Protecting witnesses from their neighbors

Court officials and others say witness protection is the biggest challenge facing the court system. And while the Court of BiH’s new War Crimes Chamber has a program for protecting witnesses during trials, most war criminals will be tried in district and cantonal courts that have virtually no protection at all.

Fahrija Karkin, Sarajevo attorney, claims witness protection is especially important in war crimes cases (Photo: CIN)

After he accepted the anonymity of protected witness status from the local court, the one person A.P. never expected to see during his appearance at the court house in Zenica was the brother of accused war criminal Dominik Ilijašević Como.
But in July 2002, while waiting in the corridor one day to take the stand in the trial of the man allegedly responsible for shooting four of his cell mates in Kreševo prison camp, A.P. found himself eyeball to eyeball with the brother.

As he walked into the courtroom, with journalists and the defendant’s brother and friends watching, A.P. knew he was never again going to feel safe in his town or his country.

“I felt like I was back again in the Kreševo prison camp,” said, A.P., who is not being identified because he is a protected witness.

As domestic courts and a new state level War Crimes Chamber get ready for a flood of cases, experts here and abroad worry that BiH lacks the money or experience to really protect witnesses against revenge. This small country also lacks the territory or needed agreements with other countries that would allow for relocation of threatened witnesses.

The International Criminal Tribunal for Yugoslavia at The Hague (ICTY) has decided to move three of the 11 defendant’s cases it is considering transferring to the new chamber in BiH, and the BiH Prosecutor’s Office is reviewing cases that involve 5900 suspects that could end up in local courts like the one in Zenica.

Many of those cases could be jeopardized if witnesses cannot be assured they will be safe after they walk out of the court and back home to the communities where war crimes happened a decade ago.

While the new state-level court has the resources for equipment to guard the privacy of scared witnesses such as separate entrances, protection cubicles, and electronic voice alteration systems, the lower courts lack the most basic courtroom gear.

The situation is not better in neighboring countries. Serbia and Montenegro does not even have a law providing for witness protection. Croatia and BiH have a law but seemingly no way to implement it.

The BiH law, passed in 2003, provides protections such as voice alteration during hearings, remote testimony via video-conference link, and changing witnesses’ names.

The problem, the experts agree, will be in applying an untried law.

Alma Džaferović, chief prosecutor in the canton of Tuzla with 25 years of court experience, warns that, “The law on witness protection exists but it has not been applied yet. We’re only at the beginning of this process.”

Siniša Đorđević, a lawyer and former representative of the RS government for cooperation with the Hague Tribunal, predicted that the state War Crimes Chamber is likely to run into some of the same problems in regards to witness protection that the international court did.

“That is expensive legislation and it’s a novelty for us,” he said of the BiH law. “I’m afraid that under the prosecution’s pressure we will end up in a situation of putting witnesses on the stand, but we’re not totally ready to protect them.”

Biserka Milošević, lawyer with the Osijek-based Center for Peace in Croatia, which monitors war crimes trials in that country, also is not optimistic.

The Croatian attorney’s advice to anyone thinking of entering the witness protection program in BiH, she said, would be not to.

“We are territorially very small countries (in the western Balkans) and it is almost impossible for a person entering the witness protection program to be adequately protected,” she said. “Law is one thing, reality is another.”

With the phase-out of the Hague tribunal by 2010, war crimes trials will be taking place in the very places where the war was waged and murder, rapes, torture and abductions were done. Experts say that under these emotional circumstances, with people being asked to give damning information in public about their current and former neighbors, more witnesses are likely to feel the need to be protected.

The experience of some witnesses who have testified in war crime cases and then returned home to threats and danger is ominous.

Mehmed Ahmić appeared as a witness for the prosecution in The Hague in 1999 against Tihomir Blaškić, former commander of the Croatian Defense Council in mid-Bosnia, who allegedly ordered the killing of 108 Bosniaks in Ahmići, near Vitez.

Ahmić testified that, although Blaškić was guilty of doing nothing to stop the 1993 massacre, he did not order it.

Even before he flew to The Hague, he received telephone threats from Bosniaks in Ahmići because his testimony would exonerate Blaškić of command responsibility for the killings. Prosecutor’s office officials offered to relocate him and his family to Spain or Northern Ireland. But Ahmić turned down the offers because he wanted to live in his own village.

But as soon as he got home from The Hague, trouble was waiting.

His house was covered with insulting graffiti. One night two of his neighbors stopped his car and started beating it with baseball bats before he could drive away. People called him a traitor to the Bosniak cause when he walked down the street.

Finally, his 20-old daughter and her cousin, 16, were attacked and beaten while walking on the street.

He complained to Travnik police, but no one was ever arrested or questioned.

“From the moment I decided to go to The Hague I’ve been living in fear,” said Ahmić, who still lives in Ahmići. “But I had to tell the truth.”

For another Hague witness, her neighbors were not the only problem.

The witness was scheduled to testify about murder and torture she witnessed in her town allegedly committed by Mitar Vasiljević in 1992. Vasiljević was charged and convicted of robbery and murder of civilians in Višegrad.

But the town police took her into custody for 48 hours before she left to testify.

“They threatened me and tried to force me to sign a disavowal claiming that I had seen none of the things I was going to testify about,” said the 52-year-old woman, who is not being identified here because of her status as a protected witness.

The witness never came back to Višegrad after the war because too many of the people whose atrocities she testified about were still walking around free.

“The protection of the Hague witnesses doesn’t work,” she said. “In the end you are left to your own devices.”

Witnesses who have appeared in lesser war crimes cases, which have been tried in local BiH courts while the international tribunal has been trying major cases, have faced the same threats but without the Hague protections, such as relocation.

Despite telephone threats the night before, A.P., the 50-year-old witness in the Como case, which is still being tried in Zenica, didn’t even get an escort on the drive to court in Zenica in 2002.

Police did walk A.P. from the entrance of the courthouse into the courtroom. There, the witness came across the defendant’s brother and friend.

“At that moment I asked myself what kind of a protected witness was I,” A.P. said. They knew him and they knew why he was there.

Even if they hadn’t, the judge read A.P.’s full name and the name of his town in court.

For an hour on the stand, A.P. described events in the prison camp in Kreševo where he had been imprisoned during the war. He testified about the abduction of Bosniak civilians who were later found dead.

At the end of his testimony, he told himself, “I am never again going to be a protected witness.”

The new state War Crimes Chamber will have many of The Hague’s protection measures, which are missing in lower courts.

State Court officials said among the improvements will be witness cubicles with darkened glass and a separate entrance for witnesses so their identity can be protected from the public. Each courtroom also has equipment to scramble voices and to allow testimony from a remote location.

The State Court Registrar’s Office also has a new department for witness security with a budget of about half million euros for two years of operation.

The department’s five employees will give witnesses psychological, organizational and logistical support. They will find safe housing and transport for frightened witnesses coming from other towns, baby-sit children and watch out for families while the witness is testifying.

Under BiH’s law, the State Investigation and Protection Agency (SIPA), is in charge of protecting witnesses before, during and after trial in BiH.

In interviews with the presidents of all ten FBiH cantonal and five RS district courts, and the Brčko court, CIN reporters were told that none of them, except for Brčko and Livno, had any means to protect witnesses in potential war crimes cases.

Bogdanka Davić Jovičić, president of the East Sarajevo district court, said she has petitioned the RS Ministry of Justice for money to build a new court to replace the current court located in an old prison. She has also asked the High Judicial and Prosecutorial Council (HJPC) and the RS government for help hiring more judges and getting a bigger budget, all to no avail.

Jovičić, herself, has received telephone threats and in April, she asked for court police protection. She has “no idea,” she said, how her court could offer even minimum protection to witnesses.

The presidents of other cantonal and district courts also are unclear how they will provide a safe environment for witnesses testifying about atrocities.

If he has to insure the safety of dozens of war crimes witnesses, Bihać judge Reuf Kapić said he doesn’t know how he will do it.

Bijeljina judge Radomir Aleksić said the only protection his court could offer was to let witnesses write out testimony to be read to the judges’ panel instead of appearing in court.

“The possibility of a witness participating in a trial via special technology or by being in a dedicated room does not exist for now,” he said.

It does not exist in the district court of Trebinje or Tuzla cantonal court either.

Only the court in Brčko District comes close to European standards, which are also used in the new War Crimes Chamber in State Court, according to Tuzla lawyer Miloš Stanimirević. For example, Brčko uses taping equipment for transcripts instead of stenographers. He said a hearing in Brčko that might last an hour and half could take as much as five hours in other courts.

“I’ve spoken on many a panel discussion about how we have met no prerequisites to protect witnesses,” said Stanimirović.

A 2005 OSCE report on the handling of war crimes by local BiH courts since 1996, similar to the CIN inquiry, found inadequate resources for sophisticated war crimes trials. BiH and entity ministries must come up with the funding for witness protection, Daniel Beckwith, OSCE legal counselor and author of the report, said in an interview.

The local courts are funded from meager local and entity government budgets, and they will see none of the 22 million euros that international donors have pledged for the new state level chamber.

“It (witness protection) is an expensive service,” said Miloš Stanimirović, President of the Commission for Criminal Justice at the regional bar office in Tuzla “Who will be footing the bill?”

None of the countries from the Balkan Wars have the necessary funding, said Croatian attorney Biserka Milošević.

“It’s a question of millions and I know that neither Croatia nor BiH have those funds,” Milošević said.

Even the State Court, at the moment, cannot fund a complete witness protection program for the new Chamber, according to BiH’s Chief Prosecutor Marinko Jurčević.

“The credibility of the Court and the Prosecutor’s Office will be viewed by the quality of the witness protection program,” said Jurčević, who adds that his office, SIPA and the Registrar’s Office must solve this problem.

“We can talk until Judgment Day but unless the financial means are provided witness protection can’t happen,” he added.

The most expensive part of witness protection in any country is relocating witnesses and giving them a new identity after their appearance in court.

“We are a small country, the bigger part of which one can drive from one end to the other in six hours,” said Mustafa Cerovac, a lawyer with 28 years of experience. That makes it impossible to ever really move a witness out of the reach of enemies.

The father of the biggest witness protection program in the world agrees with Cerovac. Gerald Shur, a former U.S .Attorney General, started the U.S. program in the 1960s.

No witness, who has obeyed the rules of America’s program, has ever been uncovered, he said. Currently, about 21,000 people participate in the U.S. witness protection program. An average of 600 people enter the witness protection program annually at a cost of $70 million a year.

“You are a small country, like a suburb in one of the metropolitan areas in the U.S,” said Shur, who was contacted at his Annapolis, Maryland, home.

Shur said he had advice for the BiH officials, who must implement its new witness protection law.

“I recommend you establish better relations with the EU member countries by way of bilateral agreements,” he said.

“We have no international agreements. We have no program for protection of witnesses,” said Vaso Marinković, the BiH chief war crimes prosecutor. “It would have helped us a lot if we had already had agreements and programs ready-to-go.”

Shur said that in the absence of treaties, relocations could be handled on a case by case basis.

“You should go to the highest authorities in the countries with which you want to negotiate and arrange agreement for that witness only or for his family,” he said.

But that may be difficult without an agreement. For example, a BiH German embassy spokesman told CIN. ”Without an international agreement, Germany is not able to accept witnesses that would eventually desire to take asylum in this country.’

If and when BiH will be able to insure effective witness protection, is a question no court officials could answer.

But many witnesses haunted by the need to speak out about the truth of what has happened in the past, have already reached a verdict on the protection their country can provide.

“They suck you dry at the trial and then kick you out once they don’t need you anymore,” said a 52-year-old mother of two, who testified before the Sarajevo Cantonal Court about atrocities in Eastern Bosnia.

No one can provide complete protection in any case, BiH Minister of Justice, Slobodan Kovač said. Witnesses must just stand up to that burden.

‘If I was a witness to a mass murder no one would have to invite me to testify,” said the minister. “If all of us were cowards where would we end up?’