The country’s new five-year national strategy for processing war crimes, which was adopted by the government earlier this month, sets out how prosecutors, judges and other officials intend to move forward in the period from 2021 to 2026.

It covers issues like the efficiency of proceedings, the protection of victims and witnesses, finding the remaining wartime missing persons and cooperation with the United Nations’ International Residual Mechanism for Criminal Tribunals in The Hague and with judiciaries in other ex-Yugoslav countries.

The new strategy accepts that there is a need for greater efficiency and cross-border cooperation, and also recognises the need for implementation of legislation that would criminalise enforced disappearances and give rights to the families of war victims.

However, the strategy neglects to address some specific issues, such as how Serbia has been protecting people who have been indicted or convicted of war crimes in Bosnia and Herzegovina.

It also does not address the issue of Serbia’s refusal to extradite two politicians to The Hague who are accused of contempt of the UN court, even though cooperation with the International Residual Mechanism for Criminal Tribunals is set as a specific goal.

The strategy does however make clear that there are more than 1,700 unsolved cases on file at the War Crimes Prosecutor’s Office, and that only 34 indictments were raised in the previous five-year period from 2016 to 2020 – suggesting that many of the unsolved cases are likely to remain unprosecuted because of the slow rate of progress.

Raising the number of indictments

A Serbian police officer in front of the war crimes court in Belgrade. Photo: EPA/KOCA SULEJMANOVIC.

The strategy describes the current situation as regards war crimes prosecutions as “satisfactory”, but says it is aiming to be on “a high level” by 2026.

According to the data cited in the strategy, in the period from 2016 to 2020, the War Crimes Prosecutor’s Office took over a total of 2,853 cases from other prosecutor’s offices and courts in Serbia.

“After detailed consideration and processing of all the cases that were taken over”, 1,731 of these cases remained on file at the War Crimes Prosecutor’s Office.

When it comes to indictments, from 2016 to 2020, a total of 34 indictments were filed in cases involving 45 suspects. However, 22 of the indictments – two-thirds of them – were actually cases that did not originate at the Serbian prosecution, but were taken over from the judiciary in Bosnia and Herzegovina because the suspects were living in Serbia.

In the same period, there were 18 first-term court verdicts and 23 appeals judgments.

Visnja Sijacic from the Belgrade-based Humanitarian Law Centre, which monitors war crimes prosecutions, argued that because there are so many cases waiting for indictments, clear criteria for prioritising cases should be established. The cases that currently come to court often involve lower-ranking suspects, not commanders.

“The absence of clear criteria for determining priority cases may lead to the continuation of the practice of processing ‘less demanding’ war crimes cases,” Sijacic said.

Support for victims and witnesses

One of the biggest problems in Serbian courts is the absence of compensation for war crime victims in criminal proceedings. Although Serbia’s criminal code allows this possibility, it does not happen in practice.

This means that, for example, rape victims must file a civil lawsuit against perpetrators, beginning a whole new legal process in which they will not have the same rights that they had in the criminal case.

Sijacic said the new strategy for 2021 to 2026 “does not bring any new solutions, but still pays attention to this issue by providing training for public prosecutors and judges, introducing a single form for submitting a compensation claim, and providing assistance in filling it out”.

“These activities have the potential to change the current practice of [courts] not ruling on compensation claims, and the HLC expects this to happen in the coming period,” she added.

Establishing the fate of missing persons

Investigators at a mass grave in Kizevak, Serbia in December 2020. Photo: BIRN/Marko Risovic.

The goal for 2026 is “a reduced number of missing persons and fatalities whose place of burial is unknown”, according to the strategy.

It says that this can be achieved by changing legislation on enforced disappearances and rights of families of missing persons.

However, Sijacic noted that previous strategy for 2016-20 also foresaw that Serbia would fulfil its international obligations when it comes to the criminalisation of enforced disappearances. Serbia long ago promised to harmonise its criminal legislation with the provisions of the International Convention for the Protection of All Persons from Enforced Disappearance.

“This means that the new strategy is only a reminder of the old obligation, which has not been fulfilled for years,” Sijacic said.

Another problem with missing persons is that Serbian state institutions do not reveal any information about their army, police and paramilitary units’ activities during the 1990s wars, and as a consequence, no new information is revealed about the crimes they committed, the number of victims and the locations in which their bodies were buried.

The issue of opening up wartime archives has been talked about during the EU-facilitated negotiations to normalise relations between Serbia and Kosovo, although without any clear outcomes so far.

Sijacic explained that the new Serbian strategy does not have a measure that directly refers to the issue of opening up archives. But in its action plan, there is a measure that speaks about employees of the War Crimes Prosecutor’s Office, the Serbian Defence Ministry, the country’s two security agencies and others going on training courses to help them implement a new Law on Missing Persons.

“Since we do not know at this time what will be defined by the Law on Missing Persons, we can only hope that this law will finally touch on the issue of ‘opening up the archives’, ie. consulting the relevant archives, which may contribute to locating burial sites or otherwise contribute to clarifying the fate of people who are still being searched for,” Sijacic said.

Work on the new Law on Missing Persons has started and, according to representatives of the working group developing the draft legislation, it could come to parliament by the end of this year. The draft legislation has not been made public yet.

Disputes with the Hague court

The strategy says that cooperation with the UN’s International Residual Mechanism for Criminal Tribunals in The Hague “results in the facilitation of evidence for war crimes proceedings and the improved knowledge and skills of judges and prosecutors in the Republic of Serbia”.

Sijacic said that there is room for further improvements in cooperation with the UN court through the measures envisaged in the strategy, but “the refusal to extradite people accused of contempt of court threatens to remain a stumbling block in this cooperation”.

Two members of the nationalist Serbian Radical Party, Vjerica Radeta and Petar Jojic, are wanted on charges of contempt of court for witness-tampering during the trial of their leader Vojislav Seselj in The Hague, but Serbia refuses to extradite them.

The president of the International Residual Mechanism for Criminal Tribunals, Carmel Agius, told the UN General Assembly on Wednesday that “unfortunately, progress in the contempt case against Petar Jojic and Vjerica Radeta has not been as promising as in the other cases before the Mechanism”.

He noted that in May, he reported Serbia to the UN Security Council for “failing to comply with its international obligations to arrest and surrender the accused and transfer them to the Mechanism”.

“This was the third time that Serbia’s non-compliance has been reported to the Council, and follows over six years of inaction on Serbia’s part,” Agius said.

Cooperation problems with neighbours

Serbian war crimes prosecutor Snezana Stanojkovic (left), former chief prosecutor of Bosnia and Herzegovina Gordana Tadic and Serbian state public prosecutor Zagorka Dolovac in Belgrade, October 2021. Photo: tuzilastvorz.org.rs.

When it comes to cooperation with other ex-Yugoslav states and countries elsewhere in the world, Sijacic argued that there are “key problems” in the new strategy.

She said that the strategy “identifies certain areas in which additional effort is needed… however, the impression is that the analysis of the current situation does not take into account real situations in the courtroom”.

This is a reference to problems in cases like that of Bosnian Serb general Novak Djukic, whose case Serbia took over from Bosnia. Since the proceedings in the Djukic case started in Serbia, they have dragged on for several years and the Belgrade court has still not yet confirmed his conviction.

Additional problems have occurred in cases in which Serbia has given citizenship to Bosnian Serbs who have been indicted in Bosnia and Herzegovina for war crimes.

Sijacic argued that the strategy “misses the opportunity to determine what lessons have been learned from the previous five years, and what challenges and problems arose”.

“If it had, the assumption is that the strategy would have addressed the problem of crossing the border to avoid criminal liability, in order to build good practices aimed at punishing war crimes,” she said.