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I. Introduction

Since the end of the conflict in Bosnia and Herzegovina¹ more than a dozen years ago, the International Criminal Tribunal for the former Yugoslavia (ICTY) has made progress in trying many of the leading figures responsible for the crimes committed during the 1992-95 war. These crimes included widespread and serious crimes against civilians, prisoners of war, and civilian property. Killing, torture, rape, forcible displacement, and indiscriminate and deliberate attacks on civilian targets were commonplace. Though several key indictees still remain at large, the trials at the ICTY have sent a powerful message that leaders who are responsible for the commission of war crimes, crimes against humanity, and genocide must face justice for their crimes.

The ICTY, however, was not intended to “preclude or prevent” domestic trials for crimes under international law.² Indeed, by the time it completes its mandate, the ICTY will have tried a relatively small number of the perpetrators. At the same time, for reasons detailed in this report, domestic Bosnian efforts at ensuring legal accountability for the remaining perpetrators have made slow progress. As a result, many years after the conflict, several thousand complaints related to crimes committed during the war remain unresolved in Bosnia. These cases may involve extremely grave crimes and many people who are responsible for directly perpetrating atrocities. Victims of these crimes, and their families, have been waiting for more than a decade to see justice done. The international community made a commitment to victims to bring perpetrators of these crimes to justice when it created the ICTY. It is vital that authorities in Bosnia, as well as the international community, take the necessary steps to follow through on this commitment.

Trials for war crimes, crimes against humanity, or genocide have been held in Bosnia’s two entities: Republika Srpska (RS) and the Federation of Bosnia and Herzegovina (the Federation). But these trials before cantonal (in the Federation) and district courts (in Republika Srpska) have proceeded slowly in the years since the end of the war. This problem was in no small amount due to a lack of political will to try sensitive cases such as war crimes, crimes against humanity, or genocide, especially where perpetrators were members of the local majority group.³ By November 2005 (exactly a decade since the war ended), only two such trials had been completed in Republika Srpska. Progress on these cases in the Federation was much better but still insufficient to address the large number of outstanding cases in a reasonable timeframe.

For several reasons, this pace, in the justice systems of both entities, has begun to increase in recent years.⁴ To date, in Republika Srpska, prosecutors have brought a total of 18 indictments for crimes committed during the war, and district courts have rendered 7 verdicts, with 3 cases still currently underway.⁵ In the Federation, cantonal courts have decided a total of 144 verdicts, with 25 cases still in process.⁶

The War Crimes Chamber, created as part of the Court of Bosnia and Herzegovina (hereinafter State Court) in 2005, has played a significant role in this.⁷ In addition to successfully trying many cases, prosecutors in the Prosecutor’s Office of Bosnia and Herzegovina⁸ who practice before the War Crimes Chamber have played an important role in reviewing cases that can then be tried before cantonal and district courts. It is hoped that these recent developments toward more successful trials will help build the necessary political will in both entities to complete the task of bringing cases to trial for crimes under international law.

It is envisioned that while the War Crimes Chamber will try a significant number of high-profile cases, the cantonal and district courts will conduct the vast majority of cases for crimes committed during the war in Bosnia. Currently, the justice systems in both entities, including the cantonal and district courts and prosecutors’ offices, face serious obstacles in trying these cases. If these obstacles persist, there is a danger that a two-tiered justice system will solidify, with cases being effectively tried internationally and at the state level, but the cases in the entity justice systems being allowed to languish. This would create an unacceptable impunity gap for many perpetrators of grave crimes.

Many of these obstacles in the cantonal and district court systems are practical, such as:

• limited prosecutorial resources, including a lack of specialization among prosecutors working on trials for war crimes, crimes against humanity, or genocide and inadequate numbers of prosecutors and support staff;
• lack of specialization and expertise among defense attorneys; and
• lack of witness protection or witness support.

Other obstacles seemingly hinge more on political factors, such as:

• problems with the ability or willingness of police to investigate crimes and poor cooperation between police and prosecutors;
• application of differing legal codes in courts throughout Bosnia;
• failure to arrest and detain suspects and a lack of a framework for extradition with neighboring countries;
• failure by prosecutors to make use of available sources of evidence;
• failure by prosecutors and courts to cite and apply relevant international precedent, including the verdicts of the ICTY;
• lack of trust between some prosecutors and victims, exacerbated by insufficient outreach; and
• a need for further cooperation and communication between state and entity authorities.

Still others represent practical and political challenges, such as:

• a large number of unresolved case files; and
• a lack of specialized investigators responsible to prosecutors.

Based on research conducted for this report, Human Rights Watch believes that there are several essential steps that must be taken to ensure fair and effective trials for crimes in violation of international law in the Federation and Republika Srpska.

In regard to matters of resources and organization, the numbers of cantonal and district prosecutors must be increased and specialization must be allowed among prosecutors working on cases for war crimes, crimes against humanity, and genocide. Prosecutors’ offices must be given sufficient support personnel, such as associates and law clerks. Additional training should be held for judges, prosecutors, defense attorneys, and police on issues of the use of international law and the investigation of crimes under international law. Adequate facilities and staff must be provided to allow effective witness protection and support. Police reform efforts should take account of the need to screen and train police participating in investigations of crimes committed during the war.

In regard to work practices and cooperation, Bosnian and entity government officials must work together to find a way to harmonize the law applied in cases for war crimes, crimes against humanity, and genocide in different areas of the country. Prosecutors should consider seeking the arrest and detention of suspects where necessary. Prosecutors should make use of evidence available from sources such as the State Court, the ICTY, and nongovernmental organizations (NGOs). Prosecutors and courts should increase use of international law and respect the precedent of international tribunals such as the ICTY. Prosecutors, police, and others involved in these trials should make greater efforts to participate in and instigate outreach events in order to raise public awareness of trials and to build trust with victims. State and entity prosecutors should continue efforts to regularize contacts and to increase transparency regarding the status of investigations at the entity level and review of cases at the state level. Specialized investigators should be created within prosecutors’ offices working on cases for crimes committed during the war. A legal framework for extradition and case transfer must be completed and agreed with neighboring countries.

Ultimately, state and entity officials should work together to devise a meaningful national strategy to address the large number of complaints pertaining to crimes dating from the war.

These trials are a unique opportunity for Bosnia to provide a model of successful complementary prosecutions for crimes against humanity, war crimes, and genocide at the international, national, and local levels that could be emulated in other countries around the world dealing with the legacy of conflict and human rights crimes. If the challenges impeding the trials before cantonal and district courts are not addressed, however, many victims who have already waited a long time to see justice done for the crimes committed during the war may never do so. Many witnesses to these crimes have left Bosnia and some have died, and action must be taken quickly before the opportunity is lost. Allowing these cases to go unresolved could undermine, in the eyes of many victims, the hard-fought achievements made in the field of international justice for war crimes, crimes against humanity, and genocide. More broadly, it could undermine faith in the judicial system to handle all manner of cases, and undermine political stability in Bosnia.

Methodology

Interviews for this report were conducted by three members of the staff of Human Rights Watch in December 2007 in locations in both entities of Bosnia: Sarajevo, East Sarajevo, Banja Luka, Mostar, Bijeljina, Tuzla, and Pale. These locations were selected based on a number of criteria including the presence of engaged civil society groups locally and the activity or lack thereof in the prosecution of cases for crimes committed during the war. Brčko District was not included within the scope of this report for logistical reasons. Additional follow-up interviews were conducted by telephone and email by one of the researchers from New York between January and May 2008.

Human Rights Watch held interviews with 50 people representing state, cantonal, and district prosecutors; defense attorneys; state, cantonal, and district court officials; police and Ministry of Interior officials; the State Investigation and Protection Agency (SIPA); state, entity, and cantonal-level Ministry of Justice officials; staff of the Bar Association of Republika Srpska; both entities’ Judicial and Prosecutorial Training Centers; the Criminal Defense Support Section (OKO) of the State Court; the High Judicial and Prosecutorial Council; the liaison officers of the International Criminal Tribunal for the former Yugoslavia; and Bosnian civil society groups and victims’ groups. Interview subjects were selected based on their official role in the processing cases based on crimes from the war or on the recommendation of other professionals in the field or of civil society groups. Human Rights Watch also held additional informational meetings with staff of the Organization for Security and Co-operation in Europe (OSCE) Mission to Bosnia-Herzegovina and the United Nations Development Programme (UNDP). Interviews were generally with individual subjects, though occasionally in small groups. Interviews were conducted in Bosnian-Croatian-Serbian (BCS) with the aid of an interpreter or directly in English.

As not all interview subjects wished to be identified by name, interviewees are identified only by their institutional affiliation.

II. The Importance of the Trials before Cantonal and District Courts

The fact that the ICTY and the State Court of Bosnia and Herzegovina generally have jurisdiction over cases dealing with more senior perpetrators or more politically sensitive crimes does not mean that the crimes tried before cantonal and district courts are not very serious. In fact, for many victims, trials of people who physically committed the atrocities, rather than their leaders, may be of greater importance. Examples from recent cases before district and cantonal courts underscore just how serious these crimes are and how important it is that those who committed them face justice.

Mario Matić, a Croat, was convicted by the Mostar Cantonal Court of killing one unarmed prisoner and of seriously beating another while serving as a military police officer in the Bosnian Croat Army (HVO). According to the judgment, Matić approached a column of prisoners that included civilians and BiH army personnel. Referring to the prisoners by a derogatory slur for Bosniaks, he threatened to kill them all before beating a civilian, Vejsil Hajduk. He then ordered another civilian, Ismet Kovačević, out of the column and shot him to death.⁹

Milorad Rodić, a Serb, pled guilty to a number of offenses against civilians before the Sarajevo Cantonal Court. These included forcing his way into apartments inhabited by Bosniaks and in one instance raping one of the inhabitants at knifepoint as well as beating another.¹⁰

Fikret Smajlović, a Bosniak, was convicted in the Tuzla Cantonal Court of participating in numerous and severe beatings of detainees in the Batković camp, near Bijeljina. Himself a prisoner, Smajlović befriended the camp guards, who were Serbs, and was placed in a position of authority over other prisoners. In this capacity, he was involved in abusing prisoners on several occasions. He was convicted of beating several prisoners to death with wooden shafts, stones, and batons. He beat a captured soldier so severely that he fractured his vertebrae.¹¹

Romeo Blažević, a Croat, was convicted by the Mostar Cantonal Court of beating Bosniak prisoners with a braided whip and in one instance of wounding a prisoner in the head with the butt of his pistol. He was also found guilty of forcing a female prisoner to cross between enemy lines to retrieve the body of his brother; he threatened to decapitate her two children if she refused.¹²

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