Arguments Heard Against Oric Judgment

Lawyers representing Naser Oric this week rejected prosecutor’s “new theories” in their appeal against the former commander’s conviction for war crimes committed in Bosnia in 1992 and 1993.



“The prosecution are coming up with new theories all the time. It’s a different case we hear today from the case which was in the indictment,” defence lawyer John Jones told the court in his opening remarks.



Oric was sentenced to two years in prison in June 2006 for failing to prevent the murder and cruel treatment of Serb prisoners detained in Srebrenica between December 1992 and March 1993.



Shortly after the trial chamber’s verdict, both the prosecution and defence teams launched an appeal and this week they presented their arguments to the tribunal’s appeals chamber.



Oric’s trial has captivated former Yugoslavia since it began in October 2004. Seen by many Bosnians as a hero, Oric’s sentence sparked anger among Serbs in Bosnia and Serbia who saw it as highly lenient.



A Serbian blogger reacting to the trial chamber’s verdict at the time remarked on Belgrade’s B92 website, “If a Serb were tried for the same crimes, he would be sentenced to at least 20 years in prison.”



The prosecution - which sought an 18-year prison sentence at the end of the proceedings - this week appealed for Oric’s two-year term to be extended on account of its leniency and also because they allege that the commander failed to investigate crimes committed by his subordinates in the months before December 1992.



Meanwhile, Oric’s defence team argued for his acquittal on all charges.



The prosecution contends that the trial chamber made a mistake in not concluding that the prison guards who murdered and abused Serb prisoners were members of the military police and therefore under Oric’s command in the months leading up to December 1992.



It further argued that even if the prison guards who committed the crimes were not members of the military police, they would still have been under Oric’s command.



“The trial chamber was not satisfied that the guards were identified as members of the military police but we say it should not have stopped its enquiry there,” prosecutor Michelle Jarvis told the court.



“Regardless of whether these individuals were identified as members of the military police or not, the real question was…were they under [Oric’s] effective control?”



Not only does the prosecution believe that the prison guards were under Oric’s command but it also submits that, despite knowing about their crimes in the autumn of 1992, he failed to punish them. It contends that Oric, in his failure to act, was complicit in aiding and abetting the crimes.



Prosecutor Christine Dahl sought to press home the trial chamber’s finding that Oric knew about prisoner mistreatment, by arguing that he failed to use this knowledge to investigate and punish the perpetrators.



“Mr Oric is liable because he had actual knowledge of sufficiently alarming information that triggers a duty to investigate, to further inquire,” said Dahl. “And when he sees prisoners beaten and bloody he knows that something is going terribly wrong.”



Jones responded to the prosecution submissions by branding them a “daisy chain of liability”. He said the defence had had to adopt a “belt and braces” approach in order to challenge any new theories advanced by the prosecution.



Jones contended that in terms of command responsibility, Oric was three or four times removed from the guards who committed crimes. He compared the “remoteness” of Oric’s responsibility to the line of an old English song, “I've danced with a man, who's danced with a girl, who's danced with the Prince of Wales.”



Addressing Dahl’s arguments directly, Jones emphasised that it was not the prisoner abuse that was being disputed but Oric’s responsibility.



“We did not challenge that these prisoners were beaten. It’s not a question of bloody faces,” he said. “It’s a question of who the guards were under and whether Oric knew of the measures taken.”



Jones emphasised that there was no evidence pointing to an identifiable subordinate under Oric who had committed the crimes.



Turning to what he referred to as the “crux of the case”, Jones argued that the Serb prisoners were being detained both at the police station and at a second facility by civilian, rather than military, police.



According to Jones, the military police should not be held responsible for the crimes “since mistreatment was occurring in the civilian police station that came under the auspices and authority and responsibility of the civilian police and the civilian authorities right up to the civilian war presidency”.



Citing evidence that in his opinion was not given sufficient weight by the trial chamber, Jones argued that the guards were subordinated to the chief of the civilian police and not to Oric.



But prosecutor Paul Rogers rebutted Jones’s argument. He pointed to an “abundance of evidence” including minutes of military meetings in October 1992, that show the guards were military police and under military control, and not the control of the war presidency.



“It’s quite clear that the military were directing the operation of the military police,” Rogers told the court.



While the defence seeks Oric’s acquittal on all charges against him, Serbs in both Bosnia and Serbia hold the Bosnian commander as guilty even beyond the bounds of his indictment. They accuse him of antagonising Serbs in the region throughout the war and blame him for provoking the Bosnian Serb massacre of more than 8,000 Muslim men and boys at Srebrenica in 1995.



But a source of debate at trial was the Serb prosecution witnesses who testified in support of the defence’s arguments. Some Serb survivors from the prison in Srebrenica testified that Oric did not do anything wrong and even treated them favourably.



Also in Oric’s favour was his cooperation with the tribunal and his youth - he was only 25 at the time the crimes were committed. The trial chamber ruled that while it would not give too much weight to his age, it could not “fail to take into consideration the enormous burden that was cast upon him at the age of 25 while the situation in Srebrenica was desperate”.



But in its appeal this week, the prosecution further challenged the trial chamber’s finding that the “chaos and lawlessness” in Srebrenica during 1992 and 1993 was a mitigating factor in Oric’s responsibility for the crimes. The prosecution contended that in fact the opposite was true - that the situation in the region should have made the risk of crimes more apparent.



“It had to be clear to everybody that Serb captives could be exposed to abuse,” said prosecutor Jarvis.



The appeals chamber will announce its verdict at a later date.



Simon Jennings is an IWPR reporter in The Hague.