It is essential to reconciliation that each of the Peoples of Bosnia—Bosniaks, Croats and Serbs—feel a sense of justice has been equally achieved with regard to holding accountable those who perpetrated war crimes. This is particularly important for the victims and their families. For reconciliation to be realized, the BiH justice institutions must therefore punish war crimes without regard to the ethnic identity of their perpetrators or victims. Indeed, disproportionately prosecuting crimes on behalf of one People increases animosity and division. Unfortunately, during the 10 years that the Court of BiH has been trying war crimes cases, the BiH justice system has seriously discriminated against Serb victims of war crimes, particularly when Bosniak perpetrators are involved in the cases. Indeed, there are indications that this longstanding pattern of bias is getting worse. This discrimination not only prevents reconciliation, it denies Serbs the equality before the law to which they are entitled under Protocol 12 of the European Convention on Human Rights.
The International Crisis Group has criticized the BiH Prosecutor’s Office for its failure to prosecute some of the war’s worst war crimes against Serbs. Even U.S. Deputy Chief of Mission Nicholas M. Hill observed in 2015 that the BiH Chief Prosecutor is “largely believed to be heavily influenced by Bosniak political forces” and that there are “complaints that the prosecutor’s office has too many strong-willed SDA acolytes on its staff.” In 2012, a former international advisor to the BiH Prosecutor’s Office observed that many prosecutors there are highly reluctant to prosecute Bosniaks for crimes against Serbs and that they fail to vigorously pursue those cases. This failure is apparent in the BiH Prosecutor’s Office’s record. Despite the many thousands of Serb civilians who were killed during the war, the BiH Prosecutor’s Office, in its entire history, has achieved final convictions of only 13 Bosniaks for war crimes against Serb civilians.
Past discrimination is clear, and statistics indicate that the office’s discrimination against Serbs is actually getting worse. For example, since the beginning of 2015, the BiH Prosecutor’s Office has been bringing indictments for war crimes committed against Serbs at an even lower rate than it did before 2015.
Last year, a UK judge working on behalf of the Organization for Security and Cooperation in Europe (OSCE) began to conduct an analysis of the war crimes work of the BiH Prosecutor’s Office. But the BiH Prosecutor’s Office refused to give Judge Corner access to its investigations in order for her to conduct the analysis. Such an obvious refusal to allow access to a respected international organization, long involved in funding and advising the Prosecutor’s office can only increase distrust in the Prosecutor’s Office’s impartiality.
The BiH Prosecutor’s Office’s bias against Serb victims of war crimes is evident in innumerable cases. For example:
- The BiH Prosecutor’s Office has failed to prosecute ARBiH 5th Corps Commander Atif Dudaković for a series of grave war crimes, despite much evidence against him and the Prosecutor’s Office’s earlier promises that he would be indicted. Among the many pieces of damning evidence against Dudaković are videos showing Dudaković ordering the execution of prisoners and the burning of Serb villages. A former member of Dudaković’s 5th Corps has been willing to testify about witnessing the organized slaughter of approximately 24 to 28 older Serb civilians in Bosanski Petrovac.
- The BiH Prosecutor’s Office has failed to seek justice for the Army of the Republic of BiH’s (ARBiH) murder of 33 Serb civilians in the village of Čemerno—including women, children, and the elderly. Nine years ago, the RS Ministry of Interior filed with the BiH Prosecutor’s Office an amended criminal report on the Čemerno atrocities with supporting evidence against specific individuals, but the Prosecutor’s Office has failed to bring any indictments. In June 2015, the Balkan Investigative Reporting Network’s newsmagazine TV Justice reported on the massacre at Čemerno and the lack of any prosecutions for it.
- The BiH Prosecutor’s Office has failed to bring anyone to justice for the 1992 massacre of Serb civilians in the village of Bradina. In the attack, 54 Serb civilians were killed, 26 of whom were buried in a pit dug at the porch of the Church of Holy Ascension. Most of the survivors were taken to camps, mainly the one in Čelebić, where at least 22 inmates died.
- The BiH Prosecutor’s Office has failed to prosecute anyone for the St. Nicholas Day Massacre in which the 56 Serb civilians in Jošanica were murdered on 19 December 1992. This is despite RS authorities having identified perpetrators in 2001 and 2005 reports.
- The BiH Justice System is refusing to investigate evidence linking a key SDA member of the BiH House of Representatives to war crimes by the El Mujahid Detachment. Mirsad Kebo, a former Vice President of the Federation of BiH and former member of the Bosniak SDA party, recently submitted to the BiH Prosecutor’s Office 8,000 pages of evidence of war crimes against Serb Kebo’s submission includes evidence that BiH House of Representatives Deputy Speaker and SDA Vice President Šefik Džaferović was complicit in El Mujahid atrocities.
- Some Bosniaks have suggested that last year’s long-delayed indictment of Naser Orić was an attempt by the BiH Prosecutor’s Office to show that it is not biased against Serbs. But the charges against Orić concern just a tiny sampling of the crimes of which he has been credibly accused, and the SDA is still trying to protect Orić from any measure of justice. Less than three days after Orić’s trial finally began, it was reported that Federation Veterans Affairs Minister Salko Bukvarević, an SDA member, had appointed Orić as his advisor despite—or perhaps because of—the fact that Orić is on trial for war crimes.
Reconciliation in BiH requires that equal justice be granted to every ethnic group and that the justice system be seen to treat all war crimes victims equally. Doing so is also a fundamental requirement of the rule of law. The BiH Prosecutor’s Office is not meeting these standards. Reforming this biased system must be given a high priority by the BiH authorities and the international community.