The Prosecutor v. Milomir Stakic - Case No. IT-97-24-T

“Judgement”

31 July 2003
Trial Chamber II (Judges Schomburg [Presiding], Vassylenko and Argibay)

Procedural Background

· On 23 March 2001, pursuant to a warrant of arrest issued by the International Tribunal on 22 January 2001, Dr Milomir Stakic (“Accused”) was arrested in Belgrade. That same day he was transferred to the United Nations Detention Unit in The Hague.

· The trial of the Accused based on the allegations set out in the Fourth Amended Indictment dated 11 April 2002 (“Indictment”), began on 16 April 2002. The Indictment covers the period from 30 April 1992 to 30 September 1992 and charges the Accused with genocide (Count 1) or, alternatively, complicity in genocide (Count 2), murder as a crime against humanity (Count 3), extermination (Count 4), murder as a violation of the laws or customs of war (Count 5), persecutions (Count 6), deportation (Count 7) and inhumane acts (Count 8).

· The trial concluded on 15 April 2003 after 150 days of hearings. The Trial Chamber heard 37 live Prosecution witnesses and admitted 19 witness statements pursuant to Rule 92 bis (Proof of Facts other than by Oral Evidence). The Prosecution called three expert witnesses. Pursuant to Rule 98 (Power of Chambers to Order Production of Additional Evidence), the Chamber called six witnesses and ordered the Prosecution to appoint a forensic handwriting examiner and a forensic document expert. The Trial Chamber heard 38 live Defence witnesses and admitted seven Rule 92 bis statements and one Rule 94 bis report (Testimony of Expert Witnesses). The Defence called two expert witnesses and introduced the report of an expert on constitutional issues by means of Rule 94 bis. A total of 1,448 exhibits were admitted into evidence, 796 for the Prosecution, 594 for the Defence and 58 for Chamber.

The Judgement

The Trial Chamber found the Accused Dr Milomir Stakic not guilty of Count 1 (Genocide), Count 2 (Complicity in Genocide) and Count 8 (Other Inhumane Acts (forcible transfer), a Crime against Humanity). It found the Accused guilty of Count 4 (Extermination, a Crime against Humanity), Count 5 (Murder, a Violation of the Laws or Customs of War), Count 6 (Persecutions, Crimes against Humanity) incorporating Count 3 (Murder, a Crime against Humanity), and Count 7 (Deportation, a Crime against Humanity). It sentenced Dr Milomir Stakic to life imprisonment.¹

Factual findings²

On 7 January 1992, the Serbian members of the Prijedor Municipal Assembly and the presidents of the local Municipal Boards of the Serbian Democratic Party (“SDS”) proclaimed a parallel Assembly of the Serbian People of the Municipality of Prijedor. Dr Milomir Stakic, a physician, was elected President of this Assembly. Ten days later, in a decision signed by Dr Stakic, the Assembly endorsed “joining the Serbian territories of the Municipality of Prijedor to the Autonomous Region of Bosnian Krajina [“ARK”]”. By the end of April 1992, a number of clandestine Serbian police stations had been created in the municipality and more than 1,500 armed men were ready to take the municipality over.

During the night of 29-30 April 1992, the forcible takeover of power led by the SDS took place. Legitimate central authorities were replaced by SDS or SDS-loyal personnel. Dr Stakic replaced the freely elected President of the Municipal Assembly, Professor Cehajic.

The Trial Chamber found that the takeover was an illegal coup d’état which had been planned and coordinated for months and which had as its final goal the creation of a pure Serbian municipality. The plans were never hidden and were implemented through coordinated action by the police, army and politicians. Dr Stakic was by then playing the leading role in the political life of the Municipality.

Shortly after the takeover, the municipal People’s (National) Defence Council started to hold meetings which were presided over by Dr Stakic in his capacity as President of the post-takeover Municipal Assembly.

On 20 May 1992, the Municipal Assembly was replaced by the Crisis Staff of Prijedor municipality, later known as the War Presidency, whose membership was almost identical to that of the People’s Defence Council. Dr Stakic was its President. The Crisis Staff met very frequently in the period immediately after the takeover and adopted numerous decisions, orders and other enactments.

Civilian life in Prijedor was transformed in a myriad of ways after the takeover . There was a marked increase in the military presence in town and a propaganda war against non-Serbs was launched. Pursuant to a decision of the Crisis Staff, armed attacks were launched against the non-Serb civilian population throughout the municipality. The creation of an atmosphere of fear in Prijedor culminated in the agreement amongst members of the Prijedor Crisis Staff to establish the Omarska, Keraterm and Trnopolje camps.

The Trial Chamber found that killings occurred frequently in the camps and that there could be no reasonable doubt that a number of massacres were committed inter alia in Room 3 of the Keraterm camp on or about 24 July 1992. In late July 1992, over a hundred people were killed in the Omarska camp and, on 5 August 1992, approximately 120 people were taken out of Omarska on buses and later killed . On 21 August 1992, approximately 200 people in a deportation convoy escorted by members of the Prijedor Intervention Squad were killed on Mount Vlasic by members of this platoon. Many more were killed during the attacks by the Bosnian Serb army on predominantly Bosnian Muslim villages and towns throughout the Municipality of Prijedor - Kozarac, Hambarine, Biscani, Ljubija, to name a few - and several massacres of Muslims took place. The Trial Chamber found that more than 1,500 killings occurred and identified 486 victims by name.³

Rapes and sexual assaults were committed in the camps and the thousands of persons detained were subjected to inhuman and degrading treatment, including routine beatings and torture. Detainees lived in unhygienic conditions and were given little more than a subsistence diet.

Bosnian Muslims who had lived their whole lives in the Municipality of Prijedor were expelled from their homes and deported in huge numbers, often in convoys organised and supervised by the Serb authorities from Prijedor. The Trial Chamber heard evidence from many witnesses who were forced to flee the territory of the Municipality of Prijedor in 1992, mostly to Travnik or Croatia, in order to escape Serb-controlled territory. The exodus of the mainly non-Serb population from Prijedor started as early as 1991 but accelerated considerably in the run-up to the takeover and reached its peak in the months after the takeover. More than 20,000 persons became victims of this campaign of deportation. Most people travelled in one of the daily convoys of buses and trucks leaving the territory.

The Trial Chamber was satisfied that between January 1991 and September 1992 Dr Stakic was the leading political figure in the Municipality of Prijedor and found him responsible for all the above crimes as a co-perpetrator.⁴

Legal findings

Co-perpetratorship

The Accused was primarily charged on the basis of the joint criminal enterprise concept, this being a definition of “committing” under Article 7(1) of the Statute .⁵ The Trial Chamber did not find it necessary to have recourse to the judicial expression “joint criminal enterprise ” and preferred to use the expression “co-perpetration”. It proposed a definition of co-perpetration which it stated “approaches that of […] joint criminal enterprise and even overlaps in part [but] is closer to what most legal systems understand as ‘committing’ and avoids the misleading impression that a new crime not foreseen in the Statute has been introduced by the backdoor”.⁶

The Trial Chamber referred to a recent Decision rendered by the Appeals Chamber regarding joint criminal enterprise in the Milutinovic et al. case. The Appeals Chamber found that joint criminal enterprise is a form of “commission” pursuant to Article 7(1) of the Statute and that, insofar as a participant shares the purpose of the joint criminal enterprise (as he or she must do) as opposed to merely knowing about it, he or she cannot be regarded as a mere abettor to the crime which is contemplated .⁷ It referred to the definition of “committed” set out in the Kvocka et al. Trial Judgement:

“[t]he actus reus required for committing a crime is that the accused participated, physically or otherwise directly, in the material elements of a crime under the Tribunal’s Statute, through positive acts or omissions, whether individually or jointly with others”.⁸

In the Trial Chamber’s view, this definition required that a detailed analysis of co-perpetration be given. It defined co-perpetration as follows:

“For co-perpetration it suffices that there was an explicit agreement or silent consent to reach a common goal by coordinated co-operation and joint control over the criminal conduct. For this kind of co-perpetration it is typical, but not mandatory, that one perpetrator possesses skills or authority which the other perpetrator does not. These can be described as shared acts which when brought together achieve the shared goal based on the same degree of control over the execution of the common acts. In the words of Roxin: "The co-perpetrator can achieve nothing on his own… The plan only ‘works’ if the accomplice⁹ works with the other person."¹⁰ Both perpetrators are thus in the same position. As Roxin explains, "they can only realise their plan insofar as they act together, but each individually can ruin the whole plan if he does not carry out his part. To this extent he is in control of the act."¹¹ Roxin goes on to say, "[t]his type of ‘key position’ of each co-perpetrator describes precisely the structure of joint control over the act.¹²" (para. 440)

The Trial Chamber found that “the mode of liability described as ‘co-perpetratorship’ best characterise[d] Dr Stakic’s participation in offences committed in Prijedor Municipality in 1992”.¹³

Individual criminal responsibility v. command responsibility

In keeping with the Tribunal’s case-law, it is permissible to find a person criminally responsible both as an individual for his own acts (Article 7(1)) and as a military or civilian commander for the acts of his subordinates (Article 7(3)). In the Krnojelac Trial Judgement, the Trial Chamber considered it “inappropriate to convict under both heads of responsibility based on the same acts”.¹⁴ It decided to charge the Accused on the basis of Article 7(1) only and to take the Accused’s position as a superior as a factor aggravating his criminal responsibility under Article 7(1).¹⁵ The present Trial Chamber followed the same reasoning and held that “Article 7(3) serves primarily as an omnibus clause in cases where the primary basis of responsibility cannot be applied. In cases where the evidence leads a Trial Chamber to the conclusion that specific acts satisfy the requirements of Article 7(1) and that the accused acted as a superior, this Trial Chamber shares the view of the Krnojelac Trial Chamber that a conviction should be entered under Article 7(1) only and that the accused’s position as a superior amounts to an aggravating factor.¹⁶ It held that “it is in general not necessary in the interests of justice and of providing an exhaustive description of individual responsibility to make findings under Article 7(3) if the Chamber is already satisfied beyond reasonable doubt of both responsibility under 7(1) and the superior positions held by the accused. The superior positions of the accused, without diminishing their importance, would then only constitute an aggravating factor, the seriousness of which would depend on the concrete superior status of the accused over his subordinates. The superior positions of the accused must be established in detail and related to the concrete conduct established under Article 7(1)”.¹⁷

Deportation

The case-law of the Tribunal has drawn a distinction between deportation under Article 5(d) of the Statute and forcible transfer as other inhumane acts under Article 5(i) of the Statute:

“[b]oth deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside. Yet, the two are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State”.¹⁸

In the Trial Chamber’s view, the core aspect of deportation is two-fold: “(1) to take someone out of the place where he or she was lawfully staying, and (2) to remove that person from the protection of the authority concerned”.¹⁹ It considered that “[t]he protected interests behind the prohibition of deportation are the right and expectation of individuals to be able to remain in their homes and communities without interference by an aggressor, whether from the same or another State” and it held that “it is the actus reus of forcibly removing, essentially uprooting, individuals from the territory and the environment in which they have been lawfully present, in many cases for decades and generations, which is the rationale for imposing criminal responsibility and not the destination resulting from such a removal”.²⁰ It added that “should a definite destination requirement be specified, it would often be difficult to determine whether and when the crime occurred because the victims may have been transferred in several stages and therefore through several territories and across borders that may have changed every day” and that “[a] fixed destination requirement might consequently strip the prohibition against deportation of its force”.²¹

The Trial Chamber stated that “[f]or the purposes of the present case, […] Article 5(d) of the Statute must be read to encompass forced population displacements both across internationally recognised borders and de facto boundaries, such as constantly changing frontlines, which are not internationally recognised”. It concluded that “[t]he crime of deportation in this context is therefore to be defined as the forced displacement of persons by expulsion or other coercive acts for reasons not permitted under international law from an area in which they are lawfully present to an area under the control of another party”.²²

The mens rea for persecution in cases of indirect perpetratorship

The definition of the crime of persecution on political, racial and religious grounds (a crime against humanity under Article 5(h) of the Statute) is settled in the case -law of the Tribunal:

The crime of persecution consists of an act or omission which:

1. discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and
2. was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).²³

The mens rea of this crime consists of: “1. the intent to commit the underlying act; [and] 2. the intent to discriminate on political, racial or religious grounds ”.²⁴ In both the Vasiljevic and the Krnojelac Trial Judgments, the Accused were closely involved in the actual commission of the crimes and proof was required that they acted with discriminatory intent in relation to the specific acts charged. In the present case, however, the Accused is charged as a co-perpetrator who did not actually commit the crimes himself (indirect perpetrator) but was in command of those who directly committed the crimes (direct perpetrators/actors). In such a context, the Trial Chamber considered that “to require proof of the discriminatory intent of both the Accused and the acting individuals in relation to all the single acts committed would lead to an unjustifiable protection of superiors and would run counter to the meaning, spirit and purpose of the Statute of this International Tribunal”.²⁵

The Trial Chamber held that “[i]n cases of indirect perpetratorship, proof is required only of the general discriminatory intent of the indirect perpetrator in relation to the attack committed by the direct perpetrators/actors. Even if the direct perpetrator /actor did not act with a discriminatory intent, this, as such, does not exclude the fact that the same act may be considered part of a discriminatory attack if only the indirect perpetrator had the discriminatory intent”.²⁶

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1. On 1 September 2003, Defendant Milomir Stakic filed his notice of appeal against the Judgement.
2. The following factual findings are taken from the summary of the Judgement. The summary and the full text of the Judgement are available at the “Judgements” page on the Tribunal’s website (www.un.org/icty).
3. See Part VI of the Judgement: “List of victims known by name”.
4. For more details on Dr Stakic’s responsibility, see “Individual Criminal Responsibility of Dr Stakic” in the summary of the Judgement. On the nature of the Accused’s responsibility, see infra “Co-perpetration”.
5. Article 7(1) reads: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime”.
6. Para. 441.
7. Milutinovic et al., IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, para. 20, Judicial Supplement No. 41.
8. Kvocka et al., IT-98-30/1-T, Judgement (“Kvocka et al. Trial Judgement”), 2 November 2001, para. 251, Judicial Supplement No. 29.
9. In this context the term “accomplice” is used interchangeably with “co-perpetrator” (footnote added by the Trial Chamber).
10. Roxin, Claus, Täterschaft und Tatherrschaft (Perpetration and control over the act), 6th Edition, Berlin, New York, 1994, p. 278 (footnote from the Trial Chamber Judgement).
11. Ibid.
12. Ibid.
13. Para. 468.
14. Krnojelac, IT-97-25-T, Judgment (“Krnojelac Trial Judgment”), 15 March 2002, para. 316, Judicial Supplement No. 31 bis.
15. Ibid., para. 496.
16. Para. 465.
17. Para. 466.
18. Krstic, IT-98-33-T, Judgement (“Krstic Trial Judgement”), 2 August 2001, para. 521, Judicial Supplement No. 27.
19. Para. 674 (emphasis in the original).
20. Para. 677.
21. Ibid.
22. Para. 679.
23. See Vasiljevic, IT-98-32-T, Judgement (“Vasiljevic Trial Judgement”), 29 November 2002, para. 244, Judicial Supplement No. 38. See also Krnojelac Trial Judgment para. 431.
24. Vasiljevic Trial Judgement, para. 248.
25. Para. 742.
26. Para. 743.