Credit: ICTY
On December 15, 2015, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) overturned the Trial Chamber’s decision to acquit two high-level Serbian government officials charged with war crimes and crimes against humanity in connection with the forced displacement of non-Serbs from Bosnia and Croatia, and ordered their retrial. The officials, Jovica Stanišić and Franko Simatović, are being retried on all counts of the original indictment before the Mechanism for the International Criminal Tribunals (MICT), the body responsible for carrying out the residual work of the ICTY and its counterpart tribunal for Rwanda as both complete their mandates. In other ICTY news, the tribunal last month charged three individuals with intimidating witnesses in the pending trial of Vojislav Šešelj for similar crimes against non-Serbs; and, in September 2015, it granted the early release of Vladimir Lazarević, convicted in 2009 in connection with the forcible deportation of Albanians from Kosovo.
In May 2013, the ICTY Trial Chamber acquitted Jovica Stanišić, formerly Deputy Chief and Chief of the State Security Service (SDB) of the Ministry of Interior of the Republic of Serbia, and Franko Simatović, formerly Deputy Chief of the Second Administration of the Serbian SDB and special advisor in the SDB, on all counts of the indictment, including joint criminal enterprise liability and aiding and abetting with respect to the forcible and permanent removal of the majority of the non-Serbian population from Croatia and Bosnia-Herzegovina between April 1991 and at least December 1995. The indictment alleged that in doing so, the defendants committed crimes against humanity and violations of the laws or customs of war, including persecution, murder, and deportation.
Last month, the Appeals Chamber ordered Stanišić and Simatović to be retried on all counts of the indictment. Specifically, the Appeals Chamber concluded that the Trial Chamber erred in its factual and legal determinations concerning joint criminal enterprise liability as well as the legal standard for aiding and abetting. See ICTY, Prosecutor v. Stanišić and Simatović, Case IT-03-69-A, Appeals Chamber Judgment, 15 December 2015. See also ICTY, Appeal Judgment Summary. Both Stanišić and Simatović pleaded not guilty to the charges against them at their retrial, which began on December 18, 2015. [Balkan Insight: Plead Not Guilty]
Contempt of Court Charges
In another case, the ICTY proceeded with contempt of court charges against three individuals accused of intimidating witnesses in the case against Vojislav Šešelj. It released redacted versions of the Order in Lieu of Indictment and the arrest warrants for Petar Jojić, Vjerica Radeta, and Jovo Ostojić on December 1, 2015. On December 4, 2014, Petar Jojić, a defense attorney for Vojislav Šešelj; Vjerica Radeta, a defense attorney for Vojislav Šešelj and member of the Serbian parliament; and Jovo Ostojić, a former war companion of a witness in the case of Prosecutor v. Vojislav Šešelj, were charged with contempt for allegedly threatening, intimidating, offering bribes to, or otherwise interfering with two witnesses in the ICTY trial against Vojislav Šešelj and a related contempt case against him. The ICTY publicized the warrant “in the interests of justice,” noting concern that none of the three suspects had been arrested since confidential warrants had been issued almost a year ago on January 19, 2015. [ICTY Press Release: Contempt ; InSerbia] See also ICTY, Šešelj (IT-03-67).
Early Release of Vladimir Lazarević
Additionally, Vladimir Lazarević, the former chief of staff of the Yugoslav Army’s Pristina Corps, was released on December 1, 2015 from the UN detention center in The Hague after serving two-thirds of his 14-year prison sentence. The ICTY found that Lazarević aided and abetted the deportation of Albanians from Kosovo and that he had knowledge that crimes were being committed against civilians. See ICTY, Prosecutor v. Šainović et al., Case IT-05-87-T, Trial Chamber Judgment Volume 1 of 4, 26 February 2009. Approximately 11,000 Kosovo Albanians were killed and 700,000 were expelled to Albania, Montenegro, and Macedonia. [Balkan Insight: Release; Balkan Insight: Freed]
Prosecutor v. Stanišić and Simatović
Trial Chamber Judgment
The prosecution alleged that Jovica Stanišić, formerly Deputy Chief and Chief of the State Security Service (SDB) of the Ministry of Interior of the Republic of Serbia, and Franko Simatović, formerly Deputy Chief of the Second Administration of the Serbian SDB and special advisor in the SDB, participated in a joint criminal enterprise between April 1991 until at least December 31, 1995 in order to forcibly and permanently remove the majority of the non-Serbian population from Croatia and Bosnia-Herzegovina, thereby committing crimes against humanity and violations of the laws or customs of war, including persecution, murder, and deportation. Additionally, the prosecution alleged that the accused planned, ordered, or aided and abetted in the planning, preparation, or execution of the aforementioned crimes. See ICTY, Prosecutor v. Stanišić and Simatović, Case IT-03-69-T, Trial Chamber Judgment Vol. I of II, 30 May 2013, 10-11.
The Trial Chamber acquitted the accused of all the counts in the indictment, finding that the prosecution had not established beyond a reasonable doubt that Stanišić and Simatović had the necessary intent (mens rea) to participate in a joint criminal enterprise. The Trial Chamber also found that the prosecution had not established beyond a reasonable doubt that Stanišić and Simatović had committed the necessary act (actus reus) to aid and abet. See ICTY, Prosecutor v. Stanišić and Simatović, Case IT-03-69-T, Trial Chamber Judgment Vol. II of II, 30 May 2013, 828-48, 851. See also ICTY, Appeal Judgment Summary.
Appeals Chamber Judgment
The prosecution filed an appeal against the Trial Chamber’s judgment in the case of Prosecutor v. Stanišić and Simatović. The Appeals Chamber heard the oral arguments of the parties on July 6, 2015. See ICTY, Appeal Judgment Summary.
Requisite Intent for Joint Criminal Enterprise Liability
The prosecution argued that the Trial Chamber erred in its legal and factual determination that Stanišić and Simatović lacked the requisite intent (mens rea) necessary for joint criminal enterprise (JCE) liability. With respect to this ground, the Appeals Chamber concluded that the Trial Chamber erred in not providing a reasoned opinion on the elements of JCE liability. See ICTY, Prosecutor v. Stanišić and Simatović, Case IT-03-69-A, Appeals Chamber Judgment, 15 December 2015, 10-12, 42.
In reaching this conclusion, the Appeals Chamber noted that the Trial Chamber erred first in not determining whether the acts (actus reus) necessary for JCE liability were established in this case, specifically the existence of a common criminal purpose, a plurality of persons, and the accused’s contribution to the common criminal purpose. Additionally, the Appeals Chamber noted that the Tribunal’s Rules of Evidence and Procedure require the trial chamber to “give a reasoned opinion in writing,” which includes relevant legal findings that are necessary to make a determination of guilt. See id. at 36-37.
The Appeals Chamber went on to state that the requisite intent for JCE liability can be inferred from circumstantial evidence, including a person’s knowledge of the criminal purpose or the crimes involved, participation in the crimes, or the implementation criminal purpose. Therefore, the Trial Chamber erred in requiring direct evidence to establish Stanišić and Simatović’s intent. The Appeals Chamber reasoned that because the Trial Chamber failed to make findings on the existence or scope of a common criminal purpose shared by a plurality of persons, including the accused’s contribution, the Trial Chamber could not have adequately adjudicated the defendants’ mens rea. See id. at 38-40.
Responsibility for Aiding and Abetting
The prosecution argued that the Trial Chamber erred in its legal determination that the acts of the aider and abettor must be specifically directed to assist in the commission of a crime.
With respect to this ground, the Appeals Chamber agreed with the prosecution’s argument. In reaching its conclusion, the Appeals Chamber noted that neither the jurisprudence of the ICTY or the International Criminal Tribunal for Rwanda (ICTR) nor customary law require specific direction as an element of aiding and abetting. See id. at 47-50.
Disposition of the Appeals Chamber
The Appeals Chamber exercised its discretion in ordering a retrial on all counts against Stanišić and Simatović. In reaching its decision, the Appeals Chamber noted that it would be not be appropriate for it to make the necessary factual and legal determinations concerning JCE liability and aiding and abetting, particularly given the complexity of the case and its inability to hear testimony or statements from 133 witnesses. See id. at 57-61.
Next Steps
The retrial, which began on December 18, 2015, is now under the purview of the International Mechanism for International Criminal Tribunals (MICT), which is taking over the ICTY’s cases in preparation for the ICTY’s closure in 2017. Both Stanišić and Simatović plead not guilty to the charges against them. [Balkan Insight: Plead Not Guilty]
Some organizations, including the Association of Parents of Children Killed During the Sarajevo Siege and Documenta – Centre for Dealing with the Past, noted that a retrial could provide victims with justice. However, legal experts have expressed concern regarding the Appeals Chamber’s judgment in the Stanišić and Simatović case, noting that the different ICTY chambers use inconsistent approaches and legal standards, which leads to the unequal treatment of defendants. [Balkan Insight: Retrial]
Additional Information
The International Criminal Tribunal for the former Yugoslavia (ICTY) was created by the United Nations in 1993 to address serious violations of international humanitarian law that occurred in the course of conflicts in the Balkans during the 1990s. The ICTY was the first war crimes tribunal established by the UN Security Council and has been integral in the development of post-conflict resolution and international humanitarian law. See ICTY, About the ICTY.
The Tribunal’s jurisdiction extends to serious violations of international humanitarian law in the territory of the former Yugoslavia beginning in 1991 and to the individuals responsible for those crimes. The Tribunal does not have jurisdiction over organizations, political parties or other legal entities. See ICTY, Mandate and Crimes under ICTY Jurisdiction. Since its inception, the ICTY has indicted 161 persons for genocide, crimes against humanity, violations of the laws and customs of war, and grave breaches of the Geneva Convention. See ICTY, ICTY: Facts and Figures.
For more information on the conflict in Kosovo, see BBC’s Kosovo Profile. For more information on international criminal law or the International Criminal Tribunal for the former Yugoslavia, visit IJRC’s Online Resource Hub.