DESERTERS MOSTLY UNPUNISHED

AIM Zagreb, 10 April, 1998

There is not a single institution in Croatia where it would be possible to get any data about the number of deserters who have evaded military service or at least who failed to respond to call-up during the war in Croatia. Not even the official administrative agencies of the Republic of Croatia have such data, but neither is it possible to get a systematic review or any specific figure from non-governmental organizations, although they are very numerous and engaged in a great diversity of activities. But, since we are speaking of deserters, this is not really strange. During the war in Croatia, escape from units of the Croatian army was a massive phenomenon and to register every such act would be a Sisyphean task. Although the Law on Defence, passed in the end of 1991 and amended in 1993 and a few times since, prescribes the possibility of conscientious objection and refusal to carry arms, as well as replacement of classical military with civilian service in the army, developments on battlefields all over Croatia, and then Bosnia & Herzegovina introduced quite a different practice. Due to powerful information blockade and the media which due to control by the authorities passed over such matters in silence, a large part of soldiers mobilized to participate in the war knew nothing about the possibility to submit requests for conscientious objection, so they simply left army units having arrived at the battlegrounds.

In the course of 1995, especially after operation of Croatian armed forces in western Slavonia known as the Flash, when it had become obvious that a major operation was being prepared, many conscripts simply left their permanent places of residence and made themselves in this way inaccessible to call-up. Filling up the ranks of the army prepared for operation Storm which returned the so-called Krajina autonomous region back into the Croatian legal system was therefore a very difficult task for the military authorities. They did not have whom to hand the summons to, especially in the cities.

Tragic developments on the territory of Bosnia & Herzegovina in which the Croatian army played a very dishonourable role, confused many mobilized soldiers, so that abandoning of units - desertion - became even more massive than it had been before. It happened that whole units refused to carry out orders and then were disbanded because nobody wished to remain in them, because war was waged on the territory of another state for causes which made no sense at all. All these cases of abandonibng units and refusal to respond to call-up are treated as desertion which in the case "of essentially threatened combat readiness of the unit" can be punished by the most severe punishment - twenty years in prison. This, nevertheless, did not happen. Only one case is known which was changed into five years of prison after the appeal, and after the law on general amnesty was passed which came into force in the beginning of October 1996, this prisoner was released, so that he had spent just a short time in prison (very short in comparison with what was in store for him according to the sentence in the first instance, and even to that in the second instance).

It is also impossible to get hold of the actual number of sentences pronounced for desertion from the Croatian army. Activists of NGOs remind that during the war their offices were visited by a certain number of people who had left army units of their own free will, but what their destiny was after they had gone from their offices nobody can say for sure because, as a rule these men never showed up again. They mostly emigrated to third countries where a large number of them still are. Nobody knows the number of those who have remained in Croatia and who were convicted, and even if some institution has these data, it has not made them public nor does it intend to do so. It is also unknown in how many cases the Law on amnesty was applied. Zoran Ostric, an activist of the Anti-War Campaign of Croatia and a zealous advocate of the right to conscientious objection and civilian service in the army, says that it is difficult to say anything about court practice. In some cases courts were benevolent, but there should be no doubt, he says, that there had been severe punishments for men who were later pardoned. Call-up of the Serbs to the Croatian army was a big problem, because not even at the time when it was possible to submit requests on the ground of conscientious objection, few of them have practiced this right. Retroactive application of conscientious objection was recognized in some cases, but since the law on defence is not specific on this matter, court practice had not a stronghold to go by, so these cases were resolved in different ways depending on each individual case and according to the judgement of each individual judge. Ostric mentions that there were a few ten thousand those who failed to respond to call-up and who, according to law, have the status of deserters, which means that there are a few ten thousand potential cases of crime or at least offence. Nobody bothers these people nowadays - partly due to disorderly documentation, party due to an enormous number of unsettled cases in all the courts, but mostly because of the Law on General Amnesty. All those who ended up in court for desertion and who referred to this Law, were not punished, says Ostric.

Attorney Slobodan Budak, who is at the same time a jurist at the Croatian Legal Centre, also claims that the Law on General Amnesty is applied in cases of desertion. Deserting is a criminal act typical for a time of war, Budak believes, and such acts are not controversial according to their characteristics and by adoption of the Law on General Amnesty, space for free interpretation of desertion has been quite limited. The Law lists all the acts it refers to, and they are all the acts of war crimes according to international regulations - genocide, war crime against civilian population, against wounded and sick persons, against war prisoners, unlawful killing and wounding, unlawful deprivation of property, use of unpermissible means of combat, cruel treatment of the wounded, the ailing and prisoners, destruction of cultural and historical monuments, stir up aggressive war, abuse of international insignia, racial and other discrimination, introduction of slavery, taking hostages and international terrorism. Therefore, the law is very specific concerning acts it refers to, desertion inclusive, says Budak, which coincides with what Ostric said.

Perpetrators of criminal acts determined by the fundamental criminal law of the Republic of Croatia and Criminal Law of the Republic of Croatia which were not committed during aggression, armed rebellion or armed conflicts, and which are not in connection with the aggression, armed rebellion or armed conflicts in Croatia are exempt from amnesty. Deserting military units belongs among such acts if perpetrators were doing their regular military service. Military service in Croatia cannot be avoided, but by conscientious objection, that is, by introduction of the institution of conscientious objector, it is possible to replace it by civilian service in institutions with which the Ministry of Defence has reached an agreement. Therefore, if a soldier leaves his unit, he will be prosecuted because in his case this is not an act connected with war and war operations, but a classical crime (or mildly speaking - an offence).

Despite the existence of the Law on General Amnesty, in Croatia there is still the big problem of secret lists of persons who are wanted for acts which are not exempt from prosecution by this law. There is still great confusion about these lists, and Croatian authorities, although they declared several times that these lists do not exist, occasionally they arrest perpetrators (with or without quotation marks) of such acts, which makes chaos concerning return of refugees and banished persons from Croatia, primarily the Serbs. Cases which the Law on General Amnesty should be applied to were on several occasions presented to the public, but the criminal acts were re-qualified, so the convicted persons remained in prison, but this time indicted for more severe crimes. It has never been determined how many such cases there have been.

MILIVOJ DJILAS