Vukovar Case Decision Provokes Mixed Reactions

There have been mixed reactions in Belgrade and Zagreb over the chief prosecutor Carla Del Ponte’s unexpected decision a week ago to withdraw her motion to have the Vukovar Three trial transferred from The Hague to a Balkan court.

Three former Yugoslav army officers - Veselin Sljivancanin, Mile Radic and Mile Mrksic - are accused of involvement in the massacre of some 260 Croat civilians in 1991, close to the eastern Croatian town of Vukovar.

Croatian justice minister Vesna Škare Ožbolt told IWPR on June 15 that she was happy about the decision. In a partial reversal of her previous stance, she said that “because of the severity of the crimes [the case] deserves to return to The Hague and be tried in front of international justice”.

In Belgrade, however, legal experts expressed disappointment with the prosecutor’s decision. Bruno Vekaric of the local war crimes prosecutor’s office told IWPR that there were many arguments in favour of holding the trial under the auspices of the Serbian judiciary, which, he says, has operated impeccably so far in war crimes cases. Without the Vukovar case being transferred “we shall not be able to face the truth and analyse the ... crimes in one place”.

Another legal expert from a western embassy in Belgrade, speaking on condition of anonymity, also expressed disappointment. “It is a pity, because that was the only case that Serbia could have taken over from The Hague,” he said.

Another commentator argued that “it could have been a good test case”, especially as the trio were Yugoslav army officers, but conceded that perhaps the decision was for the best as the transfer could have damaged relations between the two countries.

Del Ponte apparently withdrew the transfer request because of the heated political debate between the two former Yugoslav countries over which should try the case.

The case concerns one of the most notorious events in the Croatian war when 264 Croats at a hospital near Vukovar were separated from others while the town was being taken over by Serb forces, and transported to a nearby farm at Ovcara. There the victims – who included hospital staff, patients and prisoners of war – were killed by members of various Serb territorial defence units and paramilitary groups.

The Vukovar Three are accused of overseeing the process of rounding up and moving the victims despite knowing, or having a reasonable suspicion of, what was going to happen to them. All three have entered not guilty pleas to the charges.

When the prosecution made its application in February this year under the tribunal’s rule known as 11 bis – which allows for the transfer of low- and middle-ranking cases to national jurisdictions in order for the tribunal to complete all its prosecutions by 2008 and close its doors by 2010 – there were many observers at the tribunal who raised an eyebrow.

The main reasons for their surprise were the relatively high rank of the accused, the high profile of the case and the pressure and the effort needed to bring them all to the Hague in first place – including a day-long standoff at the doors of Sljivancanin’s flat in Belgrade.

But the prosecution used a range of arguments to support its application – that the individuals were not so highly-ranked at the time of the crimes, and that there were sufficient reasons to be confident in the ability of the local courts to handle such cases.

Local politicians in both Belgrade and Zagreb used the opportunity provided by the prosecution application concerning the Vukovar Three to start stirring up a local media frenzy in support of their claims.

“For Serbia it is unacceptable that the Vukovar Three ... will be extradited to Croatia's courts,” Serbian president Boris Tadic told Serbian media at the time.

Croatian justice minister Ožbolt told IWPR at the time that her country considered the Vukovar hospital killings to be “the most serious crime that was ever committed on Croatian territory”, and would thus “offer absolutely all needed arguments for Croatia to get the case”.

But some Croat politicians had argued that using Rule 11 bis would diminish the severity of the massacre outside Vukovar, as the maximum sentence for such a crime in Zagreb is 20 years in prison, whereas the tribunal could hand down a life sentence.

The fact that the prosecutor had left it up to the judges of the Referral Bench of the tribunal to decide which country was more suitable for holding the trial resulted in the proceedings on May 12 - where the two sides argued their cases – being very heated. Accusations of bias and unfairness were thrown from one side at the other and, at the end of the hearing, the judges acknowledged that they were faced with an almost impossible task.

On June 9, the prosecutor filed a motion to withdraw the application for the case to be transferred. She cited a 1998 UN Security Council resolution which specifically named the accused as showing the importance of the case, alongside "potential difficulties… that could not have been foreseen at the time when the application was made and when the case was argued".

However, the defence argues that the prosecution cannot suggest that a 1998 resolution is a “new or unforeseeable” circumstance. The Serbian government also suggests that the UN resolution has nothing to do with “any of the factors that may be relevant to the proceedings”.

Del Ponte later admitted in front of the Security Council that she withdrew the application because “the so-called Vukovar Three case is extremely sensitive and any decision by the chamber to transfer it would provoke deep resentment”.

A senior tribunal source also suggested that there might have been potential problems with getting witnesses to appear, or cooperation for investigations on the ground. But these issues have not been made public and the spokesperson for the prosecutor’s office declined to comment to IWPR.

But the matter does not rest there. Just one day after the prosecutor filed the application to withdraw the referrals, both the Serbian government and the defence counsels of the three accused filed what one senior source in tribunal described as “tightly-argued” motions before the court, challenging her move.

The defence states that it is “amazed by such [a] motion of the prosecution”. They point out that all the facts had been presented to the court and that the judges specifically said they needed no further arguments. They also argue that the four months between the time that the prosecution filed the initial motion, and then withdrew it, has been wasted, and returning the case to The Hague will not help with judicial economy.

The defence, meanwhile, is urging the court itself to make the decision on referral, because it is not bound by the prosecutor. The judges, according to the Hague tribunal’s rules, can send the case back to the region either at the prosecutor’s suggestion or at their own initiative.

The Serbian government agrees that it is up to the judges, not the prosecutor, to decide on the referral or not. They also point out that the prosecutor’s motion only refers to unspecified “issues” and “potential difficulties”, and says it therefore “does not contain sufficient evidence” to help the court make a decision.

Whether the judges will decide to hold a further hearing to examine the defence arguments is not yet clear. There is no obligation for the judges to do so.

One of the issues still glaringly open in the aftermath of the conflict in the Balkans is that of lack of cooperation in justice between states, and most specifically in relation to the extradition of suspects.

Earlier this month, the Organisation for Security and Cooperation in Europe hosted a conference in Brijuni, Croatia, of senior justice officials, including those of the tribunal, and ministers from Croatia, Bosnia and Hercegovina and Serbia and Montenegro, on inter-state judicial cooperation in war crimes proceedings.

Observers at the conference say that a suggestion that it was time to start cooperating on extradition issues was greeted almost across the board with an emphatic “no way”.

The tribunal has some ten motions pending for possible transfer of cases from The Hague to local jurisdictions. All bar three concern cases to return for trial in Bosnia.

The referrals under the tribunal’s rules are intended to help the institution complete prosecutions within a time frame of 2008, which has been set by the UN Security Council. Earlier this week, the prosecutor and the president of the tribunal presented their six-monthly reports in New York and argued that a number of factors would prevent them from fulfilling that deadline, and that they expect trials to carry on until the end of 2009, at least.

Goran Jungvirth is an IWPR contributor in Zagreb. Daniel Sunter in Belgrade and Janet Anderson in The Hague contributed to this report.