<<previous  |  index  |  next>>

Cooperation Between States

Cooperation between the judiciaries in the different countries is crucial to fully address the problem of impunity across state borders.  Interstate cooperation both supports, and is supported by, the general reform of these national justice institutions to enhance their capacity to handle cases with professionalism and integrity. 

Inadequate Legal Framework

The legal framework governing cooperation between the states in the former Yugoslavia has been historically inadequate.  Cooperation between Serbia and Bosnia has been particularly difficult.  The two states lack a bilateral agreement governing judicial assistance in criminal matters, including extradition.  By contrast, Croatia and Bosnia concluded an agreement on judicial cooperation in criminal matters in 1996.⁷²  There is also a bilateral agreement on mutual legal assistance in civil and criminal matters between Croatia and Serbia and Montenegro, concluded in 1998.⁷³

In the case of cooperation between Bosnia and Serbia, multilateral agreements such as the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters could not fill the legal void, because unlike Serbia, Bosnia and Herzegovina was not a party to either.⁷⁴  Finally, on April 30, 2004, Bosnia and Herzegovina signed the European Convention on Extradition, the European Convention on Mutual Assistance in Criminal Matters, and the Convention on the Transfer of Proceedings in Criminal Matters.⁷⁵  This opens the way for effective cooperation between Bosnia and Serbia in criminal matters, once the Bosnian parliament ratifies the conventions.

Lack of Sufficient Engagement

There are a variety of ways in which cooperation between the states in the region on war crimes prosecutions could be improved.  To date, however, most avenues for possible cooperation are untested, either because of a lack of prosecutorial diligence, a lack of political will, or the still sensitive political and diplomatic relations between the states.  Despite the clear difficulties in securing the participation of witnesses living elsewhere, the states have never requested or offered to provide videoconference facilities for hearing witnesses who reside in one state for trials that take place in another state.  There are no examples of joint work by investigation teams in different states.  Nor have any prosecutions been transferred from one state to another.

The lack of sufficient engagement between the states is illustrated by three of the most prominent war crimes cases in Croatia in the past three years—the Lora case (2002), the Zorica Banic case (2002), and the Paulin Dvor case (2003-04).  Witnesses in those cases residing in Serbia and Montenegro were afraid or otherwise unwilling to travel to Croatia to testify.  Although arrangements were made for witnesses to be examined locally, prosecutors from Croatia did not travel to Serbia and Montenegro to attend those hearings.⁷⁶  Nor was any effort made to facilitate the participation of the witnesses remotely by video-link. 

Impact on Investigations and Trials

The impact of poor cooperation was highlighted during the trial of the Bosnian Croat Dominik Ilijasevic in Zenica, Bosnia and Herzegovina (discussed above).  On May 19, 2003, the Zenica court sent a request to a county court in Split (Croatia), through the Croatian Ministry of Justice, for the examination of another Bosnian Croat, Miroslav Anic, as a witness.  It was not until September 3, 2003, that a county court in Split informed the Croatian Justice Ministry that Anic did not live at the address specified in the Zenica court request.  The county court also indicated that the request contained insufficient identification data to enable the court in Split to determine whether Anic lived in the area of its jurisdiction.  The court in Zenica did not receive that response until September 29, 2003.⁷⁷  The Split court’s argument that the request contained insufficient data for it to locate Anic is unconvincing, given that Anic had been arrested in Split two years earlier on the basis of an international arrest warrant issued by the Bosnian police.  That warrant alleged Anic’s involvement in the same massacre.  

A more positive sign of the potential for cooperation between states in the region came in May 2004 with the visit by a war crimes prosecutor and an investigating judge from Serbia to the Zagreb County Court and the Croatian war crimes prosecutor.  The Serbian officials—who participated in the Ovcara trial in Belgrade—obtained relevant information from their Croatian colleagues and were able to interview important witnesses for the case.⁷⁸