Since the end of the conflict in Bosnia and Herzegovina more than a dozen years ago, the International Criminal Tribunal for the former Yugoslavia (ICTY) has made progress in trying many of the leading figures responsible for the crimes committed during the 1992-95 war. These crimes included widespread and serious crimes against civilians, prisoners of war, and civilian property. Killing, torture, rape, forcible displacement, and indiscriminate and deliberate attacks on civilian targets were commonplace. Though several key indictees still remain at large, the trials at the ICTY have sent a powerful message that leaders who are responsible for the commission of war crimes, crimes against humanity, and genocide must face justice for their crimes.
The ICTY, however, was not intended to "preclude or prevent" domestic trials for crimes under international law. Indeed, by the time it completes its mandate, the ICTY will have tried a relatively small number of the perpetrators. At the same time, for reasons detailed in this report, domestic Bosnian efforts at ensuring legal accountability for the remaining perpetrators have made slow progress. As a result, many years after the conflict, several thousand complaints related to crimes committed during the war remain unresolved in Bosnia. These cases may involve extremely grave crimes and many people who are responsible for directly perpetrating atrocities. Victims of these crimes, and their families, have been waiting for more than a decade to see justice done. The international community made a commitment to victims to bring perpetrators of these crimes to justice when it created the ICTY. It is vital that authorities in Bosnia, as well as the international community, take the necessary steps to follow through on this commitment.
Trials for war crimes, crimes against humanity, or genocide have been held in Bosnia's two entities: Republika Srpska (RS) and the Federation of Bosnia and Herzegovina (the Federation). But these trials before cantonal (in the Federation) and district courts (in Republika Srpska) have proceeded slowly in the years since the end of the war. This problem was in no small amount due to a lack of political will to try sensitive cases such as war crimes, crimes against humanity, or genocide, especially where perpetrators were members of the local majority group. By November 2005 (exactly a decade since the war ended), only two such trials had been completed in Republika Srpska. Progress on these cases in the Federation was much better but still insufficient to address the large number of outstanding cases in a reasonable timeframe.
For several reasons, this pace, in the justice systems of both entities, has begun to increase in recent years. To date, in Republika Srpska, prosecutors have brought a total of 18 indictments for crimes committed during the war, and district courts have rendered 7 verdicts, with 3 cases still currently underway. In the Federation, cantonal courts have decided a total of 144 verdicts, with 25 cases still in process.
The War Crimes Chamber, created as part of the Court of Bosnia and Herzegovina (hereinafter State Court) in 2005, has played a significant role in this. In addition to successfully trying many cases, prosecutors in the Prosecutor's Office of Bosnia and Herzegovina who practice before the War Crimes Chamber have played an important role in reviewing cases that can then be tried before cantonal and district courts. It is hoped that these recent developments toward more successful trials will help build the necessary political will in both entities to complete the task of bringing cases to trial for crimes under international law.
It is envisioned that while the War Crimes Chamber will try a significant number of high-profile cases, the cantonal and district courts will conduct the vast majority of cases for crimes committed during the war in Bosnia. Currently, the justice systems in both entities, including the cantonal and district courts and prosecutors' offices, face serious obstacles in trying these cases. If these obstacles persist, there is a danger that a two-tiered justice system will solidify, with cases being effectively tried internationally and at the state level, but the cases in the entity justice systems being allowed to languish. This would create an unacceptable impunity gap for many perpetrators of grave crimes.
Many of these obstacles in the cantonal and district court systems are practical, such as:
- limited prosecutorial resources, including a lack of specialization among prosecutors working on trials for war crimes, crimes against humanity, or genocide and inadequate numbers of prosecutors and support staff;
- lack of specialization and expertise among defense attorneys; and
- lack of witness protection or witness support.
Other obstacles seemingly hinge more on political factors, such as:
- problems with the ability or willingness of police to investigate crimes and poor cooperation between police and prosecutors;
- application of differing legal codes in courts throughout Bosnia;
- failure to arrest and detain suspects and a lack of a framework for extradition with neighboring countries;
- failure by prosecutors to make use of available sources of evidence;
- failure by prosecutors and courts to cite and apply relevant international precedent, including the verdicts of the ICTY;
- lack of trust between some prosecutors and victims, exacerbated by insufficient outreach; and
- a need for further cooperation and communication between state and entity authorities.
Still others represent practical and political challenges, such as:
- a large number of unresolved case files; and
- a lack of specialized investigators responsible to prosecutors.
Based on research conducted for this report, Human Rights Watch believes that there are several essential steps that must be taken to ensure fair and effective trials for crimes in violation of international law in the Federation and Republika Srpska.
In regard to matters of resources and organization, the numbers of cantonal and district prosecutors must be increased and specialization must be allowed among prosecutors working on cases for war crimes, crimes against humanity, and genocide. Prosecutors' offices must be given sufficient support personnel, such as associates and law clerks. Additional training should be held for judges, prosecutors, defense attorneys, and police on issues of the use of international law and the investigation of crimes under international law. Adequate facilities and staff must be provided to allow effective witness protection and support. Police reform efforts should take account of the need to screen and train police participating in investigations of crimes committed during the war.
In regard to work practices and cooperation, Bosnian and entity government officials must work together to find a way to harmonize the law applied in cases for war crimes, crimes against humanity, and genocide in different areas of the country. Prosecutors should consider seeking the arrest and detention of suspects where necessary. Prosecutors should make use of evidence available from sources such as the State Court, the ICTY, and nongovernmental organizations (NGOs). Prosecutors and courts should increase use of international law and respect the precedent of international tribunals such as the ICTY. Prosecutors, police, and others involved in these trials should make greater efforts to participate in and instigate outreach events in order to raise public awareness of trials and to build trust with victims. State and entity prosecutors should continue efforts to regularize contacts and to increase transparency regarding the status of investigations at the entity level and review of cases at the state level. Specialized investigators should be created within prosecutors' offices working on cases for crimes committed during the war. A legal framework for extradition and case transfer must be completed and agreed with neighboring countries.
Ultimately, state and entity officials should work together to devise a meaningful national strategy to address the large number of complaints pertaining to crimes dating from the war.
These trials are a unique opportunity for Bosnia to provide a model of successful complementary prosecutions for crimes against humanity, war crimes, and genocide at the international, national, and local levels that could be emulated in other countries around the world dealing with the legacy of conflict and human rights crimes. If the challenges impeding the trials before cantonal and district courts are not addressed, however, many victims who have already waited a long time to see justice done for the crimes committed during the war may never do so. Many witnesses to these crimes have left Bosnia and some have died, and action must be taken quickly before the opportunity is lost. Allowing these cases to go unresolved could undermine, in the eyes of many victims, the hard-fought achievements made in the field of international justice for war crimes, crimes against humanity, and genocide. More broadly, it could undermine faith in the judicial system to handle all manner of cases, and undermine political stability in Bosnia.
Interviews for this report were conducted by three members of the staff of Human Rights Watch in December 2007 in locations in both entities of Bosnia: Sarajevo, East Sarajevo, Banja Luka, Mostar, Bijeljina, Tuzla, and Pale. These locations were selected based on a number of criteria including the presence of engaged civil society groups locally and the activity or lack thereof in the prosecution of cases for crimes committed during the war. Brčko District was not included within the scope of this report for logistical reasons. Additional follow-up interviews were conducted by telephone and email by one of the researchers from New York between January and May 2008.
Human Rights Watch held interviews with 50 people representing state, cantonal, and district prosecutors; defense attorneys; state, cantonal, and district court officials; police and Ministry of Interior officials; the State Investigation and Protection Agency (SIPA); state, entity, and cantonal-level Ministry of Justice officials; staff of the Bar Association of Republika Srpska; both entities' Judicial and Prosecutorial Training Centers; the Criminal Defense Support Section (OKO) of the State Court; the High Judicial and Prosecutorial Council; the liaison officers of the International Criminal Tribunal for the former Yugoslavia; and Bosnian civil society groups and victims' groups. Interview subjects were selected based on their official role in the processing cases based on crimes from the war or on the recommendation of other professionals in the field or of civil society groups. Human Rights Watch also held additional informational meetings with staff of the Organization for Security and Co-operation in Europe (OSCE) Mission to Bosnia-Herzegovina and the United Nations Development Programme (UNDP). Interviews were generally with individual subjects, though occasionally in small groups. Interviews were conducted in Bosnian-Croatian-Serbian (BCS) with the aid of an interpreter or directly in English.
As not all interview subjects wished to be identified by name, interviewees are identified only by their institutional affiliation.
II. The Importance of the Trials before Cantonal and District Courts
The fact that the ICTY and the State Court of Bosnia and Herzegovina generally have jurisdiction over cases dealing with more senior perpetrators or more politically sensitive crimes does not mean that the crimes tried before cantonal and district courts are not very serious. In fact, for many victims, trials of people who physically committed the atrocities, rather than their leaders, may be of greater importance. Examples from recent cases before district and cantonal courts underscore just how serious these crimes are and how important it is that those who committed them face justice.
Mario Matić, a Croat, was convicted by the Mostar Cantonal Court of killing one unarmed prisoner and of seriously beating another while serving as a military police officer in the Bosnian Croat Army (HVO). According to the judgment, Matić approached a column of prisoners that included civilians and BiH army personnel. Referring to the prisoners by a derogatory slur for Bosniaks, he threatened to kill them all before beating a civilian, Vejsil Hajduk. He then ordered another civilian, Ismet Kovačević, out of the column and shot him to death.
Milorad Rodić, a Serb, pled guilty to a number of offenses against civilians before the Sarajevo Cantonal Court. These included forcing his way into apartments inhabited by Bosniaks and in one instance raping one of the inhabitants at knifepoint as well as beating another.
Fikret Smajlović, a Bosniak, was convicted in the Tuzla Cantonal Court of participating in numerous and severe beatings of detainees in the Batković camp, near Bijeljina. Himself a prisoner, Smajlović befriended the camp guards, who were Serbs, and was placed in a position of authority over other prisoners. In this capacity, he was involved in abusing prisoners on several occasions. He was convicted of beating several prisoners to death with wooden shafts, stones, and batons. He beat a captured soldier so severely that he fractured his vertebrae.
Romeo Blažević, a Croat, was convicted by the Mostar Cantonal Court of beating Bosniak prisoners with a braided whip and in one instance of wounding a prisoner in the head with the butt of his pistol. He was also found guilty of forcing a female prisoner to cross between enemy lines to retrieve the body of his brother; he threatened to decapitate her two children if she refused.
A. The "Rules of the Road"
A small number of trials for crimes committed during the war were conducted by a variety of courts in Bosnia both during and shortly after the war itself. Many of these early trials, however, raised concerns among observers regarding arbitrary arrest and detention and restrictions on freedom of movement. In response to these and other concerns, the government of Bosnia established the "Rules of the Road" process in 1996.
Under this agreement, Bosnian authorities were required to submit potential war crimes, crimes against humanity, and genocide cases for review to the ICTY, whose prosecutors supervised the review of case files in order to ascertain whether they contained sufficient evidence to warrant further investigation and possible indictment. When this review was completed, these cases were returned to domestic authorities with a letter marking ("A" through "H") indicating their suitability for further investigation or trial. The most significant of these markings were "A" (sufficient evidence regarding defendant and alleged crime), "B" (insufficient evidence), and "C" (unable to determine sufficiency of evidence). In 2004 the ICTY's duties under the Rules of the Road scheme were transferred to the newly created Prosecutor's Office of BiH.
B. The creation of the State Court of Bosnia and Herzegovina and case review
The creation of the State Court and state prosecutor's office provided a major boost to prosecutions of crimes under international law within Bosnia. The successful completion of a number of cases since trials began in 2005 at the State Court has drawn renewed attention to this issue and provided an important impetus to trials in other venues. More concretely, the state prosecutor's office took on an important role in reviewing and in determining the appropriate venue for cases originating, or being tried or investigated, in the entity systems.
The Criminal Code of Bosnia and Herzegovina, in conjunction with other reforms undertaken starting in 2003, gives jurisdiction for new cases for war crimes, crimes against humanity, and genocide to the state authorities. However, the law has provisions allowing the transfer of cases to entity (cantonal and district) authorities in some instances, and entity prosecutors continue to have jurisdiction to investigate and try a large number of existing case files.
Whether state or entity authorities have authority to investigate and try existing cases is based on a determination by state prosecutors as to whether they are "sensitive" or "highly sensitive." "Highly sensitive" cases are tried before the State Court, while "sensitive" cases are tried by the cantonal and district courts.
The criteria for determining the sensitivity of a case are laid out in the "Orientation Criteria for Sensitive Rules of the Road Cases" (hereinafter Orientation Criteria). These criteria are not rigid but generally take account of the type and seriousness of the alleged crime, the rank or political prominence of the defendant, and a number of "other" factors, such as whether the case involves "insider" or "suspect" witnesses, whether there is a prospect of witness intimidation, and whether political conditions locally are such that a fair trial may be impossible.
Cases determined to be "sensitive" and thus suitable for investigation and trial before cantonal and district courts are then referred to the prosecutors with territorial jurisdiction over the case or, more often, to the prosecutor's office from which the case was sent for review.
During 2005 and 2006, state prosecutors reviewed 877 "A" cases and referred the majority of these to entity prosecutors. There are also perhaps more than 100 "borderline" cases where legal concerns, such as that a case under review relates to a case being investigated or tried by state authorities, require the postponement of the sensitivity determination. Though state prosecutors are not bound by the letter marking of the ICTY Rules of the Road Unit and theoretically could conduct an assessment of case files with markings other than "A" following further investigation by entity prosecutors, state prosecutors indicated that this has happened only in one or two instances. Newer cases under the jurisdiction of the State Court are also generally not being transferred to cantonal and district courts, as some had envisioned might be the case.
This review process has been instrumental in getting cantonal and district prosecutors to undertake prosecutions in a more serious and concerted manner. Prosecutors in Republika Srpska told Human Rights Watch that after the beginning of this referral process, in 2004 and 2005, there was an improvement in the quality of indictments and case preparation that led to a more serious effort to try crimes committed during the war.
1. Difficulties in case review and sensitivity determination
Despite the success of the review processes by the state prosecutor's office in instigating progress on trials domestically for crimes committed during the war, these processes have also drawn criticism. A great deal of procedural confusion accompanied initial attempts at cooperation between cantonal, district, and state authorities over the review of cases. This confusion in some cases has caused impediments in the conduct of investigations and trials.
At the outset of this arrangement there was confusion as to which cases were required to be submitted for review by state prosecutors, due to apparent conflicts between the BiH Criminal Procedure Code and the Book of Rules. The OSCE documented several instances in 2004 and 2005 in which this confusion led to cases already in process being adjourned in order to seek State Court review. During interviews conducted for this report, cantonal, district, and state prosecutors continued to voice differing opinions as to the proper procedure that should have been followed during this initial period.
This specific issue is now largely moot since most of these cases in process at that time have now been completed. However, confusion over the role of the state prosecutor's office persists.
Cantonal and district prosecutors raised several concerns about the review process in interviews with Human Rights Watch. Some prosecutors stated that because cases investigated locally are transferred to other jurisdictions by state prosecutors, it gave the impression that cantonal and district prosecutors were not working to bring cases within their own offices. Other entity prosecutors asserted that the review process wasted time and slowed cases down. Another issue raised is that due to state prosecutors' powers to refer cases, entity prosecutors feel that they are unable to determine the number of cases that will ultimately be under their control and, therefore, to plan their staffing and scheduling to handle them. One prosecutor told Human Rights Watch that the inability to maintain continuous control over the preparation and trial of cases made their work more difficult, as investigative work, including relationships with witnesses, had to be put on hold pending the State Court's review.
However, given the large number of "A" cases already referred to cantonal and district prosecutors whose investigation is still incomplete, these concerns voiced by entity prosecutors cannot totally explain the slow progress in some jurisdictions that have yet to try a single case, while in others, prosecutors have completed numerous investigations and trials. Additionally, state prosecutors, while acknowledging that a lack of clarity exists within Bosnia over rules governing jurisdiction and case review, asserted that these criticisms do not reflect the present reality in Bosnia given that the vast majority of case review was completed by 2006.
Prosecutors in Banja Luka noted that they had been referred only cases with Serb defendants and that this hampered their ability to build trust locally. State prosecutors, however, questioned whether sensitivity determinations played a role in this, stating that this was likely due to the ethnicity of suspects named in existing complaints from that jurisdiction.
While some of these difficulties are an inevitable part of the review and referral process, work should continue to increase transparency and communication from both sides during review and referral in order to alleviate some difficulties and misunderstanding. One state official lamented the difficulty that state authorities have encountered ascertaining the location and status of many case files in the entity system. Entity prosecutors need to provide their colleagues at the state level with accurate and timely information about open investigations.
One state prosecutor told Human Rights Watch that his office is aware that a great deal of confusion exists around the rules and procedures that govern the review process. Part of this is due to the fact that the state prosecutor's office does not have a separate unit to review cases. Rather, cases are reviewed by individual prosecutors working on the territorial division from which the case originated. The limited staffing at the state prosecutor's office did not always allow for a prompt review of cases, especially given these same prosecutors' responsibilities for ongoing trials and new investigations. As a result, communication with cantonal and district prosecutors over the status of case review was infrequent during the review of "A" cases. State prosecutors indicated that they have taken steps to regularize contact with their entity colleagues in recent months.
2. Lack of clarity on sensitivity determinations
Another difficulty is that the criteria used to judge the sensitivity of cases at the state prosecutor's office are not widely understood by many cantonal and district prosecutors or by the public at large. One official with the state prosecutor's office acknowledged a need to articulate clearly and publicly the criteria used to determine sensitivity of cases. At the same time, he emphasized that these criteria are not a legal standard that should be subjected to undue outside scrutiny or judicial process. Indeed, the Orientation Criteria make clear that they are guidelines and are not "set in stone." The need to delay sensitivity determinations on "borderline" cases, for example, often has to do with factors other than the sensitivity of the charges in that particular case.
Some cantonal and district prosecutors cited public criticism of state prosecutors' decisions to try relatively low-level defendants early on at the State Court, alongside the lack of transparency in the review process, to argue that the State Court was keeping for itself only "easy" cases, while transferring to entity courts those in which convictions will be harder to secure.
Given the sensitive nature of the criminal charges at issue and of the complex legal realities surrounding the review of case files, it is unsurprising that relations between state and entity authorities have at times proven confused or contentious. Reports by state prosecutors of a recent increase in meetings between state and entity prosecutors are, therefore, welcome. Such efforts will be vital to effective collaboration in resolving existing criminal complaints.
C. Changes to the legal system and judicial and prosecutorial reforms
The above changes in jurisdiction were rendered more difficult because they took place against the backdrop of dramatic reforms of the judicial and prosecutorial systems in Bosnia, as well as drastic changes in criminal procedure.
Judicial and prosecutorial reforms began under the auspices of the Independent Judicial Commission (IJC) in 2001. They were aimed at reducing political influence and ethnic bias in the judiciary. As a result of this process, about 30 percent of first instance courts in the country were closed and the number of judges was reduced by 30 percent. Additionally, prosecutors and judges were subjected to reappointment during 2003 and 2004 by the High Judicial and Prosecutorial Council (HJPC) in order to ensure, inter alia, ethnic balance in courts and prosecutors' offices.
Around the same time, as part of reform efforts pushed by the High Representative, Bosnia also undertook radical changes in criminal procedure with the introduction of new Criminal Procedure Codes in Republika Srpska and in the Federation of BiH in 2003. These new codes reflect a major change from the previous criminal justice system. The new codes introduce a more adversarial model of criminal justice by eliminating the office of investigative judge and by shifting much of the responsibility for investigation and the preparation and conduct of trials to prosecutors. Much of the effective responsibility of promoting the fair trial rights of defendants was shifted to defense attorneys.
These codes also introduced new tools, such as plea bargaining, into the criminal justice system and granted prosecutors the right to grant immunity in exchange for witness testimony. If properly used, plea bargains could improve the efficiency of trials and could help reduce the large number of open case files for crimes dating from the war. Immunity could help prosecutors to build cases where witnesses are reluctant to testify and to facilitate cases against persons in positions of command.
However, plea bargaining and immunity have no precedent in the Bosnian justice system, and many prosecutors and judges have been slow to adopt their use. As such, some people have come to regard these procedures as problematic. Like other aspects of procedural reform, plea bargaining represents a radical change from the prior practice of defense attorneys, who are also relatively unfamiliar with these new procedures. Defense attorneys must act quickly during the negotiation of plea offers and have sometimes had difficulty with this aspect of their new role.
It is also worth noting that because these procedures may result in shorter sentences, or even immunity from prosecution, they may be very hard for victims to accept. One victims' group leader stressed that while judicial efficiency is a very important value, plea bargaining and immunity are more acceptable in the context of minor crimes, such as car accidents. He stated that he would personally be very upset if the person responsible for his suffering during the war received a reduced sentence under a plea agreement or in exchange for testimony. State prosecutors, however, noted that they have been able to make important progress in the use of pleas at the state level and that victims who became more familiar with the process had become more accepting of the use of pleas.
D. Uncertain number of existing cases
Another serious complicating factor in the prosecution of war crimes, crimes against humanity, and genocide is the lack of available concrete information on the number of existing criminal matters in the country. Figures, usually attributed to the state prosecutor's office, range from 13,000 to more than 16,000. However, skepticism about this figure is widespread. Many people interviewed asserted that only a fraction of this number were cases that contained enough evidence to reach trial. Additionally, there is a general lack of clarity regarding what this disputed figure even represents. It is unclear what percentage of this figure represents cases or suspects, active investigations, or mere complaints.
Members of the state prosecutor's office told Human Rights Watch that they are taking steps to remedy this problem by creating a computer database that will catalog existing complaints. This database will also be used in conjunction with the victim-centered crime study, commonly referred to as the "yellow pages," a catalog of crimes committed during the war assembled by state prosecutors in conjunction with victims' groups, NGOs, and others. State prosecutors can cross-reference matters selected for investigation from the "yellow pages" with the database of existing files in order to coordinate existing evidence and leads and to avoid the possibility of duplication in investigation.
If this database is successful, it will be a welcome development. It is essential to gain a clear picture of the number of existing case files in order to ascertain the staffing and funding needs of the courts where trials will eventually be held. Up to now, the confusion over the number of cases for crimes committed during the war has been a serious problem in Bosnia. It has created the impression in the media that processing these cases will take an inordinately long time, which feeds public skepticism about the ability of entity authorities to complete this task. The lack of clear information on the number of complaints has also had a negative impact on the cooperation between state and entity courts and has, at times, been a source of tensions that can impede progress.
Inadequate numbers of prosecutors, judges, and support staff, as well as a lack of specialization among judges and prosecutors,pose a barrier to addressing the large number of existing complaints for crimes under international law in Bosnia.
A. Staffing needs for judges
At present, the shortage of judges, though real, is not as severe as the shortage of prosecutors. In Mostar, court staff said that the number of judges dealing with war crimes, crimes against humanity, or genocide cases in that court was being reduced from three to two due to a decrease in these cases and that this number of judges was adequate. Others, however, including the High Judicial and Prosecutorial Council (HJPC), the body charged with assessing the needs and proposing the numbers of staff at courts and prosecutors' offices, have recognized that the entity courts employ an insufficient number of judges to deal with the current caseload of war crimes and other international law cases. It is also important to bear in mind that any increase in the rate at which these cases are brought to trial, whether due to an increased number of prosecutors or otherwise, will make the effects of the shortage of judges more severe.
The solution to the shortage of judges proposed by the HJPC and the former IJC is the appointment of "reserve" or temporary judges, rather than a permanent increase in the number of serving judges. This system will make it easier to reduce the number of judges at a later date if the backlog of cases is reduced significantly. Some court personnel, however, expressed skepticism about this approach. One prosecutor, who also serves on the HJPC, noted that the number of judges needed in Bosnia was determined with reference to other European countries but argued that given the unique challenges faced by Bosnia, such as the backlog of cases related to the war, practices in other European countries may be of limited comparative value. Temporary judicial appointments could potentially also raise concerns regarding judicial independence. Additionally, cases for crimes under international law touch on specialized areas of law that may require additional specialized training to which reserve judges may not have had access.
Practical difficulties, such as bureaucratic delays surrounding budgeting and funding in entity and cantonal governments, also impede the provision of adequate numbers of reserve judges. In the district court in East Sarajevo, court staff stated that the court had been waiting two years for a reserve judge who had been approved but not yet funded to serve a six-month term. As the pace of prosecutions of crimes committed during the war will likely increase in coming years, it is important that the courts be sufficiently staffed with judges to efficiently deal with the increased caseload.
B. Staffing shortages in prosecutors' offices
The HJPC has concluded that the staffing levels of prosecutor's offices, as well as the technical facilities and level of specialization and expertise, are inadequate to handle the current number of cases for crimes under international law. The shortage of qualified prosecutors is an urgent problem since it is prosecutors who bear responsibility for the investigations of cases, in addition to trials.
Nearly all prosecutors who spoke with Human Rights Watch told of being short-staffed and of the difficulty of attracting new prosecutors. Recent changes can account for some of this shortage. One prosecutor stated that qualified staff were lost to the State Court upon its creation. Prosecutors are no longer reimbursed for travel expenses, a problem for retaining staff where prosecutors must, at times, commute long distances to work in areas where there are no qualified staff available locally. In any event, it has been difficult in Bosnia since the war to recruit, train, and fund sufficient numbers of prosecutors to handle the country's large backlog of cases. Staff working on training say that more steps need to be taken to train young lawyers to become prosecutors and to entice them to enter the field.
Beyond the overall shortage of prosecutors, there are very few prosecutors specializing in war crimes, crimes against humanity, or genocide and almost none who work exclusively on these cases. Trials for these crimes demand expertise in international law, including the Geneva Conventions, customary international law, human rights treaties, and the jurisprudence of international and hybrid tribunals. In addition, the investigation of these crimes, especially those that occurred years ago, requires specialized skills and knowledge. While it is true that prosecutors' offices also handle a large number of other types of important cases, it would be extremely beneficial for prosecutors working on cases involving crimes under international law to be able to specialize in this type of case, particularly because of the large number of such cases.
Compounding the inadequate number of prosecutors is the near universal lack of support staff within prosecutors' offices. The District Prosecutor's Office in Banja Luka, for example, employs 35 prosecutors to deal with a territory of over half a million people, with no trainees or assistants. Only one cantonal or district prosecutor of the ten with whom Human Rights Watch spoke has the assistance of an associate, and that associate's time is shared with other prosecutors. The result of this shortage is that prosecutors are forced to do nearly every aspect of cases personally, from interviewing witnesses, to drafting submissions, to routine administrative tasks. Prosecutors' heavy workloads were cited as a reason why prosecutors often urge the transfer of cases theoretically under the jurisdiction of the cantonal and district courts to the State Court.
A. Lack of specialized investigators within prosecutors' offices
One of the largest tasks that prosecutors deal with in the context of cases for war crimes, crimes against humanity, and genocide is investigation. Prosecutors must organize the gathering of physical evidence and witness testimony to ascertain the veracity of complaints before seeking an indictment and then preparing indicted cases for trial. The law in both entities allows prosecutors to work with "authorized personnel" who can assist with investigations by identifying suspects, gathering information and evidence, and executing court orders. Proposals have been put forth to create investigators within cantonal and district prosecutors' offices, but so far these proposals have not yielded results. Such investigators could assist with some of the more time-consuming tasks facing prosecutors, such as attending exhumations and interviewing witnesses. These investigators would also be under the control of prosecutors, rather than police, which would give prosecutors more control over investigations. Such investigators would also be removed from political pressures that can sometimes make it difficult for police to work on certain politically sensitive crimes.
B. Police cooperation across entity boundaries during investigations
Without specialized investigators within prosecutors' offices, investigations are carried out by prosecutors themselves and by local police. This arrangement is problematic in many regards. Even many years after the war in Bosnia, public trust in the police, especially across entity boundaries, remains low, in part due to lingering suspicions that some members of the police, on all sides, were involved in human rights violations during the war. While there have been improvements in cooperation in many spheres, cases dealing with crimes committed during the war are extremely politically sensitive. Because of this, it is often very difficult for police to fulfill their role in investigations of these crimes. This is especially true where police cooperation across entity boundaries is required.
Police in the Federation of Bosnia and Herzegovina state that cooperation with their colleagues in Republika Srpska was nonexistent a few years ago but has made great strides recently, especially on less politically sensitive crimes. Prosecutors in the RS gave mixed reviews of cooperation from Federation police, citing generally improved cooperation with exceptions in certain cantons.
Despite these advances, cooperation between police in different entities on investigations of international law crimes continues to pose significant challenges. Police in the Federation conceded that the Bosnian State Investigation and Protection Agency (SIPA) is much better suited to investigate crimes committed by the local majority groups than are local police. Although cooperation between SIPA and entity police existed in the first years of SIPA's creation, it has now been halted so that SIPA investigators can focus their limited resources on their primary task of assisting state prosecutors.
C. Limited police investigative capacity
Even apart from political considerations, police in both entities have limited ability to carry out the tasks required by cases dealing with crimes under international law. Police bodies in both entities have taken some steps to increase their capacity to investigate these cases. Training workshops on cooperation between police and prosecutors are credited with some improvement in this area, though many challenges remain. In the Federation, police war crimes specialists have begun to be used, but these officers also work on a variety of other types of violent crimes and work only in Sarajevo. They are unable to supervise the work of police in the cantons. War crimes specialists are employed within the Public Security Centers in Republika Srpska, but in limited numbers (between three and eight officers apiece), and many centers lack proper facilities for conducting interviews with witnesses.
Ministry of the Interior staff have noted difficulties in recruiting women and people from different ethnic backgrounds to work as war crimes investigators. Many police have little training in dealing with traumatized victims, and due to this, many male police officials struggle in dealing with women who have been victims of sexual violence.
D. Cooperation between prosecutors and police on investigations
These practical and political difficulties have strained cooperation between prosecutors and police on sensitive human rights cases. Even those prosecutors who assert that cooperation with police is adequate concede that cases dealing with crimes committed during the war pose challenges. These challenges are especially intense when prosecutors must rely on local police to provide information on crimes committed by members of the police.
The issue of police reform in Bosnia continues to be a live political issue, especially due to Bosnia's European Union accession process. One civil society representative stressed the need for more extensive vetting of police than had previously been conducted in Bosnia, pointing out that several police officers had recently been named as having been involved in the genocide at Srebrenica. Police in both entities acknowledge problems with sympathy for suspects among some police and even the presence of suspected war criminals within police forces. It is important that ongoing efforts in police reform take account of the role of the police in investigating crimes committed during the war. Ensuring funding for more specialized officers, with more extensive training in the complex practice of investigating these crimes, would help with this. Placing such officers under the authority of prosecutors' offices would help insulate them from political pressures in their daily work on politically sensitive cases.
A. Difficulties in the use of evidence from the war period
Human Rights Watch has previously noted that evidence from the war period frequently contains little information on which indictments can be based. Furthermore, evidence of war crimes, crimes against humanity, or genocide was in some cases destroyed by local police. Problems with evidence dating to this time exist in both entities.
Evidence of crimes in violation of international law taken during the war was often based on national or ethnic identity and aimed at establishing political responsibility for the conflict by an opposing side. Thus, even had more of this evidence survived, it is questionable whether it would be useful to prosecutors today. Prosecutors in both entities told Human Rights Watch that evidence from the time of the war is so politicized as to be of little value. Complaints lodged at that time sometimes name an entire military unit as a perpetrator and contain little of the specific information, such as ballistics or autopsy reports or military records, that could provide the basis for an indictment. Additionally, some prosecutors asserted that evidence gathered in accordance with older criminal procedure codes has at times been ruled inadmissible due to inconsistencies with the law as it now stands.
B. Evidence sharing with the State Court
These difficulties in obtaining evidence make cooperation with other evidentiary sources especially important. One such source could be the State Court, whose War Crimes Chamber handles many cases related to cases in the entity systems. Currently, evidence sharing exists between the State Court and entity courts, but it is informal and entity courts do not have access to the State Court's evidence database. A state prosecutor told Human Rights Watch that in one instance, state prosecutors became aware only by chance that a case overlapping with one of their own was being investigated by entity authorities.
Plans are being considered to amend the applicable law to allow the transfer of new cases from the State Court to entity courts during the investigative phase, as well as to divide jurisdiction in specific cases between state and entity courts, with high-level defendants tried at the State Court and lower-level defendants at entity courts. If adopted, these changes would require increased cooperation and sharing of evidence. More formalized evidence sharing mechanisms would facilitate this. This could be realized by allowing access to state prosecutors' evidence by cantonal and district prosecutors or by creation of a centralized body to store and organize evidence related to crimes committed during the war.
C. Use of ICTY evidence
As cantonal and district courts and prosecutors' offices increasingly gain access to networked computers, priority should be given to enabling access to the ICTY's Evidence Disclosure Suite and Judicial Database. Cantonal and district prosecutors still do not have access to these, despite previous expressions of interest by state prosecutors in facilitating this.
Even without this technology, a small number of prosecutors have taken advantage of the ICTY liaison offices in Bosnia to request the use of ICTY evidence. Officials in the liaison office have expressed eagerness to collaborate with cantonal and district prosecutors but report almost no requests for cooperation until this point. The liaison offices have been active in outreach, which will hopefully increase awareness of and interest in their services, but prosecutors should also be more proactive in seeking this cooperation. In some instances, hostility toward the ICTY as an institution may prevent some prosecutors from seeking the services of the liaison offices. Some even questioned whether ICTY evidence would be admissible under domestic law. Most prosecutors agreed, however, that this evidence would be useful and some cited it as a key way to obtain evidence that may be otherwise hard to obtain from government agencies.
D. Use of NGO evidence
NGOs could be another valuable source of evidence for the prosecution of war crimes, crimes against humanity, and genocide. Many local NGOs have been actively compiling evidence on the identities of victims and perpetrators, and victims' groups often have contacts with people who could provide witness testimony about crimes committed during the war. It is true that NGOs are generally not trained in criminal investigation, and some may have been influenced by political concerns. Evidence gathered by them may be considered hearsay, for example, and therefore not admissible at trial. However, greater cooperation could generate valuable leads that prosecutors could refine prior to trial, and cooperation would also help to build trust between prosecutors and victims.
Some NGOs have undertaken specific initiatives to compile, and make accessible, information on crimes committed during the war. The organization Savez Iogoraša, for example, recently unveiled a plan to create a centralized, searchable database that would allow prosecutors to cross-reference victim or perpetrator names and nicknames in order to locate further evidence. The Research and Documentation Centre (RDC), in Sarajevo, has already completed an extensive database of information on crimes committed during the war, which also features a search feature.
However, while RDC reports good cooperation with state prosecutors, it has been contacted only once by a cantonal or district prosecutor to assist in gathering evidence for a case. Similarly, the Center for Civic Initiatives, an NGO involved in issues related to trials for crimes committed during the war, also reported that state prosecutors had sought their assistance in locating potential witnesses, while cantonal and district prosecutors had not.
There are some exceptions to this. For example, prosecutors in Banja Luka district cooperate with the NGO Izvor to locate and facilitate some medical, psychological, and practical support for witnesses, and prosecutors in Tuzla Canton work closely with the NGO Vive Žene (see Witnesses).
In other areas however, such as Bijeljina, there is a distinct lack of trust and cooperation between prosecutors and local NGOs. District prosecutors there criticized the quality of evidence provided by local NGOs and questioned whether a nongovernmental organization should play a role in gathering evidence at all.
Prosecutors and NGOs need to take steps to further their cooperation. This will require greater efforts by prosecutors, but also an acknowledgement by NGOs of their limited role and that not all evidence of war crimes, crimes against humanity, and genocide can be used to form an indictment without further work. Nonetheless, cooperation in some districts and cantons, as well as at the State Court, show that information from NGOs can form a useful basis from which prosecutors can further investigate.
E. Additional concerns regarding sources of evidence
Several prosecutors, especially in Republika Srpska, noted difficulties obtaining documents from government archives, such as military records, that would enable them to prove command chains and to establish which military units were stationed near crime scenes at the times that crimes were committed. While not all interview subjects felt that this information was necessary, state prosecutors also noted that requests for records from government archives are difficult to obtain and urged greater ease of access by prosecutors.
Prosecutors also have limited access to use of DNA evidence. A DNA analysis laboratory was recently opened in Banja Luka, and some training has been provided in the use of this evidence. The courts in the Federation do not have a dedicated DNA analysis laboratory, and instead rely on the facilities of the International Commission on Missing Persons, whose continuing work on other important aspects of its mandate means that it cannot always respond quickly to prosecutors' requests. Some interview subjects questioned the necessity of DNA evidence to solve cases, but one state prosecutor noted that while DNA evidence is not necessary in every case to establish guilt, it is extremely useful in establishing the fate of victims.
Because of these numerous difficulties in obtaining physical evidence for cases for crimes committed during the war, witness testimony is often the only evidence available to prosecutors in these cases. Witness intimidation and fatigue, as well as a lack of information on the role of witnesses in the judicial process, impair the ability and willingness of victims to testify at trial. Authorities need to fulfill their obligation to provide adequate witness protection and support services in order to facilitate greater witness participation in trials. While it is true that fulfilling these obligations will require commitment of additional resources, the failure to fulfill them could impede fair trials and the rights of victims.
A. Lack of witness protection services
In a post-conflict society such as Bosnia, political tensions remain high and many victims are still suffering from the trauma that they experienced during the war. In order to foster victim participation in trials, it is necessary that victims have faith in the judicial system, be willing to testify, and feel safe from retribution for their testimony. To ensure this, witnesses and their families must be protected before, during, and after trials. In rare cases, this may require long-term protection or even resettlement to other countries.
As previous Human Rights Watch reports have noted, it is difficult to obtain confirmed information on incidents of witness intimidation during trials in Bosnia's entity court systems, but experience with trials for war crimes, crimes against humanity, and genocide elsewhere in the former Yugoslavia shows that intimidation is frequent in this context. The sensitive nature of these trials may leave witnesses vulnerable to intimidation or retribution from hostile members of the public. While some officials acknowledged that they had received no reports of witness intimidation that could be prosecuted, at least one prosecutor asserted that this was due to the difficulty of proving this crime, not the absence of intimidation.
Indeed, perception of dangers to witnesses, whether substantiated or not, came up frequently during interviews with victims, prosecutors, and others conducted by Human Rights Watch. Witnesses who have returned to their pre-war homes in areas where they are members of a minority group may be additionally fearful and unwilling to testify. Many of our interviewees said that victims often did not trust local police, in either entity, to provide adequate protection for them if they were to testify as witnesses, suspecting them of at least sympathizing with war criminals and at times actually employing them.
The entity authorities' obligation to provide the tools necessary for witness protection is based in Bosnian law and does not hinge on the absence or availability of evidence of intimidation. Both Republika Srpska and the Federation of Bosnia and Herzegovina have legal provisions for witness protection and support, but in most instances these laws exist only on paper. State Court officials told Human Rights Watch that in at least two cases, the State Court took over jurisdiction from, or refused to transfer jurisdiction to, entity courts specifically because of the lack of adequate witness protection or support.
Courts lack almost all modern equipment that would be required to protect the identities of witnesses, such as video links or software to disguise witnesses' voices. The poor physical state of many of the courts is a symptom of damage from the war and of neglect that predates the war. One official likened the facilities of the State Court to a "spaceship" compared to those of the entity courts. The only exception to this is the new courthouse for the East Sarajevo District Court, funded in large part by the Norwegian government, which will, according to its staff, feature facilities for witness protection.
But this lack of technological capacity can only partially excuse the lack of witness protection at cantonal and district courts. Witness protection may require this technology in only a small percentage of cases. In many others, the needs of witnesses could potentially be met by the use of much simpler means, such as erecting a privacy screen around a witness while he or she testifies, assigning pseudonyms, or by closing the courtroom during short periods of a trial where sensitive information is disclosed. State authorities have taken several steps toward providing witness protection that could serve as a model for district and cantonal authorities.
In most cases, district and cantonal authorities are not taking such steps to protect witnesses in sensitive trials. The only protective measure for shielding witness identity suggested by entity authorities during Human Rights Watch's investigation was to allow witness testimony to be read into evidence, rather than requiring live testimony. However, whatever measures are adopted to protect witnesses should always respect the overall right to a fair trial, and the option least restrictive of that right should be followed. This includes the right of the defendant to a public hearing and to examine, or have examined, the witnesses against him or her. Testimony being read into evidence rather than being delivered live and subject to cross-examination is, therefore, problematic. Similarly, any use of closed sessions of a trial should be limited, as holding trials in secret can undermine the right to a fair trial for defendants and impede public awareness of trials.
In Mostar, some NGOs and victims' groups reported that victims testifying at trials for crimes committed during the war were sometimes seated in the same waiting rooms as the defendants' families. For witnesses preparing to testify about traumatic incidents, this is a very problematic arrangement. Civil society representatives in Prijedor noted that witnesses often had to travel by bus to testify at court, often alongside friends and family of the accused. Authorities in Sarajevo canton lamented the lack of a separate entrance for victims, which could allow them to avoid unwanted exposure when entering the courthouse via the main entrance.
In cases where more modern witness protection facilities are needed to meet the needs of witnesses, district and cantonal authorities should make use of the facilities that exist at the State Court. State Court personnel who spoke with Human Rights Watch indicated that State Court facilities could be shared with cantonal and district courts and prosecutors. Cooperation between state and local authorities in this area would help cantonal and district authorities live up to their legal obligations to witnesses.
Additionally, entity and national authorities should work to secure the needed funding to bring the physical premises of cantonal and district courts up to the standard needed to protect witnesses. The HJPC has already conducted an extensive needs assessment of the cantonal and district courts which could be implemented relatively quickly given political will and funding.
Even with greater commitment to witness protection before and during trial, witnesses and their families may still require protection after trial. In a small number of cases, this may entail relocation.Several people who spoke to Human Rights Watch expressed skepticism at the ability of witnesses to relocate safely within Bosnia. They noted that Bosnia is a small country and that within communities it is very difficult for people to remain anonymous. Where relocation outside of Bosnia is required to protect witnesses and their families, other countries will need to assist. Experience with this issue at the State Court, however, indicates that other countries may often be unwilling to assist with the relocation of witnesses and their families.
B. Lack of witness support programs
Many witnesses in cases of war crimes, crimes against humanity, or genocide will require services other than protection to participate in trials. Many witnesses cited as barriers to participation aspects that are inherent to the process. Some of these barriers are practical: witnesses in some cases have been asked to pay their own transportation to court in order to testify. Others are more personal and require expert attention. Some victims' groups cited the stigma that can attach to victims of sexual violence in traditional communities. Additionally, the experience of cross-examination, where witnesses may face harsh questioning and have the veracity of their testimony challenged, was cited by at least one victim as a reason not to testify. Many victims are reticent to speak of wartime experiences at all, preferring simply to move on with their lives. All of these barriers are issues that witness support professionals could help address. Authorities need to take steps to fulfill their legal obligations to provide access to psychological and other support services so that witnesses have an easier time participating in trials.
In the absence of such services, prosecutors are left to work with witnesses for whom recounting past events may be extremely difficult or even traumatic. This can not only be devastating for witnesses, but can hamper investigations as well. One prosecutor recounted the example of a case that involved witnesses who, as young children, witnessed the murder of their families. Even with extensive support services, it is extremely difficult to speak about these events now that these individuals are adults. For a prosecutor untrained in dealing with the needs of such witnesses, it may be nearly impossible to build enough trust to obtain evidence necessary to the case. Witness support services are crucial in such situations. Some prosecutors noted that the prosecutors who work on these cases themselves had sometimes also become traumatized by repeating such interactions.
Witness support services have been provided by the ICTY, the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone, and the Bosnian State Court, and experience has shown that these services are essential to enabling witness participation. These witness support offices can help coordinate the practical needs of witnesses, including arranging for transportation, shelter, and food, and can also arrange counseling services that many victims need or desire in order to testify.
However, almost no witness support services are available to witnesses testifying before the cantonal and district courts. In theory, the entity governments should provide counseling and other support services to victims, including those who testify at trials, but, in most cases, the relevant ministries do not fulfill this obligation. Medical fees can sometimes pose a barrier to obtaining needed services elsewhere, especially for uninsured victims.
District prosecutors in Banja Luka have begun to address this shortcoming in conjunction with the NGO Izvor. Izvor helps to facilitate the participation of witnesses at trial by providing funding for and assistance with transportation to court and some counseling services by private doctors. This assistance is made possible only by international funding rather than by responsible government organs. The international community and the national and entity governments should prioritize the funding of these crucial services.
Another exception exists in Tuzla, where the non-profit organization Vive Žene has stepped in to fill the gap in victim support services. Vive Žene signed an agreement with the Office of the Prosecutor in Tuzla canton to provide services to victims whose testimony is sought in connection with trials. While this arrangement is beneficial to victims and prosecutors, both Vive Žene and the Office of the Prosecutor expressed frustration that Vive Žene was receiving no compensation for taking on responsibilities that ought to be fulfilled by the state. Additionally, Vive Žene expressed fears that their cooperation with the Office of the Prosecutor posed a risk of interfering with their primary mission of assisting victims of war and that this new role could compromise their public image of neutrality.
Indeed, other NGOs expressed similar concerns that witnesses who have received services from private, nongovernmental organizations ran a risk of being accused of having had their testimony coached by these organizations when testifying at trial. This adds further weight to the argument that the state should fulfill its role to provide support services to victims.
C. Witness fatigue
Many witnesses have testified at numerous different courts, including the ICTY and the State Court, and suffer from "witness fatigue." This fatigue can be compounded if courts receiving cases investigated in other entity jurisdictions must reinterview witnesses.
A dozen years after the end of the conflict, many witnesses have died or emigrated, and the recollections of witnesses who remain are less sharp and therefore less useful to prosecutors. The problems with witness testimony engendered by the passage of so many years may in part explain the frequent reports by prosecutors that witnesses change their testimony from that which they originally gave.
D. Building trust between prosecutors and victims
In part because of the issues noted above, an atmosphere of mutual suspicion and mistrust exists between many prosecutors and victims which hampers cooperation on politically sensitive prosecutions, especially war crimes, crimes against humanity, and genocide. One NGO representative told Human Rights Watch that because many victims blame the courts and prosecutors for inaction on these cases and because there are no support services available to facilitate participation, victims often refuse to participate as witnesses. Additionally, one NGO asserted that many victims lacked information and knowledge of the workings of the court system and believed that prosecutors were capable of bringing indictments without witness participation.
Witnesses' lack of participation fuels resentment among some prosecutors, with one prosecutor going so far as to assert that witnesses change their testimony due to bribes from defense attorneys. It is imperative that steps be taken to combat this lack of trust so that prosecutors and victims can achieve the common goal of successfully prosecuting crimes committed during the war.
Providing adequate witness support and protection services would go some of the way to overcoming this, but other steps are also needed. Outreach is also essential to this. Prosecutors who have been able to effectively use witness testimony in prosecutions of war crimes, crimes against humanity, or genocide cite repeated, sustained contact with witnesses as a key tool to building trust and to overcoming suspicion, especially across ethnic lines. Training for prosecutors, judges, defense attorneys, and police is also essential to making participation easier for witnesses. Trainings on working with traumatized witnesses by the Judicial and Prosecutorial Training Centres in both entities have been cited by attendees as helpful in overcoming some of these challenges. A concerted effort by the government and donors must be undertaken to enable these steps to be taken. Building trust between prosecutors, victims, and potential witnesses is essential to the success of future cases for crimes under international law.
A. Summonses and absence of recourse to custodySecuring suspect attendance at trial continues to pose a serious obstacle to successful prosecutions. One reason for this is the continued use of summonses. Under the criminal procedure codes of both entities, the use of summonses, where suspects are contacted in writing and informed of charges against them, is the default method for securing the attendance of an accused in court. However, the law also allows the use of several other means of securing suspect attendance where the use of a summons is impractical. The most notable is the power of the police to arrest suspects, provided they hold a hearing within 24 hours on the need for continued detention.
More than one prosecutor with whom we met asserted that they were required by law to notify defendants in writing of the fact that an indictment had been issued in their case before they could order the suspect's arrest. Others, however, scoffed at this, pointing out that the use of police arrests is also allowed and that the use of summonses is obviously impractical in many criminal contexts. The failure to consider measures other than summonses to secure attendance of defendants in cases dealing with war crimes, crimes against humanity, or genocide seems ill-advised. Given that this practice has received attention and criticism in the media, it is surprising that prosecutors still adhere to it.
The use of arrest warrants is not without problems, however. As noted above, despite numerous obstacles, some progress has been made in police cooperation across entity boundaries. However, even within entities difficulties remain. Police in the Federation told Human Rights Watch that they have made no progress to date in efforts to circulate arrest warrants between police in different cantons. This lack of coordination between cantons was criticized several years ago by the OSCE, which makes the failure to address it even more disturbing.
Following arrest, many suspects in cases dealing with war crimes, crimes against humanity, or genocide are not kept in custody. Defendants have a right to remain at liberty in many cases, but it is important that this be determined on a case-by-case basis so that defendants who pose a flight risk or who may attempt to influence or intimidate witnesses can be kept in custody during trial. In Mostar, one judge told Human Rights Watch that prosecutors no longer bothered to ask the Court to order custody of defendants and that as a result, at least one defendant had been able to flee when his verdict was pronounced. Under both entities' criminal procedure codes, custody may be ordered for several reasons, including risk of flight, danger to the public, threat of destruction or concealment of evidence, or danger of threatening or influencing witnesses.
B. Regional cooperation and the lack of an extradition framework
In Bosnia, as well as in Serbia or Croatia, it is common for evidence, witnesses, victims, and suspects in cases dating from the war period to be located in the territory of neighboring states. Because of this, regional cooperation is especially important to this type of process. This includes evidence sharing and prosecutorial cooperation as well as extradition.
Of these, the ban on extradition between states in the region is the more serious obstacle. Extradition is banned under the laws of Bosnia, Croatia, and Serbia. Many people with whom Human Rights Watch spoke in both entities of Bosnia cited the inability to extradite suspects as a major impediment to trials for crimes committed during the war. Because suspects often have dual or foreign citizenship, it is often impossible to compel their appearance at trial if they reside outside of Bosnia.
Transfer of cases involving war crimes, crimes against humanity, or genocide to other jurisdictions where the suspects reside is also generally not a solution as Bosnian law prohibits the transfer of cases to other countries where the underlying crime is punishable by more than 10 years' imprisonment. Even if legally permissible, such transfer would also prove difficult practically if witnesses and victims lack faith in the fairness of these proceedings or are unwilling to travel to other countries to testify. Human Rights Watch has previously noted that this creates an "impunity gap" that is an obstacle to justice for many victims.
Cooperation in the form of evidence sharing and investigative assistance does exist between prosecutors in Croatia, Serbia, and Bosnia, especially the latter two. However, this cooperation is carried out ad hoc under memoranda of understanding and should be formalized in legislation to allow for more institutionalized cooperation that includes cantonal and district prosecutors.
The importance of regional cooperation has been highlighted recently by the arrest of Ilija Jurišić, a citizen of Bosnia, in Serbia in May 2007. Jurišić is suspected of involvement in an attack on troops of the Yugoslav People's Army as they were retreating from Tuzla in 1992. Jurišić was detained for many months prior to the commencement of his trial in Belgrade. His prolonged detention in Serbia led to efforts during this time by Bosnian state authorities to extradite him or to transfer the case which were repeatedly refused or ignored by the Serbian government. Better regional cooperation, with a clear understanding of in which country it would be best to hold this trial, might have avoided some of the tensions that arose between these two countries over this trial and might have facilitated a quicker resolution of the case.
The elimination of the position of investigative judge had a major impact on defense attorneys. Prior to the 2003 changes in criminal procedure, it was the investigative judge who was most responsible for protecting the interests of defendants. Following the changes, defense attorneys took on a much more prominent role at trial than they had previously. Under this new system, which more closely resembles an adversarial system than its predecessor, defense attorneys now have a very significant role in promoting the fair trial rights of the defendants. Learning this new role has created many difficulties for defense attorneys, as have problems with payment of fees and access to legal and investigative resources. Where there is competition for limited resources, as in the justice systems of Bosnia, there may be a tendency not to prioritize the needs of the defense. This is unacceptable from the standpoint of the rights of defendants. Conditions that facilitate a vigorous defense must be created in order to ensure that trials are, and are viewed to be, fair.
A. Training and resources for defense attorneys
Defense attorneys who spoke to Human Rights Watch expressed dissatisfaction with their ability to handle certain aspects of their new roles. This underscores the need for further training to ensure that defense attorneys can work within the structure of the new procedural codes to provide a vigorous defense. Several defense attorneys, for example, stated that they felt themselves at a disadvantage compared to prosecutors, since prosecutors may conduct lengthy investigations prior to indictment, but defense attorneys must investigate quickly once an indictment has been issued. Others noted that defense attorneys had no assistance with investigations comparable to what prosecutors received from police. Some attorneys have been able to compensate for this by cooperating with other attorneys within their offices or by using fees for co-counsel to pay other attorneys to act as investigators. It is important that defense attorneys receive adequate training and support so that these aspects of the new criminal procedure codes are not viewed as obstacles to the protection of defendants' rights.
At the State Court, the Criminal Defense Support Section provides training and support to defense attorneys. Unfortunately, no similar body exists to support attorneys who represent defendants at cantonal and district courts. Cases involving crimes under international law generally involve vastly different law and evidence than do other types of cases, even other criminal cases. Especially since most attorneys do not specialize in one type of legal practice in Bosnia, they may need special training and support to be able to effectively defend these cases. OKO trainings are theoretically open to any interested attorney, but in practice, would most likely only be known to attorneys who practice before the State Court. OKO also provides access for defense attorneys to the Judicial Database and Evidence Disclosure Suite of the ICTY, but these services too are only available to attorneys practicing before the State Court.
OKO also provides legal research assistance to attorneys practicing before the State Court on key international law issues of concern in cases dealing with war crimes, crimes against humanity, and genocide. In contrast to this, one defense attorney who works at the cantonal, but not the state, level told Human Rights Watch that his only education in international law came from his work on cases at the cantonal court. Additionally, his only access to ICTY materials came from reading verdicts posted on the ICTY website. Making OKO's legal research memoranda generally available could provide some help to defense attorneys working before cantonal and district courts.
B. Payment of defense attorney costs
Both the Federation and Republika Srpska mandate legal defense in certain cases and have provisions to provide legal defense to indigent defendants. Attorneys for both indigent and non-indigent clients are paid for their services according to tariffs, which are set by the bar associations and approved by the Ministries of Justice in both entities.
Some defense attorneys with whom Human Rights Watch spoke argued that the rates of tariffs are too low to cover the costs of trials. One attorney reported that problems with compensation made it impossible to specialize in cases dealing with international law crimes and that attorneys' practices in other areas of law had to underwrite work on these cases. One defense attorney, however, pointed out that while direct financial compensation for representing defendants accused of war crimes, crimes against humanity, or genocide may be low, the press coverage that attorneys received because of this work often boosted their practice in other areas.
A more serious problem may be that delays in fulfilling budgetary requests from courts affected the availability of funds for attorneys who represent indigent clients and that this caused delays in payment for services. The President of the Cantonal Court in Sarajevo reported that such attorneys had essentially been working on credit due to unavailability of funds in the previous year.
A. Law harmonization
The Criminal Code of Bosnia and Herzegovina, created in 2003, contains numerous provisions for the prosecution of war crimes, crimes against humanity, and genocide. It also contains provisions for prosecuting under theories of command responsibility that are broader and more explicit than previous criminal codes. Trials at cantonal and district courts for crimes committed during the war, however, are generally conducted under the criminal code of the former Socialist Federal Republic of Yugoslavia (SFRY). This fact raises several legal questions that can undercut the ability of cantonal and district courts to try these types of cases fairly.
The determination of which criminal code should be applied by entity courts has been the source of some confusion and disagreement. While some people involved in the creation of the 2003 Bosnian Criminal Code believed that it would be applied in cases at entity courts involving war crimes, crimes against humanity, or genocide, others believed that it would not due to questions of retroactive application of the law to crimes committed before its enactment. The new state-level criminal code seemingly anticipated these objections under article 3(2), which holds, "No punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated, has not been defined as a criminal offence by law or international law, and for which a punishment has not been prescribed by law."
Thus, application of the new criminal code does not violate the ban on retroactivity since most war crimes, crimes against humanity, and genocide were considered violations of customary international law before the start of the conflict in the former Yugoslavia. This exception in the new code mirrors that in the European Convention on Human Rights. Additionally, many of these crimes were recognized as such by the domestic law at the time. Despite this, most cantonal and district courts apply the SFRY criminal code in these cases.
One of the most striking and controversial results of this is that defendants face significantly different sentencing ranges for similar crimes depending on whether they face trial before the Court of Bosnia and Herzegovina or before the cantonal or district courts. The SFRY criminal code, as written, permits the death penalty, but as this has been abolished in Bosnia, the courts in the Federation and in Republika Srpska allow punishments as high as 20 years' imprisonment, which was the second most severe punishment allowed under the SFRY code. At the State Court, by contrast, defendants charged with similar crimes may face up to 45 years' imprisonment. This is especially troubling since the decision as to whether a defendant faces trial before the State Court or an entity court is not a judicial determination subject to appeal, but rather a decision made by an individual state prosecutor based on the "sensitivity" of the case.
This disparity in punishment is cited by those who support the application of the SFRY criminal code for trials dealing with crimes committed during the war. According to this view, the Bosnian Criminal Code, as well as the European Convention on Human Rights, prohibits the retroactive application of a punishment more severe than that in force at the time that a crime was committed. Defendants before the State Court have protested this disparity in sentencing through hunger strikes.
This issue was recently addressed by the Constitutional Court of Bosnia and Herzegovina, which upheld the legality of applying the Bosnian Criminal Code in cases dealing with crimes committed during the war. In the Maktouf decision, the Constitutional Court noted that the ICTY has also imposed long-term prison sentences that would not be allowed under the SFRY criminal code. Additionally, the Constitutional Court disputed the claim that the SFRY code was more lenient, since at the time the crimes were committed, it permitted the death penalty. The thrust of the Constitutional Court's judgment was that the application of the new Bosnian Criminal Code to crimes from the war fell under the exception to the ban on retroactivity in article 7 of the European Convention on Human Rights for crimes that were proscribed under customary international law when committed.
In the same case, the Constitutional Court also states that the application of different criminal sanctions to similar crimes by the state and entity courts may constitute illegal discrimination. The Constitutional Court, therefore, urged the cantonal and district courts to apply the Bosnian Criminal Code. Several State Court officials echoed this in interviews with Human Rights Watch, citing the Maktouf case to support the application of the Bosnian Criminal Code by all courts in Bosnia dealing with crimes under international law. This argument mirrors those of supporters of the use of the SFRY code but draws the opposite conclusion.
Even people who do not necessarily support the use of the state criminal code acknowledge that the lack of law harmonization is a problem. One cantonal official noted that at a public forum on the topic of prosecuting crimes committed during the war, people in attendance noted law harmonization as a principal concern.
Even apart from the disparities in sentencing noted above, the lack of law harmonization also presents practical difficulties in the prosecution of international law crimes. One SIPA official explained that the different legal requirements in various jurisdictions made it more difficult to conduct investigations, since the code ultimately used in a case can affect the definition of the crime charged and, therefore, what proof is required. One State Court official noted that the lack of law harmonization complicated the process of case review at the state prosecutor's office, since prosecutors had to consider whether the crimes would be covered under the law of the jurisdiction receiving the referral.
B. Failure to follow international precedent
In addition to the lack of law harmonization between the entity court systems and between those judicial systems and the State Court, the failure of many cantonal and district courts to follow international precedent threatens to further fragment the Bosnian legal system. In many cases, cantonal and district court decisions do not even mention relevant ICTY verdicts. This has resulted in several decisions that are significantly out of line with international precedent. Prosecutors, defense attorneys, and judges need to take steps to bring their work in line with existing international jurisprudence.
One key area of concern is cases that deal with command responsibility. State Court officials questioned whether the entity courts even acknowledge the validity of this important legal concept. As a result, cases that may involve this legal theory tend to be treated as highly sensitive and tried at the State Court.
A notable example of this problem is the Čupina case. In 2001, Mirsad Čupina was found guilty by the Mostar Cantonal Court of war crimes against prisoners of war, a violation of article 144 of the SFRY criminal code. As director of a prison, he was aware that prisoners were beaten and forced to undertake hazardous work, such as digging trenches, but did nothing to stop it. The Mostar court found that although the SFRY code technically covers only those who order or commit the offenses, it should also be read to cover the failure to prevent those same offenses, consistent with an understanding of the international law concept of command responsibility. However, at a second trial, ordered by the Federation Supreme Court, the Mostar Cantonal Court ruled to the contrary and found that no punishment could be given for a failure to act under the SFRY code. While the second ruling left open the possibility that a case could be brought under some other law that acknowledges command responsibility, this judgment's narrow interpretation of the war crimes provisions of the SFRY code effectively forecloses the prospect of finding such liability under this law.
The failure to follow international precedent has also resulted in other problematic legal findings. In several cases in Mostar Cantonal Court, it has been held that the existence of stressful wartime conditions when crimes were committed can be a mitigating circumstance to the commission of war crimes and justify a lower sentence. The court, in justifying a reduced sentence in one such case regarding a person convicted of abusing prisoners, reasoned that the existence of "circumstances at the time which were very difficult and which impacted on the behavior of people as a whole in the most basic interactions … must have also impacted the accused, in that they decreased the level of acceptable behavior in the accused, and therefore acceptable behavior towards the prisoners of war and imprisoned civilians."
As the ICTY has pointed out, this line of reasoning risks undermining the very concept of the proscription of war crimes, since it is precisely during such war circumstances that the laws of war are meant to protect prisoners from abuse. Despite this, the Supreme Court of the Federation of Bosnia and Herzegovina neither challenged this mitigating factor nor made any reference to ICTY precedent to the contrary.
Also in these verdicts, the Mostar Cantonal Court accepted the length of time between the commission of war crimes and their trial as a mitigating factor. In at least two cases, courts noted that the "normalization" of life in Bosnia in the years since the war justified a reduced sentence. This is also contrary to the precedent of the ICTY, which noted that the passage of time cannot be a mitigating factor for offenses such as war crimes, which for that reason have no statute of limitations. However, the Federation Supreme Court made no reference to ICTY precedent in ruling on these cases on appeal.
C. Proper classification of crimes in violation of international law
In several cases, older indictments classified crimes committed during the war as crimes under ordinary criminal law, such as murder or rape, rather than as war crimes, crimes against humanity, or genocide. In at least two cases originating in Banja Luka district, charges were amended to reflect the international nature of these crimes in recent years. In interviews, prosecutors in Republika Srpska assured Human Rights Watch that future indictments would reflect the international law character of crimes committed during the war. Prosecutors in the Federation also had problems with early indictments being brought under domestic law but have likewise taken steps to correct this.
D. Importance of a consistent legal approach to cases
Even many years after the end of the war in Bosnia, Bosnia remains a divided society in many ways. Crimes committed during the war continue to be viewed differently in different communities, and it is often exceptionally difficult for people to accept or acknowledge that crimes were committed by their own ethnic group. The lack of law harmonization and the failure of the courts to apply the law as understood internationally have a detrimental impact on this. Verdicts that call for exceptionally lenient, or exceptionally harsh, sentences on legally dubious grounds feed suspicions of political bias in the judiciary. This lack of faith in the fairness of the justice system can undermine Bosnia's path to recovery and political normalization.
The experiences of other tribunals that have tried war crimes, crimes against humanity, and genocide has shown that public outreach is a critical means of ensuring that trials have meaningful impact in the communities where crimes were committed. Outreach is essential to understanding the process of trials and to enabling members of different communities to accept a common understanding of the events of the war. An absence of accurate, publicly accessible, information on trials for crimes committed during the war promotes speculation and misunderstanding, often fed by preexisting prejudices. Outreach can combat this and, therefore, enhance these trials' ability to contribute to Bosnia's societal healing.
At present, several efforts are being undertaken to increase outreach and public awareness of cases at cantonal and district courts. The ICTY liaison offices, in conjunction with the OSCE, have produced a video highlighting the importance of outreach at the cantonal and district level which it has screened for judges and prosecutors in different cities within Bosnia. Other efforts to bring together NGOs, prosecutors, judges, police, and members of the public around issues raised by these trials have also been supported by the OSCE and civil society groups. Many of the NGOs involved in this are also active in the Court Support Network (CSN), a network of NGOs that conduct outreach and education dealing with the State Court, but generally not the cantonal or district courts.
These events allow a forum for prosecutors, police, and others to explain their roles and outline some of the challenges and successes that they have had. Victims' groups and other attendees can pose questions and present their concerns and, thus, gain a clearer understanding of events leading to the prosecution of these cases.
These efforts are a significant positive step, but more is needed, and by a broader range of actors. Many NGOs and victims' groups with whom Human Rights Watch spoke stressed the lack of public knowledge regarding trials at cantonal and district courts for crimes under international law and called for greater outreach. Many stated that it was difficult to get information regarding cases or even about the process generally and that this lack of information fed rumors and speculation.
On the other hand, many people who had participated in outreach events spoke very highly of the impact. One NGO stated that an outreach event that they organized began with mutual recrimination where victims' groups attacked prosecutors for lack of action and prosecutors blamed victims for refusing to participate and for changing their testimony. This airing of grievances was ultimately helpful as it began a dialogue between victims' groups and prosecutors that had not previously been possible. Another person said that outreach events helped break down prejudices and fostered communication. Another participant stressed the importance of including religious leaders in outreach events: their views can carry tremendous weight in some communities, and it is important that they be part of the broader discussion of accountability for war crimes, crimes against humanity, and genocide. One observer credited outreach by the prosecutor's office in Banja Luka as one of the key ways in which that office had been able to build trust and to overcome skepticism among witnesses, including some from among minority ethnic groups.
The positive effects of greater outreach will make the work of prosecutors and courts easier. Currently, however, many prosecutors and court officials do not consider outreach as part of their duties. Several prosecutors stated that participation in outreach events organized by NGOs was unpleasant for them and that they disliked facing the accusations of disgruntled victims' groups. Some court officials consider that the appointment of a spokesperson is sufficient in terms of outreach and access to public information.
As a result of this, information can sometimes be very hard to obtain for parties interested in following proceedings. One NGO recounted work that they had done on an informal survey in early 2007 wherein they phoned courts and prosecutors' offices asking for information on cases. They found that only one court, in Trebinje, had a person appointed to handle such requests.
The role of a spokesperson is an important one. The spokesperson can coordinate communications strategy and ensure accurate and timely dissemination of information to the news media and the public. The spokesperson, however, cannot be a substitute for an outreach program, though the two can ideally complement one another. In this way, the courts and prosecutors can provide information about ongoing cases as well as about broader issues concerning the process of trying and investigating cases dealing with crimes under international law and progress and obstacles facing these cases. Ideally, a formal outreach office should be established to coordinate the outreach activities of various actors involved in trials for war crimes, crimes against humanity, or genocide at the district and cantonal level. Such an office could also coordinate cooperation with NGOs and other agencies with experience in outreach, such as the ICTY Liaison Offices and the OSCE. This is clearly an important area for funding. Though the benefits of outreach may seem somewhat intangible, outreach can facilitate cooperation and support between different groups and greatly enhance the impact of these trials.
Cantonal and district prosecutors and courts should learn from the examples of other prosecutions of crimes under international law and take a greater role in outreach. The outreach program of the Special Court for Sierra Leone, in particular, could provide ideas of innovative ways to help the message of these trials spread to all parts of the country. These could include producing and disseminating video or audio summaries of cases and arranging outreach events with court personnel and prosecutors in different parts of the country.
The cantonal and district courts possess an advantage over international tribunals trying similar cases in that they are much closer to affected communities. Physical proximity, however, is not enough. Effective outreach is needed to ensure that society at large can derive the most possible benefit from these proceedings. Ideally, outreach activities should be centralized in an outreach office. In the meantime, court personnel, attorneys, NGOs, victims' groups, and prosecutors at the cantonal and district level should take a more active leadership role in these processes and attempt to create a coordinated outreach program.
The slow pace of trials before cantonal and district courts, as well as the many difficulties with these trials noted above, have prompted many within Bosnia to call for reform of the judicial structure as part of a national strategy for trying cases dealing with crimes under international law. As one civil society representative commented, "We have to finish this." The fear that if trials continue at this slow pace, these cases will remain unresolved indefinitely has lent a sense of urgency to these reform proposals in the last few years.
A number of working groups have been formed to address proposals for reform. These include the working group on a national strategy for war crimes recovery, a working group focusing on "satellite courts," and a working group on the creation of an appellate court. In addition, the High Judicial and Prosecutorial Council has also put forward its own proposal for reform. The Justice Sector Reform Strategy, put forth by the Ministry of Justice of Bosnia also proposes changes along the lines of those proposed by several of the other proposals. What form, if any, reform takes in Bosnia around this issue is impossible to predict at this writing. Human Rights Watch does not express a preference for any specific reform proposal. Rather, we urge those officials involved in these discussions to take account of the challenges that we have noted regarding trials before cantonal and district courts and to ensure that any reforms adopted address these challenges and ensure the possibility of fair and effective justice for crimes committed during the war.
A question presented by several of these proposals is whether to continue to try these cases at cantonal and district courts or to expand the jurisdiction and capacity of the State Court over all cases involving war crimes, crimes against humanity, or genocide. Neither solution is inherently superior. It is true that many cantonal and district prosecutors expressed a preference for the State Court conducting all war crimes, crimes against humanity, and genocide trials, but this preference often had to do more with resource limitations than the will to conduct trials. Additionally, proposals for increased centralization seemed to meet with more support among prosecutors in the Federation than in Republika Srpska.
Proponents of expanded State Court jurisdiction over crimes under international law named several advantages to this approach. First, such an approach would allow for the uniform application of the law without requiring constitutional reform. Additionally, this approach would allow for an easier coordination of evidence and investigations, which are currently not centralized.
Proponents of maintaining jurisdiction at the cantonal and district level also presented strong arguments in favor of their view. They stressed the need to build up local courts and prosecutors' offices so that they can more effectively try cases and to avoid draining their capacity to staff an enlarged State Court. Additionally, they urged the importance of justice being accessible and of trials being held in communities where crimes were committed. Some prosecutors also argued that undertaking drastic reform at this late stage would only add further delay to the processing of outstanding cases for crimes committed during the war.
In fact, proponents of both approaches conceded that in many respects, these two approaches need not be contradictory. There is considerable overlap between the various reform proposals, and they agree on several key issues. All of the proposals agree on the need for law harmonization. Likewise, the creation of a central institution for the coordination of evidence need not have implications either way for the jurisdiction of the state or entity judicial authorities. Whichever approach is adopted, these problems must be addressed comprehensively, in a way that addresses the challenges facing trials at cantonal and district courts currently.
One other reform proposal that must be addressed is the creation of non-punitive "solutions" to the backlog of cases dealing with war crimes, crimes against humanity, and genocide. Non-punitive transitional justice techniques, such as truth-telling and reparations for victims, have been used successfully in a variety of contexts and can be invaluable tools for promoting societal healing. However, it is imperative that these approaches not be used as a way to avoid the obligation to punish war crimes, crimes against humanity, or genocide. Victims in Bosnia have been promised justice for the crimes committed during the war, and many have waited more than a dozen years to see justice done. Any use of non-punitive transitional justice approaches must be done in way that truly complements ongoing trials and not as a way to deny justice to victims.
To prosecutors in Republika Srpska and the Federation of BiH
- Be sure that where evidence of crimes from the war period reflects violations of international humanitarian law, charges also reflect this.
- Increase efforts to cite relevant international precedent, especially verdicts of the ICTY.
- Make use of all available sources of evidence, including that provided by NGOs and victims' groups and that which could be obtained from state prosecutors and the ICTY. Take advantage of the services of the ICTY liaison offices to obtain evidence from the ICTY.
- Where needed to secure suspects' attendance, request that suspects be arrested and detained in accordance with the law in order to prevent flight.
- Where needed, make requests for measures to protect the identities of vulnerable witnesses. Where needed, make use of the facilities of the State Court to do this.
- Undertake greater and more systematic cooperation with state authorities in order to facilitate a clear national understanding of the number and status of open cases dealing with crimes committed during the war.
- Increase participation in outreach events and improve communication and cooperation with NGOs, victims' groups, and the general public.
- Encourage spokespersons to expand their role in outreach events and to be proactive in providing information on cases to the public.
To the judiciaries of Republika Srpska and the Federation
- Courts should create a dedicated staff position to field requests for information on cases and to publicize the work of the courts. Take steps to make public information, such as verdicts, more freely available to the public.
- Courts must take steps to use existing court facilities in ways that protect the identities of witnesses where needed.
- Judges should follow international precedent, such as cases decided by the ICTY
To police in Republika Srpska and the Federation
- Instruct officers in the importance of cooperation with cantonal and district prosecutors investigating war crimes, crimes against humanity, or genocide cases against persons of all ethnicities.
- Increase training on the investigation of cases dealing with crimes under international law.
- Cooperate fully with police across entity lines investigating cases dealing with crimes committed during the war.
To the governments of Republika Srpska and the Federation
- Work with the High Judicial and Prosecutorial Council to increase the numbers of prosecutors and judges, to provide adequate support staff, and to allow prosecutors in war crimes departments to work exclusively on war crimes, crimes against humanity, and genocide.
- Work with the state government to find a way to harmonize the law applied in cases dealing with crimes committed during the war in different areas of the country.
- Make the necessary legal amendments to create specialized war crimes investigator positions within prosecutors' offices.
- Require entity Judicial and Prosecutorial Training Centres to provide additional training for judges and prosecutors on international law and the investigation of cases involving crimes under international law.
- Create, fund, and staff a centralized authority with the responsibility for coordinating and promoting outreach by prosecutors, police, and court personnel.
- Allocate more resources and positions within police forces to the investigation of cases involving crimes committed during the war and provide these specialists with extensive training in investigations of these crimes and in working with witnesses.
- Provide adequate resources and staffing to social welfare centers to provide support to witnesses.
- Take steps to create the facilities within cantonal and district courts necessary to protect the identities of witnesses.
- Take steps to facilitate prompt allocation of resources necessary for the payment of reserve judges and attorneys representing indigent clients.
- Provide easier access to government archives and records by prosecutors.
To the High Judicial and Prosecutorial Council
- Increase the numbers of cantonal and district prosecutors working on crimes committed during the war and allow prosecutors working on these cases to work in units that specialize exclusively in this practice area.
- Increase staffing of support personnel, including trainees and associates, within cantonal and district prosecutors' offices.
To the Special Department for War Crimes of the Office of the Prosecutor of Bosnia and Herzegovina
- Continue efforts to regularize communication with cantonal and district prosecutors, especially regarding the status of existing case files and investigations.
- Facilitate increased sharing of evidence with cantonal and district prosecutors.
- Complete work on a database to centralize existing case files on crimes committed during the war in Bosnia and clarify the total number of existing files.
- Instruct SIPA to cooperate with investigations by entity authorities into war crimes, crimes against humanity, and genocide to the extent possible without compromising state investigations.
- Facilitate the use of state witness protection facilities by cantonal and district courts and prosecutors.
- Facilitate the use of the ICTY Judicial Database and Evidence Disclosure Suite by cantonal and district prosecutors.
To the Criminal Defense Support Section
- Expand trainings to include defense attorneys working on trials for war crimes, crimes against humanity, or genocide before cantonal and district courts and take further steps to publicize the availability of such trainings.
- Make memos on general points of international law available to attorneys practicing at the cantonal and district level.
- Take steps to facilitate access by defense attorneys before cantonal and district courts to the Judicial Database and Evidence Disclosure Suite of the ICTY.
To the government of Bosnia and Herzegovina
- Eliminate restrictions on extradition of nationals and transfer of cases (where the death penalty is not permitted for the crime at issue).
- Commit additional resources to cantonal and district courts specifically for the creation of adequate witness protection programs and facilities.
- Work to harmonize the conflicting legal codes applied in the State Court, cantonal and district courts, and the Brčko District.
- Create a body with the authority to centralize evidence of crimes committed during the war and coordinate its use.
- Expand staffing and resources to the State Investigation and Protection Agency to allow further cooperation with investigation for trials of war crimes, crimes against humanity, and genocide before cantonal and district courts where police are otherwise unwilling or unable to assist.
- Provide staffing and resources to Criminal Defense Support Section to allow greater use of their services by defense attorneys practicing before cantonal and district courts.
To the governments of Serbia, Montenegro, and Croatia
- Reach an agreement with the government of Bosnia to remove legal impediments to extradition and case transfer.
To the international community
- Urge the governments of Bosnia, Serbia, Croatia, and Montenegro to remove legal obstacles to the transfer of cases and to the extradition of suspects in cases of war crimes, crimes against humanity, or genocide.
- Agree to host witnesses and their families who require international relocation for their protection.
- Coordinate donor initiatives aimed at aiding the Bosnian judiciary with the Ministry of Justice of Bosnia and Herzegovina to allow greater focus of donor resources on priority areas.
- Ensure that initiatives aimed at reform of the Bosnian judiciary, especially requirements for European Union membership, prioritize the needs of cantonal and district justice systems addressing crimes from the war.
- Ensure that police reform in Bosnia takes account of the needs of cantonal and district prosecutors and creates conditions for effective and politically neutral investigation of war crimes, crimes against humanity, and genocide.
Interviews for this report were conducted by Joshua Franco, Leonard H. Sandler fellow in the International Justice Program; Benjamin Ward, associate director of the Europe and Central Asia Division; and Wanda Troszczynska Van Genderen, researcher for the Europe and Central Asia Division. This report was written by Joshua Franco. It was edited by Richard Dicker, director of the International Justice Program, and Sara Darehshori, senior counsel for the International Justice Program. Param-Preet Singh, counsel for the International Justice Program, edited and provided guidance and assistance during the research and drafting of the report. Wanda Troszczynska Van Genderen also edited the report. Legal review was conducted by Clive Baldwin, senior legal advisor, while Ian Gorvin, senior program officer, conducted program review. BCS-language legal research for this report was conducted by interns Sanja Popovic and Daniel Gerstle. BCS-language legal review was conducted by volunteers Alexandra Milenov and Ivan Jovanovic. Bogdan Ivanisevic generously volunteered as proofreader. Mia Psorn, associate in the International Justice Program, provided invaluable translation and editing, and produced this report, in conjunction with publications specialist Grace Choi and mail manager Fitzroy Hepkins. Human Rights Watch would also like to thank interpreters Omar Beganovic, Nedzad Sladic, and Sanja Pavlovic.
Human Rights Watch wishes to thank all of the individuals who took the time to provide information for this report. We are particularly grateful to our colleagues in Bosnian civil society groups for their insights, as well as their assistance in identifying interview subjects and in arranging logistical support.
The International Justice Program would like to express appreciation to the John D. and Catherine T. MacArthur Foundation and the JEHT Foundation for their support of our program.