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Amnesty International Report 2004 - Bosnia and Herzegovina

Covering events from January - December 2003

Impunity for human rights violations remained endemic. Thousands of "disappearances" which occurred during the 1992-1995 war remained unresolved and lack of cooperation continued to hinder the efforts of international and domestic courts to bring the perpetrators to justice. People displaced by the war continued to return to their homes. Around a million people had returned by the end of the year, almost half of those displaced by the conflict. However, many returns were not sustainable and returnees continued to face discrimination and violence. Some progress was made in prosecuting those responsible for serious human rights violations in the context of the trafficking of women and girls. However, the agencies responsible for addressing these abuses received inadequate state support.

Background

Bosnia-Herzegovina comprises two semi-autonomous entities, the Federation of Bosnia and Herzegovina (Federation) and the Republika Srpska (RS), as well as the autonomous district of Brčko. The country continued to be largely under the authority of the international community, in particular the High Representative nominated by the Steering Board of the Peace Implementation Council (PIC), an intergovernmental body responsible for monitoring the implementation of the Dayton Peace Agreement. The High Representative has far-reaching powers allowing him to dismiss public officials, including government and judicial officials.

New and multi-ethnic state and RS governments were appointed in mid-January and in February a new Federation government was sworn in. In April Mirko Šarović , the Bosnian Serb member of the state Presidency, resigned after a judicial investigation discovered evidence of his involvement in an illegal arms trade arrangement with the government of Iraq.

In May the state government entered into an impunity agreement with the USA not to surrender US nationals accused of genocide, crimes against humanity or war crimes to the International Criminal Court. Such agreements breach states' obligations under international law.

Legal reform

The State Court of Bosnia and Herzegovina – which has jurisdiction over organized crime and corruption, "international terrorism" and other crimes under international law – was officially opened in January.

In mid-June the PIC endorsed a proposal by the High Representative to abolish the Human Rights Chamber and transfer its caseload to the Constitutional Court, which has a narrower mandate. Implementation of this proposal was completed at the end of 2003. There were concerns about the large outstanding caseload of the Chamber and the lack of an accessible and adequate legal mechanism to take over this work. There were further fears that the domestic court system – currently undergoing far-reaching reforms and restructuring – may not prove capable or willing to provide redress in the near future.

In June the PIC endorsed a proposal by the Office of the High Representative to establish a special chamber for war crimes in the new State Court, to be operational from 2004. It was envisaged that the War Crimes Chamber would include international judges and prosecutors for a period of three to five years, after which it would be entirely staffed by local officials. However, AI remained concerned that the proposed solution would prove inadequate to address the vast legacy of outstanding cases of war crimes and other crimes under international humanitarian law. The proposal did not take into account the regional nature of the war and the fact that many perpetrators, as well as material evidence relating to these crimes, remained in neighbouring states, beyond the reach of the Bosnian criminal justice system. Another issue of crucial importance, the protection of vulnerable witnesses from attacks and intimidation, was not adequately addressed. The rushed and unrealistic timeline envisaged for the War Crimes Chamber to become fully and independently operational suggested an insufficiently detailed plan. Limited resources heightened the risk that the War Crimes Chamber would only be able to prosecute a small number of the thousands of suspects, selected on the basis of vague and contradictory criteria, and so undermine the battle against impunity – including efforts by the International Criminal Tribunal for the former Yugoslavia (the Tribunal) itself – and adversely affect the process of reconciliation.

The comprehensive overhaul of the country's intelligence services continued, under the supervision of the international community. The integrity and professionalism of the existing Federation and RS security and intelligence services had been challenged by repeated reports that they were operating outside the law and civilian control mechanisms.

Impunity for wartime human rights violations

International prosecutions

The Tribunal continued to try alleged perpetrators of serious violations of international humanitarian law, including Slobodan Milošević, former President of the Federal Republic of Yugoslavia.

In late March, two Bosnian Croats, Vinko Martinović and Mladen Naletilić, were found guilty of crimes against humanity and war crimes and sentenced to 18 and 20 years' imprisonment respectively, for their command and individual responsibility for crimes against the non-Croat population in the Mostar region in 1993.

In May, the trial commenced of four former commanders in the Bosnian Serb Army, for their criminal involvement in the executions of thousands of Bosniak men and boys after the fall of Srebrenica in July 1995. This trial was one of six separate proceedings initiated so far, which focused solely on the massive violations committed in the former "protected area" of Srebrenica. Two of the accused, Momir Nikolić and Dragan Obrenović, pleaded guilty to crimes against humanity and were sentenced in December to 27 and 17 years' impris0nment respectively.

Cooperation between the RS authorities and the Tribunal remained unsatisfactory. The RS police failed to arrest those indicted by the Tribunal. A total of 17 publicly indicted suspects remained at large at the end of the year, the majority of them Bosnian Serbs.

Domestic prosecutions

Several trials for war crimes opened or continued before local courts, mainly in the Federation.

• The Zenica Cantonal Court continued the trial of Bosnian Croat military commander Dominik Ilijašević for war crimes committed against Bosniak civilians in Stupni Do in central Bosnia, amid concerns that prosecution witnesses were not sufficiently protected from intimidating and offensive treatment by the accused and their families in court.

• The Banja Luka District Court continued criminal proceedings for war crimes against 11 former police officers from Prijedor in connection with the 1995 abduction and murder of Father Tomislav Matanović and his parents. In late January, the public prosecutor charged the suspects with war crimes against the civilian population.

Time and again the domestic criminal justice system failed to take steps to actively prosecute alleged perpetrators. A major factor in fostering this continuing impunity was the lack of cooperation between Federation and RS judiciary and police forces, in particular in enforcing arrest warrants.

• In April the Višegrad police in the RS failed to arrest two serving Bosnian Serb police officers charged with war crimes by the Goražde Cantonal Court in the Federation. The Višegrad chief of police denied having received an arrest warrant, despite the fact that it was reportedly handed over in the presence of police monitors from the European Union Police Mission (EUPM). The two suspects remained at large at the end of the year.

Unresolved 'disappearances'

Thousands of "disappearances" remained unresolved amid pervading impunity for the perpetrators.

• In March, the Human Rights Chamber of Bosnia-Herzegovina issued a decision in the case of 49 relatives of the "disappeared" from Srebrenica who had brought an application against the RS authorities. The Chamber expressly recognized the continuing pain of the relatives of the "disappeared" and concluded that the RS had done almost nothing to relieve their agony. The Chamber held that this inaction by the RS authorities amounted to a violation of the relatives' fundamental human rights. The Chamber ordered the RS to immediately disclose all information relevant to establishing the fate and whereabouts of the "disappeared". The RS was instructed to conduct a full and thorough investigation into the human rights violations at Srebrenica, to bring those responsible to justice and to pay 2 million euros in compensation for the collective benefit of all applicants and families of Srebrenica victims. Subsequently the Chamber struck out over 1,800 further applications filed by other Srebrenica relatives, as it was decided that the March decision would apply to all victims collectively.

In early June, the RS submitted a brief report to the Chamber which failed to address adequately the various parts of the decision which the government was obliged to implement. In September the RS authorities sent a second much more detailed reply to the Chamber which proposed, among other things, the establishment of an independent commission of inquiry into the events which took place in and around Srebrenica between 10 and 19 July 1995.

Right to return in safety and with dignity

According to the UN High Commissioner for Refugees (UNHCR) field mission in Bosnia-Herzegovina, some 54,000 people had returned to their pre-war homes by the end of December. This brought the total number of returnees to nearly a million. However, the UNHCR expressed concerns about the estimated 350,000 people who remained internally displaced, and who had little or no prospects for a durable solution through either return to their pre-war homes or effective resettlement. It stressed the need for donor funding for the reconstruction of housing, infrastructure, schools and health facilities to continue and to be more targeted to the needs of vulnerable displaced individuals.

Lack of access to employment was a major factor in people's decision not to remain in their pre-war community. Employment opportunities were scarce in general, reflecting the weak economic situation and the forced transition to a market-led economy through mass privatization. However, members of ethnic minorities in addition faced discrimination when trying to find work.

According to the UNHCR, in the period from January to May there were over 100 violent incidents against returnees and displaced people and their property, memorials or religious objects. In at least two cases these resulted in death. Rabija Ćaušević, an 80-year-old Bosniak woman who had returned to Bosanska Dubica in the northern part of the RS, was killed inside her home on 1 January 2003. In March, a Bosniak man, Smail Hrnjičić, who was renovating another Bosniak returnee's flat in west Mostar, was killed by an explosive device planted in the flat. Although police investigations were immediately launched into both incidents, the perpetrators of both attacks remained at large at the end of the year.

'Anti-terrorism' measures

In April the Chamber ruled that the state and Federation authorities had violated the fundamental rights of two Algerian nationals, Bensayah Belkacem and Mustafa Ait Idir, who had been unlawfully transferred to US custody in January 2002. In October 2002 the Chamber had made a similar ruling in the case of four other Algerian nationals unlawfully transferred to US custody at the same time. The Chamber had ordered the Bosnian authorities to use diplomatic means to protect the men from the death penalty and unfair trial while they remained in US custody, and to pay them compensation. The Chamber's decision was implemented only to the extent that the Bosnian authorities, in December 2003, agreed to pay compensation to the families of those being held by the US authorities in Guantánamo Bay, Cuba.

• In July, Amgad Fath Allah Yusuf 'Amir, an Egyptian national whose Bosnian citizenship was withdrawn in 2001, was taken into custody in the Federation on the grounds that he was carrying forged documents. Following his arrest, the Egyptian authorities requested his extradition, claiming that he was a member of an armed Islamist group. Pending a final decision on his citizenship – Bosnian law forbids the extradition of Bosnian citizens – he remained in detention at the end of the year.

Trafficking in women and girls

Some positive developments were noted in the prosecution of those responsible for serious human rights abuses against women and girls in the context of trafficking and forced prostitution.

• In March the Tuzla Cantonal Court found the owner of a local nightclub guilty of enslavement and sentenced him to three and a half years' imprisonment. The case marked the first conviction in the Federation for enslavement; those tried in trafficking cases had previously always been charged with the lesser offence of procurement.

• In May, five Bosnian Serb men were handed over to the custody of the State Court, which started an investigation into their alleged involvement in the trafficking of women and girls who had been forced to engage in prostitution in a chain of nightclubs in Prijedor.

In June the Office of the UN High Commissioner for Human Rights in Bosnia-Herzegovina issued a report which found that the State Commission, a special law enforcement body charged with implementation of a National Action Plan against trafficking, and law enforcement agencies were not given adequate support by the state government and that there were severe shortcomings in the provision of shelter to vulnerable victims. These concerns were shared by local human rights and women's organizations.

Gaps and ambiguities in the domestic legal framework hampered effective prosecutions. For example, the delayed adoption of the new Law on Asylum and amendments to the Law on the Movement and Stay of Foreigners further restricted the prevention of trafficking and protection for victims who continued to be treated largely as illegal migrants.

AI country visits

AI delegates visited Bosnia-Herzegovina in May and August.