Exclusive: War Crimes Strategy

29 August 2008  

BIRN – Justice Report has obtained a draft of the Court of Bosnia and Herzegovina’s strategy for processing war crimes.

By Nidzara Ahmetasevic

The long-awaited War Crimes Processing Strategy of the Court of Bosnia and Herzegovina, BiH, deals with the issue of continued active involvement of international judges and prosecutors in the War Crimes Chamber of the Court and its Prosecution. It also addresses the issue of whether to strengthen local courts or expand the responsibilities of the State Court.

Although many in BiH had hoped the strategy would specify the number of investigations and trials that will be undertaken in the near future, it does not provide details on this, though it does suggest how much each of the six Prosecution teams might be able to achieve in the coming period.

In addition, the document alludes to an “oral history” project to be led by international organizations, which will record the testimony of citizens. It also alludes to the possibility that a Center for Post-Conflict Studies might be established, and it mentions the setting up of a uniform war-crimes database that would be available to State Prosecutors.

The Strategy is now being reviewed by a Working Group established by the BiH Justice Ministry, and by representatives of donor countries and international organizations in BiH.

Justice Report has obtained a copy of the Strategy, which has not yet been published.

BASIC PRINCIPLES

Preparation of the Strategy began in 2006, when international agencies involved in the BiH justice sector called on the BiH Prosecutor’s Office to come up with a plan dealing with the form and duration of the overall process of determining truth about war crimes before BiH courts.

Local officials supported this idea, and in 2007 a Working Group was established in the BiH Justice Ministry, comprising representatives of the Ministry, the State Court, the Prosecutor’s Office and other relevant agencies.

The first draft of the Strategy was finalized on May 1, 2008. The new draft, which has now been shared with donors and international officials, was completed on May 28.

The Preamble, largely drafted by the War Crimes Department of the State Prosecutor’s Office under the direction of David Schwendiman, defines the purpose of the Strategy as being “to propose a uniform approach to application of criminal sanctions in as many war crime cases as can be financed by the available financial resources.”

The Preamble stresses that this “is to be done over the shortest possible period of time and with as little financial resources as possible, while ensuring respect for local and international human rights.”

The Preamble notes that the Strategy is based on basic legal principles, not the least of which is the independence of the prosecution and the courts. It also emphasizes the fundamental principle that a defendant enjoys the presumption of innocence until proven guilty.

The Strategy notes that the application throughout the country of the BiH Criminal Code, enacted in 2003, is a basic precondition for successfully trying war crimes.

Currently, war crimes are dealt with under five different laws, each of which treats different crimes and prescribes sometimes disproportionately different sentences.

The Strategy stresses that all who suffered or were bereaved as a result of the conflict have the right to know the whereabouts of family members, “alive or dead”. They also have the right to return to their place of origin and the right to receive as much satisfaction as possible through the courts.

FUNDAMENTAL ISSUES

One fundamental issue concerns whether to try war crimes at different levels or – as has been the case until now – only at the state level. Another issue is the continued presence of international prosecutors and judges beyond 2009.

The Strategy maintains that both issues should have been resolved by now. It notes that the end of the summer of 2008 was set as a final deadline for a decision on the eventual extension of the mandate of international judges and prosecutors working with the State Court and Prosecutor’s Office.

According to a previously established plan, the mandates of all international staff were to expire in late 2009, after which the State Court and Prosecutor’s Office where to be comprised exclusively of local staff. However, Court President Meddzida Kreso recently called on local and international officials to consider extending this mandate.

President of The Hague Tribunal Fausto Pocar and other international officials have expressed support for Kreso’s proposal, but no decision on this issue has yet been taken.

Regarding the level at which war crimes will be tried in the future, the Strategy says that this is a crucial political issue “that has implications on this Strategy and the future of war crimes processing.”

Currently, if an investigation was initiated in or after 2003 the State Court or Prosecutor’s Office has the right to decide at which level it will be tried. After reviewing the evidence and the case itself, the Prosecution determines whether a case is “sensitive” or not. Sensitive cases are tried at the state level; others are referred to cantonal and basic courts in the Entities.

The Strategy complains of “confusion” over the level at which cases are tried and the way such decisions are made.

Having laid out problems and challenges regarding the level at which cases are tried, the Strategy goes on to recommend three possible solutions.

The first solution suggests trying war-crimes cases only at the state level since these cases “concern all Bosnian citizens”. It further proposes that the state should conduct all investigations and prosecutions.

“It should not be left to the Entities, which cannot be effectively controlled, to imperil the national interest in having the processes against indictees managed in an effective manner,” the Strategy says.

The Strategy authors argue that if all investigations and trials were conducted at the state level, problems arising from the application of different laws would be eliminated. In this respect they recommend the creation of a War Crimes Office with the State Prosecution, which would have full “responsibility and authority for all issues related to war crimes.”

This office would ensure that all archives pertaining to war-crimes investigations and proceedings are maintained in one place under its supervision, and it would administer all data related to war crimes. In addition, it would be in charge of retrieving and exhuming remains from mass graves, maintaining relevant records, identifying victims and preserving remains.

A second option envisages maintaining the existing practice. According to the Strategy this would be easiest but “will not produce very satisfactory results”. If this option were to be adopted, funding should be focused on strengthening the Entity courts and Prosecutor’s Offices.

The third option involves trying cases at two different levels and creating a panel at the State Court to decide at which level individual cases should be tried.

When it comes to the mandate of international staff, the Strategy also lists three options and calls for one to be chosen quickly since the transition period is coming to an end.

Although the Strategy calls for urgent action, the Strategy itself will now undergo a process of public discussion that will continue beyond the end-of-summer deadline.

The Strategy was originally scheduled to be completed earlier this year. No reason has been given for the delay in its preparation.

OPERATING PRINCIPLES

The third part of the Strategy identifies 13 different priority areas for further action.

Among other things it says that the Strategy should provide “guidelines for internal policy and operation of the State Prosecutor’s Office,” and it goes on to identify “achievements and outstanding tasks, including guidelines for indictment filing, plea hearings, and the conclusion of agreements, using immunity for investigators.”

The Strategy calls for these guidelines to be made public so that their results can be monitored.

The Strategy notes that the BiH Prosecutor’s Office has been working for some time on creating a database of crimes and their perpetrators and victims, and it calls for this to be supplemented by an initiative supported by the international community under the title “Speaking truth to the devil – managing memory”.

This project, which is designed to preserve memory and offer a platform “to all those who want their wartime stories to be heard,” is linked to a UNDP proposal to establish an International Transitional Justice Center. The Strategy raises the possibility of “creating a center of multidisciplinary academic value, such as a center for post-conflict studies.”

This part of the Strategy touches on the issue of prisons and detention units, and regional cooperation as well as the management of the Hague Tribunal archives, but it does not elaborate on these issues.

Much more space is given to the issue of guilt admission agreements in war-crimes cases. The Strategy advocates considering the use of such agreements “as they would help reduce the number of cases”.

“Cases, in which guilt admission agreements can be concluded, will save money and time,” the Strategy says. It adds that anyone admitting guilt must do so “publicly, in a transparent manner”, as this can bring “much more satisfaction to the victims, who would otherwise be invited to testify in the course of the trial”.

The Strategy also suggests that guilt admission guidelines should be made public.

The Strategy says investigation guidelines are key to the success of the Prosecutor’s Office and that the Prosecutor’s Office should therefore draw up basic standards and directives governing all investigations.

LARGE NUMBER OF CRIMES

The Strategy recommends that the number of crimes and the number of victims should be taken into account when determining the importance of war-crimes allegations and the need to try those who are accused.

“Mass murders and the gravest ethnic cleansing campaigns are undoubtedly the most severe crimes committed during the course of the war. As such, they deserve to be processed,” the Strategy says.

It also reports that the Prosecutor’s Office has been working for more than a year with outside partners to prepare “a catalogue of war crimes and crimes against humanity, including genocide.”

The objective is to make “a preliminary crime selection” on the basis of available data. This will cover five regions under the Prosecution’s jurisdiction. It will not cover Srebrenica, which comes under the responsibility of Team Number Six.

Each team has a list of 10 to 25 crimes which represent the gravest crimes committed in its region of responsibility. The list will be used to determine which crimes are investigated and processed. Each crime involves more than one potential indictee and may result in the filing of several indictments.

Cases involve the military, police, political and/or paramilitary leaders. Priority cases are those in which available evidence suggests that the gravest crimes were committed by individuals or by organizations, and where potential leaders can be identified. As the Strategy notes, “an ideal case is one in which we can correlate executors and ordering parties.”

Next are crimes committed in battle or during legitimate military operations. In such cases potential indictees are lower ranking commanders who gave direct orders, abetted soldiers in committing crimes or failed to investigate or punish perpetrators.

After this are cases involving individuals who committed crimes that are sufficiently serious to merit individual investigation and trial, even if the perpetrators were members of a larger group.

A fourth category includes cases that do not involve murder, but, for example, relate to the ill treatment of prisoners in detention centers if this has been done in a planned and systematic way, resulting in a large number of victims.

“All these cases can result in voluminous, complex and time consuming investigations and trials,” the Strategy notes.

It adds that “it is not possible, or desirable, for the Prosecutor’s Office to stick to large cases alone, although most of its capacities should be deployed in such cases. It will tackle some smaller cases as well, involving direct executors.”

The number of investigations and indictments to be handled by each of the teams is not specified, but the Strategy suggests that some regions, such as the Drina Valley and Bosnian Krajina, will have to deal with more cases than others.

It also notes that the Prosecutor’s Office plans to have opened between 57 and 76 indictments, most of which will involve several perpetrators, by the end of 2008. On average, four indictments are filed per month at present.

This year, until the end of August, the BiH Court has confirmed 21 indictments, some of which involve several persons.