Interview: No Justice Without Regional Cooperation

Stephen J. Rapp, US Ambassador-at-Large for War crimes, said that given that Bosnia, Croatia and Serbia do not extradite their own citizens, regional cooperation is vital to ensure successful prosecution of war crimes.

“Without extradition, which is constitutionally and politically very difficult, we are in a situation where we have to share information and send files or even witnesses across borders to prosecute the subjects in the countries that have jurisdiction,” he said.

“We want to make sure prosecutions can happen because people talk about hundreds of suspects of war crimes in Bosnia living in Serbia and Croatia,” Rapp added.

The Ambassador-at-Large said this process would be made easier if the Prosecutions of Bosnia and Serbia signed the protocol on cooperation on war crimes cases agreed back in February 2009.

“In our view the agreement negotiated by the ministries of justice in 2009, which says cases should be prosecuted in those countries where people are residents, should ease the political outcry,” he said.

“We would like the protocol to be signed and implemented. At the moment it is being blocked [in Bosnia] on a constitutional issue and we hope that will be resolved soon, because if you sit down with people of different ethnicities they all agree this needs to be resolved in order for justice to be possible.”

The Prosecutor’s Office of Bosnia and Herzegovina and Serbia’s Office for War Crimes Prosecution were supposed to sign a protocol on co-operation in the Prosecution of Perpetrators of War Crimes, Crimes against Humanity and Genocide in Brussels on November 30.

But the agreement was blocked by the Presidency of Bosnia and Herzegovina, the country’s collective head of state, which said it was the only body competent to conclude international treaties.

Rapp said a protocol on cooperation would stop investigations into a single crime being conducted by both the Serbian and Bosnian judiciaries at the same time.

He said that cases such as Serbia’s attempted extradition of Jovan Divjak in 2011 and Ejup Ganic in 2010, from Austria and Britain respectively, had caused “anger among the people of Bosnia and Herzegovina”. 

Serbia suspects Divjak and Ganic of involvement in Dobrovoljacka Street case of 1992, when several Yugoslav People’s Army, JNA, soldiers were killed while pulling out of Sarajevo.

Investigations into the crime are being conducted by both the Bosnian and Serbian prosecutor’s offices. But Divjak and Ganic were arrested on warrants issued by the Serbian prosecution. Both the Austrian and British courts decided against extradition to Serbia and both suspects have since returned to Bosnia.

Comparing Bosnia’s judiciary to other judicial institutions in the region, especially in terms of dealing with war crimes, Rapp said Bosnia had benefitted from the presence of international judges and prosecutors working in Bosnia’s state court, the Court of Bosnia and Herzegovina. 

In Rapp’s view, it is vital for the judiciaries in Serbia and Croatia to prosecute crimes committed by “their own side” against minorities.

“In Croatia and Serbia they are trying some cases - and I believe that when these cases are done by one’s own national system, that helps people accept that crimes really were done on all sides, and that these crimes were not done by the Serbian, Bosnian or Croatian people as a whole but by individuals”, Rapp said.

Speaking about his visit to Sarajevo, where he met representatives of the state court and prosecution and the Ministry of Justice, Rapp said the visit was aimed at demonstrating America’s support for the process of facing the past.

“We are quite pleased with war crimes prosecutions in Bosnia, and this is a model that I mention often in countries in Africa and Asia,” he said, “the idea of having a state court and a war crimes chamber that specializes in these cases, which benefits initially from international participation which is then phased out.

“In terms of the complexity of the cases, the Court of Bosnia and Herzegovina has produced high quality judgments and has done so a whole lot less expensively then cases before the International Criminal Tribunal for the Former Yugoslavia [ICTY] in the Hague,” he added.

While Rapp expresses satisfaction with the work of the Court of Bosnia and Herzegovina, he wants to see the implementation of the National War Crimes Strategy, which was signed in December 2008 by the Council of Ministers of Bosnia and Herzegovina.  

“There has been criticism that there have not been enough cases conducted against Bosniak [Muslim] perpetrators [of war crimes], but there are investigations and we also have to bear in mind the number of victims and number of crimes, which are by no means equal,” he commented.

“Obviously it is important to pursue cases wherever we have serious crimes regardless of ethnicity, to show that justice is [done] without fear and favour and that you can prosecute your own [people] when somebody has done something wrong,” Rapp said.

Three years after the adoption of the National Strategy for War Crimes - which envisages that the most sensitive war crimes cases will be completed within seven years, and all others cases within 15 years, Bosnia still has a large number of open investigations for war crimes, Rapp said. The US government remained “very supportive of the [war crimes] strategy,” he added.

“I know many people think war-crime cases are complicated and they need to be handled at a higher level, which means the State Court, but I think that the resources are simply not there and it’s important that low-level cases be referred back to cantonal and district courts in Bosnia,” he said.

“There are challenges there, especially concerning capacities, such as witness protection and small courtrooms where the inductee and victims sit almost side by side, so it is important to strengthen capacities,” Rapp said.

One of the main goals of Bosnia's strategy for war crimes was to move a large number of cases to entity level. The document called on officials to “ensure the proper distribution of war crimes cases between the state and entity levels, which will enable the efficient processing in the given period of time”.

To achieve this objective, Bosnia was expected to establish a centralized record of all pending war crimes cases within one month of adoption of the strategy.

The Court of Bosnia and Herzegovina would then decide which “very sensitive” cases to keep in its own hands and which less sensitive ones to refer to entity courts.

Rapp noted that there had been a delay in working out which cases should be prosecuted at which level, but said that this issue has now been resolved.

“A panel of judges of the State Court has begun the reviewing process and identified 111 cases that can go to these courts out of 600. Others still need to be reviewed. We support making sure that the standards that judges use to decide this be made public, so that people understand [the process],” Rapp said.

Stephen J. Rapp was appointed Ambassador-at-Large for War Crimes Issues by President Barack Obama, in 2009. Prior to his appointment, he served as Prosecutor of the Special Court for Sierra Leone and as Senior Trial Attorney and Chief of Prosecutions at the International Criminal Tribunal for Rwanda.