Justice Eludes Republika Srpska

They sat crowded in a small courtroom of a Banja Luka court this week – eleven broad-shouldered men, their six lawyers and the five judges, looking far more anxious than the accused.

The men in the dock were former police officers from Prijedor, accused of illegally detaining a Catholic priest and his elderly parents at the start of the war. They were the first people ever to be tried for war crimes in Republika Srpska, RS – the part of Bosnia under Serb control.

The trial began with the seemingly endless reading out loud of the indictments and the opening statements of the accused. And after two days of this, the judges seemed happy to grab the first formal opportunity to adjourn the hearings - indefinitely.

The trial that was supposed to be a groundbreaking case - which would test the Bosnian Serb entity’s ability to deal with the legacy of the war - fizzled out before it even began.

In the nine years that passed since the end of the war, the Prijedor trial is the only war crimes proceeding in RS to make it even this far.

According to data gathered by IWPR from district prosecutors’ offices throughout this part of Bosnia, it appears that seven more indictments are currently being drafted. But these are a small percentage of the 42 cases approved by the Hague tribunal’s prosecutors. Such approval is required by the so-called Rules of the Road – an agreement concluded in the months after the end of the war, which states that no one in Bosnia can be detained on war crimes charges unless the Hague prosecutor's office has approved the evidence against them.

Although the investigative work done by the Hague court attests to the fact that the largest number of war crimes committed in the Bosnian war took place on what is now RS territory, nobody here seems to be in a hurry to put the suspects on trial.

This laxity becomes even more striking as the tribunal enters what are supposed to be the last six years of its existence.

Its completion strategy envisages devolving the trials of lower-ranking war crimes suspects to local courts in the former Yugoslavia, including Bosnia. But this particular part of the country is not only reluctant to prosecute war crimes, but it also continues to be a safe haven for a number of war-time officials indicted by The Hague - including the former Bosnian Serb political and military leaders Radovan Karadzic and Ratko Mladic.

RS is now part of the common state of Bosnia and Herzegovina and, after years of struggling, the international community has managed to introduce a unified federal criminal code and law on criminal proceedings, which are regulating also war crimes trials.

A dedicated war crimes chamber is being formed in Sarajevo, and this will be the only body to deal with the cases deferred to Bosnia by The Hague. But the local courts will still be in charge of cases involving lower ranking indictees, or those the tribunal failed to investigate due to time constraints.

Approached by the IWPR, the members of the Bosnian Serb judiciary cited a long list of procedural and technical obstacles that they say so far prevented these kind of investigations and trials in their part of the country.

Zoran Lipovac, assistant district prosecutor in Banja Luka, told IWPR that one of the main problems he and his colleagues are facing is “insufficient cooperation” with his counterparts in the Federation – the part of the country with a majority Muslim and Croat population.

Another appears to be a lack of legal clarity as to whether suspects should be tried in the place where the crime is alleged to have been committed, or where the charges had been brought – a potentially important detail in the cases where these places are situated in the territories under control of different ethnic groups.

Justice ministry spokesperson Maja Saric told IWPR that the problems lie in the Bosnian Serb judicial system. According to her, the RS criminal code, which came into effect in July 2003, did not contain any provision for war crimes and crimes against humanity, since these were placed under the jurisdiction of the Bosnian state court with the adoption of the new federal code.

But it seems that the Banja Luka authorities are not in a hurry to have these legal obstacles removed – the government's new report on the justice system, which is to be presented at the parliament session this month, does not even mention the issue.

Banja Luka lawyer Vojislav Dimitrijevic, who recently defended Bosnian Serb Darko Mrdja at the tribunal, agrees that a whole range of practical problems exist.

He said one lies with the new criminal code, which is very similar to The Hague’s rules of procedure and evidence, and is by and large based on the principles of Anglo-Saxon common law, which had been unknown in these parts until 2003.

This makes it easier for the new courts to accept the evidence gathered by the tribunal, but at the same time renders the proceedings totally alien to the army of prosecutors and judges – many of whom were educated in the judicial tradition of socialist Yugoslavia. "They will have to master the new proceedings, which they have never come across during their studies," said Dimitrijevic.

Another issue, he said, is the lack of witness protection measures, “Getting such protection would entail considerable financial resources and additional training and control of the individuals who should provide the protection for the witnesses.”

"I think that will be more than difficult to implement here," admitted Dimitrijevic.

If the first days of the Prijedor trial are anything to go by, fear may prove to be one of the crucial factors ruling the war crimes trials here. Anxiety was almost palpable in the crowded courtroom - the judges appeared intimidated by the accused and one of the prosecutors privately confessed that not too much should be expected from him and his colleagues. “We all have families, and our addresses are not so difficult to find,” he said.

The fact that people like Karadzic or Mladic have managed to remain at large for almost a decade points to the political and financial networks that the war crime suspects still run in this part of Bosnia – and for the people who participate in such networks, intimidation is not exactly a new skill to learn.

Another problem seems to lie in the grey area between the judiciary and politics, where the decisions are made on how to implement existing legislation.

Dimitrijevic said it would be difficult to gather the evidence needed to issue war crime indictments, especially “with the police, the army and other organs of the executive branch of government, which have not shown willingness to deal seriously with this issue".

He also stressed that lawyers representing future accused may hit insurmountable obstacles while gathering the evidence needed to defend their clients, “They may have difficulties getting access to the documents in public institutions – such as defense and interior ministries - which still are reluctant to allow access to documentation from the war.”

This reluctance recently led to the sackings of the Bosnian Serb army chief of staff and the head of a commission for cooperation with The Hague, who were removed from their posts by the Bosnian High Representative Lord Ashdown. He accused them of obstructing an investigation into the Srebrenica massacre, saying they had done “everything in their power to prevent the truth from being uncovered”.

Some politicians and human rights activists say it is exactly this political reluctance to face the past that prevents war crimes from being seriously prosecuted in the Serbian part of Bosnia.

The head of the Helsinki Committee for Human Rights in RS, Branko Todorovic, described the low number of war crimes trials in this part of Bosnia as “a disgrace”.

"Our courts have no trials... because the Hague tribunal has been persistently ignored since the end of the war and because of an irrational desire to justify everything that was done during the war by saying 'this had to be so’," he said.

Todorovic admits that the political climate in RS is "complex" but points out that the situation in the Federation is equally difficult, “and yet the courts [there] are doing their jobs”. In the latter around 100 war crimes trials have been conducted to date, many of which have ended in convictions.

The reason for this, says Todorovic, lies in the fact that few in RS are prepared to accept that crimes had been committed and that perpetrators should be brought to justice.

Responsibility, he adds, also rests with international community, which implemented the judicial reforms in Bosnia, but seems to have stopped halfway. “They should take advantage of their full powers so that the practice of ignoring this issue in RS would come to an end,” he said.

The Office of the High Representative in Sarajevo was approached by the IWPR to give its opinion on the issue of the readiness of Bosnian Serb judiciary for domestic war crime trials, but has declined to comment.

A former Bosnian Serb detainee, Muharem Murselovic, now a deputy representing a small pro-Bosnian party in the Banja Luka parliament, is pessimistic about the prospect of the RS mindset changing. "Those who have committed crimes are still considered heroes, and hence, we have this situation that our judicial organs ignore their obligation to investigate and process war crimes," he said.

“So will there ever be justice?"

Gordana Katana is a reporter with Radio Free Europe in Banja Luka and a regular contributor to IWPR. Ana Uzelac, IWPR project manager in The Hague, contributed to this report.