Jovica Stanisic i Franko Simatovic in the courtroom

There will be a re-trial for the two former Serbian State Security Service chiefs, Jovica Stanisic and Franko Simatovic, on all counts in the indictment, the Appeals Chamber decided today. Two of the five appellate judges in the Chamber submitted their dissenting opinions. On 30 May 2013, the Trial Chamber acquitted the two accused on all charges.

Stanisic and Simatovic were indicted for their involvement in a joint criminal enterprise aimed at the forcible and permanent removal of non-Serbs from large swathes of Croatia and BH in the period between 1991 and 1995. The goal was implemented through murder, deportation, forcible transfer and persecution. Although Judge Alphons Orie’s Trial Chamber concluded that the crimes had been committed against local Croats and Muslims in Croatia in the SAO Krajina, SAO Slavonia, Baranja and Western Srem and in the BH municipalities of Bijeljina, Bosanski Samac, Doboj, Sanski Most, Trnovo and Zvornik, it found that Stanisic and Simatovic were not responsible for the crimes.

According to the Appeals Chamber’s decision, the Trial Chamber made two serious legal errors. The prosecution highlighted the errors in its appeal. The first error pertains to the failure to establish the ‘existence and scale’ of the criminal plan before finding whether the accused had the intent to contribute to the joint criminal enterprise. In other words, until the judges determine that there was a plan to commit crimes, they cannot find whether the accused had subscribed to it, i.e. whether they had the intent to commit crimes.

The second error concerns one of the most controversial issues since the Tribunal’s inception: the standard of ‘specific direction’, established in the appellate judgment in the Momcilo Perisic case. In short, this standard requires the judges to establish that the actions of the accused were ‘specifically directed’ at the commission of the crimes when they consider the responsibility for aiding and abetting those crime. The Trial Chamber found that the units under Stanisic’s and Simatovic’s command had committed crimes in Samac, Doboj and SAO Krajina but that the actions of the accused were not specifically directed at the commission of the crimes but at establishing and maintaining the Serb rule over those territories.

Judge Pocar’s Appeals Chamber recalled that the legal standard of ‘specific direction’ had been rejected in two judgments handed down in The Hague: in the Sainovic et al. case and in Popovic etal. The standard was rejected because it was contrary to the Tribunal’s jurisprudence and international customary law. Consequently, the Appeals Chamber ruled that the standard should not have been applied to the evidence in the case against Stanisic and Simatovic.

Since those errors were of a serious nature, the appellate judges considered that it would be ‘inappropriate’ for them to re-evaluate the evidence because they had not heard the witnesses and made sure that all the evidence in the case file was relevant. The case file is quite voluminous: it contains 133 oral or written testimonies and 4,843 exhibits. The trial concerned a large number of crimes committed over a period of four and a half years in two states.

It is not possible to refer the case to the same Trial Chamber which would then reexamine the evidence by applying the correct legal standards. Two of the three trial judges have in the meantime left the Tribunal. The Appeals Chamber therefore ordered that Jovica Stanisic and Franko Simatovic be retried. A new Trial Chamber will be appointed to the case on all counts in the indictment.

Judge Koffi Afande disagreed with all of the key conclusions in the appellate judgment, and submitted a dissenting opinion with his reasoning. Judge Carmel Agius also appended a dissenting opinion which deals with the standard of ‘specific direction’.

Although it had previously been indicated that the accused would not attend the hearing, they were apparently ordered to come to The Hague. Stanisic and Simatovic were in the dock while their appeals judgment was handed down. They were immediately ordered to be placed in the detention unit ‘until further notice’.

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