The Verdict can be viewed here. (available in Croatian language).

OPINION FOLLOWING THE CONCLUSION OF THE FIRST INSTANCE PROCEEDINGS

On 24 May 2011, the Bjelovar County Court rendered the first instance verdict (verdict-before-appeal) No. K-9/09 and acquitted Ivan Husnjak and Goran Sokol of the charge for war crime against civilians, as indicted by the Bjelovar ŽDO.

This trial is rather interesting because Croatian Army (HV) officers were charged, on the basis of command responsibility, ¹ with commission of war crime against civilians but the mentioned crime did not include any victims. Instead, this crime constituted a large-scale destruction of private property which is not justifiable by military needs. Basic Criminal Law Act of the Republic of Croatia (OKZRH) was in force when the crime was committed and therefore it has been applied in respect of the mentioned command responsibility.

The indictment No. K-DO-6/06 of 23 September 2008 issued by the Bjelovar ŽDO does not contain full information about the injured parties. The quoted Indictment's operative part contains only house numbers of the houses set on fire in Pušina and Slatinski Drenovac. Names of their owners are not mentioned. For that reason, this indictment is imprecise. At the last trial hearing, the mentioned indictment was made more precise by entering the names of two injured parties who contacted the Bjelovar ŽDO having learned from the media that this trial was underway. As already mentioned, owners and complete addresses of their burned/damaged property were not stated, but mentioned instead were only the house numbers. Moreover, on page 3 of the indictment the ŽDO mentioned 43 buildings. Before that, it mentioned 17 buildings in Pušina, 19 in Slatinski Drenovac, the Orthodox church tower and the hunter's lodge. Hence, if the mentioned numbers are added one comes to a total of 38 buildings.

The War Crimes Council of the Bjelovar County Court established in the verdict that arson in Pušina and Slatinski Drenovac was performed on 1 February 1992, after the cleansing action. This cleansing (the surrounding area of the mentioned villages) was carried out between 08.00 and 13.00 hours by members of "A" Company and the reconnaissance platoon of the 2^nd Company of the 132^nd HV "R" Brigade. The Council established that arson occurred in afternoon hours when the mentioned "A" Company was returning to the hunters' lodge in Jankovac. It also established that the defendants, together with soldiers subordinated to them, were not in the mentioned villages at the critical time.

The Council found that in the course of an armed conflict a committed arson of the property represents a large-scale destruction of property that could not be justified by military needs. Thus, it presents a commission of war crime against civilians - criminal offence under Article 120, paragraph 1 of the OKZRH. When the perpetrators act in the mentioned manner, then they act contrary to the provisions of Article 53 of the Geneva Convention relative to the Protection of Civilian Persons.

In the quoted verdict, the Council was of the opinion that the war crime which had been committed by omission (non-doing) was "explicitly regulated by international criminal law and, in particular by the 1949 Geneva Conventions together with their additional protocols issued in 1977" ². For that reason, in its explanation of the acquitting verdict, the Council analysed the provision of Article 86 of the Protocol I additional to the Geneva Conventions in respect of the conduct performed by both defendants. The Council established that members of "A" Company of the 2^nd Battalion of the 132^th HV "R" Brigade were under certain subordination in relation to defendant Ivan Husnjak being the commander of the 2^nd Battalion and to defendant Goran Sokol being the deputy commander of that company. Accusation that the defendants were aware of unlawful actions going on out in the field but failed to take any action to prevent and punish such unlawful actions, the Council finds to be "an unclear and undefined formulation of command responsibility" ³.

Explaining the acquittal, the Council stated that not a single presented evidence lead to a conclusion that the defendants knew that their unit members would commit crime, i.e. were preparing to do it. Moreover, the Court also considers unproven that the defendants had knowledge about the crime at the time when it was committed (in afternoon hours), and it considers that the defendants learned about the committed arson and possible perpetrators the following day.

The Council also analysed the situation in which the commander had no knowledge that his subordinates were preparing to commit crime, what he should have known and should have taken necessary and reasonable measures to prevent it. It is evident from the depositions provided by the witnesses and by the defendants, in view of Zlatko Mesić's report of 31 December 1991, that the battalion's reconnaissance unit members had previously compromised themselves by excessive alcohol consumption, disturbance of public order and commission of certain criminal offences.

In respect of defendant Ivan Husnjak, the Council founded its decision on the fact that he formed three orders (15.12.1991, 18.12.1991 and 31.1.1992) in which he prohibited destruction of housing units. In the order relating to this specific event, "the 1^stdefendant issued an order to unit commanders to brief all soldiers of the meaning of the tasked action as well as the need of order and discipline" ⁴. Analysing presented personal evidence, the Council stated the witness depositions which made a mention of commands issued in October 1991 that contained instructions on prisoners' treatment, material and technical means and on civilians in line with all conventions which were in force. In addition, it was stated that unlawful actions performed before the critical event had already been investigated and that some members of the 132^nd HV Brigade had been prosecuted. The Council found indisputable that defendant Ivan Husnjak, upon learning about the village being set on fire, requested from subordinate commanders to submit report on the event. From the analysis of presented evidence, the court concluded that the defendants took reasonable measures to prevent the crime, which in this case did occur.

As regards the defendants, the Council established that there was no guilt of the commanders, "not even the mildest form of negligence in relation to the crime and there was no causal connection with the crime between actions of the 1^stdefendant as commander and the 2^nddefendant as his deputy. ⁵

Furthermore, the Council found that unestablishing names of the perpetrators of criminal offence may only present "a separate criminal offence of not-reporting the crime or a potential criminal offense of aiding and abetting the perpetrator following the crime, in respect of which in accordance with general provisions it came to the statute of limitations for criminal prosecution." ⁶

The Bjelovar ŽDO filed an appeal against the acquittal. Therefore, it will be interesting to see whether the Supreme Court will accept the reasons for acquittal in respect of both defendants. Namely, the Council in its verdict did not separately access the scope of command authority as regards both defendants, particularly as regards defendant Goran Sokol as deputy commander of the 2^nd Company under the 132^nd HV "R" Brigade. In the trial concluded with the final judgment against defendants Rahim Ademi and Mirko Norac ⁷, the VSRH accepted the first-instance court's opinion that absence of command authority and power represents absence of criminal liability of the defendants - as was the case with defendant Goran Sokol, and the Bjelovar County Court's War Crimes Council did not engage itself into determining this. If we follow the logic of the trial completed with a final judgment for the crimes in the Medak Pocket, in that case a deputy commander (under the rules of the former JNA but also under the HV rules) has a different description of duties, powers and obligations and he is not included, as is the case with the commander, in the zone of criminal responsibility. In respect of defendant Ivan Husnjak's acquittal, the question remains whether the War Crimes Council prematurely concluded that the defendant acted in accordance with the provisions of Article 86 of the Protocol I Additional to the Geneva Conventions, by viewing Mirko Koić's deposition (commander of "A" Company under the 2^nd Battalion of the 132^nd HV "R" Brigade) which he provided during investigation. The witness then said that he wrote a report on 3 February 1992, which he still supports, in provided therein the names of his company members who were setting houses on fire in Pušina, but that the defendant Ivan Husnjak and none of his superiors failed to initiate any action against these persons. This court ruling reopens the question of applicability and scope of command responsibility in national law.