1 Tuesday, 1 September 2004

2 [Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.30 p.m.

6 JUDGE AGIUS: Good afternoon. Could you call the case, please.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin.

9 JUDGE AGIUS: Mr. Brdjanin, good afternoon to you. I want to make

10 sure that you can follow the proceedings in a language that you can

11 understand.

12 THE ACCUSED: [Interpretation] Good afternoon, Your Honours. Yes,

13 I can.

14 JUDGE AGIUS: Thank you. Please be seated. Appearances for the

15 Prosecution.

16 MS. KORNER: Good afternoon, Your Honours. Joanna Korner

17 temporarily part of the Office of the Prosecutor again, also acting case

18 manager, together with Anna Richterova, Ann Sutherland, Julian Nicholls

19 and Colin Black for the Prosecution.

20 JUDGE AGIUS: Thank you and good afternoon to you, and welcome

21 back, Ms. Korner.

22 Appearances for the Defence.

23 MR. ACKERMAN: Good afternoon, Your Honours. I'm John Ackerman.

24 I'm here with David Cunningham and Aleksandar Vujic.

25 JUDGE AGIUS: All right, thank you, Mr. Ackerman, and good

1 afternoon to the three of you.

2 We are going to proceed with the summary of the judgement. I will

3 go slowly.

4 Trial Chamber II of the International Criminal Tribunal for the

5 former Yugoslavia is sitting today to deliver its Judgement in the trial

6 of Radoslav Brdjanin.

7 The accused was charged with genocide, complicity in genocide,

8 grave breaches of the Geneva Conventions, violations of the laws and

9 customs of war, and crimes against humanity committed in 13 municipalities

10 in the Bosnian Krajina between April 1, 1992, and December 31, 1992. The

11 area relevant to the indictment includes the municipalities of Banja Luka,

12 Bosanska Krupa, Bosanski Novi, Bosanski Petrovac, Celinac, Donji Vakuf,

13 Kljuc, Kotor Varos, Prijedor, Prnjavor, Sanski Most, Sipovo, and finally,

14 Teslic.

15 The accused stood trial for the following 12 charges:

16 Genocide, count 1, and complicity in genocide, count 2. That is

17 for having participated in a campaign designed to destroy Bosnian Muslims

18 and Bosnian Croats, in whole or in part, as national, ethnical, racial or

19 religious groups, as such, in the mentioned municipalities of the

20 Autonomous Region of Krajina.

21 Persecutions, a crime against humanity, count 3, namely for having

22 subjected the Bosnian Muslim and Bosnian Croat populations in the said

23 municipalities to killings, torture, and mistreatment, for denying them

24 fundamental rights, for deporting or forcibly transferring them, as well

25 as for destroying, wilfully damaging and looting property in predominantly

1 Bosnian Muslim and Bosnian Croat populated areas and destroying or

2 wilfully damaging Bosnian Muslim and Bosnian Croat buildings dedicated to

3 religion.

4 Extermination, a crime against humanity, count 4, and wilful

5 killings, a grave breach of the Geneva Conventions of 1949, count 5. That

6 is for having participated in the campaign designed to exterminate members

7 of the Bosnian Muslim and Bosnian Croat populations in the Autonomous

8 Region of Krajina through a significant number of killings in non-Serb

9 areas, camps, and other detention facilities and during deportation or

10 forcible transfers.

11 Torture, a crime against humanity, count 6, and torture as a grave

12 breach of the Geneva Conventions of 1949, count 7. That is for having

13 inflicted severe pain or suffering on the Bosnian Muslim and Bosnian Croat

14 population in the aforementioned municipalities through inhuman treatment

15 including sexual assaults, rapes, brutal beatings, and other forms of

16 severe maltreatment in various locations.

17 Deportation, a crime against humanity, count 8, and inhumane acts

18 consisting of forcible transfer, a crime against humanity, count 9. That

19 is for having deported or forcibly transferred Bosnian Muslims and Bosnian

20 Croats from the Autonomous Region of Krajina to areas under the control of

21 the legitimate government of Bosnia-Herzegovina and to Croatia.

22 Unlawful and wanton extensive destruction and appropriation of

23 property not justified by military necessity, a grave breach of the

24 Geneva Conventions of 1949, count 10.

25 Wanton destruction of cities, towns and villages, or devastation

1 not justified by military necessity, a violation of the laws or customs of

2 war, count 11.

3 And finally, destruction or wilful damage done to institutions

4 dedicated to religion, a violation of the laws or customs of war, count

5 12.

6 The Prosecution, while not alleging that the accused physically

7 perpetrated any of the crimes in question alleged that he is individually

8 criminally responsible pursuant to Article 7(1) of the Statute, namely for

9 having participated in a joint criminal enterprise, the purpose of which

10 was the permanent forcible removal of Bosnian Muslim and Bosnian Croat

11 inhabitants from the territory of the planned Serbian state by the

12 commission of the crimes alleged in counts 1 through 12 of the indictment.

13 Alternatively, the Prosecution pleaded the accused's individual

14 criminal responsibility pursuant to an extended form of joint criminal

15 enterprise, the purpose of which was the commission of the crimes of

16 deportation and forcible transfer whereby the commission of other crimes

17 -- of the other crimes charged in the indictment was alleged to have been

18 a natural and foreseeable consequence of the crimes of deportation and

19 forcible transfer.

20 In addition, the accused was charged pursuant to Article 7(1) of

21 the Statute for having planned, instigated, ordered or otherwise aided and

22 abetted in the planning, preparation or execution of these crimes as well

23 as pursuant to Article 7(3) of the Statute for the crimes committed by his

24 subordinates whilst he was holding positions of superior authority.

25 Throughout the trial proceedings, which commenced on January 23,

1 2002 and ended on April 22, 2004, the Trial Chamber was confronted with a

2 large number of -- amount of evidence, testimonial and documentary. It

3 sat 284 trial days, during which it heard the evidence of 135 viva voce

4 Prosecution witnesses and 19 viva voce Defence witnesses. In addition,

5 the Prosecution tendered 104 written witness statements pursuant to Rule

6 92 bis. The Trial Chamber called one witness proprio motu pursuant to

7 Rule 98. In total, 2.736 and 314 exhibits were tendered in evidence by

8 the Prosecution and by the Defence respectively. The complete Trial

9 Record exceeds 61.000 pages.

10 For the purpose of this hearing, I shall briefly summarise the

11 Trial Chamber's findings and reasons for these findings. I emphasise,

12 however, that this is only a summary and that it does not in any way form

13 part of the judgement of the Trial Chamber. The only authoritative

14 account of the findings of the Trial Chamber is in the written judgement

15 which will be available to the parties and the public today at the end of

16 these proceedings.

17 I'll start with the facts of the case, and first and foremost the

18 strategic plan and its implementation.

19 The death of Marsal Tito and the collapse of the League of

20 Communists in January of 1990 led to the emergence of nationalist parties

21 throughout the former Yugoslavia. The first multi-party elections were

22 held in November 1990 in Bosnia and Herzegovina, and the SDA, that is the

23 Bosnian Muslim Party for Democratic Action; the HDZ, that is the Croatian

24 Democratic Union; and the SDS, that is the Serbian Democratic Party,

25 collectively won the overwhelming majority of votes.

1 The break-up of the Socialist Federal Republic of Yugoslavia, and

2 in particular the secession of Slovenia and Croatia, had a significant

3 impact on the socio-political situation in Bosnia and Herzegovina. From

4 late summer 1991, many military-aged men from Bosnia and Herzegovina were

5 mobilised to join the army to fight in Croatia. A large number of Bosnian

6 Serbs responded, but Bosnian Muslims and Bosnian Croats, supported and

7 encouraged by their respective leaders, generally did not. This led to

8 increased tension between the ethnicities, especially in the Bosnian

9 Krajina region bordering Croatia.

10 Other sources of anxiety and fear for the people in the Bosnian

11 Krajina were the threatening conduct of the soldiers returning from the

12 battlefields in Croatia and the influx of large numbers of Serbian

13 refugees from Croatia, the latter in particular causing serious housing

14 problems. Furthermore, the conflict in Slovenia and Croatia had a

15 disastrous impact on the economy of Bosnia and Herzegovina. The flow of

16 goods between the republics was interrupted and the whole of the Socialist

17 Federal Republic of Yugoslavia was affected by hyperinflation.

18 In this atmosphere of tension, the three main nationalist parties,

19 having separate national agendas with conflicting interests, failed to

20 reconcile their differences and started moving in opposite directions.

21 Most importantly, they disagreed on the question of the constitutional

22 status of Bosnia and Herzegovina. While the SDA and the HDZ, following

23 the declarations of independence of Slovenia and Croatia, promoted the

24 secession of the Socialist Republic of Bosnia and Herzegovina from the

25 Socialist Federal Republic of Yugoslavia, the SDS strongly advocated the

1 preservation of Yugoslavia as a state in order to ensure that the Serbs

2 would continue to live together in a single state and would not become a

3 minority in an independent Bosnian state.

4 During the second half of 1991, it appeared increasingly unlikely

5 that the Socialist Republic of Bosnia and Herzegovina would remain within

6 the Socialist Federal Republic of Yugoslavia. The Trial Chamber is

7 satisfied beyond reasonable doubt that precisely during this period the

8 Bosnian Serb leadership, including the main board and other senior members

9 of the SDS, as well as the Bosnian Serb representatives of the armed

10 forces, devised a plan to link Serb-populated areas in Bosnia and

11 Herzegovina together to gain control over these areas and to create a

12 separate Bosnian Serb state from which most non-Serbs would be permanently

13 removed. Throughout the judgement, this is referred to as the "Strategic

14 Plan." The Bosnian Serb leadership knew that the strategic plan could

15 only be implemented by the use of force and fear.

16 On December 19, 1991, the main board of the SDS issued a document

17 entitled "Instructions for the Organisation and Activity of Organs of the

18 Serbian People in Bosnia and Herzegovina in Extraordinary Circumstances."

19 Throughout the judgement, this document is referred to as the Variant A

20 and B document or Variant A and B instructions. These instructions

21 provided for the conduct of specified activities in all municipalities in

22 which Serbs lived, and essentially mapped out the takeover of power by

23 Bosnian Serbs in municipalities where they constituted a majority of the

24 population - that was covered by the Variant A part - and where they were

25 in the minority - and that was covered by the Variant B part.

1 On January 9th, 1992, the newly created Assembly of the Serbian

2 people in Bosnia and Herzegovina proclaimed the Serbian Republic of Bosnia

3 and Herzegovina. It was composed of the so-called Serbian autonomous

4 regions and districts which included the Autonomous Region of Krajina.

5 During the 16th session of the Assembly of the Serbian People in Bosnia

6 and Herzegovina that took place on May 12, 1992, at that time when the

7 armed conflict had already begun, Radovan Karadzic articulated the six

8 strategic goals of the Serbian people of Bosnia and Herzegovina. The

9 first and most fateful of these goals was the "separation from the other

10 two national communities - separation of states." In essence, these

11 strategic goals constituted a plan to seize and control territory,

12 establish a Bosnian Serb state, defend defined borders, and separate the

13 ethnic groups within Bosnia and Herzegovina by forcibly and permanently

14 removing most of the non-Serb population from the territory of the

15 proclaimed Bosnian Serb state. General Lieutenant Colonel Ratko Mladic,

16 the commander of the newly established army of the Serbian Republic of

17 Bosnia and Herzegovina - that is the VRS - accepted that the VRS would be

18 instrumental in implementing these political strategic goals and indeed

19 transferred them into operational imperatives for the VRS.

20 The strategic plan was implemented in successive steps so that the

21 Trial Chamber was able to clearly recognise a pattern of criminal conduct

22 by the actors involved throughout the relevant municipalities.

23 Already prior to the outbreak of the armed conflict, the SDS

24 started waging a propaganda war which had a disastrous impact on the

25 peoples of all ethnicities, creating mutual fear and hatred and

1 particularly inciting the Bosnian Serb population against the other

2 ethnicities. Within a very short period of time, citizens who had

3 previously lived together peacefully became bitter enemies, and many of

4 them, in the present case mainly Bosnian Serbs, became killers, influenced

5 by a media which, by that time, was already under the control of the

6 Bosnian Serb leadership. The use of propaganda was an integral part of

7 the implementation of the strategic plan and created a climate in which

8 people were prepared to tolerate the commission of crimes and to commit

9 crimes.

10 A further measure towards the implementation of the strategic plan

11 was the dismissal of Bosnian Muslims and Bosnian Croats from key positions

12 in the army, the police, and other public institutions and enterprises.

13 This process had already started during the war in Croatia when the

14 refusal of non-Serbs to respond to mobilisation had resulted in their

15 dismissal. It escalated during the period relevant to the indictment,

16 resulting in the dismissal of almost all Bosnian Muslims and Bosnian

17 Croats from their positions, and these were thus deprived of their

18 livelihood.

19 In addition, Bosnian Serb authorities exerted undue pressure on

20 Bosnian Muslims and Bosnian Croats in an organised fashion to force them

21 to leave the area. Non-Serbs did not receive the same attention and

22 medical treatment at hospitals as Bosnian Serbs did. Their freedom of

23 movement was severely restricted in the form of checkpoints and curfews in

24 contrast with the freedom of movement enjoyed by Bosnian Serbs. Moreover,

25 they were not protected against harassment and abuse from Bosnian Serb

1 armed individuals. Bosnian Muslims and Bosnian Croats were oppressed and

2 pressurised to an extent that living in the Bosnian Krajina became

3 unbearable for them.

4 In late 1991 and early 1992, all three national parties began

5 arming themselves. The evidence shows that the SDS received substantial

6 support from the army which systematically furnished light arms and

7 weapons to local SDS committees in Bosnian Serb claimed municipalities of

8 the Bosnian Krajina as well as to Serbian paramilitary groups.

9 Distribution of arms and weapons to Bosnian Serb civilians was carried out

10 by the local communes and was supervised by the SDS with the support of

11 the army and the local police. The distribution was carried out without

12 any consideration to whom these weapons would be given and for which

13 purpose they could be used. Bosnian Muslims and Bosnian Croats were also

14 preparing for war and correspondingly arming themselves. However, their

15 efforts to procure and distribute weapons were nowhere near as successful

16 as those of the Bosnian Serbs, both in terms of the number and the quality

17 of the obtained weapons.

18 While the arming operations were taking place, public

19 announcements were made through the media that illegally possessed weapons

20 had to be returned to the Territorial Defence staff or to the local police

21 by a certain deadline. Although some of these announcements were

22 formulated in a neutral manner, calling upon all paramilitary groups and

23 individuals of all ethnicities to return illegally possessed weapons, they

24 were in practice enforced by Serbian-controlled police and army in a

25 discriminatory fashion against non-Serbs only. In practice, non-Serbs

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1 were also deprived of legally owned weapons. The selective disarmament of

2 non-Serbs created an imbalance of arms which rendered them totally

3 vulnerable and prevented them from setting up any effective resistance or

4 even from defending themselves.

5 By the spring of 1992, a number of Serbian paramilitary groups had

6 been formed in Bosnia and Herzegovina or had arrived from Serbia. Some of

7 these paramilitary groups were trained and equipped by the army and were

8 closely associated with it or with the SDS. The paramilitaries created an

9 atmosphere of fear and terror by committing crimes against Bosnian Muslims

10 and Bosnian Croats, including rape, murder, plunder, and the destruction

11 of their property. They engaged in war profiteering and looting. Serbian

12 paramilitary groups also participated in combat operations of the 1st

13 Krajina Corps of the VRS, throughout the Autonomous region of Krajina, and

14 from mid-June 1992 onwards they were formally incorporated into the

15 structure of the VRS and put under its command. The Trial Chamber is

16 satisfied that both the army, as well as the SDS, used paramilitary groups

17 as an operative tool that contributed to the implementation of the

18 strategic plan.

19 When the armed conflict broke out in Bosnia and Herzegovina in

20 April 1992, the scale of crimes committed against the non-Serb civilian

21 population in Bosnian Krajina escalated. These crimes came about through

22 close cooperation between the Bosnian Serb police, the army, and Serbian

23 paramilitary groups. The clearly recognisable pattern of criminal

24 activity allows for only one reasonable conclusion; namely, that these

25 crimes were committed with the aim of implementing the strategic plan of

1 the Bosnian Serb leadership to take control of the territory claimed for

2 the Serbian state within Bosnia and Herzegovina and to permanently remove

3 most non-Serbs from that territory.

4 The Bosnian Serb forces attacked non-Serb towns, villages, and

5 neighbourhoods throughout the 13 municipalities I mentioned earlier.

6 These attacks mostly started after the expiry of a deadline for non-Serbs

7 to surrender their weapons. Sometimes an incident caused by non-Serbs

8 would be used as a pretext, attacks commenced with intensive shelling from

9 heavy armed weaponry, and Muslim villages and neighbourhoods were targeted

10 with houses and institutions dedicated to religions -- to religion shelled

11 indiscriminately. This resulted in extensive destruction and civilian

12 casualties. Many of the survivors fled and sought shelter in the

13 surrounding areas. After the shelling, armed soldiers entered the

14 villages, looted and torched houses and expelled or killed some of the

15 villagers who remained behind. In some instances, women were raped.

16 Overall, the Bosnian Muslim and Bosnian Croat population of the

17 attacked towns, villages, and neighbourhoods were not able to set up any

18 effective resistance to these armed attacks. They were not adequately

19 organised, and they did not have sufficient weapons, having been disarmed,

20 with which they could oppose the attackers.

21 During the spring and summer of 1992, Bosnian Serb forces

22 committed killings on a massive scale throughout the Autonomous Region of

23 Krajina. While the judgement provides a much more complete picture, I

24 shall restrict myself to mention only three examples.

25 On May 31, 1992, Bosnian Serb soldiers entered the Muslim hamlet

1 of Begici in Sanski Most municipality and rounded up its inhabitants. Men

2 were separated from women and children. Between 20 and 30 men were taken

3 towards the Vrhpolje bridge where they were supposed to be put on buses.

4 Four Bosnian Muslim men were killed by Jadranko Palija on the way to the

5 bridge. Upon arrival, the other men were ordered to take off their

6 clothes and to line up. Many Bosnian Serb soldiers in different uniforms

7 were present. One of them said that 70 Bosnian Muslims had to be killed

8 in retaliation for the death of seven Bosnian Serb soldiers in the area.

9 Then the Bosnian Muslim men were ordered to jump off the bridge into the

10 Sana River, one by one. Once in the water, the soldiers opened fire upon

11 them. Rajif Begic survived after swimming under water for about 100

12 metres downstream. From the place where he stayed hiding, he was able to

13 observe the executions at the bridge. The Trial Chamber found that a

14 total of at least 28 persons were killed in this incident.

15 On June 1, 1992, approximately 100 residents from various hamlets

16 in the Kljuc municipality were confined in the old primary school in

17 Velagici. Both Bosnian Serb policemen and soldiers were present. Shortly

18 before midnight, people were taken out from the school and ordered to line

19 up in front of the building. Then, two Bosnian Serb soldiers armed with

20 automatic rifles opened fire on them. The soldiers continued firing until

21 every person had fallen down, and then they shot at those who still

22 appeared to be alive. One person survived the massacre. The Trial

23 Chamber was satisfied that at least 77 civilians were killed in this

24 incident.

25 On August 21, 1992, four buses comprised only of men set off from

1 Trnopolje camp. At a junction near Kozarac, the buses from Trnopolje were

2 joined by other buses full of prisoners that came from Tukovi. The convoy

3 was accompanied by members of a special police unit of the Prijedor public

4 security station. Towards late afternoon, before reaching the line of

5 separation between Bosnian Serb and Bosnian Muslim controlled territory,

6 shortly after Skender Vakuf and at the proximity of Mount Vlasic, two of

7 the buses, each carrying approximately 100 persons, stopped. On one side

8 of the road there was a deep gorge, on the other side a steep face of

9 rock. The area is referred to as Koricanske Stijene. The men from the

10 buses were taken in a column to the edge of the cliff and ordered to kneel

11 down facing the cliff. The police officer in charge said, "Here we

12 exchange the dead for the dead and the living for the living." Before the

13 victims were executed, they cried and pleaded for their lives. Then the

14 shooting started. The dead bodies fell into the abyss or were pushed over

15 the edge, sometimes by other Bosnian Muslims, prior to their own

16 execution. Grenades were thrown into the gorge soon after to make sure

17 that no one would survive. The entire operation lasted not more than half

18 an hour. The Trial Chamber is convinced that, at a minimum, 200 men were

19 killed on this day at Koricanske Stijene.

20 In the spring of 1992, camps and other detention facilities were

21 established throughout the territory of the Bosnian Krajina in army

22 barracks and compounds, factories, schools, sports facilities, police

23 stations and other public buildings. These camps and detention facilities

24 were set up and controlled by the Bosnian Serb army, police or civilian --

25 and police and civilian authorities. Non-Serb civilians were arrested en

1 masse and detained in these camps and detention facilities. For example,

2 in Prijedor municipality, after the armed attacks on non-Serb villages by

3 Bosnian Serb armed forces, women and children were separated from the men,

4 all of whom were loaded onto buses and taken to Trnopolje, Omarska, or

5 Keraterm. While prominent members of the SDA and the HDZ were amongst the

6 first to be arrested, the overwhelming majority were normal citizens

7 arrested solely because of their ethnicity. The conditions in the camps

8 and some detention facilities were particularly harsh. Inmates were

9 interrogated, tortured, beaten, and subjected to inhuman and degrading

10 conditions of life. Women were raped and killings occurred on a regular

11 basis. The tragic peak of killings inside these camps was reached with a

12 massacre in Room 3 of Keraterm camp perpetrated by Bosnian Serb army

13 personnel, during which at least 190 Bosnian Muslims from the Brdjo area

14 and Prijedor municipality were killed.

15 Already before the outbreak of the armed conflict in Bosnia and

16 Herzegovina, Bosnian Muslims and Bosnian Croats living in the Bosnian

17 Krajina were feeling increasingly insecure and started leaving the region

18 in convoys. As the events in the Bosnian Krajina developed from the

19 spring of 1992 onwards, active and systematic repression and expulsion of

20 the Bosnian Muslims and the Bosnian Croats was carried out by the Bosnian

21 Serb authorities throughout the region. Convoys of buses and trains were

22 organised by the Bosnian Serb authorities to drive tens of thousands of

23 men, women, and children out of the Bosnian Serb claimed territory to

24 either Bosnian Muslim held territory within Bosnia and Herzegovina or to

25 Croatia. On June 12, 1992, the Agency for Population Movement and

1 Exchange of Material Wealth was established in Banja Luka, assisting in

2 the implementation of the policy of ethnic cleansing. The non-Serb

3 population often sought to leave and requested the conveys, which were

4 then organised by the Bosnian Serb authorities. However, they did not

5 leave of their own free will but were forced to do so due to the

6 conditions, or as a result of the conditions imposed upon them. Moreover,

7 in many instances, the Bosnian Serb authorities made them sign documents

8 stating that they were renouncing claims to all the property they were

9 leaving behind in favour of the Serbian Republic of Bosnia and

10 Herzegovina. The Trial Chamber is satisfied that this measure was

11 intended to dissuade the Bosnian Muslims and Bosnian Croats leaving the

12 territory from even thinking of returning at a later stage. At the same

13 time, the cleansed areas in Northern Bosnia that had been emptied of

14 Bosnian Muslims and Bosnian Croats and had not been destroyed were

15 repopulated by resettling Serbian refugees coming from Croatia.

16 The Trial Chamber is satisfied beyond reasonable doubt that the

17 crimes that were committed in the Bosnian Krajina from April 1992 until

18 the end of December 1992 occurred as a direct result of the overarching

19 strategic plan. The ethnic cleansing was not a by-product of the criminal

20 activity. It was its very aim. The conditions of life imposed on the

21 non-Serb population of the Bosnian Krajina and the military operations

22 against towns and villages which were not military targets were undertaken

23 with the sole purpose of driving people away. By August 1992, the

24 consistent application of such a discriminatory policy was completely

25 clear to objective observers on the ground, and the evidence shows a

1 consistent, coherent, and criminal strategy of cleansing the Bosnian

2 Krajina of ethnic groups other than Bosnian Serbs implemented by the SDS

3 and the Bosnian Serb forces.

4 During the implementation of this policy, effective control over

5 the Bosnian Serb military, police, and civilian structures was exercised

6 variously by political leaders from the Bosnian Serb Supreme Command and

7 other governmental authorities of the Serbian Republic of Bosnia and

8 Herzegovina. It was impossible to implement a systematic policy of this

9 magnitude just by spontaneous action or by criminal actions conducted by

10 isolated radical groups. Moreover, the actual methods used to implement

11 the strategic plan were controlled and coordinated from a higher level

12 than the respective municipalities, even though some municipalities

13 distinguished themselves by taking certain initiatives.

14 I now come to the regional level of authority.

15 Already in early 1991, the SDS embarked on a programme of

16 regionalisation, the ultimate object of which was the implementation of

17 the strategic plan. On April 7, 1991, the SDS Regional Board decided to

18 create the Community of Municipalities of Bosnian Krajina. On September

19 16, 1991, the Assembly of Community of Municipalities of Bosnian Krajina,

20 ZOBK, transformed itself into the Autonomous Region of Krajina. The

21 accused became its First Vice-President. While it is difficult to define

22 with precision which municipalities belonged to the Autonomous Region of

23 Krajina at any given time, the Trial Chamber is satisfied that all 13

24 municipalities addressed in the indictment were members of the Autonomous

25 Region of Krajina during the period relevant to the instant case.

1 Notwithstanding Articles 4 and 5 of its statute, suggesting that

2 it was a multi-ethnic institution, the Autonomous Region of Krajina was

3 essentially a purely Serbian authority. The Autonomous Region of Krajina

4 was vested with powers of a political nature that belonged to the

5 municipalities, including powers in the area of defence. The Trial

6 Chamber is a satisfied that the Autonomous Region of Krajina as an

7 intermediate level of government was established by the Serb leadership to

8 coordinate the implementation of the strategic plan by the municipalities

9 in that region.

10 On May 5, 1992, the ARK Executive Council issued a decision on the

11 formation, the creation of the ARK Crisis Staff, appointing Radoslav

12 Brdjanin, the accused, as its president. The Trial Chamber is satisfied

13 that as with municipal Crisis Staffs in their respective areas of

14 jurisdiction, the ARK Crisis Staff was established primarily to ensure the

15 cooperation between the political authorities, the army, and the police at

16 the regional level, and with a view to coordinating the implementation of

17 the strategic plan by the different authorities.

18 Amongst the 15 core members of the ARK Crisis Staff were the

19 political and military leadership of the Autonomous Region of Krajina as

20 well as persons holding key public positions in the Autonomous Region of

21 Krajina and individuals linked to paramilitary organisations. In addition

22 to these core members, the meetings of the ARK Crisis Staff were attended

23 on a weekly basis by the presidents of the Crisis Staffs of member

24 municipalities or their representatives. The composition of the ARK

25 Crisis Staff not only secured its authority and influence over the various

1 bodies represented on it, but also made sure that, in the eyes of the

2 public, the ARK Crisis Staff was seen to be vested with such authority and

3 influence.

4 Indeed, between May 5, 1992, and July 17, 1992, at which time the

5 ARK Crisis Staff stopped functioning, the ARK Crisis Staff assumed all

6 powers and functions of the ARK Assembly and acted as an intermediate

7 level of government between the authorities of the Serbian Republic of

8 Bosnia and Herzegovina and the municipalities. The ARK Crisis Staff was

9 the highest civilian authority in the Autonomous Region of Krajina and

10 exercised de facto authority over the municipalities and the police and

11 had great influence over the army and Serb paramilitary groups. The

12 extent and the limits of the powers of the ARK Crisis Staff are discussed

13 in great detail in the Trial Chamber judgement.

14 The Trial Chamber is satisfied beyond a reasonable doubt that the

15 accused not only formally represented the ARK Crisis Staff as its

16 president but was in fact at the very heart of the ARK Crisis Staff as its

17 key figure. He was the driving force behind the major decisions issued by

18 the ARK Crisis Staff, which is the reason why the Trial Chamber comes to

19 the conclusion that the decisions of the ARK Crisis Staff can be

20 attributed to the accused.

21 The municipalities, the police, and to some extent the army,

22 systematically implemented ARK Crisis Staff decisions in three key areas.

23 First, the dismissal of non-Serb professionals; second, the disarmament of

24 paramilitary units and individuals illegally possessing weapons,

25 selectively enforced against non-Serbs; and third, the resettlement of the

1 non-Serb population. In the view of the Trial Chamber, these areas were

2 crucial and vital to the success of the overall plan of ethnic cleansing

3 and gave a substantial contribution to the implementation of the strategic

4 plan.

5 I now come to legal findings.

6 This being a summary of the Trial Chamber's judgement, I shall not

7 go into all the details of the Trial Chamber's legal findings and

8 assessments. Rather, I will limit myself to highlighting the following

9 key points:

10 The Trial Chamber is satisfied that all the chapeau elements

11 required for the application of each of the Articles of the Statute

12 pursuant to which the accused has been charged in the indictment have been

13 met.

14 Regarding the mens rea for extermination, the Trial Chamber found

15 that it is analogous to the mens rea for murder as a crime against

16 humanity with the difference that the Prosecution is required to prove

17 beyond reasonable doubt that the accused had the intention to kill persons

18 on a massive scale or to create conditions of life that led to the death

19 of a large number of people. The Trial Chamber found that all the killing

20 incidents alleged in the indictment were proved beyond reasonable doubt

21 except for the following: The incident in Lisjna on or about 1 June 1992,

22 the incident at Vrbanjci on 25 June 1992, the incident on the way from

23 Kukavica and surrounding areas in Kotor Varos on or about the 25th of June

24 1992, and the incident at Dujo Banovic's house in Kenjari on or about June

25 27 1992. In sum, the Trial Chamber is satisfied beyond reasonable doubt

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1 that at least 1.669 Bosnian Muslims and Bosnian Croats were killed by

2 Bosnian Serb forces in these events, all of whom were non-combatants. The

3 Trial Chamber is further satisfied that these killings fulfil the elements

4 of massiveness for the crime of extermination.

5 The definition of torture adopted by this Trial Chamber reflects

6 that contained in the Convention against Torture and reads as follows:

7 "The intentional infliction, by act or omission, of severe pain or

8 suffering, whether physical or mental, in order to obtain information or a

9 confession or to punish, intimidate, or coerce the victim or a third

10 person or to discriminate on any ground against the victim or a third

11 person, amongst others." Having considered the objective and subjective

12 severity of the mistreatment, the Trial Chamber found that the treatment

13 inflicted on the victims and examined at length in the judgement

14 constituted severe pain and suffering for a designated purpose of

15 intimidating, discriminating, or obtaining information, thus amounting to

16 torture. The Trial Chamber wishes to note that some acts, such as rape,

17 by definition meet the severity threshold.

18 By a majority vote, the Trial Chamber is satisfied that the actus

19 reus of deportation consists of the forcible displacement of individuals

20 across a state border from the area in which they are lawfully present

21 without grounds permitted under international law, whereas such

22 displacement within the boundaries of a state constitutes the actus reus

23 of forcible transfer, punishable as inhumane acts as a crime against

24 humanity. The Trial Chamber was confronted with a great deal of evidence

25 regarding the deportation or forcible transfer of a large proportion of

1 the Bosnian Muslim and Bosnian Croat population from the Autonomous Region

2 of Krajina to other areas both within and outside Bosnia-Herzegovina. In

3 view of the specificity with which the charges were pleaded, the Trial

4 Chamber was precluded from making any finding of guilt with respect to

5 incidents where the transfer destination was to locations other than

6 Travnik, under the control of the legitimate government of Bosnia and

7 Herzegovina, or Karlovac in Croatia. Having examined all the evidence,

8 the Trial Chamber is satisfied beyond reasonable doubt that a large number

9 of deportations to Karlovac and a large number of forcible transfers to

10 Travnik, originating in the Autonomous Region of Krajina, took place

11 during the period relevant to the indictment.

12 The Trial Chamber is satisfied that all the incidents of extensive

13 destruction and appropriation of Bosnian Muslim and Bosnian Croat property

14 by Bosnian Serb forces alleged in the indictment were proved beyond

15 reasonable doubt except for incidents in Ramici, Humici, Vrhpolje, Trnova,

16 Sasina, Komusina, Rasjeva, Kamenica and Sipovo. However, for Article 2(d)

17 of the Statute to apply, the Trial Chamber needs to be satisfied beyond

18 reasonable doubt that either the property destroyed and appropriated was

19 located in occupied territory or the property is subject to general

20 protection under the Geneva Conventions. The Trial Chamber found that in

21 the present case the evidence adduced was insufficient to prove either of

22 these two alternatives. And this is explained better in the written

23 judgement. The Trial Chamber therefore found that no violation of Article

24 2(d) of the Statute occurred. In contrast, the protection of Article 3(b)

25 of the Statute extends to all property in the territory involved in a war,

1 including that located in enemy territory. The Trial Chamber therefore

2 found that the destruction of property in the relevant municipalities of

3 the Autonomous Region of Krajina was in violation of Article 3(b) of the

4 Statute.

5 The Trial Chamber is also satisfied that institutions dedicated to

6 religion were systematically destroyed and devastated in the relevant

7 municipalities of the indictment between April and the end of December

8 1992, in violation of Article 3(d) of the Statute.

9 Regarding the crime of genocide. Regarding the crime of genocide,

10 the Trial Chamber concluded that the protected groups within the meaning

11 of Article 4 of the Statute must be defined. In the present case, they

12 have been defined as the Bosnian Muslims and Bosnian Croats. The Trial

13 Chamber is satisfied that the targeted parts of the groups were the

14 Bosnian Muslims and Bosnian Croats of the Autonomous Region of Krajina and

15 that these amounted to substantial parts of the protected groups. In this

16 case, the Prosecution pleaded three different types of acts as genocide.

17 As stated earlier, the Trial Chamber found that Bosnian Muslims and

18 Bosnian Croat non-combatants were killed by Bosnian Serb forces. The

19 Trial Chamber is also satisfied beyond reasonable doubt that serious

20 bodily and mental harm was intentionally inflicted upon Bosnian Muslims

21 and Bosnian Croats detained in camps and other detention facilities.

22 Furthermore, the Trial Chamber is satisfied that the conditions in these

23 camps and other detention facilities were deliberately inflicted upon the

24 Bosnian Muslim and Bosnian Croat detainees and amounted, in some cases, to

25 conditions calculated to bring about physical destruction. As a result,

1 it remained to be determined whether these offences were committed with

2 the specific intent required for genocide, conscious that where direct

3 evidence of intent is absent, the specific intent may still be inferred

4 from the factual circumstances and particularly conscious also that where

5 an inference needs to be drawn, it has to be the only reasonable inference

6 available on the evidence. In this case, the Trial Chamber is not

7 satisfied that the only reasonable inference that may be drawn from the

8 evidence is that the offences were committed with the specific intent to

9 destroy the Bosnian Muslim and Bosnian Croat groups of the Autonomous

10 Region of Krajina. One reason for this is that the number of Bosnian

11 Muslim and Bosnian Croat men, women, and children forcibly displaced from

12 the Autonomous Region of Krajina in this case is extremely high,

13 particularly when put in juxtaposition to the number of Bosnian Muslim and

14 Bosnian Croats subjected to the acts enumerated in Article 4(2)(a), (b)

15 and (C) of the Statute. This fact does not support the conclusion that

16 the intent to destroy the groups in part, as opposed to the intent to

17 forcibly displace them, is the only reasonable inference that may be drawn

18 from the evidence. The judgement details the Trial Chamber's reasons in

19 full. On the basis of the evidence presented in this case, the Trial

20 Chamber has not found beyond reasonable doubt that genocide was committed

21 in the relevant ARK municipalities from April to December 1992.

22 The Trial Chamber found that the crime of persecution consists of

23 an act or an omission which discriminates in fact and denies or infringes

24 upon a fundamental right laid down in international customary or treaty

25 law and was carried out deliberately with the intent to discriminate on

1 one of the listed grounds, specifically race, religion, or politics. The

2 Trial Chamber has understood race to include ethnicity. The Trial Chamber

3 found that the campaign of persecutions against Bosnian Muslims and

4 Bosnian Croats included killings, torture, physical violence, rapes and

5 sexual assaults, constant humiliation and degradation, destruction and

6 appropriation of non-Serb property, destruction of institutions dedicated

7 to religion, deportation and forcible transfer, and the denial of

8 fundamental rights, namely the denial of the fundamental rights to

9 employment and freedom of movement and the rights to proper medical care

10 and proper judicial process. The Trial Chamber is further satisfied that

11 the acts were discriminatory, in fact, and were committed by the

12 perpetrators with the requisite discriminatory intent on racial,

13 religious, and political grounds.

14 I now come to the criminal responsibility of the accused.

15 I shall now turn to the question as to whether the accused,

16 Radoslav Brdjanin, is criminally responsible for any of the crimes charged

17 in the indictment under any of the modes of liability included therein.

18 For this purpose, it is necessary to state some of the core issues

19 examined by the Trial Chamber in its written judgement in order to

20 establish the accused's criminal responsibility.

21 The Trial Chamber is satisfied beyond reasonable doubt that both

22 prior to and during the period covered in the indictment, Radoslav

23 Brdjanin was a leading political figure in the Autonomous Region of

24 Krajina and that he held key positions at the municipal, regional, and

25 republic levels, including that of First Vice-President of the ARK

1 Assembly, President of the ARK Crisis Staff, and later Acting Deputy Prime

2 Minister for Production, Minister for Construction, Traffic, and

3 Utilities, and Acting Vice-President of the Government of Republika

4 Srpska.

5 The Trial Chamber is satisfied that between mid-1991 and the end

6 of 1992, the accused possessed de jure and de facto powers that made him

7 one of the most significant and powerful political figures in the

8 Autonomous Region of Krajina. The sources of his powers were twofold. In

9 the first place, the accused possessed power by virtue of the political

10 positions that he occupied at the municipal, regional, and republic

11 levels. In the second place, he was entrusted with political power

12 directly by the Bosnian Serb leadership, including Radovan Karadzic

13 himself.

14 The Trial Chamber is further satisfied that the accused espoused

15 the strategic plan and knew that it could only be implemented by the use

16 of force and fear.

17 Amongst the political figures in the Bosnian Krajina, it was the

18 accused who was identified by the Bosnian Serb leadership as best

19 representing the interests of the Serbian people Republic of Bosnia and

20 Herzegovina. He was chosen to play a leading role in coordinating the

21 implementation of the strategic plan in the Autonomous Region of Krajina.

22 For this purpose, the top leadership of the Serbian Republic of Bosnia and

23 Herzegovina granted the accused a high degree of authority and autonomy in

24 areas of fundamental political importance which is indicative of the trust

25 the accused enjoyed at the highest political level. In a telephone

1 conversation of -- on October 31, 1991, Radovan Karadzic himself assured

2 the accused that he had all the power in the Bosnian Krajina and indicated

3 that he should take more decisions without consulting the party

4 leadership. Moreover, in a conversation between Radovan Karadzic and a

5 certain Miroslav on January 7, 1992, the accused was identified as a

6 mature and politically strong personality who would be able to take power.

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8 Radoslav Brdjanin made a substantial contribution to the

9 implementation of the strategic plan in three distinct phases: before the

10 establishment of the ARK Crisis Staff, in his capacity as member of the

11 Assembly of the Serbian People in Bosnia and Herzegovina, first, and in

12 the ARK Assembly, as president of the ARK Crisis Staff, and after the ARK

13 Crisis Staff ceased to exist, in his capacity as Minister in the Republika

14 Srpska government.

15 Before the creation of the ARK Crisis Staff, Radovan Karadzic was

16 already discussing and relying upon the accused, amongst others, to set up

17 civilian commands to ensure Territorial Defence and civilian protection,

18 to liaise with military officers and prepare for the mobilisation of the

19 Bosnian Serb military, and to implement the policy of dismissing non-Serbs

20 from their jobs.

21 As president of the ARK Crisis Staff, the accused exercised de

22 facto authority over the municipal authorities and the police and had

23 substantial influence over the army and paramilitary groups. Through the

24 decisions of the ARK Crisis Staff that can be attributed to him, the

25 accused contributed to the implementations of the aims of the Bosnian Serb

1 leadership in the Autonomous Region of Krajina.

2 After the ARK Crisis Staff was wound up, the accused not only

3 maintained his political power in the Bosnian Krajina but also extended

4 his power at the republic level. He continued to meet with high-ranking

5 military and political officials and discussed issues concerning the

6 implementation of the strategic plan.

7 The Trial Chamber found that the accused made one of his most

8 substantial contributions to the implementation of the strategic plan by

9 means of a propaganda campaign against Bosnian Muslims and Bosnian Croats

10 which he conducted at different stages of his political career. His

11 positions of authority gave him access to the media which he used to make

12 public statements, disseminating fear and hatred between Bosnian Serbs on

13 one hand and Bosnian Muslims and Bosnian Croats on the other. Not only

14 did the accused call for the dismissal of non-Serbs from their jobs, but

15 he also publicly advocated that the non-Serb population should leave the

16 Bosnian Krajina. Moreover, the accused spoke openly against mixed

17 marriages and publicly suggested a campaign of retaliatory ethnicity-based

18 murder.

19 The Trial Chamber is satisfied beyond reasonable doubt that,

20 although the accused's public statements may have been motivated in part

21 by his drive towards self-advancement, they were intentional and had a

22 disastrous impact on people of all ethnicities. They incited Bosnian

23 Serbs to commit crimes and contributed to creating a climate where people

24 were prepared to tolerate the commission of crimes as well as to commit

25 crimes and where well-meaning Bosnian Serbs felt dissuaded and discouraged

1 from extending any kind of assistance to non-Serbs. The non-Serb

2 population of the Bosnian Krajina understood the accused's public

3 statements as direct threats to leave the area under Bosnian Serb

4 occupation, and many of them did so in fear for their lives. A number of

5 witnesses gave evidence that the accused's public statements constituted

6 the main reason why they left the area.

7 The Trial Chamber is additionally satisfied that the accused had

8 detailed knowledge that, during the time and in the area relevant to the

9 indictment, crimes were being committed in the execution or the

10 implementation of the strategic plan.

11 In relation to each mode of liability presented in the indictment,

12 I shall now proceed to underline the following general findings of the

13 Trial Chamber:

14 In order to hold the accused criminally responsible under the

15 institute of joint criminal enterprise, the Prosecution needs to establish

16 a common plan amounting to and involving an agreement between the accused

17 and the physical perpetrators of the crimes in question to commit a crime

18 envisaged in the Statute. The physical perpetrators of the crimes in

19 question are members of the police, the army, and paramilitary

20 organisations. As the Prosecution did not plead a joint criminal

21 enterprise between the accused and the police, the Trial Chamber examined

22 whether there was a joint criminal enterprise between the accused and

23 members of the army and paramilitary organisations. In so doing, the

24 Trial Chamber made reference to the strategic plan.

25 As already stated, the Trial Chamber has found that the accused

1 espoused the strategic plan. Moreover, it is satisfied that many of the

2 relevant physical perpetrators of the crimes in question equally did so

3 and acted towards its implementation. However, the Trial Chamber is of

4 the view that the mere espousal of the strategic plan by the accused on

5 one hand and many of the relevant physical perpetrators on the other hand

6 is not equivalent to an arrangement between them to commit a concrete

7 crime. Indeed, the accused and the relevant physical perpetrators could

8 espouse the strategic plan and form a criminal intent to commit crimes

9 with the aim of implementing the strategic plan independently from each

10 other and without having an understanding or entering into any agreement

11 between them to commit a crime. The Trial Chamber further examined

12 whether an understanding or agreement to that effect between the accused

13 and the relevant physical perpetrators could be inferred from the fact

14 that they acted in unison to implement the strategic plan. Given the

15 physical and structural remoteness between the accused and the relevant

16 physical perpetrators and the fact that the relevant physical perpetrators

17 in most of these cases have not even been personally identified, the Trial

18 Chamber is not satisfied that the only reasonable conclusion that may be

19 drawn from the accused's and the relevant physical perpetrators' concerted

20 action aimed towards the implementation of the strategic plan is that the

21 accused entered into an agreement with the relevant physical perpetrators

22 to commit a crime. Indeed, the Trial Chamber is satisfied that the

23 evidence allows for other reasonable inferences to be drawn.

24 The Trial Chamber is of the view that joint criminal enterprise is

25 not an appropriate mode of liability to describe the individual criminal

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1 responsibility of the accused given the extraordinarily broad nature of

2 this case where the Prosecution seeks to include within a joint criminal

3 enterprise a person who is considered to be remote from the commission of

4 the crimes charged in the indictment as the accused. The Trial Chamber

5 therefore dismissed joint criminal enterprise as a mode of liability in

6 this case.

7 Planning is also dismissed as a mode of liability under Article

8 7(1) of the Statute as the Trial Chamber found that, taking into

9 consideration the individual responsibility of the accused that has been

10 established and to which I will come soon, there is insufficient evidence

11 to conclude that the accused was involved in the immediate preparation of

12 the concrete crimes.

13 Regarding criminal responsibility under Article 7(3) of the

14 Statute, the Trial Chamber found that although the ARK Crisis Staff had de

15 facto authority over the municipal authorities and the police and

16 influence over the army and paramilitary organisations, the accused, as

17 president of the ARK Crisis Staff or in any of his other positions between

18 April and December 1992, did not have effective control over members of

19 the municipal authorities, the police, the army, or paramilitary

20 organisations, which would entail his material ability to prevent or

21 punish the commission of crimes by these individuals. Thus the Trial

22 Chamber dismisses superior criminal responsibility under Article 7(3) of

23 the Statute as a possible mode of liability.

24 The remaining modes of liability under Article 7(1) of the Statute

25 were examined successively for each of the crimes charged in the

1 indictment and the Trial Chamber reached the following conclusions:

2 Regarding wilful killings, the Trial Chamber is satisfied that the

3 ARK Crisis Staff decisions on disarmament between May 9 and 18, 1992,

4 constituted practical assistance to the attacks of the Bosnian Serb forces

5 on non-Serb towns, villages, and areas, and that these decisions were

6 attributable to the accused. The Trial Chamber is further satisfied that

7 the accused was aware that, during these armed attacks, the Bosnian Serb

8 forces would commit a number of crimes, including the crime of wilful

9 killing of a number of non-Serbs, and that the members of the Bosnian Serb

10 forces carrying out the killings in question had the required intent to

11 kill. Throughout the ARK Crisis Staff decisions -- through the ARK Crisis

12 Staff decisions on disarmament, the accused had a substantial effect on

13 the commission of these killings. The Trial Chamber is satisfied that the

14 accused aided and abetted in the killings committed by the Bosnian Serb

15 forces in the context of the armed attacks of the Bosnian Serb forces on

16 non-Serb towns, villages, and areas after May 9, 1992. The Trial Chamber

17 is not satisfied that it has been sufficiently proved that the same ARK

18 Crisis Staff decisions or any of the acts of the accused render him

19 criminally responsible for other killings mentioned in the indictment.

20 The Trial Chamber is not satisfied that the evidence establishes

21 beyond reasonable doubt that the accused was aware that by issuing ARK

22 Crisis Staff decisions on disarmament he would be assisting in the

23 killings on a massive scale such as to amount to the crime of

24 extermination. Nor has it been established beyond reasonable doubt that

25 the accused knew that the members of the Bosnian Serb forces intended to

1 commit killings on a massive scale such as to amount to the crime of

2 extermination.

3 Applying the same reasoning for the acts of torture charged in the

4 indictment as for the acts of wilful killing, the Trial Chamber found that

5 the accused aided and abetted the torture committed by the Bosnian Serb

6 forces in the context of the armed attacks of the Bosnian Serb forces on

7 non-Serb towns, villages, and areas after May 9, 1992, the date when the

8 ARK Crisis Staff issued its first decision on disarmament. In addition,

9 however, the Trial Chamber is satisfied also that the accused aided and

10 abetted the commission of the underlying acts of torture in camps and

11 other detention facilities throughout the Autonomous Region of Krajina by

12 Bosnian Serb forces. It has been established beyond reasonable doubt that

13 with the exception of the Jasenica and Petar Kocic elementary schools, all

14 the camps and detention facilities mentioned in the evidence came into

15 being once the ARK Crisis Staff had been established. There is ample

16 evidence that the establishment of these camps and detention facilities

17 formed an integral part of the strategic plan, that the accused was aware,

18 fully aware, of the nature of these camps and detention facilities, and

19 that detainees were tortured therein. During his mandate as president of

20 the ARK Crisis Staff, not only did the accused not take a stand in public

21 or during ARK Crisis Staff meetings against them, but he adopted a

22 laissez-faire attitude and spoke in public about them in a way which sent

23 the wrong message to those who were committing crimes inside these camps

24 and detention facilities. Therefore, the Trial Chamber is satisfied that

25 his inactivity as well as his public attitude with respect to the camps

1 and detention facilities constituted moral encouragement and support to

2 the members of the Bosnian Serb army and police to continue running these

3 camps and detention facilities in the way described to the Trial Chamber

4 throughout the trial.

5 Turning to the crimes of deportation and forcible transfer, the

6 Trial Chamber is satisfied that the ARK Crisis Staff decisions of May 28

7 and 29, 1992, advocating the resettlement of the non-Serb population,

8 prompted the municipal authorities and the police who implemented them to

9 commit the crimes of deportation and forcible transfer. The Trial Chamber

10 is also of the view that the only reasonable conclusion that may be drawn

11 when the terms of these conditions are considered in the light of the

12 accused's unambiguous statements made repeatedly from early April 1992

13 onwards, calling upon the non-Serb population to leave the Bosnian Krajina

14 and stating that only a small percentage of non-Serbs would be allowed to

15 stay is that -- the only reasonable conclusion is that the decisions could

16 only have been meant as a direct incitement to deport or forcibly transfer

17 the non-Serbs from the territory of the Autonomous Region of Krajina. The

18 Trial Chamber is satisfied that with the exception of the failed attempts

19 of displacing the Bosnian Muslim population of Gornji Agici and Donji

20 Agici and Crna Rijeka in Bosanski Novi on May 24, 1992, the deportations

21 to Karlovac and the forcible transfers to Travnik, originating in the

22 Autonomous Region of Krajina and described in great detail in the

23 judgement, all took place after the adoption of the ARK Crisis Staff

24 decisions previously mentioned. Furthermore, the accused's espousal of

25 the strategic plan, of which the crimes of deportation and forcible

1 transfer formed an integral part, and the implementation of which he

2 coordinated in his position as president of the ARK Crisis Staff

3 demonstrated that he intended to induce the commission of the crimes of

4 deportation and forcible transfer. On that basis, the Trial Chamber found

5 that the accused instigated these forcible transfers and deportation. In

6 addition, the Trial Chamber is also satisfied that the accused aided and

7 abetted the execution of these crimes through his inflammatory and

8 discriminatory public statements. He instigated them also through the

9 decisions on disarmament of the ARK Crisis Staff mentioned previously, and

10 finally, through the ARK Crisis Staff decision of June 12, 1992, which set

11 up the agency for The Movement of People and Exchange in Banja Luka.

12 The Trial Chamber reiterates the reasoning used for the crime of

13 wilful killing for the crime of destruction, namely that the ARK Crisis

14 Staff decisions on disarmament constituted practical assistance to the

15 attacks of the Bosnian Serb forces on non-Serb towns, villages, and areas

16 and that the accused was aware that crimes, including the crime of wanton

17 destruction of cities, towns, and villages or devastation not justified by

18 military necessity would be committed. The Trial Chamber is thus

19 satisfied that the accused aided and abetted in the wanton destruction of

20 cities, towns, and villages or devastation not justified by military

21 necessity committed by the Bosnian Serb forces on non-Serb towns,

22 villages, and areas in Bosanski Novi, Bosanski Petrovac, Celinac, Donji

23 Vakuf, Kljuc, Kotor Varos, Prijedor, Sanski Most, Sipovo, and Teslic after

24 May 9, 1992. With the same reasoning and having examined the evidence

25 carefully, the Trial Chamber is satisfied that the accused aided and

1 abetted the destruction or wilful damage done to institutions dedicated to

2 religion committed by the Bosnian Serb forces in the context of the armed

3 attacks of the same forces on non-Serb towns, villages, and areas in

4 Bosanski Novi, Bosanski Petrovac, Celinac, Donji Vakuf, Kljuc, Kotor

5 Varos, Prijedor, Prnjavor, Sanski Most, Sipovo, and Teslic after May 9,

6 1992.

7 Finally, regarding the crime of persecution, the Trial Chamber has

8 previously established the responsibility of the accused for aiding and

9 abetting certain crimes of wilful killings, torture, destruction and

10 devastation of cities, towns, villages and institutions dedicated to

11 religion as well as deportation and forcible transfer. The accused has

12 also been found guilty for instigating certain incidents of deportation

13 and forcible transfer. The Trial Chamber is further satisfied that the

14 accused aided and abetted persecution with respect to physical violence,

15 rapes, sexual assaults, constant humiliation and degradation, as well as

16 appropriation of property. Furthermore, the Trial Chamber is satisfied

17 that the accused ordered the denial of the fundamental right of employment

18 of Bosnian Muslims and Bosnian Croats in the municipalities mentioned

19 above through a decision of the ARK Crisis Staff of June 22, 1992,

20 providing for the dismissal of virtually all non-Serbs in the Autonomous

21 Region of Krajina, an act which amounts to persecution. Moreover, the

22 conclusion of the Trial Chamber is that the accused aided and abetted

23 persecution with respect to the denial of the right to freedom of movement

24 and the right to proper judicial process of the mentioned ethnic groups.

25 However, the Trial Chamber found that the evidence before it is

1 insufficient to establish the responsibility of the accused for the denial

2 of the right to proper medical care. In relation to all these underlying

3 acts, the Trial Chamber is satisfied that not only the physical

4 perpetrators but also the accused possessed the intent to discriminate

5 against the Bosnian Muslim and Bosnian Croat victims.

6 Sentencing. The Trial Chamber assessed the factors which it

7 considered relevant to an appraisal, a proper appraisal of the gravity of

8 the crimes of which the accused has been found guilty and his

9 responsibility.

10 The Prosecution in this case, considering the gravity of the

11 crimes charged in the indictment, the aggravating factors submitted, and

12 the alleged absence of any significant mitigating factor, claimed that the

13 criminal responsibility of the accused could only be adequately addressed

14 and punished with a sentence of life imprisonment.

15 The Defence put forward a preliminary objection to the absence

16 from the proceedings of a separate and ad hoc sentencing hearing after

17 conviction and submitted that because of this he could not make adequate

18 submissions on sentencing. The Trial Chamber does not agree with this

19 submission and the reasons are given in detail in the judgement. The

20 Defence, however, it must be noted, did make several submissions for the

21 purpose of sentencing, and these are dealt with comprehensively in the

22 judgement, and I will be referring to some of them later on.

23 The Trial Chamber found that the following were relevant

24 aggravating circumstances to which appropriate weight, as indicated in the

25 judgement, was attached when determining the sentence: The position of

1 leadership of the accused, the status and vulnerability of the victims and

2 the impact of the crimes on the victims, the willingness of the accused's

3 participation, the duration of the criminal conduct, and to a lesser

4 extent, as explained in the written judgement, the educational background

5 of the accused.

6 However, the Trial Chamber found that the following were relevant

7 mitigating circumstances to which the appropriate weight indicated in the

8 written judgement was attached when determining the sentence. Some carry

9 significant mitigatory importance, some much less so. These were

10 contributing to the decision to provide shelter to Bosnian Muslims from

11 Celinac, treating all citizens equally in certain instances, voicing

12 concern about some paramilitaries, participating in the decision to arrest

13 members of the Mice group, the family status and age of the accused, his

14 few speeches against profiteering from the armed conflict, his respectful

15 conduct during the course of these proceedings, and his conduct with

16 witnesses testifying against him, in particular one in particular, and

17 finally, his remorse in some individualised instances.

18 Finally, in accordance with the Statute and the Rules, the Trial

19 Chamber took into consideration the general sentencing practice of the

20 courts of the former Yugoslavia, acknowledging that it was not bound by

21 this practice. The Trial Chamber noted that under the Criminal Code of

22 the Socialist Federal Republic of Yugoslavia, the range of penalties

23 existing in 1992 started with a fine, continued with confiscation of

24 property, imprisonment and capital punishment. The maximum term of

25 imprisonment was 15 years except for offences punishable with the death

1 penalty, committed under particularly aggravating circumstances or causing

2 especially grave consequences in which case the maximum term of

3 imprisonment was of 20 years.

4 The Trial Chamber, pursuant to Rule 87(C), decided to impose a

5 single sentence in this case as it reflects better the criminal conduct of

6 the accused which denotes a constant pattern of criminal behaviour

7 occurring within a closed temporal context.

8 And we finally come to the disposition.

9 Radoslav Brdjanin, please rise.

10 For the reasons I summarised above, this Trial Chamber, having

11 heard all the evidence presented by the Prosecution and the Defence, finds

12 you not guilty of count 1, genocide; count 2, complicity in genocide;

13 count 4, extermination as a crime against humanity; and count 10,

14 extensive destruction and appropriation of property not justified by

15 military necessity and carried out unlawfully and wantonly as a grave

16 breach of the 1949 Geneva Conventions.

17 Pursuant to Article 7(1) of the Statute, the Trial Chamber finds

18 you guilty of count 3, persecutions as a crime against humanity,

19 incorporating count 6, torture, count 8, deportation, and count 9,

20 forcible transfer as an inhumane act; count 5, wilful killing as a grave

21 breach of the 1949 Geneva Conventions; count 7, torture as a grave breach

22 of the 1949 Geneva Conventions; count 11, wanton destruction of cities,

23 towns, and villages or devastation not justified by military necessity as

24 a violation of the laws and customs of war; and finally, count 12,

25 destruction or wilful damage done to institutions dedicated to religion as

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1 a violation of the laws and customs of war.

2 We sentence you, Radoslav Brdjanin, to a single sentence of 32

3 years of imprisonment and state that you are entitled to credit for five

4 years, one month, and 26 days as of the date of this judgement, calculated

5 from the date of your deprivation of liberty, that is the 6th of July,

6 1999, together with such additional time as you may serve pending the

7 determination of any appeal.

8 Finally, pursuant to 103(C) of the Rules, you shall remain in the

9 custody of the Tribunal pending the finalisation of arrangements for your

10 transfer to the state where this sentence will be served.

11 The court stands adjourned.

12 --- Whereupon the hearing concluded at 4.10 p.m.

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