Institute for War and Peace Reporting | Giving Voice, Driving Change
Vujadin Popovic, Ljubomir Beara, Drago Nikolic and Vinko Pandurevic in the ICTY courtroom. (Photo: ICTY)
The appeal hearing for five Bosnian Serb army officers convicted for their involvement in the 1995 Srebrenica massacre took place this week at the Hague tribunal.
The five defendants – Vujadin Popovic, Ljubisa Beara, Drago Nikolic, Vinko Pandurevic, and Radivoje Miletic – were part of the biggest trial ever to take place at the tribunal. It began in 2006 and the judgement was rendered in 2010. (Convictions in Srebrenica Seven Trial.)
A sixth defendant in the trial, Ljubomir Borovcanin, did not appeal against his 17 year prison sentence and was therefore not at this week’s hearing. The seventh man convicted in the case, Milan Gvero, died in February 2013.
Srebrenica, a town in eastern Bosnia, was declared a United Nations safe area in 1993 but fell to Bosnian Serb forces on July 11, 1995. In the days that followed, more than 7,000 Bosnian Muslim men and boys were murdered at execution sites in the surrounding area.
In the 2010 trial verdict, judges found that Popovic and Beara were guilty of committing genocide and sentenced them both to life in prison.
Popovic, who was chief of security for the Drina Corps of the Bosnian Serb army, “was entrenched in several aspects of the operation, and he participated with resolve,” Judge Agius said while reading out the verdict in 2010. “Popovic knew the intent was not just to kill those who had fallen into the hands of the Bosnian Serb forces, but to kill as many as possible with the aim of destroying the group.”
The judge said that “Popovic’s ensuing robust participation in all aspects of the plan demonstrates that he not only knew of this intent to destroy, he also shared it”.
Judges concluded that Popovic was present at several killing sites, including “at the field in Orahovac as the executions took place”.
In addition to genocide, Popovic was convicted of extermination, murder and persecution.
This week, Popovic’s lawyers contended that the trial chamber “made factual errors which resulted in a miscarriage of justice”.
They especially criticised the chamber’s reliance on the evidence of Momir Nikolic, who was the assistant commander for security and intelligence of the Bratunac Brigade, and a subordinate of Popovic.
In 2003, Momir Nikolic pleaded guilty to a charge of persecution and is currently serving a 20-year sentence.
“On the basis of Momir Nikolic’s evidence, the chamber found that Popovic had genocidal intent due to his knowledge of the plan to murder from time of its inception [on 12 July 1995],” Popovic’s lawyer said.
The lawyer contended that Nikolic gave false, self-incriminating information to the prosecution in order to secure a plea agreement for himself and went on to “falsely incriminate others”.
In addition, he said, “the chamber completely disregarded the bulk of evidence” that separating Bosniak men from their families was solely a measure to screen them as potential war criminals.
He further claimed that the prisoners were actually “under the purview” of civilian authorities and not the Bosnian Serb army from July 11 to 14, 1995.
Popovic testified last month as a defence witness in the case against wartime Bosnian Serb president Radovan Karadzic. He repeatedly claimed that he played no role in the 1995 executions. The prosecution accused him of fabricating his testimony in order to help his appeal. (See Karadzic Witness Questioned on Own Srebrenica Role.)
This week, prosecutor Paul Rogers said that Popovic focused only on “isolated aspects” of the trial chamber’s findings.
“He prefers a piecemeal assessment, ignoring that the chamber looks at each piece within the full story,” Rogers said.
Regarding Momir Nikolic’s credibility, Rogers said that the trial chamber had already addressed those concerns at length in the judgement. In it, the judges wrote that they took a “cautious and careful approach” to Nikolic’s evidence and ultimately found that “he adhered to key portions of his evidence despite extensive cross-examination and challenge”.
“The chamber is in a perfect position to assess the reliability of evidence. Where the chamber was not sure about evidence implicating Popovic, they rejected it,” Rogers said.
He pointed to findings in the judgement that Popovic had played an active part in the killing operation, and that after busloads of prisoners were gunned down at the Pilica cultural centre and Branjevo farm on July 16, Popovic reported to an interlocutor the following day that “everything is OK, everything is done. Everything has been brought to an end. The grade is an A.”
“Popovic was in it from the beginning,” Rogers argued. “He was in Potocari on 12 July, explaining the murder operation before the separations began on the 13th. He enlisted [Bosnian Serb army] members to accomplish the plan. He organised and led the transport of prisoners.… He was present in many places of detention.
“He organised fuel for the killings, transport and executioners. He reported on the success of the work he had done and participated in its cover up. He was committed and dedicated to the task he had been given. He was rightly and justly convicted for his major role in this atrocity, and his appeals must be dismissed,” Rogers said.
Beara, chief of security of the Bosnian Serb army main staff, was convicted on the same counts as Popovic – genocide, murder, extermination and persecution. He too was sentenced to life in prison.
The trial judgement found that Beara had “the clearest overall picture of the massive scale and scope of the killing operation” and that he was “a man intent on destroying a group by killing all the members of it within his reach. Beyond all reasonable doubt, he harboured genocidal intent”.
At the outset of his arguments, Beara’s lawyer Norman Sepenuk said that he would not be addressing any factual findings, only legal ones.
He noted that Beara had been convicted of genocide and was found to have been a participant in a joint criminal enterprise, or “JCE”, to eliminate the Bosnian Muslims of Srebrenica by killing the men and boys and forcibly removing the women, children and the elderly. However, Beara had been acquitted of forcible transfer.
“In view of this acquittal, our argument is that Mr Beara must also be acquitted of genocide, since he did not have the genocidal intent to destroy the Bosnian Muslims of eastern Bosnia as part of the protected group. The balance of my argument is devoted to the proposition that only a combination of the convictions for the mass killings of the men and forcible transfer of women and children permits a finding of Mr Beara’s genocidal intent,” he said.
Another of Beara’s lawyers, John Ostojic, later argued that the lifetime prison sentence was excessive and should be reduced.
He pointed out Beara’s “good character, his decent family, how he helped people prior to and during the war. The court found that he did have good character, but [that] they should give only limited weight to that. They were wrong to do that.”
The defence also claims that Beara was not in Bratunac on July 13 and 14 when Bosnian Muslim men were being detained, badly mistreated and killed.
In response, prosecuting lawyer Matthew Gillett said that this “wasn’t correct” and that there were “witnesses, intercepts and documents” to prove that Beara’s alibi was false.
In addition, Gillet pointed out, the trial chamber had “found that the killing operation of many thousand Bosnian Muslim men and boys targeted exclusively on the basis of their ethnicity was sufficient in of itself to infer genocidal intent.
“It then also referred to the forcible transfer operation being consistent with that finding, but not necessary. On the totality of evidence, [the chamber] concluded that Beara was one of the individuals who possessed genocidal intent,” the prosecutor said.
Another defendant, Drago Nikolic, was chief of security of the Zvornik Brigade, and was found guilty of aiding and abetting genocide, extermination, murder and persecutions. He was sentenced to 35 years in prison.
His lawyer, Stephane Bourgon, said that “Nikolic was in no way close to Beara and Popovic in events of July 1995, nor was he close to them before that period and did not plan and coordinate the operation with them.”
“He did meet with Beara and Popovic, with whom he received instructions of a limited nature. This is one of main errors made by trial chamber – [Nikolic] was convicted by association,” Bourgon said.
He noted that the trial chamber got many factual aspects of the judgement right, and that victims’ families now knew where executions and reburial operations took place. But when it came to Drago Nikolic’s individual responsibility, the lawyer said, “it was mistake after mistake after mistake”.
“The victims and their families deserve better than the erroneous conclusions that were drawn on the basis of witnesses who lied before this court,” Bourgon said.
The prosecution retorted that Drago Nikolic was “not some bit player, or someone unaware of what was going on”, but someome who “worked closely with Popovic, Beara and others to arrange the detention and execution” of prisoners.
“He was fully aware of the enormity of crimes he was committing… He did whatever it took to ensure that the killing machine kept running smoothly,” the lawyer said.
Next to present his appeal was Pandurevic, former commander of the Zvornik Brigade.
In 2010, Pandurevic was found guilty of aiding and abetting murder, persecution and forcible transfer. He was also found guilty, as a superior, of murder. He was acquitted of genocide, conspiracy to commit genocide, extermination and deportation. Judges sentenced him to 13 years in prison.
According to the original judgement, Pandurevic’s participation in the “military attack and takeover of the Srebrenica enclave substantially contributed to the forcible transfer of the civilian population from Srebrenica”.
Pandurevic also had reason to know that his subordinates “had committed, were committing, or were about to commit crimes in relation to the detention, execution, and burial of the Bosnian Muslim prisoners in the area of Zvornik”, the judgement said.
Pandurevic appealed against several aspects of his conviction, including “aiding and abetting” and “superior responsibility” as forms of liability, and asked for his 13-year prison sentence to be reduced.
The fifth appellant, Radivoje Miletic, was the former chief of administration for operations and training at the Bosnian Serb army’s main staff.
In 2010, he was found guilty of murder, persecution and forcible transfer as crimes against humanity. He was acquitted of murder as a war crime and deportation as a crime against humanity.
Miletic was sentenced to 19 years in prison. He too appealed against his conviction and prison sentence.
The appeals judgement will be delivered in due course.
The prosecution is appealing against several aspects of the judgement. Among the nine grounds of appeal, they argue that the prison sentences of Nikolic and Pandurevic are "manifestly unjust." In addition, they say that Nikolic should be convicted of genocide, and not just aiding and abetting it.
Rachel Irwin is IWPR’s Senior Reporter in The Hague.
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