National War Crimes Strategy
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NATIONAL WAR CRIMES STRATEGY December 2008 1 1. INTRODUCTION .................................................................................................................3 1.1 RATIONALE FOR DRAFTING THE STRATEGY ..............................................................4 1.2 OBJECTIVES AND ANTICIPATED RESULTS..................................................................4 2. EFFICIENCY IN THE PROSECUTION OF WAR CRIMES CASES ............................6 2.1 CASE DATA ..........................................................................................................................6 Centralized record ................................................................................................................. 11 2.2 CASE MANAGEMENT ...................................................................................................... 11 Group I cases ......................................................................................................................... 12 Group II cases ....................................................................................................................... 13 Case complexity criteria ........................................................................................................ 14 Harmonization of court practice ............................................................................................ 14 2.3 PROSECUTION CAPACITIES ........................................................................................... 15 3. REGIONAL CO-OPERATION IN WAR CRIMES CASES .......................................... 12 4. SUPPORT AND PROTECTION OF VICTIMS AND WITNESSES ............................. 14 4.1 WITNESS PROTECTION ................................................................................................... 14 4.2 VICTIM AND WITNESS SUPPORT .................................................................................. 16 5. FINANCIAL ASPECTS ...................................................................................................... 19 MID-TERM BUDGETARY REQUIREMENTS 6. STRATEGY IMPLEMENTATION AND SUPERVISION ............................................. 20 2 1. INTRODUCTION In the period from 1992 to 1995, Bosnia and Herzegovina was the site of the large-scale armed conflicts characterized by severe, systematic and mass violations of the international humanitarian law,. The war consequently resulted in the loss of many lives, numerous refugees and displaced persons, a large number of people still missing and other grave violations of the fundamental human rights and freedoms. Preventing impunity and facing the events from the recent past is recognized as one of the basic preconditions for gradual reconciliation and progress of Bosnia and Herzegovina both internally and externally in the process of European integration. The first step in facing the past is the prosecution and sanctioning of persons responsible of crimes against humanity and values protected by international humanitarian law. There is a clear determination of the State of Bosnia and Herzegovina and the international community to take a more efficient and comprehensive approach to the issue of prosecution of war crimes cases.1 In that regard, the Security Council resolutions no. 808 of 22 February 1993 and 827 of 25 May 1993 established the International Criminal Tribunal for former Yugoslavia (ICTY) with the objective of prosecuting the perpetrators of crimes against humanity and war crimes. In light of the Resolution 1503 of 28 August 2003 on the completion of the work of the ICTY, departments for war crimes were established within the Court and the Prosecutor's Office of Bosnia and Herzegovina (BIH) whose task was to continue the work on war crimes cases in accordance with the highest international standards in the areas of criminal law and protection of human rights. In addition, courts and prosecutor's offices in the entities and Brčko District also have jurisdiction for the prosecution of these cases. Given the mass character of the committed violations of the international humanitarian law, numerous persons responsible for these violations remain at large and there are a large number of outstanding cases. The State of Bosnia and Herzegovina is faced with the lack of a comprehensive method in the process of resolving these issues. In an attempt to come up with a systematic approach to the issue of resolving a large number of war crimes cases, which is the basic task of this Strategy, the Ministry of Justice of BiH established in September 2007 the Working Group for developing the National Strategy for war crimes and dealing with the issues related to war crimes . The judicial aspects of the issue of resolving the war crime cases are the primary focus in preparing the Strategy. The Strategy is complementary to the Justice Sector Reform Strategy adopted by the BiH Council of Ministers and will be complementary to the transitional justice strategy 1 The term „war crimes“ as used in the Strategy refers to criminal offenses committed during the war in BiH (1992-1995), prescribed under Chapter XVII of the Criminal Code of Bosnia and Herzegovina „Crimes against humanity and values protected by intrenational law“ committed in relation to the war in BiH. 3 1.1 RATIONALE FOR DRAFTING THE STRATEGY a. Existence of a large number of outstanding war crimes cases that require systematic approach in order to prevent impunity and facilitate prosecution of all or at least most of the perpetrators in a reasonable period of time; b. Lack of centralized, precise and qualitative statistical data on the number and nature of war crimes cases currently being prosecuted, which serve as indicators of the efficiency of prosecution and which are necessary for the purpose of planning investments in the human and material resources. It is extremely important that the Strategy sets up and updates a centralized record of all war crimes cases in the BiH judiciary; c. The lack of harmonization of court practice in war crimes cases prosecuted before the courts in the entities, Brčko District and the Court of BiH. The absence of mechanisms for harmonizing the court practice on the territory of BiH in the area of war crimes, as well as the application of several criminal codes, resulted in different courts adopting opposing views on the same legal matters, both in relation to the substantive law applied to war crimes cases and the pronouncement of criminal sanctions for identical or similar criminal offenses of war crimes. This is a serious infringement on the constitutional principles of legal certainty and equality of citizens before the law; d. Deficiencies in the management of war crimes cases as of 2003 when the new criminal legislation came into effect providing for an exclusive jurisdiction of the Court of BiH and the Prosecutor's Office of BiH over the prosecution of war crimes cases , while a large number of cases remained within jurisdiction of other courts and prosecutor's offices; e. Inconsistent practice of the review, takeover and transfer of war crimes cases between the Court and the Prosecutor's Office and other courts and prosecutor's offices, and the lack of agreed upon criteria for the assessment of sensitivity and complexity of cases; f. Unsatisfactory degree of co-operation on the regional level in the work on war crimes cases; g. Insufficient support and protection of witnesses and victims in war crimes cases before the courts and prosecutor's offices across BiH. 1.2 OBJECTIVES AND ANTICIPATED RESULTS a. Prosecute the most complex and top priority war crimes cases within 7 years and other war crimes cases within 15 years from the time of adoption of the Strategy; b. Centralize and update at the level of the Court and Prosecutor's Office of BiH the record of all war crimes cases pending before the BiH judiciary; c. Ensure a functional mechanism of the management of war crimes cases, that is, their distribution between the state-level judiciary and judiciaries of the 4 entities and of Brčko District that will facilitate efficient prosecution within the set timeframe; d. Prosecute as a priority the most responsible perpetrators before the Court of BiH, with the help of the agreed upon case selection and prioritization criteria; e. Harmonize the court practice in war crimes cases in order to ensure legal certainty and equality of citizens before the law; f. Strengthen the capacity of the judiciary and police in the whole of BiH to work on war crimes cases; g. Establish a more efficient co-operation with countries in the region concerning war crimes cases for the sake of prosperity in the whole region; h. Provide protection, support and same treatment to all victims and witnesses in the proceedings before all courts in BiH; i. Establish an appropriate legal framework for the implementation of measures adopted in the Strategy and the accomplishment of its objectives. This Strategy shall have no bearing on the duty of all courts and prosecutor’s offices in BiH to continue their work on war crimes cases without any delay and in accordance with the existing laws.2 2 Parts of the text in bold serve to mark a special importance of particular issues and objectives that the Strategy seeks to accomplish. 5 2. EFFICIENCY IN THE PROSECUTION OF WAR CRIMES CASES This part deals with the mutually related issues, namely: data on the number of cases and their structure; what is the impact of the number and structure of cases on the use of the existing material and human resources