The Prosecutor v. Marko Samardžija

Court	Court of Bosnia and Herzegovina, War Crimes Chamber (Section I), Appellate Panel, Bosnia and Herzegovina, Bosnia and Herzegovina
Case number	X-KRŽ-05/07
Decision title	Verdict
Decision date	15 October 2008
Parties	The Prosecutor Marko Samardžija
Categories	Crimes against humanity
Keywords	aiding and abetting, crimes against humanity, Former Yugoslavia, Individual criminal responsibility, Kljuc Municipality, Murder
Links	Verdict

Summary

Marko Samardžija was the commander of the 3rd Company of the Sanica Battalion within the 17th Light Infantry Brigade. He has been accused of ordering soldiers under his command, on 10 July 1992, that the Bosniak (Muslim) population from the settlements of Brkići and Balagića Brdo (in the Ključ Municipality) leave their houses, after which the men older than 18 and younger than 60 were brought to the primary school in Biljani. From there, the men were murdered in groups of 5 to 10, which led to the deaths of at least 144 Bosniak men.

On Appeal, the Court found the Accused guilty of Crimes against Humanity for the deprivation of liberty of these men, since they were forcefully moved from their homes and taken to the primary school. The Court did not find him guilty of aiding in the murders, since this was not a clear and obvious consequence of his acts.

Therefore on 15 October 2008, the Appellate Division of the Court of Bosnia and Herzegovina found Marko Samardžija guilty of crimes against humanity (depriving of liberty) and sentenced him to seven years imprisonment.

Procedural history

Marko Samardžija has been in custody since 18 March 2005.

The Preliminary Hearing Judge, before whom the Accused pleaded not guilty in relation to all the criminal acts he was charged with, confirmed the indictment on 13 September 2005. After that, the file was referred to the War Crimes Section of the Court of Bosnia and Herzegovina for trial.

On 3 November 2006, the Trial Panel of the Court of Bosnia and Herzegovina found Marko Samardžija guilty of crimes against humanity (murder) and sentenced him to 26 years’ imprisonment.

On 27 April 2007, the verdict was revoked by the Appeals Chamber.

On 1 October 2007, the Court terminated the custody and imposed restrictive measures on Marko Samardžija.

On 13 May 2008 the re-trial started before the Appellate Panel.

Related developments

Marko Samardžija is currently imprisoned.

Legally relevant facts

In July of 1992, a widespread or systematic attack by the army and police of the so-called Serb Republic of Bosnia and Herzegovina was taking place in the Ključ Municipality. This attack was directed against the Bosniak (Muslim) civilian population. During the period of this attack, Marko Samardžija was a Commander of the 3^rd Company of the Sanica Battalion, and ordered that all Bosniak persons from the settlements of Brkići and Balagića Brdo leave their houses, and then separated men from women and children (pp. 1-2).

Samardžija ordered women to go towards the elementary school in the village of Biljani, while men over 18 and under 60 were taken to the same school, where they were first locked in the classrooms and subsequently killed in groups of 5 to 10. The rest of the men, as alleged in the indictment, were clubbed and subsequently placed in buses, which were used to transport the remaining civilians to the location of Lanište, and executed (pp. 1-2) (further information available here).

Core legal questions

Did the acts committed on 10 July 1992 amount to crimes against humanity as set out in Article 172 (1) a) CC BiH?
Did a widespread or systematic attack take place in the territory of the Ključ Municipality at the time of the criminal acts?
If so, was the widespread or systematic attack directed towards civilians?
Were the acts of the Accused part of the widespread or systematic attack?
Did the Accused have knowledge of the widespread or systematic attack?
And can ICTY case law be used to establish such a fact?
Did a severe deprivation of physical liberty take place?
Can Samardžija be held liable for instigation, incitement, or aiding and abetting murder?

Specific legal rules and provisions

Crimes: Article 172(1) a) CC BiH; Article 180 CC BiH; Article 29 CC BiH.
Imprisonment: Article 5(e) ICTY Statute; Article 9 Universal Declaration of Human Rights; Article 9 International Covenant on Civil and Political Rights (ICCPR).
Instigation, Incitement and Accessory: Article 21, 30 & 31CC BiH.
Status of Civilians: Article 3(1) Geneva Conventions.
Purpose of Punishment: Articles 6 & 39 CC BiH; Article 10(3) ICCPR; Article 105 Law on Execution of Criminal Sanctions, Detention and other Measures (LECS).
Legality and Time Constraints: Article 3 CC BiH; Article 7 (1) & (2) European Convention on Human Rights (ECHR); Article 15(1) & (2) ICCPR; Article 4 CC BiH.

Court's holding and analysis

The Panel points to the Kunarac, Kovač and Vuković case as well as the Kordićand Čerkez and the Blaškic cases for the definition of a widespread or systematic attack. Following the elements set out in these cases, the Panel finds the existence of both a widespread and a systematic attack indisputable (pp. 9-10 & 14).

When addressing the question whether the attack was directed against civilians, the Panel refers to the Geneva Conventions and concludes that it follows from the witness testimonies as well as the relevant documents that the attack was directed against the civilian, Bosniak, population. Not a single detained civilian was armed, in a military uniform or at the frontline, and there was no doubt regarding the ethnicity of the persons deprived of liberty (p. 15). The Panel further determines that the Accused took part in the act of depriving liberty, and had knowledge of the context in which these acts occurred, since he was a member of the Army of Republika Srpska, in the capacity of the Commander. The Accused had some authority and possibility of choice, and therefore was found guilty as a co-perpetrator to imprisonment of at least 50 civilians (pp. 15, 17 & 23).

Regarding the issue of legality, the Court points out that the crimes for which the Accused has been found guilty constituted crimes under international criminal law and thus fall under the general principles of international law. Therefore the BiH can be applied in this case (p. 33).

The Panel found the charges of instigation, incitement and aiding and abetting to murder not proven. pp. 24-31. The Panel determines that it is true that the Accused knew of some similar events occurring, but only as possible incidents (p. 31).

Therefore the Panel finds the Accused guilty of crimes against humanity by deprivation of liberty, and sentenced him to 7 years imprisonment (pp. 31-32).

Instruments cited

Universal Declaration of Human Rights, UNGA Res. 217 A(III), UN Doc A/810 91, UN General Assembly, 10 December 1948.
European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 222, 4 November 1950.
of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I), 12 August 1949, 75 UNTS 35, entered into force 21 October 1950.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II), 12 August 1949, 75 UNTS 81, entered into force 21 October 1950.
Geneva Convention relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75 UNTS 135, entered into force 21 October 1950.
Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949, 75 UNTS 287, entered into force 21 October 1950.
European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 222, 4 November 1950.
International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966.

Law on Execution of Criminal Sanctions, Detention and other Measures (LECS), 2001.
Criminal Code of Bosnia and Herzegovina, 27 June 2003.
Criminal Procedure Code of Bosnia and Herzegovina (CPC BiH), 2003.

Related cases

ICTY, Appeals Chamber, The Prosecutor v. Tihomir Blaškić, Case No.: IT-95-14-A, Judgment, 9 July 2004, #1420.
ICTY, Trial Chamber I, The Prosecutor v. Tihomir Blaškić, Case No.: IT-95-14-T, Judgment, March 2000, #206.
ICTY, Trial Chamber II, The Prosecutor v. Radoslav Brđanin, Case No.: IT-99-36-T, Judement, 1 September 2004, #2691 & 2696.
ICTY, Appeals Chamber, The Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Case No.: IT-96-23& IT-96-23/1-A, Judgment, June 2002, #94-95.
ICTR, Trial Chamber I, The Prosecutor versus Jean-Paul Akayesu, Case No.: ICTR-96-4-T, Judgment, 2 September 1998, #580.
ICTY, Trial Chamber III, The Prosecutor v. Dario Kordić and Mario Čerkez, Case No.: IT-95-14/2-T, Judgment, 26 February 2001, #179 & 185.
ICTY, Trial Chamber II, Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu, Case No.: IT-03-66-T, Judgment, 30 November 2005, #190.
ICTY, Trial Chamber II, Prosecutor v. Milorad Krnojelac, Case No.: IT-97-25-T, Judgment, 15 March 2002, #115.
Constitutional Court of Bosnia and Herzegovina, Abduladhim Maktouf, Case No. AP 1785/06, Decision on admissibility and merits, 30 March 2007.