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VII. Witnesses

Because of these numerous difficulties in obtaining physical evidence for cases for crimes committed during the war, witness testimony is often the only evidence available to prosecutors in these cases.¹²⁶ Witness intimidation and fatigue, as well as a lack of information on the role of witnesses in the judicial process, impair the ability and willingness of victims to testify at trial. Authorities need to fulfill their obligation to provide adequate witness protection and support services in order to facilitate greater witness participation in trials. While it is true that fulfilling these obligations will require commitment of additional resources, the failure to fulfill them could impede fair trials and the rights of victims.

A. Lack of witness protection services

In a post-conflict society such as Bosnia, political tensions remain high and many victims are still suffering from the trauma that they experienced during the war. In order to foster victim participation in trials, it is necessary that victims have faith in the judicial system, be willing to testify, and feel safe from retribution for their testimony. To ensure this, witnesses and their families must be protected before, during, and after trials. In rare cases, this may require long-term protection or even resettlement to other countries.

As previous Human Rights Watch reports have noted, it is difficult to obtain confirmed information on incidents of witness intimidation during trials in Bosnia’s entity court systems, but experience with trials for war crimes, crimes against humanity, and genocide elsewhere in the former Yugoslavia shows that intimidation is frequent in this context.¹²⁷ The sensitive nature of these trials may leave witnesses vulnerable to intimidation or retribution from hostile members of the public. While some officials acknowledged that they had received no reports of witness intimidation that could be prosecuted, at least one prosecutor asserted that this was due to the difficulty of proving this crime, not the absence of intimidation.¹²⁸

Indeed, perception of dangers to witnesses, whether substantiated or not, came up frequently during interviews with victims, prosecutors, and others conducted by Human Rights Watch. Witnesses who have returned to their pre-war homes in areas where they are members of a minority group may be additionally fearful and unwilling to testify.¹²⁹ Many of our interviewees said that victims often did not trust local police, in either entity, to provide adequate protection for them if they were to testify as witnesses, suspecting them of at least sympathizing with war criminals and at times actually employing them.¹³⁰

The entity authorities’ obligation to provide the tools necessary for witness protection is based in Bosnian law and does not hinge on the absence or availability of evidence of intimidation.¹³¹ Both Republika Srpska and the Federation of Bosnia and Herzegovina have legal provisions for witness protection and support, but in most instances these laws exist only on paper. State Court officials told Human Rights Watch that in at least two cases, the State Court took over jurisdiction from, or refused to transfer jurisdiction to, entity courts specifically because of the lack of adequate witness protection or support.¹³²

Courts lack almost all modern equipment that would be required to protect the identities of witnesses, such as video links or software to disguise witnesses’ voices.¹³³ The poor physical state of many of the courts is a symptom of damage from the war and of neglect that predates the war.¹³⁴ One official likened the facilities of the State Court to a “spaceship” compared to those of the entity courts.¹³⁵ The only exception to this is the new courthouse for the East Sarajevo District Court, funded in large part by the Norwegian government, which will, according to its staff, feature facilities for witness protection.¹³⁶

But this lack of technological capacity can only partially excuse the lack of witness protection at cantonal and district courts. Witness protection may require this technology in only a small percentage of cases. In many others, the needs of witnesses could potentially be met by the use of much simpler means, such as erecting a privacy screen around a witness while he or she testifies, assigning pseudonyms, or by closing the courtroom during short periods of a trial where sensitive information is disclosed. State authorities have taken several steps toward providing witness protection that could serve as a model for district and cantonal authorities.¹³⁷

In most cases, district and cantonal authorities are not taking such steps to protect witnesses in sensitive trials.¹³⁸ The only protective measure for shielding witness identity suggested by entity authorities during Human Rights Watch’s investigation was to allow witness testimony to be read into evidence, rather than requiring live testimony.¹³⁹ However, whatever measures are adopted to protect witnesses should always respect the overall right to a fair trial, and the option least restrictive of that right should be followed.¹⁴⁰ This includes the right of the defendant to a public hearing and to examine, or have examined, the witnesses against him or her.¹⁴¹ Testimony being read into evidence rather than being delivered live and subject to cross-examination is, therefore, problematic. Similarly, any use of closed sessions of a trial should be limited, as holding trials in secret can undermine the right to a fair trial for defendants and impede public awareness of trials.

In Mostar, some NGOs and victims’ groups reported that victims testifying at trials for crimes committed during the war were sometimes seated in the same waiting rooms as the defendants’ families. For witnesses preparing to testify about traumatic incidents, this is a very problematic arrangement.¹⁴² Civil society representatives in Prijedor noted that witnesses often had to travel by bus to testify at court, often alongside friends and family of the accused.¹⁴³ Authorities in Sarajevo canton lamented the lack of a separate entrance for victims, which could allow them to avoid unwanted exposure when entering the courthouse via the main entrance.¹⁴⁴

In cases where more modern witness protection facilities are needed to meet the needs of witnesses, district and cantonal authorities should make use of the facilities that exist at the State Court. State Court personnel who spoke with Human Rights Watch indicated that State Court facilities could be shared with cantonal and district courts and prosecutors.¹⁴⁵ Cooperation between state and local authorities in this area would help cantonal and district authorities live up to their legal obligations to witnesses.

Additionally, entity and national authorities should work to secure the needed funding to bring the physical premises of cantonal and district courts up to the standard needed to protect witnesses. The HJPC has already conducted an extensive needs assessment of the cantonal and district courts which could be implemented relatively quickly given political will and funding.¹⁴⁶

Even with greater commitment to witness protection before and during trial, witnesses and their families may still require protection after trial. In a small number of cases, this may entail relocation.Several people who spoke to Human Rights Watch expressed skepticism at the ability of witnesses to relocate safely within Bosnia. They noted that Bosnia is a small country and that within communities it is very difficult for people to remain anonymous. Where relocation outside of Bosnia is required to protect witnesses and their families, other countries will need to assist.¹⁴⁷ Experience with this issue at the State Court, however, indicates that other countries may often be unwilling to assist with the relocation of witnesses and their families.¹⁴⁸

B. Lack of witness support programs

Many witnesses in cases of war crimes, crimes against humanity, or genocide will require services other than protection to participate in trials. Many witnesses cited as barriers to participation aspects that are inherent to the process. Some of these barriers are practical: witnesses in some cases have been asked to pay their own transportation to court in order to testify.¹⁴⁹ Others are more personal and require expert attention. Some victims’ groups cited the stigma that can attach to victims of sexual violence in traditional communities. Additionally, the experience of cross-examination, where witnesses may face harsh questioning and have the veracity of their testimony challenged, was cited by at least one victim as a reason not to testify.¹⁵⁰ Many victims are reticent to speak of wartime experiences at all, preferring simply to move on with their lives.¹⁵¹ All of these barriers are issues that witness support professionals could help address. Authorities need to take steps to fulfill their legal obligations to provide access to psychological and other support services so that witnesses have an easier time participating in trials.

In the absence of such services, prosecutors are left to work with witnesses for whom recounting past events may be extremely difficult or even traumatic. This can not only be devastating for witnesses, but can hamper investigations as well. One prosecutor recounted the example of a case that involved witnesses who, as young children, witnessed the murder of their families. Even with extensive support services, it is extremely difficult to speak about these events now that these individuals are adults.¹⁵² For a prosecutor untrained in dealing with the needs of such witnesses, it may be nearly impossible to build enough trust to obtain evidence necessary to the case. Witness support services are crucial in such situations. Some prosecutors noted that the prosecutors who work on these cases themselves had sometimes also become traumatized by repeating such interactions.¹⁵³

Witness support services have been provided by the ICTY, the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone, and the Bosnian State Court, and experience has shown that these services are essential to enabling witness participation.¹⁵⁴ These witness support offices can help coordinate the practical needs of witnesses, including arranging for transportation, shelter, and food, and can also arrange counseling services that many victims need or desire in order to testify.

However, almost no witness support services are available to witnesses testifying before the cantonal and district courts. In theory, the entity governments should provide counseling and other support services to victims, including those who testify at trials, but, in most cases, the relevant ministries do not fulfill this obligation.¹⁵⁵ Medical fees can sometimes pose a barrier to obtaining needed services elsewhere, especially for uninsured victims.¹⁵⁶

District prosecutors in Banja Luka have begun to address this shortcoming in conjunction with the NGO Izvor. Izvor helps to facilitate the participation of witnesses at trial by providing funding for and assistance with transportation to court and some counseling services by private doctors. This assistance is made possible only by international funding rather than by responsible government organs.¹⁵⁷ The international community and the national and entity governments should prioritize the funding of these crucial services.

Another exception exists in Tuzla, where the non-profit organization Vive Žene has stepped in to fill the gap in victim support services. Vive Žene signed an agreement with the Office of the Prosecutor in Tuzla canton to provide services to victims whose testimony is sought in connection with trials.¹⁵⁸ While this arrangement is beneficial to victims and prosecutors, both Vive Žene and the Office of the Prosecutor expressed frustration that Vive Žene was receiving no compensation for taking on responsibilities that ought to be fulfilled by the state.¹⁵⁹ Additionally, Vive Žene expressed fears that their cooperation with the Office of the Prosecutor posed a risk of interfering with their primary mission of assisting victims of war and that this new role could compromise their public image of neutrality.¹⁶⁰

Indeed, other NGOs expressed similar concerns that witnesses who have received services from private, nongovernmental organizations ran a risk of being accused of having had their testimony coached by these organizations when testifying at trial.¹⁶¹ This adds further weight to the argument that the state should fulfill its role to provide support services to victims.

C. Witness fatigue

Many witnesses have testified at numerous different courts, including the ICTY and the State Court, and suffer from “witness fatigue.” This fatigue can be compounded if courts receiving cases investigated in other entity jurisdictions must reinterview witnesses.¹⁶²

A dozen years after the end of the conflict, many witnesses have died or emigrated, and the recollections of witnesses who remain are less sharp and therefore less useful to prosecutors.¹⁶³ The problems with witness testimony engendered by the passage of so many years may in part explain the frequent reports by prosecutors that witnesses change their testimony from that which they originally gave.¹⁶⁴

D. Building trust between prosecutors and victims

In part because of the issues noted above, an atmosphere of mutual suspicion and mistrust exists between many prosecutors and victims which hampers cooperation on politically sensitive prosecutions, especially war crimes, crimes against humanity, and genocide. One NGO representative told Human Rights Watch that because many victims blame the courts and prosecutors for inaction on these cases and because there are no support services available to facilitate participation, victims often refuse to participate as witnesses.¹⁶⁵ Additionally, one NGO asserted that many victims lacked information and knowledge of the workings of the court system and believed that prosecutors were capable of bringing indictments without witness participation.¹⁶⁶

Witnesses’ lack of participation fuels resentment among some prosecutors, with one prosecutor going so far as to assert that witnesses change their testimony due to bribes from defense attorneys.¹⁶⁷ It is imperative that steps be taken to combat this lack of trust so that prosecutors and victims can achieve the common goal of successfully prosecuting crimes committed during the war.

Providing adequate witness support and protection services would go some of the way to overcoming this, but other steps are also needed. Outreach is also essential to this.¹⁶⁸ Prosecutors who have been able to effectively use witness testimony in prosecutions of war crimes, crimes against humanity, or genocide cite repeated, sustained contact with witnesses as a key tool to building trust and to overcoming suspicion, especially across ethnic lines.¹⁶⁹ Training for prosecutors, judges, defense attorneys, and police is also essential to making participation easier for witnesses. Trainings on working with traumatized witnesses by the Judicial and Prosecutorial Training Centres in both entities have been cited by attendees as helpful in overcoming some of these challenges.¹⁷⁰ A concerted effort by the government and donors must be undertaken to enable these steps to be taken. Building trust between prosecutors, victims, and potential witnesses is essential to the success of future cases for crimes under international law.