BOSNIA - OBSTACLES AND OPENINGS FOR TRANSNATIONAL

C O N F I D E N T I A L SARAJEVO 000100

SIPDIS

SIPDIS

DEPARTMENT FOR S/WCI (WILLIAMSON, LAVINE) AND EUR/SCE
(STINCHCOMB),CIA FOR SHOEMAKER

E.O. 12958: DECL: 01/11/2017
TAGS: KAWC PREL PGOV BK
SUBJECT: BOSNIA - OBSTACLES AND OPENINGS FOR TRANSNATIONAL
WAR CRIMES COOPERATION

REF: 06 SARAJEVO 3069

Classified By: DCM Judith B. Cefkin. Reasons 1.4 (b) and (d).


1. (C) SUMMARY: On January 11, the Charge and State Court
President Meddzida Kreso discussed the possibility of Bosnia
making judicial cooperation agreements with neighboring
countries. The discussion was a continuation of the dialogue
USG officials are encouraging among the Balkan countries
about increasing cooperation on war crimes prosecutions.
Judicial cooperation agreements between Croatia, Serbia and
Montenegro are currently being used to facilitate the trial
of accused war criminals in the country where they are
captured, rather than the country where the crimes occurred.
Bosnia, with the largest number of dual-national war crimes
suspects, would clearly benefit from signing such an
agreement with its neighbors. However, there are significant
obstacles, some politically driven, some related to
professional image, and some connected to internal fractures
in Bosnia's legal system. Nevertheless, there are concrete
steps the U.S. could take to help pave the way to fuller
Bosnian receptivity at a later, more propitious time. END
SUMMARY.


2. (U) On January 11, Charge and State Court President
Meddzida Kreso discussed the possibility of Bosnia making
judicial cooperation agreements with neighboring countries.
These agreements provide that jurisdiction over a war crimes
case be transferred from the country where the crime was
committed to the country where the accused was taken into
custody. The State Prosecutor in the ceding country would
hand over all case materials, physical evidence and witness
contact information to the State Prosecutor in the receiving
country. Croatia, Serbia and Montenegro have already
concluded judicial cooperation agreements, apparently without
significant political or legal objections.


3. (U) Under the Croatian, Serbian and Montenegrin
constitutions, their citizens are non-extraditable. Without
these agreements, a Serbian Croat with dual nationality
(i.e., in Croatia and Serbia) suspected of committing war
crimes in Croatia and who fled from Croatia to Serbia would
be unextraditable and untryable in Serbia. However, under
the judicial cooperation agreement, the Croatian prosecutor
can transfer the case to the Serbian prosecutor, who would
then be obliged to pursue it. Judicial cooperation
agreements are thus a sensible way to make sure accused war
criminals are tried somewhere, even if not the territory in
which the crimes allegedly occurred.


4. (C) To date, Bosnia has not signed a judicial cooperation
agreement with any neighboring state, although there are
literally hundreds of Bosnian Serb and Bosnian Croat war
crimes suspects with dual-nationality who might be effected.
Bosnian judges and prosecutors are ambivalent about the
initiative. Judge Kreso has said repeatedly, including at a
regional war crimes conference in Montengro in October 2006,
that she is concerned about relinquishing cases to
neighboring countries where the maximum penalty for war
crimes is 20 years. She characterizes such a step as a
betrayal of all people (regardless of ethnicity) who suffered
in Bosnia and wants to see justice delivered here. She
further believes that a transnational judicial cooperation
agreement would signal to the War Crimes Chamber's (WCC)
domestic political enemies that it is "weak" and unable to
cope with its cases.


5. (C) Judge Kreso told the Charge that she was faced with a
dilemma on the issue, since under such an agreement war
criminals would not be forced to pay for their crimes in
accordance with the full penalties prescribed by Bosnian law.
On the other hand, she admitted that too many suspected war
criminals were fleeing Bosnia and thereby completely evading
justice. Judge Kreso added that she has more urgent problems
at the moment, such as those arising from Bosnia's lack of a
unified (or uniform) legal system. The WCC applies the 2003
State-level Criminal Code and Criminal Procedure Code to war
crimes cases tried in State Court. However, the RS,
Federation and Brcko District law each use their own, rather
than State, laws. RS, Federation and Brcko laws provide that
the laws applied to a case are those that existed at the time

the crime was allegedly committed. When the State Prosecutor
sends a war crimes case to be tried at the entity level, that
case proceeds under the laws of the former Yugoslavia in
force in 1992-95. Because there is no provision for "war
crimes" in the old code, cases proceed under regular murder,
rape and assault charges, which carry significantly lower
maximum penalties.


6. (C) Right now, the WCC is grappling with a domestic legal
crisis: war criminals Radovan Stankovic and Abduladhim
Maktouf have challenged their convictions in Bosnia's
Constitutional Court, claiming their human rights were
violated when their cases proceeded according to the 2003
State law rather than that of the former Yugoslavia, which
existed at the time their crimes were committed. A group of
Bosnian Serb defendants being held in Kula Prison are
attempting to press for trials under the Yugoslavia law by
conducting a hunger strike and refusing to appear in court.
The WCC judges have decided to proceed without the
defendants, as long as the defendants' lawyers are present.
This is a risky strategy, however, as State law is silent on
the question of whether a defendant's refusal to attend
proceedings constitutes a trial in absentia, which is
prohibited by State law, and thus provides the defense with
near-certain grounds for a successful appeal.


7. (C) State Chief Prosecutor Jurcevic is a less-ambiguous
supporter of judicial cooperation agreements, for the very
practical reason that it takes some pressure off his office.
In many conversations with USG representatives, Jurcevic has
complained that he and his staff bear the brunt of the entity
versus State dilemma. Nationalist politicians, and even some
justice sector colleagues, dissect every case transfer for
ethnic bias. If Jurcevic (a Bosnian Croat) transfers a case
to the Mostar court, he is accused of treating Croats
leniently. If he refuses to send a case to Banja Luka, he is
criticized for persecuting Serbs. He believes that if
Stankovic and Maktouf win their argument before the
Constitutional Court, the public will blame his office, not
the Court, for castrating the WCC. In that context, he has
expressed no objection to officially handing off a case (and
the responsibility for it) to the Croatian, Serbian or
Montenegrin Chief Prosecutor.


8. (C) Both Kreso and Jurcevic say they are committed to
maintaining the excellent informal cooperation that exists
with neighboring courts. However, they doubt that it could
be formalized in the current political climate, even if legal
issues such as penalty discrepancies were resolved. Amid an
atmosphere of heightened nationalism, they believe
parliamentarians have several motives for refusing to agree
to transfer of cases. The Bosniak electorate would be
outraged, particularly if the cases transferred related to
mass abuses and killings. Bosniak politicians might seize
upon even a minor, seemingly uncontroversial case to whip up
their nationalist voter base by making it a cause celebre.
For their part, nationalist Bosnian Serb and Bosnian Croat
politicians have no motivation to change the status quo,
under which a fugitive war crimes suspect escapes trial
completely by leaving Bosnia.


9. (C) COMMENT: The prospects for Bosnia signing a judicial
cooperation agreement with its neighbors on war crimes cases
in the near term are not bright. While the State Court
President and State Chief Prosecutor, to varying degrees,
support exploring the idea, they are reluctant, given the
heightened nationalist political climate, to pursue it
vigorously. We will continue to engage with judicial leaders
about possible ways forward and will also quietly raise the
issue with Bosnian political leaders, most of whom have been
preoccupied until recently with national elections and
government formation. At the same time, it might be worth
considering whether to encourage regional capitals to
harmonize their war crimes penalties, although Bosnia would
likely press the others to increase their maximum sentences
rather than lower its own. We welcome input from our embassy
colleagues in Belgrade, Zagreb and Podgorica on this idea.
The Ministry of Justice, supported by the international
community, has recently begun the long and difficult process
of shaping a comprehensive judicial reform plan to reconcile
the four different domestic systems. It will be important to

support this process as well, since it offers a means of
removing the local obstacles that currently distract justice
sector leaders from engaging fully on transnational war
crimes cooperation agreements. END COMMENT.
MCELHANEY