The Prosecutor v. Marko Samardžija

Court	Court of Bosnia and Herzegovina, War Crimes Chamber (Section I), Bosnia and Herzegovina, Bosnia and Herzegovina
Case number	X-KR-05/07
Decision title	Verdict
Decision date	3 November 2006
Parties	The Prosecutor Marko Samardžija
Categories	Crimes against humanity
Keywords	aiding and abetting, crimes against humanity, Donji Biljani, Former Yugoslavia, Individual criminal responsibility, Klujč, 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 that the Bosniak (Muslim) men from the settlements of Brkići and Balagića Brdo (in the Ključ Municipality) leave their houses. Men older than 18 and younger than 60 were then consequently murdered in groups of 5 to 10. This resulted in the deaths of at least 144 Bosniak men.

While taking into account the ICTY and ICTR case law, and while pointing out that the issue of legality was not violated, the Court determined that Samardžija assisted in the commission of crimes against humanity. As a result, 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

Procedural history

Marko Samardžija has been in custody since 18 March 2005 (note that the date of 21 March 2005, as mentioned in the current decision of 3 November 2006, is incorrect (see appeals decision, p. 37).

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.

Related developments

On 27 April 2007, the verdict was revoked by the Appeals Chamber.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

On 15 October 2008, the Appellate Panel of Section I for War Crimes of the Court found Marko Samardžija guilty of imprisonment and severe deprivation of liberty (Crimes Against Humanity), and it sentenced him to seven years’ imprisonment.

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).

As a result, at least 144 men were killed that day. On 13 March 2006 the Panel visited the site in order to familiarize itself with the terrain of the village of Biljani and the vicinity where the event concerned had happened, with the aim of following the witnesses’ testimonies easier (p. 12).

Core legal questions

Did the alleged acts 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? And can ICTY case law be used to establish such a fact?
When can facts established in ICTY case law be applied to cases outside of the ICTY context?
Does the principle of legality allow for the application of the 2003 Criminal Code of BiH to acts committed in 1992?
Can Samardžija be held liable for instigation or aiding and abetting of the acts concerned?

Specific legal rules and provisions

Articles 3, 4(a), 172(1)(a), 180 of the Criminal Code for Bosnia and Herzegovina.
Articles 14 and 15 of the Code for Criminal Procedure fo Bosnia and Herzegovina.
Article II (2) Constitution of Bosnia and Herzegovina
Article 4 of the Law on Transfer of Cases from the ICTY to the Prosecutor’s Office of Bosnia and Herzegovina (LOTC).

Articles 6 and 7 of the European Convention for Human Rights.
Rule 94(B) of the ICTY Rules of procedure and Evidence.

Court's holding and analysis

The Court accepts as proven several established facts – amongst those the existence of a widespread or systematic attack – based on Article 4 LOTC and Rule 94(B) of the ICTY RPE. The Court furthermore points to the Krajišnik case, where the criteria for the applicability of Rule 94(B) are set out (pp. 18-19).

Regarding the issue of individual criminal responsibility, the Court has found guidance in ICTY and ICTR case law. Although the Accused is charged with the instigation of murder, the Court has not found evidence to support this allegation (p. 22). The Court does determine that the Accused aided and abetted the commission of a crime, making him individually liable. The mens rea of aiding and abetting does not need to be shared with the principal perpetrator, however the aider and abetter needs to have intended to provide assistance or accepted that such assistance would be a possible consequence of his conduct (pp. 22-23). The Accused carried out an act of practical assistance, and therefor made a significant contribution to the principal crime: the murder, a crime against humanity, of at least 144 Bosniak men (p. 30).

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. 38).

After concluding that the crimes in which the accused had taken an active part constituted crimes against humanity, and had violated the CC BIH, the court sentenced the Accused to 26 years of imprisonment (p. 37).

Instruments cited

Geneva Convention for the Amelioration 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.
Rules of Procedure and Evidence (ICTY RPE), UN ICTY, 11 February 1994 (last amended on 20 October 2011).

Criminal Code of the Socialist Federal Republic of Yugoslavia, 28 September 1976.
Criminal Code of Bosnia and Herzegovina, 27 June 2003.
Criminal Procedure Code of Bosnia and Herzegovina (CPC BiH), 2003.
Law on Transfer of Cases from the ICTY to the Prosecutor’s Office of BiH (LOTC), 61/04, 2004.
Constitution of Bosnia and Herzegovina, Parliamentary Assembly of BiH, No. 327/09 26, Sarajevo, March 2009.

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ICTY, Appeals Chamber, The Prosecutor v. Duško Tadić, Case No.: IT-94-1-A, Judgment, 15 July 1999, #229.
ICTY, Appeals Chamber, The Prosecutor v. Timohir Blaškić, Case No.: IT-95-14-A, Judgment, 29 July 2004, #50.
ICTY, Trial Chamber I, The Prosecutor v. Timohir Blaškić, Case No.: IT-95-14-T, Judgment, 3 March 2000, #285.
ICTY, Trial Chamber II, The Prosecutor v. Radoslav Brđanin, Case No.: IT-99-36-T, Judgment, 1 September 2004.
ICTY, Trial Chamber I, The Prosecutor v. Momćilo Krajišnik, Case No.: IT-00-39-PT, Decision on prosecution motions for judicial notice of adjudicated facts and for admission of written statements of witnesses pursuant to rule 92bis, 28 February 2003.
ICTY, Trial Chamber II, Prosecutor v. Vasiljevic, Case No.: IT-98-32-T, Judgment, 29 November 2002, #70.
ICTY, Trial Chamber II, The Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Case No.: IT-96-23-T& IT-96-23/1-T, Judgment, 22 February 2001, #391.
ICTY, Trial Chamber II, The Prosecutor v. Anto Furundžija, Case No.: IT-95-17/1-T, Judgment, 10 December 1998, #235 and 249.
ICTY, Trial Chamber I, The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgment, 25 June 1999, #62.
ICTY, Appeals Chamber, The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgment, 24 March 2000, #162-165.