Trial against Rahim Ademi and Mirko Norac accused for the criminal offence of a war crime against civilian population and a war crime against war prisoners committed in the Medak Pocket in 1993. This trial was conducted before the War Crimes Council of the Zagreb County Court. It started on 18 June 2007. A verdict before appeal (the non-final conviction) was announced on 30 May 2008.
The Supreme Court’s public session was held on 16, 17 and 18 November 2009.
- Medak Pocket original version of the Indictment is available in the Croatian language only
The indictment charges the 1st defendant Rahim Ademi and the 2nd defendant Mirko Norac on the basis of command responsibility that they, in their capacity as Croatian highly ranked military officers, during and after the Pocket 93 military operation that was conducted in the vicinity of Gospić in the area known as the Medak Pocket, south-east from Gospić, in the period from 9 to 17 September 1993, during an international armed conflict on the territory of the Republic of Croatia between regular Croatian Army armed forces and the Croatian Ministry of Interior’s Special Police formations – on one side, and armed military and paramilitary formations of rebelled Serbs aided by the forces and logistics of the former Yugoslav National Army and volunteers from Serbia and Monte Negro – on the other side, this conflict being initiated by the aggression of the latter, acting contrary to the provisions of Articles 3, 16, 27, 32 and 53 of the Geneva Convention on the Protection of Civilian Persons in Time of War of 12 August 1949, Article 3, paragraph 1, item (a) and (c) of the Geneva Convention on Treatment of Prisoners of War of 12 August 1949, and also acting contrary to the provisions of Article 51, paragraph 2 and paragraph 5b, Article 54, paragraph 2, article 57, paragraph 1 and 2, indent III, and Articles 86 and 87 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol 1 adopted on 8 June 1997), committed a war crime against civilians pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZRH), and a war crime against war prisoners pursuant to Article 122 of the OKZRH.
Forces of the Croatian Army (hereinafter: the HV) and Special formations of the Croatian Ministry of Interior (hereinafter: the MUP) carried out the Pocket 93 operation for military-strategic and security reasons with the purpose to free one part of the occupied territory of the Republic of Croatia in a wider area of Divoselo, Čitluk and Počitelj – areas comprising the Medak Pocket – in order to stop a continuous terrorising caused by occupation forces firing at the Gospić population from heavy artillery.
The defendants are charged by the following indictment charges: (1) for having commanding responsibility for excessive and random artillery, missile and mortar attacks which led to a killing of civilians and destruction of their property; (2) despite their knowledge about it, they did not take any action to prevent, curtail and punish the killing, cruel abuse and massacre of Serb civilians, the setting on fire and destruction of houses, barns and outbuildings, and the plundering and destroying of the civilians property performed by subordinate units under the defendants’ supervision following the execution of the Pocket 93 operation, during a cease-fire and after the signing of the agreement on withdrawal of the Croatian forces from the areas captured during the operation; (3) although aware, they did not take any action to prevent, curtail and punish the killing and torturing of Serb war prisoners, and thus agreed that subordinate units continue with such acts and therefore they agreed to the consequences.
Although the defendants were aware that Serb civilian population also lived in the villages and hamlets on the front line of artillery attacks (Čitluk, Divoselo, Jovići) and that there was a great possibility that such attacks would cause unnecessary killing, wounding and running away of the mentioned civilians in directions under attack, destruction of their houses, barns and outbuildings and other property, and although they had power and authority to prevent such artillery attack, they failed to do it; instead they issued orders and, by the realisation of such orders, they agreed to such consequences. Five civilians were killed and seven houses were destroyed because of such excessive and random artillery, missile and mortar attacks.
These reports are available in the Croatian language only.
The trial was conducted before the War Crimes Council of the Zagreb County Court comprising judge Marin Mrčela as the Council President and judges Siniša Pleše and Jasna Pavičić as the Council members. Judge Zdenko Posavec was appointed as an alternate judge.
Defence: lawyers Čedo Prodanović and Jadranka Sloković Glumac (representing the defendant Ademi), and lawyers Željko Olujić and Vlatko Nuić (representing the defendant Norac)
Attorneys-at-fact (of the injured parties): lawyers Dragan Jovanić and Renata Dozet Daska.
Victims: killed civilians: Pera Krajnović, Bora Vujnović, Marko Potkonjak, Janko Potkonjak, Nikola Vujnović, Bosiljka Bjegović, Ankica Vujnović, Ljubica Kričković-Živčić, Sara Kričković, Đuro Krajnović, Mile Sava Rajčević, Momčilo Vujnović, Ljiljana Jelača, Milan Matić, Nikola Jerković, Anđa Jović, Nedeljka Krajnović, Stana Krajnović, Milka Bjegović, Mile Pejnović, Dmitar Jović, Mara Jović, Đuro Vujnović, Stevo Vujnović, Boja Pjevač, Milan Rajčević, Branko Vujnović; killed prisoners: Stanko Despić, Nikola Stojisavljević, Milan Jović, Dane Krivokuća i Dragan Pavlica ; civilians who survived attempted killing: Anka i Ivanka Rajčević; abused detained soldiers: Vladimir Divjak, protected witness no. 4, Nikola Bulj.
Main hearing commenced on 18 June 2007.
This trial was monitored by Veselinka Kastratović from the Centre for Peace Osijek, Marija Zebić and Darko Balać from the Humanitarian Law Centre, Belgrade.
On 30 May 2008, the War Crimes Council of the Zagreb County Court announced its verdict no. K-rz-1/06.
The defendant Mirko Norac was acquitted of the charge accusing him of the responsibility for ordering random attacks (count V of the Indictment) and thereby that he committed a criminal offence of war crime against civilians, pursuant to Article 120, paragraph 1 of the OKZRH.
The defendant Mirko Norac was found guilty on two other charges: the charge of failing to prevent, thus he accepted and encouraged, the killing of civilians or inhumane treatment of the same, the plunder of civilian property, unlawful and wanton destruction of the property to a great extent, which is not justified under military needs (count V of the Indictment) and thereby he committed a war crime against civilians, pursuant to Article 120, paragraph 1 of the OKZRH. He was sentenced to five years in prison.
Pursuant to the provisions of Article 43, paragraph 2, item 2 of the OKZ RH, the defendant Mirko Norac was sentenced to a joint sentence of seven years in prison.
VERDICT see here (PDF, 1,80 MB) available in the Croatian language
The Supreme Court, at its session held from 16 to 18 November 2009, partially accepted the appeal by the defendant Mirko Norac Kevo and modified the first-instance verdict in respect of the sentence. It upheld the prison sentences pronounced by the first-instance court in the duration of 5 years for each of the two criminal acts (referred to in Article 120, paragraph 1 in respect of Article 28; and referred to in Article 122 in respect of Article 28 of the OKZRH). However, the Supreme Court sentenced the defendant Norac to 6 years in prison on the basis of a joint prison sentence.
The Supreme Court rejected as unfounded the rest of the defendant Norac’s appeal. It rejected the State Attorney’s appeal in its entirety.
You can see the Supreme Court’s verdict here. (in Croatian)
OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUSION OF THE FIRST INSTANCE PROCEEDINGS
The Medak pocket war crimes trial tested the competence of the Croatian judiciary to conduct a criminal procedure against Croatian highly ranked military officers according to the standards of a fair trial, as well as its ability to independently establish and interpret facts about the committed crimes regardless of the pervasive political perspectives on the character of war and the Pocket 93 military operation. It was expected that this trial would greatly contribute to the enhancement of processes of dealing with the negative heritage of the past, help reaffirm values crushed by the crime, and encourage condemnation of crime by shifting the attitude of the society from denial of crimes committed by its nationals and reluctunce to their prosecution, to solidarity with victims. It was also expected that the procedure, and particularly the verdict and imposed penalty, would have a positive influence on general prevention of violations of humanitarian law.
With the procedure over and the first-instance verdict announced, we wish to express concern in relation to the above stated expectations.
We believe that the State Attorney’s Office of the Republic of Croatia dealt with this case with reluctance, doing only as much as it was required to meet the obligations towards the international community, but lacking true eagerness to reveal facts about committed crimes and punish those responsible. Oversights of the State Attorney’s Office significantly influenced the verdict, which in its convicting part included only five out of 32 victims mentioned in the indictment.
Receiving the original indictment of the ICTY, the State Attorney’s Office assessed that «the evidence on which the indictment is based is of a high enough degree of informativeness, both qualitatively and quantitatively, to issue a new indictment without additional investigation, basing it on evidence which provides required degree of informativeness pursuant to Article 191, Paragraphs 1 and 6 of the Criminal Procedure Law.»  However, an additional investigation later proved to have been requisite for establishing the zones of responsibility among the units which were engaged in the Pocket 93 operation, as well as the chain of command and command authorities. The investigation would primarily have helped the State Attorney’s Office to clarify the role of the accused and other persons who as commanders participated in planning and execution of the Pocket 93 operation (including present-day Admiral Davor Domazet Lošo, Special Police Colonel Željko Sačić, and General Mladen Markač), and it would assumably have revealed the facts which were later discovered during the trial procedure. Namely, during the presentation of evidence, it was demonstrated that some crimes referred to in the indictment took place in the region which was under the control of the Croatian Special Police Forces, which were not under the command of the accused Rahim Ademi or Mirko Norac at the time of or immediately after the operation Pocket 93. The revelation of new circumstances during the evidence procedure indicated that it was essential to amend the indictment and align it with the newly established facts. However, the changes that were made have not qualitatively strengthen the indictment nor did they include a change to the factual description, which resulted in five more people being excluded from the convicting part of the verdict. The amended indictment also failed to include two victims which had been mentioned in some of the witness statements.  In addition, the evidence material and the evidence procedure also revealed that the commanding officers who were under the direct command of the second accused gave orders that the soldiers be given explosive to mine houses and that 40 bodies be transported to a house on the outskirts of Gospić, and then thrown and buried in the septic tank. These facts were not included in the altered indictment.
The main prosecutor acted passively in a range of situations (for example, proposal of evidence, posing questions, raising objections, or selection of witnesses without prior investigation whether selected witnesses were still alive, where they resided, etc.). Instead, he let the defence take initiative, with a likely intention to obtain the goals of the prosecution through their opposition.
Although the evidence procedure brought to light the crimes which were committed outside the zone of command responsibility of the accused, and thus indicated the direction for future investigations, we are concerned whether and how efficiently the State Attorney’s Office will conduct necessary investigations against responsible commanders and those persons which were named by protected witness No: 6 as direct perpetrators of crimes in the Medak pocket. We believe that indictments against these persons should already have been issued.
Judge Marin Mrčela, the War Crime Council President at the Zagreb County Court, conducted the procedure in accordance with the law and in an efficient manner, showing respect for the victims and their dignity. Provisions of Article 238, Items a through d of the Criminal Procedure Law, regulating special conditions of participation and examination of protected witnesses in a criminal procedure, were applied. Also applied were provisions of the Rules of Procedure and Evidence of the ICTY with modifications and amendments, and provisions of Article 28 of the Law on Application of the Statute of the International Criminal Court and Prosecution of Crimes Against the Values Protected by the International Humanitarian Law. International legal aid was used during the presentation of evidence and examination of witnesses residing in Canada, the U.S.A., Serbia and Norway.
The Supreme Court of the Republic of Croatia is still to make a decision on the lodged appeals. We find some conclusions of the Court ambiguous, and fear that effects of the pronounced minimum sentence and the way it was justified could endanger individual and social processes of establishment of justice after the war, and prevention of war crimes in general.
We question the legal assessment that the person accused and convicted of failure to prevent, curtail or punish commitment of a crime against international humanitarian law (that is, for failure to act) could not be held criminally resposible for crimes committed on the first day of the operation, because he had not ordered these crimes. On the basis of such assessment the Court omitted all seven civilian victims from the convicting part of the verdict against Mirko Norac, who were killed as a result of unlawful actions of his subordinates on the first day of the operation Pocket 93.  The foregoing legal assessment did not take into account the criminal responsibility of a commander for failing to punish the perpetrator of a crime against humanitarian law, although in this case the Court established that Mirko Norac never did penalize or report the perpetrators despite his awareness of the crimes committed on the first day of the operation (see Explanation below).
Further, we believe that passing a minimum sentence on Mirko Norac (a commander who failed to take all required actions to prevent, curtail or punish his subordinates for committing serious crimes such as the massacre and crucifixion of a war prisoner on a tree), disregard of the fact that complete destruction of houses and property resulted in permanent dislocation of entire village population, and taking as an extenuating circumstance «the youth and inexperience [of the accused] caught in the atmosphere of patriotic elation», sends an unambiguous message that any crime serving a «higher cause» will be allowed and «concealed», and destroys hope (let alone expectations) of crime victims and their families that their suffering will be recognized through judicial mechanisms (see Explanation below).
The Court found the second-accused Mirko Norac Kevo criminally responsible for a war crime against civilians, pursuant to Article 120, Paragraph 1 and related to Article 28 of the Penal Law of the Republic of Croatia, and a war crime against war prisoners, pursuant to Article 122 and related to Article 28 of the Penal Law of the Republic of Croatia, butto a lesser degree than what the indictment charged him with. The Court established that the second-accused was not responsible for the crimes against civilians and war prisoners committed in the zone of responsibility of the Special Police Forces of the Republic of Croatia, which were not under his command , or for the death of victims who were established to have been killed as war prisoners (but designated as civilians in the indictment, which the prosecution failed to change) or soldiers in battle.
However, we question the decision of the Court that the second-accused Mirko Norac is not criminally responsible for civilian victims who were killed due to unlawful actions of his subordinates on the first day of the Pocket 93 operation. This decision was based on the legal assessment that the person accused and convicted of failure to prevent, curtail or punish commitment of a crime against international humanitarian law (that is, for failure to act) could not be held criminally resposible for crimes committed on the first day of the operation, because he had not ordered these crimes.
The Court explained that the second-accused, after learning about unlawful actions of his subordinates, failed as a commander to take required steps to prevent such actions and ensure that they would not repeat, or to identify and penalize direct perpetrators, which made him criminally responsible for unlawful treatment of civilians which took place within the zone of his responsibility in the course of the following days. Following such legal assessment and decision on guilt, the Court amended the indictment in the respective part of the factual description (making it more precise and reducing the degree of criminal responsibility), leaving out all civilian victims killed due to unlawful actions of the Croatian soldiers on 9 September 1993 (the civilians established to have been killed unlawfully within the zone of responsibility of Mirko Norac on 9 September 1993 include a blind 83-year-old Bosiljka Bjegović, Mile Sava Rajčević, Ankica Vujnović, Milan Rajčević, Đuro Krajnović, and sisters Ljubica Kričković and Sara Kričković; however they were left out of the indictment following the foregoing legal assessment).
We believe that the foregoing legal assessment did not take into consideration the criminal responsibility of a commander for a failure to punish the perpetrator of a crime against humanitarian law. The Court established that Mirko Norac had never penalized or reported unlawful actions of his subordinate soldiers although he was aware of their actions even on the first day of the Pocket 93 operation.
One of the commander’s duties during war or an armed conflict is to preclude actions which are against humanitarian law, and which would lead to consequences defined as adverse by the law for the opposing side – its civilians, war prisoners, property, cultural heritage or similar. In relation to these protected objects, the commander should in fact act as a guarantor, being the person who has the authority to command his subordinates so that their actions directed towards achievement of the aims of war or an armed conflict do not oppose principles of the international law. In pursuit of the main aims of their armed force, some members of military units take actions which are not stated in orders. When such actions enter a sphere of war crimes, and the commander, who is aware of them, fails to take actions against perpetrators, he in fact widens his sphere of command tolerating the conduct of his subordinates. The criminal responsibility of the commander lies exactly here, in the failure to punish such conduct and penalize the perpetrators of unlawful actions, which should be an active, integral part of his role as the commander. Namely, a duty of the commander in time of war is to preclude forbidden actions. This equally relates to actions which have not been performed, those carried out, and any other future forbidden actions. The commander’s task is to take and firmly display his position by punishing and prosecuting the perpetrator. A failure to take steps to preclude consequences that follow from actions of his subordinates committed against the international humanitarian law is equally unlawful as conduct of his subordinates which falls within the sphere of war crimes.
Further, the Court did not find it proven that the units under the command of the second-accused Mirko Norac acted unlawfully using armed force in order to permanently relocate civilian population, which actually happened, as alleged in the indictment. The Court explained that this motive of the Croatian Army was not proven because it was established that the relocation of civilians was not planned, and that formally, and in reality, preparations were made to ensure prevention of violations of the humanitarian law regarding war prisoners, and limitation of potential unlawful actions. However, in the indictment this charge was stated in Item 5, which referred to unlawful actions «committed after the operative manoeuvre, performed as part of the Pocket 93 operation, ended, and after 15 September 1993, when during ceasefire the agreement was signed for Croatian troops wihdrawal from liberated and invaded areas to their original positions», and was therefore not strictly related to planning of or preparations for the Pocket 93 operation. Also, such interpretation presupposes that the use of force (murders, deliberate destruction of houses, slaughter of animals, and contamination of wells) could not have occured as a direct reaction of vengeance (to the order of withdrawal), but with the exact motive being the intention to thwart the return of the civilian population to the villages. The Court did not find any other motive for such conduct of the soldiers under the command of Mirko Norac. Besides, it is obvious that a commander who sees houses being massively mined and does not react to this by issuing forbidding orders or applying disciplinary measures accepts the consequence that people might never be able to return to their homes! And this is the exact consequence which happened in this case.
All things considered, we believe that during the sentencing process the Court did not sufficiently consider the consequence arising from «a complete destruction of property in the Medak pocket, which was established during the procedure», and this was the inability of more than a hundred families to return to their homes.
Namely, the Council passed minimum sentences on the second-accused Mirko Norac for the crimes he was convicted of , explaining that his actions were at a low level of guilt (potential premeditation) as he did not order the criminal actions but failed to prevent, curtail or penalize them, and that the scope of destruction of the protected property in relation to individual civilians was not maximum. Making this assessment, the Court considered the area where the operation took place (an area of 100 km), number of soldiers who participated in the operation on both sides (several hundreds) and the number of civilians in the area, including women and the elderly (several hundreds), as well as the fact that due to unacting of the second-accused in this specific case four civilians and one war prisoner (a soldier) were killed, one a war prisoner was tortured, while both war prisoners were subjected to inhumane treatment. The Court explained that «this was a different case to cases where property was almost entirely destroyed», but did not state whether it actually considered a number of people affected by this, or their suffering caused by complete destruction of their homes and inability to return to their villages.
Furthermore, although the Court acknowledged the awareness of Mirko Norac having previously been validly convicted of the same criminal offence (pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia) and sentenced to 12 years in prison, it did not consider this fact as an aggravating circumstance which indicated that the conduct of the convict was not in accordance with the law even before he committed these crimes. Yet, the Court considered the defendant’s young age (just under 26) as an extenuating circumstance, stressing that «obviously his young age and inexperience, caught in the atmosphere of patriotic elation, contributed to his indifference to potentially occurring forbidden consequences, and failure to utilize his command authority to prevent and punish illegal actions.»
The Court also considered moral and human decisions made by Mirko Norac, which earned him numerous medals for merits in the Homeland war. However, it is not clear what relevance the Court gave to the following statement in the explanation: “Admittedly, [the accused] had failed to express reverence for the killed or sympathy for those who lost their loved ones in the military operation.» This was clearly a circumstance which testified to the conduct of the accused after the committed crime and his attitude towards the injured persons, and as such should also have been taken into consideration in the sentencing process.
We still have not recorded another case in which a convict who has such considerable assets as Mirko Norac (retired from the Croatian Army with a HRK 6.000,00 monthly pension; owner of a 2007 Volkswagen Passat and a 100 m2 apartment; single with no children) has at the same time been fully exempt from paying the cost of the criminal procedure (regarding the convicting part of the verdict), pursuant to Article 122, Paragraph 4 of the Criminal Procedure Law. The Court explained that the cost of this criminal procedure (amounting to over HRK 200.000,00) largely exceeded his income, so charging him even a part of the entire cost would endanger his existence. This decision is particularly puzzling when considered within the context of a common court practice in civic cases where victims’ family members who pursue lawsuit against the Republic of Croatia  are typically rejected and despite their poor assets charged all costs of the lawsuits.
 The Indictment, p. 17
 Six civilian victims (Anđa Jović, Milka Bjegović, Boja Pjevač, Dmitar Jović, Mara Jović, and Mile Pejnović) were not included in the convicting part of the verdict since it was established that they were killed in the zone of responsibility of the Special Police. During the evidence procedure it was further established that these units were not under command of the accused (legal validity of this fact is still to be established). However, no one responsible for these crimes has been accused. Some victims were omitted from the verdict because factual description of the alleged crime in the indictment had not been changed. These victims include Pera Krajnović, Boja Vujnović and Janko Potkonjak, for whom it was established during the evidence procedure that they were not killed in mortar attack (as it was stated in the indictment), but by direct actions of Croatian soldiers (the fact which was not entered in the amended indictment). Another unchanged fact was that victims Nikola Jerković and Branko Vujnović, killed by unlawful actions of Croatian soldiers, were soldiers, and not civilians as it was stated in factual description. Finally, the indictment did not include civilian victims Štefica Krajnović and Milan Radaković, who were allegedly killed by members of the Croatian Army, and whose names appeared in witness statements.
 The court established that the following civilians were unlawfully killed in the zone of responsibility of the accused Mirko Norac on 9 September 1993: a blind 83-year-old Bosiljka Bjegović, Mile Sava Rajčević, Ankica Vujnović, Milan Rajčević, Đuro Krajnović, and sisters Ljubica and Sara Kričković.
 It should be noted, however, that establishing zones of responsibility within such a small geographical area simply on the basis of where a victim was killed could not have been so easy. For example, on 9 September 1993 Anđa Jović fled from the village of Divoselo, which was the zone where the preparatory artillery-missile-mortar attack was carried out. It was established that she was killed at the Drenjac field (on 11 September 1993), which was under the responsibility of the Special Police. Consequently, the accused Mirko Norac was not found responsible for her death although her body was found in a septic tank in Gospić where it was brought, thrown and buried by members of the units under the command of Mirko Norac!
 The Verdict: reference number II K-rz-1/06, pp. 262 and 266
 The Verdict: reference number II K-rz-1/06, p. 264
 The Verdict: reference number II K-rz-1/06, pp. 282-283
 The verdict: reference number II K-rz-1/06, p. 6
 The verdict: reference number II K-rz-1/06, p. 284
 Šeatović against the Republic of Croatia; Mileusnić against the Republic of Croatia