VIEWPOINT: Could Serbia Hold War Crimes Trials?

Saturday, 6 October, 2001

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Slobodan Beljanski

The claim by Serbia's new authorities that the domestic courts are as capable of handling war crimes trials as The Hague tribunal raises questions about whether the country's legal system and judiciary is really ready to prosecute them.

Formally the Serbian courts should be able to deal with such cases. The criminal acts described in The Hague tribunal's statute - including serious violations of the 1949 Geneva Convention, violations of the laws and customs of war, genocide and crimes against humanity - are all classified, with some necessary adjustments, in the Yugoslav penal code under 19 separate offenses.

In addition, the defendant has more chance of a fair trial in Serbia than The Hague, as some Yugoslav procedural rules are more favourable for the accused than those prescribed by the tribunal's rules of procedure and evidence.

Unlike The Hague, there are no secret indictments; appeals hearings cannot be heard by the same chamber; the court and prosecutor's office are separate; there are stronger guarantees of the principle whereby a defendant may not be tried twice for the same offence; and persons imprisoned without cause have the right to compensation.

The Yugoslav judiciary differs from the tribunal in only a number of provisions. Amongst these, detainees in Yugoslavia are prevented from having access to their defence counsel or evidence prior to their first appearance in court. But under a new law on criminal procedure, which is about to be adopted by the Yugoslav legislature, these provisions will be harmonised with international legal standards.

In addition to these positive developments, the Yugoslav judiciary could easily supply enough professional prosecutors, judges and lawyers to staff war crimes proceedings. However, a neutral observer would have to conclude that such an action in Yugoslavia's case would not be advisable.

The reasons for this assessment are complex and concern not only the legal system but the country's psychological, sociological, ethical and political system.

Firstly, a long-term, systematic decline in the reputation and conditions of work of the judiciary, during the previous regime, has severely undermined the effectiveness of the courts. Moreover, most of the country's judges and prosecutors were elected during the Milosevic era - a fact that casts serious doubt on their reputation, impartiality and moral integrity.

This unfortunate state of affairs is perpetuated by legislation which allows judges an unspecified time in office. Unless something is done about this, the Serbian courts are not expected to improve in the near future.

To prevent Milosevic-era staff prejudicing cases, trials for war crimes would have to be handled under a system of judges specifically appointed for the task. This would undermine the important legal concept which maintains that cases be assigned to judges according to a set order, regardless of the personalities, parties and circumstances of the case.

Another important factor working against domestic war crimes trials is the public's widespread refusal to accept that atrocities were committed by citizens of Serbia and Yugoslavia - something that stems from years of political indoctrination.

There's now an entire school of conspiracy theorists whose rejection of the tribunal's legitimacy essentially boils down to a conviction that the international court is "anti-Serb".

Such prejudices were the basis on which recent Balkan wars were launched. What is disturbing is that they have not disappeared with the arrival of new authorities and the political changes that have taken place in Serbia. The new authorities have clearly failed to openly confront the sins of the past.

Although there are no grounds for suspecting such prejudices are characteristic of all judges, nor all the public, one must nevertheless conclude that war crimes procedures applied locally would not be successful.

Standing in the way would be powerful lobbies in the fields of politics, science, media and the mafia, which would apply considerable pressure on the courts, preventing them from functioning in an environment which is independent and impartial.

Such conditions would certainly affect the presentation of evidence, all the more so since Yugoslav legislation on criminal procedure does not recognise the use of statements by unidentified witnesses. Something The Hague guarantees.

Another matter that would militate against war crimes trials in Serbia is that both prosecutors and judges, in Serbia, would be exposed to considerable personal risk, without adequate remuneration or the provision of effective security.

Finally, the problem speaks for itself. Despite the political changes in Belgrade, despite evidence of crimes and despite there being no legal impediment to prosecuting their perpetrators, just a few feeble war crimes investigations have been conducted.

This passivity says enough about the fear, indecisiveness and immaturity of Serbia's judicial authorities, as well as their reluctance to help bring war criminals to justice.

Slobodan Beljanski is a lawyer and chairman of the Vojvodina Bar Association. He is also president of non-governmental organisation Forum juris.