By some measures, the War Crimes Chamber has served as an effective complement to the ICTY. Out of its 161 indictees, the ICTY has convicted and sentenced 64 individuals, with 13 acquittals and ongoing proceedings for another 35; the rest of the cases have been transferred to national courts or been withdrawn. The domestic system has indicted 146 individuals. In addition to its 58 final convictions and 10 acquittals, the domestic chamber has handed down another 39 convictions and nine acquittals that are on appeal, according to information provided by the prosecutor's office. Nine cases are at trial, and many more cases are in investigative stages. As a civil law country, Serbia’s cases are decided by three-judge panels, not jurors. Investigative judges also played a key role in guiding investigations in the pre-trial period, until this year, when procedural reforms removed them from the process to make it more prosecutor-driven and efficient. (Vukcevic said the changes already have shown some "positive effects on investigations in terms of improved efficiency.")
It took several years for the final judgments to accumulate in any significant number as a result of the Supreme Court’s regular overturning of convictions and ordering of retrials. Many saw political motivations in these rulings. The Supreme Court, left over from the Milosevic era, was not involved in the creation of the War Crimes Chamber, and it seemed reluctant to sign off on controversial cases. In 2010, a number of laws went into effect that restructured Serbia’s judiciary and created a new network of courts. As part of the many changes, appeals from the War Crimes Chamber, now held in the Belgrade Higher Court, go to the Appellate Court in Belgrade. Jovanovic said that the judges handling war crimes appeals are among the best in the nation.
Substantively speaking, the cases have tackled crimes related to several of the worst war crimes committed by Serbs in the 1990s, including the 1995 Srebrenica genocide; the 1991 execution of about 200 Croat prisoners of war and civilians near Vukovar, in Croatia; the massacre of an estimated 700 to 900 Bosniaks in Zvornik, Republika Srpska, in 1992; and the massacre of about 50 ethnic Albanians in the Kosovo town of Suva Reka in 1999, among many other crimes.
Prosecutors also have brought cases for some of the horrors inflicted on Serb forces and civilians, including a number of crimes committed by the Kosovo Liberation Army between 1998 and 1999. Recently concluded was the so-called “Gnjilane Group” retrial against a large group of former KLA members over the massacre of Serbs in Gnjilane, Kosovo, which resulted in 11 convictions and six acquittals. (According to a report of an incident by the prosecutor’s office, the lead defendant made an ominous threat to the deputy prosecutor during closing arguments: “I shall take my revenge on you for what you are doing; should I fail to do so, my children will; in case they are not able to do it, then my grandchildren certainly will.“)
The case totals become somewhat less impressive with a closer look at who has been prosecuted and convicted, however. The more senior-level officials in the police and army left within the chamber’s jurisdiction – those who did not rise to the level to face ICTY prosecution – have tended to escape indictment. Prosecutors have successfully targeted commanders of Serb paramilitary and territorial defense units operating during the wars – forces that worked with but were not formally part of the Federal Republic of Yugoslavia. For example, the cases involving the Vukovar and Zvornik massacres involved the prosecutions of Serbs who were quite powerful during the wars in Croatia and Bosnia, but these individuals did not enjoy the same political clout as members of the army and police in Serbia in the years after the war.
The failure to make similar gains up the chains of command in the police and army ranks has been cited by international groups that have monitored domestic efforts, such as the International Center for Transitional Justice and Human Rights Watch, as well as local groups such as the Humanitarian Law Center, the Belgrade Center for Human Rights and the Helsinki Committee for Human Rights in Serbia. (Most observers have also given praise for achievements in other areas.)
Vladimir Petrovic, an academic who was an analyst in the war crimes prosecutor’s office when first interviewed for this article, described the problem as “the vacancy in the middle.” Though the ICTY started with some relatively low-level offenders, it eventually developed a top-down strategy. Serbia’s War Crimes Chamber, in contrast, could take a bottom-up approach – starting with the lowest-level offenders and moving up to the mid-level commanders outside the ICTY’s range of cases.
“The hope was that we would meet somewhere in the middle,” Petrovic said. If this convergence fails to take place, he added, it will create a significant hole in the legal record established by the cases.
A debate remains over the severity of this shortcoming, as well as its causes. Competing views over these issues have created tension between Vukcevic’s office and Kandic’s Humanitarian Law Center – two institutions ostensibly on the same side of war crimes issues, led by two individuals whose public statements about the importance of accountability efforts often echo each other.
Kandic believes that the indictments and some of the chamber’s rulings show an intention to minimize the responsibility of the state of Serbia, and to focus blame instead on individual bad apples at the lower level. One of the goals of war crimes trials is to establish individual criminal responsibility for atrocities, something Kandic readily acknowledges. (One theory in the field of transitional justice is that individualizing crimes can help prevent victim populations from holding grudges against entire groups of people.) Still, she contends that indictments that more aggressively move up the chain of command and better establish the context of the crimes would place a more appropriate emphasis on state institutions. This would be more consistent with the record established by the ICTY – that much of the Serb wartime leadership engaged in a joint-criminal enterprise during the conflict.
Greater state responsibility might also support legal theories of liability that Serbia owes reparations to victims of the wars. Bosnia-Herzegovina sued Serbia before the International Court of Justice for alleged violations of the Genocide Convention. In a 2007 ruling, the ICJ held that the Srebrenica massacre amounted to genocide but that Serbia was not directly responsible for the acts carried out by the forces in the area, the Republika Srpska army. The court did hold that Serbia violated the convention by failing to stop the killings and failing to turn over key suspects. (Among the controversies of the case, the court did not require Serbia to turn over documents that might have shed more light on the alleged participation of Yugoslavia’s leadership.)
Vukcevic's office has contended that Kandic, who is trained as a sociologist and not a lawyer, is incorrect in her assessments of its performance, and that cases have only been limited by the evidence available. For example, in the Lovas case against former army officials, among other defendants, for the killing of 70 civilians in Lovas, Croatia, in 1991, Kandic criticized the indictment for not targeting any army generals. Vukcevic issued a public response that the “the indictment included all individuals for whom it was possible to find evidence of involvement” and that “there was no evidence of [higher-ranking army officers] having any knowledge of the events in Lovas either before or during" the commission of the crimes.
In responding to questions for this article, Vukcevic said that most of the higher-ranking officials have already been indicted by the ICTY. He said his team operates by the principles of "independence, resistance to all sorts of pressures (political ones in particular), and the equality of treatment for all irrespective of their ethnic backgrounds, religious beliefs or positions in the political and command structures." He added that his office is in the early stages of potential cases against “individuals who occupied high positions in the state system” during the wars.
The Belgrade Center for Human Rights, which until recently was led by another of the region’s most respected activists (and scholars), Vojin Dimitrijevic, who died Oct. 5 at the age of 81, does not believe that the prosecutor’s office “is avoiding the prosecution of the topmost army and police officers,” according to a report issued earlier this year. The organization instead blames obstructive forces within the government and the challenges posed by regional cooperation, with so many witnesses outside Serbia’s border. The report noted a number of complications, including that a “considerable number of the Army of Serbia current command staff” fought during the Kosovo war, and that former Milosevic spokesman Dacic (now Prime Minister) had a prominent role in the government as a deputy prime minister.
One of the most high-profile and controversial of the early cases before the War Crimes Chamber was brought in 2005, after the Humanitarian Law Center acquired a tape of the notorious Scorpions paramilitary unit executing six Muslims during the time of the Srebrenica massacres in July 1995. The killings took place in Trnovo, Republika Srpska, where the unit had taken their captives. The Humanitarian Law Center made the tape available to the ICTY, which showed it at the Milosevic trial, and to the media, whose broadcasting of the footage was seen as an important first step in getting citizens to begin to accept that Serbs had committed grave war crimes.
The tape also resulted in Serb police arresting the perpetrators who were visible as members of the Scorpions unit; five were indicted, including the commander, Slobodan Medic. Human rights advocates criticized the indictment for describing the Scorpions as a paramilitary unit operating under the Republic of Srpska Krajina’s Army, as opposed to the state security services, and for characterizing the conflict itself as a “civil war” within Bosnia-Herzegovina. Kandic, as the representative of the victims at trial, said that the deputy prosecutor objected to her questioning witnesses about institutional responsibility.
In 2007, the chamber sentenced Medic and another defendant to 20 years, the maximum for war crimes against civilians under Serbia’s criminal code, but gave more lenient sentences of 13 and five years for two of the younger defendants; a fifth defendant was acquitted. In reading the judgment from the bench, Judge Gordana Bozilovic-Petrvoic said that there was no evidence indicating that the victims were from Srebrenica. The ruling infuriated human rights groups and victims’ family members, who saw a blatant attempt to separate Serbia from the events in Srebrenica. Vukcevic publicly criticized this determination, arguing that “the Chamber erred in giving faith to the defendants’ statements, rather than to those offered by the victims’ families.” He appealed the two lower sentences and the acquittal, but to no avail. (In 2008, the Supreme Court, then still reviewing chamber cases before the restructuring of the judiciary, merely reduced one sentence from 20 to 15 years and ordered a retrial for another defendant.) Kandic said the Scorpions trial was a wasted opportunity, and one that signaled that the domestic war crimes system would be more political than professional in its operations.
Vukcevic said that he did not think "the court ruling outweighed the good effects of the convictions."
The OSCE’s Jovanovic said he “partly shares the view” that some cases appear to shield the state from responsibility for crimes committed in Croatia and, in particular, Bosnia. However, he cautioned that there may not always be an abundance of evidence that directly links the state to some of the events in the Bosnian war.
“I don’t think the prosecution is attempting to, or that it can, protect the state from responsibility in Kosovo, where there already are convictions of police officers, even if at the lower level of the police,” he added.
The Kosovo cases have been mired in controversy in recent years, which is understandable given the immense tension there. More than 80 countries, including the U.S., have recognized Kosovo’s declaration of independence. Serbia is adamant in its opposition. Serbs view the Kosovo region as an integral part of the nation’s history and are concerned about the status of the Serb minority population there.
Vukcevic’s office targeted a powerful figure, Radoslav Mitrovic, the commander of the 37th Battalion of the Special Police Unit, in the Suva Reka case, over the killing of 50 civilians in Kosovo in March 1999. Forty-eight of the victims were members of the same extended Muslim family. In announcing the case against seven defendants in 2006, Bruno Vekaric, a deputy prosecutor who also serves as an office spokesman, said that the massacred civilians included “four babies, 10 children, a pregnant woman and a 100-year-old woman.” The trial stretched over three years and included the participation of more than 100 witnesses.
In April 2009, the War Crimes Chamber convicted just four of the defendants (yielding sentences of 68 years in prison), and acquitted three, including Mitrovic. The prosecution had argued at trial that Mitrovic had effective control over the police forces during the operation, and prosecutors presented corroborating witnesses who worked at the Suva Reka Police Department at the time. A Humanitarian Law Center review of the case contended that “the court protected [Mitrovic], by laying the blame and the command responsibility on the local chief of police.”
A legal technicality may have contributed to the chamber’s ruling, revealing yet another challenge facing the domestic system. The criminal code that Serbia inherited from the Federal Republic of Yugoslavia was generally well-equipped to prosecute war crimes and crimes against humanity, but it had not incorporated certain provisions of the ICTY statute, including a broader definition of “command responsibility” that attaches criminal responsibility to commanders who knew of illegal conduct and failed to stop or punish it. The 2003 law establishing the War Crimes Chamber did not include the ICTY’s command responsibility provisions out of a concern that retroactive application to crimes of the 1990s would not be constitutional. Prosecutors can still use existing provisions related to aiding and abetting theories to target commanders, but Jovanovic said the Suva Reka case might suggest the limitations of doing so.
Ongoing investigations in Kosovo have called into question the credibility of the U.S.-trained witness protection unit, which was praised during the early years of its operations. In March 2009, prosecutors initiated a new case against members of the 37th Battalion of the Special Police Unit, including Mitrovic, after the Humanitarian Law Center filed a criminal complaint against 16 of the members. Four were arrested at the request of the prosecutor’s office; Mitrovic was already in custody for the pending Suva Reka case. The center’s complaint was based on insider witnesses from the police force in Leskovac, who then became protected witnesses for the prosecution’s case; two of them were relocated from Leskovac. However, the witnesses claimed that the unit charged with their protection actually harassed them, pressured them to discontinue their cooperation and asked for information about other potential witnesses.
According to a Humanitarian Law Center report, one witness claimed that unit members “cut off his electricity from time to time, [raided] his apartment at any time of day … have asked him if he has engaged in sexual intercourse with Natasa Kandic, and [said] that it is better to withdraw his statement. The protected witnesses departed the case, which subsequently stalled. (The suspects were also released.)
Jovanovic said that the controversy is complicated by the possibility that, as prosecutors and members of the unit have contended, a few of the insider witnesses made inappropriate demands for their testimony. Nevertheless, he said it appears clear that the witness protection unit pressured the witnesses not to testify. This is an alarming problem for war crimes cases, which often require insider witnesses, and it has led to recommendations by European Union officials and other observers that the unit be removed from the police forces of the Interior Ministry and placed inside the Justice Ministry. The witness protection problem and other obstructive forces led the Belgrade Center for Human Rights to conclude that “the Serbia authorities are not prepared to confront the past and prosecute those most responsible for the grave crimes” from the wars.
The prosecutor’s office has reportedly acknowledged problems with the unit, though when asked about the scandal for this article Vukcevic said his office has confidence in the witness protection services.
"Most certainly, the situation is often complicated and quite difficult at times," he added. "Still, a fact that should not be overlooked is that the effectiveness of such a protective mechanism also depends on the witnesses themselves, i.e. on their proper understanding of what their own rights and duties are within the program."
Kandic said that the unit has not behaved inappropriately towards victim or other witnesses, who can testify safely even if they are ultimately angered by the judgments. Petrovic, the former analyst from the prosecutor's office, added that the unit has performed well in some cases, but it varies by the individuals involved with each assignment: “If it’s done by normal people, it’s good; if not, it can be a problem.”
Tensions between the prosecutor's office and Kandic have continued to escalate. The Humanitarian Law Center’s March 2011 report on the witness protection problems also alleged that the deputy war crimes prosecutor on the case, Dragoljub Stankovic, did not behave professionally and advised witnesses not to testify. Kandic also appeared on the B92 radio station that month and said her organization had information from sources who claimed that the release of Mitrovic and the other suspects involved the paying of a bribe to the prosecutor’s office. Though she did not name the alleged beneficiary, Stankovic was described as such in the center's report, and he filed a defamation case against Kandic. The prosecutor’s office also issued an angry rebuttal and defense of Stankovic, noting that his security had been threatened for his work on several controversial war crimes cases and contending that he was not involved in the decision to release the suspects.
Kandic had been sued before for her public comments on war crimes cases, and would be again. Earlier this year, a Humanitarian Law Center report claimed that Lieutenant General Ljubisa Dikovic – whom Tadic appointed in December to head the Serbian army – was responsible for war crimes in Kosovo. Vukcevic claimed that no evidence supported the allegations, and Dikovic promptly sued Kandic for her comments, which she has continued to defend.
In recent years, Kandic and the prosecutor's office have traded criticisms through reports and public statements. In November 2011, the prosecutor's office issued a detailed 15-page report to challenge three of the Humanitarian Law Center’s recent reports, calling Kandic “amateurish,” “ignorant” of the case files and incompetent as a victims’ representative. (A recent change to the procedure code prevents non-lawyers from representing victims in the proceedings, which blocks Kandic from directly participating in the trials, leaving that role to lawyers at the Humanitarian Law Center.) The report said that “she remains invariably committed to her own interest to obtain proofs that our state is responsible for all crimes in Croatia, Bosnia-Herzegovina and in Kosovo, rather than individual perpetrators against whom proceedings are conducted.”
Though the office has in the past acknowledged her crucial role in securing the participation of witnesses – the Humanitarian Law Center counted more than 70 who had testified at its invitation and assistance by the end of 2011 – Kandic believes that the office has changed its tone towards her for her heightened criticism in recent years, including what she sees as selective indictments as well as politically motivated arrests (or issuing of arrest warrants) for non-Serbs.
Vukcevic said his office has a good relationship with the human rights community and included Kandic's organization in the mix.
"Regardless of some disagreements, which are mainly of a strategic nature, we appreciate the assistance of the Humanitarian Law Center in the collection of evidence and access to war crimes witnesses," he said. "We continue to perceive them as our partners and a positive force."
In any event, there are significant payoffs for all stakeholders, not least of all the victims, as revealed in the Lovas case involving the killing of 70 Croatian civilians in 1991. In June, the trial chamber sentenced 14 defendants, including members of the Yugoslav army and the territorial defense unit in the area, to a total of 128 years in prison. The verdict followed 182 days in trial, including the testimony of 194 witnesses.
“Serbia’s judicial authorities have sent a clear message of respect to the victims, and apologies for all their suffering in those unfortunate years,“ Vekaric, the deputy prosecutor and spokesperson, said after the verdict. “It is essential to make it clear that the victims will not be forgotten and that the perpetrators of such and similar crimes will be adequately punished.”
Though critical of the indictment for not targeting generals, Kandic was extremely pleased with the course of the trial and the verdicts.
“I am happy because the families and the local authorities who came from Lovas are happy,” she said. “It is important that they are satisfied with the trial and the work of the presiding judge, who did an excellent job.”
Meanwhile, Vukcevic’s team has remained in the news for several pending investigations. Prosecutors are reportedly considering a case against wartime media figures who, under some theory, may bear responsibility for inciting violence during the conflicts. The office also has opened cases against the individuals from the support networks that allowed The Hague fugitives to remain at large for so long. (Serge Brammertz, the chief prosecutor at the ICTY, had repeatedly urged for such a case.)
Another of the high-profile pending investigations focuses on whether Albanians in the KLA harvested organs from Serbs captured during the war for trafficking, which Albania and Kosovo have denied. Of particular concern to the U.S. State Department and the Embassy in Belgrade is the criminal case against two former Serb police officers for allegedly murdering three American brothers – Agron, Ylli and Mehmet Bytyqi – who reportedly had traveled to Kosovo to assist pro-independence forces. In May, the War Crimes Chamber acquitted the defendants, and Vukcevic’s announced it would appeal.