Prosecutor's Office of Bosnia and Herzegovina v. Abduladhim Maktouf
| Court |
Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina |
| Case number |
KPŽ 32/05 (K-127/04) |
| Decision title |
Verdict |
| Decision date |
4 April 2006 |
| Parties |
- Prosecutor's Office of Bosnia and Herzegovina
- Abduladhim Maktouf
|
| Categories |
War crimes |
| Keywords |
War crimes; civilians; former Yugoslavia; hostages; accessory; murder |
| Links |
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back to topSummary
Abduladhim Maktouf is a businessman with Iraqi-Bosnian roots. After investigations had started in 2004 with regard to economic crimes, the Bosnian prosecution discovered that he might have been involved in war crimes committed by the Al Mujahid armed group that formed part of the army of Bosnia and Herzegovina in the armed conflict against the Croatian Defence Council (HVO), the army of the Bosnian Croats, during the early nineties. In 2005, an indictment was issued, alleging that Maktouf had facilitated the Al Mujahid by transporting them, while they were about to take a number of civilians as hostages in order to exchange them with the HVO for earlier captured Al Mujahid fighters, in his van towards the crime scene as well as assisting them in the actual hostage-taking and the subsequent ritual beheading of one of the hostages.
The first instance panel of the Court found that he had been guilty as accessory to the hostage-taking and sentenced him to five years’ imprisonment; his involvement in the beheading was not established, though. Both defence and prosecution appealed. After a partial retrial was ordered because the evidence was wrongly assessed in first instance, the Appellate Panel ruled on 4 April 2006 in the same manner as the first instance panel had done: Maktouf was found guilty of a war crime against civilians, and he again received a five-year prison sentence.
back to topProcedural history
Abduladhim Maktouf was arrested on 12 June 2004 in Bosnia and Herzegovina (BiH), initially on suspicion of economic crimes committed in the context of the electronics business he was working in. However, following in-depth investigations, he was indicted for war crimes. The Court of BiH confirmed the indictment on 16 September 2004; the final version of the indictment was submitted on 23 June 2005. In its first instance verdict, rendered on 1 July 2005, the Trial Panel found Maktouf guilty and sentenced him to five years in prison (the minimum sentence for the charged crimes). However, in appeal, the Appellate Panel revoked the first instance verdict and ordered a partial retrial before it. The hearings before the appellate panel started on 1 February 2006.
back to topRelated developments
Maktouf appealed against the Appellate Panel’s final decision at the European Court for Human Rights (ECtHR), petitioning for a retrial. In its judgment of 18 July 2013, the ECtHR held that the conviction had violated Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits retroactive punishments, because the Court of BiH had applied a criminal code that was not in effect when the crimes were committed. In line with Article 6 ECHR (which provides the right to a fair trial within a reasonable time), a new trial was ordered.
back to topLegally relevant facts
Maktouf, a citizen of both BiH and Iraq, was charged with the criminal offence of war crimes against civilians. He was accused of involvement in the Islamic militant Al Mujahid organisation; more specifically, it was alleged that he, on or about 18 October 1993 in Travnik (BiH), together with Al Mujahid fighters, illegally arrested, detained and took hostage four Croat civilians and one Serb, and that he drove one of the two vehicles used to carry the prisoners. Furthermore, Maktouf was accused of participation in the planning of the abduction operation, the abductions themselves, and their aftermath, in which the Serb captive was ritually beheaded.
The Trial Panel convicted him in first instance for aiding and abetting Al Mujahid in abducting the civilians (with his van), but no sufficient link could be established between Maktouf’s participation as driver and the murder of the captive civilian. He was sentenced to five years’ imprisonment. Both defence and prosecution appealed, the former arguing that the Trial Panel had erroneously evaluated the facts (moving for an acquittal), and the latter requesting the Court to issue a higher sentence.
The Appellate Panel found that the Trial Panel, in coming to its convicting verdict, had relied substantially on testimonies by one of the perpetrators – who was not prosecuted and acted as witness – and, thus, the Appellate Panel could not ‘rule out the existence of a de facto agreement between the Prosecutor’s Office of B-H and “the Witness”’ (p. 2 of the verdict ordering retrial). Therefore, the first instance verdict was partially revoked. A retrial was ordered in order to reassess the other evidence before the Court with the aim to establish beyond a reasonable doubt whether Maktouf was guilty or not.
back to topCore legal questions
Was there sufficient evidence – except for the testimonies of the perpetrator-witness – for the Trial Panel to conclude that Maktouf was, indeed, guilty of a war crimes against civilians?
back to topSpecific legal rules and provisions
Geneva Convention (IV), 1949:
The Criminal Code of the Socialist Federal Republic of Yugoslavia, 1977:
Criminal Code of Bosnia and Herzegovina, 2003:
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Articles 29 - Accomplices
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Article 173(1)(e) - War Crimes against Civilians
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Article180 - Individual Criminal Responsibility
back to topCourt's holding and analysis
On 4 April 2006, the Appellate Panel of the Court of Bosnia and Herzegovina found Maktouf guilty of war crimes against civilians. The Appellate Panel noted that several facts were indisputable: at that time and place, there was an armed conflict to which Al Mujahid (previously “the Muslim Unit”) was party, as it was part of the army of BiH. Shortly before the events laid out in the indictment took place, Croatian Defence Council (HVO) forces had captured some Al Mujahid members, leading the Al Mujahid to abduct the five civilians in order to exchange them for their captured members; the green van used to transport the Al Mujahid members and the hostages was owned by Maktouf.
The evidence in the case, which came forth from several witness testimonies, was sufficient to conclude that the civilians, when they were captured, were not taking part in the hostilities and, therefore, they were entitled to protection under the laws of war. In addition, it could be concluded that the captured civilians were used as hostages, that is to say they were used to threaten the other party to the conflict, the HVO, in order to compel them to do something for the Al Mujahid (namely to release the captured fighters) (pp. 9-10). However, ‘[t]he accessory in commission of the criminal offense ends for the Accused at the moment when he drove the vehicle with the abducted civilians to the entry of the Orašac camp. The presented evidence does not prove in any manner involvement of the Accused in the mistreatment of civilians in the camp, thus, he cannot, by any means be linked with the death of Dragoljub Popović, who was murdered on the relevant evening’ (p. 16).
Accordingly, the Appellate Panel rejected the prosecutor’s appeal for a higher sentence and sentenced Maktouf, again, to five years’ imprisonment.
back to topInstruments cited
back to topRelated cases
The ECtHR’s judgment ordering retrial of Maktouf’s case, also concerned convicted war criminal Goran Damjanović.
back to topAdditional materials
‘Abdoulahim Maktouf’,TRIAL.
‘Abduladhim Maktouf - Case Information’, Court of Bosnia & Herzegovina
‘Maktouf sentenced to five years’, Center for Investigative Reporting, 1 July 2005.
‘Pronouncement of judgement in the Maktouf case’, Court of Bosnia & Herzegovina, 3 April 2006.
‘Abduladhim Maktouf sentenced to five years imprisonment’, Court of Bosnia & Herzegovina, 5 April 2006.
S. Ucanbarlic, ‘Renewal of Trial of Maktouf Approved’, Justice Report, 9 October 2013.
L. Laing, ‘Bosnia court reopens trial on war crimes convicts’, Jurist, 10 October 2013.
