An appeals chamber at The Hague war crimes tribunal has ordered two Serbian former security officials to be detained and retried, after overturning their 2013 acquittal for allegedly helping to orchestrate genocide.
The ruling, the latest in a string of reversals by the international criminal tribunal for former Yugoslavia, addresses the question of Serbian government complicity in mass killings carried out by Serb paramilitary groups in Croatia and Bosnia between 1991 to 1995.
Jovica Stanisic, the former head of the state security service, and Franko Simatovic, his deputy, were senior lieutenants of former president Slobodan Milosevic, who died in 2006 while on trial for genocide and other war crimes. They were first arrested in 2003 and were held at The Hague for 10 years until their acquittal. Since then they have been living in Belgrade, and on Tuesday they were remanded in custody again to await their retrial.
The ruling has implications for international humanitarian law, as it lays out the standard by which senior officials should be held accountable for complicity in atrocities carried out by military or paramilitary groups under their command.
In the 2013 acquittal of the two men and in a handful of other rulings, the ICTY had raised the benchmark for proving the involvement of top officials in the “joint criminal enterprise” of genocide, requiring proof of specific instructions to commit murders. On Tuesday the appeals chamber ruled that this was a mistake, saying “specific direction” was not necessary to prove aiding and abetting mass crimes.
The presiding judge, Fausto Pocar, said the act of aiding and abetting could take the form of “practical assistance, encouragement and moral support” which made a substantial contribution to the commission of a crime.
The appeals judgment also said the original trial chamber “erred in law” by failing to define the “essential elements” of what constituted joint criminal enterprise before delivering its verdict.
“What we have seen in the tribunal unfortunately has had more to do with the dynamics between judges and chambers than getting to the bottom of what happened,” said Refik Hodzic, a former ICTY employee, and now communications director at the International Centre for Transitional Justice. He described the standard of specific direction as “insane”.
“It meant that the only way to prove aiding and abetting was to show written orders to take these weapons and go and commit these crimes, something that has probably never happened in the history of the world,” said Hodzic, who is from the Bosnian town of Prijedor, scene of some of the worst atrocities. “It is better to have a retrial than just a new sentence because it is about the truth. It is about us knowing the Serbian role in Bosnia and Croatia.”
Eric Gordy, a Balkans expert at the school of Slavonic and east European studies at University College London, said the ruling meant that the standard of “specific direction is now utterly demolished – the doctrine never survived outside of ICTY and and now it has not survived inside ICTY either”.
He added: “This is a decision that offers some hope, and helps to restore some of the damaged reputation of ICTY.”
