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Legacy of War Crimes Hinders Balkan Reconciliation

15 11 2007  Extradition rules shield war criminals from justice, leaving many former Yugoslavs fearful of going back to neighbouring countries.

By Nenad Radičević in Belgrade, Sarajevo, Zagreb, The Hague, Brussels and Strasbourg

A tiny room in a crumbling barracks in Belgrade, formerly temporary lodgings for construction workers, has been home to Gojko Eraković, his wife and daughter for 12 years.

An ethnic Serb from Croatia, Eraković, 47, fled his hometown of Benkovac in 1995, when the Croatian Army launched an operation, codenamed Oluja [Storm], to end the four-year revolt of the republic’s Serbian minority.

Eraković considers himself lucky because he fled the town before Croatian forces arrived. “Those who stayed in their homes were arrested,” he recalls. “The others saw their houses set on fire.”

More than a decade after the 1995 Dayton peace agreement ended the wars in Bosnia and Herzegovina and Croatia, Eraković is one of many suffering from their legacy. As thousands of atrocities, which were committed in those years, remain unresolved, it has become all too easy to blame whole nations instead of the individuals responsible. A deep mistrust pervades relations between the countries that emerged from these bloody conflicts, and many ordinary people are reluctant to travel from one to another, not least the refugees.

With politicians seen as responsible for - or, at best, reluctant to dispel - the myths and prejudices that underlie this state of affairs, much has been made, at the international community’s behest, of the role and responsibility of judiciaries to determine the facts about the conflicts of the 1990s. Soon to be wholly in the hands of local courts, work is underway to make sure this happens fairly and effectively.

But the task is daunting, bearing in mind their record so far. In particular, Serbs from Croatia fear a wave of in-absentia trials held in the Croatian courts during the early 1990s, of questionable validity in the eyes of many legal experts. Thus, although he lives in grim conditions in Belgrade, Eraković does not want to return to Croatia for fear of being arrested on trumped-up charges for war crimes. “They arrested two of my friends for alleged war crimes only to release them after several months,” he recalls. “I don’t need the same experience.”

Resolving this problem is one aim of the recent work of prosecutors in the region to jointly overcome a whole range of nationality and residence problems plaguing their work. There are some signs that progress has been made to circumvent the impasse posed by extradition rules, which have so far allowed many suspects to escape their day in court by taking out dual citizenship.

But others think progress is limited, and blame this not on the lawyers, but on a lack of political will. With sovereignty issues still so sensitive, however, dramatic developments are unlikely. Indeed, it took the shocking attack on New York on September 11, 2001, to establish awareness of the new, international nature of crime and push the deeply integrated, allied and peaceful member states of the European Union to relax their extradition rules and open up their criminal justice systems to one another.

Ultimately, experts say, such cooperation depends on trust in one another’s legal systems to administer justice. And while trust is all too rare a commodity among the former foes of the Balkans, it remains its most precious: the ultimate precondition to thawing the invisible barriers that keep its people from moving freely.


War-crimes trials ‘at home’ – the trust factor

The wars that spread through the former Yugoslavia severely affected the three now-independent countries of Bosnia and Herzegovina, Croatia and Serbia.

Bosnia suffered worst by far, with about 100,000 war deaths and 14,000 still missing, according to the independent Research and Documentation Centre in Sarajevo. The Organisation for Security and Cooperation in Europe, OSCE’s Mission to Croatia, estimates the number of deaths in Croatia due to the war at about 13,000, with more than 2,000 missing, while the figures for Serbian soldiers who died or went missing in action during the wars in Slovenia, Croatia and Bosnia is not known, but estimated by organisations such as the Belgrade-based Humanitarian Law Centre as many thousands.

So far, the bulk of trials for high-profile crimes committed during these wars have taken place before the International Criminal Tribunal for the former Yugoslavia, ICTY, in The Hague.

But these have done little to promote reconciliation and the emergence of a widely accepted truth about the recent past. Partly, this may be down to their having been held so far from the scene of the crimes. But experts complain more about the ruling elites of all three countries, who they say have consistently politicised and undermined the work of the court.

With the Hague tribunal due to shut its doors by 2010, thousands of incomplete cases will be shifted to courts in the region. Some experts hope this will be a positive development, saying the repatriation of the legal process may encourage people to view sentences for war crimes more objectively.

Meanwhile, judicial officials in the region have begun in recent years to seek better cooperation between their courts in Bosnia, Serbia and Croatia. The fact that these countries were part of the same state when war broke out makes this cooperation a sine qua non for success in processing the crimes that ensued. For in most cases, witnesses, documentary evidence and, crucially, suspects lie within the jurisdiction of more than one of these successor states.

Over the past three years, dozens of regional meetings and consultations have taken place, starting in November 2004, when local judges and prosecutors identified the need for direct and institutionalised cooperation if justice were to be done after the ICTY closed.

The need for safer and swifter mobility of witnesses to the region’s courts was highlighted, for example, resulting in 2005 in a trilateral agreement allowing information-sharing on an informal basis, thus circumventing the lengthy legal processes often required for intergovernmental cooperation. This has resulted in several joint investigations and regular contact between the prosecutors’ offices.

The results of these initial efforts are significant, according to Veselinka Kastratović, trial monitor from the Centre for Peace, Non-violence and Human Rights in Osijek, Croatia. “Cooperation between the judiciary and the police of Croatia, Serbia and Bosnia and Herzegovina on witness protection and bringing witnesses to the courts in other countries has started functioning,” she maintains.

Kastratović says such moves have also helped send an important message to ordinary people that governments in the region are serious about confronting the misdeeds of the past.


Switching passports and evading justice

However, these initial examples of regional good will have yet to resolve the jurisdictional conundrum when it comes to war-crimes suspects. The crux of the problem is that the dissolution of Yugoslavia allowed many former fighters to take out several citizenships, primarily Serbs from Bosnia and Croatia in Serbia; and Bosnian Croats in Croatia.

In Serbia and Croatia, laws forbid the extradition of citizens, which means that many men and women wanted in Croatia and, more so, Bosnia, remain outside the reach of the courts. Croatian judges dealt with this from the very outset of the war via the use of in-absentia proceedings.

The procedure, banned in Bosnia, has seen frequent use in Croatia: according to the Croatian State Prosecutor’s 2006 annual report, most of the 1,462 people accused of war crimes - and the 611 actually convicted – since 1991 were tried in absentia.

Though less common than before, their continued use, and the secrecy surrounding them, has prevented many Serbs who fled Croatia from going home. “To return to be arrested because the Croats say I was part of a rebel army? I don’t think so,” says Dragan Mirković, 50, originally from Knin, the former headquarters of a break-away Serb statelet in Croatia.

Mirković has sought to find out from the Croatian embassy in Belgrade if his name is on any list of people accused of war crimes, or already convicted in absentia, but remains unconvinced by the vague replies he has received. “I cannot be sure I am not on some secret list of convicted Serbs,” he says.

One problem is that there is no reliable public data on those who have been tried in their absence in Croatia. Recently, Croatia said an authorised and updated list would be made publicly available at its Belgrade embassy but this has not yet happened, apparently because the authorities have not collated all the relevant information.

In 2004, Veritas, a Belgrade-based group that lobbies for Croatian Serb rights, published a list of 1,993 names of Serbs who it said were either suspects or had been tried in absentia in Croatian courts, but its source could not be verified. Neverthless, Savo Štrbac, the NGO’s director, says many refugees remain justifiably fearful of visiting their pre-war homes, and of travelling outside Serbia, as a result.

Since March 2001, on the basis of Interpol arrest warrants, more than 60 ethnic Serbs sought in Croatia have been arrested in Switzerland, Hungary, Greece, Russia and other countries and either extradited or await extradition to Croatia on charges of war crimes.


In absentia trials – a controversial approach

Most legal experts dislike in-absentia trials, though they accept them as a last resort. Vesna Teršelič of Documenta, a Zagreb-based organisation dealing with the legacy of war, believes the fact that the accused are not in court during such trials does not help create an impression of fairness.

Dražen Tripalo, a spokesman for the Supreme Court of Croatia, defends their use, arguing that the proceedings can be important to save witness testimonies and gain important evidence.

Ivo Josipović, a law professor at Zagreb University, says many such trials held in Croatia in the early 1990s were intended primarily to satisfy the pain of victims’ families. “They are not good but in some cases when it was obvious the indictees would not be arrested, they brought some sort of satisfaction to the victims,” he notes.

In 2002, the Croatian state prosecutor told local prosecutors not to seek more such trials without specific approval. The Zagreb authorities have since succeeded in arresting many of those who were convicted in absentia and who have subsequently requested and obtained a retrial. In many cases, the defendants were then acquitted.

Meanwhile, some Serbs convicted of war crimes in absentia now seek the right to a retrial in absentia. Edita Radjen-Potkonjak is one, a Croatian Serb convicted by Zadar County Court in 1995 in connection with the mass execution of Croatian civilians in the village of Škabrnja in 1991 and sentenced to 15 years’ in jail.

Today, she lives in Banja Luka, in Bosnia, and wants her case tried again, claiming she has gathered new evidence and testimonies to prove her innocence. But she wants this done in her absence, and the Zadar County Court has so far rejected her request.

Dražen Tripalo says with good reason. “If a judge approves one in-absentia retrial and after that the court brings the same verdict, the convicted person could again request and receive another retrial,” Tripalo observes. “Theoretically, we could have 20 retrials of the same case”.

The OSCE Mission to Croatia, the Delegation of the European Commission and the Croatian Government have discussed the possibility of a mechanism that would enable a systematic review of the country’s in-absentia war-crimes convictions. However, to date, no decision has been taken to do so.


Better ways to get around the extradition ban?

Cooperation between war-crimes prosecutors should also help put a stop to the undesirable in-absentia phenomenon, by ensuring more cross-border cases can be built and trials mounted against suspects – in their presence. But they insist they cannot do this alone, and are calling on their countries’ presidents to get involved. “Politicians have to support the search for a solution to this problem,” says Bruno Vekarić, spokesperson for the Serbian war-crimes prosecutor, “because this is a political question, too”.

Mary Wyckoff, head of the Rule of Law Unit at the OSCE’s Croatian Mission, says while regional prosecutors have achieved some progress in pursuing cases through the exchange of evidence, states have still to remove legal barriers that continue to significantly hamper effective inter-state judicial cooperation. “Prosecutors are trying to be practical,” Wyckoff continues. “But in order to really solve the problem of impunity, political will and legislative reform are needed.”

International organisations have long urged governments in the region to lend their support to the cause of regional cooperation. In October 2004, Human Rights Watch, for example, recommended they find ways to transfer prosecutions to courts in other states, and thus work around laws prohibiting the extradition of nationals. Three years on, however, this has not happened.

Serbia and Croatia have made some moves to tackle the issue of dual citizenship. In 2006, Croatian prosecutor Mladen Bajić and his Serbian counterpart, Vladimir Vukčević, signed an agreement allowing the transfer from one country of evidence, documents and all other relevant data against a suspect who has since gained citizenship in the other. Thus, the prosecutor receiving the evidence may build a case, bypassing the double bind of the ban on extraditions and transferral of pre-existing indictments (local laws also prohibit transferring charges concerning a serious crime with a recommended sentence of 10 or more years).

Vekarić says the deal will help courts throughout the region take action on cases blocked for years, pointing to cooperation over war crimes committed in 1991 in the village of Lovas in eastern Croatia: in 2003, Croatia charged 18 people with killing a number of non-Serbs in Lovas, but was only able to detain one of the indictees as the rest were out of the country, mainly in Serbia. In May 2007, Serbian police arrested 12 more, acting on evidence passed on by the Croatian prosecutor’s office. The suspects will not be tried in Croatia but before the Serbian War Crimes Chamber.

Wyckoff agrees that the Lovas case is an example of one way to overcome the impunity that currently results from the legal prohibition on extradition of nationals. “Prosecutors are being pragmatic,” she says. “They have taken the position that: ‘We would rather have a trial in person, even if that trial takes place outside the country, than an in-absentia trial in-country’.”

However, this mechanism does not do much in terms of the large number of suspects hiding in Serbia or Croatia who hail originally from Bosnia and Herzegovina, since the latter has refused to sign the agreement. Its chief prosecutor, Marinko Jurčević, maintains indictees should be tried where their crimes were committed and not where they now reside or have citizenship. Otherwise, he forsees a situation in which Bosnian courts are restricted to trying only Bosniak indictees, while most trials for crimes committed against Bosniaks take place abroad. This would do little for the cause of inter-ethnic reconciliation in the still fractured state.

Vesna Teršelič agrees. “Bosnia wants recognition of what happened in the war on its territory,” she says.

But Vekarić says his Bosnian colleague is on the wrong tack. “If they say war crimes committed in Bosnia should be tried only there, they simply send a message to war criminals not to go to Bosnia,” Vekarić maintains. He notes that Serbian and Bosnian prosecutors are already cooperating on other war-crimes issues, including a joint investigation into atrocities committed against Bosniaks in Zvornik, in eastern Bosnia.

During negotiations between the region’s prosecutors in 2006, there were calls for a new agreement on mutual extradition between all three countries. But according to Vekarić, this was not possible owing to the wording of the Serbian and Croatian constitutions.

Not everyone agrees, however. Siniša Važić, president of the Belgrade District Court, interprets Serbia’s statute book differently, arguing that the ban in fact originates in an ordinary law that can be changed far more easily than the constitution - if the political will exists. “We’ll solve the extradition issue with Croatia through reciprocity,” Važić predicts. In the meantime, “the most important thing is that all judicial organs in the region start acting in a professional manner and develop mutual trust,” he concludes.


Rebuilding trust – it takes time

Experts note that developing mutual trust between states over issues such as extradition is a long and painful process.

Michael Kennedy, president of Eurojust, the EU body that helps examine and prosecute cross-border criminals, said difficult questions over extradition between EU states were overcome only after the shock of the terrorist attack in New York on September 11, 2001.

Consequently, in 2002, justice ministers agreed to establish the European Arrest Warrant, which is now recognised in, and can be issued by, every member state’s courts. “The European Arrest Warrant is obligatory for every judge within the EU and each member state must surrender their own citizen to another ... for prosecution and trial,” Kennedy explains.

As for the difficulties many Balkan states have with the very concept of surrendering their citizens to a neighbouring country for trial, Kennedy says he very well understands their sensitivities: “These things don’t happen quickly, especially when language and legal systems are different.” Despite progress in cross-border judicial cooperation in the EU, in every cross-border investigation the sovereignty of member states still has to be considered.

Equally, Friso Roscam Abbing, spokesman for Franco Frattini, the European Commissioner for Justice, Freedom and Security, says member states could still do more to step up cooperation over crime. “We in the EU still need to improve mutual confidence and establish a comprehensive exchange of criminal records and other important information,” he states.

Even though a degree of cooperation between judicial officials within the Balkans has now been established, war-crimes trials held in other countries are still widely viewed as biased by ordinary people.

Slobodan Milošević, the late Serbian president, capitalised on this sentiment at the beginning of his trial in The Hague, claiming a whole nation had been put in the dock. “By accusing me, the Prosecutor has accused Serbia and all Serbs who supported me in Serbia and those Serbs who supported me outside of Serbia and all the people who support me in Serbia to this day,” he asserted in February 2002.

From a legal point of view, collective guilt does not exist, neither at the ICTY, nor local courts in the region. Yet, during every trial of high-ranking politicians or generals, public opinion in Serbia, Bosnia or Croatia has tended to take the opposite view.

Teršelič says every significant trial has raised a popular outcry in the countries of the region, as well as a discussion about whether the person being tried was “ours” or “theirs”. She argues that trials before local courts have, however, helped to modify public prejudice to some extent. In her view, the best example of this is the marked decline in Croatia of public protests against trials of Croats for war crimes. “Several years ago, 100,000 people came out onto the streets whenever an important person was indicted, but today there are only a thousand or so,” she notes.

The problems facing former Yugoslavia in this respect are not unique and have been seen in other major countries in Europe.

Jean-Francois Bohnert, a French prosecutor with Eurojust, says war-crimes trials were a key part of the reconciliation process with Germany after the Second World War. However, he notes that even after 50 years of successful Franco-German relations, the trial and sentencing of the French collaborator, Maurice Papon, in 1998, still generated a great deal of tension and hostility.

A French court sentenced Papon, a wartime official of the pro-Nazi Vichy regime, to 10 years for ordering the deportation of more than 1,500 Jews from occupied France to Nazi German death camps. According to Bohnert, the six-month trial resurrected uncomfortable memories in France, opening up old wounds about the scale of French collaboration with the Nazis and their role in the Holocaust.

However, this was a temporary phenomenon, he says, which did not derail the firm resolve of successive post-war governments in France and Germany to put their relationship onto a new, firm, footing. “Things changed rather quickly after a famous Charles de Gaulle-Konrad Adenauer Treaty in 1963 and a lot of things have been built upon this treaty,” he says, referring to the former French president and West German Chancellor.

Also known as the Elysee treaty, the agreement symbolically confirmed Franco-German reconciliation and the genuine friendship that had arisen between the two neighbours, three times at war since 1870. The treaty established a calendar of regular meetings at all levels intended to create a reflex of cooperation between the two countries.

Bohnert says politicians in France and Germany were dedicated to the goal of developing mutual trust from the early 1950s. “It has to come from the top and then go down through the rest of the society,” he says. “But it was a slow process because they had to convince everybody to have confidence in the other,” he adds.

The treaty encouraged the two peoples to get to know one another on a personal basis, recalls Barbara Hesse, director of the Alsace-Moselle Memorial, which presents the tragic history of the border people who had to change nationality four times between 1870 and 1945. “After the Elysee treaty in 1963 French people were encouraged to take a trip to Germany,” she says.

Dean Ajduković, professor of psychology at Zagreb University, agrees normalising relations between nations in the region takes time but says politicians have to work on it. “People listen to their leaders and act in accordance with their messages, just as they did during the war,” he explains.


Taking the plunge

Twelve years after the war, people in Serbia, Croatia and Bosnia and Herzegovina have started to travel across the region once again.

Newly married couple Ivana and Marko Albunović, Serbs from Belgrade, recently spent their honeymoon on the Croatian island of Hvar.

They said their holiday plans astonished relatives and friends who tried to discourage them. “Everybody tried to persuade us that a vacation in Croatia could be dangerous or at least unpleasant for us as Serbs,” Ivana says. “We ignored their recommendations that were full of the usual prejudices and stereotypes,” she adds. “But still we didn’t dare to take our own car with Serbian license plates.”

Ivana and Marko were cautious when they arrived but “soon realised everything was fine and we spent a brilliant vacation”.

In Ivana’s view, the people of the Balkans have to leave their dark past behind them. “We deserve finally to join a modern world in which wars and hatred are a shameful part of the past,” she concludes.

This article was produced as part of the Balkan Fellowship for Journalistic Excellence, an initiative of the Robert Bosch Stiftung and ERSTE Foundation, in cooperation with the Balkan Investigative Reporting Network, BIRN.