BOSNIA - STATE COURT MUST RELEASE CONVICTED WAR

C O N F I D E N T I A L SECTION 01 OF 03 SARAJEVO 000102

SIPDIS

EUR/SCE (FOOKS, STINCHCOMB),S/WCI (WILLIAMSON,
VIBUL-JONES),INR (MORIN),EUR/ACE (DUNN),INL (CARROLL);
NSC FOR HELGERSON; OSD FOR BEIN; DOJ FOR OPDAT (ALEXANDRE)

E.O. 12958: DECL: 01/29/2019
TAGS: PGOV PREL PHUM ICTY KAWC KJUS KCRM BK
SUBJECT: BOSNIA - STATE COURT MUST RELEASE CONVICTED WAR
CRIMINALS FROM CUSTODY

REF: A) 08 SARAJEVO 1236 B) SARAJEVO 77 C) SARAJEVO 88

Classified By: Michael J. Murphy For Reasons 1.4 (B) and (D)


1. (SBU) SUMMARY: Just as Bosnia is gaining momentum with
regard to war crimes prosecution, State Court officials have
raised the alarm about the release from custody of convicted
war criminals pending appeals. A provision in the BiH
Criminal Procedure Code (CPC) prescribes that after a first
instance verdict has been rendered, a defendant cannot remain
in custody for more than nine months even if his/her appeal
is pending. Because the processing of the appeals of some
complex war crimes cases is exceeding this time limit, the
State Court is legally bound to release from custody
individuals convicted of the country's most egregious war
crimes. The court has already released two individuals
involved in a case transferred from the International
Tribunal for the Former Yugoslavia (ICTY) to Bosnia. Ten
more individuals involved in two other high-profile cases --
another case transferred from the ICTY and the historic
Kravice case in which a domestic court for the first time
convicted individuals of committing genocide -- are slated to
be released within the next three months. The BiH CPC will
have to be changed before then to ensure that these
individuals remain in custody. END SUMMARY.

War Criminals Being Released From Custody
--------------


2. (U) State Court officials have recently brought to the
attention of judicial officials, the Office of the High
Representative (OHR),and other members of the international
community the problem of convicted war criminals being
released from custody. Article 138(3) of the BiH Criminal
Procedure Code (CPC) stipulates that defendants cannot remain
in custody for more than nine months even if their appeals
are pending. In practice, this provision obligates the State
Court to release from custody individuals convicted of war
and other serious crimes who are potential flight risks. The
HighRep, upon the request of State Court officials, had
previously used the Bonn Powers to extend the custody
timeframe limit from six to nine months. But owing to their
experiences with complex war crimes cases, State Court
officials have concluded that the nine-month custody limit
must be extended yet again.


3. (U) With this in mind, State Court officials asked the
State Ministry of Justice to put forward a proposal to amend
the BiH CPC to the BiH Parliament at the earliest
opportunity. They noted (belatedly) that the State Court had
no choice but to release from custody two individuals in an
"11bis case" (that was transferred from the International
Tribunal for the former Yugoslavia --ICTY) who had been
convicted by a first instance panel of crimes against
humanity, pending the completion of their appeals. The two
men -- Mitar Rasevic and Savo Todovic -- had been accused of
running a concentration camp in Foca where more than 700
Bosniak detainees had been mistreated and/or killed between
1992 and 1994, and had received eight and a half years and
twelve year prison sentences for these crimes, respectively.
Though released from custody, Rasevic and Todovic were
required by the State Court to turn over their Bosnian
passports (but in theory could still use dual passports),
restrict their movements to Foca, and to report twice weekly
to the Foca police station. We have been unable to confirm
whether they are still in Bosnia, however.

Upcoming Releases
--------------


4. (U) The State Court plans to release other convicted war
criminals within the next three months if the BiH CPC is not
amended. They include three individuals in another "11 bis"
case transferred from the ICTY -- Zeljko Mejakic, Momcilo
Gruban, and Dusko Knezevic -- who are slated to be released
on February 28. A first instance panel convicted the three
men of crimes against humanity. Mejakic and Gruban had been
accused of supervising the mistreatment of more than 3000
Bosniak detainees and the murder of more than 100 at the
Omarska prison camp in 1992, while Knezevic had been accused
of mistreating Bosniak detainees at the Omarska and Keraterm

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prison camps during the same time period. The three men
received prison sentences ranging from 11 to 31 years for
their crimes. The State Court also plans to release seven
individuals in the historic Kravica case who had been
convicted of genocide; this was the first war crimes case in
which a court in Bosnia had handed down genocide convictions.
The men received sentences ranging from 38 to 42 years for
killing 1000 Bosniak men and boys in the Kravica Farming
Warehouse Cooperative in July 1995. As noted in Ref A, this
case, in particular, was widely seen both within and outside
of Bosnia as a major milestone in the country's efforts to
tackle war crimes.

Amending the BiH Criminal Procedure Code
--------------


5. (SBU) Upon the urging of the State Court President
Meddzida Kreso, the State Ministry of Justice presented the
custody time limit problem to an inter-governmental
commission tasked with reviewing changes to state-level
criminal and criminal procedure codes. Meeting on January
21, the commission, under considerable pressure from OHR,
decided to keep the original language in the BiH CPC, but to
allow for a six-month extension. The commission also decided
to postpone further action on this issue for roughly two
weeks to give members the opportunity to review proposed
amendments to the CPC called for in the National War Crimes
Strategy (Ref B),and to decide whether they should send the
proposals separately or as a package to State Minister of
Justice Barisa Colak.

Two Options in Play
--------------


6. (C) There are two options in play with regard to
amending the BiH CPC. State Court officials, with the strong
backing of OHR and the other members of the international
community could lobby to secure an amendment to the CPC
before February 28. Success would depend in part on the
ability of the commission tasked with drafting changes to the
BiH CPC to act quickly and on the House of Representatives
and the House of Peoples to convene soon to vote on the
amendment. Parliamentary experts believe that while it is
difficult, Bosnian officials could amend the BiH CPC before
February 28 if they make the issue a priority, but it would
require greater executive and legislative branch initiative
than the Bosniak government and Parliamentary assembly
generally display.


7. (C) The second option -- the use of the Bonn Powers --
has been discussed with OHR at the staff level, but appears
unlikely. Even though HighRep Lajcak has been willing to use
Bonn Powers on matters related to Bosnia's cooperation with
the ICTY, and could argue that an imposition connected to an
extension of custody time limits fits within these
parameters, most likely he would be extremely reluctant to
use the Bonn Powers. The fact that he has been named Slovak
Foreign Minister, and his time as HighRep is limited, further
reduces the odds that he would use them (Ref C). Regardless,
either option -- local action or action by the HighRep --
would require strong international community backing to
succeed before February 28.

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


8. (C) The custody time limit issue further underscores the
kinds of problems we face with regard to war crimes
prosecution in Bosnia and the need for continued robust
international involvement in the justice sector. This is
reflected by the fact that the inter-governmental
commission tasked with making recommendations about changes
to the BiH Criminal Procedure Code decided to propose new
language extending the custody timeframe only because they
were pressed to do so by OHR. While the commission came
around, it is still unclear whether Bosnian officials will
amend the BiH CPC in a timely fashion to prevent the release
from custody of other high-profile war criminals in the
coming months. The option of using the Bonn Powers to impose
changes to the CPC is also for all intents and purposes off
the table given the difficult political climate in which the

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international community is operating and news of Lajcak being
named as the new Slovak Foreign Minister. We will continue
to press for a swift amendment of the BiH Criminal Procedure
Code given the potential damage the release of convicted 11
bis and genocide suspects could do to our broader policy
towards war crimes in Bosnia.
ENGLISH