Action to Combat Impunity in Serbia: Options and Obstacles Impunity Watch ACTION TO COMBAT IMPUNITY IN SERBIA: OPTIONS AND OBSTACLES Editors: Impunity Watch For editors: Ljiljana Hellman An Impunity Watch Publication www.impunitywatch.org Impunity Watch – Serbia Partner organizations Humanitarian Law Lawyers’ Committee Helsinki Committee Youth Initiative for Centre for Human Rights for Human Rights in Serbia for Human Right ISBN: Design: Ontwerpburo SUGGESTIE & ILLUSIE Cover photograph: PotoKari, mass grave, Srebrenica, victims by Jehanne van Woerkom Financial support provided by: First edition: December 2008 © Impunity Watch 2008 T’GoylanT’Goylaan 15 15 Utrecht Netherlands www.impunitywatch.org Contents: About Impunity Watch 5 Acknowledgements 6 Introduction 7 I Research methodology 7 II Summary of the historical and social-political framework 8 The Right to Truth 18 I Overview of the process to date of securing the right to truth 18 II Identification of obstacles and evaluation of the political will to secure the right to truth 25 The Right to Justice 38 I Summary of the process to date of securing the right to justice 38 II Identification of obstacles and evaluation of the political will to secure the right to truth 43 The Right to Reparation 49 I Summary of the process to date of securing the right to reparation 49 II Identification of obstacles and evaluation of political will for securing the right to reparation 49 Guarantees of Non-Recurrence of Crimes 53 I Summary of the process to date of securing guarantees of non-recurrence of crimes 53 a) Special measures to guarantee non-recurrence of crimes 53 b) General measures to guarantee non-recurrence of crimes 56 II Analysis of guarantees of non-recurrence of crimes and identification of obstacles 62 a) Analysis of special measures to guarantee non-recurrence and identification of obstacles 62 b) Analysis of general non-recurrence measures and identification of obstacles 65 Conclusions 69 Recommendations 72 Annexes Annex I - Glossary 75 Annex II - Participants in the discussion groups to formulate Impunity Watch recommendations 77 Bibliography 80 4 action to combat impunity in serbia: options and obstacles 1 About Impunity Watch Impunity Watch is an international research and policy initiative which seeks to contribute to the reduction of impunity for gross violations of human rights in post-conflict countries, where impunity constitutes a threat to sustainable peace and the (re)construction of the democratic rule of law. Impunity Watch’s work is composed of three distinct intervention strategies. The first is to research and rigorously analyse the factors that influence impunity, particularly in post-conflict countries, employing a specially designed methodology. Secondly, on the basis of its research findings, recommendations and public policy proposals are formulated in consultation with a wide-range of key actors involved in the topic. Lastly, Impunity Watch conducts lobbying and advocacy at national and international levels to promote the implementation of the recommendations proposed. The research findings also provide the basis for monitoring systems that measure advances and setbacks in the struggle against impunity, and state compliance with legal obligations related to truth-seeking, justice, reparation and guarantees of non-recurrence. One of Impunity Watch’s fundamental goals is, using the methods described, to support and strengthen the work of civil society organisations and the wider circle of domestic actors engaged in the struggle against impunity in selected countries, through joint work and the strengthening of national capacity for research, public scrutiny, making policy and advocating its implementation. Impunity Watch was founded in 2005 as a project of Dutch non-governmental organisation Solidaridad, and became independent as the Impunity Watch Foundation in 2008. Impunity Watch is currently running pilot projects in Guatemala and Serbia, where these different strategies are being implemented simultaneously. These apparently dissimilar countries were selected with the intention of demonstrating the global usefulness of Impunity Watch’s methodology in different political and social contexts. In addition, working with similar methodological parameters in different contexts provides a foundation for structured exchange on diverse experiences of impunity and successful strategies used by state and civil society actors to combat it. Serbia was chosen because of the problem of impunity for crimes committed during the wars on the territory of the former Yugoslavia in the 1990s. This choice was further justified by the verdict of the International Court of Justice (ICJ) which found Serbia in violation of the Convention on the Prevention and Punishment of the Crimes of Genocide (Genocide Convention) because of its failure to prevent and punish the commission of this crime in Srebrenica in 1995.1 Impunity Watch has completed the research and policy-making phase of its project in Serbia in partnership with four civil society organisations, the Youth Initiative for Human Rights (YIHR), the Lawyers’ Committee for Human Rights (YUCOM), the Humanitarian Law Centre (HLC) and the Helsinki Committee for Human Rights in Serbia (HOS). These organisations have years of experience and a prominent role in dealing with the problem of impunity in Serbia from various aspects. 1 International Court of Justice, Verdict, BiH vs. SCG, Dispute regarding the implementation of the Convention on the Prevention and Punishment of the Crime of Genocide, 26 February 2007. action to combat impunity in serbia: options and obstacles 5 2 ACKNOWLEDGMENTS This report was written by Ljiljana Hellman, coordinator of the Impunity Watch project in Serbia, based on research and analysis carried out by researchers and analysts from the YIHR – aslav LaziI, Miroslav JankoviI and Dragan PopoviI; the HLC – Bojana VujoševiI, Ivan StojanoviI and Sandra OrloviI; YUCOM – Biljana KovaKeviI-VuKo, Lena PeliI, Novak VuKo and Milan AntonijeviI; and the HOS – Sonja Biserko, Mileva JuriI and Stipe Sikavica. We extend our gratitude to the consultants who provided expert analysis for the purpose of this research: Dejan AnastasijeviI, Marijana Toma, Jelena MiliI and Slobodan PetronijeviI. We owe great gratitude to Argument, the agency which prepared the Study of Perceptions of Transitional Justice in Serbia, and especially to the Fund for an Open Society and the OSCE Mission in Serbia for supporting this, as well as the round of policy consultations based on the results of our research. For supporting the entire process of research, analysis and preparation of this report, we also thank Solidaridad, Cordaid and HIVOS. We owe special gratitude to Ivan JovanoviI and Jelena StevanKeviI from the OCSE Mission who joined us in many phases of our work, both on the study and on the report as a whole. We thank everyone who, by speaking to our researchers, facilitated this research, especially the Supreme Court of Serbia, the Belgrade District Court, the War Crimes Prosecution, the Ministry of Justice , the national Public Prosecutor’s Office, the Prosecutors’ Association, the Commissioner for Information of Public Importance, the Ombudsman’s Office, the Judicial Training Centre, former members and employees of the Commission for Truth and Reconciliation Ljubomir DimiI, Gordana RistiI, Radovan BigoviI and Slavoljub ukiI; eminent experts in the fields relevant to our research – Dragoljub TodoroviI, a lawyer who has represented the victims in almost every domestic war crimes trial, Rajko DaniloviI, the lawyer for the family of Prime Minister inTiI in the trial of his assassins; former high state officials Vladan BatiI, Nenad MiliI, Vladimir PopoviI and Milan St. ProtiI; eminent professors and law experts Vesna RakiI-VodineliI and Vojin DimitrijeviI; one of the most respected intellectuals in Serbia, historian Latinka PeroviI; well-known journalists and analysts Jovan DuloviI, Miloš VasiI and Filip Švarm; director of the Belgrade Historical Archives, historian Branka Prpa; forensic medicine experts Dušan DunjiI and Oliver StojkoviI; and former director of the International Commission on Missing Persons (ICMP) Belgrade office Ana Kron. We owe our special gratitude to our colleague, the great journalist and analyst Ana Uzelac, one of the authors of the Perception Study, who made a great contribution both during the research process and the creation of this report. Finally, we extend our gratitude to Impunity Watch’s core team in Utrecht – Susan Kemp, Anna McTaggart and, in particular, Executive Director Marlies Stappers - for their immense support. 6 action to combat impunity in serbia: options and obstacles 3 INTRODUCTION I Research methodology Over recent decades, awareness has steadily grown that it is only by combating impunity for past grave crimes under international law that sustainable peace, a modern society and a state based on the rule of law can be established. The establishment of ad hoc international tribunals for the former Yugoslavia and Rwanda2, followed by the founding of the permanent International Criminal Court (ICC)3 represented a revolutionary turning point in the combat of impunity. One might say that the foundations of combating impunity were laid in 1997 when, on the request of the United Nations Subcommittee on the Prevention of Discrimination and the Protection of Minorities, Louis Joinet summarised existing international standards relating to impunity as the Principles for the Protection