Lack of cooperation threatens war crimes prosecution
The three countries that went to war a decade ago in the former Yugoslavia are at it again. But this time the battle is over whether they will cooperate on bringing war criminals to justice.
Cooperation and coordination between Serbia and Montenegro (SCG), Croatia and Bosnia-Herzegovina (BiH) was not a problem when all the cases from those countries were being investigated and tried by the International Criminal Tribunal for Yugoslavia in The Hague (ICTY).
But the tribunal is headed for a shutdown by 2010. The responsibility for most of thousands of potential cases is being transferred back to domestic courts in the three countries.
In BiH, a new War Crimes Chamber opened at the State Court in March. Court officials see the earliest date to begin trials some time this fall because of delays in the transfer of cases from the ICTY, and a lack of local prison space.
But bureaucratic grumbling between the three countries over extradition laws, how to deal with suspects who claim dual citizenship, and witnesses’ refusal to go to what they see as hostile venues for trials, could stop many trials before they begin.
No one knows how many trials might be complicated by these issues. But in addition to current cases that might come directly from the ICTY, the BiH Prosecutor’s Office has begun to look at cases involving 5900 suspects that the ICTY, after reviewing, has sent back to BiH lower courts over the past 10 years. Many of these cases will have defendants who can be expected to use the lack of cooperation between BiH and its neighbors to their advantage.
Extradition could be the most difficult issue.
Since the end of the war, the victims and witnesses of atrocities have scattered, the suspects have moved, in many cases, far from the scenes of war crimes. How to get them all back together in the same courthouse is an unsolved puzzle.
The Bosnian legal code and the constitutions of Croatia and of SCG ban the extradition of their citizens. While this has not hindered extraditions required to get suspects to The Hague, defense attorneys will surely call upon those constitutional provisions to help keep their clients out of unfriendly territory.
While accurate statistics are hard to come by in countries that do not have a regular census, a number of suspects hold dual citizenship in two of the former Yugoslavian countries, giving them and their lawyers, plenty of leeway in manipulating where they will go to trial.
Paddy Ashdown, the High Representative in Bosnia and Herzegovina since 2004 has tried to push local politicians into cooperation with the proposal of a trilateral agreement on the exchange of cases.
The agreement has met with criticism and strong opposition from justice ministers throughout the region. Officials who played no role in drafting the agreement and who have seldom worked on joint prosecutions feel little pressure to ratify anything.
Particularly troublesome is a provision of the agreement that calls for prosecution of crimes in the country where criminal activity took place rather than in the country where the suspects hold citizenship.
Trials in a defendant’s homeland are rarely successful, experts say. Witnesses are frequently too scared to travel to a country they regard as enemy-held.
The case of Željko Mejakić illustrates the confusing problem.
A Bosnian Serb, he turned himself into officials at The Hague two years ago. He was sent off from the Belgrade airport by cheering supporters. Mejakić was commandant of the Omarska prison camp near Prijedor, and ICTY prosecutors have charged him with genocide and crimes against humanity.
He is now awaiting a decision from a special panel of judges about whether his crimes were severe enough to keep his case in The Hague, or whether his trial will be transferred to Belgrade or to BiH.
SCG and Croatia were similarly vying for selection as the place to try the Vukovar Three. Mile Mrksić, Veselin Šljivančanin and Miroslav Radić, former officers of the Yugoslavian army, helped to level the Croatia-Serbia border town. But the ICTY panel decided that the case was significant enough to be finished before the international court closes down.
And Milovan Zec was tried in absentia by Croatian officials, convicted and sentenced to a year in prison for ill-treatment of Croatian civilians during the Croatian War. But he remains free across the border in his home state of BiH, untouched.
Jusuf Halilagić, a secretary in the BiH Ministry of Justice, is one of the rare BiH officials who has not only read but helped to frame the trilateral agreement. He said that if it were up to him, suspects would be prosecuted before the courts of the countries that have charged them with war crimes.
“But,” he said, “we all know who’s calling the shots in Bosnia. It’s the politics, not the experts. We will face major opposition from the people who are deciding this matter. Those (people) are not lawyers and they are not competent. Those are governments and that is politics.”
He predicts that many important cases will never be heard.
Many BiH prosecutors have already lost cases after gathering evidence enough to get an indictment.
“Many of our RS suspects have found a safe haven in SCG, as we have learned by screening their personal records,” said Alma Džaferović, head of the war crimes department at the Tuzla prosecutor’s office. She and many colleagues, think it is an illusion that persons hiding outside the borders of BiH will ever be prosecuted.
This is particularly true, she said, in cases where suspects have received citizenship from “our eastern or western neighbors. In that case, nobody will deliver them to our country.”
Džemaludin Mutapčić, FBiH deputy justice minister, said that the trilateral agreement has not been signed because every country feels it must protect its jurisdiction. “It is an embarrassment for a country to extradite its citizens, “he said.
BiH officials complain that it is even competing with neighbors to try some of its own citizens – those who hold dual citizenship.
The issue has already become important in the case of two defendants, who the ICTY this month ordered to be transferred to the BiH War Crimes Chamber. Savo Todović, a Bosnian Serb defendant, who is from BiH, is also a citizen of SCG. Todović will appeal the ICTY decision and try to keep his trial in The Hague or have it moved to SCG, according to his lawyer Aleksandar Lazarević.
Todović and his co-defendant, Mitar Rašević, were indicted by the ICTY for participating in ethnic cleansing in Foča. Rašević, who surrendered to the ICTY in Serbia and Montenegro, is currently seeking to get SCG citizenship.
Lazaraveć said his client cannot get a fair trial in BiH since the media furor last month over a videotape of the execution of six young Bosniak men from Srebrenica in 1995 by members of the Scorpions, a Serbian paramilitary group.
Davor Popović, a Croatian lawyer, complained that his client, Fikret Abdić, known as Father (Babo) in western Bosnia because he helped establish the area, was tried in Croatia, even though Abdić has citizenship from Croatia and BiH and the indictment was filed in Bihać. Abdić is accused of the mass murder of civilians in the Bihać area in 1993.
In Croatia, Popović said, he had trouble getting defense witnesses and evidence from BiH. He tried in vain, he said, to get help from BiH agencies but they ignored him.
“The cooperative agreement between BiH and Croatia is working great on paper only,” he said.
Bijeljina lawyer Veselin Londrinović said it is difficult to talk witnesses from SCG into testifying in Sarajevo. “People wouldn’t be seen dead coming here,” he said. He also has trouble getting Bosnian Serbs to come into the BiH capital.
The new War Crimes Court in Sarajevo is housed in the former barracks where Serb POWs were held. Branislav Dukić, president of the RS Prisoners of War Association, says his members as a matter of principle won’t testify in that building which represents oppression to them.
Similarly Bosniaks resist testifying outside of the Federation.
“If the war crimes suspects were to be heard in Belgrade, those would be the trials without witnesses,” said Nusreta Sivac, the pre-war judge of the municipal court in Prijedor. She doesn’t believe a fair trial about crimes committed in BiH can even be held in Belgrade.
The lack of will to bring about justice for victims of war crimes is so complete that the three countries have been unable to agree even on how many died in the war. Serbs have played down the number; Muslim groups have played it up to as many as 300,000. The number of Serbs killed in Sarajevo, as one example, ranges from 3,000 to 12,000.
It has taken a non-governmental organization, the Research and Documentation Centre run by Mirsad Tokača to do the research needed to get at the truth. Employees have gone into the field, consulting death certificates and cemetery records and visiting hospitals, burial companies and churches to get real information on individuals.
He estimates the final tally will be closer to 100,000 killed. Not that any politician has consulted the Centre or supported its work. “This is not something they give support to,” he said. “We need someone from abroad to praise our work before we pay attention to what we do.”
It might take the intervention of another organization abroad to bring about real legal cooperation among the former Yugoslavian countries, suggests Jusuf Halilagić, the justice ministry official, who helped work on the so-far unsigned trilateral agreement.
The European Union could settle the matter, he said. The countries of the former Yugoslavia do share a common desire for admission to the union.
“Within the EU body of law exists the convention on extradition,” he said. “When we become signature parties to all of the conventions, nobody will bother to ask the accused where would they go.”
The United Nations Security Council could also help, according to Amir Ahmić, liaison officer to The Hague. The council could issue a ruling that would be binding on the Balkan nations. That, he said, is more likely than constitutional revisions or parliamentary action by the three countries.
Legal expert Anto Nobilo of Croatia has suggested a more radical reform, the elimination of dual citizenship. Citizens, he said, should have to decide which single nation they feel they belong to.
Vaso Marinković, head of the BiH Prosecutor’s Office, said the best solution in his view remains an agreement signed by BiH, Croatia and SCG. But he added, the issue of war crimes has moved from the legal environment into the political one.