Franc Kos

09.05.2016 ( Last modified: 07.06.2016 )
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facts

Franc Kos was born on 16 July 1966 in Celje, Slovenia. He is a former commander of the 1st Bijeljina Platoon of the 10th Sabotage Detachment commando of the Republika Srpska Army. The commando was established in October 1994 to penetrate deep into Bosnian territory and to lay explosive charges under tanks or other military material during the war in Bosnia and Herzegovina. The unit participated in Srebrenica genocide in 1995.

After the war, Kos lived freely in a Serb-held town of Bijeljina with a fake ID issued by local Serb authorities, under the name “Branimir Miric”.

Kos and three other former members of the 10th commando allegedly participated in the systematic killing of at least 800 unarmed Bosniak men and boys following the fall of the Srebrenica protected zone in July 1995. Bosnian Muslim civilians were captured and then brought to a farm Branjevo near Zvornik, where they were systematically executed. It is alleged that the defendants, together with other members of the 10th Sabotage Detachment, executed prisoners who were blindfolded and had their hands tied. Additionally, Kos searched for survivors with signs of life and then shot them in the head.

An Interpol Red Notice was filed against Kos for his role in the Srebrenica genocide and execution of Bosnian Muslim captives. In April 2010 Kos was arrested by Croatian authorities at the border crossing with neighbouring Serbia near Osijek. He was extradited to Bosnia and Herzegovina in June 2010. An indictement was issued in August 2010 against Kos and three other former members of the 10th commando.

 

legal procedure

An indictment was issued in August 2010 against Kos and three other former members of the 10th commando. The indictment was confirmed by the Section I for War Crimes of the Court of Bosnia and Herzegovina on 12 August 2010. According to the indictment, Kos participated in the killing of Bosniak men and inflicted on them severe physical and mental injuries, all with the aim of destroying, in whole or in part, the national, ethnic and religious group of Bosniaks.

At a plea hearing, on 8 September 2010, Kos pleaded not guilty to the criminal offense of genocide. The trial started on 14 December 2010.

On 15 June 2012 Kos was sentenced to 40 years in prison for his role in the Srebrenica massacre. This first instance verdict read that Kos, together with three other convicted former members of the 10th Sabotage Unit with the Headquarters of the Army of Republika Srpska on 16 July 1995 executed a group of around 800 men at the Branjevo farm, near the town of Zvornik. The Trial Chamber stated in sentencing that the accused had carried out the execution in “cold blood”.

The judges also found that based on presented evidence, the accused committed crimes against humanity. They could not be found guilty of assisting genocide because the prosecution did not prove that they had genocidal intent.

Prosecution and defence filed their appeals in February 2013. The Prosecution argued that the Trial Chamber wrongly determined that defendants did not have a genocidal intent and that they had received the order to shoot prisoners. On the other hand, the defence of Kos requested the Chamber to reclassify the crime for which he was sentenced into war crimes against the civilian population or war crimes against prisoners of war, and to reduce the sentence.

On 26 April 2013 the Appellate Chamber of Bosnia and Herzegovina Court reduced the sentence against Kos to 35 years imprisonment for crimes against humanity committed in Srebrenica in 1995. The Court dismissed as unfounded the appeal filed by the Prosecution in regards to genocide.

 

context

INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER YUGOSLAVIA

The conflict in former Yugoslavia from 1991 to 1999, shocked international public opinion because of the abuses revealed by the press, which were committed by all parties to the conflict (massacres, forced displacements of population, concentration camps …). The conflict is considered to consist of several separate conflicts, which were ethnic in nature – the war in Slovenia (1991), the war in Croatia (1991-1995), the war in Bosnia and Herzegovina (1992-1995) and the war Kosovo (1998-1999), which also involved the NATO bombing of Yugoslavia in 1999.

The conflicts accompanied the break-up of Yugoslavia, when the constituent republics declared their independence. The wars mostly ended after peace accords were signed, and new republics were given full international recognition of their statehood.

In order to restore peace and security in the region, the Security Council acting under Chapter VII of UN Charter, created on 25 May 1993, by Resolution 827, the International Criminal Tribunal for the Former Yugoslavia (ICTY). It was determined that pursuant to numerous reports of, among other, mass killings, systematic detention, rapes, practice of “ethnic cleansing”, transfers, etc., these acts constituted a threat to international peace and security, necessitating a reaction by Security Council. As the Tribunal was created during the ongoing conflict, the Security Council expressed its hopes that ICTY would contribute to halting violations in the region. Its headquarters are in The Hague, Netherlands.

The Tribunal has jurisdiction to prosecute persons responsible for serious violations of international humanitarian law – grave breaches of Geneva Conventions, violations of laws and customs of war, genocide and crimes against humanity – allegedly committed in the territory of the former Yugoslavia after 1 January 1991, (no end date was specified). Since its creation, the ICTY has indicted more than 160 people, including heads of states and government members.

The Tribunal’s mandate was originally meant to expire on 31 December 2009, but the Security Council voted unanimously to extend the mandate of the Court with several judges, including permanent judges, so that the ongoing trials can be completed. According to the “ICTY Completion Strategy Report” from 18 May 2011, all trials were supposed to be completed by the end of 2012, and all the appeals by the end of 2015. The exceptions were cases of Radovan Karadzic, Ratko Mladic and Goran Hadzic.

The Security Council adopted resolution 1966 on 22 December 2010, establishing International Residual Mechanism for Criminal Tribunals. The ICTY residual mechanism began functioning on 1 July 2013.

The Tribunal was called to finish its work by the end of 2014, in order to prepare closure and transfer of cases to the Residual Mechanism. The Mechanism is a small and temporary body, which plays important role in ensuring that the completion strategy of ICTY does not result in impunity of fugitives and in injustice. It is conducting all outstanding first instance trials, including those of Karadzic, Mladic and Hadzic. It is also to complete all appeals proceedings that were filed before 1 July 2013.

The ICTY is not the only court with jurisdiction to try alleged perpetrators of serious violations of international humanitarian law committed in the former Yugoslavia. The Tribunal has concurrent jurisdiction with national courts. However, it takes precedence over them and may require the referral from the national court at any stage of the proceedings (Article 9 of the ICTY Statute). The Statute does not elaborate how the primacy is to be exercised, but it was asserted by the judges of the ICTY in the Rules of Procedure and Evidence. The primacy can be asserted in three cases: when an international crime is intentionally or unwittingly prosecuted before national court as an “ordinary criminal offence”, when a national court is unreliable, or when the case is closely related, or may be relevant to other cases being tried by the ICTY.

NATIONAL JURISDICTIONS

National courts also have jurisdiction to prosecute alleged perpetrators of serious violations of international humanitarian law.

In the former Yugoslavia, the trials of those accused of war crimes have been opened by the courts of Bosnia and Herzegovina. The Section for War Crimes was set up in the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina. The Special Chamber for War Crimes has jurisdiction to prosecute the most serious alleged war crimes committed in Bosnia, and was created to relieve the ICTY, so that it can focus on criminals of high rank. Its establishment was also considered necessary for effective war crimes prosecution in Bosnia. The opening of the Special Chamber was on 9 March 2005.

Additionally, pursuant to UN Security Council Resolution 1244 from 10 June 1999, UN administration was created in Kosovo. Consequently, in 2000 “Regulation 64” Panels in Courts of Kosovo were created, which are mixed chambers at the local courts. They have two international judges and one national. These panels work in collaboration with the ICTY. They have jurisdiction over those responsible for genocide, war crimes and crimes against humanity. They focus on prosecuting lower ranking offenders.

In Serbia, the Office of the War Crimes Prosecutor was established on 1 July 2003. It was created to detect and prosecute perpetrators of criminal offenses against humanity and international law, and offences recognised by the ICTY Statute, regardless of the nationality, citizenship, race or religion of the perpetrator and the victim, as long as the acts were committed on the territory of former Yugoslavia after 1 January 1991. Its seat is in Belgrade, Serbia.

Other relevant national jurisdictions are under the principle of universal jurisdiction, which allows states with a specific legal basis, to try perpetrators of serious crimes regardless of their nationality or that of the victims and regardless of where the crime was committed.

 

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