For over a decade, war crimes prosecutors in Bosnia, Croatia and Serbia have shown little enthusiasm for prosecuting alleged criminals whose case files were sent to them by the UN tribunal in The Hague.
Bosnian Serb politician Milenko Stanic faced an immediate backlash when he was nominated for the position of vice-governor of the Central Bank of Bosnia and Herzegovina in 2016.
The Movement of Mothers of Srebrenica and Zepa – an association of war victims’ families – accused Stanic of being on a list of war crime suspects that the International Criminal Tribunal for the Former Yugoslavia handed over to Bosnia years ago.
A document from the ICTY in The Hague, obtained by BIRN, shows that the UN court’s prosecutors believed there was reason to suspect as early as 1997that Stanic was involved in war crimes.
“[The] evidence is sufficient by international standards to provide reasonable grounds for believing that Milenko Stanic has committed serious violation or violations of international humanitarian law,” says the note from the Hague Tribunal prosecutor’s office.
Amid growing pressure, Stanic was forced to drop out of the race for the Central Bank governor’s job. However, the Bosnian war crimes prosecutor never indicted him.
The Hague Tribunal transferred 25 specific case files and additional dossiers to prosecutors in former Yugoslav countries, but many investigations were not followed up and the trials that have been staged ended with mixed outcomes.
The ICTY’s successor, the Mechanism for International Criminal Tribunals, told BIRN that 3,000 war crimes suspects are estimated to be in Bosnia alone, while there are hundreds of cases still to be processed in Croatia and Serbia.
The Bosnian War Crimes Prosecutor’s Strategy obtained by BIRN shows that the numbers are even higher, with 550 unsolved cases of war crimes naming over 4,500 known suspects and as many cases in which the perpetrators are unknown, in Bosnia and Herzegovina alone.
At the same time, the courts in Bosnia’s two entities and the Brcko District still have not resolved around 200 cases of war crimes.
Beginning in 2005, the ICTY transferred eight so-called ‘Rule 11 bis’ cases – the ones in which the ICTY had confirmed the indictments – six of them to Bosnia, and one each to Croatia and to Serbia.
The ICTY prosecutor’s office also transferred a number of cases in which an investigation had been initiated, but it has not been completed due to the tribunal’s Completion Strategy – a plan that envisioned the completion of tribunal’s work by 2010. These are called ‘Category 2’ cases.
In the period from June 2004 until the end of 2009, the ICTY prosecutor’s office transferred 17 Category 2 cases with 66 suspects to Bosnia, Croatia and Serbia. Thirteen of them were transferred to Bosnia, and two each to Croatia and Serbia.
Trials were completed in all the ‘Rule 11 bis’ cases, except one which was halted due to the incapability of the accused to stand trial, while the Category 2 cases are currently at various stages of the judicial process.
But the local war crimes prosecutors did not raise many more indictments based on evidence gathered by the Tribunal, while most of those prosecuted were low- to mid-ranking figures and received short prison sentences.
Local war crimes prosecutors are not utilising their access to the Hague Tribunal’s extensive archive to bring indictments against high-ranking officials. At the same time, they are ignoring the findings of media and human rights activists that were based on documents obtained from The Hague.
The Mechanism for International Criminal Tribunals says that it is providing “a range of essential support” to national prosecutors, however.
“Prosecutors in Belgrade and Sarajevo have already requested the MICT Office of the High Prosecutor not only to continue but strengthen our support, in particular with capacity-building and expert assistance to complex cases,” the MICT said.
The MICT prosecutor will also continue a project for liaison prosecutors from the countries of the former Yugoslavia, who will continue working on their cases while having access to the Hague database that contains more than nine million pages of documents.
“So far the liaison prosecutors have received more than 1.2 million pages of evidence for use in national war crimes cases,” the MICT said.
Ivan Jovanovic, a Serbian expert on international law and a former OSCE National Legal Advisor on War Crimes, told BIRN that it is hard to estimate how much the materials from unfinished investigations or individual pieces of transferred evidence were used, because no single observer can have full insight into the scope and quality of this evidence.
Jovanovic said that access to quality ICTY evidence is often complicated and faces obstacles, such as the need to get consent from witnesses or to remove protective measures, if the identity of the witness in question was protected.
“Still, considering the information and evidence available on the Tribunal’s website, one can see that [evidence] related to the crimes in Kosovo or [Croatia’s] Operation ‘Storm’… have not been sufficiently used so far to bring new charges before national courts,” Jovanovic told BIRN.
He also said that the more the evidence points to high-ranking perpetrators, the less likely it is that the prosecutors from the region will use the evidence to bring charges.
Due to the differing legal frameworks and jurisprudence in Bosnia, Croatia and Serbia, the evidence from The Hague has also had different levels of admissibility before the three countries’ courts.
Bosnia: Hague’s ‘A-list’ cases gathering dust
Bosnia’s liaison officer for cooperation with the Hague Tribunal, Amir Ahmic, confirmed that there is a list of cases that have been given to Sarajevo prosecutors by the UN court, implicating as many as 850 people in war crimes.
“I can’t see why the prosecution can’t say, we created this many indictments, we dropped that many [investigations]. Why don’t they bring this information into the open, when the public has the right to know?” Ahmic asked.
A Bosnian lawyer who spoke on condition of anonymity told BIRN that this group of cases, referred to as the ‘A-list’, contains information on alleged perpetrators and victims of war crimes, which was supposed to be checked and further corroborated, if possible.
The ‘A-list’ was created between 1996 and 2005, when the Hague Tribunal compiled information on possible war crimes from Bosniak, Croat and Serb sources, then turned it over to the Bosnian prosecutor.
“My opinion is that the Bosnia and Herzegovina prosecution is doing little, which is why we don’t know anything about [those cases],” the lawyer said.
The head of the Bosnian Victims and Witnesses of Genocide association, Murat Tahirovic, said that the prosecution has repeatedly refused to reveal how far those cases were pursued.
“We asked the prosecution a million times what have they done about those cases and we never received an answer,” Tahirovic told BIRN.
He also claimed that the ‘A-list’ contained the names of people who became senior officials in Bosnia, as well as in other countries in the former YUgoslavia.
A source close to the ICTY told BIRN that many cases, including those against high-ranking post-war officials, were probably transferred to Republika Srpska, Bosnia’s Serb-dominated entity, where many investigations were closed, with officials citing a lack of evidence.
According to the source, one of the cases is against Milovan Stankovic, a former Yugoslav People’s Army major and commander of Serb forces in the Bosnian town of Doboj, who served as Defence Minister of Republika Srpska after the war.
BIRN contacted Bosnia and Herzegovina’s war crimes prosecution for a comment, but their reply ignored the questions about the ‘A-list’.
“The prosecution made rulings on all Category 2 cases – those that were forwarded to us from The Hague before the investigations were finished – by the end of 2015,” the prosecution said.
However, these do not include the ‘A-list’ cases. After repeated inquiries, the prosecution said that it had sent all the information it had in its previous reply to BIRN.
Croatia sinks ‘Atlantis’ case against Mercep
One year after handing over the ‘A-list’ to Bosnia, the International Criminal Tribunal for the Former Yugoslavia delivered a case file codenamed ‘Atlantis’ to the Croatian prosecution.
The 2006 file contained evidence that the Hague Tribunal had gathered during its investigation of war crimes committed by Croatian forces against mostly Serb civilians in Croatia’s western Slavonia region, around the town of Pakrac.
The evidence was used to launch one of the most high-profile war crime trials in Croatia – the trial of Tomislav Mercep, a former interior ministry assistant and unofficial commander of a reservist police battalion nicknamed the ‘Mercepovci’ (‘Mercep’s Men’).
Mercep’s role in war crimes in Pakracka Poljana, the town of Kutina and Zagreb trade fair has been a matter of debate since 1997, when the anti-establishment Croatian weekly Feral Tribune interviewed a former unit member, who spoke of the killings of Serb civilians by ’Mercep’s Men’.
Mercep was arrested on suspicion of war crimes and indicted in June 2011 for allegedly ordering the illegal arrests, imprisonment, torture and killings of mostly Serb civilians, resulting in 43 confirmed murders and four persons missing.
His trial started at Zagreb county court in February 2012, and he pleaded not guilty.
However, the state attorney’s office then made a turnaround. It altered the indictment in June 2015, changing the charges against Mercep from ordering war crimes to not doing enough to prevent his subordinates from committing them.
A Zagreb court found Mercep guilty in May 2016, but the change of the indictment meant that he would given a lesser punishment than if he had been convicted of ordering the crimes himself.
In February 2017, the Supreme Court finally set his sentence at seven years in prison.
A declassified CIA report from 1995 also mentioned “numerous atrocities” allegedly committed or directed by Mercep, some of them in the town of Vukovar.
Croatian media reported in 2004 that the Hague Tribunal was also investigating Mercep’s role in crimes committed in Vukovar, but no charges were ever brought.
According to sources close to the ICTY prosecution, the Tribunal’s investigators also helped form the case against the commander of Croatia’s defence forces in Osijek, Branimir Glavas, and his subordinates.
In a decade-long legal process, Glavas, an MP and once an influential politician in the centre-right Croatian Democratic Union, HDZ, is still being prosecuted for the killings of seven Serb civilians in Osijek between October and December 1991.
He was sentenced to eight years in prison in 2010, but Croatia’s Constitutional Court ordered a retrial in 2015. The following year his first-instance verdict was quashed and the trial started over again in October 2017.
The only case in which the ICTY transferred an indictment to the Croatian judiciary was the case against generals Rahim Ademi and Mirko Norac for crimes against Serb civilians and prisoners of war in the Medak Pocket, a series of villages close to the Croatian town of Gospic, in September 1993.
Ademi was acquitted in 2008, while Norac was ultimately sentenced to six years in prison in 2009.
Initially, the Chief of Staff of the Croatian Army, Janko Bobetko, was also indicted in 2002 by the Tribunal for crimes in Medak Pocket. However, Croatia’s centre-left government did not comply with the ICTY’s request to extradite Bobetko to The Hague.
Bobetko died in April 2003 and the ICTY terminated proceedings against him.
Experienced lawyer Anto Nobilo, who has represented war crimes defendants both in The Hague and Croatia, says that Croatian courts are much more lenient towards accused Croats than Serbs.
Nobilo said that the major difference between the ICTY and Croatian courts is witnesses giving ‘partial’ testimonies.
“Generally speaking, Croats will always testify for the benefit of Croats and against Serbs, and vice versa,” Nobilo explained, insisting that such testimonies are “highly unreliable”.
Nobilo claims that Croatian as well as Serbian courts are not establishing commanders’ responsibility, but only sentencing direct perpetrators – meaning that high-ranking officers are not held to account for war crimes committed by their forces.
“In no way will the courts establish commanders’ responsibility according to the standards of the international humanitarian law. Forget it,” he said.
According to Ivan Jovanovic, the potential use of evidence available at the ICTY is also practically limited by the attitudes of Serbian, Croatian and Bosnian entities’ courts.
Those courts maintain that crimes against humanity from the 1990s cannot be processed, since no laws on those crimes existed at the time, which Jovanovic said he believes is a “strong argument”.
The dominant attitude in Serbia is that charges cannot be raised on the grounds of command responsibility for the same reason, Jovanovic said.
Serbia ignores evidence in UN court archives
The ICTY transferred only three cases to Serbia – one in which the indictment was confirmed by the Tribunal, and two ‘Category 2’ cases in which an investigation had been initiated, but not completed.
Former Yugoslav Army officer Vladimir Kovacevic, who was charged with unlawful artillery and mortar shelling of the Dubrovnik’s Old Town in Croatia, was found mentally unfit to stand trial by Serbia in 2007.
In another case, eight former fighters were sentenced in 2018 to a total of 101 years for the massacre of around 200 people at Ovcara, following the fall of Vukovar in eastern Croatia in 1991.
Finally, seven Serb fighters were sentenced between 2009 and 2012 for crimes against Bosniak civilians in Zvornik from May to July 1992.
However, many more indictments could be raised – and against suspects higher in the chain of command – if the Serbian war crimes prosecution utilised its access to the Hague Tribunal’s archive in a better way, watchdog organisations argue.
“The Hague has plenty of evidence about high- and mid-ranking police and army officials’ role in war crimes, which can be seen from its verdicts, but our prosecution is not using this evidence to bring new indictments,” said Nemanja Stjepanovic, a researcher for the Humanitarian Law Centre NGO.
The result of this, Stjepanovic added, is that the Hague Tribunal prosecuted the highest-ranking officials, while Serbia only charged direct perpetrators and everybody in the middle got away with their crimes.
The Mechanism for International Criminal Tribunals says that the evidence gathered by the Hague Tribunal is “essential to prosecutions of war crimes in all three countries today [Serbia, Croatia and Bosnia and Herzegovina]”.
“In 2017 alone, the Office of the Prosecutor handed over 4,600 documents comprising more than 84,000 pages of evidence, as well as 92 audio and visual records,” the MICT said.
It remains unknown how much of this material was handed over to Serbia and how much to other countries. The Serbian war crimes prosecutor’s office told BIRN that this information is confidential, as it represents a part of investigative or pre-investigative procedures.
Since Serbia’s new chief war crimes prosecutor Snezana Stanojkovic assumed office in May 2017, four new indictments have been raised against low-ranking soldiers for crimes in Bosnia and Croatia.
However, documentation pointing to the involvement of higher-ranking officials is usually ignored.
BIRN’s documentary ‘The Unidentified’, which detailed the brutal crimes committed in the Kosovo villages of Cuska, Pavljan, Zahac and Ljubenic in 1999, included interviews with victims, former soldiers and experts, and documentation from the ICTY.
However, the Serbian war crimes prosecution told BIRN in 2017 that it has ended its investigation into retired Yugoslav Army general Dragan Zivanovic, commander of the 125th Motorised Brigade, which was responsible for the area in which the four villages were attacked.
In its own investigation, the Humanitarian Law Centre used documents from the Hague Tribunal to create a dossier and a documentary film alleging that general Ljubisa Dikovic, the current Serbian Armed Forces Chief of Staff, was linked to war crimes in Kosovo.
The Humanitarian Law Centre alleges that approximately 1,400 Albanian civilians were killed in 1999 in an area of Kosovo that was under the control of the Yugoslav Army 37th Brigade, which at the time was under Dikovic’s command.
“We would not have [obtained] those documents if it weren’t for the Hague Tribunal,” Stjepanovic said.
Dikovic faced no charges, however. Instead, he sued the Humanitarian Law Centre over the claims made in its dossier and was awarded compensation by the first-instance court in Belgrade.
An appeal is ongoing.