Prosecutor's Office of Bosnia and Herzegovina v. Šefik Alić
| Court |
Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina |
| Case number |
X‐KRŽ‐06/294 |
| Decision title |
Second Instance Verdict |
| Decision date |
20 January 2011 |
| Parties |
- Prosecutor’s Office of Bosnia and Herzegovina
- Šefik Alić
|
| Categories |
Torture, War crimes |
| Keywords |
War crimes; prisoners of war; torture; murder; Oluja military operation; Hamza Battalion |
| Links |
|
back to topSummary
Šefik Alić was born on 3 March 1968 in Dobro Selo in the municipality of Buzim, Bosnia and Herzegovina. Alić was Assistant Commander for Security of the Hamza Battalion of the army of Bosnia and Herzegovina. On 5 August 1995, during the Oluja military operation, soldiers of both the Hamza Battalion and Tewfik Al Harbi captured four soldiers of the army of the Republic of Srpska Krajina. Even though the Hamza Battalion had to protect them, the four soldiers were physically and mentally abused, and Alić participated in the abuses. The four soldiers were subsequently killed by members of Tewfik Al Harbi. As Assistant Commander, Alić had a duty to punish soldiers that committed crimes under his command, but he failed to do so. On 20 January 2011, the Appellate Panel of the Court of Bosnia and Herzegovina found Alić guilty of war crimes against prisoners of war and sentenced him to 10 years imprisonment.
back to topProcedural history
On 2 November 2006, Šefik Alić was arrested.
On 4 November 2006, the Court of Bosnia and Herzegovina (Court of BiH) issued a custody order for Alić pursuant to Article 132(1)(b) of the Criminal Procedure Code of Bosnia and Herzegovina (CPC of BiH).
On 31 January 2007, the indictment charging Alić with war crimes against prisoners of war was confirmed.
On 15 February 2007, Alićfailed to appear at a plea hearing, and the Court of BiH entered a plea of not guilty for Alić.
On 11 May 2007, the trial commenced.
On 11 April 2008, the Trial Panel of Section I for War Crimes of the Court of BiH acquitted Alić of committing war crimes against prisoners of war and issued a decision terminating the imposed prohibitive measures. The Prosecutor’s Office appealed the verdict.
On 23 March 2009, the Appellate Panel of Section I for War Crimes of the Court of BiH, in a second-instance decision (in Bosnian), revoked the first-instance verdict and scheduled a retrial before the Appellate Panel.
back to topRelated developments
The Defence counsel appealed against the second-instance verdict issued by the Appellate Panel.
On 14 October 2011, the third-panel session was held (in Bosnian).
On 22 December 2011, the third-instance Panel of the Appellate Section of the Court dismissed the appeal of Alić’s Defence counsel and upheld the second-instance verdict of 20 January 2011.
On 4 July 2014, the Constitutional Court of Bosnia and Herzegovina found a violation of Alić’s rights under Article II/2 of the Constitution of Bosnia and Herzegovina and Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, the Court revoked the third-instance verdict, and referred the case back.
On 22 September 2014, the third-instance panel of the Appeals Division of the Court of Bosnia and Herzegovina partly upheld the appeal filed by the Defence counsel, and modified the verdict issued by the Appellate Panel on 20 January 2011 by applying the Criminal Code of the Socialist Federal Republic of Yugoslavia. Alić was found guilty of war crimes against prisoners of war and was sentenced to eight years imprisonment.
back to topLegally relevant facts
Alić was Assistant Commander for Security of the Hamza Battalion, the 4th Battalion of the 505th Brigade of the 5th Corps of the army of Bosnia and Herzegovina.
The events alleged in the indictment took place during the Oluja military operation in August 1995. At that time, there was an ongoing armed conflict between the army of Bosnia and Herzegovina and the army of the Serbian Republic of Krajina, which was created by Serb rebels in early 1991. The Hamza Battalion was a military formation that took part in the armed conflict on the side of the army of Bosnia and Herzegovina.
back to topCore legal questions
Did the Trial Panel commit errors in law and in fact?
back to topSpecific legal rules and provisions
Geneva Convention IV, 1949:
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:
Criminal Code of Bosnia and Herzegovina, 2003:
-
Article 3 - Principle of Legality
-
Article 4 - Time Constraints Regarding Applicability
-
Article 21 - Manner of Perpetrating Criminal Offence
-
Article 29 - Accomplices
-
Article 35 - Intent
-
Article 175(a) - War Crimes against Prisoners of War
Article 180(1) and (2) - Individual Criminal Responsibility
Instruction on the Application of the Rules of International Law on War in the Armed Forces, 1992, Bosnia and Herzegovina:
Rules for Work of the Military Security Service in the Armed Force of the Republic of Bosnia and Herzegovina, 1992:
back to topCourt's holding and analysis
The Appellate Panel of Section I for War Crimes of the Court of BiH rendered thesecond-instance verdict. The Panel found Alić guilty of war crimes against prisoners of war and sentenced him to 10 years imprisonment.
In establishing Alić’s guilt, the Panel addressed the requirements and rules of international law as the relevant ‘blanket’ regulations for the criminal offences charged (war crimes against prisoners of war). The existence of an armed conflict was not contested during the proceedings (para. 93). The Panel stated that on the basis of Alić’s position as the Assistant Commander of the Hamza Battalion, it was beyond doubt that there was a nexus between him and the conflict (para. 96).
Furthermore, the Panel addressed the status of the victims. The Panel held that there was ‘no dilemma that the victims were four members of the Army of Serb Krajina who had laid down their arms, […]’. It was also clear that they were ‘prisoners of war, captured in the zone of war operations during the Oluja military operation, and that, as such, they fell in the category of protected persons defined in Common Article 3 of the Geneva Conventions’ (para. 98).
With respect to the offence of inhumane treatment, the Panel defined it as ‘conduct which deliberately causes serious mental and physical suffering that falls short of the severe mental and physical suffering required for the offense of torture’ (para. 105). The Panel further held that, in defining such acts, relevant factors are the objectiveelement (the consequences that the acts have on a victim), the subjectiveelement (how the acts are perceived by the victim) (para. 106), and ‘the nature, duration and intensity of act in question, the consequences of the act on the bodily and mental integrity of its victims, the circumstances in which the acts against the victims were committed’ (para. 107). With respect to the threshold, the Panel stated that it is ‘subsumed under the interval ranging from ill‐treatment to torture, but which, by their nature, intensity, character and effect, do not reach the threshold sufficient to be characterized as torture given that they do not carry the same weight or the same consequences’ (para. 109). As a result, the Panel disagreed with the Trial Panel because the threshold (reaching the level of ‘atrocity’ and ‘barbarism’) used by the latter, satisfied the requisites for torture and not less serious acts of ill‐treatment (paras. 110-112).
The Panel concluded that Alić’s ‘acts of physical abuse and intimidation, combined with the acts committed by Tewfik, which were tacitly encouraged by the Accused, viewed in context and taking into account the timing, location and circumstances, constitute inhuman treatment of the prisoners referred to in Article 175(a) of the CC B-H’ (para. 119).
With respect to the killings, the Panel found Alić guilty for failing to protect the persons of which he knew were prisoners whose lives were threatened and who would be killed (para. 136). Having established Alić’s ‘guilt and personal participation in the killing of the prisoners of war by omission’, the Panel found it unnecessary to establish his guilt on the basis of command responsibility (para. 148).
back to topInstruments cited
back to topAdditional materials
‘Sefik Alic’, TRIAL.
‘Pronouncement of the second-instance Verdict in the Šefik Alić case’, Court of Bosnia & Herzegovina, 19 January 2011.
M. Rener, ‘Šefik Alić osuđen na deset godina zatvora’, Nezavisne Novine, 20 January 2011.
‘Šefik Alić kriv za ratne zločine’, Radio Sarajevo, 20 January 2011.
‘Ten Year Prison Sentence for Sefik Alic’, Justice Report, 20 January 2011.
‘Šefik Alić Osuđen Na Deset Godina Zatvora’, Radio Televizija Republike Srpske, 20 January 2011.
‘ШефикАлич, бившбосненскимюсюлманскикомандир, беосъденназатвор’, SETimes, 21 January 2011.
‘Čelnik Armije BiH osuđen zbog ratnih zločina’, Dalmacija News, 21 January 2011.
‘Šefik Alić sentenced to 10-year imprisonment’, Court of Bosnia & Herzegovina, 21 January 2011.
‘Sefik Alic, Former Muslim Commander, Sentenced To Prison’, Akademedia Srbija, 21 January 2011.
‘Šefik Alić za ratni zločin osuđen na 10 godina zatvora’, Vijesti.ba, 26 December 2011.
‘Alic’s Prison Sentence Reduced to Eight Years’, Justice Report, 14 October 2014.
back to topSocial media links
‘Šefik Alić Osuđen Na Deset Godina Zatvora’, Radio Televizija Republike Srpske, 20 January 2011.
J. P. Putney, ‘Bosnia war crimes court sentences Muslim commander to 10 years’, Jurist, 21 January 2011.
