Teething Problems for Bosnian Courts

Merdijana Sadović

Senior Project Manager

Wednesday, 9 November, 2005

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Recent hearings in a war crimes trial held in Sarajevo were rolling along fairly uneventfully until the prosecutor turned to the defendant and said, “Will you now show your teeth to the presiding judge?”

A stunned silence fell on the courtroom as both judges and lawyers tried to figure out how to deal with such an unusual request.

On trial was Vlastimir Pusara, a Bosnian Serb charged with war crimes dating from June 1992, centring on the illegal detention of civilians at a sports centre in the Sarajevo suburb of Hadzici.

The request that Pusara should bare his teeth stemmed from the testimony of a protected witness – a woman who said she was among those detained by the accused.

Just a few minutes earlier she had tried to confirm Pusara’s identity in the courtroom.

“He swore at me and said all Muslims should be killed. He said it with such anger that all his teeth were exposed. I still remember them – they were so big, so white and strong,” she said.

Recovering from the shock, the defence lawyer for Pusara jumped from his seat and shouted, “My client will not show his teeth! That is the most ridiculous request I’ve ever heard!”

The ensuing argument between the lawyer and the prosecutor was so heated that it seemed one of them might collapse.

To an outside observer, this level of passion might look very dubious.

Was the prosecutor a Muslim who was fighting not so much to win his own case as to redress the wrongs done to all Muslim victims of the Bosnian war? And was Pusara’s lawyer a Serb, defending not just his client but all Bosnian Serbs and their cause?

And most importantly, was this incident not a perfect example of just how hard it is to conduct fair, unbiased trials in Bosnia?

Such questions are steadily gaining importance as the Hague tribunal enters what are supposed to be the last six years of its existence. As a part of its completion strategy, the tribunal envisages devolving the trials of lower-ranking war crimes suspects to local courts in the former Yugoslavia, including Bosnia.

But is Bosnia really able to handle war crimes trials on its own ground?

The answers to the difficult questions raised by the courtroom scene at Pusara’s trial offer some grounds for hope. The prosecutor, who seemed so eager to send Pusara to prison for abusing Muslim civilians, was a Serb. And the defence lawyer who so strongly defended his client’s interests and rights to personal privacy was a Muslim.

According to the OSCE mission in Bosnia, 93 war crimes trials have been held in the republic so far, the vast majority in the Federation, the Muslim-Croat dominated entity. Of that number, 62 are currently ongoing and the rest have been closed with a conviction or acquittal. The suspects brought to trial have come from all three ethnic groups

All the war crime trials that have been held in Bosnia to date have been under the so-called Rome Rules of the Road, signed half a year after the Dayton Peace agreement. These rules require that the Hague tribunal reviews every case before local authorities can indict and arrest a war crimes suspect.

Hague prosecutors have reviewed and given the green light to over 600 war crimes indictments filed in Bosnia. The vast majority have been in the Federation, with only a handful of indictments issued in the Bosnian Serb entity, Republika Srpska.

The tribunal insiders said they were surprised and disappointed that less than 10 per cent of these cases have been tried so far.

Sources close to Sarajevo government say that many of those accused are physically beyond the reach of Sarajevo authorities – hiding in other parts of the republic, or outside Bosnian borders. But other tribunal insiders insist that there are enough suspects whom the authorities could detain for more trials to be conducted.

Another reason for initial pessimism was that in quite some cases the outcome of the trial seemed to depend on the ethnicity of the judges and the accused. “If they were of the same ethnicity, the sentence would be lower. If they were of different ethnicity the sentence was higher,” a tribunal insider said.

But recently a number of leading international human rights groups have commended the way some trials have been conducted in the Federation.

In its background paper on the trial of Bosnian Croat commander Dominik Ilijasevic at the Zenica cantonal court, Human Rights Watch noted that the “absence of ethnic bias during the proceedings and fair treatment of the defendant” as positive achievements.

But as Liam McDowall, director of the tribunal’s outreach programme, cautions, “No matter how decently some trials are carried out, there is still a perception among the public that they may be biased.” And, he added local courts can be vulnerable to pressure from cantonal or district governments.

Such concerns led to the establishment of Bosnia’s War Crimes Chamber, a court that will function at state level, initially with a mix of international and local judges.

The chamber, institutionally part of the State Court, should be up and running by the end of this year. Once in place, it will be the only court in Bosnia to which the Hague tribunal will devolve future cases, McDowall told IWPR.

As well as taking on indictments passed to it by The Hague, it will also handle some cases on which tribunal prosecutors have been working but which have not yet resulted in indictments, and will have powers to act on indictments generated within Bosnia.

Hague insiders say that between six and 15 cases involving individuals already indicted by the tribunal will be handed over to the War Crimes Chamber, some possibly by the end of the year.

But cases currently being heard in local Bosnian courts will continue to be troubled by a multiplicity of problems – poor case preparation, the lack of an effective witness protection system, and unclear rules regarding cooperation with The Hague.

These problems were all too apparent in the trial of Samir Bejtic, a Bosnian Muslim charged with a number of murders at Kazani near Sarajevo.

Testimony given by a witness who appeared in March showed how much damage can be none if protection from intimidation is inadequate.

The witness, a soldier in the Bosnian army, was present when one of the killings took place. He told the court he saw Bejtic’s commanding officer doing “something” but when pressed by lawyers to elaborate, said he had been too scared to watch.

In his court appearance, the witness gave the impression that he was still fearful.

Currently there is little that a Bosnian judge or a prosecutor can do to encourage such witnesses to tell the truth.

“The prosecutor can charge a witness with lying in court, but that has never happened,” says Oleg Cavka, spokesman for the Sarajevo Cantonal Court. “Even though prosecutors know that their witnesses are sometimes not telling the truth and that their whole case could collapse as a result, they respect the fact that those witnesses are afraid and that state officials cannot protect them adequately.”

At the moment, Bosnia does not have an effective witness protection programme. Under current laws, someone who reveals the identity of a protected witness cannot be punished, and as a result many witnesses do not even bother to ask for protected status.

In a report on war crimes prosecutions in Bosnia published last autumn, Amnesty International claimed that “reports of harassment and intimidation of trial witnesses have emerged during virtually all war crimes trials that have taken place to date, often resulting in the collapse of prosecution cases or the significant reduction of evidence as witnesses changed or revoked statements given earlier.”

Steps are now being taken to address the problem of witness protection.

According to the Hague’s former outreach programme coordinator for Bosnia, Refik Hodzic, “The Hague tribunal is very clear on this – no cases will be referred to national jurisdictions until an efficient witness protection programme is put into effect.”.

Observers hope the new law on the State Investigation and Protection Agency, SIPA, will provide just such a programme. Once that law has been passed, the agency – which already exists - will be able to protect witnesses, relocate them and change their identity if necessary. How effective relocation can be in a small country with under four million inhabitants still divided by ethnicity is another issue, but for the time being there is no money for resettlement in other countries.

Another obstacle to fair trials in local courts is poor case preparation by prosecutors. Many of them have little or no experience in handling war crimes cases. Of the four prosecutors currently involved in such trials at the Sarajevo Cantonal Court, only one has some previous experience of this kind of case.

“Local prosecutors have the theoretical knowledge, but they lack experience,” said Hodzic.

The new Code of Criminal Procedure, which came into effect on August 2003 makes prosecutors solely responsible for proving charges, and they cannot count on help from judges, as was previously the case. But representatives of the international community who are monitoring trials say prosecutors are still having trouble working to the changed rules.

A third trial held in Sarajevo in March highlighted a quite different set of problems, this time of a much more practical nature.

In the case of Bosnian Serb Ostoja Sando, charged with war crimes including murder, the problem wasn’t the way the prosecution and defence were handled, but the speed at which the lawyers talked.

Testimony by a prosecution witness who alleged that his wounded father was killed by the accused was interrupted several times by presiding judge Aleksandra Martinovic.

The judge grew so irritated that at one point she raised her voice to both defence and prosecution lawyers, warning them they would be removed from the case if they continued to question the witness too rapidly.

Judge Martinovic was annoyed not because she was unhappy with the style of questioning, but simply because as in most courtrooms in Bosnia, there was no recording system installed so that every word uttered in the chamber had to be typewritten. And the new procedural code requires everything that happens in court to be noted down for the files.

With all these problems, does Bosnia have the capacity to run war crimes trials?

In Sarajevo, Refik Hodzic shrugged. “Ready or not, we don’t have much choice, do we?”

Ana Uzelac is IWPR project manager in The Hague. Merdijana Sadovic is an IWPR contributor in the Hague.