Viewing cable 07SARAJEVO2555
Title: BOSNIA- CHALLENGES FOR THE STATE COURT

IdentifierCreatedReleasedClassificationOrigin
07SARAJEVO25552007-11-27 16:56:00 2011-08-30 01:44:00 CONFIDENTIAL Embassy Sarajevo
VZCZCXRO6991
RR RUEHDBU RUEHFL RUEHKW RUEHLA RUEHROV RUEHSR
DE RUEHVJ #2555/01 3311656
ZNY CCCCC ZZH
R 271656Z NOV 07
FM AMEMBASSY SARAJEVO
TO RUEHC/SECSTATE WASHDC 7434
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEAWJA/DEPT OF JUSTICE WASHINGTON DC
RUEKJCS/SECDEF WASHDC
RUEAIIA/CIA WASHINGTON DC
RHEFDIA/DIA WASHINGTON DC
RUEKJCS/JCS WASHINGTON DC
C O N F I D E N T I A L SECTION 01 OF 04 SARAJEVO 002555 
 
SIPDIS 
 
SIPDIS 
 
DEPT FOR EUR/SCE (HOH, FOOKS, STINCHCOMB), S/WCI 
(WILLIAMSON, LAVINE), INL (KIMMEL) 
 DOJ PASS TO OPDAT ALEXANDRE 
 
E.O. 12958: DECL: 11/27/2017 
TAGS: PREL PGOV PHUM ICTY KAWC KJUS KCRM BK
SUBJECT: BOSNIA- CHALLENGES FOR THE STATE COURT 
 
Classified By: Political Counselor Michael Murphy for reasons 1.4 (b) a 
nd (d) 
 
¶1. (C) SUMMARY: Over the past four years, the State 
Prosecutor,s Office and State Court have made important 
strides building Bosnia,s capacity to try war crimes cases. 
Preliminary information on likely future war crimes cases 
suggests a demanding workload and challenges for both the 
prosecutor and the court.  The Prosecutor,s Office is 
finishing work on its demographic analysis and case selection 
guidelines, something we have pressed for since the February 
verdict of the International Court of Justice (ICJ).  The 
Court is also exploring ways to improve its case management 
system to improve efficiency.  Resource issues will remain 
important constraints on what each institution can do. 
Availability of witnesses and suspects and translation needs 
will also continue to challenge the work of the prosecution 
and court.  Much of the progress at the State Court has been 
driven by the international prosecutors and judges who work 
there. END SUMMARY 
 
13,000 Cases Overestimates the Workload 
--------------------------------------- 
 
¶2. (C) The exact number of war crimes cases in Bosnia is 
unclear, though there is much speculation among officials and 
the general public.  The inflated and unsupported estimate of 
13,000 is often quoted in the press and by Chief Prosecutor 
Jurcevic.  According to David Schwendiman (please protect), 
the American Deputy Chief Prosecutor for the Special 
Department for War Crimes, the Rules of the Road (RoR) case 
inventory best illustrates the real work load. (Note: RoR 
cases are those reviewed by ICTY under the 1996 Rome 
Agreement between 1996 and 2004, to determine whether a 
sufficient threshold under international humanitarian law has 
been met and warranted prosecution by local authorities. End 
Note) 
 
¶3. (C) There are roughly 4,000 RoR cases, but only 877, 
involving 777 suspects, have any possibility of successful 
prosecution, Schwendiman argues.  Accepting the 877 figure-- 
still a daunting case load-- would allow prosecutors and 
judges to begin planning criteria and resources to handle 
this more realistic number rather than continuing to operate 
based on the assumption that they must ultimately try 13,000 
cases.  However, because the 13,000 figure has acquired a 
quasi-official status, leaders of Bosnia,s judicial 
institutions, let alone Bosnia,s political leaders, are 
afraid to challenge it.  This prevents more thoughtful 
planning and political debate on how best to manage Bosnia,s 
war crimes legacy, Schwendiman maintains. 
 
Real State Court Workload Closer to 450 
--------------------------------------- 
 
¶4. (C) The State Prosecutor,s Office classifies 202 of the 
877 RoR cases "highly sensitive."  These cases will be 
investigated and, if there is an indictment, prosecuted in 
the State Court.  There are also about 200 additional cases 
in a gray area that could neither be classified as "highly 
sensitive" or "sensitive" and were kept by the Prosecutor,s 
Office for further consideration.  The 400 priority RoR 
cases, six Rule 11 bis cases, and 40 "Category 2" files 
transferred from the ICTY means that the State Prosecutor,s 
Office,s current workload is approximately 450 known cases. 
The Prosecutor,s Office will refer the remaining 475 RoR 
cases, which are considered "sensitive," to the cantonal and 
district prosecutors, offices and courts.  RoR cases 
assessed as having little chance of being prosecuted 
successfully (approximately 3,100) would have to wait until 
all 877 cases have been completed. 
 
Clearing Cases: 10-15 Years 
--------------------------- 
 
¶5. (C) Schwendiman believes it is possible for the 
Prosecutor,s Office to process about 450 war crimes cases in 
10-15 years.  According to his calculations, one prosecutor 
can handle three to four cases per year.  This means the 17 
war crimes prosecutors could handle a total of 51-68 cases 
per year for ten years.  Schwendiman conceded that it is 
difficult to predict the average time to process one case but 
estimates it could take nine to 18 months for a case to go 
 
SARAJEVO 00002555  002 OF 004 
 
 
from the investigative stage to a verdict.  Maintaining a 
high-level pace in the Special Department for War Crimes 
would require training and developing new managers for these 
cases, however.  As these managers become more experienced, 
their efficiency should improve. 
 
But More Judges Would Be Required 
--------------------------------- 
 
¶6. (C) The Court,s Section I for War Crimes does not appear 
capable of handling the volume of cases Schwendiman foresees. 
 The Court,s war crimes section has five first-instance 
panels composed of three judges each.  Operating at maximum 
capacity, each panel could try four cases per week (a 
different case each day) -- a total of 20 cases/week for all 
five panels.  If the State Court is expected to keep up with 
the pace of indictments issued by the Prosecutor,s Office, a 
doubling or tripling of State Court judges would be 
necessary.  Hiring more judges may also present problems for 
the State Court, which has had difficulties in finding 
qualified nationals to fill its current vacant judicial 
positions.  Most entity judges see their career paths within 
their entity,s judicial structure and feel there is little 
prestige or incentive in working on politically and 
ethnically sensitive cases at the State Court. 
 
Guidelines and Criteria 
----------------------- 
 
¶7. (C) In the past two years, decisions regarding case 
selection and priorities have been made mostly in response to 
public and political pressures, resulting in the easiest and 
most expedient cases going forward rather than the more 
important ones.  This has also contributed to confusion in 
and out of the State Court about the prosecutor,s criteria 
and motives for case selection.  To counter this impression, 
the international staff in the Special Department for War 
Crimes has spent over nine months developing a demographic 
war crimes database.  The database will sort by municipality 
the types of crimes committed and the availability of 
witnesses and suspects and identify those who were in 
leadership positions within respective armies when the crimes 
were committed. 
 
¶8. (C) In conjunction with this information, the 
Prosecutor,s Office is also developing objective criteria 
for case selection, which could be explained to the public 
and clarify why certain cases have been moved to the head of 
the line for prosecution.  We have been urging the 
Prosecutor,s Office to make both these projects a priority 
since the February ICJ verdict, and they should be completed 
in the next few weeks.  Both will help the Prosecutor,s 
Office make decisions about where to devote scarce resources. 
 The Special Department for War Crimes is also looking at 
other elements to speed up processing of cases:  the 
strategic use of plea bargains, which have not been used to 
date; and selectively granting immunity, which could help 
process cases of lower level officials while developing 
witnesses and evidence against high level suspects and cases. 
 
 
Unforeseen Cases Worrisome 
-------------------------- 
 
¶9. (C) The Prosecutor,s Office is worried about the 
potential impact of new domestic war crimes complaints, which 
the Prosecutor,s Office would have to investigate regardless 
of whether they are tried by the State Court or by entity 
courts.   According to the BiH Criminal Code, the State 
Prosecutor has jurisdiction over new war crimes 
investigations but only the State Court can authorize the 
transfer of a war crimes case to the entities.  As a result, 
the State Prosecutor must investigate and issue an indictment 
before he can file a motion requesting the Court to transfer 
the case-- which the Court may or may not approve.  Neither 
the State Prosecutor nor the State Court can afford to spend 
scarce resources on cases that will ultimately be tried by 
the entities.  This issue may increase tension between the 
Prosecutor,s Office and the State Court.  Without a change 
in the BiH Criminal Code, State Court President Meddzida 
Kreso will not allow the Prosecutor to transfer a case 
without the Court,s approval. 
 
 
SARAJEVO 00002555  003 OF 004 
 
 
Problems with Witnesses and Suspects 
------------------------------------ 
 
¶10. (C) Issues related to witnesses and suspects have been a 
problem for both prosecutors and judges.  Some witnesses, 
preferring not to "stir up the pot" or relive past traumas, 
refuse to testify; others are difficult to locate or have 
already died.  Witnesses who agree to testify are sometimes 
burdened with having to testify about related events in 
multiple trials against different defendants.  This has led 
to confusion among the witnesses, judges, prosecutors, and 
defense attorneys.  Some prosecutors and judges have also 
expressed concern that, within ten to fifteen years, many 
witnesses and suspects cases will be unavailable due to 
incapacitation or death.  Moreover, some suspects can not be 
located or, if they have dual citizenship, flee to 
neighboring countries which can not extradite their citizens, 
thereby escaping justice in Bosnia. 
 
State Court: Gaining Experience 
------------------------------- 
 
¶11. (C) The State Court and its judges have also had to deal 
with organizational problems of a new institution, but it is 
learning from these experiences.  In the early stages of the 
Srebrenica-related Kravica trial, the Court,s largest case 
with 11 defendants, judges required hours to address many 
procedural issues, for example.  They are now familiar with 
the relevant arguments and only need a few minutes privately 
to reach many decisions.  These working relationships among 
the panel judges contribute to a trial,s momentum and 
provide future trial judges with written arguments and 
analyses, which can help them interpret and analyze related 
issues they may encounter. 
 
Focus on Efficiency 
------------------- 
 
¶12. (C) The national and international judges at the State 
Court are aware of the need to improve efficiency but that 
this will take time to achieve.  American judge Shireen 
Fisher (please protect) said discussions at the recent 
judicial college revealed much agreement among the judges 
regarding barriers to the court,s further progress. 
According to Fisher, a better case management system would 
alleviate many of the problems identified by the judicial 
college.  Fisher noted that some local judges are 
apprehensive about implementing aspects of the current case 
management system because they are not specifically mentioned 
in Bosnia,s Criminal Procedure Code.  These judges must be 
convinced that the proposed changes are consistent with the 
criminal procedure code despite the absence of a specific 
reference to them. 
 
¶13. (C) The Court is also looking at establishing standard 
checklists and forms for judges, prosecutors, and defense 
counsel in the pre-trial phase to improve efficiency and 
uniformity.  The need for translation services is also 
proving to be a challenge for the Court.  All of the Court,s 
documents must be translated quickly but accurately in legal 
terms.  Many of the ICTY documents and evidence that are in 
French or English must also be translated into the local 
language, especially for defense counsels, which must review 
the documents in order to prepare for their cases. 
 
Comment 
------- 
 
¶14. (C) The war crimes prosecutors and judges, particularly 
the international secondees, appear to understand what 
measures are needed to improve the efficiency and work of the 
new institution.  Victims and survivor groups are likely to 
oppose some of these proposals, such as prosecutorial 
guidelines and case selection criteria, which imply that not 
all war crimes complaints will go to trial.  Political and 
moral support from government leaders, which is usually 
lacking, would help offset criticisms and increase the 
likelihood of success.  Adequate funding will also be 
necessary for the continued work and progress of the 
Prosecutor,s Office and the State Court, but as we witnessed 
after the ICJ verdict, politicians, professed concerns for 
"justice" are usually not matched by support for the 
state-level institutions charged with delivering it.  The 
 
SARAJEVO 00002555  004 OF 004 
 
 
international secondees have made a valuable contribution to 
both the Prosecutor,s Office and the State Court and are 
driving many of the changes outlined above. 
 
ENGLISH