The Prosecutor v. Vlastimir Đorđević

Court	International Criminal Tribunal for the Former Yugoslavia (ICTY) Trial Chamber II, The Netherlands
Case number	IT-05-87/1-T
Decision title	Public Judgment with Confidential Annex
Decision date	23 February 2011
Parties	The Prosecutor Vlastimir Đorđević
Categories	Crimes against humanity, War crimes
Keywords	1999, Albanians, crimes against humanity, deportation, Forcible transfer, Kosovo, Murder, persecution, war crimes
Links	Public Judgment with Confidential Annex
Other countries involved	Kosovo

Summary

In the period between January and June 1999, the Serb forces conducted a campaign of attacks against the Albanian population of Kosovo, with the aim to remove them from the region. The bodies of the Kosovo Albanians were concealed in centers near Belgrade and later buried in secret mass graves. Ðorđević, who was the head of the police forces, was charged with war crimes and crimes against humanity.

The Chamber came to the conclusion that Ðorđević participated in a common plan to eliminate the Albanian population of Kosovo, and that his role was indispensable for the fulfillment of the operation.

The Chamber found him guilty of aiding and abetting the charged crimes due to his direct involvement in the concealing of bodies murdered by the Serb forces. He also failed to conduct an investigation of these crimes, which was sufficient for his conviction. Ðorđević was sentenced to 27 years of imprisonment.

Procedural history

The accused was indicted for the first time in 2003, the final operative fourth amended indictment being issued on 2 June 2008. The trial of Ðorđević began on 27 January 2009, and closing arguments were heard between 13 and 14 July 2010.

Related developments

Both parties submitted a notice of appeal on 24 May 2011 (see here for the Prosecutor's notice, and here for the Defence notice). On 15 August 2011, the Defence submitted its appeal brief.

On 27 January 2014, the Appeals Court issued its judgment, granting some of the defence's and of of the prosecution's grounds. On the one hand, it found that the Trial Chamber had erred convicting Ðorđević for the crime of deportation because it had failed to illustrate "the basis in customary international law upon which a de facto border could be established in this instance" (p. 3). Thus, two counts of crimes against humanity in the form of deportation were quashed. Additionally, while it was "in the discretion of the Trial Chamber" to enter convictions on the basis of aiding and abetting as well as on a joint criminal enterprise (JCE), it had failed to articulate why it was necessary to use both modes of liability in this case. Hence 5 counts with respect to aiding and abetting were reversed (the conviction for JCE was deemed sufficient) (p. 4). On the other hand, a conviction for persecution through sexual assault as crime against humanity pursuant to a JCE was added.

Despite the new conviction - but "by no means intend[ing] to suggest that the crimes for which Ðorđević has been convicted on appeal are not grave" - the Appeals Chamber found that, taking into account the quashing of the convictions based on aiding and abetting, "a reduction in Ðorđević's sentence is appropriate". His sentence was reduced from 27 to 18 years.

Legally relevant facts

Between January and June 1999, the Albanian population of Kosovo was under a heavy attack from the Serbian Army and police. The Serbian forces shelled several towns and villages which resulted in the death of hundreds of people, and in the deportation of Kosovo Albanians from the region. The attacks further manifested in the burning of homes, murdering of civilians, sexually assaulting Kosovo Albanian women and destroying the Kosovo Albanian cultural heritages (paras. 165-501).

In April 1999, trucks carried the bodies of Kosovo Albanians to two centers near Belgrade that were under the control of the Ministry of Internal Affairs of Serbia. The bodies were then reburied in mass graves (paras. 501-553).

At this time, Ðorđević was the Chief of the Public Security Department, which amounted to the Chief of the Police Forces, within the Ministry of Internal Affairs of Serbia (pp. 14-15). He held the rank of Colonel-General, and was entrusted with the command of several police forces (p. 17).

Core legal questions

Can Ðorđević be held individually liable under Article 7(1) of the Statute for planning, instigating, ordering and aiding and abetting the charged crimes?
Can Ðorđević be held liable under Article 7(1) of the Statute for participating in a joint criminal enterprise?
Can Ðorđević be held responsible under Article 7(3) of the Statute for failing to prevent and punish the charged crimes by his subordinates?

Specific legal rules and provisions

Articles 3 (War Crimes), 5 (Crimes Against Humanity), 7(1) (Individual Criminal Responsibility)and 7(3) (Command Responsibility) of the ICTY Statute.

Court's holding and analysis

The Chamber held that the alleged crimes of deportation, forcible transfer, murder and persecution have been committed by the Serbian forces (paras. 1603 et seq.).

The Chamber first concluded that there was a joint criminal enterprise, which aimed to eliminate the Kosovo Albanian population through various coordinated and large scale actions (para. 2130). The Chamber was satisfied that Ðorđević was a participant to this common plan due to his effective control over the police forces in Kosovo and his detailed knowledge of the criminal behavior of these forces (para. 2158).

Furthermore, the Chamber found that Ðorđević played a crucial role in concealing the murders of the Kosovo Albanians by instructing the burial of bodies, and ordering the preclusion of judicial investigations, which effectively prevented the punishment of Serbian forces. He was found guilty of aiding and abetting the alleged crimes under Article 7(1) of ICTY Statute (para. 2164).

The Chamber further held that Ðorđević, even though guilty under Article 7(3) of the Statute as well, could not be convicted under this latter provision due to the adverse finding already determined under Article 7(1) (para. 2192). (See also para. 1891 of the decision for more information: “Where both Article 7(1) and Article 7(3) responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing”.)

Ðorđević was sentenced to 27 years of imprisonment (para. 2231).