(by Jernej Letnar Černič, 21 December 2010)
As many as 130,000 people are estimated to have been summarily executed in Slovenia in the months following the end of the Second World War on 8 May 1945.1 It is further estimated that around 15,000 of those executed were of Slovenian nationality, whereas others included Croats, Serbs, and Germans. They were mostly civilians but also included members of the Slovenian Home Guard and other political opponents of the resistance movement led by the Slovenian Communist Party. These crimes—carried out by members of the Slovenian section of the Yugoslav Secret Police—were committed mostly in the form of systematic summary executions at hidden locations across Slovenia, predominantly in unpopulated rural areas and in forests.2 They were part of a systematic plan of the Slovenian Communist Party to eliminate their political opponents and their families, civilian or otherwise. It is still unclear whether the order for the liquidation of alleged political opponents and civilian population originated from the head of the former Yugoslav Security Police in Belgrade or the Slovenian branch in Ljubljana.
The Commission for the Settlement of Hidden Mass Gravesites of the Government of the Republic of Slovenia has indicated that almost 600 hidden mass graves have been found in Slovenia thus far.3 The Commission has as its long-term goal the exhumation and re-burial of all Slovenian victims killed on Slovenian territory.
This article explores judicial responses to crimes against humanity committed in Slovenian territory in the months following the end of the Second World War. It also examines the recent decisions by Slovenian courts in Prosecutor v. Mitja Ribičič,4 a case specifically concerned with crimes during peacetime. Mitja Ribičič was a former official of the Slovenian Communist Party and former deputy head of the Slovenian section of the Yugoslav Security Police, or the Department for Protection of the People (OZNA) as was it was then known. This was the body that allegedly orchestrated the killings on Slovenian territory. In early 2006, the Prosecutor brought a case before the District Court in Ljubljana requesting an investigation against Ribičič, alleging that he facilitated crimes against humanity on Slovenian territory. This case was the first brought against any of the officials of the Communist party in Slovenia since it had hitherto been thought that the dearth in substantive evidence would make prosecution very difficult.
Section I of the present work briefly outlines the factual background of the crimes committed in Slovenian territory after Second World War. This is followed by a discussion of the decisions of the Slovenian District and High Courts in the case of Prosecutor v. Mitja Ribičič in Section II. Section III offers an analysis of the decisions from the perspective of international criminal law and transitional justice, trying to draw out lessons concerning the understanding of current ideological and political divisions in Slovenian public space. Section II and III lay the basis for the argument that there exists a strong legal and moral ground for prosecuting perpetrators of crimes against humanity. In this light, this paper also examines alternative responses to post-war crimes and the prospects for any future criminal cases against former high officials of the Slovenian Communist Party, or anyone else for that matter, who may have been involved in the killings.
II. Factual Background
World War II came to Yugoslavia when the German Luftwaffe bombed Belgrade on 6 April 1941. Following an invasion by Axis forces, the Yugoslav monarchy surrendered on 17 April 1941.5 It was in this light that the Slovenian Liberation Front, the leading group in the Slovenian resistance, was established in Ljubljana on 27 April 1941.6 A Slovenian historian Božo Repe notes that ‘during the war, the Communist Party in Slovenia, which organised and operationally controlled the resistance against occupiers, began articulating revolutionary goals’7 and in March 1943 ‘the Slovenian Communist Party persuaded a number of non-Communist groups in the Slovenian Liberation Front to unify under Communist leadership’.8 Parts of the population organised and formed the Village Guards and later, after Italian capitulation in September 1943, the Home Guard, which opposed the monopolisation of the resistance movement by the Communist Party.9 This resulted in a civil war between the members of the Slovenian Liberation Front and members of the Village and Home Guards, particularly following the massacres of non-Communist members of Slovenian National Front in 1943.10 The political opponents of the Slovenian Communist party were mostly Christian Democrats who had refused to join the National Liberation movement.11
The Slovenian Liberation Front won the armed conflict with against German and Italian forces and liberated Slovenia. The Slovenian Communist Party seized the opportunity to turn a national liberation movement against the Axis forces into a civil war, and prohibited those who did not accept the leadership of the Communist party from fighting against the occupiers. In other words, the resistance was a partisan movement led by the Slovenian Communist Party who ultimately emerged as the victors at the end of the war.
At the end of the Second World War, in light of the partisan guerrilla advancement, and following an unsuccessful attempt to establish their own parliament and government in May 1945, the political opponents of the Communist Party (including the Slovenian national army) fled to the British Occupation Zone in Carinthia and were detained in a camp at Vetrinj.12 At the end of May 1945, the British troops handed over 30,000 men to the partisan forces, which were controlled by the Slovenian section of the wider Yugoslav Communist Party led by Josip Broz Tito.13 Most of them were then subsequently executed in forests and caves in destinations throughout Slovenia. Only after the fall of the Iron Curtain did the totalitarian regime’s secret gravesites begin to be discovered. Dr Mitja Ferenc notes that ‘methodical record-keeping of secret mass graves only began in 2002, accompanied by a huge response in the media which was triggered by the discovery of 431 victims from two mineshafts in Zgornja Bistrica and in Štajerska’.14 The Ministry of Labour, Family and Social Affairs of the Republic of Slovenia has catalogued 3,986 wartime graves and mass graves in Slovenia from World War II.15 This data does not include the number of secret mass graves in Slovenia. As noted above, the Commission for Settlement of Hidden Mass Gravesites of the Government of the Republic of Slovenia, in particular spearheaded by Dr Mitja Ferenc, has so far catalogued almost six hundred hidden mass gravesites in Slovenia. Ferenc divides the locations of posthumous remains into four groups: pits; mineshafts and shelters; anti-tank and previously excavated shafts; and ‘karst’ abysses. Map 1 illustrates the identified secret mass graves that have so far been found on the territory of Slovenia.
Dr Mitja Ferenc notes that, for most of the victims, ‘it is not even known where they lie, and they never received a burial worthy of a human being’. He continues that ‘crimes were exacerbated by forced silence and suppression of the right to a grave’ and that ‘victims simply did not exist’.16 Similarly, Dr Jože Dežman has succinctly described the fundamental characteristics of the post-Second World War totalitarian crimes in the following way:
Killing civilians and prisoners of war after [the] Second World War is the greatest massacre of unarmed people of all [time] on Slovenian territory. Compared to Europe, the Yugoslav communist massacres after the Second
World War are probably right after the Stalinist purges and the Great Famine
Map 1 – Identified secret mass graves on the territory of Slovenia
Source: Dr. Mitja Ferenc, Topografija evidentiranih grobišč, Poročilo Komisije Vlade Republike Slovenije za reševanje vprašanj prikritih grobišč 2005-2008, Ljubljana 2008, Družina d.o.o., at page 25. See also Exhibition, Hidden and Concealed. Hidden graves 60 years after the end of World War II, Celje, Slovenia, May 2005.
in the Ukraine. The number of those killed in Slovenia in [the] spring of 1945 can now be estimated at more than 100,000[.] Slovenia was the biggest post-War killing site in Europe. It was a mixture of events, when in Slovenia there are retreating German units, collaborator units, units of the Independent State of Croatia, Chetniks and Balkan civilians; more than 15,000 Slovenia inhabitants were murdered as well. Because of its brevity, number of casualties, way of execution and [massiveness in size], it is an event that can be compared to the greatest crimes of communism and National Socialism.17
Having briefly examined the factual background, the following section turns to the analysis of the decisions of Slovenian courts in Prosecutor v. Ribičič.
II. Prosecutor v Mitja Ribičič
A. Factual Background of the Prosecutor v. Mitja Ribičič case
Mitja Ribičič was the first former official of the Slovenian Communist Party to be charged in Slovenia for crimes against humanity after the end of communist reign in 1990. Documents found in the Slovene National Archive reportedly show that in 1945 Mitja Ribičič helped to draft a list of 217 people for execution in his post as a deputy in the Slovenian branch of the Yugoslav secret police (OZNA). This organisation was under the leadership of Aleksandar Ranković, a close assoicate of the post-war Yugoslav communist leader Tito, and was responsible for eliminating political opponents of the communist regime. After being a deputy in this organisation Mitja Ribičič went on to work as a delegate in the Slovenian Socialist parliament, in the Yugoslav federal parliament, and was president of the Yugoslav Communist Party from 1969 to 1971.
The Slovenian Interior Ministry began investigating Mitja Ribičič’s involvement in post-war killings in 1994. However, it was not until 2005 that they ‘ “chanced upon new documents in the state archives” that helped to make the case against the former security official’.18 Based on the evidence found in these documents, Slovenian authorities alleged that ‘Ribičič’s “armed group” not only targeted soldiers, but also murdered civilians viewed as collaborators and disposed of their bodies in mines and ditches’.19 While the direct orders for the killing of these civilians may have come from the heads of OZNA’s provincial branches, they would have to have been approved by Ljubljana and possibly Belgrade as well. Consequently, this may mean not only that Ribičič, as a high former Communist official, could have ultimately have a hand in all the killings, but that their origins may also lay beyond him higher up in the hierarchy.
On 13 May 2005, the Slovenian police filed a criminal charge of genocide against Mitja Ribičič for his alleged role in these crimes. This was the first genocide charge in relation to the Yugoslav communist regime’s reprisal killings. In April 2006, the prosecution amended the qualification of the criminal act and requested a judicial investigation of acts of ‘crimes against [the] civilian population’ pursuant to Article 374, Paragraph 1 of the Slovenian Criminal Code.20
B. The District Court Decision
On 21 April 2006, the Prosecutor asked the District Court of Ljubljana for permission to open a judicial criminal investigation against Ribičič. In Slovenian law, this is the first stage of criminal proceedings, and the prosecution must show the investigating magistrate that there is probable cause to believe the accused has committed a particular criminal act.
The Investigating Court found that no investigation could be opened against Ribičič on two grounds: legal and evidential. First, the investigating court argued that Ribičič could not be tried for crimes against humanity since Article 3 of the Criminal Code provides that the perpetrator of a criminal offence be subject to the statutory provisions applicable at the time the offence was committed. Second, the investigating judge opined that no strong evidence had been submitted indicating Ribičič’s influence on deciding whether a certain group of people should be killed as the prosecution failed to present evidence amounting to probable cause that Mitja Ribičič had played a significant role in issuing the orders for the commission of mass killings.
The Chamber of the District Court of Republic Slovenia in Ljubljana examined the appeal filed by the Supreme State Prosecutor and analysed the decision of the investigating magistrate of the District Court.21 It held that there were in fact legal grounds to try Ribičič for crimes against humanity given sufficient evidence, but nevertheless agreed with the Investigating Court that the prosecution had failed to meet this standard.
The prosecution appealed this decision as well. The High Court examined the District Court’s conclusion and held that the prosecution’s evidence for opening the investigation should have included an answer to the question of what person or agency had issued the decision to massacre opponents of the communist-controlled resistance movement. It should have shown whether or not this was done by the Yugoslav leadership of Communist Party and OZNA and then proceeded hierarchically down to the lower organs of the Slovenian Communist Party. Since such arguments and evidence were missing, the Court concluded that an investigation into Ribičič’s alleged crimes could not be opened. The court concurred with the Chamber decision of the District Court that denied the request to open an investigation into the conduct of Mitja Ribičič. The High Court confirmed that it was legally feasible to prosecute the defendant for crimes against humanity, even though these were not criminalized at the time of commission, as it held that the District Court had rightly established that the alleged crimes contravened basic principles of humanity.
IV. Analysis of the court’s reasoning and prospects for future prosecutions
Following this description of the judicial decisions taken in the Prosecutor v. Ribičič case, I now turn to an analysis of the High Court’s reasoning and a discussion of the prospects for future prosecutions. As to the issue of whether probable cause was established, the prosecution had indeed failed to meet that standard, and thus the request for a judicial investigation was rejected. The evidence submitted did not adequately demonstrate that Ribičič had participated in issuing orders for the execution of opponents of the regime. The prosecutor’s request for the appointment of historian experts witnesses to provide evidence should already have been presented earler to the court in order to justify the opening of a judicial investigation in the first place. It could thus be inferred that the prosecutor himself may have recognised that he lacked sufficient evidence to show probable cause that Mitja Ribičič had committed the alleged crimes.22
A. Challenges of bringing a crimes against humanity case so many years after events
Following the decision of the High Court of Slovenia in Ljubljana, the Head of the Slovenian Supreme State Prosecutors noted that the Courts might have employed a higher burden of proof than usually required in similar criminal cases. The Prosecutor was therefore unsuccessful in demonstrating probable cause for the belief that Mitja Ribičič orchestrated the commission of heinous crimes after the Second World War.
The reality is that there may not be many more cases of this kind heard in court: elderly witnesses are dying and records of crimes have been erased, hidden or, in some cases, lost. Whether or not the courts reached the correct conclusion when they refused to open judicial criminal investigation into alleged acts of Mitja Ribičič is in dispute. Some commentators argue that, on the basis of historical evidence, probable cause had been demonstrated by the Office of the Prosecutor. Further, the organisation Prevent Genocide International notes that ‘the order for the liquidation of alleged collaborators might have originated from the head of the provincial OZNA branches, the authorities said, but the orders would had to have had approval from Ljubljana’.23 It is debatable whether the decision to conduct summary killings was indeed reached at the federal level of the Yugoslav secret police or Yugoslav Communist Party. Ribičič used to be the deputy security chief for Slovenia in the OZNA security and intelligence agency of what was then Yugoslavia. Holding this senior official position may in itself imply that Ribičič knew what was going on in Slovenian territory in the months following the Second World War. Another issue is whether Ribičič or other allegedly responsible persons would even be medically fit to stand trial.24 Just as importantly, there is hardly another living person left to be prosecuted.
While the Prosecution’s reasons for modifying charges against Ribičič from the crime of genocide to crimes against humanity may have been justified, there appear to be a number of weaknesses in the Court’s reasoning. The Court could have interpreted the evidence differently, as there are various suggestions that Ribičič might have been decisively involved in the killings of the 217 people. In particular, the annotation in a document that reads: ‘in line with the file of comrade Major Mitja’, could have been seen as strong evidence of involvement. As a result of the uncertainty surrounding the annotation, the Prosecution requested that a special team of historians be set up to investigate whether ‘Ribičič’s name on the list actually means that he had a say in the killings’, but the investigating judge rejected this motion. The Court’s decision would arguably have been much more convincing if it had employed a group of experts who could have produced an authoritative statement supporting the Court’s conclusions. The High Court held, however, that probable cause was not proven in relation to whether there was any intention on the part of the accused to destroy part of the civilian population. Consequently, the first case against a former senior Communist official suspected of having played a major role in the summary killings of civilians after the Second World War stumbled at the first obstacle.
Criminal justice may play an important role for achieving a kind of catharsis for a particular nation. In this way, it may contribute to the successful transition from totalitarianism to democracy based on the rule of law. Domestic prosecutions of crimes against humanity in Slovenia, however, face many difficult challenges. First, it may appear that the Slovenian courts apply higher standards than those applied in similar criminal cases. Second, it appears that much rests on the political will of those with power, despite the crucial recognition in the international community that there can be no lasting peace without justice. There will always be those who argue that prosecutions are a hindrance to, rather than a foundation for, reconciliation between different groups in society. However, the answer might be that both peace and justice are possible and necessary; the question is not if but when justice should be pursued.
There are also several obstacles working against the domestic prosecution in Slovenia relating to factors beyond formal and substantive dimensions of law. The problem in Slovenia is not that the country does not have a constitutionally (formally) independent judiciary and normative safeguards protecting the right to a fair trial. The real and far deeper structural problem is that Slovenia does not have the relevant agencies to ensure that these normative safeguards are enforced. This is mainly due to the continuing influence of invisible forces of the former totalitarian regime. In other words, while Slovenia’s judiciary is now theoretically independent, the continued influence of communism may mean there are structural and practical barriers to fair trials. It seems that there are lessons useful for other countries facing similar transitional justice issues to be drawn from the failure of the prosecution to present a sufficient case in Prosecutor vs. Ribičič. Prosecution of crimes against humanity requires appropriate resources, including an investigatory structure, security infrastructure for judges, courtrooms, lawyers (prosecutors, defence and other lawyers), investigators, and detention facilities. It is open to question whether the Prosecution in Slovenia was qualified enough to work on this case.
B. How to deal with post-World War II crimes in Slovenia
This section argues that there must be some response to the crimes committed after the Second World War. In Resolution 1481 (2006), the Parliamentary Assembly of the Council of Europe noted the ‘[n]eed for international condemnation of crimes of totalitarian communist regimes’. Furthermore, it added that:
‘[T]he fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism)’.25
It further observed that ‘[p]ublic awareness of crimes committed by totalitarian communist regimes is very poor’26 and that ‘moral assessment and condemnation of crimes committed play an important role in the education of young generations’.27 Thus, perpetrators should be subjected to some mechanism that would at least emphasize apologies and compensation given that punishment of unknown perpetrators is hardly feasible at this stage.28
That the decision in Prosecutor v. Ribičič has not sparked any legal commentary or even discussion from members of the academic legal community in Slovenia may be prima facie surprising. This shows how a number of Slovenian intellectuals and politicians share the fear that opening the investigation for crimes committed so many decades ago would deepen disagreement between different parts of Slovenian society and would hinder the path towards reconciliation between members of the former Communist Party and the rest of Slovenian society. However, historical examples show that without historically and legally addressing atrocities committed, catharsis within society may not be reached. Nonetheless, the need to address the atrocities legally is not accepted as necessary within all the academic literature on transitional justice.
It is highly unlikely that a single judicial decision can address the ‘collective trauma’ of the past through which the Slovenian nation was split. However, it may be argued that this is necessary, as ‘a kind of catharsis’ to set the new century on a course based on principles of non-discrimination, tolerance, and diversity in Slovenian society. The handful of reactions to the case came only from members of the media. Most of them agreed that prosecuting persons for crimes that were not criminalized at the time of commission does not violate the prohibition of retroactivity since those crimes were already at the time of commission contrary to fundamental principles of humanity.29 However, some authors also disagreed with that opinion.30
Similarly, Judges Fura-Sandstrőm, Thór Bjőrgvinsson and Ziemele noted in their joint dissenting opinion in Kononov v Latvia: ‘Why should criminal responsibility depend on which side those guilty of war crimes were fighting on?’31 Further, Judge Myer opined in its concurring opinion in Kononov v Lativa that:
‘[U]nderstandable as it may seem that the Partisans wanted to take revenge for the betrayal and subsequent massacre of their fellow Partisans – or even wanted to set an example to other Latvian villages who might otherwise be willing to collaborate with the occupying German forces – they should not have resorted to an “eye for an eye” approach and should have chosen other means. Even in a situation of war, and even allowing for the difficulties facing a Partisan group having to take collaborators prisoner and transport them to a safe place to stand trial, they ought not to have killed these people on the spot. Besides, some of the killings were particularly gruesome.32
In the same way, Prosecutor v. Ribičič highlights the importance of bringing crimes against humanity cases before the court even when many years have passed since the events had occurred. It may appear irrelevant that there was judged to be insufficient evidence to proceed with criminal investigation in Prosecutor v Ribičič. What is required is a clear national consensus on the ways to tackle crimes against humanity after the Second World War.
Is it not worrying that this was the first case ever to be brought before the courts for crimes against humanity committed in Slovenia after the Second World War? Should the judiciary not play a role in addressing dark chapters of Slovenian contemporary history? Or should the Prosecutor refrain from criminal proceedings and should alternatives to criminal justice be employed? If one wants to avoid impunity, then the only plausible option would be to establish a special department within the criminal courts dealing only with the cases arising from the post-Second World War massacres. If, on the other hand, one thinks the challenges are too great, some other non-judicial mechanisms could be taken into consideration. Regardless, however, it is clear that not doing anything is an unsatisfactory response. As long as Slovenian society remains unwilling or unable to effectively tackle this dark chapter from its past, this problem will remain. Slovenia needs to act to deal with these crimes so many decades after the events mostly because this is necessary not only as a matter of principle but also due the lessons to be learned for future generations.
Thus, the Slovenian judicial system might not be the only possible solution for the prosecution of individuals for heinous crimes against humanity. Instead, Slovenian society has to reach agreement on how to tackle those crimes, and consider how to achieve reconciliation between different parts of the Slovenian society. If the crimes against humanity committed by Slovenians against Slovenians after the Second World War are not addressed appropriately, they may are will remain on the dark side of the collective memory of the Slovenian nation. However, Prosecutor v. Ribičič emphasises the lesson that the Slovenian judiciary and prosecution should not shy away from taking action in these situations. Even if a country implements prosecutions after some time has passed, those involved in criminal justice will need to consider the issue at the same time as considering alternative approaches. Few of the possible mechanisms have so far been used in Slovenia. A number of non-judicial alternative responses such as institutional reform or reparations, truth and reconciliation commissions or truth-seeking processes, pardons, lustration processes, civil proceedings and declaratory statements of apology or the construction of an official memorial should be considered. The next section evaluates the prospects for a truth commission in Slovenia.
Prosecutions of international crimes, whether in national legal orders or at the international level, are easier to accomplish if they take place in close proximity to the time of conflict, because evidence and memories are fresher. However, each transition from war to peace is different. Prosecutor v. Ribičič was the first occasion when a case was brought against a former Communist official for the atrocities committed at the end of the Second World War in Slovenia. It was impossible to hold such prosecutions during the period of Communist rule since the Slovenian judiciary was far from independent, especially in cases against former members of the highest circles of the Communist Party. No prosecution for post-war killings have been brought in the first ten years after Slovenia gained independence. Even today, the question of whether national and/or international criminal justice could be the right answer for addressing the issues of post Second World War crimes remains unanswered.
A. Truth and Reconciliation Commission for Slovenia?
This section examines the suggestion that a useful alternative would be to establish a truth and reconciliation commission for Slovenia. This would involve creating an independent commission, which would investigate human rights violations in the Slovenian territory after the Second World War.
What would be the purpose of the Truth and Reconciliation Commission in Slovenia? Clearly, Slovenian society needs to pose itself that question. Generally, such commissions are established to secure peaceful transition from a military and totalitarian regime to a new, more democratic and accountable governance. The violations committed in Slovenia after the Second World War must be addressed if reconciliation between all sections of the Slovenian population is to be achieved. A truth and reconciliation commission in Slovenia may offer a way of doing this without resorting to prosecution of crimes at a national level. It would emphasise apologies and compensation rather than punishment. Such a system may contribute to the identification of perpetrators, but with the goal of promoting peace and stability in society. Truth and reconciliation increases the possibility of the peaceful resolution of conflict. Schabas has noted that ‘[p]eace and reconciliation are both legitimate values that should have their place in human rights law. They need to be balanced against the importance of prosecution rather than simply discarded.’33 The work of the South-African Truth and Reconciliation Commission illustrates that truth commissions can be a valuable mechanism for victims, provided that they adopt and implement ‘victim-centred’ ideals.34
It appears unlikely that such a Commission similar to the South African TRC or other possible models from around the world could be created in Slovenia, since many decades have passed since the crimes occurred. A Truth and Reconciliation Commission would have advantages in that it would offer victims of human rights violations a state-created forum in which their suffering could be publicly acknowledged, and help to fix in historical memory the social context in which these violations occurred. But in so doing, it would be difficult to avoid the intrinsic tension between the Commission’s objective to achieve national unity and reconciliation as well as the just resolution of individual human rights violations. The importance would by giving equal status to all those civilians killed during and after the war, whether by communists or fascists. All in all, it seems that there is no point in establishing a Truth and Reconciliation Commission because not enough people are still alive. Perhaps future effort should be focused instead on identifying the location of gravesites and memorials. Such efforts should not be seen as mutually exclusive.
B. Settlement of secret mass graves and the creation of memorials
All persons have the right to a name and a grave. This right exists regardless of who won or lost conflict. The Parliamentary Assembly of the Council of Europe noted in its Resolution 1481 (2006) that ‘that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings.’35 Thus, another alternative would be issuing a public apology and construction of public memorial sites dedicated to the victims of the crimes against humanity. The Government of the Republic of Slovenia issued a formal apology condemning crimes committed after the Second World War in Slovenia in 2007—establishing memorials would go a step further in this regard. Such memorials could include a list of the names of all victims killed on the particular site. The publication of these names would also serve as an acknowledgement that they have died for Slovenia. What appears to be required are simple and dignified memorials. They would be dedicated to the memory of the victims of post-war crimes in Slovenia. This would ensure a return to civility and, perhaps, normality within Slovenian society. A number of such sites have been already constructed, such as the Memorial Chapel at Kočevski rog gravesite. In 1984 Spomenka Hribar had already raised the question of a public memorialisation of the victims executed at secret locations all over Slovenia.36
It seems, however, that each individual gravesite would require an individual chapel. Additionally, a museum could be created honouring all victims killed after the Second World War by the totalitarian regime, which would include testimonies, documents, and photographs to illustrate what took place. This hopefully would help to ensure that such acts are not repeated in the future. As earlier generations did not address post-war killings and secret war graves, younger generations remain obliged to properly settle this question in a manner that will show equality to all persons. In short, it appears necessary that the burial sites of all persons killed by the Slovenian totalitarian authorities after the Secon World War should include the personal information of victims, the date and location of their death, and should carry the inscription ‘Victims of war and post-war killings, Republic of Slovenia’.
C. Preserving institutional memory
A number of positive developments can be traced related to post World War Two’s crimes. The Republic of Slovenia has recently established the Study Centre of National Reconciliation, which attempts to examine ‘all forms of violence and violations of fundamental human rights and freedoms against the Slovenian nation and members of other ethnic and religious communities in Slovenia during specific periods caused by all three totalitarian systems: fascism, communism and Nazism.’37 In another development, the Slovenian National Parliament amended the Slovenian Criminal Code in 2008, which criminalizes in Article 297 (2) ‘Stirring up Hatred, Strife or Intolerance based on Violation of the Principle of Equality’. Thus, whoever provokes or stirs up ethnic, racial or religious hatred, strife or intolerance or disseminates ideas on the supremacy of one race over another, or provides aid in any manner for racist activity or denies, diminishes the significance of, approves of or advocates genocide and/or crimes against humanity may be punished by imprisonment of up to three years.
V. Conclusion
The awareness of post World War Two crimes is one of the preconditions for avoiding similar crimes in the future of Slovenia and elsewhere. Discussion on crimes committed on Slovenian territory after the Second World War and secret mass graves is often underpinned by deeply-rooted emotions that suppress rational dialogue . This has led to long-term polarization of Slovenian society along left and right lines of the political spectrum. There are no simple answers to the fundamental questions raised by cases such as Prosecutor v. Ribičič. The challenge posed by transition from oppression to democracy is to account for the totalitarian regime and then rebuild a new society in its wake. The Second World War in Slovenia was primarily a time of social revolution that saw the forceful takeover of authority by the then illegal Communist Party of Yugoslavia. In the end, legally, it seems unlikely that any former high Communist official will be prosecuted in the future by the Slovenian Court for these crimes. Prosecutor v. Mitja Ribičič has shown that it is very difficult to show probable cause for opening a criminal investigation into crimes against humanity committed on the Slovenian territory in the months following the Second World War. The issues concerning crimes against humanity after the Second World War in Slovenia are rife with political implications, and none of the crimes themselves fall within the rationae temporae jurisdiction of the International Criminal Court or International Criminal Court for the Former Yugoslavia. Perhaps most importantly, it is unlikely that the Supreme Prosecution Office of Slovenia will take steps to prosecute more former high communist officials due to the procedural obstacles.
It might perhaps be overly simplistic to call for a compromise over these difficult legal and political questions. In the case of crimes against humanity in Slovenian territory, the various constituent groups often do not listen to each other or leave room for compromise. But until all politicians realize that some form of justice is inevitable in the foreseeable future, and victim-oriented political parties cease asking for nothing but justice, nothing will be done to effectively to tackle the impact of these crimes. Though the present situation may appear grim, consensus does appear to be growing for meaningful and continued reform, which would settle the question of post-war killings and the secret mass graves of victims in a manner that will respect victims’ right to a name and a grave. By showing the extent to which the judiciary and law in Slovenia has (not) responded to crimes against humanity in Slovenia, this work is a modest attempt to push for continued progress and possibly legislative reform in the hope that this dark chapter in the Slovenian history will be closed once and for all.
1 See Pavel Jamnik, Post-World War Two Crimes on the Territory of Slovenia: Police Investigation and proof regarding criminal offences that do not fall under the statute of limitations in, Peter Jambrek (ed.): Crimes committed by totalitarian regimes, Slovenian Presidency of the Council of the European Union, Bruxelles, Ljubljana, at p. 207. See also Jože Dežman, Communist Repression and Transitional Justice in Slovenia, in Peter Jambrek (ed.): Crimes committed by totalitarian regimes, Slovenian Presidency of the Council of the European Union, Bruxelles, Ljubljana, 2008, at p. 204; and Jerca Vodušek Starič, Kako se čistila Jugoslavija? Gordogan, 2004, pp. 36-50. Further, Ljubo Sirc notes that the total number of victims is ‘estimated to be between 150,000 and 200,000’.
2 Jože Pučnik, Mass Post-War Killings, in Drago Jančar (ed.), The Dark Side of the Moon. A Short Hisory of Totalitarianism in Slovenia 1945-1990, Ljubljana, 1998, pp. 39-52.
3 For a detailed historical account see Dr. Mitja Ferenc, Topografija evidentiranih grobišč, Poročilo Komisije Vlade Republike Slovenije za reševanje vprašanj prikritih grobišč 2005-2008, Ljubljana 2008, Družina d.o.o, Tamara Griesser-Pečar, : Razdvojeni narod, Mladinska knjiga, Ljubljana 2004, Das Zerrissene Volk: Slowenien 1941-1945, Okkupation, Kollaboration, Bürgkrieg, Revolution,
<http://www.ukom.gov.si/eng/slovenia/publications/slovenia-news/3646/3688/> , last visited 25 March 2009. See also Public Exhibition Prikrito in očem zakrito, Museum of Contemporary History, 2005 Ljubljana, Slovenia, last visited 25 March 2009. See also Lovro Šturm, Blaž Ivanc, Brez milosti: ranjeni, invalidni in bolni povojni ujetniki na Slovenskem, urednik in soavtor, 2000.
4 Prosecutor of the Republic of Slovenia v. Mitja Ribičič, Original case numbers: Ks 962/2002, Kpr 122/06.
5 Božo Repe, Slovenia During the Second World War, < http://www.theslovenian.com/articles/2008/repe1.pdf>. Last visited 10 November 2009. At page 1.
6 Ibid. At 2.
7 Ibid.
8 Ibid.
9 Ibid.
10Ibid.
11 The Slovenian Communist Party monopolized during the Second World Waethe National Liberation movement against the occupying German, Italian and Hungarian forces. This therefore led to civil war between the Slovenian Communist Party and Christian Democrats.
12 See T. Giesser Pečar, at p. 529.
13 Ibid. At 457. See also Anthony Cogwill, Thomas Brimelow and Christopher, The Repatriation from Austria in 1945. The Report of an Inquiry, London 1990 (Cogwill Inquiry, Reparations); Cogwill Inquiry. The Documentary Evidence Reproduced in Full from British, American, German and Yugoslav Sources, London 1990; and Ian Mitchell, The Cost of Reputation, Glasgow 1997, Nigel Nicholson, Long Live, New York 1998. See also John Corsellus, Marcus Ferrar; Slovenia 1945: Memories of Death and Survival After World War II, I B. Tauris & Co Ltd, 2005.
14 Mitja Ferenc, Secret World War Two Mass Graves in Slovenia, in Peter Jambrek (ed.): Crimes committed by totalitarian regimes, Slovenian Presidency of the Council of the European Union, Bruxelles, Ljubljana, 2008. At p. 158.
15 Ibid. At p. 155.
16 Mitja Ferenc, 2008. At p. 157.
17 Jože Dežman, 2008. At p. 204.
18 Reuters, 25 May 2005, quoted in Prevent Genocide International, <www.preventgenocide.org/news-monitor/2005may2.htm>, last visited 10 November 2008.
19 International Relations and Security Network, <www.isn.ethz.ch>, 27 May 2005, Prevent Genocide International, <www.preventgenocide.org/news-monitor/2005may2.htm>, last visited 10 November 2008.
20 Official Gazette of the Republic of Slovenia, št 63/1994, (Slovenia) (‘Criminal Code’).
21 See Chamber Decision of District Court, Ks 962/2006, 27 June 2006.
22 Chamber Decision of District Court, Ks 962/2006, 27 June 2006, para. 36-45.
23 International Relations and Security Network, <www.isn.ethz.ch>, 27 May 2005, Prevent Genocide International, <www.preventgenocide.org/news-monitor/2005may2.htm>, last visited 10 November 2008.
24 See Nicholas Kulish, In Germany, Whispers of ‘Enough’ at a War-Crimes Trial, New York Times, < http://www.nytimes.com/2009/02/08/weekinreview/08kulish.html?ref=weekinreview>. accessed 9 February 2009.
25 Council of Europe, Parlimentary Assembly, Resolution 1481 (2006), Need for international condemnation of crimes of totalitarian communist regimes, Assembly debate on 25 January 2006 (5th Sitting) (see Doc. 10765, report of the Political Affairs Committee, rapporteur: Mr Lindblad). Text adopted by the Assembly on 25 January 2006 (5th Sitting). <http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta06/eres1481.htm>, accesed 10 May 2009. Para. 5.
26 Ibid. Para. 6.
27 Ibid. Para. 7.
28 See Ronald C. Slye, The Cambodian Amnesties: Beneficiaries and the Temporal Reach of Amnesties for Gross Violation of Human Rights, 22 Wisconsin International Law Journal 99, 107 (2004).
29 Študijski center za narodno spravo, Totalitarizmi – vprašanja in izzivi, Zbornik, January 2010.
30 L. Bavcon, ‘Zakaj povojni poboji ne morejo zastarati?’, Mladina, št. 18, 2009, ˂http://www.mladina.si/tednik/200918/zakaj_povojni_poboji_ne_morejo_zastarati˃.
31 Kononov v. Lativa, ECHR, Application no. 36376/04, Joint dissenting opinion of judges Fura-Sandstrőm, Davíd Thór Bjőrgvinsson and Ziemele, Para. 3.
32 Ibid. Concurring opinion of Judge Myjer, Para. 12.
33 See, for example, William A. Schabas, Amnesty, The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, 11 University of California Davis Journal of International Law & Policy, 145, (2004).
34 See Sam Garkawe, The South African Truth and Reconciliation Commission: A Suitable Model to enhance the role and rights of victims of gross violations of human rights?, [2003] Melbourne University Law Review 14.
35 Council of Europe, Parliamentary Assembly, Resolution 1481 (2006), Need for international condemnation of crimes of totalitarian communist regimes, Assembly debate on 25 January 2006 (5th Sitting) (see Doc. 10765, report of the Political Affairs Committee, rapporteur: Mr Lindblad). Text adopted by the Assembly on 25 January 2006 (5th Sitting). <http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta06/eres1481.htm>, last visited, 10 May 2009. Para. 8.
36 Spomenka Hribar, Guilt and sin, in E. Kocbeck’s Collection, Ljubljana 1987, pp. 11-68.
37 Slovenian Study Centre for National Reconcilliation, <http://www.scnr.si/en/about-us/introduction-2/>, last visited 15 June 2009.
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Responding to crimes against humanity committed in Slovenia after the Second World War
(by Jernej Letnar Černič, 21 December 2010)
As many as 130,000 people are estimated to have been summarily executed in Slovenia in the months following the end of the Second World War on 8 May 1945.1 It is further estimated that around 15,000 of those executed were of Slovenian nationality, whereas others included Croats, Serbs, and Germans. They were mostly civilians but also included members of the Slovenian Home Guard and other political opponents of the resistance movement led by the Slovenian Communist Party. These crimes—carried out by members of the Slovenian section of the Yugoslav Secret Police—were committed mostly in the form of systematic summary executions at hidden locations across Slovenia, predominantly in unpopulated rural areas and in forests.2 They were part of a systematic plan of the Slovenian Communist Party to eliminate their political opponents and their families, civilian or otherwise. It is still unclear whether the order for the liquidation of alleged political opponents and civilian population originated from the head of the former Yugoslav Security Police in Belgrade or the Slovenian branch in Ljubljana.
The Commission for the Settlement of Hidden Mass Gravesites of the Government of the Republic of Slovenia has indicated that almost 600 hidden mass graves have been found in Slovenia thus far.3 The Commission has as its long-term goal the exhumation and re-burial of all Slovenian victims killed on Slovenian territory.
This article explores judicial responses to crimes against humanity committed in Slovenian territory in the months following the end of the Second World War. It also examines the recent decisions by Slovenian courts in Prosecutor v. Mitja Ribičič,4 a case specifically concerned with crimes during peacetime. Mitja Ribičič was a former official of the Slovenian Communist Party and former deputy head of the Slovenian section of the Yugoslav Security Police, or the Department for Protection of the People (OZNA) as was it was then known. This was the body that allegedly orchestrated the killings on Slovenian territory. In early 2006, the Prosecutor brought a case before the District Court in Ljubljana requesting an investigation against Ribičič, alleging that he facilitated crimes against humanity on Slovenian territory. This case was the first brought against any of the officials of the Communist party in Slovenia since it had hitherto been thought that the dearth in substantive evidence would make prosecution very difficult.
Section I of the present work briefly outlines the factual background of the crimes committed in Slovenian territory after Second World War. This is followed by a discussion of the decisions of the Slovenian District and High Courts in the case of Prosecutor v. Mitja Ribičič in Section II. Section III offers an analysis of the decisions from the perspective of international criminal law and transitional justice, trying to draw out lessons concerning the understanding of current ideological and political divisions in Slovenian public space. Section II and III lay the basis for the argument that there exists a strong legal and moral ground for prosecuting perpetrators of crimes against humanity. In this light, this paper also examines alternative responses to post-war crimes and the prospects for any future criminal cases against former high officials of the Slovenian Communist Party, or anyone else for that matter, who may have been involved in the killings.
II. Factual Background
World War II came to Yugoslavia when the German Luftwaffe bombed Belgrade on 6 April 1941. Following an invasion by Axis forces, the Yugoslav monarchy surrendered on 17 April 1941.5 It was in this light that the Slovenian Liberation Front, the leading group in the Slovenian resistance, was established in Ljubljana on 27 April 1941.6 A Slovenian historian Božo Repe notes that ‘during the war, the Communist Party in Slovenia, which organised and operationally controlled the resistance against occupiers, began articulating revolutionary goals’7 and in March 1943 ‘the Slovenian Communist Party persuaded a number of non-Communist groups in the Slovenian Liberation Front to unify under Communist leadership’.8 Parts of the population organised and formed the Village Guards and later, after Italian capitulation in September 1943, the Home Guard, which opposed the monopolisation of the resistance movement by the Communist Party.9 This resulted in a civil war between the members of the Slovenian Liberation Front and members of the Village and Home Guards, particularly following the massacres of non-Communist members of Slovenian National Front in 1943.10 The political opponents of the Slovenian Communist party were mostly Christian Democrats who had refused to join the National Liberation movement.11
The Slovenian Liberation Front won the armed conflict with against German and Italian forces and liberated Slovenia. The Slovenian Communist Party seized the opportunity to turn a national liberation movement against the Axis forces into a civil war, and prohibited those who did not accept the leadership of the Communist party from fighting against the occupiers. In other words, the resistance was a partisan movement led by the Slovenian Communist Party who ultimately emerged as the victors at the end of the war.
At the end of the Second World War, in light of the partisan guerrilla advancement, and following an unsuccessful attempt to establish their own parliament and government in May 1945, the political opponents of the Communist Party (including the Slovenian national army) fled to the British Occupation Zone in Carinthia and were detained in a camp at Vetrinj.12 At the end of May 1945, the British troops handed over 30,000 men to the partisan forces, which were controlled by the Slovenian section of the wider Yugoslav Communist Party led by Josip Broz Tito.13 Most of them were then subsequently executed in forests and caves in destinations throughout Slovenia. Only after the fall of the Iron Curtain did the totalitarian regime’s secret gravesites begin to be discovered. Dr Mitja Ferenc notes that ‘methodical record-keeping of secret mass graves only began in 2002, accompanied by a huge response in the media which was triggered by the discovery of 431 victims from two mineshafts in Zgornja Bistrica and in Štajerska’.14 The Ministry of Labour, Family and Social Affairs of the Republic of Slovenia has catalogued 3,986 wartime graves and mass graves in Slovenia from World War II.15 This data does not include the number of secret mass graves in Slovenia. As noted above, the Commission for Settlement of Hidden Mass Gravesites of the Government of the Republic of Slovenia, in particular spearheaded by Dr Mitja Ferenc, has so far catalogued almost six hundred hidden mass gravesites in Slovenia. Ferenc divides the locations of posthumous remains into four groups: pits; mineshafts and shelters; anti-tank and previously excavated shafts; and ‘karst’ abysses. Map 1 illustrates the identified secret mass graves that have so far been found on the territory of Slovenia.
Dr Mitja Ferenc notes that, for most of the victims, ‘it is not even known where they lie, and they never received a burial worthy of a human being’. He continues that ‘crimes were exacerbated by forced silence and suppression of the right to a grave’ and that ‘victims simply did not exist’.16 Similarly, Dr Jože Dežman has succinctly described the fundamental characteristics of the post-Second World War totalitarian crimes in the following way:
Killing civilians and prisoners of war after [the] Second World War is the greatest massacre of unarmed people of all [time] on Slovenian territory. Compared to Europe, the Yugoslav communist massacres after the Second
World War are probably right after the Stalinist purges and the Great Famine
Map 1 – Identified secret mass graves on the territory of Slovenia
Source: Dr. Mitja Ferenc, Topografija evidentiranih grobišč, Poročilo Komisije Vlade Republike Slovenije za reševanje vprašanj prikritih grobišč 2005-2008, Ljubljana 2008, Družina d.o.o., at page 25. See also Exhibition, Hidden and Concealed. Hidden graves 60 years after the end of World War II, Celje, Slovenia, May 2005.
in the Ukraine. The number of those killed in Slovenia in [the] spring of 1945 can now be estimated at more than 100,000[.] Slovenia was the biggest post-War killing site in Europe. It was a mixture of events, when in Slovenia there are retreating German units, collaborator units, units of the Independent State of Croatia, Chetniks and Balkan civilians; more than 15,000 Slovenia inhabitants were murdered as well. Because of its brevity, number of casualties, way of execution and [massiveness in size], it is an event that can be compared to the greatest crimes of communism and National Socialism.17
Having briefly examined the factual background, the following section turns to the analysis of the decisions of Slovenian courts in Prosecutor v. Ribičič.
II. Prosecutor v Mitja Ribičič
A. Factual Background of the Prosecutor v. Mitja Ribičič case
Mitja Ribičič was the first former official of the Slovenian Communist Party to be charged in Slovenia for crimes against humanity after the end of communist reign in 1990. Documents found in the Slovene National Archive reportedly show that in 1945 Mitja Ribičič helped to draft a list of 217 people for execution in his post as a deputy in the Slovenian branch of the Yugoslav secret police (OZNA). This organisation was under the leadership of Aleksandar Ranković, a close assoicate of the post-war Yugoslav communist leader Tito, and was responsible for eliminating political opponents of the communist regime. After being a deputy in this organisation Mitja Ribičič went on to work as a delegate in the Slovenian Socialist parliament, in the Yugoslav federal parliament, and was president of the Yugoslav Communist Party from 1969 to 1971.
The Slovenian Interior Ministry began investigating Mitja Ribičič’s involvement in post-war killings in 1994. However, it was not until 2005 that they ‘ “chanced upon new documents in the state archives” that helped to make the case against the former security official’.18 Based on the evidence found in these documents, Slovenian authorities alleged that ‘Ribičič’s “armed group” not only targeted soldiers, but also murdered civilians viewed as collaborators and disposed of their bodies in mines and ditches’.19 While the direct orders for the killing of these civilians may have come from the heads of OZNA’s provincial branches, they would have to have been approved by Ljubljana and possibly Belgrade as well. Consequently, this may mean not only that Ribičič, as a high former Communist official, could have ultimately have a hand in all the killings, but that their origins may also lay beyond him higher up in the hierarchy.
On 13 May 2005, the Slovenian police filed a criminal charge of genocide against Mitja Ribičič for his alleged role in these crimes. This was the first genocide charge in relation to the Yugoslav communist regime’s reprisal killings. In April 2006, the prosecution amended the qualification of the criminal act and requested a judicial investigation of acts of ‘crimes against [the] civilian population’ pursuant to Article 374, Paragraph 1 of the Slovenian Criminal Code.20
B. The District Court Decision
On 21 April 2006, the Prosecutor asked the District Court of Ljubljana for permission to open a judicial criminal investigation against Ribičič. In Slovenian law, this is the first stage of criminal proceedings, and the prosecution must show the investigating magistrate that there is probable cause to believe the accused has committed a particular criminal act.
The Investigating Court found that no investigation could be opened against Ribičič on two grounds: legal and evidential. First, the investigating court argued that Ribičič could not be tried for crimes against humanity since Article 3 of the Criminal Code provides that the perpetrator of a criminal offence be subject to the statutory provisions applicable at the time the offence was committed. Second, the investigating judge opined that no strong evidence had been submitted indicating Ribičič’s influence on deciding whether a certain group of people should be killed as the prosecution failed to present evidence amounting to probable cause that Mitja Ribičič had played a significant role in issuing the orders for the commission of mass killings.
The Chamber of the District Court of Republic Slovenia in Ljubljana examined the appeal filed by the Supreme State Prosecutor and analysed the decision of the investigating magistrate of the District Court.21 It held that there were in fact legal grounds to try Ribičič for crimes against humanity given sufficient evidence, but nevertheless agreed with the Investigating Court that the prosecution had failed to meet this standard.
The prosecution appealed this decision as well. The High Court examined the District Court’s conclusion and held that the prosecution’s evidence for opening the investigation should have included an answer to the question of what person or agency had issued the decision to massacre opponents of the communist-controlled resistance movement. It should have shown whether or not this was done by the Yugoslav leadership of Communist Party and OZNA and then proceeded hierarchically down to the lower organs of the Slovenian Communist Party. Since such arguments and evidence were missing, the Court concluded that an investigation into Ribičič’s alleged crimes could not be opened. The court concurred with the Chamber decision of the District Court that denied the request to open an investigation into the conduct of Mitja Ribičič. The High Court confirmed that it was legally feasible to prosecute the defendant for crimes against humanity, even though these were not criminalized at the time of commission, as it held that the District Court had rightly established that the alleged crimes contravened basic principles of humanity.
IV. Analysis of the court’s reasoning and prospects for future prosecutions
Following this description of the judicial decisions taken in the Prosecutor v. Ribičič case, I now turn to an analysis of the High Court’s reasoning and a discussion of the prospects for future prosecutions. As to the issue of whether probable cause was established, the prosecution had indeed failed to meet that standard, and thus the request for a judicial investigation was rejected. The evidence submitted did not adequately demonstrate that Ribičič had participated in issuing orders for the execution of opponents of the regime. The prosecutor’s request for the appointment of historian experts witnesses to provide evidence should already have been presented earler to the court in order to justify the opening of a judicial investigation in the first place. It could thus be inferred that the prosecutor himself may have recognised that he lacked sufficient evidence to show probable cause that Mitja Ribičič had committed the alleged crimes.22
A. Challenges of bringing a crimes against humanity case so many years after events
Following the decision of the High Court of Slovenia in Ljubljana, the Head of the Slovenian Supreme State Prosecutors noted that the Courts might have employed a higher burden of proof than usually required in similar criminal cases. The Prosecutor was therefore unsuccessful in demonstrating probable cause for the belief that Mitja Ribičič orchestrated the commission of heinous crimes after the Second World War.
The reality is that there may not be many more cases of this kind heard in court: elderly witnesses are dying and records of crimes have been erased, hidden or, in some cases, lost. Whether or not the courts reached the correct conclusion when they refused to open judicial criminal investigation into alleged acts of Mitja Ribičič is in dispute. Some commentators argue that, on the basis of historical evidence, probable cause had been demonstrated by the Office of the Prosecutor. Further, the organisation Prevent Genocide International notes that ‘the order for the liquidation of alleged collaborators might have originated from the head of the provincial OZNA branches, the authorities said, but the orders would had to have had approval from Ljubljana’.23 It is debatable whether the decision to conduct summary killings was indeed reached at the federal level of the Yugoslav secret police or Yugoslav Communist Party. Ribičič used to be the deputy security chief for Slovenia in the OZNA security and intelligence agency of what was then Yugoslavia. Holding this senior official position may in itself imply that Ribičič knew what was going on in Slovenian territory in the months following the Second World War. Another issue is whether Ribičič or other allegedly responsible persons would even be medically fit to stand trial.24 Just as importantly, there is hardly another living person left to be prosecuted.
While the Prosecution’s reasons for modifying charges against Ribičič from the crime of genocide to crimes against humanity may have been justified, there appear to be a number of weaknesses in the Court’s reasoning. The Court could have interpreted the evidence differently, as there are various suggestions that Ribičič might have been decisively involved in the killings of the 217 people. In particular, the annotation in a document that reads: ‘in line with the file of comrade Major Mitja’, could have been seen as strong evidence of involvement. As a result of the uncertainty surrounding the annotation, the Prosecution requested that a special team of historians be set up to investigate whether ‘Ribičič’s name on the list actually means that he had a say in the killings’, but the investigating judge rejected this motion. The Court’s decision would arguably have been much more convincing if it had employed a group of experts who could have produced an authoritative statement supporting the Court’s conclusions. The High Court held, however, that probable cause was not proven in relation to whether there was any intention on the part of the accused to destroy part of the civilian population. Consequently, the first case against a former senior Communist official suspected of having played a major role in the summary killings of civilians after the Second World War stumbled at the first obstacle.
Criminal justice may play an important role for achieving a kind of catharsis for a particular nation. In this way, it may contribute to the successful transition from totalitarianism to democracy based on the rule of law. Domestic prosecutions of crimes against humanity in Slovenia, however, face many difficult challenges. First, it may appear that the Slovenian courts apply higher standards than those applied in similar criminal cases. Second, it appears that much rests on the political will of those with power, despite the crucial recognition in the international community that there can be no lasting peace without justice. There will always be those who argue that prosecutions are a hindrance to, rather than a foundation for, reconciliation between different groups in society. However, the answer might be that both peace and justice are possible and necessary; the question is not if but when justice should be pursued.
There are also several obstacles working against the domestic prosecution in Slovenia relating to factors beyond formal and substantive dimensions of law. The problem in Slovenia is not that the country does not have a constitutionally (formally) independent judiciary and normative safeguards protecting the right to a fair trial. The real and far deeper structural problem is that Slovenia does not have the relevant agencies to ensure that these normative safeguards are enforced. This is mainly due to the continuing influence of invisible forces of the former totalitarian regime. In other words, while Slovenia’s judiciary is now theoretically independent, the continued influence of communism may mean there are structural and practical barriers to fair trials. It seems that there are lessons useful for other countries facing similar transitional justice issues to be drawn from the failure of the prosecution to present a sufficient case in Prosecutor vs. Ribičič. Prosecution of crimes against humanity requires appropriate resources, including an investigatory structure, security infrastructure for judges, courtrooms, lawyers (prosecutors, defence and other lawyers), investigators, and detention facilities. It is open to question whether the Prosecution in Slovenia was qualified enough to work on this case.
B. How to deal with post-World War II crimes in Slovenia
This section argues that there must be some response to the crimes committed after the Second World War. In Resolution 1481 (2006), the Parliamentary Assembly of the Council of Europe noted the ‘[n]eed for international condemnation of crimes of totalitarian communist regimes’. Furthermore, it added that:
‘[T]he fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism)’.25
It further observed that ‘[p]ublic awareness of crimes committed by totalitarian communist regimes is very poor’26 and that ‘moral assessment and condemnation of crimes committed play an important role in the education of young generations’.27 Thus, perpetrators should be subjected to some mechanism that would at least emphasize apologies and compensation given that punishment of unknown perpetrators is hardly feasible at this stage.28
That the decision in Prosecutor v. Ribičič has not sparked any legal commentary or even discussion from members of the academic legal community in Slovenia may be prima facie surprising. This shows how a number of Slovenian intellectuals and politicians share the fear that opening the investigation for crimes committed so many decades ago would deepen disagreement between different parts of Slovenian society and would hinder the path towards reconciliation between members of the former Communist Party and the rest of Slovenian society. However, historical examples show that without historically and legally addressing atrocities committed, catharsis within society may not be reached. Nonetheless, the need to address the atrocities legally is not accepted as necessary within all the academic literature on transitional justice.
It is highly unlikely that a single judicial decision can address the ‘collective trauma’ of the past through which the Slovenian nation was split. However, it may be argued that this is necessary, as ‘a kind of catharsis’ to set the new century on a course based on principles of non-discrimination, tolerance, and diversity in Slovenian society. The handful of reactions to the case came only from members of the media. Most of them agreed that prosecuting persons for crimes that were not criminalized at the time of commission does not violate the prohibition of retroactivity since those crimes were already at the time of commission contrary to fundamental principles of humanity.29 However, some authors also disagreed with that opinion.30
Similarly, Judges Fura-Sandstrőm, Thór Bjőrgvinsson and Ziemele noted in their joint dissenting opinion in Kononov v Latvia: ‘Why should criminal responsibility depend on which side those guilty of war crimes were fighting on?’31 Further, Judge Myer opined in its concurring opinion in Kononov v Lativa that:
‘[U]nderstandable as it may seem that the Partisans wanted to take revenge for the betrayal and subsequent massacre of their fellow Partisans – or even wanted to set an example to other Latvian villages who might otherwise be willing to collaborate with the occupying German forces – they should not have resorted to an “eye for an eye” approach and should have chosen other means. Even in a situation of war, and even allowing for the difficulties facing a Partisan group having to take collaborators prisoner and transport them to a safe place to stand trial, they ought not to have killed these people on the spot. Besides, some of the killings were particularly gruesome.32
In the same way, Prosecutor v. Ribičič highlights the importance of bringing crimes against humanity cases before the court even when many years have passed since the events had occurred. It may appear irrelevant that there was judged to be insufficient evidence to proceed with criminal investigation in Prosecutor v Ribičič. What is required is a clear national consensus on the ways to tackle crimes against humanity after the Second World War.
Is it not worrying that this was the first case ever to be brought before the courts for crimes against humanity committed in Slovenia after the Second World War? Should the judiciary not play a role in addressing dark chapters of Slovenian contemporary history? Or should the Prosecutor refrain from criminal proceedings and should alternatives to criminal justice be employed? If one wants to avoid impunity, then the only plausible option would be to establish a special department within the criminal courts dealing only with the cases arising from the post-Second World War massacres. If, on the other hand, one thinks the challenges are too great, some other non-judicial mechanisms could be taken into consideration. Regardless, however, it is clear that not doing anything is an unsatisfactory response. As long as Slovenian society remains unwilling or unable to effectively tackle this dark chapter from its past, this problem will remain. Slovenia needs to act to deal with these crimes so many decades after the events mostly because this is necessary not only as a matter of principle but also due the lessons to be learned for future generations.
Thus, the Slovenian judicial system might not be the only possible solution for the prosecution of individuals for heinous crimes against humanity. Instead, Slovenian society has to reach agreement on how to tackle those crimes, and consider how to achieve reconciliation between different parts of the Slovenian society. If the crimes against humanity committed by Slovenians against Slovenians after the Second World War are not addressed appropriately, they may are will remain on the dark side of the collective memory of the Slovenian nation. However, Prosecutor v. Ribičič emphasises the lesson that the Slovenian judiciary and prosecution should not shy away from taking action in these situations. Even if a country implements prosecutions after some time has passed, those involved in criminal justice will need to consider the issue at the same time as considering alternative approaches. Few of the possible mechanisms have so far been used in Slovenia. A number of non-judicial alternative responses such as institutional reform or reparations, truth and reconciliation commissions or truth-seeking processes, pardons, lustration processes, civil proceedings and declaratory statements of apology or the construction of an official memorial should be considered. The next section evaluates the prospects for a truth commission in Slovenia.
Prosecutions of international crimes, whether in national legal orders or at the international level, are easier to accomplish if they take place in close proximity to the time of conflict, because evidence and memories are fresher. However, each transition from war to peace is different. Prosecutor v. Ribičič was the first occasion when a case was brought against a former Communist official for the atrocities committed at the end of the Second World War in Slovenia. It was impossible to hold such prosecutions during the period of Communist rule since the Slovenian judiciary was far from independent, especially in cases against former members of the highest circles of the Communist Party. No prosecution for post-war killings have been brought in the first ten years after Slovenia gained independence. Even today, the question of whether national and/or international criminal justice could be the right answer for addressing the issues of post Second World War crimes remains unanswered.
A. Truth and Reconciliation Commission for Slovenia?
This section examines the suggestion that a useful alternative would be to establish a truth and reconciliation commission for Slovenia. This would involve creating an independent commission, which would investigate human rights violations in the Slovenian territory after the Second World War.
What would be the purpose of the Truth and Reconciliation Commission in Slovenia? Clearly, Slovenian society needs to pose itself that question. Generally, such commissions are established to secure peaceful transition from a military and totalitarian regime to a new, more democratic and accountable governance. The violations committed in Slovenia after the Second World War must be addressed if reconciliation between all sections of the Slovenian population is to be achieved. A truth and reconciliation commission in Slovenia may offer a way of doing this without resorting to prosecution of crimes at a national level. It would emphasise apologies and compensation rather than punishment. Such a system may contribute to the identification of perpetrators, but with the goal of promoting peace and stability in society. Truth and reconciliation increases the possibility of the peaceful resolution of conflict. Schabas has noted that ‘[p]eace and reconciliation are both legitimate values that should have their place in human rights law. They need to be balanced against the importance of prosecution rather than simply discarded.’33 The work of the South-African Truth and Reconciliation Commission illustrates that truth commissions can be a valuable mechanism for victims, provided that they adopt and implement ‘victim-centred’ ideals.34
It appears unlikely that such a Commission similar to the South African TRC or other possible models from around the world could be created in Slovenia, since many decades have passed since the crimes occurred. A Truth and Reconciliation Commission would have advantages in that it would offer victims of human rights violations a state-created forum in which their suffering could be publicly acknowledged, and help to fix in historical memory the social context in which these violations occurred. But in so doing, it would be difficult to avoid the intrinsic tension between the Commission’s objective to achieve national unity and reconciliation as well as the just resolution of individual human rights violations. The importance would by giving equal status to all those civilians killed during and after the war, whether by communists or fascists. All in all, it seems that there is no point in establishing a Truth and Reconciliation Commission because not enough people are still alive. Perhaps future effort should be focused instead on identifying the location of gravesites and memorials. Such efforts should not be seen as mutually exclusive.
B. Settlement of secret mass graves and the creation of memorials
All persons have the right to a name and a grave. This right exists regardless of who won or lost conflict. The Parliamentary Assembly of the Council of Europe noted in its Resolution 1481 (2006) that ‘that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings.’35 Thus, another alternative would be issuing a public apology and construction of public memorial sites dedicated to the victims of the crimes against humanity. The Government of the Republic of Slovenia issued a formal apology condemning crimes committed after the Second World War in Slovenia in 2007—establishing memorials would go a step further in this regard. Such memorials could include a list of the names of all victims killed on the particular site. The publication of these names would also serve as an acknowledgement that they have died for Slovenia. What appears to be required are simple and dignified memorials. They would be dedicated to the memory of the victims of post-war crimes in Slovenia. This would ensure a return to civility and, perhaps, normality within Slovenian society. A number of such sites have been already constructed, such as the Memorial Chapel at Kočevski rog gravesite. In 1984 Spomenka Hribar had already raised the question of a public memorialisation of the victims executed at secret locations all over Slovenia.36
It seems, however, that each individual gravesite would require an individual chapel. Additionally, a museum could be created honouring all victims killed after the Second World War by the totalitarian regime, which would include testimonies, documents, and photographs to illustrate what took place. This hopefully would help to ensure that such acts are not repeated in the future. As earlier generations did not address post-war killings and secret war graves, younger generations remain obliged to properly settle this question in a manner that will show equality to all persons. In short, it appears necessary that the burial sites of all persons killed by the Slovenian totalitarian authorities after the Secon World War should include the personal information of victims, the date and location of their death, and should carry the inscription ‘Victims of war and post-war killings, Republic of Slovenia’.
C. Preserving institutional memory
A number of positive developments can be traced related to post World War Two’s crimes. The Republic of Slovenia has recently established the Study Centre of National Reconciliation, which attempts to examine ‘all forms of violence and violations of fundamental human rights and freedoms against the Slovenian nation and members of other ethnic and religious communities in Slovenia during specific periods caused by all three totalitarian systems: fascism, communism and Nazism.’37 In another development, the Slovenian National Parliament amended the Slovenian Criminal Code in 2008, which criminalizes in Article 297 (2) ‘Stirring up Hatred, Strife or Intolerance based on Violation of the Principle of Equality’. Thus, whoever provokes or stirs up ethnic, racial or religious hatred, strife or intolerance or disseminates ideas on the supremacy of one race over another, or provides aid in any manner for racist activity or denies, diminishes the significance of, approves of or advocates genocide and/or crimes against humanity may be punished by imprisonment of up to three years.
V. Conclusion
The awareness of post World War Two crimes is one of the preconditions for avoiding similar crimes in the future of Slovenia and elsewhere. Discussion on crimes committed on Slovenian territory after the Second World War and secret mass graves is often underpinned by deeply-rooted emotions that suppress rational dialogue . This has led to long-term polarization of Slovenian society along left and right lines of the political spectrum. There are no simple answers to the fundamental questions raised by cases such as Prosecutor v. Ribičič. The challenge posed by transition from oppression to democracy is to account for the totalitarian regime and then rebuild a new society in its wake. The Second World War in Slovenia was primarily a time of social revolution that saw the forceful takeover of authority by the then illegal Communist Party of Yugoslavia. In the end, legally, it seems unlikely that any former high Communist official will be prosecuted in the future by the Slovenian Court for these crimes. Prosecutor v. Mitja Ribičič has shown that it is very difficult to show probable cause for opening a criminal investigation into crimes against humanity committed on the Slovenian territory in the months following the Second World War. The issues concerning crimes against humanity after the Second World War in Slovenia are rife with political implications, and none of the crimes themselves fall within the rationae temporae jurisdiction of the International Criminal Court or International Criminal Court for the Former Yugoslavia. Perhaps most importantly, it is unlikely that the Supreme Prosecution Office of Slovenia will take steps to prosecute more former high communist officials due to the procedural obstacles.
It might perhaps be overly simplistic to call for a compromise over these difficult legal and political questions. In the case of crimes against humanity in Slovenian territory, the various constituent groups often do not listen to each other or leave room for compromise. But until all politicians realize that some form of justice is inevitable in the foreseeable future, and victim-oriented political parties cease asking for nothing but justice, nothing will be done to effectively to tackle the impact of these crimes. Though the present situation may appear grim, consensus does appear to be growing for meaningful and continued reform, which would settle the question of post-war killings and the secret mass graves of victims in a manner that will respect victims’ right to a name and a grave. By showing the extent to which the judiciary and law in Slovenia has (not) responded to crimes against humanity in Slovenia, this work is a modest attempt to push for continued progress and possibly legislative reform in the hope that this dark chapter in the Slovenian history will be closed once and for all.
1 See Pavel Jamnik, Post-World War Two Crimes on the Territory of Slovenia: Police Investigation and proof regarding criminal offences that do not fall under the statute of limitations in, Peter Jambrek (ed.): Crimes committed by totalitarian regimes, Slovenian Presidency of the Council of the European Union, Bruxelles, Ljubljana, at p. 207. See also Jože Dežman, Communist Repression and Transitional Justice in Slovenia, in Peter Jambrek (ed.): Crimes committed by totalitarian regimes, Slovenian Presidency of the Council of the European Union, Bruxelles, Ljubljana, 2008, at p. 204; and Jerca Vodušek Starič, Kako se čistila Jugoslavija? Gordogan, 2004, pp. 36-50. Further, Ljubo Sirc notes that the total number of victims is ‘estimated to be between 150,000 and 200,000’.
2 Jože Pučnik, Mass Post-War Killings, in Drago Jančar (ed.), The Dark Side of the Moon. A Short Hisory of Totalitarianism in Slovenia 1945-1990, Ljubljana, 1998, pp. 39-52.
3 For a detailed historical account see Dr. Mitja Ferenc, Topografija evidentiranih grobišč, Poročilo Komisije Vlade Republike Slovenije za reševanje vprašanj prikritih grobišč 2005-2008, Ljubljana 2008, Družina d.o.o, Tamara Griesser-Pečar, : Razdvojeni narod, Mladinska knjiga, Ljubljana 2004, Das Zerrissene Volk: Slowenien 1941-1945, Okkupation, Kollaboration, Bürgkrieg, Revolution,
<http://www.ukom.gov.si/eng/slovenia/publications/slovenia-news/3646/3688/> , last visited 25 March 2009. See also Public Exhibition Prikrito in očem zakrito, Museum of Contemporary History, 2005 Ljubljana, Slovenia, last visited 25 March 2009. See also Lovro Šturm, Blaž Ivanc, Brez milosti: ranjeni, invalidni in bolni povojni ujetniki na Slovenskem, urednik in soavtor, 2000.
4 Prosecutor of the Republic of Slovenia v. Mitja Ribičič, Original case numbers: Ks 962/2002, Kpr 122/06.
5 Božo Repe, Slovenia During the Second World War, < http://www.theslovenian.com/articles/2008/repe1.pdf>. Last visited 10 November 2009. At page 1.
6 Ibid. At 2.
7 Ibid.
8 Ibid.
9 Ibid.
10Ibid.
11 The Slovenian Communist Party monopolized during the Second World Waethe National Liberation movement against the occupying German, Italian and Hungarian forces. This therefore led to civil war between the Slovenian Communist Party and Christian Democrats.
12 See T. Giesser Pečar, at p. 529.
13 Ibid. At 457. See also Anthony Cogwill, Thomas Brimelow and Christopher, The Repatriation from Austria in 1945. The Report of an Inquiry, London 1990 (Cogwill Inquiry, Reparations); Cogwill Inquiry. The Documentary Evidence Reproduced in Full from British, American, German and Yugoslav Sources, London 1990; and Ian Mitchell, The Cost of Reputation, Glasgow 1997, Nigel Nicholson, Long Live, New York 1998. See also John Corsellus, Marcus Ferrar; Slovenia 1945: Memories of Death and Survival After World War II, I B. Tauris & Co Ltd, 2005.
14 Mitja Ferenc, Secret World War Two Mass Graves in Slovenia, in Peter Jambrek (ed.): Crimes committed by totalitarian regimes, Slovenian Presidency of the Council of the European Union, Bruxelles, Ljubljana, 2008. At p. 158.
15 Ibid. At p. 155.
16 Mitja Ferenc, 2008. At p. 157.
17 Jože Dežman, 2008. At p. 204.
18 Reuters, 25 May 2005, quoted in Prevent Genocide International, <www.preventgenocide.org/news-monitor/2005may2.htm>, last visited 10 November 2008.
19 International Relations and Security Network, <www.isn.ethz.ch>, 27 May 2005, Prevent Genocide International, <www.preventgenocide.org/news-monitor/2005may2.htm>, last visited 10 November 2008.
20 Official Gazette of the Republic of Slovenia, št 63/1994, (Slovenia) (‘Criminal Code’).
21 See Chamber Decision of District Court, Ks 962/2006, 27 June 2006.
22 Chamber Decision of District Court, Ks 962/2006, 27 June 2006, para. 36-45.
23 International Relations and Security Network, <www.isn.ethz.ch>, 27 May 2005, Prevent Genocide International, <www.preventgenocide.org/news-monitor/2005may2.htm>, last visited 10 November 2008.
24 See Nicholas Kulish, In Germany, Whispers of ‘Enough’ at a War-Crimes Trial, New York Times, < http://www.nytimes.com/2009/02/08/weekinreview/08kulish.html?ref=weekinreview>. accessed 9 February 2009.
25 Council of Europe, Parlimentary Assembly, Resolution 1481 (2006), Need for international condemnation of crimes of totalitarian communist regimes, Assembly debate on 25 January 2006 (5th Sitting) (see Doc. 10765, report of the Political Affairs Committee, rapporteur: Mr Lindblad). Text adopted by the Assembly on 25 January 2006 (5th Sitting). <http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta06/eres1481.htm>, accesed 10 May 2009. Para. 5.
26 Ibid. Para. 6.
27 Ibid. Para. 7.
28 See Ronald C. Slye, The Cambodian Amnesties: Beneficiaries and the Temporal Reach of Amnesties for Gross Violation of Human Rights, 22 Wisconsin International Law Journal 99, 107 (2004).
29 Študijski center za narodno spravo, Totalitarizmi – vprašanja in izzivi, Zbornik, January 2010.
30 L. Bavcon, ‘Zakaj povojni poboji ne morejo zastarati?’, Mladina, št. 18, 2009, ˂http://www.mladina.si/tednik/200918/zakaj_povojni_poboji_ne_morejo_zastarati˃.
31 Kononov v. Lativa, ECHR, Application no. 36376/04, Joint dissenting opinion of judges Fura-Sandstrőm, Davíd Thór Bjőrgvinsson and Ziemele, Para. 3.
32 Ibid. Concurring opinion of Judge Myjer, Para. 12.
33 See, for example, William A. Schabas, Amnesty, The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, 11 University of California Davis Journal of International Law & Policy, 145, (2004).
34 See Sam Garkawe, The South African Truth and Reconciliation Commission: A Suitable Model to enhance the role and rights of victims of gross violations of human rights?, [2003] Melbourne University Law Review 14.
35 Council of Europe, Parliamentary Assembly, Resolution 1481 (2006), Need for international condemnation of crimes of totalitarian communist regimes, Assembly debate on 25 January 2006 (5th Sitting) (see Doc. 10765, report of the Political Affairs Committee, rapporteur: Mr Lindblad). Text adopted by the Assembly on 25 January 2006 (5th Sitting). <http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta06/eres1481.htm>, last visited, 10 May 2009. Para. 8.
36 Spomenka Hribar, Guilt and sin, in E. Kocbeck’s Collection, Ljubljana 1987, pp. 11-68.
37 Slovenian Study Centre for National Reconcilliation, <http://www.scnr.si/en/about-us/introduction-2/>, last visited 15 June 2009.
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