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International Organizations on the Prosecution of War Crimes in Montenegro

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International Organizations on the Prosecution of War Crimes in Montenegro WAR CRIMES TRIALS IN MONTENEGRO (2009-2015) Publisher NGO Human Rights Action Podgorica, Montenegro Tel: +382 20 232 348, 232 358 Fax: +382 20 232 122 [email protected] www.hraction.org For the publisher Tea Gorjanc Prelević Authors Bogdan Ivanišević Tea Gorjanc Prelević Author of cover photo Tomaž Bovha (thanks to Fotorepublika.com) The project was funded by the Department of State's Bureau of International Narcotics and Law Enforcement Affairs (INL) through the U.S. Embassy in Podgorica and Human Rights & Governance Grants Program of the Open Society Foundations - OSF War Crimes Trials in Montenegro 2009-2015 Bogdan Ivanišević Tea Gorjanc-Prelević Human Rights Action Podgorica 2016 CONTENTS Introductory remarks ……………………………………………………………………….. 1 Summary ................................................................................................................... 3 General Overview of Trials and Investigations........................................................... 7 Trials before the independence of Montenegro................................................... 7 Trials following declaration of independence of Montenegro................................ 8 Potential investigations............................................................................................... 11 Dubrovnik battlefield............................................................................................. 11 ”Weekend warriors” from Montenegro on the battlefield in BiH............................ 13 Competent judicial bodies and education .................................................................. 14 State prosecutors office........................................................................................ 14 The courts............................................................................................................. 14 Education for state prosecutors and judges acting in war crimes cases ............. 15 Legal principles .......................................................................................................... 17 Command responsibility and crime against humanity......................................... 17 International organisations on the prosecution of war crimes in Montenegro …………... 20 United Nations …………………………………………………………………………. 20 The Council of Europe ……………………………………………………………...... 21 The European Union ………………………………………………………………….. 21 Case analysis ............................................................................................................ 23 Morinj camp ........................................................................................................ 23 Bukovica case...................................................................................................... 30 Deportation of refugees ....................................................................................... 38 Kaluđerski laz case .............................................................................................. 53 Conclusion ................................................................................................................. 59 Introductory remarks The analysis of judgments in the war crimes trials published in this report were written by Bogdan Ivanišević, expert in international humanitarian law and lawyer at BDK Attorneys at Law office in Belgrade. Tea Gorjanc-Prelević, executive director of the NGO Human Rights Action (HRA) wrote the rest of the text. Together they wrote chapters Summary and Conclusion and edited the report. As the only lawyers, Ivanišević and Gorjanc-Prelević were members of a working group that in 2011 drafted the Statute of the Regional Commission Tasked with Establishing the Facts about All Victims of War Crimes and Other Serious Human Rights Violations Committed on the Territory of the Former Yugoslavia from 1991 to 2001 (RECOM). Both graduated at the Belgrade University Faculty of Law, and completed postgraduate studies in International Law at the American University Washington College of Law. In May 2013, Human Rights Action published the first edition of the report War Crimes Trials in Montenegro with the financial support of the Open Society Foundation through the Human Rights & Governance Grants Program. This revised edition was created in 2016 with the support of the Department of State's Bureau of International Narcotics and Law Enforcement Affairs (INL) through the U.S. Embassy in Podgorica. 1 2 Summary Six criminal trials for war crimes related to the armed conflicts in former Yugoslavia during the nineteen-nineties (“the 90s’”) took place in Montenegro from 1995 to 2016. Thirty-six persons have been indicted, while ten were finally convicted. Before Montenegro gained independence in 2006, two war crimes trials were conducted in the Republic of Montenegro, in the Klapuh and Štrpci cases, in which all six defendants were finally convicted. Four of them were members of the Army of Republika Srpska (RS) from Bosnia and Herzegovina (BiH) and one of their aider from Montenegro, convicted of killing three members of Klapuh family on the territory of Montenegro, and one RS Army member who participated in the abduction and murder of passengers from a train in Štrpci on the territory of BiH. Following the independence of Montenegro, in the period from 2009 to the end of 2015, there were four trials against a total of thirty men accused of war crimes committed on the territory of Montenegro from 1991 to 1999. Only four of those indicted were convicted, all four in one case of crimes in the military prison camp in Morinj, the case Republic of Croatia delivered to Montenegro for prosecution. Twenty-six men were acquitted of all charges in the cases of Morinj, so-called Deportation of refugees, Bukovica and Kaluđerski laz. The reasons why there were not more convictions for war crimes in Montenegro lie in the lack of readiness of the State Prosecutor’s Office and competent courts to adequately implement national and international criminal law that was binding on Montenegro at the time the crimes were committed. This conclusion is based on arguments presented below, which are explained in more detail in the analysis of the judgments in four cases prosecuted in the independent state of Montenegro - Morinj, Kaluđerski Laz, Bukovica and Deportation of Refugees. 1. The defendants were solely accused for direct commission of crimes or ordering commission of crimes. The State Prosecutor’s Office did not use in any indictment the institute of co-perpetration or aiding and abetting, as a form of responsibility of persons at middle to higher positions in the military, police or political hierarchy, nor did it treat such persons as organizers of criminal associations, although in some cases there were grounds for the use of these modes of responsibility. The failure of the Prosecutor’s Office was also in not implementing the institute of command responsibility, involving responsibility of the superiors who knew or had reason to know about the crime and did nothing to prevent or punish it.1 Such approach led to a very limited number of defendants, as no person of a middle or high rank in the military or political hierarchy had been accused and hence also not convicted for war crimes on that basis. 2. Neither the Higher Court in Podgorica, as the first-instance court, nor the Appellate Court of Montenegro, in the second instance, used their authority to examine potential forms of responsibility that were not present in the indictment. 1 For more details please see the next chapter Legal Principles. 3 The court is not bound by the prosecutor's proposals regarding mode of responsibility2, and therefore has the right to, for example, convict as an aider and abettor the person who has been indicted as a perpetrator. This kind of passivity of the Higher Court and the Appellate Court particularly came to the forefront in the Morinj case. Also, the court refrained from legally characterising the facts presented in the indictment, that it itself had established, and that clearly indicated the acts of an offense additional to the one the State Prosecutor’s Office highlighted in the indictment (Deportation case), or avoided to modify legal charactersation of the crime (Bukovica case, where the Appellate Court, having found no ground for a conviction of a crime against humanity, could have examined whether the defendants had committed a war crime against the civilian population).3 3. Regarding crimes committed within the armed conflict in BiH, the Appellate Court of Montenegro and Supreme Court of Montenegro upheld the legally unfounded position of the Higher Court in Podgorica (in the Deportation of refugees case) that a war crime may exist only if committed by members of armed forces of parties to the conflict or by those who were "in service" of such parties, and went on to conclude that the accused police officers in the case did not belong to any of the categories, and therefore could not be held responsible for a war crime. In relation to the allegedly required capacity of perpetrators of war crimes, this legal position is arbitrary and has no grounds in domestic or international law. The conclusion that the charged Montenegrin civil servants were not in the service of a party to the conflict in BiH, despite the fact that they handed refugees over to one of the parties to that conflict – the Bosnian Serb army – to be used for the exchange of prisoners of war, is contrary to the facts which the Court itself established as well as elementary logic. This position of the Courts
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