<<previous  |  index  |  next>>


The wars in Croatia and in Bosnia and Herzegovina that accompanied the dissolution of the former Yugoslavia were characterized by breaches of international humanitarian law, which escalated to crimes against humanity and genocide.11  In response, the Security Council established the ICTY in May 1993.  At the time of its creation, the United Nations Secretary-General stressed that in establishing an international tribunal for the prosecution of persons responsible for serious violations committed since 1991, it was “not the intention of the Security Council to preclude or prevent the exercise of jurisdiction by national courts with respect to such acts.  Indeed national courts should be encouraged to exercise their jurisdiction in accordance with their relevant national laws and procedures.”12

While hostilities were ongoing, courts in the former Yugoslavia proved to be ineffective in bringing perpetrators to justice and providing remedies to their victims.  In the limited number of trials that did take place during the wars, the overwhelming majority involved the prosecution and conviction of defendants who belonged to the opposing side in the conflict, often in their absence.13  In the post-war period, the international community undertook efforts to bring judiciaries in Bosnia and Herzegovina, and later in Kosovo, into compliance with internationally recognized standards.  The democratic governments that replaced authoritarian regimes in Croatia and Serbia and Montenegro in the year 2000 have also begun to reform their judicial systems.

The Question of Political Will

In most parts of the former Yugoslavia, there is limited public support for war crimes prosecutions against members of the ethnic majority.  Police assistance to war crimes prosecutors and investigative judges remains half-hearted at best, in part because police officers are often themselves implicated in the commission of war crimes.  Under these conditions, effective and fair prosecutions are possible only if governments are seriously willing to commit themselves to creating the conditions necessary for war crimes accountability.

In the past several years, government support for domestic prosecutions of members of the ethnic majority—as well as a willingness to cooperate with the ICTY—has gradually increased in Federation Bosnia and Herzegovina and in Croatia.  Subtle forms of obstructionism persist, however, and hinder accountability efforts.  For example, the Chief State Prosecutor of Bosnia and Herzegovina has recently expressed to Human Rights Watch his concern regarding the willingness of municipal, cantonal, and state administrations to support war crimes prosecutors by making available relevant evidence to them.14 

Government officials in Serbia and Montenegro and in Republika Srpska, on the other hand, have either openly opposed or only grudgingly supported the work of the ICTY.  They have occasionally stated that they support domestic prosecutions, but such statements often sound like arguments against holding trials at the ICTY rather than an expression of a genuine commitment to accountability.  The hollowness of their support is evidenced by the fact that there have been few domestic trials in Serbia,15 and virtually none in Republika Srpska.  

The Creation of Specialized War Crimes Chambers

Bosnia and Herzegovina, Croatia, and Serbia and Montenegro have each recently taken a significant step toward effective war crimes prosecutions by creating special mechanisms for the adjudication of war crimes.  While these new mechanisms are welcome, their impact on the fairness of proceedings remains to be seen.

In Bosnia, the ICTY and the Office of the High Representative have initiated the establishment of a special war crimes chamber, as part of the State Court of Bosnia and Herzegovina, to try the most serious war crimes cases.16  At present, ordinary (cantonal and district) courts try war crimes cases, and will continue to do so after the special war crimes chamber begins its work.17  The chamber, which is to be based in the Bosnian capital Sarajevo, is expected to be operational by the beginning of 2005.  Initially, the chamber will be staffed by a combination of international and local judges and prosecutors.  It is envisaged that there will be a gradual reduction in the proportion of international staff over time.18  To date, the position of the special war crimes prosecutor has not yet been established.19

In Serbia, a special war crimes chamber in the Belgrade District Court was established in 2003.20  The chamber, which has nine judges, is in charge of all future war crimes trials in Serbia.  The legislation which created the chamber also mandated a specialized prosecutor for war crimes, a special detention unit, and a special war crimes investigation service within the Ministry of Internal Affairs.21  The war crimes court includes regular district court judges from Belgrade and seconded judges from other courts.22  At present, there is only one trial being conducted in the special chamber of the Belgrade District Court.  The trial involves eighteen defendants charged with participating in the execution of two hundred Croat prisoners of war and civilians at the Ovcara farm near Vukovar in 1991 (hereafter, the Ovcara trial).23  As of September 2004, the Ovcara trial is still in an early stage, making any evaluation of either the trial or the chamber premature.

In Croatia, all county courts have jurisdiction over war crimes cases, but legislation adopted in October 2000 permits the transfer of war crimes cases from the county courts with territorial jurisdiction to county courts in Croatia’s four biggest cities—Zagreb, Osijek, Rijeka, and Split.24  In order to justify a transfer under the law, the State Prosecutor has to demonstrate that the “circumstances under which the crime was committed, and the exigencies of [conducting] the proceedings” justify its transfer.25  The president of Croatia’s Supreme Court must also consent to the transfer.  The legislation also provides for the establishment of specialized chambers for war crimes in every county court in Croatia, composed of three judges with experience in particularly complex cases.26  There is no international involvement in the Croatian special chambers.  As of September 2004, no cases have been referred to the four designated courts.

Referrals by the ICTY

In June 2002, the ICTY announced an intention to refer all cases not involving the main political and military figures from the Yugoslav wars to the national courts in the region.  The referrals policy is motivated by the ICTY’s objective, mandated by the U.N. Security Council, to complete all investigations by the end of 2004 and all first-instance trials by the end of 2008.27  All appeals must be concluded by the end of 2010.

The procedure for the referral of a case by the ICTY to a national court once an indictment has been confirmed by the ICTY is contained in ICTY Rule 11 bis.28  The trial chamber must consider the gravity of the crimes charged and the level of responsibility of the accused before approving a referral.29  Referrals are permitted regardless of whether the accused is already in ICTY custody.  Referrals may be made to the state on whose territory the crimes are alleged to have occurred, the state where the accused was arrested, or the state “having jurisdiction and being willing and adequately prepared to accept such a case.”30

In September 2004, the ICTY’s Office of the Prosecutor filed a request for the referral of the case Prosecutor v. Rahim Ademi and Mirko Norac to the authorities in Croatia for trial at the county court in Zagreb, which is one of the four courts in Croatia to which war crimes cases can be transferred from the county courts with territorial jurisdiction.31  Both accused were indicted by the ICTY for war crimes against Croatian Serbs in 1993.  Prior to the referral, the ICTY will be required to determine whether the conditions for referral are satisfied.32  The Office of the Prosecutor also made a motion to refer the cases against Zeljko Mejakic, Momcilo Gruban, Dusko Knezevic, and Dusan Fustar, regarding the Omarska and Keraterm camps, to the war crimes chamber in Bosnia and Herzegovina.33  The president of the ICTY requested additional information from the Office of the Prosecutor on the ability of Bosnia and Herzegovina to provide fair trials before a competent court.34  A further fifty individuals who have been investigated but not yet indicted by the ICTY are likely to have their files turned over to the chamber in Bosnia, together with an unspecified number of most sensitive “Rules of the Road” cases.35  

To date, there have been no indications that any cases will be transferred from the ICTY to the Serbian judiciary.  Such transfers appear unlikely as long as Serbia and Montenegro remains unwilling to cooperate with the tribunal either in the arrest and transfer of ICTY indictees or otherwise.36  Serbia’s cooperation is required under the ICTY Statute and relevant U.N. Security Council resolutions.  ICTY President Theodor Meron recently observed: “Belgrade has shown such a lack of cooperation that we cannot send accused Serbian war criminals back.”37

[11] Prosecutor v. Radislav Krstic, Appeals Chamber Judgment, April 19, 2004, para. 39.

[12] Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993) (S/25704), Section II, Article 8D, para. 64, p. 16.

[13] For example, as of the end of 1993, 94 percent of the war crimes cases in Croatia had been against ethnic Serbs, 3 percent against ethnic Croats, and 3 percent against “others.”  Of the thirty-eight convicted persons, only one was present during the court proceedings.  See “War Crimes Trials in the Former Yugoslavia,” A Human Rights Watch Report, Vol. 7, No. 10, June 1995 [online], (retrieved July 28, 2004).

[14] Human Rights Watch interview with Marinko Jurcevic, Chief Prosecutor of Bosnia and Herzegovina, Sarajevo, April 14, 2004.

[15] Since 1995, only nine war crimes trials have taken place in Serbia.  See Organization for Security and Co-operation in Europe–Mission to Serbia and Montenegro, War Crimes Before Domestic Courts, (Belgrade, October 2003), pp. 10-14.

[16] See “Security Council briefed on establishment of War Crimes Chamber within State Court of Bosnia and Herzegovina,” United Nations Press Release, SC/7888, October 8, 2003 [online], (retrieved July 28, 2004).

[17] Bosnia and Herzegovina is divided into two entities—Republika Srpska, and Federation Bosnia and Herzegovina—and the Brcko District.  Republika Srpska is further divided into municipalities.  Municipalities in Republika Srpska have municipal courts with jurisdiction to adjudicate comparatively minor crimes; higher, district courts have jurisdiction over cases involving more serious crimes.  Federation Bosnia and Herzegovina, in contrast, is divided into nine cantons, each of which contains a certain number of municipalities.  Municipal and cantonal courts exist within a canton, with a similar division of competence as the municipal and district courts in Republika Srpska.

[18] Amnesty International, “Concerns in Europe and Central Asia: January to June 2003,” AI Index: EUR 01/016/2003, October 1, 2003 [online], (retrieved July 28, 2004).

[19] Human Rights Watch telephone interview with an international official involved in the creation of the legislative framework for the new war crimes prosecution structure in Bosnia and Herzegovina, September 28, 2004.

[20] Serbia—which is one of the two members of the State Union of Serbia and Montenegro—is divided into districts, and the districts into municipalities.  Municipalities and districts have respective courts, whose first-instance jurisdiction is analogous to that of the judiciary in Bosnia and Herzegovina as well as Croatia.

[21] Law on Organization and Jurisdiction of Government Authorities in Prosecuting Perpetrators of War Crimes, Sluzbeni glasnik Republike Srbije (official gazette of the Republic of Serbia), No. 67/2003, July 1, 2003, Art. 11 and Art. 12.

[22] Ibid., Art. 10.

[23] “Serbian prosecutor files charges against about Ovcara war crimes suspect,” BBC Monitoring European, May 27, 2004.

[24] Croatia is divided into counties and the counties are divided into municipalities.  All counties and the larger municipalities have their respective courts.

[25] Law on the Application of the Statute of the International Criminal Court and on the Prosecution of Criminal Acts against International Law on War and Humanitarian Law, Narodne novine (official gazette of the Republic of Croatia), No. 175/2003, November 4, 2003, Art. 12.

[26] Ibid., Art. 13 (2).  Panels in other criminal cases consist of two professional judges and three lay judges.

[27] SeeUnited Nations Security Council Resolutions 1503 and 1534.  S/RES/1503 (2003), adopted by the Security Council on its 4817th meeting on August 28, 2003, and S/RES/1534 (2004), adopted by the Security Council on its  4935th meeting on March 26, 2004.  See also “Security Council endorses proposed strategy for transfer to national courts of certain cases involving humanitarian crimes in Former Yugoslavia,” U.N. Security Council Press Release, July 24, 2002 [online], (retrieved July 28, 2004).

[28] Rule 11 bis was amended on June 17, 2004.  As amended, the rule requires in paragraph (B) that the court is “satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out,” and “where applicable,” gives the accused “the opportunity to be heard.” (retrieved July 30, 2004).

[29] Rule 11 bis, para. (C), as amended.

[30] Rule 11 bis, para. (A), as amended. 

[31] SeeICTY, “President Appoints a Trial Chamber to Consider an Application by the Prosecutor to Refer the ‘Ademi & Norac’ Case to Croatia,” Press Release (CC/ P.I.S./891-e), September 8, 2004.

[32] SeeICTY, Rule 11 bis.

[33] SeeICTY, Weekly Press Briefing, September 23, 2004 [online], PB040923.htm (retrieved September 28, 2004) (statement by Jim Landale, Spokesman for the ICTY Registry and Chambers).

[34] Ibid.

[35] Human Rights Watch interview with an ICTY official, Sarajevo, April 14, 2004.  Under the “Rules of the Road” agreement, concluded in 1996 in Rome by the signatories of the 1995 Dayton Peace Agreement, the authorities in Bosnia and Herzegovina cannot proceed with a war crimes prosecution unless the indictment has first “been reviewed and deemed consistent with international legal standards” by the ICTY prosecutor.

[36] In a recent address to the Council of Ministers of the Council of Europe, ICTY President Theodor Meron expressed regret about Serbia and Montenegro’s consistent failure to comply with its obligations to cooperate with the ICTY.  The president insisted that Serbia and Montenegro’s cooperation with the ICTY had been in decline since the parliamentary elections of December 2003 and had become “nearly non-existent.”  This failure to cooperate includes obstruction on the arrest and transfer of fugitives, on the production of documents, and on the tribunal’s access to witnesses.  Speech by Theodor Meron, president of the International Criminal Tribunal for the former Yugoslavia, May 7, 2004 [online], (retrieved July 28, 2004).

[37] H. Dale, “Balkan ghosts; Wheels of justice spinning,The Washington Times, June 16, 2004. 

<<previous  |  index  |  next>>October 2004