Preliminary Observations from the Official Visit to Croatia by the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, Mr. Fabián Salvioli

From 26 November to 2 December 2021, I conducted an official visit to Croatia. I would like to thank the Government of Croatia for extending the invitation to visit the country, as well as for their openness and cooperation during the realization of the visit. I would also like to sincerely thank the United Nations High Commissioner for Refugees (UNHCR) for their support in preparation and during the visit.

The objective of the visit was to see and assess the measures adopted by the Croatian authorities in the fields of truth, justice, reparations, memory and guarantees on non-recurrence - the pillars of my mandate - to address the serious violations of human rights and humanitarian law committed during the 1991-1995 armed conflict. The visit sought to develop a broad view of the various initiatives taken, identify good practices, gaps and challenges, and provide recommendations. 

During my trip in Croatia, I visited Zagreb, Osijek, Knin, Vukovar and Split. The visit provided an opportunity to meet with State and local officials, victims and survivors, civil society organizations, human rights practitioners, academic experts, as well as representatives from international organizations. 

I also had the opportunity to make field visits to sites of mass graves, exhumations locations, memorials of the 1990s conflict, and sites of World War Two concentration camps. 

Over the course of the visit, I met with officials from the Ministry of Foreign Affairs; the Ministry of Culture and Media; the Ministry of Justice and Public Administration; the Ministry of Interior; the Ministry of Science and Education; the Ministry of Croatian Veteran’s Affairs; the Central State Office for Reconstruction and Housing Care; the State Attorney’s Office; the Supreme Court; the Parliament and its selected Judiciary Committee and Committee on Human Rights and National Minority Rights; and the Office of the Ombudsperson.

I also met with victims and families of victims of war crimes and crimes against humanity such as disappearances, killings, torture, sexual violence, ethnic cleansing and forced displacement.

A detailed report of my visit will be presented to the United Nations Human Rights Council in September 2022. 

General Impressions 

On 25 June 1991, Croatia declared independence from the former Socialist Federal Republic of Yugoslavia, which was opposed by the ethnic Serb minority in Croatia, some of whom seized control of one third of Croatia’s territory supported by the Yugoslav National Army. An armed conflict ensued until 1995, in which serious violations of international human rights and humanitarian law were committed.¹

Following the end of the war, Croatia reasserted its authority over the entire territory, and in January 1998 Eastern Slavonia reverted to its control following a peaceful transition under United Nations administration. The creation of the International Criminal Tribunal for the Former Yugoslavia and the adoption of several other national, regional and international initiatives in the field of transitional justice aimed at addressing the legacy of the conflict. In April 2009, Croatia joined the North Atlantic Treaty Organization and in 2013, it became a member of the European Union.

At the national level, the Government of Croatia adopted certain measures in the areas of accountability, missing persons, reparations, and legal and institutional reform to address the legacy of the conflict. After the conflict, and particularly during Croatia’s accession process to the European Union, some of these areas saw discernable progress, such as the prosecution of war criminals, the search for missing persons, and the pace and quality of legislative and institutional reforms aimed at ensuring the rule of law, democracy and the promotion and protection of human rights. This progress placed Croatia in an advantageous position to consolidate its transitional justice process. However, progress appears to have stalled in the last 7 years and concerns have risen regarding the prospects of effective social reconciliation, particularly as a result of growing instances of hate speech, the glorification of war crimes, and the relativization of the decisions of the ICTY and national tribunals. 

I will share my preliminary observations and recommendations below on the issues of truth, justice, reparation, memory, and guarantees of non-recurrence.

Truth and the fate of missing persons

Official truth initiatives in Croatia have predominantly focused on the search for disappeared and missing persons. Croatia met with massive disappearances during the 1991-1995 armed conflict, with an estimated over 6,000 missing persons.

Croatia has started an institutional search for missing persons in 1991, which continues until today. The matter of missing persons has been under the competence of the Commission of the Croatian Government for Detainees and Missing Persons, as advisory body. In addition, the Government established the Directorate for Detained and Missing Persons within the Ministry of Croatian Veteran’s Affairs, in charge of collecting data on missing persons and perform tasks related to the search, exhumations and identification of missing persons. An electronic database of missing persons that contains relevant data regarding missing persons, including ante-mortal data, has also been established.

The structure in place has allowed Croatia to make good progress in the search of missing persons. As of March 2019, 150 mass graves and 1370 individual graves were discovered, from which mortal remains of 5,162 persons were exhumed. 1,903 persons and mortal remains remain missing. I had the opportunity to visit a recent mass grave found in Vukovar where excavations and exhumations are currently taking place.

Croatia is part of a regional cooperation agreement to facilitate the search of missing persons. In August 2014, Serbia, Montenegro, Croatia and Bosnia and Herzegovina signed a declaration highlighting these states’ primary responsibility in addressing the issue of missing persons is an important political commitment. Despite earlier progress, cooperation in the region has slowed down hampered by the lack of exchange of information and evidence across borders (which has been described by several interlocutors as a trade on missing persons) as well as the lack of effective investigation and prosecution of war crimes. 

Regarding the selection of areas for searching, international human rights mechanisms have noted with concern a lack of transparency regarding the methodology used in the selection of regions for investigation and exhumations, and disparities in the attention paid to the search, exhumation and identification of missing persons depending on the ethnicity.² Similar concerns were brought to my attention during the visit by multiple stakeholders. 

Croatia has not yet ratified the International Convention for the Protection of All Persons from Enforced Disappearance, and the crime of enforced disappearance is not codified as an autonomous offence under criminal legislation. I was informed that the ratification of the Convention will be studied at an upcoming session of Parliament. I encourage its prompt ratification.

I have noted a scarcity of other measures in the field of truth seeking. A truth commission has never been set up in Croatia, nor in the region. Initiatives aimed at collecting testimonies of victims and at collecting data of all violations suffered by victims during the conflict, have been found only in civil society, but have not received official support. 

Moreover, since Croatia’s accession to the European Union these initiatives have been receiving less attention and support from the international community and international donors. I encourage national and international institutions to support the work of institutions of civil society working on transitional justice issues. A strong civil society is vital for an effective transitional processes.

I commend the efforts made by Croatia to search for the missing persons and call on the government to urgently reactivate regional cooperation in this field and to accelerate the search for all remaining missing persons, regardless of the circumstances in which they went missing or the ethnicity of the victims. I also wish to call on the government of Croatia to prioritize the documentation of information on all victims and violations committed during the conflict and the testimonies of victims of the conflict as a matter of urgency, as the passage of time will make this vital task impossible. Such exercise should include the support to existing documenting and collecting efforts by civil society, as well as the adoption of measures to guarantee the preservation and public access to the documentation collected.

Justice

Croatia has set up an institutional framework for the prosecution and trial of war crimes committed during the conflict. There are four specialized departments within the county courts in Osijek, Rijeka, Split and Zagreb and four local State Attorney’s Offices in the same towns which contain sections dedicated to the prosecution of war crimes. In addition, in 2011 a Strategy for the Investigation and Prosecution of War Crimes committed between 1991 and 1995 was adopted by the Ministry of Justice. Additionally, a database has been set up in the State Attorney’s Office with information about all reported cases of war crimes.

As witnesses and evidence of war crimes, as well as some of the accused, are spread across the countries involved in the conflict, official measures were adopted to increase cooperation among the relevant prosecution authorities in the region, which is a commendable initiative. Cooperation agreements were signed by the Croatian Sate Attorney’s Office with the Prosecutor for War Crime of Serbia on 13 June 2006 and with the State Prosecutor of Montenegro on 28 June 2006. 

Similarly, the Protocol of the State Attorney’s Office of the Republic of Croatia and the Prosecutor’s Office of Bosnia and Herzegovina on Cooperation in Prosecution of Perpetrators of War Crimes, Crimes against Humanity and Genocide was signed in 2013. 

As a result of the framework in place, progress was made on the prosecution of war crimes in Croatia. This was noted by numerous interlocutors. As of September 2021, proceedings against more than 3,736 alleged war criminals were initiated and some 666 resulted in a final conviction.³ According to numerous reports,  progress was particularly strong in the 90’s and in the early 2000s during Croatia’s process of accession to the European Union. Numerous stakeholders have informed, nonetheless, that the number of prosecutions and trials has significantly decreased since, as did the regional cooperation in this field. Political interference has also reportedly risen. 

Several of the proceedings conducted earlier on have faced criticism due to the fact that they have been conducted in absentia, as the alleged perpetrators resided in countries from where they could not be extradited. Some persons who were convicted in absentia requested the reopening of their proceedings, which resulted in a substantial reduction in the number of final verdicts reached in absentia.

Proceedings have also been criticised for holding a bias towards ethnic Serbs. In this connection, international human rights mechanisms expressed concern that the selection of cases apparently remained disproportionately directed against ethnic Serbs⁴ and le noted that according to representatives of victims’ associations, many crimes allegedly committed by members of the Croatian Army and police forces in 1995 had not been investigated or prosecuted.⁵ Similar concerns were expressed during the visit by stakeholders from different spectrums of society. While the State Attorney’s Office, was not able to provide information about initiated and adjudicated cases disaggregated by ethnic origin of the accused, civil society organizations informed that out of the 43 cases that they monitored in 2020, 61 (86%) of the defendants were members of Serb paramilitary units and the Yugoslavian People’s Army, while 10 (14%) of the defendants were members of the Croatian Army and the Croatian Defence Council. I was also informed about discrepancies in the sentences received by ethnic Serbs and ethnic Croats, which were reportedly due to the application of mitigating circumstances in favour of the latter for having defended Croatia in the war.

While I note the progress made in prosecuting war crimes and in sanctioning some of them, I call on the relevant authorities to accelerate the processing of the numerous pending cases, some of which are known to have taken as long as 15 years to be resolved, and to ensure that all war crimes, regardless of the ethnicity of the victim and the perpetrator, or the circumstances in which they were carried out, are dully investigated, prosecuted and sanctioned, in compliance with Croatia’s international obligations on this matter.

Reparations

Croatia has adopted the Act on the Rights of Croatian Homeland War Veterans and their Family Members, and the Act on the Protection of Military and Civilian War-Disabled Persons. The acts establish a monthly stipend to the victims and families, although differences have been noted regarding the benefits received by families of veterans as opposed to families of civilians. A system of psychosocial assistance to families of missing persons has been set up. In addition, Croatia adopted the Act on the liability of the Republic of Croatia for damage caused by members of the Croatian army and police when acting in their official capacity during the homeland war, which regulates the responsibility of Croatia for damages caused in this period. However, problems in its implementation have led to the rejection of most claims, except where criminal responsibility had already been established. 

Despite this legislative framework, difficulties were still faced by victims trying to obtain compensation from the State. Moreover, attempts by many families of victims to receive compensation through lawsuits against the state have failed, and plaintiffs have been reportedly forced to pay substantial court fees, forcing some of them to sell their homes. This situation has reportedly disproportionally affected ethnic Serbs. 

To complement the existing framework, in June 2015, the Law on the Rights of Victims of Sexual Violence during Armed Aggression against the Republic of Croatia in the Homeland, entered into force. The law regulates the status of civilian victims of sexual violence and provides for compensation and other forms of reparation, including medical rehabilitation, psychosocial support, and free legal aid. The law is a much welcomed initiative, although some forms of sexual violence are still to be included in it.

I was pleased to learn that the Law on the Civilian Homeland War Victims was passed in July 2021. The law provides reparation for people who became disabled and to the families of persons killed or disappeared during the conflict. It remains to be seen how the law will be implemented in practice. An element of the law that has raised concern is that it prevents the granting of benefits to “members, helpers or associates of enemy military and paramilitary units who took part in the armed aggression against Croatia, as well as members of their families”. Several interlocutors expressed concern that this broad notion could lead to inconsistent interpretations and unfair applications of the law. According to the data provided by the Ministry of War Veterans' Affairs, there will be about 2,500 beneficiaries who will be eligible under the new legislation.

I note the recent developments made to the legislative framework on reparations and call on the government to adopt a reparation programme to facilitate its effective implementation and access to victims.

Memorialization

Memorialization processes in Croatia have been mainly focused on the commemoration of the victory and the conduct of the war, and in honoring Croatian veterans and victims. A variety of commemorating ceremonies take place on a yearly basis, monuments have been erected and plaques have been installed in different parts of the country. Commemorative days are also celebrated. In addition, memorials have been established to preserve the memory of the conflict, such as the Memorial Center for Homeland War, and some to mark the site of killings or mass graves, such as the mass grave of Ovcara.

These efforts are welcomed, however, they show a prevalent focus on memorializing the victory in the conflict and Croatian victims, albeit even the latter to a lesser extent. Memorialization efforts aimed at commemorating all victims, and in particular victims of Serb ethnic origin, seem restricted to civil society efforts. In a similar vein, I noticed a scarcity of memorials, plaques or ceremonies remembering all violations committed during the conflict. Progress in this area will be vital to reconciliation processes and to restore the dignity of victims.  I commend the recent efforts from some high-ranking officials to commemorate all victims of the conflict and to recall violations suffered on all sides. I welcome these initiatives and encourage other officials, political and religious leaders to follow suit. 

Memorialization and education efforts should also encompass the previous periods of Croatian history in which gross human rights violations were committed.

I would like to recall that memorialization efforts must aim at establishing the conditions for a debate within society about the causes, direct and indirect responsibilities, and consequences of past crimes and violence. The objective of such processes is to enable victimized populations to explain a brutal past - without justifying it - thus easing existing tensions and allowing society to live more peacefully with the legacy of past divisions. Without falling into a dangerous relativism or creating a homogeneous thought, different narratives and interpretations of past violence can coexist in a democratic society; in this way, they cooperate with the dynamics of social reconstruction. However, this process should never result in denial or relativization of the violations committed.⁶

Guarantees of Non-Recurrence

Reforms to the security sector, including the reform of internal regulations, the vetting of new officials, and the establishment of oversight by the Parliament were undertaken in connection to Croatia’s process of accession to the European Union, as were the reforms to the legislative and institutional framework that aim at promoting of the rule of law and democracy. While these measures where not specifically adopted with a transitional justice focus, they were carried out with the rigor required to comply with EU accession requirements. For this reason, I will not address this issue today, however, I will further develop my views in this regard, in my final country visit report to be presented at the Human Rights Council. 

Regarding the measures adopted in the fields of education, culture and the media to address the legacy of the war, I have noted with concern the uniformity of existing narratives about the conflict and about its victims, which permeate de educational and cultural spheres. As mentioned before, memorials, but also school curricula and the teaching of history, do not seem to include different narratives about the war or allow all voices of victimhood to take center stage. I have observed an excessive focus on war rhetoric and language, and placement of attention on Croat victims to the detriment of other victims. I would like to recall that for a process of transition and reconciliation to be effective, the acknowledgement of the suffering and dignity of all victims is vital, as is the transmission of their stories to current and future generations, not only through school curricula and text books, but also through cultural activities and through the media. The legacy of past violations in all its complexities must be adequately and comprehensively addressed to assist in the process of social reconciliation, placing the victims at the center of this process.

I have received reports of numerous and concerning instances of hate speech against minorities, of glorification of convicted war criminals or denial of their crimes (some undertaken by high ranking government officials), of relativization of the work of the International Criminal Tribunal for the Former Yugoslavia and/or of local courts, of establishment of memorials commemorating war criminals with support of certain officials, and of the rising use of fascists slogans and insignia, such as those of the Ustasha regime. I have been informed that many of these instances, although not all, have not been appropriately condemned by the relevant authorities, which transmit a message to the general public that they are tolerable in Croatian society. 

I note the legislative measures adopted by the Government of Croatia to curve this extremely worrying trend, including the adoption of a Crime Protocol and a track record system to monitor hate crime, and new Criminal Code provisions criminalizing hate crime, public incitement to violence and hatred, and addressing minimization or denial of genocide and serious human rights violations. However, I understand that its implementation has not been equally satisfactory. I urge the relevant police, judicial, legislative and executive authorities to adopt all necessary measures to adequately respond to the raise in radicalization and hatred expressed in certain sectors of society, to ensure that the steps taken so far towards reconciliation are not irremediably reverted. 

Final Observation

Since the end of the conflict, Croatia has undertaken numerous efforts to strengthen the rule of law and address certain aspects of the legacy of the conflict. While I commend the progress made, I wish to recall that for a transitional justice process and reconciliation to be effective, it is vital to adopt a comprehensive approach in the fields of truth, justice, reparation, memory and guarantees of non-recurrence. Uneven progress in these areas run the risk of invalidating or reversing the progress made, as seen in some of the cases exposed above. I call on the government of Croatia to renew its efforts to advance the transitional justice agenda in the country, through a comprehensive approach in the aforementioned areas, and to the international community, including the European Union, to support Croatia in this vital endeavor. Its success will aid to achieve effective reconciliation in the country and in the region.