THE HAGUE AGAINST JUSTICE (Part I)
International Criminal Tribunal
in the Case of Tribunal Prosecutor vs. Gen. Djordje Djukic
By Dr. Kosta Cavoski.
Professor Kosta Cavoski, an eminent Yugoslav
law scholar, holds Ph.D. from Harvard University. He has taught at Theory
of Law at University of Belgrade.
If things begin well
there is a good chance that they will end well and vice versa. The start
of the first important case that was presented to the International Criminal
Tribunal was a complete fiasco. The case in question was that of the Tribunal
Prosecutor versus Djordje Djukic. It ended disgracefully, leaving behind
a sad example of serious violation of the guarantees and institutions of
criminal law which are applied and respected in all civilized countries.
The arrest of
a person is an exceptionally serous and dangerous act with regard to elementary
human rights and should therefore be carried out with utmost caution.
In civilized countries it is undertaken in accordance with procedural guarantees
involving an arrest warrant when there exists reasonable doubt that a crime
has been carried out, or as apprehension in the line of duty during the
actual perpetration of a serious crime. General Djordje Djukic was arrested
by the Muslim authorities on a road that was under the protection of the
Implementation Force (IFOR). Neither the court in Muslim Sarajevo nor The
Hague International Criminal Tribunal (i.e. the Prosecutor) had accused,
let alone suspected him of any criminal act. Arrest implies a legal process,
but he was not even arrested, he was simply
kidnapped in a form of highway robbery before
the eyes of the IFOR.
This took place on
30 January 1996 on a road secured by IFOR. General Lieutenant Colonel Djordje
Djukic, assistant Chief of Staff of Logistics of the Republika Srpska Army
in the rear, Aleksa Krsmanovic, Deputy Commander of the Sarajevo-Romanija
Rear Corps, and driver Radenko Todorovic, were driving along this road
in a car with civilian registration plates, having first informed IFOR
of their route. In view of this, the arrest of General Djordje Djukic,
Colonel Aleksa Krsmanovic and Radenko Todorovic was an arbitrary act and
in violation of the well-known legal institution
of habeas corpus - the guarantee against arbitrary arrest.
At the moment of arrest none of these persons were breaking the law, neither
did there exist a valid warrant for their arrest.
Following their arrest
General Djukic and Colonel Krsmanovic were illegally detained for a full
six days (from 30 January to 4 February 1996) in police custody, even though
the current law on criminal procedure in Muslim Sarajevo states that police
custody can only last 72 hours. It was only on 6 February that they were
handed a ruling on custody when the Sarajevo High Court instituted proceedings
(court ruling no. Ki - 57/96) against General Djordje Djukic on the grounds
of suspected war crimes against civilians. Until then General Djordje Djukic
was subjected to eight days of torture and
mental distress as a result of interminable interrogation, sometimes lasting
for 20 hours a day. All this was done in spite of Djukic's timely warning
that he was seriously ill and that he needed medical care and medication.
The Prosecutor's Gullibility
However heinous and unforgivable
this illegal and arbitrary behavior on the part of the Muslim authorities,
it didn't surprise anyone. In civil and religious wars mutual hatred has
provoked many worse and more dangerous crimes, particularly since the international
actors in Bosnia were biased towards one side if not indifferent.
What was surprising,
however, was the tendency of the International
Criminal Tribunal in the Hague, and especially its prosecutor Richard Goldstone,
to incorrectly apply and breach the very rules that it had instituted.
From November 1993 when eleven judges were appointed and the Tribunal began
to work, up to 30 January 1996 (two years and two months later), the Prosecutor's
office carefully collected all available data related to war crimes on
the territory of former Yugoslavia, in particular in Bosnia and Herzegovina.
During this time absolutely
no-one marked General Djordje Djukic and Colonel
Aleksa Krsmanovic as suspected war criminals,
even though all sides, including the Muslim authorities in Sarajevo assisted
in the collection of data and the compilation of a list of suspects. This
fact should have prescribed at the very least restraint and great caution
on the part of Prosecutor Richard Goldstone when he heard that high ranking
Serbian officers had been kidnapped as suspected war criminals by Muslim
authorities on a road supervised by IFOR. Instead of this, the ambitious
Richard Goldstone decided on 7 February to instigate proceedings against
General Djordje Djukic and Colonel Aleksa Krsmanovic, thereby validating
the lawlessness of the Muslims and their alleged
suspicion of the two for being war criminals.
He then sent his experts to Sarajevo to investigate this long awaited case.
During talks with CSCE representatives in Vienna, Goldstone clearly stated
that proof against Djukic and Krsmanovic "was serious enough to call for
an investigation"(1). Hence Christian Chartier, spokesman of The Hague
Tribunal announced that Goldstone "had concluded that there were adequate
grounds to take the Bosnian charges seriously and carry out an investigation
into the possible guilt of the suspects for acts under the jurisdiction
of the International Tribunal"(2).
On 12 February 1996,
at the request of Prosecutor Richard Goldstone,
General Djordje Djukic and Colonel Aleksa Krsmanovic were transferred to
the International Tribunal prison in The Hague as suspects. This implied
that in accordance with Rule 2 of the Tribunal "the Prosecutor possesses
reliable information which tends to show that they may have committed a
crime over which the Tribunal has jurisdiction". It is hardly necessary
to say that the most important component of this sentence is the reliability
of the information regarding alleged crimes committed by the suspects.
The Prosecutor's Violation
of the Rules of Procedure and Evidence
To his great regret,
very quickly realized that the information he had received from Sarajevo
was not at all reliable, and that the thirty or so officials sent to The
Hague by the US Ministry of Justice at its own expense had not discovered
anything of importance in the meantime. Only then did he realize that at
the very beginning of the case he had made
an unforgivable mistake and seriously violated the Tribunal's Rules of
Procedure and Evidence.
According to article
8 of the Statute of the International Tribunal of 25 May 1993, the Tribunal
has concurrent jurisdiction with national courts in the pursuit of people
who have seriously violated international humanitarian laws on the territory
of former Yugoslavia since 1 January 1991. At the same time the primacy
of the International Tribunal over national courts is stipulated. However,
the practical application of such primacy occurs only if at any stage in
the procedure the International Tribunal demands of the national court
that it defer its competence in accordance with the Statute and its Rules
of Procedure and Evidence.
Since the High Court
in Sarajevo had already instituted criminal proceedings against General
Djordje Djukic and Colonel Aleksa Krsmanovic under its ruling no. Ki-57/96,
in order to initiate his own investigation, Prosecutor Richard Goldstone
should have fist proposed to the Trial Chamber that it submit a formal
demand for deferral of competence of the national court to that of the
Tribunal. The Trial Chamber would then have had to adopt his proposal so
that the International Tribunal could submit a formal demand to the state
in question for its court to defer competence. Only then the national court
deferred competence to the International Tribunal could the Prosecutor
initiate an investigation and seek the transferal of the suspects to The
Hague. Richard Goldstone, however, did both - he initiated investigation
and transferred the suspects - without having first proposed to the Trial
Chamber that a formal demand for competence deferral be made, and waited
for the decision of the Chamber. This would have been followed by submission
of the demand and its formal acceptance. He therefore broke Rules 9 and
10, which to him should have been inviolable.
Blackmail and Extortion
If Richard Goldstone
had possessed reliable and incriminating evidence against Djukic and Krsmanovic,
the disturbing realization that he had broken the Rules of the Tribunal
would not have bothered him much. Since, however, there was no such proof
or the hope that it would be found, Goldstone
was forced to twist, distort and falsify the facts
in an attempt to extract himself. In this he
was generously assisted by the president of the First Trial Chamber, French
judge Claude Jorda. The first step was to
change the legal status of Djordje Djukic and Aleksa Krsmanovic. To do
this Richard Goldstone and the responsible judges off-handedly forgot that
on 13 February 1996 The Hague Tribunal spokesman, Christian Chartier, publicly
announced that investigation into two high ranking officers had begun,
that as suspects they had been informed that they had the right not to
answer questions, the right to choose a lawyer and that they would have
at their disposal a court translator. The very next day, 14 February 1996,
Goldstone himself announced that Djukic and Krsmanovic had been transferred
to The Hague "under suspicion that during the conflict in former Yugoslavia
they had committed serious breaches of international humanitarian laws".
However, instead of this qualification, on 28 February Goldstone
suddenly changed the status of the prisoners to potential witnesses,
to the shock of defense lawyers, Toma Fila and Milan Vujin, who immediately
stated that this was "the first time" they had heard their clients were
witnesses and not suspects. (3)
The real reason behind
the change in the prisoners' status was due to the fact that in order to
summon witnesses to The Hague it was not necessary to have either a formal
demand for competence deferral by the Trial Chamber or a formal decision
by the Sarajevo High Court deferring its competence to the International
Tribunal. According to Rule 90 bis which was subsequently added, the International
Tribunal can demand, in the interest of a testimony, temporary access to
detained persons. Thus it turns out that Djukic and Krsmanovic were kidnapped
and formally placed under criminal investigation in Sarajevo so that, hand
cuffed, they could be transferred to The Hague prison in order to supposedly
testify. In this way the Prosecutor
and the judges 'enriched' the international practice of criminal law by
instituting the preventive arrest of witnesses - something unknown to any
civilized criminal legislation. A witness
can only be forcefully brought to court if he or she does not respond to
a subpoena or excuse their absence.
The act of issuing a
bill of indictment against General Djordje Djukic in itself was a new and
serious violation of the Rules of Procedure and Evidence. In the surprising
change of Djukic's and Krsmanovic's status from suspects to witnesses,
Richard Goldstone tacitly admitted that the Rules had been seriously violated
since there had been no previous institution of competence deferral procedures.
Therefore, it could be assumed that the same mistake would not be made
again. It has already been said that investigation against General Djordje
Djukic and his detention in prison had been set in motion by ruling no.
Ki-57/96 of the High Court in Sarajevo of 6 February. This meant that criminal
proceedings before the court of the Muslim-Croat Federation had been instigated.
Under such circumstances, especially as he did not possess any proof, the
Tribunal Prosecutor was not in the position to directly press charges against
Djukic. To do this he first had to propose to the Trial Chamber that it
submit a formal demand for deferral of competence. Only when the High Court
in Sarajevo delivered its decision to defer its competence to the jurisdiction
of the International Tribunal would Richard Goldstone have had the authority
to issue a bill of indictment.
once again broke Rules 9 and 10 of the Tribunal
and did just this without the Sarajevo High Court deferring competence
to the International Tribunal, or indeed the International Tribunal taking
over jurisdiction of this case. To make matters worse, Goldstone was supported
by Justice Adolphus Godwin Karibi-Whyte, who accepted the bill of indictment
and signed the arrest warrant fully aware that formal take-over of jurisdiction
had not taken place. Once again it was made
clear that neither the Prosecutor nor certain of the judges afforded minimum
respect to the Rules that should have been-the backbone of their work.
Aside from formal
default the indictment against Djukic had inadmissible material shortcomings
- Djukic's responsibility was neither specified nor backed by any reliable
evidence. It was stated that General Djordje Djukic, in his capacity as
assistant Chief of Staff of Logistics, was responsible for the following
duties: rear area supplies to all units of the Bosnian Serb army; recommendations
for all cadre appointments; issuance of orders related to the delivery
of supplies for the Bosnian Serb army units, regulation of rear area transfers;
decisions on the procurement and use of materials and technical equipment
from the Bosnian Serb army warehouses. Furthermore, "Djordje Djukic, in
agreement with others, planned, prepared or aided the actions and operations
of the Bosnian Serb army and its allies", which included the bombing of
civilian buildings. This bombing lasted from May 1992 until December 1995.
During this time "the Bosnian Serb armed forces in Sarajevo deliberately,
arbitrarily and on a widespread and systematic basis, bombed civilian targets
that were of no military importance in order to kill, wound, terrorize
and demoralize the civilian population of Sarajevo".
Hence, by supplying
the entire Republika Srpska army, Djukic was directly responsible for the
war crimes committed. This indictment however, did not provide sufficient
evidence on the basis of which a causal relationship could have been established
between the deeds of the accused and their consequences that were qualified
as war crimes. Instead of this there was an
attempt to "prove" that General Djordje Djukic, as assistant Chief of Staff
of Logistics was directly responsible for all operations on the front surrounding
should be paid to the fact that the Prosecutor did not submit the exact
dates of the shelling during the given period. This would have lent support
to the presumed causal relationship between Djordje Djukic's acts and their
consequences - the wounding, killing, and terrorizing of the civilian population.
The Prosecutor did not do this knowing that throughout
the period in question, Djordje Djukic's poor state of health had resulted
in his extended absence from work for treatment in the Military Medical
Academy hospital in Belgrade. In fact, had the exact dates of the bombing
been specified Djukic would have had the perfect
alibi - reliable proof that on the days in
question he was undergoing serious medical treatment instead of planning
and preparing the crimes he was allegedly responsible for.
Such incomplete and
inexact charges could be used as an indictment against thousands of other
Serbian soldiers simply by introducing their personal information and stressing
their strict liability for action in any area of the front. This, of course,
could only happen if strict liability were an accepted concept within the
criminal law of the International Tribunal in The Hague. However, this
is something long discarded in civilized countries.
The evidence collected
by the prosecutor was the weakest aspect in the indictment against General
Djordje Djukic. It was based on an overview of the organizational structure
of the civil and military authority in Republika Srpska and the internal
organization of certain political parties, including that of Arkan (Zeljko
Raznjatovic). It consisted of information related only to General Djukic,
in particular the way in which he assumed his position in the Republika
Srpska army and his official duties and obligations. Especially surprising
is the fact that this indictment included data on Radovan Karadzic. President
of Republika Srpska, and General Ratko Mladic, Commander of the Republika
Srpska army, and their alleged activities (despite the fact that Richard
Goldstone had already charged the two separately). In
all likelihood this was an attempt on the part of Richard Goldstone to
implicate General Djordje Djukic merely because he belonged to the same
military organization as Radovan Karadzic and Ratko Mladic.
A tabular schedule of the alleged bombing of civilian targets and population
was provided with no reference to who drew up this schedule (it could have
been done by a journalist on the basis of newspaper reports), or how reliable
the data were.
On the basis of such
unconvincing and totally undetermined evidence, Richard Goldstone detained
and indicted Djordje Djukic of alleged action that could have resulted
in life imprisonment. He thereby made it clear that the Bosnian Serbs came
under a special legal category subject to the rule of the Queen of Hearts
from Alice in Wonderland: "Sentence first - verdict afterwards".
Professional Defeat Portrayed
As "Victory of Humanism"
The Prosecutor knew very
well that the offered "facts" were no sort of proof of Djukic's individual
responsibility, but he hoped that by the time the case (which was constantly
postponed) came to court either something convincing would be found, or
the accused, in his poor state of health would agree to "cooperate" with
the Tribunal as a witness thereby more or less validating his presence
at The Hague. However, when it became clear that this last hope would come
to nothing, Richard Goldstone summoned the
strength to make one more desperate move: he proposed the dropping of charges.
Instead of publicly admitting that he had not succeeded in collecting reliable
and convincing evidence, he tried to promote his own magnanimity and humanity.
Despite the fact that he knew of Djukic's incurable illness from the very
beginning, Goldstone only now found it necessary to inform the Tribunal
that according to the independent opinion of Danish doctors, Djukic was
suffering from terminal cancer that had already metastased to other organs,
including the spine. To save face, he ended
with hoping that "the withdrawal of the indictment will not be against
his right to indict the accused at some time in the future for these same
offenses should the medical condition of the accused change".
Had the Prosecutor
been truly prepared to face up to his own professional and human conscience,
he would have had to ask himself whether the kidnapping of Djordje Djukic,
his long and debilitating "interrogation" and torture in the prison in
Muslim Sarajevo, as well as his indictment did not exacerbate an accelerated
worsening of his already fatal state of health. Would
Djordje Djukic not have lived longer had he not been exposed to such maltreatment,
loss of freedom and unfounded accusation? Instead
of this Richard Goldstone coldly noted that the accused probably would
not survived his trial and even if he did, the progressive worsening of
his health would make him almost incapable or meaningfully participating
in his own defense. Under such conditions his trial would be inherently
Djukic's defense lawyers,
Milan Vujin and Toma Fila, immediately opposed Richard Goldstone's proposal
and his attempt to wash his hands, under the
guise of humanity, of his numerous mistakes
and the great harm he had done Djordje Djukic.
With good reason, the defense lawyers claimed that the Prosecutor had not
backed his indictment with any form of evidence of the alleged guilt of
Djordje Djukic. They demanded of the Tribunal that it unconditionally free
Djukic due to lack of evidence. They also warned that any other resolution
would leave the shadow of suspicion of Djukic's guilt as a war criminal
thereby damaging his reputation and honor.
The Trial Chamber
presided over by French Justice Claude Jorda immediately perceived that
Richard Goldstone's proposal was not in accordance with Rule 51, which
states:"The Prosecutor may withdraw an indictment without leave, at any
time before its confirmation, but thereafter only with leave of the Judge
who confirmed it or, if at trial only with leave of the Trial Chamber".
As no conditions are specified for the withdrawal of an indictment as for
example in the case of ill health of the accused, it can be assumed that
this can only be done if the grounds for indictment disappear. This implies
that there was no longer any suspicion, let
alone evidence, that war crimes had been committed by General Djukic.
Thus the withdrawal of the indictment as proposed by he Prosecutor, meant
that it should never have been made. To indict again for the same offenses
could not be done as a result of Djukic's improvement of health since conditional
withdrawal of an indictment does not exist. He could only be indicted again
on the basis of new, collected evidence.
Confronted by this
state of affairs, the Trial Chamber tried to find a solution which would,
at least temporarily, save the face of the Tribunal and its Prosecutor.
Citing Rule 65 on provisional release, it decided to free Djukic from detention
due to his poor state of health and the lack of proper medical care in
the prison, leaving the indictment in force. However, this was a breach
of the Rules of Procedure and Evidence that were passed by the Tribunal
itself. Paragraph (B) of Rule 65 states that a detained person can be temporarily
released "only in exceptional circumstances, after hearing the representatives
of the host country", i.e. Holland, and possibly of the Yugoslav Federal
Republic where Djukic traveled to on his release. In
a feverish rush to find a way out of this worrying and humiliating position,
the Trial Chamber conveniently forgot this important stipulation, and gave
no hearing to either Dutch or Yugoslav Government representatives.
Thereby Djukic's case ended as it began -
by flagrant and shameful breach of the rules that are laid down in civilized
criminal procedures. There only remained for
the Appeals Chamber to rule on the Prosecutor's appeal and the complaint
lodged by the defense lawyers who persistently demanded that the case be
closed with a meritorious, and not procedural, verdict - meaning that Djordje
Djukic be freed on lack of evidence which would preserve his reputation.
Despite their professional and moral defeat, the
Prosecutor and judges at The Hague at least had the satisfaction of knowing
that they had shortened the life (6) of General Djordje Djukic by speeding
up his death - like the riders of the Apocalypse.
Djukic's death came very fast. Already on 18 May 1996, General Djordje
Djukic silently passed away.
first glance this looked like clumsy and naive sophistry, in essence and
by its consequences it was diabolical subterfuge. By changing the status
of the prisoners from suspects to witnesses, the Prosecutor practically
"offered" General Djukic and Colonel Krsmanovic the opportunity to testify
against other people in return for their own release from the charges and
this was a form of blackmail and extortion.
The Prosecutor must have known that such "testimony" is of doubtful credibility
since it is hard to believe someone who would implicate someone else in
order to be absolved. What is
worse is that the blackmail was substantiated by a dangerous threat: either
you "sing" here in The Hague or we'll hand you back to your torturers in
Muslim Sarajevo. That this was blackmail and threat was clear to the president
of the Trial Chamber, Claude Jorda, who almost incredulously asked General
Djukic and his lawyer - Milan Vujin and Toma Fila - a number of times whether
they were aware that if Djukic did not "voluntarily" testify at The Hague
he would be returned to Muslim Sarajevo where his only hope was the death
sentence for alleged participation
in genocide (4) to say nothing of abuse and torture in prison, something
the Muslim police are accustomed and partial to.
In face of the firm
refusal of General Djordje Djukic and Colonel Aleksa Krsmanovic to "cooperate"
with the Prosecutor, at the beginning of May 1996 Richard Goldstone pulled
another diabolical move: he decided to separate the fates of the two Hague
prisoners by indicting General Djukic and returning Colonel Krsmanovic
to the mercy of the Muslim police and Sarajevo judiciary. This separation
was difficult because both were rear officers - Djukic was assistant Chief
of Staff of Logistics of the Republika Srpska army, and Krsmanovic deputy
commander of the Sarajevo-Romanija rear corps. If General Djukic was charged
with taking part in the bombing and destruction of Sarajevo because he
supplied with food and ammunition the Sarajevo-Romanija corps that had
surrounded Muslim Sarajevo, why should Colonel Krsmanovic, who sent the
supplies he received from Djukic to the artillery batteries on the heights
around Sarajevo, not answer for the same crime? However, what was impossible
from the point of view of legal logic and principles, was permissible and
possible from a practical point of view, and this is the only thing that
seemed to govern Richard Goldstone.
what was this practical purpose? When the Prosecutor offered Djukic and
Krsmanovic the opportunity to "cooperate" by implicating their seniors
(5), their refusal would have had to be so severely punished that in the
future any other person forcefully brought to "testify" at The Hague would
have had in mind their example
and been aware there was no choice but to
cooperate. This is why Krsmanovic was immediately
returned to Sarajevo, even though the
Prosecutor and judges knew very well the danger their untried witness,
against whom they could bring absolutely no charges, no matter how great
their desire to do so, would be exposed to. Richard Goldstone issued a
bill of indictment against General Djordje Djukic with the intention of
punishing him in a likewise manner for refusing to "cooperate". Thus he
offered the Tribunal its first big opportunity to bring to trial a high
ranking officer of the Serbian Army. Perhaps he hoped that this indictment
along with the serious state of Djukic's health would force Djukic to give
in and "sing". Goldstone was not at all worried by the cruel abuse of Djukic's
serious state of health since all means are allowed in carrying out of
--- REFERENCES: ---
(1) Nasa Borba, 9
February 1996, according to FoNet report of 8 February 1996.
(2) Nasa Borba, 8
February 1996, according to a report by Mirko Klarin, correspondent in
(3) Nasa Borba, 28
February 1996, according to a report by Mirko Klarin, correspondent in
(4) Nasa Borba, 1
March 1996 according to a report by Mirko Klarin, correspondent in Brussels.
(5) In a conversation
with Tribunal President Antonio Cassese, one of the attorneys asked if
President Radovan Karadzic and General Ratko Mladic were those who they
had in mind. Cassese answered that they needed to go much higher as if
he were sure who was above Karadzic and Mladic
Slobodan Ivkovic, who looked after Djordje Djukic during his last days,
said that "inadequate treatment and therapy during his time in prison and
hospital brought on a sudden deterioration in the General's health" and
added that General Djukic received salted, greasy food which "third and
fourth year medical students know that patients operated on for cancer
of pancreas must not eat". Nasa Borba,
9 February 1996.
[ PART II: The Scandalous Treatment of Col. Aleksa Krsmanovic ]
[ The Hague "Tribunal" ]