Draft Strategy for Prosecution of War Crimes Does Not Guarantee More Efficient Prosecution of Perpetrators of War Crimes in Serbia

The Republic of Serbia Ministry of Justice published the
Draft National Strategy for the Prosecution of War Crimes for the period 2016-2020 (Draft Strategy) in November 2015 , in accordance with the Action Plan for Chapter 23, and then opened a public debate, which was closed on December 31st, 2015. The Humanitarian Law Center (HLC) holds that, even though the Draft Strategy does recognize some of the key shortcomings in the current work of the institutions responsible for the prosecution of war crimes and foresees some good solutions for overcoming these shortcomings, it still fails to establish the key measures for the achievement of the primary objective, which is the more efficient prosecution of war crimes; and therefore it significantly dilutes its potential.

The HLC salutes the work of the Working Group for the Drafting of the Strategy, mainly because it has recognized the importance of strengthening the capacities of all stakeholders involved in the prosecution of war crimes and the legal framework, as well as the practices relating to protection and support for witnesses and victims. HLC also commend is the attention paid in the Draft Strategy to the issue of school curricula, as well as the need to introduce lessons about the crimes committed during the 1990’s armed conflicts on the territory of the former Yugoslavia.

However, in many parts of the text, the Draft Strategy is not sufficiently precise and specific, which leaves doors open for possible reinterpretations of the obligations of state bodies and the results expected from them. This means that the Draft Strategy does not envisage project carriers for a number of activities, while the content of those activities is very obscure. For instance, it is stated in the part referring to the Office of the War Crimes Prosecutor (OWCP) that their independence shall be secured “through the provision of adequate capacities”, without designating a responsible project carrier or his/her concrete obligation.

Imprecisions have also been noted in the part of the Draft Strategy relating to the drafting of the OWCP’s Strategy, the adoption of which represents the essence of the endeavours aimed at increasing the efficiency of war crimes proceedings. The Draft Strategy does not contain either concrete or quantifiable guidelines for the production of the OWCP’s Strategy (i.e. criteria for case prioritization, establishing a precise case record, and transfer of cases from prosecution offices of general jurisdiction), which is of key importance bearing in mind the fact that the OWCP is the initiator of criminal proceedings and generates the activities of the other bodies engaged in the prosecution of war crimes. The HLC holds that the OWCP’s Strategy must represent the backbone of the National Strategy for the Prosecution of War Crimes, because the success of the National Strategy, as a paramount strategy for the prosecution of war crimes in Serbia, depends on the quality and quantity of the Prosecution’s activities in the forthcoming period.

Even though the dedication of the Government of Serbia to the prosecution of all war crimes committed during the 1990’s is highlighted throughout the text of the Draft Strategy, it still states that the capacities of the OWCP and other relevant institutions will be limited by the Government’s austerity measures. The point is that one of the key elements of the Draft Strategy is the strengthening of human resources in the OWCP, in order to be able to respond to the large number of cases of war crimes which have not yet been prosecuted. However, the Draft Strategy does not state in a clear manner how many more Deputy Prosecutors for War Crimes shall be engaged; and in this part of the text the Draft Strategy refers to the Action Plan for Chapter 23, a document which is susceptible to changes by the Ministry of Justice. For these reasons, due to the austerity measures and the possible subsequent revisions of the Action Plan, the HLC fears that the strengthening of the OWCP will remain under the influence of political decisions delivered by the Executive branch of the Government.

Just as the Draft Strategy has failed to specify the number of Deputy Prosecutors for War Crimes, it has also failed to specify the increase of the number of judges or the specific number of judges who should act in cases of war crimes in special departments of the Higher Court and the Court of Appeals. If the National Strategy’s commitment to the increase of the number of individuals who are to be accused and prosecuted for war crimes is unquestionable, the failure to make precise plans for the increase and the specific number of employees in the two most important bodies involved in the criminal prosecution of war crimes, leads to uncertainty regarding the success of this Strategy.

The failures noted in the work and operation of the Protection Unit (Unit) have been subject to criticism in the European Commission’s Serbia 2013, 2014 and 2015 Progress Reports and a number of problems have been identified – failures in the protection of insider witnesses, inefficient supervision of the work of the Unit, lack of a formal procedure in which persons in the protection programme can file objections against members of the Unit, and so forth. The Draft Strategy foresees an analysis of the current work of the Unit. However, this working group does not contain all of the state authorities which should have a close cooperation with the Unit (for instance, the OWCP) or independent professionals in the area of witness protection.

The HLC has shared its specific Comments on the Draft Strategy and Recommendations for improving the Draft with the Ministry of Justice as part of the public debate.

In April 2015, the HLC presented its Model Strategy for the Prosecution of War Crimes Committed During and in Relation to Armed Conflicts in Former Yugoslavia for the Period 2015-2025, with the objective to stimulate the responsible institutions to adopt an official National Strategy for the Prosecution of War Crimes and to offer a comprehensive, informative, and objective addendum to the drafting of this Strategy.