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Rajic case : Trial Chamber establishes Croatia's direct involvement in the conflict in Bosnia.
Chamber Reconfirms Indictment; Issues International Warrant for Rajic's Arrest; and Rebukes the Federation of Bosnia and Herzegovina and Croatia for Failing to Arrest the Accused
Trial Chamber II, in its decision today in the Rajic Rule 61 Hearing, established Croatia's direct and indirect involvement in the war in Bosnia and Herzegovina. The Chamber found that Croatian troops took a direct part in the conflict and that, in addition, Croatia was a sponsor of the Bosnian Croat troops (the HVO).
Trial Chamber II ruled that there is "prima facie evidence that units of the Croatian Army were present in central Bosnia during the period from late 1992 to March 1994 and that these Croatian Army troops were sent to Bosnia by the Croatian Government and were engaged, alongside the Bosnian Croat forces, in fighting against the Bosnian Government".
Moreover, the Trial Chamber found that "the evidence submitted in this case establishes reasonable grounds for believing that the Bosnian Croats were agents of Croatia in clashes with the Bosnian Government in Central and Southern Bosnia from the autumn of 1992 to the spring of 1993. (. . .) In addition to the assistance of Croatian Army personnel the evidence indicates that Croatia provided financial support for the Bosnian Croats, particularly for the purchase of arms, and logistical support in the form of assistance in purchasing weapons and the provision of military equipment."
The Trial Chamber unanimously confirmed all counts of the indictment against Ivica Rajic and issued an international warrant for his arrest, which will be sent to all States and to the multinational Implementation Force (IFOR). All States will henceforth be legally obliged to arrest Rajic if he comes within their jurisdiction.
In addition, the Trial Chamber noted that the failure to arrest Rajic thus far is due to the refusal of the Federation of Bosnia and Herzegovina and the Republic of Croatia to cooperate with the Tribunal. It entrusted to the President of the Tribunal the responsibility of reporting this dereliction of duty to the United Nations Security Council.
The Trial Chamber's decision focused on three main areas: the establishment of its jurisdiction over the crimes with which Rajic is charged; whether there are reasonable grounds to believe that Rajic committed those crimes; and the failure of Croatia and the Federation of Bosnia and Herzegovina to arrest the accused.
Nature of the Conflict
Trial Chamber II confirmed the existence of an international armed conflict between the Republic of Bosnia and Herzegovina and the Republic of Croatia at the time the alleged crimes were committed. Support for such a finding is based (i) on the direct involvement of Croatia and (ii) an agency relationship between the Bosnian Croats and the Croatian Government. The Trial Chamber's finding in this regard gives it jurisdiction over some of the crimes with which Rajic is charged, namely, grave breaches of the Geneva Conventions, under Article 2 of the Tribunal's Statute. Such crimes can only be committed during international armed conflicts.
A further requirement for establishing the Trial Chamber's jurisdiction over grave breaches is that they were directed against persons protected under the Fourth Geneva Convention, that is, civilians who are non-nationals of the State or States under whose auspices the crimes were committed. In this regard, the Trial Chamber found that "the civilian residents of the village of Stupni Do werefor the purposes of the grave breaches provisions of Geneva Convention IVprotected persons vis-a-vis the Bosnian Croats because the latter were controlled by Croatia". Moreover, the Trial Chamber found that the village of Stupni Do was protected property under Geneva IV.
The Court also established its jurisdiction over Article 3, which deals with violations of the laws and customs of war.
In seeking to establish Rajic's personal involvement in the crimes charged, the court had first to establish that such crimes were committed. It found that "the evidence presented by the Prosecutor provides a reasonable basis for a finding that there was wanton destruction of the village of Stupni Do, wilful killing of its civilian residents, destruction of property, and a deliberate attack on the civilian population as a whole, all of which was unjustified by military necessity".
It went on to observe that "there is significant evidence to connect Ivica Rajic with the attack on Stupni Do. (. . .) There is proof that Ivica Rajic knew about the attack and actually ordered it. (. . .) It is also evident that HVO troops in the area recognised Ivica Rajic's authority".
The Failure to Arrest the Accused
Finally, the Trial noted the obligation on both the Federation of Bosnia and Herzegovina and Croatia to effect personal service of the indictment on Rajic and to execute the warrant for his arrest, which they have signally failed to do. It considered such failure "may be ascribed to the refusal of the Republic of the Federation of Bosnia and Herzegovina and Croatia to cooperate with the international Tribunal". It certified such failure for the purpose of notifying the Security Council.
International Criminal Tribunal for the former Yugoslavia
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