BOSNIA - WHERE WE ARE PROSECUTING THE SREBRENICA

C O N F I D E N T I A L SECTION 01 OF 04 SARAJEVO 001087

SIPDIS
NOFORN

DEPT FOR EUR (DICARLO),EUR/SCE (HOH, FOOKS, STINCHCOMB),
S/WCI (WILIAMSON, LAVINE, VIBUL),EUR/ACE (TEFT, DUNN),INR
(MORIN),INL (MARNEY),THE HAGUE (SCHILDGE, MANNING); NSC
FOR BRAUN; OSD FOR BEIN

E.O. 12958: DECL: 06/26/2015
TAGS: PGOV PREL PINR KCRM KAWC PHUM BK
SUBJECT: BOSNIA - WHERE WE ARE PROSECUTING THE SREBRENICA
GENOCIDE

REF: A. SARAJEVO 234

B. 07 SARAJEVO 1533

C. 07 SARAJEVO 1503

D. 07 SARAJEVO 677

E. 07 SARAJEVO 579

Classified By: MICHAEL J. MURPHY. Reasons 1.4(b) and (d).


1. (C/NF) SUMMARY: As the thirteenth anniversary of the
genocide that took place in and around Srebrenica in July
1995 approaches, we thought it would be useful to review the
progress made and the challenges faced by the State
Prosecutor's Office Special Department for War Crimes (SDWC)
investigating and prosecuting Srebrenica-related war crimes.
SDWC's Srebrenica-related work has been under the political
microscope since the February 2007 International Court of
Justice (ICJ) verdict that elements of the Army of Republika
Srpska committed genocide in and around Srebrenica in July

1995. The OHR-orchestrated departure of former Chief
Prosecutor Marinko Jurcevic and the additional resources
provided by the international community to SDWC have better
positioned SDWC to tackle a burgeoning and challenging
Srebrenica caseload. However, the nature of the work and
other constraints are likely to prevent SDWC from delivering
the kind of quick results expected by Bosniaks and some
within the international community. Even with increased
public outreach to victims groups designed to explain the
challenges associated with war crimes prosecutions,
inevitable disappointment in specific, high-profile cases,
such as the ongoing Kravica case and the investigation into
35 Republika Srpska police officers on the so-called
Srebrenica list, leaves SDWC vulnerable to public criticism
that it is doing too little on the Srebrenica-related cases.
This provides Bosniak politicians with another avenue for
keeping Srebrenica a potential flashpoint for the foreseeable
future. Of course, Srebrenica is only one, albeit the
largest, of the many war crimes that SDWC's 17 prosecutors
are seeking to investigate. Their workload is currently is
estimated at 450 case files, which will take years and a
significant influx of resources to address. END SUMMARY

Srebrenica Cases Get Additional Attention and Resources
-------------- --------------


2. (C) The February 2007 ICJ verdict that genocide was
committed in and around Srebrenica in July 1995 shined the
political spotlight on domestic efforts to bring the
perpetrators of the genocide to justice. In the wake of the
verdict, there was widespread criticism from victims groups,
the Bosniak political leadership and others for what they
perceived as a failure by the State Prosecutor's Office to
make Srebrenica-related cases a priority, particularly the
office's failure to indict anyone from the so-called
Srebrenica list. (Note: The list was developed in 2005 and
contains the names of over 800 individuals who served in or
near Srebrenica in military and non-military capacities
between July 10-19, 1995. End Note) SDWC's critics generally
possessed little understanding of the complexity of the
Srebrenica cases or of the acute resource constraints SDWC
was facing. SDWC, in turn, was inward focused and did little
to educate the public about its work.


3. (C/NF) The effective removal of former Chief Prosecutor
Jurcevic by OHR in February 2008 has given SDWC the latitude
to implement the comprehensive prosecutorial strategy it
developed over the past year. SDWC has also moved quickly to
put in place policies, such as new plea guidelines, that have
improved its work. For example, a recent Srebrenica-related
plea agreement led to the discovery of three new mass grave
sites, which, once excavated, should provide SDWC with
valuable evidence it can use in other cases. With financial
support from international donors, SDWC has also increased
the size of its "Srebrenica Team," which now consists of two
international prosecutors, four international investigators,
and national staff. These additional resources, some of
which have only recently been made available, have enabled
SDWC to open an office in Srebrenica, which is used as a
staging ground for Srebrenica-related investigations, and an
office in Tuzla, which is used to conduct confidential

SARAJEVO 00001087 002 OF 004


interviews with Srebrenica residents and witnesses, including
insider witnesses. (Note: SDWC has not publicized the opening
of its Tuzla office given how it is used. End Note)

Srebrenica Cases: Complex, Time Consuming and Dangerous
-------------- --------------


4. (C/NF) SDWC is committed to developing high-quality
indictments that have a reasonable prospect of resulting in
convictions. The absence of survivors who could serve as
witnesses makes their work especially challenging. (Note:
Fewer than fifteen Bosniaks survived the gencide. End Note)
The Srebrenica Team must rely hevily on confidential
informants and on 17 to 18,00 pages of archival information
including documents seized by SFOR, radio intercepts,
satellite iagery, and information obtained from exhumationsof nine primary and
23 secondary mass grave sites to build
cases. (Note: Prosecutors have told us that the forensic
evidence provided by International Commission for Missing
Persons is critical to their work. End Note) All of this
makes each investigation time consuming and a high-quality
indictment difficult to develop. SDWC's new plea guidelines
have helped, but plea agreements are a relatively new concept
in Bosnia, which victims groups and others have been
reluctant to embrace because they prefer convictions. In
addition, investigators, who must often travel to the Eastern
RS to pursue their investigations, also continue to operate
in a hostile environment. This is particularly true in and
around Zvornik where investigators and their staff,
particularly Bosniaks, have been regularly subject to verbal
and physical intimidation and threats.

Proving and Re-proving Genocide
--------------


5. (C) Even though the International Tribunal for the former
Yugoslavia (ICTY) and the ICJ established that genocide took
place in and around Srebrenica in July 1995, under Bosnian
law, in order to convict a defendant with genocide,
prosecutors must still prove that genocide occurred and that
the defendant knowingly participated in it. Failure to
indict, let alone convict, an individual on genocide charges
does not preclude an indictment and conviction on lesser
charges, such as "crimes against humanity," but the legal
challenges associated with building a genocide case and
securing a conviction creates political challenges for SDWC.
Victims groups and others generally expect convictions for
genocide in Srebrenica-related cases given the ICTY and ICJ
rulings. Over the last year, the Prosecutor's Office has
increased outreach to victims groups, including the Mothers
of Srebrenica, to provide them with a clearer understanding
of the legal and other challenges associated with war crimes
prosecution. On the other hand, the absence of a genocide
charge, or ultimately conviction, in a particular case allows
nationalist Serb politicians and RS veterans groups to call
into question the established fact that genocide took place
in and around Srebrenica.

The Kravica Case
--------------


6. (C/NF ) The Srebrenica Team's most high-profile case
involves its prosecution of 11 defendants accused of killing
1,000 men and boys in the Kravica Farming Warehouse
Cooperative. All 11 were charged with genocide in 2005,
shortly after the State Court began to hear its first war
crimes cases. The trial began in May 2006. A first instance
panel is expected to render a verdict in the case by August.
A well-placed contact in the Prosecutor's Office told us that
it is possible that the Court will not convict all 11
defendants in the case, let alone convict all 11 of genocide.
He predicted that if this occurs, it would likely produce a
public backlash against both the Prosecutor's Office and the
State Court. Though they will not say so publicly, several
international prosecutors believe the case was "over-charged"
given the available evidence by then Chief Prosecutor
Jurcevic because he was under political pressure to secure
convictions for genocide. They are concerned about managing
inevitable disappointment over the outcome of the Kravica

SARAJEVO 00001087 003 OF 004


case if the Court does not hand down a conviction for
genocide.

The Srebrenica List Cases
--------------


7. (C/NF) The Srebrenica Team has also been investigating 35
active duty RS police officers, whose names appear on the
so-called Srebrenica list. RS authorities suspended the 35
(with pay) in July 2007, an action that was coordinated with
OHR and then Chief Prosecutor Jurcevic as part of a broader
effort to relieve some of the political pressure associated
with the fallout from the ICJ verdict. A source in the
Prosecutor's Office told us that they anticipate indicting
one of the 35 officers in the next several weeks, and that
five others are "good candidates" for indictment.
Twenty-five of the case files do not contain enough
information to warrant an indictment, and the Prosecutor's
Office has determined that the remaining case files will not
produce indictments at all. The pace of these investigations
has moved more slowly than victims groups would like,
especially given their view that mere mention on the list is
evidence of guilt. Some within the international community
are also unhappy with the progress thus far. However,
contacts in the Prosecutor's Office maintain that these
critics have overstated the legal value of the information
provided to them and fail to appreciate the time required for
an investigation to produce an indictment that will withstand
legal challenge in a court room.

Other Srebrenica Cases
--------------


8. (C) The Kravica case and Srebrenica list cases are the
most prominent Srebrenica-related cases the State
Prosecutor's Office is handling, but they are not the only
ones. The Prosecutor's Office is also prosecuting four other
Srebrenica-related cases involving seven defendants. These
include:

-- Milorad Trbic, an 11bis case that was transferred from the
International Criminal Tribunal for the former Yugoslavia to
Bosnia, is charged with genocide.
-- Vaso Todorovic is accused of genocide. He was originally
charged in connection with the Kravica case, but his case was
subsequently separated from the larger case.
-- Zoran Tomic is also accused of genocide, and like
Todorovic, he was initially indicted as part of the larger
Kravica case only to have his case separated from it later.
-- Zdravko Bozic, Mladen Blagojevic, Zeljko Zaric, and Zoran
Zivanovic, who are accused of crimes against humanity. Bozic
and Blagojevic were deported from the U.S. in 2006. (Note:
SDWC prosecutors told us many war crimes suspects are living
abroad, including as many as 150 in the U.S. Most, though
not all, are suspected of Srebrenica-related war crimes. If
many of these suspects are deported back to Bosnia, they will
add significantly to SDWC's already heavy workload. End
Note)

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


9. (C) Sixteen months after the ICJ verdict, SDWC can point
to some progress, much of it stemming from Jurcevic's
departure and his replacement by an Acting Chief Prosecutor,
Milorad Barasin, who by all accounts is a vast improvement,
and to an influx of international support. Unfortunately,
some of that progress, such as new prosecution strategies and
plea guidelines, though critical to SDWC's success over the
long-run, are not visible to, let alone well understood by,
victims groups, who understandably tend to measure success
solely in terms of convictions. Convictions will take time,
more time than many are prepared to accept, an there will
inevitably be disappointments. We ae encouraging SDWC to
continue its public outreah to manage expectations among
victims groups. his will not prevent nationalist
politicians, paticularly Bosniaks, from continuing to
exploit the Srebrenica genocide for their narrow political
ends, however. Of course, Srebrenica is only one aspect of

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SDWC's work, which is currently estimated at close to 450
case files. This workload is divided among five other
regional teams and is presently handled by only 17
prosecutors. Success prosecuting Srebrenica-related war
crimes or the myriad other war crimes cases will ultimately
require additional resources matched to a national strategy
for addressing the war crimes legacy, which is why we pushed
so strongly for the Peace Implementation Council to set
adoption of such a strategy as one of its rule of law
benchmarks.
ENGLISH