Identifier
Created
Classification
Origin
07SARAJEVO1068
2007-05-16 14:32:00
CONFIDENTIAL
Embassy Sarajevo
Cable title:  

BOSNIA - THE STATE PROSECUTOR AND STATE COURT

Tags:  PHUM KAWC KCRM KJUS PGOV PINR PREL BK 
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OO RUEHDBU RUEHFL RUEHKW RUEHLA RUEHROV RUEHSR
DE RUEHVJ #1068/01 1361432
ZNY CCCCC ZZH
O 161432Z MAY 07
FM AMEMBASSY SARAJEVO
TO RUEHC/SECSTATE WASHDC IMMEDIATE 6205
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHTC/AMEMBASSY THE HAGUE 0140
RHEHNSC/NSC WASHDC
RUEAIIA/CIA WASHINGTON DC
RHEFDIA/DIA WASHINGTON DC
RUEKJCS/JCS WASHINGTON DC
RUEKJCS/SECDEF WASHDC
RUFOAOA/USNIC SARAJEVO
C O N F I D E N T I A L SECTION 01 OF 03 SARAJEVO 001068 

SIPDIS

SIPDIS

DEPARTMENT FOR EUR (DICARLO),EUR/SCE (STINCHCOMB, HOH),
EUR/ACE (DUNN) S/WCI (WILLIAMSON, LAVINE); NSC FOR BRAUN;

E.O. 12958: DECL: 05/11/2017
TAGS: PHUM KAWC KCRM KJUS PGOV PINR PREL BK
SUBJECT: BOSNIA - THE STATE PROSECUTOR AND STATE COURT
POST-ICJ VERDICT

REF: A. SARAJEVO 863

B. SARAJEVO 807

C. SARAJEVO 677

D. SARAJEVO 500

E. 06 SARAJEVO 3069

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

C O N F I D E N T I A L SECTION 01 OF 03 SARAJEVO 001068

SIPDIS

SIPDIS

DEPARTMENT FOR EUR (DICARLO),EUR/SCE (STINCHCOMB, HOH),
EUR/ACE (DUNN) S/WCI (WILLIAMSON, LAVINE); NSC FOR BRAUN;

E.O. 12958: DECL: 05/11/2017
TAGS: PHUM KAWC KCRM KJUS PGOV PINR PREL BK
SUBJECT: BOSNIA - THE STATE PROSECUTOR AND STATE COURT
POST-ICJ VERDICT

REF: A. SARAJEVO 863

B. SARAJEVO 807

C. SARAJEVO 677

D. SARAJEVO 500

E. 06 SARAJEVO 3069

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


1. (C) SUMMARY: The February 26 International Court of
Justice (ICJ) decision that genocide was committed in and
around Srebrenica from July 11, 1995 has placed the issue of
war crimes prsecutions near the top of the Bosnian political
genda. The current political environment has highlghted
critical challenges confronting the State rosecutor's Office
and State Court, particularlythe Court's War Crimes Chamber
(WCC) and the Prosecutor's Special Department for War Crimes
(SDWC),which are key to both our state-building and war
crimes strategies for Bosnia. Their creation was a major
U.S. policy success, but the dangers posed by Bosnian
political leaders' propensity to exploit war crimes issues
for political purposes remains acute. A burgeoning war
crimes caseload, including the transfer by the International
Criminal Tribunal for the former Yugoslavia (ICTY) of an
increasing number of cases to Bosnia, the absence of a clear
strategy for managing war crimes cases, the lack of effective
public outreach at both the Prosecutor's Office and the
Court, and weak leadership by the State Prosecutor exacerbate
these challenges. Active international support for these
institutions, which only began hearing cases two years ago,
is likely to remain critical to their development and to
Bosnia's future. END SUMMARY.

Political Winds Buffet State Judicial Institutions
-------------- --------------


2. (C) Over the last year Bosnian politics have becoming
increasingly fractious as political leaders have chosen to
build their support based on appeals to nationalism and frame

most issues in ethnic terms. This was a principle reason the
Peace Implementation Council (PIC) decided in February it was
necessary to extend OHR's mandate for an additional year.
The ICJ's February 26 verdict that genocide took place in
Srebrenica in July 1995 further heightened political
tensions. It also focused attention on unresolved war crimes
issues, such as the so-called Srebrenica list and the 1992
massacre of Bosniaks in Bratunac (Ref. A and B),and on
efforts by the State Prosecutor's Office and the State Court
to ensure war criminals face justice.


3. (C) Bosniak political leaders responded by manipulating
war crimes cases in a manner that undermines public
confidence in these new state-level judicial institutions.
(Note: The problem predates the ICJ verdict, and all ethnic
groups are guilty of it, but it has intensified since
February 26. End Note.) Nationalist politicians have argued
"nothing is being done" to punish war criminals. They ignore
the State Prosecutor's and State Court's successes, and
exploit the fact that the public does not understand that the
domestic institutions capable of delivering justice were only
established 10 years after Dayton. Frequent public turf
battles between State Prosecutor Jurcevic, State Court
President Kreso and High Judicial and Prosecutorial Council
(HJPC) Chair Peric do nothing to increase public confidence
that impartial justice is being done.

Workload Issues Increase Political Vulnerabilities
-------------- --------------


4. (C) In 2003, when international donors agreed to provide
technical and financial assistance to the State Prosecutor
and the State Court, the aim was to develop Bosnia's capacity
to adjudicate cases transferred from the International
Criminal Tribunal for the former Yugoslavia (ICTY) in those
instances where ICTY had issued an indictment, but had not
yet begun trials (so-called 11bis cases). There were nine
11bis cases in 2003, and it was expected that the State
Prosecutor/State Court would have fully adjudicated them by
the end of 2009. In fact, because of construction delays,
the first war crimes trials did not begin until 2005, almost
a full year behind schedule. The ICTY's work has also
proceeded more slowly than assumed, and with its close-out

SARAJEVO 00001068 002 OF 003


looming, it now appears likely that the State
Prosecutor/State Court will inherit many more 11bis cases
than the nine identified in 2003.


5. (C) In addition, the "Rules of the Road" caseload is much
larger than anticipated (i.e., those cases investigated by
ICTY, but not indicted before the ICTY Completion Strategy
cutoff date of 2004). New domestic criminal complaints
alleging war crimes and crimes against humanity are also
burgeoning. According to the State Prosecutor's Registry, in
October 2006, the SDWC had 126 open investigations (involving
334 suspects),6 confirmed indictments and 5 trials/appeals
underway. Just six months later, in April 2007, there were
205 open investigations (involving 655 suspects),21
confirmed indictments and 24 trials/appeals underway. As a
result, resources are stretched thin and the SDWC and WCC are
ill-equipped to handle the rapidly expanding case load.


6. (C) The donor community had planned a gradual reduction of
secondments and financial contributions, with the final
international prosecutors and judges departing in 2008 and
2009, respectively. State war crimes prosecutors are
increasingly concerned that political pressure rather than
more objective criteria will guide decisions about the
selection and pace of investigations/prosecutions as the
international presence diminishes. The international
presence has so far been crucial to withstanding this kind of
pressure.

Need for a War Crimes Strategy and Outreach
--------------


7. (C) A national war crimes prosecution strategy that
provides a workable set of criteria for case selection would
enable the State Prosecutor's Office to better focus its
limited resources. It would also provide the Bosnian public
and politicians with a framework for assessing the State
Prosecutor's work and begin the process of addressing
expectations about what the State Prosecutor can and cannot
accomplish. Perhaps most importantly, it would insulate the
war crimes investigations and prosecutions from political
pressure. If political leaders argued "more needs to be
done," a war crimes strategy would provide an intellectual
framework for a policy-oriented discussion about whether/what
additional resources are required to accomplish this goal
(Note: We have urged Bosniak political leaders demanding a
more robust international effort on war crimes to put their
money where their mouth is and use some of the funds they set
aside for Srebrenica to support the State Prosecutor's Office
and Court. End Note.)


8. (C) The State Prosecutor and State Court also each need to
improve their public outreach efforts. Most lay people have
little or no understanding of the legal requirements
necessary to turn an accusation into an effective
investigation and successful prosecution (e.g., forensic and
documentary evidence, eye witness testimony) (Ref. C). They
simply "know" that this or that person from their village is
guilty and expect "justice" to be done. Thus, as the outcry
over the State Prosecutor's seeming inaction on the
Srebrenica list demonstrated, public expectations are
unreasonably high, and disappointment with the State
Prosecutor's Office and State Court's performances
unnecessarily severe. Unfortunately, neither the
Prosecutor's Office nor the Court have effective outreach
mechanisms for setting the record straight.

The State Prosecutor and the Vision Thing
--------------


9. (C) Unfortunately, it is becoming increasingly apparent
that Chief Prosecutor Jurcevic, appointed in 2003 for a
six-year term, has neither the vision nor the temperament
necessary to grow the war crimes prosecutors' section without
prodding. In fact, his actions undercut his own prosecutors.
Faced with public complaints, donor expectations and a
workload he never expected, Jurcevic has tried to ignore
problems or, failing that, deflect blame elsewhere. He has
often crumbled to political pressure -- reshuffling case
priorities based upon which public figure or victims group is
badgering him the most at that time.

SARAJEVO 00001068 003 OF 003




10. (C) Jurcevic has so far resisted embracing and
implementing the draft National Strategy his war crimes
prosecutors have prepared. Most recently, he asked the
Minister of Justice to create an unnecessarily bureaucratic
inter-agency "working group" to develop another strategy for
submission to the Council of Ministers. This unnecessary
step would likely delay implementation for months.
Furthermore, requiring Council of Ministers approval would
give politicians another means of undermining the Bosnian
judiciary. The American and British prosecutors who are
pushing the in-house National Strategy say that Jurcevic can
be persuaded to make internal improvements in the short-term,
but that is unlikely to happen without forceful and
consistent pressure from international donors.

Comment
--------------


11. (C) Without adequately addressing its wartime past,
Bosnia's future will remain uncertain. Given their
burgeoning workload and the current political environment, it
is easy to imagine an scenario where the State Prosecutor's
Office and State Court are overwhelmed from the outside and
undercut by the Chief Prosecutor from the inside.
International political, technical and financial support has
been critical to the two institutions' successes to date.
The presence of international prosecutors and judges within
the institutions also lends credibility to the State
Prosecutor and State Court by somewhat insulating them from
charges that their decisions are driven by ethnic
considerations. The reaction to the ICJ verdict only
underscores their importance. The verdict also highlighted
the need to reexamine some of the assumptions the
international community made about the Prosecutor's Office
and the Court in 2003 when they were created and the need for
measures, such as a war crimes strategy, to ensure their
long-term health.
MCELHANEY