Frenki and Johnny were War Criminals… Just About, or The Last Judgement

By James Gow

Almost unnoticed, the last international trial for war crimes in the former Yugoslavia was completed on 30 June 2021. The chief of the Serbian security service and his deputy were found guilty on five charges relating to just a single crime, while acquitting them of all other crimes charged. Bosanski Šamac was the one place the Trial Chamber could agree beyond reasonable doubt that the two were criminally responsible, acquitting them of all crimes charged in Croatia and all others charged in Bosnia and Hercegovina. Jovica (Jovan) Stanišić and his deputy Frenki Simatović were sentenced to 12 years imprisonment — at face value, a seemingly long sentence for aiding and abetting just one crime. It was a most curious and mixed-up judgement, neither one thing, nor the other — somewhat typical of the mixed legacy of international war crimes prosecutions relating to the Yugoslav lands. As with that past record, it will offer little in terms of one of the original strategic purposes of war crimes prosecutions — to foster peace and security, and reconciliation.

The verdict came 30 years and three days after the Yugoslav war started. That was a war so hallmarked by atrocities that it prompted the creation of a specialised international criminal tribunal — the ICTY (International Criminal Tribunal for the Former Yugoslavia). The ICTY in turn spurred the rapid development and expansion of international criminal law, including the emergence of the permanent International Criminal Court and spawned the body that delivered this last verdict, the International Residual Mechanism of the Criminal Tribunals (IRMCT), also known as ‘the MICT.’  The MICT is the successor court to and clearing house for outstanding business when the ICTY, and its sister tribunal, the International Criminal Tribunal for Rwanda, closed their doors. And, as with the role of the Yugoslavia Tribunal overall, the judgement has left things not quite completely wanting and not quite satisfactory, a success in many ways, but not successful enough, offering some level of justice, yet leaving justice wanting.

The outcome is significant because it was the last trial verdict in all the international cases concerning the Yugoslav lands— although there will surely be an appeal process, so it is not quite the very last verdict of all. And for the first time, an individual just one step away from Serbian leader Slobodan Milošević was convicted — although curiously the summary judgement made no mention of Milošević or various other significant individuals. Even if the Trial Chamber was not satisfied beyond its reasonable doubt test that the two senior intelligence men were part of a Joint Criminal Enterprise — a conspiracy that none the less the verdict seemed to confirm had happened, it is hard for anyone to separate Milošević’s responsibility from that of the individual closest to him, aside from his wife. And yet that ‘bit of this, bit of that’ conclusion on the Joint Criminal Enterprise adds to the sense of a mixed outcome — there was a common criminal purpose, Stanišić and Simatović were at the head of one of its main instruments, yet the court could not find the two of them criminally liable.

Stanišić and Simatović were puppet masters, the orchestrators of most of the paramilitary violence that occurred across the Western parts of the former Yugoslavia in Croatia and in Bosnia and Hercegovina. Without doubt, the judgement and the evidence supporting it show the involvement and the responsibility of the Belgrade leadership from Slobodan Milošević down, including his main security and intelligence deputy, Stanišić. It shows that they carried out and were responsible for these events. But, in terms of direct responsibility for crimes, the verdict was quite limited, and the judges could only confirm direct responsibility with regard to the commission of crimes in one location, Bosanski Šamac. That was one of several places in which the judgement described events were and crimes confirmed crimes to have been committed. But, Bosanski Šamac was the only one in which the intelligence men were held to be criminally responsible. In the other places, the judges could not say beyond reasonable doubt that they were guilty. Of course, the judges also pointed out that both of them, but especially Stanišić, had such knowledge as head of Belgrade intelligence that he knew everything that was going on in the region. He had ‘a comprehensive knowledge of the events on the ground.’ That means that he certainly knew that crimes had been committed. So, in that sense, he was complicit, in not taking action to stop those crimes. Quite oddly, however, despite the intelligence chief’s complete awareness and his continuing to run and fuel those committing crimes, the judges found space for what they regarded as ‘reasonable’ doubt concerning his criminal liability.

Something significant in all of this is that the line through Simatović to Stanišić goes to Milošević. In a sense, one of the reasons the prosecution wanted to push this case is that the Joint Criminal Enterprise, the conspiracy to commit these crimes, goes back to Milošević, who died before his own trial was finished. In a sense, what this shows is something that some of us observed at the time: that Milošević was probably going to be acquitted on some of the charges, had the trial been completed. It proves that connection right to the top to Milošević. It shows responsibility. At the same time, it also confirms that these paramilitary groups were created so that there would be ‘plausible deniability’ for paramilitary actions. In the end, the prosecution was not able to prove beyond reasonable doubt that these men were responsible for all the crimes that occurred. That is, just as intended, the judges found denial to be plausible.

It is hard not to recall Bradley F. Smith’s conclusions in his great Judgement at Nuremberg, when seeking to understand how the judges could reach the verdicts they did in the Stanišić and Simatović case. He observed that Judges ‘cannot transcend the views of their own time and society, nor do they abandon the prejudices that they use in their daily lives at home.’ Their attitudes will affect ‘sympathetic treatment.’ Judges, at once, show great conscience in seeking to adhere to the law in their interpretations, in acts of rational discrimination that most others could not perform, and, yet, they cannot ‘rise above the station’ of their own background. So, judges are both peculiar and very ordinary. Because of this, they can reach findings that other observers might view as contradictory. On the one hand, Presiding Judge Burton Hall and his colleagues (Judges Joseph E. Chiondo Masanche and Seon Ki Park) could conclude that the crimes had been committed, including that the evidence confirmed beyond reasonable doubt that there had been a common criminal purpose, that the accused were without doubt involved in planning and running and making salient contributions to those who committed crimes, and that they knew pretty much everything that was happening, including unavoidable awareness of crimes and accusations of crimes, and seemingly did not change their planning, running and contributing in any way in light of that awareness of criminality. On the other hand, the judges managed to find space for doubt, except in the instance of Bosanski Šamac, to have doubt that they deemed to be reasonable that Serbian security chiefs were actually part of the common criminal purpose, even though they were running so much of the apparatus involved in those crimes, and also that had superior responsibility, despite their awareness of criminal activity and their failure to act differently in light of it. It would be possible to have the impression that they were going out of their way to look for anything that they could deem to be doubt — and only in the instance of Bosanski Šamac could they find no way to infer any other judgement that guilty, because some of the SBD’s own men were directly involved in murders and the two men were cognisant of that.

It is likely that the guilty part of the verdict will hold, whether on appeal from the prosecution, or from the defence —though it would be no surprise to see the sentence reduced (or, bizarrely, in the way of these things, increased, when the Appeals Chamber deals with the matter, such are the idiosyncrasies of international criminal justice). The Prosecutor will be reviewing and deciding whether or not to pursue the case again on all the events on which the judges could not say they were satisfied beyond reasonable doubt. It is hard to imagine that it will not do so. The defence may well clearly want to challenge the verdict simply because if they can find any way to challenge it, they will seek an acquittal, or a reduction in sentence. Certainly, it is hard to imagine that the prima facie harsh 12-year sentence in relation to aiding and abetting just one crime will not be promptly appealled by Stanišić’s counsel, the highly able Wayne Jordash.

The Trial Chamber, in a sense, corrected the decision of the initial Trial Chamber. The two men were originally tried a decade earlier and acquitted in 2013. The Appeals Chamber then said, in 2015, that the Trial Chamber had erred and ordered a re-trial. If we look to the initial trial, the acquittal there was found to be inadequate by the Appeals Chamber on two grounds. One of those grounds was that although the Trial Chamber certainly was not satisfied that the accused were involved in a Joint Criminal Enterprise, that Trial Chamber was found not to have established the evidence that there was a Joint Criminal Enterprise, that is, that the crimes were committed. The second reason was that of ‘specific direction.’ Tribunal jurisprudence had long established that this level of instruction was not required. So, because of those two errors in law, there had to be a retrial.

The retrial satisfied those issues. The judgement made clear that it is not about giving a specific instruction, or direction, directly linked to a purpose, but that Stanišić and Simatović knew everything about what was going on and did very little about it. So, judges rendered a verdict regarding the totality of the situation, rather than merely specific direction. And on the grounds of establishing that the crimes had actually been committed, this Trial Chamber in the Summary Judgement went out of its way to establish in some detail in each of the parts of the accusation that the crimes were committed and that there was evidence of Joint Criminal Enterprise — although they curiously chose to label this a ‘common’ criminal enterprise — and then to assess the involvement of these two in that joint criminal enterprise. And this is where only small portions of the accusations satisfied the judges that the two men were criminally responsible beyond reasonable doubt.

This verdict could offer an opportunity to Serbia to accept and acknowledge its role in the events and crimes throughout the armed conflict in Croatia and Bosnia and Hercegovina. Many of us should hope that it offers Serbia the chance to develop and to encourage its awareness of events in the 1990s and the responsibility of senior leaders in Belgrade for those events. At the same time as expressing that hope, I would not be confident that this will happen very quickly. Not only is the current mood of politics in Serbia somewhat in a different direction, but the impetus to address these issues receded as the prospect of EU accession somewhat fell away, for the time being.

In addition, the verdict gives something to those with perspectives on both sides. Those who want to see criminal responsibility can point to the guilty verdict. Those who want to can say that these men were simply doing their jobs as officials of the state and were acting in the interests, as defined at the time, of the Serbian leadership — the acquittals show that is what they did. The evidence confirmed that they played this role. But, the judges found insufficient evidence, or no evidence, in most instances, of direct involvement in the commission of crimes — that is, not actually murdering people, say, but aiding a chain leading to those events. Even where specific members of their forces were judged to have been involved in crimes, the Trial Chamber decided that those crimes cannot be attributed to Stanišić or Simatović.

Sadly, the verdict will do little to contribute to reconciliation across the region. That is because the judgement is so mixed, a bit ‘here’ and bit ‘there.’ It is not an absolutely clear cut outcome. And even in cases where the outcome has been so clear cut, people have still disputed and not accepted records that were completely established. In a case like this, where they can point to Bosanski Šamac and say ‘yes, there were some crimes committed there, but look at all the rest of it… ’. They can make claims and dispute so much about events so much more easily. The fact that the judges said they could not be satisfied of guilt beyond the reasonable doubt test does not mean that there were not crimes — they found that there were — or that there was no responsibility on the part of the accused, ultimately. But, it leaves the issues, in some way, open to dispute.And where things are open to dispute, as in this mixed verdict, there is little prospect of reconciliation. This, sadly, appears to be a recurring problem in international criminal justice. It offers no chance for the kind of exchange and recognition of experiences necessary to bringing those on opposing sides together.