List of Bosnian genocide prosecutions

This is a list of prosecutions bought against states and individuals for the crime of genocide in Bosnia. 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.

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]

Krstić case

In 1998 General-Major Radislav Krstić^[3] was indicted for genocide, crimes against humanity and violations of the laws or customs of war, based on his alleged role in the events in and around the Bosniak enclave of Srebrenica between 11 July 1995 and 1 November 1995 at the ICTY. On August 2, 2001, after the Trial Chamber was convinced beyond any reasonable doubt that a crime of genocide was committed in Srebrenica, it had convicted Krstić of genocide, who became the first person thus convicted before the Tribunal, and sentenced him to 46 years in prison.^[4] The Appeals Chamber had, after upholding the Trial Chamber's finding that Bosnian Serb forces had carried out genocide in Srebrenica, among other things, reduced Krstić’s responsibility for genocide and for the murder of the Bosnian Muslims from that of a direct participant to that of an aider and abettor, and shortened his sentence to 35 years in prison.^[5] Krsić was subsequently transferred to the United Kingdom to serve his prison sentence at Wakefield Prison,^[6] but was later transferred to Long Lartin Prison.^[7]

Popović et al. case

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:

• Ljubiša Beara,^[8] was 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.^[9] 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".^[9] 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.^[9]
• Ljubomir Borovčanin,^[8] was 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,^[10] 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".^[10] He was transferred to the ICTY in the Hague on 1 April 2005.^[10]
• 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 was 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.^[8]
• Vinko Pandurević, was a Lieutenant Colonel in command of the Zvornik Brigade of the Drina Corps of the VRS. He was 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.^[8]
• Vujadin Popović,^[8] was 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".^[11]

Trial verdicts

The Trial Chamber made its ruling on 10 June 2010, by which it stated that "[t]he scale and nature of the murder operation, the targeting of the victims, the systematic and organized manner in which it was carried out, and the plain intention to eliminate every Bosnian Muslim male who was captured or surrendered proves beyond reasonable doubt that members of the Bosnian Serb Forces, including members of the VRS Main Staff and Security Branch, intended to destroy the Muslims of Eastern Bosnia as a group."^[12]

As for the individual criminal responsibility the Chamber made the following rulings:

• Vujadin Popović - found guilty, of genocide, and crimes against humanity: commissioned murder (also a war crime), commission of extermination, commission of the crime of persecution through murder and cruel and inhumane treatment (the commission of murder, extermination and persecution were all carried out as part of a Joint Criminal Enterprise). He was found not guilty of the following crimes against humanity: inhumane acts (forcible transfer) and deportation. He was sentenced to life imprisonment.^[12]
• Ljubiša Beara - found guilty of genocide, conspiracy to commit genocide, and crimes against humanity: commission of extermination, commission of extermination, and commission of murder (the last was also a war crime). He was found not guilty of the following crimes against humanity: inhumane acts (forcible transfer) and deportation. He was sentenced to life imprisonment.^[12]
• Drago Nikolić - found guilty of aiding and abetting genocide, and guilty of crimes against humanity: extermination, persecution and murder (the last also a war crime). He was found not guilty on counts of conspiracy to commit genocide, and the crimes against humanity of: inhumane acts (forcible transfer) and deportation. He was sentenced to 35 years of imprisonment.^[12]
• Ljubomir Borovčanin - found guilty of aiding and abetting crimes against humanity: extermination, persecution, inhumane acts (forcible transfer) and murder (the last also a war crime). He was found guilty, under his superior responsibility, on counts of murder, as a crime against humanity and murder, as a violation of the laws or customs of war. He was fount not guilty on counts of genocide, conspiracy to commit genocide and deportation, a crime against humanity. He was sentenced to 17 years imprisonment.^[12]
• Radivoje Miletić - found guilty, through committing, on counts of murder, as a crime against humanity, persecution, as a crime against humanity and inhumane acts (forcible transfer), a crime against humanity. He was found not guilty on counts of murder, as a violation of the laws or customs of war and deportation, a crime against humanity. He was sentenced to 19 years imprisonment.^[12]
• Milan Gvero - found guilty, through committing, on counts of persecution, as a crime against humanity and inhumane acts (forcible transfer), a crime against humanity. He was found not guilty on counts of murder, as a crime against humanity, murder, as a violation of the laws or customs of war and deportation, a crime against humanity. He was sentenced to 5 years imprisonment.^[12]
• Vinko Pandurević - found guilty, through aiding and abetting, on counts of murder, as a crime against humanity, murder, as a violation of the laws or customs of war, persecution, as a crime against humanity and inhumane acts (forcible transfer), a crime against humanity. He was found guilty, as a superior, on counts of murder, as a crime against humanity and murder, as a violation of the laws or customs of war. He was fount not guilty on counts of genocide, conspiracy to commit genocide, extermination, as a crime against humanity and deportation, a crime against humanity. He was sentenced to 30 years imprisonment.^[12]

Genocide convictions 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 other charges, including complicity to commit genocide by aiding and abetting genocide. He was sentenced to 18 years in prison.^[13] 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.^[14][15]

Plea bargains

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

• 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.^[16]

• Dragan Obrenovic^[17] 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.^[18] On 15 April 2001, he was arrested by SFOR personnel,^[19] and was transferred that same day to the Hague, he entered not-guilty pleas across the board at his arraignment on the 18th.^[20] 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.^[21] He is currently serving out his sentence in Norway and will be eligible for release in April 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.^[22] After serving six years of her sentence at the women's prison Hinseberg in Örebro, Sweden, she was released on 27 October 2009.^[23]

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.^[24] Tolimir is infamous for issuing request to use chemical weapons during genocide to gas civilians so Bosnian troops could surrender.^[25] 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.^[26] 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.^[27] Karadzic declined to enter a plea at his first appearance before the war crimes tribunal on 31 July 2008,^[28] a formal plea of "not guilty" was then made on his behalf by the judges.^[29] 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.^[30]

Ratko Mladic was indicted On July 24, 1995 (amended on 10 October 2002) 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.^[31] On May 31, 2011, Mladić was extradited to The Hague, where he was processed at the detention center that holds suspects for the International Criminal Tribunal for the former Yugoslavia (ITCY).^[32]

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.^[33] 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.^[34] 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.^[35] He died of natural causes in detention in 1998.

Found guilty of other crimes

• Goran Jelisic, in 1999, pleaded guilty to the charges of crimes against humanity and violating the laws and customs of war and pleaded not guilty to genocide. The Trial Chamber found that, despite discriminatory intent and the commission of acts within the definition of the actus reus of genocide, Jelisić did not have the requisite intent to destroy in whole or in part the Muslim group from Brčko.^[36] He was sentenced to 40 years imprisonment. The Appeals Chamber, among other things, held that the Trial Chamber’s erroneous application of the standard under Rule 98 bis(B) led to an incorrect assessment of the evidence as insufficient to sustain a conviction for genocide, but it did not consider it appropriate to reverse the acquittal and to remit the case for further proceedings, since a retrial would only be limited to the question of whether Jelisić possessed the genocidal intent, and thus it affirmed the sentence.^[37] 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.^[38][39]

• 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.^[40] He was arrested on April 3, 2000 by SFOR. 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.^[41][42] On 17 March 2009 the ICTY Appeals Chamber reversed some of the Trial Chamber's convictions for crimes against humanity and reduced Krajisnik's sentence to 20 years.^[43] Krajisnik was transferred to the United Kingdom to serve his sentence.^[44]
• 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.^[45] On 31 July 2003 he was found not guilty of genocide, complicity in genocide,^[46][47] 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.^[48]

Judiciary in Bosnia and Herzegovina

Before the establishment of the State 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, other than the Court of Bosnia and Herzegovina.^[49]

Rulings before the establishment of the Court of Bosnia and Herzegovina

• Borislav Herak and Sretko Damjanović - on 7 February 1993 the District Military Prosecutor's Office in Sarajevo filed an indictment with the District Military Court in Sarajevo against Herak, for genocide, war crimes against civilian population and war crimes against POWs, for crimes committed while he was a member of "Bioča Company" and "Kremeš Company", Damjanović (for genocide, war crimes against civilian population), for crimes committed while he was a member of "Kremeš Company" and Nada Tomić (for concealment of crime).^[50] In March 1993, by a judgment of District Military Court they were found guilty of all the offenses and Herak and Damjanović were sentenced to death.^[51] In July 1993, the second instance court partially accepted the appeals of defense lawyers, but upheld the first instance judgment with regards the finding of guilt for all the crimes and the penalties made.^[52] The third instance court, in December 1993, rejected the appeals of the defense layers and confirmed the judgment of the second instance court.^[53] After further procedural process,^[54] a retrial of Damjanović was ordered pursuant to the decision of the Human Rights Chamber for B&H^[55] and during the retrial Damjanović was acquitted of the charges of genocide.^[56] On appeal the court upheld the acquittal for genocide with regards Damjanović, as well as the sentence of 9 years imprisonment for other crimes.^[57] All the requests for retrial of Herak were rejected,^[58] making him the only person convicted of genocide by the local court in B&H before the establishment of the Court of Bosnia and Herzegovina,^[49] and he is also the first person to be convicted of the crime of genocide after the Second World War. Herak's death penalty was altered to 20 years imprisonment.^[59]
• Tešić Tešo and Borović Dušan - on 22 July 1996 Tešić, a member of paramilitary Vlasenica Brigade, and Borović, a member of volunteer units from Serbia, were indicted by the Higher Public Prosecutor's Office in Sarajevo since it was alleged that they "participated and organized systematic destruction of people, members of non-Serbian nationality", and thus committed the crime of genocide (under the Criminal Code of SFRY, or FBiH as adopted by the decree law) in northern part of Vlasenica Municipality and Bijeljina and Zvornik respectively.^[60][61] The Cantonal Court in Tuzla, on 19 September 1997, acquitted the accused of the charges since the charges were not proven,^[62] and this judgment was confirmed by the Supreme Court of the Federation of Bosnia and Herzegovina on 1 August 2000.^[63]
• Čančar Veselin - on 11 November 1996 Čančar, a reserve captain of the JNA, was indicted by the Higher Public Prosecutor's Office in Sarajevo for, among other things, allegedly committing genocide on the territory of Foča.^[64] On 9 January 1998 the genocide charge was removed from the indictment, and the accused was finally found guilty of committing war crimes against civilian population.^[65][66]

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]".^[49] 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.^[49]

Arrested

• Marko Boškić - On 25 August 2004, U.S. Immigration and Customs Enforcement agents arrested and charged Boškić with fraud and misuse of visas, permits and other documents.^[67] Subsequently, on 29 April 2010, he was extradited to Bosnia and Herzegovina and handed over to members of SIPA (State Investigation and Protection Agency) and is to be charged for the alleged participation in Srebrenica genocide.^[68]
• Dragan Nešković - On 25 August 2010, State Investigation and Protection Agency had arrested Nešković in Bijeljina on suspicion of participation in Srebrenica genocide.^[69]
• Aleksandar Cvetković - on 18 January 2010 Cvetković was arrested by the Israeli International Investigations Unit as he is suspected to have participated in the Srebrenica genocide. The estradition procedure to Bosnia and Herzegovina is pending.^[70]
• Branko Popić - was detained by U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) officers for suspiciton of participating in Srebrenica genocide. He was deported to Bosnia and Herzegovina.^[71]

Indicted to stand trial

• Željko Ivanović - on 29 June 2009 Ivanović pleaded not guilty to the charge of genocide.^[72] The commencement of trial in his case is scheduled for 27 of August 2009.^[73]
• 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.^[74]
• 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.^[75] 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.^[76] Ikonić pleaded not guilty to the charges.^[77]
• Franc Kos and others - on 12 August 2010 the Court of Bosnia and Herzegovina (BiH) confirmed the Indictment in the Franc Kos et al. case charging the accused Franc Kos, Stanko Kojić, Vlastimir Golijan and Zoran Goronja with the criminal offence of genocide.^[78] At the plea hearing, on 8 September 2010, the accused Vlastimir Golijan pleaded guilty while the accused Kos, Kojić and Goronja pleaded not guilty to the criminal offense of genocide.^[79]
• Božidar Kuvelja - on 17 January 2010 Kuvelja was deprived of liberty in the area of Čajniče by order of the Prosecutor of the Special Department for War Crimes within the BiH Prosecutor's Office and is suspected to have participated in the Srebrenica genocide. He was ordered into custody on 19 January 2011.^[80] On 4 March 2011 the Prosecutor's Office of Bosnia and Herzegovina had sent the indictment to the Court of Bosnia and Herzegovina for the confirmation. Kuvelja is charged with, among other things, the alleged execution of around one thousand Bosniak man and boys during the Srebrenica genocide.^[81] On 9 March 2011 the Court of Bosnia and Herzegovina confirmed the Indictment, charging Kuvelja with the criminal offense of genocide.^[82] Kuvelja subsequently pleaded not guilty.^[83]

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.^[84][85] 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 (not as members of JCE), 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 was found guilty of the criminal offence of Genocide under the command responsibility, in violation of Article 171(a) in conjunction with Article 180 (2) of the CC of BiH, since he acted with genocidal intent when failing to punish his subordinates.^[86] 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. ^[84][85][87]

Found guilty of genocide (29 July 2008)

• Milos Stupar (commander of the 2nd Special Police Šekovići Squad)^[88] – found guilty, sentenced to 40 years.^[84][85]
• Milenko Trifunovic (commander of the 3rd "Skelani" Platoon, part of the 2nd Special Police Šekovići Squad)^[88] – found guilty, sentenced to 42 years.^[84][85]
• Brano Dzinic (a special police force officer of the 2nd Special Police Šekovići Squad)^[88] – found guilty, sentenced to 42 years.^[84][85]
• Slobodan Jakovljevic (special police force members of the 3rd "Skelani" Platoon)^[88] – found guilty, sentenced to 40 years.^[84][85]
• Branislav Medan (special police force members of the 3rd "Skelani" Platoon)^[88] – found guilty, sentenced to 40 years.^[84][85]
• Petar Mitrovic (special police force members of the 3rd "Skelani" Platoon)^[88] – found guilty, sentenced to 38 years.^[84][85]
• Aleksandar Radovanovic (special police force members of the 3rd "Skelani" Platoon)^[88] – found guilty, sentenced to 42 years.^[84][85]

Acquitted

• Velibor Maksimovic (special police force members of the 3rd "Skelani" Platoon)^[88] – acquitted.^[84][85]
• Milovan Matic (a member of RSA)^[88] – acquitted.^[84][85]
• Miladin Stevanovic (special police force members of the 3rd "Skelani" Platoon)^[88] – acquitted.^[84][85]
• Dragisa Zivanovic (special police force members of the 3rd "Skelani" Platoon)^[88] – acquitted.^[84][85]

The Appellate Panel verdict

• Milovan Matić - the Appellate Panel upheld the trial verdict, and thus refused as unfounded the appeal filed by the Prosecutor.^[89][90]
• 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.^[89][90]
• 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.^[89][90]

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."^[90]

Retrial in Miloš Stupar case

Stupar, who allegedly acted as the Commander of the 2nd Šekovići Detachment of the Special Police, was charged for the crime of genocide under the command responsibility since he allegedly failed to take the necessary and reasonable measures to prevent members of his Detachment from taking part in the perpetration of genocide in Srebrenica, and following the perpetration of the offense he failed to take the necessary steps to punish them.

Stupar was found guilty in the first instance verdict, of 29 July 2009, but the Appellate Panel of the Section I for War Crimes, by its verdict on 9 September 2009, modified the trial verdict in its sentencing part and, among other things, ordered a retrial with regards Stupar before the panel of the Appellate Division of Section I of the Court of Bosnia and Herzegovina.^[89][90] The Appellate Division made its verdict on 5 May 2010 by which it had acquired Stupar of all charges,^[91] since he was not de facto or de jure Commander of the 2nd Šekovići Detachment of the Special Police and since he did not have the effective control over the perpetrators of the crimes.^[92]

Milorad Trbić case

Milorad Trbić, a former reserve Captain of the Zvornik brigade of the army of the Republika Srpska,^[93] 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.^[94][95] On 16 October 2009 Court of Bosnia and Herzegovina, in a first instance verdict, found Milorad Trbić directly responsible for the crimes he committed as part of a joint criminal enterprise to destroy all the Bosniaks brought into his area of responsibility during the period following the fall of Srebrenica. The Court sentenced Trbić for his participation in the crimes to thirty years imprisonment.^[96][97] The Appellate Panel of the Court confirmed the verdict and the sentence.^[98][99]

Radomir Vuković et al case

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 were charged with the criminal offense of genocide, and both pleaded not guilty.^[100] On 22 April 2010 the Court of Bosnia and Herzegovina pronounced the first-instance verdict finding both the accused guilty of knowingly assisting in the perpetration of the crime of genocide because, as members of the special police force of the 2nd Detachment of the Šekovići Special Police of the Republika Srpska MUP, they participated in keeping the road passable during the transportation of Bosniaks by trucks and buses, for later capturing a large number of Bosniak makes who attempted to escape from the UN Safe Area and taking them to Kravica Farming Cooperative where they participated in their execution. They were each sentenced to a long term imprisonment of 31 years.^[101] On 11 May 2011 the Panel of the Court's Appellate Division of Section I for War Crimes, following a public session, delivered the Appellate Decision revoking the Trial Verdict and ordering a retrial before the Appellate Panel.^[102][103]

Momir Pelemiš and Slavko Perić

The accused Momir Pelemiš acted as Deputy Commander of the 1st Battalion of the 1st Zvornik Infantry Brigade (1st Battalion), and as Acting Commander of the 1st Battalion in the time period between July 9 and 21, 1995, whereas in the time period between July 14 and 17, 1995, the accused Slavko Perić acted as Assistant Commander for Security and Intelligence in the 1st Battalion. The Court confirmed the Indictment against the accused on 28 November 2008, charging both the accused for genocide. At a plea hearing before Section I for War Crimes of the Court, held on 16 January 2009, the both of the accused pleaded not guilty, and the main trial commenced on 10 March 2009.

On 31 October 2011 the Trial Panel of the Section 1 of the Court of Bosnia and Herzegovina announced the first-instance Verdict sentencing Momir Pelemiš and Slavko Perić to 16 and 19 years of prison respectively for the criminal offense of genocide, finding that the accused knowingly provided assistance to members of the joint criminal enterprise aimed at killing the able-bodied Bosniak men from Srebrenica, during a widespread and systematic attack carried out on the UN safe area in Srebrenica between 10 July and 1 November 1995 by members of the Republika Srpska Army and the RS MUP.^[104]

Plea bargains

• Vaso Todorović - the Court confirmed the indictment against him on 2 June 2008, under which it was alleged that Todorović, as a member of the Special Police of the 2nd Šekovići Detachment during the period from 10 July to 19 July 1995, with an intention to partially exterminate a group of Bosniak people, participated in a joint criminal enterprise aimed at forcible relocation of around 40 thousand civilians from the UN Protection Zone Srebrenica, and was charged with the crime of genocide. On 23 June 2008 Todorović pleaded not guilty, and the trial was initiated on 13 October 2010. Todorović made a plea agreement with the Prosecution on 16 October 2010, after which the charge of genocide was replaced by crimes against humanity. On 22 October 2010 he was found guilty of aiding and abetting murder and deportation and forcible transfer as a crime against humanity committed in Srebrenica in July 1995, and was sentenced to six years imprisonment.^[105]
• Dragan Crnogorac - on 15 November 2010, Crnogorac was deprived of liberty in Banja Luka by order of the Prosecutor of the Special Department for War Crimes within the BiH Prosecutor's Office and is suspected to have, as a member of the police forces of the Jahorina Training Center – a part of the RS MoI, personally participated in the capture of Muslim men in the village of Sendici who had tried to escape Srebrenica and their execution, during the genocide of July 1995.^[106] Crnogorac struck a plea bargain after being indicted for genocide, after which he was sentenced to 13 years in prison for crimes against humanity.^[107]

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 these cases were cited in the judgement handed down by the ICTY against Radislav Krstic, 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".^[108]

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.^[109] 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.^[110]

Nikola Jorgić

The Higher Regional Court (Oberlandesgericht) of Düsseldorf, 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.^{[111][112][113]}

Application before the European Court Of Human Rights

On 12 July 2007, European Court of Human Rights dismissed Nikola Jorgic appeal,^[114] but highlighted 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 having reviewed the case and the more recent international rulings on the issue^{[115][116][117][118]} held 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",^[119] and thus it concluded that "while many authorities had favored 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" and 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.",^[120] and for this reason the court rejected Jorgic's assertion that there had been a breach of Article 7 (no punishment without law) of the European Convention on Human Rights by Germany.^[121]

Maksim Sokolović

On 29 November 1999, the Higher Regional Court (Oberlandesgericht) of Düsseldorf condemned Maksim Sokolović to 9 years in prison for aiding and abetting the crime of genocide and for grave breaches of the Geneva Conventions.^{[122][123][124]}

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.^[125] Qualification of his crimes was changed to complicity in genocide on appeal, but his sentence was unaltered.^[126][127] 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.^[128]

On 11 January 2006 Kušljić filed an appeal before the Constitutional Court of Bosnia and Herzegovina claiming that his fair trial rights were violated when it was not made possible for him to participate in the procedure before the Ministry of Civil Affairs and Communications of B&H and Ministry of Foreign Affairs of B&H, when it was decided that B&H would not request his extradition regarding the criminal procedure against him for genocide, although in his view B&H had jurisdiction, since he did not even know the procedure was underway. The Court dismissed his appeal for being ratione materiae incompatible with the Constitution of Bosnia and Herzegovina.^[129]

Austrian prosecutions

Duško Cvjetković, who was allegedly a commander of a Bosnian-Serb militia group in Kucice, was arrested in Austria on 19 May 1994. On 27 July 1994 the Prosecutor's Office of Salzburg filed an indictment against Cvjetković for genocide and genocide through aiding and abetting pursuant to §321 (1) first and fourth alternative of the Criminal Code of Austria related to murder and forcible transfer and §12 third alternative of the StGB related to aiding and abetting, murder pursuant to §75 of the Criminal Code of Austria and murder through aiding and abetting pursuant to §§12 third alternative, 75 of the Criminal Code of Austria as well as arson through aiding and abetting pursuant to §12 third alternative, 169 (1) of the Criminal Code of Austria. He was subsequently acquitted by a jury.^[130]

The Netherlands prosecutions

A former UN interpreter, Hasan Nuhanović and the family of Rizo Mustafić, an electrician who worked for the UN Battalion at Srebrenica, have filed a criminal complaint requesting that genocide charges be brought against three Dutch military officials: commander Thom Karremans, his deputy Rob Franken and second in command Berend Oosterveen, because Nuhanović's family members were forced out of UN compound (his father and brother were killed subsequently), as well as Mustafić who is still missing.^[131] The public prosecutor in The Netherlands has decided to open an investigation pursuant to the criminal complaint.^[132]

Serbian prosecutions

On 11 August 2010, Humanitarian Law Center, a human rights non-governmental organization from the Republic of Serbia, filed a criminal complaint with the Office of the War Crimes Prosecutor of the Republic of Serbia against an unspecified number of members of the former Army of the Republika Srpska (VRS) for the alleged commitment of the war crime of genocide in Srebrenica, according to Article 14 of the Criminal Code of the Federal Republic of Yugoslavia (KZ SRJ) with regards to Article 22 of the KZ SRJ as co-perpetrators.^[133]

Civil Suits

Bosnia and Herzegovina

In a case of Ferida Selimović et al. v. the Republika Srpska the Human Rights Chamber of Bosnia and Herzegovina decided on 49 applications comprising the "Srebrenica cases" which involved applications filed by immediate family members of Bosniak men presumed to have been killed as part of the mass executions during the Srebrenica genocide in July 1995. The cases raised issues under Articles 3, 8, and 13 of the European Convention on Human Rights, and of discrimination in connection with these rights under Article II(2)(b) of the Human Rights Agreement set out in Annex 6 to the General Framework Agreement for Peace in Bosnia and Herzegovina. The applicants alleged that they as close family members, either directly or indirectly, were themselves victims of alleged or apparent human rights violations resulting from the lack of specific information on the fate and whereabouts of their relatives last seen in Srebrenica in July 1995. They requested the authorities to bring the perpetrators to justice, and most also requested compensation for their suffering in an unspecified amount.

The Chamber relied on the Krstić trial judgment for the historical context and underlying facts, although it only utilized those factual portions of the Krstić judgment which were not included in the appeal that was underway at the time of the Chamber's decision. In its decision the Chamber concluded that Republika Srpska's failure to make accessible and to disclose information requested by the applicants about their missing relatives constituted a violation of its positive obligations to secure respect for their rights to private and family life, as guaranteed by Article 8 of the European Convention. Also, it held that Republika Srpska's failure to inform the applicants about the truth of the fate and whereabouts of their missing relatives, including conducting a meaningful and effective investigation into the massacre at Srebrenica in July 1995, violated their rights to be free from inhuman and degrading treatment, as guaranteed by Article 3 of the European Convention. Finally, the Chamber concluded that in failing to fulfill its obligations owed to the applicants under the European Convention, the Republika Srpska had discriminated against the applicants due to their Bosniak origin.

As for the reparations, the Chamber ordered Republika Srpska to disclose any information it had on the fate of the applicants relatives; to release any missing persons it had in custody; to conduct a full and meaningful investigation of the role of its authorities and armed forces in the Srebrenica massacre, its efforts to cover up the crime, and the fate of the missing persons, and to publish this report within six months of the decision; to publish the decision of the Chamber in the Serbian language in its Official Gazette; and to make a total donation of 4.000.000 Convertible Marks to the Srebrenica Genocide memorial.^[134]

United States of America

In 1994 two set of complaints (Doe v. Karadžić and Kadić v. Karadžić),^[135] 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".^[136] The district court dismissed both cases claiming that named statutes required "state action",^[137] 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".^[136] Karadžić was personally served with summons and complaint in each action during his visits to U.N. in New York,^[138] and he actively participated through his lawyers in the proceedings (Ramsey Clark, as his attorney),^[139] until the Supreme Court of the United States denied his request to review the decision of the court of appeals.^[140][141] 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,^[142] 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".^[143] 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.^[144] 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.^[145]

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,^[146] which is representing 11 plaintiffs including the foundation "Mothers of the Enclaves of Srebrenica and Žepa" (which represents 6,000 relatives of the victims),^[147] 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.^[148] 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.^[149][150] Plaintiffs have appealed the judgment (in relation to UN immunity),^[151] and first public hearings relating to this issue were held on 28 January 2010.^[152] The decision by the Court was made on 30 March 2010, by which the UN's absolute immunity was upheld.^[153][154] Plaintiffs have appealed this judgment as well.^[155]

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^[156] 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),^[157] while the family of Mustafić filed the suite^[158] because he was killed in similar circumstances.^[159] 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.^[159] On 10 September 2008, the Hague District Court ruled against the plaintiffs, noting that the state of the Netherlands cannot be held responsible for the acts or omissions of Dutchbat, since that contingent of troops was made available to the UN and, as a matter or principle, any of its acts are to be attributed strictly to the UN. At the same time it found that the acts of Dutchbat cannot be concurrently attributed to the Netherlands since, in the view of the Court, no evidence was presented that the Dutch government "cut across the United Nations command structure" by ordering the contingent to ignore or disobey UNPROFOR orders.^[160][161] On 5 July 2011, upon the appeal of the plaintiffs, the Dutch Appellate court held that the Netherlands was responsible for the three deaths indicated in the claim, and that it owns damages to the plaintiffs.^{[162][163][164][165][166]}

References and notes