Why justice could not sing

When a terrible thing is done in war, unimaginable crime - when someone sets fire to living people or rapes a girl or tortures a man to death - that senseless violence against another, that injustice is so complete that it can never be corrected. Then there is neither law nor justice - the perpetrator is the master of life and death, and the victim is completely powerless, left to the will of the criminal. The only thing then remains, as a faded trace justice, as a debt to that victim and her family, and as a need of society and of all humanity, is that one day, when the guns fall silent, the law will take over power again - then those who committed that irreparable injustice will be brought to justice and answer for his misdeeds. In that process, victims are recognized and receive symbolic or material compensation, and society re-establishes the rule of law and the values ​​of justice, truth and humanity.

Unfortunately, this is not the picture of Serbia or any other country in the region after 20 years of war crimes trials before national courts. The picture we have is much more reminiscent of some broken "Tetris", in which rectangles are made into triangles, and squares are persistently pushed into circles.

After 20 years of trials for war crimes in Serbia, the Humanitarian Law Fund, with the support of the European Union, prepared a series of analyzes and reports. Among other things, it includes an analysis of the previous ten years of trials (2014–2024), a report on the implementation of the current national strategy for the prosecution of war crimes, as well as an analysis of the prosecution of crimes of sexual violence in war since 2003 - that is, since the beginning of war crimes trials in Serbia. The findings of these reports make grim and difficult reading for anyone who cares about law and justice.

DELAYS AND OMISSIONS

The number of indictments filed is continuously decreasing, even though the number of prosecutors is increasing. Thus, in 2023, at the end of the year, we had only one confirmed new indictment, even though there were ten prosecutors working in the Public Prosecutor's Office for war crimes. Moreover, according to the prosecution's data, there are over 1700 cases in the pre-investigation phase.

The indictments are often selective, they leave out some of the victims, some of the incidents or elements of the crime, and except in rare exceptions, they do not deal with the responsibility of superior, middle and high-ranking officers. Cardinal errors appear in the work of judicial institutions, which result in stretching and prolonging the process beyond any reasonable measure. Thus, in the "Štrpci" case, the court returned the indictment ten times to the prosecution for revision, which delayed the start of the trial for three and a half years.

Once started, trials last for years, sometimes more than a decade. It is not a rare case that trials are returned to the beginning after many years of the process - in some cases due to a change of judges, in others due to the failure of the court or other institutions. In June 2023, the trial in the "Srebrenica" case was returned to the beginning after seven years because the High Council of the Judiciary did not fulfill its obligation to make a decision on whether the judge's mandate should be extended; this had the consequence of an inevitable change of the member of the court panel, and the start of the trial anew.

The penal policy is lenient and inconsistent, so prison sentences of drastically different lengths are imposed for the same crime. In a significant number of cases, sentences for serious war crimes were imposed at the legal minimum, or even below it. At the same time, the court attaches disproportionately great importance to mitigating circumstances and applies them inadequately, so the fact that they are family people and have children is taken as a reason for reducing the sentence for persons convicted of rape of a minor.

Trials for sexual violence in war are rare. Only 13 out of a total of 106 indictments for war crimes include crimes of sexual violence. Legal regulations are not adapted to international standards. Among other things, according to the interpretation of the Serbian judiciary, and contrary to the practice of international courts, war rape is not a crime against humanity, even though it was committed as part of a widespread and systematic attack of which the perpetrator is aware. Legal solutions favor the accused and harm the victim. One of the absurdities is that the law does not prohibit a rape accused's defense attorney from questioning a rape victim about her previous sex life.

Trying to get justice in this dysfunctional legal "Tetris", survivors and victims' families spend years, lose trust and hope and in the end often give up on justice. The experience and frustration of the victims in trying to achieve justice before the court are almost painfully clearly described by the words of Halida Konjo-Uzunović - an incredibly brave woman who survived a rape during the war in Bosnia and Herzegovina, for which no one has been charged to this day: "Tell them that I am bitter and sick of injustice and the state of society in Serbia and BiH and tell them that they are corrupt thieves who do nothing and who are candidates for a freak system. They kill innocent people both in war and in peace."

EPIDEMIC "GREAT HEROES"

If, based on this, the conclusion is imposed that the problem with determining responsibility for war crimes is the inadequate work of judicial institutions, that would be only partially true. This is because judicial institutions are also the only ones that deal with the issue of responsibility for war crimes.

Government representatives and politicians deal with responsibility for war crimes only when they deny it. Similar is the contribution of the Serbian Army, which invites convicted war criminals to give lectures to young cadets at the military academy, and publishes and promotes their books and memoirs.

Glorification of persons convicted of war crimes, relativization and denial of judicially established facts about crimes have become dominant elements of the official policy of commemorating the wars of the 1990s. In recent years, there has been a visible change in the public discourse of government representatives, where war criminals and their crimes are no longer hushed up and pushed under the carpet, which marked the previous phase of transitional justice in Serbia - but now they are openly glorified.

The HLC's annual report on war crimes trials in Serbia in 2023 lists more than 20 examples in which representatives of Serbian institutions promote persons accused or convicted of war crimes. It is especially dangerous when it is done by the highest state authorities. The President of Serbia, Aleksandar Vučić, during his address to the parliament in February 2023, called Vladimir Lazarevic - convicted before the Hague Tribunal for aiding and abetting crimes against humanity in Kosovo - a "great hero" and a "Serbian hero from Kosovo and Metohija".

Numerous examples in which representatives of institutions and the highest state officials relativize and deny crimes, and promote criminals as heroes, confirm that the official memory policy in Serbia is actively directed towards revisionism and manipulative memory practices. The victims are not shown respect and empathy, but are treated in an unacceptable manner, by denying them or making it difficult to exercise their rights, while their suffering is ignored, silenced, relativized or openly denied.

In the end, for justice to make sense, to achieve its goal, it is not enough that it is realized, but the public and citizens must also know about it. The HLC research showed that less than 10 percent of Serbian citizens even know that trials for war crimes take place before courts in Serbia, and less than five percent can name a specific case or have information about the victims or the crime committed.

The media, on the other hand, seem to be in charge of actively ignoring these trials. State media, as well as other mainstream media, only rarely report on war crimes trials, and only in selected cases, while fitting them into a pre-defined political message. Radio-television of Serbia does not report on any of the 22 trials that are currently in progress before the court in Belgrade, nor has it ever broadcast a single minute of any of the over 100 trials held so far in Serbia.

On the other hand, in the public and in politics, the wars of the nineties and topics related to them are still very present and shape public and political discourse. The past influences our present and future in that way, but it seems we don't want to know what really happened and who is responsible for it.

A PERFORMANCE FOR EUROPEAN CONDITIONS

This condition is not normal. It is not normal that society in Serbia is not interested in achieving justice for crimes from the recent past, in recognizing the victims, punishing the perpetrators and establishing the truth about the crimes committed; it is not normal that we as a public are not interested in trials for war crimes, the perpetrators of which live among us; it is not normal that we as a state and society pretend to prosecute war crimes, while we all know - from prosecutors and judges, through politicians and civil servants, to us citizens - that it is all just a show. We know that the real goal is not determining the responsibility of the perpetrators and achieving justice for the victims, but only the formal and apparent ticking of the conditions in the process of joining the EU, with the least number of "ours" who will be convicted, preferably with as light a sentence as possible.

In Serbian society, it has become acceptable and normal that for political reasons and for the sake of avoiding responsibility for crimes, we pretend that we are trying war criminals, and that we play with the rights and feelings of survivors and victims' families, with their efforts to reach justice.

What kind of society have we become, and what kind of citizens are we, if we agree to such a dirty "deal"?

The author is the executive director of the Fund for Humanitarian Law