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The European Union and its Members States should support the
newly established war crimes chambers in the states of the former Yugoslavia as a positive development toward European integration, especially after accepting Croatia as a candidate for E.U. membership. Only sufficient resources can ensure that the
perpetrators will receive fair trials and that due process will be respected.
The E.U. should, therefore, consider providing funds to support domestic war
crimes prosecutions, especially for:
The education and training of investigators, judges, and
prosecutors;
Legal and forensic experts needed for investigating war crimes;
Access of victims and witnesses to trials (traveling expenses,
accommodations, video and audio transmissions); and
Witness protection programs, including mechanisms for a witness
to change identity, resettlement of witnesses internally or in other countries,
protection of the witness’ family members, police escort, and home protection.
E.U. member states should also consider resettling witnesses
and their families as part of witness protection programs.
Ensure that the monitoring of domestic war crimes trials remains
a priority in the OSCE missions to Bosnia and Herzegovina, Croatia, and Serbia
and Montenegro.
Provide war crimes prosecutors and judges with assistance and
training in conducting war crimes trials.
To the extent that referrals occur while the ICTY is still in
operation, the ICTY should perform systematic and proactive monitoring of the
cases referred and provide assistance, in accordance with Rule 11 bis
(iv) of the rules of procedure.
All war crimes judges and prosecutors in national jurisdictions
should undertake training in international humanitarian and human rights law
and, in particular, the jurisprudence of the ICTY, including the crimes set
forth in Articles 2 to 5 of the ICTY Statute, as well as command responsibility
and other forms of individual criminal responsibility.
Bosnia and Herzegovina, and Serbia and Montenegro, should adopt
comprehensive witness protection legislation and fund resulting programs. In
all countries, witness protection should include mechanisms for the witness to
change identity or residence (e.g., the resettlement of witnesses to other
countries), and provide for the protection of the witness’ family members,
police escorts, home protection, and protection of the personal information of
a witness. Closed court sessions also need to be available. In particular,
the following principles should be taken into account:
- Witness protection must function at the pre-trial stage,
during trials, and, when needed, after the trial.
- When necessary for their protection, witnesses should be
transferred to locations other than their places of residence, including
to other countries, pending trial and, if necessary, after trial.
- A detainee should not be released pending trial if the
criteria for protecting the security of witnesses and victims are not
satisfied, and if a determination has been made that the detainee poses a
potential threat to the security of such witnesses or victims.
- While priority should be given to developing effective
witness protection, if disclosing evidence during pre-trial proceedings
will place a witness or his or her family in danger, the prosecutor
should be permitted to withhold evidence until the trial begins and
instead submit to the defense a summary of the evidence.
- Legal provisions making intimidation or threats to
witnesses a criminal offence should be aggressively enforced.
- Protective measures should be available in all courts
that hear war crimes cases, including: expunging names and identifying
information from public records; giving of testimony through image- or
voice-altering devices or closed circuit television; and the assignment
of pseudonyms.
- Protective measures should be available upon the request
of either party, the victim or witness concerned, or a judge, provided
that the measures are consistent with the rights of the accused.
- In relation to child witnesses, children who are
witnesses to these severe crimes, and who are capable of forming their
own views, should have the opportunity to testify, should be protected
from intrusion into their privacy and slander, and should have the right
to all appropriate measures to promote physical and psychological
recovery and social reintegration.
States should implement the penal code provisions outlawing
interference with the administration of justice, including threats to a judge
or prosecutor.
The ethnic composition of prosecutors’ offices should be diverse
and should roughly correspond to the ethnic composition of the area over which
each prosecutor has jurisdiction.
Protective measures for judges and prosecutors should be
implemented, including 24-hour protection if needed.
Effective cooperation between states in war crimes prosecutions
should include the following elements:
- The identification and location of witnesses and victims
(in a manner consistent with witness protection);
- Access to witnesses and victims (in a manner consistent
with witness protection);
- Facilitating the work of investigation teams;
- Providing requested documents;
- Travel of witnesses, victims, experts, and journalists
who follow the trials;
- Hearing witnesses by video-link;
- A mechanism to allow judges and prosecutors from each
country to travel to the other country in order to take witness
statements from any witness living there who is unable or unwilling, for
reasons of personal safety or trauma, to travel to the country where the
trial is taking place in order to testify; and
- The transfer of prosecutions, consistent with any domestic
rules prohibiting extradition of nationals, to courts in other states.
States in the territory of the former Yugoslavia should prosecute
individuals on the basis of command responsibility, including holding
commanders responsible for having reason to know their subordinates would
commit crimes and failing to prevent them—a standard that encompasses both
guilty intent and grossly negligent behavior.
Bosnia and Herzegovina, and Serbia and Montenegro, should enact
legislation allowing for the use of evidence collected by the ICTY in domestic
war crimes proceedings.
War crimes prosecutions need to be brought without regard to
ethnicity.
Croatia should enhance efforts to investigate and prosecute
incidents in which ethnic Croats were responsible for crimes against ethnic
Serbs.
Charging standards and sentencing practice should be the same for
all defendants, regardless of their ethnic origin. Croatian prosecutors should
cease the practice of indicting Serbs for war crimes on the basis of minor
offences, where Croats alleged to have committed the same acts are not charged.
Croatia should not discriminate on the basis of ethnicity in hiring
judges. Returnee Serbian judges should not be discriminated against and should
have an opportunity for employment in Croatian courts.
In cases of group indictments, prosecutors for the special war
crimes chambers should specify the role of each individual in the commission of
the crime and not merely ground the charges on, e.g., membership in a specific
military unit to which alleged perpetrators belonged.
Bosnia and Herzegovina should ratify 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.
The authorities in Republika Srpska should show a far greater
commitment to prosecuting war crimes, regardless of the ethnicity of the
perpetrators. Investigations should be launched into the numerous war crimes
committed against non-ethnic Serbs in the territory of Republika Srpska.
Serbia and Montenegro should ensure sufficient political support
to the special war crimes chamber at the Belgrade District Court. Without such
support, the chamber cannot function effectively or ensure fair and unbiased
trials for the perpetrators and for the victims.
Serbia and Montenegro should cooperate fully with the ICTY.
Investigative mechanisms for trials before the special war crimes
chamber should be strengthened. The special war crimes division within the
Serbian police should show a far greater initiative than in the past in
cooperating with the war crimes investigators and prosecutors.
Serbia should introduce legislation making it an offence to
intimidate or otherwise interfere with witnesses involved in a criminal
investigation or prosecution.
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