We can do it better

Now that we have agreed that the Hague Tribunal is no good, since it both convicts and acquits, tries too long, accepts bad indictments and poor evidence, achieves a disastrous national balance of the convicted, and brings only quarrels and not reconciliation, the time has come for a brighter topic – national war crimes trials. For a long time now, it has not only been us in Serbia who has told the Tribunal to leave our heroes alone, because, if necessary, it will be we who will try them. So, let’s see what these trials look like.

According to the Report on War Crimes Trials during 2014 and 2015 of the Humanitarian Law Center in Serbia, the situation regarding this issue has never been worse since the establishment of the Prosecutor’s Office and Special Department for War Crimes in 2003. For example, there was not a single confirmed indictment in 2015, regardless of the statement by PM Vucic on B92 TV, where he said that national trials for war crimes are a remarkable effort which Serbia is making to deal with the legacy of the past.

War crimes trials in Serbia last too long: the average duration is 12 years before courts of general jurisdiction. This number is somewhat shorter before war crimes councils. At the same time, one of the biggest objections to the Hague Tribunal is the duration of proceedings, although only a few cases have exceeded the average duration of war crimes trials in Serbia. An objection is raised regarding the trial of Vojislav Seselj and the fact that it lasted from 2003. However, there is the Ovcara case in Belgrade (the trial of the immediate organizers and perpetrators of the killing of 200 detained Croats from Vukovar). The indictment in this case was raised in 2003, but the end of the trial is nowhere in sight. By way of comparison, there was a far more complex case in the Hague regarding Vukovar regarding JNA officers Mrksic, Sljivancanin, and Radic, and these proceedings ended eight years after the last of the three indictees had been arrested, despite the double appellate proceedings.

A great number of individuals who had political, military and police functions during the war have been tried before the Hague Tribunal, which is an abstract noun for our national judiciary, despite constant claims that we will try “our people” ourselves. Since the beginning of war crimes trials in Serbia, only the immediate perpetrators have been tried and not their superiors. The exceptions to this are so rare that they are not worth mentioning, and in cases where superiors are indeed tried, they are only those from the first level of command above the perpetrators.

Another proof that we are dealing with a serious failure are the explanations of judgments in which trial chambers express their surprise that there are no high-ranking perpetrators among the defendants. So, in the Lovas case, which charges the members of local civil-military authorities and members of territorial defense from Valjevo with forcing Croatian civilians to walk through a minefield, thus killing 54 people and wounding 12, the presiding judge indicates that “the command of the Second JNA brigade” bore the “biggest responsibility” for the crime in that Croatian village. However, JNA officers are not among the defendants. Similar remarks were made by the judges in the cases of Beli Manastir (killing and torture of Croatian civilians) and Cuska (the trial of the members of the 117th military-territorial detachment, charged with the killing of at least 121 Albanian civilians, expulsion of their compatriots, and setting fire to their houses).

Furthermore, recently indictments are raised more and more often against single individuals for murder or other crimes against a single, or at most several victims. Examples of this practice are the following: Bosanski Petrovac Gaj (one perpetrator, three killed, two wounded), Sanski Most (one perpetrator, five killed), Sanski Most – Kijevo (one perpetrator, one killed), Bihac II (one perpetrator charged with killing five people and complicity in liquidation of 19 more people), Gradiska (one defendant, one killed), Camp Luka (one defendant who is being tried for the torture of a detainee), Bijeljina II (one defendant, one murder, multiple rapes and robberies), and Sremska Mitrovica (one defendant, torture of several detainees). In all the above-mentioned cases except one, the indictments were raised in 2014. When we take into consideration the fact that there have been no confirmed indictments in the last year, it tells us that there is a trend of piling up new cases in order to create the illusion of a rise in the quantity of war crimes trials.

On the one hand, there is the protection of responsible high-ranking perpetrators, and on the other, there is an artificial increase of the number of cases by raising indictments against a single perpetrator. There is also a third trend – insisting on a national balance, which is a sort of response to the alleged failure of the Hague Tribunal to indict more of “theirs” and fewer of “ours”. It is on this issue that the national judiciary has failed the most. Indictments against non-Serbian perpetrators lacked evidence, so the defendants were acquitted in most cases, which is a disservice to, and actually a sign of disrespect for, the Serbian victims and their families.

The Report of the Humanitarian Law Center includes five such cases, which all ended infamously. In the trial for torturing Serbian civilians in Celebic Camp, Samir Honda was acquitted of all charges, on the grounds that the proceedings started “with very unconvincing evidence and without a thorough evaluation of the key witnesses’ credibility.” A second instance verdict acquitted Mark Kasnjeti, who was charged with the kidnapping and expulsion of two Serbs from Kosovo to Serbia. Ilija Jurisic was acquitted for the attack on the JNA column in Tuzla. 11 former members of the Gnjilane group of the KLA were also acquitted, and they had been tried for crimes against Serbian and Roma civilians in Kosovo. If one adds to this the fiasco that the Serbian Prosecution experienced in charging Ejup Ganic and Jovan Divjak (the British and Austrian judiciaries refused to extradite them because of unsubstantiated allegations), one may conclude that the aim of starting proceedings against non-Serbian perpetrators is not to determine the facts or defendants’ degrees of responsibility, or bring justice to victims, but an artificial attempt to create a national balance between victims and defendants.

Although everything which has been written so far may seem to be a criticism of the War Crimes Prosecutor’s Office, actually it is not so. The key problem with war crimes trials is the lack of political will and decisive incentives to the judiciary by the authorities to truly commit to war crimes trials. There is a shortage of personnel and resource capacities at the War Crimes Prosecutor’s Office, and there are no indicators that the legislative and executive authorities will take any actions to change or improve this situation. Assistance and support are in fact being sought from a state whose president said that the Prosecutor should “be careful what he’s digging into,” referring to the crimes against the Kosovo civilians whose bodies were buried in a mass grave in Serbia, which was said after the Rudnica Dossier had been published by the Humanitarian Law Center. At the same time, the Chairman of the Parliamentary Committee for Kosovo and Metohija, Milovan Drecun, asks whether the Prosecutor’s Office is “Serbian or American”.

A National Strategy for war crimes processing has recently been established. Many nice things are written into the strategy, and the commitment of the Serbian government is also mentioned, but at the same time the government’s austerity measures are being used as a threat to restrict the work of these bodies. Besides this, the document has plenty of inaccuracies which allow for different interpretations, which can be an indicator of the attempts to meet the requirements of the European Union in the chapters regulating justice, while in practice attempting to either completely suspend or reduce war crimes trials to a minimum.

More than 20 years have passed since the war in Croatia and BiH, and almost 17 since the conflict in Kosovo. The organizers and perpetrators die, and the witnesses too, and the evidence fades and disappears. The key period for war crimes processing in Serbia will be the next 10 years. All the indicators tell us that we are going to spend these years maintaining an illusion of war crimes trials. At the same time, of course, we will not stop complaining about the work of the Hague Tribunal.

The author is a researcher of the Humanitarian Law Center.

Originally published at: Peščanik.net, on April 20 2016