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I. Introduction

The conflict in Bosnia and Herzegovina,¹ which lasted from 1992 to 1995, was characterized by grave violations of human rights such as mass killings, rapes, widespread destruction, and displacement of the population. These violations, including the genocide of between seven thousand and eight thousand Bosnian Muslim men and boys at Srebrenica, seized the international community’s attention due to their brutality and scale. In the aftermath, the desire to bring perpetrators to justice for these and other human rights violations committed during the Balkans conflicts resulted in the Security Council establishing the International Criminal Tribunal for the former Yugoslavia (ICTY).²

The ICTY has made progress in trying individuals for the atrocities committed in the former Yugoslavia,³ including Bosnia. However, by the end of its mandate, it will have prosecuted only a limited number of top-level perpetrators of war crimes.⁴ Fair and effective trials of the remaining perpetrators at the domestic level are necessary to further combat impunity in the former Yugoslavia and build respect for the rule of law.

In Bosnia, however, profound deficiencies in the national justice system during and immediately following the conflict severely limited local efforts to combat the rampant impunity for war crimes. The War Crimes Chamber was established in an effort to address these deficiencies and to enable effective war crimes prosecutions in Bosnia.⁵ A joint initiative of the ICTY and the Office of the High Representative,⁶ the chamber’s mandate includes trying a limited number of cases of alleged mid- and lower-level perpetrators referred to it by the ICTY. It therefore represents an important component of the tribunal’s completion strategy. The chamber also has jurisdiction to try war crimes cases initiated locally; indeed, these cases will make up the bulk of the chamber’s caseload. The War Crimes Chamber, together with the Organized Crime and General Crime Chambers, operates within the Criminal Division of the State Court of Bosnia.

The concept underlying the establishment of the chamber is that accountability for the gross violations of human rights that took place during the conflict ultimately remains the responsibility of the people of Bosnia.⁷ Thus, although currently staffed by both nationals and internationals, the chamber is essentially a domestic institution operating under national law. There is an aggressive transition strategy for the phasing out of international involvement within a short timeframe. Since it is ultimately a national institution, the chamber has the potential to make an important impact in fostering public confidence in the rule of law long after international participation in its operation has ceased.

Careful scrutiny of the chamber’s operations is essential. The chamber’s success or failure as an institution will ultimately be a reflection of the level of commitment —by both the international community and Bosnian nationals—to establishing the rule of law in Bosnia. The chamber’s potential to bolster the capacity of Bosnia’s cantonal and district courts to try the remaining war crimes cases that fall outside of the chamber’s jurisdiction underscores the importance of ensuring the chamber fulfills its mandate fairly and effectively.⁸ Moreover, the lessons learned from this institution may be very valuable to the extent that this model may be used to address similar violations in other country situations. 

In February 2006 Human Rights Watch issued an initial report assessing the chamber’s operations, “Looking for Justice: The War Crimes Chamber in Bosnia and Herzegovina.”⁹ When we conducted the research for that report on the chamber, it was still in the early stages of conducting trials, so we focused primarily on clarifying the chamber’s complex legal framework and providing an overview of the various organs associated with its effective functioning. “Looking for Justice” identified accomplishments and made recommendations aimed at improving operations. 

This follow-up report assesses developments in the chamber now that trials are fully underway and examines progress and concerns in relation to the following areas: 1) policies and practices of the prosecution; 2) fair trial rights of defendants; 3) witness protection and support; 4) administrative developments at the chamber; 5) outreach and communications; and 6) collaboration with the cantonal and district courts. Within each section, we note the accomplishments and make recommendations in relation to those areas where we believe the chamber can improve operations.

Overall, our research indicates that the War Crimes Chamber has made significant progress in fulfilling its mandate and is playing an important role in bringing justice for the atrocities committed during the war. There are concerns, however, regarding aspects of the chamber’s operations that could affect the extent of its impact in Bosnia. For example, the prosecution’s policy for the selection of cases to date has been problematic. Further, we have concerns regarding the court’s broad use of closed sessions and the negative implications that this lack of transparency may have on the public’s confidence in the chamber overall. Inadequate outreach and communications efforts to explain the court’s work and make it meaningful to the communities most affected by the violations committed may further undercut the chamber’s impact on the rule of law. A comprehensive list of recommendations is included at the end of the report.

The report is based primarily on a mission Human Rights Watch conducted in Sarajevo in September and October 2006. During the mission we interviewed various officials associated with the chamber including members of: the Special Department for War Crimes of the Office of the Prosecutor, the Criminal Defense Support Section, the Public Information and Outreach Section, the Witness Protection Department, the Witness Support Office, the judiciary, the Court Management Section, the Registry, and the State Investigation and Protection Agency of Bosnia. We also observed war crimes trial proceedings before the chamber.

Further, we met with a number of officials associated with organizations outside of the chamber, including the Organization for Security and Co-operation in Europe (OSCE), the Bosnian High Judicial and Prosecutorial Council (HJPC), the United Nations Development Programme (UNDP), and the Office of the High Representative (OHR). In addition, we interviewed a number of Bosnian civil society actors to garner their insights on the functioning of the chamber. Between November 2006 and February 2007 we conducted numerous additional interviews in person and by telephone with members of civil society, officials in the chamber and in the ICTY, and received substantial material from officials via email.

Many of the individuals we interviewed wanted to speak candidly, but did not wish to be cited by name, so we have used generic terms throughout the report to respect the confidentiality of these sources.