HLC Opinion: ICTY Appeals Chamber Grants Šljivančanin’s Request for Review of Judgment on the Basis of Biased Witness’ Testimony

The Humanitarian Law Center, who represented the families of those persons executed at Ovčara before the War Crimes Chamber of the Belgrade District Court (hereinafter the War Crimes Chamber), believes that the ICTY Appeals Chamber gave undo trust  to a witness in the case.

HLC believes that this witness is part of a group of former JNA officers who use all means, including adjusting their testimony before the ICTY and the War Crimes Chamber, to try to protect themselves from possible criminal prosecution and who help accentuate the guilt of the accused so that they will not be charged in the case.

HLC firmly believes that the Appeals Chamber of the ICTY would not have acquitted Major Šljivančanin for aiding and abetting the killing of 194 prisoners of war after the fall of Vukovar in November 1991 had it  known in more detail the course of the trial conducted before the War Crimes Chamber  in Serbia in the Ovčara Case, in which witnesses Miodrag Panić and other former officers and soldiers of the JNA rendered their defense with the intention to conceal the truth – that they all knew that delivering prisoners to the Serb territorial defense soldiers actually meant that they consented to the reprisal and infliction of injuries upon these individuals. Additionally, if Šljivančanin’s deputy, Major Vukašinović, had stayed at Ovčara after the military police troops withdrew, as witness Dragan Vezmarović, the Military Police Unit Commander, claimed before the War Crimes Chamber, then the Appeals Chamber should have investigated these allegations to remove all doubts that the accused, Šljivančanin, personally or indirectly knew about the withdrawal of the JNA from Ovčara.

The following former JNA officers and soldiers, who were present at the time of the event, testified in proceedings against members of the Serb Territorial Defense Unit and the paramilitary group from Serbia known as Leva Supoderica, in trials conducted before the War Crimes Chamber in Serbia in 2004 and 2005, and again at the retrial of this case in 2008: the Chief of the JNA Guards Brigade Headquarters, Lieutenant Colonel Miodrag Panić; the JNA Security Department Chief, General Aleksandar Vasiljević; the Commander of the 80th Motorized Brigade, Lieutenant Colonel Milorad Vojinović; Major Šljivančanin’s Deputy, Major Ljubiša Vukašinović; the Administrative Clerk in the Guards Brigade Security Department, Captain Borče Karanfilov; the 80th Motorized Brigade Chief of Security, Captain Dragi Vukosavljević (whose superior was Major Šljivančanin); and the Commander of the 80th Motorized Brigade Military Police Unit, Captain Dragan Vezmarović. During the trials and retrial it was noted that each of the individuals listed above testified as if they were suspects in the same case of committing war crimes against prisoners of war and civilians. It was obvious that all of the individuals who testified and who are listed above were all very well informed about the judgment that had been rendered against Mrkšić, and, therefore, found it convenient to lay all the blame on him.

The individuals who testified had a completely different stance with regard to testifying in the trial of the accused, Šljivančanin. His trial before the ICTY was pending and not active, and due to this, all of the individuals persistently repeated that he was not present at Ovčara on November 20, 1991. During the main hearing in Šljivančanin’s trial held on December 17, 2004, Major Vukašinović denied that he was at Ovčara in the afternoon of November 20th with his superior, Major Šljivančanin, even though he had earlier described their joint presence at Ovčara at exactly this time in detail before the Investigative Judge of the War Crimes Chamber in Serbia. During the main hearing Vukašinović claimed that he was at Ovčara, but without Šljivančanin, and that he had left when the situation was under the control of the military police. As opposed to Vukašinović’s statement, the driver of the Guards Brigade, witness Mile Bakić, claimed that he had seen Major Šljivančanin at Ovčara in the afternoon hours of November 20th. Since the subject of the trial in Belgrade was to establish the accountability for the immediate perpetrators in the crime, the War Crimes Chamber had no obligation to determine whether or not Major Šljivančanin had actually visited Ovčara in the afternoon hours of November 20th. However, when drawing conclusions with regards to this issue, the ICTY Trial Chamber and the ICTY Appeals Chamber respectively had to inspect the witness allegations which were given before the War Crimes Chamber in Serbia, in which witnesses claimed that they had seen the accused Šljivančanin at Ovčara on that critical day.

The ICTY Appeals Chamber rendered a judgment diminishing the intensity and persuasiveness of the “beyond reasonable doubt” probative standard in this trial. By accepting the allegations of the witness Panić – that Mrkšić had failed to inform Šljivančanin about the withdrawal of the JNA troops from Ovčara – and using these allegations as key evidence for the acquittal part of their judgment in the Šljivančanin case, the Appeals Chamber has seriously jeopardized possible criminal proceedings before local courts against some of the former JNA officers who knew, just like Šljivančanin and Panić knew, that delivering prisoners to members of the Serb Territorial Defense would jeopardize these prisoners’ lives. By introducing lower probative standards in the revision of final judgments, such as in this Šljivančanin case, the Appeals Chamber has forgotten that the ICTY’s duty is to create legacy that will be an obstacle to all sorts of revisionism and repetition of crimes, including those with personal and command responsibility.

ICTY Press Release

In early 2010, Šljivančanin applied for a review of his murder conviction. At a pre-review hearing held in June 2010, a former JNA Officer, Miodrag Panić, testified that on the night of November 20, 1991, he was in a position to follow the conversation between Mrkšić and Šljivančanin and noted that Mrkšić did not inform Šljivančanin about the withdrawal of the JNA troops from the area.

In July 2010, the Appeals Chamber granted Šljivančanin’s application for review. The Chamber found that the new information provided by Panić constituted a “new fact” and, “accordingly, the Appeals Chamber vacates the additional conviction for murder.”

The Appeals Chamber found “somewhat speculative” the Prosecution’s submission that Panić is biased, and was not convinced that the relevant testimony that was provided was tainted by a self-interested desire to reduce the witness’ chances of being prosecuted for crimes that he may have personally committed.

The Appeals chamber found that Panić’s testimony “did little to portray the JNA, its units, Mrkšić, Šljivančanin, or himself in a favorable light,” and added that “had Panić been motivated by the desire to reduce his risk of criminal prosecution, as the Prosecution suggests […] he would presumably not have contacted the Šljivančanin Defense team and offered to testify in the review proceedings.”

The initial indictment against Šljivančanin was filed on November 7, 1995. Šljivančanin has been held in the ICTY Detention Unit since July 1, 2003. The time he has already spent in detention will be deducted from his overall sentence.