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We can’t close our eyes to the war past

Podgorica

This month’s arrest of eight persons in Serbia on charges of having committed a war crime in Srebrenica in 1995 against more than 1.000 Bosniak civilians is a painful reminder of how little the judiciary in the region as well as in Montenegro had done to prosecute the war crimes. The judiciary currently in office in Montenegro so far looked into the cases “Bukovica” and “Deportations” which concern the exile of Muslims-Bosniaks from the territory of Montenegro in the early 1990s. Dating from the same period are cases “Morinj”, concerning crimes against Croatian citizens interned in that camp during the assault of Dubrovnik, and “Kaluđerski laz”, a case of shootings at the convoy of refugees from Kosovo in 1999. 

It is unclear whether even these cases would have been broached if it weren’t for a continuous pressure from the civil society and the media,while most of the Montenegrin opposition turns a blind eye to the war crimes committed in the period when most of the current political elite from DPS were already in power.

It is encouraging that in the last two Progress Reports the European Commission (EC) sent a powerful message to the Montenegrin authorities that the victims and perpetrators of the war crimes must not be forgotten. Furthermore, the problem of impunity for war crimes was given due attention by this year’s Resolution of the European Parliament on Montenegro. Together, these indicate that  confrontation with the past might be one of the
preconditions for Montenegro’s membership of the EU.

“Montenegro needs to step up its efforts to fight impunity for war crimes, and effectively investigate, prosecute, try and punish war crimes in line with international standards”, states the 2014 Progress Report. The EC warned that Montenegrin courts “take a rather formalistic approach” to this issue, and repeated the findings from the last year’s Report that charges of command responsibility, co-perpetration and aiding and abetting have so far not been brought. EC expert Mauricio Salustro visited Montenegro on 22-24 October 2014 when he held a series of meetings and analysed the available documents to assess how Montenegro was dealing with the war crimes. Salustro analysed the actions of the prosecution in cases “Morinj”, “Bukovica”, “Deportations”, “Kaluđerski laz”, the murder of the Klapuh family and case “Štrpci”. In his assessment, however, he only commented on the cases “Morinj”, “Bukovica” and “Deportation”, because “Klapuh” and “Štrpci” cases have been closed before 2008 when the current judiciary institutions were established, while “Kaluđerski laz” is still in the appeal process. Expert Salustro noted that there are currently no open investigations of war crimes and that, according to his sources, no further investigations are expected. According to Salustro, Montenegrin judiciary did not make an effort to investigate war crimes, it does not have a pro-active approach to try and identify possible suspects, and cooperation with colleagues from other states should not rest on informal, general requests. None of these cases, he observed, was open at the prosecutor’s initiative and the lack of new cases “shows that the prosecution did not develop a strategy in relation to the war crimes”, but only “responds to criminal charges submitted by individuals or various institutions”. The fact that they did not initiate a single case cannot be held against the Special Prosecutor for war crimes as they were only formed in 2008, but Salustro holds them responsible for the charges, as trials in all these cases were initiated well after the establishment of the Special Prosecutor’s Office.

However, deputy Special Prosecutor Lidija Vukčević, told European Pulse believes that “there are no ‘obstacles’ to the prosecution of war crimes in Montenegro”.

“There are some difficulties in collecting the facts and evidence, which have also plagued prosecutors in other countries dealing with similar crimes, and which are the consequence of the fact that the witnesses, victims of war crimes and even the potential perpetrators reside in other countries of the region or abroad, and that material evidence has been destroyed or is held by other states or their institutions. Thus the identification of the victims and witnesses (due to their change of residence) and collection of evidence is made more difficult and has  to be pursued through requests for international legal assistance”, Vukčević said.

According to her, the Prosecution has so far supplied enough evidence for several verdicts in war crime cases in Montenegro. “Had there been enough evidence to raise charges against other individuals in the existing cases on the basis of command responsibility, co-perpetration and aiding and abetting, the prosecution would have, of course, raised charges against these persons. Nevertheless, we should not underestimate the importance of verdicts that have been passed in these cases so far, and the decisions made by the Montenegrin courts”, Vukčević said. In his analysis of the work of the Montenegrin courts, Salustro notes they have taken a fairly formalistic approach to the definition of crimes described in the war crime charges.

The arguments presented in the justifications of legal actions undertaken in these cases are at times contestable, and in some cases outright untenable. For example, he found that in the “Morinj” case the court definitely took inappropriate decision in issuing sentences below the legal minimum, citing attenuating circumstances such as no prior record, family status, etc. which are inadmissible given the acts they were sentenced for (beatings, placing the gun in the mouth of the victim, shooting next to the victim’s head, simulating executions etc.). The final verdict sentenced four members of the Yugoslav National Army reserve to a total of 12 years in prison for a war crime against Croatian prisoners of war in the Collective centre Morinj. “Morinj” case is the only one which ended in a sanction against the defendants.

Author: Svetlana Pešić

This article was originally published in the European Pulse and is re-published with the permission from the author.

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