Nikola Kovacevic

08.12.2011 ( Last modified: 09.06.2016 )
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facts

Nikola Kovacevic was born on 19 April 1968 in Bosnia-Herzegovina, in the village of Kruhari close to Sanski Most. He holds dual nationality from Serbia and from Bosnia Herzegovina. On completing his secondary school studies, he became a metal worker/welder.

On 3 November 2006, the Bosnia-Herzegovina War Crimes Court found Kovacevic guilty of having participated in a systematic and generalised attack against the Muslim and Croatian population in Sanski Most. Initially, he is said to have acted as a member of a unit of the SOS (Serb Defence Forces), then subsequently as a member of the special unit of the Serbian Territorial Defence of Sanski Most. The systematic attack began in April 1992, by the abduction of intellectuals, police officers and politicians. The Serb forces then entered various locations which were populated mainly by Croatians and Muslims. After being separated from the women and children, the men were isolated in several public buildings. During their detention, they were subjected to systematic, unwarranted psychological and physical torture. The violence reached its culminating point during the night time interrogations (with insults, beatings with various different objects, mutilation of different parts of the body and other kinds of cruel and inhumane treatment).

With the co-operation of other members of the army and the Serbian police, Kovacevic is then said to have gone ahead with the evacuation of a large number of these detainees, sending them to the Manjaca internment camp. With respect to this act, the War Crimes Court accused him of transporting these persons in inhumane conditions. These civilians were severely beaten, some dying as a result. In one of the trucks used, close to a third of the occupants died from suffocation due to the effects of the heat and the overcrowded conditions.

Nikola Kovacevic was originally called Kajtez Danilusko, a name he changed in 1996, in all probability to avoid arrest by the judicial authorities. When the criminal proceedings were opened up, he was living in the municipality of Sabac in Serbia. He was unemployed at the time.

legal procedure

Kovacevic surrendered on his own accord to the judicial authorities of Bosnia-Herzegovina in 2005. The legislation in Serbia, where he was residing, did not, however, provide for the extradition of its citizens to Bosnia-Herzegovina.

The bill of indictment was confirmed on 5 January 2006. On 20 January 2006, Kovacevic pleaded not guilty to the five counts of crimes against humanity with which he was charged.

His trial began on 20 April 2006. Kovacevic did not deny being a member of the unit called SOS (Serb Defence Forces), but maintained that his engagement was by sheer chance. After fleeing the Slavonija frontline, it was obligatory for him to enlist in a group. It was therefore only by accident that he found himself a member of the SOS.

The defendant admitted to violent acts against civilians, but only when it was necessary in self defence. According to him, the visits to the detention centres were ordered by his hierarchical superiors.

A high number of prisoners formally recognised Kovacevic as being one of the perpetrators of the inhumane treatment to which they had been subjected. The defence, however, objected to the selective manner by which they had been chosen by the prosecution and stated that they they had been unduly influenced with a view to provide false testimony.

After weighing the arguments of both the prosecution and the defence, the War Crimes Court, on 3 November 2006, judged that Kovacevic was guilty of crimes against humanity as charged in the indictment. Noting that a crime had indeed been committed, the judges pointed out that the defendant had been fully aware that he had taken part in a systematic and generalised attack against civilians with a different ethnic, religious, racial or political outlook.

The verdict took into account that Kovacevic was young at the time of the allegations and that he did not rank highly in the hierarchy. The judges also took into account the good behaviour of the defendant (especially the fact that he had given himself up to the authorities), and his situation as father of a family.

The variety and number of his acts, however, as well as his perseverance in carrying them out, constituted on the other hand aggravating circumstances in the eyes of the Court.

In consideration of the serious nature of the crimes committed and the threat which he represented towards society, the Court considered that a sentence of 12 years imprisonment was proportionate.

On 11 July 2007 the Appeals Chamber rejected the appeals against the first-instance verdict filed by the Prosecution, the Defence and the accused, explaining that they were unfounded. The Defence and indictee had asked for the first instance verdict to be revoked, while the Prosecution asked for a longer sentence.

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.