REGIONAL REPORT: Safeguarding Justice

Experts have warned that a lack of protection for war crimes witnesses will impede possible domestic trials and is already putting lives in danger.

The issue proved the main topic at a conference in Banja Luka, held under the aegis of the International Criminal Tribunal for the former Yugoslavia, ICTY, which is currently working to enable cases to be tried by the Bosnian judiciary.

Until the provisional end of its mandate in 2008, the tribunal should process some 200 cases, focusing on high-ranking individuals. However, with a possible 4,000 people facing charges it is foreseen that many mid- and low-ranking accused will simply have to be tried locally.

During an earlier visit to Bosnia, tribunal president Claude Jorda emphasised that this would only happen once the country was deemed capable of holding trials according to international standards - during which witnesses would be protected at all stages of the proceedings.

At The Hague, the prosecutor can appeal to the trial chamber to order the non-disclosure of the identity of a victim or witness. This can mean striking their name from all public records, allowing them to provide evidence through image or voice-altering devices or over closed circuit television, or even in closed session. Yet such protection is only enforceable while the witness remains under the jurisdiction of the tribunal.

Those who have been through the process say real problems can arise upon their return home - whether they are officially protected or not.

"The tribunal does not have its own police, thus the protection of witnesses after their testimony solely depends on the goodwill of the local authorities in their place of residence," said Peter McClosky, a senior legal consultant to the ICTY prosecution.

Nusreta Sivac from Prijedor in north-west Bosnia survived the horrors of imprisonment at the nearby Omarska prison camp in 1992. She twice appeared before the tribunal as a protected witness - once against Milan Kovacevic and again in the Kvocka case - but somehow her identity was leaked.

"I never had any doubts whether I should testify," she told IWPR. "I experienced problems only afterwards. Just imagine someone who has to return home after [the Omarska trial] and then being exposed to fear, provocation and threats on a daily basis."

Taib Pasic, who represents the Alliance of Associations of Bosniak Families of the Captured and Missing, also believes the tribunal has not come up with adequate mechanisms for the ongoing protection of witnesses.

Pasic claims that a number of Bosniaks who testified before the tribunal as protected witnesses have had their identities revealed and have fallen victim to threats and even assault upon their return from The Hague.

He told IWPR that two months ago in Kozarac, north-west Republika Srpska, RS, local police physically attacked several Bosniaks who had given evidence, supposedly in secret. Neither he nor ICTY officials would provide any additional information about the incident.

A tribunal spokesperson, speaking on condition of anonymity, later confirmed that the ICTY had received a number of reports, through sources within non-governmental organisations, on the harassment of protected witnesses.

Currently, different laws regulate the protection of witnesses in the Federation part of Bosnia and the Brcko district while the RS has no legislation on the issue at all.

In RS, Banja Luka lawyer Krstan Simic - who has defended several war crimes suspects from the area - believes that there needs to be a new political atmosphere where a witness would be obligated to tell the truth and need fear no retribution.

"We should all work on this together," said Simic. "As wishes are one thing and reality another, we have to admit that this field is absolutely not regulated in our country. I think we should seek a legal solution that would provide the witnesses with full protection."

The ICTY would ultimately like to see an entirely new court created at state level to hold war crimes trials to an international standard - with strict witness protection provisions. At the moment, the present arrangements are clearly inadequate, as can be seen in the case of unidentified witness NN who testified in Banja Luka District Court against five ex-policemen charged with the 1995 murder of a Catholic priest and his family.

According to monitors from the Office of the High Representative, OHR, even before he testified, NN had said that he was afraid to go back to his hometown, Prijedor, and his testimony may have been limited to a great extent by his fear.

Refik Hodzic, who is in charge of the ICTY's outreach programme for Bosnia, told the conference of an additional problem in cases where the media publishes information about protected witnesses.

Hodzic cited an instance where Croatian daily Slobodna Dalmacija printed a transcript from the questioning of President Stipe Mesic - who had testified as a protected witness. Pasic gave an even more dramatic example where the Sarajevo Jutarnje Novine published a list of Bosniak women who had been raped in eastern Bosnia.

While these cases may all provide good reason for high standards of witness protection to be established across Bosnia, it remains to be seen how this will all be funded.

According to the Association for the Protection of Jeopardised Peoples in the country, full protection costs up to 50,000 US dollars per person - money Sarajevo simply does not have.

Gordana Katana is a correspondent with the Sarajevo daily Avaz