Accountability for war crimes punishes those who have committed atrocities, provides a measure of respect for the victims of serious abuse, and helps societies come to grips with the past and move forward. Human Rights Watch strongly supports the work of the International Criminal Tribunal for the former Yugoslavia (ICTY) and considers it the obligation of the authorities in the territory of the former Yugoslavia to hold accountable those responsible for wartime atrocities. Such accountability efforts must of course comport with international fair trial standards. Unfortunately, to date, many of the Croatian authorities’ war-crime prosecutions of Croatian Serbs have been ill-founded, reflecting an apparently discriminatory and abusive exercise of prosecutorial authority that has had a detrimental effect on minority return.
Cases against Croatian Serbs often do not reach the trial stage at all, because the prosecutors drop charges against the arrested person during the investigation. Of the total of forty-one arrests in 1999, 2000, and the first half of 2001, thirty-one persons were released.257 Of fifty-nine Serbs arrested in 2001, only twenty were in prison as of December 2002, according to the Serb refugee organization Veritas.258 That many of the charges against Serbs are eventually dropped, might reflect a measure of judicial integrity. Nonetheless, the apparent abuse of prosecutorial discretion by the Croatian authorities has created a perception among Serb refugees that at least some of the arrests and trials are pursued solely to deter return. In addition, only arrests (and not subsequent acquittals) have been publicized, both in Croatia and in Serbia and Montenegro. The thought of a possible arbitrary deprivation of liberty discourages many Serbs from returning.
The number of war crimes arrests of Croatian Serbs increased substantially in 2000-2001 and has been a major deterrent to return for Serb male refugees, most of whom at some stage of the war fought against government forces. In the words of a Croatian Serb who was arrested on war crime charges that were subsequently dropped, “After my arrest and the months I spent in prison, my friends say they are unwilling to take a risk and return. I was thinking about returning, but not anymore.”259
Many arrests are based on long-standing indictments after years of inactivity. Around 2,000 war crimes indictments were outstanding in the second half of 2001.260 The indictments were dormant under the government of Franjo Tudjman, but the new government began to act upon these indictments in the second half of 2000. While in 1999—the last year of Tudjman’s rule—there were only five war-crime arrests in Croatia,261 in 2000 the number rose to around twenty,262 and in 2001, according to Veritas, there were fifty-nine war crimes arrests, of which several took place abroad, on the basis of Interpol arrest warrants. In 2002 the number of arrests fell: as of November, according to Veritas, twenty-seven Croatian Serbs had been arrested on war-crime charges in Croatia, of which nineteen were returnees;263 the OSCE mission in Croatia identified twenty-eight arrests in 2002, including arrests of fifteen returnees.264
The most significant problem with the war crime arrests in the past three years has been that credible evidence against the indictees generally has been lacking. As an international official in Knin observed: “Almost every Serb man, who at the time of the war was between eighteen and sixty years old, wore a uniform at some stage of the war. That makes them [to ethnic Croats] already ‘guilty’ in some way and creates a pressure. And then, if they hear that somebody was arrested who everyone believes could never commit a crime, or that another person was arrested during his seventh trip back to Croatia, it will definitively have an impact on the person’s willingness to return.”265
The tide of arrests came at the end of 2000, after a decision of the Chief State Prosecutor to task the county prosecutors with reviewing all the war crimes cases that involved arrest warrants that had not been acted upon, although the accused lived in Croatia.266 While some charges were dropped during the review process,267 most arrest warrants were confirmed.268 Subsequently, as detailed below, the police have arrested dozens of returnees without sufficient evidence for bringing charges.
A major problem with the war-crime cases against Croatian Serbs has been the use of group indictments that fail to specify an individual defendant’s role in the commission of the alleged crime.269 A number of Serbs have been indicted as a member of the responsible unit, or merely by virtue of being present at the location where a war crime was committed. Often in such cases, when the defendant is arrested and interrogated, it turns out that the prosecution lacks evidence linking him directly to the crime and drops the charges. What remains, however, is the negative effect of the arrest on other male refugees who fought in Serb formations during the war.
Human Rights Watch received a number of reports of apparently ill-founded indictments of large groups of Serb men. In August 2001, Human Rights Watch interviewed two men from a group of twenty-one individuals indicted in 1993 for war crimes in the Sisak area. The indictees were accused of committing crimes as prison guards in the town of Glina during the war. Both men interviewed by Human Rights Watch were returnees. Rade Vekic (41) and Branko Ljiljak (35) were arrested on March 1-2, 2001 and tried between April and July 2001. Vekic and Ljiljak had both worked in the juvenile center that was used as a detention center during the war, but at the time of the abuses neither was working in the center. Of ten prosecution witnesses, none recognized them as being present in the prison.270 The court acquitted both of the defendants on July 17, 2001.271
In another case, Hungarian police arrested Momcilo Draca (35) on May 31, 2001 at a border crossing between Serbia and Montenegro and Hungary. He was one of twenty-seven suspects in killings of Croat civilians in 1991 in the village of Skabrnja.272 Hungary extradited Draca to Croatia in October 2001. On December 20, 2001, Draca was released after the county prosecutor dropped the war-crime charges.273 In August 2001, German police in the city of Broemerworde arrested Mile Grbic (42), pursuant to an arrest warrant issued by Croatia and forwarded through Interpol. The German authorities released Grbic in mid-January 2002.274 On March 4, 2002, the county court in Gospic, Croatia, withdrew the charges against Grbic and fifty-seven other persons contained in a joint indictment.275 On June 4, 2001, Croatian police arrested Djuro Djuric (47) at a border crossing between Croatia and Bosnia and Herzegovina. Along with thirty-four other Serbs, Djuric was suspected of having participated in the killings of civilians in two villages near Dvor na Uni.276 Djuric was released on August 17, 2001.277
According to the U.N. Commission for Human Rights, in 554 verdicts for war crimes and genocide reached by Croatian courts between 1991 and 1999, 470 individuals were sentenced in absentia.278 Some Serbs who had been convicted in absentia returned to Croatia and were arrested and retried. In most cases, the defendants have been acquitted after the retrial.
In 1996, a Croatian court sentenced Croatian Serb Sava Grulovic in absentia to serve five years in prison for alleged war crimes. Upon returning to the Knin area in 2000, Grulovic (then 65) was arrested, retried, and acquitted.279 Dragan Jakovovic (41), sentenced in absentia to twenty years in prison and arrested in February 2001,280 was released in April 2001 after the state prosecutor amended the charges to armed rebellion, to which an amnesty applies. Natasa Jankovic was sentenced in absentia to six years in prison in 1996, arrested in January 2001, and acquitted after a retrial in June 2001.281 Zeljko Bjedov, arrested in December 2000, faced retrial in June 2001, during which the 1992 verdict in absentia was overturned due to lack of evidence.
As of July 2001, there had been only three cases in which returnees were found guilty in a retrial following previous conviction in absentia. Dragoljub Vasilijevic, sentenced in 1997 to two-and-a-half years in prison, arrested in October 2000, was sentenced to one year in prison at a retrial in May 2001; Slavko Drobnjak (30), arrested in July 2000 and retried in November that same year, was sentenced to twenty years in prison; and Nebojsa Jelic (40), arrested in April 2000, was retried in November 2000, and sentenced to five years in prison.282
The higher number of acquittals than convictions in retrials is not surprising, because a person would be unlikely to return to Croatia if he had indeed committed a war crime. Rather than proving the responsibility of the defendant, an earlier war-crime conviction reached in absentia in Croatia usually indicates little about the extent of the evidence against him. Human rights lawyers in Croatia are nevertheless reluctant to suggest to those who are convinced that they are innocent to return for retrial. The Croatian judiciary is not devoid of political bias, all the more so as the judges appointed after the Tudjman government’s purges still hold their posts. In one case, in May 1999, several Serbs from the so-called Sodolovci group voluntarily appeared before the Osijek county court for retrial, only to be convicted again. In November 1999, the Supreme Court annulled the judgment.283
Human Rights Watch interviewed Jovanka Nenadovic, a woman from Pakrac, who was arrested in October 2000 and spent three months in detention before the state prosecutor dropped war crimes charges against her. Nenadovic was accused of committing the murders of seven Croatian soldiers in 1991. Her age and physical condition should have signaled to a well-intentioned state prosecutor that the charges were spurious—she was 58 years old at the time of the alleged crime, and she had difficulties moving due to bayonet wounds by Croatian Ustasha (pro-Nazi fascists) in World War II. According to the indictment, “during the investigation a witness stated that he had heard that Jovanka Nenadovic participated in torture of prisoners.”284 Such hearsay was sufficient to keep the elderly woman in prison for three months.
Vaso Gavrilovic, from Dalj, was arrested in January 1999. The Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Federal Republic of Yugoslavia (Serbia and Montenegro), the Republic of Croatia and Bosnia and Herzegovina visited him one month later.285 In subsequent months, no hearing was held or scheduled, nor did Gavrilovic see a judge or a state prosecutor. A year after the arrest, he was simply told that he was free, without further explanation.286 Gavrilovic was 70 years old at the time of the arrest; he had refused to flee the area even though his name was on the posters anonymously hung up in Dalj, containing the names of twenty-seven alleged war criminals from the municipality.287 Although most ill-founded cases end in acquittal or dropped charges, the threat of arrest and prolonged detention is enough to deter return of refugees.
The perception that war crime prosecutions are manipulated to deter innocent Serbs from returning has been reinforced by the authorities’ apparently discriminatory approach to war crime accountability. There are currently 1,467 pending war crimes cases, 99 percent of which involve non-Croat suspects.288 Starting in 2001, the government has prosecuted ethnic Croats as well as Serbs for war crimes. Still, in 2002, eighteen Serbs and only three Croats were convicted on war crimes charges, while three Serbs and fourteen Croats were acquitted.289 With one sole exception,290 Croatian judicial authorities still have not dealt in a credible way with cases in which ethnic Croats were responsible for the killing of dozens of Serbs, as in the cases of the Pakracka Poljana,291 Sisak,292 or Korana bridge.293 The proceedings against Croats so far have as a rule pertained to crimes that resulted in significant loss of lives.294 In contrast, the Croatian authorities have in some cases indicted Serbs for relatively minor violations of the laws of war, such as the theft of flour from a house (pillage) or the knocking out of a tooth (inhuman act).295 Depending on the circumstances of the case, such actions could possibly amount to war crimes. However, Human Rights Watch is unaware of any case in which an ethnic Croat was prosecuted on war-crime charges for abuses of this kind. Taken together, these prosecutorial practices amount to discriminatory enforcement of the law.
In the past two years, most arrests and war-crime trials of Serbs have resulted in dropped charges or acquittals. The record warrants greater resort to provisional release of indictees during pre-trial proceedings. Such a policy would reduce the appearance of a manhunt against male Serb returnees, reinforced by the extensive media coverage of every arrest. The risk that the suspect would flee justice unless promptly arrested would seem limited, since the mere fact of his return to Croatia attests to either his innocence or, at minimum, a willingness to have guilt or innocence established in court proceedings.
257 Human Rights Watch interview with Mathijs le Rutte, UNHCR Mission in FR Yugoslavia, Belgrade, August 20, 2001.
258 Human Rights Watch telephone interview with Savo Strbac, Veritas Director, December 13, 2002. Veritas is a documentation center of Serb refugees in Croatia. While the organization has a well-established cooperation with the ICTY Office of the Prosecutor in providing witnesses and evidence of war crimes, some Croatian media consider it biased. The Veritas data on war crimes arrests appear credible. For example, the OSCE mission in Croatia registered twenty-eight arrests of Serbs on war crimes charges in 2002, while Veritas independently registered twenty-seven cases as of November that year. Human Rights Watch interview with a representative of the OSCE Mission to Croatia, Zagreb, June 12, 2003; Human Rights Watch telephone interview with Savo Strbac, December 13, 2002.
259 Human Rights Watch interview with Momcilo Draca, Belgrade, December 19, 2002.
260 Human Rights Watch interview with Rob Robinson, then-head of the UNHCR mission to Croatia, Zagreb, August 23, 2001 (the figure came from the Croatian government).
261 OSCE Mission to the Republic of Croatia, Report on Croatia’s Progress in Meeting International Commitments Since September 1999, July 3, 2000, fn. 19.
262 Alun Roberts, spokesperson for the United Nations mission in Bosnia and Herzegovina, stated in February 2001 that twenty-two Serbs had been arrested on war crimes charges in 2001 in Croatia. See“Dismissals in Police Stations,” Glas srpski (Banja Luka, Bosnia and Herzegovina), February 21, 2001. An internal document by an international organization in Croatia, made available to Human Rights Watch in August 2001, used the figure of fifteen.
263 Human Rights Watch telephone interview with Savo Strbac, Veritas Director, December 13, 2002.
264 Human Rights Watch interview with a representative of the OSCE Mission to Croatia, Zagreb, June 12, 2003.
265 Human Rights Watch interview, Knin, June 12, 2002.
266 The State Prosecutor reasoned that the majority of war crimes charges were filed during the war, when the data regarding perpetrators and potential witnesses were often not available; in contrast, by 2000 it had become “possible… to compile additional data regarding [these issues].” Letter by the Deputy State Prosecutor of the Republic of Croatia Mr. Slavko Zadnik to the county prosecutors’ offices, October 10, 2000, no. 0-16/00, on file with Human Rights Watch.
267 Human Rights Watch interview with Robert Becker, deputy head of OSCE mission in Croatia, Zagreb, August 22, 2001.
268 As of December 2000, about 1,000 arrest warrants had been reconfirmed. OSCE Mission to the Republic of Croatia, Report on Croatia’s Progress in Meeting International Commitments Since 18 April 1996, May 24, 2001, para. 35.
269 Human Rights Watch interview with Branka Sesto, then-human rights assistant at the Office of the U.N. High Commissioner for Human Rights, Zagreb, August 23, 2001.
270 Human Rights Watch interview with Rade Vekic and Branko Ljiljak, Glina, August 28, 2001.
271 Judgment of the County court in Sisak, no. K-16/01, July 17, 2001.
272 Lada Kalmeta, “Za masakr u Skabrnji Momcilu Draci prijeti 20 godina zatvora” (Momcilo Draca Faces Up 20 Years In Prison for Massacre in Skabrnja), Slobodna Dalmacija (Split), June 2, 2001.
273 “Pusten iz pritvora Momcilo Draca” (Momcilo Draca Released), Hina, December 20, 2001.
274 “Pusten Mile Grbic” (Mile Grbic Released), Veritas Bilten, January 2002.
275 “Amnesija” (Amnesty), Veritas Bilten (Belgrade, FR Yugoslavia), March 2002; Human Rights Watch telephone interview with Savo Strbac, Veritas Director, December 13, 2002.
276 “Uhicen srpski pobunjenik, osumnjicen za ratni zlocin” (A Serb Rebel, War Crimes Suspect, Arrested), Vecernji list (Zagreb), June 5, 2001, and “Hrvatska policija uhapsila Srbina na granici sa BiH” (Croatian Police Arrested a Serb at the Border Between Croatia and B-H), Danas (Belgrade, FR Yugoslavia), June 6, 2001.
277 Human Rights Watch telephone interview with Savo Strbac, Veritas Director, December 13, 2002.
278 Ivica Dikic & Boris Raseta, “Judicial Sadism,” Feral Tribune (Split, Croatia), January 13, 2001 [online], http://www.cdsp.neu.edu/info/students/marko/feral/feral153.html (retrieved June 20, 2003).
279 See“Tko je u vrhu vlasti sprijecio pritvaranje ratnog zlocinca” (Who At the Top Prevented Detaining a War Criminal?), Slobodna Dalmacija (Split), November 28, 2000; “Zadarski zupanijski sud oslobodio optuzbe srpskog povratnika” (Zadar District Court Acquitted Serb Returnee), HRT (Croatian Radio Television) website, February 2, 2001 [online], http://www.hrt.hr/vijesti/arhiv/2001/02/02/KRV.html (retrieved June 15, 2003).
280 “Croatian police arrest two more Serbs,” Glas javnosti (Belgrade), February 8, 2001.
281 Human Rights Watch telephone interview with Savo Strbac, December 13, 2002.
282 Human Rights Watch telephone interview with Savo Strbac, December 13, 2002.
283 Human Rights Watch interview with Biserka Milosevic, attorney and Program Director at the Center for Peace, Non-Violence and Human Rights, Osijek, September 4, 2001; Human Rights Watch telephone interview with Savo Strbac, December 13, 2002.
284 Ivica Dikic & Boris Raseta, “Judicial Sadism,” Feral Tribune (Split, Croatia), January 13, 2001 [online], http://www.cdsp.neu.edu/info/students/marko/feral/feral153.html (retrieved June 20, 2003).
285 Situation of Human Rights in Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), Note by the Secretary-General, Addendum, A/54/396/Add.1, S/1999/1000/Add.1, November 3, 1999, para. 17.
286 Ivica Dikic & Boris Raseta, “Judicial Sadism,” Feral Tribune (Split, Croatia), January 13, 2001 [online], http://www.cdsp.neu.edu/info/students/marko/feral/feral153.html (retrieved June 20, 2003).
287 Human Rights Watch interview with Branka Sesto, then-human rights assistant at the Office of the U.N. High Commissioner for Human Rights, Zagreb, August 23, 2001.
288 Organization for Security and Co-operation in Europe, Mission to Croatia, Status Report No. 12, July 3, 2003, p. 14.
289 Organization for Security and Co-operation in Europe, Mission to Croatia, Status Report No. 12, July 3, 2003, p. 15.
290 On March 24, 2003, the county court in Rijeka sentenced three Croatian army officers to fifteen, twelve, and ten years in prison for the murder of fifty civilians, most of them ethnic Serbs, near Gospic in October 1991. Damir Herceg, “Oreskovicu 15, Norcu 12, Grandicu 10 godina zatvora” (10 Years of Imprisonment to Oreskovic, 12 To Norac, 10 To Grandic), Vjesnik (Zagreb), March 25, 2003 [online], http://www.vjesnik.com/html/2003/03/25/Clanak.asp?r=unu&c=1 (retrieved June 20, 2003).
291 Between October 1991 and March 1992, Croatian Special Police allegedly killed dozens, possibly hundreds, of Serbs in the detention camps in Marino Selo and Pakracka Poljana, in Western Slavonia. Ljiljana Maric, “Haagu popis s Vekicem, Seksom i Mercepom zbog 3000 nestalih” (Documents for The Hague, Implicating Vekic, Seks and Mercep in the Disappearance of 300), Vecernji list (Zagreb), October 22, 2000;seealso Viktor Ivancic, “Dossier: Pakracka Poljana, Part 1,” Feral Tribune (Split, Croatia), August 21, 1995 [online], http://www.cdsp.neu.edu/info/students/marko/feral/feral13.html (retrieved June 20, 2003).
292 Nongovernmental groups in Sisak maintain that in 1991 Croat extremists killed more than 90 Serb civilians in the town. The Sisak county prosecutor has been investigating twenty-one murders. See B. Pavelic, “Krim-obrada pri kraju, pocele i istrage?” (Police Investigation About to Finish, Court Investigation Begins?), Novi List (Rijeka), November 12, 2002. On June 23, 2003, the police arrested two individuals in connection to the Sisak crimes. “Uhapsene ubice srpskog civila” (Killers of a Serbian Civilian Arrested), B92 website (Belgrade, Serbia and Montenegro), http://www.b92.net/news/indexs.php?start=40&order=priority&dd=23&mm=6&yyyy=2003 (retrieved June 23, 2003).
293 On September 21, 1991, members of the Croatian special police allegedly executed thirteen reservists in the former Yugoslav People’s Army after disarming them at the entrance to Karlovac. Zeljka Pulez, “Nuzna odbrana iskljucuje krivnju” (Self-defence Excludes Guilt), Novi List (Rijeka), September 19, 2002.
294 In the Gospic case, the defendants are accused of killing at least 42 Serb civilians; in the Sibenik case, the accused were indicted for killing sixteen Serb civilians; the Lora indictment includes two cases of killings of prisoners in a military camp, but the number of killed in the prison is known to have been significantly higher; in the Bjelovar case, the indictment dealt with the killings of six Serb war prisoners; and, in the Virovitica case, the defendants were accused of killing one person.
295 Human Rights Watch interview with a lawyer at the OSCE field office in Pakrac, Pakrac, June 18, 2002.