Identifier
Created
Classification
Origin
09SARAJEVO77
2009-01-16 17:27:00
CONFIDENTIAL
Embassy Sarajevo
Cable title:  

BOSNIA: COUNCIL OF MINISTERS ADOPTS LONG AWAITED

Tags:  PGOV PREL PHUM ICTY KAWC KJUS KCRM BK 
pdf how-to read a cable
VZCZCXRO9269
PP RUEHFL RUEHKW RUEHLA RUEHNP RUEHROV RUEHSR
DE RUEHVJ #0077/01 0161727
ZNY CCCCC ZZH
P 161727Z JAN 09
FM AMEMBASSY SARAJEVO
TO RUEHC/SECSTATE WASHDC PRIORITY 9551
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEAIIA/CIA WASHINGTON DC
RUEAWJA/DEPT OF JUSTICE WASHDC
RHEFDIA/DIA WASHINGTON DC
RUEKJCS/JCS WASHINGTON DC
RHEHNSC/NSC WASHDC
RUFOAOA/USNIC SARAJEVO BK
C O N F I D E N T I A L SECTION 01 OF 03 SARAJEVO 000077 

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: 01/13/2019
TAGS: PGOV PREL PHUM ICTY KAWC KJUS KCRM BK
SUBJECT: BOSNIA: COUNCIL OF MINISTERS ADOPTS LONG AWAITED
NATIONAL WAR CRIMES STRATEGY, NOW COMES THE HARD PART --
IMPLEMENTATION

REF: A) 08 SARAJEVO 1476 B) 08 SARAJEVO 1221 C) 08
SARAJEVO 747 D) 08 SARAJEVO 161 E) 07
SARAJEVO 2555 F) 07 SARAJEVO 2073 G) 07
SARAJEVO 2201

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

C O N F I D E N T I A L SECTION 01 OF 03 SARAJEVO 000077

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: 01/13/2019
TAGS: PGOV PREL PHUM ICTY KAWC KJUS KCRM BK
SUBJECT: BOSNIA: COUNCIL OF MINISTERS ADOPTS LONG AWAITED
NATIONAL WAR CRIMES STRATEGY, NOW COMES THE HARD PART --
IMPLEMENTATION

REF: A) 08 SARAJEVO 1476 B) 08 SARAJEVO 1221 C) 08
SARAJEVO 747 D) 08 SARAJEVO 161 E) 07
SARAJEVO 2555 F) 07 SARAJEVO 2073 G) 07
SARAJEVO 2201

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


1. (C) SUMMARY: The Council of Ministers (CoM) on December
29 adopted a National War Crimes Strategy that establishes
the framework for the prosecution of war crimes committed
during the 1992-1995 war. The initiative marks a milestone
in Bosnia's efforts to prosecute war crimes and promote
national reconciliation. The strategy's adoption was also
the remaining element of the rule of law objective set by the
Peace Implementation Council (PIC) for closure of the Office
of the High Representative (OHR) and transition to the
European Special Representative (EUSR). The strategy
maintains the current division of labor for war crimes
prosecution between state and local level courts, and
foresees the prosecution of the country's most egregious war
crimes within seven years and other war crimes within fifteen
years. Reactions to the strategy's adoption have been
limited and mixed. The Office of the High Representative
(OHR) welcomed the initiative, while some key justice
officials and experts have expressed concerns about the
strategy's flaws. We also believe the strategy is an
important step forward, but recognize that the real test will
come with its implementation. In the face of continued
attacks against the judiciary, primarily by Republika Srpska,
robust international engagement will be needed to ensure that
the strategy is fully implemented. END SUMMARY.

The CoM Adopts the National War Crimes Strategy
-------------- --


2. (U) The Council of Ministers (CoM) on December 29,

without fanfare, adopted a long awaited national war crimes
strategy, potentially ushering in a new era for war crimes
prosecution in Bosnia. The strategy, which took over a year
to produce (first by the State Prosecutor's Office and then
by a working group composed of representatives from the
state, the entities, and Brcko District),provides the
framework for the prosecution of war crimes committed during
the 1992-1995 war. Domestic and international critics had
long criticized the Bosnian government for failing to create
a meaningful, workable strategy to ensure that war crimes
victims and their families receive justice for the crimes
committed against them. The strategy's adoption allows
Bosnia to answer these criticisms. It also allows Bosnia to
fulfill the last element of the rule of law objective the PIC
required to permit the transition of OHR to EUSR.

War Crimes Cases to be Completed by 2024
--------------


3. (U) The strategy, whose scope is limited to war crimes
prosecution, is largely based on a draft crafted by State
Court President Meddzida Kreso, but incorporates elements
drawn from a competing, unfinished draft produced by the
State Prosecutor's Office, which originally had the lead on
the initiative. The strategy emphasizes the need to
prioritize cases and sets deadlines by which cases should be
resolved: the most egregious war crimes cases must be
prosecuted within seven years and all other war crimes cases
within fifteen years. It also maintains the current division
of labor for war crimes cases (which are processed by the
state, the entities, and Brcko District),following lengthy
deliberations about the merits of a decentralized (current
system) versus a centralized system (state-level only
prosecutions to ensure uniformity of laws and practices).

Strategy Introduces New Case Management Mechanisms
-------------- --------------


4. (U) The strategy contains several provisions aimed at
strengthening the manner in which war crimes cases are
managed. It obligates prosecutors' offices and courts around
the country to submit regular reports about war crimes cases
to the State Prosecutor's Office; the State Prosecutor's
Office to establish a centralized database of all war crimes

SARAJEVO 00000077 002 OF 003


cases in country; and the State Court to track all confirmed
indictments, first instance, and second instance verdicts
involving war crimes. The strategy also proposes several
amendments to the BiH CPC that would facilitate war crimes
prosecution, but of course, these would need to be adopted by
parliament, which could take months or longer.

Harmonization of Legislation and Court Practices
-------------- ---


5. (U) The strategy aims to promote harmonization of war
crimes-related legislation and court practices in an effort
to compensate for the absence of an over-arching Supreme
Court that could reconcile conflicting legislation. The
strategy advocates amending existing legislation to permit
regular joint sessions of the State Court's Appellate
Department for War Crimes, entity Supreme Courts, and Brcko
District's Appellate Division regarding war crimes cases.
The results of these exchanges would not be binding, however.
The strategy also explicitly encourages entity courts to
follow the State Court's case law and to apply existing
standards involving case transfers from the ICTY to the State
Court and the State Court's use of evidence collected by the
ICTY. This includes accepting proven facts established in
legally binding ICTY decisions.

Other Key Elements
--------------


6. (U) The strategy's other key elements include calls for:
-- specialized training for judicial personnel on war crimes
prosecution;
-- revising performance evaluation standards to ensure that
judges, prosecutors, and other staff receive credit for the
complexity of war crimes cases;
-- periodic meetings between Bosnian judicial officials andcounterparts in the
region to strengthen judicial coperation
mechanisms and discuss case transfers,extradition of dual
citizens, ICTY archives/legay, and other issues;
-- additional witness protetion training for State
Investigative and Protective Agency (SIPA) personnel;
-- development of entity witness protection programs;
-- creation of a witness and victim support network
nation-wide;
-- an analysis by the HJPC of costs associated with war
crimes prosecution; and,
-- establishment by the CoM of a supervisory body to monitor
the strategy's implementation.

Strategy Omits References to the International Presence
-------------- --------------


7. (C) Notably, the strategy omits references to the
possibility of extending international judges and prosecutors
working at the State Court and the State Prosecutor's Office
past a legislatively)mandated December 2009 deadline. As
reported previously (Ref D),the heads of the state-level
judicial institutions, with our and the European Commission's
backing, have asked the State Minister of Justice to put
forward needed legislative changes to permit a three-year
extension of the prosecutors and a reduced number of judges.
We have sought political support for the project, but are
facing significant resistance, especially by RS-based
politicians. The omission of references to an extended
international presence reflects the lack of political
agreement among politicians on the issue and the working
group's desire to secure the strategy's adoption at the
earliest opportunity (ahead of the March PIC).

Strategy Elicits Limited, Mixed Reactions
--------------


8. (C) There has been limited, mixed comment on the
strategy's adoption to date. OHR issued a press release the
day the strategy was adopted, saying that it welcomed the
initiative, while reminding Bosnian officials that they are
now obliged to fully implement it. Privately, OHR staffers
told us that the strategy was a &fairly good8 document and
was the best that could be achieved politically. However,
State Court President Kreso, in the December 12 edition of

SARAJEVO 00000077 003 OF 003


the weekly magazine Dani and subsequently in the December 17
edition of the RS-based daily Nezavisne Novine, outlined her
reasons for resigning from the working group and for opposing
the strategy (though it was based in large part on her
draft). President Kreso claimed that, if the CoM adopted the
strategy, it would return the country to the conditions of
1996, namely "legal insecurity, arbitrary arrests, and
prosecutions." She referred to alleged unlawful prosecutions
by entity courts of war crimes cases investigated after March
2003 and to inaccurate war crimes-related statistics included
in the strategy. Members of the working groups and other
stakeholders interpret Kreso's comments as politically
motivated and somewhat disingenuous, noting that Kreso's
draft strategy largely served as the basis for the strategy
that was adopted by the CoM.


9. (C) David Schwendiman, the head of the State
Prosecutor's Special Department for War Crimes, and other
judicial experts shared their disappointment with the
strategy privately with us. They said that while the
strategy is a good starting point and had allowed discussions
about complex, politically sensitive issues that had long
been relegated to the back burner to take place, the strategy
had been rushed, and opportunities to take a forward-leaning
approach to war crimes prosecution had been squandered. They
pointed to a list of flaws or omissions in the strategy that
must be addressed, such as the inclusion of unreliable
statistics about war crimes cases -- it is unclear whether
these statistics refer to criminal complaints or cases ready
for prosecution; lack of clarity on whether the supervisory
body called for in the strategy will have the power to
enforce implementation of the strategy; arbitrary deadlines
for the resolution of cases; and, the lack of an evaluation
of the financial costs associated with war crimes
prosecution. These experts also maintained that there had
been insufficient participation by cantonal/district judges
and prosecutors and civil society in the drafting of the
strategy, which they said could lead to problems with these
groups' buy-in.

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


10. (C) The adoption of a national war crimes strategy,
which was driven by the international community's insistence
that it be included in the 5 2 framework, is a welcome
milestone for war crimes prosecution and national
reconciliation in Bosnia. While imperfect, it includes key
provisions that set deadlines for the processing of cases,
create a central database of cases, and promote harmonization
of legislation. The onus is now on the Bosnian government to
fully and expeditiously implement, and when needed, refine
the strategy. The international community will have to
vigilantly monitor this process, given the Bosnian
politicians' penchant for walking back commitments on needed
reforms.
ENGLISH