIK granted it authority to establish a transitional administration with substantial autonomy.55 Both Serbia and UNMIK claim to have concurrent jurisdiction over crimes in Kosovo.
As a practical matter, UNMIK will not seek transfer of Serbs to Kosovo for trial. Because of security concerns for witnesses in these trials, UNMIK acknowledges that it is safer to hold trials in Belgrade and to minimize exposure of witnesses locally. UNMIK does, however, object to Kosovo Albanians being tried in Belgrade for crimes committed in Kosovo. Because UNMIK considers itself to have exclusive jurisdiction over these cases, it generally declines to cooperate with the Serbian war crimes prosecutor in these investigations.
An exception may be made when the interests of the defense require it. The Anton Lekaj case is an example. Lekaj is a Kosovo Albanian apprehended in Montenegro and charged with crimes committed against Roma in Kosovo. In that case, the defense sought to hear witnesses in Kosovo. UNMIK made an exception to its own policy of not assisting in these trials because in this case they felt the rights of the defense would be jeopardized if they did not cooperate. They therefore drafted a policy enabling UNMIK to cooperate in limited circumstances to protect the rights of the accused.56
However, when the Serbian War Crimes Chamber panel came to Kosovo to interview defense witnesses, they also insisted upon interviewing the victims parents. Because no notice was provided, and because this was contrary to UNMIKs reason for agreeing to cooperate, UNMIK made the decision not to allow the witnesses to be heard in Kosovo.57 Despite this experience, UNMIK recently agreed to facilitate the hearing of a defense witness in another case.58
Another issue hindering cooperation is of a more technical legal nature: because of the uncertainty of Kosovos status, it is difficult to develop agreements regarding cooperation. No legal framework exists to provide guidelines for cooperation in these circumstances. The only agreement between the two justice systems relates to Kosovo Albanians incarcerated in Serbia being transferred to serve sentences in Kosovo. Even the issue of jurisdiction, which is governed by interpretation of a UN Security Council resolution, is not one that can be resolved in a court.
Neither side feels the other is cooperative. In Belgrade, the War Crimes Prosecutors Office has not been satisfied with the UNMIK Department of Justice. In part, the prosecutors office is frustrated that UNMIK is not aggressively prosecuting war crimes cases involving ethnic Albanian perpetrators.59 Although the Serbian war crimes prosecutors office believes it has given UNMIK a great deal of evidence in at least one serious case (in which photographs show perpetrators and decapitated victims), UNMIK has yet to proceed with the case. According to an official in the UNMIK Department of Justice, UNMIK is investigating the case but has so far been unable to discover the victims remains or the identity of the perpetrators.60 UNMIKs investigations have also been hampered by high turnover of international police and a general lack of police experience in investigating these sorts of crimes.61 According to staff in the Serbian War Crimes Prosecutors Office, UNMIKs failure to prosecute Kosovo Albanians for war crimes against Serbs has created a backlash in Serbia against the prosecutors offices efforts to pursue Serb police for war crimes in Kosovo.62
However, there are signs that cooperation may improve. The UNMIK Department of Justice has requested authorization from the Special Representative to the Secretary-General to transfer a case involving a Serb defendant they are investigating to the Serbian War Crimes Chamber. More significantly, the Serbian War Crimes Chamber just granted UNMIKs request for permission to investigate a potential mass grave site containing the remains of Kosovo Albanians abducted during the conflict. The grave site is in the administrative zone between Kosovo and Serbia. UNMIK views the fact that Serbia granted it permission to investigate as a very positive development.63
Although some members of Serbian civil society contend that cooperation is blocked by the prosecutors unwillingness to recognize Kosovo as a separate entity,64 the prosecutors office claims that this is not a concern and that they are trying to work more closely with institutions in Kosovo.65 The spokesman says that whatever the outcome of Kosovos status, there is a need for justice to be served, and asserts that they will adapt and coordinate efforts with Kosovo authorities.66 The OSCE is currently making efforts to facilitate links between the prosecutors office and the Kosovo judiciary. However, if at some point the Serbian National Assembly forbids the government from recognizing Kosovo as independent, it could create additional obstacles for the War Crimes Prosecutors Office to arrange for cooperation with Kosovo. Serbias new constitution adopted by the parliament reasserts that Kosovo is an integral part of Serbia.67 Once Kosovos status is resolved, in the long run it may be easier to manage the technicalities of inter-jurisdictional cooperation. Moreover, the future Kosovo government may be more willing to cooperate once status is resolved.
In order to achieve its objective to complete trial activities by 2009, the ICTY developed a completion strategy that includes plans to transfer cases involving intermediate and lower-level accused to competent national jurisdictions.68 The strategy includes increasing cooperation with national courts as part of an effort to strengthen their capacity to try these cases.
To facilitate its completion strategy, the ICTY amended its rules to allow transfers to other jurisdictions. ICTY Rule 11bis allows the ICTY to transfer a case after confirmation of the indictment but before commencement of trial to the state on whose territory the crimes are alleged to have occurred, the state where the accused was arrested, or a state having jurisdiction and being willing and adequately prepared to accept such a case. In determining whether to permit a referral, the ICTY trial chamber must consider the gravity of the crimes charged and the level of responsibility of the accused. The court must also be satisfied that the accused will receive a fair trial in the state to which the case is referred.
Initially, some governments thought that the new Serbian court would be an important part of the ICTYs completion strategy and that the ICTY would transfer a number of cases to Serbia.69 That has not turned out to be the case. As a practical matter very few cases will be transferred to Serbia under Rule 11bis. In part this is because the remaining cases against Serbian defendants are too high-profile to be handled domestically.70 To date only one case, that against Vladimir Kovacevic, has been transferred to the War Crimes Chamber pursuant to Rule 11bis. Kovacevic was provisionally released to Serbia in 2004 when the tribunal found him unfit to stand trial. On March 28, 2007, the ICTY Appeals Chamber upheld the referral bench decision that Serbia was capable of monitoring his health and instituting proceedings against him should he become fit to stand trial.71 This will likely be the only case transferred to Serbia under Rule 11bis.
Cooperation with the ICTY has proved to be more meaningful with respect to sharing of information. The ICTY-Serbia transfer of investigative material has greatly assisted the prosecutor in Belgrade in preparing cases such as the Zvornik case. The ICTY has also provided important assistance in the Suva Reka (Kosovo) case, the first case implicating members of the Serbian Interior Ministry. Former and current ICTY staff have been engaged to facilitate contacts with ethnic Albanian witnesses for cases involving crimes in Kosovo being handed over to Serbia from the ICTY.72 Without this link, it may have been hard for Serbian prosecutors to convince witnesses to cooperate, for reasons discussed above. Because of the difficulties the war crimes prosecutor has had with investigations and financial support, as discussed further below, the assistance the office receives from the ICTY is of great value.
In general, the chambers cooperation with the ICTY has been very good. A 2006 Memorandum of Understanding between the Office of the Prosecutor for ICTY and the War Crimes Prosecutors Office in Serbia granted Serbian war crimes prosecutors access to the ICTYs database.73 This may be an enormously important resource, though language constraints may limit its impact since the prosecutor and his deputies do not speak English well.74 Also, the prosecution only has one legal associate (a young lawyer who assists the prosecution but does not appear in court) able to review material, which slows work down.75
Although the prosecutor may undertake cases based on evidence collected at the ICTY, it is unclear to what extent ICTY evidence will be able to be used in court in non-11bis cases.76 The revised law establishing the War Crimes Chamber explicitly allows for use of the ICTYs evidence in proceedings in cases that have been transferred after confirmation of the indictment pursuant to Rule 11bis (for this reason, the prosecutors office was confident of its capacity to handle 11bis cases as they do not require additional investigation).77 It is also possible that ICTY evidence will be permitted in court when it is otherwise unavailable from another source. For example, depending on its probity, unavailable witnesses, expert or forensic testimony, or material evidence might be deemed admissible. So far ICTY witness statements have been used for the limited purpose of impeaching witness testimony. Ultimately, though, admissibility will depend on the attitude of the judges making the decision, some of whom are more liberal than others.
Finally, in relation to the ICTYs completion strategy, there has been discussion in the region about the possible establishment of a regional court to handle cases after the ICTY closes.78 This was the Bosnian chief prosecutors idea, though it also has the support of the Serbian prosecutor. The notion is that the prospective court would take over from the ICTY and consist of judges from across the region. Were it to be established, it would likely be based in Sarajevo. There is, however, no indication that such a concept, while interesting, has traction elsewhere, including within the international community, and in any event does not mitigate Serbias obligation to support the War Crimes Chamber and otherwise to meet its obligations with regard to the investigation and prosecution of war crimes.
35 Croatia maintains a constitutional ban on such extraditions, while in Bosnia and Serbia is it prohibited under their respective criminal procedure codes.
36 Human Rights Watch telephone interview with counsel at prosecutors office of Bosnia and Herzegovina, May 23, 2007.
37 The Serbian Republic Public Prosecutors Office and the War Crimes Prosecutors Office concluded a memorandum of agreement in order to establish and promote cooperation in combating all forms of serious crimes with the Croatian Attorney Generals office on February 5, 2005. An identical memorandum was concluded with the Prosecutors Office of Bosnia and Herzegovina on April 1, 2005. Serbia, Montenegro, Croatia, and Bosnia have all acceded to the European Convention on Mutual Legal Assistance in Criminal Matters as well as to other European conventions on the provision of international criminal law assistance and extradition.
38 Human Rights Watch telephone interview with Ivan Jovanovic, May 14, 2007.
39 Human Rights Watch interview with Natasa Kandic, New York, June 11, 2007. See also the website of the Prosecutors Office of Bosnia and Herzegovina, http://www.tuzilastvobih.gov.ba/?opcija=sadrzaj&kat=5&jezik=e (accessed June 18, 2007).
40 Human Rights Watch email correspondence with Sonja Prostran, May 24, 2007; Human Rights Watch telephone interview with counsel at Prosecutors Office of Bosnia and Herzegovina, May 23, 2007.
41 Human Rights Watch telephone interview with counsel at Prosecutors Office of Bosnia and Herzegovina, May 23, 2007.
42 Human Rights Watch telephone interview with staff at Prosecutors Office of Bosnia and Herzegovina, May 24, 2007.
43 Human Rights Watch interview with Ivan Jovanovic, Belgrade, March 30, 2007.
44 Human Rights Watch telephone interview with Ivan Jovanovic, May 14, 2007.
45 See Human Rights Watch, Narrowing the Impunity Gap: Trials before Bosnias War Crimes Chamber, vol. 19, no. 1(D), February 2007, http://hrw.org/reports/2007/ij0207/, pp. 18-19.
46 Human Rights Watch interview with U.S. government official, Belgrade, March 30, 2007; Human Rights Watch telephone interview with staff member of Prosecutors Office of Bosnia and Herzegovina, May 24, 2007.
47 Human Rights Watch telephone interview with counsel at Prosecutors Office of Bosnia and Herzegovina, May 23, 2007; Human Rights Watch interview with Natasa Kandic, New York, June 11, 2007.
48 Human Rights Watch telephone interview with staff member of Prosecutors Office of Bosnia and Herzegovina, May 24, 2007.
49 For more information about the criminal justice system in Kosovo, see Human Rights Watch, Not on the Agenda: The Continuing Failure to Address Accountability in Kosovo Post-March 2004, vol. 18, no. 4(D), May 2006, http://hrw.org/reports/2006/kosovo0506/.
50 See UNMIK Regulation No. 2000/64, On the Assignment of International Judges and Prosecutors and/or Change of Venue, December 15, 2000, http://www.unmikonline.org/regulations/2000/reg64-00.htm (accessed June 18, 2007).
51 OSCE Mission in Kosovo, Legal Systems Monitoring Section (LSMS), Kosovos War Crimes Trials: A Review, September 2002, http://www.osce.org/item/1038.html (accessed June 18, 2007), p. 11.
52 Human Rights Watch, Not on the Agenda, p. 21.
53 Human Rights Watch, Under Orders: War Crimes in Kosovo (New York: Human Rights Watch, 2001), http://www.hrw.org/reports/2001/kosovo/.
54 Human Rights Watch, Not on the Agenda, p. 19.
55 United Nations Security Council, Resolution 1244 (1999), S/RES/1244 (1999).
56 Human Rights Watch telephone interview with UNMIK Department of Justice official, May 24, 2007.
57 Ibid. The War Crimes Prosecutors Office in Belgrade disputes this and claims it provided UNMIK with notice regarding the witnesses. Human Rights Watch e-mail correspondence with the War Crimes Prosecutors Office outreach staff, June 27, 2007.
58 Human Rights Watch telephone interview with UNMIK Department of Justice official, May 24, 2007.
59 Human Rights Watch, Not on the Agenda, p. 18.
60 Human Rights Watch telephone interview with UNMIK Department of Justice official, May 24, 2007.
62 Human Rights Watch interview with War Crimes Prosecutors Office staff, Belgrade, March 30, 2007.
63 Human Rights Watch telephone interview with UNMIK Department of Justice official, May 24, 2007.
64 Human Rights Watch interview with civil society member, Belgrade, March 29, 2007.
65 Human Rights Watch interview with War Crimes Prosecutors Office staff, Belgrade, March 30, 2007.
67 Constitution of the Republic of Serbia, adopted November 10, 2006, preamble, arts. 114, 182.
68 See United Nations Security Council, Statement by the President of the Security Council, July 23, 2002 S/PRST/2002/21; United Nations Security Council, Resolution 1503 (2003), S/RES/1503 (2003); see also Letter dated 29 May 2006 from the President of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugsolavia since 1991, addressed to the President of the Security Council, Annex I, U.N. Doc. S/2006/353, May 31, 2006, paras. 37, 49.
69 Human Rights Watch interview with U.S. government official, Belgrade, March 30, 2007.
70 Human Rights Watch interview with War Crimes Chamber official, Belgrade, March 30, 2007.
71 Prosecutor v. Vladimir Kovacevic, ICTY, Case No. IT-01-42/2, Decision on Appeal against Decision on Referral under Rule 11bis, March 28, 2007, http://www.un.org/icty/kovacevic-v/appeal/decision/070328.pdf (accessed June 18, 2007). Staff of the War Crimes Prosecutors Office said that they intend to establish whether Kovacevic is too ill to stand trial. They plan for him to be institutionalized or to stand trial but they say he will not stay free.
72 Human Rights Watch interview with Ivan Jovanovic, March 30, 2007.
73 Memorandum of Understanding on Access to Documents through the Electronic Disclosure Suite between the Office of the Prosecutor of the ICTY and the Office of the War Crimes Prosecutor of the Republic of Serbia, reprinted in Center for Transitional Processes (Belgrade), Justice in Transition, September 2006 (Special Edition), pp. 152-53.
74 Human Rights Watch interview with Ivan Jovanovic, Belgrade, March 30, 2007.
75 There were two legal associates until recently; a second legal associate will be hired if the 2007 budget permits.
76 Human Rights Watch interview with War Crimes Chamber official, Belgrade, March 30, 2007.
77 Human Rights Watch interview with War Crimes Prosecutors Office staff, Belgrade, March 30, 2007.
78 Human Rights Watch interviews with War Crimes Chamber staff, two members of the War Crimes Prosecutors Office and Ivan Jovanovic, national legal advisor on war crimes, OSCE Mission to Serbia, Belgrade, March 30, 2007.