The trial in Bosnia of Dominik Ilijasevic—a commander accused of the war time massacre of 38 civilians, among other charges—highlights critical flaws in efforts to prosecute war crimes in the former Yugoslavia, Human Rights Watch said in a briefing paper issued today.

The briefing paper identifies four areas of concern in the Ilijasevic trial: poor case preparation, witness protection problems, inadequate mechanisms for cooperation with other states in the region, and an absence of clear rules to allow the use of evidence gathered by the International Criminal Tribunal for the former Yugoslavia (ICTY). At the same time, Human Rights Watch also noted a number of positive achievements that characterized the trial, including an absence of ethnic bias during the proceedings and fair treatment of the defendant.

The briefing paper is the second in a series of “Balkans Justice Bulletins” aimed at assessing the efforts of national authorities to hold war criminals accountable. The ICTY’s increasing willingness to defer war crimes trials to national jurisdictions—part of a long-term exit strategy to wind up its operations—underscores the importance of effective domestic trials to secure justice and reconciliation throughout the former Yugoslavia.

“The key problems present in the Ilijasevic trial—such as case preparation, witness protection and regional cooperation—exist throughout the former Yugoslavia,” said Rachel Denber, acting executive director of Human Rights Watch’s Europe and Central Asia division. “Referring cases from the ICTY to national courts won’t work unless the international community helps to build the capacity of national courts to conduct credible trials.”

The Ilijasevic trial, which began in December 2002 in the Bosnian town of Zenica, is one of a dozen current war crimes trials in Federation Bosnia and Herzegovina, one of Bosnia’s two entities. (Republika Srpska’s first war crimes trial began in September 2003.) The accused was the commander of the “Maturice” unit in the war-time Bosnian Croat army (HVO). Ilijasevic is charged with crimes against Bosniac (Bosnian Muslim) civilians in central Bosnia, including the killing of 38 Bosniacs in the village of Stupni Do on October 23, 1993.

Despite its shortcomings and delays, the Ilijasevic trial has had a number of encouraging aspects. In particular, proceedings have not been tainted by ethnic bias, despite the risk given the ethnicity of the accused, the nature of the crimes, and the location of the trial in an area with a Bosniac majority. The trial chamber includes members of different ethnicities, and the rights of the accused have been respected. Moreover, the court granted Ilijasevic provisional release—which is similar to bail—in February 2003.

Many of the problems with the trial stem from poor case preparation by the Zenica cantonal prosecutor, which originated from a flawed investigation by an investigating judge. There have been major inconsistencies between statements given by several prosecution witnesses and their testimony at trial. Some of the witnesses called to the stand claimed to have no knowledge of Ilijasevic or the allegations against him. The prosecutor has yet to produce evidence establishing Ilijasevic’s position in the command of “Maturice” and the HVO.

Most prosecution witnesses are Bosniacs who have returned to central Bosnia. Their reluctance to provide evidence against Ilijasevic is likely to stem from fear of retribution as much as from prosecutorial inadequacy, highlighting the absence of witness protection measures.

The Ilijasevic trial also demonstrates serious gaps in cooperation between the authorities of Bosnia and Herzegovina and their counterparts in Croatia. Poor interstate cooperation meant that the prosecutor was unable to obtain key documents held in the Croatian state archive and was forced instead to request them from the ICTY, causing significant delay. When the court sought to summon Miroslav Anic—a former HVO member living in Croatia—as a witness, it took a Croatian District Court in Split four months to inform the prosecutor that Anic was not registered at the address the Bosnian court had provided.

Bosnian law is vague on the issue of admissibility of witness statements prepared for trials at the ICTY. In this particular case, the prosecution proposed that the court admit into evidence videotaped interviews which the ICTY conducted with an eyewitness to the Stupni Do massacre. Among the reasons for rejecting this evidence, the court reasoned that the testimony was inadmissible because “the evidence was not obtained pursuant to the provisions of the law on criminal procedure in Federation Bosnia and Herzegovina.”

The trial is expected to resume sometime this year. On December 10, the High Judicial and Prosecutorial Council of the Federation Bosnia Herzegovina decided not to re-appoint the presiding judge in the Ilijasevic case. A newly appointed judge was sworn in on January 12, 2004, as part of an ongoing, statewide process of appointing judges and prosecutors. These changes could significantly slow down the trial if the new trial chamber decides to review anew all evidence in the case.

The Human Rights Watch briefing paper recommends a series of measures to improve the quality of the Ilijasevic trial and other domestic war crimes prosecutions in Bosnia and Herzegovina and the rest of the former Yugoslavia. Key recommendations include:

  • Indictments should be reviewed before going to trial to ensure that there is sufficient evidence against the defendant in relation to each of the charges.
  • Procedural rules should be amended or positively interpreted to allow domestic courts to admit witness statements made before the ICTY.
  • States in the former Yugoslavia should enhance judicial cooperation through existing or new bilateral agreements so that courts and ministries of justice are able to provide requested documents and allow access to all witnesses sought by the requesting court without undue delay.
  • Provisions on intimidation or threats to witnesses constituting criminal offence should be aggressively enforced.
  • During the trial, protective measures should be made available to witnesses. These could include: expunging names from public records, testimony via closed circuit television, and the assignment of pseudonyms.
  • States should create systematic, properly funded witness protection programs.