List of Bosnian genocide prosecutions: Wikis

  

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This is a list of prosecutions bought against Serbia and individuals for the crime of genocide in Bosnia. To date after several plea bargains and some convictions that were successfully challenged on appeal only Radislav Krstic had been found guilty of complicity in genocide in an international court. Four others have been found guilty of participating in genocides in Bosnia by German courts, one of whom Nikola Jorgic lost an appeal against his conviction in the European Court of Human Rights. Also, several civil law cases that are being conducted before The Hague District Court in the Netherlands, and two that have been decided in United States are also listed.

Contents

Bosnian Genocide Case

The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), case 91, International Court of Justice (ICJ) Judgement returned on 26 February 2007.

The case before the International Court of Justice (ICJ), the United Nations's highest judicial body, which exclusively hears disputes between states, related to Serbia's alleged attempts to wipe out the Bosnian Muslim population of Bosnia. It was filed by Dr. Francis Boyle, an adviser to Alija Izetbegović during the Bosnian War. The case was heard in the ICJ court in The Hague, Netherlands, and ended on 9 May 2006.

The ICJ presented its judgment on 26 February 2007, in which it confirmed the ICTY judgment that the Srebrenica massacre was genocide, stating:

The Court concludes that the acts committed at Srebrenica falling within Article II (a) and (b) of the Convention were committed with the specific intent to destroy in part the group of the Muslims of Bosnia and Herzegovina as such; and accordingly that these were acts of genocide, committed by members of the VRS in and around Srebrenica from about 13 July 1995.[1]

The Court found that Serbia was neither directly responsible for Srebrenica genocide, nor that it was complicit in it, but it did rule that Serbia had committed the breach the Genocide Convention by failing to prevent the Srebrenica genocide, for not cooperating with the ICTY in punishing the perpetrators of the genocide, in particular in respect of General Ratko Mladić, and for violating its obligation to comply with the provisional measures ordered by the Court.[1]

Individual indictment and convictions for the crime of genocide

International Criminal Tribunal for the former Yugoslavia

As of 9 May 2007 the International Criminal Tribunal for the former Yugoslavia (ICTY) had passed legally binding verdicts against six people indicted for genocide and crimes committed in Srebrenica since 1993. Trials against seven indictees are ongoing, and three are still to start.[2]

Individuals convicted of genocide

  • Radislav Krstic (Srebrenica) In 1998 Krstic was indicted for War Crimes by the ICTY in The Hague in connection with the massacre of 8,100 Bosniak men and boys on July 11, 1995 during the Srebrenica massacreEurope's worst atrocity since World War II. On August 2, 2001, Krstic became the first person convicted of genocide by the Tribunal, and was sentenced to 46 years in prison. He was only the third person ever to have been convicted under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.[3] On appeal his conviction for genocide was overturned however the appeal court upheld the lesser charge that he was an aider and abetter to genocide.[4]
Genocide conviction overturned on appeal
  • Vidoje Blagojević (Srebrenica) is a former commander of the Bratunac Brigade of the Republika Srpska Army. He was captured on August 10, 2001 and soon interred at the ICTY at the Hague. Blagojević was tried along with Dragan Jokic. Both pleaded not guilty. In January 2005 Blagojević was acquitted of the charge of extermination as a crime against humanity, however he was found guilty of the five other charges, including complicity to commit genocide and war crimes. He was sentenced to 18 years in prison.[5] On May 9 2007 the ICTY's appeals court reversed the genocide conviction and reduced his sentence to 15 years which he is currently serving in prison.[2][6]

Plea bargains

Individuals indicted by ICTY for genocide in which such charges were withdrawn, with the accused pleading guilty to crimes against humanity:

  • Goran Jelisic, in 1999, pleaded guilty to the charges of crimes against humanity and violating the customs of war. He was acquitted on the charge of genocide as the court did not believe the prosecution had proved this beyond reasonable doubt. He was sentenced to 40 years imprisonment. On 29 May 2003, Jelisić was transferred to Italy to serve the remainder of his sentence with credit for time served since his arrest on 22 January 1998.[7][8]
  • Momir Nikolic was indicted by the Prosecutor of the ICTY 26 March 2002 charged with genocide or alternately complicity in genocide and persecutions, and Violations of the Laws or Customs of War. He was arrested by SFOR on 1 April 2002 and transferred to ICTY custody the following day. Nikolic made his initial appearance on 3 April 2002, pleading not guilty on all counts. A plea agreement was reached on 7 May 2003, and Nikolic pleaded guilty to Count 5 of the indictment - Crimes against humanity.[9]
  • Dragan Obrenovic[10] was indicted by the International Criminal Tribunal for the Former Yugoslavia in The Hague on On 1 November 1998 for complicity in genocide, extermination, persecution, and two counts of murder.[11] On 15 April 2001, he was arrested by SFOR personnel,[12] and was transferred that same day to the Hague, he entered not-guilty pleas across the board at his arraignment on the 18th.[13] On 20 May 2003, Obrenovic entered a plea agreement with the ICTY prosecutor's office. He pleaded guilty to one count of persecution, and in exchange for truthful allocation to his role in the Srebrenica Massacre and his testimony against his co-accused (his indictment was to be joined with that of four others on 27 May) he was promised a reduced sentence. On 10 December 2003, Obrenovic was sentenced to 17 years in prison, with 969 days credit for time served.[14] He is currently serving out his sentence in Norway and will be eligible for release in April of 2018.
  • Biljana Plavšić The ICTY indictment charged her with two counts of genocide, five counts of crimes against humanity, and one count of war crimes. She voluntarily surrendered to the ICTY on 10 January 2001, and was provisionally released on 6 September. On 16 December 2002, she plea bargained with the ICTY to enter a guilty plea to one count of crimes against humanity for her part in directing the war and targeting civilians and expressed "full remorse" in exchange for prosecutors dropping the other charges. She was later sentenced to 11 years in prison, and started her sentence on 26 June 2003.[15] After serving six years of her sentence at the women's prison Hinseberg in Örebro, Sweden, she was released on 27 October 2009.[16]

Currently on trial

At the ICTY, the trial of several senior Serb military and police officers facing charges ranging from genocide to murder and deportation for the crimes committed in Srebrenica began 14 July, 2006. Their names are:

  • Ljubisa Beara,[17] is charged with one count of genocide or alternatively, complicity to commit genocide, four counts of crimes against humanity and One count of violations of the laws or customs of war.[18] As Chief of Security of the Main Staff of the Bosnian Serb Army (VRS) he "had responsibility for dealing with captured Bosnian Muslim prisoners from Srebrenica from 11 July 1995 until 1 November 1995".[18] He was transferred to the ICTY on 10 October 2004 and made an initial appearance on 12 October 2004, when did not enter a plea. On further appearances on 9 November 2004 and 11 November 2004, he pleaded not guilty to the counts of the Indictment.[18]
  • Ljubomir Borovcanin,[17] is charged with one count of complicity in genocide, four counts of crimes against humanity and one count of violations of the laws or customs of war,[19] because the Prosecutor of the ICTY "alleges that Ljubomir Borovcanin was present in and around the areas of Bratunac, Potocari, Sandici, Kravica, Srebrenica and Zvornik from 11 July to 18 July 1995. Units under his command were deployed in and around the areas of Potocari, Sandici, Kravica and Zvornik from 12 July to 18 July 1995. In the several days following the attack on Srebrenica, the VRS and Ministry of the Interior ("MUP") forces captured, detained, summarily executed, and buried over 7,000 Bosnian Muslim men and boys from the Srebrenica enclave, and forcibly transferred the Bosnian Muslim women and children of Srebrenica out of the enclave. The Indictment against Ljubomir Borovcanin refers to his alleged involvement in: opportunist killings in Potocari, opportunistic killings in Bratunac, wide-scale and organised killings in Potocari and Tisca, killings and mistreatment of prisoners captured along the Bratunac/Milici road and wide-scale and organised killings in the Zvornik area, as well as other opportunistic killings. Ljubomir Borovcanin, together with other VRS and MUP officers and units as identified in this Indictment, was a member of and knowingly participated in a Joint Criminal Enterprise, the common purpose of which was, among other things: to forcibly transfer the women and children from the Srebrenica enclave to Kladanj on 12 July and 13 July 1995; and to capture, detain, summarily execute by firing squad, bury, and rebury thousands of Bosnian Muslim men and boys aged 16 to 60 from the Srebrenica enclave from 12 July 1995 until and about 19 July 1995".[19] He was transferred to the ICTY in the Hague on 1 April 2005.[19]
  • Drago Nikolić,was a 2nd Lieutenant who served as Chief of Security for the Zvornik Brigade of the VRS and reported to Vinko Pandurevic. He is accused by the prosecutor at the ICTY of aiding and abetting genocide, extermination, murder, persecutions, forcible transfer, deportation. He surrendered on 15 March 2005 and was transferred to the ICTY on 17 March 2005. On 23 March 2005, did not enter a plea. On 20 April 2005 he pleaded not guilty to all charges and again on 4 April 2006.[17]
  • Vinko Pandurevic, was a Lieutenant Colonel in command of the Zvornik Brigade of the Drina Corps of the VRS. He is accused by the prosecutor at the ICTY for aiding and abetting genocide, extermination, murder, persecutions, forcible transfer, deportation. He surrendered on 15 March 2005 and was transferred to the ICTY on 17 March 2005. On 23 March 2005, he did not enter a plea. On 20 April 2005, pleaded not guilty to all charges; and again on 4 April 2006, pleaded not guilty to all charges.[17]
  • Vujadin Popovic,[17] is charged "with Genocide or Complicity in Genocide; Murder, Persecutions, Forcible Transfer and Inhumane Acts as Crimes Against Humanity; and Murder as a Violations of the Laws or Customs of War ... During the VRS attack on the Srebrenica enclave and the subsequent killings and executions of Bosnian Muslim men, Vujadin Popovic was a Lieutenant Colonel and was the Assistant Commander of Security on the staff of the Drina Corps. He was present and on duty in the Drina Corps zone of responsibility, which included Srebrenica, Potocari, Bratunac and Zvornik, from 11 July to 31 August 1995".[20]

In custody

On 31 May 2007, Zdravko Tolimir (aka: 'Chemical Tolimir'), long time fugitive and a former Assistant Commander for Intelligence and Security of the Army of Republika SrpskaVRS Main Staff who reported directly to the Commander of the Main Staff, Ratko Mladic, and who had been indicted by the Prosecutor of the ICTY on genocide charges in the 1992–95 Bosnia war was arrested by Serbian and Bosnian police.[21] Tolimir is infamous for issuing request to use chemical weapons during genocide to gas civilians so Bosnian troops could surrender.[22] Tolimir is thought to be one of the main organisers of the network helping top war crimes indictee Ratko Mladic elude justice.

Radovan Karadzic (accused of genocide and complicity in genocide in several municipalities within Bosnia and Herzegovina, including but not limited to: Bijeljina, Bratunac, Bosanski Šamac, Brčko, Doboj, Foča, Ilijaš, Ključ, Kotor Varoš, Bosanski Novi, Prijedor, Rogatica, Sanski Most, Srebrenica, Višegrad, Vlasenica, Zavidovići and Zvornik.[23] Karadzic was arrested in Belgrade on 21 July 2008, and was transferred into the ICTY custody in the Hague nine days later on 30 July.[24] Karadzic declined to enter a plea at his first appearance before the war crimes tribunal on 31 July 2008,[25] a formal plea of "not guilty" was then made on his behalf by the judges.[26] Karadzic insists on defending himself (as he is entitled to under the United Nations court's rules) while at the same time is setting up a team of legal advisers.[27]

Other outcomes and pending cases

Died while on trial
  • Slobodan Milosevic was accused of genocide or complicity in genocide in territories within Bosnia and Herzegovina, including: Bijeljina, Bosanski Novi, Brčko, Ključ, Kotor Varoš, Prijedor, Sanski Most and Srebrenica.[28] On 16 June 2004 the trial chamber has, after the Prosecution had closed its case, made a Decision on Motion for Judgment of Acquittal in which it had dismissed the Motion of Amici Curiae filed pursuant to the Rule 98bis of the Rules of Procedure and Evidence, which asked the trial chamber to acquit the accused because prosecution did not present sufficient evidence on which a court could reach a guilty verdict in relation to genocide charges.[29] Thus the proceedings continued with defense presenting its argument, however Milošević died on 11 March 2006 during his trial.
  • Milan Kovačević was accused of genocide, complicity to commit genocide and several counts of crimes against humanity, violations of the laws of war and grave breaches of the Geneva conventions of 1949.[30] He died of natural causes in detention in 1998.
Found guilty of other crimes
  • Momcilo Krajisnik was indicted by the ICTY and accused of genocide, complicity in genocide, crimes against humanity (namely extermination, murder, persecution, deportation, and forced transfer), and various war crimes, in relation to acts committed in 1992 in Bosnia and Herzegovina.[31] He was arrested on April 3, 2000 by SFOR, and is in custody at the detention unit of the ICTY in the Netherlands. After the death of Slobodan Milosevic, Krajisnik was the highest-ranking politician on trial at the ICTY. On 27 September 2006, Krajisnik was convicted of the following crimes against humanity: extermination, murder, persecution, deportation, and forced transfer. He was acquitted of the charges of murder as a war crime, genocide, and complicity in genocide. He was sentenced to 27 years imprisonment.[32][33]
  • Milomir Stakic (Prijedor). In ICTY indictment began on 16 April 2002 Stakic was charged with genocide, or alternatively complicity in genocide, murder as a crime against humanity, extermination , murder as a violation of the laws or customs of war, persecutions, deportation, and inhumane acts.[34] On 31 July 2003 he was found not guilty of genocide, complicity in genocide,[35][36] or forcible transfer (a crime against humanity). He was found guilty of: extermination, (a crime against humanity); murder, (a violation of the laws and customs of war); and persecutions (crimes against humanity, incorporating murder, and deportation both of which were also crimes against humanity). He was sentenced to life imprisonment with a minimum term of 20 years.[37]
Still at large
  • Ratko Mladic On July 24, 1995 (amended on 10 October 2002), was indicted by the Prosecutor ICTY and accused of genocide and complicity in genocide in several municipalities within Bosnia and Herzegovina, including Ključ, Kotor Varoš, Prijedor, Sanski Most, Srebrenica, Banja Luka, Bosanska Krupa, Bratunac, Vlasenica and Zvornik.[38] He remains at large.

Judiciary in Bosnia and Herzegovina

Before the establishment of the Court of Bosnia and Herzegovina, there were several indictments for the crime of genocide, however only one inductee, Borislav Herak, has been found guilty of genocide. Since 2003 no indictments were filed for genocide before the local courts of Bosnia and Herzegovina.[39]

The Court of Bosnia and Herzegovina

So far the Prosecutor's office of Bosnia and Herzegovina has only filed indictments for the crime of genocide relating to the Srebrenica massacre, stating that "investigations have not shown elements of genocide for any other areas [than Srebrenica]".[39] Many analysts, indicate that the reasons for that lie in the fact that prosecutors are not willing to stray from the case law of ICTY, but Erna Mackic writing in BIRN BiH in November 2009 stated that "some rights activists believe this may change" once the ICTY trial of Radovan Karadžić is over.[39]

In Custody
  • Vlastimir Golijan, Zoran Goronja and Stanko Kojić - on 26 February 2010 the Court of Bosnia and Herzegovina issued a Decision ordering these suspects into one-month custody. They are suspected to have committed the criminal offense of genocide.[40]
Indicted to stand trial before before the Court of Bosnia and Herzegovina
  • Željko Ivanović - on 29 June 2009 Ivanović pleaded not guilty to the charge of genocide.[41] The commencement of trial in his case is scheduled for 27 of August 2009.[42]
  • Duško Jević, Mendeljev Đurić and Goran Marković - on 22 January 2010 the Court of Bosnia and Herzegovina confirmed the Indictment in the Duško Jević et al. case, charging the accused with the criminal offense of genocide, in relation to Srebrenica massacre.[43]
  • Radomir Vuković and Zoran Tomić - on 21 October 2008, the Court issued a Decision on the joinder of cases of Radomir Vuković (X-KR-06/180-2) and Zoran Tomić (X-KR-08/552), and the main trial commenced on 4 December 2008. Both are charged with the criminal offense of genocide.[44]
  • Neđo Ikonić - On 21 January 2010 the Court of Bosnia and Herzegovina issued a decision ordering the accused, who is suspected to have committed the criminal offense of genocide, into one-month custody, after he was arrested in the United States of America and extradited to Bosnia and Herzegovina.[45] Later the Court of Bosnia and Herzegovina had confirmed the indictment against the accused, charging the accused with the criminal offense of genocide in Srebrenica.[46]
Mitrović and others case ("Kravice")
The first instance verdict

On 29 July 2008, after a two-year trial, the Section I for War Crimes of the Court of Bosnia and Herzegovina found seven men guilty of genocide for their role in the Srebrenica massacre including the deaths of 1000 Bosniak men in a single day.[47][48] In the trial verdict the Court found that the accused Milenko Trifunović, Aleksandar Radovanović, Brano Džinić, Slobodan Jakovljević and Branislav Medan, by their actions as co-perpetrators, committed the criminal offence of Genocide in violation of Article 171(a) in conjunction with Articles 29 and 180(1) of the Criminal Code of BiH (CC of BiH), while the Accused Miloš Stupar committed the criminal offence of Genocide in violation of Article 171(a) in conjunction with Article 180 (2) of the CC of BiH. The court found that Bosniak men trying to escape from Srebrenica had been told they would be kept safe if they surrendered. Instead, they were transported to an agricultural co-operative in the village of Kravica, and latter executed en masse. [47][48]

Found guilty of genocide (29 July 2008)
  • Milos Stupar (commander of the 2nd Special Police Šekovići Squad)[49] – found guilty, sentenced to 40 years.[47][48]
  • Milenko Trifunovic (commander of the 3rd "Skelani" Platoon, part of the 2nd Special Police Šekovići Squad)[49] – found guilty, sentenced to 42 years.[47][48]
  • Brano Dzinic (a special police force officer of the 2nd Special Police Šekovići Squad)[49] – found guilty, sentenced to 42 years.[47][48]
  • Slobodan Jakovljevic (special police force members of the 3rd "Skelani" Platoon)[49] – found guilty, sentenced to 40 years.[47][48]
  • Branislav Medan (special police force members of the 3rd "Skelani" Platoon)[49] – found guilty, sentenced to 40 years.[47][48]
  • Petar Mitrovic (special police force members of the 3rd "Skelani" Platoon)[49] – found guilty, sentenced to 38 years.[47][48]
  • Aleksandar Radovanovic (special police force members of the 3rd "Skelani" Platoon)[49] – found guilty, sentenced to 42 years.[47][48]
Acquitted
  • Velibor Maksimovic (special police force members of the 3rd "Skelani" Platoon)[49] – acquitted.[47][48]
  • Milovan Matic (a member of RSA)[49] – acquitted.[47][48]
  • Miladin Stevanovic (special police force members of the 3rd "Skelani" Platoon)[49] – acquitted.[47][48]
  • Dragisa Zivanovic (special police force members of the 3rd "Skelani" Platoon)[49] – acquitted.[47][48]
The Appellate Panel verdict
  • Milovan Matić - the Appellate Panel upheld the trial verdict, and thus refused as unfounded the appeal filed by the Prosecutor.[50][51]
  • Miloš Stupar - the Appellate Panel revoked the trial verdict and ordered a retrial before the panel of the Appellate Division of Section I of the Court of Bosnia and Herzegovina.[50][51]
  • Milenko Trifunović, Brane Džinić, Aleksandar Radovanović, Slobodan Jakovljević, Branislav Medan - the Appellate Panel ruled that trial verdict is altered in the sense that the accused, being aware of the existence of the genocidal plan of others, performed the actions by which they considerably contributed to the commission of that offense, and therefore they participated in the criminal offense of Genocide as accessories (not as co-perpetrators), since it was not proven beyond reasonable doubt that the accused themselves acted with genocidal intent. Hence, Trifunović was sentenced to 33 years, Džinić to 32 years, Radovanović to 32 years, Jakovljević to 28 years and Medan to 28 years.[50][51]

Finally, the Appellate Panel underlined that it is "indisputable that genocide was committed in Srebrenica in July 1995. Due to its nature, that crime could not have been committed by a single individual, but it had to include an active participation of a number of persons, each of whom having a role. However, it is evident that not all participants in the events in Srebrenica at the referenced time acted with the identical state of mind, nor did they take the same actions."[51]

Milorad Trbić case

Milorad Trbić, a former reserve Captain of the Zvornik brigade of the army of the Republika Srpska,[52] was charged with genocide pursuant to Article 171 of the Criminal Code of Bosnia and Herzegovina (CC BiH) in conjunction with the killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group.[53][54] On 16 October 2009 Court of Bosnia and Herzegovina found Milorad Trbić guilty of genocide for his participation in a joint criminal enterprise between 12 July and 30 November 1995, with the common purpose and plan to capture, detain, summarily execute, and bury thousands of Bosniak males from the Srebrenica enclave. The Court sentenced Trbić for his participation in the crimes to thirty years imprisonment.[55]

German prosecutions

During the late 1990s the German courts handed down custodial sentences to several individuals who were found guilty by the German courts of participating in genocides in Bosnia. Two of theses cases were cited in the judgement handed down by the ICTY against Radislav Krstic in the Prosecutor v. Radislav Krstic case, when considering whether the Srebrenica massacre met the United Nations Convention on the Prevention and Punishment of the Crime of Genocide requirement of "in part".[56]

Novislav Džajić

Novislav Džajić was indicted in Germany for participation in genocide, but the Higher Regional Court failed to find that there was sufficient certainty, for a criminal conviction, that he had intended to commit genocide. Nevertheless Džajič was found guilty of 14 cases of murder and one case of attempted murder.[57] At Džajić's appeal on 23 May 1997, the Bavarian Appeals Chamber found that acts of genocide were committed in June 1992, confined within the administrative district of Foca.[58]

Nikola Jorgic

The Higher Regional Court (Oberlandesgericht) of Dusseldorf, in September 1997, handed down a genocide conviction against Nikola Jorgic, a Bosnian Serb from the Doboj region who was the leader of a paramilitary group located in the Doboj region. He was sentenced to four terms of life imprisonment for his involvement in genocidal actions that took place in regions of Bosnia and Herzegovina, other than Srebrenica.[59][60][61]

Appeal before the European Court Of Human Rights

On 12 July 2007, European Court of Human Rights dismissed Nikola Jorgic appeal (Application no. 74613/01),[62][63] but highlighting that the German courts had interpreted the German domestic law on genocide more broadly than the more recent rulings by the ICTY and the ICJ.

The ECHR concluded that the German court had ruled that the "intent to destroy" also included "meant destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together; a biological-physical destruction was not necessary. It concluded that the applicant had therefore acted with intent to destroy the group of Muslims in the North of Bosnia, or at least in the Doboj region".[64] Under the wider definition that the German judiciary upheld the ethnic cleansing carried out by Jorgic was a genocide because it was an intent to destroy the group as a social unit. At the time Jorgic committed his acts in 1992 a majority of scholars took the view that genocidal 'intent to destroy a group' under German law mean the killing of members of the group, but a considerable number of scholars were of the opinion that the notion had a wider meaning encompasing destruction of the group as a social unit.[65]

The ECHR noted that this wider interpretation of genocide has since been rejected by international courts considering similar cases. In the case of Prosecutor v. Krstic (2 August 2001) the ICTY ruled "customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide".[66] On [19 April] 2004 This was upheld on Appeal "The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group. ... The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. ..." although like the lower court, the appeal court also ruled that ethnic cleansing might with other evidence lead to an inference of genocidal intent.[67] In 14 January 2000 the ICTY ruled in the Prosecutor v. Kupreskic and Others case that the killing of 116 Muslims in order to expel the Muslim population from a village, was persecution, not of genocid[68] The ECHR noted and quoted the opinion of the International Court of Justice ruling in the Bosnian Genocide Case that ethnic cleansing was not in its self genocide.[69]

The ECHR also noted that in the 21 century "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide".[70]

The ECHR having reviewed the case and the more recent international rulings on the issue the ECHR ruled that "The Court finds that the [German] courts' interpretation of 'intent to destroy a group' as not necessitating a physical destruction of the group, which has also been adopted by a number of scholars ..., is therefore covered by the wording, read in its context, of the crime of genocide in the [German] Criminal Code and does not appear unreasonable",[71] so " In view of the foregoing, the [ECHR] concludes that, while many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities at the material time which had construed the offence of genocide in the same wider way as the German courts. In these circumstances, the [ECHR] finds that [Jorgic], if need be with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed in 1992.",[72] and for this reason the court rejected Jorgic assertion that there had been a breach of Article 7 (no punishment without law) of the European Convention on Human Rights by Germany.[73]

Maksim Sokolović

On 29 November 1999, the Higher Regional Court (Oberlandesgericht) of Dusseldorf condemned Maksim Sokolović to 9 years in prison for aiding and abetting the crime of genocide and for grave breaches of the Geneva Conventions.[74][75][76]

Đurađ Kušljić

In 1999 Đurađ Kušljić was found guilty for committing genocide and sentenced to life-imprisonment by a German court for killing of six Bosniaks and order of expulsion of other non-Serb population while he was police chief of Vrbanjci (municipality Kotor Varoš) in 1992.[77][78] Qualification of his crimes was changed to complicity in genocide on appeal, but his sentence was unaltered.[79][80] It has been argued by some legal scholars that the "courts have taken a relatively extensive view" with regards the mental element of genocide in that case.[81]

Civil Suits

United States of America

In 1994 two set of complaints (Doe v. Karadžić and Kadić v. Karadžić),[82] both with multiple plaintiffs, filed suits under the Alien Tort Claims Act and the Torture Victims Protection Act in the United States District Court for the Southern District of New York, against Radovan Karadžić for various atrocities "carried out by Bosnian-Serb military forces as part of a genocidal campaign".[83] The district court dismissed both cases claiming that named statutes required "state action",[84] however the court of appeals revised and remanded that judgment, stating that "Karadžić may be found liable for genocide, war crimes, and crimes against humanity in his private capacity and for other violations in his capacity as a state actor, and that he is not immune from service of process".[83] Karadžić was personally served with summons and complaint in each action during his visits to U.N. in New York,[85] and he actively participated through his lawyers in the proceedings (Ramsey Clark, as his attorney),[86] until the Supreme Court of the United States denied his request to review the decision of the court of appeals.[87][88] In 2000, the district court entered order of default in Kadić v. Karadžić, after which the case proceeded to a damages phase in which the jury returned a verdict of US$ 745 million (US$ 265 million in compensatory damages and US$ 480 million in punitive damages), which was then incorporated in the judgment of the court,[89] in favour of fourteen plaintiffs. The court also issued a permanent injunction by which Karadžić and his subordinates were enjoined and restrained from committing or facilitating "any acts of 'ethnic cleansing' or genocide (...) or any other act committed in order to harm, destroy or exterminate any person on the basis of ethnicity, religion and/or nationality".[90] In the same year, in Doe v. Karadžić, the court decided in favour of twenty-one plaintiffs, and awarded them US$ 407 million in compensatory damages and US$ 3.8 billion in punitive damages.[91] As of 2008 the plaintiffs did not receive damages. Deputy High representative for Bosnia and Herzegovina, Raffi Gregorian, stated that OHR was considering ways of confiscating Karadžić's property, including that of his closest relatives and network of his supporters, and that EUFOR had taken measurements of his family house in Pale.[92]

The Netherlands

Currently two cases are being conducted before The Hague District Court in the Netherlands against the State of the Netherlands and the United Nations.

One case is headed by a team of 14 attorneys of Dutch law firm Van Diepen Van der Kroef,[93] which is representing 11 plaintiffs including the foundation "Mothers of the Enclaves of Srebrenica and Žepa" (which represents 6,000 relatives of the victims[94]), who asked the court, inter alia, to grant a judicial declaration that the UN and the State of the Netherlands breached their obligation to prevent genocide, as laid down in Genocide Convention and to hold them jointly liable to pay compensation for the loss and injury suffered by plaintiffs as well as damages yet to be determined by the court, and to settle these according to law.[95] On the 10 July 2008, the court ruled that it had no jurisdiction against the UN, however the proceedings against the State of the Netherlands continued.[96][97] Plaintiffs have appealed the judgment (in relation to UN immunity),[98] and first public hearings relating to this issue are to be held on 28 January 2010.[99]

The second case concerns a former UN interpreter, Hasan Nuhanović, and the family of Rizo Mustafić, an electrician who worked for the UN Battalion at Srebrenica. Nuhanović filed a suit[100] against the State of the Netherlands in front of the District Court in The Hague claiming that Dutch troops within the UN peacekeeping contingent that were responsible for security in the then Srebrenica protected zone, allowed VRS troops to kill his family (brother, father and mother),[101] while the family of Mustafić filed the suite[102] because he was killed in similar circumstances.[103] The liability of the state of the Netherlands was based on the opinion that the Dutch Government (Minister of Defense) had the de facto operational command of the battalion, as established by the Dutch Constitution (Article 97(2)), which grants the government superior command ("oppergezag") over Dutch military forces.[103] On 10 September 2008, the Hague District Court ruled against the plaintiffs, noting that the state of the Netherlands cannot be held liable for the actions of UN battalion in Srebrenica.[104] Plaintiffs have stated that they will appeal the judgment.

References and notes

  1. ^ a b The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) [2007] Judgment, ICJ General List No. 91, p. 108, paragraph 297.
  2. ^ a b ICTY: Blagojevic Acquitted of Complicity in Genocide Balkan Investigative Reporting Network
  3. ^ Radislav Krstic becomes the first person to be convicted of genocide at the ICTY and is sentenced to 46 years imprisonment
  4. ^ Krstic (IT-98-33) Case Information Sheet, ICTY, 8 July 2005
  5. ^ Blagojevic and Jokic (IT-02-60) Case Information Sheet 5 August 2004
  6. ^ Appeals Chamber acquits Vidoje Blagojevic of aiding Srebrenica genocide, affirms other convictions against him and Dragan Jokic ICTY MH/MOW/1158e The Hague, 9 May 2007
  7. ^ Case Information Sheet JELISIC (IT-95-10) - ICTY
  8. ^ Goran Jelisic acquitted of genocide and found guilty of crimes against humanity and violations of the laws or customs of war Press release, The Hague, 19 October 1999 JL/P.I.S./441-E
  9. ^ Judgement in the Case the Prosecutor v. Momir Nikolic, ICTY CT/P.I.S/806e The Hague, 2 December 2003.
  10. ^ ICTY: Plea agreement - The Prosecutor v. Dragan Obrenovic
  11. ^ http://www.un.org/icty/indictment/english/obr-ii010409e.htm "Initial Indictment of Dragan Obrenovic" ICTY Case IT-01-43
  12. ^ Bosnia genocide suspect held
  13. ^ Obrenovic Pleads Not Guilty
  14. ^ Trial of Dragan Obrenovic
  15. ^ The Prosecutor v. Biljana Plavšic: Trial Chamber Sentences the Accused to 11 years' Imprisonment And says that "No Sentence can fully Reflect the Horror of what Occurred or the Terrible Impact on Thousands of Victims" CC/ P.I.S./ 734e, ICTY The Hague, 27 February 2003.
  16. ^ http://news.bbc.co.uk/2/hi/europe/8327714.stm
  17. ^ a b c d e ICTY; "Press Release:Popovic Et Al. Srebrenica Trial to Begin 14 July 2006"; United Nations; [1]
  18. ^ a b c BEARA (IT-02-58) Case Information Sheet: The Indictment ("Srebrenica")
  19. ^ a b c BOROVCANIN (IT-02-64) Case Information Sheet: The Indictment
  20. ^ ICTY Prosecutor's Indicment
  21. ^ Bosnian Serb War Crimes Fugitive on His Way to the Hague—June 1, 2007. Voice of America.
  22. ^ Tolimir Requested Use of Chemical Weapons in Zepa—Aug 22, 2006. Sense Tribunal.
  23. ^ ICTY: The prosecutor of the tribunal against Radovan Karadžić - Amended Indictment [2]
  24. ^ Staff Karadzic flown to Hague tribunal, BBC, 30 July 2008
  25. ^ "Q&A - Karadzic's legal position" BBC News
  26. ^ "Radovan Karadzic refuses to enter plea at the Hague" The Times Online
  27. ^ "Karadzic says defence 'not ready'." Al Jazeera English
  28. ^ ICTY: The prosecutor of the tribunal against Slobodan Milosevic - Amanded Indictment
  29. ^ ICTY: Prosecutor v. Slobodan Milošević: Decision on Motion for Judgment of Acquittal
  30. ^ ICTY: The prosecutor of the tribunal against Milan Kovačević - Amended Indictment
  31. ^ ICTY: The prosecutor of the tribunal against Momcilo Krajisnik - Amended Indictment [3]
  32. ^ ICTY: Judgment - Momcilo Krajisnik
  33. ^ Bosnia Serb jailed for war crimes, BBC News, 27 September 2006
  34. ^ Prosecutor v. Milomir Stakic: Judgement Paragraph 499
  35. ^ Prosecutor v. Milomir Stakic: Judgement Paragraphs 560,561
  36. ^ Staff. Bosnian Serb gets life sentence, BBC, 31 July, 2003.
  37. ^ ICTY Press Release WS / P.I.S. / 774e 31 July 2003
  38. ^ ICTY: The prosecutor of the tribunal against Ratko Mladic - Amended Indictment
  39. ^ a b c Mačkić, Erna (2009-11-19). "Future of Genocide Trials Hangs on Karadzic Verdict", at BIRN. Retrieved on 2009-12-01.
  40. ^ News (2010-02-26)."Vlastimir Golijan, Zoran Goronja and Stanko Kojić ordered into custody". The Court of Bosnia and Herzegovina. Retrieved 2010-02-27.
  41. ^ Case information. The Court of Bosnia and Herzegovina. Accessed on 2009-09-06.
  42. ^ News (2009-08-26)."Commencement of trial scheduled scheduled in the Željko Ivanović case". The Court of Bosnia and Herzegovina. Retrieved 2010-01-26.
  43. ^ News (2010-01-25). "Indictment confirmed in the Duško Jević et al. case". The Court of Bosnia and Herzegovina. Retrieved 2010-01-26.
  44. ^ News (2008-03-12). "Commencement of trial in the Radomir Vuković and Another case scheduled". The Court of Bosnia and Herzegovina. Retrieved 2010-01-26.
  45. ^ News (2010-01-22). "Neđo Ikonić ordered into custody". The Court of Bosnia and Herzegovina. Retrieved 2010-01-26.
  46. ^ Staff (2010-03-13). Bosnia Indicts Serb Police Commander for Srebrenica Massacre. Voice of America News. Retrieved 2010-03-14.
  47. ^ a b c d e f g h i j k l m Cerkez-Robinson, Aida (2008-07-30). "7 Bosnian Serbs guilty of genocide in Srebrenica", Associated Press. Retrieved on 2008-07-31.
  48. ^ a b c d e f g h i j k l m "Bosnian Serbs jailed for genocide". BBC News. 2008-07-29. http://news.bbc.co.uk/2/hi/europe/7531413.stm. Retrieved 2008-07-29. 
  49. ^ a b c d e f g h i j k The Court of Bosnia and Herzegovina - Mitrovic and others (Kravice) - Accused of the criminal offence of genocide in violation of Article 171 of the Criminal Code of Bosnia and Herzegovina (X-KR-05/24 - Mitrovic and others (Kravice)).
  50. ^ a b c News (2009-10-27). "Appellate Panel delivers verdict in the Miloš Stupar et al. case", The Court of Bosnia and Herzegovina. Retrieved on 2009-10-31.
  51. ^ a b c d The Appellate Panel verdict, 2009-09-09, No. X-KRŽ-05/24.
  52. ^ Trial Watch. Retrieved on 2009-10-17.
  53. ^ Case information on X-KR-07/386 - Trbić Milorad
  54. ^ Original indictment from 20 July 2007 (corrected version from 25 July 2007).
  55. ^ Press release of the Court of Bosnia and Herzegovina. Retrieved on 2009-10-17
  56. ^ Prosecutor v. Radislav Krstic - Trial Chamber I - Judgment - IT-98-33 (2001) ICTY8 (2 August 2001), The International Criminal Tribunal for the Former Yugoslavia, paragraph 589. citing Bavarian Appeals Court, Novislav Djajic case, 23 May 1997, 3 St 20/96, section VI, p. 24 of the English translation. Paragraph 589:
    Several other sources confirm that the intent to eradicate a group within a limited geographical area such as the region of a country or even a municipality may be characterised as genocide. ... Two Judgements recently rendered by German courts took the view that genocide could be perpetrated within a limited geographical area. The Federal Constitutional Court of Germany, in the Nikola Jorgic case, upheld the Judgement of the Düsseldorf Supreme Court, interpreting the intent to destroy the group "in part" as including the intention to destroy a group within a limited geographical area. In a Judgement against Novislav Djajic on 23 May 1997, the Bavarian Appeals Chamber similarly found that acts of genocide were committed in June 1992 though confined within the administrative district of Foca.
  57. ^ Novislav Džajić, TRIAL (Track Impunity Always)
  58. ^ Bavarian Appeals Court, Novislav Džajić case, 23 May 1997, 3 St 20/96.
  59. ^ Nikola Jorgić, Oberlandesgericht Düsseldorf, 26 September 1997, IV - 26/96.
  60. ^ Nikola Jorgić, Bundesgerichtshof, 30 April 1999, 3 StR 215/98F.
  61. ^ Trial Watch for Nikola Jorgić.
  62. ^ European Court of Human Rights - Jorgic v. Germany Judgment, 12 July 2007
  63. ^ Europe's human rights court upholds life term for Bosnian Serb convicted of genocide - AP, July 12th, 2007.
  64. ^ ECHR Jorgic v. Germany. § 18
  65. ^ ECHR Jorgic v. Germany § 36 butt also §§ 18,47,99,103,108
  66. ^ ECHR Jorgic v. Germany. § 42 citing Prosecutor v. Krstic, IT-98-33-T, judgment of 2 August 2001, §§ 580
  67. ^ ECHR Jorgic v. Germany. § 43 citing the judgment of 19 April 2004 rendered by the Appeals Chamber of the ICTY, IT-98-33-A §§ 25,33
  68. ^ ECHR Jorgic v. Germany. § 44 citing Prosecutor v. Kupreskic and Others (IT-95-16-T, judgment of 14 January 2000), § 751
  69. ^ ECHR Jorgic v. Germany] §45 citing Bosnia and Herzegovina v. Serbia and Montenegro ("Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide") the International Court of Justice (ICJ) found under the heading of "intent and 'ethnic cleansing'" § 190
  70. ^ ECHR Jorgic v. Germany. § 47
  71. ^ ECHR Jorgic v. Germany § 105
  72. ^ ECHR Jorgic v. Germany. § 113
  73. ^ ECHR Jorgic v. Germany. § 116
  74. ^ Maksim Sokolović, Oberlandesgericht Düsseldorf, 29 November 1999.
  75. ^ Maksim Sokolović, Bundesgerichtshof, Third Criminal Senate, 21 February 2001, 3 StR 372/00
  76. ^ Trial watch Maksim Sokolovic
  77. ^ Đurađ Kušljić, Bayerisches Oberstes Landesgericht, 15 December 1999, 6 St 1/99
  78. ^ Đurić, Goran (2008-09-06). "Pobjegao od ratnog zla a robijao za genocid", at Blic Online. Retrieved on 2009-10-09.
  79. ^ Đurađ Kušljić, Bundesgerichtshof, 21 February 2001, 3 StR 244/00
  80. ^ Constitutional Court of Bosnia and Herzegovina, AP-63/06, p. 2, Sarajevo, 6 March 2007.
  81. ^ Schabas W (2008). War crimes and human rights: essays on the death penalty, justice and accountability. Cameron May. pp. 711. ISBN 1-905017-63-4
  82. ^ Project Diana - Human Rights Cases contains many legal files and documents in relation to these cases. Referenced on 2008-11-24.
  83. ^ a b Kadić v. Karadžić, 70 F.3d 232, 238-46 (2d Cir. 1995).
  84. ^ Doe v. Karadić, 866 F.Supp. 734, 735 (S.D.N.Y. 1994).
  85. ^ Kadić v. Karadžić, 70 F.3d 232, 238-46 (2d Cir. 1995).
  86. ^ Murphy S (2002). United States Practice in International Law: Volume 1, 1999-2001. Cambridge University Press. pp. 307. ISBN 0-521-75071-7. 
  87. ^ Kadić v. Karadić, 518 U.S. 1005 (1996)
  88. ^ Miller, Bill & Haughney, Christine (2000-08-09). "War Crimes Trials find a U.S. Home", Washington Post
  89. ^ Kadić v. Karadžić, No. 93 Civ. 1163, judgement (S.D.N.Y. Aug. 16, 2000)
  90. ^ Kadić v. Karadžić, No. 93 Civ. 1163, order & perm. inj. at 3 (S.D.N.Y. Aug. 16, 2000)
  91. ^ Doe v. Karadžić, No. 93 Civ. 878, judgment (S.D.N.Y. Oct 5, 2000)
  92. ^ Mondo WEB Portal (2008-07-25). "Karadžić 'duguje' SAD milijarde dolara", retrieved on 2008-12-21.
  93. ^ Comprehensive report of the proceedings, www.vandiepen.com
  94. ^ Gottlieb, Sebastian (2008-06-18). "Srebrenica genocide testcase for UN immunity", Radio Netherlands Worldwide. Retrieved on 2008-11-24
  95. ^ The Hague District Court; Writ of Summons, The Hague, p. 198
  96. ^ The Hague District Court; Judgment in the incidental proceedings, The Hague, 10 July 2008
  97. ^ Corder, Mike (2008-07-10). "Dutch court rules in Srebrenica civil suit", Yahoo! News. Retrieved on 2008-11-24.
  98. ^ F. V. (2008-10-30). "Advokatski tim podnio žalbu", Dnevniavaz.ba. Retrieved on 2008-10-30.
  99. ^ Staff (2010-01-21). "Srebrenica survivors to appeal UN ruling". AFP. Retrieved 2010-01-24.
  100. ^ Judgment of the District Court of The Hague
  101. ^ Srebrenica lawsuit against Holland opens, B92, 17 June 2008
  102. ^ Judgment of the District Court of The Hague
  103. ^ a b District Court hears Srebrenica cases, The Hague Justice Portal, 18 June 2008
  104. ^ "Dutch Court says Netherlands not Responsible for Srebrenica Claim", VOA News. Retrieved on 2008-09-10.







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