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Prosecutor's Office of Bosnia and Herzegovina v. Nisvet Gasal and Musajb Kukavica

Court Court of Bosnia and Herzegovina, Preliminary Hearing Judge, Special Department for War Crimes,, Bosnia and Herzegovina
Case number KT-RZ 125/07
Decision title Indictment
Decision date 18 September 2007
Parties
  • Prosecutor's Office of Bosnia and Herzegovina
  • Nisvet Gasal (aka Nisko)
  • Musajb Kukavica
Categories War crimes
Keywords Former Yugoslavia; war crimes against civilians
Links
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Summary

Nisvet Gasal was born on 25 May 1964 in Oborci in the municipality of Donji Vakuf, central Bosnia and Herzegovina. Musajb Kukavica was born on 10 March 1970 in Jajce, also located in central Bosnia and Herzegovina. During the armed conflict between the Croatian Defence Council (HVO) and the army of the Republic of Bosnia and Herzegovina (August 1993 - March 1994), Gasal served as camp warden of the FC Iskra Stadium detention camp in Bugojno, and Musajb Kukavica served as security commander of the detention camp. In that capacity, they were responsible for the unhygienic living conditions in which the detainees were held, and for a lack of food, water and medical help. They were also responsible for the harm that other guards inflicted on the detainees. Some detainees were forced to perform hard physical work while others were taken to the front line where there were a lot of shootings. On 18 September 2007, the preliminary hearing judge of the Court of Bosnia and Herzegovina found that Gasal and Kukavica could be charged with war crimes against civilians.

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Procedural history

On 26 March 2007, the Court of Bosnia and Herzegovina (Court of BiH) ordered the custody of Nisvet Gasal and Musajb Kukavica.

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Related developments

On 19 September 2007, the Court of BiH confirmed the indictment against Gasal and Kukavica.

On 27 September 2007, Gasal and Kukavica entered a plea of not guilty.

On 22 November 2011, the Court of BiH foundGasal guilty of war crimes against civilians and sentenced him to six years in prison. Kukavica was acquitted of all charges. The Prosecutor’s Office of BiH as well as the Defence appealed on grounds of essential violations of the criminal proceedings provisions, erroneously and incompletely established facts, violations of the criminal code, and the sanctioning decision.

On12 October 2012, the Appellate Panel session was held.

On 7 December 2012, the verdict of 22 November 2011 was revoked and a re-trial before the Appellate Division was ordered (except for para. 6 of the operative part in relation to Gasal and Kukavica).

On 30 January 2013, the trial before the Appellate Division commenced.

On 18 December 2013, Gasal and Kukavica were found guilty of war crimes against prisoners of war (pursuant to Article 144 of the Criminal Code of Socialist Federal Republic of Yugoslavia), but the sentence was reduced to four years each.

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Legally relevant facts

Gasal was a warden of the FC Iskra Stadium detention camp in Bugojno, Bosnia and Herzegovina, and was one of the superiors to all camp guards and as such responsible for their actions. Kukavica was a security commander of the detention camp. Gasal and Kukavica were charged with running the camp between September 1993 and March 1994. In addition, they were also allegedly responsible for the actions of other guards.

According to the indictment, more than 300 Croatian men were detained in the detention camp where there was a lack of hygienic conditions, food, water and medical care, and where they were subjected to acts of torture committed by camp guards (p. 2). The detainees were also taken out of the camp by both Gasal and Kukavica and other guards, and subsequently escorted to the BH Banka premises in Bugojno where they were tortured (13 detainees never returned). Other detainees were used as human shields at the frontlines of the army of Bosnia and Herzegovina during their armed conflict with the army of the Republika Srpska and the Croatian Defence Council (HVO) (pp. 2-3).

Gasal and Kukavica were charged with inhumane treatment of the Croatian men, including civilians and HVO members, by detaining them in inhumane conditions and by subjecting them to forced labour and torture as war crimes against civilians (pursuant to Article 173(1)(c)(f) of the Criminal Code of BiH (CC BiH), Article 180(1) (individual criminal responsibility) and (2) (command responsibility)).

The additional separate allegations against Kukavica involved his presence or occasional participation during the selection of detainees for physical labour.  Following forced labour in the village of Prusac, six detainees were allegedly taken to the premises of BH Banka where they were tortured (one of them died, while another four were taken in an unknown direction, and still remain unaccounted for) (pp. 3-4).

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Core legal questions

Can Gasal and Kukavica be charged with war crimes against civilians?

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Specific legal rules and provisions

Geneva Convention IV, 1949:

  • Article 3(1)(a) and (c) - Conflicts not of an international character

Criminal Code of Bosnia and Herzegovina, 2003:

  • Article 29 - Accomplices

  • Article 173(1)(c) and (f) - War Crimes against Civilians

  • Article 180(1) - Individual Criminal Responsibility

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

  • Article 35(2)(h) - Rights and Duties

  • Article 226(1) - Issuance of the indictment

  • Article 227(1) - Contents of the indictment
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Court's holding and analysis

After analysing the facts of the case and the evidence collected, the preliminary hearing judge concluded that Gasal and Kukavica could be charged with war crimes against civilians.

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Instruments cited

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Additional materials

‘Case Information - Gasal Nisvet et al.’, Court of Bosnia & Herzegovina.

‘Nisvet Gasal’, TRIAL.

‘Musajb Kukavica’, TRIAL.

‘Bosnia: Two war crimes arrests’, b92, 23 March 2003.

‘Bosnia arrests two Muslims over war crimes’, Reuters, 23 March 2007.

C. Deliso, ‘Sarajevo Announces Revocation of Citizenships, but Bosnia’s ex-Mujahedin Have Vanished’, Balkanalysis.com, 24 March 2007.

'Custody ordered for Nisvet Gasal and Musajb Kukavica', Court of Bosnia & Herzegovina, 26 March 2007.

'Indictment confirmed in the case of Nisvet Gasal and Another', Court of Bosnia & Herzegovina, 21 September 2007.

'Nisvet Gasal and Musajb Kukavica entered not guilty plea', Court of Bosnia & Herzegovina, 27 September 2007.

'Status conference scheduled in the Nisvet Gasal and Another case', Court of Bosnia & Herzegovina, 28 November 2007.

'Commencement of the trial in the Nisvet Gasal and Another case', Court of Bosnia & Herzegovina, 13 December 2007.

'Custody terminated and prohibitive measures imposed on the Accused Nisvet Gasal and Musajb Kukavica', Court of Bosnia & Herzegovina, 4 July 2008.

'Custody in the Nisvet Gasal et al. case Terminated and Prohibiting Measures Imposed', Court of Bosnia & Herzegovina, 20 February 2009.

'First-instance Verdict in the Nisvet Gasal et al. case Pronounced', Court of Bosnia & Herzegovina, 22 November 2011.

'Public session of the Appellate Panel in the case v. Nisvet Gasal et al', Court of Bosnia & Herzegovina, 11 October 2012.

'Trial Verdict revoked in the case v. Nisvet Gasal et al.', Court of Bosnia & Herzegovina, 10 December 2012.

'Main trial commences before the Appellate Panel in the case v. Nisvet Gasal et al.', Court of Bosnia & Herzegovina, 29 January 2013.

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Social media links

‘Gasal and Kukavica: First Bugojno Indictment’, Justice Report, 21 September 2007.

‘Gasal and Kukavica Plead Not Guilty’, Justice Report, 27 September 2007.

D. Dzidic, ‘Indictment Change Delays Bugojno Detention Camp Trial’, Balkan Transitional Justice, 3 October 2013.

D. Dzidic, ‘Prosecutor Demands Convictions Over Bugojno Jail Camp’, Balkan Transitional Justice, 10 October 2013.