Croatian Case Heading for Local Trial?

Six months before the deadline for issuing indictments expires, the Hague prosecutor this week charged Croatian Major-General Mirko Norac with crimes committed against Serb civilians and prisoners of war in autumn 1993.

No arrest warrant was issued for Norac, since he is already serving a sentence in Croatia for crimes committed earlier in the same war.

Prosecutor Carla del Ponte announced she would seek to have Norac tried in Croatia – the first time a particular case in The Hague has been identified for possible referral to a national court, in accordance with the tribunal’s completion strategy. Observers say that while it will be up to tribunal judges to decide, Croatia’s judiciary may have some way to go before such a referral is possible.

Norac, 37, was charged with crimes committed against Serb civilians and prisoners-of-war during an attack to gain control of the Medak Pocket – a finger-shaped cluster of Serb villages in Croatia, some 150 kilometres south of Zagreb. After a few days of fighting, Croatian government forces gained control over the area in early September 1993. The indictment says that troops under Norac’s command went on the rampage, capturing and murdering Serb civilians and combatants who had not managed to escape.

The Norac indictment does not give a precise number of victims, but other indictments issued in connection with the same series of crimes put the figure at around 100. The rest of the area’s 400 inhabitants fled, never to return.

Tribunal prosecutors have previously indicted two other high-ranking Croatian officers for the same episode – generals Janko Bobetko and Rahim Ademi. Bobetko – at the time Croatia’s chief of staff - has died in the meantime. Ademi is awaiting trial in Croatia.

Spokesperson Florence Hartmann told IWPR that the Norac indictment rounds up the prosecutor’s investigation into events at Medak.

She said prosecutors would now file a motion to join the indictments against Norac and Ademi into one, and try to have them referred to Croatian courts.

The tribunal is under strong pressure to wrap up its work to meet the deadlines set out in a completion strategy adopted last year by the United Nations Security Council.

The strategy envisages that some lower- and mid-level cases will be passed to local courts, providing these demonstrate an ability to handle such complicated trials. According to the court’s rules, a proposal to refer a case is made by the prosecutor, but the final decision rests with the tribunal judges.

Some tribunal insiders say it would be difficult to argue that generals Ademi and Norac count as “lower” or even “middle-ranking” officers, but others point out that at the time of the crimes with which they are charged, they held lower rank than now. Norac was a colonel, commanding the Croatian army’s Ninth Guards Motorised Brigade, while Ademi was acting commander of the Gospic military district, and was promoted to major-general only after the Medak Pocket operation.

Paradoxically, the Norac indictment was issued after the amended rule 28 came into effect, which says that every new indictment has to be cleared by the tribunal’s bureau of judges as sufficiently “high-ranking”. This makes the Norac case simultaneously high-ranking enough to be warrant a Hague indictment, yet sufficiently low-ranking to merit referral.

The tribunal officials would not officially comment on this contradiction.

The problems do not end with establishing whether a case can be transferred. Proving that the Croatian justice system is ready to handle such trials could be equally, if not more, challenging.

There are no fixed criteria by which the tribunal decides whether a country’s court system is ready to handle war crimes trials. Tribunal officials cite some obvious preconditions such as independence of the judiciary and the right to a fair trial, but many other issues remain, varying from country to country.

From interviews conducted in The Hague and Zagreb, it appears that there are three main legal obstacles that would have to be removed before trials could be referred to Croatia. These include the lack of clarity in legislation regulating command responsibility, the connected issue of "retrospectivity", as well as the question of whether tribunal evidence would be in Croatian courts.

Command responsibility, as applied by the Hague tribunal, has no direct counterpart in Croatian legislation. This makes it difficult to try Norac or Ademi for crimes committed by their soldiers.

According to the indictments, troops under Norac’s command terrorised the Medak Pocket’s predominantly Serb civilian population by, among other acts, burning a woman alive. As well as acts of murder, civilians and prisoners-of-war were mutilated and beaten. The Croatian troops also “systematically destroyed” around 300 buildings in the area.

The Norac indictment says that, he “knew, or had reason to know,” that his troops were engaged in these atrocities, “Mirko Norac failed to take necessary and reasonable measures to prevent the commission of such acts or punish the perpetrators thereof.

The closest thing to command responsibility delineated in Croatian is the crime of “not acting to prevent a crime,” and some legal observers in Zagreb think that - with the right political will – the law could be interpreted to allow the concept of command responsibility to be “translated”.

Another problem is that much of the Croatian legislation regulating matters relating to war crimes was adopted after the end of the war, and it is not retroactive. There is also an open question about how much of the evidence gathered by the tribunal would be procedurally acceptable in a Croatian court.

Some tribunal insiders say ironing out the legal ambiguities surrounding these issues is essential to allow cases to be referred.

Ethnic bias is perceived as a further obstacle. A recent report on war crimes trials in Croatia, compiled by the Organisation for Security and Cooperation in Europe, said the trials it reviewed were heavily biased, so that all other factors being equal, an ethnic Croat was likely to get a lower sentence.

But the political will to comply with international demands may be stronger now that Croatia has the green light to start negotiations about joining the European Union. One of the conditions laid down by the European Commission is improved cooperation with the Hague tribunal. The commission’s recent statement noted that “domestic trials against suspected war criminals are also welcome” – as long as they are impartial when it comes to ethnicity.

Norac is already serving a sentence in Croatia after being found guilty on charges of abducting and murdering of Serb civilians in Gospic in October 1991.

The trial took place in a tense atmosphere, with public protests and expressions of support for a man who for years was hailed as a national hero. A witness who provided particularly damning testimony was murdered.

But many tribunal insiders still consider this trial “by and large a success” – considering the circumstances. Norac ended up being sentenced to 12 years in prison last October.

In the meantime, he has appealed his sentence. The Croatian Supreme Court has yet to issue a verdict on the case.

Ana Uzelac is IWPR’s project manager in The Hague.