Archive for category Balkans
Court/Tribunal: International Criminal Tribunal for the former Yugoslavia
Decision Title: Public Redacted Version of “Judgement” Issued on 30 May 2013
Chamber: Appeals Chamber
Case Name: Contempt Proceedings against Vojislav Šešelj
Date: 30 May 2013
Decision Background: Vojislav Šešelj was charged with contempt of court on 9 May 2011 for failing to comply with three court orders demanding the deletion of confidential information from a public website and the removal of a book containing confidential information. At the initial appearances, Šešelj informed Trial Chamber II (“Contempt Trial Chamber”) that he would be representing himself pro se because the Registry refused to reimburse travel expenses for his legal advisor, Dejan Mirović, and case manager, Nemanja Sarović. The Registry’s denial was later affirmed by the President of the Tribunal.
At each subsequent hearing, Šešelj alleged the Tribunal’s failure to reimburse Mirović and Sarović’s expenses deprived him of the right to legal assistance and rendered him unable to enter pleas on each contempt charge. Šešelj repeatedly moved the Contempt Trial Chamber to reconsider allowing Mirović and Sarović to represent him. On 2 April 2012, nearly a year after the contempt proceedings commenced, the Registry permitted Mirović access to confidential information and privileged communications. The Registry additionally agreed to reimburse Mirović’s travel expenses if the Contempt Trial Chamber specifically requested his presence. Sarović, however, was not recognized to appear.
Šešelj’s contempt trial was held on 12 June 2012. Noticeably absent was Šešelj’s counsel, Mirović, who was given permission by the Contempt Trial Chamber to conduct Šešelj’s direct examination. Šešelj argued the Registry’s refusal to allow his case manager, Sarović’s, presence in the courtroom prevented Mirović from traveling to The Hague. Therefore, Šešelj refused to take part in the proceedings and claimed he was unable to present a defense, testify or prepare final arguments. The Contempt Trial Chamber found the “case [ ] so very simple” and orally notified Šešelj that a case manager was not needed. After a one week adjournment in which Šešelj remained unwilling to defend himself without both his counsel, Mirović, and his case manager, Sarović, the Chamber closed the case. On 28 June 2012, the Contempt Trial Chamber issued a decision finding Šešelj guilty of contempt and sentenced him to two years in prison.
Šešelj filed this appeal on 18 July 2012 and requested either a reversal and acquittal of the contempt charges or an opportunity to present his defense on the grounds that he was denied the right to a fair trial. Specifically, Šešelj argued the Contempt Trial Chamber (1) violated equality of arms by denying him the legal assistance of Sarović and neglecting to issue a “clear and reasonable” reason for that denial, (2) infringed on his right to communicate with Mirović and Sarović, and (3) issued him an “unduly severe” sentence.
Decision Review: Šešelj’s first ground of appeal alleged the Contempt Trial Chamber violated the principle of equality of arms by wrongfully assuming he did not need a case manager and “simultaneously prevent[ing] him” from any legal assistance. Equality of arms requires that an accused be afforded sufficient time and facilities to prepare a defense that is equal to that of the opposing party. The Appeals Chamber was troubled by the trial chamber’s failure to give a formal decision on whether Sarović could appear in the case, despite repeated requests by Šešelj. The Appeals Chamber found the oral ruling by the trial chamber claiming Šešelj did not need a case manager lacked factual support and was insufficient. Therefore, the Appeals Chamber held the Contempt Trial Chamber violated the principle of equality of arms by neglecting the duty to provide a “timely, clear and sufficient explanation” for its decision.
However, in order for the Appeals Chamber to reverse a decision of a trial chamber when there has been an error of law, the party alleging the error must prove prejudice. The Appeals Chamber noted that Šešelj was afforded privileged communications with Mirović, his legal assistant, and Mirović was permitted to conduct the direct examination at the trial. The Appeals Chamber could not find any merit in Šešelj’s claim that the refusal to allow Sarović to appear simultaneously prevented Mirović’s participation in the proceedings. Thus, the Appeals Chamber held Šešelj was not prejudiced and the Contempt Trial Chamber’s judgment would not be invalidated on this ground.
Šešelj’s second ground of appeal claimed the Contempt Trial Chamber’s infringement on his right to communicate with his legal advisor and case manager impeded his right to freedom of expression and freedom to testify. Šešelj argued this infringement “denied him the opportunity to express ‘the flagrant violation of his human and procedural rights during the almost 10 years of detention.’” Šešelj relied on the ICTY Statute which guarantees to an accused “adequate time and facilities . . . to communicate with counsel of his own choosing.”
The Appeals Chamber chose to discuss Šešelj’s right to communicate with Mirović separately from his right to communicate with Sarović. Mirović was formally recognized by the Registry as Šešelj’s legal advisor and was given access to confidential information and privileged communications. Furthermore, Mirović was permitted to appear at the contempt trial and conduct Šešelj’s direct examination. The Appeals Chamber, therefore, found that Šešelj’s right of communication with Mirović was not impaired and rejected Šešelj’s conclusory statement that the tribunal’s refusal to allow Sarović to appear prevented Mirović’s participation.
In regards to Sarović, the Appeals Chamber upheld the Registry’s decision to deny Šešelj privileged communications with a case manager. The Registry retains the discretion to determine legal support and Šešelj exercised his right of appeal to the President who confirmed the decision. Thus, Šešelj’s appeal that the Contempt Trial Chamber infringed on his right of communication to both Mirović and Sarović was denied.
Šešelj’s third and last ground of appeal argued that the two year prison sentence handed down by the Contempt Trial Chamber was “draconian” and “unduly severe.” Šešelj reasoned that since he was unable to present a defense, the trial chamber’s sentence was unfair and outside the scope of discretion. The Appeals Chamber dismissed this ground of appeal since Šešelj was unable to establish any prejudicial error of fact or law or prove that his right to a fair trial was infringed.
Given that Šešelj failed to prove he was denied a right to a fair trial on any of the three grounds, the Appeals Chamber on 30 May 2013 affirmed the judgment against Šešelj for contempt and the sentence of two years in prison.
To access the full Decision, click here.
ICTY acquittal shocks war victims: Two former Serbian officials were acquitted today by the ICTY for crimes committed during the 1990s Bosnian War. ICTY judges found the prosecution failed to provide enough evidence to prove that Jovica Stanisic, head of Serbia’s secret police, and Franko Simatovic, head of special operations in the secret police, possessed the requisite intent for war crimes and crimes against humanity. Serbia applauded the ICTY for conducting fair trials and helping the country establish the truth. Nonetheless, the acquittals were met with disappointment from war victims who continue to wait for a conviction of a government official for atrocities that claimed the lives of more than 100,000.
(For additional information on this topic, please click here.)
Pillay considers referral to ICC best way to end Syrian conflict: On Wednesday, 29 May, the UN Human Rights Council held an urgent debate in Geneva to discuss the escalating conflict in Syria. UN High Commissioner for Human Rights Navi Pillay insisted that referral to the ICC for adjudication is the most effective way to end the dispute. Pillay commended US Secretary of State John Kerry and officials from Russia and France for the recent proposal of a peace conference in Geneva that could foster discussions between the Syrian Government and rebels.
ICC Judge withdraws from Lubanga impartiality appeal: ICC President Judge Sang-Hyun Song has withdrawn from reviewing a claim by Thomas Lubanga that the judge is impartial. Judge Song is handling Lubanga’s appeal against his March 2012 conviction and sentence of 14 years in prison for recruiting child soldiers. Lubanga claims Judge Song’s alleged public support of Lubanga’s conviction at a November 2012 conference and the judge’s position on the board of the United Nations Children’s Fund Korea creates an appearance of bias. Judge Song denies that any of his statements at the conference specifically discussed the merits of the Lubanga case and also stated he is not directly involved with the running of UNICEF Korea. Judge Song currently remains on the bench handling Lubanga’s appeal. No ruling has been made on the impartiality claim.
Negative responses to AU’s allegation ICC targets Africa: Kenya’s former Prime Minister Raila Odinga openly criticized the AU’s recent resolution calling for the ICC trial of President Uhuru Kenyatta to be tried in and by Kenya. Odinga expressed disbelief that the countries of Africa could voluntarily avail themselves to the jurisdiction of the ICC and then claim the Court is singling the continent out based on race. African activists have also spoken out and described the AU resolution an attempt to “pervert the course of justice.” These individuals have questioned the AU’s motive for exempting President Kenyatta from ICC prosecution, yet, previously handing over other African leaders to the Court.
(For additional information on this topic, please click here.)
ICTY convicts six Bosnian Croats: Six accused on trial for forcibly displacing and murdering Muslims and other non-Croats during the Bosnian conflict in the early 1990s, were found guilty today for war crimes and crimes against humanity. The ICTY judges held the leaders engaged in a joint criminal enterprise in an effort to create a “Greater Croatia.” The tribunal handed down prison sentences ranging from 10 to 25 years, with former prime minister Jadranko Prlic receiving the longest. The five other convicted wartime leaders are former defence minister Bruno Stojic, former militia heads Slobodan Praljak and Milivoj Petkovic, former military policy commander Valentin Coric, and former head of prisoner facilities Berislav Pusic. All six are expected to appeal. (For additional information on this topic, please click here.)
Bensouda fires back at claims ICC targeting Africa because of race: ICC Prosecutor Fatou Bensouda responded sharply to accusations the court’s investigations were discriminately targeting African states at a 28 May UN meeting in New York. Bensouda argued that the AU’s charges that the ICC choose cases on the basis of race wrongly shifted the focus of the ICC indictments and the protection of the Court from victims to the perpetrators. Bensouda said the AU’s stance insulted the thousands of African victims subject to war crimes, crimes against humanity and genocide. She vowed the ICC would remain politically independent and impartial. The Prosecutor’s statements came one day after the AU adopted a resolution urging the ICC to refer back to Kenya the cases of President Uhuru Kenyatta and Deputy President William Ruto. (For additional information on this topic, please 1. click here, and 2. click here).
Witness testifies Mladic “directly involved” in Srebrenica attacks: Bosnian Serb commander Ratko Mladic’s trial continued at the ICTY with testimony from lieutenant colonel Mirko Trivic. Trivic claimed he met with Mladic in Srebrenica in July 1995, and that Mladic gave him orders to prepare for an offensive on the UN protected co-operative. A witness testified the previous week that he personally watched the murder of five Muslims and observed piles of bodies around Srebrenica that same month. Mladic is on trial for genocide, crimes against humanity, and taking international peacekeepers hostage.
UN Human Rights Council plans urgent debate on Syria: The Council’s three-week session opened on Monday with a recommendation that the Syrian government’s human rights violations be referred to the ICC for prosecution. UN High Commissioner for Human Rights, Navi Pillay, voiced her concern for the safety of civilians, citing reports of aerial attacks in residential areas and the targeting of schools and hospitals. Present Syrian Ambassador Faysal Khabbaz Hamoui called these charges unfounded and challenged the Council to provide proof of such violations. Ambassador Hamoui claimed the focus on his country was the result of bias and impartiality to rebel troops. U.S., Turkey, and Qatar diplomats nonetheless persuaded the Council to hold a second urgent debate to focus on the Syria civil war. The debate is scheduled for today, 29 May 2013.
Death penalty for ICT criminals to be carried out by August: The execution of three war criminals in Bangladesh is expected by July or August of this year, according to Minister of Information Hasanul Haq Inu. Two top leaders and a former Jamaat activist were found guilty by the ICT for crimes committed during the 1971 Liberation War. The criminal appeals should conclude by June.
STL’s investigation of 2005 bombing to move quickly and carefully: On 14 May 14 2013, STL officials and the NGO Justice Without Frontiers met to discuss the on-going investigation into the 2005 bombing that killed 23 people, including former Lebanese prime minister Rafik Hariri. The STL vowed to move the investigation along quickly to help the victims. The NGO stated this would be done in a “careful” manner to avoid leaks of confidential information.
Post by: Anna Mumford
AU leaders request Kenyatta transfer; suggest ICC bias: Leaders of the African Union congregated Friday to pass a resolution urging the International Criminal Court to send the case of Uhuru Kenyatta back to domestic Kenyan Courts. Kenyatta, along with Vice President William Ruto, faces trial 9 July. He was reelected to Kenya’s Presidency in March. Delegates at the AU summit suggested they would take their concerns over Kenyatta’s case to the United Nations, citing the high number of ICC indictees who hail from or are leaders of African countries. (For additional information on this topic, please 1. click here and 2. click here).
ICTY recognizes 20 years since inception: The International Criminal Tribunal for the Former Yugoslavia marked its twentieth anniversary on Saturday, prompting ICTY and UN officials to reflect on the service of the Tribunal. President and Judge Theodor Meron acknowledged the significant contributions to international jurisprudence and individual accountability the Tribunal has made. The Security Council, who authorized the creation of the tribunal through Resolution 827 in May 1993, released a statement commending the work of the Tribunal and welcoming the start of the ICTY Residual Mechanism. The Mechanism will carry out the mandate of the court, to try the remaining individuals most responsible for atrocities committed in the former Yugoslav Territory after 1991. (For additional information on this topic, please click here).
ICT of Bangladesh to try two accused in absentia: The International Crimes Tribunal-2 of Bangladesh on Monday decided to try two of its accused in absentia. After appealing to two members of the Pakistani Occupation Army via newspaper, the ICT-2 opted to proceed with the trial of Chowdhury Mueen-Uddin and Ashrafuzzaman Khan, without them present. Prosecutors filed war crimes charges against the two high-ranking members in late April and arrest warrants were issued 2 May. Mueen-Uddin and Khan were appointed state counsel to represent them in their absence.
Khmer Rouge victims to testify this week: In what is being called a “key moment” in the trial of two accused Khmer Rouge leaders, civilians will have the opportunity to testify before the Extraordinary Chambers in the Courts of Cambodia. Victims will present their experience of the Khmer Rouge regime before judges, prosecutors, and defense attorneys in the cases of Nuon Chea and Khieu Samphan, as an effort at national reconciliation. Attorneys for the victims pursued this opportunity for their clients to testify against the accused so that the Court could consider their experiences in its judgment, its allocation of reparations, and also for the public to hear first hand accounts of the atrocities.
Ugandan President criticizes ICC at Kenyatta’s Inauguration: On 9 April 2013, Ugandan President Yoweri Museveni spoke at Kenyan President Uhuru Kenyatta’s inauguration. During his speech, Museveni accused the ICC of blackmail, incompetence, and self-interest in charging Kenyatta for crimes against humanity relating to his actions in the 2007-2008 post-election violence. Kenyatta and Vice-President William Ruto, who is also charged by the ICC with crimes against humanity, have cultivated an anti-imperialist tone among some Kenyans recently. On 10 April, the ICC dismissed Museveni’s attack and stated that the court is operating under a judicial mandate, that there are no political considerations in taking up cases, and that Uganda is a state party to the Rome Convention who referred Joseph Kony to the ICC. Kenyatta is the first ICC indictee to be made head of state. (For more information on this topic, please click here.)
Released Macedonian war crimes convict receives hero’s welcome: On 11 April 2013, Johan Tarkulovski, a convicted war criminal, returned to Macedonia after serving eight of a twelve year prison sentence. Tarkulovski was greeted at the airport by relatives and the Prime Minister Nikola Gruevski and tens of thousands of people gathered in Macedonia’s capital. Tarkulovski was convicted by the ICTY for the murder of three ethnic Albanians and the destruction of twelve houses during a 2001 conflict in Northern Macedonia. Albert Musliu, a political analyst, stated that there was a sense of disappointment in the ethnic Albanian population for greeting a man convicted of murdering civilians with a hero’s welcome.
Serbian President attacks ICTY at UN debate: On 10 April 2013, Serbian President Tomislav Nikolic heavily criticized the ICTY as being a “biased inquisition” at a UN General Assembly debate. Nikolic stated that the ICTY has been biased against Serbians, which has made reconciliation in the Balkans difficult. However, Croatian Representative to the UN Ranko Vilovik stated that the ICTY deserved support. The United States, Canada, and Jordan boycotted the debate because they deemed it “unbalanced” and “inflammatory.” Vuk Jeremic, a Serbian politician and President of the UN General Assembly, stated that the debate on the role of international war crimes courts was the biggest debate in the history of the UN.
Human Rights Watch says Syrian attacks amount to war crimes: On 11 April 2013, HRW released a report documenting Syrian government attacks that are indiscriminate and sometimes deliberately directed at civilians, which amount to war crimes. The HRW report also criticized the Free Syrian Army and other rebel armies for setting up their headquarters in densely populated areas. On 11 April the Syrian government was accused of massacring 60 civilians in a village in southern Syrian. (For more on this topic, please click here.)
Central Darfur fights say they are close to capturing ICC indictee: On 10 April 2013, Al Bashir Idris Garagandi, spokesman of the Salamat Shura a Sudanese tribal group, announced that his fighters are very close to capturing Ali Kushayb, a Sudanese military leader who was indicted by the ICC for war crimes in 2007. There have been battles over the last week between Salamat and Misseriya fighters—who are allegedly led by Kushayb—throughout Darfur; an estimated 163 people have already been killed in the conflicts.
Posted by kchin2014 in Balkans, Crimes against Humanity, Fair trial/Accused's rights, Genocide, Human Rights Treaties and Charters, Human Rights Violations, ICC, ICTY, ICTY Residual Mechanism, India, Investigations, Iraq, News about the Courts, Rome Statute, Sri Lanka, Torture, UN Human Rights Council, Victims, War Crimes, Witnesses on February 28, 2013
Momčilo Perišić acquitted by ICTY Appeals Chamber: On 28 February 2013, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) reversed the conviction and 27-year sentence of former Yugoslavian Chief of the General Staff Momčilo Perišić. Perišić was the most senior officer of the Yugoslavian Army (VJ) when its troops assisted the Army of the Republika Srpska (VRS) in committing crimes against humanity and violated laws or customs of war against the people of Sarajevo and Srebrenica, and was convicted of aiding and abetting those crimes, as well as failing to punish those responsible for the crimes committed in Zagreb.
The Appeals Chamber found that the Trial Chamber erroneously found that the element of specific direction was not an element of aiding and abetting criminal liability, and that the evidence does not prove beyond a reasonable doubt that Perišić specifically directed VJ troops to assist the VRS in Sarajevo and Srebrenica. The Appeals Chamber also noted that, since the Trial Chamber did not find the VRS to be a criminal organization, Perišić was not necessarily responsible for its criminal activities when he directed the VJ to support to the VRS.
The Appeals Chamber also found that the evidence did not prove beyond a reasonable doubt that Perišić had effective control over the Serbian Army of the Krajina (SVK) when its troops committed war crimes in Zagreb. Pointing to Perišić’s disregarded orders to the SVK to stop the shelling of Zagreb, the Appeals Chamber concluded that the evidence did not support the finding that he was able to exercise control over the SVK.
Iraq: Kurdish leaders call for Rome Statute accession: On 27 February 2013, Kurdish Regional Government Minister of Martyrs and Anfal Affairs Aram Ahmed announced that the Kurdish people “want Iraq to become a member state in the ICC because it is a way for us to sign the Rome Statute and be part of the ICC in The Hague.” Referencing the Anfal Campaign which left over 182,000 Kurds dead, Ahmed reasoned that “[accession to the Rome Statute] is the right way to build a new Iraq and to employ all possible means to prevent the recurrence of such crimes in the future.”
Syrian activists collect evidence of regime’s crimes: On 26 February 2013, a Syrian activist and torture victim told the Associated Press that he was collecting evidence with hopes that one day, he would be able “to take [his] case to a Syrian court and a Syrian judge who will put [his] torturers in the same jail where [he] was held.” Only revealing his first name for security reasons, “Yashar” is a part of a growing number of activists in Syria who are gathering evidence against the Assad Regime. While such activists are united in their desire to bring those responsible to justice, they are divided on the question of proper venue. Many, like Yashar, want trials in Syria, while others, pointing to ineffective administration of justice in other post-revolutionary states, prefer prosecutions in the International Criminal Court (ICC). (Read more here.)
Talks between Serbia and ICTY show signs of promise: On 27 February 2013, legal advisor to the Serbian President and Ministry of Foreign affairs Oliver Antic announced that his meetings with ICTY officials to “improve the overall conditions of [Serbian] indictees and convicts” were fruitful. During his trip, Antic also met with Serbian indictees and convicts, and stated that “if [Serbia] is able to help [Serbian indictees and convicts] with something, [Serbia] will do so in line with the law.”
Indian government officials express concern over situation in Sri Lanka: On 28 February 2013, Rajya Sabha, India’s upper house of parliament, expressed concern over the alleged war crimes committed by the Sri Lankan military, yet stopped short of endorsing the idea of India voting in favor of the US-sponsored resolution against Sri Lanka in the UN Human Rights Council. Foreign Affairs Minister Salman Khurshid stated that India regarded Sri Lanka as an ally, and that India has no intentions of unilaterally interfering with Sri Lankan affairs. In response to Khurshid’s accommodating stance on the matter, Indian state Tamil parties Dravida Munnetra Kazhagam (DMK) and All India Anna Dravida Munnetra Kazhagam (AIADMK), along with the Left Front party (Left) staged a walkout.
North Korean prison camps steadily growing: On 27 February 2013, the Committee for Human Rights in North Korea released satellite images of prison camps on the northeast coast of the country. According to Amnesty International, about 200,000 people (or one out of every 120 North Koreans) are being held in such prison camps. The images dispelled rumors that Camp 22, the largest camp, had been shut down. Another location, Camp 25, grew over 72 percent between 2009 and 2010, now holding an estimated 5,000 prisoners. No clear reason has been cited for the expansion, although some speculate that the regime change precipitated a crackdown.
Posted by kchin2014 in Balkans, Crimes against Humanity, Fair trial/Accused's rights, Gender crimes, Genocide, Human Rights Treaties and Charters, Human Rights Violations, ICT of Bangladesh, Investigations, News about the Courts, Sri Lanka, Torture, UN Human Rights Council, Victims, War Crimes on February 14, 2013
UN High Commissioner for Human Rights calls for Sri Lanka investigation: On 13 February 2013, UN High Commissioner for Human Rights Navi Pillay stated that Sri Lanka stated that the Sri Lankan government’s investigations failed to inspire confidence and called for an independent forensic investigation into the allegations of war crimes committed by the military. The UN estimates that as many as 40,000 ethnic minority Tamil civilians were killed during the final months of the 2009 conflict. The Sri Lankan government categorically denied targeting civilians, despite significant evidence indicating otherwise. More recently, there have been reports of politically motivated abductions and disappearances. The UN Human Rights Council is scheduled to take official matter on the Sri Lankan matter on 25 February.
Human Rights Watch accuses Israeli military of war crimes: On 12 February 2013, Human Rights Watch issued a report finding that the Israeli military carried out 14 airstrikes which were not directed at military targets and that the military used disproportionate force when it carried out an additional four bombings that were directed at militants. Human Rights Watch estimates that the attacks killed over 40 civilians, including children. Jerusalem-based NGO Monitor dismissed the report as having “neither the military expertise nor appropriate fact-finding methodology” to reach its conclusions and accused Human Rights Watch of having an anti-Israeli agenda.
Violent protests continue in Bangladesh: On 13 February 2013, Jamaat-e-Islami supporters continued to rally against the trials of party leaders suspected of war crimes and human rights abuses, attacking police and vandalizing property with homemade bombs and bricks. The protests started last month when the first Jamaat leader was convicted, and emerged with renewed energy following another conviction last week. Since they began, the protests have killed at least seven people, leaving several more wounded. The International Crimes Tribunal (ICT) has been criticized by human rights organizations for failing to meet international standards of procedure in its trial of the pro-Pakistani militia leaders, who are believed to have contributed to the atrocities committed during the 1971 war.
Four Bosnian war crime suspects arrested: On 12 February 2013, the Bosnia-Herzegovinan State Investigation and Protection Agency (SIPA) arrested four suspects who served in the Fifth Corps of the Muslim-led Bosnian Army and are accused of beating and torturing 26 Serbian prisoners during the conflict following the secession of Bosnia and Herzegovina in 1992, which left 100,000 people dead.
Rwandan genocide survivors outraged by ICTR decision: On 5 February 2013, the day after the ICTR overturned the convictions of former Minister of Trade Justin Mugenzi and former Public Service Minister Prosper Mugiraneza, genocide survivor groups condemned the decision and expressed worry that a troubling trend was emerging. Rwandan Prosecutor General Martin Ngoga stated that the Appeals Chamber had overturned the conviction based on a “simplistic treatment of facts…creating a trend…that will continue.” In the past, the ICTR has acquitted at least three convictions of senior government officials, most notably the conviction of Protais Zigiranyirazo, who is widely believed to be the creator of the genocide plan.
Senegal to inaugurate special court for Habré trial: On 8 Feburary 2013, judges for the Extraordinary African Chambers will be inaugerated to try the case against former Chadian dictator Hissène Habré. The court of 4 Senegalese judges was created by an agreement with the African Union, and the pretrial investigation is expected to last until 2014. If warranted by the findings of the pretrial investigation, a non-Senegalese judge will be appointed by the AU and preside over the trial. The trial will be the first time that a leader of one country will be tried for human rights violations by a court of another. Habré, who is alleged to have killed and tortured thousands of people during the 1980s, fled to Senegal following his deposal 1990.
ICTY orders Mladic to contribute to own legal defense fund: On 1 February 2013, the ICTY found that former Bosnian Serb commander Ratko Mladic had the financial means to contribute €60,992 towards the cost of his high-profile legal defense team, which includes Belgrade lawyer Branko Lukic. Since his arrest in 2011, the ICTY has ben financing his legal costs, after Mladic claimed that he lacked the means.
ICC prosecutor announces war crimes investigation in Mali: On 16 January 2013, ICC Prosecutor Fatou Bensouda announced that her office would begin an investigation into the violence that began in January of 2012 in Northern Mali between government forces and Tuareg rebels. Bensouda stated that there was a “reasonable basis” to believe that various war crimes were committed by various armed groups during the conflict. (For more information click here.)
Senegal parliament authorizes special tribunal to try ex-Chad dictator for war crimes: On 16 January 2013, following parliamentary approval of the matter, Senegal Justice Minister Aminata Toure announced that former Chadian dictator Hissene Habre will stand trial in February for war crimes and crimes against humanity. Habre has lived in Senegal since fleeing Chad in 1990. (For more information click here.)
Another dramatic witness account in Mladic trial: On 14 January 2013, another witness testimony in the trial of ex Bosnian-Serb commander Ratko Mladic came forth. Munira Selmanovic’s written testimony describes the day that her small village of Novoseoci was attacked by Serbian forces. Following the attack, Serbian forces forced women and children on to busses to Sarajevo and massacred the male residents of the village.
Imprisoned Charles Taylor demands presidential pension: On 16 January 2013, the Liberian Senate received a letter written by former President Charles Taylor, who called upon the body to grant him a presidential pension. Taylor cited “family needs,” and called the fact that he wasn’t receiving a pension a “mammoth injustice.” Taylor is imprisoned at the Hague while awaiting an appeal judgment for his war crimes convictions.
Court/Tribunal: International Criminal Tribunal for the former Yugoslavia
Decision Title: Judgment
Chamber: Trial Chamber II
Case Name: Prosecutor v. Zdravko Tolimir
Date: 12 December 2012
** Due to the decision’s length and importance, it is reviewed in two parts**
*Continued from part one*
Decision Review: The Court found that the events described herein, as alleged by the Prosecution, did in fact occur. The Court found through witness testimony and other evidence the existence of Operative Directive 7, which instigated and implemented the plan to remove through forced migration and murder the Muslim populations in the relevant areas. The Court also found that many statements made in meetings by Ratko Mladic, another leader within the Serbian Republic (RS), corroborated the findings that there was a general plan to create ethnically-homogenous areas in Bosnia and Herzegovina, and that a plan to forcibly remove and murder Bosnian civilians.
In regards to the killings in and around Srebrenica, the Court found that at the relevant time, leadership in the RS knew that murder of able-bodied men was part of the operation, and in fact, implicitly or explicitly, condoned this behavior. The Court’s findings regarding the existence of such plans, and the participants’ knowing culpability in carrying out illegal behaviors, was further bolstered by their findings that after-the-fact, in August to November 1995, the RS Army leadership organized and implemented a systematic plan of unburying those Muslims killed in July 1995 in and around Srebrenica, and reburying them in more concealed areas, as a means of hiding what had occurred. The Court found that this behavior indicated both a systematic plan of extermination, and the culpable mind frame, or intent, of the parties. Namely, it indicated that they were aware of the prohibited nature of what had occurred and what was continuing to occur.
The Court found that in addition to the killings, in Zepa and Srebrenica, civilian populations were forced to flee due to the actions of the Bosnian Serb forces, and that this amounted to forcible deportation. The Court found that Bosnian Serb forces continually shelled primarily civilian towns and areas, prevented international forces from protecting the enclaves, and prevented humanitarian aid to reach so-called “safe zones” within the enclaves, where Muslims were fleeing, in order to create such a dire situation that staying would expose the population to mortal danger. The Court noted several remarks made by RS and Army leadership saying as much, and explicitly acknowledging that the goal was to create an inhospitable environment.
The defense argued that the civilians’ decisions to leave were voluntary, in that they were not forced to get on the evacuation vehicles. The defense also pointed out that RS and Army forces had met with representatives of the Muslim community, particularly in Zepa, and that the evacuation was a negotiated, voluntary agreement between the communities. The Court, however, found that in both the general evacuations, and the meetings, no genuine choice was given to the Bosnian Muslim populations. In regards to the meetings, the Court found that the only alternative that the Muslim representatives were given, was continued shelling and military action against their enclave. Further, the Court noted that those meeting on behalf of the Muslim population, lacked authority to speak for the entirety of the community, and lacked the capacity to negotiate a voluntary withdrawal or evacuation.
Because the evacuations and the fleeing of Bosnian Muslims from the enclaves presented the only possibility for survival, due to the actions of the Bosnian Serb forces, the Court found that these evacuations were not voluntary as the civilians and their representatives were not presented with a meaningful choice in the matter. As such, the actions of the Bosnian forces amounted to forcible removal from the area. Additionally, the Court did note that in the evacuation of the Srebrenica enclave, there were instances where civilians were forced on to the evacuation buses.
In regards to the murder of able-bodied Muslim males in Srebrenica, the Court found that the evidence showed a systemic plan to kill them. Reading the events against the backdrop of the overall plan to create ethnic zones in the country, the Court found that the fact that the men were separated from the other civilians, that they were forced to leave behind their IDs and belongings, and that these IDs and belongings were subsequently burned, indicated an organized and knowing plan to kill the men.
The Court found that the plan outlined in Operative Directive 7 was sufficiently broad and systematic as to constitute extermination. Specifically, the Court found that the killings of Muslim men and boys constituted the killing of a significant portion of the relevant population – in this case, Bosnian Muslims living in the areas earmarked by the RS leadership for inclusion in a homogenous Bosnian Serb territory. To further its finding that extermination had taken place, the Court noted that the murdering of Bosnian Muslim civilians occurred in a coordinated manner over a short period of several days. The coordinated nature of the killings was suggested by the manner in which Muslim men and boys were specifically separated from the rest of the civilian population, separately transported to locations away from the rest of the evacuated populations, being forced to relinquish their belongings and IDs (which were later burned) and held until brought out in groups to be killed.
The Court found that the murders and extermination amounted to genocide. Specifically, the Court found that the Bosnian Muslim population was targeted for removal and extermination due to the civilians belonging to the Muslim faith. Under the Genocide Convention, targeting a group for extermination due to religious reasons qualifies as genocide. To bolster its findings, the Court noted the long history in the region of animosity between the different ethnic groups in Bosnia and Herzegovina, and the general plan, as articulated in 1992 by leading RS figures, of creating ethnically homogenous and separate zones within the country.
More immediately, the Court cited instances where, before being killed, Bosnian Muslim men and boys were subjected to humiliation, ridicule, and insults directed at or based upon their religious and ethnic identities. As such, the Court found that the Bosnian Muslim males in Srebrenica were selected for killing because of their religious identities, and that the goal of the killings was to further decimate and annihilate the Bosnian Muslim population in the area. In regards to Zepa, the Court found that those individuals killed were targeted because they were leaders – both secular and spiritual—of the Muslim population, and their death was meant to further disrupt, disperse, and prevent the survival of the population in that area.
Additionally, the Court found that there was a common plan among top RS leaders that acknowledged and approved of the killings that accompanied the removal of the civilian Muslim populations from the relevant areas. The Court therefore found that a conspiracy to commit genocide existed between top RS and RS Army officials.
The same facts that underlay the Court’s finding of genocide, also supported its finding that the actions of the Bosnian Serb forces amounted to persecution: namely, that the cruel treatment that the civilian population suffered – destruction of personal property in particular – amounted to persecution, as it was targeted at the civilian population due to its ethnic and religious makeup.
In regards to the defendant specifically, the Court found that the defendant was a willing and knowing participant in two separate JCEs: one to forcibly remove the Bosnian Muslim population from the relevant area, and one to murder the able-bodied men of the Muslim community. The charges listed above – persecution, genocide, removal, etc.—were found to have occurred as a result of the implementation of one or both of the JCEs as planned and executed by RS leadership.
In line with its earlier factual findings, the Court stated that the goal of removal existed as early as 1992, and found that the defendant had been present at meetings discussing the creation of ethnically-homogenous areas within the country, and understood and shared in the common goal.
The Court found that the actual JCE in the case – the removal of Bosnian Muslims from the areas around Srebrenica and Zepa – commenced with the issuance of Operative Directive 7; members the “sector” over which the defendant had control took part in the drafting of the orders regarding the attack (the Directive), and the defendant would have had a full copy of the Directive at his disposal. Thus the Court found that the defendant was aware of the plans to create an inhospitable environment, and by so doing, remove the Muslim population from the area. Additionally, the Court found that the defendant would have been appraised of the progress of the military actions against the enclaves, and would have been aware of the extent of the civilian casualties therein, and the general progress of and situation surrounding the evacuations from Srebrenica. As such, in both Srebrenica and Zepa, the Court found that the defendant would have been aware that intended victims of the military attack included Bosnian Muslim civilians, in contravention of international law.
Further, the Court found that the defendant had contributed to the creation of the inhospitable environment, by participating in and coordinating the obstruction of humanitarian aid to the area. Specifically, the defendant and security organizations under the defendant’s jurisdiction and control implemented severe restrictions on those attempting to provide humanitarian aid, which thus impeded the rendering of that aid, and contributed to the creation of an environment that forced removal of the Muslim populations. He also participated in issuing orders and directives aimed at preventing any international intervention or protection of the so-called “safe” zones for civilians, thus allowing the military operations against civilians to continue unobstructed.
Finally, the Court found that the defendant had directly participating in issuing orders pushing for a quick takeover of Zepa, and found that he had participated in the “negotiations” with Bosnian Muslim representatives, which essentially forced the Muslim representatives to agree to an evacuation.
In regards to the JCE to murder Bosnian Muslim males, the Court found that the defendant had been made aware of the plan by 13 July 1995. Further, they found that he shared an intent to, and did, contribute to the plan by issuing orders regarding how the prisoners taken by the Bosnian Serb forces should be handled. The Court found that, for example, the defendant issued orders halting preparations for prisoner detention at one location, in favor of a location less conspicuous, and warned personnel carrying out the plot about the presence of outsiders, as a means of furthering the plot.
Finally, the Court found that the defendant contributed to the JCE to murder through his failure to act. Specifically, the Court found that at the time of the JCE, the defendant and his subordinates, as members of a military force, were under an obligation to follow and enforce the rules of international law of war. In regards to the defendant, the fact that he had been a long-time military officer, meant that he would have known and understood his obligations under the international laws of war, and would have been duty-bound to comply.
As part of his duties under international law, the Court found that the defendant would have had a duty to protect any POWs captured by the Bosnian Serb forces. The Court held that the evidence showed that the defendant, by not preventing, not distancing himself or his subordinates from, and in fact contributing to, the JCE to murder, failed to perform this duty and in fact allowed for the JCE to continue in contravention of international law.
In sum, due to his role in the JCEs to forcibly remove Bosnian Muslims from the relevant areas and to murder able-bodied Bosnian Muslim males, the Court found Tolimir guilty on seven counts: Genocide, Conspiracy to commit genocide, Extermination, Murder, Persecutions, and Inhumane Acts through forcible transfer. Due to technicalities in the definitions of the crimes, Tolimir was found not guilty on the count of deportation. The Chamber sentenced Tolimir to life.
There was one concurring and one dissenting opinion in the case.
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