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III. The Office of the Prosecutor

A. Overview of the Special Department for War Crimes

As part of the War Crimes Chamber Project, the Office of the Prosecutor (OTP) of the State Court includes a Special Department for War Crimes.³⁴ Within the Special Department for War Crimes, there are five regional prosecution teams, and a sixth team to address allegations arising from the Srebrenica massacre.³⁵  All prosecution teams are based in Sarajevo.

There are five international prosecutors and one international acting prosecutor, as well as eight local prosecutors, including the deputy prosecutor.³⁶ There is one international and one local prosecutor assigned to each team, with the exception of the Sarajevo team (dealing with the current Rule 11 bis cases), which has one international and three local prosecutors.³⁷  Each team is headed by a local prosecutor.³⁸ Administrative, logistical and operational support is provided to these teams by the Prosecution Support Section.³⁹  According to the transition strategy, the majority of international prosecutors will be gradually phased out of the Special Department for War Crimes between August 2006 and December 2007.⁴⁰   

As outlined above, the WCC has jurisdiction over referrals from the ICTY under Rule 11 bis of the Rules of Procedure and Evidence.  In those cases, the indictment has already been confirmed by the ICTY.  Upon referral, in order to proceed, the indictment has to be “adapted” by the prosecutor in the Special Department for War Crimes to ensure compliance with Bosnian law.⁴¹  While there is no authority to remove charges from the indictment, it is possible to add charges.⁴²  The WCC confirms the indictment in relation to the additional charges.⁴³  The time provided for this procedure is not specified by law and so proceeds on a case-by-case basis.  In the Stankovic case, the WCC provided the prosecutor with an initial forty-day period to adapt the indictment, which was extended by fifteen days.⁴⁴

As part of the referral procedure, the ICTY maintains the jurisdiction to rescind the order for referral before conviction or acquittal of the defendant if there are concerns regarding the conduct of the trial in Bosnia.⁴⁵  This may include concerns with respect to the demonstrated willingness of the authorities to diligently prosecute such cases, or their ability to conduct fair trials.⁴⁶  The ICTY’s residual discretion to revoke referral of cases therefore provides an additional incentive to handle these cases fairly and effectively, and makes each case a test of the capacity of the WCC. 

As noted above, the WCC also has jurisdiction over those “Rules of the Road” cases which are considered “highly sensitive.”  This includes all cases passed to the WCC by the ICTY Rules of the Road Unit prior to its closure on October 1, 2004, and all cases involving war crimes allegations initiated locally after that date.  With respect to those cases referred by the ICTY, the first stage of the selection process involved review by the prosecutors of the Special Department for War Crimes of all cases given a standard marking “A” (meaning there is sufficient evidence to proceed) by the ICTY Rules of the Road Unit.  These cases were substantively and procedurally reviewed in accordance with the Orientation Criteria for Sensitive Rules of the Road Cases and the Book of Rules on the Review of War Crimes Cases, respectively, to determine which cases should be considered “highly sensitive.”⁴⁷  As of October 2005, of the cases passed by the ICTY Rules of the Road Unit, 202 “highly sensitive” cases have been identified to go forward before the WCC.⁴⁸ 

However, not all of these cases will proceed to trial.  A number of category “A” cases were initiated during the war, at a time when there was limited investigation capacity.  Accordingly, the designation of these cases as category “A” by ICTY officials was based on a preliminary assessment of probable cause.⁴⁹  The prosecutors in the Special Department for War Crimes must now assess and, where possible, conduct supplementary investigations in these cases to determine whether it is possible to proceed to prosecution.⁵⁰  This process may be complicated by difficulties in finding witnesses who may have relocated since the war and, in some cases, by deliberate evasion by defendants to avoid apprehension.⁵¹  (This is discussed briefly below, in part D.2 of this section­­, on regional cooperation.)

B. Progress towards effective prosecutions

Although only recently established, considerable progress has been made in building a solid foundation within the Special Department for War Crimes to conduct effective prosecutions.  The current arrangement of international and local prosecutors on each team is viewed as a good method for local legal professionals to increase their knowledge about the applicability of international instruments, such as the European Convention on Human Rights, to ensure compliance with international standards.⁵²  The role of international staff in contributing to the capacity of local legal professionals is especially important in light of the breadth and complexity of war crimes cases, coupled with the recent reform of the Bosnian Criminal Procedure Code that has made the criminal justice system in Bosnia more adversarial.⁵³ 

The Prosecution Support Section conveyed to Human Rights Watch its commitment to providing essential training to both local and international prosecution personnel.⁵⁴  There have been a number of training sessions for personnel on relevant topics, such as International Humanitarian Law, the Geneva Conventions, Human Rights and Trial Advocacy.  Additional training sessions have been planned on War Crimes Investigations, Bosnian Legal and Political Structures, Information Technology and the Media. There are also plans to follow up on the Human Rights and Trial Advocacy training.⁵⁵  Human Rights Watch welcomes these initiatives aimed at enhancing the capacity of local professionals.  Promoting the capacity of local prosecutors to handle war crimes cases through formal training is a necessary component in ensuring effective war crimes prosecutions long after international staff has been phased out.

Despite the considerable progress made in creating a solid foundation to conduct prosecutions, Human Rights Watch is concerned, however, that there are significant resources shortages that may hinder the overall ability of the Special Department for War Crimes to conduct prosecutions effectively.  These concerns are addressed in more detail below.

C. Resource shortages

1. Prosecutors

As noted above, the existing caseload of the Special Department for War Crimes includes the 202 “highly sensitive” cases⁵⁶ and the two Rule 11 bis cases already referred by the ICTY.  In addition, it includes those cases involving new war crimes allegations initiated locally that must be investigated and prepared for prosecution.  Current and former officials in the Special Department for War Crimes have expressed concern to Human Rights Watch about the ability to adequately address this caseload in light of existing staffing levels (i.e. the five international prosecutors, one international acting prosecutor, and eight local prosecutors—see above).⁵⁷ 

The recently-released report on the Srebrenica massacre lists the names of more than seventeen thousand Bosnia Serb soldiers, police officers and officials involved in the killings.⁵⁸ While it is likely that only a small number of these cases will fall under the WCC’s jurisdiction,  Human Rights Watch is concerned that, since resources are already extended to address the existing caseload, the Special Department for War Crimes will be unable to prosecute any additional cases.

Further, if additional cases arise and a decision is made to go forward without any increase in resources, existing cases may suffer.  At the very least, an increase in cases with no accompanying increase over the current prosecutorial resources could lengthen the delay before the cases go to trial.⁵⁹  Extensive delays before commencing prosecution in cases where there are aging victims and witnesses could detrimentally affect the extent and quality of evidence available for trial.  Further, the longer the delay before trial, the greater the risk of witnesses being unable to recall important facts when providing testimony. 

Prosecuting existing cases efficiently and expeditiously is all the more important given that under Bosnian law, the maximum period of detention for an accused person after the confirmation of the indictment is one year, which cannot be extended.⁶⁰  The initial trials may already be slowed by novel legal issues.  If proceedings are further slowed by limited prosecutorial resources, resulting in a trial taking longer than one year to complete, a defendant could be released from custody in a highly sensitive war crimes case before the trial is over.    

Notwithstanding the WCC transition strategy that foresees the majority of international prosecutors phased out by the end of 2007, Human Rights Watch has been informed that efforts are underway to recruit additional international prosecutors to tackle the immediate caseload.⁶¹  We encourage these efforts, and urge the Registry to ensure that these positions are adequately funded to attract and retain qualified prosecutors in the Special Department for War Crimes.   In the event that there are a significant number of additional cases that arise, either flowing from the Srebrenica report mentioned above or otherwise, the Registry should make additional budget allocations to recruit more international and local prosecutors as necessary.  We urge the donor community to fund these allocations accordingly.

2. Investigators

Competent investigation during all stages of case preparation and proceedings is crucial to ensure effective prosecutions, particularly in complex war crimes cases.  Investigators can assist prosecutors in refining suspect lists, pursuing leads, interviewing potential witnesses, and establishing the context in which the crimes were committed.  Under Bosnian law, prosecutors are entitled to direct the activities of “authorized officials,” primarily law enforcement authorities, in conducting investigations.⁶²  Correspondingly, Bosnian law provides that only “authorized officials” can undertake vital investigative actions to assist the prosecutor, such as search warrant execution.⁶³ 

In the Special Department for War Crimes, each prosecution team has been allocated one professional tasked with drawing up an investigative plan that outlines what actions are required in each of the team’s cases.⁶⁴  However, as these professionals are not considered “authorized officials,” they cannot carry out the investigative actions they recommend, so they must liaise with other law enforcement authorities to execute their requests.⁶⁵  The key body with the authority to conduct investigations is the War Crimes Unit of the Bosnian State Investigation and Protection Agency (SIPA).

As a local law enforcement agency devoted exclusively to war crimes investigations, the SIPA War Crimes Unit (WCU) has the potential to provide substantial assistance to the Special Department for War Crimes, as well as to prosecutors at the district and cantonal levels, on a long-term and sustainable basis.  The Special Department for War Crimes and the WCU of SIPA signed a Memorandum of Understanding (MOU) regulating the terms of cooperation on October 12, 2005.⁶⁶<  Pursuant to the MOU, the Special Department for War Crimes would be assigned a number of WCU investigators exclusively for its investigations.  The WCU investigators would be provided with the requisite space and equipment by the Special Department for War Crimes.  The assignment of these officers to the Special Department for War Crimes does not, however, preclude assistance by other officers in the WCU.⁶⁷   There are currently seven WCU officers assigned to the Special Department for War Crimes, one for each regional team and two for the Srebrenica team.⁶⁸

However, the existing staffing shortage undermines the WCU’s ability to conduct effective investigations: at present the WCU is operating at only 50 percent of its projected capacity.⁶⁹  A principal factor behind the current staffing shortage appears to be that under the existing recruitment strategy, WCU officers must possess a university degree and at least three years of relevant work experience.  These criteria are considerably stricter than those for police officers at the entity level (which is understandable given the sensitive cases at issue), but WCU officers are not paid at a higher rate than police officers.  There is therefore little motivation to join the WCU, particularly in light of the increased level of difficulty and possible dangers associated with investigating war crimes cases.⁷⁰ 

The WCU also suffers from a severe shortage of equipment.  For instance, the WCU does not have its own dedicated secure fax machine.⁷¹  As of late September 2005, the WCU had been allocated only one vehicle for the entire unit to conduct investigations, which is not sufficient in light of the number of cases that require investigation by WCU staff.  Field visits must therefore be conducted by borrowing other official cars or using private vehicles.⁷² The European Union Police Mission has loaned its cars to the WCU whenever possible, but its resources are also limited.⁷³ 

Human Rights Watch welcomes the MOU between the Special Department for War Crimes and the WCU of SIPA mentioned above, and encourages its rapid and complete implementation to solidify cooperation between the WCU and prosecutors in the Special Department for War Crimes.  Close cooperation between investigators and prosecutors builds a relationship of trust in conducting complex and lengthy investigations, which encourages the sharing of information and improves the quality of investigations in sensitive war crimes cases.

The fact remains, however, that the WCU is alarmingly understaffed and under funded.  Assigning seven WCU investigators to provide assistance to the Special Department for War Crimes, while an important first step, will only have a limited impact in light of the number of cases that require investigation.  Moreover, the WCU must provide investigative assistance to the district and cantonal prosecutors,⁷⁴ and this cannot be done effectively under the existing resource constraints.  The Bosnian authorities should therefore allocate additional resources to the WCU of SIPA so that it has the essential resources to conduct adequate investigations.  This increase should extend to both staffing and material resources.  In terms of staffing, the Bosnian authorities should increase the salaries of all WCU officers to ensure the remaining vacant posts are filled immediately with qualified applicants.  In the event additional financial assistance is required to make this allocation, Human Rights Watch urges international donors to provide the necessary funds. 

3. Translation

The official languages of proceedings before the War Crimes Chamber are Bosnian, Croatian and Serbian (BCS).⁷⁵  However, international judges and prosecutors are authorized to use the English language in any of the court proceedings.⁷⁶  Further, many of the materials provided by the ICTY in cases other than the Rule 11 bis cases require translation.  Consequently, in addition to facilitating verbal communication between the local and international prosecutors inside and outside of court proceedings, adequate translation capacity is essential to ensure timely translation of materials into both BCS and English.     

There are currently seven language assistants allocated to the Special Department for War Crimes—one language assistant assigned to each prosecution team, and one “floater” who provides additional assistance as required.⁷⁷  The prosecution teams also have access to the Language Unit within the Registry, which had thirty-one language assistants as of October 2005.⁷⁸ However, these language assistants also provide translation for the Organized Crime Chamber and all court proceedings, which require a minimum of two translators per trial each day.⁷⁹  The available assistance of this unit to the prosecution teams is therefore limited.⁸⁰ 

Human Rights Watch has been informed that the existing capacity to conduct efficient translation of the substantial amount of material in war crimes cases is insufficient.⁸¹  This problem is particularly acute regarding material and evidence provided by the OTP of the ICTY in cases other than those transferred under Rule 11 bis: the OTP of the ICTY is only required to provide existing translations,⁸² so the available language assistants within the Special Department for War Crimes and the Registry must undertake any additional translation.   The amount of time to make an adequate translation of even a relatively short document can be significant.⁸³ 

Efficient and accurate translation is essential for the prosecution to build an effective case for trial.  Prompt access to quality translations also assists the prosecution in discharging its disclosure obligations to the defense.  Accordingly, Human Rights Watch urges the Registry to make the necessary staff provision for language assistance to the Special Department for War Crimes to ensure the timely and accurate translation of prosecution material.  In the event additional budgetary resources are required to do so, Human Rights Watch urges the donor community to provide the necessary funding. 

D. Cooperation with the War Crimes Chamber

The Special Department for War Crimes relies heavily on prosecutorial cooperation with the ICTY as well as other states in the region.   Such cooperation includes the gathering of evidence and, with respect to states within the region, may extend to the location, arrest and trial of defendants.  Officials in the ICTY and the authorities in Bosnia, Croatia and Serbia and Montenegro have taken steps to improve cooperation and facilitate prosecutions of alleged perpetrators of war crimes during the conflict in Bosnia.  However, there are obstacles remaining, particularly with respect to regional cooperation, that may impede effective prosecutions and require attention.  These factors are outlined in more detail below. 

1. ICTY cooperation

The distinct but related mandates of the ICTY and the WCC to bring to justice perpetrators of war crimes in Bosnia makes strong cooperation between these institutions with respect to the sharing of evidence crucial.  This cooperation is a fundamental component of the Rule 11 bis cases transferred to the WCC by the ICTY and the greater number of war crimes cases initiated locally.  For example, there may be a witness whose statement and/or testimony is relevant in proceedings before both the ICTY and the WCC.  The possibility could arise that a witness has given a statement to the ICTY that is inconsistent with a statement given in relation to proceedings before the WCC.  The potential impact of such a discrepancy on the witness’ credibility could affect the outcome of the trial. 

The transfer of information and evidence to facilitate prosecutions in national jurisdictions is handled by designated officials within the Registry and the Office of the Prosecutor (OTP) of the ICTY.  The main priority of these officials is to assist the prosecutor in preparing the necessary materials to transfer cases to national jurisdictions under Rule 11 bis.⁸⁴   The material that is considered necessary includes all background material, the pre-trial brief, witness and exhibit lists, and documentary and demonstrable exhibits.⁸⁵  In the Stankovic case alone, more than fourteen thousand pages of documentation have been forwarded to the Special Department for War Crimes by the ICTY.⁸⁶ 

Prosecutors in the Special Department for War Crimes can also make specific requests for evidence to the ICTY.  Depending on the nature of the information sought, such requests are directed to specific staff members in either the Registry or the OTP of the ICTY.  For instance, requests for transcripts are made to the Registry.  A Registry official reviews the transcripts and removes any confidential information before providing them to the requesting prosecutor in the Special Department for War Crimes.⁸⁷  Requests for evidence in relation to protected witnesses are forwarded directly to the OTP of the ICTY, which may subsequently file a request with the tribunal to change protective measures.⁸⁸  As of November the OTP of the ICTY had responded to thirty-four requests from prosecutors in the Special Department for War Crimes in 2005.⁸⁹  In addition to handling requests from the Special Department for War Crimes, staff in the Registry and the OTP of the ICTY deal with requests from officials in the cantonal and district courts in Bosnia, as well as officials in Croatia and in Serbia and Montenegro. 

The time it takes to respond to requests for confidential information can, in some cases, be lengthy.⁹⁰   According to a current ICTY official, the amount of time it takes to respond to requests from prosecutors in the Special Department for War Crimes is primarily determined by the type of request made.⁹¹  For example, it can take up to one month for the tribunal to issue a decision in response to a motion to change protective measures.  Further, in order to release the statement of an ICTY witness, it is necessary to obtain his or her consent.  This can take a significant amount of time depending on when the witness in question is located.⁹² 

Human Rights Watch has also been informed of concerns that not enough ICTY staff members have been assigned to promptly handle requests for confidential information from officials in the Special Department for War Crimes, the cantonal and district courts, as well as officials in Croatia and Serbia and Montenegro.⁹³  In this regard, an ICTY official has advised Human Rights Watch that the OTP is in the process of assigning additional staff to address these requests as the workload increases.⁹⁴  The timely sharing of evidence and information by ICTY officials with officials in Bosnia is essential to promote effective prosecutions.  Human Rights Watch therefore looks to the ICTY to ensure requests for information and evidence are handled as efficiently as possible. 

Human Rights Watch has been informed of other efforts to improve access to non-confidential information in the possession of the ICTY.  Each of the prosecution teams in the Special Department for War Crimes has been provided with a password to access the Evidence Disclosure Suite (EDS) of the ICTY.⁹⁵  This database is used for the disclosure of evidence to the defense appearing before the ICTY.⁹⁶  Further, there is currently a proposal to provide access to the Judicial Database (JDB).⁹⁷  This would facilitate the search for judgments, decisions and orders issued by the ICTY. Human Rights Watch welcomes these initiatives to improve access to ICTY material.  

A Memorandum of Understanding (MOU) formalizing cooperation between the OTP of the ICTY and the Special Department for War Crimes was signed on September 2, 2005.⁹⁸ An additional MOU regulating the nature and extent of cooperation between the respective institutions in more detail is currently being developed.⁹⁹  

2. Regional cooperation

In addition to causing mass internal displacement, the conflict in Bosnia caused the departure of many people from the country.  A number of war crimes cases within the WCC’s jurisdiction involve victims, witnesses, and/or defendants who have relocated to other countries of the former Yugoslavia, namely Croatia and Serbia and Montenegro.  Unlike the ICTY, which was created pursuant to a resolution of the United Nations Security Council, the WCC does not have United Nations Chapter VII authority to require state cooperation.  Therefore, the effective prosecution of such cases relies heavily on the willingness of authorities in other states to cooperate in order to substantiate allegations, obtain evidence and, in some cases, to locate, arrest and/or try defendants.¹⁰⁰

There have been positive developments to promote regional cooperation in war crimes cases.  The Bosnian authorities on April 30, 2004, signed the European Convention on Mutual Assistance in Criminal Matters, and it entered into force in Bosnia on July 24, 2005.¹⁰¹  In addition, the Special Department for War Crimes has entered into agreements with the authorities in Croatia and in Serbia and Montenegro to enhance prosecutorial cooperation.¹⁰²  There are also efforts underway to establish a regional agreement between Bosnia, Macedonia, Slovenia and Albania.¹⁰³ The WCC has recently for the first time established a video link with a court in Belgrade, where six Bosnian Serbs are on trial accused of having committed war crimes against Bosnian Muslims in Bosnia in 1992.¹⁰⁴  It is anticipated that the video link will facilitate future testimony of Bosnian witnesses in this trial.¹⁰⁵

Prosecutors, however, continue to face difficulties with respect to defendants who are residing as citizens in countries that do not permit extradition of nationals.  In some cases, defendants may have assumed citizenship of these countries after the war in an effort to benefit from this ban and escape prosecution.¹⁰⁶  The ban on extradition of nationals is entrenched in the respective constitutions of Croatia and Serbia and Montenegro. 

Under the present legal framework in Bosnia, it may be possible to transfer cases involving defendants who are residing in other countries to the relevant authorities for prosecution in that jurisdiction.  In this regard, pursuant to the European Convention for Extradition, a state that does not permit the extradition of its nationals is obliged to submit the case to its competent authorities so that proceedings may be initiated if considered appropriate, provided a request has been made to do so by the state seeking the extradition.¹⁰⁷  However, under Bosnian law, it is not possible to transfer a case where the underlying offense is punishable by more than ten years’ imprisonment.¹⁰⁸  Accordingly, only a limited number of war crimes cases can be transferred to other jurisdictions.¹⁰⁹ 

Human Rights Watch urges the Bosnian authorities to take action in order to bring to justice those alleged perpetrators of war crimes where the applicable punishment is more than ten years’ imprisonment and the alleged perpetrator is outside Bosnia.  In the short-term, Human Rights Watch encourages the Bosnian authorities to amend Bosnian law to allow for the transfer of proceedings in all war crimes cases, provided the death penalty will not be imposed on the defendant.  The authorities in Croatia and Serbia and Montenegro should assist by providing specific guarantees to facilitate participation of Bosnian witnesses in proceedings.  This could include, for example, providing witnesses with the option of giving testimony through a video link in all cases transferred by the Bosnian authorities, as was done in the case currently being conducted in Belgrade mentioned above.

Over the longer term, Human Rights Watch urges the authorities in Croatia and in Serbia and Montenegro to abolish the existing ban on the extradition of nationals.  The logistics of maintaining close cooperation between authorities where a case has been transferred to ensure a fair and effective trial can be, in some cases, very complex.  Further, conducting a war crimes trial in the jurisdiction where the offense was committed offers an important opportunity for victims to see justice being done.