• Rules of the Road
• Transition Team
• Promoting regional cooperation
The Rule of Law is often a casualty during times of war. Rebuilding confidence in a country’s legal system after a conflict is a difficult task. Throughout its existence, the ICTY Office of the Prosecutor (OTP) has worked closely with the new states and territories that emerged from the former Yugoslavia on their domestic prosecutions. A number of key programmes have helped re-establish the Rule of Law in criminal matters in this war torn region.
Rules of the Road
In the aftermath of the war in Bosnia and Herzegovina (BiH), returning displaced persons and refugees voiced fears about arbitrary arrests on suspicion of war crimes. To protect against this, the OTP agreed to operate a "Rules of the Road" scheme under which local prosecutors were obliged to submit case files to The Hague for review. No person could be arrested on suspicion of war crimes in BiH unless the Tribunal’s prosecution had beforehand received and assessed a case file to contain credible charges.
The Rules of the Road procedure, established under the Rome Agreement of 18 February 1996, regulated the arrest and indictment of alleged perpetrators of war crimes by national authorities. As part of the Tribunal’s contribution to the re-establishment of peace and security in the region, the ICTY prosecutor agreed to provide an independent review of all local war crimes cases. If a person was already indicted by the OTP, he could be arrested by the national police. If the national police wished to make an arrest where there was no prior indictment, they had to send their evidence to the OTP. Under the Rome Agreement, decisions of the OTP became binding on local prosecutors.
Applying international standards, OTP staff reviewed 1,419 files involving 4,985 suspects, and advised local prosecutors whether or not they had enough evidence to proceed. Approval was granted for the prosecution of 848 persons.
The scheme ended in October 2004. Since then, it has been up to the Prosecutor’s Office of BiH to decide whether the sensitivity of a particular case requires that it is prosecuted at the state level.
To ensure as many persons as possible suspected of war crimes are brought to justice, the OTP continues to assist national bodies in the region by passing on evidence that may be of use in local investigations and by transferring whole cases for prosecution locally. A dedicated transition team within the OTP is tasked with handing over to national courts cases involving intermediate- and lower-ranking accused. Such cases fall into two broad categories.
Firstly are case files regarding suspects investigated by the OTP but where no indictments were ever issued. In this situation, it is the responsibility of the relevant organs in the national judiciaries to bring such investigations to a conclusion on the basis of the evidence received from the ICTY and raise indictments where appropriate.
The referral of some files with investigative material has already resulted in trials and judgements. In the County Court of Rijeka, Croatia, three persons were convicted of crimes committed against civilians of Serb ethnicity in the Croatian town of Gospić. Investigative material handed over by the OTP further lead to other trial proceedings. The War Crimes Chamber of the Belgrade District Court in Serbia is trying cases against more than 15 persons accused of crimes against Croatian victims in Vukovar and six accused charged with crimes against Bosnian Muslims in the Bosnian town of Zvornik. In Sarajevo, Bosnia and Herzegovina, one high-level accused was acquitted in the first instance on charges relating to several crime locations. One accused is on trial for crimes committed in Mostar. Two accused are jointly indicted and on trial for crimes committed in Kljuc municipality.
The Tribunal’s prosecution will continue to provide such case files with investigative material as part of its efforts to prevent impunity. In addition, the OTP is responding to many specific requests from national prosecutors for information relating to their ongoing investigations against war crimes suspects.
Secondly, where an indictment has been issued by the ICTY, transfer can occur under Rule 11bis of the Rules of Procedure and Evidence. A total of eight cases involving 13 accused have been referred to courts in the former Yugoslavia, mostly to Bosnia and Herzegovina. On the basis of an ICTY indictment and the supporting evidence provided by the Tribunal’s prosecution, these cases are tried in accordance with the national laws of the state in question. No further cases are currently under consideration by the Referral Bench, the three-judge panel set to consider motions for referral filed by the Prosecutor.
The OTP has provided training and assistance to prosecutors in the region through regular meetings, numerous working visits and participation in various seminars and workshops. With this assistance, local prosecutor’s offices have made progress in investigating and trying war crimes cases based on the information and files received from the Tribunal.
Promoting regional cooperation
The ICTY prosecution strongly supports efforts to enhance cooperation in criminal matters between states of the former Yugoslavia, as it is an essential step towards rebuilding trust and justice in the region. Successful trials before national courts require that prosecutors in the neighbouring countries can collaborate in the collection of evidence and securing witnesses. OTP officials have taken part in several regional meetings, facilitating the creation of good working relationships between the prosecutors in the different states.