This is a comprehensive list of prosecutions brought against individuals for the crime of genocide in Bosnia and Herzegovina, and international cases brought against states for the same crime. Additionally, civil law cases brought against individuals and states seeking damages, in relation to the crime of genocide, are also listed.
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Main article: 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]
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] The overview of the case-law indicates that most of the convictions were done under the joint criminal enterprise doctrine and aiding and abetting mode of liability, and comparatively less under the command responsibility doctrine.[3]
In 1998 General-Major Radislav Krstić[4] 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.[5] 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.[6] Krsić was subsequently transferred to the United Kingdom to serve his prison sentence at Wakefield Prison,[7] but was later transferred to Long Lartin Prison.[8]
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:
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."[13]
As for the individual criminal responsibility the Chamber made the following rulings:
The Appeals chamber issued its judgment on 30 January 2014. Ljubomir Borovčanin did not appeal the trial judgement and was transferred to Denmark in 2011 to serve his 17-year sentence, while Milan Gvero died, and thus the Appeals chamber terminated proceedings against him in March 2013 and held the Trial Judgement to be final in his regard. Regarding the rest, the chamber made the following rulings:[14][15]
Radovan Karadžić (accused of genocide and complicity in genocide in several municipalities within Bosnia and Herzegovina, initially including: Bijeljina, Bratunac, Bosanski Šamac, Brčko, Doboj, Foča, Ilijaš, Ključ, Kotor Varoš, Bosanski Novi, Prijedor, Rogatica, Sanski Most, Srebrenica, Višegrad, Vlasenica, Zavidovići and Zvornik,[16] but later excluding Brčko, Kotor Varoš and Višegrad[17]). Karadžić was arrested in Belgrade on 21 July 2008, and was transferred into the ICTY custody in the Hague nine days later on 30 July.[18] Karadžić declined to enter a plea at his first appearance before the war crimes tribunal on 31 July 2008,[19] a formal plea of "not guilty" was then made on his behalf by the judges.[20] His trial commenced on 26 October 2009.[21] Karadžić 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.[22]
On 28 June 2012 the Trial Chamber made its oral ruling on motion for a judgement of acquittal, pursuant to Rule 98 bis of the Tribunal's Rules of Procedure and Evidence, where it granted Karadžić's motion in relation to count one of the indictment in which he was charged with genocide for the crimes committed between 31 March 1992 and 31 December 1992 in several municipalities of Bosnia and Herzegovina, leaving only the case of Srebrenica as a count of genocide.[23] On 11 July 2013 the Appeals Chamber reversed the Trial Chamber's acquittal of Karadžić for genocide under Count 1 of the Indictment, and remanded the matter to the Trial Chamber. The Appeals Chamber found that the Trial Chamber erred in fact in concluding that there was no evidence, taken at its highest, based upon which a reasonable trier of fact could be satisfied that Karadžić and other alleged JCE members possessed genocidal intent, and that this error resulted in a miscarriage of justice.[24]
On 24 March 2016 the Trial Chamber of the ICTY delivered its first-instance verdict against the accused. With regards to the counts of genocide, it found Karadžić not guilty on count 1, since it was not satisfied that genocide was committed in the seven municipalities, namely Bratunac, Foča, Ključ, Prijedor, Sanski Most, Vlasenica, and Zvornik, where the alleged persecutory campaign included or escalated to include conduct and intent which amounted to genocide. In relation to count 2, the Trial Chamber found Karadžić responsible for genocide on the basis of his participation in the Srebrenica joint criminal enterprise.[25]
It has been argued that the first-instance verdict against Karadžić, in relation to his conviction for the crime of genocide, "demonstrates an evolution in judicial interpretation of the [Genocide] Convention, as ICTY judges in Karadžić appear more willing to infer genocidal intent and to embrace a generally broader view of the Convention".[26]
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.[27] 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).[28] On 4 July 2011 Mladić failed to enter a plea, after which a plea of not guilty was entered on his behalf, while on 8 December 2011 he pleaded not guilty (to the new charge in the third amended indictment). His trial commenced on 16 May 2012.[29] On 15 April 2014 the Trial Chamber I rejected in their entirety Mladić's submissions for acquittal made under Rule 98 bis of the Tribunal's Rules of Procedure and Evidence, relating to two counts of genocide and charges relating to a number of individual crimes in various other counts of the indictment.[30][31]
On 31 May 2007, Zdravko Tolimir (aka: 'Chemical Tolimir'), long time fugitive and a former Assistant Commander for Intelligence and Security of the VRS 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.[32] Tolimir is infamous for issuing request to use chemical weapons during genocide to gas civilians so Bosnian troops could surrender.[33] Tolimir is thought to be one of the main organizers of the network helping top war crimes indictee Ratko Mladić elude justice.
On 3 July 2007 Tolimir did not enter a plea, after which a plea of not guilty was entered on his behalf, while on 16 December 2009 he pleaded not guilty to new charges. His trial commenced on 26 February 2010.[34] The trial chamber issued its judgment on 12 December 2012 by which it found Tolimir guilty, among other things, of genocide and conspiracy to commit genocide. He was sentenced to life imprisonment.[35][36]
Individuals indicted by ICTY for genocide in which such charges were withdrawn, with the accused pleading guilty to crimes against humanity:
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.[64]
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]".[64] Many analysts,[who?] 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.[64]
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.[102][103] 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.[104] 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. [102][103][105]
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."[108]
On 22 October 2013 the Constitutional Court of Bosnia and Herzegovina upheld the appeals of Milenko Trifunović, Aleksandar Radovanović, Brano Džinić, Slobodan Jakovljević, Petar Mitrović and Branislav Medan, finding that the Court of Bosnia and Herzegovina had violated their rights from Article 7 of the European Convention of Human Rights, when it applied the new Criminal Code of Bosnia and Herzegovina, instead of the one that was in force when the crime of genocide was committed. The cases were remanded to the Court of Bosnia and Herzegovina for a new trial.[109][110][111][112] Pursuant to the decision of the Constitutional Court the Court of Bosnia and Herzegovina terminated the execution of the sanction of imprisonment for the accused and released them from prison before the initiation of new trials.[113][114]
On 29 April 2014 the Panel of the Section I for War Crimes of the Appeals Division of the Court of BiH delivered a judgment granting in part the appeals filed after the decision of the Constitutional Court of Bosnia and Herzegovina, thus revising the first instance verdict of 29 July 2008 regarding the legal qualification of the offense, and finding the accused guilty of the criminal offense of genocide under Article 141 of the Criminal Code of SFRY as read with Article 24 (aiding and abetting) of the said Code, and sentencing the accused Milenko Trifunović, Brane Džinić, Aleksandar Radovanović, Slobodan Jakovljević and Branislav Medan to 20 years imprisonment each.[115]
In a separate judgment the Appellate Panel partially accepted the appeal of Petar Mitrović and found him guilty of the criminal offense of genocide, but as an accessory (aiding and abetting), and sentenced him to 28 years of imprisonment.[116]
On 22 October 2013 the Constitutional Court of Bosnia and Herzegovina upheld the appeal of Petar Mitrović, finding that the Court of Bosnia and Herzegovina had violated his rights from Article 7 of the European Convention of Human Rights, when it applied the new Criminal Code of Bosnia and Herzegovina, instead of the one that was in force when the crime of genocide was committed. The case was remanded to the Court of Bosnia and Herzegovina for a new trial. Pursuant to the decision of the Constitutional Court the Court of Bosnia and Herzegovina terminated the execution of the sanction of imprisonment for the accused and released him from prison before the initiation of new trial.
The Panel of the Section I for War Crimes of the Appeals Division of the Court of BiH sent out on 29 April 2014 a verdict in this case accepting in part the appeal of defense for the accused, thus revising the previous judgment in relation to its legal qualification, finding the accused Petar Mitrović guilty of the criminal offense of genocide, now under the Criminal Code of SFRY, as an accessory (aiding and abetting), and sentencing him to 20 years imprisonment.[117]
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.[107][108] The Appellate Division made its verdict on 5 May 2010 by which it had acquired Stupar of all charges,[118] 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.[119]
Milorad Trbić, a former reserve Captain of the Zvornik brigade of the army of the Republika Srpska,[120] 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.[121][122] 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.[123][124]
On 16 October 2009 the Appellate Panel of the Court of Bosnia and Herzegovina, following a public hearing, refused as unfounded the appeals submitted by the Prosecutor's Office of Bosnia and Herzegovina, and the Defence Counsel, and confirmed the verdict and the sentence in its entirety.[125][126]
On 6 November 2014 the Constitutional Court of Bosnia and Herzegovina upheld the appeal of Milorad Trbić finding that the Court of Bosnia and Herzegovina had violated his rights from Article 7 of the European Convention of Human Rights, when it applied the new Criminal Code of Bosnia and Herzegovina, instead of the one that was in force when the crime of genocide was committed. The case was remanded to the Court of Bosnia and Herzegovina for a new trial.[127] After the decision of the Constitutional Court the Panel of the Appellate Division of Section I for War Crimes of the Court of Bosnia and Herzegovina on 3 February 2015 sent out the Verdict dated 19 January 2015 under which the judgment of the first instance court is revised in terms of the application of the Criminal Code and decision as to the sanction and so the actions for which Trbić is found guilty under the first-instance judgment are defined as the criminal offense of Genocide in violation of Article 141 of the Criminal Code of the Socialist Federative Republic of Yugoslavia taken over based on the Law on Application of the Criminal Code of Bosnia and Herzegovina and Criminal Code of the Socialist Federative Republic of Yugoslavia as read with Article 22 (co-perpetration) of the said Code. The Court revised the judgment in terms of the sanction as well, and so pronounced on Trbić a prison sentence for a term of twenty years. The remaining part of the judgment of the first-instance court remained unchanged.[128]
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.[129] 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 men 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.[130] On 11 May 2011 the Panel of the Court's Appellate Division of the Section I for War Crimes, following a public session, delivered an Appellate Decision revoking the Trial Verdict and ordering a retrial before the Appellate Panel.[131][132]
On 25 January 2012 the Chamber of the Appellate Division of the Section I for War Crimes, following a public session, delivered the second-instance verdict by which Radomir Vuković was found guilty of perpetrating the criminal offense of aiding and abetting in genocide, and was sentenced to long-term imprisonment of 31 years. Zoran Tomić was acquitted.[133]
On 27 October 2015 the Constitutional Court of Bosnia and Herzegovina upheld the appeal of Radomir Vuković finding that the Court of Bosnia and Herzegovina had violated his rights from Article 7 of the European Convention of Human Rights, when it applied the new Criminal Code of Bosnia and Herzegovina, instead of the one that was in force when the crime of genocide was committed. The case was remanded to the Court of Bosnia and Herzegovina for a new trial.[134] After the decision of the Constitutional Court the Panel of the Appellate Division of Section I for War Crimes of the Court of Bosnia and Herzegovina on 17 December 2015 sent out the Verdict under which the judgment of the first instance court is revised in terms of the application of the Criminal Code and decision as to the sanction and so the actions for which Vuković is found guilty under the first-instance judgment are defined as the criminal offense of Genocide in violation of Article 141 of the Criminal Code of the Socialist Federative Republic of Yugoslavia taken over based on the Law on Application of the Criminal Code of Bosnia and Herzegovina and Criminal Code of the Socialist Federative Republic of Yugoslavia. The Court revised the judgment in terms of the sanction as well, and so pronounced on Vuković a prison sentence for a term of twenty years. The remaining part of the judgment of the first-instance court remained unchanged.[135]
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 period between July 9 and 21, 1995, whereas in the 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, 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.[136][137]
On 26 December 2012 the Chamber of the Appellate Division of the Section I for War Crimes, following a public session, delivered the second-instance verdict by which it revoked the Trial Verdict with regards the accused Momir Pelemiš and ordered a retrial before the appeals chamber. It also partially changed the judgment against Branko Perić, such that he is re-sentenced to 11 years imprisonment.[138]
The main trial before the Panel of the Section I for War Crimes of the Appellate Division of the Court of BIH was initiated on 14 February 2013, and the second-instance verdict was pronounced on 13 June 2013. The Appellate Division found the accused not guilty of the crime of genocide.[139]
On 22 January 2010 the Court of Bosnia and Herzegovina confirmed the Indictment in the Duško Jević et al. case, charging the accused Duško Jević, Mendeljev Đurić and Goran Marković with the criminal offense of genocide, in relation to Srebrenica massacre.[140] On 19 April 2010 the Court issued a Decision on merging this case with the case against Neđo Ikonić, against whom the Court issued, on 21 January 2010, a decision ordering the accused into one-month custody, after he was arrested in the United States of America and extradited to Bosnia and Herzegovina,[141] and against whom it had later confirmed the indictment, charging the accused with the criminal offense of genocide in Srebrenica.[142] Ikonić pleaded not guilty to the charges.[143] Accused Jević was at the relevant time in the capacity of Deputy Commander of the Special Police Brigade of the MUP RS and the Commander of the Training Center of the Special Police Brigade Jahorina; the accused Đurić, in the capacity of the Commanding Officer of the 1st Company of the Training Center Jahorina; the accused Marković, in the capacity of the Commanding Officer of the 2nd Platoon of the 1st Company of the Training Center Jahorina and the accused Ikonić, in the capacity of the Commanding Officer of the 2nd Company of the Training Center Jahorina of the MUP RS Special Police Brigade.
On 25 May 2012 the Section I for War Crimes of the Court of Bosnia and Herzegovina pronounced the first-instance verdict in which it had found the accused Jević and Đurić guilty for willingly aiding members of the joint criminal enterprise to commit genocide in Srebrenica, while Ikonić and Marković were found not guilty for the charged crimes.[144][145] Jević was sentenced to 35 and Đurić to 30 years imprisonment.
On 16 August 2013 the Appellate Panel of the Section I for War Crimes of the Court of Bosnia and Herzegovina delivered its second instance verdict by which it had reduced the long-term imprisonment sentence of the accused Jević to 32 years and of the accused Đurić to 28 years, refusing as ill-founded the appeal filed by the Prosecutor's Office of Bosnia and Herzegovina.[146]
The accused Željko Ivanović was charged with a criminal offense of genocide, in which he allegedly participated as a member of the Special Police Unit of the 2nd Šekovići Detachment, RS MoI, during the period from 10 to 19 July 1995 in and around Srebrenica.[147] On 29 June 2009 the accused pleaded not guilty to the charge of genocide.[148] On 24 April 2012 the Trial Panel of the Section I for War Crimes of the Court of BiH pronounced a Trial Verdict finding the accused guilty of the criminal offense of crimes against humanity and had sentenced the accused to imprisonment for a term of 13 years.[149] The prosecution moved the Appellate Panel of the Court to grant its appeal, revoke the contested verdict and schedule a retrial, or to alter the verdict by finding the accused guilty of the criminal offense of genocide, while the defense appealed as well. On 5 December 2012, the Panel of Section I for War Crimes of the Appellate Division of the Court of BiH granted the appeals of the prosecutor and the defense, and revoked the first instance verdict of the Court and scheduled a retrial before the Panel of the Appellate Division.[150]
On 17 June 2003 the Appeals Panel of the Court of Bosnia and Herzegovina found the accused guilty of the crime of genocide, as an accessory, and had sentenced him to a 24-year long-term imprisonment.[151]
On 28 March 2014 the Constitutional Court of Bosnia and Herzegovina upheld the appeal of Željko Ivanović finding that the Court of Bosnia and Herzegovina had violated his rights from Article 7 of the European Convention of Human Rights, when it applied the new Criminal Code of Bosnia and Herzegovina, instead of the one that was in force when the crime of genocide was committed. The case was remanded to the Court of Bosnia and Herzegovina for a new trial.[152] Pursuant to the decision of the Constitutional Court, the Court of Bosnia and Herzegovina terminated the execution of the sanction of imprisonment for the accused and released hom from prison before the initiation of new trial.[153]
After the decision of the Constitutional Court the Panel of the Appellate Division of Section I for War Crimes of the Court of Bosnia and Herzegovina found Ivanović guilty of the criminal offense of genocide, but now under Article 141 of the Criminal Code of the Socialistic Federative Republic of Yugoslavia, taken in conjunction with Article 24 of the same Code (complicity), and sentenced him to 20 years imprisonment.[154]
On 29 August 2013 the Prosecutor's Office of the Court of Bosnia and Herzegovina charged Sarić for the criminal offense of genocide for the massacre committed in Srebrenica.[155] The Court of Bosnia and Herzegovina confirmed the indictment against Sarić on 9 September 2013.[156]
On 16 February 2018 the Panel of Section I for War Crimes of the Court of Bosnia and Herzegovina rendered a judgment acquitting Goran Sarić of the charges for the criminal offense of genocide in Srebrenica.[157]
On 18 January 2010 Cvetković was arrested by the Israeli International Investigations Unit as he is suspected to have participated in the Srebrenica genocide.[158] On 15 August 2013 Cvetković was extradited from Israel to Bosnia and Herzegovina to stand the trial on the charges of participation in Srebrenica genocide.[159] The Court of Bosnia and Herzegovina confirmed the indictment against Cvetković on 12 September 2013.[160] He was accused that, as a member of the 10th Sabotage Detachment of the Main Staff of the Army of Republika Srpska, in late June 1995, he participated in the launch of the first attack on the UN safe area of Srebrenica and the UNPROFOR base with the aim to intimidate the Bosniak population, and that, on 11 July 1995, he participated in the military operation "Krivaja -95", or the capture of the UN safe area of Srebrenica. He was also accused that, after the entry into Srebrenica, and after the entire Bosniak population had been expelled from the safe area, on 16 July 1995, at the Branjevo Farming Cooperative, together with other members of the 10th Sabotage Detachment, he fired form an automatic rifle at the detainees gathered in groups of ten men, on which occasion, at least nine hundred detained Bosniak men and young boys from the Srebrenica enclave were summarily executed, and only two detainees survived.
The Trial Panel of Section I for War Crimes of the Court of Bosnia and Herzegovina rendered, on 2 July 2015, a verdict acquitting the accused of all the charges for the criminal offense of genocide under Article 171(a) and (b) of the Criminal Code of BiH, as read with Article 29 of the same Code.[161]
Ostoja Stanišić and Marko Milošević were arrested on 21 June 2012, under the allegations of participation in the Srebrenica genocide, through knowingly aiding the perpetration of genocide in the area of the villages Petkovci and Đulići, municipality of Zvornik.[162] On 2 August 2012 the Court of Bosnia and Herzegovina confirmed the indictment against the accused. At the relevant period Ostoja Stanišić was the Commander of the 6th Zvornik Brigade Battalion, while Marko Milošević was the Deputy Commander of the 6th Zvornik Brigade Battalion.[163] On 5 September 2012 both of the accused pleaded not guilty to the charges.[164]
The Trial Panel of Section I for War Crimes of the Court of Bosnia and Herzegovina rendered, on 31 March 2017, a verdict by which the accused Ostoja Stanišić was found guilty of the crime of genocide and sentenced to 11 years of imprisonment, while the accused Marko Milošević was acquitted.[165]
By the decision of the Court of Bosnia and Herzegovina of 5 September 2014 suspect Branimir Tešić was ordered into one-month custody, while in relation to the suspect Miodrag Josipović the Court ordered a number of prohibiting measures including the ban on leaving the place of residence (house arrest). Both are suspected of committing the crime of genocide.[166] On 2 October 2014 the Court of Bosnia and Herzegovina confirmed the indictment against both of the accused for the crime of genocide. The indictment alleges that Josipović, in the capacity as the Chief of Public Security Station Bratunac and member of Police Forces Staff of Zvornik Public Security Center quartered in the Public Security Station Bratunac, and Tešić, as Deputy Commander of Bratunac Police Station, in the period from 12 July to 19 July 1995 aided and abetted the partial destruction of Bosniaks from Srebrenica enclave.[167] On 16 December 2014 the Court of Bosnia and Herzegovina confirmed the indictment against the accused Dragomir Vasić, Danilo Zoljić and Radomir Pantićon, charging them with the criminal offense of genocide in Srebrenica, through aiding and abetting.[168] On 29 November the Court of BiH acquitted the accused.[169]
On 12 August 2010 the Court of Bosnia and Herzegovina confirmed the indictment in the "Franc Kos et al. case" charging the accused Franc Kos, Stanko Kojić, Vlastimir Golijan and Zoran Goronja, as members of the 10th Sabotage Detachment of the Main Staff of the Army of Republika Srpska, with the criminal offence of genocide in Srebrenica.[170] 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.[171]
On 15 June 2012 the Section I for War Crimes of the Court of BiH delivered its first-instance Verdict, finding that the crime of genocide was committed in Srebrenica in the relevant period, but concluding that all the accused are guilty of crimes against humanity. Stanko Kojić was sentenced to 43, while Franc Kos and Zoran Goronja were both sentenced to 40 years imprisonment. Vlastimir Golijan was sentenced to 19 years imprisonment.[172][173] On 15 February 2013 the Appellate Panel of the Court of Bosnia and Herzegovina made its judgment rejecting the appeal of the Prosecutor's Office and partially accepting the appeal of the accused, and reduced their sentences.[174] Franc Kos was sentenced to 35 years, Stanko Kojić to 32 years, Vlastimir Golijan to 15 years and Zoran Goronja to 30 years of imprisonment.
On 17 January 2010 Božidar Kuvelja, a former Police Officer of the II Platoon of the 1st Company of the Jahorina Training Center, 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.[175] 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.[176] On 9 March 2011 the Court of Bosnia and Herzegovina confirmed the Indictment, charging Kuvelja with the criminal offense of genocide.[177] Kuvelja subsequently pleaded not guilty.[178]
On 11 January 2013 the Trial Panel of the Section I for War Crimes of the Court of BiH pronounced a Trial Verdict finding the accused guilty of crimes against humanity and had sentenced him to 20 years imprisonment. Both the prosecutor and the defense have indicated that they would appeal the judgment.[179] On 19 November 2013 the Court confirmed the first instance judgment, rejecting both the defense and prosecutor's appeal.[180]
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".[184]
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.[185] 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.[186]
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.[187][188][189] His appeal was dismissed by German Federal Constitutional Court.[190][191]
On 12 July 2007, European Court of Human Rights dismissed Nikola Jorgic appeal,[192] 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[193][194][195][196] 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",[197] 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.",[198] 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.[199]
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.[200][201][202]
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.[203] Qualification of his crimes was changed to complicity in genocide on appeal, but his sentence was unaltered.[204][205] 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.[206]
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.[207]
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.[208]
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.[209] The public prosecutor in The Netherlands has decided to open an investigation pursuant to the criminal complaint.[210] On 7 March 2013 Dutch authorities decided not to prosecute, while Nuhanović indicated that he would appeal that decision.[211][212] The families lodged a complaint about the public prosecutor's decision with the Military Chamber of the Court of Appeal of Arnhem-Leeuwarden, but on 29 April 2015 the Court of Appeal dismissed the complaint, finding that prosecutions were unlikely to lead to a conviction. Against the decision by the Court of Appeal the families submitted an application to the European Court of Human Rights complaining that the Court of Appeal had failed to order the criminal prosecution of the three Netherlands servicemen, or at least a criminal investigation into their involvement in the deaths of their relatives. On 30 August 2016 the European Court of Human Rights declared the application as inadmissible for being manifestly ill-founded, concluding that "it cannot be said that the domestic authorities have failed to discharge the procedural obligation under Article 2 of the Convention to conduct an effective investigation ... which was capable of leading to the establishment of the facts, ... and of identifying and – if appropriate – punishing those responsible".[213]
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.[214]
In May 2016 the first-instance court in Switzerland found the Swiss politician Donatello Poggi guilty for racial discrimination and had sentenced him to a two-year suspended prison sentence, for denial of genocide in Srebrenica in two opinion articles on the Corriere del Ticino and TicinoLibero websites. On 13 June 2017 the second-instance court rejected his appeal.[215]
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.[216] Following the decision the Srebrenica Commission was formed by the Republika Srpska government to investigate the events that occurred in and around Srebrenica in July 1995. It has been argued that even though the overall impact of the commission was limited, its formation and work did present a first step for Republika Srpska in recognition of the genocide.[217]
In 1994 two set of complaints (Doe v. Karadžić and Kadić v. Karadžić),[218] 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".[219] The district court dismissed both cases claiming that named statutes required "state action",[220] 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".[219] Karadžić was personally served with summons and complaint in each action during his visits to U.N. in New York,[221] and he actively participated through his lawyers in the proceedings (Ramsey Clark, as his attorney),[222] until the Supreme Court of the United States denied his request to review the decision of the court of appeals.[223][224] 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,[225] 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".[226] 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.[227] 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.[228]
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,[229] which is representing 11 plaintiffs including the foundation "Mothers of the Enclaves of Srebrenica and Žepa" (which represents 6,000 relatives of the victims),[230] 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.[231] On 10 July 2008, the court ruled that it had no jurisdiction against the UN, however the proceedings against the State of the Netherlands continued.[232][233] Plaintiffs have appealed the judgment (in relation to UN immunity),[234] and first public hearings relating to this issue were held on 28 January 2010.[235] The decision by the Court was made on 30 March 2010, by which the UN's absolute immunity was upheld.[236][237] Plaintiffs have appealed this judgment as well,[238] but the Supreme court of the Netherlands held in April 2012 that the UN enjoyed the immunity.[239][240] On 11 June 2013 the European Court of Human Rights unanimously declared the application inadmissible, in relation to the alleged violation of Article 6 of the European Convention of Human Rights because of the granting of absolute immunity to the UN by the Dutch Supreme Court.[241] On 16 July 2014 the District Court in The Hague ruled that the Netherlands is liable for the deaths of some 300 victims who were under Dutchbat's effective control, and which were forced out of the Dutchbat compound in Potočari, but not for the deaths of other victims.[242][243][244] On 27 June 2017 the Hague Court of Appeals upheld the first-instance judgment against the Netherlands, but limited the Dutch government's liability to 30 percent of the damages.[245]
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[246] 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),[247] while the family of Mustafić filed the suite[248] because he was killed in similar circumstances.[249] 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.[249] 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.[250][251] 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.[252][253][254][255][256][257] On 3 May 2013, the Procurator General of the Supreme Court of the Netherlands concluded in his so-called "advisory opinion" that the appeal against the Judgment of the Court of Appeal of the Hague should be rejected.[258] On 6 September 2009 the Supreme Court of the Netherlands upheld the Appeals Court decision holding the Netherlands liable for the three deaths in this case.[259][260][261][262][263][264] The Netherlands decided to award the families of the victims with 20.000 EUR each of non-material damages, while the material damages will be determined at a later date.[265]