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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
  • The Prosecutor
  • Marko Samardžija
Categories Crimes against humanity
Keywords aiding and abetting, crimes against humanity, Former Yugoslavia, Individual criminal responsibility, Kljuc Municipality, Murder
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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. 

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On 27 April 2007, the verdict was revoked by the Appeals Chamber.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

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Related developments

Marko Samardžija is currently imprisoned.

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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 3rd 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).

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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?

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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.

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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).

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Instruments cited

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Related cases

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Additional materials