«Martina Fischer/Ljubinka Petrović-Ziemer Forschung DSF Nº 36 Dealing with the Past and Peacebuilding in the Western Balkans1 Martina ...»
The greatest challenge for the Commissions for Missing Persons is to obtain access to information about the sites of atrocities and mass or individual graves. Obtaining access to state archives is often quite complicated and obstructed by the authorities. Most of the evidence was provided by families of the missing. In addition to this, the commissions face other difficulties. Detecting undiscovered mass graves largely depends on the cooperation and observations of people in local communities. This cooperation, however, cannot be imposed. Community members need time to establish trust towards the exhumation teams, before sharing useful information. Besides, the identification of human remains is often very time-consuming. The existence of tertiary mass graves that have been detected in Bosnia is slowing down the process once more, as in this case the remains are even more difficult to access. Furthermore, family members and relatives are crucial for the identification process, but in many cases they are difficult to trace due to frequent residence changes, migration or even death. Despite these problems, it is also mentioned that based on their experience, the Commissions for Missing Persons in Bosnia have set new standards in this field that are now being applied in the wider international context.
Furthermore, the representatives of the Commissions stress that terminological clarification is needed, as key terms related to the war such as “genocide”, “aggression” and “civil war” are defined in very different ways by the members of the CMPs in the three countries. The same applies to terms like “concentration camp”, “detention camp”, “detention centre”, and “collection centre”.
4.5. Partners and forms of cooperation
4.5.1. Cooperation: the legal institutions’ experience Representatives of the domestic courts and prosecutors’ offices in all three countries draw attention to the fact that, in order to be effective, the judiciary needs good cooperation with various institutions like the police, the state agencies for security, exhumation teams, victims’ and veterans’ associations, human rights NGOs, the EU, the OSCE, and UN organisations. So far, cooperation was rather spontaneously organised and, as a consequence, not always very well-coordinated.
Cooperation between the ICTY, international organisations and the domestic judiciary ICTY representatives consider the cooperation with the domestic legal institutions to be very good. In general, representatives of the domestic judiciary in all three countries also express very positive assessments of the collaboration with the ICTY. This has focused on improving the technical equipment of the domestic courts, including the transfer of relevant data for trials, on staff training, and on improving the security situation for judges and witnesses. The cooperation is assessed as frequent, direct, highly professional, and constructive.
At the same time, the interviews reveal that the cooperation between domestic judiciary and the ICTY / international organisations was also marked by conflicting opinions on legal proceedings. Interviewees from Croatia mention opposing views on trials in absentia.
Domestic courts in Croatia applied the practice of lawsuits in absentia quite frequently in cases when the indicted persons lived outside the country and thus could not be arrested or transferred to the courts. Trials in absentia allow the courts to speed up the conclusion of war crimes cases. International organisations urged the courts to abandon this practice as it prevents the accused from defending himself in court and cannot guarantee that trials are conducted under fair conditions. Interviewees from Croatia express discontent with regard to this international intervention and suggest verifying, in each case, which benefits and disadvantages a trial in absentia would actually bring for a particular case.
Furthermore, they complain that the war crimes chambers in Croatia have asked the ICTY to take over cases where they felt that they could not conduct these trials in an appropriate way. But these requests were refused by the ICTY (L-CRO-5).
Cooperation between the legal institutions across the countries has significantly improved, as the interviews reveal. The cooperation among the prosecutor’s offices in Croatia and Serbia is now based on an official agreement on exchange of evidence on war crimes, which is regarded as very positive by the representatives of legal institutions in these countries. In contrast, the interviewees from Bosnia are rather dissatisfied with the cooperation among the various legal institutions in their country. They also express discontent with the cooperation on a regional level. They explain that the difficult state structure and political divide impede both effective collaboration between legal institutions in the country and regional cooperation.
Cooperation with human rights NGOs, victims’ and veterans’ organisations The interviewees from the ICTY regional offices in all three countries stress that the cooperation with NGOs is indispensable. In particular, the public relations activities of the outreach offices could not have been conducted without the assistance of NGOs. Both the domestic judiciary and the ICTY regional offices emphasise that in particular, the cooperation with the Helsinki Committees for Human Rights in all three countries is very helpful. Specifically, the work with the Helsinki Committee for Human Rights in Bijeljina in the Serb entity of BiH has proved to be most beneficial and welcome. Activities include joint visits to local communities in order to present the findings of courts and prosecution.
According to the interviews, these encounters have illustrated that even in divided communities with a high degree of inter-ethnic animosity, community members are willing to give up the practice of protecting and hiding war criminals.
According to the interviews, some CSOs have managed to establish themselves as competent partners for approaching victims and veterans, for instance by accompanying them as witnesses in court proceedings. The representatives of the Chief Prosecutor’s Offices in all three countries appreciate that NGOs are very helpful mediators in establishing contacts between victims’ groups and veterans’ organisations with the prosecutors.
The collaboration with victims’ organisations is seen as essential since they help trace (victim) witnesses who are willing to testify. The cooperation with war veterans’ organisations is also considered beneficial for tracing potential witnesses. Furthermore, veterans are considered to be important sources of information on specific war operations, military structures, and chains of command. The interviewees highlight that when communicating with victims and veterans, it is of paramount importance that the judiciary is sensitised to the specific problems and needs of these social groups. Remembering the details and describing them accurately during questioning is very painful for the witnesses/victims and the courts must ensure that these persons do not experience retraumatisation or amnesia during the trials due to psychological pressure. In this respect, the interviewees suggest that the legal staff should receive special training in order to be sensitised to the need for empathetic treatment of traumatised witnesses. At the same time, the interlocutors recommend that the judiciary should resist unrealistic expectations expressed by victims’ groups and veterans’ associations. It is reported that victims often express a strong wish for very high penalties for the perpetrators. Veterans’ groups often expect the court to prove the innocence of their members. If such expectations are not met, the competence and impartiality of legal institutions are questioned. Additionally, these representatives note that social status is regulated in a more satisfactory way for veterans than for victims. For example, the status of disabled war veterans is already regulated by law, whereas for civil victims of torture it is still in progress.
However, representatives of the domestic judiciary in all three countries also express critical attitudes towards NGOs. One point of criticism is that some NGO activists feel compelled to make assessments in areas they are not qualified for. Even though the critical feedback from human rights activists is highly appreciated, a few interviewees mentioned that some monitoring reports on war crime trials issued by NGOs were based on very limited expertise. The interviewees suggest that civil society actors should realistically assess their own capacities and areas of responsibility in order to avoid misunderstandings, mutual frustration, and duplication of work.
Nevertheless, the interviewees agree that it is important to have an audience consisting of diverse actors, including civil society organisations, in the courtrooms. The presence of journalists, human rights activists and peace practitioners, veterans’ unions, victims’ groups, and relatives (of the accused, witnesses or victims) is an element of monitoring and control and also a motivating factor: it contributes to sharpening the “conscience of the judges and supports their determination to abide by the principles of fairness and impartiality” (L-CRO-5).
Cooperation with governments and state institutions In Serbia and Croatia, interviewees report that legal institutions receive full support from the state presidents, the governments and the ministries of justice and finance in the matter of war crimes prosecution. In arresting and punishing war criminals, legal institutions very much depend on the collaboration with the police and military, the foreign ministries, the offices for European integration, security agencies, the state commissions for missing persons, the National Council for Cooperation with the ICTY (in Serbia), and the prisons. The cooperation with these institutions is described as very good.
Assessments in BiH are different: The fact that the President of Republika Srpska Milorad Dodik questions the legality of the Court of BiH is an expression of a deep divide and polarisation within the country that burdens the work of the legal institutions and hinders efforts for war crimes prosecution. The interviews reveal that the cooperation between legal institutions, police and the Commissions for Missing Persons is crucially important.
Each has its specific role in the process of investigation and prosecution of war crimes. For example, exhumations are in some cases the first step in collecting evidence.
4.5.2. Cooperation: experience of the Commissions for Missing Persons
Collaboration with legal institutions, local authorities and victims’ organisations The interviews reveal that the Commissions for Missing Persons in all three countries collaborate with legal representatives on a very practical basis. They are obliged to share relevant information with legal institutions. As exhumations are a first step in collecting evidence for war crime prosecutions, the process has to be monitored by an investigative judge and a prosecutor. The cooperation with the domestic legal institutions is assessed as excellent and highly professional by all CMP representatives interviewed. The same applies to the collaboration with the ICTY. On the one hand, the material presented as evidence by the courts helps the CMPs in their search for the missing. On the other hand, the CMPs’ findings also complement the information available to the courts. It is reported that the CMPs also engage in regular exchange of information with the police and local authorities in communities where war crimes were committed. They need to build trust with these actors in order to obtain relevant information.
The CMPs are also involved in joint activities with victims’ organisations, both on a local and a regional level. According to the interviewees, the relationship is based on mutual respect and trust. It is reported that as a consequence of regular and frequent regional meetings, victims’ groups from the entire region of the former Yugoslavia have established contacts and developed cooperation. It is believed that the benefit of such encounters is that victims realise that there are victims in all national groups, and that they all have similar problems. The CMPs in all three countries also work closely with the International Commission on Missing Persons (ICMP) and the International Committee of the Red Cross (ICRC), which extensively support the regional activities and also the meetings with victims’ organisations. The collaboration with these international agencies is also assessed as highly valuable and professional.
Cooperation among the Commissions of Missing Persons across countries Representatives of the CMPs in all countries emphasise that consolidated lists of missing persons are very important as they significantly speed up the search and reduce opportunities for manipulation. Consolidation can only be achieved through regional cooperation. The Commissions from BiH, Serbia and Croatia meet regularly in order to evaluate achievements, reflect on unsolved questions, and plan further activities. The cooperation is regarded as very effective and as having a firm basis. Between Croatia and Serbia, much of the information on missing persons and inmates of detention camps in both countries was consolidated. This is seen as a significant step forward.
In Bosnia, the assessments hint at the ambivalence of cooperation. The representative of the Missing Persons Institute of Bosnia-Herzegovina (MPI) says that he is satisfied with the achievements of his agency, as well as with the findings of the previous commissions established after the war (in this earlier period three commissions were in operation, reflecting the ethnopolitical divide: the Commission of the Federation of BiH, the Commission of the former Herceg-Bosna, and the Team for Missing Persons in the RS, which is still active). In contrast, the representative of the Team for Missing Persons in the Republika Srpska argues that the search for missing persons was more efficient before the MPI was founded as a joint mechanism at the state level in 2008. The interviewee argues that more missing persons from the Serb community were found before, that the creation of the MPI was unnecessary, and that it is impeding rather than speeding up the process of determining the fate of the missing.