Analysis 27 Sep 16

Serbia’s War Crimes Prosecution at a Crossroads

Serbia’s next chief war crimes prosecutor faces tough challenges - improving a deteriorating case record, dealing with political pressures and satisfying EU demands that are crucial for the country’s accession negotiations.

Marija Ristic, Sasa Dragojlo BIRN Belgrade
The war crimes prosecution office in Belgrade. Photo: BETA.

After ten months without a chief war crimes prosecutor, Serbia may finally choose a new one soon, after the State Prosecutorial Council, the body in charge of pre-selecting prosecutors, made a list of five candidates for the post last week.

It is expected that after government approval, parliament will elect the new head of the War Crimes Prosecutor’s Office by the end of the year, unless it repeats last year’s scenario when MPs failed to agree on who should be the new prosecution chief.

In December last year, two candidates - Snezana Stanojkovic and Dejan Terzic - got the most votes, but not enough to be elected because ruling coalition MPs couldn’t agree on who to support, leaving one of the Serbian judiciary’s key offices in limbo.

According to observers, this further damaged the already fragile institution, which has been suffering from a lack of support and resources, as well as being subjected to political pressure over the last couple of years.

The number of war crimes prosecutions was the lowest for years – in 2014, only four indictments were issued, in 2015, there were no indictments, while in 2016 eight were issued – one was the first ever Serbian case for war crimes in Srebrenica, but the others mostly small-scale crimes with one defendant.

No indictment for war crimes in Kosovo has been issued for three years.

Prosecutors also failed for the first time to attend regional meetings with their colleagues from other former Yugoslav states aimed at boosting cross-border cooperation, which is crucial to ensure prosecutions of suspects living in other countries.

Although other obligations were listed as the official reasons, sources within the War Crimes Prosecutor’s Office told BIRN that they were pressurised not to attend because official policy might change after their new chief is put in place.

At the same time, the War Crimes Prosecutor’s Office - which was once known for its outreach, giving numerous interviews and attending various conferences, and which even got an award for being the most open public office in Serbia - downscaled media appearances to rare interviews given by its acting head, Milan Petrovic.

Political pressure

ICTY prosecutor Serge Brammertz (left) and Vladimir Vukcevic (centre) in Belgrade in 2010. Photo: BETA.

This what many see as the result of political pressure which started long before the disarray over the election of the new prosecutor. The office, which was never seen as truly independent, has been under more pressure in the last couple of years under the government of Prime Minister Aleksandar Vucic.

“That goes without saying with such a position,” Bozo Prelevic, a Belgrade-based lawyer who has worked for a defence in many war crimes cases before the Serbian courts, told BIRN.

Vladimir Vukcevic, the former and so far Serbia’s only chief war crimes prosecutor, ran the office since it was established in 2003 until last year.

Back in 2003, Vukcevic was one of the fresh faces of the new democratic Serbia, when ex-leader Slobodan Milosevic was already on trial for war crimes in The Hague and the country was struggling to respond to demands from the international community to prosecute war crimes locally.

The man in charge of prosecuting such crimes in Serbia had one of the most difficult jobs in the country in recent years: trying to lead an institution dealing with the legacy of the war-torn 1990s in a professional manner.

Vukcevic was recognised both abroad and within the country as someone who had the strength to confront structures that were hiding war criminals, not just those wanted by the International Criminal Tribunal for the Former Yugoslavia, but also those who should have been prosecuted by the local courts in Serbia itself.

Vukcevic was seen as being close to former Serbian President Boris Tadic, who was in office from 2004 to 2012, and was even accused of taking orders from his administration when it came to prosecutions. Tadic even gave him a state honour.

As well as claims that his office was never truly independent and prosecuted suspected criminals according to the government’s agenda, Vukcevic’s critics also accused him of lacking the courage to settle the score with war criminals, or claimed that what he was doing damaged the national interest by only convicting Serbs.

According to Dragan Palibrk, a Belgrade-based lawyer who worked for the defence both in local trials and at the ICTY, the “lobby from abroad” which wanted to see Serb war criminals in the dock was much more influential on the work of the prosecutor than the government in Serbia.

“I think that the foreign element wants to have direct influence on office of the prosecutor, more than politicians in Serbia,” Palibrk told BIRN.

“I think in general, since it was established, the war crimes prosecution has not been doing the job as it should. I have the impression that they were aiming mostly at Serb nationals,” he said.

The prosecution of Serbs was one key criticisms from many within the country, mostly those in nationalist circles.

Tabloid newspapers also often targeted the chief prosecutor and his advisers as ‘traitors’ who were taking orders from foreign embassies.

After some of these front-page accusations, people working in the prosecution received threats, some of which targeted their families, while the chief prosecutor was even guarded by the police for some periods.

The threats increased in 2014 after several politicians, mainly from Vucic’s ruling Progressive Party, publicly accused the prosecution of working for foreigners.

Milorad Drecun, who at the time was an MP, claimed that the prosecution was operating on behalf of US interests and was a tool of Tadic’s Democratic Party.

This political pressure continued when justice minister Nikola Selakovic stated in December 2014 that “there is a feeling that prosecutions for crimes against Serbs are absent”. This came after then prosecution arrested Serbian citizens for crimes allegedly committed in Bosnia and Herzegovina.

The most open criticism of the office came from the president of Serbia, Tomislav Nikolic, after the prosecution announced it could possibly investigate crimes allegedly committed in Kosovo in 1999 by a unit led by current Serbian Army chief-of-staff Ljubisa Dikovic. The bodies of the Kosovo Albanian victims were found in 2014 in Serbia after prosecution launched excavation.

Nikolic warned that “Vukcevic needs to pay attention to what he is digging up in Serbia”, accusing him of working in the interests of the ICTY, not those of Serbia.

The current government has also openly showed support for convicted war criminals.

In 2015, several ministers staged a hero’s welcome for Vladimir Lazarevic, a former Yugoslav Army officer who had been released after serving his sentence for war crimes committed during the Kosovo campaign.

After sending a government plane to pick Lazarevic up from The Hague, justice minister Selakovic praised his efforts to ‘save’ Serbia.

All these moves were condemned abroad, by the Council of Europe commissioner for human rights and the ICTY, but at home, Prime Minister Vucic remained silent, which for many signalled approval for the behaviour of his closest associates.

Poor results

Since it started working in 2003, the War Crimes Prosecutor’s Office has secured the convictions of 72 people in 45 cases. At the moment, there are 15 war crimes cases ongoing before Higher and Appeals courts in Belgrade, while 14 further cases are in the investigation phase.

“The bad news is not that the situation is bad, but the fact that it is worse than it was four or five years ago,” Ivan Jovanovic, a Belgrade-based transitional justice expert and former head for war crimes at the OSCE mission to Serbia, told BIRN.

“The number of indictments is getting lower, year by year, indictments are issued on poor evidence, and those indicted are only low level perpetrators,” he added.

No army or police general has ever been indicted. According to an OSCE report published last year, none of the defendants prosecuted in Serbia so far held “high-ranking positions at the time of the offences”, while only ten per cent of them were medium-ranking.

The report also said that most of the 27 cases focus on more minor incidents - 40 per cent of the cases involve three victims, while four cases involve killings of 100 people or more, and another four involve the killing of 50 or more.

What next?

Nela Kuburovic (second from right) with Nikola Selakovic (centre). Photo: Justice Ministry.

In an interview with newspaper Politika, Nela Kuburovic, Serbia’s new justice minister, pledged that parliament will pick the new war crimes prosecutor at its upcoming autumn sitting.

The candidate rated most highly by the State Prosecutorial Council is Snezana Stanojkovic, who at the moment works as the deputy war crimes prosecutor at the War Crimes Prosecutor’s Office.

In the programme that Stanojkovic put forward when she applied for the job, she mainly pledged to prosecute war crimes committed against Serbs - mostly those in Croatia and Kosovo.

She also advocated holding trials in absentia, which many see as a bad move because resources will be wasted on defendants who will not appear in court and Croatia will be further antagonised if more of its nationals are convicted in Belgrade.

The second-ranked hopeful is the current acting head of the War Crimes Prosecutor’s Office, Milan Petrovic, followed by Dejan Terzic, Milorad Trosic and Djordje Ostojic, who are all lawyers and judges.

BIRN sources close to the government have suggested that Stanojkovic is the administration’s favourite for the position.

But according to Gojko Pantovic from the Belgrade Centre for Human Rights, the way Serbia currently selects the prosecutor opens the way for politicians to exert influence over the position.

“The current procedure for selecting prosecutors allows for less qualified candidates to be elected and also leaves space for political influence,” Pantovic told BIRN.

He further explained that according to the current legislation, the government does not necessarily have to propose to parliament the candidate who got the best marks from the State Prosecutorial Council.

The government can also pick those with the lowest marks and doesn’t need to explain to parliament what kind of criteria it applied, which according to Pantovic undermines the Council’s role as an expert pre-selector.

Whoever gets elected to the post already has a full agenda ahead of them.

The government made significant pledges to improve its record in the strategy for war crimes prosecution that was adopted in February this year. The prosecution office has also been urged to adopt its own investigation strategy, and has already missed the deadline set by the EU as part of Serbia’s accession negotiations.

Serbia’s further progress in the EU negotiations, especially within Chapter 23, the section that covers the rule of law, will be partly assessed on the basis of how successful the War Crimes Prosecutor’s Office will be in dealing with violations committed during the 1990s wars.

Serbia will also have Croatia on its back, as Zagreb is still threatening to block Belgrade’s progress in the EU talks if it does not change a law that gives it universal jurisdiction over war crimes committed in the former Yugoslavia. Zagreb fears this will be used to target Croats.

At home, the new prosecutor needs to deal with a number of complex cases, like the one for crimes committed in Srebrenica, which defence lawyers have already claimed is based on poor evidence.

It also needs to finally launch several new cases – prosecutions for the murders of three Albanian-Americans after the Kosovo war, and for the killings of 300 Albanian civilians in the village of Meja in Kosovo during the 1999 conflict.

But more importantly, it needs to secure genuine support from the government so it can get the personnel and resources that it needs to do its job.

The new chief prosecutor’s actions will be closely scrutinised by Brussels, but in order to fulfill the EU’s demands, serious domestic challenges will have to be overcome first.

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