Sandra Orlović: Prosecution of war crimes in Serbia will sink even lower
Beograd – At the moment when the rule of law in Serbia rises above political, ideological and other interests, the statements made by politicians about the honour of officers who participated in wars stained by the executions of women, children and the elderly, will constitute a heavy embarrassment – and primarily for the makers of those statements.
Until that time, such statements represent merely a symptom of a society that has not even begun to deal with the crimes of the nineteen-nineties, especially when it comes to Kosovo. Instead of dealing with these crimes, the politicians continue to rely on the political capital gained by means of an empty quasi-patriotic rhetoric. If the Chief of General Staff, Ljubiša Diković, the man whose army, after torching and looting the property of people who were citizens of Yugoslavia at that time, left behind it the bodies of civilians, and hid the bodies of victims from their families, is deemed by the Serbian President to be an honourable officer, then it is not even a bit surprising that this same President publicly threatens the War Crimes Prosecutor because of his engagement in the discovery of mass graves containing the bodies of Kosovo Albanians – said Sandra Orlović, Executive Director of the Humanitarian Law Center (HLC), in her farewell interview given to the daily newspaper “Danas”.
Our interviewee, who is soon to leave for the United States to continue her academic research, added that it has been the attitude of the international community which has also contributed to such statements and to the implicit exculpation of some officials of the army and police for the crimes committed in the nineties.
– A superficial understanding of the process of dealing with the past, and the reduction of this process to an exchange of apologies and a few humane words about the victims of the other side, without a substantially institutionalized and uncompromising process of transitional justice, cannot satisfy the requests and needs for justice and truth by numerous victims. Such is the case with General Diković. Almost all the relevant stakeholders of the international community do not see anything controversial in the fact that such a general makes official visits to their countries and talks about peacekeeping missions – Ms. Orlović emphasized.
* General Diković sued the HLC and Nataša Kandić precisely because of your allegations that his brigade participated in atrocities in Kosovo. The court ruled in his favour, but the sum requested by the prosecutor was reduced by a half. Are you going to appeal the judgment?
– We have made an appeal within the statutory time limit and pointed to the apparent contradictions in the judgment, and the fact that during the proceedings the judge did not allow us to present evidence, although according to the law and the explanation of the judgment it was in fact our obligation to do so, in order to substantiate our allegations. Also, we noted in the appeal that the judgment is in contradiction with the practice of the European Court when it comes to freedom of speech and opinion, especially on matters of public interest.
* What is happening with the criminal complaints you filed with the Office of the War Crimes Prosecutor for the crime in the village of Rezale, against Diković and three other people?
– In October 2015, we received information from the Prosecutor’s Office that pre-trial proceedings are taking place in relation to this criminal complaint. A few months later, we received a request for the transfer of documentation relating to the crimes in Rezale. In the same memo, the Office of the Prosecutor required of us the transfer of documentation relating to the “Ljubiša Diković Dossier”, which we had published in January 2012. Let me remind you that the Office of the Prosecutor resolutely rejected all the findings of the HLC in less than 48 hours after the publication of this document, and publicly announced that they had checked all allegations in their database, and that there is no evidence of the involvement of General Diković in any crimes. Therefore, this request for documentation four years after the publication of the dossier indicates that the conduct of the Office of the Prosecutor in the case of General Diković during that period was subject to the directives of the executive branch. The reaction of the Office of the Prosecutor in 2012 was clearly synchronized with the position of the government that stood in Diković’s defense. This led to the disgrace of the Office of the Prosecutor.
* Why do you think that?
– Because I do not know of a comparable example in which a specialized war crimes prosecution claimed that they investigated the allegations of the murder of hundreds of civilians at eight different locations, in less than 48 hours.
* Speaking of the Office of the Prosecutor, in the last two or three years they have raised the smallest number of indictments ever. What do you think about that?
– One may say, without any exaggeration, that on the basis of the number of defendants per year, Serbia has become an oasis of impunity for war crimes in the past four to five years. According to my assessment, in Serbia there are at least 3,000 people suspected of committing serious crimes in Croatia, Bosnia and Herzegovina, and Kosovo, as well as of gross violations of human rights in Serbia during the nineteen-nineties. Near the end of his mandate, the former War Crimes Prosecutor, Vladimir Vukčević, said that, according to his knowledge, in Belgrade alone there are some 80 war crimes suspects. In such a situation, particularly in view of the repeated declarative commitment of officials to the process of regional reconciliation, one would expect that the Serbian institutions would engage more resources and show a clear political will to reanimate the prosecution of war crimes in Serbia, and that the rule of law in relation to crimes committed by Serbian forces be established without any political calculations. Now everything is in a state of collapse. The Office of the War Crimes Prosecutor, for example, is like no other Prosecution Office in the region or beyond, since it employs such an astonishingly small number of prosecutors and associates. The budget of the Prosecutor’s Office in Serbia was not increased, even when the conducting of investigations was included in its jurisdiction. Instead of the Prosecutor’s Office abounding with young lawyers and investigators, to assist the prosecutors in the building of cases, in the Office of the War Crimes Prosecutor, the two prosecutors have at their disposal no more than one associate in common. This is the true picture of political support for this institution.
* We also now have the situation where the War Crimes Prosecutor has not been elected, and a repeated competition for the post, in which the current Deputy Prosecutor, Snežana Stanojković, has again been given the highest score by the State Council of Prosecutors, although in the previous competition her programme was quite debatable?
– The failed election of a new prosecutor unfortunately indicates that the political power will try to reduce the war crimes prosecution to a minimum, enough to appease the Brussels bureaucrats who, owing to their insufficient knowledge of this area, are almost completely satisfied by this minimum. The repeated procedure for the evaluation of the candidates’ programmes for the position of Chief Prosecutor again put into the forefront the candidate Stanojković, who obtained the highest score. It can be concluded that the programme offered by candidate Stanojković is an expression of the need to meet public opinion in Serbia, which is that the Serbs were by far the greatest victims in the wars in the former Yugoslavia, that the high-ranking officials of Serbia have been unjustly convicted, that the crimes committed by Serbs were incidental in nature, and that the institutions of neighbouring countries are a priori anti-Serb and cannot bring justice to Serbian victims. The facts themselves, however, refute such opinions and attitudes, although very few people are interested in those facts in Serbia, and in Brussels even less. Most importantly, the prosecution of war crimes in Serbia will sink even lower, and the victims from all communities will be deprived of justice.
* The HLC has recently published a report which states that the Ministry of the Interior and the Ministry of Defense hide information about crimes?
– Yes, in addition to everything that I have just said in my previous answer to your question, I have to add the fact that institutions such as the Army and Police obstruct access to archives containing documents that are relevant for criminal prosecution. The Commissioner for Information of Public Importance has already determined in dozens of cases that these institutions have flagrantly violated the law when they have refused to provide evidence and documentation on the operation of forces in Kosovo. This kind of attitude has the characteristics of a systemic obstruction of the prosecution of war crimes, when we know that these institutions, according to representatives of the OWCP, do not provide the requested documents.
* How do we make the situation better?
– The National Strategy for the Prosecution of War Crimes is the last opportunity to fix some things. In the next two years, we will see whether this strategy was adopted in order to show the international community, through the nature of the goals set, which should be easy to accomplish, the supposed willingness to prosecute the crimes more vigorously than ever. It is uncertain whether the strategy will change anything, partly because of a political climate which does not encourage the institutions to combat impunity for war crimes, and partly because the strategy itself has serious flaws. The strategy was not preceded by a serious analysis of the number of unresolved cases that the OWCP has to deal with; and the increase of resources of the key institutions is conditioned by the situation in the budget and not the volume of the pending cases.
* In this regard, how do you evaluate the work of the courts for war crimes?
– In addition to the poor performance of the OWCP and the limited material and human resources of this institution, it is important to note that the courts have in recent years significantly contributed to the impression of impunity for crimes committed in Serbia. Witnesses and victims from other countries avoid coming to Serbia. They are terribly disappointed and feel cheated, because even after seven or eight years they are not close to final judgments, even though they have repeatedly come and given statements. The judges who now sit in these cases are far from demonstrating the high standards established by the judges during the first six or seven years of the work of the specialized institutions for the prosecution of war crimes. This is helped by the fact that judges who have neither experience in these cases nor professional training for such a complicated area of law are appointed to chambers. The atmosphere in the courtrooms has changed even when we speak of basic human behaviour – from the fact that victims who testify for hours are not offered even a glass of water, to a situation where a judge lectures victims from Kosovo that they are citizens of Serbia.
* Let’s talk a bit about the Hague Tribunal. Vojislav Šešelj is a free man. Why, in your opinion, did the Tribunal deliver such a judgment?
– The trial judgment in the case of Šešelj is not yet available in English, but on the basis of the summary, one may conclude that the trial chamber substantially departed from the numerous factual findings and legal postulates of that court. With the finding that there was no systematic attack on the civilian population in Bosnia and Herzegovina and Croatia, this verdict reaches a level of absurdity which undermines the whole concept and the very values of international law. In addition, one should not forget that the entire proceedings against Šešelj for the entire duration was, from a procedural standpoint, a kind of a state of emergency; partly because of the pressures of Šešelj’s team on witnesses – members of the SRS party who were to testify against Šešelj – and partly because of Šešelj’s clear agenda to obstruct the trial in all possible ways. The Prosecutor was not sufficiently prepared for everything that was going on, especially in the latter part of the trial, and the court itself made the fatal mistake of allowing Šešelj to defend himself and appointing Judge Antonetti to lead the proceedings, instead of the previous judge, who was a prominent lawyer with integrity. However, I am firmly convinced that the flaws of this judgment will be addressed in the appeals proceedings.
* Has justice been done in the case of Radovan Karadžić, who is sentenced to 40 years in prison?
– Personally I think it has, although I think that the sentence of life imprisonment, which I would have expected, would be a just one as well. However, although in terms of the sentence passed and the issue of the existence of genocide in places besides Srebrenica there is room for serious debate, this sentence is a judgment on the institutionalized policy of ethnic cleansing of non-Serbs and in that sense it gives an authentic and credible interpretation of the nature of the war in BiH. The process of accepting that interpretation will be a slow one, and together with some other judgments, it will represent a measure of our willingness to confront the past.
* Well, after these two judgments, but also after the arrest of Florence Hartmann, a former spokesperson of the ICTY Office of the Prosecutor, what is your opinion of the work of the court in the Hague?
– This Tribunal was established in response to the total collapse of the rule of law in the region of the former Yugoslavia. Even without this collapse, there is no doubt that none of the newly formed states would have been able to prosecute such serious cases by itself and to collect material which today is a key element in prosecuting war crimes before judicial institutions in the region. That is the most important legacy of the Tribunal. On the other hand, the negative impressions of the work of this court in the professional community are also not negligible. First of all, in some cases politics has found its way into the trial chambers. ‘Politics’ here refers to a much broader international politics, and not to some of our Balkans-centered conspiracy theories. Unfortunately, the judgments in the cases of Perišić and Gotovina will have far-reaching consequences for the process of dealing with the past in the Balkans, because these judgments largely legitimized Milošević’s politics of creating a Greater Serbia in the former, and, in the latter, the politics of ethnic cleansing in Croatia. The Tribunal has also, in many cases, been compliant to the requirements of the countries, and especially to Serbia’s request for the secrecy of documents presented as evidence. On the grounds that it was a national security issue, Serbia requested, and the Tribunal approved, that many important documents, as well as witnesses, remain out of sight for the victims and the public, despite their right to know everything about the participation of institutions in systematic crimes. This was particularly the case in the trial of the leaders of the Serbian State Security, Jovica Stanišić and Franko Simatović.
* So, on the one hand, we have those judgments of the Tribunal, and on the other, we have Aleksandar Vučić going to Srebrenica and then the visit of the BiH delegation to Belgrade; and then – an unprecedented welcome reception organized for General Lazarević by the highest Serbian officials? Is there any hope for reconciliation in the region?
– There is visible progress in the repair of political, cultural and economic ties in the region. However, today the prevailing opinion is that the essence of the reconciliation process is the renewal of relationships based on the interests of improving everyday life, but without discussing the difficult topics which supposedly may threaten those interests and relationships. In other words, the dialogue about the ideologies which legitimized the crimes, the issue of the different interpretations of key events in history textbooks and the moral debt of our communities towards the victims, are seen as topics harmful for the future and stability. My deep conviction, which is not only a consequence of my personal framework of values, but part of a notion of reconciliation shared by people who experienced personal tragedies during the war, is that this model of reconciliation is really just a simulation of the reconciliation process, and most importantly, in the mid- and long terms, a futile activity. The sporadic gestures in relation to what happened, such as politicians going to places of suffering, are simply uncompleted actions, because they are always either preceded or followed by something which nullifies that gesture. Therefore, in the victims’ communities these gestures do not have much worth. The reconciliation process should be taken out of the hands of the politicians and returned to the victims, the survivors and the communities which have suffered the most or in some other way have been involved in the war. That will be the main value of the regional commission for the establishment of the facts about the victims – RECOM. The establishing of this commission is a civilizational test for this generation of politicians and the general public.
As for the year’s commemoration in Srebrenica and the presence of the Prime Minister in Potočari, I would like to remind you that what preceded this action was the unreasonable and aggressive opposition of Serbia to the resolution proposed by Great Britain in the UN Security Council. I believe that a truthful confrontation with the past is one where this process would be a part of every policy and every institution, and that it should have unlimited duration, and that all officials in the state structures should be dedicated to these values without exceptions or reservations. There is no sincerity if the Prime Minister talks about his devotion to reconciliation and the chief of his party’s parliamentary group declares that those who say there was genocide in Srebrenica are traitors.
* Let us touch upon the Croatian blocking of Serbia’s European integration because of the Law on the Organization and Jurisdiction of Government Authorities in War Crimes Proceedings, in the section of its universal jurisdiction?
– The issue of blockade of Serbia’s European integration because of the jurisdiction of the OWCP raised the issue of effectiveness of the current framework of regional cooperation. The root cause of the blockade is not a legal foundation of the provision concerning the jurisdiction of Serbian law, but the fact that Serbia has on several occasions shown that it is not interested in regional cooperation when it comes to cases against high-ranking individuals from Croatia and BiH, such as Orić, Ganić, Divjak, and Šeks. Instead of submitting the evidence concerning these cases to the competent authorities in these countries, the Serbian institutions have insisted that these proceedings be conducted in Serbia, because of the expectation that there will be some political profit from these cases at the national level. With such positions and actions, Serbia has repeatedly undercut the regional cooperation which is the only proper path in the prosecution of crimes, since it not only provides efficiency, but also contributes to dealing with the past in the communities from which those who committed crimes come. It is clear that because of this, Serbia has lost the trust of partners in the region, and that the existing protocols need to be changed in order to prevent future similar situations.
* Many war criminals have found refuge in Serbia. They live normal lives, they even participate in the political life of Serbia. Do you expect that the new government will be more willing to arrest war criminals, especially high-ranking officials?
– It is a well-known fact that many members of the Bosnian Serb forces received Serbian citizenship after the war, and that today they live in Serbia practically shielded from the prosecution to which they would certainly be exposed in Bosnia and Herzegovina. A large number of those who held high positions in the government of the Republic of Srpska during the war in BiH today are successful businessmen in Serbia. The situation is similar with members of the Army of the Republic of Srpska Krajina, among which there are a number of those who committed crimes. The perpetrators of crimes in Kosovo not only live in Serbia, but are often competent to make decisions in the field of the rule of law, public security and human rights. Unfortunately, even after the 12 years of the existence of specialized institutions for the prosecution of perpetrators of war crimes, we do not have indictments against high-ranking individuals, because the political environment and the messages coming from the highest positions in the government are such that no prosecutor would dare prosecute these cases. And the messages are that war criminals enjoy government privileges and festive welcomes, while the brave witnesses from the ranks of the army and police who help the institutions in the war crimes cases with their testimonies are not provided with even the basic protection against threats. We have never heard a word of public praise and encouragement for those witnesses who acted in accordance with their conscience and the laws of this country, and told what they had witnessed during the war. Decorations and privileges in Serbia today are reserved for those who have violated those laws. All of this shows that we need a dramatic change in the relationship of political power to the prosecution of war crimes.
The government has ignored the rights of civilian victims of war for years.
* According to HLC data, about 20,000 people in Serbia are deprived of the status of civilian victims of war, and most likely they will not be able to obtain this status even when the new law is passed. How would you comment on this?
– The Serbian Government has for years now ignored the criticism and recommendations of the most important international institutions that monitor respect for human rights, which have been pointing to the unacceptable situation in which civilian victims of war in Serbia find themselves. The competent minister and the ministerial officials who are working on the preparation of the new law, although clearly ignorant of international standards in the field of the rights of victims, respond to criticism by the civil society with incredible arrogance and say that it is sufficient that the draft law has been approved by the government’s European Integration Office. Of course, that is entirely inadequate and absolutely absurd in a situation where, for example, the UN Committee on Torture and similar bodies have been arguing that the law, the essence of which is fully retained in the new draft, is contrary to international standards. I am convinced that it is only a matter of time before this issue will be seriously addressed in the context of the negotiations with the EU. The issue of the rights of victims in Serbia is one of the few areas in which Serbia will take the test regarding the acceptance of human rights values. And it will not be just a question of who is to be recognized as a civilian victim of war. The reform of the whole system of support for victims will be addressed, beginning with the education and training of the officers who work with victims, the content and number of victims’ rights, the procedures for recognition of civilian victim of war status, and so forth. In our practice we have seen examples of unimaginable mistreatment of victims by the officials who are responsible for their well-being. On one occasion, a medical commission called into doubt the injuries and medical documentation of a young man who had been severely handicapped in the war by a grenade at the age of eight, on the grounds that the injuries he suffered could have occurred after falling from a tree. To this day, this man has not been recognized in Serbia as a civilian victim of war.
Originally published in the daily newspaper Danas.