It all started in May of last year, after the OSCE Mission to Bosnia and Herzegovina, with the support of the chief prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), asked for an analysis related to how war crimes are being processed.
Judge Joanna Korner from Great Britain was chosen to conduct the analysis. Her experience includes work as a senior prosecutor in the ICTY’s Office of the Prosecutor.
After contacting the Court and Prosecutor’s Office of BiH to acquire the necessary information, problems with chief prosecutor Goran Salihović surfaced. In August of 2015, he stated that the Office could not grant the request for information as it would violate the principles of confidentiality and impartiality, that is, the right to a fair trial. He also stated that it would constitute a violation of the rights of both the witnesses and the suspects.
Despite attempts to change his attitude, Salihović did not concede. In early September 2015, the High Judicial and Prosecutorial Council (VSTV) granted the OSCE Mission access to the Prosecutor’s documents pertaining to war crimes. “In the case one declines to follow the recommendations, the possibility of starting disciplinary proceedings exists,” the memo by VSTV president Milan Tegeltija stated.
Judge Korner met with several prosecutors and judges, and, based on these interactions along with the documents that were provided, she conducted the analysis, which was published by the OSCE in June of this year.
The analysis contains recommendations for processing war crimes, but also criticizes the work of the Prosecutor’s Office of BiH, as well as its chief prosecutor Salihović.
Korner concluded that the quality of indictments is in decline. After talking to judges from the Court of BiH, she learned that it was able to confirm that of the total number of indictments issued only 39% were not returned to the Prosecutor’s Office for corrections. It was also stated that the Court entirely rejected four indictments, one of them for formal reasons, and the remaining three for lack of grounded suspicion that the suspect committed the acts he had been charged with. According to Judge Korner’s report, the Court of BiH has returned 42 indictments for corrections over the course of a year and a half, some of which have been sent back multiple times.
“Prosecutors [waste] time correcting factual descriptions at the stage of the indictment’s confirmation of instead of presenting their views at the main hearing before the Court of BiH,” stated the response sent to Judge Korner by the Prosecutor’s Office of BiH.
Another criticism outlined in the analysis was that the Prosecutor’s Office does not transfer less complex war crimes cases to entity or Brčko District courts despite the fact that there is clearly prescribed criteria that states that ordinary soldiers and police officers fall into the jurisdiction of the District and Cantonal Prosecutors’ Offices, The analysis concluded that such cases are instead tried before the Court of BiH.
The report states: “If one examines the general level of perpetrator indicted relatively few fall into the category of those who were leaders or held command responsibility. The majority appear to be low level direct perpetrators of the crimes, camp guards and members of the military or paramilitary formations.”
Judge Korner recommends ending the practice of indicting suspects as a means to meet the “quota” requirements, for statistical reasons, or as a result of pressure from the media and/or victims’ groups.
“The emphasis should now be firmly placed on quality rather than quantity,” Korner said, stressing that the Prosecutor’s Office of BiH should focus on suspects who held command responsibility, that is, those who either ordered or instigated a crime.
Computer, Telephone, and Transportation
Korner also suggested drafting internal guidelines about the form and content of war crimes indictments and to urge prosecutors and investigators to attend an additional course at the Special Department for War Crimes within the Prosecutor’s Office of BiH at least once a year during the first two years of their employment .
Concerning the indictments of the Prosecutor’s Office, Korner recommends establishing a policy of “consistency in charging suspects”, which means that it is necessary to apply the same legal qualifications to crimes committed during the same events in a particular area, at a particular time, unless there are good evidential reasons why the policy should not apply.
In order to reduce the backlog of cases, it is recommended that the Prosecutor’s Office of BiH and its judges undertake a full review of cases not yet in trial to ascertain whether any may be transferred to entity courts.
In her analysis, Korner additionally dealt with the management of the Prosecutor’s Office and concluded that the chief prosecutor should make the structural changes necessary for more efficient working practices. According to her, it should not be the responsibility of the chief prosecutor to carry out the day-to-day management of the war crimes cases. Such responsibility should be delegated to the deputy chief prosecutor.
The naming of a “chief of prosecutions” who would assist the deputy chief prosecutor with the daily management of the Special Department for War Crimes was also recommended. According to the report, there should be a return to the original concept of smaller teams who work in a particular area of conflict. This can help to avoid the issue of prosecutors working on cases in relative isolation as well as promote the establishment of a consistent approach to evidence and legal interpretation.
It is also necessary to introduce the practice of mentoring new prosecutors. Mentorships should involve instructing new prosecutors on topics such as the creation of an investigation plan, where and how to find evidence, how to use databases, and the criteria for prioritizing cases as well as for closing an investigation, etc.
According to the report, the deputy chief prosecutor or a designated team leader should be responsible for monitoring the work of every new prosecutor.
With regard to investigators, Korner suggests that funds within the budget be allocated to providing each with a laptop and cellphone, and to covering transportation costs associated with their work on the ground.
The final analysis was published by the OSCE Mission to BiH. Head of the Mission, Jonathan Moore, stated that the president of the High Judicial and Prosecutorial Council has promised his support for implementing the recommendations of the analysis.
The spokesperson for the Prosecutor’s Office, Boris Grubešić, said that he views this “alleged” analysis as an attack on the Bosnian judiciary. He also claims that the analysis is essentially “Moore meddling in the Prosecutor’s cases because he is the subject of certain investigations.“
Grubešić stated that the analysis is subjective and that the Prosecutor’s Office has charged 610 individuals with war crimes, of whom 80% were convicted. He also pointed out that the Office enjoys the support of the victims, and that the relevant institutions adopt their reports on activities.
Moore emphasized that Korner is an expert and that this analysis is not meant to spur conflict or feuding.
Judge Korner’s recommendations are just that. There are no requirements that these recommendations be implemented in the processing of war crimes.
In their press release from June 20 2016, the collective of employees for Prosecutor’s Office unanimously rejected the analysis of Judge Korner and OSCE Mission to BiH.