BOSNIA - WAR CRIMES AND JURISPRUDENCE

C O N F I D E N T I A L SECTION 01 OF 03 SARAJEVO 002201

SIPDIS

SIPDIS

DEPARTMENT FOR EUR/SCE (FOOKS, STINCHCOMB) AND S/WCI
(LAVINE)

E.O. 12958: DECL: 10/16/2017
TAGS: PREL ICTY KAWC PGOV PHUM PINR KJUS MCRM BK
SUBJECT: BOSNIA - WAR CRIMES AND JURISPRUDENCE

REF: A. SARAJEVO 1547

B. SARAJEVO 1403

C. SARAJEVO 1212

D. SARAJEVO 1068

Classified By: Michael J. Murphy. Reason 1.4 (b) and (d)


1. (C) SUMMARY: The International Court of Justice (ICJ)
verdict earlier this year and the deteriorating political
situation have stirred renewed interest in the country,s
fragmented judicial system and its ability to manage war
crimes cases. The State Court,s potential war crimes
workload has expanded well beyond what was anticipated when
it was created. Many cases will have to be tried in entity
and cantonal courts, whose poor track record managing war
crimes cases was one reason the War Crimes Chamber at the
State Court was created. The absence of a country-wide
supreme court and lack of a common criminal code will
contribute to an uneven ) and possibly contradictory --
development of war crimes jurisprudence and inconsistent
treatment of indicted individuals. State Court President
Judge Meddzida Kreso has proposed to remedy this situation by
temporarily designating entity and cantonal judges as State
Court judges to hear war crimes cases. Unfortunately,
deficiencies in her proposal make its implementation
problematic. Left unresolved, these judicial issues threaten
to undermine our efforts at building state-level judicial
institutions and erode public confidence in and support for
the judiciary,s work in war crimes cases. END SUMMARY

War Crimes Cases: From Entity to State and Back Again
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2. (SBU) Before the creation of the State Court in 2002, war
crimes cases could be tried in Republika Srpska (RS) and
Brcko district courts and Federation cantonal courts once
reviewed and approved by the International Criminal Tribunal
for the former Yugoslavia (ICTY) under its &Rules of the
Road8 office. The State Court was granted exclusive
jurisdiction for all war crimes cases initiated after March

2003. At the same time, all war crimes cases at the entity
levels, except those where an indictment had been issued,
were sent from the district and cantonal prosecutors to the
Chief Prosecutor. The Chief Prosecutor was charged with
reviewing these cases to determine whether they should be
handled by his office, deemed &highly sensitive,8 or by the
district and cantonal courts, deemed &sensitive.8 The
Chief Prosecutor,s Office expects to finish reviewing these
cases sometime early next year.


3. (SBU) The State Court,s potential workload has expanded
well beyond what was anticipated when it was created. The
number of cases the ICTY will transfer to the State Court is
fairly well-known and finite, but the number of
domestically-initiated cases and of those suspected
perpetrators who may be deported to Bosnia have the potential
of increasing and draining resources from other work. The
Chief Prosecutor claims that there are potentially 13,000 war
crimes complaints. There is good reason to question this
number, but the exaggerated estimate, the political fallout
from the February ICJ verdict, and the absence of a publicly
stated strategy to deal with the numbers of realistic cases
have all raised legitimate questions about the State Court,s
capacity to manage war crimes cases. The effort to craft a
National Strategy for War Crimes Recovery (Reftel) is
designed, in part, to address this issue. Because the State
Court can not try all war crimes cases, a large number will
likely go to District and Cantonal Courts for investigation
and prosecution.

One Country, Five Criminal Codes
--------------


4. (SBU) When trying war crimes cases, the State Court
applies the 2003 State Criminal and Criminal Procedural
Codes. The Federation, RS, and Brcko District, however, have
their own criminal codes. In war crimes cases, all three
also apply the old Socialist Federal Republic of Yugoslavia
(SFRY) Criminal Code. There are important differences
between the 2003 and other criminal codes that impact the
handling of war crimes cases. For example, the State Code
includes the charge of crimes against humanity and a broader
definition of command responsibility, neither of which are
part of the entity or SFRY codes. Defendants before the
State Court also face stiffer sentences, since the State
Criminal Code provides for a maximum prison sentence of up to
40 years; the other codes provide for a maximum sentence of

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20 years.

And Two Hunger Strikes
--------------


5. (C) War crimes defendants before the State Court have
claimed that the application of the more stringent State
Criminal Code is a violation of their human rights, arguing
that the criminal code in force in Bosnia at the time of
their alleged crimes (i.e., the SRFY code) should be the one
applied. About 30 defendants from three different
correctional facilities in Bosnia went on a hunger strike for
about three weeks in January to call attention to this issue.
Court officials believe the hunger strike was essentially a
sham. Inmates at the Kula detention facility in the
Repbulika Srpska (RS) were believed to be secretly taking in
food and drinks. Prison and hospital officials in the RS may
also have been in collusion with the defendants on their
hunger strike. For example, a Court official told us that
after a 21-day hunger strike, these inmates had not lost much
weight. In early September, the Kula indictees began another
hunger strike in protest. The Court has stood firm both
times and publicly said it would not give in to their
demands. Regardless, the issues associated with the most
recent hunger strike reinforce public perceptions, fueled by
RS political leaders, that Serbs are not treated fairly by
the Court.

Fragmented Judicial Structure
--------------


6. (SBU) The 2003 Criminal and Criminal Procedural Codes were
imposed on the State Court by HighRep Ashdown. At the time,
the entities and Brcko pledged to harmonize their codes with
the 2003 codes, but have not yet done so. If the State Court
believes a district or cantonal court is mishandling a war
crimes case, there is no legal mechanism for the State Court
to reclaim or review the case once it has been transferred to
the district or cantonal court. In addition, there is no
superior court in Bosnia with the jurisdiction to ensure the
equal jurisprudence and similar sentences for similar conduct
regardless of where a person is charged or tried for alleged
war crimes. Cases tried in district or cantonal courts can
only be appealed to the entity or Brcko supreme courts rather
than the State Court,s appellate division. The creation of
a State Supreme Court with overarching jurisdiction over all
the courts in BiH would resolve this problem. (Note: It would
also address other critical judicial reform issues. End Note)
However, it would require the transfer of competency from the
entities to the state and a constitutional amendment; neither
is likely in the current political climate. Passage of a
single state-level Criminal and Criminal Procedural code for
all of Bosnia would also be politically problematic.

Constitutional Court Weighs In
--------------


7. (SBU) The jurisdiction of Bosnia,s Constitutional Court
is limited to constitutional issues; it is not a court of
final review. However, in March 2007 it issued a ruling on
an appeal filed by the first person convicted of war crimes
by the State Court under the 2003 Criminal Code. In this
case, the Constitutional Court determined that the
application of the 2003 Criminal Code did not violate the
defendant,s constitutional rights or those guaranteed under
international law. (Note: The Bosnian Constitution
incorporates the European Convention for the Protection of
Human Rights. End Note) It concurrently ruled that entity
courts have an additional obligation to consider the 2003
Criminal Code and other relevant laws and international
documents when deciding on the war crimes offenses. However,
the Constitutional Court has no mechanism for enforcing its
ruling and can not require entity courts to apply the 2003
Criminal Code.

Court President Kreso Proposes A Solution
--------------


8. (SBU) Cognizant of a growing number of war crimes cases
and the absence of a single jurisprudence for war crimes
cases, State Court President Meddzida Kreso has proposed that
the State Court establish satellite offices in the major
district and cantonal courts, including Brcko. Judges would
be temporarily assigned to the State Court and apply the 2003
Criminal Code, but remain sitting in their entity courts.
Any appeal would be heard by the State Court,s appellate
division rather than by the local courts, thus allowing for

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more uniformity in the application and interpretation of the
law. The State Court President would be responsible for
managing the work of these satellite offices. This proposal
would require amending the laws on the High Judicial and
Prosecutorial Council and the State Court.

The Drawbacks
--------------


9. (SBU) Kreso,s proposal, concerned primarily with
harmonization of war crimes jurisprudence in Bosnia, is a
good starting point for discussion on the issue, but it
contains several deficiencies. She focuses almost
exclusively on addressing the State Court component and
ignores the investigative and prosecutorial needs associated
with managing the burgeoning war crimes workload. State
Court satellite offices would make little sense without
companion branch offices for the Chief Prosecutor, but Kreso
offers only a short paragraph on setting up similar satellite
offices for the Prosecutor,s Office. Entity and Brcko
authorities would likely resent having to pay the salaries of
their judges and provide them with office space but be unable
to assign them to other cases before the courts. Local
officials have voiced concern to us about the lack of judges
for their cases, and the Republika Srpska Justice Minister
has already stated his opposition to this proposal. Finally,
Kreso,s proposal is also silent on who would provide ) and
pay for ) support staff for satellite offices and ignores
that there would also likely be costly infrastructure
requirements.

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


11. (C) The 18-month political deadlock, the ICJ verdict, and
the lack of a publicized strategy to manage its work have
prompted the international community and many within the
Bosnian judicial establishment to reassess the capacity of
Bosnia,s judicial framework and institutions to manage a
burgeoning war crimes case load. The HighRep was begun a
dialogue on wide-ranging and much-needed judicial reforms,
many of which would improve Bosnia,s ability to manage
politically contentious war crimes cases. Bosnian
authorities have also launched their own initiatives
(Reftel). They will likely need a strong assist from the
international community to make any progress given the
rivalries and personality conflicts among senior Bosnian
judicial officials. We will remain engaged with the major
players to maintain their focus on the issues rather than
their personal agendas.


12. (C) With respect to criminal codes and war crimes, it is
important to remember that common principles and a consistent
interpretation of the law throughout Bosnia are critical to
advance respect for the law, the institutions that enforce
and apply it, and to ensure fundamental fairness. If left
unresolved, the work of the State Court may become more
politicized, undermining our efforts to build effective
state-level judicial institutions. It may also erode public
support for the judiciary,s work in war crimes cases.
ENGLISH