DRAFT EVADERS FROM FORMER YUGOSLAVIA: REJECTED AT HOME AND ABROAD
While the international media are painting a picture of an uncivilised, barbaric, i.e fundamentally "un-European" people with a strange desire to kill each other, and while calls for stopping the war by the means of war, i.e. armed international intervention, are gaining in strength, little publicity is given to the tens of thousands of young and middle-aged men who try to avoid participation in a criminal war, by fleeing the country. At home, in the various parts of former Yugoslavia, these war resisters risk both court prosecution and informal forms of punishment and non-state persecution by para-military groups hunting "traitors" and "cowards". Abroad, those seeking protection in Western European countries often face deportation - back to a criminal war. The following article describes the fate that awaites them at home.
The number of young men who left the country is estimated at about 100'000, for Serbia alone. 20-25'000 young Hungarians from Vojvodina (a part of Serbia) are in Hungary, and reports of the Red Cross and foreign immigration organisations indicate that 90-110,000 draft evaders from the FRY (Federal Republic of Yugoslavia: Serbia and Montenegro) have sought protection in Western Europe and North America. No estimates are available on the number of draft evaders from other Republics of former Yugoslavia.
What happens with draft evaders seeking protection in Europe?
Dr. Bozidar Jaksic, a teacher at the Institute for Philosophy and Social Theory at the University of Belgrade, answers as follows: "The odyssey of the young deserters does not end with the half-legal crossing of the state border, but begins with it. Most European governments consider these young men as trespassers and require from them to prove their desertion by an official written document or the sentence of a court martial, which is a flagrant non-sense. While the official Europe issues numerous resolutions, declarations and severe warnings to urge the peaceful solution of the Balkan crisis, at the same time it pushes these young men back towards the maelstrom of war."
Momcilo Grubac and Tibor Varady, both professors of law and former ministers in the government of Milan Panic, have published a very comprehensive statement on the possible legal consequences awaiting those Yugoslav citizens who avoided participation in the armed conflicts by going abroad and staying abroad. The statement clearly contradicts assertions by various European governments, according to which there is no risk for "excessive" punishment of deserters and draft evaders sent back to the FRY.
The provision most relevant with regard to this category of evaders, who have left the country in order to avoid military service, is article 214/3 of the penal code of the FRY: If a conscript leaves the country, or stays abroad in order to avoid military service or military exercises in times of peace, the minimum punishment is one year, while the maximum is ten years of prison.
In a period of state of war or immediate danger of war, the punishments for the same offences are far more severe, with a minimum of 5 years, and a maximum of 20 years of prison. The penal code provides for the same punishment of persons inciting conscripts to avoid service.
Yugoslav authorities have constantly qualified the period between Oktober 18, 1991 and May 22, 1992 as a period of "immediate danger of war". This means that the more severe sanctions of the penal code apply to draft evaders outside the country under the above period.
The perpetrator of the offences described in article 214/3 can be any Yugoslav citizen subject to military duty. Citizens are subject to military duty until the age of 55 (privates and junior officers), respectively 60 (officers). There is no upper age limit for the offence of "instigation" which thus theoretically provides for the prosecution of peace activists as well as family members and friends of draft evaders.
Personal service of the draft call is not a necessary prerequisite to the offence of disobeying it. Criminal responsibility may be established if there is other evidence showing that the conscript was aware that a personal call was sent to him, or that a general call included him. Intent to disobey a draft call can i.a. also be inferred from the mere circumstance that the conscript - without being actually called - left the country or extended his stay abroad at times of mass mobilisations, state of war or "immediate danger of war".
The jurisdiction lies with the military courts. The limitation for starting prosecution is 10 years in times of peace, and 25 years, if committed during a state of war or "immediate danger". The running of this limitation period will be interrupted if no prosecution is possible against the offender - for instance, when the offender is abroad.
The authors of the statement point out that there are no complete data on the number of people against whom criminal charges have actually been brought. Some data were made available by the military authorities at a time when the then Yugoslav Federal Government under Prime Minister Milan Panic proposed an act of amnesty for draft evaders.
According to these data, between January 1, 1991 and July 1, 1992, criminal proceedings were initiated against 9245 persons. However, the majority of the charges were not formally processed by the date of the report (July 1, 1992).
In the assessment of the professors Grubac and Varady, the number of persons against whom criminal proceedings have been started was between 15,000 and 20'000 in November 1993. Convictions were so far rendered on the ground of the "milder" subsections of article 214, rather than on the ground of its subsection 3 dealing with conscripts who are out of the country.
A draft act on general amnesty for deserters and draft evaders proposed by the Ministry of Justice (then headed by by professor Varady) in July 1992, has never been voted by the Federal Parliament. Although it is still pending, the Draft Act is very unlikely to be adopted in a foreseeable future.
Based on this, the two authors of the statement conclude that "those who took refuge in foreign countries in order to avoid participation in armed conflicts remain in serious peril. (...) It is true, of course, that all offenders cannot and will not be prosecuted. There is no way to tell, however, who will, and who will not be charged. The playground for possible considerations in choosing the prospective defendants is wide; mere chance will probably keep playing a role as well. Thousands have been prosecuted, and further thousands will in all probability be prosecuted in the future. It is clear that nobody will be safe until the adoption of an act of amnesty."
N.B.
Sources: AIM - Alternative Information Network, report 11/29.12.93, in English; "The youth between the war and peace - the case of the former Yugoslavia", by Dr. Bozidar Jaksic, University of Belgrade, 13 p., in English; Statement by Professor Momcilo Grubac and Professor Tibor Varady, Novi Sad, 18.11.93, 9 p., in English.