Sefer Halilovic

21.12.2009 ( Last modified: 28.09.2016 )
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Facts

Sefer Halilovic was born on 6 January 1952 in Prijepolje, Sandzak region, in Serbia.

According to the indictment, the Army of Bosnia and Herzegovina (“ABiH”) in 1993, planned and conducted a military operation called “Neretva-93”, the main purpose of which was to capture territory held by the Bosnian Croat Forces (“HVO”) from Bugojno to Mostar by launching offensives within this area and thereby ending the blockade of Mostar.

It was alleged that, on 8 September 1993, there was continuous shooting in the village of Grabovica (situated on the river Neretva alongside the main road from Sarajevo to Mostar). Over the next two days the bodies of Bosnian Croat civilians were seen in the village and floating in the river. In total, 33 Bosnian Croat civilians named in the indictment were killed in Grabovica.

Further, on 14 September 1993, in the course of the Operation “Neretva-93”, the Prozor Independent Battalion attacked the village of Uzdol (in the municipality of Prozor), which was then exclusively inhabited by Bosnian Croat civilians. During the course of the attack 29 Bosnian Croat civilians and one HVO prisoner of war were killed in Uzdol.

According to the indictment, Sefer Halilovic held the post of deputy commander of the Supreme Command Staff of the ABiH as well as chief of the Supreme Command Staff of the ABiH from 18 July 1993 until November 1993. From 21 August 1993, Sefer Halilovic was head of an inspection team to command and co-ordinate the “Neretva-93” operation and as such he was the most senior military commander for the operation in the field.

It was alleged that, despite his duties as a commander, Sefer Halilovic did not take effective measures to prevent killings of civilians in Grabovica and Uzdol, and did not take steps to carry out a proper investigation to identify the perpetrators of the killings in both Grabovica and Uzdol and as commander of the operation to punish them accordingly. Further, the indictment alleged that the accused planned and was instrumental in the implementation of military operations carried out by the units which took part in the “Neretva-93” operation.

On 25 September 2001, Sefer Halilovic voluntarily surrendered to the International Criminal Tribunal for the former Yugoslavia and was transferred on the same day to The Hague.

Legal Procedure

On 25 September 2001, Sefer Halilovic voluntarily surrendered to the International Criminal Tribunal for the former Yugoslavia and was transferred on the same day to The Hague.

During his initial appearance on 27 September 2001, he pleaded not guilty to the crime he was charged with of violation of the laws and customs of war.

Sefer Halilovic was charged on the basis of his superior criminal responsibility (Article 7 § 3 ICTY Statute) with one count of violation of the laws and customs of war (Article 3 – murder).

Sefer Halilovic was provisionally released from 13 December 2001 until the beginning of the trial.

The trial against Sefer Halilovic commenced on 31 January 2005. The Prosecution completed its case on 2 June 2005. There were 39 witnesses for the prosecution who gave evidence and there were two written statements as well as well as 287 exhibits of circumstantial evidence.

The Defence case commenced on 27 June 2005 and lasted until 14 July 2005. Three defence witnesses gave evidence and there were 12 written statements as well as 207 exhibits for the defence. The parties made their closing arguments on 30 and 31 August 2005.

On 16 November 2005, the Trial Chamber acquitted Sefer Halilovic of the charge held against him.

Sefer Halilovic was immediately released.

The Prosecutor appealed against the verdict on 12 July 2007. On 16 October 2007 the Appeals Chamber of the ICTY confirmed Halilovic’s acquittal.

Spotlight

In the judgment, the Trial Chamber defines command responsibility and the purpose behind it:
“It is clear that the form of responsibility set out in Article 7(3) of the Statute is based upon the duty of superiors to act, which consists of a duty to prevent and a duty to punish criminal acts of their subordinates.” (Halilovic, Trial Chamber, November 16, 2005, para.38)

“The Trial Chamber recalls that the purpose behind the concept of command responsibility is to ensure compliance with the laws and customs of war and international humanitarian law generally. The principle of command responsibility may be seen in part to arise from one of the basic principles of international humanitarian law aiming at ensuring protection for protected categories of persons and objects during armed conflicts. This protection is at the very heart of international humanitarian law. Ensuring this protection requires, in the first place, preventative measures which commanders are in a position to take, by virtue of the effective control which they have over their subordinates, thereby ensuring the enforcement of international humanitarian law in armed conflict. A commander who possesses effective control over the actions of his subordinates is duty bound to ensure that they act within the dictates of international humanitarian law and that the laws and customs of war are therefore respected.” (Halilovic, Trial Chamber, November 16, 2005, para. 39)

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.