War Crimes Processing Strategy Faces ‘Bottleneck’

Although the deadlines laid out in the Strategy for the Processing of War Crimes Cases are fast approaching and international observers have expressed concern, the Supervisory Board for the implementation of the strategy is “optimistic” that the goals will be met.

Three years after the Council of Ministers of Bosnia and Herzegovina adopted the Strategy for the Processing of War Crimes Cases, the country is still facing a large number of open investigations for war crimes. The strategy envisaged that the most sensitive war crimes cases will be completed within seven years, and all others cases within 15.

Milorad Novkovic, President of the High Judicial and Prosecutorial Council (HJPC) and Chairman of the Supervisory Board for Implementation of the Strategy, told BIRN Justice Report that he is aware that an “increased involvement of the Prosecutor’s Office of Bosnia and Herzegovina and entity prosecutors’ offices” is needed in war crimes cases, but he says that he is optimistic about meeting the deadlines laid out in the strategy.

According to Novkovic, Bosnia’s state-level prosecutor’s office should accelerate the distribution of cases between judicial institutions at the state and entity level, as this process currently creates a “bottleneck for the prosecution of the war crimes”.

The Prosecutor’s Office of Bosnia and Herzegovina did not want to answer our reporter’s questions regarding the pace of the strategy’s implementation, pointing out that these are matters solely for the Supervisory Board.

Meanwhile, officials in the Prosecutor’s Office of Republika Srpska have expressed skepticism that the strategy will be completed on time, adding that “a redefinition of the deadlines is needed”.

International organisations who monitor the prosecution of war crimes in Bosnia, including the OSCE, the Office of the High Representative and representatives of the EU, say that the efforts to implement the Strategy are “insufficient”.

Three years of problems

One of the main goals of Bosnia’s strategy for processing war crimes was to move as many cases as possible to the entity level. The document called on officials to “ensure the proper distribution of war crimes cases between the state and entity levels, which will enable the efficient processing in the given period of time”.

In an effort to achieve this objective, Bosnia’s state prosecution was expected to establish a centralised record of all pending war crimes cases in the country in the month following the adoption of the strategy.

Supervisory Board Chairman Novkovic says that three years after the adoption of the document, in December 2008, officials know “approximately the exact number of cases and to which prosecutor’s office they are assigned”.

In a statement given to BIRN Justice Report, Novkovic acknowledges the Board is aware “of the problems with the prosecution of war crimes cases”, but points out that there is hope that these problems will be overcome.

“We have a problem with the processing of war crimes cases, especially in terms of the distribution of cases between the judiciary at the state and the entity level. We know that there are a certain number of cases which were filed five or six years ago, and they are not in the prosecution procedure,” Novkovic explained.

“There are circumstances which mean that the prosecution of war crimes is not carried out by dynamic envisaged in the Strategy. Most of them are objective circumstances, but there are instances where a larger engagement of the Prosecutor’s Office of Bosnia and Herzegovina and the entity prosecutors’ offices is needed. 

“The Supervisory Board has concluded that the state prosecutor’s office must engage with a larger number of prosecutors and that the state office is often a bottleneck for the prosecution of war crimes,” said Novkovic.

HJPC officials have said they are “optimistic” about meeting the deadlines laid out in the Strategy, adding that if the problem of the division of cases between the state and entity level is resolved, “an impressive number of war crime cases will be prosecuted by the entity judicial systems”.

On the other hand, Mahmud Svraka, Chief Prosecutor of the Prosecutor’s Office of Republika Srpska, claims that he is “skeptical that the strategy will be finished in the given framework”, adding that a redefinition of terms is needed.

“Definitely, something in the Strategy must be changed. As it is outlined now, it cannot be completed. Objectively, we cannot finish it. Something has to be changed if we want to finish the job. Whether something must be radically changed, this is a matter for the Board which monitors it and the public too, but I think that it must be resolved in a more radical way,” said Svraka.

Thirteen sentences were handed down in war crimes cases held this year in 16 courts in the Federation of Bosnia and Herzegovina, Republika Srpska and Brcko District.

Identifying areas of concern

Representatives of international organisations monitoring the situation have said that implementation is “still below expectations”.

The organisations, who attend the meetings of the Supervisory Board for Strategy Implementation as observers, have also pointed to the distribution of cases as a problematic area.

Andy McGuffie, a spokesman for the European Commission in Sarajevo, told BIRN Justice Report that the European Commission has given “preliminary recommendations with the main areas in which progress needs to be achieved”.

“The European Commission encourages the prosecutors’ offices and the courts at all levels to prosecute war crimes with full professional commitment and encourages all relevant authorities and institutions to carry out the referral of war crimes cases in an expeditious, objective and transparent manner,” said McGuffie.

Monitors of the Office of the High Representative (OHR) largely agree with this standpoint, and consider that the “current rate of implementation is disappointing” and that it is unlikely that the deadline set in the Strategy will be met.

According to the OHR, “this would be an enormous loss. Families and the victims deserve that justice in these cases is reached in timely and correct manner”.

The OHR agrees that one of the main obstacles in the implementation of the Strategy is the lack of mechanisms to determine which cases should be resolved at the state level, and which at the entity level.

“The system of referring cases from the state prosecution to lower prosecutors’ offices is lengthy and not practical. Less complex cases that could be transferred to the lower level are sometimes held at the state level, which jams the system,” the OHR said in a statement.

In a recent press release, Medzida Kreso, the president of the Court of Bosnia and Herzegovina, rejected accusations that the court is responsible for delays in the processing of war crimes.

“The thesis that the president of the state court is the main obstacle in implementing the Strategy for the Processing of War Crimes Cases has been falsely presented to the public for a long time. The President of the HJPC confirmed on many occasions that this is not true by publicly addressing those who are responsible for it.

“The court has no backlog of war crimes. Since the adoption of the Strategy, the Court of Bosnia and Herzegovina calls for its consistent implementation, but our demands have not been met with understanding,” said Kreso.

According to Bosnia’s war crimes processing strategy, the district and cantonal prosecutors’ offices and the Prosecutor’s Office of Brcko District must submit war crimes cases in which the investigation began after 2003 to state prosecutors for their assessment.

Acting on the proposal of the State Prosecution, the Court of Bosnia and Herzegovina then decides to keep the cases that are “very sensitive”, while “the sensitive ones” are referred to to lower courts.

The OHR has said that the referral of cases in recent months has “improved” following the establishment of the long-awaited database of unprocessed cases of war crimes.

“As a result, some progress has been made in the classification to which level – state or entities level – the investigation and prosecution of war crimes will be carried out. As a result, the implementation rate has risen in the past year, but that is not enough to achieve a real change in reducing the backlog of cases,” the OHR said in a statement.

The OSCE Mission in Bosnia, which monitors war crimes trials, has noted that the categorization of all cases would be a “crucial step” in understanding the number and gravity of the remaining war crimes cases in Bosnia and Herzegovina.

“The efficiency of the allocation of cases between state and entity level needs to be increased through the implementation of the criteria set out by the Strategy for assessing which cases are “highly sensitive”, and which are “sensitive”.

“We know that the criteria are already set, but the application of these criteria must be complete and efficient, in accordance with the law,” the OSCE remarked.

According to the Chairman Novkovic, the Supervisory Board for Strategy Implementation thinks that efforts need to be multiplied in addressing the “very sensitive” cases, i.e., those that are the most complex and top-priority.

“We know that there are a number of cases where applications were filed five or six years ago, and are not in the process of prosecution. We also know that there are a number of the most complex and top-priority cases that have not been prosecuted,” adds Novkovic.

The president of the HJPC added that – with a better distribution of cases – material and logistical support to the entity courts and prosecutors’ offices will be required for more successful work on war crimes cases.

“I appeal to the entity government, the Brcko District government and the Council of Ministers of Bosnia and Herzegovina to have more understanding when it comes to financial support of the judiciary, especially at the entity level regarding the logistics for the prosecution of war crimes cases,” said Novkovic.

Concerns about human resources in the Prosecutor’s Office of Bosnia and Herzegovina are shared by the representatives of the OHR and the OSCE Mission in Bosnia and Herzegovina.

“More prosecutors and investigators are needed at all levels, in order to ensure that cases are processed within a reasonable period of time. Since 2010, only four international prosecutors have been working on war crimes cases in the state prosecutor’s office, and they will begin leaving the country on January 1, 2012.

“The Prosecution planned to hire a greater number of investigators. However, while the state is on temporary financing, it will be impossible to hire additional staff,” the OHR noted.

Bosnia’s state government was finally formed in late December, more than one year after the elections, and a budget is expected to be agreed shortly, so all state institutions should soon come off provisional funding.

Denis Džidić is a BIRN – Justice Report journalist. [email protected] Justice Report is BIRN’s online publication.