Prosecutor’s Office of Bosnia and Herzegovina v. Milorad Trbic

Court	Court of Bosnia and Herzegovina, War Crimes Chamber (Section I), Bosnia and Herzegovina, Bosnia and Herzegovina
Case number	Case X-KR-07/386
Decision title	First Instance Verdict
Decision date	16 October 2009
Parties	Milorad Trbic Prosecutor’s Office of Bosnia and Herzegovina
Categories	Genocide
Keywords	genocidal intent, genocidal plan, genocide, joint criminal enterprise, property claims, rule 11 bis
Links	First Instance Verdict

Summary

In the conflict in the former Yugoslavia, Milorad Trbic was a deputy chief of the Zvornik Brigade of the Army of the Republika Srpska. He participated in the genocide of Bosniak men in Srebrenica in July 1995 by. He did this by, among other things, firing automatic rifles at them during executions, and supervising and coordinating the detention and execution of Bosniak men at various sites in the area around the city of Zvornik.

Milorad Trbic was first indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY). On 27 April 2007, the case was referred the Court of Bosnia and Herzegovina for further processing, pursuant to Rule 11bis of the Tribunal’s Rules of Procedure and Evidence, taking into consideration the gravity of the crimes charged and the level of responsibility of the accused, and the standard of procedure in the country to where the case is referred.

On 16 October 2009, the Court of Bosnia and Herzegovina found Trbic guilty of genocide committed in the Srebrenica area in July 1995, through his participation in a joint criminal enterprise (JCE). For criminal responsibility to arise via participation in a JCE there had to be a consistent and core group of actors with a common plan or purpose to commit a crime, with the accused to both intend and participate in the commission of that crime. The Court held that this was the case with Milorad Trbic. He was sentenced to 30 years in prison.

Procedural history

Milorad Trbic was an accused before the International Criminal Tribunal for the former Yugoslavia (ICTY) whose case was referred to the authorities of Bosnia and Herzegovina for further processing on 27 April 2007. The case was referred by the ICTY pursuant to Rule 11bis of the Tribunal’s Rules of Procedure and Evidence, taking into consideration the gravity of the crimes charged, the level of responsibility of the accused and the capacities of the legal system in Bosnia and Herzegovina.

On 25 July 2007, the Court of Bosnia and Herzegovina (BiH) accepted an adapted indictment against Milorad Trbic, which charges him with Genocide. The Court also confirmed additional charges by which the Prosecutor’s Office of BiH extended the indictment which was originally confirmed by the International Criminal Tribunal for the former Yugoslavia (ICTY).

On 9 August 2007, Milorad Trbic failed to appear at a plea hearing before the Court. The Court recorded a plea of not guilty in accordance with the law.

Related developments

Both Prosecution and Defence, as well as a number of injured parties, appealed the First Instance verdict. The appeal hearing was held on 21 October 2010.

The Appellate Panel rendered the Appellate Verdict on 17 January 2011, rejecting appeals brought by all parties and upholding the First Instance Verdict of 16 October 2009 in its entirety. (NB: the Appellate Verdict (Second Instance Verdict) is dated according to when the appellate session was held. Accordingly, the appellate verdict in Trbic is dated 21 October 2010.)

Legally relevant facts

During the armed conflict in the former Yugoslavia, Milorad Trbic was deputy chief of the Zvornik Brigade of the Army of Republika Srpska (VRS) and was involved in the events in Srebrenica in July 1995. He participated in the forcible transfer of the Bosniak population from the Srebrenica enclave to detention sites in schools in the Zvornik area. He supervised the detention of Bosniaks and participated in executions.

More specifically, on 14 July 1995, at the Grbavci School in Orahovac, Trbic supervised the Military Police, and participated, in the execution of Bosniak men who were detained in the school (paras. 483-484). On or about 15 July 1995 at Rocevici School, Trbic participated in the execution of male Bosniak detainees by firing an automatic rifle at them (paras. 562-571). Also on 15 July 1995, at Kula Grad, Zvornik, Trbic coordinated and supervised the execution of a group of detained Bosniak men (paras. 607-610). On 16 and 17 July 1995, Milorad Trbic provided and coordinated communication between and with other VRS officers carrying out the operation to capture, detain, transport, execute and bury able-bodied Bosniak men from Srebrenica who had been detained in schools in the zone of responsibility of the Zvornik Brigade (paras. 660-689). Milorad Trbic also supervised, directed and coordinated the reburial of bodies exhumed from primary mass graves in the Zvornik and Bratunac Brigade zones of responsibility, and their transfer to secondary grave sites( paras. 717-727).

Core legal questions

Was genocide committed in Srebrenica?
Was the genocide carried out by way of a Joint Criminal Enterprise?
How is it established that an accused possessed the specific intent (mens rea) for the crime of genocide?
How is an accused’s criminal responsibility determined in the light of participating in a Joint Criminal Enterprise as a mode of liability?

Specific legal rules and provisions

Articles 21, 29, 171 and 180(1) of the Criminal Code of Bosnia and Herzegovina.

To assess whether the accused possessed the specific genocidal intent to destroy a protected group in whole or in part, committing genocide, the Court looked at specific criteria: 1) whether there is evidence of acts contrary to genocidal intent (para. 807); 2) whether there is evidence as to methodical planning (paras. 808-809); 3) the totality of the accused’s single mindedness of purpose. (paras. 810-811); whether there were efforts made to overcome resistance of victims (para. 812; 4) whether there were efforts made to overcome resistance of other perpetrators (para. 813); 5) whether there were efforts made to bar the escape of victims (para. 814); 6) whether there was persecutory cruelty to victims (para. 815); 7) whether the accused participated on-going within the act itself. (para. 816); 8) whether the accused participated in multiple destructive acts (para. 817); 9) the acts themselves and the manner in which they were perpetrated (paras. 818-826).

The Court states that the elements necessary to prove the basic form of Joint Criminal Enterprise liability are: “plurality of persons, a common plan or purpose to commit a crime and the participation or joining in of the accused in the furtherance of the plan or purpose.” (para. 731). It is also required that “the accused must both intend the commission of the crime and intend to participate in a common plan aimed at its commission” (para. 731).

Court's holding and analysis

The Court found Trbic guilty of the crime of genocide by way of joint criminal enterprise and sentenced him to 30 years in prison. The Court acquitted Trbic of certain specific charges because of insufficient evidence (para. 776, paras. 828 et seq.).

The Court looked at several cases of three different courts to conclude that genocide occur in Srebrenica (para. 223-229) The Court considered that in the Bosnia and Herzegovina v. Serbia and Montenegro case at the International Court of Justice, the Krstic and Blagojevic and Jokic cases before the ICTY and the Prosecutor’s Office of BiH v. Miloš Stupar et al case at the Court of Bosnia and Herzegovina, the courts all concluded that the events in Srebrenica must be qualified as genocide.

The Court held that Trbic perpetrated this offense through his participation in a joint criminal enterprise (para. 730). The Court considered that the elements for JCE were met: there was a consistent and core group of actors (plurality of persons)(para. 734) and a common plan or purpose to commit a crime, namely the killing of Bosniak men in Srebrenica(para. 751). Trbic participated and joined in on the furtherance of the plan or purpose (para. 773). Trbic both intended the commission of the crime and intended to participate in a common plan aimed at its commission (para. 774).

To assess whether the accused possessed the specific genocidal intent to destroy a protected group in whole or in part, committing genocide, the Court considered that there was no evidence of acts contrary to genocidal intent (para. 807); that there was evidence of methodical planning, as the accused organized and prepared the acts (paras. 808-809); that Trbic was completely resolute in his execution of the plans, (paras. 810-811); that he made efforts to overcome resistance of victims (para. 812; that he made efforts to overcome resistance of other perpetrators, showing them how to do the executions (para. 813); that he made efforts to bar the escape of victims (para. 814); 6) that there was persecutory cruelty to victims (para. 815); that Trbic participated on-going within the act itself (para. 816); that Trbic participated in multiple destructive acts (para. 817); the nature of the acts themselves and the manner in which they were perpetrated (paras. 818-826). Taking the above into consideration, the court found that Trbic possessed the specific intent for the crime of genocide. (para. 827)