On the occasion of the presentation of the Report on the Implementation of the International Covenant on Civil and Political Rights: Manipulating data on the effectiveness of the prosecution of war crimes in Serbia

On the occasion of the presentation of the Report on the Implementation of the International Covenant on Civil and Political Rights:  Manipulating data on the effectiveness of the prosecution of war crimes in Serbia

Specijalni sudIn March 7th and 8th, 2017, the Serbian delegation presented the Third Periodic Report on the Implementation of the International Covenant on Civil and Political Rights before the UN Committee for Human Rights in Geneva. The report contains data on the prosecution of war crimes in Serbia. During the discussion with the Committee experts, the delegation offered a distinctly tendentious presentation of the information about the work of state authorities responsible for the prosecution of war crimes, or presented completely false information, all with the aim of creating an illusory image of high efficiency. The Humanitarian Law Center (HLC) believes that such actions on the part of the delegation illustrate the relationship that the Republic of Serbia has towards its international obligations in the field of human rights, including those obligations derived from the accession negotiations with the European Union. Serbia tends to meet only the minimum formal requirements of international bodies, and creates an illusion of efficiency without the ambition to substantially fulfill its obligations.

The Serbian delegation led by Suzana Paunović, the Director of the Office for Human and Minority Rights, presented a series of data on the work of the Office of the War Crimes Prosecutor (OWCP) that gave a distorted picture of some sections of the Office’s activities, such as the dynamics of raising new indictments, the total number of persons charged, the total number of victims covered by trials, and successful work on the implementation of the National Strategy for the Prosecution of War Crimes.

Dynamics of raising indictiments

 Responding to questions from members of the UN Committee, the representatives of the Serbian delegation rejected the suggestion that the tendency for raising new indictments for war crimes is on the decline.

However, if we analyse the period since the Committee’s last report (the period after 2011), the statistics concerning indictments raised are as follows:

2011: 5 indictments against 9 persons

2012: 5 indictments against 7 persons

2013: 7 indictments against 11 persons

2014: 7 indictments against 9 persons

2015: 2 indictments against 13 persons (one of these two indictments has not been confirmed to date)

2016: 7 indictments against 7 persons

Total: 33 indictments against 56 persons

The results are devastating just on the basis of an analysis of the quantitative effects, especially if one takes into account the period before 2011. Thus, for example, 33 persons were charged in 2010 alone, which is more than half the number of indictees in the six years that followed.

The poor performance of the OWCP is particularly noticeable if one takes into account the number of charges brought in this six-year period for 1) crimes that the OWCP independently investigated (i.e. that were not transferred by judiciaries from the region or the ICTY) and (2) those that represent new, previously unprocessed crimes:

2011: 1 indictment against 3 persons

2012: 1 indictment against 1 person

2013: 2 indictment against 3 persons

2014: 0 indictments

2015: 2 indictments against 13 persons (with the provision that they were the result of a joint investigation with Bosnia and Herzegovina)

2016: 0 indictments

Total: 6 indictments against 20 persons

As an illustrative example which shows the tendency to feign OWCP efficiency, we can mention the raising of separate indictments for the same event in the Ključ – Kamičak Case in 2016. To be precise, the OWCP brought two separate charges in one day against  Dragan Bajić and Marko Pauković, although they are identified as accomplices in both indictments. Shortly after the confirmation of the indictments, the OWCP submitted to the court a motion to merge the two proceedings against the indicted persons and to continue the proceedings with a single indictment. Thus, in practice there is only one indictment, which is presented as two in the report presented by the Serbian delegation before the UN Committee.

Besides offering a fictitious quantitative analysis, the Serbian delegation becomes very reserved when it comes to offering a qualitative analysis, so that in the report and speech given before the UN Committee there was no mention that the OWCP indictments are almost exclusively directed against low ranking perpetrators, and that in the last six years, most of the indictments have only one defendant and one or a very small number of victims. Of particular concern is the fact that in the previous period there have been a number of war crimes trials that have resulted in acquittals, primarily on account of poor investigations and unfounded indictments (the cases of Tenja II, Čelebići, Logor Luka, and Gradiška), but also because of politically motivated (and unsubstantiated) charges (see the cases of Čelebići, Mark Kashnjeti and Tuzlanska kolona).

Number of victims

 The representatives of the Serbian delegation used the OWCP data according to which 5,591 victims have been covered in domestic war crimes trials so far. It is not possible to arrive at this exaggerated figure without counting in the cases that ended in acquittals, in which the rights of victims to criminal justice have not been satisfied (e.g. Tuzlanska kolona, with the stated number of victims of 101), making it at the very least innapropriate to count them towards a positive balance.

In addition, in the OWCP statistics the victims have been „multiplied“ – the same victims from two or more cases concerning the same event are added in several times. Thus, 51 murdered persons from Suva Reka in the OWCP calculations are presented as 102 victims, because the same crime was processed in two trials; whilst 182 murdered persons in Zvornik are presented as 364 victims in two cases, and the 200 victims from three Vukovar cases have increased to 600, etc.

The total number of charged persons

 The OWCP states in its statistics – which are accepted by the Serbian delegation – that a total of 184 persons have been indicted for war crimes in Serbia. These data are also plagued by numerous inaccuracies and exaggerations. For example, the OWCP considers as charged (and convicted) those convicted in the Jataci [Harbourers] Case, although this case is not a war crime but a case of aiding and abetting a perpetrator after a committed crime.

Also, during the discussion that took place before the Committee it was pointed out that there have been more proceedings led before the domestic courts than before the Hague Tribunal. Although this is based on statistically accurate data, the aim of this comparison is to show the alleged success of the domestic judiciary in the prosecution of war crimes.

There are a number of reasons why the comparison of the work of the OWCP with that of the ICTY is at the very least inappropriate. Firstly, the Hague Tribunal conducted investigations and prosecutions against top political, military and police officials from the countries and entities in the region. In contrast, the Serbian OWCP does not have a single indictment against high-ranking individuals, and it has only a few indictments against mid-ranking individuals, and these are mostly direct perpetrators. Furthermore, individual ICTY indictments often included crimes with thousands of murdered and hundreds of thousands of displaced persons, whilst almost 20% of OWCP indictments include only one victim, and only in rare cases have the indictments included crimes with over 100 victims. Finally, most of the OWCP indictments with over 100 victims were either transferred from the ICTY (the cases of Zvornik and Ovčara) or were prepared in cooperation with the BiH judiciary (the case of Srebrenica – Kravica).

Distortion and manipulative presentation of data are not reserved specially for the UN Committee. The HLC warns that the state authorities are treating their obligations derived from the accession negotiations with the EU in an almost identical way, primarily as regards the Action Plan for Chapter 23. The Ministry of Justice continues to report on the successful implementation of the activities, although in reality the intensity and quality of war crimes trials is on the decline. The HLC urges the Republic of Serbia and its authorities to approach the fulfillment of its international obligations in good faith, as they represent the minimum guarantee for the respect of human rights, and at the same time they are obligations that also exist in domestic law.