March 15, 2003
Human Rights Watch's Balkans Justice Bulletins are periodic assessments of the efforts of local and national authorities in Croatia, Bosnia and Herzegovina, and Serbia and Montenegro (including Kosovo) to hold accountable those responsible for war crimes and crimes against humanity committed during the wars in the former Yugoslavia during the 1990s.1 Accountability for these crimes has long been considered essential to the long-term peace and stability of the region. It was this consensus that led the United Nations Security Council to create the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993. The authorities in the region have often resisted the jurisdiction of the ICTY, arguing that war criminals should be tried in national courts. Increasingly, the international community and the ICTY itself expect that national courts will try lower-level alleged war criminals, while the ICTY focuses on the most senior indictees and aims to wind up its activities by 2008. Shifting the burden to local courts will only be successful to the extent that local prosecutors have the will and means to prosecute these cases effectively, and the courts act independently and impartially in accordance with international fair trial standards. With its periodic Balkans Justice Bulletins, Human Rights Watch aims to assess whether these conditions exist, identify areas in which improvements are necessary, and make recommendations to national and international actors to achieve needed reform. Human Rights Watch takes no position as to the guilt or innocence of persons on trial.
On January 20, 2003, the Belgrade district court began an important war crimes trial against four Serbs accused of kidnapping, torturing, and killing seventeen Muslims from Serbia in 1992. The crime occurred in an area of Bosnia and Herzegovina controlled by Bosnian Serbs, near the border with Serbia. As most of the victims had resided in the village of Sjeverin, in southwest Serbia, the trial is usually referred to as "the Sjeverin trial."
Hundreds of individuals responsible for war crimes committed during the wars in Croatia, Bosnia and Herzegovina, and Kosovo live in Serbia and Montenegro, but as of January 2003, only four domestic war-crime trials had taken place, all since the departure of Yugoslav president Slobodan Milosevic from power in October 2000. Officials in Serbia have nonetheless asserted that war-crime perpetrators as a rule should be tried at home, rather than before the International Criminal Tribunal for the former Yugoslavia (ICTY).
In this context, the Sjeverin trial presents an important test of the Serbian justice system's ability to prosecute war crimes. During the first four days of the trial—which reconvenes on March 17, 2003—the court heard one of the accused, four prosecution witnesses, and eleven relatives of the victims who, although not witnesses to the crime of October 22, 1992, took the stand to testify about related events prior to and after the crime. When the trial reconvenes, the court is expected to hear additional witnesses proposed at the end of the fourth day by the prosecutor and the lawyers representing the families of the victims. The defense is expected to present their case at a later stage in the trial.
Human Rights Watch monitored these first four days of the trial to assess the proceedings. These comments therefore reflect a preliminary assessment of the trial. We are hopeful, in part because of the prosecutor's relatively serious-minded presentation of the evidence, that the Sjeverin trial will represent an advance for Serbia's accountability efforts. However, in other significant ways—notably the lack of effective witness protection and the lack of cooperation among justice systems in the former Yugoslavia —the first part of the trial has highlighted additional steps needed to improve the administration of justice in war-crimes cases.
The Alleged Crime
The Sjeverin indictment alleges that on October 22, 1992, during the armed conflict in Bosnia and Herzegovina, members of a Serb "paramilitary group" called Osvetnici ("The Avengers"), kidnapped seventeen ethnic Muslims in the village of Mioce, on the Bosnian side of the Bosnian-Yugoslav border. That same day, the perpetrators are charged with taking the victims to Visegrad in Bosnia, and torturing them in a motel. The group of Muslims were then allegedly taken to the nearby bank of the Drina River and beaten, before three of the accused allegedly fired upon them with automatic weapons. The indictment charges that those among the seventeen who were not killed outright were subsequently slaughtered with knives.
Although by all accounts there were as many as a dozen persons involved in the killings, only four are being tried by the Belgrade court: Milan Lukic, Oliver Krsmanovic, Dragutin Dragicevic, and Djordje Sevic. Two of the accused are in custody and currently standing trial in Belgrade, while two of them remain at large and are being tried in absentia. The two on trial in Belgrade are Djordje Sevic, a citizen of Serbia and Montenegro, whom the Serbian police arrested in October 2002, and Dragutin Dragicevic, a Bosnian Serb arrested when he entered Serbia in April 2002.
Lukic and Krsmanovic are the two being tried in absentia. Lukic, who is believed to be in hiding in eastern Bosnia, has also been indicted by the ICTY for other crimes committed in Visegrad, including the June 1992 mass murder of approximately 135 Bosnian Muslim civilians allegedly locked inside two houses that were set on fire. Krsmanovic reportedly lives openly in Visegrad, Bosnia, according to an interview with his wife published recently in Nezavisne, a credible newspaper from the Bosnian Serb capital of Banja Luka.
The Serbian State Attorney accused the four defendants of a war crime against the civilian population, punishable under article 142 of the Yugoslav Penal Code. This article encompasses the prohibitions contained in the grave breaches provisions of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949).2 Among other acts, article 142 prohibits the taking of hostages, unlawful confinement, torture, and killings of civilians, all of which allegedly occurred in this case.3
Sevic and Dragicevic pleaded not guilty. Dragicevic has to date exercised his right to remain silent, while Sevic has chosen to testify. Sevic has testified that during the kidnapping in Mioce he was unaware of the nature of the action and the ethnicity of the victims, and that he was not present in Visegrad when the torture and killings took place.
Testimony presented during the first week of the trial detailed the crimes alleged in the indictment. According to this testimony, on October 22, 1992, seventeen Muslim nationals from the Federal Republic of Yugoslavia (now Serbia and Montenegro) were traveling along with dozens of Yugoslavs of Serb ethnicity by bus to Priboj, a Serbian town where most of them were employed. The bus route included a stretch of a few miles through Bosnian territory. According to trial witnesses, a group of armed men in Mioce, Bosnia stopped the bus and forced off the Muslim passengers. Witnesses stated that the Serb passengers were permitted to proceed, while the armed men loaded the Muslims into the back of a truck and took them to Visegrad. On the way from Mioce to Visegrad, the armed men allegedly forced the victims to sing Serb nationalist songs. According to trial testimony, in Visegrad hundreds of citizens gathered in front of the "Vilina vlas" motel and, later, near the Drina River. Some members of the assembled crowd also allegedly joined the accused in the beating and killing at the riverbank.
Positive Developments in the Sjeverin Trial
The first phase of the Sjeverin trial reflected certain improvements from past war-crimes trials in Serbia. The handful of previous trials suffered from poor preparation by the prosecution and procedural irregularities.4 The Sjeverin trial is the first war-crime trial to open in the capital Belgrade, and some of the positive developments detailed here may be attributable to this venue, where the judiciary is generally more professional and prosecutors, judges, and, arguably, witnesses too, are less likely to be intimidated.
Some observers had expressed concern that in pursuing the Sjeverin case, the Serb authorities have an ulterior political aim to limit responsibility for the October 1992 crime to a small number of marginal individuals, instead of on the political and military leadership in Serbia and the Bosnian Serb entity in Bosnia and Herzegovina. This concern was heightened by the prosecutor's characterization of the perpetrators in the indictment as a "paramilitary group," suggesting that they were operating independently. While it is too early for a final assessment of the prosecution case, the early proceedings suggest that these concerns are unwarranted. In fact, during the first four days of the trial, the president of the trial chamber asked a number of questions aimed at clarifying whether the perpetrators were not "paramilitaries," but members of the Bosnian Serb army. It is hoped that the court will hear from witnesses who will be able to tell more about the role of the Bosnian Serb army and the Serbian authorities during and after the event, in order to shed light on the overall context and circumstances of the crime, and to examine the possible criminal liability of those who were in a position to prevent the commission of the crime.
Another positive development from previous trials is that the state prosecutor has apparently gathered substantial evidence, including detailed witness testimonies and photographic evidence of the crime. This more comprehensive investigative effort would appear to reflect a welcome level of cooperation on the part of the Serbian police. Human Rights Watch does remain concerned that this cooperation between the police and the prosecution may be difficult to replicate in other cases: the Sjeverin case is unusual among war crimes committed in Serbia in that there appears to have been no Serbian police directly involved in the commission of the crime. By contrast, members of the police were often directly responsible for crimes in Kosovo, and the police have not to date facilitated prosecutorial investigations.
As detailed below, among the positive aspects of the first phase of the trial have also been the ad hoc efforts by the court, the prosecutor, and the police to enhance witness protection in spite of the limited provision Serbian law makes for such measures.
Notwithstanding the positive elements observed during the first phase of the Sjeverin trial, a series of potential obstacles related to witness protection, cooperation between states, and lack of resources could still prevent the court from providing a full account of the crime. The following discussion details these remaining challenges faced in the Sjeverin case and identifies steps for the government of Serbia and Montenegro to take to address these concerns in the Sjeverin trial and future national war-crime trials.
Protection of Witnesses
Successful prosecution of a war-crime case depends significantly on the availability and credibility of witnesses, which in turn requires that witnesses feel they can testify truthfully without fear of retribution. Unfortunately, the criminal procedural law in force in Serbia and Montenegro makes only limited provision for the protection of witnesses. The two provisions in the Criminal Procedure Act (2001) dealing with witness protection are cursory and inadequate.5 During the first stage of the Sjeverin trial, the prosecutor, the police, and the court improvised to achieve some degree of witness protection, but the proceedings highlighted a general need for more thorough-going witness protection mechanisms in the law and practice of Serbia and Montenegro.
On January 21, 2003, the second day of the trial, a number of relatives of the victims testified. None of them had been present at the crime scenes, but some gave important testimony about the activities of defendant Milan Lukic's fighters just prior to and after the events of October 22, 1992. On the third day of the trial, prior to leaving Belgrade for the Serbian south or to Bosnia where some of these Muslim witnesses now live, they informally expressed concern about their safety to non-governmental trial monitors. The state prosecutor learned of their concern, and during the afternoon he arranged for the Serbian police to accompany the relatives of the victims to their final destination in Serbia and, for those traveling to Bosnia, to the border.
The anxiety expressed by these witnesses may have been heightened by the fact that under Serbian criminal procedure law, the judge reads the address of the witness before examining him or her, and the Sjeverin trial did not deviate from this practice. Given the nature of the crimes at issue, as well as the fact that most of the perpetrators of war crimes during the Bosnian war are believed to be in Serbia, such disclosures unnecessarily expose witnesses to danger. The need to establish this sort of personal data about a witness can be satisfied through sealed written submissions to the court or an in camera examination of the witness by the judges, leaving undisclosed to the public sensitive information such as the witness' precise address.
When a key witness for the prosecution was to testify on the fourth day of the Sjeverin trial, the state prosecutor asked in court that the session be closed for the safety of the witness. The Criminal Procedure Act, in a blatant omission, does not include witness safety among the grounds for closing a session. Instead the court invoked "public order" as the legal basis for closing the session, which normally refers to substantial unrest, an unlikely concern here. The witness then testified in a session attended only by monitors from the Organization for Security and Cooperation in Europe and non-governmental organizations. The witness ultimately received twenty-four-hour police protection before, during, and after his testimony, but these remain ad hoc arrangements rather than measures taken pursuant to a witness protection program defined by law.
Thus the experience of the first phase of the Sjeverin trial highlighted the witness protection issues that such cases raise and the inadequacy of existing law and practice in Serbia and Montenegro. At a symposium on witness protection held in Belgrade in December 2002, a representative of the Serbian Ministry of Interior acknowledged that Serbia does not have a witness protection program that provides, for example, for witnesses to change identities, change residences, or arrange protection for family members. Moreover, the government lacks funds for such measures. Even in trials not related to war crimes, the official said that the lack of witness protection often causes witnesses to alter their testimony at the trial.
A meaningful effort to achieve accountability through national war-crime trials in Serbia and Montenegro will require measures to protect witnesses prior to, during, and following trials, including through a long-term witness protection program or resettlement in another country.
- The government of Serbia and Montenegro should as a matter of priority enact legislation authorizing and sufficiently funding meaningful witness protection measures.
- The government should seek technical and financial assistance from other states and intergovernmental organizations to support witness protection efforts.
Issues Regarding Cooperation Between States
The Sjeverin trial illustrates the importance of cooperation between the countries in what was formerly Yugoslavia for achieving the successful prosecution of war crimes. Mechanisms for such cooperation have been lacking, which could hinder the prosecution's efforts in the Sjeverin trial.
The lack of cooperation among the states of the former Yugoslavia has been first and foremost a function of a legal vacuum in this area. Domestic laws on criminal procedure for each of the jurisdictions provide the only formal rules on cooperation, because Serbia and Montenegro and Bosnia and Herzegovina have no bilateral agreements governing judicial assistance in criminal matters, including extradition. Multilateral agreements such as the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters cannot fill the legal void, because Bosnia and Herzegovina is not a party to either convention. (Serbia and Montenegro became a party to both conventions in December 2002.) Human Rights Watch learned from well-informed authorities in Belgrade and Sarajevo that negotiations on a bilateral agreement between the two states are ongoing and may be concluded this year, though likely too late to have any impact on the Sjeverin trial. As detailed below, the lack of clear rules providing for effective cooperation can be seen clearly in the Sjeverin case proceedings.
Cooperation and Extradition of Suspects
The lack of cooperation among the states of the former Yugoslavia has to date ensured impunity for some alleged war criminals. As previously noted, two of the four Sjeverin indictees—Milan Lukic and Oliver Krsmanovic—remain at large in Bosnia and Herzegovina, and are being tried in absentia in the on-going Belgrade proceedings. Such trials in absentia raise concerns about respect for the defendants' fair trial rights and the governments in the region should work together to bring the two at-large defendants to justice.
Bosnian law prohibits extradition of Bosnian nationals, so unless the two leave the territory of Bosnia and are arrested, only a Bosnian court can try them. Unfortunately, Republika Srpska, the Serb-controlled entity of Bosnia and Herzegovina where Lukic and Krsmanovic reside, has demonstrated no commitment to accountability for wartime atrocities and has yet to try a single Bosnian Serb on war-crimes charges.
Continued impunity for crimes such as those with which Lukic and Krsmanovic are charged should not be tolerated. To address this problem, Human Rights Watch recommends:
- Bosnia and Herzegovina should promptly accede to the European Convention on Extradition.
- In accordance with the European Convention on Extradition, if either of the two states exercises its right not to extradite its nationals, the requested state should at the request of the requesting state submit the case to its competent authorities in order that domestic criminal proceedings may commence, if appropriate.
- The international community, particularly the Council of Europe and the European Union, should highlight the importance of judicial cooperation as a precondition for the continued integration of these states into European institutions.
Pending the development of an extradition regime between the two states, the authorities of Serbia and Montenegro and Bosnia and Herzegovina should work within existing legal frameworks to bring Lukic and Krsmanovic to justice. Specifically, regarding the case against Krsmanovic, Human Rights Watch recommends that:
- The District Court in Belgrade should request the Yugoslav police to issue an international warrant for the arrest of Krsmanovic through Interpol, in order to prevent Krsmanovic's departure from Bosnia and Herzegovina. (The Interpol office in Belgrade declined to answer the Human Rights Watch request for information on whether an arrest warrant against Krsmanovic exists.)
- The District Court in Belgrade should request that Bosnia and Herzegovina take over the prosecution of Krsmanovic. As part of its request for deferral of prosecution, or after receiving notification from the prosecutor in Bosnia and Herzegovina, the court in Belgrade should submit the relevant judicial records regarding the Krsmanovic case to the Bosnian prosecutor.
- Following receipt of a deferral request and documentation from the adjudicating court in Belgrade, the competent prosecutorial office in Bosnia and Herzegovina should promptly order the arrest of Oliver Krsmanovic and take over the prosecution. As a practical matter, this would mean that the trial could begin only after the ICTY prosecutor approves local prosecution, in accordance with the so-called "Rules of the Road," which govern the division of labor between the Bosnian judiciary and the ICTY.6
The other indictee, Milan Lukic, has been in hiding in an attempt to avoid arrest, under the ICTY indictment against him, by the NATO-led Stabilization Force (SFOR) in Bosnia.
- Republika Srpska police, working together with SFOR troops if necessary, should promptly arrest Lukic and surrender him to the custody of the ICTY.
Cooperation and Witness Testimonies
The availability of pertinent evidence, especially witness testimony, is another area in which the lack of cooperation between Serbia and Montenegro and Bosnia and Herzegovina can be seen in the Sjeverin trial. The statements of one of the accused (Sevic) and some witnesses who testified during the first week of the trial suggest that numerous civilians and uniformed individuals from Visegrad and the surrounding area witnessed the torture and killings on October 22, 1992.
Ideally in this context, the Belgrade prosecutor or investigating judge and their counterparts in Republika Srpska would have from the beginning of their investigation worked closely together or set up a joint investigation team, in order to identify and locate witnesses. To our knowledge, this has not been the case. The prosecutor has not to date called any of these witnesses to testify.
To address these concerns, Human Rights Watch recommends:
- The Belgrade prosecutor should establish cooperation with his counterparts in Republika Srpska. Specifically, for purposes of the Sjeverin case, the Belgrade prosecutor should seek assistance in obtaining testimony of Bosnian witnesses. While Bosnian nationals are under no legal obligation to appear before a court in Serbia and Montenegro, they could be encouraged to testify in the case.
- Serbia and Montenegro and Bosnia and Herzegovina should conclude a bilateral agreement that expressly provides for judicial cooperation.
- Bosnia and Herzegovina should promptly accede to the European Convention on Mutual Assistance in Criminal Matters.
- Governments in the territory of the former Yugoslavia should, with the possible technical and financial support of international donors, facilitate testimony of witnesses from other jurisdictions by video conference.
Additional Areas for Improvement:
In addition to the need for improved witness protection and inter-state judicial cooperation, Human Rights Watch identified several other measures that would strengthen the Sjeverin and other national war-crime proceedings.
Photographic Evidence Display
While the primary purpose of the Sjeverin trial is of course to adjudicate the guilt or innocence of the accused, the proceedings can also play an important role in raising the awareness of the Serb public to the crimes committed during the war in Bosnia and Herzegovina, by making the evidence presented more available to the public. Unfortunately, in this regard, some of the most important evidence offered by the prosecutor during the first four days of the trial—photographs of the perpetrators and victims taken on the day of the crime—was inaccessible to the public observing the proceedings. During these proceedings, the accused and the victims were asked on a number of occasions to approach the bench and say whether they could identify the persons in these photographs. The public and the media were unable to see this visual material, because there was no slide projector in the room. Human Rights Watch recommends:
- The court should install a slide-projector or other mechanism for displaying photographic evidence in the courtroom. Generally they should endeavor to present the evidence in the trial in a manner that makes it as accessible to the general public as possible, consistent with the rights of the victims, witnesses, and the accused.
Monitoring by Foreign Observers
As the international community increasingly looks to domestic courts in the former Yugoslavia to take on a larger burden of the post-war accountability effort, it has a significant stake in seeing those proceedings be efficient, effective, and fair. To this end, the U.S. government has recently announced that it will be developing a significant aid package for judicial reform in Serbia and Montenegro.
Against this backdrop, other governments and intergovernmental organizations should make a priority of monitoring domestic war-crime trials, including the Sjeverin trial. Only after closely observing the trials can governments arguing for deferral of war-crime cases from the ICTY to national courts be in a position to make a qualified judgment on the existence, or lack thereof, of conditions warranting such deferral. Trial monitoring would also inform efforts to develop an appropriate program of judicial assistance for governments in the region. And finally, the presence of the observers would provide an additional incentive to the prosecutor and the trial chamber to perform their work properly. Unfortunately, during the first four days of the Sjeverin trial, no representatives of intergovernmental organizations or foreign governments were observed in the courtroom.
- Human Rights Watch calls on the staff of intergovernmental organizations and foreign embassies in Belgrade to attend the hearings in the Sjeverin trial and other war- crime trials that might follow.
Comprehensive Investigation of the Crime
Although in the Sjeverin trial the prosecutor has produced more evidence than has been standard in previous war-crime trials in Serbia and Montenegro, most observers agree that the prosecutor could have proposed a more exhaustive list of witnesses. This might have included: Serb passengers from the bus who witnessed the kidnapping; the only Muslim survivor from the bus; the commander of the Visegrad brigade in the Bosnian Serb army; civilians from Visegrad; the Serbian police and investigating judge from the Serbian town of Uzice, near the border with Bosnia, where Milan Lukic was arrested and subsequently released in October 1992 in relation to the incident; and municipal and police officials in Priboj, the Serbian town where the bus arrived after the kidnapping. While the prosecutor's access to some of these witnesses may have been limited by the lack of cooperation with Bosnian authorities detailed above, many of them may be available to him. In the remaining part of the trial the prosecutor and the representatives of the victims' families have an opportunity to propose additional witnesses.
- Human Rights Watch urges the prosecutor to seek all witnesses with information relating to the Sjeverin crimes. The prosecutor should present all relevant evidence so obtained to the court in the current trial, and bring any additional indictments this evidence might support.
1 The former Socialist Federal Republic of Yugoslavia, comprising six republics, disintegrated in 1991 and 1992, when five independent states were formed: Slovenia, Croatia, Bosnia-Herzegovina, Macedonia, and the Federal Republic of Yugoslavia (comprised of Serbia and Montenegro). In February 2003, the residual two-member Yugoslav federation became a loose union under a new name, Serbia and Montenegro.
2 See the Fourth Geneva Convention, art. 147.
3 Krivicni zakon Savezne Republike Jugoslavije, preciscen tekst (Penal Code of the Federal Republic of Yugoslavia, redacted text) , (Pravno istrazivacki centar, Belgrade, 2001), art. 142.
4 The trial of Sasa Cvjetan had to be transferred from the southern town of Prokuplje to Belgrade, after the presiding judge and prosecutor faced acts of intimidation, apparently by the supporters of the defendant, a member of the Serbian special police. The trial recommenced in Belgrade on March 12, 2003.
5 Article 109(3) of the Criminal Procedure Act provides that "At the proposal of the investigating judge or the president of the chamber, the president of the court or the state prosecutor may request that the organs of internal affairs take necessary measures to protect the witness or the injured party." In December 2002, a new chapter was added to the Criminal Procedure Act, dealing exclusively with the prosecution of individuals involved in organized crime. As part of the chapter, article 504 (p) states the following: "State prosecutor may order that special protection be secured for the witness, witness-collaborator, or members of their families." Quoted from Zakonik o krivicnom postupku, sa izmenama i dopunama (Criminal Procedure Act, with Amendments) , (Sluzbeni list, Belgrade, 2002) (unofficial translation).
6 Under the Rules of the Road agreement, concluded in 1996 in Rome by the signatories of the 1995 Dayton Peace Agreement, the authorities in Bosnia and Herzegovina cannot proceed with a war crimes prosecution unless the ICTY Prosecutor had verified that the evidence supports reasonable doubt that the suspect committed a gross violation of international humanitarian law.