WAR CRIMES SUSPECTS AND APPLICATION OF THE AMNESTY
Lists of War Crimes Suspects
Since the hostilities in 1991, the Ministry of Justice of the Croatian government has maintained lists of suspected Serb war criminals, numbering as many as 3,000 at one point. These "official" lists have frequently been criticized for inaccuracies and uncertainties. To add to the confusion, other "unofficial" lists of war criminals and suspects have been prepared (and occasionally published) by nongovernmental organizations and by the press. As late as February 1997, a Vinkovci newspaper published a list of suspected war criminals including 1,200 names. At the same time, the Croatian government has passed several laws granting amnesty for those who engaged in certain acts relating to the war in 1991 and thereafter. The most recent of these laws is the Law on General Amnesty passed on September 20, 1996 in response to pressure from the international community. This most comprehensive of the three laws grants amnesties all those who committed "criminal acts during the aggression, armed rebellion or armed conflicts, in or relating to the aggression, armed rebellion or armed conflicts in the Republic of Croatia . . . . during the period from 17 August 1990 to 23 August 1996."40 The law expressly excludes those who have committed "flagrant violations of humanitarian law having the character of war crimes."41 The passage of the law was followed by the circulation of a list of ninety-six persons who were then in detention on charges of armed rebellion.
After promulgation of the amnesty law, the Croatian government continued to retain a list of 311 war crimes suspects. This list too was criticized for inaccuracies and errors.42 The existence of this list of war crimes suspects has weighed heavily on the Serb Executive Council (the assembly of the Eastern Slavonia Serb leadership) and on the minds of many Serbs in Eastern Slavonia who must decide whether to remain in Croatia. As a result, Transitional Administrator Jacques Paul Klein requested the Croatian government to produce a smaller list, with those who are not on the list being de facto amnestied. In March 1997, Mr. Klein received a new list of 150 names which he passed on to the Serb Executive Council, which, in turn, notified those on the list. This list contains the names of those who have been convicted in absentia for crimes against international humanitarian law, those who have been indicted for such crimes, and those who are otherwise suspected of having committed such crimes.43
The negotiations over the lists and amnesty laws raise several fundamental human rights concerns. First, throughout negotiation over the size of the list, the standards for inclusion on the war crimes list were never made clear. Even now, after the list has been given to Mr. Klein, the grounds for inclusion on the list remain unclear, especially for those who have not already been indicted or tried in absentia. An effective safeguard would be for Croatia to refer war crimes indictments to the International Criminal Tribunal for the former Yugoslavia (ICTY) for prior review. Some have argued that Croatia is already obligated to do so under the Agreed Measures, pursuant to the Rome Statement (the Rome Agreement), which states that
Persons, other than those already indicted by the International Tribunal, may be arrested and detained for serious violations of international humanitarian law only pursuant to a previously issued order, warrant, or indictment that has been reviewed and deemed consistent with international legal standards by the International Tribunal.44
Designed to prevent the misuse of arrests of alleged war criminals solely to harass certain ethnic groups, the review of indictments and arrest warrants by the ICTY would have enhanced the legitimacy of war crimes prosecutions in Croatia.
Croatia has argued that it is not bound by the Rome Agreement, on grounds that the Rome Agreement, which does in fact address issues pertaining to Bosnia, cannot create any obligations for Croatia. But even if Croatia were not bound by that agreement, a review by the ICTY would still function as an important means of allaying concerns of bias in Croatian war crimes trials and bolster confidence in their results. Human Rights Watch/Helsinki calls on UNTAES to emphasize that such rights must be observed in any trials of these suspects. In order to ensure that due process protections are observed, Human Rights Watch/Helsinki also calls on the international community systematically to monitor the trials.
UNTAES's insistence that the government of Croatia provide a "final" list of suspects also raises serious human rights concerns.45 If those who commit war crimes are to be held accountable for their crimes, it is unclear in what sense any list of suspects provided by the Croatian government can be considered final. If sound legal principles are to govern the indictment and trial of suspected war criminals, the Croatian government must indict those against whom sufficient evidence of such crimes is gathered, regardless of whether this evidence comes to light before or after a "final" list is prepared. Indeed, several Croats, including relatives of those who were killed or "disappeared" during and after the siege of Vukovar told Human Rights Watch/Helsinki of their discomfort over what they perceived to be private negotiations between UNTAES and the Croatian government regarding the length of the list of suspects.46 They feared such negotiations might result in the removal of war crimes suspects from the list, as a matter of political expediency, rather than through a judicial process that would have determined the absence of an evidentiary basis for prosecution.
Human Rights Watch/Helsinki recognizes, of course, that the list of suspected war criminals has powerful political force: it intimidates Serbs in Eastern Slavonia while appeasing Croats who have lost family members in that region. Given the political nature of the list, UNTAES may have felt compelled, as the administrative body of the region, to address it in a political context. However, entering into (or appearing to enter into) negotiations over who will or will not be prosecuted for war crimes, politicizes a process that should be subjected solely to legal considerations. These negotiations run the risk of compromising not only UNTAES's credibility but also the legitimacy of any future proceedings against suspects, as there will be suspicions that some Serbs were dropped assuspects in a political "deal" engineered by UNTAES. At the least, the controversy and negotiations over the number of names on the list has distracted attention from the fundamental rights to due process and fair trial.
The list, in the meanwhile, continues to raise more questions than it answers. Only in early March 1997 did it become clear that the list comprises only those who face indictments in the courts of Osijek and Vinkovci. As a result, Serb DPs in Eastern Slavonia who are not included on the "final" list may still be indicted on charges relating to serious violations of humanitarian law for acts carried out in other jurisdictions, such as those of Knin and Sisak.
Application of the Amnesty: Non bis in idem
The application of the amnesty has also raised some concerns as a result of the re-arrest of at least twenty-seven of the ninety-six persons who were granted amnesty. Each of these twenty-seven was reportedly released in accordance with the 1996 Law on General Amnesty and then immediately arrested again accused of war crimes. As of mid-March 1997, three of the twenty-seven had been re-released, while the others remained in detention pending investigation.47
The re-arrests raise concerns over whether additional charges may result in a violation of the principle of international law, non bis in idem, or double jeopardy.48 This legal principle does not prohibit the trial of a defendant for a different crime arising from the same set of circumstances49; however, any new and different charge arising from the same facts as the original charge must be observed closely to ensure that there is credible evidence for the new charge and that it is not different in name only. While it is impossible to assess the grounds for these re-arrests before the completion of investigations and the filing of charges, Human Rights Watch/Helsinki urges the international community to follow these cases closely and calls on the Croatian government to release promptly those detainees against whom there is no credible evidence on which to base new charges. As with the war crimes suspects discussed above, Human Rights Watch/Helsinki believes the Croatian authorities should seek prior review by the ICTY of indictments and calls on the international community to monitor the trials of those among the twenty-four against whom charges are filed.40 Law on General Amnesty, September 20, 1996. The Law on General Amnesty expressly repeals the two previous amnesty acts - the 1992 Amnesty Act Applicable to the Perpetrators of Criminal Acts Committed in the Armed Conflicts and War against the Republic of Croatia, Narodne Novine, No. 58, 1992, and the 1996 Amnesty Act Applicable to the Perpetrators of Criminal Acts Committed in the Temporarily Occupied Areas of Vukovar-Sirmium and Osijek-Baranja, Narodne Novine, No. 43, 1996.. 41 Law on General Amnesty, article 3. Article 3 specifies, as flagrant violations, crimes described in articles 119 through 137 of the Basic Penal Code of the Republic of Croatia, including acts of genocide and crimes against civilians and prisoners of war. 42 Criticisms include allegations that the list included names of persons already dead. 43 "Amnesty," UNTAES Bulletin, No. 28, March 1997. 44 The Rome Statement reflecting the work of the Joint Civilian Commission Sarajevo Compliance Conference, February 18, 1997. 45 In fact, UNTAES Legal Unit officials told Human Rights Watch/Helsinki that because of deepening confusion and unsatisfactory features surrounding such a "final" list, UNTAES had concluded it was best not to press for such a list. Human Rights Watch/Helsinki interview, Vukovar, April 4, 1997. Nevertheless, numerous press articles have reported Mr. Klein's insistence on a final list, and UNTAES itself in its official public information bulletin printed an interview in which Mr. Klein called for a final list, exclusion from which would indicate an amnesty: "Now, we have asked the Croatian Government for a final list very soon and before the elections. The list should have those names who, we believe, would possibly be indicted by the War Crimes Tribunal at The Hague if there was enough evidence. By that definition, everyone else is automatically amnestied." "Elections announced for 13 April: an interview with TA Jacques Klein," UNTAES Bulletin, No. 25, February 1997. 46 Human Rights Watch/Helsinki interviews, Zagreb, February 23, 1997. 47 Croatian law permits detention of suspects without charges for a total of sixty days (a thirty day period that is renewable once) before authorities must either press charges or release the suspect. 48 "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." International Covenant on Civil and Political Rights, article 14(7). See also The Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, article 10; Draft Statute of the International Criminal Court, article 42, in Report of the International Law Commission on the Work if its Forty-Sixth Session, A/49/355, September 1, 1994. 49 See Commentary on article 42 of the draft Statute of the International Criminal Court in Report of the International Law Commission (46th Session), 1994, General Assembly 49th Session, Supplement No. 10, A/49/10.