Poor Cooperation Leaves Balkan War Crime Suspects at Large
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On the eve of the verdict in 2014 that convicted him of war crimes for ordering an artillery strike on the town of Tuzla that killed 71 people, Novak Djukic, the wartime commander of the Bosnian Serb Army’s Ozren Tactical Group, fled to Serbia.
The Bosnian state court sentenced Djukic to 20 years in prison, but he is still living freely in Serbia, where the authorities have so far not agreed to take over the enforcement of the verdict that convicted the Bosnian Serb commander of ordering the attack in May 1995.
A warrant for Djukic was issued in October 2014, but the Higher Court in Belgrade has postponed – several times – a hearing at which the takeover of responsibility for his imprisonment was due to be discussed.
Djukic’s case is just one of around 40 cases in which the Bosnian authorities are seeking people who are suspected or accused of genocide or war crimes who currently reside in Serbia or Croatia. Among them are former Bosnian Serb Interior Minister Tomislav Kovac and Zlatan Mijo Jelic, a retired general from the Bosnian Croat wartime force, the Croatian Defence Council.
War victims from Bosnia and Herzegovina, as well as the chief prosecutor at the UN war crimes court in The Hague, Serge Brammertz, have repeatedly criticised the continuing delays in Serbia taking over the enforcement of the sentence in the Djukic case.
“It is definitely one of the cases we have been mentioning for the last two years, that it is unacceptable that this judgment is not being executed. It is a judgment which has been rendered by jurisdictions in Bosnia and Herzegovina, respecting all procedural safeguards, and it is the duty, based on international conventions, of Serbia to execute this sentence,” said Brammertz.
‘Leave our men alone’
In 2013, the prosecutor’s offices of Bosnia and Herzegovina, Croatia and Serbia signed protocols enabling the free exchange of war crime cases, investigations and case documents. Despite the fact that several cases have been exchanged and processed, very few against high-ranking suspects have been successfully transferred to neighbouring countries’ jurisdictions.
On top of that, numerous suspects have never been arrested, nor have proceedings been brought against them.
The work of the Serbian judicial authorities on war crime cases has been the subject of criticism for years, both in European Commission progress reports and monitoring conducted by the Belgrade-based Humanitarian Law Centre NGO.
“We have a small number of indictments and the number is getting smaller and smaller each year,” said Marina Kljaic of the Humanitarian Law Centre.
“Besides that, in the past two years we have only dealt with cases transferred from Bosnia and Herzegovina, but those are smaller cases with few perpetrators. High-ranking members of the army and police are not being processed. No big cases are being processed either, but only those covering smaller crimes with one or a few victims. We have never had a single genocide indictment,” Kljaic added.
Serbia does not recognise the Srebrenica massacres carried out by Bosnian Serb forces as genocide, despite the rulings of international courts. The Serbian authorities also remain politically unwilling to prosecute senior Serb officials for wartime crimes, experts believe.
A Belgrade-based expert in transitional justice, Ivan Jovanovic, also noted that no indictments of high-ranking suspects have been filed in Serbia.
“This is because politics has an influence on transitional justice processes, including war crimes trials,” Jovanovic said.
Even in cases in Serbian courts that are portrayed as successful, such as the Strpci massacre trial or the trial for murders of Bosniaks from Srebrenica in the village of Kravica, which are being held in Belgrade, there has been a lot of criticism of the way the proceedings have been conducted.
The change in the classification of the Srebrenica crimes from genocide to a crime against civilians, as well as the constant postponement of hearings by the Belgrade court, have exasperated some observers.
Legal expert and former Croatian President Ivo Josipovic argued that the root cause of such situations was “the philosophy that says that ‘we should leave our men alone’”.
“Criminals always belong to other nationalities and I think that is a universal principle applied by all countries in the region. The ruling structures obviously don’t have the correct attitude to war crimes. So on one hand they are protecting perpetrators, one way or the other, and on the other hand, victims are not getting the satisfaction they should get,” Josipovic said.
“Why is this so? Firstly because there is national sentiment, which, in my opinion, is distorted and wrong, and secondly, some of the people accused of war crimes belong to ruling structures or have a mythologised position in the public arena, so governments do not dare take the necessary legal measures,” he added.
But the deputy county state’s attorney in Zagreb, Jurica Ilic, disagreed with Josipovic, arguing that Croatia’s cooperation with other Balkan countries over was crime cases has been “appropriate”.
The only possible reason for not taking over a criminal prosecution from another country would be “the strict criteria set by Croatian courts”, Ilic insisted.
“We must follow those criteria and, for those reasons, in most cases when a criminal prosecution is taken over, an investigation is initiated. We collect evidence on the basis of the criteria we must meet and only then do we file an indictment,” he explained.
But the acting chief prosecutor at the state prosecution in Sarajevo, Gordana Tadic, insisted that according to the cooperation protocols that the three countries have signed, Bosnia can send a case at any point, and that if it has amassed a “significant quantity of evidence”, it should result in an indictment whatever criteria the Croatian courts use.
‘International court standards should apply’
Veteran Bosnian lawyer and former judge Vasvija Vidovic argues that all judicial institutions in the region must follow international standards and follow the precedents set by the International Criminal Tribunal for the Former Yugoslavia, ICTY in The Hague.
“Therefore, through the application of these standards, we can overcome the disparity between stances and views about certain events and their legal classification,” Vidovic said.
At present, Croatia refuses to accept that it took part in a joint criminal enterprise along with Bosnian Croat leaders during the war in Bosnia and Herzegovina, as the ICTY has found, while Serbia refuses to prosecute people for genocide in Srebrenica, as it does not accept the ICTY’s ruling that the massacres constituted genocide, and instead tries them for crimes against civilians.
The chief Hague prosecutor, Serge Brammertz, said that he was disappointed with the continuing lack of cooperation between Bosnia and Herzegovina and Serbia, but that the cooperation between Bosnia and Herzegovina and Croatia has been even worse.
“There are a number of cases we have transferred years ago to Sarajevo. Some of them, in the meantime, have been transferred to Croatia, because the physical perpetrators are there. We see very little progress. What is in particular disappointing, if not to say unacceptable, is that there is a political conclusion taken by the government several years ago not to cooperate in certain cases, which is, in our opinion, political interference within judicial process,” Brammertz pointed out.
Following the arrest the in Bosnia and Herzegovina in November 2016 of several former officers from the Bosnian Croat wartime force, the Croatian Defence Council, on suspicion that they participated in war crimes in the Orasje area, the Croatian government took a decision not to provide documents that the Sarajevo authorities wanted for the case.
The suspects were all Croatian citizens, and Zagreb’s refusal to hand over the potential evidence put the sustainability of the case into question.
The Croatian government took the decision because, in the descriptions of the crimes sent with the request for the documents, the Bosnian judicial authorities accused the men of “participation in a joint criminal enterprise which involves various members of the armed forces, police, security and intelligence services of the Republic of Croatia”.
This issue is politically unacceptable for the Zagreb authorities as the indictment indirectly says that Croatia’s forces took an active part in the war in Bosnia and Herzegovina, which they deny.
The Croatian government has ordered the country’s Ministry of justice, when reviewing requests from Bosnia, to refuse to act on any requests which “violate state interests” – meaning those in which Croatia is named as a participant in a joint criminal enterprise during the Bosnian conflict.
Jurica Ilic of the County State’s Attorney Office in Zagreb said the government’s reasoning was based on the fact that a ‘joint criminal enterprise’ is not a recognised concept in Croatian law.
“I must say that a joint criminal enterprise as such does not exist in the laws of the Republic of Croatia, but that is not an obstacle to providing assistance. Therefore, as far as I know, so far we have not received any requests from Bosnia and Herzegovina or Serbia for help or documentation specifically pertaining to a joint criminal enterprise, so we have not faced such problems,” Ilic said.
He added that he was unaware of any cases in which the Croatian judiciary failed to act on requests received from Bosnia and Herzegovina or Serbia.
Prosecutor Brammertz said however there have been such situations. “We have experienced that in at least one case in Zagreb,” he said.
He also said that he would like to “see ministers of justice not sit on requests for assistance”.
‘Trials are conducted without defendants’
While Croatia and Serbia mostly refuse to cooperate when they receive requests from Bosnia and Herzegovina, except when the cases are against lower-ranking suspects, Zagreb and Belgrade also have a poor record of cooperation with each other.
Jelena Djokic of the NGO Dokumenta in Zagreb said that Croatian prosecutors usually resort to trials in the defendant’s absence because Serb suspects are no longer in the country and will not attend court hearings.
“Criminal proceedings are conducted in absence of defendants, who, in most cases, reside in Serbia. This means that the referral of criminal prosecutions is almost non-existent,” Djokic said.
“That is a big problem, because trials are conducted in the absence of defendants and when judgments become final and defendants become available to the Croatian judiciary, they are actually authorised to request a restart of the proceedings, which leads to the spending of financial and other resources,” she added.
The Humanitarian Law Centre has noticed that shortcomings in the cooperation between Croatia and Serbia have increased since the ICTY closed at the end of 2017.
“When it comes to Serbia and Croatia, after the closure of the Hague Tribunal, one could simply feel a sort of relief, and a deadlock occurred. As if the issue of processing war crimes was no longer important for them,” Kljaic said.
“Although if we consider the fact that none of the three states – Serbia, Bosnia and Croatia – extradites its own citizens, it becomes clear that the only way to stop impunity for war crimes is exclusively through regional cooperation,” she added.
Experts believe that the key issue obstructing cooperation between Bosnia and Herzegovina, Serbia and Croatia is the lack of political will.
Hague prosecutor Brammertz said that his colleagues in all three countries are doing the best they can, but that politicians’ attitude towards war crimes is holding them back.
“We have a number of politicians in the region glorifying war criminals, convicted war criminals, and giving them a hero’s welcome after having served their sentences. This is definitely not an incentive for investigators and prosecutors to work and for witnesses to come forward,” Brammertz explained.
Kljaic argued that increasing cooperation will be a difficult task under the current circumstances without major support from the international community.
“The only possibility we see is to introduce changes in jurisdiction, to strengthen the role of the Mechanism for International Criminal Tribunals so it exerts influence in order to get more things done in terms of regional cooperation,” she said.
Former Croatian President Josipovic said he believes that it is unlikely that politicians in the region will change their attitude towards prosecuting war crimes that were committing by their own citizens.
“It is possible, but there must be the political will, which is obviously missing,” he said.
“If the general public’s view was different, the politics would probably be different as well. However, what is typical of the general public in all the countries in the region, including Croatia and Serbia and Bosnia and Herzegovina, is that everybody considers their own people to be heroes and only sees the victims on their own side.”
BIRN is holding a two-day conference in Sarajevo from October 3-4 to discuss the issues of regional cooperation raised in this article, entitled ‘After the ICTY: Regional Cooperation, Accountability, Truth and Justice in the Former Yugoslavia’.