ICTY Trial Chamber decides Milutinovic et al

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Today a Trial Chamber of the ICTY delivered its judgment in Milutinovic et al, a case against a number of high-ranking political, military and police officials of the Federal Republic of Yugoslavia and Serbia regarding crimes committed by FRY/Serbian forces in Kosovo in 1998 and 1999. This is the first judgment delivered by the ICTY on Kosovo, since the Kosovo indictment against Slobodan Milosevic was never adjudicated on because of the death of the accused. Because of the scope of the case and the status of the accused, this is beyond any doubt one of the most important trial judgments to be delivered by the ICTY.

In its judgment, the Trial Chamber confirmed the existence of a broad campaign of violence against the Kosovo Albanian civilian population, causing the departure of at least 700.000 Albanians from Kosovo. The campaign was legally qualified as deportation, murder and persecution as crimes against humanity.

Milan Milutinovic was at the relevant time the President of Serbia. He was found by the Trial Chamber not to have had command over the FRY army (VJ), even though he was a member of the collective Supreme Defence Council of the FRY. In practice, it was FRY President Milosevic who exercised actual command authority over the VJ. As President of Serbia, Milutinovic had the potential power to exercise oversight over Serbian governmental institutions. However, the evidence shows that he had little de facto control.
Nikola Sainovic, the then deputy prime minister of Serbia, headed a body, the joint command, that coordinated the actions of the FRY army and Serbian police. In essence, he was Milosevic’s right-hand man on Kosovo, who had a great deal of influence on the events in Kosovo.

General Dragoljub Ojdanic was the chief of the general staff of the FRY army. He exercised de facto and de jure control over the VJ, but did not have such control over the MUP, the Serbian police. He had specific knowledge of the commission of crimes by VJ forces in Kosovo.

General Nebojsa Pavkovic was the commander of the VJ forces in Kosovo, having detailed knowledge and control over events in Kosovo. Far from preventing the commission of crimes in Kosovo, Pavkovic deliberately minimized and under-reported these crimes to his superiors. He actively participated in the joint command led by Sainovic.

General Vladimir Lazarevic was commander of the VJ Pristina corps. He was found to have been aware of the commission of crimes against Kosovo Albanians. Unlike Pavkovic, Lazarevic was found not to have been involved in high-level political decision-making in Belgrade.

General Sreten Lukic was one of the commanders of MUP/Serbian police forces in Kosovo. The Chamber was satisfied that Lukic had significant command and authority over MUP forces in Kosovo, and that he regularly participated in high-level meetings. He was therefore found to have been the de facto commander of MUP in Kosovo, and the bridge between the elaboration of policies in Belgrade and their implementation in Kosovo. However, the Chamber was not convinced that Lukic was involved in the cover-up of murders in Kosovo by the transportation of corpses in ice trucks to mass graves in Serbia proper.

The Chamber found that there was a joint criminal enterprise with the common purpose of expelling the ethnic Albanians from Kosovo. Murder and sexual assaults were however not part of this common purpose, but members of the JCE could be responsible for these crimes if they were reasonably foreseeable to them (JCE III).

Milutinovic was not found to have significantly contributed to the JCE. His lack of authority over the FRY/Serbian forces meant that his omission to act could not have been a significant contribution to the JCE. Sajnovic was found to have been one of the most crucial members of the JCE, and to have had the intent to forcibly expel the Albanian population of Kosovo. Murder was reasonably foreseeable to him, though by a majority the Chamber found that sexual assaults were not.

Ojdanic’s and Lazarevic’s responsibility was much more limited. Pavkovic, on the other hand, was found to have been one of the most important contributors to the JCE, and shared the intent of forcibly displacing the Albanian population, while other crimes were also reasonably foreseeable to him. The Chamber reached a similar conclusion in regard of Lukic.

Milutinovic was acquitted of all charges. Sajnovic, Pavkovic and Lukic were found guilty of all charges, by commission as members of a JCE, and were sentenced to 22 years of imprisonment each. Ojdanic and Lazarevic were found to be guilty on two counts of the indictment, by aiding and abetting, and not guilty for other counts, and were sentenced to 15 years of imprisonment.

The summary of the judgment is available here. The judgment itself (in four volumes!) is available here.

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Dapo Akande says

March 4, 2009

One of the things that strikes me about this case is the implications it has for NATO's justification for its intervention in Kosovo in 1999. NATO countries alleged that they took action, starting on March 24, to prevent a humanitarian catastrophe. However, the facts as alleged in the indictment and as found by trial chamber suggest that NATO action instead of averting humanitarian castrosphe was a catalyst for crimes against humanity. It is particularly striking that of the events included in the indictment, only ONE (the murder of 45 Kosova Albanians at Racak in January 99) preceded NATO action. All the others took place after that action began.

To judge whether NATO's actions were successful in achieving their aim, one would have to compare what actually happened in the days weeks, months, years after the intervention with what would have happened had the intervention not taken place. The ICTY judgment provides us to a formal record of the former (what actually happened) and its quite a bad picture. Of course, we don't know precisely what would have happened had the intervention not occured. However, given what we do know about what happened following the intervention, it seems difficult to see how NATO's actions can be considered successful!

Andreas Paulus says

March 5, 2009

Dapo, while I basically share your apparent view that NATO's Kosovo intervention was illegal under international law, your precise argument does not appear to be persuasive to me. First, it was not the task of the ICTY to comprehensively assess the situation in Kosovo before the intervention. Second, the responsibility for the ethnic cleansing did not lie with NATO, but with the Serb leadership. Causality is not equal to responsibility. As always, we should be very careful not to use jus in bello assessments for jus ad bellum conclusions.
Best, Andreas

Dapo Akande says

March 5, 2009


Actually I wasn't intending to say anything about whether NATO's intervention was legal. My point was rather that it is hard to say the intervention was successful in achieving its aims. This ICTY case demonstrates a number of things:
(i) although the Serbian authorities were doing some pretty bad things, there no evidence of acts rising to the level of crimes against humanity before NATO's intervention. The exception would be the atrocities in Racak but even those were ultimately left out of the judgment. You say that it was not the task of the ICTY to comprehensively assess the situation in Kosovo before the intervention. I disagree. The temporal jurisdiction of the tribunal extends well before 1999 so if there were crimes within the jurisdiction of the tribunal in the period before the intervention, Serb leaders should have (and would have) been indicted for them.

ii) crimes against humanity were committed AFTER NATO's intervention started. All the convictions in this case relate to crimes committed after the intervention (though the joint criminal enterprise started before).

So my point simply put is that NATO's intervention appears, at the very least, to have provided the opportunity for, and was the catalyst, for the very atrocities that NATO said it was acting to stop.

Andreas Paulus says

March 6, 2009

1) You cannot draw any negative inferences from a lack of criminal conviction to the effect that crimes not charged were not committed. A criminal trial is no truth commission, and should not become one (that was one of the mistakes in the Milosevic trial).
2) It is not important whether or not crimes were committed. It is important who comitted them. Otherwise, the ICC is responsible for the Sudanese expelling of aid agencies (it is another question whether it was wise to list information from agencies among the evidence).
Best, Andreas