Dario Kordic

09.01.2012 ( Last modified: 09.06.2016 )
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facts

Dario Kordic was born on 14 December 1960 in Sarajevo. He studied political science at the University of Sarajevo following which he exercised the profession of journalist.Dario Kordic was an active member of the HDZ-BiH and held increasingly important positions of power, responsibility and influence within the Croatian administration in Bosnia. He was one of the high ranking political and military leaders of the HDZ-BiH (President), of the HZ H-B,of the HR H-B (Vice-President of both), and of the HVO.

The Croatian Democratic Union (HDZ) was one of the principal political parties in Croatia. Amongst the avowed aims of the HDZ was the establishment of the right to secede of “the entire Croatian Nation to within its historical and natural boundaries”. The Croatian Democratic Union of Bosnia-Herzegovina (HDZ-BiH) was one of the principal political parties of the Bosnian Croatians in Bosnia-Herzegovina, and amongst the avowed aims of the HDZ-BiH figured the statement on the right of the Croats to defend themselves and to secede. The Croatian Community of the Croatian Herceg–Bosnian Republic of Herceg-Bosnia (HZ H-B/HR H-B) proclaimed its existence in November 1991, defining itself as a separate or distinct entity within the territory of Bosnia-Herzegovina. The Croatian Defence Council (HVO) became the executive, administrative and supreme military organ of the HZ H-B/HR H-B after its creation in April 1992.

Dario Kordic held a decisive sway over the objectives and the political and military operations of these structures. Despite the fact that he was not at the top of the political hierarchy, and that he was a civilian unused to the official command structure of the HVO, Dario Kordic made many political and strategic decisions; he negotiated cease fire agreements and, he issued orders of direct and indirect military significance. Thanks to the high ranking positions he held and due to the power and influence which he wielded, Dario Kordic played a key role in the planning, organisation, promotion and implementation of a politico-military campaign of persecution and “ethnic cleansing” against the Bosnian Muslims, especially in the Lasva valley (attack and massacres in Ahmici and other villages in the valley in April 1993), as well as in Zenica.

Dario Kordic surrendered on 6 October 1997. On the same day he was transferred to the ICTY and appeared before the tribunal for the first time on 8 October 1997.

legal procedure

Dario Kordic surrendered on 6 October 1997. On the same day he was transferred to the ICTY and appeared before the tribunal for the first time on 8 October 1997. He pleaded not guilty to the 22 counts with which he was charged.

Based on his individual criminal responsibility (Art. 7 § 1 ICTY Statute) he was indicted on the following counts:
– Serious violations of the Geneva Conventions (Art. 2 ICTY Statute: wilful murder; inhumane treatment, illegal detention of civilians);
– Violations of the laws and customs of war (Art. 3 ICTY Statute: unlawful attack on civilians, unlawful attack against civilian targets; destruction without justifiable military cause; deliberate destruction or damage to buildings dedicated to religion or education);
– Crimes against humanity (Art. 5 ICTY Statute: persecutions for political or religious reasons; murder; inhumane acts; imprisonment).

On 26 February 2001, he was sentenced to 25 years imprisonment by the First Trial Chamber.

Dario Kordic lodged an appeal against his sentence on 12 March 2001.

On 17 December 2004, the Appeals Chamber reaffirmed the sentence of 25 years imprisonment on Dario Kordic. In June 2006, he was transferred to Austria to serve his sentence there.

spotlight

This case is important because in its judgement the ICTY brought many contributions to international criminal law and international humanitarian law, such as:

– Individual responsibility of the superior:
“Article 7(1) is concerned with persons directly responsible for planning, instigating, ordering, committing, or aiding and abetting in the planning, preparation or execution of a crime. Thus, both the individual who himself carries out the unlawful conduct and his superior who is involved in the conduct not by physical participation, but for example by ordering or instigating it, are covered by Article 7(1). For instance, a superior who orders the killing of a civilian may be held responsible under Article 7(1), as might a political leader who plans that certain civilians or groups of civilians should be executed, and passes these instructions on to a military commander. The criminal responsibility of such superiors, either military or civilian, in these circumstances is personal or direct, as a result of their direct link to the physical commission of the crime. The criminal responsibility of a superior for such positive acts, except where the superior orders the crime in which case he may be more appropriately referred to as primarily responsible for its commission, may be regarded as ‘follow(ing) from general principles of accomplice liability.’” (Kordic and Cerkez, (Trial Chamber), February 26, 2001, §. 367).

– The prohibition against attacking civilians stems from a fundamental principle of international humanitarian law:
“The prohibition against attacking civilians stems from a fundamental principle of international humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all times between the civilian population and combatants, between civilian objects and military objectives and accordingly to direct military operations only against military objectives. Article 48 of Additional Protocol I enunciates the principle of distinction as a basic rule. In its Advisory Opinion on the Legality of Nuclear Weapons, the International Court of Justice (‘ICJ’) described the principle of distinction, along with the principle of protection of the civilian population, as ‘the cardinal principles contained in the texts constituting the fabric of humanitarian law’ and stated that ‘States must never make civilians the object of attack.’ As the ICJ [International Court of Justice] held: ‘These fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.’” (Kordic and Cerkez, (Appeals Chamber), December 17, 2004, §. 54).

– Failure to recognize state of war is irrelevant:
“[T]he Appeals Chamber turns to the argument that there was no international armed conflict between Croatia and Bosnia and Herzegovina because they denied the existence of a state of war between them. Without prejudice to the factual veracity of this claim, the Appeals Chamber finds any such argument irrelevant. Article 2 of Geneva Convention IV speaks of ‘armed conflict […] between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.’ However, this article cannot be interpreted to rule out the characterisation of the conflict as being international in a case when none of the parties to the armed conflict recognises the state of war. The purpose of Geneva Convention IV, i.e. safeguarding the protected persons, would be endangered if States were permitted to escape from their obligations by denying a state of armed conflict. The Appeals Chamber recalls that ‘[i]t must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests.’”(Kordic and Cerkez, (Appeals Chamber), December 17, 2004, §. 373).

context

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 JURISDICTIONS

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.