Prosecutor v. Milutinovic et al

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Citation. Int’l Crim. Trib. For the former Yugoslavia, I.C.T.Y. Case No. IT-05-87-T, Summary of Trial Chamber Judgment (Feb. 26. 2009).

Brief Fact Summary. Yugoslavian government officials or Serbians, who were accused of participating in a joint criminal enterprise to modify the ethnic balance in Kosovo, instigating, aiding and abetting various war crimes and crimes against humanity, as set out in Articles 7(1) and 7(3) of the Statute of the Tribunal of the International Criminal Tribunal for the former Yugoslavia, to further the goals of the criminal enterprise were Milutinovic (D), Sainovic (D), Ojdanic (D), Pavkovic (D), Lazarevic (D) and Lukic (D).

Synopsis of Rule of Law. It is only where there irrefutable evidence of participation in crimes against humanity and other crimes that government officials accused of being involved in joint criminal enterprise and instigating and aiding and abetting war crimes and crimes against humanity will be convicted.

Facts. A group of government officials by the names Milutinovic(D), Sainovic (D), Ojdanic (D), Pavkovic (D), Lazarevic (D) and Lukic (D) were accused of being involved in participating in a joint criminal enterprise to modify the ethnic balance in Kosovo and Instigating and aiding and abetting various war crimes and crimes against humanity as set out in Articles 7 (1) and 7 (3) of the Statute of the Tribunal of the International Criminal Tribunal for the former Yugoslavia, to further the goals of that criminal enterprise. The defendants were accused of; deportation, a crime against humanity (count 1); forcible transfer as “other inhumane acts” a crime against humanity (count 2); murder, a crime against humanity and violation of the laws or customs of war (count 3 and 4); and persecution, a crime against humanity (count 5).
In order to modify the ethnic balance in Kosovo to ensure continued control by the Federal Republic of Yugoslavia (FRY) and Serbian authorities over the province, the accused were alleged to have participated along with others in a joint criminal enterprise in order to achieve this aim. This aim was to be realized through a widespread or systematic campaign of terror against the Kosovo Albanian population, including various crimes specified in each of the counts of the indictment. The means through which the Kosovo Albanians were made to leave Kosovo included killings, property destruction, destruction or damage of religious sites, theft, sexual assaults, beatings and other crimes that were carried out by the FRY and Serbian forces.
Milutinovic (D) was President of the Republic of Serbia; Sainovic (D) was Deputy Prime Minister of the FRY as well as the head of the Joint Command, which had authority over the Yugoslav Army (VJ) and Serbian forces known as “MUP” forces deployed in Kosovo; Ojdanic (D) was Chief of the General Staff of the VJ; Pavkovi (D) was the Commander of the VJ 3rd Pristina Corps and Lukic (D) was the Head of the Serbian Ministry of Interior Staff for Kosovo, known as the MUP  staff. These people were alleged to have committed these crimes towards the of March 1999 and the beginning of June 1999. The accused individually had power/control over the VJ and MUP forces involved. In order to put an end to the armed conflict between the FRY and Serbian forces and the Kosovo Liberation Army (KLA), NATO forces conducted an aerial bombing campaign against targets in the FRY. This led to the exodus of about 700,000 Kosovo Albanians who crossed into Albania and Macedonia.
The Prosecution (P) witnesses affirmed that these were the result of the violence and coercive actions of the FRY and Serbian forces, an allegation which was refuted by the Defendants (D) witnesses. The Kosovo Albanians who testified claimed not to have left on the premise of NATO’s bombardment but the regime attempted to conceal the killings of Kosovo Albanian by transporting the bodies of the victims to other areas of Serbia. All these evidence were examined by the Trial Chamber who rendered its judgment and also provided a summary.

Issue. Is it only where there is irrefutable evidence of participation in crimes against humanity and other crimes that government officials accused of being involved in joint criminal enterprise and instigating and aiding and abetting war crimes and crimes against humanity will be convicted?

Held. Yes. It is only where there irrefutable evidence of participation in crimes against humanity and other crimes that government officials accused of being involved in joint criminal enterprise and instigating and aiding and abetting war crimes and crimes against humanity will be convicted. Some of the allegedly proved crimes committed by the VJ and MUP forces included a broad campaign by the forces Kosovo Albanian civilians and the departure of at least 700,000 Kosovo Albanians from Kosovo. On the other hand, there were a number of allegations that were not proved on the facts because some requisite legal elements could not be met.
Milutinovic (D) as the Serbia’s President did not have direct individual control over the VJ. While he had oversight of the Serbian Government Ministries, he did not have de facto powers over it.
On the part of Sainovic (D) who was the head of the Joint Command, was an active participant in its meetings as well as Pavkovic (D), Lukic (D) and on occasion, Lazarevic (D), he issued instructions that resulted in military orders coordinating the activities of VJ and MUP. He however failed to use his extensive authority in Kosovo to put an end to the criminal acts being perpetrated even when he was well apprised of the happenings.
As Chief of the General Staff of the VJ, Ojdanic (D) exercised both de facto and de jure command and control over all units and organs of the VJ. He issued orders for the VJ to carry out operations in Kosovo including in support of MUP. He too was well apprised of the happenings in Kosovo. He issued orders for adherence to international humanitarian law, mobilized the military justice system and dispatched senior officers from the Security Administration to investigate. He did not stop the VJ from participating in military operations with the MUP in Kosovo.
Pavkovic (D) planned and implemented the activities of the VJ in Kosovo in coordination with the MUP. He armed non-Albanians and disarmed Kosovo Albanians. He had a detailed knowledge and understanding of the situation on the ground and the activities of his and the MUP forces. Even when he was aware of the activities of the forces, he under-reported and minimized the serious criminal acts which were committed by the VJ members in Kosovo.
Lazarevi (D) was also well apprised of the situation and participated fully in the in the planning and execution of joint VJ and MUP operations in Kosovo during the period, including the places where crimes were found to have been committed. But he was not aware of the hig-level political decisions that generally took place in Belgrade.
Lukic (D) was seen as the commander of MUP forces in Kosovo and he also attended and participated in meetings of the Joint Command and other high-level meetings, including Belgrade. He was also the head of the MUP staff for Kosovo. He was well aware of the crimes being perpetrated in Kosovo but available evidence could not prove he was involved in the concealment of those crimes through the secret transportation of civilian bodies from Kosovo to other parts of Serbia.
The evidence which established a widespread campaign of violence and other crimes directed at Kosovo Albanians and the ensuring massive displacement of the population was the proof that there was a common purpose to modify the ethnic balance in Kosovo in order to ensure the continued control of the FRY and Serbian authorities. This was the joint criminal enterprise which was set forth in the indictment. After a careful analysis of the circumstances and evidences pertaining to the allegations brought against them, the Chamber did not find Milutinovic (D) guilty but Sainovic (D), Pavkovic (D) and Lukic (D) were found guilty of all five counts of the indictment and were sentenced to 22 years in prison. On the other hand, Ojdanic (D) and Lazarevic (D) were sentenced to 15 years in prison for being guilty of count 1 and 2, aiding and abetting acts, which falls under Article 7 (1).

Discussion. Typically, war crimes and crimes against humanity are caused by collective entities having State support. Hence, there must be a legal theory which links the leaders to the acts that they themselves have not committed in order for the International criminal tribunal to place the responsibility on such leaders. A remarkable and highly controversial conspiracy theory which revolved around the concept of “criminal organization” was previously used by the International Military Tribunal (IMT) at Nuremberg, following World War II. A similar innovative and controversial conspiracy theory was also used by the International Criminal Tribunal for the Former Yugoslavia (I.C.T.Y.) and this concept revolved around the concept of “joint criminal enterprise” which used state resources, was well organized and had the backing of the state.