Vukovar Three Trial Debated

Friday, 18 November, 2005

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Goran Jungvirth

The Hague tribunal heard arguments this week from the governments of Serbia and Montenegro and Croatia on the best location for a war crimes trial involving three Serbs charged with massacring hundreds of Croat prisoners.

Prosecutors at The Hague have asked for the accused in the case – known as the Vukovar Three – to be transferred to a local jurisdiction in the former Yugoslavia, to meet the tribunal’s own deadline to finish its prosecutions at the Hague by 2008.

But this proposal has become the focal point of a heated political debate between the two countries, who are painstakingly rebuilding relations damaged by years of war.

The three former Yugoslav army officers – Miroslav Radic, Veselin Sljivancanin and Mile Mrskic – are charged with the massacre of 264 Croats who took refuge in the Vukovar hospital in November 1991, when the Croat town fell to Serb forces.

After being taken prisoner by the former Yugoslav army, JNA, the prosecution alleges the victims were sent by bus to the nearby Ovcara farm, where they were executed by members of various Serb territorial defence units and paramilitary groups. The victims included hospital staff, patients and prisoners of war.

The three men are accused of overseeing the rounding up and transportation of the victims and knowing or having reason to know what was going to happen to them. All three have been charged on the basis of both personal and command responsibility. They have each entered not guilty pleas to the charges.

Under Rule 11 bis of the tribunal’s statute, low- and mid-ranking cases can be transferred to local war crimes courts.

The judges now have to decide whether the case should be transferred from The Hague and where – to Serbia and Montenegro or to Croatia. When the prosecutors first suggested the case be sent to the Balkans, they presented the judges with arguments in favour of both Croatia and Serbia, leaving the final decision to the trial chamber. (See Countries Vie for Vukovar Case, TU No 393, 11-Feb-05, http://www.iwpr.net/index.pl?archive/tri/tri_393_1_eng.txt)

Almost immediately, the leaderships of both countries started a political battle for jurisdiction over the indictees.

This week, the sides presented their arguments to the special referral bench of the Hague tribunal, set up with the aim of deciding whether the cases could be send for trial to local courts.

The Croatian government told the court that the trial should be held in their country because that is where the crimes were committed. The Serbian side, on the other hand, claimed Serbia’s right to try its own citizens who were either arrested or surrendered on Serbian territory.

The Serbian side, led by the chairman of Serbia and Montenegro’s council for cooperation with the Hague tribunal, Rasim Ljajic, used the hearing to criticise the Croatian legal system, pointing out a number of legal issues to support their claim that “Croatia cannot ensure a fair trial”.

They also cited Organisation for Security and Cooperation in Europe reports into the Croatian justice system, which had found problems with previous trials of Serbs in Croatia, suggesting that the three officers would not receive a fair trial should they be sent there.

A statement from Croatian justice minister Vesna Skare Ozbolt, in which she stressed the importance of transferring the case to her country because it concerns the “most serious crime that was ever committed on Croatian territory”, was also cited by the Serbs as evidence that Croatia could only provide a “political” trial.

In reply to the Serb arguments, Croatian government representative and law school professor Zeljko Horvatic tried to convince the judges that the justice minister’s statements should be viewed as simply part of Zagreb’s lobbying efforts over the transfer of the case. He added that “if the minister ... were to influence the trial once it starts then the state prosecutor would have to press charges”.

In submitting the application for a transfer, prosecutors argued that the trial could go to either venue. But they suggested priority should be given to the country where the crimes were committed, saying “justice should be rendered as close as possible to the victims” - which would mean holding the trial in Croatia.

During the hearing, the prosecution also made clear that it considered Serbian arguments about the accused needing to be returned to Serbia, because they had been arrested or given themselves up there, were irrelevant.

“An indictee cannot be the one to decide where he or she stands trial,” prosecutor Susan Somers told the court.

However, the prosecution has also argued that the most important issue is whether the country to which the case would be transferred would be capable of offering a fair and unbiased trial.

The Serbian representative reminded the court that another trial of 17 people is already underway in Belgrade dealing with the same events at Ovcara. Many among them are accused of being the direct perpetrators of the massacre. Ljajic said that this trial proved the Serb judiciary was capable of holding legal proceedings in line with highest international standards. He also suggested combining the trials, and said that “would guarantee a considerable reduction of costs” while providing the same high level of justice.

But prosecutors argued that a trial concerning command responsibility for the events at Ovcara would be in “sharp contrast” to the trial of the low-ranking indictees currently taking place in Belgrade.

And relatives of the Ovcara victims have complained that the Belgrade trial is far from perfect, describing it as a farce, because of the alleged dishonesty of some of the witnesses.

The Serbian side also argued at the hearing that referring the Vukovar Three trial to Belgrade would be of major importance “so the public could face the crimes that were committed”, claiming that it would help the reconciliation process in the region. Ljajic added that transferring the case to Croatia would “result in the Serbian public’s resistance to cooperation with the Hague tribunal”.

Defence counsels used similar arguments to those of the Serb government. Citing the latest OSCE mission report, the lawyers said that about 500 Serbs had so far been convicted in absentia in Croatia, that some witnesses had been intimidated and killed, and that trials were conducted in inadequate conditions.

Defence lawyer Borivoje Borovic warned that many officers in the former Yugoslav army had been convicted in absentia in Croatia. He feared that not one defence witness would show up at a trial in Zagreb because most potential defence witnesses were former officers or politicians who were in power at the time when the crime was committed.

Belgrade legal expert Vladimir Djeric, speaking for the Serbian government side, claimed that Croatia still had around a thousand secret indictments against former Serb officers.

Croatia’s representative Horvatic said the allegation about secret indictments was untrue. He admitted, however, that possible witnesses might be reluctant to appear if they had been convicted in absentia, and gave the court assurances that such witnesses would be safe.

No decision has yet been taken on the possible transfer of the Vukovar Three, which could set a precedent for the transfer of at least eight more trials from the Hague to local courts, with many more to follow as the tribunal winds up its work.

Following the discussion, the trial chamber will decide whether it will transfer the case at where. Presiding judge Alphons Orie’s closing words showed that they know they have a difficult decision to make.

He said that the court recognised that victims and their relatives “would think that little weight is being given to their interests” if the trial were held in Serbia, and “the suspects could feel that little weight has been given to their rights” if it went to Croatia.

In theory, at least, tribunal judges could also decide that the case should remain in The Hague.

Goran Jungvirth is an IWPR contributor in Zagreb.