Nicola Jorgic was born in 1946 in the Doboj region of Bosnia-Herzegovina
According to findings of the Oberlandesgericht Düsseldorf, Bosnian Serb Nikola Jorgicwas the leader of a paramilitary group that took part in acts of terror against the Muslim population; the crimes were carried out with the backing of the Serb rulers and were designed to contribute to their policy of “ethnic cleansing”.
Jorgic arrested Muslims and put them in prison camps where they were allegedly tortured; the Court also found that in June 1992, he took part in the execution of 22 inhabitants of Grabska (among them disabled and elderly people), who had gathered in the open in order to escape fighting. Three other Muslims had to carry the dead to a mass grave. A few days later, Jorgic reportedly ordered the expulsion of their village and the brutal ill-treatment of 40-50 inhabitants from Sevarlije; six of them were shot dead. The seventh victim, who was not fatally wounded, died later when he was burned together with the six bodies. In September 1992, Jorgic reportedly put a tin bucket on the head of a prisoner in the central prison of Doboj and hit it with such force that the victim died as a consequence of the blow.
From May 1969 until the beginning of 1992, Nikola Jorgic had his permanent residence in Germany; he was still officially registered in Bochum, Germany, after that. His German wife and his daughter, whom he visited repeatedly after his crimes, still live in Germany. After entering Germany on his own free will, he was arrested at the airport of Düsseldorf, Germany.
The sentence passed by the Oberlandesgericht Düsseldorf on September 26, 1997 held Nikola Jorgic responsible for 11 counts of genocide. Three of these instances coincided with the murder of 30 persons, eight of them with grave bodily harm and/ or deprivation of liberty. He was found to deserve life imprisonment in four cases and prison sentences of seven to nine years in the remaining 8 instances. Overall, the Court passed a single sentence of life imprisonment. The Oberlandesgericht found that the guilt of the defendant weighed particularly heavy.
Jorgic’s appeal was rejected on 30 April 1999 by the Bundesgerichtshof (case no. 3 StR 215/98), and the life sentence for genocide was confirmed. The Court stated that the lower instance had rightly asserted the jurisdiction of the German judiciary and had correctly concluded that Jorgic had committed genocide. The International Criminal Court for the Former Yugoslavia had previously declined to take over Jorgic’s case.
For legal reasons, the Bundesgerichtshof considered, instead of 11 counts, only one count of genocide in coincidence with the murder of 30 persons, but also handed down a life sentence. It assumed only one count of genocide, because Jorgic’s various actions were to be seen as one integral course of conduct. In the Court’s view, this did however not affect the sentence to be handed down.
The Court further confirmed the lower instance’s finding that the accused’s guilt weighed particulary heavy – which forestalls an early release after 15 years.
The Bundesgerichtshof also stated that genocide, according to the genocide convention of 9 November 1948 (which Germany has ratified), was a crime that could legaly be prosecuted by all states.
Jorgic appealed to the German Constitutional Court, which however declined to rule on the issue (case no. 2 BvR 1290/99 12.12.2000). As a result, Jorgic’s sentence became final.
Jorgic brought the case before the European Court of Human Rights in Strasbourg on 23 May 2001, claiming violation of his rights under articles 5, 6 and 7 of the European Convention on Human Rights.
Jorgic alleged that the German courts had not had jurisdiction to convict him. Moreover, he complained that his conviction for genocide was in breach of Article 7 § 1 (no punishment without law) in particular because the national courts’ wide interpretation of that crime had no basis in German or public international law.
On 12 July 2007, the Court rendered its judgment.
The Court held unanimously that there had been:
· no violation of Article 6 § 1 (right to a fair trial) of the Convention
· no violation of Article 5 § 1 (right to liberty and security) of the Convention concerning Mr. Jorgic’s complaint about the German courts’ lack of jurisdiction to try him on charges of genocide; and,
· no violation of Article 7 (no punishment without law).
The case of Nikola Jorgic is the first in which German courts prosecuted the crime of genocide.
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.