War crimes prosecution in Bosnia and Herzegovina (1992-2002): An analysis through the jurisprudence of the Human Rights Chamber

Journal of International Criminal Justice

Volumn 4, Issue 2, 2006, Pages 258-282

  Garms, Ulrich ^a   Peschke, Katharina ^a  

^a Registry of the Human Rights ^*  (Bosnia and Herzegovina)

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[No Author keywords available]

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EID: 33744467699     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql015     Document Type: Article

References (110)

1. For the sake of brevity, the term 'Bosnia' will be used in the following to refer to the State Bosnia and Herzegovina. When referring to institutions of the State Bosnia and Herzegovina, however we will use the abbreviation 'BiH', e.g. in 'the BiH Constitutional Court'. Under its Dayton Constitution, which is included in the Dayton Peace Agreement as Annex 4, Bosnia and Herzegovina is composed of two federal 'Entities', the Federation of Bosnia and Herzegovina (Federation of BiH) and the Republika Srpska (for which we also use the acronym RS). The BiH Constitution, which in Art. III.3.a reserves to the Entities 'all governmental functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina', does not provide for any military or police forces, prosecution service or judiciary of the State BiH, except for the Constitutional Court of BiH. Beginning with the creation of a State Border Service (in January 2000) and the enactment of a Law on the Court of BiH in December 2000, however, law enforcement and judicial institutions at the level of the State BiH have gradually been put in place (without any amendment to the written Constitution).
2. See the decision of the Human Rights Chamber for BiH ('the Chamber') in Ivanović v. Federation of BiH (Case No. CH/98/548), 6 July 2000, § 10, Decisions July-December 2000. The decisions of the Chamber are available online at www.hrc.ba (visited 17 April 2005).
3. SC Res. 808, 22 February 1993, and SC Res. 827, 25 May 1993.
4. See subsequent note 101 and accompanying text.
5. For the sake of brevity, the term 'war crimes' will be used to refer not only to war crimes, but also to crimes against humanity and genocide, unless the distinction between war crimes, crimes against humanity and genocide is of specific significance in the context.
6. International Crisis Group, War Criminals in Bosnia's Republika Srpska: Who Are the People in Your Neighbourhood?, ICG Balkans report No 103, 2 November 2000, available at www.icg.org (visited 19 February 2005).
7. The most comprehensive research on this matter is contained in the Organization for Security and Cooperation in Europe (OSCE) Mission to Bosnia and Herzegovina's March 2005 Report: War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina. Progress and Obstacles, available at http://www.oscebih.org/documents/1407-eng.pdf (visited 10 April 2005)(hereinafter the 'OSCE Report'). The overlap between the highly informative OSCE Report and the present article, however, is only partial as the OSCE Report focuses on proceedings that took place since the end of 2003, while we are concerned primarily with the 10-year period 1992-2002. We have not detected any contradictions between our factual findings regarding this earlier period and the OSCE Report. Because the OSCE Report confirms and integrates the information and the analysis we provide in so many respects, we only have inserted references to it where, in our opinion, they are particularly relevant.
8. An indication of the number of persons potentially subject to investigation and prosecution for war crimes in Bosnia is given by the fact that the ICTY's Rules of the Road Unit (cf. 2.A. of this article) received criminal files against a total of 5,789 persons suspected of war crimes (see OSCE Report, supra note 7, at 6).
9. While reliance on the Chamber cases to examine the issue of domestic prosecution of war crimes in Bosnia from 1992 to 2002 might at first glance appear to give our analysis an anecdotal character, comparison with the OSCE Report (supra note 7) shows that in fact the Chamber decisions offer both a quantitatively and qualitatively representative picture of our subject.
10. Halilović v. Republika Srpska (Case No. CH/97/57), 7 November 2003, Decisions July-December 2003.
11. ICTY Office of the Prosecutor, Procedures and Guidelines for Parties for the Submission of Cases to the International Criminal Tribunal for the Former Yugoslavia Under the Agreed Measures of 18 February 1996, on file with the Chamber. On the Rules of the Road procedure, see also the OSCE Report, supra note 7, at 5.
12. The Supreme Court of the Federation clarified in a judgment that the Rules of the Road apply as domestic law in the Federation and that a violation of the Rules of the Road may invalidate subsequent procedural steps, including a trial (judgment of 28 May 1998 in the case of D.B., quoted in Chamber's judgment in V.Č. v. BiH and the Federation of BiH (Case No. CH/98/1366), 9 Maruh 2000, §39, Decisions January-June 2000).
13. As to the Federation Supreme Court see supra note 12; for the Chamber, see V.Č., supra note 12, §62-83.
14. In addition to the authorities' unwillingness to comply with the Rules of the Road (cf. discussion of the V.Č. case in part 2.C. subsequently), the failure to respect the agreement may also be due to the fact that the Rules of the Road were never published in the Bosnian official gazettes, and only belatedly disseminated among the prosecutors and investigating judges (OSCE Report, supra note 7, at 48).
15. See e.g. Rizvić and others v. Federation of BiH (Case Nos. CH/98/1335 et al.), 8 March 2002, §46, Decisions January-June 2002.
16. See e.g. V.Č., supra note 12, at §12; as well as Rizvić and others, supra note 15, at §36. We shall use the term 'international community' to refer to the multifaceted entirety of the foreign actors in post-war Bosnia, inter alia the Office of the High Representative (OHR), the United Nations, the international military presence (SFOR), the OSCE.
17. See e.g. Rizvić and others, supra note 15, §§ 239-243.
18. E.g. Bajrić v. Federation of BiH (Case No. CH/98/1373), 10 May 2002, §14, Decisions January-June 2002
19. Pržulj v. Federation of BiH (Case No. CH/98/1374), 13 January 2000, §§ 144-149, Decisions January-June 2000
20. Hermas v. Federation of BiH (Case no. CH/97/45), 18 February 1998, § 26, Decisions and Reports 1998.
21. Rizvić and others, supra note 15.
22. Ibid., §212.
23. Ibid., §215.
24. Ibid., §§ 273-285 and 286-287.
25. Ibid., §§ 251-252. The Court rejected Rizvić's request to hear witnesses on behalf of the defense on the ground that 'the matter had been discussed long enough'.
26. Ibid., §§ 259-263.
27. Ibid., §§ 105-108 and 270-273.
28. Damjanović v. Federation of BiH (Case No. CH/98/30), 8 October 1997, Decisions on Admissibility and Merits March 1996-December 1997; also published in 18 Human Rights Law Journal 258 (1997).
29. Damjanović v. Federation of BiH (Case No. CH/98/638), 11 February 2000, §17, Decisions January-June 2000, quoting amply from the Cantonal Court judgment.
30. Ibid., §82.
31. Ibid., §83.
32. During the re-trial, several co-detainees of Damjanović were heard, confirming that before and during his trial he was repeatedly subjected to severe beatings by officials.
33. V.Č. v. Federation of BiH (Case No. CH/98/1366), 9 March 2000, Decisions January-June 2000.
34. Ibid., at §12.
35. Ibid., at §13.
36. Ibid., at §§ 19-21. In its judgment of 18 June 1998 the Supreme Court held that under the Rules of the Road, the ICTY Prosecutor 'only expresses an opinion', thereby blatantly contradicting its own judgment of 28 May 1998 - three weeks earlier - in which it had stated that the opinions of the ICTY Prosecutor under the Rules of the Road are binding on all authorities of the Federation (see supra note 12 and accompanying text).
37. Ibid., at §23.
38. Ibid., at §24.
39. Ibid., at §83.
40. Ibid., at §26.
41. Josip, Božana and Tomislav Matanović v. the Republika Srpska (Case No. CH/96/01), decision on admissibility 13 September 1996, decision on the merits 6 August 1997, decisions on admissibility and merits March 1996-December 1997; also published in 18 Human Rights Law Journal (1997), 244.
42. Matanović, supra note 39, decision on the merits, at §59.
43. Ibid., at §63.
44. The UN International Police Task Forre (IPTF) was established by SC Res. 1035 (1995), in accordance with Annex 11 of the Dayton Peace Agreement, with the mandate to, inter alia, monitor, inspect and facilitate law-enforcement activities of the Bosnian police, and train law-enforcement personnel (Art. III of Annex 11). IPTF's mandate expired at the end of 2002.
45. Banja Luka District Court, case of Ranko Jakovljević and Ten Others.
46. Reuters (Olga Lola Ninković), Bosnian Court Acquits 11 Serbs in war Crimes Case, 12 February 2005, available at http://www.washingtonpost.com/wp-dyn/articles/A17261-2005Feb11.html (visited 19 February 2005). According to the author, the acquittal is due to the poor preparation of the prosecution case.
47. OSCE Report, supra note 7, at 52-59.
48. Matanović, supra note 39, decision on admissibility, part IV.
49. In the Matanović case, the Chamber asserted its competence to deal with the disappearance on the basis of evidence suggesting that Father Matanović was alive after 14 December 1995 (he was offered by the RS for prisoner exchange in early 1996), and only for the incommunicado detention after that date. In only one other case, Palić v. RS (Case No. CH/99/3196), 11 January 2001, Decisions January-June 2001, the Chamber found itself competent ratione temporis in an application filed on behalf of a person who disappeared before the Dayton Peace Agreement.
50. Unković v. Federation of BiH (Case No. CH/99/2150), 10 May 2002, § 87-90, Decisions January-June 2002.
51. Ibid., §§ 106-119.
52. Ibid., §§ 122-127.
53. As the Chamber noted, the vast majority of the applicants had in fact indirectly addressed the RS authorities by registering their relatives as missing with the BiH or Federation Commissions for Missing Persons, which submitted lists of persons gone missing on RS territory to the RS authorities in the framework of the Process for tracing persons unaccounted for coordinated by the ICRC (Selimović & others v. RS (Case Nos. CH/01/8365 et al.), 7 Marrh 2003, §152, Decisions January-June 2003.
54. Selimović & others, supra note 51, §178.
55. Ibid., at §188.
56. Pašović and others v. RS (Case No. CH/02/8569 et al.), 7 November 2003, Decisions July-December 2003.
57. Smajić and others v. RS (Case No. CH/02/8879 et al.), 5 December 2003, Decisions July-December 2003.
58. Malkić and others v. RS (Case No. CH/02/9358 et al.), 22 December 2003, Decisions July-December 2003.
59. Mujić and others v. RS (Case No. CH/02/10235 et al.), 22 December 2003, Decisions July-December 2003.
60. M. C. and others v. RS (Case No. CH/02/9851 et al.), 22 December 2003, Decisions July-December 2003. In Rogatica, the Chamber found 'that the authorities of the respondent party must have had within their 'possession or control' information about the men who disappeared from Rogatica, since they were taken away from their homes by soldiers of the RS Army. In any event, the possibility that information and evidence pertaining to the fate of these persons was lost or destroyed by members of the armed forces of the respondent Party does not relieve the respondent Party of its positive obligations under Art. 8 of the Convention. Rather, it appears that the authorities of the Republika Srpska arbitrarily and without justification failed to take any action whatsoever to locate, discover, or disclose information sought by the applicants about their missing loved ones. There is no evidence, for example, 'that the authorities of the Republika Srpska have interviewed any of the members of its armed forces who were involved in the events of the take-over of Rogatica and the treatment of the Bosniak male population, interviewed any other possible witnesses, disclosed any physical evidence still in its possession with a view to making the requested information available to the families of the victims of the Rogatica take-over' (ibid., at §67).
61. Savić v. Federation of BiH (case no. CH/99/2688), 22 December 2003, Decisions July-December 2003.
62. Jovanović v. Federation of BiH (case no. CH/01/9180), 5 December 2003, Decisions July-December 2003.
63. Unković, supra note 48, §§ 11-27. Of the originally six defendants in the so-called Golubović case (named after the family name of the applicant Unković's daughter), three (charged with failure to report the preparation and, after the fact, the commission of the murders), were amnestied in January 2000. Two of the defendants in the Golubović case are the applicants in the Chamber case Landžo and Potur (CH/01/7912 and CH/01/7913).
64. Husković and others v. Federation of BiH (case no. CH/02/12551), 5 December 2003, Decisions July-December 2003.
65. Ibid., at §19. The criminal proceedings are conducted under the name Džidić & Others (Cantonal Court Mostar file no. K-26/02), but better known as the 'Vranica case'.
66. Landžo and Potur, §§ 12-54, 184-186, 191, 195 ('...it is apparent that a long period of inactivity was caused by the authorities' desire to assemble a multi-ethnic panel of judges, presumably prompted by pressure from the international community'.);
67. Husković, supra note 62, §§ 17-19, 22.
68. See also the Thematic Report 9 of UNMIBH's Judicial System Assessment Programme (JSAP) of November 2000, Political Influence: The Independence of the Judiciary in Bosnia and Herzegovina, §5.6.2, available at http://www.esiweb.org/bridges/bosnia/JSAP.RepIX.pdf (visited on 19 February 2005).
69. Liljana, Anka, Lazar and Nataša Popović v. Federation of BiH (Case No. CH/02/10074),7 November 2003, Decisions July-December 2003. The facts of the case narrated in the next paragraph are contained in §§ 9-55.
70. Initial Indictment of 13 July 2001, Hadžihasanović, Alagić and Kubura (IT-01-47).
71. Popović, supra note 65, §51.
72. The obstacles in the way of war-crimes prosecution in the Central Bosnia Canton were also described by JSAP in its Thematic Report 9, supra note 64, at §5.6.1.
73. International Crisis Group, The Wages of Sin: Confronting Bosnia's Republika Srpska, ICG Balkans report No. 118, 8 October 2001, at 25, available at www.icg.org (visited 19 February 2005), speaks of 'the institutional protection of war criminals in the RS'.
74. Human Rights Watch, Justice at Risk: War Crimes Trials in Croatia, Bosnia and Herzegovina, and Serbia and Montenegro, October 2004, 11 and 21, available at http://www.hrw.org/reports/2004/icty1004/ (visited 17 February 2004)
75. see also OSCE Report, supra note 7, at 23-25.
76. Ibid., supra note 69, at 18
77. OSCE Report, supra note 7, at 37-40.
78. Except for Halilović (supra note 10), which concerns the trial of a Bosniak man in the RS.
79. For a specific finding on discrimination, see e.g. Bajrić, supra note 18, §112.
80. Selimović & Others, supra note 51, §202.
81. Documentation Centre of the Republika Srpska, Bureau of Government of the Republika Srpska for Relations with the ICTY, Banja Luka, 'Report about Case Srebrenica', on file at the Chamber. The Report was published in both English and Serbian. A summary of the Report with ample quotes is contained in Selimović & others, supra note 51, §§ 84-97.
82. Report about Case Srebrenica, at 27 of the English version.
83. Ibid., at 34 of the English version.
84. Ibid., at 37 of the English version.
85. Ibid., at 59 of the English version.
86. Selimović & others, supra note 51, §198.
87. In Marrh 2001, the Rules of the Road Project within the Office of the ICRY Prosecutor received 13 prosecution files from Banja Luka, representing the first prosecution cases submitted by RS authorities (ICTY Annual Report 2001 (UN Doc. A/56/352-S/2001/865), §202). According to media reports quoted by Human Rights Watch in Justice at Risk (supra note 69, at 3 note 7), since early 2002 several RS prosecutors have been preparing indictments against hundreds of war-crimes suspects, nearly exclusively Bosniaks. The same report, however, provides ample reason to doubt that substantial investigative and legal work went into these indictments.
88. See supra note 39 and accompanying text. It may be true that, as the Chamber noted, the 'Report, in essence, assembles evidence for an "ethnic cleansing" case in which the perpetrators are Muslims and the victims are Serbs', but this evidence appears never to have been brought to the attention of the competent RS prosecutor's office. As the origin of the Report in the Bureau of the Government of the Republika Srpska for Relations with the ICTY suggests, the Report is meant to trigger investigation and prosecution exclusively before the ICTY, or even intended only as propaganda material.
89. That this situation is common to Bosnia, Croatia and Serbia is amply illustrated in Justice at Risk, supra note 69.
90. Cf. also the reports by the OSCE Mission to Croatia on war-crimes prosecution in Croatia, Background Report: Domestic War Crimes Trials 2002, and Background Report: Domestic War Crimes Trials 2003, both available at http://www.osce.org/croatia/human_rights/ domestic.war.crimes.php3 (visited 27 February 2005).
91. By requiring (and thus allowing) the ICTY Prosecutor's Office to examine the evidence gathered by Bosnian prosecutors, the Rules of the Road may have contributed to prosecutions before the ICTY. Moreover, one could find a propulsive element in those cases where the ICTY Prosecutor in her opinion identified the need for the Bosnian authorities to carry out further investigations.
92. As of 29 September 2004 (i.e. at the time of its closure), the ICTY Rules of the Road Unit reviewed and issued opinions with regard to the criminal files against 3,489 war-crimes suspects, out of the 5,789 persons concerned (see the OSCE Report, supra note 7, at 6). In other words, in 2,300 cases, corresponding to 40% of the cases submitted, the failure of the ICTY Rules of the Road Unit to issue an opinion created a legal limbo, in which these cases will remain until reviewed by the BiH Prosecutor's Office under a newly established procedure (ibid., at 16-19).
93. Concerning reform of the judiciary and prosecution, see International Crisis Group, Courting Disaster: The Misrule of Law in Bosnia & Herzegovina, ICG Balkans report No. 127, 25 March 2002, available at www.icg.org (visited 19 February 2005), and the Final Report of the Independent Judicial Commission, November 2004, available at http://www.hjpc.ba/reports/pdf/final_report.eng.PDF (visited 19 February 2005). The OSCE Report, supra note 7, at 34-35 contains 'ethnicity charts' of judiciary and prosecution before and after the reform. With regard to the new criminal-procedure laws, see the OSCE Mission's Trial Monitoring Report on the Implementation of the New Criminal Procedure Code in the Courts of BiH, released on 17 December 2004, available at http://www.oscebih.org/documents/1079-eng.pdf (visited 10 April 2005).
94. Concerning vetting of the police forces, see G.L. Naarden, 'Nonprosecutorial Sanctions For Grave Violations of International Humanitarian Law: Wartime Conduct of Bosnian Police Officials', 97 American Journal of International Law (2003), 342, 344-350.
95. International Crisis Group, Courting Disaster, supra note 85, at 7.
96. See the OSCE Report, supra note 7, at 10, also for reference to the relevant legislation. The establishment of the Mr Crimes Chamber is a joint initiative of the OHR and the ICTY, part of the ICTY 'completion strategy' aimed at completing all ICTY first instance trials by 2008 (see UN Press Release of 8 October 2003, available at http://www.un.org/ News/Press/docs/2003/sc7888.doc.htm (visited 27 February 2005)).
97. Criminal law in Bosnia has always adopted the jurisdictional principle of the forum delicti commissi (cf. OSCE Report, supra note 7, at 15).
98. This distrust is of course all the more understandable when persons involved in the crimes still are on the police force, see ICG, War Criminals in Bosnia's Republika Srpska, supra note 6.
99. Crimes against humanity were not provided for in the pre-2003 criminal codes of the SFRY, the Federation and the RS; cf. OSCE Report, supra note 7, at 20-22.
100. Decree With Force of Law on Extradition at the Request of the International Tribunal of 6 April 1995, available at http://www.un.org/ icty/legaldoc/index.htm (visited 21 April 2005).
101. For instance, regarding the Srebrenica massacre, the disclosed indictments of the ICTY Prosecutor charge overall 13 individuals (this figure is as of 23 November 2004) with various forms of criminal involvement. Except for Erdemović, all the indictments concern the highest echelons of the political leadership and of the military. Hundreds of lower-level commanders, members of execution squads and accomplices before the fact (or during and after the fact), have not been indicted before the ICTY and never will be. There can be no doubt that the competent forum for the prosecution of these cases is the RS, but, as the Chamber found in the Srebrenica decision, no action was taken by the RS authorities (or any other authority in Bosnia). In a submission to the Chamber in the Srebrenica case, the RS justified the lack of any investigatory and prosecutorial efforts by its authorities, arguing that 'the ICTY... has been investigating the events in the area of the municipality Srebrenica in 1995. This investigation is pending, and thus the activity of the RS authorities in that direction is hampered.... The provisions of the Statute and the Rules of Procedure and Evidence of the ICTY also impede a full, meaningful, thorough and detailed investigation into the events...'. (RS Government Office of the Legal Representative, 'Interim Report on the Steps Taken by the Republika Srpska to Comply With the Orders in the Srebrenica Cases', 6 June 2003, on file with the authors.) We have also seen that the RS Government submitted its 'Report on the Case Srebrenica' not to the territorially competent RS Prosecutor's office, but only to the ICTY.
102. Initial Indictment of 13 July 2001 (amended on 11 January 2002 and 26 September 2003), Hadžihasanović, Alagić and Kubura (IT-01-47).
103. Third Amended Indictment of 26 September 2003, Hadžihasanović and Kubura (IT-01-47-PT), §10.
104. The use of ICTY evidence before domestic courts is one of the key issues in the efforts to create a legal framework in BiH, Croatia and Serbia, and Montenegro for the effective prosecution of war-crimes cases (OSCE Report, supra note 7, at 31).
105. Cf. JSAP Thematic Report 9, supra note 64, §5.6.1.
106. OSCE Report, supra note 7, at 6.
107. The following figures give an idea of the order of magnitude of the financial means invested by the international community into the prosecution of war crimes committed in Bosnia (including efforts aimed at enabling the Bosnian law-enforcement agencies and judiciary to carry out that task): • From 1994 to the end of 2005, the ICTY (which of course also covers war crimes committed in Croatia and Kosovo) will have cost the UN and bilateral donors a sum approaching 1,100 million USD. This sum does not include staff directly seconded by governments and thus greatly understates the actual costs. • The War Crimes Chamber in the Court of BiH is budgeted to cost the international donors 17.2 million Euros during the first two years of operation (including start-up costs), and an additional 20.7 million Euros during years three to five. • The Independent Judicial Commission, 'established at the beginning of 2001 as the lead international agency for judicial reform in Bosnia', received donor funds in the amount of approximately 13.5 million Euros for its operations from 2001 to 2004 (this sum does not include staff seconded by governments). As a term of comparison, it may be interesting to note that the cost for the operation of the entire Federation of BiH and RS court system in the year 2002 amounted to approximately 45 million Euros.
108. International Crisis Group, War Criminals in Bosnia's Republika Srpska, supra note 6, at 77-78.
109. A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), at 349.
110. On the efforts to vet the judiciary up to March 2002, see ICG, Courting Disaster, supra note 85.