Dusan Fustar

06.01.2012 ( Last modified: 09.06.2016 )
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facts

Dusan Fustar was born on 29 June 1954 in Prijedor, Bosnia and Herzegovina. Dusan Fustar was a guard shift commander at the Keraterm camp who supervised one of the three shifts of guards that operated within the camp.

The indictment, alleged that, during the early morning hours of 30 April 1992, Bosnian Serb police and army forces seized physical control of the town of Prijedor. Following the forcible take-over of Prijedor, severe restrictions were imposed on all aspects of life for non-Serbs, principally Bosnian Muslims and Bosnian Croats, including movement and employment. According to the indictment, Bosnian Serb authorities in the Prijedor municipality unlawfully segregated, detained and confined more than 7,000 Bosnian Muslims, Bosnian Croats and other non-Serbs from the Prijedor area in the Omarska, Trnopolje and Keraterm camps between May and August 1992.

It was alleged that interrogations were conducted on a daily basis at the Omarska and Keraterm camps. Severe beatings, killings as well as other forms of physical and psychological abuse, including sexual assault, were said to have been commonplace at the Omarska and Keraterm camps. In addition, Omarska and Keraterm camps also operated in a manner designed to discriminate and subjugate the non-Serbs by inhumane acts and cruel treatment. These acts included the brutal living conditions imposed on the prisoners.

The crimes enumerated in the indictment were the result of the joint criminal enterprise, which operated within the Keraterm and Omarska camps.

Dusan Fustar voluntarily surrendered on 31 January 2002 and was transferred to the International Criminal Tribunal for the Former Yugoslavia (ICTY) the same day.

legal procedure

Dusan Fustar voluntarily surrendered on 31 January 2002 and was transferred to the ICTY the same day. He made his initial appearance before the ICTY on 6 February 2002, and pleaded “not guilty” to all counts of the indictment.

On 17 September 2002, the indictments against Zeljko Mejakic, Momcilo Gruban,Dusko Knezevic, Dusan Fustar and Predrag Banovic were joined (see “related cases”). Predrag Banovic later pleaded guilty to one count of persecutions as a crime against humanity and his case was then separated from the others.

On 21 November 2002, the Trial Chamber granted the Prosecution’s application to amend and consolidate the indictments related to the Keraterm and Omarska Camps.

Dusan Fustar was charged, on the basis of his individual criminal responsibility (Article 7(1) ICTY Statute) and on the basis of superior criminal responsibility (Article 7(3) ICTY Statute) with:

• Three counts of crimes against humanity (Article 5 ICTY Statute – persecutions on political, racial or religious grounds; murder; inhumane acts), and

• Two counts of violations of the laws or customs of war (Article 3 ICTY Statute – murder and cruel treatment).

On 20 July 2005, the Referral Bench decided that the case concerning Dusan Fustar be referred to the authorities of the State of Bosnia and Herzegovina,(BiH) in order that the case be referred to the appropriate court, the War Crimes Chamber of the State Court, for trial within Bosnia and Herzegovina.

The accused appealed against this decision. On 7 April 2006, the Appeals Chamber of the ICTY decided to dismiss the appeal against the decision on referral under rule 11 bis of the Rules of Procedure and Evidence.

The Dusan Fustar trial was heard together with that of Zeljko Mejakic, Dusko Knezevic, Predrag Banovic and Momcilo Gruban.

On 28 July 2006, Dusan Fustar and his co-defendants appeared before Bosnia’s War Crimes Chamber and pleaded not guilty.

On 20 December 2006, the trial opened before the War Crimes Chamber .

In early April 2008, Fustar admitted guilt and expressed regret for having participated in the crimes committed in Keraterm detention camp. He signed a plea agreement with the Prosecution, following which the indictment against him was dissociated from the Mejakic et al case.

The amended indictment charged Fustar with the persecution, murder, beating and detention of Bosniaks and Croats in Keraterm detention camp in 1992.

On 22. April 2008, the Court of BiH found him guilty of having participated, in a joint criminal enterprise and for “having failed to exercise his authority and prevent the crimes”. He was sentenced to nine years imprisonment.

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.