Just over a year before the expiry of the deadline for the completion of all the country’s war crime cases, statements by prosecutors and reports by international organisations indicate that some cases will remain unsolved after 2023.

The state authorities will probably have to set a new deadline or draw up another strategy document after the failure to keep all the promises made in the current, already revised strategy for processing war crime cases.

The strategy assigned cases to lower-level prosecutor’s offices in Bosnia and Herzegovina, but the processing work is still too slow to meet the deadline set for next year.

Ema Cekic, president of the Association of Families of Missing Persons from Vogosca Municipality, said she is dissatisfied with the implementation of the strategy.

“We, the families, expected that to happen, but unfortunately it never happens and it seems to me that the process is being dragged out so we will not reach the end of the strategy,” she said.

According to the latest report by the European Commission on Bosnia and Herzegovina’s progress towards EU membership, the reduction of the backlog of war crime cases is lagging behind schedule, casting doubt on whether they will be completed by the end of 2023.

Dealing with war crimes is considered to be an important part of the process of coming to terms with the past and improving the rule of law in Bosnia and Herzegovina – one of the most important conditions for progress towards membership of the EU.

But people who spoke to BIRN Bosnia and Herzegovina also said that not all cases will have been completed by the end of 2023 as foreseen under the revised strategy.

Unresolved cases to remain after 2023

Ema Cekic. Photo: BIRN BiH

The High Judicial and Prosecutorial Council, HJPC, said that the current statistical projections for how war crimes cases are progressing in courts and at prosecutor’s offices lead to the conclusion that the deadline for completion of all the cases by the end of 2023 will not be met.

“As regards this, the judiciary in Bosnia and Herzegovina will have unresolved war crime cases, both in courts and at prosecutor’s offices, even past 2023,” the HJPC said.

Following his appointment as chief state prosecutor, Milenko Kajganic said at a press conference that the state prosecution is implementing the revised strategy, but it is not realistic that the end-of-2023 deadline will be met.

The president of the Association of Genocide Victims and Witnesses, Murat Tahirovic, believes that the state prosecution has not done enough to implement the strategy “except for coming out with data about people included in the Hague Tribunal’s ‘A’ list [of the most important cases for prosecution]”.

“As far as I know, we have nothing else – no data about how many people are in the process [of being prosecuted] and about people who have not been prosecuted but are being processed by the prosecution. We have absolutely no data when it comes to the ‘A’ list and we have absolutely no data on what has been done by the prosecution and in what way,” Tahirovic said.

In July this year, the state prosecution published, for the first time, statistical data on war crime cases covering individuals from the Hague Tribunal’s ‘A’ list of suspects, indicating that investigations had been discontinued in more than 250 such cases.

The prosecution announced that between 2004 and 2022, there were 814 cases referred to it by the prosecution of the International Criminal Tribunal for the Former Yugoslavia, ICTY, in which the Hague court considered that there was sufficient evidence for reasonable suspicion that the suspects in these cases committed grave violations of the international humanitarian law.

Lawyer Tatjana Savic, who has long-term experience of handling war crime cases, sees no significant changes in comparison to the prosecution’s previous practices.

“I think it is logical that the number of indictments and cases is decreasing over time. Those who could be charged on the basis of available evidence have already been charged. Time runs its course, so it is harder and harder to collect evidence,” Savic said.

Ivan Matesic, deputy chief prosecutor and manager of the Special War Crimes Section at the Bosnian state prosecution, explained that despite the revised strategy specifically obliging state prosecutors to focus on complex cases in the period from 2021 to 2023, some of these cases still remain with the prosecution.

“You can no longer talk about easy cases at the prosecution. So prosecutors are tasked, more or less, with only difficult and complex cases and have the obligation to complete four such cases during the period of a year,” he said.

According to the revised strategy, prosecutors can be punished if they fail to comply with the strategy over the prosecution of complex cases. Deputy chief prosecutor Matesic said that an analysis of all cases is currently underway in order to determine if there was action taken in non-priority cases.

“If we determine that they acted in certain case which are not considered priorities for this year, I am sure the prosecutors will receive certain sanctions,” he said.

While Matesic believes that the revised strategy goals were set too optimistically and it could not be realistically expected that all cases would be completed by 2023, lawyer Savic thinks that the deadline has no purpose at all because no one is being held responsible for non-compliance with it.

The OSCE Mission to Bosnia and Herzegovina also said that the deadlines set under the original and revised strategies were too ambitious, despite good intentions.

It added that although much has been said about the failings of judicial institutions, particularly the state-level institutions, in terms of processing cases in line with the strategies, it is necessary to first take into account the huge scale of the task.

One should also not ignore the enormous difficulties of establishing a criminal justice system capable of prosecuting perpetrators of crimes in a fair and efficient manner in a post-conflict environment, the OSCE said.

In September 2020, after a delay, the Council of Ministers adopted the revised strategy for processing war crime cases.
The original strategy for processing war crime cases was adopted in December 2008. According to the strategy, the most complex cases at the state level were supposed to be completed within a deadline of seven years, which did not happen, and all the others within a deadline of 15 years. The state prosecution did not meet its obligation to exclusively deal with the most complex cases.

As the deadline for the most complex cases was not met, the revised strategy was prepared, which foresaw that all war crime cases would be completed within five years, by 2023.

“I expect that probably in the coming period, next year, a new strategy will be prepared or the deadline in the existing one will be extended in order to partially fulfil and prosecute the cases that are still at the Prosecution of Bosnia and Herzegovina,” Tahirovic said.

Challenges and problems in implementation

Sjednica Visokog sudskog i tužilačkog vijeća. Foto: BIRN BiH

When it comes to processing the cases, the passage of time and the fact that some witnesses and suspects have died represents an obstacle. But prosecutor Matesic pointed out a particular problem – the unavailability to the Bosnian judicial authorities of suspects or people reported to have committed crimes.

He explained that, out of more than 300 open cases with known perpetrators, more than one third concern people who are unavailable to the judiciary.

Matesic also said that judicial cooperation with the neighbouring countries is a problem.

“We have some kind of cooperation with Serbia. We just had a conference on this topic in Serbia… and we cannot complain about Serbia much. We have certain problems in certain cases. However, cooperation with Croatia is almost non-existent,” he said

He added that from time to time, Croatia acts on requests from Bosnia to question suspects, but there are currently nearly 280 pending requests to Croatia concerning people who have citizenship of both countries.

Without improved regional cooperation, by the end of 2023, the backlog of war crimes cases will be primarily composed of suspects unavailable to the judiciary of Bosnia and Herzegovina, the European Commission said in its report.

Lawyer Savic said she thinks that the delegation of lesser cases to entity-level prosecutor’s offices came late.

“I think that the entity prosecutor’s offices have really been put in an unenviable position because one, two or three years ago, cases and reports that were around 20 years old were referred to them. So they are in a situation where they can do nothing,” she said.

“While still fresh, those cases were kept at the Prosecution of Bosnia and Herzegovina. No one has an explanation as to why so many cases just sat there without anyone doing anything at all about them,” she added.

The OSCE said that a series of a permanent and complex factors continue to hinder the efficient processing of war crime cases.

“Specifically, more than 25 years after the end of the armed conflict, there is still a deeply-rooted practice of politicising the processing of war crime cases,” the OSCE explained.

Supervisory body still needed

Courtroom in Bosnia’s State Court. Photo: BIRN BiH

In its report on Bosnia and Herzegovina for 2022, the European Commission said that the revised strategy for processing war crimes cases is being implemented despite the failure of the Council of Ministers to appoint a new supervisory body to oversee the implementation of the strategy.

“HJPC has proactively overseen the work of the prosecutors and courts in implementing the strategy. A supervisory body remains needed to ensure comprehensive oversight, endorse decisions required to improve the processing of war crimes, validate the implementation of the strategy and secure continuous funding,” the report said.

According to the revised strategy, the supervisory body for its implementation was due to be established within 30 days after its adoption by the Council of Ministers, but that has still not happened.

At the time, the Association of Genocide Victims and Witnesses objected to the appointment of Milorad Kojic, director of the Centre for Research of War, War Crimes and Search for the Missing Persons of Republika Srpska, as a member of the body, calling him a denier of the Srebrenica genocide.

“If representatives from Republika Srpska propose that a person who denies the genocide, who publicly incites a boycott and the disclosure of the names of protected witnesses should become a member of the supervisory body, and force the idea of having that person in the supervisory body for the implementation of the revised strategy, their goal is obviously for the strategy to fail,” Tahirovic said.

Kojic did not respond to BIRN Bosnia and Herzegovina’s request for a comment.

However, he has previously told BIRN Bosnia and Herzegovina: “I don’t know how come that my membership of the supervisory body, as a member of the working group that participated in the preparation of the revised strategy, is now a hindrance.”

On several occasions, the HJPC has concluded that the establishment of a supervisory body is necessary to fully implement the revised strategy, particularly in strategic areas and to deal with individual measures that fall outside the framework of the HJPC’s legal jurisdiction.

The HJPC explained that until the supervisory body is established, it will continue oversee the work of prosecutor’s offices and courts.

“Bearing in mind the scale of the task entrusted to the judiciary, the fact that there is still no supervisory body will probably hinder the efficient processing of war crime cases,” the OSCE Mission said.

Cekic said that families of the remaining wartime missing persons are dissatisfied with the answers that the judiciary has been providing about the slow pace of dealing with cases.

“Thirty years of pain and sadness for families searching for their loved ones is what hurts the most. And what hurts the most is what is not happening –the accused being convicted and held accountable for the war crimes they committed,” Cekic said.

“It seems to me that we are not asking for much. We are asking for truth and justice, which does not exist,” he added.