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Concerns Pertaining to the Prosecution

An independent and competent prosecution is a vital component of impartial, fair, and effective war crimes trials.  Prosecutors—as well as investigative judges in those states that still utilize them—must have the will and be given the means to prosecute war crimes trials effectively and without ethnic bias.  Human Rights Watch has serious concerns about the exercise of prosecutorial authority in the ordinary state courts in the former Yugoslavia.  We are also particularly concerned about the issue of inadequate police cooperation with investigations—an issue relevant both to ordinary criminal courts and specialized war crimes chambers.

Ethnic Bias in Prosecutions

Human Rights Watch’s foremost concern regarding ethnic bias on the part of the prosecution relates to the limited number of war crimes prosecutions against members of the dominant ethnic group.  This concern pertains particularly to Croatia and to Republika Srpska.  The same bias that makes judges in Croatia reluctant to convict ethnic Croats charged with war crimes against Serbs appears to impede the willingness of Croatian prosecutors to charge ethnic Croats with such crimes or to diligently pursue the cases against them once they are charged.  With one exception,49 Croatian prosecutors have failed either to indict any suspects for key incidents in which ethnic Croats were responsible for the killing of Serbs, or failed to diligently pursue the cases where indictments have been issued.50  The failure stands in stark contrast to the hundreds of Serbs prosecuted for wartime violations.

During 2002, for comparable offenses, the OSCE determined that twenty-eight of the thirty-five persons arrested for war crimes in Croatia were Serbs.  Serbs also comprised 114 of 131 of those under judicial investigation; nineteen of thirty-two persons indicted; and ninety of 115 persons on trial.  According to the OSCE, this trend appeared to continue in 2003.51

While a perfect symmetry in the numbers of war crimes indictees from the two ethnic groups—Serb and Croat—might not reflect the actual number of crimes committed, the disproportion in the number of prosecutions brought against Serbs as compared to Croats (a ratio of 5:1, on average) is so large that it strongly suggests discrimination.  By way of comparison, the Office of the Prosecutor for the ICTY has issued just over twice as many indictments against ethnic Serbs as against ethnic Croats (a ratio of 11:5) for crimes committed in the Croatian war.52

The Croatian prosecutors have indicted Serbs for relatively minor acts such as the theft of flour, plates, or tapestry from a house (charged as pillage) or the knocking out of a tooth (charged as an inhuman act) in the context of the many instances of slaughter, sexual  violence, torture, and inhumane treatment that took place.53  While it is conceivable that under some circumstances such facts might give rise to war crimes convictions, no ethnic Croat has been prosecuted on war crimes charges for abuses of this kind.  Taken together, these prosecutorial practices amount to discriminatory enforcement of the law.

The problem of bias in bringing cases has not arisen in war crimes prosecutions in Serbia.  Most non-Serb suspects who committed crimes against ethnic Serbs live outside Serbia – in Kosovo, Bosnia and Herzegovina, and Croatia.  Serbian courts have yet to try a war crimes case involving non-Serb defendants.  

Republika Srpska, as mentioned above, has brought only one war crimes prosecution against ethnic Serbs, while prosecutors there have conducted investigations and issued a number of indictments against non-Serbs for war crimes against Bosnian Serbs.  In Federation Bosnia and Herzegovina, which is mainly inhabited by Bosnian Muslims (Bosniacs) and Bosnian Croats, there has been more ethnic diversity in prosecutions than elsewhere in the region.  In 2004, for example, members of the local ethnic majority have been tried or indicted in several important cases, including the Konjic case54 and the Ivan Bakovic case.55  An investigation into another major case (the so-called “Dretelj” case) was nearing conclusion in the first half of the year.56  However, hundreds of individuals whose prosecution has been approved by the ICTY pursuant to the “Rules of the Road” procedure apparently remain at liberty in those parts of Bosnia and Herzegovina in which the ethnic group to which they belong is the majority, either because the suspects have not been indicted or because the police have failed to arrest those who are indicted.57  Lack of support for accountability on the part of police and political elites in the given area may help to explain why many suspects approved by the ICTY for prosecution remain at large. 

Poor Case Preparation

Poor case preparation by the prosecution in war crimes cases has been a persistent problem in national courts in the region.

Human Rights Watch has concluded that investigating judges in Bosnia often carried out flawed investigations into war crimes.  While a new criminal procedure law eliminates the role of the investigating judge and authorizes a public prosecutor to carry out investigations,58 Bosnia’s poor track record raises fundamental questions about the ability of investigative and prosecutorial authorities in Bosnia to manage war crimes cases in its ordinary courts. 

The trial of Dominik Ilijasevic before the Zenica Cantonal Court in Bosnia and Herzegovina,59 for example, was undermined by weak preparation on the part of the Zenica Cantonal Prosecutor.  In the first ten months of the trial, the prosecutor lacked any written evidence or testimony clearly pointing at Ilijasevic’s position as the commander of the “Maturice” Unit of the Bosnian Croat Army (HVO).  In fact, the preponderance of prosecution witnesses’ statements did not support the prosecution’s case.60

In both the Ilijasevic trial and another war crime trial before the same court also monitored by Human Rights Watch—that of Bosnian Serb Tomo Mihajlovic—investigative judges inserted phrases not uttered by interviewed witnesses into the official records of earlier questioning.61  It is unclear whether the judges’ actions were motivated by attempts to construct “stronger” evidence against accused persons of a different ethnicity or some other motive, or if the judges were merely incompetent.  Because many of the witnesses were poorly educated, they did not intervene during the investigation to request corrections.  Whatever the explanation for them, such alterations create a discrepancy between the witness’ evidence and the official record of it, allowing the defense to undermine the credibility of the witness and hence the prosecution’s case, even where the witness is testifying truthfully. 

There are similar concerns about the diligence of Serbian prosecutors in war crimes cases.  In the so-called “Sjeverin trial” in Belgrade, which was completed prior to the establishment of a special war crimes chamber and is discussed further below, although the prosecutor produced more evidence than had been standard in previous war crimes trials in Serbia, most observers agree that the crimes that were the subject of the trial were not comprehensively investigated.  Although the testimony in the trial plausibly suggested possible command responsibility of the superiors in the Bosnian Serb army and the then-Yugoslav army who failed to prevent the commission of the crime and punish its perpetrators, the prosecutor did not pursue that issue.  The defendants in the case, which is now on appeal, are Serbs.62

In several instances, it was nongovernmental organizations, rather than investigative judges and prosecutors, which obtained critical evidence against the accused.  This was true in the Cvjetan trial (discussed above), where the Belgrade-based Humanitarian Law Center facilitated the testimony of key witnesses.  While the nongovernmental organizations played a useful role here, it is troubling that the prosecution was clearly either unable or unwilling to obtain this evidence on its own initiative.  Such a lack of initiative bodes ill for future cases, particularly those in which nongovernmental organizations are not actively involved.

Inadequate Police Cooperation

The cooperation and diligent work of the police is also needed if the prosecution is to build cases effectively.  In practice, police cooperation is extremely problematic throughout the region. 

In Serbia, for example, where many war crimes were committed by the police, the prosecutors depend on the same police to investigate and obtain relevant evidence about war crimes.  Mass graves exhumed in a Belgrade suburb in 2001 provide a striking illustration of these difficulties.  The graves were found to contain approximately five hundred bodies of Kosovo Albanians killed in 1999.  The Office of the United Nations High Commissioner for Human Rights (UNHCHR) has closely monitored the developments regarding the mass graves.  It has concluded that “the failure to make any real progress in the criminal investigations since June 2001 appears largely the result of an absence of genuine cooperation between the Police and Military authorities on the one hand and the Belgrade District Court and Prosecutor’s Office on the other.”63 

Only with the recent appointment of a special war crimes prosecutor in Serbia does the investigation in the case appear to have moved forward.  However, Human Rights Watch is concerned that even the newly created war crimes chambers in Serbia will require police cooperation in order to obtain evidence, and anecdotal evidence suggests that the police are often unwilling to cooperate fully.64 

Analogous problems in Bosnia and Croatia have hampered war crimes prosecutions in ordinary courts and could threaten the success of prosecutions before the special war crimes chambers in those countries.  Rural areas are especially affected.  Local police in rural areas are frequently unwilling to investigate crimes against the minority population where the suspects are members of the ethnic majority and may hold positions of influence in the local area. 

The investigation in the “Medak Pocket case” (named after a geographical area in the vicinity of Gospic in Croatia where at least 100 Serbs, including twenty-nine local Serb civilians, were unlawfully killed in a Croatian army operation in September 1993)65 provides an example.  In 2002, the investigative judge in the case called in police from the Croatian capital, Zagreb, because of a lack of cooperation from the Gospic police.  Despite the arrival of the officers from Zagreb, the judge was unable to put together the necessary evidence.  Potential witnesses were reportedly afraid to come forward.  No indictments have been issued in the case to date.

In Bosnia and Herzegovina, sharp ethno-political differences still hinder cooperation between courts, prosecutors, and police in the two entities, Republika Srpska and Federation Bosnia and Herzegovina.  Since mid-2003, a certain level of cooperation has been established between courts in Federation Bosnia and Herzegovina and the police of Republika Srpska.  This cooperation has facilitated efforts to locate witnesses and secured the surrender of a Serb from Republika Srpska to a court in Federation Bosnia and Herzegovina (in the town of Zenica), where he was indicted for war crimes.66  However, such practices are still the exception rather than the rule. 

As part of the police reform in Bosnia and Herzegovina, an all-Bosnian intelligence service–known by the acronym SIPA (State Investigations and Protection Agency)–was established in 2002, but it is still not fully operational.67  The SIPA investigations department will include a war crimes unit.

Insufficiently Particularized Group Indictments

Human Rights Watch is concerned about the use of group indictments that fail to specify an individual defendant’s role in the commission of the alleged crime. 

In Croatia’s normal county courts, for example, a number of Serbs have been indicted based on their membership in a particular military or police unit, or merely by virtue of being present at the location where a war crime was committed.  The OSCE mission in Croatia has noted the case of Mirko Svonja.  The indictment in that case, which charged fifty-five Serbs with war crimes, only contained detailed allegations against four of the defendants.  The remaining fifty-one accused were merely listed as members of a paramilitary group believed to have participated in the alleged acts.68  Often in such cases, when the defendant is arrested and interrogated, it turns out that the prosecution lacks evidence linking him directly to the crime and drops the charges.  But dropping the charges does not remedy the harm of the original, ill-founded indictment.  In particular, Human Rights Watch research has confirmed that arrests of Serb returnees on such charges have had a detrimental effect on minority return.69

Protection of Prosecutors

Information indicating a heightened safety risk for war crimes prosecutors is scarce, but it is plausible to assume that the risk does exist.  Human Rights Watch has learned of two cases involving threats to prosecutors involved in war crimes cases.  In April 2004, a prosecutor in the ongoing Ovcara trial in Belgrade had his private and official vehicles smashed during the first month of the trial.70  The public prosecutor dealing with the Lora case in Croatia in 2001 reportedly also received threats.71  (See above, under Protection of Judges, for an examination of the legislative prohibitions against intimidation of prosecutors in Croatia, Bosnia and Herzegovina, and Serbia.)

[49] On March 24, 2003, the county court in Rijeka sentenced three Croatian army officers to fifteen, twelve, and ten years in prison for the murder of fifty civilians, most of them ethnic Serbs, near Gospic in October 1991.  Damir Herceg, “Oreskovicu 15, Norcu 12, Grandicu 10 godina zatvora” (“15 Years of Imprisonment to Oreskovic, 12 To Norac, 10 To Grandic”), Vjesnik (Zagreb, Croatia), March 25, 2003 [online], (retrieved July 28, 2004).

[50] In the Lora trial (2002), dealing with the torture and killing of Serb civilians in 1992 in the Lora military prison in Split, all eight accused were acquitted due to lack of evidence.  In the Paulin Dvor trial, which took place between June 2003 and April 2004, one former Croatian army member was convicted for participating in the December 1991 killing of nineteen Serb civilians in the village of Paulin Dvor; a co-defendant was acquitted, while other perpetrators have not been brought to trial at all.  Prosecution has also been ineffective or absent in the cases involving numerous killings of Croatian Serbs in Medak Pocket, Vukovar, Sisak, and Karlovac (Korana bridge), for which no individual has been convicted so far.

[51] OSCE Mission to Croatia, “OSCE Mission to Croatia report finds ethnic Serbs ‘disadvantaged’ in war crime trials,” Press Release, March 1, 2004 [online], (retrieved March 1, 2004).

[52] ICTY website, n.d. [online], (retrieved March 1, 2004).

[53] Human Rights Watch interview with a lawyer at the OSCE field office in Pakrac, Pakrac, June 18, 2002; Human Rights Watch, “Croatia: The Case of Ivanka Savic,” July 2004 [online], (retrieved July 28, 2004).

[54] Seven Bosniacs are accused of committing war crimes against Bosnian Serb civilians in 1992 in the majority Bosniac town of Konjic.  “Mostar: Odgodjeno sudjenje Bosnjacima optuženim za ratne zločine nad Srbima” (“Mostar: The Trial of Bosniacs Accused of War Crimes against Serbs Postponed”), Hina, April 15, 2004 [online], (retrieved July 28, 2004).

[55] On April 7, 2004, the Cantonal court in the majority Croat town of Livno sentenced Ivan Bakovic to a 15-year term of imprisonment for murdering nine Bosniac civilians in a nearby village in 1993.  “BiH: 15 godina zatvora za ubojstvo devet Bosnjaka” (“BH: 15 Years Imprisonment for the Killing of Nine Bosniacs”), Hina, April 7, 2004 [online], (retrieved July 28, 2004).

[56] In the first half of 2004, the Cantonal prosecutor in Mostar completed an investigation against five former officials of the Dretelj camp near Capljina who are suspected of war crimes against Bosniacs and Bosnian Serbs.  F. Vele, “Slijede optuznice protiv pet osoba odgovornih za zlocine u logoru Dretelj” (“Indictments Against Five Persons Responsible for Crimes in Dretelj Camp Follow”), Dnevni Avaz (Sarajevo), March 27, 2004.

[57] Human Rights Watch interview with officials at the Office of the High Representative, Sarajevo, April 14, 2004.

[58] The November 1998 Criminal Procedure Act required prosecutors to rely heavily on the work of investigative judges.  (Criminal Procedure Act, Sluzbene novine Federacije Bosne i Hercegovine, No. 43/1998, November 20, 1998, Arts. 149-173)  This was changed when the new criminal procedure law came into force on August 1, 2003.  (Criminal Procedure Act, Sluzbene novine Federacije Bosne i Hercegovine, No. 35/2003, July 28, 2003, Art. 45) 

[59] Cantonal Prosecutor in Zenica, Indictment against Dominik Ilijasevic, No. KT.1/2000, February 20, 2001.  The charges related to the killings by Bosnian Croat forces of Bosniac civilians in central Bosnia.  The case commenced on December 16, 2002.  On December 10, 2003, the High Judicial and Prosecutorial Council of Bosnia and Herzegovina decided not to re-appoint the presiding judge, a decision that could significantly slow down the trial.

[60] For a more comprehensive discussion of the case, see Human Rights Watch, “Balkans Justice Bulletin: The Trial of Dominik Ilijasevic,” January 2004 [online], (retrieved July 28, 2004).

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

[62] For a discussion of the inadequacies in the early stage of the case, see Human Rights Watch, “Balkans Justice Bulletin: The First Phase of the Sjeverin Trial,” March 15, 2003 [online], (retrieved July 28, 2004).

[63] United Nations High Commissioner For Human Rights–Human Rights Field Operation in Serbia and Montenegro, Report with Recommendations on the Investigations into Mass Gravesites in Serbia, October 2003, p. 12.

[64] Human Rights Watch has learned that the war crimes investigation service within the Serbian police, established after the enactment of legislation on war crimes prosecutions in 2003, has taken a rather restrictive approach in assisting the war crimes prosecutor.  The investigation service provides documents to the prosecutor only in response to specific requests, rather than at the service’s own initiative.  Human Rights Watch interview with an international official monitoring the functioning of the new war crimes prosecution structures, Belgrade, June 2004.

[65] See the International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Janko Bobetko, Indictment, Case No. IT-02-06, August 23, 2002 [online], (retrieved September 28, 2004), paras. 27-28.

[66] The case at issue is the prosecution of Bosnian Serb Tomo Mihajlovic, who was accused of having committed war crimes against Bosnian Muslims in the town of Teslic (Republika Srpska), where he lived at the time the indictment was issued. 

[67] On July 14, 2004, the agency moved into its own premises.  The move concluded the process of setting up a legal and technical framework for the operation of SIPA.  See “Bosnia Gets Its Own National ‘FBI,’” RFE/RL Newsline, July 16, 2004.  However, SIPA Director Sredoje Novic explained in a newspaper interview that SIPA would not start operating “completely;” as an illustration, Novic mentioned that the department for war crimes investigations should start operating “by the end of the year.”  See “OHR BiH Media Round-up, 19/7/2004,” July 19, 2004 [online], (retrieved July 28, 2004).

[68] Organization for Security and Co-operation in Europe–Mission to Croatia, Supplementary Report: War Crimes Proceedings in Croatia and Findings from Trial Monitoring, June 22, 2004 [online],, p. 8.

[69] See “Broken Promises,” pp. 46-48.

[70] See Marijana Milosavljevic, “Dogovor sa Karlom je moguc” (“A Deal with Carla is Possible”), NIN (Belgrade), June 17, 2004.

[71] Amnesty International, “Croatia: Victims and witnesses in war crimes trials must be adequately protected,” AI Index: EUR 64/002/2002, June 20, 2002 [online],!Open (retrieved July 28, 2004).

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