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Trial and sentencing of Yugoslav army personnel for the murder of two Kosovo Albanian civilians

HLC Legal Opinion

25 December 2000

On 20 December, the Military Court in Nis found Yugoslav army reservists Nenad Stamenkovic and Tomica Jovic guilty of murdering two Kosovo Albanian civilians and sentenced them to four and a half years in prison each. Captain Dragisa Petrovic was found guilty of incitement to murder and received four years and ten months.

The panel, presided by Colonel Radenko Miladinovic, established that Capt. Petrovic ordered Jovic and Stamenkovic to kill Feriz and Rukije Krasniqi, an elderly Albanian couple, because they refused to leave their village after they and all the Albanian inhabitants were ordered to move out by the Yugoslav Army on 28 March 1999. The reservists obeyed the order of their superior. Stamenkovic killed the bedridden elderly woman and Jovic killed her husband, after which they burned and buried the bodies.

The judge, Colonel Miladinovic, said Petrovic, Stamenkovic and Jovic received prison terms of less than five years in order to create the legal prerequisite required for them to be released “and be with their families” until the sentence became final.

Under the law, the criminal offense of which Stamenkovic and Jovic were found guilty carries a minimum term of five years in prison. Incitement to the murder of more than one person, the offense with which Capt. Petrovic was charged, carries a minimum term of ten years’ imprisonment. He was found guilty of incitement to the murder of one person, but the Court failed to specify which person.

The Humanitarian Law Center (HLC) considers that the sentences handed down by the Court are too mild, and that the prosecution made a serious mistake with regard to the legal characterization of the offense committed. In the HLC’s view, the military prosecutor failed to indict the accused of a war crime against the civilian population under Article 142 of the Yugoslav Criminal Code although all the elements of such a crime were present in this case. The law defines a war crime as an “act committed during a state of war or armed conflict...” and which may include “attacks on individual civilians or persons incapacitated for combat, which result in death...” or “the murder of civilians... displacement or relocation...” The HLC underscores that the indictment states that “the accused Capt. Petrovic ordered Stamenkovic and Jovic to liquidate civilians from Gornja Susica village because they refused to leave the village,” and that an armed conflict was under way at the time the criminal offense was committed. It should be noted that the state of war was officially declared on 24 March 1999. Hence the prosecutor should have indicted the accused of a war crime, not an ordinary crime. Article 10 (2) of the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) states the Tribunal may subsequently try a person who has been tried by a national court “if the act for which he or she was tried was characterized as an ordinary crime.” A similar provision is contained in Article 17 (2) of the Statute of the permanent International Criminal Court.

The HLC nonetheless points out that the trial in Nis was the first for the murder of Albanian civilians during the armed conflict in Kosovo. It was also the first time that a Serbian court raised the issue of mopping up operations and removal of bodies by Yugoslav Army units, and additional burning of remains that had not been completely destroyed. The Military Court’s perseverance in establishing the truth during the trial is highly commendable and, it is to be hoped, will put an end to impunity for war criminals in Yugoslavia. It is both in Yugoslavia’s interests and its international obligation to try before its courts those suspected of serious violations of international humanitarian law and to ensure that such trials are impartial and fair.

The facts

A Yugoslav Army battalion under the command of Captain Petrovic arrived in Gornja Susica on 27 March 1999. Following the captain’s orders, his men ordered the ethnic Albanian inhabitants to leave the village. All left apart from the Krasniqis. Capt. Petrovic then personally ordered them to leave. After Feriz Krasniqi replied that he and his wife had nowhere to go, and also informed him that his wife was bedridden, Capt. Petrovic ordered reservists Nenad Stamenkovic, Tomica Jovic and Nebojsa Dimitrijevic to liquidate the elderly couple. Dimitrijevic aimed his rifle at Krasniqi in the yard but did not fire. Jovic fired a burst of shots and killed Krasniqi instantly. Stamenkovic went into the house, shot dead Rukije Krasniqi and, coming out, said, “I killed the old woman.” Stamenkovic and Jovic burned the bodies and buried them. Capt. Petrovic subsequently ordered the bodies to be disinterred, to be burned completely and removed to another location.