Serbia 2016 Report – The Humanitarian Law Center’s Contribution 1. Prosecution of War Crimes 1.1. Lack of cooperation with the ICTY More than one year after the International Criminal Tribunal for the former Yugoslavia (ICTY) issued an indictment for contempt of court and an arrest warrant against three officials of the Serbian Radical Party, Serbia hasn’t complied with the order to arrest the three individuals. Petar Jojic, Jovo Ostojic and Vjerica Radeta are charged with threatening, intimidating, bribing and otherwise tampering with the witnesses in the case against Vojislav Seselj.1 By not acting upon the ICTY’s requests Serbia fails not only to implement its obligations towards the ICTY and its own law, but also towards the Stabilisation and Association Agreement between Serbia and the EU (SAA). The SAA states that “Respect for democratic principles and human rights (…) respect for principles of international law, including full cooperation with the International Criminal Tribunal for the former Yugoslavia (…) shall form the basis of the domestic and external policies of the Parties and constitute essential elements of this Agreement”.2 The lack of cooperation with the ICTY was highlighted in the latest ICTY’s Annual Report to the UN General Assembly with the finding that “Serbia remains obligated to cooperate in transferring custody of individuals to the International Tribunal for the Former Yugoslavia.”3 1.2. Domestic prosecutions of war crimes The key issue in the prosecution of war crimes in Serbia lies in the lack of political will. The Office of the War Crimes Prosecutor (OWCP) deals with political pressure and threats, while government officials provide public support to the convicted individuals and present them as role models to future generations.4 Evidence and information in the possession of non-governmental organizations relating to the responsibility of high level military officials relating to the war crimes committed in Kosovo face an avalanche of condemnation, denial, and threats coming from the highest levels of political authority.5 1 “Petar Jojić, Jovo Ostojić, and Vjerica Radeta charged with Contempt of Court”, press release, ICTY, 1 December 2015, available here. 2 Stabilisation and Association Agreement between the European Communities and their Member States of the one Part, and the Republic of Serbia, of the other Part, Article 2. 3 Report of the International Tribunal for the Former Yugoslavia, ICTY, pg. 12, section 47. 4 “Victims Mocked by Government Reception for Lazarević”, press release, Humanitarian Law Center, December 2015, available here. 5 “Serbia’s Leaders Find New ‘Enemies Within’”, article, Balkan Insight ,February 2015, available here . In February 2016 the Government of Serbia adopted the National Strategy for the Prosecution of War Crimes for the period 2016-2020. The Strategy does recognize some key shortcomings in the work of the institutions regarding war crimes prosecution and stipulates certain good solutions to overcome them. Yet, it fails to determine the key measures to reach the primary goal, which is the more efficient prosecution of war crimes. For example, numerous parts of the draft are not precise and concrete enough, leaving space for reinterpretation of the obligations of the public authorities and of the expected results; the Strategy does not stipulate concrete measures to correct the chronic problems in the work of the Witness Protection Unit. The most problematic part of the strategy is the one which states that the capacities of the institutions specialized for war crimes shall be limited by government austerity measures. There is reason to fear that the strengthening of the OWCP and other institutions and thus the effectiveness of prosecution of war crimes will remain under the direct influence of the executive, that is, the Ministry of Justice, because of the austerity measures. It is of crucial importance to regularly monitor the implementation of the Strategy in order to assure that its implementation is consistent with measures provided for in other relevant documents, especially with regard the capacities of specialized institutions. The result of twelve years of trials before the courts in Serbia is only 50 finally convicted individuals, despite the existence of hundreds of unresolved cases. Only one indictment for war crimes has been confirmed since November 2015 (not a single one during 2015). There are still no indictments against high ranking officers, and command responsibility has not yet been applied in a single case. Despite the EC’s recommendation that “measures should be put in place to preserve the extensive judicial experience acquired in processing (…) complex cases”6, Serbia continued to weaken the capacities of courts by frequently changing the constitution of the trial chambers. In November 2015 Judge Bojan Mišić was reallocated from the Department for War Crimes to the first instance Criminal Department of the Higher Court in Belgrade. This was done through the annual allocation of judges for the year 2016 which was issued by the President of the Higher Court in Belgrade. At the time of the decision on reallocation, Judge Mišić was a member of trial chambers in five cases of war crimes. Bearing in mind the fact that there are six judges in the Department for War Crimes, these frequent changes of judges are delaying the proceedings, since the new judges have had to get acquainted with the cases, and affecting the quality of the trials. Although it is indisputable that the court president determines the annual allocation of judges’ in accordance with the Law on Organisation of Courts and Court Rules, in doing so, his decisions must not be contrary to the Law on War Crimes, which stipulates that the time of allocation of judges in the Department for War Crimes is explicitly for six years. 6 Serbia 2015 Report, pg. 19, European Commission, november 2015. The efficient prosecution of war crimes entails adequate witness protection and victims' support. Witness protection system was subject to criticism in seven previous European Commission's Reports on Serbia (2009, 2010, 2011, 2012, 2013, 2014 and 2015) and four European Parliament's Resolutions on Serbia (2011, 2012, 2013 and 2014), as well as other relevant international authorities (Council of Europe, UN Committees). Despite all of this, nothing has been done in Serbia regarding the reform of the witness protection mechanisms, which would provide a secure environment and encouragement for delivering information about the crimes committed. On the contrary, witnesses are being intimidated and deterred from testifying, and there is also an instance of a lawsuit filed against a former protected witness due to alleged threats he sent to the prosecutor for war crimes.7 The lack of support coming from the institutions, which are responsible for the prosecution of war crimes and the lack of adequate protection by respective bodies, send a message to other potential witnesses that the information they possess is not welcome. A particularly vulnerable group of witnesses is composed of the victims of sexual abuse. As there are no special measures to protect victims of sexual violence, they are subject to the usual procedural witness protection measures. Owing to the nature of these crimes and the consequences they have for victims, Serbia should adopt special measures to protect victims of sexual abuse, including i) the prohibition on accepting the earlier sexual conduct of the victim as evidence in the proceedings; ii) a rule of evidence whereby corroboration by other evidence is not necessary for proving rape; and iii) the rule that the consent of the victim is not grounds for a defendant's exemption from liability, if the victim feared for herself or a person close to her. 1.3. Regional Cooperation in War Crimes Prosecution Bearing in mind the regional nature of the armed conflicts in the former Yugoslavia, cooperation between the institutions responsible for the prosecution of war crimes represents a prerequisite for establishing justice for crimes committed during 1990's. Victims and perpetrators are in different states today and the prosecution is thus impossible without cooperation - transfer of documents, exchange of information, and joint investigations. The proof of this is the operation in which suspected perpetrators of the kidnapping in Štrpci were arrested and which was preceded by cooperation between the prosecutions and police authorities of B&H and Serbia.8 Yet, based on regional cooperation, the OWCP processed only the more simple cases with a small number of defendants. In order to make regional cooperation in the prosecution of war crimes fruitful, it is necessary to have it improved by amending the existing cooperation agreements in order to establish joint investigation teams and provide information regarding the proceedings initiated against the citizens of the other state and enforcement of the agreements signed. 7 “Former protected witness accused”, Radio Free Europe, November 26th 2015, available here (in Serbian language only). 8 “Serbia, Bosnia Arrest 15 in War Crimes Swoop”, article, Balkan Insight, December 5th 2014, available here. Recent developments in relations between Serbia and Croatia with regard to the implementation of the principle of universal jurisdiction represents the clear sign of the urgency for strengthening the mutual understanding, cooperation and assistance. If ignored, they can result in slowing down the dynamic and the scope of mutual cooperation