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UNDP's Publication on Uniform Handling of War Crime Cases

25 August 2008  

A new UNDP report concludes that the current capacities of local courts and prosecutor's offices are insufficient for processing of a significant number of war crimes cases.

"Not one cantonal or regional court or prosecutor's office in Bosnia and Herzegovina has adequate resources to investigate and try a significant number of war crime cases in a fair, efficient and effective manner."

This is just one of the conclusions of the report titled "Solving War Crime Cases in Bosnia and Herzegovina: Report on the capacities of courts and prosecutor's offices to investigate, prosecute and try war crime cases", which was published by the United Nations Development Programme, UNDP, in Bosnia and Herzegovina in August.

To compile the report, UNDP representatives visited ten cantonal and five regional courts and prosecutors' offices, as well as courts and prosecutors in the Brcko District. UNDP representatives interviewed judges, prosecutors, and defence attorneys, whose responses are included in the report.

The judges and prosecutors agree that any plan allowing for two unequal systems to try war crime cases should not be pursued in Bosnia and Herzegovina. In addition, they stated that the state must allocate its resources towards the development of a war crimes processing strategy.

Since July 2007 a working group established by the State Justice Ministry has been involved in the preparation of a war crimes processing strategy. The strategy is supposed to define the roles of all structures in the country which handle war crime cases.

The UNDP report determined that there existed certain limitations for prosecutors, listing among other things: a lack of prosecutors, lack of trained investigators, the inability of prosecutors to secure protection for victims or witnesses, and the inability of law enforcement and prosecutors to locate many suspects.

As stated in the report, most prosecutor's offices "do not have the capacity to analyze files and evidence" provided by the International Criminal Tribunal for the former Yugoslavia, ICTY. When a local prosecutor is aware of certain evidence which can be obtained from the ICTY, he can file a request for a copy of the evidence with the State Prosecution.

What are currently missing are direct access to evidence and the ability to search available data when trying to obtain relevant pieces of information.

Local courts face problems implementing the Law on Protection of Threatened and Vulnerable Witnesses and lack resources for witness support programmes. Besides this, their courtrooms are "too small" for processing of cases involving two or three indictees. 

A large number of judges stated during the course of the interviews that they considered that "a significant increase of the number of war crime cases would probably mean that there would be no sufficient funding to pay their defence attorneys".

The judges noted that a large number of attorneys, whose names are included in the official lists, do not have any experience in war crime cases and are not properly educated in that specific field. In particular, they lack resources for conducting investigations and preparing defences for war crime indictees.

Among other things, the report stresses the importance of defence attorny education. In addition, the report recommends that the cantonal and regional courts should introduce the possibility of video link testimony, after the necessary equipment has been installed.

Certain short and long-term measures have been proposed in order to improve the current situation at local courts and prosecutor's offices. 

As short-term recommendations, the report stated that a database of investigations should be created within the State Investigation and Protection Agency, SIPA, while local police services should improve training in war crime investigations and work with traumatized victims and witnesses.

The long-term recommendations include the preparation of the state strategy. In this, local authorities would express their readiness and determination to investigate and try all war crime cases over a ten-year period.

The UNDP report states that the State Prosecution should be allowed to recruit additional staff and establish regional offices, which would enable it to conduct investigations in a more efficient and coordinated manner.

As far as the Court of Bosnia and Herzegovina is concerned, the report recommends recruitment of additional judges in order to increase the Court's capacities to deal with war crime cases.

The UNDP's report recommends giving permanent mandate to the Criminal Defence Section of the State Court and suggests ensuring additional resources for the expansion of state court services so they would be available to all those who defend war crime indictees at the state, cantonal or regional level.

In addition to the above, the report recommends harmonization of laws to be applied at war crime trials. This would be achieved by establishing a regulation by which each court, be it a state or entity-level one, must apply the law of Bosnia and Herzegovina in war crimes cases. 

At present five criminal codes are applied at war crime trials conducted in Bosnia and Herzegovina. The Criminal Code of Bosnia and Herzegovina, adopted in 2003, which treats crime against humanity, war crime and genocide, is applied at the State Court and its prosecution alone. Lower-level courts apply former Yugoslav laws, which recommend less severe sentences than the Criminal Code of BiH.

Editors: John P. Furnari and Nela Porobic Isakovic

Published by: UNDP BiH

Released in Sarajevo in 2008

Number of pages: 32

The publication is printed in English and Bosnian language.