Amir Kubura was born on 4 March 1964 in Kakanj, in the Kakanj municipality of Bosnia-Herzegovina. As a former professional military officer in the Yugoslav People’s Army (JNA), he served for five years as an active military officer of the JNA in Djakovica. In 1992, Amir Kubura left the JNA with the rank of Captain. He then joined the Army of Bosnia-Herzegovina (ABiH) whilst it was being formed and rose rapidly through the ranks. At the time of the alleged facts, he was in command of all of the units of the ABiH 3rd Corps 7th Muslim Mountain Brigade.
Between January 1993 and January 1994 the ABiH was engaged in various combat activities with the Croatian Defence Council (HVO) in central Bosnia. In particular, in April 1993 and in early summer 1993, ABiH 3rd Corps units launched a series of heavy attacks against the HVO including, but not limited to, the areas of the municipalities of Bugojno, Busovaca, Kakanj, Maglaj, Novi Travnik, Travnik, Vares, Vitez, Zavidovici, Zenica and Zepce.
The ABiH operations culminated in a massive attack between 7 and 13 June 1993 against the territories within the municipalities of Kakanj, Travnik and Zenica and others. In the course of these combat activities, the units under the command of Amir Kubura, played an important role. These units, notably, were made up of foreign Muslim fighters. These foreign fighters referred to themselves as “Mujahedin” or “Holy Warriors”. These same “Mujahedin”, who came mainly from Islamic countries, began to arrive in Bosnia and Herzegovina in mid 1992 and came prepared to conduct a “Jihad” or “Holy War” against the enemies of the Bosnian Muslims.
Within the municipalities mentioned above, according to the indictment, ABiH 3rd Corps units attacked towns and villages mainly inhabited by Bosnian Croats, but also by Bosnian Serb civilians. The Bosnian Croat civilians principally, but also Bosnian Serb civilians-including women, the elderly and the infirm-, were subjected to wilful murder and serious injury. In the course of, or after the attacks, at least 200 Bosnian Croat and Bosnian Serb civilians were killed and many more were wounded or harmed whilst attempting to hide or escape. In several instances, ABiH forces killed HVO troops after they had surrendered.
According to the indictment, the Bosnian Croats principally, but also some Bosnian Serbs, were illegally imprisoned or detained in some other fashion at locations under the control of the ABiH. The Bosnian Croats and Bosnian Serbs who were imprisoned or otherwise detained, were murdered, severely beaten or were subjected to physical and or psychological abuse, intimidation or inhuman treatment; including being confined in overcrowded or unsanitary conditions and suffered inhumane deprivations of basic necessities such as adequate food, water and clothing. The prisoners received very little or no medical care whatsoever.
The ABiH forces plundered or destroyed the property of the Bosnian Croats and Bosnian Serbs without any military justification for doing so. Houses and buildings, as well as personal belongings and livestock, belonging for the most part to the Bosnian Croats, but also to the Bosnian Serbs, were destroyed or badly damaged. Furthermore, Bosnian Croat buildings and religious sites and institutions were destroyed or desecrated in some way or another.
According to the same indictment, Amir Kubura knew or had reasons to know that the ABiH forces under his command and effective control, were planning, preparing and implementing detention, illegal imprisonment, killings and cruel and inhumane treatment of the Bosnian Croats and Bosnian Serbs, or that they had already carried out these acts and that he had not taken the necessary and reasonable measures to prevent these acts from being committed or to punish their perpetrators.
Amir Kubura gave himself up voluntarily on 2 August 2001 and was transferred on 4 August 2001 to the International Criminal Tribunal for the former Yugoslavia (ICTY).
Amir Kubura gave himself up voluntarily on 2 August 2001 and was transferred to the ICTY in The Hague on 4 August 2001.
His initial appearance before the Tribunal was on 9 August 2001 at which he pleaded not guilty to all of the charges held against him.
According to the last modified indictment, Amir Kubura was charged on the basis of his criminal responsibility as hierarchical superior (Art. 7 par. 3 ICTY Statute) for:
– six counts of violations of the laws and customs of war (Art. 3 ICTY Statute: murder, cruel treatment, wanton destruction of towns and villages not justified by military necessity, plunder of public or private property.)
Amir Kubura was given provisional release from 19 December 2001 till 27 November 2003, and from 13 March 2004 till 15 March 2004 to attend his mother’s funeral.
His trial opened on 2 December 2003.
He was put on trial at the same time as Enver Hadzihasanovic (see “related cases”).
On 15 March 2006, the trial judges acquitted Amir Kubura for the majority of charges held against him as hierarchical superior, finding him guilty only of not having taken the necessary and reasonable measures to punish those responsible for the plundering of certain villages in June 1993 and in November 1993.
For these crimes, the First Trial Chamber sentenced Amir Kubura to two and a half years in prison, with credit being given for the 828 days spent in pre-trial detention.
Amir Kubura as well as the Prosecutor appealed the judgement.
Kubura was granted credit for time served since his transfer to the ICTY Detention Unit and granted early release on 11 April 2006.
On 22 April 2008, the Appeals Chamber reduced his sentence to two years.
INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER YUGOSLAVIA
The conflict in former Yugoslavia from 1991 to 1999, shocked international public opinion because of the abuses revealed by the press, which were committed by all parties to the conflict (massacres, forced displacements of population, concentration camps …). The conflict is considered to consist of several separate conflicts, which were ethnic in nature – the war in Slovenia (1991), the war in Croatia (1991-1995), the war in Bosnia and Herzegovina (1992-1995) and the war Kosovo (1998-1999), which also involved the NATO bombing of Yugoslavia in 1999.
The conflicts accompanied the break-up of Yugoslavia, when the constituent republics declared their independence. The wars mostly ended after peace accords were signed, and new republics were given full international recognition of their statehood.
In order to restore peace and security in the region, the Security Council acting under Chapter VII of UN Charter, created on 25 May 1993, by Resolution 827, the International Criminal Tribunal for the Former Yugoslavia (ICTY). It was determined that pursuant to numerous reports of, among other, mass killings, systematic detention, rapes, practice of “ethnic cleansing”, transfers, etc., these acts constituted a threat to international peace and security, necessitating a reaction by Security Council. As the Tribunal was created during the ongoing conflict, the Security Council expressed its hopes that ICTY would contribute to halting violations in the region. Its headquarters are in The Hague, Netherlands.
The Tribunal has jurisdiction to prosecute persons responsible for serious violations of international humanitarian law – grave breaches of Geneva Conventions, violations of laws and customs of war, genocide and crimes against humanity – allegedly committed in the territory of the former Yugoslavia after 1 January 1991, (no end date was specified). Since its creation, the ICTY has indicted more than 160 people, including heads of states and government members.
The Tribunal’s mandate was originally meant to expire on 31 December 2009, but the Security Council voted unanimously to extend the mandate of the Court with several judges, including permanent judges, so that the ongoing trials can be completed. According to the “ICTY Completion Strategy Report” from 18 May 2011, all trials were supposed to be completed by the end of 2012, and all the appeals by the end of 2015. The exceptions were cases of Radovan Karadzic, Ratko Mladic and Goran Hadzic.
The Security Council adopted resolution 1966 on 22 December 2010, establishing International Residual Mechanism for Criminal Tribunals. The ICTY residual mechanism began functioning on 1 July 2013.
The Tribunal was called to finish its work by the end of 2014, in order to prepare closure and transfer of cases to the Residual Mechanism. The Mechanism is a small and temporary body, which plays important role in ensuring that the completion strategy of ICTY does not result in impunity of fugitives and in injustice. It is conducting all outstanding first instance trials, including those of Karadzic, Mladic and Hadzic. It is also to complete all appeals proceedings that were filed before 1 July 2013.
The ICTY is not the only court with jurisdiction to try alleged perpetrators of serious violations of international humanitarian law committed in the former Yugoslavia. The Tribunal has concurrent jurisdiction with national courts. However, it takes precedence over them and may require the referral from the national court at any stage of the proceedings (Article 9 of the ICTY Statute). The Statute does not elaborate how the primacy is to be exercised, but it was asserted by the judges of the ICTY in the Rules of Procedure and Evidence. The primacy can be asserted in three cases: when an international crime is intentionally or unwittingly prosecuted before national court as an “ordinary criminal offence”, when a national court is unreliable, or when the case is closely related, or may be relevant to other cases being tried by the ICTY.
National courts also have jurisdiction to prosecute alleged perpetrators of serious violations of international humanitarian law.
In the former Yugoslavia, the trials of those accused of war crimes have been opened by the courts of Bosnia and Herzegovina. The Section for War Crimes was set up in the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina. The Special Chamber for War Crimes has jurisdiction to prosecute the most serious alleged war crimes committed in Bosnia, and was created to relieve the ICTY, so that it can focus on criminals of high rank. Its establishment was also considered necessary for effective war crimes prosecution in Bosnia. The opening of the Special Chamber was on 9 March 2005.
Additionally, pursuant to UN Security Council Resolution 1244 from 10 June 1999, UN administration was created in Kosovo. Consequently, in 2000 “Regulation 64” Panels in Courts of Kosovo were created, which are mixed chambers at the local courts. They have two international judges and one national. These panels work in collaboration with the ICTY. They have jurisdiction over those responsible for genocide, war crimes and crimes against humanity. They focus on prosecuting lower ranking offenders.
In Serbia, the Office of the War Crimes Prosecutor was established on 1 July 2003. It was created to detect and prosecute perpetrators of criminal offenses against humanity and international law, and offences recognised by the ICTY Statute, regardless of the nationality, citizenship, race or religion of the perpetrator and the victim, as long as the acts were committed on the territory of former Yugoslavia after 1 January 1991. Its seat is in Belgrade, Serbia.
Other relevant national jurisdictions are under the principle of universal jurisdiction, which allows states with a specific legal basis, to try perpetrators of serious crimes regardless of their nationality or that of the victims and regardless of where the crime was committed.