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Unjust from the start...
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 and Rashness
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, Richard Goldstone 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 of Proof
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. However, he 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 Sarajevo.
Special attention 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 unfair.
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.
If at 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 trial. Clearly 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.
And 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 international justice.
Continued in, "Part II: The Illegal Treatment of Col.
(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 Brussels.
(3) Nasa Borba, 28 February 1996, according to a report by Mirko Klarin, correspondent in Brussels
(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
(6) "Doctor 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.
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