The Prosecutor's Office v. Miladin Stevanovic

Court	Court of Bosnia and Herzegovina, War Crimes Chamber (Section I), Bosnia and Herzegovina, Bosnia and Herzegovina
Case number	X-KR-05/24-2
Decision title	Verdict
Decision date	29 July 2008
Parties	Prosecutor’s Office of Bosnia and Herzegovina Miladin Stevanovic
Categories	Genocide
Keywords	genocide, co-perpetrating, joint criminal enterprise
Links	Verdict

Summary

After the takeover of Srebrenica on 11 July 1995, several thousands of Bosniak men fled and attempted to reach Bosnian territory. Many of them were detained and over one thousand men were brought to a warehouse and executed. It is up to the Court to decide whether 10 men who allegedly were involved in the capturing, detaining and killing of these Bosniaks can be found guilty of genocide.

These men were certainly not the genocide masterminds, but members of a police force. The Court states that in a case of genocide, a distinction must be made between those who conceived and directed the acts of genocide (referred to as a joint criminal enterprise) and the common soldiers. Where the former group can be held accountable for all crimes that ensued, the latter group is only responsible for the acts they physically participated in. However, after the Court reviewed several witness statements, it considered Stevanovic’s presence during the transferring of prisoners and their execution unproven and his role in all this to be trivial. According to the Court, when Stevanovic became aware of what was expected of him, he was distinctly unhappy about and therefore he removed himself from the scene. As such, neither genocidal intent nor his participation in acts of genocide could be proven; the Court acquitted him from all charges.

Procedural history

Initially, Stevanovic was indicted with ten other members of the 2^nd Sekovici Detachment on 12 December 2005. They were accused of having co-perpetrated genocide, through participation in a joint criminal enterprise (JCE) and by conducting the following acts on 12 and 13 July:

Securing the road, following the plan to forcibly transfer about 25 thousand Bosniak women, children and elderly;
Conducting security actions in the area above Kamenica, attacking Bosniak men, forcing them to surrender;
Capturing and detaining several thousand Bosniaks by encouraging and deceiving them to surrender;
Handing 20-30 Bosniaks, who have been missing ever since, over to the Serbian army.
Detaining others in the warehouse of the Kravica Farming Cooperative, and subsequently taking part in killing them.

The JCE pertained to the forcible transfer women and children from the Srebrenica enclave on 12 and 13 July 1995 and the capture and detainment for execution of thousands of Bosniak men in the period between 12-19 July 1995.

Proceedings were separated on 21 May 2008. Stevanovic was charged individually with (complicity in) committing genocide in violation of Art. 171 of the Criminal Code of Bosnia and Herzegovina (CC BiH), in conjunction with Articles 29 and 180(1) of the CC BiH.

Related developments

On the same day as the current verdict, 29 July 2008, the Court issued first instance verdicts regarding the other members of the 2^nd Sekovici Detachment as well. The Court found seven of the accused guilty for the criminal offense of genocide. The Court sentenced Milenko Trifunović, Brano Džinić and Aleksandar Radovanović to 42 years' imprisonment; Miloš Stupar, Slobodan Jakovljević and Branislav Medan were sentenced to 40 years' imprisonment; and Petar Mitrović to 38 years. Velibor Maksimović, Dragiša Živanović and Milovan Matić were acquitted of all charges.

The convicted appealed their verdicts. Although the Appellate Panel confirmed their convictions, their sentences were modified by verdict of 9 September 2009. Milenko Trifunović was sentenced to 33 years' imprisonment, Brano Džinić and Aleksandar Radovanović to 32 years, and Slobodan Jakovljević and Branislav Medan to 28 years. The acquitting first-instance verdict regarding Milovan Matić was confirmed, and the verdict with regard to Miloš Stupar was revoked. He received a complete retrial, but was acquitted (again) by the Appellate Panel.

The Prosecutor appealed against Miladin Stevanovic his acquittal in the current case, but Appellate Panel found his appeal unfounded. It was dismissed and Stevanovic's acquittal was confirmed on 9 November 2009.

Legally relevant facts

After the takeover of Srebrenica on 11 July 1995, several thousand Bosniak men were captured, separated from women and children, detained and subsequently executed. Women, children and elderly were forcibly transferred. In this context, Stevanovic, a policeman part of the 2^nd Sekovici Detachment, was deployed at the Sandici meadow. On 13 July 1995, over a thousand Bosniaks, who were attempting to breakthrough towards Bosnian-held territory, were forced to surrender and were subsequently taken into captivity. They were taken to the Kravica warehouse, where they were executed on the same day (pp. 25-32). Stevanovic was alleged to have been one of the men capturing and detaining Bosniaks. According to the indictment, he killed prisoners by firing machine guns at them (p. 6).

Core legal questions

Has Stevanovic conducted the acts he is accused of and if so, do these acts qualify as genocide as described in Art. 171 CC BiH?
Has there been a specific intent to destroy, in whole or in part, the Bosniak population in Srebrenica by perpetrating these acts (pp. 42-44)?
Can Stevanovic be held individually responsible for the commission of genocide - did he co-perpetrate the crimes as alleged?
Can Stevanovic be held responsible for the commission of genocide as a member of a Joint Criminal Enterprise (JCE) aimed at forcibly evicting women and children from Srebrenica and capturing and detaining to execute thousands of Bosniak men?

Specific legal rules and provisions

Articles 29, 171 and 180(1) of the Criminal Code of Bosnia and Herzegovina (CC BiH).
Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide.
Article 4 of the ICTY Statute.

Court's holding and analysis

The Court concluded that Stevanovic was not member of an alleged JCE. It distinguished between those who conceived and directed the JCE - the commanders or leaders - and common soldiers. The former group is considered responsible for all crimes that ensued, while the latter group is only responsible for acts they participated in (pp. 93).

Several members of the 2^nd Sekovici Detachment participated in committing genocide, but the Court considered Stevanovic’s co-perpetration unproven. He participated in securing the road, an act too trivial to regard him as co-penetrator in forcibly transferring women, children and elderly (pp. 89-90). His participation in forcing Bosniaks to surrender, handing over Bosniaks to the army, shooting at least one captive and transporting prisoners, was not established (p. 90). The Court did establish, on the other hand, that Stevanovic had removed himself before the Bosniaks were transferred to the warehouse, only to return after the executions (pp. 88-89). The Court regarded transferring and executing the essence of the alleged offence of genocide, and Stevanovic’s presence before these acts took place alone is insufficient to qualify him as co-perpetrator of or accessory to killing and it does not indicate a genocidal intent (as is required for classifying an act as genocide) (p. 90). Stevanovic was acquitted.

Further analysis

A commentary on the Kravica massacre trials at the Court of Bosnia and Herzegovina, with an analysis of, e.g. the matter of Joint Criminal Enterprise was provided by Strippoli. In general, several articles have analysed the matter of JCE. The effects of transitional justice initiatives, e.g. the State Court of BiH, on post-conflict reconciliation was analysed by Kostić.

Instruments cited

Bosnia and Herzegovina, 1 March 2003, Criminal Code of Bosnia and Herzegovina.
Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute), UN Security Council, (UNSC Res. 808), 25 May 1993.

Additional materials

The Court provided case information. The trials against the suspects of the Kravica massacres received much attention, as it was the first trial of suspected genocide perpetrated in Srebrenica to be conducted by a national court. Also, the verdicts came shortly after the arrest of Radovan Karadzic and coincided with ultra-nationalist Serb demonstrations.