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Summary

The armed conflicts in the former Yugoslavia during the 1990s were characterized by widespread violations of human rights and humanitarian law.  The International Criminal Tribunal for the former Yugoslavia (ICTY) will have adjudicated only a relatively small number of cases involving the most serious crimes by the time it ceases operating.  All other war crimes cases¹—whether initiated domestically or referred back from the ICTY—will have to be tried by national courts in the states of the former Yugoslavia.

Human Rights Watch has carried out extensive monitoring of domestic war crimes trials in the states of the former Yugoslavia.  The monitoring indicates that, as a rule, the ordinary national courts of Bosnia and Herzegovina (particularly in Republika Srpska, one of the two “entities” in Bosnia and Herzegovina), Croatia, and Serbia and Montenegro are not currently equipped to hear war crimes cases—which are often politically and emotionally charged, as well as legally complex—in a fair manner.  Key obstacles include: bias on the part of judges and prosecutors, poor case preparation by prosecutors, inadequate cooperation from the police in the conduct of investigations, poor cooperation between the states on judicial matters, and ineffective witness protection mechanisms.

The experience of Croatia illustrates many of the concerns about the shortcomings of trials to date.  Patterns observed by Human Rights Watch in war crimes trials in Croatia include: (i) a hugely disproportionate number of cases being brought against the ethnic Serb minority, some on far weaker charges than cases against ethnic Croats;² (ii) the use of group indictments that fail to specify an individual defendant’s role in the commission of the alleged crime;³ (iii) use of in absentia trials;⁴ and (iv) convictions of ethnic Serbs where the evidence did not support the charges.⁵

Problems of bias have also marred accountability efforts in Republika Srpska, where the majority of people are Serbs.  (The other entity in Bosnia and Herzegovina is Federation Bosnia and Herzegovina, which is inhabited mainly by Bosnian Muslims and Bosnian Croats).  At present, there is only one active war crime prosecution involving Bosnian Serb suspects taking place in Republika Srpska,⁶ compared to numerous investigations and prosecutions against non-Serbs for crimes against Serbs.⁷  

Investigative mechanisms remain problematic.  While prosecutors are often forced to rely upon police units to conduct investigations, judicial practitioners and international officials have indicated to Human Rights Watch that there is evidence that police in the region are often unwilling to investigate war crimes when those implicated are other police officers or individuals holding prominent positions in the political and economic spheres.⁸

The inadequate cooperation in war crimes prosecutions between the states in the region– particularly between Serbia and Montenegro, and Bosnia and Herzegovina–has also hampered war crimes trials.  Lack of cooperation impacts not only on the investigation of crimes, but also on the conduct of the trials themselves, including the attendance of witnesses living in another state, and the ability of judges to travel to another state to take testimony. 

Current practices in the region regarding witness protection also leave much to be desired.  In Serbia and Montenegro, treatment of witness protection under the criminal procedure law is cursory and inadequate.  While Croatia’s witness protection program is based on the most comprehensive legislation in the region, it is too early to assess whether the program works in practice.

Finally, key legal issues remain unresolved, including the admissibility of witness statements taken by the ICTY and the extent to which the doctrine of command responsibility is recognized in the national law of each country.

Bosnia and Herzegovina, Croatia, and Serbia and Montenegro have each taken a significant step toward effective war crimes prosecutions by creating special mechanisms for the adjudication of war crimes: a freestanding war crimes court in Bosnia and Herzegovina; a war crimes chamber in Serbia and Montenegro; and, specialized war crimes chambers in Croatia’s county courts, with the possibility of transfer to a county court in Croatia’s four largest cities.  While these new mechanisms are welcome, their impact on the fairness of proceedings remains to be seen.  Without progress in other areas, these courts may continue to be hampered by a lack of systematic and effective witness protection mechanisms, a lack of interstate cooperation, and weak investigative mechanisms. 

The European Union, other European organizations, such as the Organization for Security and Co-operation in Europe (OSCE) and the Council of Europe, and those countries that have supported the important work of the ICTY all have an interest in seeing that the legacy of the ICTY is carried on successfully.  That legacy can be measured by the extent to which local courts in the former Yugoslavia have the ability to competently and fairly adjudicate war crimes cases.  Proactive engagement is needed in order to resolve the problems that exist, and active monitoring will be required to ensure that, as problems are identified, they are addressed.

While Human Rights Watch recognizes that general reforms are ongoing, it is critical that the international community assist the national court systems to ensure that domestic war crimes trials in the former Yugoslavia meet basic, internationally recognized fair trial standards.  These matters require urgent attention.  Because the ICTY stands ready to refer cases to the courts in the former Yugoslavia, and potentially many more non-referred cases remain to be tried in these courts, the functioning of these courts cannot be ignored.⁹

This document sets out Human Rights Watch’s current concerns about the conduct of war crimes trials before national courts in Croatia, Bosnia and Herzegovina, and Serbia and Montenegro.¹⁰  It sets out detailed recommendations to the international community and to the states in the region on strategies to address those concerns.