Tribunal Criminal Tribunal for the Former Yugoslavia

Page 494

1 3 April 1996

2 [Decision on Prosecutor's Motions]

3 [Open session]

4 JUDGE JORDA: First of all, does everyone hear me?

5 The Trial Chamber made up of Judge Claude Jorda presiding, Judge

6 Elizabeth Odio-Benito, and Judge Fouad Riad, assisted by Mr. Didier

7 Triscos and Mr. Roeland Bos for the Registrar, on this day, the 3rd of

8 April, 1996, amid the review of the indictment pursuant to Rule 61 of the

9 Rules of Procedure and Evidence, Rule 61 proceedings.

10 In a decision dated 7 November 1995, Judge Fouad Riad confirmed

11 the indictment issued by the Prosecutor against Mile Mrksic, Miroslav

12 Radic, Veselin Sljivancanin. On that same day, he issued a warrant of

13 arrest against each of the accused. The warrants were sent to the Federal

14 Republic of Yugoslavia, Serbia and Montenegro, but to date have not been

15 executed. For this reason, the Confirming Judge, having considered in his

16 decision of 6 March 1996 that a reasonable period of time had elapsed

17 since the warrants of arrest were issued invited the Prosecutor to report

18 on the measures he has taken to effect personal service of the

19 indictment. Satisfied that the Prosecutor has acted with diligence in

20 that same decision and pursuant to Rule 61 of the Rules of Procedure and

21 Evidence ("Rules"), the Judge ordered the Prosecutor to submit the case

22 for review to the full panel of Judges of the Trial Chamber.

23 During the review, the Trial Chamber must decide whether there are

24 reasonable grounds for believing that the accused has committed all or any

25 of the crimes charged in the indictment. In order that it might reach its

Page 495

1 decision, the evidence submitted to the Confirming Judge was made

2 available to the Trial Chamber. In addition, the Trial Chamber heard the

3 witnesses called to testify by the Prosecutor during the hearings

4 of 20, 26, 27, and 28 March 1996. The Trial Chamber must also ensure that

5 its jurisdiction at this stage has been established.

6 The use of Rule 61 permits the Tribunal, which does not have its

7 own police force, to react to the failure to execute the warrants of

8 arrest issued against the accused. If the Trial Chamber to which it has

9 been submitted for review reconfirms the indictment, it must issue an

10 international warrant of arrest. The Trial Chamber may also know that the

11 failure to execute the initial warrants of arrest is due to a failure or

12 refusal of a state to which they were sent to cooperate and, through the

13 President of the Tribunal, may inform the Security Council of that

14 failure. Lastly, the Rule 61 proceedings permit public exposure of the

15 evidence produced in support of the indictment. When the victims have

16 been summoned to appear by the Prosecutor, the proceedings allow them to

17 have their voices heard and to become part of history.

18 We will first -- the Chamber will first examine charges and the

19 accused.

20 Starting on 25 August 1991, the city of Vukovar was subjected to a

21 violent offensive led by the JNA, Yugoslav army, which deployed a huge

22 military arsenal against it. In the JNA's ranks were conscripts and

23 Serbian nationalist volunteers. The JNA was apparently responsible for

24 coordinating the activities of various paramilitary groups such as Arkan's

25 Tigers, some of which were local and some of which had come from the

Page 496

1 Serbian republic. To respond to the offensive, resistance was organised

2 in the city. The resistance forces included a reduced number of

3 combatants and had very limited weapons available. The expert witness

4 considered that compared to those of the JNA deployed in Vukovar, the

5 ratio of men was 1:15 in favour of the JNA. In respect of weapons, the

6 ratio was 1:100.

7 Starting on 17 November 1991, while the resistance movement was

8 beginning to crumble, a large number of civilians who had survived the

9 offensive in the cellars of buildings fled in terror to the hospital after

10 having heard that an evacuation would be organised there. Some of the

11 resistance fighters also surrendered at the hospital after laying down

12 their weapons. Vukovar Hospital had been the object of constant shelling

13 and at that moment was overflowing with wounded.

14 On 19 November 1991, under the command of Major Sljivancanin, the

15 JNA surrounded the hospital and captured it.

16 We'll first look at beatings. Both the case file and testimonies

17 heard at the hearing show that on the morning of 20 November 1991, the

18 population of the hospital was brutally evacuated by the JNA, whereas the

19 medical personnel was kept in place by Major Sljivancanin. A group of

20 approximately 300 mainly non-Serbian male patients and other civilians of

21 all ages, and sometimes very young, was selected and assembled in the

22 hospital's rear court. Men were then transported in buses to the JNA

23 barracks and -- in Sajmiste by JNA soldiers under the orders from Major

24 Sljivancanin. When they arrived at the barracks, some of the people were

25 forced to wait in the buses where they were threatened verbally by

Page 497

1 soldiers and members of paramilitary groups. Others were selected by

2 Captain Radic and forced to change buses. As they got off the buses, some

3 of them were struck and beaten with sticks and metal bars.

4 Several hours later, the great majority of men were transported to

5 Ovcara, a former collective farm in the vicinity of Vukovar. According to

6 many testimonies, as they got off the buses, the people were made to pass

7 between two rows of soldiers and members of paramilitary groups who beat

8 them savagely with truncheons and all sorts of blunt instruments such as

9 rifle butts and chains. People using crutches to walk were beaten with

10 their own crutches. They were searched and their property was

11 confiscated. The inhumane treatment in the hangars where they had been

12 confined continued until nightfall.

13 A witness reported the following scene: "The Chetniks were

14 divided into two groups. One was responsible for the beatings and the

15 other merely watched what was happening. A JNA officer was inside with a

16 whistle, and when he saw that one of the groups was tired, he would blow

17 it as a signal to the other group to begin beating. We heard the

18 prisoners screaming. It was horrible."

19 Murders: At the Ovcara farm, heights of violence would be reached

20 characterised both by individual murders committed in the hangar of the

21 farm and by mass murders committed nearby.

22 The indictment submitted to the Trial Chamber contains a list of

23 261 men who have been missing since 20 November 1991, from which the Trial

24 Chamber authorises the Prosecutor to withdraw a name. It seems that the

25 list compiled by the Croatian Commission for Detained and Missing Persons

Page 498

1 identifies most of the men who were executed on 20 November 1991.

2 Murders in the hangar of the farm: Two murders were committed at

3 the Ovcara farm. Kemal Saiti thus died after uninterrupted beatings -

4 violent blows with truncheons and kicks to the face and head - which

5 caused him to bleed from his nose, ears, and mouth.

6 A man who escaped reported the following scene, and I quote: "The

7 moment came when the Chetniks asked whether there were any Albanians, and

8 a man named Kemal Saiti said that he was Albanian. Someone began beating

9 Kemal violently with a truncheon, and when he collapsed on his back, the

10 man kicked him in the face, then head, and then trampled his body. After

11 awhile, Kemal appeared to be dead. He was bleeding from his nose, ears,

12 and mouth, but the man continued beating him for about half an hour."

13 A man named Damjan Samardzic was to suffer comparable torture and

14 a similar fate. Soldiers kicked him with their boots and baseball bats

15 and jumped on his stomach and back causing him to bleed from his nose and

16 mouth. At the same time, a member of the Serbian militia held his head

17 down on the concrete floor until he died.

18 Mass murders: After that torture, serial executions are alleged

19 to have been perpetrated later during the evening of 20 November 1991. At

20 about 1800 hours, JNA soldiers separated the prisoners into groups of 20.

21 Every 15 to 20 minutes a truck took away a group and returned empty.

22 Another group then took its place in the truck.

23 According to the witness statements, including Witness B who

24 succeeded in escaping during one of the transports, the truck left the

25 building and turned onto a paved road leading to Grabovo, a village about

Page 499

1 3 kilometres south-east of Ovcara. A few minutes later, the truck turned

2 left onto a dirt road which went through a field of sunflowers to the left

3 and a wooded area to the right.

4 In light of the estimates of the time and distances between the

5 farm and the site, as well as the description of the roads taken, one

6 place matches the description, the location where Dr. Clyde Snow, an

7 anthropologist and forensics doctor acting as an expert for the Mazowiecki

8 Commission, would, by virtue of the directions given by Witness B,

9 discover a mass grave in October 1992.

10 After preliminary excavations at that site in December 1992, an

11 international forensic team organised by Physicians for Human Rights

12 confirmed the existence of the mass grave in an isolated region south-east

13 of the farming village of Ovcara near Vukovar. In its conclusions,

14 confirmed at the hearing by Dr. Snow, who had directed the work, the team

15 reported that a mass execution had occurred at the site. A bulldozer had

16 been used to clear the undergrowth and to dig a pit in an existing dump,

17 and I quote: "The grave seems to coincide perfectly with the statements

18 of the witnesses indicating that the site was the place patients and

19 medical personnel missing since the evacuation of Vukovar Hospital on 20

20 November 1991 were executed and buried. The fact that two bodies had

21 chains with Catholic crosses, one of which had a little plate bearing the

22 inscription `Bog I Hrvati,' `God and the Croats,' would indicate that the

23 mass grave probably contained the mortal remains of Croats."

24 The international forensics team presented two types of evidence

25 discovered during their investigation which showed that an execution had

Page 500

1 occurred at the site. First, a large concentration of 7.62-millimetre

2 cartridge shells of the type used for Kalashnikov automatic pistols was

3 discovered in the bushes north-east of the mass grave. The second type of

4 indication, which related to the first, were traces of bullets on the

5 trees south-east of the site.

6 When questioned by the Prosecutor about the contents of the mass

7 grave, Dr. Snow stated that on the basis of a test sample of the trench,

8 skeletons discovered and other recognised scientific indicators,

9 specifically the size of the mass grave and volume of the human body, the

10 pit could have held about 350 bodies.

11 Information supplied by former JNA soldiers who participated or

12 assisted in all or some of the acts for which charges have been brought

13 support the allegations of mass murders.

14 On 20 November 1991, soldiers in the unit under the command of

15 Miroslav Radic said in his presence -- with a unit under Miroslav Radic,

16 that, I quote: "All those who had been taken prisoner there had been

17 killed. They were laughing about it and celebrated what had happened."

18 In the presence of Major Veselin Sljivancanin and on his orders,

19 and I quote: "The men were killed, thrown into pits, and covered with a

20 type of powder used to hasten decomposition, after which logs were placed

21 over each layer."

22 The executions seem, in fact, to have been premeditated and

23 planned, and the place where they are said to have occurred was arranged

24 for the occasion. Several days before the fall of Vukovar, a JNA

25 Engineering Unit equipped with bulldozers and other machines was at work

Page 501

1 at the Ovcara site. The same machine noises, from the hangar of the farm,

2 would be heard again on 20 November 1991. According to a certain soldier

3 present at the site and reported by one of the witnesses, the bulldozers

4 were preparing mass graves in which victims would later be buried.

5 We will now look into the position of the accused and type of

6 responsibility ascribable to them.

7 The indictment and the exhibits in the file on which it is based

8 highlight the fact that the responsibility of the accused for the acts for

9 which they have been charged could be established not only because of

10 their position of authority but also because of their direct participation

11 in the commission of those acts.

12 It has, in fact, been established that the acts charged were

13 carried out by the Guards Brigade under the command or control of the

14 accused acting in various capacities and in concert. Colonel Mile Mrksic

15 was the Commander of the Guards Brigade whose territorial jurisdiction

16 extended to the first military district which answered to Belgrade and

17 covered the entire Vukovar zone. Although the general offensive against

18 Vukovar was not his responsibility alone, his position at the head of the

19 Guards Brigade permits ascribing a major responsibility to him.

20 Captain Miroslav Radic was head of a special infantry unit of the

21 Guards Brigade. Briefing his troops about their mission in mid-November

22 1991, he made clear that they were to take control of the area extending

23 from Petrova Gora, a suburb of Vukovar, to the Vuka River.

24 Under Colonel Mile Mrksic's authority was Major Veselin

25 Sljivancanin, who was put in charge of the direct operational command of

Page 502

1 the JNA forces in the immediate vicinity of the city of Vukovar.

2 Responsible for the security of the Guards Brigade, Major Sljivancanin

3 was also the commander of a military police battalion that was part of the

4 brigade.

5 Throughout the conduct of the operations, the accused worked and

6 operated in close collaboration. During the day, Captain Radic and

7 Major Sljivancanin were together most of the time. During the evening,

8 Major Sljivancanin would return to Colonel Mrksic's headquarters in

9 Negoslavci where both -- Negoslavci, where both of them would spend the

10 night.

11 That Captain Radic and Major Sljivancanin were present at the

12 Vukovar Hospital on 20 November 1991 is abundantly attested to both by the

13 statements of the witnesses and the video images submitted to the Trial

14 Chamber.

15 On 17 November 1991, at the hospital, together with Captain Radic

16 and Major Sljivancanin, Colonel Mrksic allegedly met with ICRC

17 representative about the evacuation of the hospital. Specifically under

18 the general supervision of Major Sljivancanin, people at the hospital were

19 selected in accordance with various criteria and then transferred by bus

20 to Ovcara. One witness declared, and I quote: "When I arrived at the

21 hospital, I realised that there were three groups: a group of Serbs, a

22 group of non-Serbian women and children, and a third grouped comprised

23 exclusively of men."

24 Sljivancanin gave all the instructions as to the number of lines

25 that were to be formed, the categories of people supposed to join the

Page 503

1 lines, and the moment people were to get onto the bus. All the

2 testimonies match in their assertion that, and I quote:

3 "Major Sljivancanin was responsible for everything that happened at

4 Vukovar Hospital. He behaved like a commander and took the decisions."

5 Furthermore, as regards executions near Ovcara, according to the

6 statements of soldiers who took part in the massacres reported by

7 Witness A, and I quote: "Major Sljivancanin was present when the murders

8 were committed, and he was the one who gave the orders."

9 Already by the morning of 20 November 1991, at the hospital, Major

10 Sljivancanin clearly referred to the fate awaiting those who had been

11 transferred. In answer to the question of one of the witnesses on the bus

12 about where they were going, he asserted: "Those people" -- and I quote:

13 "Those people over there will be swallowed up by the darkness in broad

14 daylight," an expression which means that nobody will ever see them again

15 and that all will disappear.

16 Other information submitted to the Trial Chamber cites the

17 presence of Colonel Mile Mrksic in the hangar of the farm at Ovcara. He

18 allegedly organised the torture inflicted on the prisoners by the Serbian

19 paramilitary militia members who were present.

20 After having looked into the accusations and the position of the

21 accused, the Tribunal has looked into the competence of the Tribunal

22 pursuant to Articles 2, 3, and 5 of the Statute, which are the basis for

23 the indictment.

24 During the public review of the indictment as part of the Rule 61

25 public hearings, the Trial Chamber must verify that its competence has

Page 504

1 been established at this stage. The Prosecutor holds that the acts

2 charged followed in the jurisdiction of the Tribunal pursuant to

3 Articles 2, 3, and 5 of the Statute.

4 First Articles 2 and 3. Article 3 of the statute non-exhaustively

5 enumerates violations of the laws or customs of war which the Tribunal has

6 the power to prosecute. In its decision of jurisdiction of 2 October

7 1995, the Appeals Chamber stipulated that Article 3 refers to a broad

8 category of offences and laid down four conditions which must be satisfied

9 for a violation to fall within the purview of Article 3. The violation

10 must constitute an infringement of the rule of international humanitarian

11 law. The rule must be customary in nature or, if it is part of treaty

12 law, certain required conditions must be met. Furthermore, the violation

13 must be "serious," that is, it must contravene a rule protecting important

14 values and must involve grave consequences for the victim. Lastly, the

15 violation of the Rule must entail the individual criminal responsibility

16 of the person breaching the Rule.

17 In the indictment submitted to the Trial Chamber, the Prosecutor

18 characterised the beatings inflicted as constituting cruel treatment.

19 Furthermore, the Prosecutor characterised the alleged execution of the

20 260 men as murder. The acts so characterised constitute violations of

21 Article 3 common to the Geneva Conventions, and the violations themselves

22 are serious violations of the laws or customs of war covered by Article 3

23 of the Statute; paragraph 89 of the above-cited decision of the Appeals

24 Chamber.

25 Article 3 of the Statute may be taken to cover all violations of

Page 505

1 international humanitarian law other than the grave breaches of the Geneva

2 Conventions falling under Article 2 of the Statute. Article 3 applies

3 whether the conflict is international or internal.

4 Article 2 of the Statute states that the Tribunal, and I quote:

5 "Shall have the power to prosecute persons committing or ordering to be

6 committed grave breaches of the Geneva Conventions of 12 August 1949."

7 The acts enumerated in these provisions are committed against persons or

8 property protected under provisions of the relevant Convention.

9 The above-cited decision of the Appeals Chamber also stipulates

10 that, and I quote: "The offences under Article 2 can be prosecuted when

11 perpetrated against persons or property regarded as `protected' by the

12 Geneva Conventions under the strict conditions set out by the convictions

13 themselves," and concludes that Article 2 of the Statute, and I quote:

14 "Only applies to offences committed within the context of international

15 armed conflicts"; paragraphs 81 and 84 of the decision of the Appeals

16 Chamber.

17 In the Article, the reference to the notion of protected persons

18 or property covers the persons and objects mentioned in Articles 13, 19,

19 24 through 26, 33 through 35 of the Geneva Convention I; Articles 13, 22,

20 24, 25, 27, 36, 37 of Geneva Convention II; Article 2 of Geneva

21 Convention III; and Articles 4, 18 through 22, 33, 53, 57 of Geneva

22 Convention IV.

23 The Prosecutor specified in the indictment that the beatings

24 inflicted on 260 men after they had been transported from Vukovar Hospital

25 constitute the grave breach defined as wilfully causing great suffering;

Page 506

1 Article 2(C) of the Statute. He also specified that the alleged execution

2 of the 260 men at a site between Ovcara and Grabovo and the murders

3 committed in a hangar at Ovcara constitute the grave breach of wilful

4 killing; Article 2(A) of the Statute.

5 In respect of the general conditions for application of Article 3

6 of the Statute, all the testimonies indicated there at the times indicated

7 in the indictment, the Vukovar region was the theatre of an armed

8 conflict. During the same period, the alleged victims of the beatings and

9 executions were individuals who had not actively participated in the

10 hostilities, such as wounded or uninjured civilians and wounded or

11 uninjured members of the Croatian defence forces who had laid down their

12 arms.

13 The general conditions for application of Article 2 of the Statute

14 are the existence of an international armed conflict and the

15 classification of victims as protected persons as defined by the relevant

16 Geneva Convention. The acts charged in the indictment occurred after the

17 declaration of independence of Croatia had gone into effect on 8 October

18 1991, while the city of Vukovar was being subjected to an attack by the

19 JNA. According to the statement of expert witness Dr. James Gow at the

20 hearing, by the end of August 1991, the JNA had begun acting in the

21 interests of the Serbian republic. In addition, the Trial Chamber noted

22 that according to Dr. Gow, and I quote: "The Yugoslav Federation ceased

23 to exist on 15 May 1991, which is the date that the system of appointing a

24 chief of the collective presidency of the Federative Socialist Republic of

25 Yugoslavia came apart."

Page 507

1 The 260 men taken from the Vukovar Hospital were, therefore,

2 either civilians or medical personnel, wounded persons, and other persons

3 falling within the categories of protected persons as defined in the four

4 Geneva Conventions of 1949.

5 With regard to the charge of ill-treatment stated in Articles 2

6 and 3, the majority of the witnesses cite beatings inflicted on them while

7 they were passing through a double line of Serbs or members of Serbian

8 paramilitary groups as they entered the hangar at Ovcara. The arrested

9 people were also beaten inside the hangar. Basing itself on all the

10 testimonies presented to it as described above in paragraph 6 of this

11 decision, the Trial Chamber considers that the approximately 260 persons

12 transferred from Vukovar Hospital were subjected intentionally to great

13 suffering.

14 With regard to the charge of murder under Articles 2 and 3 of the

15 Statute, the evidence submitted to this Trial Chamber and, in particular,

16 the statements of the witnesses during the investigation of the hearing,

17 which have been analysed in paragraphs 8 to 14 above, indicate that two

18 persons were killed in the hangar and that the vast majority of

19 individuals detained at Ovcara were transported in groups to a nearby site

20 where they were apparently executed.

21 The Trial Chamber now will look at competence as defined under

22 Article 5.

23 As the basis for the competence of the Tribunal, the Prosecutor

24 cites Article 5, Crimes Against Humanity. Pursuant to this Article:

25 "The International Tribunal shall have the power to Prosecutor

Page 508

1 persons responsible for the following crimes when committed in armed

2 conflict, whether international or internal in character, and directed

3 against any civilian population:

4 "(a) murder;

5 "(b) extermination;

6 "(c) enslavement;

7 "(d) deportation;

8 "(e) imprisonment;

9 "(f) torture;

10 "(g) rape;

11 "(h) persecutions on political, racial, and religious

12 grounds;

13 "(i) other inhumane acts."

14 In its decision of 20 October 1995 in the Nikolic case, this Trial

15 Chamber specified in what context criminal acts listed in Article 5 must

16 fall in order for them to be characterised as crimes against humanity.

17 Criminal acts must, therefore, have as their object any civilian

18 population. In the report which proposed the drafting of the Statute of

19 the Tribunal and which was approved in Security Council resolution 827,

20 the Secretary-General stated, and I quote: "Crimes against humanity refer

21 to inhumane acts of a very serious nature such as wilful killing, torture

22 or rape, committed as part of a widespread or systematic attack against

23 any civilian population on national, political, ethnic, or religious

24 grounds."

25 Although according to the terms of Article 5 of this Tribunal, the

Page 509

1 combatants, in the traditional sense of the term, cannot being victims of

2 a crime against humanity, this does not apply to individuals who, at one

3 particular point in time, carried out acts of resistance. As the

4 commission of experts pursuant to Security Council resolution 780 noted,

5 "It seems," and I quote: "that Article 5 applies first and foremost to

6 civilians, meaning people who are not combatants. This, however, should

7 not lead to any rapid conclusions concerning people who at one particular

8 point in time did bear arms. Information of the overall circumstances is

9 relevant for the interpretation of the provision in a spirit consistent

10 with its purpose."

11 This conclusion is supported by case law. In the Barbie case, the

12 French Court of Cassation said that, and I quote: "Inhumane acts and

13 persecution which, in the name of a state practising a policy of

14 ideological hegemony, were committed systematically or collectively not

15 only against individuals because of their membership in a racial or

16 religious group but also against the adversaries of that policy whatever

17 the form of the opposition," could be considered a crime against

18 humanity. Court of Cassation, 20 December 1985 and 26 November 1986.

19 Crimes against humanity are to be distinguished from war crimes

20 against individuals, and, particularly, they must be widespread or

21 demonstrate a systematic character. However, as long as there is a link

22 with the widespread or systematic attack against a civilian population, a

23 single act could qualify as a crime against humanity. As such, an

24 individual committing a crime against a single victim or a limited number

25 of victims might be recognised as guilty of a crime against humanity if

Page 510

1 his acts were part of the specific context identified above.

2 The Trial Chamber considers that the indictment submitted to it

3 shows first and foremost that a crime against humanity was committed. The

4 beatings and executions ascribed to the three accused indeed seem to have

5 been perpetrated under circumstances which are characteristic of the crime

6 against humanity.

7 The victims of these acts were mainly non-Serbian men, patients at

8 the hospital, civilians, or resistance fighters who had laid down their

9 arms. These events seem to be part of a widespread and systematic attack

10 against the civilian population of the city of Vukovar.

11 The facts presented at the hearings brought out the fact that

12 starting in the summer of 1991, the city of Vukovar had been subjected to

13 a massive land, naval, and air offensive by the forces of the JNA.

14 Starting with the end of August 1991, the city was intensely shelled for

15 almost three months. After the attack which killed many civilians and

16 resistance fighters and during which the civilian population had sought

17 shelters in the cellars of the buildings, the women and children were

18 deported en masse whereas the men were arrested. More than a thousand of

19 them are still missing.

20 According to the expert witness Dr. Gow, the JNA attack on Vukovar

21 was intended, and I quote: "to occupy Vukovar," and another quote: "and

22 to expel the non-Serbian and disloyal populations from the city." The

23 attack was an example, and I quote, "of what was called ethnic cleansing,

24 that is, the expulsion of the civilian populations carried out as a way of

25 seizing the region and establishing the borders of the territories which

Page 511

1 were to be part of the Serbian republic." The attack on Vukovar was part

2 of a campaign carried out at several places on Croatian territory.

3 The Trial Chamber noted the words of the Prosecutor who said

4 that: "From the very outset, the events in Vukovar can, without a doubt,

5 be classified as planned ethnic cleansing which the sowed seeds of the

6 genocide in the conflict in the former Yugoslavia."

7 In that respect, the Trial Chamber also notes that the acts

8 charged in the indictment submitted to it constitute only one aspect of a

9 broader operation including inter alia the shelling, the siege, the

10 capture of Vukovar, the deaths and disappearances of individuals, and the

11 massive expulsions of the civilian population which followed.

12 The evidence produced during the hearings, particularly the

13 televised images which were shown, brought out the fact that the military

14 and political responsibilities of the operation derive from a very high

15 level of authority. The Secretary of Defence of the Serbian authorities

16 and chief of the JNA, General Kadijevic, in person congratulated the main

17 participants of the operations at Vukovar, among whom was Colonel Mrksic.

18 According to the expert witness, the attitude of that army can only be

19 explained by the existence of some sort of political command.

20 The Trial Chamber also noted the fact that the Prosecutor asserted

21 during the hearing that he was continuing his investigations into the

22 entire transaction carried out in the Vukovar region starting in the

23 summer of 1991.

24 In light of all of the above, the Trial Chamber considers that

25 there are reasonable grounds for believing that Mile Mrksic, Miroslav

Page 512

1 Radic, and Veselin Sljivancanin have committed the crimes charged in the

2 indictment, crimes which, pursuant to Articles 2, 3, and 5 of the Statute,

3 fall under the jurisdiction of the Tribunal. In accordance with the

4 provisions of Rule 61 of these Rules, there are grounds for reconfirming

5 all the counts in the indictment against them and for issuing

6 international warrants of arrest which will be sent to all the states. In

7 addition, the Trial Chamber considers that the warrants of arrest must be

8 transmitted to the Multinational Military Implementation Force, IFOR,

9 deployed on the territory of Bosnia and Herzegovina pursuant to the Dayton

10 Agreements which were signed in Paris on 14 December 1995.

11 At present, the Chamber will examine the specific point of the

12 failure of the Federal Republic of Yugoslavia's duty to honour its

13 responsibilities for cooperation with the Tribunal.

14 After the initial confirmation of the indictment submitted to this

15 Trial Chamber, on 7 November 1995, Judge Riad issued three warrants of

16 arrest for Mile Mrksic, Miroslav Radic, and Veselin Sljivancanin which

17 were sent to the government of the Federal Republic of Yugoslavia. The

18 warrants were transmitted by the Registrar of the Tribunal to diplomatic

19 representatives of that state in the Netherlands on 8 November 1995.

20 Furthermore, at the request of the Prosecutor, on 23 January 1996, the

21 Registrar asked those representatives to ensure that, in accordance with

22 the provisions of Rule 60 of the Rules, the indictment was published in

23 newspapers having wide circulation in that country.

24 To date, the above-cited warrants of arrest have not been executed

25 by the FRY. That state has not informed the Registrar of the Tribunal of

Page 513

1 the reasons for its failure to execute the warrants of arrest and, in

2 consequence, has not honoured its obligation to cooperate as stipulated in

3 Rule 59(A) of the Rules of the Tribunal.

4 Moreover, as already indicated in paragraph 35 above, after the

5 events at Vukovar, Colonel Mrksic was congratulated by General Kadijevic,

6 Secretary of Defence and Chief of Staff of the JNA. The Prosecutor

7 asserted that Colonel Mrksic received a promotion in the army and became

8 military commander of the army of the Republic of Serbian Krajina. He is

9 alleged to be in Belgrade today. Major Sljivancanin allegedly was also

10 promoted and is currently said to be in Belgrade at the Belgrade Military

11 Academy. Captain Radic is allegedly still serving in the army of the

12 Federal Republic of Yugoslavia and is said to be living in Belgrade.

13 During the hearing, the Prosecutor affirmed that the accused, and

14 I quote: "Hide behind the shelter of the government of the Federal

15 Republic of Yugoslavia that sent them there, to Vukovar, and that it still

16 seeks to protect them." In his words, and again I quote: "When a

17 government gives refuge and support to criminals, in the eyes of the

18 world, that government too then becomes criminal, and that is exactly what

19 the Belgrade government has done in this case."

20 In light of all the above, the Trial Chamber considers that the

21 failure to execute the warrants of arrest issued against Mile Mrksic,

22 Miroslav Radic, and Veselin Sljivancanin can be ascribed to the refusal of

23 the Federal Republic of Yugoslavia to cooperate with the Tribunal. It so

24 certifies for the purpose of notifying the Security Council.

25 Disposition: Having regards to Rules 59 bis and 61 of the Rules

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1 of Procedure and Evidence; having regard to the confirmation of the

2 indictment by Judge Riad on 7 November 1995 and the warrants of arrest

3 issued on that same day; having regard to the decision of 6 March 1996 in

4 which Judge Riad ordered the Prosecutor to refer the case to the Trial

5 Chamber; having heard the Prosecutor's observations and the statements of

6 the witness during the hearings, the hearings which were held on the 20th,

7 the 26th, the 27th, and 28th of March, 1996 at the seat of the Tribunal,

8 the Trial Chamber, ruling unanimously, expunges the name of Goran

9 Edelinski from the list of the alleged victims contained in the

10 indictment; states that there are sufficient grounds for believing that

11 Mile Mrksic, Miroslav Radic, and Veselin Sljivancanin committed the

12 offences for which they have been accused in the indictment of 26 October

13 1995; confirms all six counts of the indictment; issues an international

14 warrant of arrest for Mile Mrksic, Miroslav Radic, and Veselin

15 Sljivancanin; entrusts the President of the Tribunal with notifying the

16 Security Council thereof in accordance with the procedure of Rule 61(E);

17 states that the warrants shall be transmitted to all states and if

18 necessary to the Implementation Force; notes and certifies that the

19 failure to effect service of the indictment was due to the Federal

20 Republic of Yugoslavia's refusal to cooperate with the Tribunal which it

21 therefore -- and done in French and English, the French version being

22 authoritative; this 3rd day of April, 1996; The Hague; The Netherlands at

23 the moment that this hearing is concluded.

24 I would like to thank all the interpreters who have assisted us

25 during these long -- these long hours of the hearing, as well as the

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1 people who work with the victims and the witnesses, who have worked to

2 ensure the anonymity of all the witnesses who were willing to come to

3 testify for the hearing, and now the Court stands adjourned.

4 --- Whereupon the proceedings adjourned.