In a letter to the U.S. Ambassador-at-Large for War Crimes Issues and the U.S. Under Secretary for Political Affairs, Human Rights Watch expressed concern about their recent statements regarding the possibility of trying certain key, high-level Serbian generals before domestic courts in Serbia. These statements do not contribute to the process of establishing accountability for war crimes committed in the former Yugoslavia for several reasons.
A July 19, 2004, Reuters article quoted Ambassador Prosper as stating, “[i]f we can find a way to bring [Mladic] to The Hague, it really opens up the process so that we can discuss the possibility of having domestic trials including trials for the four generals.” Previously, on July 9, 2004, at a press conference following a meeting with the Foreign Minister of Serbia and Montenegro in Belgrade, according to a State Department press release, Ambassador Grossman remarked: “when Mr. [Ratko] Mladic is in The Hague we would support with the tribunal – we don’t run the tribunal – but we would support with the tribunal the domestic prosecution of the other indictees.” The statements suggest that if former Bosnian Serb general Ratko Mladic is arrested and transferred to the International Criminal Tribunal for the Former Yugoslavia (ICTY), the United States will press the ICTY to allow four Serbian generals – army generals Nebojsa Pavkovic and Vladimir Lazarevic, and police generals Sreten Lukic and Vlastimir Djordjevic – to be tried before a Serbian domestic court.
We are concerned that these statements do not contribute to the process of establishing accountability for war crimes committed in the former Yugoslavia because they: in effect urge the ICTY to act against its completion strategy as endorsed by the United Nations Security Council; strengthen the position of Serbian officials who are hampering cooperation with the ICTY; propose an unworkable solution, in that a meaningful trial of the four generals in Serbia is unlikely; have a negative impact on the perception, in Serbia and the former Yugoslavia, of the ICTY as an independent tribunal; and undermine the mandate of the ICTY.
By advocating a trial of the four generals before a Serbian court, you are in effect urging the ICTY to violate its completion strategy endorsed by the United Nations Security Council. A Presidential Statement of the Security Council of July 23, 2002, endorsed “the transfer of cases involving intermediary and lower-level accused [from the ICTY] to competent national jurisdictions.” Security Council Resolutions 1503 and 1534 reaffirm the July 23 statement “in the strongest terms.” (See also S/PRST/2004/28) Accused who at the time of the commission of alleged crimes held the rank of generals and commanded the Serb forces in Kosovo – or indeed in Serbia as a whole, as in the case of Djordjevic – cannot be considered to be “intermediate or low.”
We are also concerned that, while your statements might encourage Serbia to cooperate in the case of Mladic, they will at the same time strengthen the position of Serbian officials who are failing to cooperate with the ICTY and are attempting to prevent or postpone indefinitely the arrest and transfer of the four generals. The arrest of general Ratko Mladic is a clear priority for the ICTY, but should not come at the expense of bringing the other four Serbian generals to trial at the ICTY. Encouraging Serbia to cooperate with the ICTY in one single case is not consistent with the long standing efforts of the ICTY, the European Union, and the broader international community to achieve a level of cooperation by Serbia that would be comparable to that of Croatia, and the Federation of Bosnia and Herzegovina.
Human Rights Watch has closely monitored domestic war crimes trials in Serbia and followed debates among legal scholars and practitioners surrounding the trials. We have found that Serbian domestic courts are still unable to hold meaningful trials of the four generals, for at least three reasons. First, the Serbian judiciary has still not resolved whether the doctrine of command responsibility can be applied before domestic courts, and if so, in what form. If this doctrine could not be applied, that could undermine the cases against the generals. Second, the Serbian courts have never dealt with cases of similar magnitude, involving high-ranking military commanders accused of such serious crimes. Cases of this magnitude are not good test cases for the nascent Special War Crimes Chamber of the Belgrade District Court: all war crimes trials to date in Serbia have involved common soldiers. Third, all four generals have been indicted for crimes committed in Kosovo against the Albanian population. Albanian witnesses are unlikely to travel to Serbia to testify, because of the continued tensions between the two ethnic communities and because the Serbian government has failed to show respect for the Albanian victims of crimes committed by Serb forces during the 1999 war in Kosovo. The witnesses would be even more reluctant to attend in light of the recent developments in the Zoran Djindjic murder trial, during which supporters of the accused – including the former high-ranking security official Milorad Lukovic-Legija – attended in great numbers, wearing provoking insignia, ostensibly in order to intimidate the witnesses.
Additionally, Human Rights Watch believes that statements by U.S. officials proclaiming where ICTY indictees should be tried undermine efforts to portray the ICTY in Serbia and in other parts of the former Yugoslavia as an independent institution. Suspicion about the tribunal’s dependence on the U.S. administration has been an important source of continued distrust of the tribunal among the majority of Serb citizens. Statements such as the recent ones, in spite of Ambassador Grossman’s clarification that the United States does not “run the tribunal,” can only deepen this distrust.
Finally, we are concerned that statements like these also undermine the mandate of the ICTY, which, according to the ICTY Statute, is “to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia.” If the generals, as high-ranking officials, are tried in Serbia, which cannot yet provide them fair and efficient trials, then the mandate of the ICTY will not be fulfilled. As a permanent member of the Security Council with veto power, the United States was actively involved in establishing the tribunal. Together with other members of the Security Council, the United States has a special responsibility to support the tribunal, and to contribute to a successful completion of its mandate.
We hope you and other United States officials will refrain from such statements in the future, and will take measures to ensure that the ICTY can fulfill its mandate. We thank you for your attention to the concerns in this letter.
Sincerely,
Richard Dicker
Director
International Justice Program
Rachel Denber
Acting Executive Director
Europe and Central Asia Division
