The latest hearing in the case against Jovica Stanisic and Franko Simatovic was held at the Mechanism for International Criminal Tribunals in The Hague on Tuesday, when the first defence witness in their retrial for wartime crimes in Bosnia and Herzegovina and Croatia gave testimony behind closed doors.
Closed hearings have become a feature of the trial of Stanisic and Simatovic, and the public has only had the chance to hear a few witnesses’ testimonies, said Iva Vukusic, an international humanitarian law researcher at Utrecht University.
The men’s initial trial at the International Criminal Tribunal for the Former Yugoslavia, ICTY, and now the retrial at the Mechanism for International Criminal Tribunals, have been “the most closed and non-transparent process I have ever seen before the Tribunal and Mechanism”, Vukusic told BIRN.
“It is not just a defence issue. Evidence and witnesses of the Hague prosecution have mainly been unavailable to the public as well,” she said.
The court has granted protective measures for several witnesses who will testify in the next few weeks, including the first witness who has already started testifying, meaning that the public will not have access to these hearings.
The Mechanism for International Criminal Tribunals told BIRN that the requests for protective measures were filed by Serbia.
“I would mention that this is a temporary decision until the parties have filed written motions concerning this issue, to enable the continuation of the process,” said Mechanism spokesperson Helena Eggleston.
Stanisic, the former chief of the Serbian State Security Service, and Simatovic, a former intelligence officer with the service, are charged with the persecution, murders, forced transfer and deportation of Croats and Bosniaks in Croatia and Bosnia and Herzegovina. The case has offered the chance to examine Serbia’s involvement in both wars.
The ICTY acquitted Stanisic and Simatovic at their first-instance trial in 2013, but the prosecution’s appeal was upheld and a retrial ordered because serious legal and factual errors were made.
Vukusic said that there are justified reasons why the public is excluded from hearings in certain cases, but said she believes that these are being used too often.
She argued that once the verdict has been pronounced, the public will hardly be able to understand the basis on which it was decided.
“Nearly 25 years after the end of the war, one of the most important Hague trials is running in the dark,” she said.
“My impression is that the state is using the ‘national interest’ to the detriment of the public – we have no idea what is happening in the courtroom and we should know. We, the observers, as well as victims and citizens of Serbia and Croatia and Bosnia and Herzegovina,” she added.
Vukusic argued that the presentation of evidence behind closed doors should not be so easily allowed, “because that undermines both the legitimacy of the verdict and the possibility of making the public aware of the facts”.
‘Victims want to hear the truth’
Bosnian lawyer Vasvija Vidovic, who has acted in cases before the Hague Tribunal, said that in every case, the victims want to hear the truth about what really happened.
But on the other hand, the Tribunal’s rules allow for witnesses to testify with their identities protected.
“Trial chambers usually try to balance between the interests of the public and victims on one side and the vulnerability of witnesses and the defendants’ rights to a fair trial through the examination of witnesses who don’t dare or don’t want to testify without protective measures,” Vidovic said.
But, expressing the frustrations of war victims, Ema Cekic, the president of the Association of Families of Missing Persons from Vogosca in Bosnia and Herzegovina, said that “I simply don’t understand why they close the door to the public”.
Edin Ramulic, an activist from Prijedor in Bosnia and Herzegovina, where many wartime crimes were committed, said that closed sessions are bad for NGOs and media that cover war crime trials.
However, he argued that the wider public does not follow such hearings and is only interested in “arrests and pronouncement of verdicts”.
Nina Kisic, a lawyer from Sarajevo, said that closing hearings to the public has no impact on the judges who are tasked with establishing the truth.
However, as it is likely that protected witnesses’ testimonies will be redacted in the verdict, “the public will surely be deprived of complete reasons for the court decision, whatever it may be”, Kisic pointed out.
