Lukic Trial Ruling Provokes Outcry

By Simon Jennings in The Hague (TU No 562, 31-Jul-08)

The dismissal of a request by prosecutors to add sexual crimes to the indictment of two Bosnian Serbs in The Hague has angered international justice observers and victims of the Balkans wars.

On July 8, a day before the trial began at the Hague tribunal, the trial chamber rejected a prosecution submission seeking to add rape and sexual slavery to the charge sheets of cousins Milan Lukic and Sredoje Lukic.

The two former Serb paramilitaries are charged with some of the most horrific crimes committed in the former Yugoslavia, including the extermination, murder and cruel treatment of Bosniaks during a campaign to rid the east Bosnian town of Visegrad of non-Serb civilians in 1992.

The indictment against them alleges that they personally committed atrocities, such as two cases where 70 Bosniak civilians were barricaded inside houses which were then set on fire.

However, this trial will not look at allegations that the pair were responsible for numerous rapes of Bosniak women they held prisoner at Visegrad’s infamous Vilina Vlas spa hotel, the headquarters of Milan Lukic’s paramilitary group.

Kelly Askin, senior legal officer at Open Society Justice Initiative, an organisation that advocates legal reform for the protection of human rights, has described Milan Lukic as one “of the most notorious rapists in Bosnia during the war”.

“Some of the worst crimes of sexual slavery were committed in Visegrad by the Lukic cousins, holding women for days and weeks and repeatedly raping them,” Askin told IWPR.

Although the prosecution sought to add charges of rape, enslavement and torture that it says were carried out in Visegrad by both cousins, it only did so on June 12, less than a month before the trial started.

Judges dismissed the request, ruling that such an amendment to the indictment would prejudice the right of both the accused to have enough time to mount a defence.

RAPE ACCOUNTS A RECURRING THEME

The omission of the charges has led to criticism both of the tribunal judges and of the Office of the Prosecutor, OTP, not least because the substance of the allegations is well-known.

“Visegrad is famous for rape camps like Vilina Vlas and other private prisons,” Belma Zulcic of the Sarajevo-based Society for Threatened Peoples told IWPR.

Testimony at the trials of other Serb paramilitaries operating in Visegrad has contained detailed allegations of sexual crimes in the town.

During the trial of former Bosnian Serb paramilitary Mitar Vasiljevic in 2001, for instance, a protected witness told the trial chamber about the ordeal of a fellow Bosniak in Visegrad at the hands of Lukic’s group – a Serb paramilitary force known as the "White Eagles".

“She said that she had been raped, and they told her that not only she would be raped but that our turn would come, for all of us; that we would all be raped,” said the witness.

Vasiljevic, who was originally indicted along with the Lukic cousins, was sentenced to 20 years in prison for the murder and persecution of Bosniaks in Visegrad in 1992. Judges in his trial confirmed that he had a “close relationship” with Milan Lukic.

In a 2007 judgement passed at the Bosnian War Crimes Court in Sarajevo, Boban Simsic, another associate of Milan Lukic, was sentenced to 14 years in prison for crimes committed in Visegrad in 1992, including aiding and abetting rape.

Simsic “aided and abetted in coercing girls and young women into sexual intercourse in as much as…together with Milan Lukic, he singled out the [named] Bosniak civilians…and took them out of the school, whereupon they have been unaccounted for”, read the verdict.

Another conviction for crimes of rape committed in Visegrad was handed down by the Bosnian court to Zeljko Lelek in May this year. The former police officer was found guilty of committing rape and sexual violence as Serb police, military and paramilitary forces overran Visegrad in the spring and summer of 1992.

The indictment against Lelek alleged that he carried out these crimes alongside Milan Lukic.

QUESTIONS OVER WHY REQUEST CAME SO LATE

Milan Lukic’s name has featured so often in relation to other prosecutions involving rape in Visegrad, including those of subordinates like Simsic, that the omission of such charges from his own trial seems hard to fathom.

Some critics blame prosecutors from making their request so late in the day. The deadline for amending the indictment was agreed with prosecutors well in advance, and was November 15, 2007.

Even so, Askin argues that judges should have accepted the request in the circumstances.

“While blame rests with the OTP for requesting to amend so late, the chambers could have and should have accepted the request,” she said. “Their failure to do so doesn’t punish the prosecution, it punishes the victims.”

Under tribunal rules, she said, the trial chamber has discretion to permit amendments to indictments in the late stages of pre-trial proceedings, and even after a trial has already begun.

Such powers have been evoked at other international tribunals. At the International Criminal Tribunal for Rwanda in Tanzania, judges allowed charges of sexual violence to be added after the prosecution had finished presenting its case in a trial.

The accused, former mayor Jean-Paul Akayesu, was subsequently found guilty of committing genocide, rape and torture during the Rwandan genocide of 1994.

Despite this, other observers say the judges’ decision in the Lukic case was understandable given the last-minute nature of the prosecution’s submissions.

The judges noted that the prosecution had not shown that new evidence of acts of rape had come to light in the period since the November 15 deadline.

“The decision by the trial chamber didn’t strike me as being outrageous,” Professor William Schabas, director of the Irish Centre for Human Rights, told IWPR. “It may be outrageous to say that these charges aren’t part of the trial, but the fact that they were only proposed as an amendment at the last minute is the fault of the prosecutor, not the judges.”

SEXUAL CRIMES DIFFICULT TO PROSECUTE

The prosecution of sexual crimes has long created controversy in international justice. The need to link often very complicated evidence, as well to overcome the reluctance of victims to testify, means prosecutors trying such cases are often faced with a difficult task.

It was the Hague tribunal for the former Yugoslavia that first confirmed rape as a crime against humanity in 2001. But some observers say the number of tribunal cases in which rape has been a charge does not accurately reflect the high incidence of sexual crimes during the war.

“To the extent that there is a reasonable narrative of gender crimes that took place during the war, I don’t think it is accurately reflected in the case law of the tribunal,” said Schabas. “And that’s because the prosecutor has not brought that many cases dealing with these issues.”

According to the prosecution in the Lukic case, former chief prosecutor Carla Del Ponte left out rape charges out of this indictment in order to speed up the trial. The tribunal is under pressure from the United Nations Security Council to complete all first-instance cases by the end of 2009.

In its motion to add rape to the charges, the prosecution submitted that “[Del Ponte] had taken the position that fulfilling her obligations to conclude the work of the prosecutor in the time frame mandated by the UN Security Council did not permit an amendment to add sex crimes charges which she believed would add to the length of the trial”.

RAPE ALLEGATIONS WILL STILL GET A HEARING

Although charges of rape will not be brought, the Lukic cousins’ trial will nevertheless hear evidence that has a bearing on such allegations.

In order to counter the defence argument that the two men were not in Visegrad at times when the relevant crimes were committed, prosecutors told judges that “some of the witnesses that would be called to rebut the alibi evidence of the accused implicated them in very serious sex crimes”.

In his opening statement last month, prosecutor Dermot Groome told the trial chamber that these witnesses will say that the alibi is false because the men raped them in Visegrad on the days they claim they were out of town.

“At the very time Milan Lukic and Sredoje Lukic claim that they were not in Visegrad, [witness VG 63] was being raped [by Milan Lukic] in the gymnasium in the primary school,” Groome told the trial chamber.

The presentation of such evidence could prompt judges to amend the charges against the Lukic cousins.

On hearing evidence in court, judges are entitled to ask for such an amendment, with the agreement of the prosecution, and then suspend proceedings in order to allow the accused to prepare a defence.

If, however, judges do not seek such an amendment, there remains the possibility that the Lukic cousins could be tried for rape at a later stage. Although the Hague tribunal is scheduled to close in two years’ time, regional courts such as those in Sarajevo and Belgrade are competent to take up such a case.

“The fact remains that these horrible crimes can still be prosecuted,” said Schabas. “They can be prosecuted somewhere else. It’s not as if they are being acquitted forever.”

Simon Jennings is an IWPR reporter in The Hague.