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Kordic & Cerkez judgement
The first senior politician to be convicted at The Hague tribunal, Bosnian Croat Dario Kordic, was last week sentenced to 25 years in prison.
But the verdict and sentence have triggered questions over both the threshold of proof needed to secure convictions of "command responsibility" for politicians and the length of sentences handed out by tribunal judges.
The trial chamber ruled Kordic's allegedly senior position in the Bosnian Croat wartime hierarchy had not been proven beyond reasonable doubt. The judges instead downgraded his position to "a regional political leader in central Bosnia, with particular authority in the Lasva valley".
But, even at this downgraded level of influence, Kordic was found criminally responsible as the "effective political commander in an area where the majority of the offences were committed" by Croatian Defence Force, HVO, units against the Bosniak (Bosnian Muslim) population, with the Ahmici massacre considered to be among their worst crimes.
Prosecutors had sought to demonstrate Kordic held the number two spot in the Croatian Democratic Union in Bosnia-Herzegovina party, HDZ-BH, and in the so-called Croatian Community of Herceg-Bosna, second only to the then leader, Mate Boban.
Kordic and Boban were directly linked to former Croatian president Franjo Tudjman and his defence minister Gojko Susak. Together, they allegedly pulled the strings in a separatist project to ethnically cleanse what they considered to be the historically Croatian areas of Bosnia-Herzegovina with the aim of joining these territories to Croatia.
The judges agreed that in late 1991 the HDZ-BH had set up a separate Croat entity with the intention that it should in due course become part of Croatia. "Meanwhile, Dario Kordic rose rapidly in the HDZ-BH political party," the trial chamber said.
Kordic's co-accused Mario Cerkez "for his part was one of the founders of the HVO in Vitez and Commander of its local Brigade."
The judges' summary went on, "In 1992, the HVO began taking over power in the municipalities in Central Bosnia, in particular in Busovaca, Vitez and Kiseljak...In April 1993 it was the turn of Vitez and the Muslim villages of the Lasva Valley to come under attack.
"The trial chamber finds that the evidence points to a well-organised and planned HVO attack upon these locations, in particular the village of Ahmici, where the attack early in the morning of 16 April resulted in a Massacre, in which more than 100 people were murdered, including 32 women and 11 children.
"There were similar attacks on the villages up and down the Lasva Valley and on the town of Vitez. The trial chamber finds that these attacks followed a common design or plan conceived and executed by the Bosnian Croat leadership to ethnically cleanse the valley of Muslims."
The trial chamber confirmed that the intervention of Croatia rendered the conflict in central Bosnia international in character, a prerequisite for charging defendants with grave breaches of the Geneva Conventions. Kordic and Cerkez were both convicted of such offences.
The trial chamber said there was "overwhelming evidence" of a campaign of persecution aimed at the Bosnian Muslims in central Bosnia throughout the period covered by the indictment.
"Thus, the trial chamber rejects the defence case that these events amounted to a civil war and that the Bosnian Croats were on the defensive," the court ruled.
Kordic was not sentenced as an "architect of the persecution or the prime mover in it". But the judges found that he "joined the campaign enthusiastically and played an instrumental part in the Lasva valley offensives in 1993".
Presiding Judge Richard May told Kordic, "The fact that you were a politician and took no part in the actual execution of the crimes makes no difference; you played your part as surely as the men who fired the guns. Indeed, the fact that you were a leader aggravates the offences."
Prosecutors and victims of HVO crimes in central Bosnia have criticised the 25-year sentence as "light" and "insufficient", especially as Kordic was found responsible for the Ahmici massacre.
The sentence reflected the trial chamber's findings that Kordic, although a planner and instigator of the crimes (punishable under Article 7 (1) of the tribunal statute), is not guilty of command responsibility (punishable under Article 7 (3)).
"Dario Kordic was present at a meeting of politicians in the headquarters of Colonel [Tihomir] Blaskic on the 15 April when the attacks on Ahmici and the other villages were authorised...and was associated with an order given by Colonel Blaskic to kill all the military-aged men, expel the civilians and set fire to the houses in Ahmici," the trial chamber said. "Such an order would not have been given without political approval."
But the judges said great care was needed to be taken in assessing the evidence to determine command responsibility in respect of civilians.
"Substantial influence such as Kordic had, by itself, is not indicative of a sufficient degree of control for liability under article 7(3)", the trial chamber said.
The judges found that, "Kordic lacked effective control which the Appeals Chamber in the Celebici case defined as a 'material ability to prevent or punish criminal conduct'...Kordic did not possess the authority either to prevent the crimes or to punish the perpetrators and cannot therefore be liable under article 7(3) of the statute."
Prosecutor Geoffrey Nice, who led the prosecution's case during the trial, said, "If Kordic does not have command responsibility - given the level of political responsibility found to be held by him - the implications for the others [politicians facing trial at The Hague] might be rather serious."
Kordic's defence lawyer Stephen Sayers said he was satisfied the judges had accepted his client was not part of the HVO chain of command.
The judges' finding that Kordic had been present at the meeting where orders for attacks in the Lasva valley had been issued was based on the testimony of one witness - protected witness AT - who was described as a "senior military police member" convicted in a separate trial before the tribunal.
The only convicted member of the HVO military police is Vlado Santic, sentenced to 25 years in prison in the Kupreskic & Others case currently on appeal.
Protected witness AT said his commander told him Kordic was present at the meeting at HVO central Bosnia headquarters.
The trial chamber admitted, "there is no direct evidence supporting his account of the meeting", but found "there is circumstantial evidence which does so".
Firstly, the judges concluded, "No meeting of this importance...would have taken place without Kordic being present" and secondly that AT was a credible witness who gave a coherent and fluent account of events.
Kordic's main defence lawyer Mitko Naumovski said, "Kordic's association with the Ahmici attack has not been proved" and the 25-year prison sentence represents a "compromise".
"If Kordic was indeed responsible for Ahmici - then the sentence does not reflect it," he said.
Naumovski therefore inadvertently concurred with the prosecution's assessment that the sentence given to Kordic does not reflect the trial chamber's factual findings.
One of the prosecution lawyers, Kenneth Scott, pointed out the judges had described the crimes as "ruthless and savage acts", part of a "campaign of ethnic cleansing against Muslims in the Lasva valley", "the most heinous acts possible" and that there were "no mitigating circumstances".
"Those were the [trial chamber] findings and not just our characterisations," Scott said. "And in our view, we are very concerned that the sentences are not adequate to reflect those crimes as characterised by the chamber itself."
Cerkez was found guilty of both individual and command responsibility and sentenced to 15 years imprisonment.
Cerkez was "commander of the Viteska Brigade during the time of the terrible events in the Lasva valley and led it in the assaults which resulted in civilian death and destruction," the judge said.
Cerkez "played his part in the campaign of persecution, aggravated because of his role as a commander."
The trial chamber found that in mid-April 1993 Cerkez "knew of the impending attacks on Vitez, Stari Vitez and Veceriska by the troops under his command. He failed to take the necessary measures to prevent those attacks, failed to punish those who were responsible for the attacks."
Judge May said, " However, in spite of his presence at the military meeting on 15 April, the trial chamber is not satisfied beyond reasonable doubt that Mario Cerkez bears any responsibility for the attack on Ahmici. This attack was the responsibility of the 4th Battalion Military Police, which was not under his command."
Out of the 22 charges faced by both defendants, Kordic was convicted on 12 and Cerkez on 14.
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