Identifier
Created
Classification
Origin
07SARAJEVO2555
2007-11-27 16:56:00
CONFIDENTIAL
Embassy Sarajevo
Cable title:  

BOSNIA- CHALLENGES FOR THE STATE COURT

Tags:  PREL PGOV PHUM ICTY KAWC KJUS KCRM BK 
pdf how-to read a cable
VZCZCXRO6991
RR RUEHDBU RUEHFL RUEHKW RUEHLA RUEHROV RUEHSR
DE RUEHVJ #2555/01 3311656
ZNY CCCCC ZZH
R 271656Z NOV 07
FM AMEMBASSY SARAJEVO
TO RUEHC/SECSTATE WASHDC 7434
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEAWJA/DEPT OF JUSTICE WASHINGTON DC
RUEKJCS/SECDEF WASHDC
RUEAIIA/CIA WASHINGTON DC
RHEFDIA/DIA WASHINGTON DC
RUEKJCS/JCS WASHINGTON DC
C O N F I D E N T I A L SECTION 01 OF 04 SARAJEVO 002555 

SIPDIS

SIPDIS

DEPT FOR EUR/SCE (HOH, FOOKS, STINCHCOMB),S/WCI
(WILLIAMSON, LAVINE),INL (KIMMEL)
DOJ PASS TO OPDAT ALEXANDRE

E.O. 12958: DECL: 11/27/2017
TAGS: PREL PGOV PHUM ICTY KAWC KJUS KCRM BK
SUBJECT: BOSNIA- CHALLENGES FOR THE STATE COURT

Classified By: Political Counselor Michael Murphy for reasons 1.4 (b) a
nd (d)

C O N F I D E N T I A L SECTION 01 OF 04 SARAJEVO 002555

SIPDIS

SIPDIS

DEPT FOR EUR/SCE (HOH, FOOKS, STINCHCOMB),S/WCI
(WILLIAMSON, LAVINE),INL (KIMMEL)
DOJ PASS TO OPDAT ALEXANDRE

E.O. 12958: DECL: 11/27/2017
TAGS: PREL PGOV PHUM ICTY KAWC KJUS KCRM BK
SUBJECT: BOSNIA- CHALLENGES FOR THE STATE COURT

Classified By: Political Counselor Michael Murphy for reasons 1.4 (b) a
nd (d)


1. (C) SUMMARY: Over the past four years, the State
Prosecutor,s Office and State Court have made important
strides building Bosnia,s capacity to try war crimes cases.
Preliminary information on likely future war crimes cases
suggests a demanding workload and challenges for both the
prosecutor and the court. The Prosecutor,s Office is
finishing work on its demographic analysis and case selection
guidelines, something we have pressed for since the February
verdict of the International Court of Justice (ICJ). The
Court is also exploring ways to improve its case management
system to improve efficiency. Resource issues will remain
important constraints on what each institution can do.
Availability of witnesses and suspects and translation needs
will also continue to challenge the work of the prosecution
and court. Much of the progress at the State Court has been
driven by the international prosecutors and judges who work
there. END SUMMARY

13,000 Cases Overestimates the Workload
--------------


2. (C) The exact number of war crimes cases in Bosnia is
unclear, though there is much speculation among officials and
the general public. The inflated and unsupported estimate of
13,000 is often quoted in the press and by Chief Prosecutor
Jurcevic. According to David Schwendiman (please protect),
the American Deputy Chief Prosecutor for the Special
Department for War Crimes, the Rules of the Road (RoR) case
inventory best illustrates the real work load. (Note: RoR
cases are those reviewed by ICTY under the 1996 Rome
Agreement between 1996 and 2004, to determine whether a
sufficient threshold under international humanitarian law has
been met and warranted prosecution by local authorities. End

Note)


3. (C) There are roughly 4,000 RoR cases, but only 877,
involving 777 suspects, have any possibility of successful
prosecution, Schwendiman argues. Accepting the 877 figure--
still a daunting case load-- would allow prosecutors and
judges to begin planning criteria and resources to handle
this more realistic number rather than continuing to operate
based on the assumption that they must ultimately try 13,000
cases. However, because the 13,000 figure has acquired a
quasi-official status, leaders of Bosnia,s judicial
institutions, let alone Bosnia,s political leaders, are
afraid to challenge it. This prevents more thoughtful
planning and political debate on how best to manage Bosnia,s
war crimes legacy, Schwendiman maintains.

Real State Court Workload Closer to 450
--------------


4. (C) The State Prosecutor,s Office classifies 202 of the
877 RoR cases "highly sensitive." These cases will be
investigated and, if there is an indictment, prosecuted in
the State Court. There are also about 200 additional cases
in a gray area that could neither be classified as "highly
sensitive" or "sensitive" and were kept by the Prosecutor,s
Office for further consideration. The 400 priority RoR
cases, six Rule 11 bis cases, and 40 "Category 2" files
transferred from the ICTY means that the State Prosecutor,s
Office,s current workload is approximately 450 known cases.
The Prosecutor,s Office will refer the remaining 475 RoR
cases, which are considered "sensitive," to the cantonal and
district prosecutors, offices and courts. RoR cases
assessed as having little chance of being prosecuted
successfully (approximately 3,100) would have to wait until
all 877 cases have been completed.

Clearing Cases: 10-15 Years
--------------


5. (C) Schwendiman believes it is possible for the
Prosecutor,s Office to process about 450 war crimes cases in
10-15 years. According to his calculations, one prosecutor
can handle three to four cases per year. This means the 17
war crimes prosecutors could handle a total of 51-68 cases
per year for ten years. Schwendiman conceded that it is
difficult to predict the average time to process one case but
estimates it could take nine to 18 months for a case to go

SARAJEVO 00002555 002 OF 004


from the investigative stage to a verdict. Maintaining a
high-level pace in the Special Department for War Crimes
would require training and developing new managers for these
cases, however. As these managers become more experienced,
their efficiency should improve.

But More Judges Would Be Required
--------------


6. (C) The Court,s Section I for War Crimes does not appear
capable of handling the volume of cases Schwendiman foresees.
The Court,s war crimes section has five first-instance
panels composed of three judges each. Operating at maximum
capacity, each panel could try four cases per week (a
different case each day) -- a total of 20 cases/week for all
five panels. If the State Court is expected to keep up with
the pace of indictments issued by the Prosecutor,s Office, a
doubling or tripling of State Court judges would be
necessary. Hiring more judges may also present problems for
the State Court, which has had difficulties in finding
qualified nationals to fill its current vacant judicial
positions. Most entity judges see their career paths within
their entity,s judicial structure and feel there is little
prestige or incentive in working on politically and
ethnically sensitive cases at the State Court.

Guidelines and Criteria
--------------


7. (C) In the past two years, decisions regarding case
selection and priorities have been made mostly in response to
public and political pressures, resulting in the easiest and
most expedient cases going forward rather than the more
important ones. This has also contributed to confusion in
and out of the State Court about the prosecutor,s criteria
and motives for case selection. To counter this impression,
the international staff in the Special Department for War
Crimes has spent over nine months developing a demographic
war crimes database. The database will sort by municipality
the types of crimes committed and the availability of
witnesses and suspects and identify those who were in
leadership positions within respective armies when the crimes
were committed.


8. (C) In conjunction with this information, the
Prosecutor,s Office is also developing objective criteria
for case selection, which could be explained to the public
and clarify why certain cases have been moved to the head of
the line for prosecution. We have been urging the
Prosecutor,s Office to make both these projects a priority
since the February ICJ verdict, and they should be completed
in the next few weeks. Both will help the Prosecutor,s
Office make decisions about where to devote scarce resources.
The Special Department for War Crimes is also looking at
other elements to speed up processing of cases: the
strategic use of plea bargains, which have not been used to
date; and selectively granting immunity, which could help
process cases of lower level officials while developing
witnesses and evidence against high level suspects and cases.


Unforeseen Cases Worrisome
--------------


9. (C) The Prosecutor,s Office is worried about the
potential impact of new domestic war crimes complaints, which
the Prosecutor,s Office would have to investigate regardless
of whether they are tried by the State Court or by entity
courts. According to the BiH Criminal Code, the State
Prosecutor has jurisdiction over new war crimes
investigations but only the State Court can authorize the
transfer of a war crimes case to the entities. As a result,
the State Prosecutor must investigate and issue an indictment
before he can file a motion requesting the Court to transfer
the case-- which the Court may or may not approve. Neither
the State Prosecutor nor the State Court can afford to spend
scarce resources on cases that will ultimately be tried by
the entities. This issue may increase tension between the
Prosecutor,s Office and the State Court. Without a change
in the BiH Criminal Code, State Court President Meddzida
Kreso will not allow the Prosecutor to transfer a case
without the Court,s approval.


SARAJEVO 00002555 003 OF 004


Problems with Witnesses and Suspects
--------------


10. (C) Issues related to witnesses and suspects have been a
problem for both prosecutors and judges. Some witnesses,
preferring not to "stir up the pot" or relive past traumas,
refuse to testify; others are difficult to locate or have
already died. Witnesses who agree to testify are sometimes
burdened with having to testify about related events in
multiple trials against different defendants. This has led
to confusion among the witnesses, judges, prosecutors, and
defense attorneys. Some prosecutors and judges have also
expressed concern that, within ten to fifteen years, many
witnesses and suspects cases will be unavailable due to
incapacitation or death. Moreover, some suspects can not be
located or, if they have dual citizenship, flee to
neighboring countries which can not extradite their citizens,
thereby escaping justice in Bosnia.

State Court: Gaining Experience
--------------


11. (C) The State Court and its judges have also had to deal
with organizational problems of a new institution, but it is
learning from these experiences. In the early stages of the
Srebrenica-related Kravica trial, the Court,s largest case
with 11 defendants, judges required hours to address many
procedural issues, for example. They are now familiar with
the relevant arguments and only need a few minutes privately
to reach many decisions. These working relationships among
the panel judges contribute to a trial,s momentum and
provide future trial judges with written arguments and
analyses, which can help them interpret and analyze related
issues they may encounter.

Focus on Efficiency
--------------


12. (C) The national and international judges at the State
Court are aware of the need to improve efficiency but that
this will take time to achieve. American judge Shireen
Fisher (please protect) said discussions at the recent
judicial college revealed much agreement among the judges
regarding barriers to the court,s further progress.
According to Fisher, a better case management system would
alleviate many of the problems identified by the judicial
college. Fisher noted that some local judges are
apprehensive about implementing aspects of the current case
management system because they are not specifically mentioned
in Bosnia,s Criminal Procedure Code. These judges must be
convinced that the proposed changes are consistent with the
criminal procedure code despite the absence of a specific
reference to them.


13. (C) The Court is also looking at establishing standard
checklists and forms for judges, prosecutors, and defense
counsel in the pre-trial phase to improve efficiency and
uniformity. The need for translation services is also
proving to be a challenge for the Court. All of the Court,s
documents must be translated quickly but accurately in legal
terms. Many of the ICTY documents and evidence that are in
French or English must also be translated into the local
language, especially for defense counsels, which must review
the documents in order to prepare for their cases.

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


14. (C) The war crimes prosecutors and judges, particularly
the international secondees, appear to understand what
measures are needed to improve the efficiency and work of the
new institution. Victims and survivor groups are likely to
oppose some of these proposals, such as prosecutorial
guidelines and case selection criteria, which imply that not
all war crimes complaints will go to trial. Political and
moral support from government leaders, which is usually
lacking, would help offset criticisms and increase the
likelihood of success. Adequate funding will also be
necessary for the continued work and progress of the
Prosecutor,s Office and the State Court, but as we witnessed
after the ICJ verdict, politicians, professed concerns for
"justice" are usually not matched by support for the
state-level institutions charged with delivering it. The

SARAJEVO 00002555 004 OF 004


international secondees have made a valuable contribution to
both the Prosecutor,s Office and the State Court and are
driving many of the changes outlined above.

ENGLISH