BOSNIA - HIGHREP USES BONN POWERS TO CLOSE WAR

C O N F I D E N T I A L SECTION 01 OF 02 SARAJEVO 000212 SIPDIS DEPARTMENT FOR EUR(JONES),EUR/SCE(FOOKS/MCGUIRE), S/WCI(WILLIAMSON/VIBUEL-JONES),INR(MORIN); NSC FOR HELGERSON/WILSON; OSD FOR BEIN; DOJ FOR OPDAT(ALEXANDER) E.O. 12958: DECL: 01/01/2017 TAGS: PGOV PREL PINR PHUM ICTY KAWC KJUS KCRM BK SUBJECT: BOSNIA - HIGHREP USES BONN POWERS TO CLOSE WAR CRIMES LEGAL LOOPHOLES REF: A. SARAJEVO 102 ¶B. 07 SARAJEVO 1503 Classified By: Ambassador Charles English. Reasons 1.4(b) and (d). ¶1. (C) SUMMARY: On February 20, High Representative Lajcak used his Bonn Powers to impose amendments to state and Federation legislation, which were designed to close legal loopholes that impacted both governments' ability to effectively manage war crimes case. In the case of the state, the HighRep amended the Criminal Procedure Code (CPC) in order to prevent the release of convicted war criminals during their appeals. In the case of the Federation, the HighRep enacted measures that he had called on the Federation to enact in July 2007, shortly after he had assumed office. There had been multiple failures to act by state and Federation officials on problems that were well know to them. At the instruction of the HighRep, PDHR Gregorian consulted state-level leaders (Serb Presidency member Radmanovic, PM Spiric, and House of Representatives Speaker Belkic) and Federation leaders (President Kreso, PM Brankovic, and the Parliamentary Speaker). Serb leaders expressed regret, but not opposition to the use of the Bonn Powers, while Federation leaders expressed more embarrassment than concern. In the end, the HighRep concluded that he had no choice but to act. END SUMMARY Preventing the Release of War Criminals -------------- ¶2. (C) A provision in the Bosnian CPC prescribed that after a first instance verdict had been rendered, a defendant could not remain in custody for more than nine months even if his/her appeal was pending. The State Court was legally bound to release from custody individuals convicted of the most egregious war crimes because the processing of the appeals of some complex war crimes cases was exceeding this limit (Note: The provision could also have presented problems for other complex and serious criminal cases that might involve lengthy appeals, such as terrorism-related cases. End Note). As we reported in January (Ref A),the court had already had to release two individuals involved in a case transferred from ICTY to Bosnia. If the CPC provision had remained in place three other individuals in another case transferred from ICTY would have been released on February ¶28. ICTY Prosecutor Brammertz had sent a letter to the HighRep expressing serious concern about the loophole. International Community Seeks Legislative Solution -------------- -------------- ¶3. (C) The international community (IC),including the Embassy, had been working intensively over the last several weeks to urge state-level officials, both in the Council of Ministers and the Parliamentary Assembly, to amend the CPC and close the loophole. (Note: The problem was actually identified in June 2008 and raised with both the state Ministry of Justice and the BiH Parliament at that time, but neither body took steps to resolve it. End Note) The IC contributed to discussions to an MoJ-chaired working group on an amendment to the CPC that would extend the custody time limit for convicted individuals from nine to fifteen months pending appeals. The Embassy and others in the international community had hoped that the Parliamentary Assembly would consider the amendment under urgent procedure, but this was blocked by House of Representatives Deputy Speaker Milorad Zivkovic. ¶4. (C) Zivkovic, a Serb, had objected that the amendment applied to other serious crimes, and not simply to war crimes. He insisted that the amendment go through the Council of Ministers (CoM) first. The CoM approved the amendment on February 11, but it inexplicably took seven days for the CoM to send the amendment to the Parliament despite the fact that the CoM and Parliament share the same building. (Note: It required the direct intervention of the Ambassador and PDHR Gregorian on February 10 to persuade CoM Chairman Spiric to put the amendment on the CoM's agenda. End Note) The Serbs in the CoM opposed the amendment for reasons similar to Zivkovic's. Despite the urgency of the issue and the rapidly approaching February 28 deadline, neither the SARAJEVO 00000212 002 OF 002 House of Representatives, nor the House of Peoples had scheduled a session to consider the amendment. Federation Fails to Act on 2007 Request -------------- ¶5. (C) In July 2007, just two weeks into his tenure as High Representative, Lajcak used the Bonn Powers to amend several state-level laws in order to strengthen Bosnia's ability to cooperate with ICTY. At the same time, Lajcak called upon the Republika Srpska (RS),Federation and Brcko District to harmonize their laws with the change he imposed (Ref B). The RS and Brcko did so, but the Federation failed to do so. In fact, it was only in February 2009, 19 months later, that the Federation government actually approved the draft amendments the HighRep called for in July 2007. Nonetheless, the Federation parliament did not seem prepared to act expeditiously on the amendments, and there was little prospect that the abuses identified by the HighRep in 2007 would end soon. Comment: All Other Options Exhausted -------------- ¶6. (C) There have been multiple failures to act at by both the state and Federation, and neither can claim to have been unaware of the problems identified by the international community. The parties in power in both the state and Federation have also had ample opportunity to address them, but failed to do so. After careful consideration and repeated requests and warnings to the state and Federation authorities, the HighRep decided to act and to use his Bonn Powers. Before acting, the HighRep asked PDHR Gregorian to brief key officials on the impending imposition, including the Collegia of the state and Federation House of Representatives, State PM Spiric, Bosnian Serb member of the Tri-Presidency Radmanovic, Federation President Kreso, and Federation PM Brankovic. Serb leaders expressed regret that the HighRep would use his Bonn Powers, but did not oppose their use. Federation officials seemed more embarrassed than upset by the HighRep's action. Since the impositions did not involve the RS, the HighRep did not directly contact RS PM Dodik. ENGLISH