Agreements and Politics

ROAD TO JUSTICE OR TO MISUNDERSTANDING

By Bojana Oprijan Ilic

"Serbia considers itself a successor of ex-Yugoslavia. Accordingly, it holds itself authorized for processing crimes against YPA. But if you agree that it is entitled to put to trial persons who have attacked a YPA column then you must also recognize your responsibility for all of that army's failures or crimes such as those in Croatia or Bosnia-Herzegovina," says professor Bogoljub Milosavljevic.

Over the past year the Serbian judiciary has put itself to shame by grinding out arrest warrants and extradition claims. Erroneous political or legal assumptions, bad timing or whatever turned Serbia's claims for extradition of Agim Ceku, Hashim Thaci, Ejup Ganic, Ilija Jurisic, Tihomir Purda and Jovan Divjak into complete failures. The case of criminal prosecution of Purda and two other suspects, Danko Maslov and Petar Janjic, is rather telling. Explaining why charges against the three were dropped Deputy War Crime Prosecutor Bruno Vekaric said the Prosecution had not offered sufficient evidence for the crimes committed in Vukovar in 1991. He also said the case itself can serve as a model of beneficial regional cooperation with Croatia's Public Prosecution and the judiciary in Bosnia-Herzegovina. "Serbia's War Crime Prosecution Office is rather reserved about the earlier investigations of the Military Court because they were very unprofessional," he told the press. Even when setting aside the question of why no one has bothered to review all those indictments and warrants so far most people are still at loss when it comes to extradition rules, valid extradition claims, the grounds on which someone can be extradited to a judiciary of a state "claiming" that person - in this case to the judiciaries of ex-Yugoslav republics. This is not about extraditions to the tribunal in The Hague but extradition rules and dilemmas about extradition to third states, extradition of persons with two or more citizenships, constitutional and legal provisions, and agreements the agreements some ex-Yugoslav republics signed in the past couple of years. It is common knowledge that criminals with several passports, mostly Bosnian, Serbian and Croatian, had found refuge in these countries thanks to the fact that their constitutions either provide against or hamper extradition of their citizens to other states. No doubt those legal frameworks for possible extraditions became clearer with signing of several bilateral agreements. However, they remained incomplete for unconditional prosecution of suspects of gross crimes, particularly war crimes. And this is more due to political concessions than to professionalism of judiciary branches.

For instance, referring to the indictments by Public Prosecution Office in Osijek against ex-YPA general Aleksandar Vasiljevic and Lt. colonel Miroslav Zivanovic for the war crimes against prisoners of war in the territory of Serbia from October 1991 till May 1992, Deputy War Crime Prosecutor Bruno Vekaric said the two could be put on trial in Serbia only as they were citizens of Serbia. On the other hand, not long ago Serbia's prosecution wanted Tihomir Purda and Jovan Divjak, citizens of Croatia and Bosnia-Herzegovina, extradited to it. "Since the indicted /Vasiljevic and Zivanovic/ are citizens of Serbia, only domestic courts can try them for the said crimes," he told TV B92. This means that Vasiljevic and Zivanovic can put on trial if Croatian prosecution demands it and if Serbian prosecution agrees to prosecute. In the case of Purda this procedure was not launched as no evidence could be found for the crimes claimed by Serbian prosecution. In practice, an extradition procedure starts with issuance of Interpol arrest warrant for a fugitive. If that person is tracked down and arrested by, say, the police in Croatia they extradite him to Serbia in the case he is its citizen. On the other hand, if a Croatian citizen commits a crime in Serbia and then goes back to Croatia, Serbia issues an arrest warrant. Even if Croatian police arrest that person his extradition to Serbia is more than questionable - actually impossible because Croatian constitution explicitly prohibits extradition of own citizens. All Serbia can do is to provide evidence and hand over the case to Croatia. Croatian courts are in charge of interrogating witnesses and the defendant, while Serbia's investigators may attend the trial.

"Unlike Croatian, Serbian constitution does not provide against extradition of its citizens. More precisely, is says nothing about it, has no provision on extradition - and that means that, in principle, extraditions are possible. Hence, persons can be extradited on the grounds of bilateral agreements," says professor Milosavljevic. Serbia has signed such agreements with Croatia and Montenegro so far, while an agreement with Bosnia-Herzegovina is announced. However, the Serbia-Croatia Agreement on Mutual Extradition of Persons Accused of or Convicted for Organized Crime and Corruption includes not extradition of war crime suspects or indictees. Then, on what grounds has Serbia claimed extradition of Tihomir Purda, citizen of Croatia and former member of the National Guard, charged in Serbia for war crimes against wounded prisoners of war in 1991 in Vukovar? It would have been only logical had Serbia claimed his extradition from Bosnia-Herzegovina as a "third party" during his stay there or during his stay away from the country the constitution of which prohibits extradition of its citizens.

In March 2011 Serbia's Ministry of Justice requested extradition of Jovan Divjak, Bosnian general at the time of war, who had been arrested in Austria. The Serbian judiciary suspected him of having participated in the attack against YPA column in 1992 in Sarajevo, in Dobrovoljacka Street. Interestingly, since 2005 Divjak has been in Belgrade several times to address panel discussions on reconciliation and facing the past. Serbian officials have also been present on these occasions but none of them seemed bothered with Divjak's presence despite the fact that he had been accused of war crime committed back in 1992. From a legal point of view, the agreement on extradition between the former Yugoslavia and Austria to which Serbia and Bosnia-Herzegovina succeeded provides that a person claimed for extradition shall be extradited to the state of which he is citizen. Jovan Divjak is a citizen of Bosnia-Herzegovina with which Serbia has not signed yet an agreement on extradition of "common" criminals or the accused or suspects of war crimes.

Explaining why Serbia's judicial authorities, though aware of these norms and legal frameworks, claim extraditions of persons such as Divjak, professor Milosavljevic says:

"Serbia considers itself a successor of ex-Yugoslavia. Accordingly, it holds itself authorized for processing crimes against YPA. But if you agree that it is entitled to put to trial persons who have attacked an YPA column then you must also recognize your responsibility for all of that army's failures or crimes such as those in Croatia or Bosnia-Herzegovina.". However, Military Prosecution Office was focused on the crimes committed against YPA only and never gave a thought to the other way round, he adds. "I share the opinion that Serbian prosecution should deal with the crimes committed by Serbia's citizens, and the Croatian with the crimes by its citizens, and that the two should exchange information. Such an exchange would do by far more good than extradition claims made at the point when relations with Croatia only begun to warm up. Such claims are counterproductive," says professor Milosavljevic. From the legal point of view, the person whose extradition is claimed first needs to be indicted and then an arrest warrant can be issued if that person is, say, a fugitive from justice. "In any case, when two countries sign an agreement on extradition they signal mutual readiness for cooperation. As relevant proceedings are usually politically delicate it goes without saying that such agreements are of major significance," he says.

For now Serbia has signed with Montenegro only an agreement on extradition of own citizens, which includes extraditions of the accused of war crimes. The agreement was signed in October 2010 and thirteen persons were arrested immediately - five out of them were indicted for war crimes. Though Serbia-Croatia agreement does not provide extradition of those accused of war crimes and crimes against humanity, the two countries are bound by the Agreement on Cooperation in Prosecution of Persons Accused for War Crimes, Crimes against Humanity and Genocide, signed by their respective prosecution offices.