Jovica Stanisic and Franko Simatovic in the courtroom

In its appeal against the trial judgment in the case of the former Serbian State Security Service chiefs, Jovica Stanisic and Franko Simatovic, the prosecution notes that the Trial Chamber acquitted the accused of the crimes against non-Serbs in Croatia and BH on the basis of erroneous conclusions, having adopted a ‘piecemeal and decontextualized approach’. On 30 May 2013, Judge Orie’s Trial Chamber acquitted Stanisic and Simatovic: they were charged with participation in the joint criminal enterprise whose objective was to ethnically cleanse non-Serb civilians from large areas in Croatia and BH.

In three grounds of appeal, the prosecution argues that the Trial Chamber erred when it considered the existence of the joint criminal enterprise and the involvement of the accused in it. The judges also erred when they found that Stanisic and Simatovic didn’t aid and abet the crimes of the Red Berets in the Serb Autonomous Region of Krajina, in Bosanski Samac and Doboj. Thirdly, as the prosecution claims, the Trial Chamber mistakenly found that the accused were not responsible for the crimes in Eastern Slavonia, Bijeljina, Zvornik and Sanski Most. The prosecution presented the three grounds in its notice of appeal filed 30 days after the trial judgment, and has now elaborated them.

In the first ground of appeal, the prosecution notes that the evidence presented against Stanisic and Simatovic indicates that hundreds of thousands of people were forcibly removed from their homes. A crime of such scope was last seen at the trial of Slobodan Milosevic. The expulsions were carried out in a campaign of murder, abuse and other crimes. As stated in the appeal, the crimes were not committed by ‘local radicals’ but were ‘deliberate and organized“ by the accused and other members of the joint criminal enterprise.

The prosecution notes that the trial judgment failed to reach conclusions about the existence of the joint criminal enterprise. It is therefore impossible to establish at all if the accused had participated in it or not. The appellate brief also states that the Trial Chamber failed to consider the issues of the existence of a common plan, its contents and timeframe, the crimes that were committed or persons involved in its implementation. Also, there was no mention of the historical and political goals including the creation of the ‘Greater Serbia’. The judges did not address the pattern of crimes committed in the course of the implementation of the joint plan, the criminal intent of the members of the joint criminal enterprise and the relationship between the accused and the most prominent members of that enterprise. In the absence of those findings, it was impossible to reach the correct conclusions about Stanisic’s and Simatovic’s criminal responsibility.

The arguments in support of the second ground of appeal are of particular interest. The prosecution notes that the Appeals Chamber should ‘renounce’ its own conclusion about ‘specific direction’, reached in the Momcilo Perisic case, because it does not have a foundation in the Tribunal’s Rules. General Perisic was acquitted on appeal of aiding and abetting the crimes in BH, Sarajevo, Srebrenica and Zagreb based on this concept. The same principle was applied to acquit Stanisic and Simatovic of crimes in Krajina, Bosanski Samac and Doboj committed by the units they supported. In both cases, it was found that providing support to the units that committed crimes did not constitute a crime if it could not be established that the support was ‘specifically directed’ to the commission of the crimes. One of the chapters in the appellate brief contains a detailed analysis of this point, illustrated with a series of examples showing that the ‘specific direction’ principle does not stem from the Tribunal’s jurisprudence.

It is interesting to note that the prosecution’s argument in the latest appellate brief was reflected in the appellate judgment rendered at the Special Court for Sierra Leone, confirming the 50-year sentence to the former Liberian president Charles Taylor. The Appeals Chambers notes in the judgment that it ‘is not convinced’ that ‘specific direction’ was an element of aiding and abetting under customary international law. According to the judgment rendered by the Special Court, the findings of the Tribunal in The Hague ‘don’t contain a clear and detailed analysis of the authorities’ supporting such a conclusion. In other words, the judgment rendered by the Special Court for Sierra Leone treats ‘specific direction’ as an instrument patented by the Appeals Chamber and its President Meron, an instrument that has not been applied in international law.

Finally, the third ground of appeal argues that the Trial Chamber analyzed the role of the accused in the crimes in Eastern Slavonia, Bijeljina, Zvornik and Sanski Most in a piecemeal fashion not paying attention to the context in which the crimes were committed.Had it considered the issue in the correct manner, the Trial Chamber would have concluded that Stanisic ‘contributed significantly’ to the crimes in those areas by establishing local territorial defense units, by dispatching Zeljko Raznatovic Arkan’s unit to the area and providing funds to it; the unit is responsible for many murders, the abuse and other crimes against local non-Serbs. The evidence shows that Simatovic was responsible for the crimes in Sanski Most, the prosecution notes in the appellate brief.

Based on all these arguments, the prosecution considers that the Appeals Chamber should quash the acquittal and impose ‘an adequate sentence’ on the former Serbian secret service chiefs for their involvement in the joint criminal enterprise whose goal was to achieve the ethnic cleansing of large areas in Croatia and BH from 1991 to 1995. Alternatively, the prosecution wants the Appeals Chamber to remand the case to a bench of the Tribunal which would then apply the adequate legal standard to the trial record.

Sharing