Dominik Ilijasevic-Como Tried for Abuses against Bosniac Civilians

Introduction

The trial of Bosnian Croat Dominik Ilijasevic-Como, age 38, before the Zenica Cantonal Court, began on December 16, 2002 in Zenica, in Federation Bosnia and Herzegovina (Federation BH).2 The seven charges on the indictment arise from war-time abuses by Bosnian Croat forces against Bosniac (Bosnian Muslim) civilians in central Bosnia, including the October 23, 1993, killing of thirty-eight Bosniacs in the village of Stupni Do, central Bosnia.3 Ilijasevic denies all charges. Trial hearings will continue during 2004, but recent personnel changes in the Zenica Cantonal Court make it difficult to envisage when the verdict will be rendered. On December 10, 2003, the High Judicial and Prosecutorial Council of the Federation BH decided not to re-appoint the presiding judge in the Ilijasevic case to the position of a judge in the Zenica Cantonal Court.4 This decision could significantly slow down the trial.5

Given the ethnicity of the accused, the nature of the crimes, and the location of the trialÑin an area with a Bosniac majorityÑthere were concerns prior to the start of the trial that proceedings might be tainted by ethnic bias. These concerns were somewhat allayed by the composition of the five-member trial chamber: the presiding judge and one of the three lay-judges are Bosnians of non-Bosniac ethnicity. To date, Human Rights Watch is aware of no infringement of the rights of the accused during the trial. On February 7, 2003, the chamber even released Ilijasevic from prison having found that conditions the law prescribes for provisional release had been fulfilled.6

Negative aspects of the trial reflect shortcomings in the Bosnian justice system as a whole rather than any apparent ethnic bias. Key problems identified by Human Rights Watch include: weak case preparation and limited competence on the part of the prosecution, the absence of rules on the effective use of evidence gathered by the ICTY in national trials, lack of cooperation between states in the region, and inadequate witness protection mechanisms.

The hearings took place between December 2002 and October 2003, with testimonies from more than forty-five witnesses, offering abundant material to assess the trial’s principal features.7 The following analysis addresses the problems encountered during the Ilijasevic trial, many of which are also characteristic of other war crimes trials in Bosnia and Herzegovina and elsewhere in the former Yugoslavia. It also offers recommendations on ways to improve future domestic war crimes trials in the region.

The Charges

According to the indictment, Ilijasevic was the commander of “Maturice,” one of the units in the Bosnian Croat army (HVO) that carried out the October 23, 1993 attack on Stupni Do. Ilijasevic allegedly participated in the killings, and he “instigated, ordered, or in other ways aided and abetted the carrying out of the attack.” As part of the same charge, Ilijasevic is alleged to have tortured and ill-treated male Bosniac civilians in the nearby town Vares in the days that followed. A separate charge accuses Ilijasevic of participation in the beating and torture in Vares of seven Bosniacs with the family name Likic, who were arrested several days before the Stupni Do attack.8

Other charges include: the rape of several women in Vares; the burning of Bosniac houses in two villages in the central Bosnia municipalities of Kiseljak and Kresevo; the burning of a mosque in Kresevo; forced expulsion of Bosniacs from Kresevo; the mining of a Bosniac-held cafŽ in Kiseljak; the rape and murder of a Bosniac girl in a village near Kiseljak; parading a head and a hand cut from the bodies of two Bosniacs in Kiseljak; and, the killing of four Bosniacs in a detention camp in Kresevo.9

The Defense

At the opening of the trial, on December 16, 2002, Ilijasevic denied all charges against him and announced that from that moment on he would use silence as defense. To date, he has stood by the decision to remain silent.

Poor Case Preparation by the Prosecution

The trial of Dominik Ilijasevic has been marked by weak preparation on the part of the Zenica Cantonal Prosecutor. In the first year of the trial, the prosecutor lacked any written evidence or testimonies clearly pointing at Ilijasevic’s position in the command structure of “Maturice” and the HVO. The prosecutor has relied mainly on the testimony of ethnic Bosniacs from Vares, Stupni Do, and the villages around Kresevo and Kiseljak. While some witnesses claimed that they had seen Ilijasevic committing the crimes alleged in the indictment, most stated that they had never seen Dominik Ilijasevic, or that they had no knowledge of any crime Ilijasevic committed. Moreover, when the court ruled that Ilijasevic’s 1993 acknowledgement of having participated in the Stupni Do attack, made in an interview to a Croatian newspaper, was inadmissible, the prosecutor made no effort to obtain a statement from the journalist who carried out the interview and would therefore be able to authenticate its content.10

The preponderance of prosecution witnesses whose statements do not even remotely support the prosecution case raises fundamental questions about the ability of investigative and prosecutorial authorities in central Bosnia to handle war crime cases. The Ilijasevic trial was carried out under the provisions of the November 1998 Criminal Procedure Act, which required prosecutors to rely heavily on the work of investigative judges.11 (A new law on criminal procedure giving sole investigatory responsibility to prosecutors entered into force in August 2003, too late to impact the Ilijasevic trial). Investigating judges in Bosnia have often carried out flawed investigations into war crimes. The trial of Dominik Ilijasevic, as well as another war crime trial unfolding before the Zenica Cantonal Court and monitored by Human Rights WatchÑthe trial of Bosnian Serb Tomo MihajlovicÑ reveal that the investigative judges in those cases have sometimes inserted phrases not uttered by interviewed witnesses into the official records of their interrogation. The reasons may have varied from incompetence to attempts to construct “stronger” evidence against those accused who belong to a different ethnic group than the judges. As many of the witnesses have been poorly educated villagers, they did not intervene during the investigation to request correction. Several witnesses in the Ilijasevic trial identified discrepancies between their recorded statements and their actual knowledge about the events.12 The effect of such discrepancies is to undermine the credibility of the witness and hence the prosecution’s case, even where the witness is telling the truth.

At Ilijasevic’s trial the prosecutor called ten prosecution witnesses who stated that they had never seen Ilijasevic; thirteen prosecution witnesses testified that they were unaware of any role the accused may have had in the commission of a crime. While the prosecutor may have been hampered by substandard work on the part of the investigating judge in the case, he ought to have confirmed in advance what witnesses were going to say, exercised his judgment about which witnesses would advance the prosecution’s case and only called those witnesses, and carried out further work where it was required to bolster the indictment or individual charges.

Presumably because of the limited usefulness of the available evidence, the prosecutor has not even attempted to prove some charges in the indictment, raising questions about why the charges were included in the indictment in the first place. The charges include those on the burning of Bosniac houses in Mratinici village, the rape of four women in Vares, and the burning of the mosque in Mahala neighborhood in Kresevo.

On June 16, 2003, Ermin Curtic — a Bosniac who fought in the Bosnian Croat army — was called as a prosecution witness. The strength of Curtic’s evidence on paper suggested that the prosecutor could score a major coup and compensate for the weaknesses in the earlier handling of the case. According to some witnesses in the Ilijasevic trial, Curtic participated in the October 1993 attack on Stupni Do. During another investigation into the Stupni Do crime in early 1996, Curtic told an investigating judge in the Bosnian capital Sarajevo that Miroslav Anic led the attack from one side, and Ilijasevic from another. When testifying at the Ilijasevic trial, however, Curtic changed his story, declaring that he did not know Ilijasevic, and that the Croatian army unit to which Curtic belonged did not take part in the attack. Curtic also claimed that his 1996 statement to the investigating judge was the result of torture to which the Bosnian secret police had subjected him in order to extract a false confession. Whatever the truth behind Curtic’s change of account, the episode seriously undermined the prosecution case and underscores the need for competence and integrity both at the investigation and prosecution stages.

Accountability for war-times abuses and the rights of the accused depends upon professionalism and competence on the part of prosecutors. Human Rights Watch therefore recommends the following measures:

• In accordance with article 14 (1) of the International Covenant on Civil and Political Rights, war crimes suspects in the former Yugoslavia should be “entitled to a fair and public hearing by a competent, independent and impartial tribunal.” The obligation of competence, independence and impartiality should also extend to prosecutors and actors involved in the investigation of the case before the trial.

• Indictments should be reviewed before going to trial to ensure that the evidence discloses a prima facie case against the defendant in relation to each of the charges.

Lack of Rules on the Use of ICTY Evidence

Faced with the difficulties in proving the charges against Ilijasevic on the basis of the evidence before him, the prosecutor turned for assistance to the ICTY Office of the Prosecutor, which is also preparing a case relating to the Stupni Do massacre, following its indictment of Ivica Rajic, the commander of the HVO forces that attacked Stupni Do on October 23, 1993.13 On April 18, 2003, and again on August 8, the Zenica Cantonal Prosecutor proposed that the court admit into evidence videotaped interviews with Ermin Curtic carried out by the ICTY. The court rejected the motion, declaring that kind of evidence inadmissible. (Curtic’s contradictory evidence later in the Ilijasevic trial arguably rendered the impact of the ruling moot.) The court established that Curtic had made the statement to the ICTY prosecutors as a suspect, rather than as a witness, so his statement could not be considered a witness testimony, and that irrespective of Curtic’s status, his testimony was inadmissible because “the evidence was not obtained pursuant to the provisions of the law on criminal procedure in Federation Bosnia and Herzegovina.”14

Bosnian law is vague on the issue of admissibility of witness statements prepared for trials at the ICTY. The refusal of the court in Zenica to admit Curtic’s statementÑand the court’s explanation that the outcome would be identical even if Curtic had made the statement in the capacity of witness rather than suspectÑsuggests that other courts might also interpret existing procedure rules restrictively and allow for use only statements given before national courts.

This restrictive approach is unfortunate since the use of evidence held by the ICTY Office of the Prosecutor could contribute to the effectiveness of domestic war crimes trials. By admitting statements given to the ICTY, courts would avoid time-consuming and costly examination of hundreds of witnesses who have already testified in judicial proceedings about the same events, as well as allowing them to benefit from the investigative expertise and resources of the ICTY.

The most effective solution is likely to be the authoritative interpretation, by countries’ supreme courts, of existing procedure rules as admitting evidence from the ICTY, or the introduction of necessary amendments to those rules so as to make the admissibility explicit. In order to address this concern, Human Rights Watch recommends the following:

• Adopt an authoritative interpretation of, or amend, procedural rules so as to allow domestic courts to admit witness statements made before the ICTY. Parties must be able to cross-examine the witness either in person or by video link.

• In case of a discrepancy between the statement before the ICTY and the statement before the national court, the court should have an authority to assess the credibility of the opposing statements.

Inadequate Interstate Cooperation

Many of the documents the Zenica prosecutor received from the ICTY could have been obtained from the Republic of Croatia if there was well-functioning cooperation between the two countries in the area of war crime prosecutions. Such cooperation would, at the very least, entail fewer language difficulties and consume less time. Most of the HVO wartime documents are held in the state archive of the Republic of Croatia, where they were transferred during and after the Bosnian war.15 In 1996, Croatia and the Federation BH concluded an agreement on judicial cooperation in criminal matters.16 In principle the Zenica prosecutor could have relied on that agreement to request access to HVO orders and reports relating to the Stupni Do killings, as well as to the other events described in the indictment. In practice, however, the lack of cooperation resulted in the prosecutor obtaining the relevant documents indirectly from the ICTY prosecutor, and only at a very late stage of the proceedings. As a result, the prosecutor effectively launched a new investigation deep into the trial, potentially violating the right of the accused to a trial without undue delay.17

Lack of cooperation with regard to Stupni Do crimes had earlier hindered Bosnian efforts to prosecute former HVO commander Miroslav Anic. Croatian police arrested Anic in March 2001 on the basis of an international arrest warrant issued by the Ministry of Interior of the Sarajevo Canton, which alleged his involvement in the Stupni Do massacre. However, the Croatian constitution prohibits extradition of Croatian nationals to other states and Croatia refused to extradite Anic who had acquired Croatian citizenship after the war. A Croatian court in Split released Anic in September 2001 on the ground that the Sarajevo Cantonal Court had failed to submit the necessary evidence that would enable the court in Split to proceed with his prosecution.18

Even when cooperation between the two countries did take place during the Ilijasevic trial, it was half-hearted, slow, and inefficient. On May 19, 2003, the Zenica court sent a request through the Croatian Ministry of Justice for the examination of Miroslav Anic as a witness. It was not until September 3, 2003 that a District Court in Split informed the Croatian Justice Ministry that Anic did not live at the address specified in the Zenica court request, and that based on the identification data from the request, the court in Split could not establish whether Anic lived in the area of its jurisdiction. The court in Zenica did not receive that response until September 29.19 The Split court’s argument about the insufficient identification data is unconvincing, given that the same court had recently carried out an investigation into Anic.

In order to enhance interstate cooperation, Human Rights Watch recommends that:

• States in the territory of 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.

Witness Protection Problems

The Ilijasevic trial makes clear that witnesses are still afraid or otherwise unwilling to testify against accused of the same ethnicity in war crimes trials. The three ethnic Croats who testified for the prosecution between December 2002 and October 2003 stated that they did not know the accused. A former prison guard in the Croat-held Vares detention facility, testifying on March 25, 2003, even claimed that he did not know the name of any other guard who worked in the same shift with him in the prison.

Trial observers and journalists from the area have repeatedly suggested to Human Rights Watch that fear of retribution has prevented some Bosniac witnesses from telling the court all they knew or even in some cases from coming forward at all. A majority of Bosniac witnesses in the trial are returnees to the locations mentioned in the indictment against Ilijasevic. Although it is difficult to establish whether or why witnesses were unwilling to provide complete and accurate evidence, fear of retribution is certainly a plausible explanation.

The unwillingness of the witnesses to speak openly in the courtroom emphasizes the importance of a vigorous implementation of the witness protection legislation in Bosnia and Herzegovina.20 However, the small size of Bosnia and Herzegovina sets an objective limit to the usefulness of the legislation. In the long run the best defense against witness intimidation is the creation of a climate conducive to war crimes prosecutions throughout the country, through the development of an independent and professional judiciary and prosecution. Eight years after the end of the Bosnian war, the actual climate is far from ideal, a fact best illustrated by the small number of prosecutions for war crimes against members of the dominant ethnic group in a given part of the country.21

With the view to enhancing witness protection, HRW recommends that:

• 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 and identifying information from public records; giving of testimony through image- or voice-altering devices or closed circuit television; and the assignment of pseudonyms.

• States should create systematic, properly funded witness protection programs.

1 The former Socialist Federal Republic of Yugoslavia, comprising six republics, disintegrated in 1991 and 1992, when five independent states were formed: Slovenia, Croatia, Bosnia-Herzegovina, Macedonia, and the Federal Republic of Yugoslavia (comprised of Serbia and Montenegro and including the province of Kosovo). In February 2003, the residual two-member Yugoslav federation became a loose union under a new name, Serbia and Montenegro. Kosovo is an international protectorate which formally remains part of Serbia and Montenegro.

2 Bosnia and Herzegovina consists of two entitiesÑFederation Bosnia and Herzegovina, and Republika SrpskaÑand the district of Brcko.

3 The International Criminal Tribunal for the former Yugoslavia (ICTY) has established that, of the thirty-eight persons killed in Stupni Do, five or six were soldiers, while the rest were civilians. Prosecutor v. Dario Kordic & Mario Cerkez, Judgment, February 26, 2001, para. 746.

4 The council appointed seventeen judges to the Zenica Cantonal Court. The appointments form part of a statewide process of appointments of judges and prosecutors, handled by Bosnia’s three judicial councils: The High Judicial and Prosecutorial Council of Bosnia and Herzegovina, the High Judicial and Prosecutorial Council of Republika Srpska, and the High Judicial and Prosecutorial Council of the Federation BH. The judges appointed to the Zenica Cantonal Court were sworn in on January 12, 2004. See Decision on Appointment of President and Judges to the Cantonal Court of Zenica-Doboj Canton, website of the High Judicial Councils of Bosnia and Herzegovina, available at http://www.hjpc.ba/hjpcs-dec/hjpcsfed-dec/default.aspx?cid=914.

5 According to the Criminal Procedure Act under which the Ilijasevic trial is taking place, if during a trial the trial chamber’s presiding judge changes, all evidence must be reviewed anew. See Criminal Procedure Act, Official Gazette of Federation Bosnia and Herzegovina, November 20, 1998, art. 300 (3).

6 Provisional release is similar to bail in common law countries.

7 Human Rights Watch has attended around a half of sessions, and inspected the official transcripts of other sessions.

8 Cantonal Prosecutor in Zenica, Indictment against Dominik Ilijasevic, no. KT.1/2000, February 20, 2001.

9 Ibid.

10 In August 1994, Ilijasevic admitted to a Croatian daily newspaper, “Slobodna Dalmacija” that he was in Stupni Do on the day in question, and described the events in detail. He told the newspaper that on October 22, 1993, the night before the attack, the Bosniac armyÑagainst whom the Bosnian Croat forces fought in the areaÑsent its special forces to Stupni Do. According to another newspaper, Ilijasevic stated in the interview to “Slobodna Dalmacija” that on October 23, after two hours of a fierce fighting, his troops entered the village where the fighting ensued; he admitted that civilians were also killed, but he claimed that civiliansÑincluding Muslim womenÑparticipated in the fighting. Esad Hecimovic, “Como '94: Priznanje zlocina” (Como ’94: Confession of a Crime”), BH Dani (Sarajevo, Bosnia and Herzegovina), September 1, 2000. On May 12, 2003, the Zenica court declared the “Slobodna Dalmacija” article inadmissible hearsay.

11 The Criminal Procedure Act, from November 1998, used in the Ilijasevic trial, vests authority to investigate to an investigating judge. Criminal Procedure Act, Official Gazette of Federation Bosnia and Herzegovina, November 20, 1998, arts. 149-173. Art. 166 of the Law stipulates that, upon completion of the investigation, the investigative judge should submit the records of the investigation to the competent public prosecutor.

The new law on criminal procedure, that came into force on August 1, 2003, eliminates the institution of the investigating judge and authorizes a public prosecutor to carry out investigations. Criminal Procedure Act, Official Gazette of Federation Bosnia and Herzegovina, July 28, 2003, art. 45.

12 For example, Himzo Likic, testifying in the trial of Dominik Ilijasevic on March 25, 2003, denied that during the interrogation in Vares, in October 1993, Ilijasevic had put a gun into his mouth, although the statement recorded by the investigating judge contained that claim; Rusid Avdic said on April 22, 2003, that the investigation minutes distorted the content of a conversation between the witness and the accused in mid-1993. In the trial of Tomo Mihajlovic, the number of witnesses who complained about the adequacy of their recorded statements from investigation was particularly high.

13 The Prosecutor of the Tribunal against Ivica Rajic, Indictment, August 23, 1995.

14 Cantonal Court in Zenica, Minutes from the trial of the Dominik Ilijasevic, hearing of September 8, 2003, p. 141-2.

On August 8, 2003, the prosecutor introduced a dozen other documents, all obtained in July 2003 from the ICTY Office of the Prosecutor. On September 8, the court admitted into evidence several HVO reports and commendations, and excluded other proposed evidence as unrelated to the indictment, orÑin the case of three HVO soldiers’ statements to the command of an HVO unit in early November 1993Ñbecause the statements had been made outside court proceedings. Ibid, p. 140-2.

15 Human Rights Watch interview with Edina Residovic, Sarajevo, August 12, 2003. Residovic has been a defense lawyer, or represented the victims’ families, in several ICTY trials and war crimes trials before Bosnian courts.

16 Agreement Between the Government of Bosnia and Herzegovina, the Government of the Federation Bosnia and Herzegovina, and the Government of the Republic of Croatia, on Legal Assistance in Civil and Criminal Matters, Official Gazette of the Republic of Bosnia and Herzegovina — Special Edition, International Agreements, May 27, 1996.

17 International Covenant on Civil and Political Rights stipulates for the right for everyone to be tried without undue delay. International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 14 (3)(c). The Human Rights Committee’s General Comment of this provision clarifies that “[t]his guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgment be rendered; all stages must take place "without undue delay".” Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 14 (1994), para. 10.

18 See BiH Media Round-up, October 30, 2001, available at http://www.ohr.int/ohr-dept/presso/bh-media-rep/round-ups/default.asp?content_id=6140. A leading Bosnian weekly has quoted a Bosnian war crime prosecutor who explained that Bosnia did not submit evidence to Croatia because of the mistrust in the willingness and the ability of the competent Croatian court to impartially try the case. Esad Hecimovic, “Dokazi cekaju tuzioca” (Evidence Waiting for the Prosecutor), BH Dani (Sarajevo, Bosnia and Herzegovina), April 4, 2003.

19 The chronology of the events is described in a communication by the Ministry of Justice of Bosnia and Herzegovina, read at the October 29, 2003 session of the Ilijasevic trial.

20 In Federation BH, the relevant legislation is Law on The Special Protection of the Identity of Witness in Criminal Proceedings in the Federation of Bosnia and Herzegovina, Official Gazette of the Federation of Bosnia and Herzegovina, May 11, 2001.

21 In Republika Srpska, for example, the authorities have not convicted a single Bosnian Serb on war crimes charges since the end of the war.