His Excellency
Mr Mate Grani_
Deputy Prime Minister and
Minister for Foreign Affairs of Croatia
ZAGREB
Croatia
The Hague
23 August 1996
Reference:
936/96/L
Dear Mr Minister,
May I first of all thank you for the assistance your Ministry provided once again during my visit to Croatia on 9-13 June 1996. This greatly facilitated my task.
In your answer dated 19 March 1996 to my letter of 22 February 1996 you informed me that my suggestions and recommendations contained in that letter would be given due consideration in the future activities of your Government regarding minority-related issues. Against this background, please permit me to recall the concerns I expressed regarding the difficulties that refugees who left the former Sectors West, North and South in 1995 and who now want to return must overcome regarding documentation, accommodation, property and security.
Regarding documentation, refugees wanting to return have to face the difficulty that identity documents issued in previous years by local authorities or by the former SFRY have lost their validity, while the procedure of applying in writing to the local authorities for a valid document providing proof of residence in Croatia scarcely works. I therefore wonder whether your Government would be willing to accept my suggestion that identity cards issued by the former SFRY, while of course no longer valid, would be accepted as proof that the person concerned did reside in a formerly Serb occupied area of Croatia and is therefore entitled to Croatian citizenship. Your remark in your letter of 13 June to the Chairman of the Committee of Ministers of the Council of Europe that your Government is encouraging a simplified administrative procedure gives me hope that this will be the case.
During my last visit to Croatia I discussed with the Minister of Interior, Mr I. Jarnak, the question of the safety of the nearly 10,000 mostly elderly Serbs who have remained in the Krajina. When I made known my concern about the continuous stream of reports from various international organisations about the harassment of these people, and expressed the hope that further measures would be taken to ensure their safety, his reply was that criminality in the Krajina was not higher than in many other parts in the world, and that therefore such steps would not be necessary. However, reports continue to indicate that the harassment of these elderly people continues, especially in the Knin area. Also considering your commitment to the Council of Europe to take all necessary measures, including police protection, to guarantee the safety and human rights of the Serb population in Croatia, I would recommend that steps be taken without delay to provide this population with more adequate protection. I also welcome the decision taken by the office for refugees and displaced persons to give priority in future to persons who want to be reunited with their elderly relatives, and I would hope this decision will be implemented to the full.
To my regret, your Government has not accepted my suggestion to annul the article of the Law on the Temporary Take-Over and Administration of Specified Territory which makes the return of property dependent upon the coming into being of an agreement on the normalisation of relations between Croatia and the Federal Republic of Yugoslavia. On the other hand, I have noted the intention of the two governments to sign an agreement on the normalisation of relations in the near future, and their readiness, as expressed in the Joint Communiqué issued after the meeting of President Franjo Tujman and President Slobodan Milosovic, to enable the return of the possessions of all the refugees and displaced persons or payment of just compensation. Much as I welcome this approach in principle, its significance in terms of facilitating the return of refugees will in my view be severely curtailed as a consequence of article 11 paragraph 4 of the Law quoted above, which makes it clear that the owner can only take possession of his property after an appropriate alternative property has been given to the person to whom the reclaimed property has originally been allocated by the Commission on the Temporarily Take-Over and Usage of Property. In this respect it has also to be taken into account that these allocations take place on a large scale because article 5 of the Law allows the granting of the use of abandoned property to several categories of people: "exiles and refugees, returnees whose property was destroyed or damaged during the civil war, invalids of the civil war, family of killed or missing Croat defenders from the civil war, and the citizens who carry out activities necessary for the security, reconstruction and development of the formerly occupied territories". In practice, this means that especially in the Krajina a very high percentage of the abandoned houses of Serbs which are still habitable have been allocated to returning refugees from Croatia and to refugees from Bosnia and Herzegovina. In this regard I note that in a letter of 10 July 1996 to the Secretary-General of the UN, Mr Boutros Ghali, the Permanent Representative of Croatia, Mr Nobile, states that the number of non-Serb returnees in the formerly Serb-occupied areas is estimated to be around 38,000, while according to other information provided by your Government 14,000 refugees from Bosnia and Herzegovina have been accommodated in abandoned homes in the former Sectors. Your Government has committed itself to the Council of Europe to allow people who left the formerly UN protected areas, through a specific procedure established by law, effectively to exercise their rights to recover their property or receive compensation. I express the hope that such legislation will be adopted soon. Under the present legislation, it becomes virtually impossible for Serbs who had left the former Sectors, with the exception of those returning in the framework of family reunification, to go back to their places of origin because they will be unable to find accommodation. This raises the question whether more favourable conditions for their return will be established in the years to come.
In your letter of 13 June 1996 to the Chairman of the Committee of Ministers of the Council of Europe you point out that "The problems of displaced persons and refugees are given top priority in the Croatian Government's programmes for reconstruction and development which are systematically creating conditions for the voluntary, safe, dignified and speedy return of all displaced persons and refugees, regardless of their nationality and ethnic origin" (Document A, page 4). However, you indicate that your Government envisages this return in three stages. It is my impression that in the first stage it is mainly a process of family reunification that is taking place. The number involved so far constitutes only a small percentage of those who left. In the second stage people are allowed to return in the framework of pilot projects. Even though I do recognise the importance of these projects (also in terms of confidence-building), it is at the same time evident that only a fairly limited number of potential returnees will be involved in the projects. This leads to the conclusion that, quite apart from all the obstacles complicating their return, most of the Croat citizens of Serb ethnicity will have to wait until the third stage has begun.
To my knowledge, your Government has as yet not indicated when the third stage is due to begin. It has, however, made several reservations regarding its timing. In your letter of 13 June 1996 to the Council of Europe (Document A, page 5) it is stated that the final stage will commence "after all the displaced Croats have returned to their place of origin". This raises several questions. The first is whether such a policy can be considered to be compatible with article 15 of the Constitution of the Republic of Croatia which states i.a. that "Members of all nations and minorities shall have equal rights in the Republic of Croatia". The second question is whether this policy applies to each of the former Sectors individually or whether it means that all Serb refugees will have to wait until the return of the Croats has been completed in all former Sectors. Finally the question has to be raised whether the formula "after all the displaced Croats have returned to their place of origin" has to be interpreted as meaning "after all the Croats who have expressed the wish to return to their place of origin have been provided with the opportunity to do so".
Another reservation expressed in your letter is: "The return of ethnic Serbs who fled from Croatia but who now wish to return, would otherwise be moving at a much faster rate, if it were not for numerous high security concerns associated with their return" (Document B, page 10). This again raises the question to what extent this consideration will lead to further delays in the return of refugees of Serb origin. Permit me also to ask for a further clarification of these concerns. As far as the huge problem of demining is concerned, this risk exists for both Croat and Serb refugees, and can therefore not be considered to be a reason for reducing the flow of returnees of Serb ethnicity only. Concerns have also been expressed about arms caches which have been found in the former Sectors. I wonder, however, whether more than one year after Croat troops established control over the former Sectors West, North and South, this problem still constitutes a serious security concern. As far as the returning Serbs themselves are concerned, I have understanding for the bitter feelings of the Croats about the fact that many of them sympathized with the enemy. On the other hand, for this reason to delay the return of Serbs who are not being indicted for war crimes would in my view be contrary to the letter and the spirit of the Joint Communiqué issued after the meeting of President Tujman and President Milosovic in Athens on 7 August 1996, which states i.a.: "The two sides expressed their readiness to create the necessary conditions for the free and safe return of all refugees and displaced persons to their places of residing or to other places which they might freely choose".
Permit me, Mr Minister, to conclude my remarks regarding the Serbs who left the former Sectors West, North and South in 1995 with the recommendation that everything possible be done to remove the obstacles which presently stand in the way of their return, and with the expression of the hope that the various reservations regarding the third and final stage of the return process formulated in your letter to the Council of Europe on 13 June 1996 will not signify that new delays are to be expected or that new steps will be taken to reduce the flow of returnees. In this connection I would also recommend that your Government will announce a specific period during which it will allow the return of all refugees of Serb ethnicity who have expressed the will to do so and who cannot be considered to belong to the category of war criminals.
Needless to say, my interest in the return of refugees does not restrict itself to those residents of Croatia who are of Serb ethnicity but equally to the tens of thousands of Croats who had to flee during the war. In this connection I should like to stress again, however, that the return of Croats to the area presently still under UNTAES administration would be greatly facilitated if there would be more opportunities to return to their places of origin for the Serbs who fled to this area from other parts of Croatia in 1995.
Referring to the indispensable conditions for a free and safe return of all refugees, President Tujman and President Milosovic have agreed in the Joint Communiqué issued after their meeting in Athens on 7 August that "safe return implies general amnesty". Much as I welcome this statement, it has in my view to be kept in mind that the amnesty legislation presently in force in Croatia shows a number of deficiencies. I have noted that the Amnesty Law which was promulgated in June for those residing at that moment in the part of Croatia which is temporarily under UNTAES administration applies to criminal acts committed in the period between 17 August 1990 and 1 June 1996, while the general amnesty law as amended in 1995 mentions the period from 17 August 1990 to 10 May 1995. Moreover, article 2 of this Law states in general terms, and without any further specification, that there will be no amnesty for perpetrators of criminal acts which international law obliges the Republic of Croatia to prosecute. This leads to a great deal of uncertainty about the way this Law has to be applied. The special amnesty law for the residents of the UNTAES area, on the other hand, does mention a number of war crimes as defined in international law, but also contains elements which seem to go beyond what is required under international law. For instance persons who have committed crimes mentioned in the Law on Subversive and Terroristic Acts against the Sovereignty and Territorial Integrity of the Republic of Croatia or who have committed crimes against the security of the state as defined in the Penal Code will be exempted from the amnesty. If they committed acts which fall in the category recognized in international law as war crimes, prosecution is justified and desirable. But what about persons who fought, or were forced to fight, against Croatia in the war, or who served, voluntarily or by coercion in the civil administration set up by local Serb authorities in the former Sectors North, South, West and East? The text of the June 1996 Amnesty Law seems to suggest that such persons, even if they would not have committed acts defined as war crimes under international law, would be considered to be guilty of subversive acts or acts against the security of the state. This would inevitably considerably curtail the relevance of the amnesty granted under the 1996 Law to the residents of the present UNTAES area. Already now the uncertainty about the way the Law is to be interpreted has led to doubts amongst the refugees of Serb ethnicity about the possibilities of a safe return as promised in the Athens Communiqué of 7 August 1996. A Security Council statement, dated 15 August 1996, urges Croatia to adopt a comprehensive amnesty law concerning all persons who, voluntarily or by coercion, served in the civil administration, military or police forces of the local Serb authorities in the former UN Protected Areas, with the exception of those who committed war crimes as defined in international law. I express the hope that Croatia will fulfill the promise of a general amnesty in the Athens Communiqué of 7 August 1996 by accepting the formula suggested by the Security Council.
There is in my view even more reason to take this step because, contrary to original expectations, the publishing of a list of some 800 war criminals has not removed the feeling of uncertainty I alluded to above. This is due partly to inaccuracies which occur in this list, but mainly because, as the Minister of Justice Mr Separovic confirmed to me, this list in not exhaustive but might have to be extended in the light of ongoing investigations.
May I finally, Mr Minister, make one more recommendation. Alarming reports have reached me that persons of Serb ethnicity presently residing in the UNTAES area are sometimes the recipients of threatening telephone calls. I would hope that your Government publicly dissociates itself from such practices. Such a step would have a beneficial psychological effect and could be seen as a confidence-building measure. In this respect I also mention the Framework Convention of the Council of Europe to which your Government has committed itself to become a party within a year after its accession to the Council of Europe. Article 6, paragraph 2, of the Convention obliges Parties i.a. to take appropriate measures to protect persons who may be subject to threats, or acts of discrimination, hostility or violence as a result of their ethnic identity. Indeed, irrespective of the motivation for the threats, Article 3 of the Universal Declaration of Human Rights and Article 9 (1) of the International Covenant on Civil and Political Rights oblige your Government to ensure security of person including with horizontal effects between all persons within your jurisdiction (see the views of the UN Human Rights Committee in Delgado Paés v. Colombia, case no. 195/1985 at paras. 5.5, 5.6 and 6).
The second point I wanted to raise was the assurance you gave me when we met in Zagreb in June that Croatia would be prepared to accept a comprehensive international monitoring system in Eastern Slavonia, Baranja and Western Sirmium after UNTAES has left. I welcome this because I am convinced that such a monitoring system could constitute an important contribution to confidence-building in the area.
These were the comments and recommendations I wanted to submit to you, Mr Minister. I am looking forward with great interest to your reply.
Yours sincerely,
Max van der Stoel
OSCE High Commissioner
on National Minorities
