Model-Strategy-for-the-Prosecution-of-War-Crimes-Committed-during-and-in-relation-to-the-Armed-Conflicts-in-the-Former-Yugoslavia_za-web

MODEL STRATEGY FORTHE PROSECUTION OF WARCRIMES COMMITTED DURINGAND IN RELATION TOTHE ARMED CONFLICTSIN THE FORMER YUGOSLAVIAPeriod: 2015-20251This publication is part of the project Fostering Civic-Political Cooperation to Improve Accountability for War Crimes in Serbia. The publication is made possible by thesupport of the European Union and United States Agency for International Development (USAID), which cooperated with the Institute For Sustainable Communities (ISC)on the implementation of this project. The contents of this Humanitarian publication are the responsibility Law Center of the Humanitarian Law Center and do not necessarily reflect the views ofthe European Union, USAID or the United States Government.

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Acronyms and AbbreviationsAppeals Court Department – the Department of War Crimes of the Court of Appeal in BelgradeAssistance and Support Service – Service for assistance and support to witnesses and victims withinthe Department of War Crimes of the Higher Court in BelgradeCPC – Criminal Procedure CodeEU – European UnionHCC – High Court CouncilHigher Court Department – the Department for War Crimes of the Higher Court in BelgradeHLC – Humanitarian Law CenterICTY – International Criminal Court for the Former YugoslaviaLaw on the Prosecution of War Crimes – Law on Organization and Jurisdiction of GovernmentAuthorities in War Crimes Proceedings5OWCP – Office of the War Crimes ProsecutorOWCP’s Strategy – OWCP’s Strategy for acting in cases of war crimesProsecutor – War Crimes ProsecutorSPC – State Prosecution CouncilStrategy – Strategy for the prosecution of war crimes committed during and in relation to the armedconflicts in the former YugoslaviaWCIS – War Crimes Investigation ServiceHumanitarian Law Center

defence counsel, representatives of non-governmental organizations, victims, former witnesses from theProtection Programme for the participants in the criminal proceedings, legal experts, and the analysesof judgments and other documents rendered with regard to war crimes proceedings conducted in thecountry and the region of former Yugoslavia. During the research, the HLC’s collocutors agreed that theadoption of a state strategy for the prosecution of war crimes would represent a significant stimulus forthis important social process and a tool for addressing a number of issues in this area. The Analysis alsocontains 75 recommendations addressed to the state bodies of the Republic of Serbia and to internationalactors, for the purpose of enhancing various sectors of war crimes prosecution in Serbia, and particularlywith an eye to harmonization with international standards in certain areas.After publishing the Analysis, the HLC organized five consultative meetings with representatives ofinstitutions of Serbia and other actors who participated in the production of the Analysis. 3 During theconsultative meetings, the representatives of institutions and experts provided their assistance in thefurther articulation of recommendations for the improvement of certain aspects of the prosecutionof war crimes in Serbia. The conclusions and recommendations from these sessions are embodied inthe Model Strategy.The Model Strategy defines the activities, activity leaders and resources necessary for the fulfillingof objectives aimed at the resolution of the problems encountered in the prosecution of war crimes,and also at the significant intensification of the work on these cases in the following 10 years. TheModel Strategy covers the period 2015-2025, since this period represents the key period for bringingresponsible individuals to justice. In the period following 2015-2025, the intensity of court proceedingsis expected to drop, owing to the passage of time and life span of witnesses, perpetrators, and survivors;however, it is not expected to stop completely. In this sense, the Model Strategy represents a valuableguideline for the work of institutions even in the period following 2025.8War crimes trials represent a precondition for the democratization of a society, affirmation ofthe culture of human rights and the rule of law, and reconciliation between peoples in the region.Following the completion of the work of the International Criminal Tribunal for the Former Yugoslavia(ICTY), local judicial institutions represent the only mechanism for establishing criminal justice forthe wrongdoings committed during the nineteen-nineties. In addition to this, the establishing ofindividual criminal responsibility for war crimes on the territory of the former Yugoslavia representspart of the formal conditions for Serbia’s accession to the European Union, as integrated in thenegotiation chapter 23 (Rule of Law).The HLC believes that the adoption and the implementation of the Strategy would be the key guaranteeof the dedication of government authorities to this significant social process, and the fulfillment ofthe legal and civilizational obligations of the Republic of Serbia towards victims of the war crimescommitted during the 1990’s.The HLC calls for the Republic of Serbia’s Ministry of Justice to establish a task force for the discussionof the Model Strategy, thus initiating the process of the production of a government strategy for theprosecution of war crimes in Serbia for the period 2015-2025, and an accompanying action plan,which would then be proposed to the Governement of the Republic of Serbia for adoption.3 List of participants enclosed in Annex 1.Humanitarian Law Center

IntroductionThe political crisis and the break-up of the Socialist Federal Republic of Yugoslavia resulted in fiveinternational and internal armed conflicts – in Slovenia (June-July 1991), Croatia (1991-95), Bosniaand Herzegovina (1992-95), Kosovo (1998-99), and Macedonia (February – August 2001). Theconflicts were marked by serious, systematic and mass violations of international humanitarianlaw. The conflicts resulted in more than 130,000 casualties, most of whom were civilians. More than11,000 people are still registered as missing. Tens of thousands of people were detained in campsand collection centres, where they endured torture, sexual violence, inhuman treatment, and othersorts of violence and humiliating treatment. Approximately 4.5 million people were forced to leavetheir homes. The conflicts were marked by large-scale destruction and looting of private and publicproperty, industrial facilities, cultural and religious facilities, etc.The Government of the Republic of Serbia’s stance is that every case of war crimes has to beinvestigated and appropriately punished in accordance with the applicable domestic and internationalprovisions, regardless of the national or religious background, or any other personal characteristicof a victim or a perpetrator. All individuals who are suspected of committing war crimes, either inthe capacity of direct perpetrators, or as commanders or persons responsible for these crimes onthe basis of command responsibility, have to be brought to justice in accordance with domestic andinternational law.9The establishing of individual criminal responsibility for war crimes committed during the nineteenninetiesrepresents a necessary condition for the rule of law and the strengthening of the credibility ofinstitutions, particularly the credibility of the judicial bodies of the Republic of Serbia. In the light ofthe strong determination of the Republic of Serbia to become a member of the European Union (EU),the prosecution of individuals responsible for the most serious violations of human rights represents astrong expression of the affirmation of basic principles that the EU rests on – the principle of the ruleof law and the principle of respect for human rights and freedoms. The prosecution of war crimes alsorepresents the most significant step towards the building of good neighbour relations, reconciliationbetween peoples, and sustainable peace in the region of the former Yugoslavia.After the adoption of Resolution 1503 by the UN Security Council in 2003, which announced thecompletion of the mandate of the International Criminal Tribunal for the Former Yugoslavia (ICTY),and called on the successor states of the former Yugoslavia to reinforce their domestic capacities forthe prosecution of war crimes, the Republic of Serbia passed the Law on Organization and Jurisdictionof Government Authorities in War Crimes Proceedings (Law on the Prosecution of War Crimes),which established specialized institutions for the prosecution of war crimes – the Office of the WarCrimes Prosecutor (OWCP), specialized trial chambers, police investigation and witness protectionunits, and the service for the witnesses/victims support. Other laws and bylaws have also been passedHumanitarian Law Center

of perpetrators, and these are indictments raised against perpetrators who held lower rankingpositions in the political, military and police hierarchy. The decisions of the OWCP to file indictmentsin certain cases has pointed to the lack of clear criteria according to which cases are being selectedfrom the group of unresolved cases which are pending pre-investigation phase, before the launching ofinvestigations. Certain indictments, according to the assessment of the expert public, have representedan irrational spending of resources, bearing in mind a number of other cases with serious evidentiarymaterial collected by the ICTY, with regard to which the OWCP has never launched investigations.Compared to the prosecution offices which have the same competences in the region, in BiH andCroatia in particular, the indicators of the OWCP’s work are visibly poorer. Due to the small numberof cases ongoing before the trial chambers in the period 2011-2014, their capacities have remainedunused, and the judges sitting in these chambers were appointed to act in cases of organized crime.The results of the work of the OWCP do not meet the expectations of a concerned public, or of thesurvivors and families of victims of war crimes committed.As for the cases in which prosecution has yet to begin, there are more than 800 pending cases inthe OWCR records. Alongside the new cases that the OWCP will certainly take up in its work, thepending cases represent a serious challenge for the prosecution of war crimes in Serbia, and point topossible failures in establishing justice in the case of a large number of crimes committed during the1990’s.Considering the current dynamics in the work of the OWCP, it is clear that during the forthcomingperiod of 10 years, less than 10% of the existing pending cases will be completed if the OWCP maintainsthe current dynamics - and this assessment excludes the new cases. These anticipated results of thework of the OWCP point to the need for a new approach in order to resolve a substantial number ofunresolved cases in the foreseeable period of time.There are a number of reasons leading to this unsatisfactory level of efficiency. The OWCP lacksthe clearly defined working strategy necessary for efficient operation in a complex field such as theprosecution of war crimes. The OWCP and the War Crimes Investigative Service (WCIS), as thekey institutions responsible for the investigation and prosecution of war crimes cases, do not havesufficient financial and human resources for work on such a larger number of cases, certain ofthem very complex. A number of problems have also been identified in the work and communicationbetween these two institutions. The problems concerning protection of insider witnesses also affectsthe possibility of starting a larger number of cases. 511On the other hand, there are a number of circumstances, which may have a positive effect on thelikelihood of more efficient work by the institutions specialized in the prosecution of war crimes,the OWCP in particular; hence they should be utilized more during the forthcoming period. By thisis meant that, during its mandate, the ICTY collected substantial amounts of documents which areinvaluable for the prosecution of war crimes, which are available to the OWCP today through variousmechanisms. A number of crimes have been reconstructed, as well as the contexts in which theywere committed, as have the structure of the armed forces and political authorities on the basis ofthe factual and legal conclusions reached by this court. The OWCP also has direct cooperation withthe prosecution offices of the same competences in the region, which allows for an easy exchange ofevidence and information.5 See Chapter 3.2. for more information on problems and measures for enhancing non-procedural protection.Humanitarian Law Center

General objective: By 2025, the OWCP will have prosecuted all priority cases of war crimes againstperpetrators accessible to the institutions of the Republic of Serbia; it will also have provided evidencefor the prosecution of other perpetrators before the state institutions of the countries to which theseperpetrators are accessible by means of regional cooperation, and it will have prosecuted at least halfof the mid-priority cases.1.1. OWCP’s strategy for acting in cases of war crimesAccording to the information by the OWCP, there are more than 800 cases against identified andunidentified individuals pending pre-investigative phase and it is certain that this number will increasein the forthcoming period.The prosecutor offices responsible for cases of war crimes in the region of the former Yugoslavia,which deal with similar workloads of unresolved cases (BiH and Croatia), have adopted strategydocuments expressing their determination to achieve the resolution of priority and the most complexcases, and defining the criteria to be followed in the identification of these cases, action plans for thesecases, required resources, etc.12The adoption of a similar strategy document is important for the future work of the OWCP andefficient prosecution of war crimes in Serbia, for a number of reasons. First of all, the OWCP’s Strategyfor acting in unresolved cases of war crimes (OWCP’s Strategy) would establish objectives anddeadlines for action in cases and in the cases that will be assigned to OWCP in the future. This wouldcontribute to a more rational use of the OWCP’s resources and the establishing of measurable criteriafor the assessment of the success of the work of this institution. The OWCP’s Strategy will introducetransparency to the work of the OWCP and contribute to the strengthening of the credibility of thisinstitution in the eyes of the public.Prior to the beginning of the production of the OWCP’s Strategy, it will be necessary to establish theexact number and nature of unresolved cases of war crimes under the jurisdiction of the OWCP. Itwill also be necessary to establish the exact number of cases of war crimes still pending before courtsof general jurisdiction and initiate their transfer to the jurisdiction of the OWCP, owing to the lack ofcapacities in the courts and prosecution offices of the general jurisdiction to prosecute cases of warcrimes.Specific objective no. 1: All cases of war crimes and other criminal offences which could becharacterized as war crimes which are pending before the courts and prosecution offices of generaljurisdiction, are transferred to the jurisdiction of the OWCP.Activities:a) The Ministry of Justice will initiate the procedure for the amendment of Article 20 Paragraph2 of the Law on the Public Prosecutor’s Office, hence extending the power of the RepublicPublic Prosecutor to authorize the Prosecutor for Organized Crime to act in cases from thecompetence of another prosecutor, for the purpose of a more efficient prosecution or someother important reasons to the War Crimes Prosecutor as well.b) The Republic Public Prosecutor shall, in accordance with Article 20 Paragraph 1 and Article 29Paragraph 3 Item 2 of the Law on the Public Prosecutor’s Office, will conduct supervision of thecases of war crimes and other criminal offences committed during the armed conflicts, to beHumanitarian Law Center

qualified as war crimes according to the circumstances of the event, and which are under thejurisdiction of the prosecutors of general jurisdiction, and render decisions on the transfer ofthese cases to the jurisdiction of the OWCP, or it will authorize the OWCP to act in these cases.c) The Republic Public Prosecutor will publish a list of these cases on its web page.Specific objective no. 2: The OWCP will have detailed and comprehensive records of unresolvedcases of war crimes.Activities:a) The Prosecutor shall form a Team for recording cases comprising two deputy prosecutors andan associate, who will be tasked to prepare detailed records of all cases pending in the OWCP;the records will consist of information on the most significant elements of each case (shortdescription of the criminal offence, qualification of the act, number of victims, affiliation to theparty to the conflict, and the rank of the suspects, number of victims, available evidence, etc.).b) The Records Team shall update all subsequently received cases and forward them to theOWCP Strategy Drafting Team.Specific objective no. 3: The OWCP shall have prepared and adopted the Work Strategy for theperiod 2015-2025.Activities:a) The Prosecutor shall form OWCP Strategy Drafting Team (Team), which will comprise twodeputy prosecutors and an associate, who will, after the adoption of the OWCP’s Strategy,have the task of monitoring its application (Team for the Monitoring of the Application of theStrategy).13b) The Team shall organize expert consultation with prosecutors from the OWCP, the RepublicPublic Prosecutor’s Office, judges of the Higher Court Department , the Appeals CourtDepartment, ICTY representatives, legal experts, prosecutors from the region, organizationsmonitoring war crimes trials, and other relevant collocutors, on the criteria for the prioritizationof cases. Among the criteria that will be discussed during the consultation, although notnecessarily exclusively, are: i) the severity of consequences (the act of commission) and theextent of the crime (the number of victims, the proportion of destruction of property andcultural and religious facilities); ii) the role of the accused (formal and de facto position inmilitary/paramilitary/police/political hierarchy); iii) availability of suspect/s; iv) availabilityand quality of evidence; v) cruelty and recklessness when committing the criminal offence; vii)the interest of the public.c) A catalogue of criteria shall be created by the Team for case prioritization.d) According to the criteria established, the Team shall determine the categorization of cases,including A, B, and C categories: category A includes priority cases, meaning the cases whichfulfil most of the criteria established; category B includes middle priority cases; and categoryC includes the lowest priority level.Humanitarian Law Center

e) The Team shall create a draft Strategy for the OWCP, which will include (but will not belimited to) the following elements:i. Catalogue of cases listed by categories;ii. Action Plan for work on cases in A and B categories up till 2025;iii. Preliminary assessment of necessary resources for the meeting of objectives and deadlinesestablished by the OWCP’s Strategy and accompanying Action Plan;iv. Guidelines for the use of the evidence and facts established before the ICTY, theapplication of provisions of international law (particularly the provisions relating tocommand responsibility and crimes against humanity), the support to the injured partiesfor the purpose of proving their compensation claims during the criminal trial, etc;v. Action Plan for investigations into property acquired through the commission of warcrimes;f) The Prosecutor shall discuss and adopt the OWCP’s Strategy upon receiving the opinion of theRepublic Public Prosecutor;g) At a press conference, the Prosecutor shall present the criteria for case categorization, thequantitative elements of the OWCP’s Strategy and Action Plan and other aspects of theOWCP’s Strategy, the publication of which is not to jeopardize any investigations and thework of the OWCP in certain cases.14Specific objective no. 4: The OWCP shall implement the Strategy of the OWCP in line with theobjectives and deadlines set.Activities:a) The Prosecutor and his deputies shall have annual work schedules for the following yearcompleted by December 31 st , in line with the Action Plan of the OWCP’s Strategy, and submitthem to the Team for Monitoring of the Application of the OWCP’s Strategy;b) The Team for the monitoring of the application of OWCP’s Strategy shall coordinate theapplication and submit quarterly reports to the Prosecutor;c) The OWCP shall produce annual reports on the implementation of the Strategy and submitthem to the Republic Public Prosecutor, the Ministry of Justice and the Committee for theJudiciary of the National Assembly;d) The Committee for the Judiciary of the National Assembly shall discuss the report on theimplementation of the Strategy in a session attended by the Prosecutor, and adopt theconclusion;e) the Prosecutor shall present summary results from the annual report at a press conference.Humanitarian Law Center

1.2. Strengthening capacities of OWCP and WCISStrengthening the capacities of the institutions responsible for launching criminal proceedingsrepresents one of the key conditions for enhancing efficiency in the prosecution of war crimes. TheOWCP and WCIS do not have adequate capacities at the moment for the efficient implementation ofa greater number of investigations and of investigations in more complex cases, which would result inthe filing of viable indictments. The financial resources that they have are not sufficient even for theimplementation of their basic competences. The OWCP did not obtain a minimum increase of the budgetafter it assumed the competence for launching investigations in accordance with the amendments to theCriminal Procedure Code (CPC) in 2012. As for human resources, both institutions share the sameproblems: an insufficient number of employees, the lack of continuous training, etc.It is necessary to harmonize the employment policy, the hiring policy in the WCIS and the process ofevaluation of the work of the WCIS with the needs emerging from specific nature of the prosecutionof war crimes. At the moment, there are no legal acts or bylaws defining vetting procedures for jobcandidates in the WCIS with regard to their engagement during the armed conflicts, which in practiceleads to having former colleagues of the suspects conducting investigations. Besides this, the Chief ofthe WCIS does not have efficient sanctions for employees who do not meet the expected professionalstandards of work.Specific objective no. 1: The OWCP and WCIS shall have all the financial and human resourcesnecessary for the efficient prosecution of a greater number of cases and of more complex cases inaccordance with the objectives and deadlines set by the OWCP’s Strategy.Activities:a) The State Prosecutorial Council (SPC) shall create a task force comprising representatives ofthe SPC, OWCP, Republic Public Prosecutor, and expert with the requisite profiles, which willproduce an analysis of the needs of the OWCP with regard to the objectives and deadlines setby the Prosecution Strategy, and taking into account the preliminary assessment of necessaryresources prepared by the Team for the drafting of the OWCP’s Strategy; the analysis willestablish needs with regard to financial resources, technical equipment, the number ofemployees and associates, the scope of their tasks, the type and level of training and the formof engagement of experts of the specific profiles necessary for conducting investigations incomplex cases, etc.15b) The Ministry of Interior shall create a task force comprising representatives of the WCIS,OWCP, Ministry of Interior Joint Affairs Department, and experts with the requisite profiles,which will produce an analysis of the needs (budget, equipment, human resources, need fortraining) with regard to the objectives and deadlines set by the Prosecution Strategy;c) The Prosecutor shall render new Rules of Systematization and Organization of Work, inaccordance with the report produced by the Task Force on the needs of the OWCP;d) The responsible ministries shall implement the plans for enhancing the capacities inaccordance with the analysis;e) The Ministry of the Interior shall create a task force, which will define the amendments to the Ruleson the internal organization and systematization of job positions in the Ministry of Interior, whichHumanitarian Law Center

would: i) introduce special criteria for employment in the WCIS, which would provide for not havingpersons who participated in the armed conflicts in any capacity employed in this department; ii)introduce mandatory professional training for members of the WCIS in the field of the methodologyof war crimes investigation and international humanitarian law; iii) reinforce the powers of the chiefof the WCIS with regard to dismissals, appointments, and awards given to members of this service;c) The Ministry of Justice shall initiate an amendment to the Law on the Prosecution of WarCrimes which will, in accordance with the Judicial Reform Strategy, Law on the StateProsecution’s Council, and the Law on the Judicial Academy, introduce a mandatory trainingfor prosecutors acting in cases of war crimes on matters relating to international humanitarianand international criminal law;d) The Programme Council of the Judicial Academy shall, during the creation of a programme ofcontinuous mandatory training for prosecutors and a special training programme for assistantprosecutors and legal trainees hired in the OWCP, particularly consider their needs regardingthe acquisition of professional knowledge regarding the practice of international criminalcourts, and the practice of the courts in the region in the war crimes cases.Specific objective no. 2: An improved organizational structure for the OWCP and and a normativeframework for mutual cooperation shall be put in place.Activities:16a) The Ministry of Justice shall create a task force consisting of representatives of the Ministry ofJustice, Ministry of Interior and OWCP, which will create a Protocol on cooperation betweenthe OWCP and Ministry of Interior in the criminal investigation of war crimes, regulatethe obligations and procedures for action of the and OWCP during investigation and preinvestigationactivities, in line with the CPC;b) The Minister of the Interior shall adopt amendments to the Rules on the internal organizationand systematization of duties in the Ministry of Interior according to which: i) the WCIS willget higher position in the Ministry of Interior hierarchy, meaning the rank of Department;ii) an Operation fund shall be established for the financing of WCIS operations in preinvestigationproceedings, as well a procedures for the use of this Fund.c) The OWCP will organize regular meetings with the Ministry of Justice, , and other bodies andunits, involved in the prosecution of war crimes, the topic of which would be the discussion ofcurrent problems and challenges in war crimes prosecution.1.3. Cooperation with prosecutions in the region, the ICTY, and other institutionsThe armed conflicts in the former Yugoslavia and their consequences were of a regional and crossbordernature. During the armed conflicts, the state borders were porous. Armed forces controlled byone state would cross to the territory of other states and carry out operations in which mass crimeswere often committed. Civilians, including victims’ families and survivors of crimes, were exposed tosystematic forced relocations and deportation.Upon the cease of hostilities, a significant number of displaced persons failed to return to their prewarresidences. The facilitated conditions and procedures for obtaining citizenships in some of theHumanitarian Law Center

successor states of the former Yugoslavia enabled a great number of individuals to have multiplecitizenships of these states. Today, victims, witnesses and perpetrators of a crime often reside indifferent states. All these circumstances, along with the fact that the successor states of the formerYugoslavia forbid extradition of their citizens to other countries, make the prosecution of war crimescommitted in the former Yugoslavia almost impossible without the cooperation of the responsibleinstitutions in the region of the former Yugoslavia.In 2005, the OWCP signed memoranda on cooperation with the State Attorney’s Office of the Republicof Croatia and the Prosecutor’s Office of BiH, thus allowing for direct cooperation and communicationbetween the respective prosecutions. 6 The cooperation between the OWCP and the Prosecutor’s Officeof the Republic of Montenegro was established by the signing of a memorandum on cooperation in2007. The OWCP collects evidence in Kosovo independently through the facilitation of the EULEXMission, on the basis of a memorandum on cooperation signed between the Ministry of Interior andEULEX. At this moment, the OWCP does not have direct cooperation with Kosovo prosecutors.The key importance of memoranda on direct cooperation lies in the opportunity to provide evidenceand information by one signatory party to another, enabling the prosecution of suspects because oftheir accessibility to the authorities of this party. By the end of March 2015, thanks to the cooperationbetween the prosecutions in the region, the OWCP filed indictments against 37 persons. At thesame time, the OWCP delivered evidence to the prosecution offices in the region and the EULEXInvestigation Unit, which resulted in a significant number of indictments. 7 Despite the existence of thesigned memoranda on cooperation, in several cases the OWCP insisted on conducting investigationsagainst suspects who were inaccessible to the prosecution authorities in Serbia, which led in practiceto “parallel investigations”, thus violating regional cooperation based on the principle of mutual trust. 8The possibility of having parallel investigations led the OWCP and the State Prosecutor’s Office of BiHto sign an additional Protocol on cooperation in January 2013, by which each party was obliged toinform the other party within three months from the signing of the agreement about all proceedingsconducted against citizens of the other party. 9 The same Protocol envisaged the creation of a list ofpriorities in the cooperation between OWCP and the State Prosecutor’s Office of BiH. The OWCP, atthis time, does not have such protocols signed with other countries in the region.17The documents collected by the ICTY during its mandate represent important sources of informationand the evidentiary basis for the prosecution offices acting in cases of war crimes committed in theregion of the former Yugoslavia. The OWCP has access to all the data bases of this court, includingthe non-public database of the ICTY Office of the Prosecutor, through direct access as well asthrough “liaison officers” - the OWCP officers physically located in the office of the ICTY Office ofthe Prosecutor. In the perspective of the work of OWCP, the use of evidence from the ICTY judicialdatabases is of key significance for bringing suspected war criminals to justice. In that sense, it is6 By 2005, the legal framework of cooperation between the OWCP and institutions in BiH and Croatia werebased on conventions regulating international legal aid and bilateral agreements between countries on judicialcooperation in criminal matters.7 Only the State Attorney’s Office of the Republic of Croatia (SAORC) keeps a list of individuals indicted on thebasis of the cooperation with OWCP, while the Prosecutor’s Office of BiH does not keep such a list.8 Cases of Tuzla Convoy, Ganić, Divjak, Bosnian, Marić, Šeks, and others.9 Item 3, Protocol of the Prosecutor’s Office of Bosnia and Herzegovina and the Republic of Serbia Office ofthe War Crimes Prosecutor on cooperation in the prosecution of perpetrators of war crimes, crimes againsthumanity, and genocide, January 2013.Humanitarian Law Center

necessary to remove all the obstacles to obtaining relevant documents and reinforce the internalcapacities of the OWCP in the search for these documents. Also, it is very important to address thematter of the fate of the non-public database of the ICTY Office of the Prosecutor, on which theSecurity Council has not yet rendered a decision.The archives of institutions like the Ministry of the Interior, Ministry of Defence, Military Archive,Military Security Agency, Security Information Agency, courts of general jurisdiction and others arevery valuable for the investigation of war crimes. However, some of these institutions have refused todeliver documents which are in their position to the OWCP, with the explanation that the documentshave been destroyed or that they do not exist, thus violating the obligation of all state authoritiesaccording to the Law on the prosecution of war crimes to deliver every piece of evidence whichthey possess, at the request of the OWCP. The additional problem is the legal regime regulating theconfidentiality of documents, particularly the right of certain institutions to make certain documentsimportant for establishing criminal responsibility for war crimes inaccessible to the public.Specific objective no. 1: Improved cooperation shall be achieved between the prosecution offices inthe region through the enhancement of the normative framework and the establishing of priorities incooperation.Activities:a) The OWCP shall initiate the amendment of the existing agreements on cooperation with BiH,Croatia, Montenegro, which would regulate:i. the creation of joint investigation teams in cases of a cross-border character;18ii.the organization of the quarterly meetings of investigation teams;iii. the establishment of the obligation to inform the other party on the procedures initiatedagainst their citizens (with Croatia and Montenegro);iv.The establishment of a list of priority cases for cooperation (with Croatia and Montenegro).b) The Ministry of Justice shall initiate the signing of the Agreement between the OWCP and theEULEX Mission, which would lay down the framework of cooperation between the OWCP and theKosovo prosecutors in the exchange of evidence and cooperation in the prosecution of war crimes;c) The OWCP shall implement entirely the agreements signed with prosecutors in the region.Specific objective no. 2: An increased amount of evidence from ICTY material shall be used by theOWCP in its work.Activities:a) The OWCP shall initiate consultation with representatives of the ICTY and the prosecutionoffices in the region with regard to the easy provision of documents and to the future use andaccess of the ICTY Office of the Prosecutor database;b) The OWCP shall initiate with the ICTY the training of prosecutors and associates in theHumanitarian Law Center

OWCP regarding the skills of searching ICTY databases.Specific objective no.3: Archival material of institutions relevant for the prosecution of war crimesshall be made accessible to the OWCP and the public.Activity:a) The National Assembly, the Prime Minister and the President of the Republic will withdrawthe categorization of confidentiality, in line with Article 26 of the Law on the confidentialityof information, from all documents possessed by the Ministry of Interior, the Ministry ofDefence, the Military Archive, the Military Security Agency, and other institutions whichrefer to the involvement of representatives of these institutions in the armed conflicts inthe former Yugoslavia; exceptionally, the Ministry of Defence, Military Security Agency,Security Information Agency and Ministry of Interior can demand certain information in thiscategory of documents to remain confidential, the decision on which shall be rendered by theCommissioner for Information of Public Importance.2. Enhancing the capacity of the Department for War Crimes ofthe Higher Court and the Court of Appeals in BelgradeThe Department for War Crimes of the Higher Court in Belgrade (Higher Court Department) andthe Department for War Crimes of the Court of Appeals in Belgrade (Appeals Court Department)that conduct war crimes proceedings in first, second and third instance trials act promptly, withoutundue delays in the conduct of the proceedings and passing of judgments. According to the experts,the judgments are in most cases fair and in accordance with the law. However, in some cases it hasbeen noted that there is a deviation from the facts established before the ICTY, and that there is notsufficient reference to the provisions of international humanitarian law and international criminal law.What is more, when it comes to penal policy, the courts use the institute of mitigating circumstanceswithout adequate explanation and established standards, and they also use the institute of reductionof sentence below the statutory minimum.19The system of appointing judges to trial chambers established by the Law on the Prosecution ofWar Crimes does not contain principles and guidelines for the professional training of judges thatenable them to work on war crimes cases. Judges with no experience and training in the application ofinternational humanitarian law and international criminal law are appointed to trial chambers. This isparticularly apparent when it comes to the third instance chamber, which decides on complex mattersof the international humanitarian law. This chamber is composed of judges who have no experienceor training in this field of law. On the other hand, judges who have acquired a certain specializedknowledge and experience by working in these chambers are sent to work on cases of general ororganized crime. This system does not provide the necessary standards of judges’ competence,particularly bearing in mind the need for the increase of the number of cases and the prosecution ofmore complex cases.The Higher Court Department lacks significant funds for covering the costs incurred in connectionwith the conduct of proceedings, such as financing the defense, experts, etc.General objective: The financial, human and technical capacities of the trial chambers conducting thewar crimes trials is improved.Humanitarian Law Center

Specific objective no.1: The Higher Court Department and Appeals Court Department have all thefinancial and human resources necessary to conduct a larger number of cases and more complex casesof war crimes.Activities:a) The High Judicial Council shall form a task force composed of representatives of the HigherCourt Department, the Appeals Court Department, and expert of the requisite profile,who will create an analysis of the needs of the departments in respect to the objectives anddeadlines set down by the OWCP’s Strategy; the analysis will establish the needs of thedepartments in regard to the number of chambers, financial means, technical equipment, thenumber of employees and associates, the scope of their duties, the type and level of training,the conditions and form of engagement of experts of the requisite profile for expert support tothe work of the judges, etc;b) The relevant ministries shall implement plans for the enhancement of capacities in accordancewith the above-mentioned reports;Specific objective no. 2: The level of judges’ expertise in international humanitarian law, as wellas in the practice of international criminal courts and courts in the region and their application inproceedings for war crimes, shall be enhanced.Activities:20a) The Ministry of Justice will initiate an amendment to the Law on the Prosecution of WarCrimes which will introduce continuous mandatory training on international humanitarianlaw and international criminal law for the judges who deal with war crimes cases in the first,second and third instance courts, in accordance with the Judicial Reform Strategy, the Law onthe State Prosecution Council and the Law on the Judicial Academy;b) When creating the continuous mandatory programmes for judges and the special trainingprogrammes for judicial assistants and interns who are engaged by the OWCP, the ProgrammeCouncil of the Judicial Academy shall specifically address their needs in terms of acquiringexpertise in relation to the practice of international criminal courts and practice of the courtsin the region;c) The Ministry of Justice shall initiate an amendment to the Law on the Prosecution of WarCrimes, which will introduce the possibility that the Chamber may, at its own initiative or atthe request of parties, and after hearing the parties involved, decide to accept as proven thefacts established by a final judgment rendered by the ICTY;d) The Ministry of Justice shall initiate an amendment of the Court’s Rules according to whichthe President of the Higher Court Department will have the obligation of convening a sessionof the department once every two months;e) The Ministry of Justice shall initiate the holding of annual conferences for judges dealing withwar crimes cases in the region of the former Yugoslavia.Humanitarian Law Center

3. The protection of witnesses and victimsWitnesses are the most important and the most frequently used means of evidence in war crimes cases.For the purpose of effective case management, it is necessary to ensure that witnesses testify withoutfear, threats or other forms of pressure during the investigation and the trial. The effectiveness of witnessprotection mechanisms significantly affects the decision of persons who have information about the crimescommitted on whether to participate in criminal proceedings against the perpetrators of the war crimes.In the current practice regarding war crimes prosecution in Serbia, the witness protection systemhas not been very effective, because some of the procedural protection mechanisms have not beenapplied when necessary. In addition, the nonprocedural measures for protection of insider witnesses(former and active members of the armed forces of the Republic of Serbia) has proved to be completelyunsuccessful.3.1. Procedural protectionThe legal framework of the witness protection system in the cases of war crimes is regulated by the CPC. 10The procedural protection measures are applied in the investigation when undertaking investigativeactions, and during the trial. During the trial, they are applied by the court, and during the investigation,by the prosecutor. 11 Procedural protection of witnesses includes: measures to protect the integrity of thewitness, measures to protect particularly vulnerable witnesses and measures for protection of witnesseswhose lives, health, liberty or property are endangered because of their testifying.In cases of war crimes in Serbia, there have been examples of witnesses being insulted by the defenceand the defendants who were not sanctioned by the court, or inadequately sanctioned (by thepronouncing of informal warnings instead of the infliction of the sanctions prescribed by the CPC).Inadequate protection of witnesses during the testimony causes psychological trauma, and is forwitnesses - injured parties (victims) a secondary victimization.21A particular challenge is represented by the protection of victims of sexual violence during the trialinterrogation. The biggest problems in this area, besides the fact that the current legislation, contraryto international standards, does not contain specific measures to protect victims of sexual violence, isthat the judicial institutions do not use the existing legal mechanisms consistently.General objective: The effective, consistent and timely protection of the personal integrity and dignityof the witnesses during the trial shall be assured.Specific objective no. 1: The provisions of the CPC on the punishment of attacks on the integrity ofwitnesses are being consistently applied.Activities:a) The authorities participating in the proceedings (the public prosecutor, the court), instead10 The Official Gazette of the Republic of Serbia nos. 72/2011, 101/2011, 121/2012, 32/2013 and 45/201311 The Criminal Procedure Code, The Official Gazette of the Republic of Serbia nos. 72/2011, 101/2011, 121/2012,32/2013, and 45/2013, Articles 102 to 111.Humanitarian Law Center

of pronouncing informal warnings, shall pronounce formal reprimands and sanction theparticipants of the proceedings who insult a witness during the examination, in accordancewith the CPC;b) When pronouncing the sentence or a reprimand to a participant in the proceedings, thePresiding Judge of the Higher Court Department chamber shall explain the reasons behindthe sanctioning of the conduct towards the injured party or witness;c) The judges of the Higher Court Department shall inform the Bar Associations regularly onpenalties pronounced to defense counsel, in accordance with Article 370, paragraph 3 of theCPC of the Republic of Serbia, and submit a disciplinary complaint to the Bar Associationagainst lawyers who violate;d) The Department for criminal defence in war crimes cases within the Ministry of Justice shall,as part of the training programme for defense lawyers, organize a special training programmeon victims’ rights and needs; 12Specific objective no. 2: The injured parties – victims of sexual abuse shall receive an effectiveprotection during the trial, in accordance with international standards.Activities:22a) The Ministry of Justice shall form a task force composed of the representatives of the Ministryof Justice, the Republic Public Prosecutor, the OWCP, the departments for war crimes of theHigher Court in Belgrade and the Court of Appeals in Belgrade and experts in the fields ofcriminal and criminal procedural law. The task force shall propose amendments to the CPCwhich would introduce special rules of evidence in the cases of sexual offences: i) a prohibitionon acceptance of earlier sexual conduct of the victim as evidence in the proceedings; ii) therule of evidence, by which for the proof of rape it is not necessary to corroborate it with otherevidence; and iii) the rule that the consent of the victim is not grounds for exemption fromresponsibility of the perpatrators, if the victim feared for their own life or the life of personsclose to them.b) The judges and prosecutors shall consistently apply mechanisms for the protection of witnessesand injured parties – victims of sexual violence.3.2. The measures of nonprocedural protection of witnessesThe measures of nonprocedural protection are applied to witnesses who, because of their testimonies,are exposed to threats to life, health and property, which are addressed to them personally or their family.Non-procedural witness protection is achieved through the use of regular institutional mechanismsfor the protection of fundamental human rights and freedoms (non-procedural protection in thenarrow sense), and through the special protection programme in criminal proceedings (ProtectionProgramme). The legal framework for non-procedural protection is the CPC and the Law on theProtection of Participants in Criminal Proceedings.12 See section 6 on Defense for more information on the establishing of the Department for criminal defence inwar crimes cases within the Ministry of Justice and the jurisdiction of this body.Humanitarian Law Center

In the current practice of prosecuting war crimes in Serbia, it is evident that the measures ofnonprocedural protection do not achieve their purpose when it comes to insider witnesses – formeror active members of the armed forces of Republic of Serbia who participated and/or have knowledgeof the crimes committed, owing to the inconclusive legal framework and insufficient political supportfor this most vulnerable aspect of the prosecution of war crimes. Among the numerous problems thathinder an effective protection of insider witnesses and thus seriously threaten prosecuting the personsresponsible for committed war crimes, those that stand out are: an inadequate legal framework forthe protection of insider witnesses who do not enter into a protection programme, weak mechanismsfor the control and supervision of the witness protection programme, non-transparent and ad hocprocedures for the investigation of misconducts of members of Protection Unit, as well as the publicsupport of government representatives for war crimes suspects. The problems in the system for theprotection of insider witnesses in Serbia have been registered by several international institutions andorganizations. 13General objective: The lives, health and property of witnesses and insider witnesses shall be protectedby effective measures of non-procedural protection, in an atmosphere of clear political and public/social support for the participation of insider witnesses in the cases of war crimes.Specific objective no. 1: An effective mechanism of protection of witnesses and insider witnesseswho do not enter into a witness protection programme is established.Activities:a) The Ministry of Justice shall form a task force composed of representatives of the Ministryof Justice, the OWCP, the Higher Court Department and Appeals Court Department, theMinistry of the Interior and legal experts, who will: i) formulate amendments to Article102, paragraph 5 of the CPC, to introduce the obligation of the court and prosecutor to seekprotection from the police for witnesses who report being threatened during the proceedings,and their obligation to inform the participants of the proceedings of the measures taken;ii) the same task force will draft a Protocol on the procedure in cases of threats addressedto witnesses in war crimes cases; iii) review any further amendments to the CPC and otherregulations for the purpose of strengthening this component of witness protection.23b) The prosecutors, judges and the representatives of the Ministry of the Interior shall consistentlyapply the mechanisms established.Specific objective no. 2: A reliable, functional and viable witness Protection Programme shall beestablished.Activities:a) The Ministry of Justice shall form a task force composed of representatives of the Ministry ofJustice, the Ministry of the Interior and the Victims and Witnesses Section of the ICTY. Thetask force shall prepare amendments to the Law on the Protection of Participants in CriminalProceedings which will:13 Council of Europe, European Commission, European Parliament, OSCE and Amnesty International.Humanitarian Law Center

i. Establish a mechanism for investigation into complaints filed by persons under protection,to be carried out by the body composed of representatives of the Protection Unit, theOWCP and the Chief of the Ministry of the Interior Internal Control Sector;ii. Specify the content and procedure for the implementation of the Protection Unit’s dutieswhen it comes to persons in the protection programme, as regards social, economic, legal andpsychological assistance, as prescribed by the Law on the Protection of Participants in CriminalProceedings, and establish a mechanism of control over the fulfillment of these duties;iii. Strengthen the mechanism for the monitoring of the work of the Commission and theProtection Unit by the competent committees of the National Assembly, by introducing amandatory review and evaluation of reports made by the Commission and the ProtectionUnit on the implementation of the Programme, by the parliamentary committees incharge of justice and security;iv. Establish the formal subordination of the Chief of the Protection Unit to the Prosecutor,by requring binding opinion of the Prosecutor when appointing a chief for this unit, andincluding the role of the Prosecutor in the career advancement of the members of this unit;b) The Ministry of Justice shall form a task force composed of representatives of the Ministryof Justice, the Ministry of the Interior, the Ministry of Public Administration and Local Self-Government and the OWCP. The task force will prepare proposals for bylaws which willregulate the the procedure for the identity change of persons in the Programme for WitnessProtection;24c) The Ministry of Justice shall formulate and initiate amendments to the Law on Ministries andthe Law on the Protection Programme for Participants in Criminal Proceedings, with the aimof transferring the Protection Unit from the jurisdiction of the Ministry of the Interior to thejurisdiction of the Ministry of Justice, and the introduction of specific criteria for employmentin the Protection Unit, which will ensure that this service does not employ persons who had inany capacity participated in the armed conflicts in the former Yugoslavia.4. Victims/Witnesses SupportThe main objective of the measures of support for victims (injured parties) and witnesses during thecriminal proceedings, is their protection from (re)traumatisation and (secondary) victimization. Ona broader scale, the measures of support for victims and witnesses represent an important element ofinstitutional support for war crimes trials, and a message to the wider community that participation inwar crimes proceedings is the concern and responsibility of the entire society.When it comes to providing support to victims, clear international standards that regulate the obligationsof institutions to the victims of criminal acts before, during and after criminal proceedings, have beenestablished. The most important document is Directive 2012/29/EU of the European Parliament andthe Council of Europe on the establishment of minimum standards of rights, support and protectionof victims of crimes. According to the Directive and other international standards, among other things,the support measures must be implemented in the earliest stage of the criminal proceedings, and onthe basis of assessment of the individual needs of the persons they are intended for. The institutions andother participants that come into contact with victims must be trained to work with them.Humanitarian Law Center

The support measures for victims which are applied by Serbian institutions in war crimes casesare not in accordance with international standards. Among the many deficiencies, the ones that aremost apparent are: the lack of a system for informing the victims about the development of the case,non-existent psychological support before, during and after the trial, the weak capacity and narrowjurisdiction of the Service for assistance and support to witnesses and victims within the Higher CourtDepartment (Assistance and Support Service).Support for witnesses and victims in war crimes cases before the Department of the Higher Court,which is provided by the Assistance and Support Service, includes two types of measures - logisticalassistance in travel organization, and emotional support before, during and immediately after the trial.The other objective needs and rights of victims and witnesses guaranteed by international standardsare not addressed. In addition, the procedures relating to contacting witnesses and victims from theregion and organizing their trips are substantially and formally inconclusive. Thus, in terms of victimsand witnesses from Kosovo and BiH, the Assistance and Support Service does not have any kindof communication with the witnesses and victims before their arrival at the court, which, amongother things, makes it difficult to establish a relationship of trust between the representatives ofthe Assistance and Support Service and the victim/witness – a trust which is essential for providingemotional support during a trial. Communication with the victims and witnesses from Croatia iscarried out thanks to good interpersonal relationships with the Department for the support of victimsand witnesses with the Ministry of Justice of the Republic of Croatia, but with no formal protocol oncooperation between the two services. 14Furthermore, in view of the fact that the Assistance and Support Service is part of the Higher CourtDepartment, by introducing the new concept of criminal proceedings (January 2012), in which the investigationis transferred to the jurisdiction of the OWCP, the support for victims and witnesses in the investigationstage is formally exempted from the jurisdiction of the Assistance and Support Service. At present, during theinvestigation, certain measures of support are provided by the employees of the OWCP and the Assistanceand Support Service, but with the approval of the President of the Higher Court in Belgrade.25General objective: A comprehensive system of support for victims and witnesses in proceedings forwar crimes in accordance with the EU and other international standards is established.Specific objective no. 1: Strengthening the role and the capacity of the Assistance and Support Service.Activities:a) The Ministry of Justice shall initiate the creation of a task force which will be composed ofrepresentatives of the Ministry of Justice, the Higher Court Department, the OWCP, therepresentative of the Assistance and Support Service, a judge with experience the first instancecases of war crimes and an expert with the requisite profile. The task force will formulateamendments to the CPC and the Court’s Rules which will enable the psychologist from theAssistance and Support Service to: i) be present in the courtroom during the trial; ii) exercisethe obligation to warn the presiding judge if it comes to a deterioration of the psychologicalstate of the victim; iii) exercise the right to suggest to the court that a witness be granted thestatus of a particularly sensitive witness;14 Full name: The Department for the Support of Victims/Witnesses in Criminal Proceedings and Proceedingsfor War Crimes.Humanitarian Law Center

) In accordance with the needs identified, the Ministry of Justice shall, in cooperation with theMinistry of Finance, establish a long-term and sustainable system of financial support for theinstitutions and NGOs providing assistance to victims;c) The Ministry of Justice shall, in cooperation with the mentioned institutions and NGOs,initiate and implement a campaign of informing victims about the work of these institutionsand the NGOs, as well as about the content of the measures of support that they can receive;d) The OWCP shall, in cooperation with the Assistance and Support Service, formulate aprotocol for the mandatory informing of victims about all aspects of their cases about whichthey have an interest in knowing (the judgement, the provisional release of the defendant, etc).e) The Ministry of Justice shall initiate the creation of a task force composed of representativesof the Ministry of Justice, the Ministry of Health and the Ministry of Labour, Employment, andVeterans and Social Policy, Assistance and Support Service and representatives of NGOs whohave relevant longtime experience in providing support to victims and experts with requisiteprofiles. The task force will conduct wider consultations with relevant experts, institutionsand NGOs on the needs, existing legal and institutional frameworks, experience and goodpractices in providing support to victims, with a special focus on the role, resources, practiceand needs of the centers for social work and healthcare institutions, in connection withproviding psychosocial support to victims;f) The competent Ministries shall implement the recommendations of the task force in order toimprove the system of support to victims and witnesses.Specific objective no. 4: A system of continuous education of all representatives of all institutions thatcome into contact with victims is established.27a) The SPC and the HCC will hand down a decision on the introduction of a special programmeof continuous training for prosecutors, as well as for judges who conduct war crimes trials,on working with victims, and their rights and needs; and the identification of needs, creationof training content and implementation of the training will be the responsibility of the JudicialAcademy, in accordance with the Law on the Judicial Academy;b) The Ministry of Justice and the Ministry of the Interior shall initiate the creation of mandatorycontinuous education for the court guards and other officials who come into contact withvictims, and/or allow accredited domestic and foreign institutions and orgsanisations toprovide this type of training.5. Defence of the accusedAn efficient and competent defence counsel is one of the basic preconditions for the fairness andcredibility of court proceedings in cases of war crimes. Having professional defence counsel has apositive effect on the efficiency of the proceedings and thus on the saving of institutional resources.The imperative of having a continuous professional development for the defence counsel in the fieldof international humanitarian law and international criminal law emerges from the complex nature ofwar crimes trials, the limited opportunities for gaining training and knowledge in the these areas ofHumanitarian Law Center

law before local courts, and the constant evolution of this branches of law. The Law on the Prosecutionof War Crimes does not establish a criterion of expertise for attorneys in the subject of internationalhumanitarian law and international criminal law as a precondition for acting as defence counsel incases of war crimes. The conditions for the defence counsel appointed by the court are 10 years ofexperience in the field of criminal law and a certificate on the understanding of human rights law.Besides these problems, the accused also deal with problems in the financing of a competent defencecounsels. Defence in cases of war crimes is one of the most expensive, due to the complexity of criminallaw relating to war crimes and due to the severe punishments prescribed for these acts. Very oftenthe accused withdraw the power of attorney issued to the defence counsel of their choosing during thecourse of the proceedings, because they are no longer able to pay for the defence.The defence of the accused is not in an equal position when compared to the OWCP with regard to theacquirement of evidence outside the territory of Serbia. While the OWCP has signed memoranda ofunderstanding on direct cooperation with prosecution offices of the same competences in the region,defence lawyers are advised to undertake long-lasting international legal aid procedures or to acquireevidence on their own.General objective: Standards of defence in cases of war crimes is improved.Specific objective no.1: Improved professional capacities of defence counsel in cases of war crimes.Activities:28a) The Ministry of Justice shall form a task force consisting of representatives of this Ministry, theBar Association of Serbia, the Lawyers Chamber of Belgrade, the Higher Court Departmentand experts from the requisite areas of interest, who will prepare a draft law on amendments tothe Law on the Prosecution of War Crimes, which would introduce two cumulative conditionsfor defence counsel acting in cases of war crimes, acting in the capacity of counsel for theaccused choosing or as appointed counsel – the condition of expertise and the condition ofknowledge; the amendments will also envisage establishing a special body of professionals– a Department for criminal defence in war crimes cases, which would be responsible forthe verification of the conditions met and the implementation of programmes necessary forfulfilling the condition of knowledge;b) The same task force, with the participation of experts of requisite profile, shall also prepare adraft document with the amendments to the Rules for the systematization and organizationof the Ministry of Justice, which will establish the Department for criminal defence in warcrimes cases, as part of the Ministry of Justice Judicial Department, and also the Rules ofprocedure for this body; the Department for criminal defence in war crimes cases shall havethe following powers: i) to provide legal and administrative support to defence counsel incases of war crimes; ii) to determine criteria for fulfilling the conditions related to knowledgeand expertise, and to verify fulfilment of these conditions by defence attorneys; iii) to designand organize professional training for attorneys who intend to represent in cases of warcrimes, for the purpose of fulfilling the condition of knowledge; iv) to organize other trainingprogrammes; v) to execute other tasks important for the improvement of the standard ofcriminal defence in cases of war crimes;c) The President of the Higher Court in Belgrade shall render a decision on the assignment to theHumanitarian Law Center

Department for criminal defence in war crimes cases of adequate facilities in the building ofthe Special Court in Ustanička Street.Specific objective no. 2: The system for the financing of ex officio defence in cases of war crimes shallbe improved.Activities:a) The Minister of Justice shall amend the Regulations on the Fee for the work of the AppointedAttorneys, so that fee will be 75% of the fee defined in the Bar Association Tariff forrepresentation in the main hearing in war crimes cases.b) The Ministry of Justice shall provide regular financial resources to the Higher Court inBelgrade and the Court of Appeals in Belgrade in order to pay fees to the appointed attorneys.Specific objective no. 3: An agreement shall be signed allowing for the simplified acquisition ofevidence in cases of war crimes by defence counsel.Activity:a) The Ministry of Justice shall start an initiative for the signing of an inter-governmentalagreement with the successor states of the former Yugoslavia on a simplified procedure ofacquisition of evidence in cases of war crimes by defence counsel.6. Representing war crimes trials in publicAn important part of the process of dealing with the past is informing the public about war crimestrials and the facts about the crimes that have been judicially established. The acceptance of the judicialfacts about the crimes committed is one of the key preconditions for having an objective image of thepast and for the creation of a social memory of the crimes committed. The significance of the objective,continuous and timely informing of the public about war crimes trials has been recognized by theinternational criminal tribunals.29Only the OWCP in Serbia has a developed programme for informing the public about war crimes trialsand the work of this institution, and it is carried out by the OWCP’s Outreach Office and the OWCP’sweb page. However, this service does not have the resources necessary for the implementation of theactivities envisaged. The reports by non-governmental organizations, the Humanitarian Law Centre inparticular, which monitor and analyse war crimes trials and inform the local and international publicabout them, also contribute to the process of informing the public about war crimes trials.The Higher Court Department and Appeals Court Department, acting in the first and the secondinstances in war crimes cases do not have special Outreach offices. They inform public through publicrelations offices of the Higher Court in Belgrade and the Court of Appeals in Belgrade. However,information about war crimes trials provided by these offices is scarce and sporadic, and they provideonly basic information about each case. When there is need of a professional explanation of courtrulings, the media do not have a person to turn to, and it often happens that representatives of theOWCP provide these explanations instead of the court. Trial chambers do not have their basic webpages, whilst the rulings rendered by the Department of the Higher Court are not available online atHumanitarian Law Center

the web page of the Higher Court in Belgrade.These problems have made a significant contribution to the poor visibility of war crimes trials inSerbia. The research into public opinion in Serbia shows that most of the citizens are not able to nameeven one war crimes case prosecuted before the local courts, and not able to state a single institutionparticipating in the prosecution of war crimes. 15Non-governmental organizations and the media monitoring war crimes trials are facing obstaclesin accessing judicial documents and the broadcasting of trials due problematic interpretation of therelevant legal provisions by courts. Namely, the Higher Court Department and the Appeals CourtDepartment limit access to judgments through the so-called process of anonymization (redaction,blackouts) of certain parts of the judgments containing personal information which should beprotected in accordance with the Law on the Protection of Personal Information. What happensin practice is that a substantial part of the judgements relating to witnesses and the accused areblacked out, and the blacked out parts spread to information which is not considered personalinformation, and the reader is thus deprived of access to the facts established by the judgment inquestion. Also, the rules for anonymization of judgments rendered by the Appeals Court Departmentand the Higher Court Department differ, because the Higher Court in Belgrade has not yet adoptedthe Rules of Anonymization, whereas the Appeals Court Department applies the Rules on minimumanonymization in court decisions rendered by the Court of Appeals in Belgrade.30Unlike in cases of organized crime, the media have not broadcast the main hearings held in cases ofwar crimes, despite the existence of a legal provision which allows this (Article 16a of the Law on theProsecution of War Crimes). In practice, the media are prevented from doing so, because a stricterprocedure, prescribed by the Court’s Rules instead of Article 16a of the Law on the Prosecution ofWar Crimes, is being applied. According to the Court’s Rules, the President of the Court may grantpermission for the recording of the main hearing only with the consent of the Presiding Judge, partiesto the proceedings, and participants in the actions that are being recorded (Article 60).General objective: The visibility of war crimes trials in public shall be strengthened.Specific objective no. 1: A outreach offices within the of the Higher Court Department and theAppeals Court Department shall be established.Activities:a) The Ministry of Justice shall create a task force consisting of the representatives of the Ministry,of the Higher Court Department and the Appeals Court Department, and of the SupremeCourt of Cessation, and expert of requisite profile, which would propose a model for the publicrelations office in the Higher Court Department and the Appeals Court Department;b) The President of the Higher Court in Belgrade and the President of the Court of Appeals inBelgrade shall amend the Rules on Internal organization and Systematization of Workplaces inthe Higher Court in Belgrade and the Court of Appeals in Belgrade, thus establishing outreachoffices in line with the findings and recommendations of the task force;15 Belgrade Centre for Human Rights, „Attitudes towards war crimes issues, ICTY and the national judiciary“,public survey, October 2011, available at http://www.osce.org/serbia/90422?download=true.Humanitarian Law Center

) The public relations offices of the OWCP, the Higher Court Department and the AppealsCourt Department shall prepare a brochure for the media relating to the procedure andconditions for the recording of main hearings, and publish it on their web pages.7. Application of the Strategy and MonitoringFor the purpose of monitoring the efficiency and quality of the implementation of the measuresfrom the Strategy and assessment of the results achieved, the Government of Serbia shall establish amonitoring body, which will monitor and coordinate the work of all institutions responsible for theapplication of the measures.At the proposal of the Ministry of Justice, the Government of the Republic of Serbia will form a standingand professional Monitoring Body within 30 days from the day of the adoption of the Strategy, whichwill be tasked with monitoring the apllication of the Strategy. Representatives of the Ministry ofJustice, Ministry of the Interior, HCC and the SPC will be appointed to this Monitoring Body.7.1. Mode of operation and support to the work of the Monitoring Bodya) All institutions engaged in the execution of the measures prescribed by the Strategy shallreport twice a year to the Monitoring Body regarding the activities undertaken;b) The Monitoring Body shall meet twice a year;32c) The Monitoring Body shall file annual reports to the Government of Serbia on the executionof measures from the Strategy, which may contain proposals of further measures for theenhancement of the implementation of the strategic measures, or the definition of newspecific objectives. These proposals cannot be in contradiction with the existing objectives ofthe Strategy;d) The Monitoring Body shall have decided on the manner of participation of representatives ofthe civil society, media and international organizations in the process of Strategy applicationmonitoring;e) The Ministry of Justice shall provide professional, administrative and financial support for thework of the Monitoring Body.Humanitarian Law Center

Annex I1 st consultative session: Support for victims and witnessesDate: October 9 th , 2014Venue: Library of the Humanitarian Law CenterParticipants:Biljana Sinanović, Judge, Supreme Court of CessationDušan Jovanović, OSCE Mission to SerbiaEdmir Veljović, Humanitarian Law CenterGojko Pantović, Belgrade Centre for Human RightsIgor Bošnjaković, City Centre for Social Welfare (Belgrade)Ivan Jovanović, Legal ExpertJasna Šarčević Janković, Office of the War Crimes Prosecutor, Outreach OfficeMilica Kostić, Humanitarian Law CenterMirjana Cvetković, Delegation of the European Union to the Republic of SerbiaNikica Vidmar Hamer, Repubilc of Croatia Ministry of Justice, Victims/Witnesses Support DepartmentNikola Čukanović, Attorney at Law, Legal Representative of injured parties, Humanitarian Law CenterSandra Orlović, Humanitarian Law CenterSlavica Peković, Service for Assistance and Support to Victims and Witnesses, War Crimes Departmentof the Higher Court in BelgradeVesna Tekić, Ministry of Labour, Veteran and Social AffairsVladimir Jović, Psychiatrist, International Assistance NetworkSaša Paunović, Protection Unit of the Ministry of InteriorJasmina Nikolić, Victimology Society of Serbia332 nd consultative session: Pre-trial phase in cases of war crimesDate: October 28 th , 2014Venue: Library of the Humanitarian Law CenterParticipants:Alberto Pasquero, OSCE Mission to SerbiaBruno Vekarić, Deputy Prosecutor, Office of the War Crimes ProsecutorHumanitarian Law Center

Dejan Marinković, Head of the Serbian Ministry of Interior War Crimes Investigation ServiceDušan Jovanović, OSCE Mission to SerbiaEdmir Veljović, Humanitarial Law CenterGordana Tadić, Deputy Chief Prosecutor, State Prosecutor’s Office of Bosnia and HerzegovinaIsidora Stakić, Belgrade Centre for Security PolicyIvan Jovanović, Legal ExpertIzet Odobašić, Deputy Chief Prosecutor, State Prosecutor’s Office of Bosnia and HerzegovinaJasna Ristić, Bureau for International Cooperation and EU Integration, Ministry of InteriorMaurizio Salustro, former EULEX ProsecutorMilica Kostić, Humanitarian Law CenterMioljub Vitorović, Deputy Prosecutor, Office of the War Crimes ProsecutorMirjana Cvetković, Delegation of the European Union to the Republic of SerbiaMirjana Ilić, Judge, War Crimes Department of the Higher Court in Belgrade, President of theDepartmentMiroslav Alimpić, Court of Appeals in Novi Sad, JudgeNikola Čukanović, Attorney at Law, Legal Representative of injured parties, Humanitarian Law CenterSandra Orlović, Humanitarian Law CenterSnežana Nikolić Garotić, Judge, War Crimes Department of the Higher Court in BelgradeStanko Blagić, Deputy Chief Prosecutor, State Prosecutor’s Office in Bosnia and HerzegovinaSvetislav Rabrenović, Expert Associate, Office of the War Crimes Prosecutor3 rd consultative session: Protection of witnesses and victims of war crimes34Date: November 6 th , 2014Venue: Library of the Humanitarian Law CenterParticipants:Alberto Paquero, OSCE Mission to SerbiaDonal O’ Sullivan, Witness Protection Programs ExpertEdmir Veljović, Humanitarian Law CenterIvan Jovanović, Legal ExpertMarina Kljaić, Attorney at Law, Legal Representative of injured parties, Humanitarian Law CenterMilan Dilparić, Investigative Judge, War Crimes Department of the Higher Court in BelgradeMilica Kostić, Humanitarian Law CenterMioljub Vitorović, Deputy Prosecutor, Office of the War Crimes ProsecutorMirjana Cvetković, Delegation of the European Union to the Republic of SerbiaMiroslav Alimpić, Judge, Court of Appeals in Novi SadSandra Orlović, Humanitarian Law CenterSiniša Važić, Judge, War Crimes Department of the Court of Appeals in Belgrade, President of theDepartmentTatjana Vuković, Judge, Court of Appeals in BelgradeHumanitarian Law Center

4 th consultative session: Application of command responsibility and crimes against humanity forthe crimes committed during nineteen nintiesDate: November 17 th , 2014Venue: Library of the Humanitarian Law CenterParticipants:Dušan Jovanović, OSCE Mission to SerbiaDušan Ignjatović, Attorney at LawEdmir Veljović, Humanitarian Law CenterIvan Jovanović, Legal ExpertJasna Šarčević Janković, Office of the War Crimes Prosecutor, Outreach OfficeMarija Sekulovi ć, OSCE Mission to SerbiaMarina Kljaić, Attorney at Law, Legal Representative of injured parties, Humanitarian Law CenterMilica Kostić, Humanitarian Law CenterMiodrag Majić, Judge, War Crimes Department of the Court of Appeals in BelgradeMioljub Vitorović, Deputy Prosecutor, Office of the War Crimes ProsecutorMiroslav Đorđević, Attorney at LawNenad Vujić, Judicial AcademyNikola Čukanović, Attorney at Law, Legal Representative of injured parties, Humanitarian Law CenterSandra Orlović, Humanitarian Law CenterSiniša Važić, War Crimes Department of the Court of Appeals in Belgrade, President of the DepartmentTatjana Vuković, Judge, Court of Appeals in BelgradeZlatko Bučević, Deputy of the District Attorney, District Attorney’s Office in Osijek35V consultative session: Presentation of war crimes trials in publicDate: November 21 st , 2014Venue: Media Centre, BelgradeParticipants:Edmir Veljović, Humanitarian Law CenterIvan Jovanović, Legal ExpertJasna Šarčević Janković, Office of the War Crimes Prosecutor, Public Relations OfficeJelena Krstić, Humanitarian Law CenterKatarina Ristić, Researcher, Center for Area Studies University LeipzigMarija Ristić, Journalist of the Balkan Investigative Reporting Network (BIRN)Milica Kostić, Humanitarian Law CenterMirjana Piljić, Media Coordinator, Court of Appeals in BelgradeSandra Orlović, Humanitarian Law CenterMarina Kljaić, Attorney at Law, Legal Representative of injured parties, Humanitarian Law CenterJelena Stevančević, Coalition for RECOMHumanitarian Law Center

Annex IIRelevant regulations for the establishment and jurisdiction of the institutions in war crimesproceedings1. The Constitution (Official Gazette of the RS, No 98/06)2. Law on Organization and Competences of Government Authorities in War CrimesProceedings (Official Gazette of the RS, No 67/03, 135/04, 61/05, 101/07, 104/09 and101/11 - other law)3. Law on Judges (Official Gazette of the RS, No 116/08, 58/09 - decision of the CC,104/09, 101/10, 8/12 - decision of the CC, 121/12 and 124/12 - decision of the CC)4. Law on Public Prosecution (Official Gazette of the RS, No 116/08, 104/09, 101/10,78/11 - other law, 101/11, 38/12 - decision of the CC and 121/2012)5. Law on Courts (Official Gazette of the RS, No 46/91)366. Law on Organization of Courts (Official Gazette of the RS, No 63/01, 42/02, 27/03,29/04, 101/05 and 46/06)7. Law on Organization of Courts (Official Gazette of the RS, No 116/08, 104/09, 101/10,31/11 - other law, 78/11 - other law, 101/11 and 101/13)8. Law on the Seats and Territorial Jurisdiction of Courts and Public Prosecutor’s Offices(Official Gazette of the RS, No 116/08)9. Law on Transfer of Jurisdiction of Military Courts, Military Prosecution Offices andMilitary Attorney’s Offices to the Authorities of the Member States (Official Journal ofSCG, No 55/2004)10. Law on Assumption of Jurisdiction of Military Courts, Military Prosecution Officesand Military Attorney’s Offices (Official Gazette of the RS, No 137/04)11. Law on Military Courts (Official Journal of the FRY, No 11/95, 1/96, 74/99, 3/02,37/02)12. Law on the Protection Programme for Participants in Criminal Proceedings (OfficialGazette of the RS, No 85/05)13. Law on Mutual Assistance in Criminal Matters (Official Gazette of the RS, No 20/09)Humanitarian Law Center

14. Law on Cooperation of Serbia and Montenegro with the International Tribunalfor the Prosecution of Persons Responsible for Serious Violations of InternationalHumanitarian Law Committed in the Territory of the Former Yugoslavia since 1991(Official Journal of the FRY, No 18/02 and Official Journal of SCG, No 16/03)15. Rules on Internal Organization and Systematization of Work Posts in the Higher Courtin Belgrade (SU No 9/10 - 2 of 30 April 2010)16. Rules on Criteria and Benchmarks for Evaluating the Work of Public Prosecutors andDeputy Public Prosecutors (Official Gazette of the RS, No 58/14)17. Rules on Criteria, Benchmarks, Procedure and Bodies for Evaluating the Work ofJudges and Presidents of Courts (Official Gazette of the RS, No 81/14)National material and procedural criminal legislation1. Criminal Procedure Code (Official Journal of the FRY, No 70/01 and 68/2002 andOfficial Gazette of the RS, No 58/04, 85/05, 115/05, 85/05 - other law, 49/07, 20/09 -other law and 72/09)2. Criminal Procedure Code (Official Gazette of the RS, No 72/11, 101/11, 121/12,32/2013 and 45/13)3. Criminal Code of the Federal Republic of Yugoslavia (Official Journal of the SFRY, No44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90 and OfficialJournal of the FRY, No 35/92, 37/93, 24/94 and 61/01)374. Criminal Code (Official Gazette of the RS, No 85/05, 88/05 - corr., 107/05 - corr.,72/09, 111/09 i 121/12)International Sources1. Charter of the United Nations of 24 October 19452. Statute of the International Military Tribunal in Nuremberg3. Charter of The International Military Tribunal for the Far East of 19 January 19464. International Covenant on Civil and Political Rights of 19 December 19665. Geneva Convention (I) for the Amelioration of the Condition of the Wounded andSick in Armed Forces in the Field of 12 August 19496. Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sickand Shipwrecked Members of Armed Forces at Sea of 12 August 1949Humanitarian Law Center

7. Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August19498. Geneva Convention (IV) relative to the Protection of Civilian Persons in Time ofWar of 12 August 19499. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating tothe Protection of Victims of International Armed Conflicts (Protocol I) of 8 June197710. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating tothe Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8June 197711. Convention on the Prevention and Punishment of the Crime of Genocide (OfficialGazette of the Praesidium of the General Assembly of the FPRY, No 2/50)12. Convention on the Non-Applicability of Statutory Limitations to War Crimes andCrimes Against Humanity (Official Journal of the SFRY - International Treaties andother Agreements, No 50/70)13. The Hague Conventions and Rules (1899 and 1907)14. The Hague Convention for the Protection of Cultural Property in the Event of ArmedConflict (1954)3815. Statute of the International Criminal Tribunal for the Former Yugoslavia16. Rules of Procedure and Evidence of the International Criminal Tribunal for the FormerYugoslavia17. Rome Statute of the International Criminal Court (1998)18. Law on Ratification of the European Convention for the protection of Human Rightsand Fundamental Freedoms (Official Journal of SCG - International Treaties, No 9/03)19. Law on Ratification of the European Convention on Extradition with AdditionalProtocols (Official Journal of SCG - International Treaties , No 9/03)20. Law on Ratification of the European Convention on Mutual Assistance in CriminalMatters with Additional Protocol (Official Journal of the FRY - International Treaties,No 10/01)21. Law on Ratification of the European Convention on the Transfer of Proceedings inCriminal Matters (Official Journal of the FRY - International Treaties, No 10/01)22. Treaty on Mutual Legal Assistance in Civil and Criminal Matters between the Republicof Serbia and Montenegro of 29 May 2009 (Official Gazette of the RS - InternationalTreaties, No 1/10)Humanitarian Law Center

Publisher: Humanitarian Law CenterFor the Publisher: Sandra OrlovićTranslation: Bojana BoskovićProof Editing: Jonathan BoultingGraphic Design: Milica DerviševićPrinting House: Instant SystemPrint run: 100Belgrade, april 201540CIP - Каталогизација у публикацији - Народна библиотекаСрбије, Београд341.322.5:343.11(497.11)”2015/2025”(094.77.041)MODEL Strategy for the Prosecution of War Crimes CommittedDuring and in Relation to the Armed Conflicts in the FormerYugoslavia : period 2015-2025 / [translation Bojana Bošković].- Belgrade : Humanitarian Law Center, 2015 (Belgrade : InstantSystem). - 39 str. ; 22 cmIzv. stv. nasl.: Model Strategije za procesuiranje ratnih zločinaizvršenih tokom i u vezi sa oružanim sukobima u bivšoj Jugoslaviji.- Tiraž 100. -Napomene i bibliografske reference uz tekst.ISBN 978-86-7932-066-7a) Ратни злочини - Судски процеси - Србија - 2015-2025COBISS.SR-ID 214567436Humanitarian Law Center