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Importance of War Crimes Prosecutions in Republika Srpska

The expected number of war crimes investigations, the severity of the underlying crimes, the importance of justice for the victims, and experience from elsewhere in the region are among the reasons why it is important to ensure that war crimes investigations and proceedings in Republika Srpska are fair and effective.

Significant Number of War Crimes Cases Yet To Be Heard

Although the ICTY has an impressive record in prosecuting those responsible for the most egregious war crimes committed in Bosnia, only a fraction of low- and mid-level perpetrators have been tried at the ICTY. The Tribunal has indicted 109 persons for war crimes in Bosnia.⁶ Hundreds of other individuals will be tried in Bosnia, before domestic courts.

The courts in Bosnia are currently dealing with two groups of cases: those initiated at the ICTY and subsequently transferred to the domestic courts, and the cases initiated in the past by the Bosnian judiciary. In the future, Bosnian prosecutors and courts will be also dealing with “new” cases, in which neither the local prosecutors nor the ICTY have yet conducted investigations.  

The special War Crimes Chamber in the State Court of Bosnia and Herzegovina, established in March 2005, will try the cases of lower- to mid-level perpetrators indicted by the ICTY and referred to the Bosnian court under Rule 11 bis of the ICTY rules of procedure and evidence.⁷ In addition to the Rule 11 bis cases, the War Crimes Chamber will be responsible for those cases submitted to it by the ICTY Office of the Prosecutor where investigations have not been completed.⁸ The referrals policy is motivated by the ICTY’s objective, mandated by the United Nations Security Council, to complete all first-instance trials by the end of 2008.⁹ (The War Crimes Chamber is the subject of a separate Human Rights Watch report published in February 2006.¹⁰)

The Bosnian judiciary is also handling war crimes cases originally initiated in Republika Srpska and the Federation of Bosnia and Herzegovina. Under the “Rules of the Road,” an agreement between Bosnian authorities and the ICTY that operated between 1996 and 2004, all domestic war crime cases were first reviewed by the ICTY together with any accompanying evidence. Those cases where the ICTY Office of the Prosecutor deemed the evidence to be sufficient to warrant the arrest or indictment of the suspects named in the case files were referred to as category “A” cases. The Rules of the Road Unit in the ICTY Office of the Prosecutor assessed that the requests concerning 846 individuals met the international criteria necessary to warrant proceeding with prosecution (and therefore a category “A” designation).¹¹ Between 1996 and January 2005, ninety-four defendants (of the 846 persons from category “A” cases) had been tried in Bosnia. In addition, at least seventy-three persons were being actively investigated or were in the pre-trial phase in January 2005.¹²

In 2004 and 2005, following a verbal agreement between the various prosecutorial agencies in Bosnia, cantonal prosecutors in the Federation and district prosecutors in Republika Srpska referred all their existing war crimes case-files in which indictments had not yet been issued to the Special Department for War Crimes in the Office of the Prosecutor of Bosnia and Herzegovina (hereinafter “Special Department for War Crimes”) for review. The Special Department for War Crimes has the power to take over cases involving the most serious crimes (referred to as “highly sensitive” cases).¹³ Other cases (referred to as “sensitive”) are the responsibility of cantonal or district prosecutors in the area in which the crimes took place, applying the principle of territorial jurisdiction. As a practical matter, the physical case files are first sent back to the originating prosecutorial office, for transfer to the prosecutorial office with territorial jurisdiction.¹⁴

The Special Department for War Crimes prioritized for review the category “A” files. As of mid-November 2005, the Department had reviewed the “A” files pertaining to 734 individuals and found 194 to be “highly sensitive.”¹⁵ The War Crimes Chamber in the State Court of Bosnia and Herzegovina will hear those cases.  

The task of investigating the remaining 540 suspects in category “A” cases will fall to the cantonal prosecutors in the Federation of Bosnia and Herzegovina and district prosecutors in Republika Srpska.¹⁶ Applying the principle of territorial jurisdiction, the Special Department for War Crimes has determined that district prosecutors in Republika Srpska should carry out investigation into approximately forty category “A” cases  (by comparison, cantonal prosecutors in the Federation are responsible for at least 160 cases.)¹⁷ The figure refers to the number of cases, rather than to the number of suspects, as some cases involve multiple suspects.

Bosnia and Herzegovina prosecutors will also manage numerous cases in which criminal charges were brought before March 2003, but which were never given an “A” designation, either because the ICTY Prosecutor deemed the evidence submitted to be insufficient, was unable to review it, or because the cases were never submitted for ICTY review.¹⁸ Cantonal and district prosecutors are still investigating a number of these cases, collecting evidence, and must submit the files to the Special Department for War Crimes for review.¹⁹ 

Any new war crimes cases (those that have not yet been the subject of investigation by the ICTY or Bosnian prosecutors) are the responsibility of the Prosecutor of Bosnia and Herzegovina, who has exclusive competence to conduct investigations into them, by virtue of the legislation adopted in 2003.²⁰ After the completion of the investigation and issuance of an indictment, the Prosecutor of Bosnia and Herzegovina can refer the case to a district prosecutor in Republika Srpska or cantonal prosecutor in the Federation.²¹ 

The Chief Prosecutor of Bosnia and Herzegovina has expressed concern that the limited number of war crimes prosecutors in the Special Department for War Crimes (a dozen) will make it next to impossible for the Office of the Prosecutor to handle cases other than those already with the department.²² There is a possibility that future legislation might authorize the referrals in the “new” cases during the investigation stage. In that event, the procedure would resemble that for pre-existing cases, with district and cantonal prosecutors having a major role in the investigation.

Seriousness of Underlying Crimes

The fact that the most notorious war crimes committed in Bosnia will either be prosecuted at the ICTY or the special War Crimes Chamber in Sarajevo should not obscure the fact the courts in the Republika Srpska will adjudicate cases involving serious violations of humanitarian law.

A glance at the ongoing and recently completed war crimes trials before the district courts in Banja Luka and Trebinje reveals the seriousness of the crimes handled by the judiciary in Republika Srpska.

On November 17, 2005, the district court in Banja Luka convicted three former police officers for the killing of six Bosnian Muslims in Prijedor in March 1994.²³ According to the judgment in the case (Radakovic and others), on the night of March 29, 1994, the three men—Drago Radakovic, Drasko Krndija, and Radoslav Knezevic—threw a bomb into the house of Atif and Zlata Djanic, before entering the house and shooting the couple dead.

The court found that the following night, the three men killed Sefik Hergic in his house, before throwing two bombs into the house of Faruk Rizvic. They then entered the Rizvic house, and murdered Faruk Rizvic, his wife Refika, and another woman, Fadila Mahmuljin. The three men beat all three about the head, smashing their skulls, and slit Faruk Rizvic’s throat. The court found that Radakovic, Krndija, and Knezevic committed the killings in revenge for the deaths of several Serb policemen in the fighting against Bosnian Muslims at a frontline nearby.²⁴

The Banja Luka district court convicted Nikola Dereta, a former soldier in the Republika Srpska army, on December 5, 2005, for the killing of a Bosnian Muslim and the attempted killing of the victim’s father in September 1993.²⁵ News coverage of the trial indicates that on September 25, 1993, Dereta and five unknown perpetrators drove the victim and his father in a military jeep to the edge of a gorge near the town of Mrkonjic Grad. Both men had their hands tied. Dereta and the accomplices shot the son dead, while his father saved himself by jumping into the gorge.²⁶  

In the third completed case, Dragoje Radanovic was convicted by the Trebinje district court on December 9, 2005, for the illegal detention of four Bosnian Muslim civilians in April 1992.²⁷

The war crimes trial currently taking place in the district court in Trebinje involves charges of inhuman treatment, illegal detention, and rape. According to the indictment, in early June 1992 Momir Skakavac forcibly took Bosnian Muslim Atif Hambo from his house in Miljevina (near Foca); Hambo was never seen again. During the summer of 1992, Skakavac and other members of the Bosnian Serb army allegedly kidnapped three Muslim women from their apartments. The women were taken to a cattle farm and forced to work there. Finally, between August and November 1992, Skakavac allegedly visited a house in which a Muslim woman, “No. 120,” was held prisoner, and raped her on several occasions.²⁸

The second ongoing trial, in the Banja Luka district court, involves the murder of four Bosnian Muslims in the village of Blagaj Rijeka. The defendant, Milanko Vujanovic, a Bosnian Serb, was indicted in March 1993 for the killing of Aziz Uzeirovic on October 19, 1992. According to the indictment, the next day Vujanovic burglarized the house of Arif Memic, took Memic out of the house and shot him dead with a rifle. Vujanovic then allegedly poured gasoline around the house of Arif Memic, burning down the house and burning to death two women, Safeta Memic and Mina Halilovic, who were inside.²⁹

Importance to Victims and Relatives

Prosecutions are important for the victims and their relatives. It is the direct perpetrators of war crimes—those who pulled the trigger rather than those who gave the order—who are most likely to face justice in district courts in Republika Srpska. For many victims and witnesses, the conviction of direct perpetrators is equally if not more important than the punishment of those who ordered the crimes.

Effective prosecutions in local courts would also contribute to sustainable return of displaced persons and refugees to certain areas—such as Visegrad and Foca, in eastern Republika Srpska—where the impunity enjoyed by low-level perpetrators has discouraged potential returnees.

A woman who in 2000 and afterwards led the efforts to start the return of Muslims to Visegrad told Human Rights Watch that by 2005 she had resigned herself to the fact that “the return has failed, because war criminals continue to live freely there. Almost nobody returned to the town.”³⁰ Those who have returned to their pre-war homes often found themselves surrounded by low-level war criminals as their neighbors. Prospects for genuine reconciliation are weak under such circumstances.

One Bosnian Muslim woman whose husband was taken away in June 1992 after the family was expelled from their village near Zvornik, and has never been seen again, told Human Rights Watch:

I have returned to the area of Zvornik to live there, but if the criminals are not brought to justice, I will not stay there forever. I know that not all of the Serbs are the same, but those who did something should be punished. Then there will be some guarantee that the horrible things will not repeat, and it will be possible to co-exist. For me, both those who ordered a crime and those who carried it out are the culprits. The women from my village, whose husbands and sons were almost all killed in June 1992, can’t accept that nobody has been punished for those crimes.³¹

An often neglected aspect of war crimes trials is their potential role in bringing to light information about the fate of missing persons. For some family members and representatives of the associations of the families of the missing persons, it is as important to find the bodies of the missing as it is to have the perpetrators punished. In their view, trials of direct perpetrators offer an opportunity to learn about the whereabouts of the bodies.³² The need to find the bodies was the immediate impetus for Fikret Bacic to assist the investigation into the killings of his family members on July 25, 1992, in the village of Zecovi, near Prijedor: 

A few years ago, there was a meeting in a nearby village about the issue of missing persons. A cantonal prosecutor from Bihac was there. I asked her during the meeting whether I could visit her in her office, and bring the witnesses with me, because I wanted the bodies to be found. It shouldn’t be impossible to establish at the trial whose task it was to bury the bodies.³³

War crimes trials would represent an important step in the right direction in the numerous cases involving forced disappearance. There is a clear connection between the successful prosecution of war crimes in Republika Srpska and the obligation on the authorities of that entity to implement existing human rights obligations regarding disappearances. The European Court of Human Rights has determined in a series of cases that failure by state authorities to conduct a meaningful investigation into disappearance can cause serious suffering to family members, amounting to degrading treatment contrary to Article 3 of the European Convention on Human Rights.³⁴ Bosnia and Herzegovina is a party to the Convention.³⁵ 

The Human Rights Chamber of Bosnia and Herzegovina (which was established to adjudicate alleged violations of the European Convention on Human Rights in Bosnia, and has now been superseded by another body, the Human Rights Commission)³⁶ held that suffering by the family members caused by the absence of meaningful investigation into disappearance of their dearest constitutes “inhuman treatment,” within the meaning of Article 3 of the Convention.³⁷ Unless the authorities carry out meaningful and thorough investigation into the disappearances, they are responsible for an ongoing human rights violation of inhuman or degrading treatment.³⁸ (Failure by Republika Srpska authorities to investigate specific disappearance cases is discussed below, in the section entitled Limited Progress on War Crimes Accountability.)

Experience of Domestic War Crimes Prosecutions in the Region

While there has been far greater progress in prosecuting war crimes in other parts of the former Yugoslavia, such measures have been far from perfect. In Croatia and in the Federation of Bosnia and Herzegovina, ethnic bias, mainly to the detriment of ethnic Serbs as the accused or the victims, marred the prosecutions. In Serbia the number of war crimes prosecutions has been very low. An October 2004 report by Human Rights Watch, Justice at Risk, analyzed in detail these and other shortcomings of the war crimes prosecutions in Croatia, Serbia and Montenegro, and in the Federation of Bosnia and Herzegovina.³⁹ The main deficiencies identified included: inadequate witness protection; insufficient interstate cooperation; obstructionism by the police and the army structures; unresolved legal issues concerning the application of the doctrine of command responsibility; and issues concerning the use of the evidence gathered by the International Criminal Tribunal for the former Yugoslavia. In Croatia and in Serbia and Montenegro these shortcomings began to be addressed by the establishment in 2003 of special war crimes chambers, and the early 2005 establishment of the War Crimes Chamber is helping to address shortcomings in Bosnia and Herzegovina.⁴⁰

As the number of prosecutions increase in Republika Srpska, any shortcomings in the justice system are likely to be magnified. It is therefore crucial to understand the experience elsewhere in the region, so as to anticipate the likely difficulties.