Novislav Djajic

01.05.2016 ( Last modified: 23.03.2018 )
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facts

The case relates to the participation of Djajic in a shooting incident directed at 15 Bosnian Muslims on a bridge in his home town Trnovace near Foca (Bosnia-Herzegovina) on 22 June 1992. 15 Muslims were taken prisoner, executed, and then thrown in the river Drina.

One of the persons targeted managed to escape and appeared at the trial as joint plaintiff and main witness for the prosecution.

Novislav Djajic moved to Germany, where he worked as a tiler.

In May 1997, Novislav Djajic was indicted for his participation in the genocide of Trnovace and was sentenced to five years in prison.

legal procedure

Indicted for participation in genocide, the accused was sentenced on 23 May 1997, to 5 years’ imprisonment for complicity in 14 cases of murder and 1 case of attempted murder.

The Court could not establish with sufficient certainty the existence of the subjective element required for the act of genocide (that is, the intent to destroy, in whole or in part, the group in question).

As long as it could not be ruled out that Djajic considered the executions as a means – however illegal and reprehensible – to discourage Muslims from carrying out further attacks on Serbian military units, it had to be assumed in his favour that he did not understand the intention behind this action, which was the extermination of the Muslims.

The Court based its competence to judge a non-national for acts committed abroad on Art. 6, No. 9, and Art. 7, subsection 2, No. 2, of the German Penal Code. Art. 6, No. 9, extends the jurisdiction of German courts to acts committed abroad by non-nationals if this is provided for in an international treaty binding upon Germany. At this stage, the Court referred to the Fourth Geneva Convention (protection of civilians) and its provisions establishing the grave breaches regime. The Court considered the conflict still to be an international one in June 1992 (with a reference to GCIV Art. 2 and a comment on the question of the termination of an international armed conflict) and qualified the victims as “protected persons” in the sense of GCIV, Art. 4. The jurisdiction of the Court could also be established by application of the principle of vicarious administration of justice (Art. 7, subsection 2, No. 2).

The question as to whether there was a sufficient link with Germany was then examined to ensure that the basic principle of non-intervention would not be infringed. This link could be established as the accused was domiciled in Germany and as this State was not acting in its own interests, but was in fact representing the whole community of States.

The Court found that the accused had not received an express order to act as he did. That being the case, it was not possible to rely on Art. 5 (1) of the Military Penal Law (WStG) (acts committed under order) to relieve the accused of liability. However, the Court accepted the fact that the accused may have perceived himself as acting under duress, a fact which was applied in mitigation of penalty.

spotlight

For the first time since the Nuremberg trials, a charge of genocide was brought before a court in Germany.

The Higher Regional Court was directly competent because the case was linked to the crime of genocide (§ 120, subs. 1, No 8 GVG (Constitution of Courts Act)).

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.