Prosecutor v Milomir Stakic.

• Author: Mitchell, Christopher

Introduction

The Appeals Judgment in Prosecutor v Milomir Stakic was handed down on 22 March 2006. (1) In the Judgment, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia ('Tribunal') made significant findings in relation to the 'target group' for genocide; the dolus specialis (special intent) for genocide; 'co-perpetratorship' as a form of liability in the Tribunal's jurisprudence; the elements of the crimes of deportation and forcible transfer; permissible cumulative convictions; and sentencing.

This case note will briefly discuss the background facts to the case; Dr. Milomir Stakic's ('Stakic') role during the relevant events; his indictment by the Tribunal; the Trial Judgment; (2) the appeals by the Office of the Prosecutor ('Prosecution') and Stakic; and finally, the key parts of the Appeals Judgment as outlined above.

1. Background facts

   On 29-30 April 1992, the Serbian Democratic Party ('SDS') effected a coup d'etat in the municipality of Prijedor, Bosnia and Herzegovina, 'with the ultimate aim of creating a pure Serbian Municipality'. (3) Over the next few months, a campaign of persecution and extermination was conducted against the non-Serb population of Prijedor. This campaign included killings in Bosnian Muslim villages throughout the municipality; (4) interrogations, sexual assaults, beatings and killings at the Omarska, Keraterm and Trnopolje camps; (5) and the execution of approximately 200 Bosnian Muslim men at Vladic Mountain. (6)

2. Dr Milomir Stakic

   Stakic was a physician in Prijedor. During this time he was the leading Bosnian Serb political figure in Prijedor. In November 1990, as a member of the SDS, he was elected to the Prijedor Municipal Assembly ('PMA'). In January 1991, he became Vice-President of the PMA. (7) In September 1991, he was elected Vice-President of the SDS Municipal Board, and in January 1992, he was elected President of the Assembly of the Serbian People of the Municipality of Prijedor. (8) Following the coup d'etat, Stakic became President of the PMA, and as of May 1992, President of the Prijedor Municipal Crisis Staff, which effectively assumed the duties of the PMA on the grounds that the region was in a state of emergency. (9) He served in those positions until January 1993. (10)

3. The Indictment

   On 13 March 1997, Stakic was charged with one count of complicity in genocide in an indictment confirmed by Judge Elizabeth Odio Benito of the Tribunal. (11) This indictment was kept under seal until Stakic's arrest on 23 March 2001. Following his arrest, the Prosecution filed an amended indictment, which included 12 counts against Stakic. This was ultimately reduced to eight counts in the Fourth Amended Indictment (the 'Indictment'). (12)

   The Indictment charged Stakic with genocide and complicity in genocide under Article 4 of the Tribunal Statute; murder, extermination, persecutions, deportation and other inhumane acts (forcible transfer), all as crimes against humanity under Article 5 of the Tribunal Statute; and murder as a violation of the laws and customs of war under Article 3 of the Tribunal Statute.

4. The Trial Judgment

   Following a 12-month trial, the Trial Judgment was handed down on 31 July 2003. The Trial Chamber found that Stakic 'played a unique pivotal role in co-ordinating the persecutory campaign carried out by the military, police and civilian government in Prijedor', (13) and that the acts of persecutions and extermination formed 'the heart of the criminal conduct of Dr. Stakic'. (14) Accordingly, he was found guilty as a co-perpetrator of extermination as a crime against humanity; murder as a violation of the laws and customs of war; and persecutions as a crime against humanity (incorporating murder as a crime against humanity and deportation as a crime against humanity). (15) However, the Trial Chamber was unable to infer that Stakic, or any of his subordinates, had the requisite dolus specialis for genocide. (16) Consequently, he was acquitted of genocide and complicity in genocide. Furthermore, the Trial Chamber acquitted Stakic of other inhumane acts (forcible transfer) on the grounds that the crime of 'other inhumane acts' lacked sufficient clarity and should not be used to attach criminal liability to forcible transfers which were not otherwise punishable as deportations. (17) Stakic was sentenced to life imprisonment (with review after 20 years). (18)

5. The Appeals

   The Prosecution appealed the Trial Judgment in three areas. First, the Trial Chamber erred by finding that the 'target group' for genocide could not be defined negatively (i.e. 'non-Serbs' could not constitute a target group). Second, the Trial Chamber erred by finding that Stakic lacked the requisite dolus specialis for genocide. Third, the Trial Chamber erred in its application of the law on cumulative convictions. (19) Stakic appealed the Trial Judgment in seven areas. First, the Trial Chamber erred by relying on evidence from outside the temporal scope of the Indictment. Second, the trial was unfair because Stakic was denied the right to call certain witnesses and the Prosecution violated its disclosure obligations. Third, the Trial Chamber drew impermissible inferences that resulted in a miscarriage of justice. Fourth, the Trial Chamber erred in its application of Article 5 of the Tribunal Statute (crimes against humanity) in relation to its finding that the attack was 'widespread' and 'systematic', and in its analysis of the law on extermination, persecutions and deportation. Fifth, the Trial Chamber erred in its application of Article 3 of the Tribunal Statute (violations of the laws or customs of war) by finding that there was a nexus between Stakic's acts and an armed conflict. Sixth, the Trial Chamber erred in its determination of Stakic's sentence. Seventh, the Trial Chamber erred in its application of the law on cumulative convictions. (20)

6. The Appeals Judgment

   The Appeals Chamber upheld the Trial Chamber's decision to acquit Stakic of genocide and complicity in genocide; affirmed Stakic's convictions for persecutions and extermination as crimes against humanity and murder as a violation of the laws or customs of war; and entered additional convictions against Stakic for deportation and other inhumane acts (forcible transfer) as crimes against humanity. The Appeals Chamber also imposed a 'global sentence' on Stakic of 40 years' imprisonment.

   The following findings of the Appeals Chamber will be discussed below: (21)

   (a) The 'target group' for genocide cannot be defined negatively;

   (b) Stakic did not have the dolus specialis (special intent) for genocide;

   (c) Stakic was liable as a participant in a joint criminal enterprise ('JCE') rather than as a co-perpetrator;

   (d) The law on deportation and forcible transfer;

   (e) Permissible cumulative convictions; and

   (f) Amendments to Stakic's sentence.

   1. The 'Target Group' for Genocide Cannot be Defined Negatively

      In the Trial Judgment, the Trial Chamber found that 'where more than one group is targeted, it is not appropriate to define the group in general terms as, for example, "non-Serbs"'. (22) Instead, it held that the target group needed to be established separately in relation to the Bosnian Croats and the Bosnian Muslims. (23) This signalled a departure from the 'negative approach' adopted by the earlier jelesic (24) Trial Chamber, which had held that the target group could be defined by:

      identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group. (25) The Appeals Chamber addressed this issue in some detail given the divergent views of the Stakic and Jelesic Trial Chambers, noting that 'the question of whether the group targeted for genocide can be defined negatively is one of first impression for...