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Witness Protection

The Importance of Witness Protection

The successful prosecution of war crimes cases depends on the availability of credible witnesses, which in turn requires that witnesses are confident that they can testify truthfully without fear of retribution.  Achieving accountability through national war crimes trials, therefore, requires measures to protect witnesses prior to, during, and after trials.  In some cases, effective witness protection requires a long-term witness protection program or resettlement in another country.

Current practice in the region in relation to witness protection leaves much to be desired.  In Serbia and Montenegro, the treatment of witness protection under the criminal procedure law is cursory and inadequate.⁷⁹  Serbia’s witness protection program does not provide for witnesses to change identities or residences.  Nor does it provide for the protection of the family members of witnesses.  Moreover, the government lacks funds for such measures.  Even in trials not related to war crimes, the lack of witness protection often causes witnesses to alter their testimony at trial.    

Croatia’s witness protection program is based on the most comprehensive legislation in the region, but it is too early to assess how the program is working in practice.  In 2003, the parliament enacted a comprehensive witness protection law, which entered into force on January 1, 2004.⁸⁰  The most recent report by the OSCE Mission in Croatia concludes that a “full witness protection scheme remains to be developed.”⁸¹  In Bosnia, the House of Representatives in the Bosnian parliament approved comprehensive witness protection legislation on September 23, 2004; the other chamber, the House of Peoples, had not yet endorsed the law.⁸²

Croatia’s penal code—akin to the codes in Federation Bosnia and Herzegovina and Republika Srpska, and unlike the penal code in Serbia—also sets out witness intimidation and tampering as criminal offenses.⁸³  However, the provisions outlawing this kind of obstruction of justice have not been used in connection with war crimes trials in the former Yugoslavia.   

Governments in the region should develop mechanisms to resettle witnesses in other countries, in cooperation with the international community, as a complement to effective in-country witness protection programs.  Many crimes will be impossible to prove unless former members of the military, paramilitary, or police units that perpetrated the crimes testify against their comrades.  The international community must undertake to facilitate the relocation of such witnesses, including arrangements for them to reside outside the former Yugoslavia.  

Ultimately, the small size of many Balkan states sets an objective limit to the usefulness of witness protection measures.  In the long run, the best defense against witness intimidation is the creation of a climate conducive to war crimes prosecutions throughout the Balkans, by developing a political consensus about the importance of war crimes prosecutions, as well as independent and professional legal systems.  Unfortunately, the actual climate is far from ideal.  It is crucial that the governments show leadership and speak clearly in favor of accountability.

Witness Protection in Practice

Human Rights Watch’s monitoring of recent war crimes trials in the Balkans indicates that the lack of adequate witness protection is hampering trials and forcing witnesses to take unnecessary risks.

The Ilijasevic Trial in Bosnia and Herzegovina

The Ilijasevic trial in Bosnia and Herzegovina makes clear that where witnesses share the same ethnicity as the accused they are often afraid or otherwise unwilling to testify in war crimes trials.  The three ethnic Croats who testified for the prosecution in the trial between December 2002 and October 2003 stated that they did not know the accused.  A former prison guard in the Croat-held Vares detention facility, testifying on March 25, 2003, even claimed that he did not know the name of any other guard who worked in the same shift with him in the prison.  

Trial observers and journalists from the area have repeatedly suggested to Human Rights Watch that fear of retribution prevented some Bosniac (Bosnian Muslim) witnesses in the Ilijasevic trial from telling the court all they knew and, in some cases, from coming forward at all.  A majority of the Bosniac witnesses in the trial are returnees to the locations mentioned in the indictment against Ilijasevic.  Although it is difficult to establish whether or why witnesses were unwilling to provide complete and accurate evidence, fear of retribution is certainly a plausible explanation.

The Sjeverin and Cvjetan Trials in Serbia

Witness protection also proved problematic in the Sjeverin and Cvjetan trials, both held in the Belgrade District Court prior to the establishment of the special war crimes chamber.

During the first stage of the Sjeverin trial, the prosecutor, the police, and the court improvised to achieve some degree of witness protection, but the proceedings highlighted a general need for more thorough witness protection mechanisms.

On January 21, 2003, the second day of the trial, a number of relatives of the victims testified.  On the third day of the trial, they informally expressed concern about their safety to nongovernmental trial monitors.  The state prosecutor learned of their concern, and during the afternoon he arranged for the Serbian police to accompany the relatives of the victims to their final destination in Serbia and, for those traveling to Bosnia, to the border.

The anxiety expressed by these witnesses may have been heightened by the fact that pursuant to Serbian criminal procedure law, the judge read the address of each witness before examining the witness.  Such disclosures unnecessarily expose witnesses to danger.⁸⁴

When a key witness for the prosecution was to testify on the fourth day of the Sjeverin trial, the state prosecutor asked in court that the session be closed for the safety of the witness.  The Criminal Procedure Act does not include witness safety among the grounds for closing a session.  Instead, the court had to invoke “public order” as the legal basis for closing the session.⁸⁵  The witness then testified in a session attended only by monitors from the OSCE and nongovernmental organizations.  The witness ultimately received twenty-four-hour police protection before, during, and after his testimony.  However, these remain ad hoc arrangements rather than measures taken pursuant to a witness protection program defined by law. 

The challenges in relation to vulnerable witnesses were illustrated during the trial of Sasa Cvjetan before the Belgrade District Court.  In July 2003, four Kosovo Albanian children testified in the trial.  The children gave evidence about the Serbian policemen who shot their mothers, brothers, and sisters after lining them up against the wall of a small house.  Since Serbia has no witness protection legislation or experience in this field, ad hoc arrangements were made to facilitate the children’s testimony.  The arrangements were developed by the Humanitarian Law Center in conjunction with the War Crimes Investigation Unit of the Serbian Ministry of Internal Affairs.

Specifically, it was agreed with the children’s fathers, a child psychologist, and the judge that all security personnel would be in civilian clothes, that they would include two members of the multi-ethnic police force from Presevo and Bujanovac (a region in southern Serbia to the east of Kosovo with a large ethnic Albanian population), and that no marked police cars would be used.  The judge instructed a local child psychologist to interview the children to evaluate their ability to testify.  Additionally, the protection team accompanied the witnesses around the clock.⁸⁶  

A new Serbian law on war crimes trials, adopted on July 1, 2003, contains several provisions on protection in the courtroom, including testimony via video conference link and the protection of personal information relating to the witness or victim.  The law also provides for the creation of a special section in the Belgrade District Court responsible for carrying out activities related to the protection of witnesses and victims.  However, Serbia and Montenegro still lacks comprehensive legislation to address witness protection before, during, and after trials.

The Norac, Lora, and Paulin Dvor Trials in Croatia

All major war crimes trials in Croatia against ethnic Croat indictees—the Norac trial before the county court in Rijeka (June 2001 – March 2003), the Lora trial before the county court in Split (June – November 2002), and the Paulin Dvor trial before the county court in Osijek (June 2003 – April 2004)—suffered from inadequate witness protection.

The Norac trial, named after one of four co-accused in the case, dealt with the murder of fifty civilians near Gospic in 1991, most of them ethnic Serbs.  The president of the court stated during the trial that witnesses in the trial were receiving anonymous threats.  He remarked that it was “very difficult to undertake any measures of adequate protection of witnesses from possible threats.”⁸⁷

The Lora trial dealt with the torture and killing of Serb civilians in 1992 in the Lora military prison in Split.  Out of fear, a number of key witnesses—Lora survivors who now live in Serbia or in Bosnia—did not appear in court.  Several witnesses stated at the trial that they had been threatened and, therefore, could not testify freely.⁸⁸  All eight accused were acquitted due to lack of evidence. 

In the Paulin Dvor trial, which began in June 2003, two former Croatian army members were charged with the December 1991 killing of nineteen Serb civilians in the village of Paulin Dvor.  During the investigation, two witnesses gave detailed accounts of the crimes and the perpetrators; another witness contacted the public prosecutor one month after the beginning of the trial with important information corroborating the charges.  All three, however, drastically changed their statements when they appeared in the courtroom, failing to provide any information about the identity of the perpetrators.  The most plausible explanation for the change in testimony is that the witnesses feared for their safety, which the inadequate witness protection mechanisms used by the Croatian police and courts could not help eliminate.