Serbia Urged to Confront Past

When a Yugoslav army battalion under the command of Captain Petrovic arrived in the Kosovo village of Gornja Susica in late March 1999, he ordered all Albanians out. Feriz Krasniqi and his paralysed wife Rukije were not able to comply. Their disobedience cost them their lives.

Angered by Feriz's pleas that he had nowhere to go and could not leave his bed-ridden wife behind, Petrovic ordered army reservists Nenad Stamenkovic and Tomica Jovic to kill the couple. A special Yugoslav army unit established with the sole purpose of burning and disposing of bodies later removed the corpses.

Feriz and Rukije Krasniqi's story and the terrifying cruelty with which they met their deaths would surely have been buried together with their charred remains were it not for a Yugoslav officer with a conscience. Lieutenant Colonel Ljubisa Micic, stationed nearby when he heard about the killings, went to the Krasniqi's village and gathered evidence during the height of NATO bombardment.

On December 20, the military court in Nis sentenced Stamenkovic and Jovic to four and a half years in prison for the murders. Petrovic was sentenced to four years and ten months for ordering the killings.

The trial was unprecedented. Never before in Serbia have federal soldiers been tried for killing Albanian civilians. Although the case will be remembered for the unusually light sentences, some key issues were raised.

Belgrade's Humanitarian Law Centre said the case highlighted for the first time the issue of '[ethnic] cleansing' in a Serbian courtroom.

Presiding Judge Colonel Radenko Miladinovic asked a witness, Yugoslav army reservist Nebojsa Dimitrijevic, to explain the meaning of his diary note "two people cleaned up". Dimitrijevic said the entry referred to burning the corpses.

The trial was also the first time a court in Serbia cooperated with the United Nations Mission in Kosovo in gathering evidence. This would have been unthinkable while Slobodan Milosevic was in power.

But the military prosecutor did not charge the defendants with war crimes against a civilian population - covered by Article 142 of the Yugoslav Criminal Code - despite all the evidence pointing to such an offence.

Neither was reference made to the Fourth Geneva Convention (1949) which calls for the protection of civilians during time of war.

Nevertheless, imperfect though it was, at least a modicum of justice was seen to be done in Nis.

By contrast, in Bijelo Polje, northern Montenegro, the trial of Nebojsa Ranisavljevic, which got underway in May 1998, has been beset by obstacles.

Ranisavljevic stands accused of war crimes against civilians. He is charged with the torture, robbery and murder of at least 19 Muslims who were taken off a train at Strpci in Republika Srpska, RS, in February 27, 1993.

The RS authorities have obstructed Montenegrin investigators, providing a perfect illustration of why war crimes trials should, as the International Criminal Tribunal for Former Yugoslavia, ICTY, argues, be conducted in The Hague.

Florence Hartmann, spokeswoman for ICTY Chief Prosecutor Carla del Ponte, told IWPR that convening war crime trials within the countries of former Yugoslavia is especially complicated, as each of the successor states have their own political and judicial idiosyncrasies.

The question of the trial and extradition of war criminals has plagued the new Yugoslav authorities from the moment they assumed power. Ever since President Vojislav Kostunica's first appearance on newly liberated Serbian television, his stance has remained the same - he is opposed to the extradition of Milosevic because he questions the motives and legitimacy of ICTY.

In December, Kostunica reiterated in an interview with the French daily Le Figaro that he was not convinced The Hague tribunal was the best place to try war crimes committed in the former Yugoslavia. "I believe there is a requirement for all countries in the region to bring the justice process back home," he said.

Kostunica made special mention of the South African Truth and Reconciliation Commission, formed to investigate apartheid era crimes. The new Yugoslav president also commended Chile for having the courage to face its past and initiate judicial proceedings against former dictator Augusto Pinochet.

There is no evidence to suggest the new Serbian authorities in any way wish to deny atrocities were committed in former Yugoslavia or that those responsible should be punished. Within hours of the new Yugoslav authorities coming to power, state television broadcast for the first time footage of Serbian war crimes.

What is questioned, however, is who has the judicial authority to preside over such cases. Belgrade would rather see war criminals tried by Serbia's soon-to-be reformed judiciary "where the question of responsibility for war crimes would be as important as questions of personal security or citizens' rights," an official source close to the new Yugoslav president told IWPR.

Yet two key questions remain unanswered. How can a judiciary accustomed to serving its political masters establish its own independent voice? And how long will this process take?

Ljiljana Bogdanovic, legal adviser at Natasa Kandic's Humanitarian Law Centre in Belgrade, stresses that the ICTY was created at a time when the prosecution of war criminals was impossible in Croatia, Bosnia, and especially Serbia, due to those countries' nationalist governments.

Bogdanovic asserts that conditions in Serbia's courts remain inadequate for the conduct of war crimes trials. But she argues Serbia must take the initiative in prosecuting its own war criminals and not always wait for The Hague to take the lead.

"Only by prosecuting the perpetrators can the Serbian people free themselves from collective responsibility," said Bogdanovic adding that war crimes trials help crystallise the notion in people's minds that the rule of law applies during wartime just as it does at times of peace.

On January 4, Yugoslav Foreign Minister Goran Svilanovic was the first senior federal official to visit Washington since the NATO bombing campaign ended in June 1999.

During his visit, which United States Secretary of State Madeleine Albright said "would have been considered unthinkable only six months ago", the question of extraditing war criminals to The Hague dominated the agenda.

Svilanovic reinforced the Yugoslav authorities' intention to collaborate fully with the Tribunal and "to prosecute all indicted persons in co-operation with ICTY [as long as such trials take place] on the territory of the Federal Republic of Yugoslavia".

He added that he was looking forward to meeting the chief prosecutor in Belgrade to discuss further aspects surrounding Yugoslavia's relations with the Tribunal.

The response from The Hague was swift. "It is not the Tribunal which needs to co-operate with Yugoslavia, it is the other way around," Hartmann was reported to have said. "It is impossible to conduct a trial in Belgrade because the location is not neutral. One cannot imagine that victims from the neighbouring states would come to testify in Serbia."

Belgrade's perception that the Tribunal is just another US tool for "blackening the name of the Serbian nation", and the new regime's numerous theoretical discussions regarding the legitimacy of ICTY, may prevent Serbia coming to terms with her past crimes.

Recognizing that the murder of Feriz and Rukije Krasniqi was a war crime under both federal Yugoslav law and international humanitarian law has to be part of that process. Without this, Kostunica's argument that Belgrade is responsible enough to conduct its own justice rings hollow.

Dragana Nikolic is a regular IWPR contributor.