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VI. Evidence

A. Difficulties in the use of evidence from the war period

Human Rights Watch has previously noted that evidence from the war period frequently contains little information on which indictments can be based. Furthermore, evidence of war crimes, crimes against humanity, or genocide was in some cases destroyed by local police.101 Problems with evidence dating to this time exist in both entities.

Evidence of crimes in violation of international law taken during the war was often based on national or ethnic identity and aimed at establishing political responsibility for the conflict by an opposing side.102 Thus, even had more of this evidence survived, it is questionable whether it would be useful to prosecutors today.103 Prosecutors in both entities told Human Rights Watch that evidence from the time of the war is so politicized as to be of little value. Complaints lodged at that time sometimes name an entire military unit as a perpetrator and contain little of the specific information, such as ballistics or autopsy reports or military records, that could provide the basis for an indictment.104 Additionally, some prosecutors asserted that evidence gathered in accordance with older criminal procedure codes has at times been ruled inadmissible due to inconsistencies with the law as it now stands.105

B. Evidence sharing with the State Court

These difficulties in obtaining evidence make cooperation with other evidentiary sources especially important. One such source could be the State Court, whose War Crimes Chamber handles many cases related to cases in the entity systems. Currently, evidence sharing exists between the State Court and entity courts, but it is informal and entity courts do not have access to the State Court’s evidence database.106 A state prosecutor told Human Rights Watch that in one instance, state prosecutors became aware only by chance that a case overlapping with one of their own was being investigated by entity authorities.107

Plans are being considered to amend the applicable law to allow the transfer of new cases from the State Court to entity courts during the investigative phase, as well as to divide jurisdiction in specific cases between state and entity courts, with high-level defendants tried at the State Court and lower-level defendants at entity courts. If adopted, these changes would require increased cooperation and sharing of evidence.108 More formalized evidence sharing mechanisms would facilitate this. This could be realized by allowing access to state prosecutors’ evidence by cantonal and district prosecutors or by creation of a centralized body to store and organize evidence related to crimes committed during the war.109

C. Use of ICTY evidence

As cantonal and district courts and prosecutors’ offices increasingly gain access to networked computers, priority should be given to enabling access to the ICTY’s Evidence Disclosure Suite and Judicial Database.110 Cantonal and district prosecutors still do not have access to these, despite previous expressions of interest by state prosecutors in facilitating this.111

Even without this technology, a small number of prosecutors have taken advantage of the ICTY liaison offices in Bosnia to request the use of ICTY evidence.112 Officials in the liaison office have expressed eagerness to collaborate with cantonal and district prosecutors but report almost no requests for cooperation until this point.113 The liaison offices have been active in outreach, which will hopefully increase awareness of and interest in their services, but prosecutors should also be more proactive in seeking this cooperation. In some instances, hostility toward the ICTY as an institution may prevent some prosecutors from seeking the services of the liaison offices. Some even questioned whether ICTY evidence would be admissible under domestic law.114 Most prosecutors agreed, however, that this evidence would be useful and some cited it as a key way to obtain evidence that may be otherwise hard to obtain from government agencies.115

D. Use of NGO evidence

NGOs could be another valuable source of evidence for the prosecution of war crimes, crimes against humanity, and genocide. Many local NGOs have been actively compiling evidence on the identities of victims and perpetrators, and victims’ groups often have contacts with people who could provide witness testimony about crimes committed during the war. It is true that NGOs are generally not trained in criminal investigation, and some may have been influenced by political concerns. Evidence gathered by them may be considered hearsay, for example, and therefore not admissible at trial. However, greater cooperation could generate valuable leads that prosecutors could refine prior to trial, and cooperation would also help to build trust between prosecutors and victims.

Some NGOs have undertaken specific initiatives to compile, and make accessible, information on crimes committed during the war. The organization Savez Iogoraša, for example, recently unveiled a plan to create a centralized, searchable database that would allow prosecutors to cross-reference victim or perpetrator names and nicknames in order to locate further evidence.116 The Research and Documentation Centre (RDC), in Sarajevo, has already completed an extensive database of information on crimes committed during the war, which also features a search feature.

However, while RDC reports good cooperation with state prosecutors, it has been contacted only once by a cantonal or district prosecutor to assist in gathering evidence for a case.117 Similarly, the Center for Civic Initiatives, an NGO involved in issues related to trials for crimes committed during the war, also reported that state prosecutors had sought their assistance in locating potential witnesses, while cantonal and district prosecutors had not.118

There are some exceptions to this. For example, prosecutors in Banja Luka district cooperate with the NGO Izvor to locate and facilitate some medical, psychological, and practical support for witnesses, and prosecutors in Tuzla Canton work closely with the NGO Vive Žene (see Witnesses).119

In other areas however, such as Bijeljina, there is a distinct lack of trust and cooperation between prosecutors and local NGOs. District prosecutors there criticized the quality of evidence provided by local NGOs and questioned whether a nongovernmental organization should play a role in gathering evidence at all.120

Prosecutors and NGOs need to take steps to further their cooperation. This will require greater efforts by prosecutors, but also an acknowledgement by NGOs of their limited role and that not all evidence of war crimes, crimes against humanity, and genocide can be used to form an indictment without further work. Nonetheless, cooperation in some districts and cantons, as well as at the State Court, show that information from NGOs can form a useful basis from which prosecutors can further investigate.

E. Additional concerns regarding sources of evidence

Several prosecutors, especially in Republika Srpska, noted difficulties obtaining documents from government archives, such as military records, that would enable them to prove command chains and to establish which military units were stationed near crime scenes at the times that crimes were committed.121 While not all interview subjects felt that this information was necessary, state prosecutors also noted that requests for records from government archives are difficult to obtain and urged greater ease of access by prosecutors.122

Prosecutors also have limited access to use of DNA evidence. A DNA analysis laboratory was recently opened in Banja Luka, and some training has been provided in the use of this evidence.123 The courts in the Federation do not have a dedicated DNA analysis laboratory, and instead rely on the facilities of the International Commission on Missing Persons, whose continuing work on other important aspects of its mandate means that it cannot always respond quickly to prosecutors’ requests.124 Some interview subjects questioned the necessity of DNA evidence to solve cases, but one state prosecutor noted that while DNA evidence is not necessary in every case to establish guilt, it is extremely useful in establishing the fate of victims.125



101 Human Rights Watch, A Chance for Justice, p. 28.

102 Human Rights Watch interview with staff of the Mostar Canton Prosecutor’s Office, Mostar, December 17, 2007; Human Rights Watch interview with staff of the Bijeljina District Prosecutor’s Office, Bijeljina, December 10, 2007.

103 Human Rights Watch interview with Bosnian civil society representative, Bijeljina, December 10, 2007.

104 Human Rights Watch interviews with staff of the Mostar Canton Prosecutor’s Office, Mostar, December 17, 2007; Human Rights Watch interviews with staff of the Sarajevo Canton Prosecutor’s Office, Sarajevo, December 21, 2007; Human Rights Watch interviews with staff of the East Sarajevo District Prosecutor’s Office, East Sarajevo, December 21, 2007.

105 Human Rights Watch interview with staff of the East Sarajevo District Prosecutor’s Office, East Sarajevo, December 21, 2007; Human Rights Watch interview with staff of the Sarajevo Canton Prosecutor’s Office, Sarajevo, December 21, 2007.

106 Human Rights Watch interview with staff of the Special Department for War Crimes of the Prosecutor’s Office of BiH, Sarajevo, December 4, 2007.

107 Human Rights Watch telephone interview with staff of the Special Department for War Crimes of the Prosecutor’s Office of BiH, April 1, 2008.

108 Human Rights Watch interview with staff of the Special Department for War Crimes of the Prosecutor’s Office of BiH, Sarajevo, December 19, 2007; Human Rights Watch interview with staff of the Office of the Prosecutor of BiH, Sarajevo, December 20, 2007. However, state prosecutors later told Human Rights Watch that this specific plan had been stalled due to concerns about progress on existing investigations in the entity systems. Human Rights Watch telephone interview with staff of the Special Department for War Crimes of the Prosecutor’s Office of BiH, April 1, 2008.

109 Human Rights Watch interview with staff of the Special Department for War Crimes of the Prosecutor’s Office of BiH, Sarajevo, December 19, 2007.

110 The Evidence Disclosure Suite contains all non-confidential material entered into evidence in cases before the ICTY, and the Judicial Database consists of non-confidential ICTY orders and decisions as well as judgments.

111 Human Rights Watch, A Chance for Justice, p. 32; Human Rights Watch interviews with staff of the East Sarajevo District Prosecutor’s Office, East Sarajevo, December 21, 2007; Human Rights Watch interviews with staff of the Mostar Canton Prosecutor’s Office, Mostar, December 17, 2007; Human Rights Watch interviews with staff of the Prosecutor’s Office of Republika Srpska, Banja Luka, December 14, 2007.

112 Human Rights Watch interview with staff of the East Sarajevo District Prosecutor’s Office, East Sarajevo, December 21, 2007.

113 Human Rights Watch interview with staff of the ICTY, Sarajevo, December 4, 2007.

114 Human Rights Watch interview with staff of the Banja Luka District Prosecutor’s Office, Banja Luka, December 13, 2007

115 Human Rights Watch interviews with staff of the Tuzla Canton Prosecutor’s Office, Tuzla, December 11, 2007; Human Rights Watch interviews with staff of the Sarajevo Canton Prosecutor’s Office, Sarajevo, December 21, 2007; Human Rights Watch interviews with staff of the Prosecutor’s Office of Federation BiH, Sarajevo, December 7, 2007.

116 However, this will not be ready until 2012. Human Rights Watch interview with Bosnian civil society representative, Sarajevo, December 18, 2007.

117 Human Rights Watch interview with Bosnian civil society representative, Sarajevo, December 4, 2007.

118 Human Rights Watch interview with Bosnian civil society representative, Mostar, December 17, 2007.

119 Human Rights Watch interviews with staff of the Banja Luka District Prosecutor’s Office, Banja Luka, December 13, 2007; Human Rights Watch interviews with staff of the Tuzla Canton Prosecutor’s Office, Tuzla, December 11, 2007; Human Rights Watch interview with Bosnian civil society representative, Tuzla, December 11, 2007; Human Rights Watch telephone interview with Bosnian civil society representative, April 3, 2008.

120 Human Rights Watch interview with staff of the Bijeljina District Prosecutor’s Office, Bijeljina, December 10, 2007; Human Rights Watch interview with Bosnian civil society representative, Bijeljina, December 12, 2007.

121 Human Rights Watch interview with staff of the East Sarajevo District Prosecutor’s Office, East Sarajevo, December 21, 2007; Human Rights Watch interview with staff of the Bijeljina District Prosecutor’s Office, Bijeljina, December 10, 2007.

122 Human Rights Watch interview with Bosnian civil society representative, Banja Luka, December 13, 2007; Human Rights Watch interview with staff of the Special Department for War Crimes of the Prosecutor’s Office of BiH, Sarajevo, December 19, 2007.

123 Human Rights Watch with staff of the Centre for Judicial and Prosecutorial Training of the Republika Srpska, December 13, 2007.

124 Human Rights Watch interview with staff of the Prosecutor’s Office of Federation BiH, Sarajevo, December 7, 2007; Human Rights Watch interview with staff of the Special Department for War Crimes of the Prosecutor’s Office of BiH, Sarajevo, December 19, 2007.

125 Human Rights Watch interview with staff of the Sarajevo Canton Prosecutor’s Office, Sarajevo, December 21, 2007; Human Rights Watch telephone interview with staff of the Special Department for War Crimes of the Prosecutor’s Office of BiH, April 1, 2008.


July 2008

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