The BiH Prosecutors’ Office, whose public legitimacy is weighed down by its non-democratic creation, dubious legal status, and lack of democratic accountability, should stop further degrading its legitimacy through disparate treatment of war crimes based on the ethnicity of their victims.
Since its foundation, the BiH Prosecutor’s Office has lacked legitimacy. The BiH Constitution of 1995 allocates prosecutorial authority to the two entities, the Republika Srpska and the Federation, not to the BiH government. The BiH Prosecutor’s Office was created in 2002 through a unilateral—and manifestly illegal—decree handed down by the foreign High Representative, who then went on to hand-select foreign prosecutors.
Moreover, unlike the prosecutors’ offices in the vast majority of European states, the BiH Prosecutor’s Office lacks any form of democratic accountability. Its chief prosecutor, notably, is one of only a few chief prosecutors in Europe whose appointment is entirely in the hands of a non-democratic institution (the BiH High Judicial and Prosecutorial Council).
Lacking constitutional and democratic legitimacy, the BiH Prosecutor’s Office, through its performance, has further eroded its claim to provide justice in a professional, independent and unbiased manner. Evidence clearly shows that the Office has acted with a strong bias against Serb victims.
No one would suggest that the Office should maintain a false ethnic balance of prosecutions. But is reasonable to demand that a given crime against a Serb should be as likely to be prosecuted as a similar crime against a Bosniak. As noted in an earlier edition of the Editors’ Journal, a 2012 analysis of BiH war crimes prosecutions shows a pronounced disparity in this respect. Among the analysis’s findings is that the BiH Prosecutors’ Office has placed a decidedly lower priority on prosecuting crimes against Serbs than crimes against Bosniaks.
Because the number of war crimes cases far outstrips resources to prosecute them, it is crucial that the BiH Prosecutors’ Office prioritize cases fairly. There are approximately 1,300 war crimes cases still to be processed. The Court of BiH processes about 17 war crimes cases a year. At this rate, because of the limited lifespans of witnesses, victims, and accused war criminals, most war crimes cases will never go to court. Each time the Office selects which cases will be prosecuted next, the odds grow slimmer that each remaining case will ever be prosecuted. The Office’s longstanding bias against prosecuting crimes against Serb victims means that most Serb victims will never see justice done.
