1 Wednesday, 20 February 2008
2 [Ruling - 98 bis]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the
8 THE REGISTRAR: Good morning, Your Honours. Good morning everyone
9 in and around the courtroom. This is case number IT-04-74-T, the
10 Prosecutor versus Prlic et al. Thank you, Your Honours.
11 JUDGE ANTONETTI: [Interpretation] Thank you. Today is Wednesday,
12 February 20, 2008. Let me greet the Prosecution, the Defence counsel, as
13 well as the accused.
14 As you know, we are gathered here today for the Chamber to deliver
15 its oral decision under Rule 98 bis of the Rules. I shall now read out
16 the decision, a copy of which has been delivered to the interpreters.
17 I'll check the translation in B/C/S, listening to channel 6, and I also
18 have a look at the screen to check that the translation in English is true
19 to what I say in French.
20 Oral decision delivered under Rule 98 bis.
21 In delivering this oral decision under Rule 98 bis of the Rules,
22 the Trial Chamber will first recall the background to these proceedings.
23 Secondly, the Trial Chamber will lay out the law applicable under
24 Rule 98 bis.
25 In a third stage, the Trial Chamber will recall the counts and the
1 modes of responsibility alleged in the indictment.
2 In a fourth part of this decision, the Trial Chamber will address
3 the law applicable to the modes of responsibility alleged in the
4 indictment and, in particular, to the joint criminal enterprise of
5 categories 1 and 3.
6 Finally, the Trial Chamber will examine the responsibility of
7 Accused Coric and Pusic in determining whether or not there was a joint
8 criminal enterprise, and if the answer to that question is yes, in
9 considering whether these two accused participated in that joint criminal
11 First point, procedural background.
12 The Prosecution case started on April 26, 2006 and closed at the
13 hearing of January 24, 2008. On that same day, the Trial Chamber reminded
14 the Defence of the six accused that they could submit their 98 bis
15 applications as of January 28, 2008.
16 At the hearing of January 24, 2008, the Prlic and Stojic Defence
17 informed the Chamber that they would not be submitting any 98 bis
18 application, and the Accused Praljak asked the Chamber to be authorised to
19 make a personal statement.
20 After counsel for the Accused Praljak informed the Trial Chamber
21 that he would not be making a 98 bis application, at the hearing of
22 January 28, 2008, the Trial Chamber issued an oral decision on the
23 Accused Praljak's request to take the floor in person. The Trial Chamber
24 dismissed the request and recalled that 98 bis proceedings pertain to
25 motions for acquittal and do not allow for personal statements by the
1 accused. However, the Trial Chamber informed the Accused Praljak that he
2 could make a statement in accordance with Rule 84 bis before the beginning
3 of the Defence case.
4 On January 28, 2008, the Trial Chamber also delivered an oral
5 decision on the request of the Petkovic Defence who argued that Rule 98
6 bis, in its version dated December 8, 2004, was not applicable in this
7 case. The Petkovic Defence requested the Trial Chamber to apply the
8 earlier version of Rule 98 bis, the version that applied before 2004. In
9 that case, the Trial Chamber would have conducted its analysis on the
10 charges and not on all counts of the indictment.
11 The Trial Chamber dismissed the application and noted that the
12 provisions of Rule 98 bis are to be enforced immediately, and that if the
13 Defence had felt that the amendment to Rule 98 bis could have compromised
14 the presumption of innocence, the fairness and expeditiousness of the
15 trial, then the Defence should have seized the Chamber well before that
16 point. The Trial Chamber subsequently dismissed the request of the
17 Petkovic Defence for certification to appeal the oral decision.
18 Considering the position taken by the Trial Chamber, the Petkovic
19 Defence decided not to make any submissions under Rule 98 bis. However,
20 it requested the Trial Chamber to rule on the existence in customary
21 international law of the following modes of responsibility:
22 Co-perpetration, indirect co-perpetration, indirect perpetration, and
23 aiding and abetting of a joint criminal enterprise.
24 The Petkovic Defence argued that these modes of responsibility
25 fall outside of the jurisdiction of the Tribunal and requested that
1 several paragraphs of the indictment referring to these modes of
2 responsibility be stricken. In support of its request, the Petkovic
3 Defence recalled the decision issued by the Trial Chamber on 25th April
4 2007 in which the Trial Chamber stated that it would rule on the matter
5 when rendering its decision under Rule 98 bis.
6 The Petkovic Defence also referred to the decision of the Appeals
7 Chamber, dated 4th of June, 2007, where it was noted that the Trial
8 Chamber would rule on this issue prior to the presentation of the Defence
10 Finally, the Petkovic Defence stressed that a failure to rule on
11 this issue before the presentation of the Defence case would place too
12 heavy a burden on the resources of the party and would infringe on the
13 rights of the accused to a fair and expeditious trial.
14 At the hearing of January 29, 2008, the Coric Defence made its 98
15 bis submissions. The Defence submitted, in particular, that the Accused
16 Coric could not be held responsible for several counts of the indictment
17 because the Prosecution failed to establish the responsibility of the
18 Accused Coric, be it under categories 1 and 3 of a joint criminal
19 enterprise as provided for at Article 7(1) of the Statute, or under
20 Article 7(3) of the Statute related to command responsibility.
21 More specifically, the Coric Defence, without challenging as part
22 of the 98 bis proceedings the reality of the crimes, the Coric Defence
23 submitted that his responsibility has not been established for the
24 following eight counts of the indictment: Count 4, rape, a crime against
25 humanity; count 5, inhuman treatment taking the form of sexual assault, a
1 grave breach of the Geneva Conventions of 1949; count 19, extensive
2 destruction of property not justified by military necessity and carried
3 out unlawfully and wantonly, a grave breach of the Geneva Conventions of
4 1949; count 20, wanton destruction of cities, towns, or villages, or
5 devastation not justified by military necessity, a violation of the laws
6 or customs of war; count 21, destruction or wilful damage done to
7 institutions dedicated to religion or education, a violation of the laws
8 or customs of war; count 24, unlawful attack against civilians in Mostar,
9 a violation of the laws or customs of war; count 25, unlawful infliction
10 of terror on civilians in Mostar, a violation of the laws or customs of
11 war; count 26, cruel treatment as part of the siege of Mostar, a violation
12 of the laws or customs of war.
13 The Coric Defence concluded, however, that its motion for
14 acquittal was not limited to these eight counts but related to all 26
15 counts of the indictment and under all the modes of responsibility alleged
16 in the indictment.
17 At the hearing of January 30th, 2008, the Pusic Defence delivered
18 its 98 bis submissions. The Defence argued with respect to several
19 counts. The Defence argues with respect to several counts that the
20 Prosecution has not led a single piece of evidence establishing the
21 responsibility of the Accused Pusic. In that respect, the Pusic Defence
22 cited the eight counts referred to by the Coric Defence, but also added
23 two further counts that are the following: Count 22, appropriation of
24 property not justified by military necessity and carried out unlawfully
25 and wantonly, a grave breach of the Geneva Conventions of 1949; count 23,
1 plunder of public or private property, a violation of the laws or customs
2 of war.
3 With respect to these ten counts, the Pusic Defence argues that
4 the Prosecution failed to prove that the Accused Pusic participated in a
5 joint criminal enterprise within the meaning of Article 7(1), be it type
6 1 or 3, of the JCE. It failed to establish his responsibility under the
7 other modes of liability provided for by Article 7(1) of the Statute, nor
8 did the Prosecution establish his responsibility as a superior within the
9 meaning of Article 7(3) of the Statute. However, the Pusic Defence
10 specified that it's motion for acquittal was not limited to these ten
11 counts alone but that it should be understood as including all 26 counts
12 of the indictment under any mode of responsibility alleged in the
14 The Prosecution responded to the Defence submissions at the
15 hearings of February 4 and 5, 2008. The Prosecution drew the attention of
16 the Chamber to evidence that according to the Prosecution should not allow
17 the Trial Chamber to enter a judgement of acquittal for the Accused Coric
18 and Pusic.
19 Let me now move on to the law applicable under Rule 98 bis. By
20 way of an introduction, the Trial Chamber considers that the issue of
21 cumulative charges as raised by the Coric Defence in its oral submissions
22 does not fall within 98 bis proceedings. This matter will be dealt with
23 at the judgement stage.
24 Rule 98 bis provides the following, and I quote: "At the close of
25 the Prosecutor's case, the Trial Chamber shall, by oral decision and after
1 hearing the oral submissions of the parties, enter a judgement of
2 acquittal on any count if there is no evidence capable of supporting a
4 Since the 8th of December, 2004, when Rule 98 bis was last
5 amended, a Trial Chamber is only expected to determine whether the
6 Prosecution has adduced enough evidence for each count taken as a whole,
7 as opposed to all the various charges making up that particular count. As
8 a consequence, the Trial Chamber may only enter a judgement of acquittal
9 with respect to an entire count of the indictment.
10 Under Rule 98 bis, the Trial Chamber needs to determine whether
11 there is evidence on the basis of which any reasonable trier of fact could
12 enter a conviction beyond reasonable doubt. The Trial Chamber believes
13 that at this stage the Trial Chamber is not to establish whether it would
14 enter a conviction at the end of the trial but whether it could do so.
15 As a result, a motion for acquittal shall be granted in the
16 following cases: When there is no evidence capable of sustaining a
17 conviction; or when there is evidence but even when taken at its highest,
18 this evidence could not sustain a conviction by the Trial Chamber; or when
19 the only evidence available is clearly unreliable and incapable of belief.
20 We should stress that at the 98 bis stage, a Trial Chamber does
21 not assess the probative value of the evidence. This analysis is
22 conducted at the end of the trial once all the evidence has been adduced
23 by the Prosecution and the Defence. At the 98 bis stage, the Trial
24 Chamber only considers the Prosecution evidence submitted by the
25 Prosecution and not the evidence adduced by the Defence.
1 Furthermore, although the accused are charged under various modes
2 of responsibility, it is sufficient for the Trial Chamber to establish
3 that there is evidence supporting one, once a single mode of
4 responsibility alleged in the indictment, to dismiss a motion for
6 Finally, the Trial Chamber wants to make it clear that there is no
7 contradiction between the dismissal of a 98 bis motion and a judgement of
8 acquittal at the end of the trial. The Appeals Chamber stated very
9 clearly in the appeals judgement in Jelisic on the 5th of July, 2001, that
10 this applies even if the Defence has not adduced any evidence.
11 Part C: Counts of the indictment and modes of responsibility
12 pleaded in the indictment.
13 The Trial Chamber recalls that in the amended indictment filed on
14 the 16th of November, 2005, called hereinbefore and hereinafter the
15 indictment, the Prosecution charges the Accused Prlic, Stojic, Praljak,
16 Petkovic, Coric, and Pusic with crimes punishable under the Statute of the
17 Tribunal; i.e., crimes against humanity, grave breaches of the Geneva
18 Conventions, as well as violation of the laws or customs of war.
19 The charges alleged in the indictment against the accused include
20 26 counts. Beyond the ten counts mentioned earlier, when recalling the
21 procedural background, the following 16 counts are charged in the
22 indictment: Count 1, persecutions on political, racial, and religious
23 grounds, a crime against humanity; count 2, murder, a crime against
24 humanity; count 3, wilful killing, a grave breach of the Geneva
25 Conventions of 1949; count 6, deportation, a crime against humanity;
1 count 7, unlawful deportation of a civilian, a grave breach of the Geneva
2 Conventions of 1949; count 8, inhumane acts in the form of forcible
3 transfer, a crime against humanity; count 9, unlawful transfer of a
4 civilian, a grave breach of the Geneva Conventions of 1949; count 10,
5 imprisonment, a crime against humanity; count 11, unlawful confinement of
6 a civilian, a grave breach of the Geneva Conventions of 1949; count 12,
7 inhumane acts taking the form of conditions of confinement, a crime
8 against humanity; count 13, inhuman treatment in the form of conditions of
9 confinement, a grave breach of the Geneva Conventions of 1949; count 14,
10 cruel treatment taking the form of conditions of confinement, a violation
11 of the laws or customs of war; counts 15, inhumane acts, a crime against
12 humanity; count 16, inhuman treatment, a grave breach of the Geneva
13 Conventions of 1949; count 17, cruel treatment, a violation of the laws or
14 customs of war; count 18, unlawful labour, a violation of the laws or
15 customs of war.
16 The crimes the accused are charged with in the indictment concern
17 the municipalities of Prozor, Gornji Vakuf, Jablanica, Sovici and Doljani,
18 Mostar, Ljubuski, Stolac, Capljina, Vares, as well as the Heliodrom
19 detention camps and the detention camps of Vojno, Dretelj, and Gabela.
20 Paragraph 15 of the indictment should be recalled at this stage.
21 It reads as follows, and let me read it out: "From on or before 18th
22 November, 1991 to about April 1994 and thereafter, various persons
23 established and participated in a joint criminal enterprise to politically
24 and militarily subjugate, permanently remove, and ethnically cleanse
25 Bosnian Muslims and other non-Croats who lived in areas on the territory
1 of the Republic of Bosnia and Herzegovina which were claimed to be part of
2 the Croatian Community and later Republic of Herceg-Bosna, and to join
3 these areas..." -- let me start again.
4 I have to start again because there was a change by the
5 interpreters. Let me read out again.
6 "From on or about 18 November 1991 to about April 1994 and
7 thereafter, various persons established and participated in a joint
8 criminal enterprise to politically and militarily subjugate Bosnian
9 Muslims and other non-Croats who lived in areas on the territory of the
10 Republic of Bosnia and Herzegovina which were claimed to be part of the
11 Croatian Community and later Republic of Herceg-Bosna, to permanently
12 remove them and to ethnically cleanse these regions, and to join these
13 areas as part of a Greater Croatia, whether in the short term or over
14 time, and whether as part of the Republic of Croatia or in close
15 association with it by force, fear, or threat of force, persecution,
16 imprisonment and detention, forcible transfer and deportation,
17 appropriation and destruction of property and other means which
18 constituted or involved the commission of crimes which are punishable
19 under Articles 2, 3, and 5 of the Tribunal Statute, or involving the
20 commission of such crimes."
21 The territorial ambition of the joint criminal enterprise was to
22 establish a Croatian territory with borders of a Croatian Banovina, a
23 territorial entity that existed from 1939 to 1941. It was part of the
24 joint criminal enterprise to engineer the political and ethnic map of
25 these areas so that they would be Croat dominated both politically and
2 According to the indictment, the members of this joint criminal
3 enterprise included the six accused, but also included, among others,
4 Franjo Tudjman, Gojko Susak, Janko Bobetko, Mate Boban, Dario Kordic,
5 Tihomir Blaskic, and Mladen Naletilic.
6 The six accused are charged under all the forms of criminal
7 responsibility listed at Article 7(1) and 7(3) of the Statute of the
8 Tribunal for all the crimes alleged in the indictment except for the
9 Accused Pusic, who is not charged with crimes committed in the
10 municipality of Gornji Vakuf as laid out at paragraph 230 of the
11 indictment. Therefore, the six accused are charged with having committed
12 the crimes list the in the indictment notably as participants in a joint
13 criminal enterprise of type 1 and 3.
14 Before looking into the law applicable to the alleged mode of
15 liability, and in this case types 1 and 3 of the joint criminal
16 enterprise, the Trial Chamber would like to make it clear that a
17 reasonable Trial Chamber could conclude beyond a reasonable doubt that
18 there is sufficient evidence related to the crimes alleged in the
19 indictment to support the totality of the 26 counts of the indictment.
20 Part D: Review of the law applicable to criminal responsibility.
21 First of all, the Trial Chamber recalls that the Petkovic Defence
22 requests that some paragraphs of the indictment be stricken, arguing that
23 several modes of responsibility listed in the indictment, co-perpetration,
24 indirect co-perpetration, indirect perpetration, and aiding and abetting
25 in a joint criminal enterprise, are not recognised under customary
1 international law.
2 With that respect, the Trial Chamber notes that even if the
3 constituent elements of these various modes of responsibility were
4 different from the elements of the other modes of responsibility alleged
5 in the indictment, the same evidence may, nevertheless, be used to
6 establish all these modes of responsibility.
7 The Trial Chamber considers, therefore, that there is no
8 infringement to the rights of the accused to a fair and expeditious trial
9 since the Defence must prepare its case with respect to the totality of
10 the evidence adduced. For this reason, the Trial Chamber believes that
11 there will be no prejudice to the Defence if the Trial Chamber waits until
12 the end of the trial to rule on the existence of these modes of
13 responsibility. As a result, the Trial Chamber decides to postpone its
14 ruling on this issue to the end of the trial.
15 As for the modes of responsibility alleged in the indictment, the
16 Trial Chamber recalls that whilst the Accused Coric and Pusic challenged
17 their responsibility under all the modes of responsibility alleged in the
18 indictment, in this decision the Trial Chamber will endeavour to examine
19 the evidence related to the responsibility of these two accused for their
20 participation in a joint criminal enterprise of type 1 or 3.
21 The Trial Chamber in this regard would like to briefly recall the
22 constituent elements of that mode of responsibility.
23 The Appeals Chamber in the appeals judgement in the Tadic case, on
24 the 15th of July, 1999, defined the various categories of joint criminal
25 enterprise; and under the first category of joint criminal enterprise, all
1 the accused pursue one and the same criminal purpose and act together to
2 implement the objective.
3 The third category of joint criminal enterprise concerns crimes
4 that fall outside of the common criminal purpose but are, nevertheless, a
5 natural and foreseeable consequence of that common purpose.
6 In view of the case law of the Tribunal, the Trial Chamber finds
7 that the actus reus of the joint criminal enterprise, whatever its
8 category, includes the following elements: First of all, a plurality of
9 members; secondly, a common criminal purpose amounting to the commission
10 of a crime provided for in the Statute or involving that commission;
11 thirdly, a significant degree of participation of the members in the
12 execution of the common purpose.
13 The Trial Chamber would like to recall that following a number of
14 trial and appeals judgement, the Tribunal's jurisprudence in Tadic, for
15 example, or in the Vasiljevic appeal judgement of 25th of February, 2004,
16 the Tribunal's jurisprudence clearly shows that the common criminal
17 purpose may be inferred, if that is the only reasonable inference
18 available, may be inferred from the totality of the circumstances of the
19 case; so, just for example, from the joint and concerted action by several
20 persons, or the scope of the crimes over a relatively short period of
21 time, or from the repetition of similar attacks.
22 Furthermore, the Trial Chamber notes, as the Appeals Chamber did
23 in the Kvocka appeals judgement of 28 February 2005, that participation in
24 a joint criminal enterprise may take the form of an omission provided that
25 this omission has contributed to the common criminal purpose.
1 With respect now to the mens rea element, the Trial Chamber notes
2 that according to the jurisprudence, it defers according to the various
3 categories of joint criminal enterprise with respect to the each of the
4 forms of joint criminal enterprise.
5 With regard to the first category of joint criminal enterprise,
6 the Trial Chamber would like, may refer the parties to the Brdjanin
7 appeals judgement of April 3, 2007, where it is stated that the accused
8 must both intend the commission of the crime and intend to participate in
9 a common plan aimed at its commission.
10 With respect to the third category of joint criminal enterprise,
11 the Brdjanin appeals judgement, quoting the Tadic appeals judgement
12 previously quoted here, recalls that an accused can only be held
13 responsible for a crime outside the common criminal purpose if, firstly,
14 it was foreseeable that such a crime might be perpetrated by one or other
15 members of the group, and, secondly, if the accused willingly took that
17 It follows from this third category of joint criminal enterprise
18 that its members shall be held responsible not only for all the crimes
19 involved in the common criminal purpose but also for all those crimes that
20 are the natural and foreseeable consequence of the common purpose whatever
21 their place or their role within the joint criminal enterprise.
22 Section E: Responsibility of the Accused Coric and Pusic.
23 In order to analyse the responsibility of these two accused, the
24 Trial Chamber must first determine whether the evidence adduced would
25 allow a reasonable Trial Chamber to conclude that there existed a joint
1 criminal enterprise as alleged in the indictment.
2 To determine whether such a joint criminal enterprise existed, the
3 Trial Chamber must answer the following question on the basis of the
4 Prosecution evidence: Was there really a common criminal purpose aimed at
5 committing the crimes alleged in the indictment? Only then will the Trial
6 Chamber move on to assess the responsibility of both Accused Coric and
8 First part, with respect to the existence of a joint criminal
10 According to the Prosecution, from on or before 18 November 1991
11 to about April 1994, various persons, including the accused, established a
12 joint criminal enterprise in order to subjugate and remove the Bosnian
13 Muslims and other non-Croats who lived in areas which made up Herceg-Bosna
14 and to ethnically cleanse these areas. The Prosecution alleges that the
15 means used to that effect and to carry out this objective included a
16 series of crimes committed between 1992 and 1994, including murder,
17 imprisonment, transfer, deportation, destruction, and plunder.
18 The Prosecution alleges that the crimes listed in the indictment
19 occurred as part of the dissolution of the former Yugoslavia. The
20 Prosecution alleges that the ultimate objective of these leaders, Tudjman,
21 Susak, Boban, and Prlic, was to join the territory of Herceg-Bosna within
22 a Greater Croatia along the borders of the Banovina, a territorial entity
23 that existed between 1939 and 1941, whether as part of the Republic of
24 Croatia or in close association with the Republic of Croatia.
25 During the Prosecution case, the Trial Chamber identified several
1 pieces of evidence indicating that a plurality of persons pursued the
2 objective of creating a Croatian entity along the borders of the Banovina
3 of 1939.
4 Thus, on the 27th of December 1991, Franjo Tudjman, President of
5 the Republic of Croatia, stated at a presidential meeting that the
6 Croatian people should be united or reunited on a territory with the
7 widest possible borders.
8 At the same meeting, Mate Boban, President of the Croatian
9 Community and later Republic of Herceg-Bosna, talked about the division of
10 Bosnia-Herzegovina and about the creation of an independent Croatian
11 entity in Bosnia-Herzegovina. The minutes of this particular meeting are
12 to be found in Exhibit P 00089. This piece of evidence has been
13 corroborated by the testimony of Witness Stjepan Kljuic, former President
14 of the Croatian Democratic Union.
15 Witness Herbert Okun, representative of the international
16 community, testified that on the 6th of May, 1992, Radovan Karadzic,
17 President of the self-proclaimed entity of Republika Srpska, and Mate
18 Boban met in Graz in Austria to discuss the partition of Bosnia and
19 Herzegovina along the boundaries of the Croatian Banovina. Exhibit
20 P 00187 refers to the joint statement signed by Karadzic and Boban to that
22 Herbert Okun also testified that during the international
23 conference on the former Yugoslavia, held between September 1992 and May
24 1993, Franjo Tudjman was the de facto president of the Bosnian Croat
25 delegation, including, among others, Mate Boban and Milivoj Petkovic.
1 During that conference, Herbert Okun heard Franjo Tudjman make statements
2 about extending the borders of Croatia, either directly or by including
3 Herceg-Bosna within Croatia. He also heard him make statements about his
4 support for the government of Mate Boban.
5 Furthermore, Exhibit P 00466 shows that on the 11th of September,
6 1992, Franjo Tudjman, in person, prohibited, among other things, Slobodan
7 Praljak from conducting military operations beyond the borders of the
9 Witness Peter Galbraith, former US Ambassador to the Republic of
10 Croatia, confirmed that, from June 1993, Franjo Tudjman argued that the
11 Bosnian Muslims were not a real nation since there were Croats speaking
12 the Croatian language but who had converted to Islam, and he argued that
13 Mostar was the capital city of the Croatian Republic of Bosnia and
14 Herzegovina. Franjo Tudjman also stated, on that occasion, that the
15 Croats were concurring land which for centuries had belonged to Croats.
16 According to Peter Galbraith, Gojko Susak supported the views of Tudjman.
17 To conclude on that point, the Trial Chamber would like to refer
18 to Exhibit P 09078, admitted under seal, which shows that according to
19 Jadranko Prlic, the objective of the Zagreb government was indeed to
20 incorporate part of Bosnia and Herzegovina within the Republic of Croatia
21 in case Bosnia and Herzegovina was to disintegrate, and most Croats in
22 Herceg-Bosna supported that view.
23 The Trial Chamber will now review the evidence related to the
24 possible existence of a joint criminal enterprise, the aim of which was to
25 ethnically cleanse Muslims and other non-Croats from the areas that made
1 up Herceg-Bosna. The Trial Chamber will also determine to what extent a
2 plurality of persons, including the Accused Prlic, Stojic, Praljak, and
3 Petkovic, would have contributed to this joint criminal enterprise.
4 Further on, the Trial Chamber will address, in particular, the alleged
5 participation of the Accused Coric and Pusic.
6 Firstly, the Trial Chamber has received evidence indicating that
7 as early as 1992, the HVO reportedly implemented a policy of
8 discrimination and persecutions against Muslims and other non-Croats in
9 the municipalities located on the territory of Herceg-Bosna. This
10 evidence indicates that the HVO gradually gained political control of
11 these municipalities where it excluded Muslims and other non-Croats from
12 political and economic life; and that, at the same time, it imposed the
13 Croatian language, the Croatian currency, as well as an exclusively
14 Croatian curriculum in schools. In that respect, the Trial Chamber
15 refers, among others, to the testimonies of Fahrudin Rizvanbegovic, Edward
16 Vuilliamy, and Seid Smajkic for the municipality of Mostar.
17 Furthermore, the Trial Chamber reviewed Exhibit P 03038. That
18 includes a message of Jadranko Prlic and Bruno Stojic, dated 30th of June,
19 1993, and addressed to the Bosnian Croats, a message in which they stated
20 that Mostar was and would remain a Croatian city and was pre-destined to
21 be the capital city of all Croatian territories in Bosnia and Herzegovina.
22 On the 5th of November, 1993, as shown in Exhibit P 06454,
23 Jadranko Prlic informed Franjo Tudjman, Slobodan Praljak, and Milivoj
24 Petkovic that Mostar had all the assets to be the capital city of
1 The Trial Chamber also reviewed a large amount of evidence showing
2 that as of the month of January 1993, the HVO policy was to implement the
3 Vance-Owen Plan in a way that would require the removal in the long-run of
4 Muslims and other non-Croats from provinces 8 and 10 of the Vance-Owen
5 Plan, in order to further the creation and development of Herceg-Bosna.
6 In this respect, the Trial Chamber refers to the testimony of
7 representatives of the international community who were present on the
8 ground such as Witnesses BA and BH.
9 The Chamber has received reports from members of the European
10 Community Monitoring Mission, such as Exhibits P 01981 and P 02787.
11 This policy also emerges from the testimony of numerous witnesses
12 before the Trial Chamber. They testified about their forcible transfer or
13 their deportation to third countries.
14 Furthermore, Herbert Okun testified that the delegation of Bosnian
15 Croats at the international conference on the former Yugoslavia accepted
16 the Vance-Owen Peace Plan in January 1993. As was specified by Herbert
17 Okun, on the 20th of June, 1993, Lord Owen, who was the co-president of
18 the international conference for the former Yugoslavia, made clear to the
19 representatives of the Bosnian Croats that their interpretation of the
20 Vance-Owen Plan was not the right one.
21 In spite of this warning, there is an UNPROFOR report dated
22 24th of January, 1993. This is Exhibit P 01285. This report notes that
23 the leaders of the Croatian Community of Herceg-Bosna had started,
24 prematurely so, to take control of some territories in order to implement
25 the Vance-Owen Plan in the way they were interpreting it.
1 Indeed, Exhibit P 01146 is a decision by Jadranko Prlic, dated
2 15th of January, 1993, and it orders the ABiH forces deployed in the
3 provinces that were declared Croatian by the Vance-Owen Plan forced or
4 ordered these forces to submit to the HVO command.
5 On the same day, Bruno Stojic, the head of the defence department
6 of the Croatian Community of Herceg-Bosna, also issued an order for the
7 same purpose as is shown in Exhibit P 01140. It is an order addressed to
8 the heads of staff and the HVO military police administration. Again,
9 further to the order given by Bruno Stojic, Milivoj Petkovic the head of
10 the HVO staff forwarded the order to the command chain, the chain of
11 command of the HVO armed forces, as is shown in Exhibit P 01156.
12 The Trial Chamber also heard the testimony of witnesses such as
13 Witness CL, Witness CP, Sejfo Kajmovic, and Seid Smajkic, that from the
14 month of March to the month of May 1993, that is prior to the attack on
15 Mostar on the 9th of May, 1993, the HVO had organised the arrest and
16 imprisonment of hundreds of intellectuals and Muslim clerics from the
17 municipalities of Mostar, Capljina, and Stolac, and that it had detained
18 them over a long period of time.
19 Equally, the Trial Chamber has showing that as early as in May
20 1993, and more specifically after the 30th of June, 1993, and during the
21 summer of 1993, the HVO set up a large-scale operation aimed at arresting
22 thousands of Muslim men of military age in the municipalities of Mostar,
23 Capljina, and Stolac, aimed at detaining them in the camps of Heliodrom,
24 Dretelj, Gabela, and Ljubuski.
25 In this respect, the Trial Chamber refers inter alia to the report
1 of by Mr. Tadeusz Mazowiecki, Special Rapporteur of the United Nations, of
2 the 6th of September, 1993. This is Exhibit P 04822. It also refers to
3 the testimony of numerous witnesses who came to testify as to their arrest
4 and detention in these municipalities during that period of time.
5 Furthermore, several reports, including a diplomatic dispatch and
6 reports from a humanitarian organisation present in the field, show that
7 the HVO set up a process of relocation or resettlement to third countries
8 for Muslim men that had been taken prisoner and detained in the detention
9 facilities together with their families.
10 Thus, the report that has become Exhibit P 09502, under seal, as
11 corroborated by Exhibits P 09680, under seal, and P 09681, under seal,
12 shows that between the 17th and the 20th of July, 1993, the HVO released
13 from the Heliodrom camp some 800 Muslim men in exchange for the signature
14 they would give for a request for assistance in order to secure their
15 relocation to a third country. The HVO drove the men in several convoys
16 to transit camps located in Croatia.
17 The Trial Chamber also heard the testimony of Witness BA, that
18 Jadranko Prlic asked for the support of the international community for
19 transit centres to be created including in Ljubuski for Muslims about to
20 leave to go abroad, waiting transit visas that were to be issued by the
21 Croatian office for displaced persons and refugees. Exhibit P 09679,
22 under seal, supports the testimony of Witness BA in this respect.
23 The Trial Chamber also has heard evidence showing that the
24 operations carried out by the HVO, in municipalities it claimed were part
25 of Herceg-Bosna, followed the same recurrent pattern. On the basis of
1 this pattern, or the pattern was as follows: Muslim men of military age
2 were first arrested and detained in camps that were administered by the
3 HVO. Once the men had been removed, Muslim women, children, and elderly
4 were in turn arrested and detained and/or transferred to ABiH-controlled
5 territory or departed to a third country. In this respect, the Trial
6 Chamber refers inter alia to the testimony of Witnesses CA, CC, CE, and CJ
7 regarding the municipalities of Prozor, Stolac, and Capljina.
8 The Trial Chamber also has evidence showing that following such
9 operations carried out by the HVO in various municipalities, there were no
10 or only few Muslims left in these municipalities, because the Muslims were
11 detained in a camp, a camp run by the HVO, then transferred to
12 ABiH-controlled territory or deported to third countries. For instance,
13 we have a report sent to Colonel Zeljko Siljeg on the 24th of October,
14 1992. This is Exhibit P 00647, and it says that the city or town of
15 Prozor was "ethnically pure" after it had been taken over by the HVO the
16 day before.
17 Equally, Witness CR, an SDA member in Stolac, testified that by
18 the end of the year 1993, there were no Muslims left in Stolac since they
19 had all been detained in HVO camps.
20 Witness E testified that following the relocation process during
21 the summer of 1993, Muslim men who had been detained in the Ljubuski
22 prison and their families, together with their families, as a result of
23 that, there were only some 15 Muslim families left in the municipality of
24 Ljubuski. Some evidence adduced by the Prosecution indicate that the
25 military operations carried out by the HVO in municipalities that made up
1 Herceg-Bosna were part of a policy aimed at implementing the objectives
2 that Herceg-Bosna had given to itself.
3 For instance, we have Exhibit P 00466. It mentions a presidential
4 meeting held on the 11th of September, 1992, during which Franjo Tudjman,
5 in the presence of Gojko Susak, the Minister of Defence for the Republic
6 of Croatia, and the presence of Slobodan Praljak, recalled that they
7 needed to seize the opportunity provided by the conflict between the
8 Bosnian Serbs and Bosnian Muslims to insist on their theory of a Croatian
9 Banovina. On this occasion, Franjo Tudjman prohibited Slobodan Praljak
10 from carrying out military actions beyond the borders of the Banovina.
11 Equally, during a presidential meeting held on the 26th of
12 September, 1992, Slobodan Praljak warned Franjo Tudjman and Gojko Susak of
13 the danger connected with the mass influx of Muslim refugees in the
14 territories of Herceg-Bosna, and he advised them to seize the opportunity
15 provided by war to drive them out of the territory, failing which the HVO
16 would not be able to get a majority. This is shown in Exhibit P 00524.
17 The Trial Chamber also reviewed Exhibit P 06454 about a meeting
18 between Mate Boban, Jadranko Prlic, Slobodan Praljak, and Milivoj Petkovic
19 on the 5th of November, 1993, a meeting during which Jadranko Prlic
20 claimed that the military victory would prove necessary in order to
21 implement the objectives of Herceg-Bosna.
22 Again, on the 13th of February, 1994, Jadranko Prlic stated to
23 several leaders of the Republic of Croatia, including Franjo Tudjman, that
24 the Croatian Republic of Herceg-Bosna had all the characteristic features
25 of a state. He also argued that this state should have the widest
1 possible borders, including all of Central Bosnia, which could be
2 accomplished through military means. This is to be found in Exhibit
3 P 07856.
4 Finally, the Trial Chamber heard several witnesses,
5 representatives of the international community, such as Witnesses BA, BC,
6 Christopher Beese, and Philip Watkins. They said that through a
7 propaganda policy, the HVO undertook to transfer a large number of Bosnian
8 Croats who came from other areas in Bosnia-Herzegovina, such as Central
9 Bosnia, to transfer them to provinces 8 and 10 in the Vance-Owen Plan.
10 According to the report of the ECMM found in Exhibit P 02849, as
11 corroborated by the testimony of Christopher Beese and Philip Watkins,
12 this policy aimed at shifting the balance of power in provinces 8 and 10
13 to make it favourable to the Croats.
14 The Trial Chamber also has evidence showing that the HVO used the
15 mass influx of Croats in provinces 8 and 10 to justify the transfer or
16 deportation of Muslims who used to live there. In this respect, the Trial
17 Chamber refers to a report by a humanitarian organisation present on the
18 ground, that is P 09678, under seal; and it was corroborated by the
19 testimony of Witness BA.
20 The Trial Chamber also reviewed the report sent by Jadranko Prlic
21 to the Presidency of the Croatian Community of Herceg-Bosna on the 14th of
22 July, 1993. This is P 03413. In this report, Jadranko Prlic mentioned a
23 proposal, an HVO proposal to the Presidency of the Croatian Community of
24 Herceg-Bosna, relating to the transfer of Croatian population from areas
25 that were not included in Herceg-Bosna to the territory of Herceg-Bosna.
1 Finally, at a meeting with inter alia Slobodan Praljak and Milivoj
2 Petkovic on the 5th of November, 1993, Jadranko Prlic mentioned the need
3 to transfer Croatian populations to areas that would "remain Croat areas."
4 In this respect, the Trial Chamber refers to Exhibit P 06454 that has
5 already been mentioned.
6 The Trial Chamber is of the view that a Trial Chamber, a
7 reasonable Trial Chamber, could make a finding beyond any reasonable doubt
8 that all of these acts were committed to carry out a plan aimed at
9 changing the ethnic balance of the areas that formed Herceg-Bosna and
10 mainly to deport the Muslim population and other non-Croat population out
11 of Herceg-Bosna in a final way in order to create an ethnically pure
12 Croatian territory within Herceg-Bosna.
13 In conclusion and in light of the evidence reviewed by the Trial
14 Chamber both on the existence of a significant and organised displacement
15 of Muslims and other non-Croats, and on the conduct of the accused faced
16 with these events, a reasonable Trial Chamber could conclude that there
17 was a joint criminal enterprise during the period covered by the
18 indictment. It was a joint criminal enterprise aimed principally at the
19 creation of a Croatian entity taking back the borders of the Banovina of
20 1939 and aimed at the forcible removal of non-Croat population out of
22 The evidence shows that the means used by the HVO in order to
23 remove the non-Croatian population included persecution, imprisonment,
24 detention, forcible transfer, and deportation.
25 Equally, if acts such as wilful killing, murder, rape, inhuman
1 acts or cruel treatment, forced labour, appropriation and destruction of
2 property, use of terror, unlawful attacks on civilians and/or the other
3 crimes alleged in the indictment were not envisioned in the common purpose
4 or design, a reasonable Trial Chamber could find that they were the
5 natural and foreseeable consequence of the implementation of the joint
6 criminal enterprise inasmuch as the perpetrators of the crimes was
7 foreseeable as part of the forcible transfer of population.
8 Let me now deal the responsibility of Accused Coric and Pusic.
9 Initially, the Trial Chamber will examine the issue of the
10 responsibility of the Accused Coric and that of the Accused Pusic. In
11 this respect, the Trial Chamber will recall the role and positions held by
12 each of the accused and will see whether they may have participated in the
13 joint criminal enterprise.
14 A) The responsibility of the Accused Coric. The Trial Chamber has
15 found that a reasonable Trial Chamber could find beyond any reasonable
16 doubt that there is a joint criminal enterprise as alleged in the
17 indictment. The Trial Chamber will now consider whether a reasonable
18 Trial Chamber could conclude that the Accused Coric was a member of the
19 JCE and could have participated in its implementation.
20 In this respect, the Trial Chamber recalls that the intent to
21 share the common criminal purpose and to commit the crimes planned by the
22 JCE members can be established through circumstantial evidence.
23 With regard to the participation and implementation of the joint
24 criminal enterprise, we must recall that it can be participation through
25 acts or omissions.
1 In order to establish whether the Accused Coric had the requisite
2 intent to drive, deport Muslims from the territory of Herceg-Bosna through
3 force and other criminal means, the Trial Chamber will first look into his
4 part and position within the institutions of the Croatian Community and
5 then Republic of Herceg-Bosna.
6 Then the Trial Chamber will discuss his participation in the
7 creation of detention facilities, the transfer of detainees from one
8 facility to another in the management of prisoners, the release of
9 prisoners. It will also discuss his portion in the deportation to third
11 The Trial Chamber will also briefly recall the evidence relating
12 to the perpetration of crimes in detection facilities, be it by members of
13 the military police or by third parties. The Trial Chamber will also
14 discuss the participation of the military police to the arrest and
15 deportation of Muslims from their homes and the perpetration of the crime
16 of rape, as well as the question whether the Accused Coric knew of all
17 these crimes and failed to act in order to prevent such acts of them, or
18 punish the perpetrators thereof.
19 The HVO military police was created early April 1992. According
20 to Exhibit P 00956, a report signed by the Accused Coric himself, it was
21 sent to the all of - interpreter's correction - all the units of the
22 military police were placed under his command as of the 13th of April,
24 When the administration of the military police was created in
25 1992, the accused was appointed, I quote, "chief of the military police
1 administration." A large number of documents, including orders signed by
2 "Chief Valentin Coric." These are Exhibits P 00513, P 00956, P 01635,
3 P 03090, P 04174.
4 The documents show that the Accused Coric effectively held the
5 position of chief of the military police administration right to the end
6 of the year 1993. When the Croatian Republic of Herceg-Bosna was created
7 in November 1993, the Accused Coric was appointed Minister of the Interior
8 of the Croatian Republic of Herceg-Bosna, as is shown by Exhibit P 06995.
9 The Trial Chamber admitted two documents that provided information
10 as to the function and position of chief of the administration of the
11 military police as well as its mission. This is the handbook on the
12 operation of military police units. It was published on the 30th of
13 November, 1992, by the military police administration. This is Exhibit
14 P 00837. The other document is a handbook, undated, Exhibit P 00978.
15 On the basis of these two documents, it appears that the chief of
16 the military police commands all units of the military police and takes
17 decisions on all relevant issues pertaining to the functioning of the
18 military police. According to Exhibit P 00837, the military police also
19 has responsibility for the protection of individuals and property within
20 its area of responsibility. It has the responsibility of prosecuting
21 crimes committed by HVO members and must ensure safety within detention
22 facilities and must ensure the security and safety of war prisoners.
23 On the 22nd of September, 1992, the Accused Coric issued an order
24 establishing the central military prison in Heliodrom, in order to meet
25 the need to keep war prisoners and ensure their safety. This is shown in
1 Exhibit P 00513.
2 He was also involved in creating other detention facilities, as is
3 shown by Exhibit P 01635, and was also involved in transferring detainees
4 from a detention facility to another. In this respect, the Trial Chamber
5 refers inter alia to the testimony of Witness E, and to documents P 02546,
6 P 05193, P 05194, P 05302, and P 05312, under seal.
7 The Trial Chamber reviewed evidence on the basis of which it could
8 find that the Accused Coric was responsible for the management of
9 detention facilities. We had Witness Josip Praljak. He testified that on
10 the 22nd of September, 1992, Accused Coric issued instructions for the
11 Heliodrom prison, and those instructions were underlying the management of
12 the prison until December 1993. These instructions were admitted in
13 Exhibit P 00514.
14 Josip Praljak equally confirmed that the Accused Coric was the man
15 who was in charge of appointing the warden of the prison. Based on the
16 testimony on Josip Praljak and of Witness BA, the Trial Chamber could also
17 find that the Accused Coric regulated access to detention facilities. The
18 evidence could also enable the Trial Chamber to conclude that he played a
19 determining role in the decision to release Muslim detainees detained in
20 various HVO detention facilities and to deport them to third countries.
21 For instance, on the 6th of July, 1993, the Accused Coric sent a
22 notice to Colonel Obradovic and to the wardens of the Dretelj, Gabela, and
23 Heliodrom prisons, and also to the Ljubuski prison, reminding them that
24 the police military administration was the only administration with
25 jurisdiction over military prisoners and was the only authority to decide
1 as to the release of detainees. This notice was admitted as Exhibit
2 P 03220.
3 Witness E confirmed that Accused Coric also decided about the
4 release of detainees in Ljubuski. Witness E further testified that he
5 ordered to release all those who had a letter of guarantee making it
6 possible for them to depart to third countries.
7 Exhibit P 04572 confirms the testimony of Witness E in this
8 respect. Witness E gave a detailed description of the deportation process
9 for Muslim detainees in third countries. The fact that prisoners who had
10 a letter of guarantee were released from prisons and had to leave the
11 territory of the Croatian Community of Herceg-Bosna with their families
12 within 24 hours. Exhibits P 04263, P 04299, and P 10190 corroborate the
13 fact that towards the end of August, 1993, Muslim detainees were released
14 because they had such letters of guarantee.
15 The Trial Chamber is not going to review in a detailed fashion the
16 large amount of evidence that could show that crimes were committed within
17 HVO detention facilities. The Trial Chamber has heard a large number of
18 witnesses who described the inhuman and humiliating conditions of their
19 detention as well as the constant fear of mistreatment. Many of these
20 witnesses said that they were abused, beaten, or sent to front lines in
21 order to dig trenches under ABiH fire. Some were wounded; some died.
22 In this respect, let us recall the testimony of Witnesses Alija
23 Lizde, CR, CU, CW, and DD.
24 In light of the evidence, a reasonable Trial Chamber could
25 conclude, beyond any reasonable doubt, that the military police failed to
1 ensure safety within HVO detention facilities. Furthermore, some
2 evidence, including Exhibit P 03630, show that military police members may
3 themselves have committed crimes or be involved in the perpetration of
5 Furthermore, the Prosecution adduced evidence that the Accused
6 Coric was informed of the security situation and of crimes committed in
7 detention facilities. By way of an example, we can quote reports P 03171
8 on 4th of July, 1993; P 03209 of 5th of July, 1993; P 03377 of the 11th of
9 July, 1993; and P 05647 of the 5th of October, 1993.
10 The situation within the detection facilities did not improve,
11 following the notice given to Coric by his subordinates, is a fact that
12 could lead a reasonable Trial Chamber to conclude that the Accused Coric
13 failed in his obligations to prevent and punish such crimes.
14 The Prosecution further adduced evidence that could show that the
15 military police was actively involved in the arrest and deportation of
16 Muslims from their homes during various operations carried out in 1993.
17 Witness CR testified that as of April 1993, the HVO military
18 police arrested prominent Muslim inhabitants of the Stolac municipalities.
19 A report of the 3rd Company of the 3rd Battalion of the Capljina military
20 police, dated 1st of July, 1993, this is Exhibit P 03075, stated that on
21 the 30th of June and the 1st of July, 1993, the HVO military police,
22 together with other HVO units, arrested 1.300 individuals in the
23 municipalities of Stolac, Capljina, Mostar, and Neum. Witnesses BC and C
24 also testified about the involvement of the HVO military police in the
25 deportation and arrest of Muslims during the summer of 1993.
1 Witness BC testified that he had regular contacts with the Accused
2 Coric about the harassment and arrest of Muslim inhabitants and about the
3 looting and destruction of Muslim property in the municipalities of
4 Ljubuski, Mostar, Stolac, and Capljina, for instance. And Accused Coric
5 reportedly promised to send the military police and to ensure the safety
6 of the Muslim population, but he didn't follow up his promise.
7 Lastly, given that the Coric Defence focused on the crime of rape,
8 when they challenge the responsibility of their client, the Trial Chamber,
9 therefore, will discuss this issue. The Defence argues that the
10 Prosecution failed to establish the identity of the perpetrators of the
11 rapes. The Defence of the Accused Coric argued that they were people who
12 used the war situation to perpetrate isolated crimes. The Defence further
13 argued that most of the victims did not report the rapes to the police,
14 and it would have been difficult to investigate them since the victims had
15 left the territory of Bosnia and Herzegovina.
16 The Trial Chamber notes that the Prosecution adduced evidence,
17 including Exhibit P 03090, a report signed by Coric, showing that the
18 military police participated in combat operations in Prozor in 1993.
19 Other evidence, such as Exhibits P 04161, under seal, and P 04177,
20 indicate that military police members committed rapes and other crimes in
21 the villages of Duge, Lapsunj, and Podgrade in the summer of 1993. The
22 same evidence is such that it could show that the military police
23 commanders had been informed of the situation in the three villages, but
24 they failed to take any steps in order to end the situation.
25 Based on the above evidence, a reasonable Trial Chamber could
1 find, beyond any reasonable doubt, that the Accused Coric shared the
2 common criminal purpose of deporting Muslims from the territory of
3 Herceg-Bosna by force and other criminal means, and that he participated
4 in the joint criminal enterprise, actively, by using the military police
5 for criminal purposes, or passively, by omitting, by failing to protect
6 the Muslim population whilst this was required by the military police
7 manuals. At this stage, it is not called upon the Trial Chamber to rule
8 as to whether the crimes were part of the common criminal purpose or were,
9 rather, a natural or foreseeable consequence thereof.
10 In light of the above evidence, a reasonable Trial Chamber could
11 conclude that Accused Coric is responsible or guilty of all the counts
12 alleged in the indictment under JCE 1 or JCE 3.
13 (B) The responsibility of the Accused Pusic.
14 The Trial Chamber is now to determine whether a reasonable Trial
15 Chamber could conclude, beyond all reasonable doubt, that the Accused
16 Pusic was a member of the joint criminal enterprise and that he
17 participated in its implementation.
18 The Trial Chamber will, therefore, review the positions held by
19 Pusic during the period of the indictment, in order to determine whether a
20 reasonable Trial Chamber could conclude that the Accused Pusic had a
21 leadership position as alleged in paragraph 17 of the indictment.
22 The Trial Chamber will then review the acts and omissions deriving
23 from his positions, and in so doing will determine whether a reasonable
24 Trial Chamber could infer his intent and partial in the joint criminal
1 I see that the registrar is a bit unsettled. I just have three
2 more pages, so I'll go on.
3 With respect to the various positions held by the Accused Pusic,
4 the Trial Chamber has evidence, such as Exhibit P 02020, showing that on
5 the 22nd of April, 1993, Valentin Coric, chief of the military police,
6 appointed Pusic liaison officer in charge of representing the HVO military
7 police for all issues pertaining to exchanges of arrested individuals.
8 The Trial Chamber also has some evidence showing that on the 11th
9 of May, 1993, Bruno Stojic, who was then chief of the defence department
10 in the HVO, tasked the Accused Pusic to act as liaison officer between the
11 HVO and the SpaBat of the UNPROFOR. In this respect, the Trial Chamber
12 refers to Exhibit P 02291. Later informing SpaBat of the appointment.
13 Furthermore, the Trial Chamber has a large amount of evidence,
14 including a publication in the Official Gazette of the HZ HB, this is
15 Exhibit P 03208, showing that the Accused Pusic was appointed, I quote,
16 "chief of the new service for exchange of prisoners and other persons."
17 He was appointed by Jadranko Prlic, the president of the HVO, on the 15th
18 of July, 1993.
19 The aim of this service was to set up a database, including all
20 prisoners and other persons for exchanges, to establish connections with
21 other parties for the exchange of prisoners, to suggest methods and
22 exchange conditions, and to cooperate with international organisations and
23 other HZ HB organs.
24 Finally, the Trial Chamber has evidence showing that on the 6th of
25 August, 1993, Bruno Stojic, who was then chief of the defence department
1 in the HVO, appointed the Accused Pusic head of a new commission which
2 was, I quote, "authorised to take charge of all HB HVO prisons and
3 detention facilities where prisoners of war or military detainees were
4 detained." This is Exhibit P 03995.
5 This commission was to establish a list of detainees, categories
6 of prisoners to control all detection facilities and prisons, solve all
7 operational problems or security and safety problems, and to regulate
8 release or exchange of prisoners, detainees.
9 The Trial Chamber also has evidence showing that these various
10 appointments translated, in fact, in new powers and various actions.
11 Exhibits P 03052 and P 04141 respectively show that the Accused Pusic, on
12 the one hand, immediately made suggestions as to how to organise and run
13 the service charged with the exchange of prisoners and other persons; and,
14 on the other hand, issued orders as the president of the commission in
15 charge of detention facilities and prisons in the HVO.
16 The Trial Chamber has heard many witnesses who were
17 representatives of the international community, such as Witnesses BD and
18 BC, but it also heard of service of the ECMM. They testified that the
19 accused was the deputy of Coric and that he played a major part in all
20 issues pertaining to displaced people and war prisoners.
21 Equally, Witnesses BB and Philip Watkins, representatives of the
22 international community, both testified that the Accused Pusic was the one
23 person with whom they negotiated in order to secure the right to visit
24 detention facilities.
25 The Trial Chamber has evidence, such as reports drawn up by
1 various people in charge of detention facilities, showing that Pusic was
2 informed of the bad and harsh conditions in which the prisoners were
3 detained in the HVO detention units and prisons, and he was informed of
4 the mistreatment they experienced. In this respect, the Trial Chamber
5 refers inter alia to reports on Heliodrom and the Gabela military prison.
6 These are Exhibits P 05077 and P 05485.
7 Furthermore, Witness Josip Praljak, a former deputy warden of the
8 Heliodrom camp, testified that Accused Pusic, as a member of the military
9 police, had the power to agree to prisoners being used for labour,
10 including on front lines. The Trial Chamber also has evidence showing
11 that the Accused Pusic not only authorised the use of detainees for such
12 labour but also knew of the fact that the prisoners were working in
13 dangerous conditions and were times wounded or killed. In this respect,
14 the Trial Chamber refers inter alia to reports that are Exhibits P 03414
15 and P 07498.
16 Witness Josip Praljak also testified before the Trial Chamber that
17 there never was any reaction to several warnings he had sent regarding how
18 dangerous the work done by prisoners was. The Trial Chamber has heard
19 various heads of detention facilities or prisons, for instance, Josip
20 Praljak. They described how the release of prisoners was organised in
21 exchange for them leaving HVO-controlled territory. The Trial Chamber
22 also has evidence showing that the Accused Pusic played a major part in
23 the release of these detainees.
24 For instance, the minutes of a meeting held on the 11th of
25 December, 1993, with various heads of prisons and senior HVO officials.
1 This is Exhibit P 07148. It shows that Pusic agreed to the release of
2 prisoners provided preparation was made for the prisoners to be sent
4 The Trial Chamber also heard various witnesses, for instance,
5 Witness E. He was a member of the military police. The Chamber heard
6 Witness Alija Suta. He was detained in various camps. The Trial Chamber
7 has reports, such as Exhibit P 07178, that show that the prisoners in
8 camps were released provided they supplied a letter of guarantee showing
9 that they were going to relocate to another country.
10 The Trial Chamber also has received several release forms signed
11 by Pusic, Exhibit P 05949 for Witness Alija Lizde, and Exhibit P 07097 for
12 Witness Fahrudin Rizvanbegovic.
13 The Trial Chamber heard Witness BC, a representative of the
14 international community. He testified that the services headed by the
15 Accused Pusic issued documents through which Mostar Muslims would
16 relinquish their property to the HVO and would leave the country.
17 Finally, Witness BC confirmed that on the 19th of September, 1993,
18 the Accused Pusic had claimed to him that the only suitable solution was
19 to send all the Muslims from Western Herzegovina to the east bank of
20 Mostar because, I quote, "that's where they belong." The minutes of the
21 meeting is Exhibit P 09848, under seal.
22 In light of the above evidence, a reasonable Trial Chamber could
23 find, beyond any reasonable doubt, that the Accused Pusic held a
24 leadership position and shared the common criminal purpose of deporting
25 Muslims from the territory of Herceg-Bosna by force and other criminal
1 means, and that he participated in the joint criminal enterprise through
2 his acts and omissions as an officer of the HVO military police in charge
3 of the exchanges of Bosnian Muslims detained by the HVO, as the chief of
4 the service in charge of the exchange of prisoners and other persons, and
5 as the president of the commission in charge of all the Herceg-Bosna
6 prisons and detention facilities.
7 At this stage of the proceedings, it is not for the Trial Chamber
8 to rule as to whether the crimes perpetrated were part of the common
9 criminal purpose or were, rather, a natural or foreseeable consequence.
10 Therefore, in light of the above evidence, a reasonable Trial Chamber
11 could find that the Accused Pusic is responsible and guilty of all the
12 counts alleged in the indictment under JCE 1 or JCE 3.
13 In light of what we have set out regarding the responsibility of
14 Accused Coric and Pusic, the Trial Chamber considers that the evidence led
15 by the Prosecution allows for the purposes of Rule 98 bis, the finding
16 that any reasonable trier of fact could make a finding of guilt for the
17 two accused, beyond all reasonable doubt, with regard to all the counts of
18 the indictment under JCE 1 and 3.
19 The Trial Chamber stresses that because of the above finding, it
20 does not have to look, for the purposes of Rule 98 bis, into the other
21 forms and categories of responsibility as alleged in the indictment; that
22 is, participation in a joint criminal enterprise 2, other forms of
23 liability other than JCE under Article 7(1), and command responsibility
24 under Article 7(3).
25 For the above reasons and pursuant to Rule 98 bis, the Trial
1 Chamber dismisses the motions for acquittal.
2 The Rule 98 bis hearing stands adjourned. We shall reconvene in
3 March as shown and specified in a Scheduling Order. Thank you.
4 --- Whereupon the Ruling on 98 bis adjourned
5 at 10.56 a.m.