Consequences of Political Tensions on Prosecution of War Crimes: For the first time, Serbia does not participate in the regional conference of war crimes prosecutors

After 12 years of contacts between prosecution offices in the region within the framework of cooperation in the prosecution of war crimes, the Office of the War Crimes Prosecutor (OWCP) of the Republic of Serbia for the first time did not participate in the regional conference of war crimes prosecutors, the tenth in the series, which began on the 5th September 2016 in Brijuni, Croatia. This is a dramatic change in long-standing practices, and it is happening at a moment of severely undermined bilateral relations (available in Bosnian) between Serbia and Croatia, and a political crisis (available in Serbian) in the region. The Humanitarian Law Center (HLC) feels that this is an alarming indicator of political influence being exerted on the judiciary, and points out that the decision on non-participation by the OWCP at the conference is in direct conflict with the obligations which the Republic of Serbia committed itself to with the Action Plan for Chapter 23 and the National Strategy for the Prosecution of War Crimes.

The first efforts to improve and formalise regional cooperation in the prosecution of war crimes emerged back in 2004, when the first meeting of this kind, held in Palić, gathered the relevant stakeholders from the judiciaries and state administrations of Bosnia and Herzegovina, Croatia, and Serbia and Montenegro. The subsequent meetings were held in Brijuni (June 2005), Mostar (October 2005), Novi Sad (April 2006) and Zagreb (June 2007). Starting from the conference held in Brijuni in July 2007, only the prosecutors responsible for the prosecution of war crimes have taken part in these annual meetings, and this kind of contact and cooperation is now known as the “Brijuni Process”. Officials of the International Criminal Tribunal for the former Yugoslavia (ICTY) have attended every meeting, and this year’s conference was attended by the ICTY Chief Prosecutor, Mr. Serge Brammertz.

During the past years, regional cooperation in the prosecution of war crimes has been evaluated as being, in general, slow and inefficient. The formation of joint investigative teams between the prosecutors’ offices of Bosnia and Herzegovina and Serbia, whose work has resulted in indictments for the murders of hundreds of Bosniak civilians in the village of Kravica (Srebrenica) and for the torture and murder of 20 people abducted from a train at the station of Štrpci, pointed to the possible reach of this regional cooperation. By the act of non-participation in one of the most important expert meetings in the framework of regional cooperation, a sharp cut has been inflicted in relation to these achievements, and regional cooperation has again taken a few steps backwards.

A consequence today of the cross-border nature of the recent past armed conflicts in the former Yugoslavia is that victims, witnesses, perpetrators and evidence are generally not located within the territory of one state or within the competence of a single national judiciary. In addition, bearing in mind that almost all the successor countries of the former Yugoslavia prohibit the extradition of their citizens to other countries, prosecution of war crimes committed in the former Yugoslavia is inconceivable without effective cooperation between the relevant institutions in the region.

It is because of its importance in the fight against impunity for war crimes that regional cooperation represents one of Serbia’s key commitments in the framework of negotiations on accession to the European Union (EU). The latest Serbia Progress Report by the European Commission emphasizes that „regional cooperation and good neighbourly relations form an essential part of the process of Serbia’s road to the EU accession“, and that it is „important to continue strengthening efforts in regional cooperation [in war crimes prosecution].” The Action Plan for Chapter 23 in the field of war crimes envisages joint activities of prosecutors’ offices in the region (for example, activity 1.4.1.3. Development of a Prosecutorial Strategy for the Investigation and Prosecution of War Crimes „with the participation and support of regional prosecutors’ offices“). Finally, the 2016 National Strategy for the Prosecution of War Crimes states as one of its goals „support to the judiciary through the promotion of regional cooperation”, and foresees a number of activities in the field of regional cooperation, including the signing of several bilateral agreements aimed at improving the prosecution of war crimes. Moreover, the Strategy explicitly provides for the OWCP’s participation in the regional conferences of the war crimes prosecutors’ offices, as well as for the OWCP’s obligation to initiate the „organization of regular quarterly meetings between regional prosecutors, the subject of which would be a discussion about specific cases that have been delivered to them and the problems that have risen in connection with them, in the scope of the regional cooperation.”

Since the issue of Serbia’s jurisdiction over the prosecution of war crimes has imposed itself as a subject matter (available in Serbian) in the accession negotiations with the EU, and since it causes bilateral tensions with Croatia, Serbia’s decision not to send its representatives to attend the regional prosecutors’ conference is particularly discouraging. The HLC believes that such moves will result in a deepening of the crisis and further contribute to the weakening (available in Serbian) of the war crimes prosecution before domestic courts. In addition, this circumvention of the commitments made in the negotiations on the accession of Serbia to the EU casts doubt on the genuine commitment of Serbia to finally implement, after more than a decade, a comprehensive strategic approach to the prosecution of war crimes before domestic courts, which Serbia committed itself to before the EU institutions and the citizens of Serbia.