The Prosecutor v. Radisav Ljubinac

Court	Court of Bosnia and Herzegovina, War Crimes Chamber (Section I), Appellate Panel, Bosnia and Herzegovina, Bosnia and Herzegovina
Case number	X-KRZ-05/154
Decision title	Verdict
Decision date	4 October 2007
Parties	The Prosecutor Radisav Ljubinac
Categories	Crimes against humanity
Keywords	crimes against humanity, deprivation of liberty, extermination, other inhumane acts, persecution, superior orders
Links	Verdict
Other countries involved	Croatia (Hrvatska) Serbia-Montenegro

Summary

During the armed conflict that took place on the territory of the former Yugoslavia, Bosnian Serb forces including the Army of the Republika Srpska (RS), the police and paramilitary forces perpetrated attacks against the civilian population in the Rogatica municipality by detaining, murdering, raping and abusing persons of Muslim and Croat ethnicity. The Accused, Radisav Ljubinac, was a member of the RS living in Rogatica in 1995.

By a judgment of 25 April 2007, Section I of the War Crimes Chamber in the Court of Bosnia and Herzegovina convicted the Accused of crimes against humanity and sentenced him to 10 years’ imprisonment for his role in the forcible transfer of civilians and their maltreatment at the Rasadnik camp in Rogatica. By the present verdict, the Appellate Panel of the War Crimes Chamber confirmed the verdict of Section I and dismissed the appeals of the Prosecutor’s Office and the Defence. It amended the verdict only so far as to reflect Section I’s failure to dismiss a charge, which the Prosecutor had dropped during the trial.

Procedural history

On 20 December 2005, the Accused, Radisav Ljubinac, entered the custody of the Court of Bosnia and Herzegovina.

On 8 May 2006, the Prosecutor’s Office indicted the Accused on four counts of crimes against humanity: murder, forcible transfer of population, imprisonment and other inhumane acts. On 15 May 2006, the indictment against the Accused was confirmed.

On 5 June 2006, the Accused pleaded not guilty at a hearing before the Court.

A status conference was held on 30 August 2006 and the main trial commenced on 7 September 2006.

On 25 April 2007, Section I of the War Crimes Chamber in the Court of Bosnia and Herzegovina convicted the Accused of one count of forcible transfer of population as a crime against humanity and two counts of other inhumane acts as crimes against humanity. He was sentenced to 10 years’ imprisonment.

The verdict was appealed by both the Accused and the Prosecutor’s office.

Legally relevant facts

On 3 and 4 August 1992, the Accused took part in the forcible transfer of women, children and a small number of remaning adult men from the villages and settlements of the Local Community Seljani in the municipality of Rogatica to the camp which was based at the Secondary School Center Veljko Vlahović in Rogatica.

On 5 August 1992, after the men had been separated from the women and children at thHree Secondary School, the Accused took part in the forcible transfer of the women and children to Hreša in the municipality of Stari Grad Sarajevo.

Between end of June and October 1992, the Accused, on a number of occassions, kicked and punched the detained civilians at the Rasadnik camp near Rogatica.

On 15 August 1992, the Accused drove 27 civilians from Rogatica, including four children, to the village of Duljevac whereupon they were used as a human shield in front of Serb soldiers during the attack on Jačen (p. 2, Verdict at First Instance).

At the time of the relevant facts, the Accused was a member of the Serbian Army (RS) (p. 25, Verdict at First Instance).

Core legal questions

Can the Appellant rely on the defence of superior orders to exclude his criminal responsibility?

Specific legal rules and provisions

Articles 172(1)(a), (d), (e), (h), (k) and 180(1) of the Criminal Code of Bosnia and Herzegovina.

Court's holding and analysis

The Appellant's claims, that he was acting as a driver exclusively on the orders of his superiors, cannot relieve him of the responsibility for the consequences that resulted from his actions (p. 4).

The Appellate Panel dismissed the entirety of the Prosecution and the Defence’s grounds for appeal and amended the verdict only to reflect the dropping of one charge by the Prosecution at trial, which had not been correctly dismissed in the first instance verdict (p. 2).