Court for the Acquittal of War Crimes

Basic knowledge about a state’s government system points out that the state is based on three branches of power – executive, legislature and judiciary. This sounds great in theory. The legislature adopts the framework, the executive implements it, and the judiciary serves as a monitoring and warning system, independent from both. The problem arises when theory clashes with practice or vice versa. Then we get a legislative branch that is a mere extension of the executive one, or vice versa, whereby the situation is not much different concerning the judiciary. The latter can even serve the purpose of officially legalizing political decisions made by the first two.

Serbia's accountability for war crimes committed on the territories of Croatia, Bosnia and Herzegovina, Kosovo, and even Serbia, is not subject to public discussion. According to that narrative, Serbia did not take part in the wars. Serbia, as we are told, has only participated in defensive wars. It has always been on the right side. Why would anyone then question this narrative? Why would anyone, including the judiciary, deal with this?

It seems that the speed on a path of relativization is even increasing. The story of war crimes would be concluded, at least when it comes to this generation, as it doesn’t fit the ruling vision of the future, at all – all the road networks, investments, etc.

In early July, the Court of Appeal, in its appeals process, rendered its final judgment of acquittal in the case of the "Sima's Chetniks" paramilitary group. They were charged with the destruction of a mosque and the murder of 27 Roma civilians in the village of Skočić (Zvornik, Bosnia and Herzegovina) in July 1992. The testimony of Zijo Ribić, the sole survivor of this massacre that claimed the lives of his entire family, while he escaped death due to an incredible set of circumstances, was in vain. His life is not worth anything here, anyway, nor are the lives of the other 27 Roma men and women including Zijo's heavily pregnant mom, six sisters, father and brother.

It was only five years ago that it seemed that Zijo's tears, following the conviction in the first instance judgment by the Higher Court in Belgrade's War Crimes Division, had fallen on fertile ground. It seemed as though Serbia and her judiciary indeed believed tears. It was more difficult for Zijo to handle the verdict against the perpetrators back then, than this acquittal. It was as if he was liberated at that moment. Liberated from excess emotion – if there even is such a thing when it comes to losing family and loved ones. Perhaps it made him calmer while awaiting the Court of Appeal's decision, which first ordered a retrial, and then confirmed the acquittal that had been previously rendered by the same Higher Court which convicted "Sima's Chetniks" in the first trial.  

And now, if the pending constitutional appeal does not bear fruit, one is left with the possibility of chasing the state all the way to Strasbourg.  

What's particularly problematic with regard to this judgment, and very likely to influence the three remaining major war crime cases left before this Higher Court, is also something that the Humanitarian Law Center has warned about.  The acquittal is based on a lack of evidence, specifically the kind of evidence that would directly link each of the group's individuals to the crime committed. The court does not perceive "Sima's Chetniks" as a group of co-perpetrators, but rather as a group of individuals, even though it is known that the group was organized on a voluntary basis, hence the individuals could have quit upon realizing that their actions violated ethical and moral principles. However, such realization requires one to posses the said principles in the first place.

What about the remaining cases?

In a convenient turn of events, they are evenly distributed and cover the territories in which Serbia was officially not at war, except for Kosovo. Serbia did go to war, but in order to save the national honor. How this played out in practical terms is shown by the village of Ćuška, near Peć. In this case, honor is measured by more than 120 Albanian corpses.

According to the indictment, Serb forces, i.e. members of the unit called "Šakali" ("Jackals") entered Ćuška, as well as the neighboring villages of Pavlan and Zahać, on May 14 1999, and killed a total of 138 Albanians. In 2014, nine members of the "Jackals" were found guilty and sentenced to a total of 106 years in prison. However, the Court of Appeal in Belgrade overturned this verdict in 2015 and ordered a retrial because, as was stated, the Higher Court for War Crimes failed to "provide adequate justifications" for the verdict.

"Jackals" were considered one of the cruelest units. The War Crimes Prosecutor's Office considered it a paramilitary unit, whereas the Higher Court's sentencing deemed them part of the regular army since the latter was paying their salaries, after all. They went a little rogue and, there you have it ... They killed some civilians, did a bit of plundering, was the unspoken reasoning.

Recent interesting news concerning this unit's members speaks volumes about the true nature of this group and the place of "honor" in their set of values.

Here's the content of the report: "Montenegrin police confirmed the arrest of P.V. (64) from Šabac, who was wanted by Interpol to serve a seven-year prison sentence in Serbia, for drug trafficking and theft, as well as with regard to trial proceedings in a case in which he is suspected of committing a war crime against civilians.It is suspected that P.V. committed a war crime between March 23 and June 20 1999 in the village of Ćuška near Peć, as a member of the paramilitary "Jackals" unit, by attacking Albanians, killing and torturing them, and taking their personal property so as to gain profit. A total of 41 persons were killed on that occasion."

This is the profile shared by numerous criminals who, after the war, continued to reap benefits of the chaos they themselves created.

The leader of those "Jackals" was Nebojša Minić. He went to Argentina, allegedly after he was informed about an impending indictment for war crimes. Before his involvement in Kosovo, Minić made his reputation alongside Željko Ražnatović Arkan in Bosnia and Herzegovina. Had his death not saved him from the indictment, he probably would have observed the procedure as a free man. Or he would have been acquitted, like the man who was in charge, the then commander of the 125th Motorized Brigade Dragan Živanović. The latter was subject of an investigation regarding war crimes. However, it was halted "since there is no evidence of him committing the crime which was subject of the investigation, and [there is no evidence] that by not undertaking any action he committed a war crime in the Kosovo villages of Ćuška, Pavljan, Ljubenić and Zahač, in 1999."

One of those cases in which Serbia, or rather the "knights" representing her, officially took no part in, is the one in Lovas (Croatia).

Milan Devčić and another nine indictees were charged with war crimes and the killing of 70 Croatian civilians, as members of the Yugoslav People's Army (JNA), the "Dušan Silni" formation and the local authorities, during October and November of 1991 in Lovas (Croatia). The indictment was raised back in 2007 and the first-instance verdict rendered by the Higher Court in Belgrade in 2012 found all indictees guilty. They were sentenced to imprisonment, ranging from four to 20 years.

This is where the Court of Appeal comes back to the picture – it annulled the verdict, bringing everything back to the beginning. It is expected that by the end of this year the hearings will continue in this case that has dragged on for 11 years, with no end in sight. Or perhaps we are mistaken. During that period, four indictees have passed away. Hence, all bets are off.

With regard to the Kravica village case, in which eight members of the Special Units of the Army of the Republika Srpska have been charged with the death of more than 1300 Bosniak civilians, the Prosecution had no dilemma. The qualification of genocide was ruled out from the very start. Namely, the Prosecution considered the case to be an open-and-shut one, thus thought that the “genocide” qualification would potentially jeopardize it.  No one would probably mind too much if the case were not still at its beginning, even after two years. First an exemption concerning the trial chamber was sought, followed by a list of protected witnesses' names, and then the whole process took a step backwards because the post of war crimes prosecutor was unoccupied. When all of that was resolved, the obstruction took its usual course, as in the previous cases. If only one of the indictees fails to show up, the entire process is delayed further.

To the surprise of many, including the defense attorneys, all eight indictees finally showed up at the last hearing. One of them, who caused the delays of previous three hearings, is particularly interesting. Dragoslav Parović. A man who had already been declared mentally incompetent after he attempted to cut his wrists, followed by a stay in a psychiatric institution. This was also preceded by his confession to the crime. All of this triggered the public defamation of a potentially dangerous man.

Other participants in this process were “taken care” by someone. Here we refer primarily to the protected witnesses, since one of the three witnesses already opted not to testify due to threats. Allegedly, some of the lawyers also took part in that. 

Regardless of the fact that witness hearings have finally begun and that it seems that the defense is facing a chess mate, one should keep in mind that even if the court renders a conviction, it will be followed by a higher instance court, namely the Court of Appeal which, as a rule, brings cases back to the beginning.

In addition, we take note of the fact that three war crime cases were completed last year, resulting in all three acquittals.

On December 25 2017, the Higher Court in Belgrade's War Crimes Division rendered a verdict which acquitted Marko Pauković and Dragan Bajić, indicted for war crimes against civilians, due to a lack of evidence.  Bajić and Pauković,  members of the Army of Republika Srpska's 6th Sanska Brigade Military Police, were indicted for the murders of Hasan Rahić (60), Minka Jusić (70), Munira Hotić (54), Đemila Behar (54) and the underage Safeta Behar (12), committed on October 10 1992 in the village of Kamičak (Ključ municipality, Bosnia and Herzegovina). In March, the Court of Appeal acquitted Goran Šinik of the murder of civilians in the town of Gradiška (Bosnia and Herzegovina) in 1992. In April, it acquitted Neđeljko Sovilj and Rajko Vekić of the murder of civilians in the Bosanski Petrovac municipality (Bosnia and Herzegovina) in December 1992.

So, we are entering the final phase of denial which is reflected by actions of the current Serbian regime which bears much responsibility for what took place between 1991 and 1999.  It clearly also serves the purpose of erasing those persons' own biographies. However, it would be much easier if only this was the case. Unfortunately, the current regime has only continued what the previous one had already started, particularly the one following October 5 2000. It is a matter of continuity of a practice in which war crime trials have always represented a necessary evil, always under pressure.

The key moment that contributed to a full relativization of war crimes, as mentioned at the beginning of this article, was Aleksandar Vučić's visit to Potočari in 2015. Unfortunately, it did not serve the purpose of expressing sincere penitence from Serbia, which would be best done by conducting serious trials in the Srebrenica case, as well as by properly qualifying the crime – for, whether Serbia wants to admit it or not, the genocide is a proven fact, confirmed by numerous court verdicts.

The incident that took place during the visit marked a turning point. Since then, no other Serbian representative went to the commemoration because, as we have said, they consider the case to be closed.

It took seventeen months for a new war crimes prosecutor to be appointed. When she took over the post, she only confirmed the aforementioned. Trials of war crimes committed against Serbs will be her priority.

This was followed by the Draft Prosecutorial Strategy for the Investigation and Prosecution of War Crimes in the Republic of Serbia 2018-2023. The non-governmental sector expressed numerous objections to the draft, the main one being that the document does not adequately address the country's continuous failure in prosecuting high-ranking suspects, and that no deadlines nor indications have been introduced in order to show whether the strategy was successful or not.  

Let us get back to the topic of roads. They will certainly come in handy once the story of war crimes is concluded in this fashion. Come tomorrow, some new soldiers and tanks will have an easier job finding their destinations. And they will step over the bodies of those who will never find their peace.