1 Friday, 30 June 2006

2 [Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.31 p.m.

6 JUDGE AGIUS: Madam Registrar, could you call the case, please.

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

8 IT-03-68-T, the Prosecutor versus Naser Oric.

9 JUDGE AGIUS: I thank you, Madam Registrar, and good afternoon to

10 you, too.

11 Mr. Oric. Mr. Oric, good afternoon to you. I want to make sure

12 that you can follow the proceedings in a language that you can understand.

13 THE ACCUSED: [Interpretation] Good afternoon, Your Honours, ladies

14 and gentlemen. Yes, I can follow the proceedings in my native language.

15 JUDGE AGIUS: I thank you.

16 For the record, my name is Carmel Agius, and I am presiding. To

17 my right I have Judge Hans Hendrik Brydensholt from the Kingdom of

18 Denmark; to my left, I have Judge Professor Albin Eser from Germany.

19 I come now to appearances.

20 Appearances for the Prosecution.

21 MS. SELLERS: Good afternoon, Your Honours. I am Patricia Sellers

22 on behalf of the Prosecution. With me today are co-counsel, Mr. Gramsci

23 Di Fazio, Mr. Jose Doria, and Ms. Donnica Henry-Frijlink is our case

24 manager.

25 Good afternoon to the Defence.

1 JUDGE AGIUS: I thank you, Madam Sellers, and good afternoon to

2 you, too, and your team.

3 Appearances for Naser Oric.

4 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours. Good

5 afternoon to my colleagues from the Prosecution. My name is Vasvija

6 Vidovic. Together with John Jones, I represent the Defence of Mr. Oric.

7 We have our legal assistants, Ms. Jasmina Cosic, Ms. Adisa Mehic, and

8 Mr. Geoff Roberts.

9 JUDGE AGIUS: I thank you, Madam Vidovic, and good afternoon to

10 you, too.

11 Are there any preliminary matters you would like to raise before

12 we proceed with the summary of the Judgement? I see none. I thank you.

13 And we are therefore proceeding with the summary.

14 Trial Chamber II of the International Criminal Tribunal for the

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

16 of Naser Oric. This case deals with crimes of murder and cruel treatment

17 of prisoners and of wanton destruction of cities, towns, or villages

18 alleged to have happened in Srebrenica in 1992 and 1993 for which the

19 accused was indicted way back on 13th March 2003.

20 The accused stood trial for the following charges: First, under

21 Count 1, he is charged with individual criminal responsibility under

22 Article 7(3) of the Statute of the Tribunal, for murder as a violation of

23 the laws or customs of war pursuant to Article 3 of the Statute. Under

24 Count 2, the accused is charged with individual criminal responsibility

25 under Article 7(3) of the Statute for cruel treatment as a violation of

1 the laws or customs of war pursuant to Article 3 of the Statute.

2 The Prosecution never alleged that these crimes of murder and

3 cruel treatment were committed by the accused, but only accused him

4 pursuant to Article 7(3) of the Statute as being responsible for these

5 crimes committed by his subordinates while he was holding a position of

6 superior authority. More specifically, the imputed criminal

7 responsibility of the accused consists in the alleged failure on his part

8 to take necessary and reasonable steps to prevent or to punish the crimes

9 of his subordinates.

10 Second, under Count 3 the accused is charged with individual

11 criminal responsibility, again under Article 7(3) of the Statute, for

12 wanton destruction of cities, towns, or villages, not justified by

13 military necessity, as a violation of the laws or customs of war pursuant

14 to Article 3(b) of the Statute of this Tribunal in relation to all the

15 attacks that I will be mentioning. Here too, the alleged responsibility

16 is that of a superior for having failed to take the necessary and

17 reasonable measures to prevent these crimes.

18 Finally, under Count 5, the accused is charged with individual

19 criminal responsibility under Article 7(1) of the Statute for wanton

20 destruction of cities, towns, or villages not justified by military

21 necessity as a violation of the laws or customs of war pursuant to

22 Article 3(b) of the Statute in relation to some of the attacks; whereas,

23 in Count 3 the accused is charged with responsibility pursuant to

24 Article 7(3) of the Statue for crimes committed by his subordinates while

25 he was holding a position of superior authority. Here in Count 5 the

1 charge is brought under Article 7(1) of the Statute and alleges that the

2 accused instigated as well as aided and abetted through acts and omissions

3 the commission of these crimes.

4 Initially, the accused was also charged with plunder of public or

5 private property pursuant to Article 7(3) and 7(1) of the Statute. Those

6 were respectively Counts 4 and 6 of the indictment. However, in its

7 Rule 98 bis decision of 8th June 2005, the Trial Chamber unanimously

8 acquitted the accused of these charges upon reaching the conclusion that

9 the Prosecution had failed to adduce evidence capable of supporting the

10 conviction of the accused under the same two counts.

11 During the trial proceedings, which commenced on the 6th October,

12 2004 and ended on 10th April 2006, the Trial Chamber was confronted with a

13 large amount of evidence consisting of testimony and documents. It sat

14 196 trial days, during which it had the viva voce evidence of 50

15 Prosecution witnesses, 29 Defence witnesses, and one witness called by the

16 Trial Chamber. In total, 625 and 1024 exhibits were tendered into

17 evidence by the Prosecution and by the Defence respectively.

18 For the purpose of this hearing, we shall briefly summarise the

19 Trial Chamber's findings and the underlying reasons for them. We

20 emphasise, however, that this is only a summary and that it does not in

21 any way form part of the Judgement of the Trial Chamber. The only

22 authoritative account of the findings of the Trial Chamber is in a written

23 Judgement which will be available to the parties after this hearing is

24 concluded. The public can equally consult it on the web site of the

25 Tribunal, once this hearing is over.

1 We shall now deal -- give you some background of the case. Bosnia

2 and Herzegovina was one of the -- of six constituent republics of the

3 former Yugoslavia. In the early 1990s, tensions increased between the

4 country's different ethnic groups. And by April 1992, when armed conflict

5 broke out in Bosnia and Herzegovina, the Bosnian Serb side heavily relied

6 on the Serb-dominated JNA, the Yugoslav People's Army, and was thus

7 militarily far superior. By contrast, the Bosnian Muslims found

8 themselves insufficiently prepared for the conflict, as they had neither

9 the structures nor the logistics to match the might of the Bosnian Serb

10 forces.

11 Reflective of the overall situation in Bosnia and Herzegovina,

12 tensions broke out also and intensified in Srebrenica. Prior to the

13 outbreak of the conflict, approximately three-quarters of the 37.000

14 inhabitants of Srebrenica municipality were Bosnian Muslims and

15 one-quarter was Bosnian Serbs.

16 During the early months of 1992, Serb paramilitaries arrived in

17 the Srebrenica area and began, with the help of the JNA, to distribute

18 arms and military equipment to the local Bosnian Serb population. On

19 18 April 1992, Srebrenica was forcibly taken over by the Bosnian Serbs.

20 Madam Usher will now put on the ELMO an aerial photo of Srebrenica

21 town, which will give you an impression of -- a visual impression of the

22 town itself, and with an indication of some of the landmarks that I will

23 be referring to as I proceed with this summary.

24 So on the 18th of April, 1992, Srebrenica was forcibly taken over

25 by the Muslim -- Bosnian Serbs after most of its Bosnian Muslim

1 inhabitants had fled. However, sporadic resistance from small groups of

2 Bosnian Muslim men inflicted losses of the Bosnian Serb side. After one

3 of their leaders was killed in an ambush on the 8th of May, 1992, the Serb

4 forces retreated from Srebrenica leaving a lot of destruction behind, and

5 the Bosnian Muslims returned to their town.

6 Although they had retaken Srebrenica, the town itself remained

7 encircled by Serb forces. Between June 1992 and March 1993, Srebrenica

8 and other isolated patches of Bosnian Muslim-held land in the area were

9 subjected to Serb military assaults, resulting in a great number of

10 refugees and casualties. During this time, a number of Bosnian Serb

11 villages and hamlets were raided by Bosnian Muslims, mainly in search of

12 food, but also to acquire weapons and military equipment. In late January

13 or early February 1993, the Bosnian Serbs started a major offensive

14 against Muslim-held territory in the area, taking over many villages and

15 considerably reducing the overall size of the Srebrenica enclave. This is

16 referred to in the Judgement as the Serb winter offensive.

17 In the second half of 1992 and in early 1993, several tens of

18 thousands of refugees arrived in and lived crammed inside the town of

19 Srebrenica and its surrounding area. Conditions of life in Srebrenica

20 were dire and horrid. There was a constant and acute shortage of food,

21 bordering on starvation, and hygienic conditions were appalling. In the

22 winter people were living in the streets in freezing temperatures. The

23 situation had deteriorated dramatically when, in March 1993, an UNPROFOR

24 delegation headed by French General Philippe Morillon succeeded in

25 bringing most of the fighting to a halt and to secure some humanitarian

1 relief. In April 1993, Srebrenica was declared a safe area by the

2 Security Council of the United Nations. In the spring of 1995, the

3 accused was called to Tuzla and did not return to Srebrenica. The

4 subsequent fate of Srebrenica has been the subject matter of other

5 Judgements of this Tribunal and has not been dealt with in this case.

6 I'll deal now with the structure of the Srebrenica military and

7 civilian authorities.

8 By 18th April 1992, the day Srebrenica fell to the Serbs, nearly

9 all representatives of the municipal authorities had left town. After

10 Srebrenica was re-captured by Bosnian Muslims in May 1992, a pressing need

11 was felt to organise an effective defence. On 20th May 1992, an informal

12 group of Bosnian Muslim men, who had already set up individual fighting

13 groups in the area, met in the nearby hamlet of Bajramovici to establish

14 the Srebrenica TO staff. The accused, who was present during this

15 meeting, was elected as commander. His employment was subsequently

16 confirmed by Sefer Halilovic, chief of the Supreme Command staff of the

17 Army of the Republic of Bosnia and Herzegovina, and by Alija Izetbegovic,

18 the president of the Republic of Bosnia and Herzegovina. On the 3rd of

19 September, 1992, the Srebrenica TO staff was renamed Srebrenica armed

20 forces staff. During this time and thereafter, meetings were held

21 regularly in an attempt to achieve cohesive military activity.

22 Until demilitarisation in April 1993, military authority in and

23 around Srebrenica was never incorporated under a single unitary command.

24 During this period, initiatives such as the creation of the -- of a

25 subregion and a so-called Drina Division were conceived, both intended to

1 group together Bosnian Muslim fighters in the municipalities of

2 Srebrenica, Zvornik, Vlasenica, and Bratunac, with a view to improving

3 defence capabilities. However, the subregion never materialised and the

4 so-called Drina Division did little to bring together the various fighting

5 groups operating in the area. In the spring of 1992, fighting groups had

6 been formed on territorial bases and local leaders were chosen for their

7 personal qualities, such as courage and achievement. Consequently, a

8 number of them, including Akif Ustic, Hakija Meholjic, Ahmo Tihic, and

9 Ejub Golic, to name a few, asserted independence in the early days of the

10 conflict and persisted in this attitude throughout the period relevant to

11 the indictment.

12 The Srebrenica armed forces also lacked the characteristics of a

13 fully organised army. With few exceptions, they lacked weapons and

14 uniforms, and fighters, for the most part, resided with their families or

15 in make-shift accommodation. Communications, both within Srebrenica and

16 beyond were greatly impaired by the unavailability of adequate equipment,

17 lack of electricity and the severing of phone lines. In the summer of

18 1992, authorities were established in Srebrenica town in an attempt to

19 restore law and order and to give some sense of normalcy to life in a

20 besieged and isolated enclave. On the 1st of July, 1992, the Srebrenica

21 military police were established by the Srebrenica TO staff and Mirzet

22 Halilovic was appointed its commander. He remained in this position until

23 the 22nd of November, 1992, when he was replaced by Atif Krdzic. Also on

24 1st July 1992, the Srebrenica War Presidency was created, assuming all

25 competencies of the pre-war Municipal Assembly, and this was envisaged to

1 be the highest governmental organ on the territory of Srebrenica. Because

2 individuals were often members of both the War Presidency and the armed

3 forces staff and attended meetings where issues of both military and

4 civilian nature were discussed, there emerged a grey area where

5 jurisdiction and hierarchy between the two institutions became a matter of

6 disagreement and friction. However, it became generally accepted that the

7 Srebrenica War Presidency was the highest authority in Srebrenica whilst

8 the armed forces staff gradually asserted its own jurisdiction.

9 The Trial Chamber assessed the crimes charged in the indictment

10 and the responsibility of the accused against this very specific backdrop.

11 We'll deal now with Counts 1 and 2 of the indictment, that is as

12 they are called in the indictment, murder and cruel treatment. We'll deal

13 first with the law, with the legal aspects.

14 Regarding the crime of murder, the Prosecution was required to

15 prove the following elements beyond reasonable doubt: First, that the

16 person alleged to have been killed in the indictment is indeed dead;

17 second, that the death was caused by an act or an omission,

18 notwithstanding an obligation to act, of the accused, or by a person for

19 whose acts or omissions the accused bears criminal responsibility; and

20 third, the act or omission was committed with an intent to kill or inflict

21 grievous bodily harm or serious injury in the knowledge and with the

22 acceptance that such act or omission was more likely than not to cause

23 death.

24 Regarding the crime of cruel treatment, the Prosecution was

25 required to prove the following elements beyond reasonable doubt: First,

1 an act or omission notwithstanding an obligation to act, of the accused or

2 of a person for whose acts or omissions the accused bears criminal

3 responsibility, causing serious mental or physical suffering, serious

4 injury, or constituting a serious attack on human dignity; and lastly, the

5 act or omission was committed with the intent to inflict serious mental or

6 physical suffering or cause serious injury or a serious attack upon human

7 dignity.

8 Findings: Between 24th September and 16th October 1992, and again

9 from 27 December 1992 to 20th March 1993, a number of Serbs were captured

10 by Bosnian Muslim fighters and detained at the Srebrenica police station -

11 we will be showing you photos of this building - and during the second

12 time period also at a building behind the Srebrenica municipal building,

13 to which we shall be referring as "the building" during this summary. You

14 should also be seeing now in the background the second building, which

15 will be referred to -- which we will be referring to as the building.

16 While they were generally exposed to the same appalling living conditions

17 as the local population, the condition of the prisoners was significantly

18 exacerbated by the maltreatment that we will now describe.

19 On the 24th of September, 1992, Dragutin Kukic was captured by

20 Bosnian Muslim fighters and transferred to the Srebrenica police station.

21 The next day, he was taken to the reception room in that building.

22 Perhaps Madam Usher can show a layout of this building. And the

23 reception room is the room at the extreme bottom left of the -- of the

24 sketch.

25 So the next day he was taken to the reception room in that

1 building where he was beaten. After Kukic cursed the mothers of two

2 guards who were beating him, one of them, a certain Kemo Mehmetovic, known

3 as Kemo, forcefully hit Kukic on the chest with a log of wood. Kukic lost

4 any sign of life immediately and all attempts to revive him proved

5 fruitless. The following day Kemo disposed of Kukic's corpse in a water

6 reservoir outside of Srebrenica and fired several shots at it. For the

7 reasons explained in the Judgement, the Trial Chamber is satisfied beyond

8 reasonable doubt that the circumstances of Dragutin Kukic's death

9 fulfilled the elements of murder.

10 Jakov Djokic, he was confined in a stable in the area of Cerska

11 under horrid conditions for almost eight months before being brought to

12 Srebrenica in January 1993. After a short period of detention at the

13 Srebrenica police station, he was transferred to the building. At both

14 locations, he was routinely beaten and maltreated with various objects,

15 including sticks and rifle-butts. Jakov Djokic was last seen alive on

16 21st March 1993. There is no direct evidence of the death of Jakov

17 Djokic. As to circumstantial evidence, there is only vague evidence

18 hinting that subsequently he succumbed to injuries caused by beatings

19 while in detention. This vague evidence, however, does not reach the

20 standard of proof required as detailed in the Judgement. The Trial

21 Chamber cannot conclude with certainty that he was killed, as alleged,

22 while being detained at the building.

23 Dragan Ilic, Milisav Milovanovic, Kostadin Popovic, and Branko

24 Sekulic. They were all detained at the Srebrenica police station and at

25 the building as of December 1992 or January 1993. They were routinely

1 beaten and maltreated with various objects. Dragan Ilic died on an

2 unspecified date between 9th February and 20th March 1993. Milisav

3 Milovanovic died in early February 1993, after repeated beatings by a

4 youth who was allowed to enter the building. Kostadin Popovic died on or

5 about the 6th of February, 1993. Branko Sekulic died on or about the 19th

6 of March, 1993. For the reasons stated in the Judgement, the Trial

7 Chamber is satisfied that all these incidents of killings fulfil the

8 elements of murder.

9 Between 24th September and 16th October 1992, Nedjeljko Radic,

10 Zoran Brankovic, Nevenko Bubanj, and Veselin Sarac were detained in a

11 small cell at the Srebrenica police station. On the 5th of October, 1992,

12 they were joined by Slavoljub Zikic. Apart from being interrogated, all

13 of them were subjected to severe beatings and other maltreatment while in

14 confinement, maltreatment sometimes resulting in bone fractures. On one

15 occasion, some of the teeth of Nedjeljko Radic were forcibly extracted by

16 Kemo, who afterwards urinated in his mouth, purportedly to disinfect the

17 wound. Maltreatment took place mostly at night, both inside the cell and

18 in the reception room, and was inflicted by, or in the presence of Kemo, a

19 certain Mrki, a certain Beli, and others, who had entered the police

20 station from the outside. On one occasion, Slavoljub Zikic was also

21 beaten by Mirzet Halilovic, the military police commander. Zikic

22 described the other detainees as more like dead people than people who

23 were still alive. All of them were eventually exchanged. For the reasons

24 stated in the Judgement, the Trial Chamber finds that the treatment

25 suffered by these individuals is serious enough to amount to cruel

1 treatment within the meaning of Article 3 of the Statute and that it was

2 inflicted with the required intent.

3 Between 27th December 1992 and 20th March 1993, Ilija Ivanovic,

4 Ratko Nikolic, Rado Pejic, Stanko Mitrovic, and Mile Trifunovic were

5 confined at the Srebrenica police station for a few days before being

6 transferred to the building, where they were interrogated and severely

7 maltreated. Ilija Ivanovic, for example, was beaten all over his body

8 with rifle-butts, metal rods, and baseball bats, and was also stabbed with

9 knives. His cheek-bone was broken and he frequently lost consciousness.

10 Five of Ratko Nikolic's ribs were broken when unidentified men stomped on

11 him. The body-weight of Rado Pejic was reduced to some 30 kilogrammes

12 during his time in Srebrenica. Maltreatment occurred usually at night,

13 both by guards and persons who entered both buildings from outside. On

14 occasions, even Bosnian Muslim fighters participated in the maltreatment.

15 All of these detainees were eventually exchanged. For the reasons stated

16 in the Judgement, the Trial Chamber finds that the treatment suffered by

17 them is serious enough to amount to cruel treatment within the meaning of

18 Article 3 of the Statute and that it was inflicted with the required

19 intent.

20 Responsibility of the accused.

21 We shall now consider whether the accused, Naser Oric, is

22 criminally responsible for these crimes as a superior. Since this is a

23 summary, we do not go into the details of the Trial Chamber's legal

24 assessment elaborated in the Judgement, but this summary is limited to the

25 following salient points.

1 As stated earlier, the accused is only charged with superior

2 criminal responsibility under Article 7(3) of the Statute and not with

3 having committed murder and cruel treatment himself.

4 The Trial Chamber finds that four elements must be fulfilled to

5 establish criminal responsibility of a superior: First, an act or

6 omission incurring criminal responsibility according to Articles 2 to 5

7 and 7(1) of the Statute has been committed by a principal perpetrator by

8 acts or omissions; second, the accused stood in a superior-subordinate

9 relationship with the principal perpetrator; third, the accused, as a

10 superior, knew or had reason to know that the subordinate was about to

11 commit such crimes or had done so; and fourth, the accused, as a superior,

12 failed to take the necessary and reasonable measures to prevent such

13 crimes or punish the perpetrator.

14 The Trial Chamber explains in detail in the Judgement that

15 superior criminal responsibility under 7(3) of the Statute is not

16 restricted to positive acts of subordinates but includes acts of omissions

17 and participation. Consequently, for the purpose of superior criminal

18 responsibility under Article 7(3) of the Statute, the direct perpetrators

19 of a crime punishable under the Statute need not be identical to the

20 subordinates of a superior. It is only required that the relevant

21 subordinates, by their own acts or omissions, be criminally responsible

22 for the injuries inflicted on the victims.

23 At the outset, the Trial Chamber notes that none of the

24 perpetrators of murder and cruel treatment known by name or nickname, such

25 as Kemo or Mrki or Beli, were identified to be members of the Srebrenica

1 military police. Nevertheless, based on the evidence given by Nedret

2 Mujkanovic, Becir Bogilovic, as well as on documentary evidence, including

3 the 2001 suspect interview of the accused with the Office of the

4 Prosecutor, the Trial Chamber finds that both groups of Serb prisoners

5 detained at the Srebrenica police station and the building between

6 September 1992 and March 1993 were kept under the responsibility of the

7 Srebrenica military police.

8 From the very moment it detained prisoners, the Srebrenica

9 military police assumed all duties and responsibilities under

10 international law relating to the treatment of prisoners in time of

11 conflict. Yet the evidence demonstrates that Mirzet Halilovic, the

12 commander of the military police until 22nd November 1992, did not

13 exercise adequate supervision of the detention facility or the activities

14 of the guards while carrying out their duties. To the contrary, Mirzet

15 Halilovic even contributed to the cruel treatment of the Serb detainees.

16 The replacement of Mirzet Halilovic with Atif Krdzic on the 22nd of

17 November, 1992 did not benefit the detainees. Not one person or document

18 refers to his presence in either of the two buildings where the prisoners

19 were kept. In addition, during his term as commander, more murders and

20 more cruel treatment took place.

21 For all the reasons stated in the Judgement, the Trial Chamber is

22 satisfied that the Srebrenica military police, through its commanders,

23 Mirzet Halilovic and Atif Krdzic, is responsible for the injuries

24 inflicted on the victims.

25 The Trial Chamber is further satisfied that the accused exercised

1 effective control over the military police, but only as of the 22nd

2 November 1992. Whereas prior to this date there is no evidence as to how,

3 if at all, the Srebrenica armed forces and the accused exercised effective

4 control over the military police, it is clear that an attempt aimed at

5 restructuring and improving its performance was made in October and

6 November 1992, such as with the replacement of Mirzet Halilovic by Atif

7 Krdzic. Documentary evidence shows that the new military police commander

8 reported to Osman Osmanovic, the Chief of Staff of the Srebrenica armed

9 forces, who reported to the accused. Moreover, in January and February

10 1993, Hamed Salihovic appears to have interrogated a number of Serb

11 detainees on behalf of the armed forces staff.

12 Based on the evidence given by witnesses Nedjeljko Radic and

13 Slavoljub Zikic as well as on the suspect interview of the accused

14 himself, the Trial Chamber is further satisfied that the accused visited

15 the Srebrenica police station between 24th September and 16th October 1992

16 on at least two occasions, that he had actual knowledge of the death of

17 Dragutin Kukic and of the cruel treatment of the Serbs detained there at

18 the time. However, having found that the accused did not have effective

19 control over the military police during that period, this knowledge

20 becomes relevant only for the purpose of establishing his actual or

21 imputed knowledge of the subsequent murders and cruel treatment.

22 As explained in the Judgement, the Trial Chamber has not found

23 sufficiently reliable evidence that the accused ever visited either of the

24 two detention facilities between December 1992 and March 1993, when the

25 second group of Serb prisoners were held there. Although the accused was

1 aware that Serbs were detained in Srebrenica, there is no evidence that

2 anyone kept him informed about their condition.

3 Nonetheless, since the accused was aware that incidents of murder

4 and cruel treatment had previously occurred, the Trial Chamber finds that

5 he was put on notice that the security and well-being of all Serbs

6 detained henceforth in Srebrenica was at risk and that this issue needed

7 to be adequately addressed and monitored. The accused also knew that the

8 severe malnutrition and the psychological effects of being under siege had

9 severely affected the Judgement of people in Srebrenica, several of who

10 behaved erratically. For the reasons explained in detail in the

11 Judgement, the Trial Chamber finds that the accused had reason to know

12 about acts of murder and cruel treatment committed at the Srebrenica

13 police station and the building between 27 December 1992 and 20 March

14 1993. However, the security and well-being of Serb prisoners disappear

15 from the accused's agenda after an investigation into the alleged killing

16 of a prisoner by Mirzet Halilovic and his eventual replacement with Atif

17 Krdzic. In his 2001 interview with the Office of the Prosecutor, the

18 accused is reported as stating that because of the deteriorating military

19 situation, the detention of prisoners was not on his mind, as there were

20 others responsible for it.

21 The Trial Chamber holds that, as a general rule, the treatment of

22 prisoners in armed conflict, including their physical and mental

23 integrity, cannot be relegated to a position of importance inferior to

24 other considerations, military or otherwise, however important they may

25 be. This general rule is, of course, predicated on the assumption that at

1 all times the person entrusted with this responsibility is in a position

2 to fulfil this obligation. It does not and cannot apply when there is the

3 impossibility to act or when it would be utterly unreasonable to expect

4 one to act, as in the case of a life-threatening situation.

5 In this case, the Trial Chamber is dealing with the responsibility

6 of a commander who could discharge such responsibilities by delegating

7 part of them to a subordinate and inquiring from time to time, and in the

8 absence of reports to at least require them in whatever format.

9 What is unacceptable for the Trial Chamber is that commanders, who

10 like the accused, positively know that detainees have been exposed to

11 murder and cruel treatment are discharged from their said obligations to

12 protect prisoners under international law by merely delegating the

13 responsibilities in that regard to subordinates without further inquiries.

14 In the present case, the evidence is unequivocal: The accused

15 never inquired about the fate of the Serb prisoners kept at the two

16 detention facilities in Srebrenica from the day Atif Krdzic was appointed

17 commander of the Srebrenica military police in lieu of Mirzet Halilovic.

18 In addition, he expressed and explained his lack of further involvement on

19 the basis of his military commitments elsewhere and that there were others

20 in charge of prisoners.

21 Regarding the accused's failure to prevent or punish these crimes,

22 the Trial Chamber rejects the Defence submission that no measures could

23 have been taken due to the lack of adequate means in Srebrenica at the

24 time. The replacement of Mirzet Halilovic and the investigation of his

25 alleged killing of a Serb prisoner shows that this could be achieved, even

1 in the absence of sophisticated structures and well-trained personnel.

2 With respect to the --

3 [B/C/S on the English channel].

4 JUDGE AGIUS: There is a problem? Is it all right? Is it fixed

5 now? It seems to be fixed, yes.

6 With respect to the duty to prevent the crimes of subordinates,

7 the Trial Chamber acknowledges that the accused operated under most

8 adverse circumstances and not in a properly structured army with adequate

9 means of communication between superiors and subordinates. Still, as of

10 September or October 1992, he had been on notice that the Serb detainees

11 kept at the Srebrenica police station were cruelly treated and that one of

12 them had been killed. The Trial Chamber, therefore, fails to understand

13 how, notwithstanding the predicament he faced on a daily basis, the

14 accused could from that time onwards safely assume that such incidents

15 could not reoccur and that there was not even the need to at least seek to

16 verify whether the detainees were maltreated again. It is striking that

17 the accused appears not to have taken any action regarding Serb detainees

18 after Atif Krdzic assumed command over the Srebrenica military police on

19 22nd November 1992. Rather, the accused, as already stated, repeated that

20 because of the deteriorating military situation, the detention of

21 prisoners was not on his mind, as there were others responsible for it.

22 The Trial Chamber is convinced that had the accused at least made

23 an effort he would have been able to redistribute available resources to

24 provide the required amount and quality of guards, if necessary, also from

25 his own fighters, to prevent reoccurrence of maltreatment. He could also

1 ask for a report in whatever format. Between 22nd November 1992 and early

2 January 1993, the accused was not always on the front line and found time

3 to attend meetings in Srebrenica, at least until the Serb winter offensive

4 started in late January or early February 1993. Yet, he did nothing of

5 the sort.

6 The conclusion that the Trial Chamber arrives at is that it was

7 not impossibility that stood in the way of the accused in preventing the

8 maltreatment and murder of prisoners; it was his preference not to give

9 the matter any further attention.

10 The Trial Chamber therefore finds that the accused failed to take

11 necessary and reasonable measures to prevent the occurrence of crimes at

12 the Srebrenica police station and the building between December 1992 and

13 March 1993.

14 With respect to the duty to punish, the Trial Chamber comes to a

15 different conclusion; namely, that the accused cannot be held responsible

16 for having failed to punish the crimes committed. The Judgement explains

17 why the Trial Chamber comes to the conclusion that there is insufficient

18 evidence of effective control over the military police prior to

19 22nd November 1992, when the accused had actual knowledge of murder and

20 cruel treatment. Thereafter, when the accused exercised effective

21 control, the Trial Chamber only found that he had reason to know of the

22 crimes. However, whereas for the duty to prevent, it suffices that the

23 accused was put on notice that crimes may possibly occur or reoccur, the

24 duty to punish presupposes that crimes have in fact been committed and

25 that the superior was aware of sufficient indications to assume their

1 occurrence. Since such indications in the present case are absent, the

2 accused cannot be held responsible for having failed to take the necessary

3 and reasonable measures to punish his subordinates for the commission of

4 these crimes.

5 And I now come to Counts 3 and 5 dealing with charges of wanton

6 destruction.

7 I ask the usher to put on the ELMO a map of the Podravanje area,

8 which has marked on it the various sites which were the subject of the

9 various attacks that I will be dealing with.

10 In order to prove the crime of wanton destruction of cities,

11 towns, or villages not justified by military necessity, the Prosecution

12 must establish the following elements beyond reasonable doubt: First, the

13 destruction of property occurred on a large scale; second, the destruction

14 was not justified by military necessity; third, the perpetrator acted with

15 the intent to destroy the property in question.

16 As regards the extent of the destruction, contrary to the

17 submission of the Defence, the Trial Chamber finds that it would amount to

18 an overtly narrow reading of the prohibition of wanton destruction to

19 require proof of total destruction of a city, town, or village. Rather,

20 the destruction needs to be assessed on a case-by-case basis to establish

21 whether it is substantial enough to rise to the level required for the

22 crime of wanton destruction. To constitute a crime under international

23 law, wanton destruction must not be justified by military necessity. In

24 this context, an object shall not be attacked when, according to the

25 information available to and in the circumstances of the person

1 contemplating the attack, that object is not being used to make an

2 effective contribution to military action. The Trial Chamber also finds

3 that, in principle, destruction can no longer be justified by military

4 necessity after the fighting has ceased.

5 Our findings, and I will be dealing firstly with Ratkovici,

6 Gornji Ratkovici, and Ducici.

7 On the 21st of June, 1992, Ratkovici, Gornji Ratkovici, and Ducici

8 were attacked by Bosnian Muslim fighters from two nearby villages and

9 followed by a crowd of Bosnian Muslim civilians. At the time of the

10 attack, there were village guards, as well as Bosnian Serb civilians in

11 the Ratkovici area. The attack met with resistance only in

12 Gornji Ratkovici. Both in Ratkovici and in Gornji Ratkovici Bosnian

13 Muslim fighters and civilians burned property on a large scale. Further

14 destruction was caused by a subsequent Bosnian Serb counter-attack. There

15 is insufficient evidence to establish that Ducici was destroyed on a large

16 scale as well.

17 Considering that Bosnian Muslim villages in the vicinity of

18 Ratkovici had previously been attacked by Bosnian Serbs, also from

19 Ratkovici, the Trial Chamber does not exclude that a military

20 justification for the attack on Ratkovici is conceivable. However, such

21 justification cannot extend to the resulting wanton destruction of

22 property, especially since this was neither of a military nature nor was

23 it used in a manner such as to make an effective contribution to the

24 military actions of the Bosnian Serbs. Consequently, the destruction of

25 property in Ratkovici and Gornji Ratkovici on 21st June 1992 by Bosnian

1 Muslims fulfils the elements of wanton destruction of cities, towns, or

2 villages, not justified by military necessity.

3 On 27th June 1992, Bradjevina was attacked by Bosnian Muslim

4 fighters. Only some of the attackers were identified as being locals from

5 the surrounding Bosnian Muslim villages, and they were followed by a crowd

6 of Bosnian Muslim civilians. At the time of the attack, there were 12

7 armed village guards in Bradjevina. They, however, put no resistance to

8 the attack. Bosnian Muslim fighters and civilians burned property in

9 Bradjevina on a large scale. Considering that Bosnian Muslim villages in

10 the vicinity of Bradjevina had previously been attacked by Bosnian Serbs,

11 also from Bradjevina, the Trial Chamber does not exclude that a military

12 justification for the attack on Bradjevina is conceivable. However, such

13 justification also in this case cannot extend to the resulting wanton

14 destruction of the property, especially since this was neither of a

15 military nature nor was it used in a manner such as to make an effective

16 contribution to the military actions of the Bosnian Serbs. Consequently,

17 the Trial Chamber is satisfied that the destruction of property in

18 Bradjevina on 27th June 1992 by Bosnian Muslims fulfils the elements of

19 wanton destruction of cities, towns, or villages not justified by military

20 necessity.

21 On 8th August 1992, Jezestica was attacked by Bosnian Muslim

22 fighters from Susnjari, Jaglici, and Glogova, as well as by Bosnian Muslim

23 fighters on the 16th Muslim Brigade from Tuzla. The fighters were

24 followed by a huge crowd of Bosnian Muslim civilians. At the time of the

25 attack, there were relatively well-armed village guards as well as Bosnian

1 Serb civilians in Jezestica. Evidence indicates that there was also

2 Bosnian Serb military presence in the area. The attack met with some

3 resistance before the Bosnian Serbs withdrew. Bosnian Muslim fighters and

4 civilians burned property in Jezestica on a large scale. Further

5 destruction may have been caused by a subsequent Bosnian Serb

6 counter-attack.

7 Considering that Bosnian Muslim villages in the vicinity of

8 Jezestica had previously been attacked by Bosnian Serbs, also from

9 Jezestica, the Trial Chamber does not exclude that a military

10 justification for the attack on Jezestica is conceivable. However, such

11 justification cannot extend to resulting wanton destruction of property,

12 especially since there -- this was neither of a military nature nor was it

13 used in a manner such as to make an effective contribution to the military

14 actions of the Bosnian Serbs. Consequently, the Trial Chamber is

15 satisfied that the destruction of property in Jezestica on the 8th of

16 August, 1992 by Bosnian Muslims fulfils the elements of wanton destruction

17 of cities, towns, or villages, not justified by military necessity.

18 On 5th October 1992, Fakovici and Divovici were attacked by

19 Bosnian Muslim fighters from Osmace, Suceska, Kragljivoda, Zanjevo,

20 Jagodnja, Joseva, Tokoljaci. These were followed by thousands of Bosnian

21 Muslim civilians. The accused participated in this attack. At the time

22 of the attack, there were relatively well-armed village guards as well as

23 Bosnian Serb civilians in Fakovici and Divovici. Evidence indicates that

24 there were also Bosnian Serb military presence in Fakovici. The attack

25 met with resistance, and Bosnian Serbs fired on the attacking Bosnian

1 Muslims from houses. In the course of the attack, several houses began to

2 burn. On the afternoon of 5 October 1992, a Serb counter-attack, which

3 included shelling and bombing of that area was launched. Subsequently the

4 Bosnian Muslim fighters and some of the Bosnian Muslim civilians withdrew,

5 whereas other Bosnian Muslim civilians stayed behind to look for food and

6 building materials.

7 The Trial Chamber finds that there is insufficient evidence to

8 establish that Divovici was destroyed on a large scale.

9 As to Fakovici, the Trial Chamber finds that although houses were

10 damaged no witness could confirm that it was Bosnian Muslims who set the

11 burning houses on fire. It is likely that the destruction on a large

12 scale in Fakovici resulted from exchange of fire between Bosnian Muslims

13 and Bosnian Serbs and subsequent Serb shelling and thus cannot be

14 attributed solely to the Bosnian Muslims. Consequently, the Trial Chamber

15 is not satisfied that the destruction of property in Fakovici and Divovici

16 on 5 October 1992 by Bosnian Muslims fulfils the elements of wanton

17 destruction of cities, towns, or villages not justified by military

18 necessity.

19 Between 14 and 19 December 1992, Bjelovac and Sikiric were

20 attacked by Bosnian Muslim fighters from Voljavica, Biljaca, Potocari,

21 Kazani, Luljaska, Suceska, Pale, Likari, and Srebrenica, Stari Grad.

22 They, too, were followed by thousands of Bosnian Muslim civilians. The

23 accused participated in this attack, too. At the time of the attack,

24 there were relatively well-armed village guards as well as Bosnian Serb

25 civilians in Bjelovac and Sikiric. Evidence indicates that there was also

1 Bosnian Serb military presence in the area. The attack met with

2 resistance. Furthermore, at different times during 14 December 1992, two

3 planes from the direction of Bratunac circled the area dropping bombs. In

4 the course of the attack, several houses began to burn. Some of the

5 houses were torched by Bosnian Muslims, and in the next few days, as

6 fighting continued, the Bjelovac area was alternately controlled by the

7 Bosnian Muslims and Bosnian Serbs. This rendered further destruction of

8 the property possible.

9 The Trial Chamber finds that the damage caused to houses in

10 Bjelovac and Sikiric likely resulted from all these circumstances. For

11 the reasons given in the Judgement, the Trial Chamber is not in a position

12 to know how many houses were destroyed by Bosnian Muslims and how many

13 were destroyed by other causes. Consequently, there is doubt whether the

14 amount of houses destroyed by the Bosnian Muslims fulfils the large-scale

15 requirement for the crime of wanton destruction. As a result, the Trial

16 Chamber is not satisfied that the destruction of property in Bjelovac and

17 Sikiric between 14th and 19th December 1992 by Bosnian Muslims fulfils the

18 elements of wanton destruction of cities, towns, or villages, not

19 justified by military necessity.

20 On the 7th and 8th January 1993, Kravica, Siljkovici, and

21 Jezestica were attacked by Bosnian Muslim fighters from Suceska, Glogova,

22 Biljeg, Mosici, Delici, Cerska, Skugrici, Jaglici, Susnjari, Brezova,

23 Njiva, Osmace, Konjevic Polje, Jagodnja, Joseva. Also the accused and

24 members of his group of fighters participated in the attack. The fighters

25 were followed by thousands of Bosnian Muslim civilians. At the time of

1 the attack, there were relatively well-armed village guards and some

2 Bosnian Serb civilians in Kravica, Siljkovici, and Jezestica. Evidence

3 shows that there was also Bosnian Serb military presence in the area. The

4 attack met with resistance. Bosnian Serbs fired artillery on the

5 attacking Bosnian Muslims from houses and other buildings. Houses in the

6 area were burning. In Jezestica, Bosnian Muslim fighters and civilians

7 set many houses on fire causing destruction on a large scale. In Kravica,

8 property was also destroyed on a large scale. However, the evidence is

9 unclear as to the number of houses that were wantonly destroyed by Bosnian

10 Muslims as opposed to other causes. As to Siljkovici, there is

11 insufficient evidence to establish that property was destroyed on a large

12 scale.

13 Considering that Bosnian Muslim villages in the vicinity of

14 Jezestica had previously been attacked by Bosnian Serbs also from

15 Jezestica, the Trial Chamber does not exclude that a military

16 justification for the attack on Jezestica is conceivable. However, such

17 justification cannot extend to the resulting wanton destruction of

18 property, especially since this was neither of a military nature nor was

19 it used in a manner such as to make an effective contribution to the

20 military actions of the Bosnian Serbs.

21 Consequently, the Trial Chamber is satisfied that the destruction

22 of property in Jezestica on 7th and 8th January 1993 by Bosnian Muslims

23 fulfils the elements of wanton destruction of cities, towns, or villages,

24 not justified by military necessity.

25 We will deal now with responsibility of the accused. We shall now

1 deal with the question whether the accused, Naser Oric, is criminally

2 responsible for these crimes of wanton destruction in terms of

3 Articles 7(1) and then Article 7(3) of the Statute.

4 We shall start with the alleged individual criminal responsibility

5 of the accused pursuant to Article 7(1) of the Statute, specifically with

6 the aspects of instigating and/or aiding and abetting and also the

7 omission which the Prosecution attributes to him.

8 The Trial Chamber holds that instigating requires influencing the

9 direct perpetrator by way of inciting, soliciting, or otherwise inducing

10 him or her through acts or culpable omissions to commit the crime in

11 question. The instigation must substantially contribute to the

12 perpetration of the crime, and the instigator must intend not only his or

13 her conduct, but also the ultimate crime. Aiding and abetting may be

14 constituted by an accused's contribution, through acts or culpable

15 omissions, to the planning, preparation, or execution of a completed

16 crime, provided that the contribution is substantial enough to make the

17 commission of the crime possible or at least easier. The aider and

18 abettor must act with an intent to further the contribution, as well as to

19 effect the completion of the crime by the direct perpetrator. In both

20 modes of liability, the contribution can be indirect as well as removed in

21 time and place from the actual commission of the crime.

22 The Trial Chamber examined the alleged criminal responsibility of

23 the accused pursuant to Article 7(1) of the Statute, only in respect of

24 the attack on Jezestica on 7th and 8th January 1993, as the elements of

25 crime of wanton destruction are not fulfilled with regard to the other

1 attacks for which such responsibility has been charged. The Trial Chamber

2 has no doubt that the accused was generally aware that Bosnian Serb

3 property was destroyed by Bosnian Muslims, primarily civilians, who

4 followed fighters during the attacks. However, the Prosecution has failed

5 to adduce reliable evidence that he instigated wanton destruction. On the

6 contrary, evidence indicates that the accused opposed this kind of

7 conduct.

8 With respect to aiding and abetting, the Trial Chamber finds that

9 the accused, by virtue of his authority as leader of a group of fighters,

10 had the responsibility to prevent the commission of wanton destruction by

11 his subordinates. This duty extended to preventing wanton destruction by

12 other fighters and civilians if the accused knew that such wanton

13 destruction was being or was about to be committed in the course of

14 attacks in which his subordinates participated. As a minimum, he had a

15 duty to prevent civilians from being present during such attacks.

16 However, it has not been established that the accused could have prevented

17 wanton destruction by civilians who were present before, during, and after

18 attacks in massive numbers and such that -- and such as being beyond any

19 control.

20 With respect to fighters, the Trial Chamber is not convinced that

21 in the particular circumstances of the attack on Jezestica on 7th and

22 8th January 1993 the accused could have prevented fighters from committing

23 destruction or aiding and abetting civilians to commit such destruction.

24 There is no evidence that his own fighting group had any involvement in

25 the wanton destruction that occurred during the attack. Furthermore,

1 there is no sufficient evidence that the accused had control over, or even

2 communication with the other fighting groups during the attack. In

3 addition, although the accused participated in the attack, there is no

4 evidence that his presence was that or amounted to one of approving

5 spectator which is a qualification required to hold the accused

6 responsible for active participation under Article 7(1) of the Statute.

7 In the light of the above, the Trial Chamber concludes that the

8 Prosecution failed to establish that the accused in any way instigated or

9 aided or abetted pursuant to Article 7(1) of the Statute, the commission

10 of wanton destruction not justified by military necessity in Jezestica on

11 the 7th and 8th January 1993.

12 The Trial Chamber also examined in the Judgement the superior

13 responsibility of the accused pursuant to Article 7(3) of the Statute only

14 in respect of the attacks on Ratkovici and Gornji Ratkovici, which

15 occurred on the 21st of June, 1992, and Bradjevina, which occurred on the

16 27th of June, 1992, and Jezestica, which occurred on the 8th of August,

17 1992, and 7th and 8th of January, 1993. As the elements -- this is so

18 because the elements of wanton destruction are not fulfilled with regard

19 to the other attacks for which such responsibility has been charged and

20 with which I dealt with earlier on.

21 Regarding all four attacks, the Trial Chamber heard evidence that

22 Bosnian Muslim fighters and civilians perpetrated acts of wanton

23 destruction, but there is almost no evidence that would further identify

24 these perpetrators. However, such identification in any case is not

25 required by law, provided it can be established that those responsible

1 were under the control of the superior.

2 With respect to the question of the existence or otherwise of

3 effective control by the accused over the perpetrators, it has already

4 been explained that effective control can be based on a de jure as well as

5 on a de facto position of authority.

6 We have also already explained how on 20th May 1992 the accused

7 was elected as commander of the Srebrenica TO staff, and at the time of

8 the attacks of Ratkovici and Gornji Ratkovici and Bradjevina in June 1992

9 still held this position in which he was confirmed on the 27th of June and

10 again on the 8th of August 1992.

11 In addition, by January 1993, when Jezestica was attacked the

12 second time, the accused had in the meantime been appointed as commander

13 of the subregion which was proclaimed on 4th of November, 1992. Thus, on

14 a de jure basis, the accused was considered as superior to all Bosnian

15 Muslim armed groups operating in the Srebrenica area during the time

16 period relevant to Count 3 of the indictment.

17 However, while the Trial Chamber finds that the accused exercised

18 effective control over his own fighting group from Potocari, there is

19 insufficient evidence to establish that he de facto exercised effective

20 control over the various groups of fighters participating in these

21 attacks, not to speak of the civilians who followed the fightings. The

22 picture that emerges from the evidence is not one of an organised army

23 with a fully functioning command structure, but one of local groups of

24 fighters remaining relatively independent and voluntary and a mass of

25 uncontrollable civilians that were present at every attack.

1 Therefore, the Trial Chamber has come to the conclusion that

2 regarding all four attacks under consideration, the accused cannot be held

3 criminally responsible under Article 7(3) of the Statute for wanton

4 destruction of cities, towns, or villages not justified by military

5 necessity.

6 Now we come to sentencing.

7 The Trial Chamber has examined all the parties' submissions in

8 their written and oral form when determining the sentence for the crimes

9 of which the accused has been found guilty. Bearing in mind that the

10 accused will not be convicted for the crimes of his subordinates -- will

11 not be convicted for the crimes of his subordinates, but only for his

12 failure to prevent them, the Trial Chamber underlines its belief that the

13 sui generis nature of a superior responsibility pursuant to Article 7(3)

14 of the Statute allows for an even greater flexibility in the determination

15 of sentence.

16 Prosecution, referring to the gravity of the crimes as well as to

17 the number of aggravating factors, requested that the accused be sentenced

18 to 18 years' imprisonment. The Defence submitted that any punishment

19 would be highly inappropriate.

20 The Trial Chamber finds that the vulnerability of the victims is

21 the only aggravating circumstance to be taken into consideration.

22 However, a number of relevant mitigating circumstances have been taken

23 into account. These are: Some cooperation with the Prosecution, some

24 expressions of remorse, the accused's expressed readiness to surrender to

25 the Tribunal if indicted, his young age at the time the crimes were

1 committed, his family circumstances, acts of consideration towards Serb

2 detainees, cooperation with SFOR, his general attitude towards the

3 proceedings, and, most importantly of all, the general circumstances

4 prevailing in Srebrenica and those particular to the accused and to the

5 crimes committed. All these are dealt with great detail in the Judgement

6 to which we refer you.

7 This last mitigating factor, that is the general circumstances

8 prevailing in Srebrenica and those particular to the accused and to the

9 crimes committed, is in the firm belief of the Trial Chamber the pivotal

10 consideration for the purpose of establishing the appropriate sentence in

11 this case.

12 As described throughout the Judgement, the conditions in

13 Srebrenica during the relevant time were abysmal and deteriorated by the

14 day. Militarily superior Serb forces had encircled Srebrenica, a threat

15 to which the Bosnian Muslims in town were almost entirely unprepared. An

16 unmanageable influx of refugees, critical shortages of food and other

17 essentials, general chaos, and the flight from Srebrenica of all prewar

18 authorities resulted in a total breakdown of society in Srebrenica,

19 including a collapse of law and order. These were the circumstances when,

20 at age 25, without any relevant military and administrative experience,

21 the accused found himself elected commander of voluntary fighters, who

22 were poorly trained, did not form part of a proper army, had very few

23 weapons at their disposal, and without -- and were without an effective

24 link to the Bosnia and Herzegovina army and Bosnia and Herzegovina

25 authorities. It was a continuous uphill struggle that, in actual fact,

1 achieved very few results. In addition, the accused had to rely on local

2 leaders, some of whom not only chose to act independently, but even

3 considered him inexperienced and scorned his authority. His situation

4 became worse with the passage of time as the Bosnian Serb forces increased

5 the momentum of their siege.

6 As stated earlier, however, there was an interval of time in

7 December 1992 and most of January 1993, during which the accused not only

8 had the duty to prevent the reoccurrence of murder and cruel treatment of

9 prisoners, but also was not in the impossibility of fulfilling it. Nor

10 was he reasonably impeded from carrying out this responsibility. Still,

11 it is the conviction of the Trial Chamber that he preferred to do nothing,

12 notwithstanding that he could have prevented the reoccurrence of these

13 crimes. This is the only wrongdoing he has been found guilty of.

14 However, the Trial Chamber understands that although his predicament at

15 this time was not as bad and perilous as it was during the ensuing Serb

16 winter offensive, it still was one which should have a strong mitigating

17 effect in the assessment of the sentence to be inflicted against him.

18 The Trial Chamber is finding the accused guilty and will be

19 sentencing him because he had reason to know that the reoccurrence of

20 murder and cruel treatment of prisoners was possible and because he

21 decided not to do anything about it, not even to at least try and inquire

22 about the situation of prisoners.

23 There is no other case in this Tribunal and there has not been any

24 other case in this Tribunal in which the accused was found guilty of

25 having failed to prevent murder and cruel treatment of prisoners in such a

1 limited manner and in such abysmal personal and circumstantial conditions

2 as in this case. Consequently, the sentence that is being meted out

3 reflects this uniquely limited criminal responsibility. However, the

4 Trial Chamber emphasises the fact that the leniency of the sentence which

5 we will very shortly impose on the accused does not and should not

6 diminish from the principle that the Trial Chamber has endeavoured to

7 articulate in its Judgement, namely that for the purpose of Article 7(3),

8 criminal responsibility, commanders should, throughout, maintain awareness

9 of the imperativeness required to be given to the protection of prisoners

10 in times of conflict.

11 Finally, the Trial Chamber wishes to state that all the

12 conclusions reached in this Judgement, legal and factual, including the

13 sentence itself, were arrived at unanimously.

14 Disposition.

15 Mr. Oric, would you please stand up.

16 [The accused stands up]

17 JUDGE AGIUS: For the reasons summarised above, this Trial

18 Chamber, having considered all of the evidence and the arguments of the

19 parties, the Statute, and the Rules, and basing itself on the factual and

20 legal findings as determined in the Judgement, decides as follows:

21 You are found not guilty and therefore acquitted of, under

22 Count 1: Failure to discharge your duty as a superior to take necessary

23 and reasonable measures to prevent the occurrence of murder from

24 24th September 1992 to 16th October 1992, pursuant to Articles 3 and 7(3)

25 of the Statute, and failure to discharge your duty as a superior, to take

1 necessary and reasonable measures to punish the occurrence of murder from

2 the 27th December -- from the 24th September 1992 to 16th October 1992 and

3 from the 27th December to 20th March 1993, pursuant to Article 3 and 7(3)

4 of the Statute.

5 Under Count 2: Failure to discharge your duty as a superior to

6 take necessary and reasonable measures to prevent the occurrence of cruel

7 treatment from 24th September 1992 to 16th October 1992 pursuant to

8 Articles 3 and 7(3) of the Statute, and failure to discharge your duty as

9 a superior to take necessary and reasonable measures to punish the

10 occurrence of cruel treatment from 27th December to 20th March 1993

11 pursuant to Articles 3 and 7(3) of the Statute.

12 You are, however, found guilty of: Under Count 1: Failure to

13 discharge your duty as a superior to take necessary and reasonable

14 measures to prevent the occurrence of murder from 27th December 1992 to

15 20th March 1993, pursuant to Article 3 and 7(3) of the Statute.

16 Under Count 2, you are found guilty of your failure to discharge

17 your duty as a superior to take necessary and reasonable measures to

18 prevent the occurrence of cruel treatment from 27th December 1992 to

19 20th March 1993, pursuant to Articles 3 and 7(3) of the Statute.

20 Lastly, you are found not guilty and therefore acquitted of the

21 following counts:

22 Count 3: Failure to discharge your duty as a superior to take

23 necessary and reasonable measures to prevent or punish the occurrence of

24 acts of wanton destruction of cities, towns, or villages, not justified by

25 military necessity, pursuant to Articles 3 and 7(3) of the Statute.

1 Count 5: Wanton destruction of cities, towns, or villages not

2 justified by military necessity, pursuant to Articles 3(b) and 7(1) of the

3 Statute.

4 We sentence you, Naser Oric, to two years' of imprisonment.

5 According to the law of this Tribunal, you are entitled to credit for the

6 period of time you have been in custody towards the sentence which we are

7 meting out. You were arrested on the 10th of April, 2003; therefore, you

8 have been in custody for three years, two months, and 21 days. Since the

9 imposed sentence is less than the credit to be applied for the period of

10 time you have been in custody, the Trial Chamber orders that you be

11 released immediately from the United Nations Detention Unit after the

12 necessary practical arrangements have been made.

13 Thank you.

14 --- Whereupon the Judgement adjourned at 3.50 p.m.

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