THE CONFLICTS OF THE FORMER YUGOSLAVIA IN THE COURTS

Paul J. Magnarella University of Florida

The brutality of the conflicts in the States of the former Punishment of the Crime of Genocide of 1948; and the Yugoslavia, especially Bosnia Herzegovina (B H), has Charter of the International Military Tribunal of 1945 aroused the indignation of the civilized world.1 After over ("Nuremberg Charter") (Para. 35 of UN Doc. three years of atrocities and a pounding of Serbian S/25704,1993). Articles 2 to 5 of the ICTY Statute military sites in B H by NATO war planes and Tomahawk empower the Tribunal to prosecute individuals accused of missiles, a peace accord brokered by US Assistant ordering or committing genocide or grave breaches of the Secretary of State Richard Holbrooke in Dayton, Ohio four Geneva Conventions, violating the laws or customs finally brought a tentative peace to the region. Behind of war, or being responsible for crimes against humanity, these headline events are a number of comparatively quiet which include the following crimes against any civilian court proceedings in Europe, the Balkans, and the United population committed during an international or internal States that may have a greater impact on the minds, armed conflict: murder, extermination, enslavement, strategies and aspirations of future political military deportation, imprisonment, torture, rape, persecutions on leaders than all of the weaponry dumped on this afflicted political, racial and religious grounds, and other inhumane land and tragic people. Judicial events are occurring on acts. Arguably, all of the crimes constituting "ethnic two levels: on the international plane at the UN Tribunal cleansing," a term closely associated with the conflicts in in The Hague, and on the domestic plane in numerous the former Yugoslavia, are contained in Articles 2 to 5 national courts. All are applying post World War II (see Petrovic 1994).3 humanitarian law created with the hope of curtailing, if not eliminating, the kind of inhumanity we have recently On November 1, 1994, ICTY Prosecutor Richard witnessed in too many corners of the world. Goldstone brought the Tribunal's first indictment, against Dragan Nikolic, a Bosnian Serb, who was the commander The UN Criminal Tribunal of the Susica prison camp in Vlasenica, in northeastern Bosnia. Nikolic allegedly participated directly in the The UN Security Council created the International beatings, torture and murder of camp prisoners. He was Criminal Tribunal for the Former Yugoslavia (ICTY) in charged with grave breaches of the Fourth Geneva 1993 with the aims of bringing war criminals to justice, Convention of 1949, violations of the laws and customs of discouraging further atrocities, and contributing to the war, and crimes against humanity. As of mid March 1996, restoration and maintenance of peace.2 Article 8 of the his arrest warrant had not been served. Tribunal's originating Statute extends the Tribunal's territorial jurisdiction "to the territory of the former On February 13, 1995 the Tribunal issued indictments Socialist Federal Republic of Yugoslavia, including its against 21 Bosnian and other Serbs who were charged land surface, airspace and territorial waters." Its temporal with committing atrocities in the summer of 1992 against jurisdiction extends from 1 January 1991 on. This Muslim and Croat civilian prisoners held at Omarska, a temporal and territorial scope authorizes the Tribunal to camp run by Bosnian Serbs in the Prijedor opstina consider serious crimes, regardless of the ethnicity (e.g., (district) in northwestern Bosnia. Bosnian Serbs had Serb, Croat, Bosnian, etc.) of their perpetrators or victims. reportedly confined over 3000 Bosnian Muslims and Croats in the Omarska camp from May 25 to August 29, The Security Council authorized the Tribunal to apply 1992 under brutal conditions. Many prisoners were "rules of international humanitarian law which are beyond murdered, raped, sexually assaulted, and severely beaten. any doubt part of customary law," and therefore The specific charges of the indictments included crimes authoritative law for all States (Para. 34 UN Doc. S/25704 against humanity, genocide, violations of the law or (1993)). Those portions of conventional international customs of war, and grave breaches of the Geneva humanitarian law that the Secretary General asserted were Conventions of 1949 (ICTY Indictments, 13 Feb. 1995). unquestionably part of international customary law are the laws applicable in situations of armed conflict as The Tribunal forwarded the arrest warrants to the relevant embodied in: the four Geneva Conventions of 1949; the authorities of the territories where the accused were Hague Convention (IV) Respecting the Laws and believed to be located. Except for Dusko Tadic, who was Customs of War on Land and the Regulations annexed being held in Germany, all of the accused were assumed thereto of 1907; the Convention on the Protection and to be in the Serbian controlled parts of the Republic of Bosnia Herzegovina. The authorities there refuse to lower level Bosnian Serbs were indicted for their alleged recognize the Tribunal or to hand over persons it has criminal activities in Bosanski Samac, Brcko, and indicted. Prijedor (ICTY Indictments, 25 July 1995). On November 16, 1995, the ICTY amended its indictments against In April 1995 the Tribunal, upon Prosecutor Goldstone's Karadzic and Mladic to include alleged direct formal request, asked the Bosnian government to defer to responsibility for atrocities committed in July 1995 the Tribunal its investigation and prosecution of a group against the Bosnian Muslim population of Srebrenica. of Bosnian Croats, including political and military leaders, suspected of having murdered over 100 Muslims Even though Serbian authorities do not acknowledge the in the Lasva valley of central B H between October 1992 jurisdiction of the Tribunal and refuse to cooperate with and May 1993. The B H government complied with the it, General Mladic did retain Greek attorney Alexandros request. Rule 9(iii) of the Tribunal's Rules of Procedure Lykourezos to formulate a legal defense (Reuters, Aug. and Evidence authorizes the Prosecutor to propose to a 10, 1995). Lykourezos is famous for defending such Trial Chamber that a formal request be made to a national notorious figures as former Greek banking tycoon George court asking it to defer its own investigations or criminal Koskotas, whose financial scandal helped bring down the proceedings to the Tribunal when they involve significant Greek Socialist government in 1989. In August, the factual or legal questions that may have implications for attorney told the press that he had obtained Mladic's file the Tribunal's own investigations or prosecutions. The from the Tribunal and had begun to study it. deferral request also asks the national authority to pass the results of its investigations over to the Tribunal's In reaction to these indictments, many Serbs have charged Prosecution Office. Persons being investigated are that the ICTY is simply an anti Serb creation without classified as "suspects," who may later be formally concern for crimes committed against Serbs by others. In indicted. Any persons who are tried by the Tribunal several press statements, Prosecutor Goldstone responded cannot be tried again for the same crimes by a national that his office's investigations into allegations of serious court. Hence, by complying with a deferral request, a violations of humanitarian law committed against Serb national government acknowledges its acceptance of the victims were being materially hampered by the low level Tribunal's primacy. of cooperation from the Yugoslavian government and the Serbian authorities in Knin and Pale. He said that his On July 25, 1995, the Tribunal announced its second office was also examining allegations of war crimes major set of indictments, against 24 Serbs, mostly committed by Muslim perpetrators and by members of the Bosnians. These alleged war criminals included Milan Croatian army. In March 1996, Goldstone announced that Martic (then president of the Croatian Serb administration indictments against some Muslims were forthcoming. of Knin), Radovan Karadzic (then president of the Bosnian Serb administration of Pale), and Ratko Mladic Certain politicians and news commentators have criticized (commander of the Bosnian Serb army). Other indictees the Tribunal for its indictment of Karadzic, Mladic, and included: commanders and interrogators of prison camps, Martic, who, they argue, are essential parties to any the deputy commander of the "Grey Wolves" (a para effective peace negotiations. Despite these criticisms, the military unit from Serbia), a police chief, and several Tribunal has shown its determination to bring these local Bosnian Serb politicians. Earlier, the B H alleged war criminals to justice. On August 2, 1995, the government had suspended its own judicial proceedings Tribunal conveyed a formal request to all UN members against these individuals and deferred their cases to the and Switzerland asking for information regarding any Tribunal at the latter's request. future international travel by these three indictees. Prosecutor Goldstone has stated that his strategy is to In the indictments all are accused of crimes against indict those in leadership positions, because he regards humanity, violations of the laws or customs of war and them as most responsible for war crimes (Schiller 1995: grave breaches of the Geneva Conventions. In addition, A1). Payam Akhavan (1995), a member of the Tribunal's Karadzic, Mladic, and two others are accused of the crime prosecution team, further explained that underlying the of genocide. More specifically, Martic is charged with prosecution's strategy is the assumption that creating the war crimes in connection with the firing of cluster bombs conditions for genuine and lasting reconciliation requires into the central part of Zagreb on May 2 and 3, 1995. that the various ethnic peoples of the former Yugoslavia Karadzic and Mladic are charged with crimes arising from be absolved of collective guilt for the horrific crimes that atrocities perpetrated against civilian populations have been instigated by their leaders. The Tribunal, he throughout B H, for the sniping campaign against claims, can accomplish this by bringing criminal leaders civilians of Sarajevo, and the taking of UN Peacekeepers to justice. as hostages and their use as human shields. Many of the On September 9, 1995, the Tribunal indicted its 47th latter's trial is scheduled to begin in May 1996. In all other person and first non Serb Ivica Rajic a Bosnian Croat, cases, local authorities refused or failed to serve arrest who the prosecutor claims was a commander in the self warrants. styled Croatian Defense Force (HVO) which attacked the village of Stupni Do in central Bosnia in October 1993, According to Rule 61 of the Tribunal's Rules of Procedure killing at least 16 Muslim civilians, forcing over 230 and Evidence, in cases where governments refuse to arrest others to flee, and razing village homes (Stichting A.N.P. and extradite indictees, the Tribunal may issue 1995). A Tribunal spokesman said he was fairly confident international arrest warrants and inform the UN Security that this Croatian indictee, who was being held on Council of the lack of cooperation. An international arrest unrelated charges in a Croat run jail in Mostar, would be warrant transforms the accused into an international handed over to the Tribunal for trial. But instead, the fugitive and the country where he is located into an "open authorities in Mostar set him free. air prison." Furthermore, should the accused hold any official office, his ability to function internationally (and On November 7, 1995 the Tribunal indicted three senior possibly domestically) could be adversely affected by his officers in the Yugoslav Peoples Army (JNA) for their status as a "wanted person." As of mid March 1996, the alleged responsibility in the mass killing at Ovcara, near ICTY had issued international arrest warrants for Dragan Vukovar, of approximately 260 non Serb male captives, Nikolic and Milan Martic, who is believed to be living in who had been removed from Vukovar hospital on Banja Luka, a Serbian controlled city. In March the November 20, 1991. The accused are: then Colonel Mile prosecutor announced that he would also request Mrksic, Captain Miroslav Radic, and then Major Veselin international arrest warrants for the three JNA officers: Sljivancanin. After the siege of Vukovar, Mrksic and Mile Mrksic, Miroslav Radic, and Veselin Sljivancanin. Sljivancanin were promoted to general and colonel, The UN, US, and West European countries have been respectively. They continue to serve in the JNA, and applying pressure to all the parties to cooperate with the Yugoslav authorities refuse to serve the arrest warrants Tribunal by supplying evidence, witnesses and extraditing and hand them over to the Tribunal. indictees on their territories. Threatened sanctions include withholding all or parts of promised economic aid. The ICTY indicted six more Bosnian Croats on November 10, 1995. They included: Dario Kordic (former The Conflict in West European Courts vice president of the Bosnian Croat community of Herceg Bosna), Tihofil Blaskic (former chief of staff of the Some of the obligations that ratifying States ("High Croatian Defense Council HVO), and four other Contracting Parties") have under the Geneva Conventions prominent members of the former Herceg Bosna. They are to: 1) legislate penal sanctions for persons committing are accused of criminal attacks on Bosnian Muslim or ordering grave breaches; 2) search for and arrest such civilians in the Lasva River Valley area of Central Bosnia persons regardless of their nationalities, and 3) either try from about January to May 1993. Although Croatian such persons in their own courts or extradite them to authorities have generally cooperated with the Tribunal another High Contracting Party that will try them (Art. more than have the Serbs, they still refuse to hand over 49, Geneva Convention I). The UN Convention on the their own kind. The day after the indictment, Croatian Prevention and Punishment of Genocide (Arts. 5 6) and President Franjo Tudjman appointed Blaskic to the the UN Convention against Torture (Arts. 4 8) contain Croatian army's general inspectorate, a move that also similar obligations. brought Blaskic Croatian citizenship. In January 1996, a news correspondent reported that Kordic was working as Under such humanitarian law legislation, several a tourist guide in the pilgrimage town of Medjugorie European states have arrested alleged violators from the (Squitieri 1996). former Yugoslavia, and some have tried them. Those arrested are usually refugees, whom other refugees On March 1, 1996, The ICTY indicted Bosnian Serb identify and report to the police. For example, Refic Saric, General Djordo Djukic, who had earlier been arrested by a Bosnian Muslim refugee, was arrested by Danish police Bosnian Muslim authorities, when his car accidentally after about twenty other refugees identified him as a strayed into their control zone. Djukic was charged with prison guard who had tortured fellow Muslims in Bosnia. involvement in the indiscriminate shelling of Sarajevo In November 1994, a Danish court convicted Saric of 14 civilian areas in which thousands of people were killed. counts of gross violence, leading to two deaths of fellow Muslims in 1993 in a prison camp set up by Croats at As of mid March 1996, the ICTY had indicted 53 persons Dretelj near Mostar, Bosnia. Saric, who had been a (six twice), comprised of 46 Serbs and seven Croats. prisoner turned guard in the Bosnian camp, received an However, it had only Djukic and Tadic in custody. The eight year sentence. In August 1995, Denmark's Supreme Court upheld his conviction. Because Saric had been Even the Serbian administration in Pale had been declared mentally ill at the time of trial, he will serve his adjudicating accused war criminals. In July 1995, a time in a psychiatric ward and then be expelled from Bosnian Serb district court in Brcko tried in absentia and Denmark (Reuters, Aug. 15, 1995). convicted 37 Croats of grave crimes against POWs. It sentenced 25 members of the Croat Defense Council In 1994 German authorities arrested Bosnian Serb Dusko (HVO) to 12 years imprisonment and five members of the Tadic after he had been spotted by Bosnian Muslim 108th HVO Motorized Brigade to ten years (BBC July 10, refugees in Munich. He was accused of having tortured to 1995). Presumably, these convictions in absentia of ethnic death at least ten people in the Omarska prison camp. others by a former, self proclaimed state without Rather than prosecute him, however, German authorities international recognition will have questionable legal sent him to the Hague upon the request of the Tribunal. significance in the post Dayton era.4 However, in German authorities arrested another suspected war February 1996 a Bosnian Serb court in Doboj indicted criminal ("Nicola J.") in December 1995. He allegedly and issued arrest warrants for 461 Muslims, charging was the leader of a Serbian paramilitary group involved in them with illegally detaining Serbs in camps and shelling the mass murder and expulsions in the Doboj area of civilian targets (BBC, Feb. 26, 1996). These kinds of Bosnia in 1992. A German federal prosecutor said this judicial actions, whereby the courts of one ethnic zone suspect might also be handed over to the ICTY. indict other ethnics for alleged war crimes raise a number jurisdictional questions yet to be resolved in the new B H. Some European arrests have not led to convictions. For example, in May 1994 Austrian authorities arrested The new Yugoslavian State had created the Belgrade Dusko Cvetkovic, a Bosnian Serb, in Salzburg and based Committee for Collecting Evidence on War Crimes charged him with murder and genocide of Muslims from against Humanity and Human Rights. In April 1995, the Bosnian village of Kucice in July 1992. A year later, Committee head, Zoran Stankovic, said his government an Austrian court acquitted him of charges for lack of had sent information [but not the actual evidence] to the sufficient evidence. Swedish authorities, in June 1995, ICTY concerning 178 alleged cases of brutal murders released a Serb whom they had arrested on charges of committed against Serbs in B H and Croatia (Cutter committing murder while serving as a guard at the 1995). The ICTY has not yet acted on that information, Keraterm concentration camp in northwest Bosnia. The probably because Yugoslavia has generally not authorities cited insufficient evidence as the reason for the cooperated with the ICTY by permitting independent release, but the suspect claimed that Bosnian refugees in verification on its territory or by sending needed Sweden had falsely accused him because he was a Serb witnesses or indicted persons to the Hague. married to a Muslim (Agence France Presse, 7 June 1995). As indicated above, most persons charged with war crimes in the Balkan courts have been ethnic others. In Court Actions in the Former Yugoslavia March 1996, however, an unusual event occurred: Serbia's security officials arrested Drazen Erdemovic, a Several de jure and de facto states of the former Bosnian Serb, and accused him with taking part in the Yugoslavia have also initiated judicial proceedings mass murder of civilians near Srebrenica in July 1995. against alleged war criminals. As noted above, B H has Erdemovic reportedly confessed to the crimes and openly deferred numerous cases to the UN Tribunal, but it admitted killing scores of civilians. Because of his continues others. In January 1966, Croatian Foreign willingness to talk and the fact that he had served under Minister Mate Granic said his country would soon try 20 General Ratko Mladic, the ICTY formally requested his suspected war criminals, and over 1,000 more extradition to the Hague, where he is expected to be an (presumably, mostly Croatian Serbs) had been or were in explosive witness for the prosecution. Whether Serbian the process of begin investigated (Arraf 1996). Earlier, in authorities will send him or keep him locked up away March 1995, a Croatian court charged Zeljko Raznjatovic from reporters remains to be seen. The West is pressuring ("Arkan") with committing genocide while commanding a President Milosevic to extradite him as well as others. Serb militia during the 1991 war in Croatia. On Croatia's request, Interpol has reportedly issued an international U.S. Judicial Action arrest warrant for Arkan, who at last report was chairman of the Serbian Unity Party and leading anti-Albanian In contrast to the criminal proceedings described above, warlord in Serbia's Kosovo province (Jane's Intell. Rev. the Bosnian conflict has entered U.S. courts in the form of 1996). 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 Because the US administration had not granted Karadzic defendants have few or no assets in the United States. An or his self proclaimed Republika Srpska formal advantage of civil tort suits is that a plaintiff can win a recognition, he does not enjoy head of state immunity default judgment when a properly notified defendant fails from the personal jurisdiction of US courts. to appear in court without good cause. By contrast, American criminal trials in absentia are uncommon. The Amnesties and Bargaining Chips UN Tribunal's Statute prevents it from conducting trials in absentia. In both the U.S. and The Hague, criminal Many observers of the Bosnian tragedy maintain that defendants must be in the custody of the court before political and military leaders indicted by the UN Criminal being tried. Tribunal will not agree to a final peace settlement unless they receive total amnesty. The US State Department In 1993 two related suits filed by Doe et al. and Kadic et refused to include the indictments as bargaining chips in al. (866 F. Supp 734 (1994) were brought against the Dayton peace negotiations. Department spokesmen Radovan Karadzic in the US District Court for the maintained that the US supports the Tribunal and believes Southern District of New York under federal legislation accused war criminals should be tried. This was a wise known as the Alien Tort Act (ATA) and the Torture position, because the US has no authority to negotiate Victim Protection Act (TVPA). Together, the two suits over Tribunal indictments. Although governments can sought compensation and punitive damages on behalf of bargain away the convictions and indictments of their thousands of Muslim and Croatian women, children and own national courts at an international negotiating table, men who claim they were victims of the following torts they cannot do the same for UN Tribunal indictments and allegedly inflicted by Bosnian Serb military forces under convictions. As long as the Tribunal exists under its Karadzic's command: genocide, war crimes, summary present Statute, it is independent of any national execution, wrongful death, torture, assault and battery, government. Only the UN Security Council, which rape and intentional infliction of emotional harm. created the Tribunal, can dissolve it and thereby freeze its outstanding indictments and terminate any on going Judge Peter K. Leisure dismissed both suits for lack of judicial proceedings. However, if this, or any future subject matter jurisdiction, reasoning that the federal international criminal tribunal, is to be credible, all states statutes being relied on by plaintiffs apply only to must honor their legal obligations to it. tortuous conduct in violation of the law of nations and attributable at least in part to persons acting under the Notes color of national law. Karadzic, the court concluded, was not an official of any recognized state. Therefore, his 1. The author served as an expert on mission legal actions and those of his followers ("while grossly consultant to the UN Criminal Tribunal for the Former repugnant") are those of private individuals, not covered Yugoslavia in The Hague during the summer of 1995. by either ATA or TVPA. The ideas he expresses here do not necessarily represent those of the Tribunal. The plaintiffs appealed to the US Second Circuit Court, which reversed the District Court's decision on October 2. For the background and structure of the Tribunal, see 13, 1995. The Circuit Court held that subject matter Magnarella (1995). 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 3. For a description of the ICTY Statute articles that a de facto state actor. The Circuit Court also held that incorporate the above conventions and charter, see Karadzic (who had been in the US on UN and other Magnarella (1995). business) had been properly served legal process (suit notification), because at the time of service he was outside 4. The leaders of Croatia, B H, and Serbia agreed to the of the UN headquarters district. Hence, the case goes back Dayton Accord in Dayton, Ohio on November 21, 1995. to the District Court. 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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.

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

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United Nations documents are referenced in the text by number.