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II. Policies and Practices of the Prosecution

A. Overview of recent developments

1. Progress in bringing forward cases

Since beginning its work in March 2005, the Special Department for War Crimes in the Office of the Prosecutor has progressively increased its activities. For example, during the period of January 2005-October 2006, there has been a steady increase in the number of orders issued by prosecutors to criminal investigators to carry out activities relating to the investigation of war crimes cases. Such activities include the taking of statements, searches, and archive research, all of which are central to the successful prosecution of war crimes. These activities provide a measure of insight into both the workload of the department as well as what may be expected of the chamber during an investigation.¹⁰

During the same period, the number of confirmed indictments before the chamber has steadily increased. As of October 2006 the chamber had confirmed a total of 18 indictments involving 32 defendants.¹¹ In addition to cases initiated locally, the chamber has jurisdiction over cases referred to it by the ICTY under Rule 11 bis of the ICTY’s Rules of Procedure and Evidence. To date, the ICTY has referred five 11 bis cases, involving nine accused, to the chamber for trial.

2. Managing the existing caseload

At this writing, eight national prosecutors and five international prosecutors work in the Special Department for War Crimes. In light of concerns regarding the existing staffing capacity to handle the current caseload, the department recently received approval to hire six additional national prosecutors.¹² Further, efforts are underway to hire another international prosecutor, a position that was originally allocated to the department but which remained vacant through 2006.¹³

The department has six prosecution teams (five regional prosecution teams and a sixth team to address allegations arising from the Srebrenica massacre).¹⁴ There are national and international prosecutors on each team.¹⁵ The pressure of the current caseload means that the national and international prosecutors on each team generally manage their own separate portfolio of cases. ¹⁶ Cases are assigned based on practical considerations, such as the language of the file. For instance, 11 bis cases tend to be assigned to international prosecutors, both because the supporting material for these cases is usually in English and a strong command of English is needed to facilitate communication and cooperation with the Office of the Prosecutor of the ICTY.¹⁷

There are some cases that by their nature and level of complexity foster regular and ongoing collaboration between the national and international prosecutor on each team. For example, in the Kravica case, which involves allegations of genocide relating to the Srebrenica massacre, the national and international prosecutors have been working very closely together in investigating and putting forward evidence against the 11 defendants.¹⁸

Effective collaboration between international and national prosecutors is important to build the capacity of national prosecutors to handle complex war crimes cases. Generally, collaboration between international and national prosecutors is not systematic and proceeds informally.¹⁹ Nonetheless, a number of national and international prosecutors interviewed by Human Rights Watch have characterized this collaboration as good to very good.²⁰ This can be attributed in part to the fact that the current complement of international prosecutors has made a two-year commitment to stay with the department.²¹ In addition to helping to develop relationships between national and international prosecutors, continuity in staffing assists in establishing the department’s institutional memory in handling challenges that arise in prosecuting complex war crimes cases. A strong institutional memory can promote efficiency in addressing these challenges effectively.

Under the transition strategy outlined by the Registry in October 2005, the phasing out of international prosecutors is scheduled to take place during the period of August 2006–August 2009.²² Indeed, a number of contracts of international prosecutors will expire during 2007 and 2008.²³ We have been informed of concerns about the possibility of losing these prosecutors upon expiry of their contracts and the implications of this loss for the functioning of the department.²⁴ Human Rights Watch shares these concerns.

We believe it is essential to adhere to the principles underlying the transition strategy to ensure Bosnian ownership over all organs of the War Crimes Chamber, including the Special Department for War Crimes. However, it may be necessary to adopt a flexible approach in terms of the extension of the contracts of the existing international prosecutors as considered necessary. Such an approach should still adhere to the overall timeframe established by the transition strategy—the end of involvement of all international staff by the end of 2009—but would allow for the retention of international prosecutors as necessary in the interim. This approach could in fact facilitate the seamless transition of the department to a fully national institution.

B. The Special Department for War Crimes’ case selection policy

There are literally thousands of war crimes cases emanating from the conflict, some involving multiple defendants, which have not yet been addressed.²⁵ Many of the defendants may be living outside of Bosnia and are therefore beyond the reach of Bosnia’s criminal justice system.²⁶ The Special Department for War Crimes—and the criminal justice system as a whole—is not in a position to handle all of these cases. These limitations emphasize the importance of developing and consistently applying a clear prosecutorial policy for the selection of cases and the manner in which these cases are prioritized. Developing such a policy can help maintain a sense of internal coherence in the work of the prosecution. Communicating to the public, to the greatest extent possible, the details of this policy can also help to manage the public’s expectations regarding the Special Department for War Crimes’ capacity to address war crimes cases. Further, establishing and publishing a clear policy for prosecutions in an ethnically polarized society like Bosnia can help insulate the department from allegations of bias that could otherwise undermine its credibility and effectiveness.

As mentioned above, in addition to those cases referred by the ICTY under Rule 11 bis, the Special Department for War Crimes has jurisdiction to select and prosecute its own cases initiated without the involvement of the ICTY. The department’s current strategy for the selection of such cases involves an assessment of whether a case is considered “highly sensitive.”²⁷ Other cases, including those considered “sensitive,” are handled by the cantonal and district courts as appropriate.

Factors used in assessing whether a case meets the threshold of “highly sensitive” include the nature of the crime alleged and the circumstances of the alleged perpetrator. For example, cases involving allegations of genocide, multiple murders, and persecutions on a widespread and systematic scale may result in a case being considered “highly sensitive.” Similarly, the department may pursue cases involving command responsibility and crimes committed by public officials still in office and law enforcement officials.²⁸ Once a case has been selected for prosecution, there may be other factors that affect its priority in terms of moving forward to indictment and/or trial, such as: whether additional investigations are necessary; difficulties in locating the suspect(s); the availability of witnesses; and the need to implement appropriate protective measures.

Human Rights Watch believes that to date the department has not adequately articulated to the public the criteria for case selection and their application, which has led to significant uncertainty regarding the department’s priorities. Some officials outside of the department expressed concern that there are no clearly defined criteria for the selection of cases.²⁹ Indeed, to one Bosnian official outside of the chamber, it appeared that the department did not have a strategy for addressing war crimes cases.³⁰ Others cited the “highly sensitive” threshold, but indicated that the public is unaware of how this standard is applied in the selection of cases.³¹ According to one civil society actor, without an explanation of how these criteria are applied they are meaningless to the public.³²

There is also the perception that the court is not handling enough cases involving “big fish” perpetrators, meaning high-ranking or otherwise influential defendants. ³³ This perception may be reinforced by the indictment of lower-ranking defendants by the department for trial before the chamber.³⁴ A staff member in the Special Department for War Crimes acknowledged that the reasons behind the department’s selection of certain cases may not be apparent to the public.³⁵

Of course, there may be reasons for the department to pursue cases against lower-ranking defendants; for example, there may be links to a case involving a higher-ranking defendant and/or it may be important for a wider prosecutorial strategy. Maintaining a flexible approach in selecting cases for prosecution can be sensible. However, the importance of maintaining such flexibility as a matter of prosecutorial policy must be clearly and consistently emphasized to the public, even in general terms, to avoid confusion regarding the department’s case selection priorities.

Staff members in the Special Department for War Crimes have acknowledged that the absence of a clearly articulated policy regarding case selection is problematic.³⁶ To an extent, it is inevitable that the public will have high expectations for what the court can achieve in bringing justice for the crimes committed during the war. However, the lack of clarity in the current prosecutorial strategy has fueled the development of unrealistic expectations by the public about what can and should be accomplished by the department–and the court–in addressing war crimes cases. ³⁷ These expectations cannot reasonably be satisfied, which has in turn led to considerable negative press concerning the department and the court overall.³⁸ For example, in the lead-up to Bosnia’s recent general elections, politicians in the Republic of Srpska questioned the objectivity of the department in its case selection process since more than 90 percent of cases before the chamber involved Serb defendants.³⁹ The department has been subject to negative press in the Federation as well.⁴⁰ Moreover, the lack of a clear strategy and the failure to manage expectations has resulted in the department being more vulnerable to pressure from outside organizations, such as victims’ groups, to select particular cases for prosecution.⁴¹

Human Rights Watch has been informed of an initiative within the Special Department of War Crimes to develop a strategy document that would clarify the standards used in the selection and management of cases.⁴² In terms of case selection, the proposed strategy document would provide more comprehensive criteria for setting the department’s priorities. For example, the document would contain general information about the standards used in deciding whether to open an investigation. Further, the document would include information about charging standards, specifically how the department measures legal standards against practical considerations in deciding whether to press charges against an alleged perpetrator of war crimes.⁴³

The seniority of the defendant and the gravity of the crime(s) alleged, together with other factors such as the availability of witnesses and the quality of evidence, would still play an important role in deciding whether to go forward. However, the strategy document would also articulate other factors for consideration, including the impact of a particular case on the community most affected by the crime(s) alleged and, where possible and appropriate, the extent to which the case at issue advances the development of domestic and international humanitarian law.⁴⁴ The strategy would therefore go beyond the existing criteria used in determining whether a case could be considered “highly sensitive.”

The strategy would also focus on establishing standards regarding the way in which prosecutors use the tools available to them in managing cases. For example, Bosnian criminal procedure allows for the use of plea agreements⁴⁵ and immunity⁴⁶ in criminal cases, but as the OHR introduced these tools to the Bosnian justice system through the adoption of the new Criminal Procedure Code in 2003, there is no prior context for their use in criminal proceedings. Also, there are no guidelines provided in the law regarding when these tools can and should be used in war crimes cases.⁴⁷

In complex war crimes cases, offers of plea bargains or immunity to lower-level suspects in exchange for testimony can be very useful in establishing the command responsibility of those in senior leadership positions. However, since the recipients of immunity or plea bargains may have themselves committed serious crimes, it may not be apparent to the public how the use of these tools could ever be considered appropriate. We believe it is essential to clarify the role of immunity and plea bargains in war crimes cases to avoid fueling negative public perceptions—including attempts by those outside of the court to manipulate the public—about their use.

The significant negative perceptions surrounding the department’s work as indicated above underscore the importance of developing a clear prosecutorial strategy for the selection and management of cases. Human Rights Watch therefore strongly urges the department to put forward a strategy document as a matter of priority. Further, to promote transparency, we encourage the department to publish general details of the strategy in a credible, concise document that avoids technical language: outlining, to the greatest extent possible, the department’s priorities and standards in an easy-to-understand public document can help the department better manage external pressure in the selection and management of cases. ⁴⁸ More importantly, a strategy can help temper the public’s expectations about what the criminal justice process can offer and could place the department in a better position to satisfy those expectations without sacrificing the quality of cases that are put forward. In this way, the department could increase confidence in the rule of law in Bosnia.

The development and publication of such a strategy document could also have a valuable impact on the way in which the cantonal and district courts handle war crimes cases. For example, outlining the factors governing the selection of war crimes cases at the national level can facilitate the development of a complementary strategy in the cantonal and district prosecutor’s offices. Similarly, the standards highlighted in the strategy for using important prosecutorial tools such as plea bargains, immunity, and protective measures can assist in the evolution of similar standards at the entity level. The strategy document could therefore encourage enhanced direct and indirect communication between the department and the cantonal and district court prosecutors and facilitate a more consistent approach in the prosecution of war crimes cases overall.⁴⁹

Finally, even with the refinement of the current criteria for case selection, their application could yield a larger number of cases than the department can reasonably handle in light of the numerous grave human rights violations committed during the war. The department may still be required to make difficult decisions regarding case selection due to resource constraints. In this regard, we wish to underscore the importance of effectively managing the department’s limited resources to support efforts to promote consistency in the way cases are selected and managed. ⁵⁰  

C. Investigations

1. Recent developments

In complex war crimes cases, effective prosecutions depend on effective investigations during all stages of case preparation and proceedings. Frequent contact between prosecutors and criminal investigators is essential to effectively manage investigations and build cases for prosecution. As outlined in our earlier report “Looking for Justice,” the War Crimes Unit (WCU) of the Bosnian State Investigation and Protection Agency (SIPA) has primary responsibility for conducting investigations in war crimes cases before the chamber.⁵¹

Human Rights Watch has been informed that the level and manner of cooperation between the WCU and the Special Department for War Crimes has improved significantly.⁵² For example, investigators are now in daily contact with prosecutors in the department.⁵³ There is also increased collaboration between officials in the WCU and prosecutors in the department to make improvements in the conduct of investigations.⁵⁴

However, the WCU’s effectiveness in conducting war crimes investigations continues to be undercut by the shortage of investigators to execute prosecutors’ requests.⁵⁵ SIPA is still critically understaffed, as it is only operating with 57 percent of its projected staff.⁵⁶ Efforts have been made recently to recruit additional staff. There are difficulties in attracting quality candidates in large part because, as identified in “Looking for Justice,” SIPA investigators are still not remunerated at a higher level than law enforcement officials in the entities’ Ministries of Interior.⁵⁷

There have also been inconsistencies identified in the training and experience of investigators, which can affect the progress of an investigation and overall prosecution. For example, some investigators take statements that lack precise language and sufficient detail, ⁵⁸ sometimes making it necessary to take additional statements. Further, some investigators, particularly those who are inexperienced, do not always realize when a witness has given an incriminating statement.⁵⁹ If the witness’s lawyer is not present when the statement is taken, the statement cannot be used in court. In addition, some WCU investigators rely too heavily on the prosecutor to direct every action required in an investigation, which slows down the investigative process.⁶⁰ This may be because under the previous criminal codes, prosecutors and investigators did not play as central a role in building a successful case for trial, as this was the responsibility of the investigating judge.

To address these shortcomings, some prosecutors have expressed their preference for working with certain investigators in the same case on an ongoing basis as a means of promoting continuity and efficiency in investigations. As such, they make requests to SIPA for the assignment of the same investigators, although these requests are not routinely satisfied.⁶¹ Officials in the WCU indicated that while consideration is given to an investigator’s previous work on a case, there are other factors in determining which investigator will be assigned to a case, including the investigator’s level of experience, workload, and overall capacity to handle the request.⁶²

We can appreciate the advantages of using the same investigators in a particular case as a means of ensuring the overall effectiveness of an investigation. However, satisfying all requests for specific investigators may not be possible, particularly in light of the administrative challenges stemming from the WCU’s current staffing shortage. Moreover, assigning specific investigators upon request does not address the broader issues underlying the uneven training and experience of investigators.

Human Rights Watch has been informed that the department is working more closely with SIPA to put in place a training program aimed at improving the skills of all investigators and informing them of the prosecution’s specific needs in taking statements. There has already been one meeting at the managerial level, and there are plans to create standards in taking statements for implementation at the officer level.⁶³ This training will likely be coordinated by the European Union Police Mission (EUPM).⁶⁴ The training may include some involvement by the department, but such involvement may not be possible in light of the current workload.⁶⁵ We urge the Special Department for War Crimes to participate in these trainings to the greatest extent possible to ensure that the weaknesses identified in taking statements are adequately addressed.

Further, we note that prosecutors have started providing background material to investigators on a more consistent basis.⁶⁶ Examples of background material include details about the crime alleged, a list of possible witnesses, suspects and/or names that may be relevant, and information about the type of details the prosecutor needs to prove certain elements of the case. Providing such material in advance can help a new investigator understand the history of an investigation, and can assist him or her in going beyond the immediate parameters of the prosecutor’s request to make further inquiries as appropriate. This improves the efficiency of investigations.⁶⁷ We welcome the development of this practice and encourage its continued and consistent implementation.

2. Promoting greater sensitivity toward witnesses

Many witnesses continue to face considerable trauma when recounting the details of the crimes committed against them and their families and the suffering they have endured. Further, since the end of the war, many witnesses have developed a sense of “witness fatigue” as a result of having to repeatedly provide details from their testimonies to law enforcement and other officials dealing with their cases. Sensitivity in dealing with all witnesses, and particularly those who have been victims of crimes committed during the conflict, is therefore essential to minimize trauma and preserve a victim’s dignity. The level of sensitivity of law enforcement authorities in their approach to witnesses who have suffered trauma may also have a direct impact on the level of cooperation and willingness of the victim to cooperate throughout an investigation and trial.

Officials in SIPA’s WCU have informed Human Rights Watch that they are cognizant of the difficulties faced by some witnesses in providing statements to investigators. To address issues relating to witness trauma and fatigue, the WCU encourages sensitivity by investigators in the manner in which questions are asked and the way witnesses are handled.⁶⁸ The WCU has also organized training sessions for investigators on appropriate interview techniques for dealing with witnesses who have lost their entire families.⁶⁹

However, at this writing, the WCU had not organized any formal training sessions on how to deal with victims of sexual violence.⁷⁰ Instead, officials indicated that investigators cooperate informally with nongovernmental organizations (NGOs) dealing with traumatized female victims in taking statements.⁷¹ Further, although there is only one female investigator, efforts are being made to recruit additional female investigators.⁷²

The lack of standardized training in dealing with victims of sexual violence may result in differential treatment between victims. While SIPA’s cooperation with NGOs is important in dealing with such victims, this cooperation presently operates on an ad hoc basis. Moreover, such cooperation cannot be a substitute for investigators themselves being sufficiently trained in approaching victims with sensitivity. Indeed, we have been informed by a representative of one NGO working with victims of sexual violence that her organization has received a number of complaints from witnesses about the WCU’s lack of sensitivity toward traumatized female victims of sexual violence.⁷³

We recommend putting in place a training program to improve the level of sensitivity used in working with female and male victims of sexual violence. Further, while recruiting additional female investigators is a positive development, these investigators must still be appropriately trained to ensure that they approach traumatized witnesses in a sensitive manner. Requiring adequate training for all investigators would help to ensure that victims are consistently treated with dignity and respect.

D. Regional cooperation

As outlined in “Looking for Justice,” a number of cases within the chamber’s jurisdiction involve victims, witnesses, and/or defendants who have relocated to other countries in the former Yugoslavia, namely Serbia and Croatia. The prosecution must therefore rely heavily on cooperation with the authorities in these and other states in order to obtain evidence, locate witnesses and, in some cases, arrest defendants in relation to proceedings before the chamber.⁷⁴ To that end the authorities in Bosnia, Serbia and Croatia continue to share evidence in war crimes investigations and proceedings in their respective jurisdictions. ⁷⁵

However, the situation with respect to defendants who are citizens of countries that do not permit the extradition of nationals remains unchanged. In particular, the ban on the extradition of nationals remains enshrined in the constitutions of Serbia and Croatia. While there is no such ban in the Bosnian constitution, it is not permitted under the Criminal Procedure Code.⁷⁶

In some war crimes cases it may be possible to transfer proceedings initiated in Bosnia to the jurisdiction where the defendant resides. This option is unavailable, however, when the underlying offense is punishable by more than ten years’ imprisonment and would therefore not apply to the most serious crimes committed during the conflict.⁷⁷ As a result, there is an “impunity gap” for those nationals who cannot be extradited and against whom proceedings cannot be transferred. In most cases, it is the direct perpetrators who benefit from this gap as opposed to senior leaders, many of whom have been tried by the ICTY.⁷⁸ Prosecution of direct perpetrators may resonate more profoundly with victims than the senior officials tried by the ICTY. This could make a significant contribution to the respect for the rule of law throughout the region.

The important consequences of bringing those responsible to justice for the serious crimes committed during the war underscore why the authorities in Bosnia, Croatia, and Serbia must take affirmative steps to address the legal obstacles for their prosecution. Human Rights Watch has been informed, however, that the political will to change the current situation—both for the transfer of proceedings and the extradition of nationals—in Bosnia, Croatia, and Serbia is lacking.⁷⁹ Ultimately, war crimes trials should take place where the crimes occurred. We therefore wish to emphasize that the transfer of proceedings should be considered a short-term measure since the logistics of maintaining close cooperation between authorities where a case has been transferred to ensure a fair and effective trial can be 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.

We strongly urge the authorities in Bosnia, Croatia, and Serbia to come to an agreement regarding the transfer of proceedings and ultimately the extradition of nationals in war crimes cases, provided that the death penalty will not be imposed, to ensure that defendants who have committed war crimes do not enjoy impunity simply by virtue of their citizenship. To that end, we look to the international actors, including the European Union, to similarly urge the authorities in Bosnia, Croatia, and Serbia to address this obstacle in regional cooperation as a matter of priority.