Michele Picard, judge in the Tribunal

Last week, the Trial Chamber acquitted former chiefs of the Serbian State Security Service Jovica Stanisic and Franko Simatovic of the charges that they were part of a joint criminal enterprise aimed at ethnically cleansing large areas in Croatia and BH; it was a majority decision, with judges Alphons Orie and Elizabeth Gwaunza outvoting Judge Michele Picard. In her dissenting opinion appended to the judgment, Judge Picard presented the reasons for her substantial disagreement with the majority’s decision.

According to the French judge, many of the findings in the judgment ‘do not address the reality’ of the involvement of the accused in the crimes. Unlike the majority who decided that the evidence could be interpreted in a number of ways and that therefore it was not possible to reasonably conclude that Stanisic and Simatovic had the intent to implement the goal of the joint criminal enterprise, Picard begged to differ. A reasonable interpretation of a vast quantity of evidence was that the accused shared with the others the intent to establish Serb control over large parts of Croatia and BH by deporting non-Serbs, Judge Picard noted.

Judge Picard found that the ‘close” ties and ‘robust support’ rendered by both of the accused to the police and paramilitary units that committed the crimes pointed to their ‘key role’ in the process of ethnic cleansing of the territories the Serbs claimed as theirs. The majority didn’t look at the ‘entire picture’, opting to analyze the evidence in ‘isolated fashion’; this resulted in erroneous conclusions.

Analyzing the geographical and chronological sequence of events judge Picard first reviewed the role of the accused in the Serb Autonomous Region of Krajina. Judge Picard highlighted the cooperation of the accused and the former Krajina Serb leader Milan Martic and his ‘Krajina militia’, who were involved in the murders and deportations of 80,000 to 100,000 Croats from the area. The two accused exerted considerable influence over Martic. According to the French judge, the evidence showed that the Serbian State Security Service played a key role in the events in Krajina. For example, Dusan Orlovic, as the head of the Krajina State Security Service, reported directly to Stanisic. The French judge also recalled the conclusion of the Trial Chamber that the accused ‘had to know’ about the crimes in Krajina, adding that Stanisic and Simatovic nevertheless continued providing assistance to Martic and the ‘Krajina militia’. This is why Judge Picard is convinced that Stanisic and Simatovic shared Martic’s intent to forcibly and permanently remove Croats from Krajina. Martic was sentenced to 35 years in prison by the Tribunal; his judgment identifies Jovica Stanisic and Franko Simatovic as members of a joint criminal enterprise whose purpose was to ethnically cleanse Krajina.

Speaking about the crimes in the Serb Autonomous Region of Slavonia, Baranja and Western Srem (SBWS), Judge Picard stressed that the responsibility of the accused could be clearly seen from their triple line of control over the events. The first line of control went through the president of the self-proclaimed Serb region Goran Hadzic. Hadzic was ‘under the total control of Jovica Stanisic’ as shown by the testimony of late Krajina Serb leader Milan Babic and other evidence. Secondly, the accused were linked with the Serb Volunteer Guard run by Zeljko Raznatovic Arkan, a unit involved in the murders and deportation of non-Serbs from that area. Judge Picard recalled that in 1994 and 1995 the Serbian State Security Service paid, supplied and deployed Arkan’s unit mostly in the battlefields in Bosnia and Herzegovina. As the French judge explained, witnesses testified that Arkan told them that ‘Jovica Stanisic was his boss’, that Arkan had a Serbian State Security Service ID card and he claimed he was working for the Service. Finally, Picard noted that the accused controlled the situation in Eastern Slavonia through high-ranking police officials in SBWS, Ilija Kojic and Radoslav Kostic, who were both agents of the Serbian State Security Service.

In the part of the judgment relating to the crimes in BH, the French judge found that the members of the Serbian State Security Service unit, the Red Berets, were responsible for the murders and expulsions in Bosanski Samac in the spring of 1992 and then went on to participate in the deportations and forcible transfer of non-Serbs in Doboj. The majority nevertheless acquitted Stanisic and Simatovic, as their intent purportedly was not directed at the commission of crimes but at the establishment of Serb control in those places. In her dissenting opinion, Judge Picard noted that the Red Berets were sent to Bosanski Samac from the Serbian State Security Service training camp at Pajzos on the orders of the accused. The accused then transferred the Red Berets unit to Doboj although they were aware of their previous crimes. All that, in Picard’s view, showed that the accused possessed the intent to committed crimes. Picard also mentioned the findings of the majority that ‘Arkan’s men’, members of the unit with ‘close ties with the Serbian State Security Service’, committed murders, deportations and forcible transfers of people in Zvornik. The accused controlled the situation in Zvornik through persons in the local authorities close to the Serbian secret service such as the Territorial Defense commander Marko Pavlovic, on whose orders Muslims were expelled from Zvornik.

In the conclusion of her dissenting opinion, the French judge underscored several points. First, the Serbian State Security Service headed by the accused established ‘at least one’ paramilitary unit – the Red Berets – that was at the ‘root of the ethnic cleansing’ in Croatia and that committed crimes aimed at expelling non-Serbs from war-stricken territories. Second, the accused set up training camps for the Red Berets and other units, such as ‘Martic’s police’. The accused also used the Red Berets in military operations, although they knew that its members had committed crimes in previous actions. The accused exercised control over persons ‘directly responsible for the ethnic cleansing’, such as Hadzic, Martic and Arkan, and they actively cooperated with Karadzic and Mladic by training their men for the attacks in which non-Serbs were expelled. Finally, the accused did all that knowing well that the crimes were and would be committed.

In Judge Picard’s view, the findings in the judgment acquitting the VJ defense chief, General Perisic, of aiding and abetting crimes of the committed by the Serb armies in BH and Croatia were ‘overly restrictive’. Yet, even according to the ‘restrictive’ standard of ‘specific direction’, Stanisic and Simatovic should have been convicted. The accused had ‘direct control’ over the Red Berets and provided significant support to other units and their actions were ‘specifically directed’ to the commission of the crimes, Judge Picard concluded.

As Judge Picard noted, if, given all that, one cannot conclude that Stanisic and Simatovic aided and abetted the crimes in Croatia and BH, we have come to a ‘dark place’ in international law. Or as American judge Robert H. Jackson put it in 1949, ‘law has terrors only for little men and takes note only of little wrongs’.

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