Situation of Draft Evaders/Deserters from Former Yugoslavia

I. FEDERAL REPUBLIC OF YUGOSLAVIA (SERBIA AND MONTENEGRO)

A.    Conscription

All those who are permanent residents of the Federal Republic of Yugoslavia are eligible for conscription. All men aged 18 to 27 have to serve 12 months compulsory military service (Art. 22 of the Compulsory Military Service Law). Thereafter, they become reservists until the age of 60.

Forced Conscription/Mobilization

Refugees from Bosnia and Croatia are not drafted into the Federal Republic of Yugoslavia army. In the past, refugees have been forcibly enlisted and taken to Bosnia and Croatia by the Bosnian-Serb and Croatian-Serb armies. With regard to all areas under Serb control in Croatia and Bosnia and Herzegovina, anyone who is not a citizen of Serbia or Montenegro has not been drafted into the Federal Republic of Yugoslavia army since March 1993, regardless of refugee status.

Mobilization of refugees has taken place twice in the past. First, in February 1993, the army of the "Republic of Serbian Krajina" forcibly drafted refugees. In January and February 1994 the armies of the "Republic of Srpska" and the "Republic of Serbian Krajina" distributed call up notices to refugees in Serbia and Montenegro. Refugees who responded were taken to Serb held areas of Bosnia and Herzegovina and Croatia and enlisted in the army. At some collective refugee centres in Serbia, Bosnian Serb army vehicles came to collect refugees. Those refugees who did not respond to the call-up suffered no negative consequences on the part of the Federal Republic of Yugoslavia authorities.

B.    Draft Evasion

Draft evasion is widespread in the Federal Republic of Yugoslavia. During and after the 1991 Serbian-Croatian war, thousands of files for draft evasion were opened in the courts, but most cases resulted in fines. The cases of those who left the country have been suspended. When prosecuted, draft evaders are generally not subject to military jurisdiction, but practice is inconsistent, and UNHCR has received general reports of prosecutions before military courts as well. Draft evaders may also be picked up by the police and taken to the military barracks to begin their service.

C.    Desertion

There have been an unknown number of prosecutions for desertion during the 1991 war by the Belgrade and Nils military courts. The highest sentence that UNHCR is aware of is 2 years imprisonment.

D.    Punishment

Draft evasion is covered by Articles 214-217 in Chapter 20 of the Federal Criminal Code (Offences Against the Armed Forces of the Federal Republic of Yugoslavia). Article 226 provides that any penalties under 214 are substantially increased when the offence is committed after a state of war has been declared or when there is an imminent threat of war. The Federal Presidency declared a state of threat of war on 6 October 1991, which was in force from 1 October 1991 until 27 April 1992.

The possible penalties for draft evaders/deserters are as follows (Articles 214, 217 and 226 of the Criminal Code):

-           failure to answer a recruitment call in peacetime: max. 1 year;

-           idem during war or threat of war: 1 to 10 years;

-           hiding inside the country with the intent to evade recruitment in peacetime: 3 months - 5 years;

-           idem during war or threat of war: 5 years - 20 years (earlier capital punishment);

-           going or staying abroad with the intent to evade recruitment in peacetime: 1 - 10 years;

-           idem during war or threat of war: 5 years - 20 years (earlier capital punishment);

-           desertion and not returning within 30 days in peacetime: 6 months to 5 years;

-           idem during war or threat of war: 5 years - 20 years (earlier capital punishment);

-           desertion and leaving the country in peacetime: minimum 1 year;

-           idem during war or threat of war: 5 years - 20 years (earlier capital punishment).

UNHCR, while attempting to obtain specific information on cases of prosecution, still is unable to provide any statistics, but the impression is there are relatively few; no indications as to importance of military rank in sentencing.

With regard to the specific treatment of draft evaders/deserters from Kosovo, Kosovo Albanian lawyers tell UNHCR that their clients almost never get less than 6 months imprisonment for draft evasion/desertion. In December 1994, the press reported two cases of Kosovo Albanians who had remained in Yugoslavia receiving 6 month sentences, and also two cases who had gone abroad receiving 8 month sentences. In the summer of 1994, a few Kosovo Albanian draft evaders who had gone abroad (Albania) were prosecuted and sentenced (5 years) for having endangered the territorial integrity of Yugoslavia by undergoing military training in Albania.

The new Yugoslav Constitution excludes capital punishment (Art. 21, Federal Constitution). Capital punishment may only be spelled out in law in exceptional cases, and pronounced only for the most serious criminal offences (Art. 14, Serbian Constitution) Parliament amended the Criminal Code of Yugoslavia on July 16, 1993 and replaced capital punishment with 20 years imprisonment.

II. CROATIA

The amended version of the Law on Defence with all supplements and amendments, was published in the Official Gazette No. 74 from 6 August 1993, the first version of the Law was published in the Official Gazette No. 49 in 1991.

A.    Conscription

Military service and the defence of the Republic shall be the duty of all citizens able to perform it (Constitution of Croatia, Art. 47, para.1). Military obligation consists of recruitment obligation, military service and serving in reserve (Art. 66, para. 1, Law on Defence). Women are exempted from recruitment obligation and military obligation (Art. 66, para. 2, Law on Defence), but under certain conditions, prescribed by the Law, women are obliged to serve in the reserve as reservists. Draft age ceases at the age of 60 for men and 50 for women (Art. 68, Law on Defence). The duration of military service is 10 months (Art. 95, para. 1, Law on Defence). Men younger than 35 and unemployed are most likely to be mobilized.

The draft age is between 16 and 55. A person becomes eligible for draft when he reaches the age of 17 (Art. 72, Law on Defence). Upon an individual's request, he can be recruited immediately in the calendar year in which he becomes 17. In general, however, those conscripts who are capable for military service, will have to perform their military obligations in the calendar year in which they reach the age of 19 (Art. 98, para. 1, Law on Defence). Only in the case that the independency and unity of Croatia is in immediate jeopardy or in a state of war, the President of the Republic can decide to recruit at the age of 16 (Art. 75, para. 3, Law on Defence). This provision has not been used during the recent conflict in Croatia.

While conscription is limited to Croatian nationals, UNHCR has received reports of significant conscription from end 1993 to March 1994 of Bosnian Croats including some without Croatian nationality. UNHCR is, however, unaware of any prosecution being initiated against any non-Croat national not responding to the draft.

B.    Draft Evasion/Desertion

The military penal system in Croatia is covered by Chapter 18 of the Basic Criminal Code of the Republic of Croatia (Offences against the Armed Forces of the Republic of Croatia). Generally, Croatian soldiers, who are in the reserve are not sent to the front lines, but near those areas.

C.    Penalties for draft evasion and desertion include:

1.         Failure to answer mobilization call; peacetime maximum of one year, during threat of war 1 to 10 years;

2.         Hiding inside the country to avoid mobilization in peacetime; 3 months to 5 years, during threat of war, 5 to 20 years;

3.         Leaving the country to avoid mobilization in peacetime; 1 to 10 years, during war or threat of war 5 to 20 years.

D.    Alternative Service

Conscientious objectors status shall be allowed to those whose religious or moral beliefs prevent them from performing their military duty in the armed forces. (Croatian Constitution, Art. 47, para. 2). Conscientious objectors shall be granted to persons not only on the basis of the Croatian Constitution, but on the basis of Art. 81 of the Law on Defence. Alternative service is covered in Art. 82 of the Military Service Law. Alternative service can be performed in the armed forces (Croatian Army) with duties where a person need not carry and use a weapon. (Art. 82, Law on Defence). But an alternative service can also be performed in other legal entities which have its headquarters in the Republic of Croatia, (Art. 83, Law on Defence). The duration of alternative service is 15 months (Art. 95, para. 2, Law on Defence). The right to alternative service is recognized in practice, but on a smaller scale. A special Commission for the Alternative Service/Commission for Civil Service is appointed by the Ministry of Justice (Art. 84, para. 1, Law on Defence).

Reservists were able to make an application regarding conscientious objections within a certain period of time which expired on 26 May 1994. Upon the initiative of the Antiwar Campaign Croatia, Centre for Peace, Nonviolence and Human Right Zagreb (Croatian NGO), the Constitutional Court of Croatia started the procedure to decide on the constitutionality of the Law on Defence in respect to the limited time allowed for submitting the conscientious objection by reservists. The procedure started at the end of April 1994 and is still pending at the Constitutional Court.

E.    Amnesty Law of 25 September 1992

One Croatian Amnesty law covers certain "criminal acts" including desertion and draft evasion committed between 17 August 1990 and 25 September 1992, while others are exempted from pardon (Art. 2). Acts exempting a person from pardon, include the "criminal act of violating territorial sovereignty" (Basic Criminal Code of the Republic of Croatia, Ch. 14, Art. 114), and "all criminal acts" (Ch. 15, Art. 119-137). Apparently the Amnesty Law is being applied and prosecutions for draft evasion is infrequent. However, isolated cases of prosecution and misapplication of the law may occur. The role in this regard which the military rank may play, is unknown to UNHCR.

III. BOSNIA AND HERZEGOVINA

A.    Basic Provisions of Law Governing Mobilization

i)        Proclamation of a State of War

President Alija Izetbegovic proclaimed a state of war on the territory of the Republic of Bosnia and Herzegovina on 20 July 1992. RBiH Protocol No. 1201/92 (Sarajevo, 20 July 1992). From the standpoint of domestic law, President Izetbegovic based the proclamation upon the Constitution of the Republic of Bosnia and Herzegovina, amend. XI, pt. 5, art. 3. Noting that "an aggression has been committed by the Republic of Serbia and Montenegro, the Yugoslav People's Army and the terrorist Serbian Democratic Party", the President also referred to the "rights of defense recognised in international law", including Article 51 of the United Nations Charter. The proclamation of a state of war remains in effect in the Republic of Bosnia and Herzegovina.

ii)       Proclamation of General Mobilization

With a separate proclamation, President Izetbegovic also ordered a general mobilization of all militarily-obliged persons (vojni obvezek). Protocol No. 1200/92 (Sarajevo, 20 July 1992). The proclamation also directed all other citizens to report for civil defense duties, instructed the owners of material resources subject to registration for defense purposes to place such property at the disposal of the military, ordered all public companies to introduce compulsory work in order "to facilitate normal living", and similarly ordered compulsory work for private businesses and other enterprises. The proclamation, which superseded a prior general mobilization proclamation issued on 20 May 1992, remains in effect today.

iii)      Military Conscription

In General

The proclamation of general mobilization ordered all militarily-obliged persons on the territory of the Republic of Bosnia and Herzegovina report to the nearest Territorial Defense Headquarters with their equipment and personal weapons. The Territorial Defense has since been reorganised as the Army of the Republic of Bosnia and Herzegovina. Each Municipal Secretariat of the People's Defense (Opstinski Sekretariat za Narodnu Odbranu) retains the discretion to implement the general mobilization proclamation on the local level through individual draft notices (vojni poziv) instructing conscripts to report for duty.

"Militarily-obliged" persons are male citizens between eighteen and fifty-five years of age. Women have not been called for compulsory military service; however, those between eighteen and twenty-seven years of age may volunteer, provided that they are not pregnant and do not have a child under seven years of age. By eighteen years of age, all Bosnian citizens must register in the municipality where they reside and obtain an identification card (licna karta). The registration process provides the municipal authorities with a roster of all militarily-obliged persons within the community. Due to the state of war, military service is for an indefinite period. Release from service usually is possible only when the soldier is no longer medically fit for service.

Soldiers are issued military service booklets (vojna knjizica). Service in the municipal or regional police also entitles an individual to receive the same booklet. While mobilization normally is carried out in an orderly manner, men of military service age who do not possess a military service booklet or proof that they are under authorised work obligation (radna obavez) (see Section 2(d) below) risk arrest and immediate conscription during occasional mobilization sweeps conducted by the military police.

Exemptions from Service

Medical unfitness is the only formally recognised basis for exemption from military service. A conscript claiming to be unfit for service will be referred to Military Medical Commission (Vojna Lekarksa Komisija) for evaluation. Depending upon the nature of his condition, the Commission may either release the individual from further military obligation or limit his military role (e.g. assignment to non-combat duties). To the extent of his abilities, an individual exempted from military service on medical grounds still may be mobilized for civil defense tasks. (See Section A(v) below).

The Republic of Bosnia and Herzegovina does not recognise conscientious objection to participation in armed conflict as a basis for avoiding military service. Local military commanders do have the discretion to assign conscientious objectors to non-combat duties. In Tuzla, for example, members of the Jehovah's Witnesses sect were deployed as military cooks and kitchen helpers because the tenets of their religion forbid them to carry weapons. Similar accommodations occasionally have been made for minority group members and others who are able to make a compelling and convincing case to the local military commander. Such alternative service, however, is not available as a matter of right.

Treatment of Minorities

While predominantly composed of Bosniaks (Bosnian Muslims), the Army of the Republic of Bosnia and Herzegovina proclaims itself to be secular, multinational and multicultural in nature. Military service obligations apply uniformly to all men without distinction according to nationality. Bosnian Muslims, Croats and Serbs who refuse to serve are equally subject to prosecution for draft evasion.

Municipal authorities occasionally have made ad hoc concessions to the local minority communities regarding conscription. For example, the residents of a traditionally Serb village in the Tuzla region are exempted from conscription. At the beginning of the war, the village leaders agreed to surrender weapons provided to them by the retreating Yugoslav People's Army on the condition that the men of the village would not be called for service in the Bosnian Army. Local authorities have respected the agreement throughout the conflict. Of course, informal arrangements of this type have no legal force and may be abrogated without warning.

Since the formation of the Federation, Bosnian Croats called for mobilization in the Zenica region have been given the option of enlisting the HVO's 111th Usora Brigade or 110 Zepce Brigade, which have been reorganised as so-called "home defense regiments". HVO formations in Tuzla and Sarajevo, and increasing tensions within the Federation, however, may eventually undermine this arrangement.

iv)      Authorised Work Obligation

The proclamation of general mobilization ordered compulsory work for all public and private entities to ensure their continuous operation. The Municipal Secretariat of Defense may authorise the employment of an individual with an agency, organisation or enterprise as official work obligation (radna obavez). The Secretariat may authorise official work obligation for a broad range of public service or commercial activities, including employment in government offices, public schools, public utilities companies, humanitarian organisations, defense industries and strategically important sectors such as agriculture, mining and transportation.

The Municipal Secretariat of Defense issues a certificate to all persons subject to authorised work obligation (potvrda o radnoje obavezi). Possession of the certificate excuses an individual from military service so long as he remains employed. Termination of authorised employment typically results in immediate conscription. The Republic Ministry of Defense (Ministarstvo Obrane) reportedly carried out a systematic review of authorised work obligation toward the end of 1994. All companies and enterprises were asked to provide lists of employees under work obligation, and men determined not to be indispensable received draft notices shortly thereafter.

v)       Civil Defense Duties

The proclamation on general mobilisation also directed all citizens not subject to military obligation to report without delay to local civil defense units (jedinice civilne zastite). The civil defense obligation formally extends to all men between eighteen and sixty-five years of age and women between eighteen and fifty-five years of age. In practice, women are not compelled to join civil defense units, but they may be asked to prepare food or make clothing for soldiers or vulnerable persons in the community on a more or less voluntary basis.

Participation in a civil defense unit is the residual form of mandatory wartime service. Men performing military service or authorised work obligation are excused from civil defense duties. Participation in a civil defense unit, however, will not protect an able-bodied man from conscription. Men exempted from military service on medical grounds may remain obligated to participate in civil defense units, although they will be assigned tasks consistent with their physical limitations.

Civil defense units carry out a broad range of functions, including garbage collection, street cleaning, repair of war-damaged buildings, distribution of humanitarian assistance and the harvesting of crops. Civil defense units also may be deployed in support of the Bosnian Army, particularly in communities located near the confrontation line. Civil defense units seconded to the military provide labour for military engineering projects, including the construction of trenches. The military commanders also may utilise civil defense workers to evacuate the dead and wounded from the battlefield or to carry food and supplies to soldiers.

Bosnian Serbs and Croats in some municipalities complain that civil defense authorities discriminate against minorities by assigning them to hazardous frontline duties, rather than safer tasks within the local community. Civil defense units indeed contain a disproportionate number of Bosnian Serbs and Croats, primarily because most Bosniak men are serving in the army or are under authorised work obligation. The over-representation of minorities in civil defense work units is more pronounced where a local agreement exempts members of the minority community from military service obligations.

B.    Punishment of Draft-Evaders and Deserters

Draft evasion and desertion from military service are punishable criminal offenses. Discussed below are the applicable criminal statutes and the relevant practice of the District Military Courts in Bosnia and Herzegovina.

The Applicable Statutes

Following independence, the Republic of Bosnia and Herzegovina adopted the criminal law of the former Socialist Federal Republic of Yugoslavia, including the law governing "Criminal Acts Against Armed Forces". RBiH Protocol No. 1144/92 (Sarajevo, 11 April 1992). The applicable criminal statutes remain substantially unchanged, except for certain subsequent modifications to the sentencing guidelines and the addition of a few supplemental provisions.

i)       Refusing the Draft and Evading Military Training

Under the heading "Not Responding to a Draft Notice and Evading Military Service", Article 214 defines various offenses and prescribes associated penalties. The basic provision reads as follows:

Whoever, without valid justification, does not report for recruitment at the appointed time in accordance with the announced war programme, or take up arms, or render military service, participate in military maneuvers or any other military duty, whether he was informed by individual draft notice or by general military mobilisation, shall be punished by paying a fine or by imprisonment of a maximum period of one year.

Art. 214, para. 1. Where a person "hides to avoid the duty mentioned in paragraph 1", the prescribed penalty is increased to one to three years imprisonment. Art. 214, para. 2. An individual who "leaves the country or resides abroad to avoid recruitment or rendering military service, military maneuvers or any other military duty" may be punished by one to ten years imprisonment. Art. 214, para. 3. If a perpetrator who hides or leaves the country to avoid military service obligations in violation of paragraphs 2 or 3 "voluntarily reports himself to a relevant public state organ", the court may impose a lesser penalty or release the individual. Art. 214, para. 5.

ii)      Wilfull Desertion

Article 217 imposes criminal sanctions upon a soldier who forsakes his military duties and wilfully deserts his unit or post. As with Article 214, the penalties are increased during time of war or serious threat of war under Article 226. The key provisions of Article 217 read as follows:

1.         Any military person who wilfully deserts his unit or post and does not return to duty within the period of ten days, or within the same period of time does not return from an authorised period of absence, shall be punished by imprisonment for a maximum period of one year.

2.         The penalty mentioned in paragraph 1, Article 217, shall also be imposed upon any military person who leaves his unit or post more than two times for less than ten days, and also upon any military person who wilfully deserts his unit or post during a special mission or when there is a serious threat of war.

3.         Any military person who hides to avoid service in the armed forces, or wilfully deserts his unit or post and does not return within thirty days, or within the same period of time does not return from an authorised leave, shall be punished by imprisonment for a period of six months to five years.

4.         Any military person, who leaves the country or resides abroad to avoid service in armed forces, shall be punished by imprisonment for a minimum period of one year.

5.         Any military person who intends to flee from the country to avoid service in the armed forces shall be punished by imprisonment for a period of six months to five years.

Art. 217, paras. 1-5. In addition, any person who induces an individual to commit the offenses defined in paragraphs 1 and 2 may be imprisoned for a maximum period of one year. Art. 217, para. 6. A person chargeable under paragraphs 3 or 4 may be given a reduced sentence if he voluntarily reports himself to the relevant authorities. Art. 217, para. 7.

iii)     Subsequent Modifications and Amendments

The Republic of Bosnia and Herzegovina has made relatively minor modifications and amendments to the criminal code of the former Socialist Federal Republic of Yugoslavia since 1992, including the provisions governing crimes against the armed forces. The existing law was modified through the promulgation of "regulations having the force of law" promulgated by the Bosnian Presidency during 1992.

The newer regulations appear to bring some non-military personnel within the scope of the law governing crimes against the armed forces. Art.8, RBiH Protocol No. 1182/92 (Sarajevo, 2 June 1992). Individuals under authorised work obligation, those engaged in civil defense units and persons having other forms of official duties may be prosecuted for the same offences as military personnel, including not responding to a call for mobilisation and willful desertion. Under Article 8, however, prosecution should only follow where the actual offence caused harm or could have resulted in serious negative consequences.

Regulations promulgated by the Presidency also appear to have uniformly increased the penalties associated with criminal offenses. Under the revised provisions, for example, an offense carrying a maximum penalty of ten years imprisonment under the former Yugoslav criminal statutes is punishable by up to fifteen years imprisonment. Art. 3, RBiH Protocol No. 1258/92 (Sarajevo, 29 June 1992). The relationship between the sentencing provisions in Articles 214 and 217, the enhanced penalties applicable during wartime under Article 226 and the increased penalty ranges mandated by the newer regulations is not entirely clear. UNHCR is seeking clarification regarding the application of the various penalty provisions. The distinctions presently are academic, however, since the District Military Courts reportedly impose sentences far less than the maximum penalties available. (See Section 3(b) below).

iv)      Punishment During Wartime or Serious Threat of War

Article 226 increases the punishment associated with criminal acts against the armed forces during time of war or serious threat of war. As noted earlier, the Republic of Bosnia and Herzegovina has been in a formal state of war since 20 July 1992.

(1)     Higher Maximum Sentences

Under Article 226, the basic offense of draft evasion described in paragraph 1 of Article 214 is punishable by one to ten years imprisonment, as compared with three months to five years during peacetime. Art. 226, para. 1. The less aggravated forms of desertion, as defined in paragraphs 1 and 2 of Article 217, and the crime of inducement to commit those offences are similarly punishable by one to ten years during wartime. Art. 226, para. 1.

(2)     Increased Minimum Sentences

Article 226 increases the minimum punishment for an individual who induces another to evade the draft from one year to three years imprisonment. Article 226, paragraph 2. Similarly, a military person who "intends to flee the country to avoid his duty", as proscribed paragraph 5 of Article 217, faces a minimum of three years imprisonment, rather than the six month minimum sentence applicable in peacetime. Art. 226, para. 2.

(3)     Death Penalty Authorised

The death penalty is authorised under Article 226 for the aggravated forms of draft evasion and desertion. Art. 226, para. 3. The District Military Court may impose the death penalty for hiding or leaving the country to avoid the draft in violation of paragraphs 2 and 3 of Article 214. Art. 226, para. 3. Inducement to commit these offences is also punishable by death. Art. 226, para. 3. Hiding or leaving the country after deserting from military duty, as proscribed in paragraphs 3 and 4 of Article 217, similarly is subject to the death penalty. Art. 226, para. 3. Under Article 226, the minimum penalty for each of the offences listed above, when committed during time of war or serious threat of war, is five years imprisonment.

v)       Confiscation of Property

Any perpetrator who hides or leaves the country to avoid the draft or escape from military duty in violation of Article 214, paragraphs 2 and 3, or Article 217, paragraphs 3 and 4, "may be punished by confiscation of property". Art. 237. A subsequent regulation empowers the court to determine what property will be exempted from confiscation in order to provide support for the perpetrator and his family. RBiH Protocol No. 1182/92 (Sarajevo, 2 June 1992).

vi)      The Alternative of Disciplinary Punishment

For criminal acts against the armed forces for which the maximum punishment is not more than three years imprisonment, disciplinary measures may be imposed in lieu of penal sanctions, if there are mitigating factors and such measures would serve the interests of the military. Art. 238. The provision offers no guidance as to the nature of disciplinary punishment that may be imposed or the considerations that may be taken as mitigating factors.

vii)     Practice of the District Military Courts

(1)     In General

Crimes against the armed forces fall within the original jurisdiction of the District Military Courts (Okruzje Vojni Sudovi). The District Military Courts are located in Sarajevo, Tuzla, Zenica and Mostar, although it is unclear whether the court in Mostar is functioning at present. No statistical information is available regarding prosecutions before the District Military Courts. Unconfirmed reports suggest that hundreds of persons have been formally charged and tried for evading the draft. Based upon interviews with persons tried, convicted and subsequently released, the practice of the District Military Courts appears to differ substantially from region to region.

(2)     Sentencing Practices

The sentencing practices of the District Military Courts appear to vary somewhat from region to region. An individual convicted of draft evasion in Sarajevo face between one and three years of imprisonment, although sentences as light as three months have been reported. In practice, the District Military Court reportedly avoids application of Article 226 and the longer mandatory minimum penalties it mandates for offenses committed during wartime. Sentences of three or four years are more common in the Tuzla region; however, convicted draft-evaders in Tuzla rarely serve out the full term of their sentences. Individuals sentenced to less than five years are released immediately pending review of the conviction on appeal. The appeals process is time-consuming, and few expect that those released will serve their sentences until after the war. Some Bosnian Serbs and Croats convicted and released in this manner reportedly have left the Tuzla area to escape any further consequences. Little information is available concerning the prosecution of deserters. Reports from Sarajevo indicate that sentences for desertion may range up to five years imprisonment. Although the death penalty is authorised, no one has been sentenced to death or executed for desertion. Some reports suggest that deserters caught by the military police often are returned to their military units without any formal disciplinary action having been taken.

(3)     Treatment of Minorities

UNHCR has encountered no evidence of any discrimination based upon nationality in the prosecution and sentencing of Bosnian Serbs and Croats for draft evasion. Private lawyers who represent accused draft-evaders generally consider the trial proceedings to be fair and correct. In fact, evidence that the accused has relatives serving with the Bosnian Serb Army actually may be taken as a mitigating factor justifying a more lenient sentence. Nevertheless, minorities comprise the vast majority of persons prosecuted for draft evasion, ostensibly because most Bosniak men eventually agree to join the armed forces. Unconfirmed reports from Tuzla suggest that up to ninety percent of the persons charged with draft evasion have been Bosian Serbs.

(4)     Status upon Release

Men convicted of draft evasion may not be free from further military service obligations upon completion of their sentence. Some men reportedly have received a new draft notice the day after their release from prison. Even where they do not face conscription, convicted draft-evaders remain obligated to participate in civil defense units.

Due to the general perception that they are disloyal, convicted draft-evaders also may face hostility and harassment in the community. At a minimum, they encounter severe problems in obtaining a passport and exit permission from the municipality in which they reside. Departure from Sarajevo is virtually impossible to arrange by any legal means, due to strict government controls on use of the tunnel and routes leading out of the city. At the same time, UNHCR has received no reports suggesting that men convicted of draft evasion are denied access to humanitarian assistance.

C.    The Republic and Federation Amnesty Laws

The Assembly of the Republic of Bosnia and Herzegovina and the Parliament of the Federation of Bosnia and Herzegovina both recently enacted separate amnesty legislation. UNHCR efforts to obtain the text of the Federation amnesty legislation, which was enacted on 16 January 1995, so far have been unsuccessful. Considered below are the essential provisions of the Republic amnesty law and its implications for Bosnian refugees.

a) Provisions of the New Republic Law on Amnesty

The Republic of Bosnia and Herzegovina's new Law on Amnesty (Zakon o Amnestiji) was approved by the Assembly on 17 December 1994 and came into effect upon its official publication on December 26th. Protocol No. 1722/94 (Sarajevo, 25 December 1994), reprinted in RBiH Official Gazette III/36 (26 December 1994).

i)       Criminal Acts Included within Amnesty

The new law provides amnesty for "[n]ot responding to a draft notice and draft evasion under Article 214, paragraphs 1-3, and willful desertion from the armed forces under Article 217, in connection with Article 226, as provided in the criminal law". Art. 1, para. a. The amnesty also extends to persons punishable under Article 8 of Protocol No. 1182/92. Art. 1, para. b. As noted above, Article 8 extended application of the law governing crimes against the armed forces to certain categories of non-military or quasi-military personnel, including persons under authorised work obligation and those serving in civil defense units. (See Section 3(a)(iii) above). Persons who committed the crimes of draft evasion and desertion prior to the proclamation of a state of war are also eligible for amnesty, "if they were called for service by individual draft notice within the period from 20 June 1992 until the day this law takes effect". Art. 1, para. c, cl.2.

ii)      Limited Period of Amnesty

Amnesty for draft evasion and desertion is available only for a limited period of time. Persons who reside within the Republic of Bosnia and Herzegovina had only thirty days from the date the amnesty law became effective to report themselves to the appropriate state authority. Art. 2, paras. a-b. The amnesty expired for such persons on 26 January 1995. Draft-evaders and deserters living in the Republic of Croatia were given three months, or until 26 March 1995, to take advantage of the amnesty. Persons residing in third countries at the time the amnesty became effective were given six months, or until 26 June 1995, to return to Bosnia and Herzegovina and surrender themselves. The amnesty law directs draft-evaders to "report to the nearest administrative body having competence over defense matters", while deserters must "report to their or the nearest unit, facility, command or headquarters of the armed forces".

iii)     Implementation of the Amnesty

Where the amnesty law is applicable and "proceedings have not been started against the persons mentioned under Article 1 of this law, the proceedings shall not be initiated, if the proceedings are in process they shall be suspended". Art. 3. Pending charges against accused draft-evaders indeed were suspended when the new amnesty law came into force. "If the sentence was rendered against a person mentioned in Article 1 of this law, the person shall be exempted from serving the sentence; if the person started to serve the sentence, the person shall be released from further service. Art. 3. UNHCR has not yet received reports of convicted draft-evaders or deserters having been released from prison.

iv)      Implications for Bosnian Refugees

The limited duration of the amnesty may reduce its utility to Bosnian refugees considering voluntary repatriation. A comprehensive amnesty for men who avoided or deserted from military service, as well as for those who fought with an opposing faction, is an important prerequisite for the encouragement of voluntary repatriation. Bosnian refugees, however, must also be confident that they can return home in conditions of security and dignity. The four-month cessation of hostilities agreement currently in effect creates some hope for peace. A strong possibility exists, however, that humanitarian conditions in Bosnia and Herzegovina will not have improved fundamentally before the amnesty expires on 26 June 1995, particularly further fighting betrays the current climate of cautious optimism.

Significantly, the amnesty only forgives past crimes against the armed forces and does not provide any exemption from future military service. As discussed above, pressure for mobilisation has been increasing in many areas of Bosnia and Herzegovina in recent weeks. Able-bodied men returning from abroad are very likely to face immediate conscription.

UNHCR Special Operation in the former Yugoslavia
6 February 1995, Geneva