“This brochure was made possible with financial support provided by the United States Agency for International Development (USAID) through the Institute for Sustainable Communities (ISC). The opinions expressed herein are those of the author(s) and do not necessarily reflect the views of ISC, USAID and/or the US Government.”

The newsletter through ACCESSION towards JUSTICE will address the theme of obstacles to and solutions for establishing the rule of law and accountability for the crimes committed in our recent past. 2/2014 Also, it will seek to affirm, in the context of the EU accession talks, individual and societal needs arising from that experience.

Transitional Justice Should [ ] Be Part of ’s Accession to the EU

David Tolbert, President, International Center for Transitional Justice

he European Union has played a Tpivotal role over the last decades to ensure respect for human rights and the rule of law in a long list of new member states running from the Baltic to the Aegean. It has done so by requiring candidate states to undertake difficult reforms, includ- ing tackling past and present human rights abuses. Serbia, which now is a candidate for EU membership, has much to do in addressing a long and troubling legacy of human rights vio- lations before it can claim the prize of In order to meet the EU’s high standards EU membership. on the rule of law and human rights,

1 Serbia must take this opportunity to his Croatian and Bosnian counterparts, address the legacy of the recent past in allowing for cross-border cooperation which Milosevic’s regime and the insti- in investigation and prosecution of war tutions under its control were involved crimes. in some of the most notorious crimes We should not gainsay these accom- committed in Europe since the Sec- plishments, but there is a great deal ond World War. Given Serbia’s past, the more that needs to be done to demon- European Union has an opportunity if strate a genuine commitment by the not an obligation to ensure that tran- Serbian government to an honest and sitional justice approaches are one of responsible reckoning with the crimes the key elements in the negotiations on of the past and justice for the victims. Serbia’s accession, even as the EU works to develop a comprehensive policy on The initial progress made in prosecut- transitional justice itself. ing war crimes has been undermined by serious concerns regarding witness in- Serbia has made some progress in trying timidation and the influence of political to deal with the legacy of crimes com- factors in some cases. For example, the mitted during the conflict in the former highly respected human rights advocate Yugoslavia, including in Croatia, Bosnia Natasa Kandic, who was supportive of, and Herzegovina, and Kosovo. These and helpful to, the prosecutor’s work efforts are primarily the results of vigor- previously, has recently publicly ac- ous efforts by Serbian civil society and cused the prosecutor’s office of intimi- organizations such as the Humanitar- dation of protected witnesses. Earlier, an ian Law Center, the Helsinki Committee arrest warrant issued by the prosecutor for Human Rights in Serbia, the Youth against a former Bosnian government Initiative for Human Rights and others. official was thrown out of a London It is organizations like these that have court on grounds of being politically led the way in championing initiatives motivated. In addition, there is a trou- like RECOM – a campaign to establish a bling apparent lack of willingness on regional truth commission to establish the part of the war crimes prosecutor to facts about all victims of the massive open or properly support investigations crimes committed in the former Yugo- against senior officials of the former slavia between 1991 and 2001. regime, who have been implicated as al- Moreover, the tireless advocacy of these leged co-perpetrators in the judgments groups have led to a process in which a of the International Criminal Court for number of war crimes trials were held the Former Yugoslavia. These are all in ’s District Court, including worrying signs for all who had high those against Serbian citizens for crimes hopes that Serbian judiciary has the ca- committed across the Serbian border. pacity and the intent to hold war crimes The work of these civil society groups in trials in accordance with international providing support to witnesses coming standards. from Croatia, Bosnia and Kosovo has The situation does not look much bet- been crucial to the success of a number ter on other fronts that are important of these prosecutions. for accountability and address victims. In another positive step, agreements Reparations to victims of crimes com- have been reached between the state mitted by Serbian forces are not even on prosecutor for war crimes of Serbia and the table. On the contrary, the law that

2 regulates the right of victims to repara- initiative is very welcome, as is the lan- tions dates back to Milosevic’s reign guage of support for war crimes trials in and stipulates that only the victims of its progress report on Serbia’s accession. “enemy forces” are entitled to repara- tions. This leaves out not only scores of However, the opportunity to fully inte- victims from outside Serbia who have grate transitional justice into the acces- suffered at the hand of its forces, but sion negotiations should not be missed also Serbian citizens like the families of by the EU. It is too important for both victims in Strpci case, for example. This Serbia and the EU itself. The rationale hardly sends a message that Serbia is for such a course of action is clear. The ready to abide by international prin- EU has been here before: its policy of ciples which call for victims’ right to a conditionality in relation to the coop- remedy and for reparations. eration of Balkan states with the ICTY was the principal catalyst for all fugi- Much remains to be done in the reform tives being transferred to the ICTY’s and of Serbian security sector and other state thus facing the bar of justice. This policy institutions. There are many officials proved that Serbia as well as other Bal- who have served in the former regime kan states can deliver on justice when it in positions of power, who retain sig- is clear that the EU so requires. nificant influence in state institutions today. One of the most blatant examples From another point of view, the inclu- is the ongoing presence of members of sion of transitional justice in the ac- the notorious Special Operations Unit cession talks is important for the EU (JSO) in the Witness Protection Unit, itself as it works to develop a Policy on which is mandated to provide security Transitional Justice. In addition, it has to witnesses and insiders testifying an extremely important role to play in about the crimes that JSO members, supporting transitional justice processes among others, have committed. What across the world. It should start by ap- kind of protection can such witnesses plying this policy in its own accession expect and what justice can victims ex- processes. This would send a clear signal pect from institutions manned by those of the EU’s position. Moreover, it would people? be difficult to imagine that the EU could Clearly, Serbia has much hard work to effectively champion these principles in do in these areas, but it is unlikely to other countries outside its union, such accomplish its tasks without the sup- as the countries of the “Arab Spring”, port and the pressure of the EU. The for example, if it chooses not to make EU’s continuing support for the RECOM them a priority at its doorstep.

Send us your comments twitter.com/@FHPHLC #towardsJUSTICE [email protected] 3 [ news ]

A state that their willingness to take initiative. The Ombuds- part in promoting the man’s representative also does not care initiative and suggested added that he was unable for war that the Office for Hu- to do anything to help the victims man and Minority Rights initiative in a personal should also be invited to capacity. The Ombudsman, the participate. In April 2013, Office for Human and representatives of the The fundamental rights Minority Rights and the HLC, the Deputy Ombuds- of civilian victims of war Commissioner for Pro- man and the director of and civilians disabled as tection of Equality have the Office for Human and a consequence of the war pulled out of the initiative Minority Rights agreed to in Serbia are regulated by for the adoption of a new set up an expert working the Law on the Rights of Law on Civilian Victims group in October 2013 to Disabled Civilian Victims of War, which would draft a new law, and the of War (‘Official Gazette recognise the rights of HLC undertook to prepare of the Federal Republic all the citizens of Serbia a comparative analysis of Yugoslavia’ no. 52/96). who were victims of war of the law and proposed The outdated provisions crimes and other grave amendments. In July 2013, of this law discriminate human rights abuses, The HLC completed its against a large number committed in connection analysis and submitted it of civilian victims of with the wars fought in to the Office and the Om- wars and human rights the 1990s. budsman. The only feed- violations committed in back the HLC had received connection with the wars, The Ministry of Labor, by February 2014 was that including the families of Employment and So- a review of its analysis was the missing, victims of cial Policy, the authority under way. sexual violence, victims responsible for imple- of crimes committed by mentation of this law, felt At a meeting held between Serbian forces, or Ser- no need to amend the HLC representatives and bian citizens who due to proposals, so, in 2012, a representative of the a combination of factors the Humanitarian Law Ombudsman on 20th Feb- lost their lives on the ter- Center (HLC) launched ruary 2014, the HLC was ritory of other countries. an initiative to have it ad- informed that institutions The rights guaranteed by opted. The initiative was involved are no longer this law to those rare vic- endorsed by the Commis- willing to support the ini- tims whose victim status sioner for Protection of tiative and that they had has been formally recog- Equality, Nevena Petrušić, not been in contact with nized include very mod- and the Ombudsman, Saša the Office for Human and est allowances (awarded Janković, who expressed Minority Rights about the only to poor victims),

4 access to health care, lim- It is worth bearing in 1990s. Numerous chal- ited access to free public mind that aligning its leg- lenges, such as the pau- transport passes and a islation with the EU law is city of war crimes trials, few other largely insig- one of Serbia’s two main the impunity enjoyed by [ ] nificant rights. The dig- obligations under the high-ranking army and nity of victims is further Stabilisation and Associa- police officers, the absence degraded by the bureau- tion Agreement, which of a vetting process in cratic procedure put in entered into force on 1st security sector agencies, place by the administra- September 2013. the laws that discriminate tive authorities for neces- against victims of war, and sary for the recognition of the absence of reparation mechanisms for victims, those rights. UN Special Rapporteur seriously undermine the The European Union on Transi- prospects for transitional legislation (Council Di- justice in Serbia and also rective 2004/80/EC of 29 tional Justice the process of reconcilia- April 2004), in contrast, invited to tion in the region. The visit does not discriminate visit Serbia by the UN Special Rappor- against victims on any teur and his subsequent grounds and stipulates The Coalition for Access recommendations would that victims are entitled to Justice invited Pablo de provide a valuable guide- to compensation even if Greiff, the United Nations line for Serbian and EU they have suffered harm Special Rapporteur on the institutions on how to put in place an institutional in a country other than promotion of truth, justice, framework which will pro- that from which they reparation and guarantees mote the rights of victims seek compensation, or if of non-recurrence, to visit and the society in respect the offenders cannot be Serbia, in order to make to the legacy of crimes. identified or prosecuted, recommendations to the or if the offenders lack regarding the measures the necessary means to Anonymiza- compensate the victim. which will help achieve The Directive also stipu- justice for victims of war tion of crimes and other gross hu- lates the establishment of Judgments man rights violations com- compensation schemes in Cases of mitted during the 1990s in at a national level and the former Yugoslavia. War Crimes between countries. The is Illegal Serbian law has been The opening of the EU criticized by both the accession talks with Serbia The Commissioner for UN Committee Against provide a historic oppor- Information of Public Torture and the Council tunity for Serbia to under- Importance, acting upon of Europe Human Rights take comprehensive and an appeal filed by the HLC, Commissioner, and, ad- concrete steps towards has found that the prac- ditionally, the law is not implementing transitional tice of anonymization of aligned with EU legisla- justice mechanisms aimed judgments (redacting per- tion (acquis communau- at addressing the grave sonal information from taire) in the field. legacy of the wars of the judgments) is in violation

5 of the Law on Free Access together with other stated that it had not to Information of Public members of the Yugoslav been possible to clearly Importance and the Law Army’s 177th Military Ter- determine which units on Personal Data Protec- ritorial Detachment, was carried out the attack in tion. The Commissioner indicted by the Office of Kukurovići because “the issued an order to the the War Crimes Prosecu- village is located in the Higher Court in Belgrade tor (OWCP) for the mur- tri-border area of Serbia, to deliver to the HLC the der of at least 46 Albanian Montenegro and Bosnia judgment without unlaw- civilians in the village of and Herzegovina” and be- ful anonymization. Ljubenić (in the Munici- cause the OWCP was still pality of Peć) on 1st April conducting pre-trial pro- The Commissioner, 1999 (the Ljubenić case), ceedings and collecting delivering his Decision, the forcible relocation particularly stressed information concerning of women, children and that this was a case of a the perpetrators. More- elderly to Albania, the judgment for war crimes, over, the Court of Appeal burning of houses and and that the intention ignored the testimonies intimidation of civilians. of the Commissioner in given by village residents the original ruling was and eye-witnesses about the YA attack on the vil- certainly not to protect Courts con- the names of the accused, lage and the three camps but only certain items tinue to that the YA set up in and of personal information, shield state around the village, the di- such as unique personal institutions rection from which mor- identification numbers tar and infantry gunfire and addresses. The Com- from respon- was coming on the day missioner also stated that sibility for in question, and about the publication of the war crimes the Muslim residents of names of the accused in Kukurovići being exposed the judgment would not The Court of Appeal in on a daily basis to mis- represent excessive pro- Belgrade has quashed treatment, physical abuse, cessing of personal data, an interim judgment and threats from Užice forbidden by the law. of the Higher Court in Corps members solely Belgrade, which found on the grounds of their the Yugoslav Army (YA) ethnicity, in the period Gendarmery responsible for a war preceding the attack. officer sus- crime that occurred in the village of Kukurovići In its ruling, the Court pended on 18th February 1993, of Appeal also dismissed In response to a request and remanded the case the view of the Higher submitted by the HLC to for retrial. In doing so, the Court that the statute the Gendarmery in De- court has shown that the of limitations had been cember 2013, Gendarmery practice of shielding state suspended in this case, a officer Vladan Krstović institutions from respon- decision that would have has been suspended from sibility for past human allowed the residents duty until the completion rights violations contin- of Kukurovići to claim of criminal proceedings ues. In its written judg- compensation from the against him. Krstović, ment, the Court of Appeal Republic of Serbia.

6 Indictments against [ ] commanding officers still on hold

Nemanja Stjepanović, Sense Agency Journalist

“Why wouldn’t you let us prosecute our presidents and generals ourselves, instead of delivering them to The Hague,” is the question that has been asked countless times since the estab- lishment of the International Criminal Tribunal for the Former Yugoslavia. As time has proven, the answer is indeed very simple – because we are incapable of it. Whether it be because of the lack of political will, or deficient statutory solutions or something else, it does not really matter. What matters is that the Serbian judiciary has not yet indicted any high-ranking Serbian politician, against police and army members. This army or police officer for war crimes conveys the impression that the crimes offences. were committed by ‘renegade individu- Since the end of the last conflict on als’ and ‘uncontrollable groups’, without the territory of the former Yugoslavia orders from or the knowledge of their in 1999, practically all political options superiors, and, most importantly, that and major parties have been in power, the country’s most senior leaders played but none of them has shown the de- no part in them. termination necessary to tackle the However, judgments from the Hague issue of prosecuting mid-ranking and Tribunal have proved such a conclu- high-ranking politicians and police and sion wrong. For example, several senior army officers for war crimes. Instead, government, military and police officials one government after another overtly or – former Deputy Prime Minister of the tacitly signaled to the judiciary that they Federal Republic of Yugoslavia (FRY), were satisfied with its work, as long as Chief of the General Staff of the Yugo- there were no indictments or judgments slav Army, Dragoljub Ojdanić, former implicating Serbian state institutions’ in Deputy Minister of the Interior, Vlasti- war crimes. mir Đorđević (who committed suicide It appears that the Belgrade Office of before proceedings could be brought the War Crimes Prosecutor understood against him), army generals Nebojša these signals correctly and brought Pavković and Vladimir Lazarević, and charges almost exclusively against the the Head of the Serbian Ministry of direct perpetrators, mostly members Internal Affairs Staff for Kosovo, Sreten of paramilitary units, and only rarely Lukić – have been finally convicted

7 by the tribunal for crimes committed Prosecutor has not yet brought any in- against Kosovo Albanians. The tribunal dictments against mid-ranking officers, found that these individuals participated but instead has remained focused on in the campaign of ethnic cleansing in direct perpetrators alone. Kosovo, which was carried out as part It is true that a few indictments have of a joint criminal enterprise led by the been brought in Serbia against some then President of the FRY, Slobodan very senior military officers and political Milošević. A completely different picture leaders, but those from other countries, indeed to that put forward by the Ser- such as, for example Bosnia and Her- bian judiciary. zegovina Army General Jovan Divjak, Thus we have the convictions of of- and a former Bosnia and Herzegovina ficials at the highest level on one side, wartime member of the Presidency, Ejup and those of direct perpetrators on the Ganić. To what extent these indictments other. And between them there exists a were supported by evidence became gap of impunity in which sit higher and abundantly clear when courts in Austria mid-ranking army and police officers, and Great Britain, where these two men in particular commanders of smaller or were arrested on arrest warrants issued larger units that were involved in the by Serbia and sent to Interpol, rejected commission of crimes. That gap can war crimes allegations against them and only be filled if the Office of the War set them free. Crimes Prosecutor brings indictments The indictments against Ganić and Div- against these persons. The judgments jak nevertheless raise interesting issues. of the Hague tribunal and the criminal First, they have shown that there exists complaints already filed by the Hu- a legal basis for prosecuting the most manitarian Law Center alone, provide senior state officials. Further, they have enough material for them to do so. proved false the claim that the Hague tribunal is the only tribunal competent The argument that the Hague tribu- to raise charges against these officials. nal would have also indicted other And most importantly, they have shown politicians and officers had there been that the work of the Office of the War enough evidence against them is noth- Crimes Prosecutor in Belgrade is driven ing but a far-fetched excuse for the by political motives, although this does failure of the Office of the War Crimes not necessarily imply that it is subject Prosecutor to take any actions to that ef- to political pressure. Rather, this can be fect. The Hague has publicly stated, time explained by its own need to ingrati- and again, that due to limited time and ate itself with the general public and material resources, they have not been those in power structures. For, how else able to indict all those who participated can one explain the fact that officials of in war crimes, but are willing to provide other states have been indicted without local judiciaries whatever assistance is credible evidence, while at the same needed, especially in terms of delivering time, and despite an abundance of evi- them the evidence necessary to bring dence against them, not a single Serbian new indictments in Serbia and other senior official has been prosecuted thus countries in the region. Despite be- far? ing well aware of the existence of such evidence, the Office of the War Crimes We should, of course, always bear in

Send us your comments twitter.com/@FHPHLC #towardsJUSTICE 8 [email protected] mind that the job of the Office of the ducting trials at the request of The War Crimes Prosecutor is certainly not Hague. It is now facing a different an easy one, and that each move they challenge – to demonstrate that it has a make, even if it is directed at the lowest judicial system in place that will make it rank of perpetrators, risks provoking an eligible for joining the European Union. adverse reaction among criminal groups There are two possible paths – either and individuals, who are often still part to create a better and more efficient of the state apparatus. Nonetheless, judiciary that will spare no one, or to the job of a prosecutor, an ‘ordinary’ keep haggling with the European Union prosecutor or a war crimes prosecutor, indefinitely, until one side yields. If it is to work in accordance with the law, chooses the first path, its success will irrespective of the resistance he or she surely be judged by the effectiveness of may meet along the way. What better its war crimes trials and its willingness opportunity to demonstrate this than to prosecute high level perpetrators. now, when Serbia is loudly calling for While the responsibility rests upon the punishment of criminals and strict the prosecutor’s office and the judicial adherence to the law? authorities as a whole, different signals Another problem faced by the Office of from the other two branches of power the War Crimes Prosecutor is the fact could certainly have an impact on the that many of those who could be ac- efficiency of war crimes processing, cused of war crimes are still within the especially given the new political cli- army or police forces, political parties mate in which one man and one party or state institutions. But this should be has won overwhelming public support. seen as an additional incentive for pros- A state purportedly determined to take ecutors to purge those state institutions strong actions against those respon- of individuals implicated in war crimes. sible for stealing billions of Euros, ought not to neglect the prosecution of those The state no longer needs to pretend, responsible for the deaths of thousands through war crimes trials or fake war and the expulsion of hundreds of thou- crime trials, that it is capable of con- sands of people.

9 War crimes trials [ – overview ]

Lovas Trnje

Ljuban Devetak and another 13 Pavle Gavrilović and Rajko Koz- persons are being retried for lina are standing trial for a war a war crime against the civil- crime against the civilian popu- ian population. An indictment lation. According to the indict- brought by the OWCP alleges that ment filed by the OWCP, on 25th the accused, at the time members March 1999, the accused, at the of either the Yugoslav People’s time members of the JNA, killed Army (JNA), the ‘Dušan Silni’ 27 Kosovo Albanian citizens in (Dušan the Great) paramilitary the village of Trnje/Terrnje (in unit or local authority forces, the municipality of Suva Reka/ killed 41 Croatian civilians in Suharekë, Kosovo). Lovas, Croatia, in October and November 1991.

The preliminary hearing could not be held as scheduled because some of the accused claimed to be ill and the court ruled that a medical expert should provide an assessment of the health of one of the accused, in order to deter- mine whether he was able to follow the proceedings.

The residents were deported and their homes torched

The preliminary hearing could not be held as scheduled because one of the accused claimed that he was sick, so the court ruled that a medical expert provide an assessment of his health, in order to determine whether he was able to follow the proceedings. House in Lovas, destroyed during the war

10 Beli Manastir

The victims in this case are represented Zoran Vukšić, Slobodan Strigić by two layers from Kosovo. The Presid- and Branko Hrnjak, former mem- ing Judge has challenged their right to bers of the Beli Manastir police [ ] department, are being retried for represent the victims because they are members of the Kosovo Bar Associa- a war crime against the civilian population. An OWCP indictment tion, even though lawyers from Kosovo charges them with taking part in have previously represented victims the murder of four ethnic Croats and accused in several other cases tried near Beli Manastir (Croatia) on before the Higher Court’s War Crimes 17th October 1991. Department. The court sought the Serbian Bar Association’s opinion on this matter, and on receipt of its opin- Neither party presented their closing ar- ion, will issue a final ruling. Should the guments as scheduled because the trial court decide to deny Kosovo lawyers panel decided to re-open the main hear- the right to represent victims, witnesses ing, to re-examine the ballistic expert and victims could be discouraged from and the medical expert and have them taking part in proceedings. review the opinions they gave earlier.

News from the [ European Union ]

The European Commission (EC) has and especially the decision, to remain adopted a new mechanism for address- within its competencies, not least be- ing threats to the rule of law across the cause the Council of Europe, which has European Union, which can be activated been the basic mechanism for address- where there is a systemic threat to the ing infringements of rights, includes rule of law in any of its member states. Russia as a member. The EC wanted to It is not applicable to individual cases exclude non-EU countries, most notably or miscarriages of justice, but only with Russia, from dealing with issues that “systemic threats” to EU values. Accord- have implications for EU member states. ing to European Commission President, Jose Manuel Barroso, the new mecha- The new mechanism comprises a three- nism was needed because in the past, stage process. As a first step, the EC the EC did not have sufficient instru- collects and examines relevant informa- ments to adequately deal with systemic tion and assesses whether a systemic threats to the rule of law in EU member threat to the rule of law exists. If it finds states. Additionally, the EC wanted rule that such a threat does exist, it sends ‘a of law problems in EU member states, rule of law warning’ to the member state

11 in question, giving it the opportunity within the community which candidate to respond. In the second stage, if the countries aspire to join. Its symbolic problem has not been resolved, the EC value may be even greater, because the issues ‘a rule of law recommendation’ in EU has finally put in place a mechanism which it recommends that the mem- for dealing with some very disputable ber state concerned resolve the prob- and legally questionable acts in mem- lem identified within a fixed time limit ber states, which have undermined the and inform the EC of the steps taken. pro-European arguments advanced by In the final stage, the EC monitors the supporters of the Union in prospective member state’s follow-up to the recom- members. Such acts include the con- mendation. If it is not satisfied with the troversial dismantling of French Roma follow-up, the EC can resort to one of settlements in 2012 and the repatriation the mechanisms set out in Article 7 of of their inhabitants; the erection of walls the Treaty of the European Union, which around Roma neighborhoods in 2013 includes, among other things, suspen- in the Slovakian town of Košice, at the sion of the voting rights of that member time a European Capital of Culture; the state in the EU Council of Ministers. undue pressure placed on the judiciary, threats against judges and violation of This new mechanism, although avail- the constitutional order in Romania, able only to the EU member states, is of which led to very sharp words from the relevance to the countries on the road to EU and even threats to suspend Roma- EU membership as well, as it establishes nia’s voting rights in the EU Council of a framework for addressing problems Ministers.

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