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Exclusive: Judge Kreso’s War Crimes Strategy Revealed

08 September 2008  Following our revelation of parts of the controversial War Crimes Processing Strategy of the Prosecutor's Office, we can now reveal the draft War Crimes Processing Strategy of the President of the Court of Bosnia and Herzegovina.

By Nidzara Ahmetasevic

A copy of the War Crimes Processing Strategy, written by the President of Court of Bosnia and Herzegovina, Judge Meddzida Kreso and which Justice Report has seen, calls for radical reforms in the way war-crimes cases are handled by the country’s courts.


Judge Kreso sets out goals for her draft strategy, and identifies deadlines and key benchmarks for success in the implementation of each aspect of the strategy. She says that once the strategy is agreed on, “relevant ministries need to come up with estimated costs of its implementation”, adding that “a supervisory body to continually monitor the implementation of the strategy” is absolutely necessary.


The document notes that a total of 2,098 war crimes involving 16,152 persons have been reported to various prosecutors' offices in Bosnia and Herzegovina. The largest number of reports, 1,037, had been filed with prosecutors’ offices in the Federation of BiH. The Bosnian Prosecutor’s Office had received 608 reports, and the Republika Srpska, 418. Another 35 reports involving 714 individuals have been forwarded to the Prosecutor’s Office in the District of Brcko.


Money and personnel in short supply:


The draft, among other things, calls for the centralisation and updating of records of war crime cases pending before Bosnian courts, harmonisation of case law, time limits for war crimes trials, building up judicial capacities, and improving both regional cooperation on war crimes and witness protection.


Judge Kreso writes that in order to adopt and implement the strategy, “a tentative indicator of the number of pending cases” needs to be established. She notes that the available figures are incomplete because not all courts and prosecutors’ offices have forwarded all their information about war crimes cases to the State Prosecutor’s Office, although the law requires them to do so.


The draft also notes the “limitations of personnel and material-technical capacities of the judicial system and law enforcement structures” to prosecute war crimes cases, adding: “Most courts do not have adequate courtrooms; prosecutors’ offices do not have adequate premises for parallel interviews and detention.” It is further noted that “prisons are constantly overcrowded and there are some security concerns”, while state and entity funds are limited.


Local prosecutors’ offices are urged to regularly forward information about war crimes cases to the State Prosecutor’s Office; likewise, the Court of Bosnia and Herzegovina should keep “centralized and updated records of all cases”. All courts are asked to inform the State Court about this. “The High Judicial and Prosecutorial Council, HJPC, is required to make an estimate of the time-frame necessary for trying all war crimes cases in BiH… It should also make an estimate of the time needed for trying priority cases,” Kreso writes.



Key problems - inefficiency and inconsistency:


Addressing the key problems, the President of the Court of Bosnia and Herzegovina singles out inefficiency in prosecuting a large number of cases and inconsistent practices in the courts.


She also charges the Prosecutor’s Office with “unburdening its capacities”, by applying internal rules to select priority cases. “Pursuant to this, it transfers less sensitive cases that are in the investigative phase to cantonal and district prosecutors’ offices, although this practice is not envisaged by applicable law”. The document goes on to say that as a result, the State Prosecutor's Office had transferred 675 cases to local prosecutors’ offices.


The problem of inconsistent case law – the application of different laws in different courts – is cited as a flagrant breach of “the principle of legal certainty and equality of citizens before law”. The strategy offers a solution in line with the recommendation of the Constitutional Court, made following the appeal by the defence for Abdulah Maktouf, the first person convicted of war crimes by the Court of Bosnia and Herzegovina. Maktouf’s lawyers objected to the application of the 2003 Bosnian Criminal Code instead of the Yugoslav Criminal Code, which was effective at the time of his crimes. The Court decided that case law in war crimes cases must be urgently harmonised.


As a solution to both problems, the draft strategy suggests that all cases transferred to the local level should be reexamined and given to the Court of Bosnia and Herzegovina “to decide whether to prosecute them or not”, as required by law. Amendments to the law in relation to the process of the transfer of cases are proposed in order to create “a functional mechanism for transfer of a large number of cases”, to unburden the Court and the Prosecutor's Office of Bosnia and Herzegovina. Also proposed is the strengthening of judicial capacities at state and local level, as well as of the law enforcement agencies that conduct investigations.



Better regional cooperation and witness protection:


A major issue in the strategy is regional cooperation, which the judge describes as “one of the challenges in achieving higher efficiency in conducting investigations and prosecuting persons charged with war crimes”.


Judge Kreso said almost every war crimes case had a regional aspect. However, for the time being, no legal framework exists to regulate regional cooperation. Furthermore, important legal obstacles currently thwart investigations, the transfer of documents and extraditions of suspects or accused persons. Legal experts have been vainly trying to solve these issues for years. Some positive steps had been made, but they were “of a limited scope” because no mechanisms have been put in place to solve the root problems.


Turning to witness support and protection, the draft strategy described this as a major shortcoming that needed to be dealt with as a matter of urgency. Describing the importance of effective witness protection “during and after the trial”, the document notes that witness statements are “the most important and most frequently used evidentiary tool”.


It says the Court of Bosnia and Herzegovina offers the best protection measures, but at local level, capacities to enforce these measures remain almost non-existent. This is partly attributed to money shortages. “One of the greatest challenges... at all levels is the lack of sustainable sources of funding in highly complex cases where witness protection is necessary, such as change of identity,” the draft says.


“Because the country is relatively small, the relocation of witnesses within the country has not been shown to be an effective protection measure and may only be used as a temporary measure. Very often there are witnesses who testify in multiple cases... who testify with different measures being applied... which generate negative consequences,” the document says.


Kreso recommends revising relevant laws and by-laws and merging proceedings in cases “where there are factual-legal links” as one solution. “In proceedings before BiH courts, we should in principle avoid summoning witnesses who have testified before the ICTY [the war crimes tribunal in The Hague], if possible, we should find another witness with the same credibility,” she writes.


This is suggested as one measure, alongside a recommendation to improve the exchange of information about the application of protective measures in various courts “in order to prevent the unauthorised disclosure of confidential information about protected witnesses’ identity”.


International judges may stay on:


At the end of her draft, Judge Kreso considers the possibility of retaining international judges and prosecutors, although this issue occupies the top spot in the strategy proposed by the State Prosecutor.


The draft recalls that under the transition plan, all international staff ought to be replaced with local staff by the end of 2009. However, Kreso writes that “the transition process... does not rule out or jeopardise in any way the idea to extend the mandate of a certain number” of international staff. The strategy recalls also an initiative in 2007 to keep international judges in the Appellate Panel, while support has in principle been expressed for keeping foreign nationals in the State Prosecutor's Office after 2009.


Kreso advocates a consistent implementation of the transition plan, which envisages a full transfer of all leading functions from international to local staff. This has already been done in the Court, but not in the Prosecutor's Office. In order to extend the mandate of international staff, Kreso notes the need to amend legislation “to allow foreign nationals to hold judicial and prosecutorial positions after 2009”.


(Prosecution war crimes strategy can bee read at http://www.bim.ba/en/130/10/12731/)

Nidzara Ahmetasevic is BIRN - Justice Report editor. nidzara@birn.eu.com. Justice Report is BIRN online weekly publication.