The Prosecutor v. Radoslav Brđanin

Court	International Criminal Tribunal for the Former Yugoslavia (ICTY) Trial Chamber II, The Netherlands
Case number	IT-99-36-T
Decision title	Judgment
Decision date	1 September 2004
Parties	The Prosecutor Radoslav Brđanin
Categories	Crime of aggression, Genocide, Human rights violations, War crimes
Keywords	crimes against humanity, genocide, war crimes, Grave breaches, joint criminal enterprise, Krajina
Links	Judgment
Other countries involved	Bosnia and Herzegovina

Summary

The Assembly of the Serbian People in Bosnia and Herzegovina proclaimed the Serbian Republic of Bosnia and Herzegovina in January 1992. Shortly afterwards, a strategic plan was created with the aim to remove the non-Serb population from the newly proclaimed Bosnian Serb state. To this extent, the local police, the newly created army and Serb paramilitary groups engaged in a campaign of attacks resulting in the commission of crimes against the non-Serb population. During this time, Brđanin was the President of the Autonomous Region of Krajina (ARK) Crisis Staff, which functioned as a center for cooperation between the Serb forces committing the crimes.

Trial Chamber II held that there was insufficient evidence to prove that the crime of genocide was committed in the territory of the ARK. Therefore, Brđanin could not be found guilty on such charges.

However, the ARK Crisis Staff's decision to disarm the non-Serbs was found to have assisted and substantially contributed to the commission of the crime of torture, which led Trial Chamber II to find Brđanin guilty of aiding and abetting torture both as a crime against humanity and as a grave breach of the 1949 Geneva Conventions.

Trial Chamber II furthermore found Brđanin guilty of other crimes against humanity and war crimes. He was sentenced to 32 years' imprisonment.

Procedural history

The initial indictment was issued against Radoslav Brđanin and another accused, Momir Talić. The case against the latter accused was separated on 20 September 2002. The operative (sixth) amended indictment against Brđanin was filed on 9 December 2003.

Related developments

Radoslav Brđanin filed his notice of appeal on 1 October 2004 and the Prosecution on 30 September 2004. The Appeals Chamber rendered its judgment on 3 April 2007, and reduced the sentence of Brđanin to 30 years of imprisonment.

On 4 March 2008, Radoslav Brđanin was transferred to Denmark to serve his sentence.

Legally relevant facts

On 9 January 1992, the Assembly of the Serbian People in Bosnia and Herzegovina proclaimed the Serbian Republic of Bosnia and Herzegovina which comprised of autonomous regions, including the Autonomous Region of Krajina (ARK). On 12 May 1992, the Assembly drew up a strategic plan to establish a Bosnian Serb state and forcibly and permanently remove the non-Serbs from the territory of the proclaimed Bosnian Serb state. These goals were substantially implemented through the Army of the Serbian Republic of Bosnia and Herzegovina (VRS) (para. 163 et seq.).

The crimes targeted the non-Serb population of 13 ARK municipalities. In April 1992, the Bosnian Serb forces, comprising of the Bosnian Serb police, army and Serb paramilitary groups, attacked towns and villages in the area, resulting in an extensive campaign of crimes being committed against the Bosnian Muslim and Bosnian Croat population. Prior to the attacks, public announcements called upon all individuals to surrender illegally possessed weapons. In practice, non-Serbs were deprived of their weapons, creating an imbalance of arms (para. 80 et seq.).

On 5 May 1992, the ARK Crisis Staff was established with the purpose to ensure co-operation between the political bodies, the army and the police forces. Radoslav Brđanin was the President of the ARK Crisis Staff (para. 188 et seq.).

Core legal questions

Have the requisite elements of the charged crimes been fulfilled?
If so, can Radoslav Brđanin be held criminally responsible for these crimes?

Specific legal rules and provisions

Articles 2, 3, 4 and 5 of the ICTY Statute.
Articles 7(1) and 7(3) of the ICTY Statute.

Court's holding and analysis

Trial Chamber II considered that “the ARK Crisis Staff decisions on disarmament constituted practical assistance to the attacks of the Bosnian Serb forces on non-Serb towns, villages and neighbourhoods. During and immediately after these attacks members of the Bosnian Serb forces committed a number of underlying acts of torture” (para. 530). Trial Chamber II was “satisfied beyond reasonable doubt that... the Accused was aware that the Bosnian Serb forces were to attack non Serb towns, villages and neighbourhoods and that through the ARK Crisis Staff decisions on disarmament he rendered practical assistance and a substantial contribution to the Bosnian Serb forces carrying out these attacks” (para. 532). Accordingly, he was found liable for aiding and abetting torture both as a crime against humanity and as a grave breach of the 1949 Geneva Conventions.

Brđanin was also found guilty of wilful killing (para. 378 et seq.), deportation and inhumane acts (para. 539 et seq.), wanton destruction of cities, towns or villages and destruction of institutions dedicated to religion (para. 584 et seq), and persecutions (para. 992).

As concerns the charges of genocide, “[o]n the basis of the evidence presented in this case, the Trial Chamber has not found beyond reasonable doubt that genocide was committed in the relevant ARK municipalities, in April to December 1992” (para. 989).

With respect to the mode of liability, Trial Chamber II considered that joint criminal enterprise (JCE) was not an appropriate mode of liability for Brđanin, since it considered that the principal perpetrator must be a member of the JCE, a condition which in the present case was not met.

Trial Chamber II convicted Radoslav Brđanin of four counts of crimes against humanity, two counts of grave breaches of the Geneva Conventions and two counts of violations of the laws or customs of war committed in the Autonomous Region of Krajina (ARK) (Bosnia and Herzegovina) between April and December 1992. Brđanin was sentenced to 32 years of imprisonment.