By adopting the decision to dismiss the request of the Supreme State Prosecutor’s Office for the protection of legality in the so-called Deportation of Refugees from Bosnia and Herzegovina case, the Supreme Court joined the High Court and Appellate Court of Montenegro in their erroneous interpretation of international humanitarian law and domestic criminal law. The Supreme Court judgment is contrary not only to the specific norms of international humanitarian law the Court referred to, but also to the purpose of this kind of law – to protect civilian victims of armed conflicts, including refugees. This judgment, in our opinion, represents a defeat of the rule of law in Montenegro. It ridicules innocent victims of this war crime, which has been trivialised by the Montenegrin courts in the name of the state.

The Montenegrin judiciary has thereby missed the last chance to show willingness to apply international law in the way that it has been applied by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the judiciary in the region. The wives and mothers of the deceased victims of the crime against Bosnian refugees in Montenegro filed a constitutional appeal with the Constitutional Court of Montenegro and initiated proceedings before the European Court of Human Rights, complaining about the Montenegrin authorities’ ineffective investigation and prosecution of this war crime. HRA will continue to assist them in their struggle for justice and in the public interest of the citizens of Montenegro, the courts of which have ruled on this case in a way that does not do it credit. On the contrary.

Below is a summary legal analysis of the main points set forth by the Supreme Court in its judgment, adapted to be as comprehensive as possible for the general public. The judgment will be addressed in greater detail and with reference to additional sources of law in the report on the prosecution of war crimes in Montenegro, which HRA will soon publish in hard and electronic copies in both Montenegrin and English.

Tea Gorjanc-Prelević, Executive Director of NGO Human Rights Action

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Summary analysis of the Chamber of the Supreme Court judgment Kzz. 4/15:

Pages 7-8 – RETURN OF CIVILIANS TO “HOME STATE”

The Supreme Court has reached a groundless conclusion that the act from the indictment, attributed to the defendants, namely the act of returning civilian population to Bosnia and Herzegovina, is not prohibited by international and domestic legal instruments applied in this case by lower instance courts – the Criminal Code of the Federal Republic of Yugoslavia, Common Article 3 of the Geneva Conventions (1949), and Article 17 of Additional Protocol II (1977) to the Geneva Conventions. According to the Supreme Court, acts prohibited by the relevant rules of international law – deportation and forced displacement of the civilian population – do not encompass the prohibition of forced return of civilian population “to their home state” (a term from the Supreme Court’s judgment): “deportation” is forced movement of civilians beyond the national borders, and “displacement” (under Article 17 of Additional Protocol II) represents the displacement of civilians within the current borders and/or forced departure from the territory in which they live. Contrary to this legally erroneous position of the court, however, compelling civilians to leave a certain territory is also forbidden when the civilian population is being forcibly returned to their “home state”; also, Article 17 of the Additional Protocol is violated in this case by virtue of the victims having been forced to leave their own territory.

For the existence of the crime of deportation (a term that applies to armed conflicts of an international character) or displacement (a term that applies to armed conflicts not of an international character), it is sufficient that persons are forcibly moved across de jure or de facto borders between certain countries, regardless of the direction of forced movement or countries in question. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 2006 in the Stakić judgment stated that “the actus reus of deportation is the forced displacement of persons… from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border” (paragraph 278). Therefore, forced deportation/displacement does not require a proof that crossing of a national border from the direction of “home state” in the direction of another state had occurred. Instead, it is sufficient to prove that there has been a crossing of the state border. Even if the Supreme Court’s starting point was the fact that the most common situation in life, and in practice of war crimes trials, is one in which forced movement of the civilians across borders entails movement beyond the boundaries of a state where the civilians had lived for years or decades, this does not imply that international criminal law prohibits only the deportation from “home” state. Restrictive interpretation of the Supreme Court, apart from ignoring the ICTY case-law, leads to the absurd conclusion that, in times of armed conflict, state or non-state structures can expel refugees from a country of refuge back in the area of conflict and go unpunished, thereby condemning them to inevitable demise, as it happened in this particular case.

In addition, the Supreme Court and previously the Appellate Court arbitrarily read into Article 17 of Additional Protocol II words and content that do not exist in that provision. While Article 17 stipulates that “civilians shall not be compelled to leave their own territory”, the Appellate Court and now the Supreme Court presented Article 17 so as to read “civilians shall not be compelled to leave their own territory where they live”. Such arbitrary amendment, i.e. addition of words “where they live”, has enabled the Appellate Court and the Supreme Court to make an argument that Article 17 does not apply to refugees forcibly returned to Bosnia and Herzegovina, because these refugees did not live on the territory of Montenegro and thus Article 17 of Additional Protocol allegedly did not protect them. In fact, contrary to such conclusion of the Appellate Court and now the Supreme Court, according to the authoritative sources of international law “their own territory” as set forth in Article 17 of Additional Protocol – a territory that civilians cannot be compelled to leave – is a territory where the civilians are lawfully present, and not the territory where they “live” in the sense of having long-term, willingly chosen residence, performing work activities during a long period, etc. In the ICTY judgments, including the aforementioned Stakić judgment from 2006, the crime of forced displacement of civilians from the territory of one state to the territory of another exists if the civilians were forced to leave “the area where they are lawfully present”. The civilians in the so-called Deportation case were lawfully present in the territory of Montenegro, and forcing them to leave the territory of Montenegro was in violation of Article 17 of Additional Protocol II.

Page 9 – CAPACITY OF A PERPETRATOR

The Supreme Court has joined the High Court and the Appellate Court in advancing an arbitrary legal standard whereby “the perpetrator of war crimes against civilians can only be a member of the military, political and administrative side to the conflict or any other person in their service, regardless of whether he was a member of the armed forces or any unarmed organization, who aligns with a party to the conflict by his activity.”

As confirmed by the European Commission’s expert Maurizio Salustro in the analysis of the prosecution of war crimes in Montenegro of December 2014, such legal position, unprecedented in comparative law, is “clearly wrong”. This position does not have any basis in the law (the Penal Code), according to which the said offense may be committed by anyone “who … orders … or carries out”, i.e. without restriction to the members of armed forces or to acting in the service of a party to the conflict.

In international and comparative law, for the existence of war crimes (instead of an ordinary crime) it is sufficient that there is a connection (nexus) to the armed conflict. According to the ICTY case-law, an act constitutes a war crime if “the existence of an armed conflict significantly affected the ability of the perpetrator to commit the crime, his decision to commit it, the manner of execution or the purpose for which it was carried out” (judgment of the ICTY Appeals Chamber in case Kunarac and others, 12 June 2002, paragraph 58). In the case of the so-called Deportation, both the ability and the decision of the accused to take prohibited actions had been related to the armed conflict in Bosnia and Herzegovina, and the aim – the exchange for the captured Serbian fighters in Bosnia and Herzegovina – was also directly linked to the conflict.

Page 9 – SUPERIOR ORDERS

The Supreme Court then, presumably to bolster its legally irrelevant position that the defendants had not aligned with the Bosnian Serb forces as a party to the conflict, added that there is no such alignment when the accused believe they are acting upon the orders of a superior. Following this line of thought, the Supreme Court then made a reference to Article 33(1)(a) of the Rome Statute of the International Criminal Court, according to which, allegedly, a person who commits the offense shall be relieved of criminal liability if he had a legal obligation to act upon the order of his superior in question. This, according to the Supreme Court, means that the accused were not guilty, because they surrendered the refugees upon orders of their superiors to Police authorities and Correctional Institution Foča and Srebrenica Police Department.

There is no logic in the Supreme Court’s position that the motive for helping the military efforts of a party to the conflict defines whether that person is aligned with that party. For an assessment of alignment it is only relevant whether the person’s conduct actually (objectively) aids that party and whether this person is aware of it, not whether the person is helping a party to the conflict for ideological conviction, in order to carry out orders (in a situation where there is no coercion) or for some other reason.

Especially unsustainable is the reference by the Supreme Court to Article 33(1)(a) of the Rome Statute.

Firstly, the Supreme Court quoted only the first of the three requirements, which – all three – must be met under Article 33 of the Rome Statute for the liability of the person to be excluded. In addition to requirement (a) that the person was under a legal obligation to obey the order in question, additional requirements must be met to exclude the responsibility of an individual: (b) that the person did not know that the order was unlawful, and (c) that the order was not manifestly unlawful. The Supreme Court glossed over the requirements under (b) and (c) and thus avoided the only possible conclusions, unfavourable to the defendants.

Specifically, the order to return refugees to the zone of conflict was prohibited under international refugee law, and on the basis of international humanitarian law it was forbidden to hand over Muslim refugees to Bosnian Serb army as hostages to be used for exchange. It is manifest that such orders are unlawful (item (c), in Article 33, para 1 of the Rome Statute). Even if the unlawfulness was not obvious to everyone, it is certain that the defendants, as persons in positions in the Security Service and the Police with the corresponding intellectual and educational capacity, knew of the unlawfulness (item (b), in Article 33, para 1).

An additional reason for the Supreme Court’s reference to the provisions of the Rome Statute being misplaced is that the offense in the indictment was committed in 1992, while the Rome Statute entered into force ten years later. Also, according to the almost undivided standpoint of international experts, with regard to superior orders the Rome Statute departed from customary international law, insofar as it included in the manifestly unlawful orders only orders to commit genocide or crimes against humanity and – as opposed to the customary law – not an order to commit war crimes as well. Instead of referring to the customary law relevant to the interpretation of superior’s orders for an offense committed in 1992, the Supreme Court made a reference to the Rome Statute, which is irrelevant to this interpretation.