A recent article by Vlado Rajic in Vjesnik (“Leveling On the Part of Human Rights Defenders,” October 16, 2004) about Human Rights Watch’s report on domestic war crimes trials in Bosnia and Herzegovina, Croatia, and Serbia and Montenegro, misrepresents both the report and the actual state of war crimes prosecutions in Croatia.
Human Rights Watch has found that key obstacles for fair and effective trials in all three countries include: bias on the part of judges and prosecutors, poor case preparation by prosecutors, inadequate cooperation from the police in the conduct of investigations, poor cooperation between the states on judicial matters, and ineffective witness protection mechanisms. In Croatia, Human Rights Watch has observed a number of problems with war crimes trials, including the use of group indictments that fail to specify an individual defendant’s role in the commission of the alleged crime, and trials conducted in the absence of the accused.
It is questionable whether Mr. Rajic has read the report he extensively criticizes. While the report dedicates a whole chapter – entitled “The Creation of Specialized War Crimes Chambers” – to explaining the special character of the county courts in Zagreb, Osijek, Rijeka and Split regarding war crimes trials, Rajic writes, “county courts in Zagreb, Osijek, Rijeka and Split are not ‘ordinary domestic courts’, as the HRW report calls them.” Obviously, the HRW report does not call these courts “ordinary” at all and Human Rights Watch welcomes their establishment.
Vjesnik’s commentator incorrectly accuses HRW for not knowing, or not taking into consideration, that Chief Public Prosecutor Milan Bajic has issued an instruction to lower-level prosecutors to cease trials in the absence of the accused. HRW, of course, know about that instruction and other initiatives by Mr. Bajic, whose efforts we highly appreciate. However, instructions alone are not adequate to solve this problem. War crimes trials in absentia continue to the present date in places like Zadar and Vukovar (in the ongoing trial in Vukovar of eighteen defendants indicted for war crimes committed in Lovas, all but one are absentee defendants.)
Mr. Rajic’s main concern is that HRW’s report does not appreciate how substantially different Croatia is from the other two countries, when it comes to war crimes trials. In order to prove that point, he writes that “Croatia has courts for trying war crimes, while the other two countries each has only one such court.” In fact, the situation in Croatia is in this respect essentially the same as in Bosnia. In Bosnia, a number of cantonal and district courts have tried war crimes cases in the past, currently do so, and will try a majority of cases even when the special war crimes chamber becomes operative in early 2005. Similarly, in Croatia, in the first year after the law conferred special status to the courts in Rijeka, Zagreb, Split, and Osijek, only the court in Osijek has actually conducted war crimes trials. “Ordinary” county courts in Zadar, Gospic, Karlovac, Vukovar, Bjelovar, Sisak, and Sibenik, continue to try all other cases.
It is also incorrect to say, as Mr. Rajic does, that the process of training judges and prosecutors to handle war crimes prosecutions is almost complete in Croatia while it has not started in the other two countries. Judges and prosecutors in Bosnia and Serbia have had some, although limited, training. Judges and prosecutors from the four designated courts in Croatia have also had some training – weekend-long seminars – although barely sufficient to become fully familiar with the complex body of international humanitarian law. However, those who prosecute and try the majority of cases – those before ordinary county courts – have received little or no training to date.
Human Rights Watch concludes that the war crimes trials in Croatia have suffered from ethnic bias. Specifically, a hugely disproportionate number of cases have been brought against the ethnic Serb minority, some on far weaker charges than cases against ethnic Croats; and ethnic Serbs have been convicted in some cases even where the evidence did not support the charges. Vlado Rajic would like his readers to believe that the information on ethnic bias before Croatian courts that is used in the HRW report information is outdated, i.e. pertains only to the period before 2000. In reality, HRW based its conclusions on an analysis of statistics pertaining to the period after 2000, including data from 2002 and 2003. For example, the report cites the OSCE from 2002, when 83 percent of all ethnic Serbs indicted for war crimes before Croatian courts were convicted, while only 18 percent of ethnic Croats indicted for war crimes before Croatian courts were convicted. In the same year, 114 of the 131 persons under judicial investigation for war crimes, and ninety of the 115 persons on trial, were ethnic Serbs.
As HRW concludes in its report, if one looks beyond these numbers and focuses on specific recent cases, there is again abundant evidence of the practice of ethnic bias. For example, there has only been one case to date in which a war crime committed against ethnic Serbs – the killing of Serb civilians around Gospic, in 1991 – was prosecuted and properly tried in a Croatian court. As a result of this trial, a number of the responsible were brought to justice and convicted for the crime. It is striking that war crimes allegedly committed in the Medak pocket, Vukovar, Zagreb (murder of Zec family), Lora, Pakracka Poljana, Korana bridge, and in Bjelovar, have not been prosecuted at all or have resulted in acquittals. Similarly, in the case of Paulin Dvor, only one person was convicted, although many others participated in the killings of Serb civilians.
By contrast, Croatian courts have found ethnic Serbs guilty of war crimes even for such acts as theft of bedclothes, plates, or alarm clock from a house (Ivanka Savic case, 2004). No ethnic Croats have ever been indicted for similar offences.
Ethnic bias has also crept into the analysis and explanatory decisions of some Croatian courts, undermining any claims of impartiality. As recently as July 2003, the Gospic County Court faulted Svetozar Karan “and his ancestors” for having been a “burden to Croatia over the past 80 years.” The judgment also lamented the five centuries in which “the accused and his ancestors … together with Turks were coming and destroying Croats.”
HRW has also concluded that Croatia failed to cooperate adequately with the other countries in the region, especially with regard to: participation of witnesses who reside in one state in trials that take place in another state; exchange of information between investigative judges and prosecutors in different states; joint work by investigation teams in different states; provision of documents; and, transfer of prosecutions from one state to another. Vlado Rajic, in contrast, claims that Croatia effectively cooperates with other countries in the region in war crimes prosecutions. But it was Mr. Bajic, the Chief State Prosecutor for Croatia, who – aware of the unsatisfactory level of cooperation between Croatia and the other two countries – most recently proposed an agreement between the three countries allowing for more effective cooperation between the war crimes prosecutors. As for cooperation at the trial stage, problems also abound. In the Lora case (2002), the Zorica Banic case (2002), and the Paulin Dvor case (2003-04), witnesses residing in Serbia and Montenegro were afraid or otherwise unwilling to travel to Croatia to testify.
Finally, Vjesnik’s commentator would like the reader to believe that Croatia has resolved the problem of witness protection by enacting the law on witness protection in October 2003. However, the mere enactment of the law does not amount to a resolution of the problem on the ground. As HRW concludes in its report, “it is too early to assess how the program is working in practice” (the law came into force only in January 2004). However, we noted in the report that in June 2004 the OSCE mission found that Croatia had not yet developed an adequate witness protection program.
Sincerely,
Holly Cartner
Executive Director
Europe and Central Asia division
Human Rights Watch
Richard Dicker
Director
International Justice Program
Human Rights Watch
