Anthropology of East Europe Review

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THE CONFLICTS OF THE FORMER YUGOSLAVIA IN THE COURTS

Paul J. Magnarella
University of Florida
© 1996 Paul J. Magnarella,
All International Rights Reserved

The brutality of the conflicts in the States of the former Yugoslavia, especially Bosnia Herzegovina (B H), has aroused the indignation of the civilized world.1 After over three years of atrocities and a pounding of Serbian military sites in B H by NATO war planes and Tomahawk missiles, a peace accord brokered by US Assistant Secretary of State Richard Holbrooke in Dayton, Ohio finally brought a tentative peace to the region. Behind these headline events are a number of comparatively quiet court proceedings in Europe, the Balkans, and the United States that may have a greater impact on the minds, strategies and aspirations of future political military leaders than all of the weaponry dumped on this afflicted land and tragic people. Judicial events are occurring on two levels: on the international plane at the UN Tribunal in The Hague, and on the domestic plane in numerous national courts. All are applying post World War II humanitarian law created with the hope of curtailing, if not eliminating, the kind of inhumanity we have recently witnessed in too many corners of the world.

The UN Criminal Tribunal

The UN Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 with the aims of bringing war criminals to justice, discouraging further atrocities, and contributing to the restoration and maintenance of peace.2 Article 8 of the Tribunal's originating Statute extends the Tribunal's territorial jurisdiction "to the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and territorial waters." Its temporal jurisdiction extends from 1 January 1991 on. This temporal and territorial scope authorizes the Tribunal to consider serious crimes, regardless of the ethnicity (e.g., Serb, Croat, Bosnian, etc.) of their perpetrators or victims.

The Security Council authorized the Tribunal to apply "rules of international humanitarian law which are beyond any doubt part of customary law," and therefore authoritative law for all States (Para. 34 UN Doc. S/25704 (1993)). Those portions of conventional international humanitarian law that the Secretary General asserted were unquestionably part of international customary law are the laws applicable in situations of armed conflict as embodied in: the four Geneva Conventions of 1949; the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 1907; the Convention on the Protection and Punishment of the Crime of Genocide of 1948; and the Charter of the International Military Tribunal of 1945 ("Nuremberg Charter") (Para. 35 of UN Doc. S/25704,1993). Articles 2 to 5 of the ICTY Statute empower the Tribunal to prosecute individuals accused of ordering or committing genocide or grave breaches of the four Geneva Conventions, violating the laws or customs of war, or being responsible for crimes against humanity, which include the following crimes against any civilian population committed during an international or internal armed conflict: murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds, and other inhumane acts. Arguably, all of the crimes constituting "ethnic cleansing," a term closely associated with the conflicts in the former Yugoslavia, are contained in Articles 2 to 5 (see Petrovic 1994).3

On November 1, 1994, ICTY Prosecutor Richard Goldstone brought the Tribunal's first indictment, against Dragan Nikolic, a Bosnian Serb, who was the commander of the Susica prison camp in Vlasenica, in northeastern Bosnia. Nikolic allegedly participated directly in the beatings, torture and murder of camp prisoners. He was charged with grave breaches of the Fourth Geneva Convention of 1949, violations of the laws and customs of war, and crimes against humanity. As of mid March 1996, his arrest warrant had not been served.

On February 13, 1995 the Tribunal issued indictments against 21 Bosnian and other Serbs who were charged with committing atrocities in the summer of 1992 against Muslim and Croat civilian prisoners held at Omarska, a camp run by Bosnian Serbs in the Prijedor opstina (district) in northwestern Bosnia. Bosnian Serbs had reportedly confined over 3000 Bosnian Muslims and Croats in the Omarska camp from May 25 to August 29, 1992 under brutal conditions. Many prisoners were murdered, raped, sexually assaulted, and severely beaten. The specific charges of the indictments included crimes against humanity, genocide, violations of the law or customs of war, and grave breaches of the Geneva Conventions of 1949 (ICTY Indictments, 13 Feb. 1995).

The Tribunal forwarded the arrest warrants to the relevant authorities of the territories where the accused were believed to be located. Except for Dusko Tadic, who was being held in Germany, all of the accused were assumed to be in the Serbian controlled parts of the Republic of Bosnia Herzegovina. The authorities there refuse to recognize the Tribunal or to hand over persons it has indicted.

In April 1995 the Tribunal, upon Prosecutor Goldstone's formal request, asked the Bosnian government to defer to the Tribunal its investigation and prosecution of a group of Bosnian Croats, including political and military leaders, suspected of having murdered over 100 Muslims in the Lasva valley of central B H between October 1992 and May 1993. The B H government complied with the request. Rule 9(iii) of the Tribunal's Rules of Procedure and Evidence authorizes the Prosecutor to propose to a Trial Chamber that a formal request be made to a national court asking it to defer its own investigations or criminal proceedings to the Tribunal when they involve significant factual or legal questions that may have implications for the Tribunal's own investigations or prosecutions. The deferral request also asks the national authority to pass the results of its investigations over to the Tribunal's Prosecution Office. Persons being investigated are classified as "suspects," who may later be formally indicted. Any persons who are tried by the Tribunal cannot be tried again for the same crimes by a national court. Hence, by complying with a deferral request, a national government acknowledges its acceptance of the Tribunal's primacy.

On July 25, 1995, the Tribunal announced its second major set of indictments, against 24 Serbs, mostly Bosnians. These alleged war criminals included Milan Martic (then president of the Croatian Serb administration of Knin), Radovan Karadzic (then president of the Bosnian Serb administration of Pale), and Ratko Mladic (commander of the Bosnian Serb army). Other indictees included: commanders and interrogators of prison camps, the deputy commander of the "Grey Wolves" (a para military unit from Serbia), a police chief, and several local Bosnian Serb politicians. Earlier, the B H government had suspended its own judicial proceedings against these individuals and deferred their cases to the Tribunal at the latter's request.

In the indictments all are accused of crimes against humanity, violations of the laws or customs of war and grave breaches of the Geneva Conventions. In addition, Karadzic, Mladic, and two others are accused of the crime of genocide. More specifically, Martic is charged with war crimes in connection with the firing of cluster bombs into the central part of Zagreb on May 2 and 3, 1995. Karadzic and Mladic are charged with crimes arising from atrocities perpetrated against civilian populations throughout B H, for the sniping campaign against civilians of Sarajevo, and the taking of UN Peacekeepers as hostages and their use as human shields. Many of the lower level Bosnian Serbs were indicted for their alleged criminal activities in Bosanski Samac, Brcko, and Prijedor (ICTY Indictments, 25 July 1995). On November 16, 1995, the ICTY amended its indictments against Karadzic and Mladic to include alleged direct responsibility for atrocities committed in July 1995 against the Bosnian Muslim population of Srebrenica.

Even though Serbian authorities do not acknowledge the jurisdiction of the Tribunal and refuse to cooperate with it, General Mladic did retain Greek attorney Alexandros Lykourezos to formulate a legal defense (Reuters, Aug. 10, 1995). Lykourezos is famous for defending such notorious figures as former Greek banking tycoon George Koskotas, whose financial scandal helped bring down the Greek Socialist government in 1989. In August, the attorney told the press that he had obtained Mladic's file from the Tribunal and had begun to study it.

In reaction to these indictments, many Serbs have charged that the ICTY is simply an anti Serb creation without concern for crimes committed against Serbs by others. In several press statements, Prosecutor Goldstone responded that his office's investigations into allegations of serious violations of humanitarian law committed against Serb victims were being materially hampered by the low level of cooperation from the Yugoslavian government and the Serbian authorities in Knin and Pale. He said that his office was also examining allegations of war crimes committed by Muslim perpetrators and by members of the Croatian army. In March 1996, Goldstone announced that indictments against some Muslims were forthcoming.

Certain politicians and news commentators have criticized the Tribunal for its indictment of Karadzic, Mladic, and Martic, who, they argue, are essential parties to any effective peace negotiations. Despite these criticisms, the Tribunal has shown its determination to bring these alleged war criminals to justice. On August 2, 1995, the Tribunal conveyed a formal request to all UN members and Switzerland asking for information regarding any future international travel by these three indictees. Prosecutor Goldstone has stated that his strategy is to indict those in leadership positions, because he regards them as most responsible for war crimes (Schiller 1995: A1). Payam Akhavan (1995), a member of the Tribunal's prosecution team, further explained that underlying the prosecution's strategy is the assumption that creating the conditions for genuine and lasting reconciliation requires that the various ethnic peoples of the former Yugoslavia be absolved of collective guilt for the horrific crimes that have been instigated by their leaders. The Tribunal, he claims, can accomplish this by bringing criminal leaders to justice.

On September 9, 1995, the Tribunal indicted its 47th person and first non Serb Ivica Rajic a Bosnian Croat, who the prosecutor claims was a commander in the self styled Croatian Defense Force (HVO) which attacked the village of Stupni Do in central Bosnia in October 1993, killing at least 16 Muslim civilians, forcing over 230 others to flee, and razing village homes (Stichting A.N.P. 1995). A Tribunal spokesman said he was fairly confident that this Croatian indictee, who was being held on unrelated charges in a Croat run jail in Mostar, would be handed over to the Tribunal for trial. But instead, the authorities in Mostar set him free.

On November 7, 1995 the Tribunal indicted three senior officers in the Yugoslav Peoples Army (JNA) for their alleged responsibility in the mass killing at Ovcara, near Vukovar, of approximately 260 non Serb male captives, who had been removed from Vukovar hospital on November 20, 1991. The accused are: then Colonel Mile Mrksic, Captain Miroslav Radic, and then Major Veselin Sljivancanin. After the siege of Vukovar, Mrksic and Sljivancanin were promoted to general and colonel, respectively. They continue to serve in the JNA, and Yugoslav authorities refuse to serve the arrest warrants and hand them over to the Tribunal.

The ICTY indicted six more Bosnian Croats on November 10, 1995. They included: Dario Kordic (former vice president of the Bosnian Croat community of Herceg Bosna), Tihofil Blaskic (former chief of staff of the Croatian Defense Council HVO), and four other prominent members of the former Herceg Bosna. They are accused of criminal attacks on Bosnian Muslim civilians in the Lasva River Valley area of Central Bosnia from about January to May 1993. Although Croatian authorities have generally cooperated with the Tribunal more than have the Serbs, they still refuse to hand over their own kind. The day after the indictment, Croatian President Franjo Tudjman appointed Blaskic to the Croatian army's general inspectorate, a move that also brought Blaskic Croatian citizenship. In January 1996, a news correspondent reported that Kordic was working as a tourist guide in the pilgrimage town of Medjugorie (Squitieri 1996).

On March 1, 1996, The ICTY indicted Bosnian Serb General Djordo Djukic, who had earlier been arrested by Bosnian Muslim authorities, when his car accidentally strayed into their control zone. Djukic was charged with involvement in the indiscriminate shelling of Sarajevo civilian areas in which thousands of people were killed.

As of mid March 1996, the ICTY had indicted 53 persons (six twice), comprised of 46 Serbs and seven Croats. However, it had only Djukic and Tadic in custody. The latter's trial is scheduled to begin in May 1996. In all other cases, local authorities refused or failed to serve arrest warrants.

According to Rule 61 of the Tribunal's Rules of Procedure and Evidence, in cases where governments refuse to arrest and extradite indictees, the Tribunal may issue international arrest warrants and inform the UN Security Council of the lack of cooperation. An international arrest warrant transforms the accused into an international fugitive and the country where he is located into an "open air prison." Furthermore, should the accused hold any official office, his ability to function internationally (and possibly domestically) could be adversely affected by his status as a "wanted person." As of mid March 1996, the ICTY had issued international arrest warrants for Dragan Nikolic and Milan Martic, who is believed to be living in Banja Luka, a Serbian controlled city. In March the prosecutor announced that he would also request international arrest warrants for the three JNA officers: Mile Mrksic, Miroslav Radic, and Veselin Sljivancanin. The UN, US, and West European countries have been applying pressure to all the parties to cooperate with the Tribunal by supplying evidence, witnesses and extraditing indictees on their territories. Threatened sanctions include withholding all or parts of promised economic aid.

The Conflict in West European Courts

Some of the obligations that ratifying States ("High Contracting Parties") have under the Geneva Conventions are to: 1) legislate penal sanctions for persons committing or ordering grave breaches; 2) search for and arrest such persons regardless of their nationalities, and 3) either try such persons in their own courts or extradite them to another High Contracting Party that will try them (Art. 49, Geneva Convention I). The UN Convention on the Prevention and Punishment of Genocide (Arts. 5 6) and the UN Convention against Torture (Arts. 4 8) contain similar obligations.

Under such humanitarian law legislation, several European states have arrested alleged violators from the former Yugoslavia, and some have tried them. Those arrested are usually refugees, whom other refugees identify and report to the police. For example, Refic Saric, a Bosnian Muslim refugee, was arrested by Danish police after about twenty other refugees identified him as a prison guard who had tortured fellow Muslims in Bosnia. In November 1994, a Danish court convicted Saric of 14 counts of gross violence, leading to two deaths of fellow Muslims in 1993 in a prison camp set up by Croats at Dretelj near Mostar, Bosnia. Saric, who had been a prisoner turned guard in the Bosnian camp, received an eight year sentence. In August 1995, Denmark's Supreme Court upheld his conviction. Because Saric had been declared mentally ill at the time of trial, he will serve his time in a psychiatric ward and then be expelled from Denmark (Reuters, Aug. 15, 1995).

In 1994 German authorities arrested Bosnian Serb Dusko Tadic after he had been spotted by Bosnian Muslim refugees in Munich. He was accused of having tortured to death at least ten people in the Omarska prison camp. Rather than prosecute him, however, German authorities sent him to the Hague upon the request of the Tribunal. German authorities arrested another suspected war criminal ("Nicola J.") in December 1995. He allegedly was the leader of a Serbian paramilitary group involved in the mass murder and expulsions in the Doboj area of Bosnia in 1992. A German federal prosecutor said this suspect might also be handed over to the ICTY.

Some European arrests have not led to convictions. For example, in May 1994 Austrian authorities arrested Dusko Cvetkovic, a Bosnian Serb, in Salzburg and charged him with murder and genocide of Muslims from the Bosnian village of Kucice in July 1992. A year later, an Austrian court acquitted him of charges for lack of sufficient evidence. Swedish authorities, in June 1995, released a Serb whom they had arrested on charges of committing murder while serving as a guard at the Keraterm concentration camp in northwest Bosnia. The authorities cited insufficient evidence as the reason for the release, but the suspect claimed that Bosnian refugees in Sweden had falsely accused him because he was a Serb married to a Muslim (Agence France Presse, 7 June 1995).

Court Actions in the Former Yugoslavia

Several de jure and de facto states of the former Yugoslavia have also initiated judicial proceedings against alleged war criminals. As noted above, B H has deferred numerous cases to the UN Tribunal, but it continues others. In January 1966, Croatian Foreign Minister Mate Granic said his country would soon try 20 suspected war criminals, and over 1,000 more (presumably, mostly Croatian Serbs) had been or were in the process of begin investigated (Arraf 1996). Earlier, in March 1995, a Croatian court charged Zeljko Raznjatovic ("Arkan") with committing genocide while commanding a Serb militia during the 1991 war in Croatia. On Croatia's request, Interpol has reportedly issued an international arrest warrant for Arkan, who at last report was chairman of the Serbian Unity Party and leading anti-Albanian warlord in Serbia's Kosovo province (Jane's Intell. Rev. 1996).

Even the Serbian administration in Pale had been adjudicating accused war criminals. In July 1995, a Bosnian Serb district court in Brcko tried in absentia and convicted 37 Croats of grave crimes against POWs. It sentenced 25 members of the Croat Defense Council (HVO) to 12 years imprisonment and five members of the 108th HVO Motorized Brigade to ten years (BBC July 10, 1995). Presumably, these convictions in absentia of ethnic others by a former, self proclaimed state without international recognition will have questionable legal significance in the post Dayton era.4 However, in February 1996 a Bosnian Serb court in Doboj indicted and issued arrest warrants for 461 Muslims, charging them with illegally detaining Serbs in camps and shelling civilian targets (BBC, Feb. 26, 1996). These kinds of judicial actions, whereby the courts of one ethnic zone indict other ethnics for alleged war crimes raise a number jurisdictional questions yet to be resolved in the new B H.

The new Yugoslavian State had created the Belgrade based Committee for Collecting Evidence on War Crimes against Humanity and Human Rights. In April 1995, Committee head, Zoran Stankovic, said his government had sent information [but not the actual evidence] to the ICTY concerning 178 alleged cases of brutal murders committed against Serbs in B H and Croatia (Cutter 1995). The ICTY has not yet acted on that information, probably because Yugoslavia has generally not cooperated with the ICTY by permitting independent verification on its territory or by sending needed witnesses or indicted persons to the Hague.

As indicated above, most persons charged with war crimes in the Balkan courts have been ethnic others. In March 1996, however, an unusual event occurred: Serbia's security officials arrested Drazen Erdemovic, a Bosnian Serb, and accused him with taking part in the mass murder of civilians near Srebrenica in July 1995. Erdemovic reportedly confessed to the crimes and openly admitted killing scores of civilians. Because of his willingness to talk and the fact that he had served under General Ratko Mladic, the ICTY formally requested his extradition to the Hague, where he is expected to be an explosive witness for the prosecution. Whether Serbian authorities will send him or keep him locked up away from reporters remains to be seen. The West is pressuring President Milosevic to extradite him as well as others.

U.S. Judicial Action

In contrast to the criminal proceedings described above, the Bosnian conflict has entered U.S. courts in the form of civil tort actions. Such actions do not criminalize defendants, but can result in large monetary judgments for plaintiffs. A problem winning plaintiffs face, however, is collecting on the judgments, when their foreign defendants have few or no assets in the United States. An advantage of civil tort suits is that a plaintiff can win a default judgment when a properly notified defendant fails to appear in court without good cause. By contrast, American criminal trials in absentia are uncommon. The UN Tribunal's Statute prevents it from conducting trials in absentia. In both the U.S. and The Hague, criminal defendants must be in the custody of the court before being tried.

In 1993 two related suits filed by Doe et al. and Kadic et al. (866 F. Supp 734 (1994) were brought against Radovan Karadzic in the US District Court for the Southern District of New York under federal legislation known as the Alien Tort Act (ATA) and the Torture Victim Protection Act (TVPA). Together, the two suits sought compensation and punitive damages on behalf of thousands of Muslim and Croatian women, children and men who claim they were victims of the following torts allegedly inflicted by Bosnian Serb military forces under Karadzic's command: genocide, war crimes, summary execution, wrongful death, torture, assault and battery, rape and intentional infliction of emotional harm.

Judge Peter K. Leisure dismissed both suits for lack of subject matter jurisdiction, reasoning that the federal statutes being relied on by plaintiffs apply only to tortuous conduct in violation of the law of nations and attributable at least in part to persons acting under the color of national law. Karadzic, the court concluded, was not an official of any recognized state. Therefore, his actions and those of his followers ("while grossly repugnant") are those of private individuals, not covered by either ATA or TVPA.

The plaintiffs appealed to the US Second Circuit Court, which reversed the District Court's decision on October 13, 1995. The Circuit Court held that subject matter jurisdiction exists; that Karadzic may be tried for genocide, war crimes, and crimes against humanity in his private capacity and for other violations in his capacity as a de facto state actor. The Circuit Court also held that Karadzic (who had been in the US on UN and other business) had been properly served legal process (suit notification), because at the time of service he was outside of the UN headquarters district. Hence, the case goes back to the District Court.

US courts look to the executive branch when deciding whether state recognition, head of state status, or a political question exists, such that a trial might have negative consequences for US foreign relations. In this case, the Department of State notified the Circuit Court that it had no concern over the political question doctrine. Because the US administration had not granted Karadzic or his self proclaimed Republika Srpska formal recognition, he does not enjoy head of state immunity from the personal jurisdiction of US courts.

Amnesties and Bargaining Chips

Many observers of the Bosnian tragedy maintain that political and military leaders indicted by the UN Criminal Tribunal will not agree to a final peace settlement unless they receive total amnesty. The US State Department refused to include the indictments as bargaining chips in the Dayton peace negotiations. Department spokesmen maintained that the US supports the Tribunal and believes accused war criminals should be tried. This was a wise position, because the US has no authority to negotiate over Tribunal indictments. Although governments can bargain away the convictions and indictments of their own national courts at an international negotiating table, they cannot do the same for UN Tribunal indictments and convictions. As long as the Tribunal exists under its present Statute, it is independent of any national government. Only the UN Security Council, which created the Tribunal, can dissolve it and thereby freeze its outstanding indictments and terminate any on going judicial proceedings. However, if this, or any future international criminal tribunal, is to be credible, all states must honor their legal obligations to it.

Notes

1. The author served as an expert on mission legal consultant to the UN Criminal Tribunal for the Former Yugoslavia in The Hague during the summer of 1995. The ideas he expresses here do not necessarily represent those of the Tribunal.

2. For the background and structure of the Tribunal, see Magnarella (1995).

3. For a description of the ICTY Statute articles that incorporate the above conventions and charter, see Magnarella (1995).

4. The leaders of Croatia, B H, and Serbia agreed to the Dayton Accord in Dayton, Ohio on November 21, 1995.

References

Agence France Presse, 1995, Sweden Releases Serb Suspected of Being Detention Camp Guard, June 7.

Akhavan, Payam., 1995, Correspondence, American Journal of International Law 89:92 93.

Arraf, Jane, 1996, Croatia to Try Twenty suspected War Criminals. Reuters, Jan. 22.

BBC Summary of World Broadcasts, 1995, Court Charges Croat Fighters with War Crimes. July 10.

Cutter, Natela, 1995, Belgrade Reveals War Crimes Evidence, UPI, April 14.

Jane's Intelligence Review, 1996, Europe, 8:4:149. April 1.

Magnarella, Paul J., 1995, The International Criminal Tribunal for the Former Yugoslavia: Its Background, Legal Character and Potential. Anthropology of East Europe Review 13:1:54 60..

Petrovic, Drazen, 1994, Ethnic Cleansing An Attempt at Methodology, European Journal of International Law 5: 342 59.

Reuters, 1995, Bosnian Serb General Mladic Hires Greek Lawyer, Aug. 10.

Reuters, 1995, Danish Court Upholds Bosnian's Jail Term, Aug. 15.

Schiller, Bill, 1995, New Way to Battle War in Bosnia: In Court, Toronto Star May 21, p. 1A.

Squitieri, Tom, 1996, The Priority is Peace Keeping, Not Those Accused of Slaughter, USA Today, Jan. 4, p. 7A.

Stichting Algemeen Nederlands Presbureau, 1995, UN Tribunal Charges First Croat with War Crimes, Sept. 7, 1995.

United Nations documents are referenced in the text by number.