Institute for War and Peace Reporting | Giving Voice, Driving Change

Extradition No Panacea for Balkan Legal Problems

EU wants bans on extradition overturned – but this is one of many problems facing local judiciaries.
By Simon Jennings
Pressure from the European Union may force Croatia, and other Balkan states keen to enter the bloc, to extradite citizens to face trial abroad, however observers doubt whether this would be enough on its own to secure justice for war crimes victims.

The ban on extradition is just one of many problems facing a region where attempts to create a secure judicial system suffer from inexperience, lack of resources and lingering inter-ethnic distrust.

“There is no ban on [extraditing suspects] to national judiciaries in the European Union. Before it enters the bloc, Croatia will have to amend its constitution,” said Croatian prime minister Ivo Sanader in September.

Extradition is a key issue for lawyers in the former Yugoslavia, where criminal suspects can find a safe haven by crossing into a neighbouring country. A Croat living in Croatia, but facing charges brought by a Bosnian court, say, could not be sent there for trial.

According to the Croatian state attorney, by the end of 2007, 36 Croatian war crimes suspects had been arrested at border crossings.

The outgoing president of the International Tribunal for the former Yugoslavia, ICTY, Judge Fausto Pocar, said he would welcome any initiative to ease the extradition of suspects.

“Removing this rule would be a good step, because it would prevent fugitives from finding impunity simply by moving to a neighbouring country,” he told IWPR.

Croatia is not the only offender in this regard though, since both Serbia and Bosnia also do not hand over suspects to their neighbours. Sanader called on them both to follow Zagreb’s lead.

“Given that all Southeast European countries also aspire to joining the EU, they will have to amend their constitutions or legislation because without it, there is no admission into the bloc,” he said.

But that could be easier said than done. The wars of the 1990s are still fresh in the memories of citizens of the former Yugoslav states, making close cooperation unlikely.

Bruno Vekaric, spokesman for the Serbian War Crimes Prosecutor Office, doubted that the three states were yet ready to work together, and should take small steps first.

“Passions have still not cooled in regards to the wars,” he said.

“The real priority is an agreement on exchanging evidence between the prosecutors in Croatia and Serbia. The political divide is still deep, because there are some very sensitive cases in Serbia and in Croatia also. We have suggested a single team should be created to investigate all war crimes in the region,” he said.

And Vekaric has counterparts in Croatia and Bosnia as well who suggest that less glamorous steps, such as increased funding for courts, would prove more effective than grand political gestures in securing justice.

Vesna Terselic, president of the Croatian non-governmental organisation Documenta, said Sanader’s government should focus on increasing the capacity of war crimes courts in order to effectively hear the trials already taking place.

“Limited capacities are a serious obstacle because, according to [the organisations] following war crimes trials, courts are already using their maximum capacities,” said Terselic.

Bosnia, meanwhile, has also struggled to make progress. Tentative suggestions to approve extradition to neighbouring states have been blocked by the Serb half of the country, Republika Srpska, which has no interest in seeing war crimes suspects transferred abroad.

Sefket Hafizovic, the vice-president of the Bosnian Serb parliament, told IWPR there should be a regional approach to the problem to reflect the ideas current in different parts of Bosnia, which are dominated by Serbs, Bosniaks and Croats.

“The problem is that in Bosnia there is no political determination and will for constitutional changes and there are also three different views about this question,” he said.

It all adds up to a complete freeze on extradition, which is very frustrating for the legal officials in the three states.

“There is no effective extradition between any of the countries in the region,” David Schwendiman, the deputy chief prosecutor at the Bosnian war crimes court, told IWPR.

“If you are a Serbian citizen you would never be extradited to Bosnia-Hercegovina, if you were a Croatian citizen you would never be extradited to Bosnia-Hercegovina.”

And he questioned whether there was currently enough political will in Bosnia, as well as in the wider region, to enable this change.

“For us to send [war crime suspects] to Serbia would require a major political change of mind here,” he said.

“As time wears on maybe [there will be the] political will to do that. I don’t see it happening tomorrow, I don’t see it happening quickly… I don’t see there’s any interest in it from Serbia for example.”

According to Croatia’s ministry of justice, Bosnia has arrest warrants outstanding for 33 of its citizens who also hold Croatian nationality, while Croatia has requested that two of its citizens be sent back from Bosnia, where they also hold citizenship.

No figures are available for indicted war crime suspects from Serbia or Bosnia who are thought to be evading arrest in neighbouring jurisdictions, but Croatia’s justice ministry says that Interpol has issued 670 international arrest warrants for people suspected of war crimes during the 1991-5 war. Of these suspects, 304 have been convicted in Croatia in absentia.

Schwendiman explained that while some international arrests warrants have been issued by Interpol in Bosnia, it was not routine.

This does not mean, however, that suspects who have left their country of origin cannot be tried.

The laws banning extradition only apply between states and cannot prevent the removal of war crimes suspects to the ICTY in The Hague.

The transfer of suspects to The Hague is sanctioned due to the court’s status as a body of international justice. The procedure is not formally one of extradition but, rather, one of “surrendering” suspects to the United Nations court by UN member states.

Separately, under the European Convention on the Transfer of Proceedings in Criminal Matters, one state may request that another prosecute a suspect residing there.

However, the second state has to agree to do so and the procedure can be both politically sensitive and procedurally difficult because witnesses and victims must travel to give evidence.

Technically, as well, Serbia can extradite citizens under its new constitution adopted in 2006, but this is only possible if it has a treaty in place with the receiving country. It has no such agreement in place with its Balkans neighbours.

But Brussels is uncompromising in its insistence that new members abide by EU law on the issue, and allow extradition to other member states.

Since 2004, members have had to follow the European Arrest Warrant, EAW, system, which allows for the extradition of their own citizens to other EU member states. Germany, Poland and Cyprus all had to change their constitutions to fit in with the regulation.

According to the European Enlargement Commission in Brussels, potential new members will likewise have to make constitutional changes to allow for extradition.

“A candidate country for EU membership would need to change its constitution in so far as this provided for a ban on the extradition of nationals to other EU member states,” Commission spokeswoman Krisztina Nagy told IWPR.

“The EU will not accept new member states, which…cannot participate in the European Arrest Warrant system.”

Pressure from the EU is often a major driver of change in the Balkans. It is, for example, considered key to continuing Serbian efforts to detain war crimes fugitives such as Radovan Karadzic, who was arrested in July this year after 13 years on the run.

Pocar said he hoped the EU would continue to provide all necessary assistance.

“Without sufficient support it is unlikely that the judiciaries will reach the level necessary to join the European Union,” he said.

According to Dalida Demirovic, project manager at Bosnia’s Centre for Civic Initiatives, Bosnia is a case in point. Its politicians, she said, are much more responsive to the EU’s demands than those of its own people.

“We have a situation right now where the leadership of the countries listen more to EU than to their own citizens,” said Demirovic.

“I think the EU is pretty clear on their conditions but I don’t know if our politicians are always willing to understand that. I don’t think there are any doubts on what the EU wants from us.”

But if the problem was solved, it would not signal immediate admission to the EU, for it is just one of many. In the grander scheme of things, among potential candidates, war crimes prosecution has seen far greater progress than other areas of concern.

Schwendiman said that, considering how short a time Bosnia has been prosecuting war crimes, it had done extremely well.

“Bosnia-Hercegovina has only been doing major numbers of war crimes investigations and prosecutions since about 2004,” he said.

“We have some spectacular results in terms of the numbers… we’re getting better at doing more significant larger cases and learning how better to organise all of that. That’s our effort right now.”

But a lot remained to be done to bring the other sections of the Balkan states’ legal systems up to the same standard, said Marko Prelec of the International Crisis Group.

"Things are actually going quite well, especially compared to prosecutions of organised crime, dealing with corruption and establishing genuine judicial independence throughout the system, all of which are still very serious challenges throughout the region, even in Croatia,” he said.

Supporters of removing the ban on extradition are calling for a blanket approach to the problem across the region. Only then will it be possible to avoid disparity in extradition laws between western Balkan states.

“I think that all countries in the region should work on this together because it’s not good if Bosnia and Croatia have an agreement and Bosnia doesn’t have [one] with Serbia. [And] we [won’t] solve the problem if any of those countries doesn’t have [an agreement] with Montenegro,” said Demirovic.

To fully address this, all legislation banning extradition must be removed across the Balkan states. Even if a country in the region joins the EU and the EAW system, that would only allow for suspects to be extradited to other EU countries.

“Croatia can for example, after its EU accession, continue to prohibit extraditions to the non-EU member states in the Balkans,” confirmed Nagy.

Meanwhile, little progress has been made up to now on this issue – even in Croatia which is expected to join the EU next year.

“[In Croatia] this chapter of the negotiations still remains to be opened,” said Nagy.

Simon Jennings is an IWPR reporter in The Hague. Aleksandar Roknic in Belgrade, Velma Saric in Sarajevo and Goran Jungvirth in Zagreb contributed to this report.

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