Page 25468
1 Tuesday, 1 September 2004
2 [Judgement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.30 p.m.
6 JUDGE AGIUS: Good afternoon. Could you call the case, please.
7 THE REGISTRAR: Good afternoon, Your Honours. This is case number
8 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin.
9 JUDGE AGIUS: Mr. Brdjanin, good afternoon to you. I want to make
10 sure that you can follow the proceedings in a language that you can
11 understand.
12 THE ACCUSED: [Interpretation] Good afternoon, Your Honours. Yes,
13 I can.
14 JUDGE AGIUS: Thank you. Please be seated. Appearances for the
15 Prosecution.
16 MS. KORNER: Good afternoon, Your Honours. Joanna Korner
17 temporarily part of the Office of the Prosecutor again, also acting case
18 manager, together with Anna Richterova, Ann Sutherland, Julian Nicholls
19 and Colin Black for the Prosecution.
20 JUDGE AGIUS: Thank you and good afternoon to you, and welcome
21 back, Ms. Korner.
22 Appearances for the Defence.
23 MR. ACKERMAN: Good afternoon, Your Honours. I'm John Ackerman.
24 I'm here with David Cunningham and Aleksandar Vujic.
25 JUDGE AGIUS: All right, thank you, Mr. Ackerman, and good
Page 25469
1 afternoon to the three of you.
2 We are going to proceed with the summary of the judgement. I will
3 go slowly.
4 Trial Chamber II of the International Criminal Tribunal for the
5 former Yugoslavia is sitting today to deliver its Judgement in the trial
6 of Radoslav Brdjanin.
7 The accused was charged with genocide, complicity in genocide,
8 grave breaches of the Geneva Conventions, violations of the laws and
9 customs of war, and crimes against humanity committed in 13 municipalities
10 in the Bosnian Krajina between April 1, 1992, and December 31, 1992. The
11 area relevant to the indictment includes the municipalities of Banja Luka,
12 Bosanska Krupa, Bosanski Novi, Bosanski Petrovac, Celinac, Donji Vakuf,
13 Kljuc, Kotor Varos, Prijedor, Prnjavor, Sanski Most, Sipovo, and finally,
14 Teslic.
15 The accused stood trial for the following 12 charges:
16 Genocide, count 1, and complicity in genocide, count 2. That is
17 for having participated in a campaign designed to destroy Bosnian Muslims
18 and Bosnian Croats, in whole or in part, as national, ethnical, racial or
19 religious groups, as such, in the mentioned municipalities of the
20 Autonomous Region of Krajina.
21 Persecutions, a crime against humanity, count 3, namely for having
22 subjected the Bosnian Muslim and Bosnian Croat populations in the said
23 municipalities to killings, torture, and mistreatment, for denying them
24 fundamental rights, for deporting or forcibly transferring them, as well
25 as for destroying, wilfully damaging and looting property in predominantly
Page 25470
1 Bosnian Muslim and Bosnian Croat populated areas and destroying or
2 wilfully damaging Bosnian Muslim and Bosnian Croat buildings dedicated to
3 religion.
4 Extermination, a crime against humanity, count 4, and wilful
5 killings, a grave breach of the Geneva Conventions of 1949, count 5. That
6 is for having participated in the campaign designed to exterminate members
7 of the Bosnian Muslim and Bosnian Croat populations in the Autonomous
8 Region of Krajina through a significant number of killings in non-Serb
9 areas, camps, and other detention facilities and during deportation or
10 forcible transfers.
11 Torture, a crime against humanity, count 6, and torture as a grave
12 breach of the Geneva Conventions of 1949, count 7. That is for having
13 inflicted severe pain or suffering on the Bosnian Muslim and Bosnian Croat
14 population in the aforementioned municipalities through inhuman treatment
15 including sexual assaults, rapes, brutal beatings, and other forms of
16 severe maltreatment in various locations.
17 Deportation, a crime against humanity, count 8, and inhumane acts
18 consisting of forcible transfer, a crime against humanity, count 9. That
19 is for having deported or forcibly transferred Bosnian Muslims and Bosnian
20 Croats from the Autonomous Region of Krajina to areas under the control of
21 the legitimate government of Bosnia-Herzegovina and to Croatia.
22 Unlawful and wanton extensive destruction and appropriation of
23 property not justified by military necessity, a grave breach of the
24 Geneva Conventions of 1949, count 10.
25 Wanton destruction of cities, towns and villages, or devastation
Page 25471
1 not justified by military necessity, a violation of the laws or customs of
2 war, count 11.
3 And finally, destruction or wilful damage done to institutions
4 dedicated to religion, a violation of the laws or customs of war, count
5 12.
6 The Prosecution, while not alleging that the accused physically
7 perpetrated any of the crimes in question alleged that he is individually
8 criminally responsible pursuant to Article 7(1) of the Statute, namely for
9 having participated in a joint criminal enterprise, the purpose of which
10 was the permanent forcible removal of Bosnian Muslim and Bosnian Croat
11 inhabitants from the territory of the planned Serbian state by the
12 commission of the crimes alleged in counts 1 through 12 of the indictment.
13 Alternatively, the Prosecution pleaded the accused's individual
14 criminal responsibility pursuant to an extended form of joint criminal
15 enterprise, the purpose of which was the commission of the crimes of
16 deportation and forcible transfer whereby the commission of other crimes
17 -- of the other crimes charged in the indictment was alleged to have been
18 a natural and foreseeable consequence of the crimes of deportation and
19 forcible transfer.
20 In addition, the accused was charged pursuant to Article 7(1) of
21 the Statute for having planned, instigated, ordered or otherwise aided and
22 abetted in the planning, preparation or execution of these crimes as well
23 as pursuant to Article 7(3) of the Statute for the crimes committed by his
24 subordinates whilst he was holding positions of superior authority.
25 Throughout the trial proceedings, which commenced on January 23,
Page 25472
1 2002 and ended on April 22, 2004, the Trial Chamber was confronted with a
2 large number of -- amount of evidence, testimonial and documentary. It
3 sat 284 trial days, during which it heard the evidence of 135 viva voce
4 Prosecution witnesses and 19 viva voce Defence witnesses. In addition,
5 the Prosecution tendered 104 written witness statements pursuant to Rule
6 92 bis. The Trial Chamber called one witness proprio motu pursuant to
7 Rule 98. In total, 2.736 and 314 exhibits were tendered in evidence by
8 the Prosecution and by the Defence respectively. The complete Trial
9 Record exceeds 61.000 pages.
10 For the purpose of this hearing, I shall briefly summarise the
11 Trial Chamber's findings and reasons for these findings. I emphasise,
12 however, that this is only a summary and that it does not in any way form
13 part of the judgement of the Trial Chamber. The only authoritative
14 account of the findings of the Trial Chamber is in the written judgement
15 which will be available to the parties and the public today at the end of
16 these proceedings.
17 I'll start with the facts of the case, and first and foremost the
18 strategic plan and its implementation.
19 The death of Marsal Tito and the collapse of the League of
20 Communists in January of 1990 led to the emergence of nationalist parties
21 throughout the former Yugoslavia. The first multi-party elections were
22 held in November 1990 in Bosnia and Herzegovina, and the SDA, that is the
23 Bosnian Muslim Party for Democratic Action; the HDZ, that is the Croatian
24 Democratic Union; and the SDS, that is the Serbian Democratic Party,
25 collectively won the overwhelming majority of votes.
Page 25473
1 The break-up of the Socialist Federal Republic of Yugoslavia, and
2 in particular the secession of Slovenia and Croatia, had a significant
3 impact on the socio-political situation in Bosnia and Herzegovina. From
4 late summer 1991, many military-aged men from Bosnia and Herzegovina were
5 mobilised to join the army to fight in Croatia. A large number of Bosnian
6 Serbs responded, but Bosnian Muslims and Bosnian Croats, supported and
7 encouraged by their respective leaders, generally did not. This led to
8 increased tension between the ethnicities, especially in the Bosnian
9 Krajina region bordering Croatia.
10 Other sources of anxiety and fear for the people in the Bosnian
11 Krajina were the threatening conduct of the soldiers returning from the
12 battlefields in Croatia and the influx of large numbers of Serbian
13 refugees from Croatia, the latter in particular causing serious housing
14 problems. Furthermore, the conflict in Slovenia and Croatia had a
15 disastrous impact on the economy of Bosnia and Herzegovina. The flow of
16 goods between the republics was interrupted and the whole of the Socialist
17 Federal Republic of Yugoslavia was affected by hyperinflation.
18 In this atmosphere of tension, the three main nationalist parties,
19 having separate national agendas with conflicting interests, failed to
20 reconcile their differences and started moving in opposite directions.
21 Most importantly, they disagreed on the question of the constitutional
22 status of Bosnia and Herzegovina. While the SDA and the HDZ, following
23 the declarations of independence of Slovenia and Croatia, promoted the
24 secession of the Socialist Republic of Bosnia and Herzegovina from the
25 Socialist Federal Republic of Yugoslavia, the SDS strongly advocated the
Page 25474
1 preservation of Yugoslavia as a state in order to ensure that the Serbs
2 would continue to live together in a single state and would not become a
3 minority in an independent Bosnian state.
4 During the second half of 1991, it appeared increasingly unlikely
5 that the Socialist Republic of Bosnia and Herzegovina would remain within
6 the Socialist Federal Republic of Yugoslavia. The Trial Chamber is
7 satisfied beyond reasonable doubt that precisely during this period the
8 Bosnian Serb leadership, including the main board and other senior members
9 of the SDS, as well as the Bosnian Serb representatives of the armed
10 forces, devised a plan to link Serb-populated areas in Bosnia and
11 Herzegovina together to gain control over these areas and to create a
12 separate Bosnian Serb state from which most non-Serbs would be permanently
13 removed. Throughout the judgement, this is referred to as the "Strategic
14 Plan." The Bosnian Serb leadership knew that the strategic plan could
15 only be implemented by the use of force and fear.
16 On December 19, 1991, the main board of the SDS issued a document
17 entitled "Instructions for the Organisation and Activity of Organs of the
18 Serbian People in Bosnia and Herzegovina in Extraordinary Circumstances."
19 Throughout the judgement, this document is referred to as the Variant A
20 and B document or Variant A and B instructions. These instructions
21 provided for the conduct of specified activities in all municipalities in
22 which Serbs lived, and essentially mapped out the takeover of power by
23 Bosnian Serbs in municipalities where they constituted a majority of the
24 population - that was covered by the Variant A part - and where they were
25 in the minority - and that was covered by the Variant B part.
Page 25475
1 On January 9th, 1992, the newly created Assembly of the Serbian
2 people in Bosnia and Herzegovina proclaimed the Serbian Republic of Bosnia
3 and Herzegovina. It was composed of the so-called Serbian autonomous
4 regions and districts which included the Autonomous Region of Krajina.
5 During the 16th session of the Assembly of the Serbian People in Bosnia
6 and Herzegovina that took place on May 12, 1992, at that time when the
7 armed conflict had already begun, Radovan Karadzic articulated the six
8 strategic goals of the Serbian people of Bosnia and Herzegovina. The
9 first and most fateful of these goals was the "separation from the other
10 two national communities - separation of states." In essence, these
11 strategic goals constituted a plan to seize and control territory,
12 establish a Bosnian Serb state, defend defined borders, and separate the
13 ethnic groups within Bosnia and Herzegovina by forcibly and permanently
14 removing most of the non-Serb population from the territory of the
15 proclaimed Bosnian Serb state. General Lieutenant Colonel Ratko Mladic,
16 the commander of the newly established army of the Serbian Republic of
17 Bosnia and Herzegovina - that is the VRS - accepted that the VRS would be
18 instrumental in implementing these political strategic goals and indeed
19 transferred them into operational imperatives for the VRS.
20 The strategic plan was implemented in successive steps so that the
21 Trial Chamber was able to clearly recognise a pattern of criminal conduct
22 by the actors involved throughout the relevant municipalities.
23 Already prior to the outbreak of the armed conflict, the SDS
24 started waging a propaganda war which had a disastrous impact on the
25 peoples of all ethnicities, creating mutual fear and hatred and
Page 25476
1 particularly inciting the Bosnian Serb population against the other
2 ethnicities. Within a very short period of time, citizens who had
3 previously lived together peacefully became bitter enemies, and many of
4 them, in the present case mainly Bosnian Serbs, became killers, influenced
5 by a media which, by that time, was already under the control of the
6 Bosnian Serb leadership. The use of propaganda was an integral part of
7 the implementation of the strategic plan and created a climate in which
8 people were prepared to tolerate the commission of crimes and to commit
9 crimes.
10 A further measure towards the implementation of the strategic plan
11 was the dismissal of Bosnian Muslims and Bosnian Croats from key positions
12 in the army, the police, and other public institutions and enterprises.
13 This process had already started during the war in Croatia when the
14 refusal of non-Serbs to respond to mobilisation had resulted in their
15 dismissal. It escalated during the period relevant to the indictment,
16 resulting in the dismissal of almost all Bosnian Muslims and Bosnian
17 Croats from their positions, and these were thus deprived of their
18 livelihood.
19 In addition, Bosnian Serb authorities exerted undue pressure on
20 Bosnian Muslims and Bosnian Croats in an organised fashion to force them
21 to leave the area. Non-Serbs did not receive the same attention and
22 medical treatment at hospitals as Bosnian Serbs did. Their freedom of
23 movement was severely restricted in the form of checkpoints and curfews in
24 contrast with the freedom of movement enjoyed by Bosnian Serbs. Moreover,
25 they were not protected against harassment and abuse from Bosnian Serb
Page 25477
1 armed individuals. Bosnian Muslims and Bosnian Croats were oppressed and
2 pressurised to an extent that living in the Bosnian Krajina became
3 unbearable for them.
4 In late 1991 and early 1992, all three national parties began
5 arming themselves. The evidence shows that the SDS received substantial
6 support from the army which systematically furnished light arms and
7 weapons to local SDS committees in Bosnian Serb claimed municipalities of
8 the Bosnian Krajina as well as to Serbian paramilitary groups.
9 Distribution of arms and weapons to Bosnian Serb civilians was carried out
10 by the local communes and was supervised by the SDS with the support of
11 the army and the local police. The distribution was carried out without
12 any consideration to whom these weapons would be given and for which
13 purpose they could be used. Bosnian Muslims and Bosnian Croats were also
14 preparing for war and correspondingly arming themselves. However, their
15 efforts to procure and distribute weapons were nowhere near as successful
16 as those of the Bosnian Serbs, both in terms of the number and the quality
17 of the obtained weapons.
18 While the arming operations were taking place, public
19 announcements were made through the media that illegally possessed weapons
20 had to be returned to the Territorial Defence staff or to the local police
21 by a certain deadline. Although some of these announcements were
22 formulated in a neutral manner, calling upon all paramilitary groups and
23 individuals of all ethnicities to return illegally possessed weapons, they
24 were in practice enforced by Serbian-controlled police and army in a
25 discriminatory fashion against non-Serbs only. In practice, non-Serbs
Page 25478
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Page 25479
1 were also deprived of legally owned weapons. The selective disarmament of
2 non-Serbs created an imbalance of arms which rendered them totally
3 vulnerable and prevented them from setting up any effective resistance or
4 even from defending themselves.
5 By the spring of 1992, a number of Serbian paramilitary groups had
6 been formed in Bosnia and Herzegovina or had arrived from Serbia. Some of
7 these paramilitary groups were trained and equipped by the army and were
8 closely associated with it or with the SDS. The paramilitaries created an
9 atmosphere of fear and terror by committing crimes against Bosnian Muslims
10 and Bosnian Croats, including rape, murder, plunder, and the destruction
11 of their property. They engaged in war profiteering and looting. Serbian
12 paramilitary groups also participated in combat operations of the 1st
13 Krajina Corps of the VRS, throughout the Autonomous region of Krajina, and
14 from mid-June 1992 onwards they were formally incorporated into the
15 structure of the VRS and put under its command. The Trial Chamber is
16 satisfied that both the army, as well as the SDS, used paramilitary groups
17 as an operative tool that contributed to the implementation of the
18 strategic plan.
19 When the armed conflict broke out in Bosnia and Herzegovina in
20 April 1992, the scale of crimes committed against the non-Serb civilian
21 population in Bosnian Krajina escalated. These crimes came about through
22 close cooperation between the Bosnian Serb police, the army, and Serbian
23 paramilitary groups. The clearly recognisable pattern of criminal
24 activity allows for only one reasonable conclusion; namely, that these
25 crimes were committed with the aim of implementing the strategic plan of
Page 25480
1 the Bosnian Serb leadership to take control of the territory claimed for
2 the Serbian state within Bosnia and Herzegovina and to permanently remove
3 most non-Serbs from that territory.
4 The Bosnian Serb forces attacked non-Serb towns, villages, and
5 neighbourhoods throughout the 13 municipalities I mentioned earlier.
6 These attacks mostly started after the expiry of a deadline for non-Serbs
7 to surrender their weapons. Sometimes an incident caused by non-Serbs
8 would be used as a pretext, attacks commenced with intensive shelling from
9 heavy armed weaponry, and Muslim villages and neighbourhoods were targeted
10 with houses and institutions dedicated to religions -- to religion shelled
11 indiscriminately. This resulted in extensive destruction and civilian
12 casualties. Many of the survivors fled and sought shelter in the
13 surrounding areas. After the shelling, armed soldiers entered the
14 villages, looted and torched houses and expelled or killed some of the
15 villagers who remained behind. In some instances, women were raped.
16 Overall, the Bosnian Muslim and Bosnian Croat population of the
17 attacked towns, villages, and neighbourhoods were not able to set up any
18 effective resistance to these armed attacks. They were not adequately
19 organised, and they did not have sufficient weapons, having been disarmed,
20 with which they could oppose the attackers.
21 During the spring and summer of 1992, Bosnian Serb forces
22 committed killings on a massive scale throughout the Autonomous Region of
23 Krajina. While the judgement provides a much more complete picture, I
24 shall restrict myself to mention only three examples.
25 On May 31, 1992, Bosnian Serb soldiers entered the Muslim hamlet
Page 25481
1 of Begici in Sanski Most municipality and rounded up its inhabitants. Men
2 were separated from women and children. Between 20 and 30 men were taken
3 towards the Vrhpolje bridge where they were supposed to be put on buses.
4 Four Bosnian Muslim men were killed by Jadranko Palija on the way to the
5 bridge. Upon arrival, the other men were ordered to take off their
6 clothes and to line up. Many Bosnian Serb soldiers in different uniforms
7 were present. One of them said that 70 Bosnian Muslims had to be killed
8 in retaliation for the death of seven Bosnian Serb soldiers in the area.
9 Then the Bosnian Muslim men were ordered to jump off the bridge into the
10 Sana River, one by one. Once in the water, the soldiers opened fire upon
11 them. Rajif Begic survived after swimming under water for about 100
12 metres downstream. From the place where he stayed hiding, he was able to
13 observe the executions at the bridge. The Trial Chamber found that a
14 total of at least 28 persons were killed in this incident.
15 On June 1, 1992, approximately 100 residents from various hamlets
16 in the Kljuc municipality were confined in the old primary school in
17 Velagici. Both Bosnian Serb policemen and soldiers were present. Shortly
18 before midnight, people were taken out from the school and ordered to line
19 up in front of the building. Then, two Bosnian Serb soldiers armed with
20 automatic rifles opened fire on them. The soldiers continued firing until
21 every person had fallen down, and then they shot at those who still
22 appeared to be alive. One person survived the massacre. The Trial
23 Chamber was satisfied that at least 77 civilians were killed in this
24 incident.
25 On August 21, 1992, four buses comprised only of men set off from
Page 25482
1 Trnopolje camp. At a junction near Kozarac, the buses from Trnopolje were
2 joined by other buses full of prisoners that came from Tukovi. The convoy
3 was accompanied by members of a special police unit of the Prijedor public
4 security station. Towards late afternoon, before reaching the line of
5 separation between Bosnian Serb and Bosnian Muslim controlled territory,
6 shortly after Skender Vakuf and at the proximity of Mount Vlasic, two of
7 the buses, each carrying approximately 100 persons, stopped. On one side
8 of the road there was a deep gorge, on the other side a steep face of
9 rock. The area is referred to as Koricanske Stijene. The men from the
10 buses were taken in a column to the edge of the cliff and ordered to kneel
11 down facing the cliff. The police officer in charge said, "Here we
12 exchange the dead for the dead and the living for the living." Before the
13 victims were executed, they cried and pleaded for their lives. Then the
14 shooting started. The dead bodies fell into the abyss or were pushed over
15 the edge, sometimes by other Bosnian Muslims, prior to their own
16 execution. Grenades were thrown into the gorge soon after to make sure
17 that no one would survive. The entire operation lasted not more than half
18 an hour. The Trial Chamber is convinced that, at a minimum, 200 men were
19 killed on this day at Koricanske Stijene.
20 In the spring of 1992, camps and other detention facilities were
21 established throughout the territory of the Bosnian Krajina in army
22 barracks and compounds, factories, schools, sports facilities, police
23 stations and other public buildings. These camps and detention facilities
24 were set up and controlled by the Bosnian Serb army, police or civilian --
25 and police and civilian authorities. Non-Serb civilians were arrested en
Page 25483
1 masse and detained in these camps and detention facilities. For example,
2 in Prijedor municipality, after the armed attacks on non-Serb villages by
3 Bosnian Serb armed forces, women and children were separated from the men,
4 all of whom were loaded onto buses and taken to Trnopolje, Omarska, or
5 Keraterm. While prominent members of the SDA and the HDZ were amongst the
6 first to be arrested, the overwhelming majority were normal citizens
7 arrested solely because of their ethnicity. The conditions in the camps
8 and some detention facilities were particularly harsh. Inmates were
9 interrogated, tortured, beaten, and subjected to inhuman and degrading
10 conditions of life. Women were raped and killings occurred on a regular
11 basis. The tragic peak of killings inside these camps was reached with a
12 massacre in Room 3 of Keraterm camp perpetrated by Bosnian Serb army
13 personnel, during which at least 190 Bosnian Muslims from the Brdjo area
14 and Prijedor municipality were killed.
15 Already before the outbreak of the armed conflict in Bosnia and
16 Herzegovina, Bosnian Muslims and Bosnian Croats living in the Bosnian
17 Krajina were feeling increasingly insecure and started leaving the region
18 in convoys. As the events in the Bosnian Krajina developed from the
19 spring of 1992 onwards, active and systematic repression and expulsion of
20 the Bosnian Muslims and the Bosnian Croats was carried out by the Bosnian
21 Serb authorities throughout the region. Convoys of buses and trains were
22 organised by the Bosnian Serb authorities to drive tens of thousands of
23 men, women, and children out of the Bosnian Serb claimed territory to
24 either Bosnian Muslim held territory within Bosnia and Herzegovina or to
25 Croatia. On June 12, 1992, the Agency for Population Movement and
Page 25484
1 Exchange of Material Wealth was established in Banja Luka, assisting in
2 the implementation of the policy of ethnic cleansing. The non-Serb
3 population often sought to leave and requested the conveys, which were
4 then organised by the Bosnian Serb authorities. However, they did not
5 leave of their own free will but were forced to do so due to the
6 conditions, or as a result of the conditions imposed upon them. Moreover,
7 in many instances, the Bosnian Serb authorities made them sign documents
8 stating that they were renouncing claims to all the property they were
9 leaving behind in favour of the Serbian Republic of Bosnia and
10 Herzegovina. The Trial Chamber is satisfied that this measure was
11 intended to dissuade the Bosnian Muslims and Bosnian Croats leaving the
12 territory from even thinking of returning at a later stage. At the same
13 time, the cleansed areas in Northern Bosnia that had been emptied of
14 Bosnian Muslims and Bosnian Croats and had not been destroyed were
15 repopulated by resettling Serbian refugees coming from Croatia.
16 The Trial Chamber is satisfied beyond reasonable doubt that the
17 crimes that were committed in the Bosnian Krajina from April 1992 until
18 the end of December 1992 occurred as a direct result of the overarching
19 strategic plan. The ethnic cleansing was not a by-product of the criminal
20 activity. It was its very aim. The conditions of life imposed on the
21 non-Serb population of the Bosnian Krajina and the military operations
22 against towns and villages which were not military targets were undertaken
23 with the sole purpose of driving people away. By August 1992, the
24 consistent application of such a discriminatory policy was completely
25 clear to objective observers on the ground, and the evidence shows a
Page 25485
1 consistent, coherent, and criminal strategy of cleansing the Bosnian
2 Krajina of ethnic groups other than Bosnian Serbs implemented by the SDS
3 and the Bosnian Serb forces.
4 During the implementation of this policy, effective control over
5 the Bosnian Serb military, police, and civilian structures was exercised
6 variously by political leaders from the Bosnian Serb Supreme Command and
7 other governmental authorities of the Serbian Republic of Bosnia and
8 Herzegovina. It was impossible to implement a systematic policy of this
9 magnitude just by spontaneous action or by criminal actions conducted by
10 isolated radical groups. Moreover, the actual methods used to implement
11 the strategic plan were controlled and coordinated from a higher level
12 than the respective municipalities, even though some municipalities
13 distinguished themselves by taking certain initiatives.
14 I now come to the regional level of authority.
15 Already in early 1991, the SDS embarked on a programme of
16 regionalisation, the ultimate object of which was the implementation of
17 the strategic plan. On April 7, 1991, the SDS Regional Board decided to
18 create the Community of Municipalities of Bosnian Krajina. On September
19 16, 1991, the Assembly of Community of Municipalities of Bosnian Krajina,
20 ZOBK, transformed itself into the Autonomous Region of Krajina. The
21 accused became its First Vice-President. While it is difficult to define
22 with precision which municipalities belonged to the Autonomous Region of
23 Krajina at any given time, the Trial Chamber is satisfied that all 13
24 municipalities addressed in the indictment were members of the Autonomous
25 Region of Krajina during the period relevant to the instant case.
Page 25486
1 Notwithstanding Articles 4 and 5 of its statute, suggesting that
2 it was a multi-ethnic institution, the Autonomous Region of Krajina was
3 essentially a purely Serbian authority. The Autonomous Region of Krajina
4 was vested with powers of a political nature that belonged to the
5 municipalities, including powers in the area of defence. The Trial
6 Chamber is a satisfied that the Autonomous Region of Krajina as an
7 intermediate level of government was established by the Serb leadership to
8 coordinate the implementation of the strategic plan by the municipalities
9 in that region.
10 On May 5, 1992, the ARK Executive Council issued a decision on the
11 formation, the creation of the ARK Crisis Staff, appointing Radoslav
12 Brdjanin, the accused, as its president. The Trial Chamber is satisfied
13 that as with municipal Crisis Staffs in their respective areas of
14 jurisdiction, the ARK Crisis Staff was established primarily to ensure the
15 cooperation between the political authorities, the army, and the police at
16 the regional level, and with a view to coordinating the implementation of
17 the strategic plan by the different authorities.
18 Amongst the 15 core members of the ARK Crisis Staff were the
19 political and military leadership of the Autonomous Region of Krajina as
20 well as persons holding key public positions in the Autonomous Region of
21 Krajina and individuals linked to paramilitary organisations. In addition
22 to these core members, the meetings of the ARK Crisis Staff were attended
23 on a weekly basis by the presidents of the Crisis Staffs of member
24 municipalities or their representatives. The composition of the ARK
25 Crisis Staff not only secured its authority and influence over the various
Page 25487
1 bodies represented on it, but also made sure that, in the eyes of the
2 public, the ARK Crisis Staff was seen to be vested with such authority and
3 influence.
4 Indeed, between May 5, 1992, and July 17, 1992, at which time the
5 ARK Crisis Staff stopped functioning, the ARK Crisis Staff assumed all
6 powers and functions of the ARK Assembly and acted as an intermediate
7 level of government between the authorities of the Serbian Republic of
8 Bosnia and Herzegovina and the municipalities. The ARK Crisis Staff was
9 the highest civilian authority in the Autonomous Region of Krajina and
10 exercised de facto authority over the municipalities and the police and
11 had great influence over the army and Serb paramilitary groups. The
12 extent and the limits of the powers of the ARK Crisis Staff are discussed
13 in great detail in the Trial Chamber judgement.
14 The Trial Chamber is satisfied beyond a reasonable doubt that the
15 accused not only formally represented the ARK Crisis Staff as its
16 president but was in fact at the very heart of the ARK Crisis Staff as its
17 key figure. He was the driving force behind the major decisions issued by
18 the ARK Crisis Staff, which is the reason why the Trial Chamber comes to
19 the conclusion that the decisions of the ARK Crisis Staff can be
20 attributed to the accused.
21 The municipalities, the police, and to some extent the army,
22 systematically implemented ARK Crisis Staff decisions in three key areas.
23 First, the dismissal of non-Serb professionals; second, the disarmament of
24 paramilitary units and individuals illegally possessing weapons,
25 selectively enforced against non-Serbs; and third, the resettlement of the
Page 25488
1 non-Serb population. In the view of the Trial Chamber, these areas were
2 crucial and vital to the success of the overall plan of ethnic cleansing
3 and gave a substantial contribution to the implementation of the strategic
4 plan.
5 I now come to legal findings.
6 This being a summary of the Trial Chamber's judgement, I shall not
7 go into all the details of the Trial Chamber's legal findings and
8 assessments. Rather, I will limit myself to highlighting the following
9 key points:
10 The Trial Chamber is satisfied that all the chapeau elements
11 required for the application of each of the Articles of the Statute
12 pursuant to which the accused has been charged in the indictment have been
13 met.
14 Regarding the mens rea for extermination, the Trial Chamber found
15 that it is analogous to the mens rea for murder as a crime against
16 humanity with the difference that the Prosecution is required to prove
17 beyond reasonable doubt that the accused had the intention to kill persons
18 on a massive scale or to create conditions of life that led to the death
19 of a large number of people. The Trial Chamber found that all the killing
20 incidents alleged in the indictment were proved beyond reasonable doubt
21 except for the following: The incident in Lisjna on or about 1 June 1992,
22 the incident at Vrbanjci on 25 June 1992, the incident on the way from
23 Kukavica and surrounding areas in Kotor Varos on or about the 25th of June
24 1992, and the incident at Dujo Banovic's house in Kenjari on or about June
25 27 1992. In sum, the Trial Chamber is satisfied beyond reasonable doubt
Page 25489
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Page 25490
1 that at least 1.669 Bosnian Muslims and Bosnian Croats were killed by
2 Bosnian Serb forces in these events, all of whom were non-combatants. The
3 Trial Chamber is further satisfied that these killings fulfil the elements
4 of massiveness for the crime of extermination.
5 The definition of torture adopted by this Trial Chamber reflects
6 that contained in the Convention against Torture and reads as follows:
7 "The intentional infliction, by act or omission, of severe pain or
8 suffering, whether physical or mental, in order to obtain information or a
9 confession or to punish, intimidate, or coerce the victim or a third
10 person or to discriminate on any ground against the victim or a third
11 person, amongst others." Having considered the objective and subjective
12 severity of the mistreatment, the Trial Chamber found that the treatment
13 inflicted on the victims and examined at length in the judgement
14 constituted severe pain and suffering for a designated purpose of
15 intimidating, discriminating, or obtaining information, thus amounting to
16 torture. The Trial Chamber wishes to note that some acts, such as rape,
17 by definition meet the severity threshold.
18 By a majority vote, the Trial Chamber is satisfied that the actus
19 reus of deportation consists of the forcible displacement of individuals
20 across a state border from the area in which they are lawfully present
21 without grounds permitted under international law, whereas such
22 displacement within the boundaries of a state constitutes the actus reus
23 of forcible transfer, punishable as inhumane acts as a crime against
24 humanity. The Trial Chamber was confronted with a great deal of evidence
25 regarding the deportation or forcible transfer of a large proportion of
Page 25491
1 the Bosnian Muslim and Bosnian Croat population from the Autonomous Region
2 of Krajina to other areas both within and outside Bosnia-Herzegovina. In
3 view of the specificity with which the charges were pleaded, the Trial
4 Chamber was precluded from making any finding of guilt with respect to
5 incidents where the transfer destination was to locations other than
6 Travnik, under the control of the legitimate government of Bosnia and
7 Herzegovina, or Karlovac in Croatia. Having examined all the evidence,
8 the Trial Chamber is satisfied beyond reasonable doubt that a large number
9 of deportations to Karlovac and a large number of forcible transfers to
10 Travnik, originating in the Autonomous Region of Krajina, took place
11 during the period relevant to the indictment.
12 The Trial Chamber is satisfied that all the incidents of extensive
13 destruction and appropriation of Bosnian Muslim and Bosnian Croat property
14 by Bosnian Serb forces alleged in the indictment were proved beyond
15 reasonable doubt except for incidents in Ramici, Humici, Vrhpolje, Trnova,
16 Sasina, Komusina, Rasjeva, Kamenica and Sipovo. However, for Article 2(d)
17 of the Statute to apply, the Trial Chamber needs to be satisfied beyond
18 reasonable doubt that either the property destroyed and appropriated was
19 located in occupied territory or the property is subject to general
20 protection under the Geneva Conventions. The Trial Chamber found that in
21 the present case the evidence adduced was insufficient to prove either of
22 these two alternatives. And this is explained better in the written
23 judgement. The Trial Chamber therefore found that no violation of Article
24 2(d) of the Statute occurred. In contrast, the protection of Article 3(b)
25 of the Statute extends to all property in the territory involved in a war,
Page 25492
1 including that located in enemy territory. The Trial Chamber therefore
2 found that the destruction of property in the relevant municipalities of
3 the Autonomous Region of Krajina was in violation of Article 3(b) of the
4 Statute.
5 The Trial Chamber is also satisfied that institutions dedicated to
6 religion were systematically destroyed and devastated in the relevant
7 municipalities of the indictment between April and the end of December
8 1992, in violation of Article 3(d) of the Statute.
9 Regarding the crime of genocide. Regarding the crime of genocide,
10 the Trial Chamber concluded that the protected groups within the meaning
11 of Article 4 of the Statute must be defined. In the present case, they
12 have been defined as the Bosnian Muslims and Bosnian Croats. The Trial
13 Chamber is satisfied that the targeted parts of the groups were the
14 Bosnian Muslims and Bosnian Croats of the Autonomous Region of Krajina and
15 that these amounted to substantial parts of the protected groups. In this
16 case, the Prosecution pleaded three different types of acts as genocide.
17 As stated earlier, the Trial Chamber found that Bosnian Muslims and
18 Bosnian Croat non-combatants were killed by Bosnian Serb forces. The
19 Trial Chamber is also satisfied beyond reasonable doubt that serious
20 bodily and mental harm was intentionally inflicted upon Bosnian Muslims
21 and Bosnian Croats detained in camps and other detention facilities.
22 Furthermore, the Trial Chamber is satisfied that the conditions in these
23 camps and other detention facilities were deliberately inflicted upon the
24 Bosnian Muslim and Bosnian Croat detainees and amounted, in some cases, to
25 conditions calculated to bring about physical destruction. As a result,
Page 25493
1 it remained to be determined whether these offences were committed with
2 the specific intent required for genocide, conscious that where direct
3 evidence of intent is absent, the specific intent may still be inferred
4 from the factual circumstances and particularly conscious also that where
5 an inference needs to be drawn, it has to be the only reasonable inference
6 available on the evidence. In this case, the Trial Chamber is not
7 satisfied that the only reasonable inference that may be drawn from the
8 evidence is that the offences were committed with the specific intent to
9 destroy the Bosnian Muslim and Bosnian Croat groups of the Autonomous
10 Region of Krajina. One reason for this is that the number of Bosnian
11 Muslim and Bosnian Croat men, women, and children forcibly displaced from
12 the Autonomous Region of Krajina in this case is extremely high,
13 particularly when put in juxtaposition to the number of Bosnian Muslim and
14 Bosnian Croats subjected to the acts enumerated in Article 4(2)(a), (b)
15 and (C) of the Statute. This fact does not support the conclusion that
16 the intent to destroy the groups in part, as opposed to the intent to
17 forcibly displace them, is the only reasonable inference that may be drawn
18 from the evidence. The judgement details the Trial Chamber's reasons in
19 full. On the basis of the evidence presented in this case, the Trial
20 Chamber has not found beyond reasonable doubt that genocide was committed
21 in the relevant ARK municipalities from April to December 1992.
22 The Trial Chamber found that the crime of persecution consists of
23 an act or an omission which discriminates in fact and denies or infringes
24 upon a fundamental right laid down in international customary or treaty
25 law and was carried out deliberately with the intent to discriminate on
Page 25494
1 one of the listed grounds, specifically race, religion, or politics. The
2 Trial Chamber has understood race to include ethnicity. The Trial Chamber
3 found that the campaign of persecutions against Bosnian Muslims and
4 Bosnian Croats included killings, torture, physical violence, rapes and
5 sexual assaults, constant humiliation and degradation, destruction and
6 appropriation of non-Serb property, destruction of institutions dedicated
7 to religion, deportation and forcible transfer, and the denial of
8 fundamental rights, namely the denial of the fundamental rights to
9 employment and freedom of movement and the rights to proper medical care
10 and proper judicial process. The Trial Chamber is further satisfied that
11 the acts were discriminatory, in fact, and were committed by the
12 perpetrators with the requisite discriminatory intent on racial,
13 religious, and political grounds.
14 I now come to the criminal responsibility of the accused.
15 I shall now turn to the question as to whether the accused,
16 Radoslav Brdjanin, is criminally responsible for any of the crimes charged
17 in the indictment under any of the modes of liability included therein.
18 For this purpose, it is necessary to state some of the core issues
19 examined by the Trial Chamber in its written judgement in order to
20 establish the accused's criminal responsibility.
21 The Trial Chamber is satisfied beyond reasonable doubt that both
22 prior to and during the period covered in the indictment, Radoslav
23 Brdjanin was a leading political figure in the Autonomous Region of
24 Krajina and that he held key positions at the municipal, regional, and
25 republic levels, including that of First Vice-President of the ARK
Page 25495
1 Assembly, President of the ARK Crisis Staff, and later Acting Deputy Prime
2 Minister for Production, Minister for Construction, Traffic, and
3 Utilities, and Acting Vice-President of the Government of Republika
4 Srpska.
5 The Trial Chamber is satisfied that between mid-1991 and the end
6 of 1992, the accused possessed de jure and de facto powers that made him
7 one of the most significant and powerful political figures in the
8 Autonomous Region of Krajina. The sources of his powers were twofold. In
9 the first place, the accused possessed power by virtue of the political
10 positions that he occupied at the municipal, regional, and republic
11 levels. In the second place, he was entrusted with political power
12 directly by the Bosnian Serb leadership, including Radovan Karadzic
13 himself.
14 The Trial Chamber is further satisfied that the accused espoused
15 the strategic plan and knew that it could only be implemented by the use
16 of force and fear.
17 Amongst the political figures in the Bosnian Krajina, it was the
18 accused who was identified by the Bosnian Serb leadership as best
19 representing the interests of the Serbian people Republic of Bosnia and
20 Herzegovina. He was chosen to play a leading role in coordinating the
21 implementation of the strategic plan in the Autonomous Region of Krajina.
22 For this purpose, the top leadership of the Serbian Republic of Bosnia and
23 Herzegovina granted the accused a high degree of authority and autonomy in
24 areas of fundamental political importance which is indicative of the trust
25 the accused enjoyed at the highest political level. In a telephone
Page 25496
1 conversation of -- on October 31, 1991, Radovan Karadzic himself assured
2 the accused that he had all the power in the Bosnian Krajina and indicated
3 that he should take more decisions without consulting the party
4 leadership. Moreover, in a conversation between Radovan Karadzic and a
5 certain Miroslav on January 7, 1992, the accused was identified as a
6 mature and politically strong personality who would be able to take power.
7
8 Radoslav Brdjanin made a substantial contribution to the
9 implementation of the strategic plan in three distinct phases: before the
10 establishment of the ARK Crisis Staff, in his capacity as member of the
11 Assembly of the Serbian People in Bosnia and Herzegovina, first, and in
12 the ARK Assembly, as president of the ARK Crisis Staff, and after the ARK
13 Crisis Staff ceased to exist, in his capacity as Minister in the Republika
14 Srpska government.
15 Before the creation of the ARK Crisis Staff, Radovan Karadzic was
16 already discussing and relying upon the accused, amongst others, to set up
17 civilian commands to ensure Territorial Defence and civilian protection,
18 to liaise with military officers and prepare for the mobilisation of the
19 Bosnian Serb military, and to implement the policy of dismissing non-Serbs
20 from their jobs.
21 As president of the ARK Crisis Staff, the accused exercised de
22 facto authority over the municipal authorities and the police and had
23 substantial influence over the army and paramilitary groups. Through the
24 decisions of the ARK Crisis Staff that can be attributed to him, the
25 accused contributed to the implementations of the aims of the Bosnian Serb
Page 25497
1 leadership in the Autonomous Region of Krajina.
2 After the ARK Crisis Staff was wound up, the accused not only
3 maintained his political power in the Bosnian Krajina but also extended
4 his power at the republic level. He continued to meet with high-ranking
5 military and political officials and discussed issues concerning the
6 implementation of the strategic plan.
7 The Trial Chamber found that the accused made one of his most
8 substantial contributions to the implementation of the strategic plan by
9 means of a propaganda campaign against Bosnian Muslims and Bosnian Croats
10 which he conducted at different stages of his political career. His
11 positions of authority gave him access to the media which he used to make
12 public statements, disseminating fear and hatred between Bosnian Serbs on
13 one hand and Bosnian Muslims and Bosnian Croats on the other. Not only
14 did the accused call for the dismissal of non-Serbs from their jobs, but
15 he also publicly advocated that the non-Serb population should leave the
16 Bosnian Krajina. Moreover, the accused spoke openly against mixed
17 marriages and publicly suggested a campaign of retaliatory ethnicity-based
18 murder.
19 The Trial Chamber is satisfied beyond reasonable doubt that,
20 although the accused's public statements may have been motivated in part
21 by his drive towards self-advancement, they were intentional and had a
22 disastrous impact on people of all ethnicities. They incited Bosnian
23 Serbs to commit crimes and contributed to creating a climate where people
24 were prepared to tolerate the commission of crimes as well as to commit
25 crimes and where well-meaning Bosnian Serbs felt dissuaded and discouraged
Page 25498
1 from extending any kind of assistance to non-Serbs. The non-Serb
2 population of the Bosnian Krajina understood the accused's public
3 statements as direct threats to leave the area under Bosnian Serb
4 occupation, and many of them did so in fear for their lives. A number of
5 witnesses gave evidence that the accused's public statements constituted
6 the main reason why they left the area.
7 The Trial Chamber is additionally satisfied that the accused had
8 detailed knowledge that, during the time and in the area relevant to the
9 indictment, crimes were being committed in the execution or the
10 implementation of the strategic plan.
11 In relation to each mode of liability presented in the indictment,
12 I shall now proceed to underline the following general findings of the
13 Trial Chamber:
14 In order to hold the accused criminally responsible under the
15 institute of joint criminal enterprise, the Prosecution needs to establish
16 a common plan amounting to and involving an agreement between the accused
17 and the physical perpetrators of the crimes in question to commit a crime
18 envisaged in the Statute. The physical perpetrators of the crimes in
19 question are members of the police, the army, and paramilitary
20 organisations. As the Prosecution did not plead a joint criminal
21 enterprise between the accused and the police, the Trial Chamber examined
22 whether there was a joint criminal enterprise between the accused and
23 members of the army and paramilitary organisations. In so doing, the
24 Trial Chamber made reference to the strategic plan.
25 As already stated, the Trial Chamber has found that the accused
Page 25499
1 espoused the strategic plan. Moreover, it is satisfied that many of the
2 relevant physical perpetrators of the crimes in question equally did so
3 and acted towards its implementation. However, the Trial Chamber is of
4 the view that the mere espousal of the strategic plan by the accused on
5 one hand and many of the relevant physical perpetrators on the other hand
6 is not equivalent to an arrangement between them to commit a concrete
7 crime. Indeed, the accused and the relevant physical perpetrators could
8 espouse the strategic plan and form a criminal intent to commit crimes
9 with the aim of implementing the strategic plan independently from each
10 other and without having an understanding or entering into any agreement
11 between them to commit a crime. The Trial Chamber further examined
12 whether an understanding or agreement to that effect between the accused
13 and the relevant physical perpetrators could be inferred from the fact
14 that they acted in unison to implement the strategic plan. Given the
15 physical and structural remoteness between the accused and the relevant
16 physical perpetrators and the fact that the relevant physical perpetrators
17 in most of these cases have not even been personally identified, the Trial
18 Chamber is not satisfied that the only reasonable conclusion that may be
19 drawn from the accused's and the relevant physical perpetrators' concerted
20 action aimed towards the implementation of the strategic plan is that the
21 accused entered into an agreement with the relevant physical perpetrators
22 to commit a crime. Indeed, the Trial Chamber is satisfied that the
23 evidence allows for other reasonable inferences to be drawn.
24 The Trial Chamber is of the view that joint criminal enterprise is
25 not an appropriate mode of liability to describe the individual criminal
Page 25500
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Page 25501
1 responsibility of the accused given the extraordinarily broad nature of
2 this case where the Prosecution seeks to include within a joint criminal
3 enterprise a person who is considered to be remote from the commission of
4 the crimes charged in the indictment as the accused. The Trial Chamber
5 therefore dismissed joint criminal enterprise as a mode of liability in
6 this case.
7 Planning is also dismissed as a mode of liability under Article
8 7(1) of the Statute as the Trial Chamber found that, taking into
9 consideration the individual responsibility of the accused that has been
10 established and to which I will come soon, there is insufficient evidence
11 to conclude that the accused was involved in the immediate preparation of
12 the concrete crimes.
13 Regarding criminal responsibility under Article 7(3) of the
14 Statute, the Trial Chamber found that although the ARK Crisis Staff had de
15 facto authority over the municipal authorities and the police and
16 influence over the army and paramilitary organisations, the accused, as
17 president of the ARK Crisis Staff or in any of his other positions between
18 April and December 1992, did not have effective control over members of
19 the municipal authorities, the police, the army, or paramilitary
20 organisations, which would entail his material ability to prevent or
21 punish the commission of crimes by these individuals. Thus the Trial
22 Chamber dismisses superior criminal responsibility under Article 7(3) of
23 the Statute as a possible mode of liability.
24 The remaining modes of liability under Article 7(1) of the Statute
25 were examined successively for each of the crimes charged in the
Page 25502
1 indictment and the Trial Chamber reached the following conclusions:
2 Regarding wilful killings, the Trial Chamber is satisfied that the
3 ARK Crisis Staff decisions on disarmament between May 9 and 18, 1992,
4 constituted practical assistance to the attacks of the Bosnian Serb forces
5 on non-Serb towns, villages, and areas, and that these decisions were
6 attributable to the accused. The Trial Chamber is further satisfied that
7 the accused was aware that, during these armed attacks, the Bosnian Serb
8 forces would commit a number of crimes, including the crime of wilful
9 killing of a number of non-Serbs, and that the members of the Bosnian Serb
10 forces carrying out the killings in question had the required intent to
11 kill. Throughout the ARK Crisis Staff decisions -- through the ARK Crisis
12 Staff decisions on disarmament, the accused had a substantial effect on
13 the commission of these killings. The Trial Chamber is satisfied that the
14 accused aided and abetted in the killings committed by the Bosnian Serb
15 forces in the context of the armed attacks of the Bosnian Serb forces on
16 non-Serb towns, villages, and areas after May 9, 1992. The Trial Chamber
17 is not satisfied that it has been sufficiently proved that the same ARK
18 Crisis Staff decisions or any of the acts of the accused render him
19 criminally responsible for other killings mentioned in the indictment.
20 The Trial Chamber is not satisfied that the evidence establishes
21 beyond reasonable doubt that the accused was aware that by issuing ARK
22 Crisis Staff decisions on disarmament he would be assisting in the
23 killings on a massive scale such as to amount to the crime of
24 extermination. Nor has it been established beyond reasonable doubt that
25 the accused knew that the members of the Bosnian Serb forces intended to
Page 25503
1 commit killings on a massive scale such as to amount to the crime of
2 extermination.
3 Applying the same reasoning for the acts of torture charged in the
4 indictment as for the acts of wilful killing, the Trial Chamber found that
5 the accused aided and abetted the torture committed by the Bosnian Serb
6 forces in the context of the armed attacks of the Bosnian Serb forces on
7 non-Serb towns, villages, and areas after May 9, 1992, the date when the
8 ARK Crisis Staff issued its first decision on disarmament. In addition,
9 however, the Trial Chamber is satisfied also that the accused aided and
10 abetted the commission of the underlying acts of torture in camps and
11 other detention facilities throughout the Autonomous Region of Krajina by
12 Bosnian Serb forces. It has been established beyond reasonable doubt that
13 with the exception of the Jasenica and Petar Kocic elementary schools, all
14 the camps and detention facilities mentioned in the evidence came into
15 being once the ARK Crisis Staff had been established. There is ample
16 evidence that the establishment of these camps and detention facilities
17 formed an integral part of the strategic plan, that the accused was aware,
18 fully aware, of the nature of these camps and detention facilities, and
19 that detainees were tortured therein. During his mandate as president of
20 the ARK Crisis Staff, not only did the accused not take a stand in public
21 or during ARK Crisis Staff meetings against them, but he adopted a
22 laissez-faire attitude and spoke in public about them in a way which sent
23 the wrong message to those who were committing crimes inside these camps
24 and detention facilities. Therefore, the Trial Chamber is satisfied that
25 his inactivity as well as his public attitude with respect to the camps
Page 25504
1 and detention facilities constituted moral encouragement and support to
2 the members of the Bosnian Serb army and police to continue running these
3 camps and detention facilities in the way described to the Trial Chamber
4 throughout the trial.
5 Turning to the crimes of deportation and forcible transfer, the
6 Trial Chamber is satisfied that the ARK Crisis Staff decisions of May 28
7 and 29, 1992, advocating the resettlement of the non-Serb population,
8 prompted the municipal authorities and the police who implemented them to
9 commit the crimes of deportation and forcible transfer. The Trial Chamber
10 is also of the view that the only reasonable conclusion that may be drawn
11 when the terms of these conditions are considered in the light of the
12 accused's unambiguous statements made repeatedly from early April 1992
13 onwards, calling upon the non-Serb population to leave the Bosnian Krajina
14 and stating that only a small percentage of non-Serbs would be allowed to
15 stay is that -- the only reasonable conclusion is that the decisions could
16 only have been meant as a direct incitement to deport or forcibly transfer
17 the non-Serbs from the territory of the Autonomous Region of Krajina. The
18 Trial Chamber is satisfied that with the exception of the failed attempts
19 of displacing the Bosnian Muslim population of Gornji Agici and Donji
20 Agici and Crna Rijeka in Bosanski Novi on May 24, 1992, the deportations
21 to Karlovac and the forcible transfers to Travnik, originating in the
22 Autonomous Region of Krajina and described in great detail in the
23 judgement, all took place after the adoption of the ARK Crisis Staff
24 decisions previously mentioned. Furthermore, the accused's espousal of
25 the strategic plan, of which the crimes of deportation and forcible
Page 25505
1 transfer formed an integral part, and the implementation of which he
2 coordinated in his position as president of the ARK Crisis Staff
3 demonstrated that he intended to induce the commission of the crimes of
4 deportation and forcible transfer. On that basis, the Trial Chamber found
5 that the accused instigated these forcible transfers and deportation. In
6 addition, the Trial Chamber is also satisfied that the accused aided and
7 abetted the execution of these crimes through his inflammatory and
8 discriminatory public statements. He instigated them also through the
9 decisions on disarmament of the ARK Crisis Staff mentioned previously, and
10 finally, through the ARK Crisis Staff decision of June 12, 1992, which set
11 up the agency for The Movement of People and Exchange in Banja Luka.
12 The Trial Chamber reiterates the reasoning used for the crime of
13 wilful killing for the crime of destruction, namely that the ARK Crisis
14 Staff decisions on disarmament constituted practical assistance to the
15 attacks of the Bosnian Serb forces on non-Serb towns, villages, and areas
16 and that the accused was aware that crimes, including the crime of wanton
17 destruction of cities, towns, and villages or devastation not justified by
18 military necessity would be committed. The Trial Chamber is thus
19 satisfied that the accused aided and abetted in the wanton destruction of
20 cities, towns, and villages or devastation not justified by military
21 necessity committed by the Bosnian Serb forces on non-Serb towns,
22 villages, and areas in Bosanski Novi, Bosanski Petrovac, Celinac, Donji
23 Vakuf, Kljuc, Kotor Varos, Prijedor, Sanski Most, Sipovo, and Teslic after
24 May 9, 1992. With the same reasoning and having examined the evidence
25 carefully, the Trial Chamber is satisfied that the accused aided and
Page 25506
1 abetted the destruction or wilful damage done to institutions dedicated to
2 religion committed by the Bosnian Serb forces in the context of the armed
3 attacks of the same forces on non-Serb towns, villages, and areas in
4 Bosanski Novi, Bosanski Petrovac, Celinac, Donji Vakuf, Kljuc, Kotor
5 Varos, Prijedor, Prnjavor, Sanski Most, Sipovo, and Teslic after May 9,
6 1992.
7 Finally, regarding the crime of persecution, the Trial Chamber has
8 previously established the responsibility of the accused for aiding and
9 abetting certain crimes of wilful killings, torture, destruction and
10 devastation of cities, towns, villages and institutions dedicated to
11 religion as well as deportation and forcible transfer. The accused has
12 also been found guilty for instigating certain incidents of deportation
13 and forcible transfer. The Trial Chamber is further satisfied that the
14 accused aided and abetted persecution with respect to physical violence,
15 rapes, sexual assaults, constant humiliation and degradation, as well as
16 appropriation of property. Furthermore, the Trial Chamber is satisfied
17 that the accused ordered the denial of the fundamental right of employment
18 of Bosnian Muslims and Bosnian Croats in the municipalities mentioned
19 above through a decision of the ARK Crisis Staff of June 22, 1992,
20 providing for the dismissal of virtually all non-Serbs in the Autonomous
21 Region of Krajina, an act which amounts to persecution. Moreover, the
22 conclusion of the Trial Chamber is that the accused aided and abetted
23 persecution with respect to the denial of the right to freedom of movement
24 and the right to proper judicial process of the mentioned ethnic groups.
25 However, the Trial Chamber found that the evidence before it is
Page 25507
1 insufficient to establish the responsibility of the accused for the denial
2 of the right to proper medical care. In relation to all these underlying
3 acts, the Trial Chamber is satisfied that not only the physical
4 perpetrators but also the accused possessed the intent to discriminate
5 against the Bosnian Muslim and Bosnian Croat victims.
6 Sentencing. The Trial Chamber assessed the factors which it
7 considered relevant to an appraisal, a proper appraisal of the gravity of
8 the crimes of which the accused has been found guilty and his
9 responsibility.
10 The Prosecution in this case, considering the gravity of the
11 crimes charged in the indictment, the aggravating factors submitted, and
12 the alleged absence of any significant mitigating factor, claimed that the
13 criminal responsibility of the accused could only be adequately addressed
14 and punished with a sentence of life imprisonment.
15 The Defence put forward a preliminary objection to the absence
16 from the proceedings of a separate and ad hoc sentencing hearing after
17 conviction and submitted that because of this he could not make adequate
18 submissions on sentencing. The Trial Chamber does not agree with this
19 submission and the reasons are given in detail in the judgement. The
20 Defence, however, it must be noted, did make several submissions for the
21 purpose of sentencing, and these are dealt with comprehensively in the
22 judgement, and I will be referring to some of them later on.
23 The Trial Chamber found that the following were relevant
24 aggravating circumstances to which appropriate weight, as indicated in the
25 judgement, was attached when determining the sentence: The position of
Page 25508
1 leadership of the accused, the status and vulnerability of the victims and
2 the impact of the crimes on the victims, the willingness of the accused's
3 participation, the duration of the criminal conduct, and to a lesser
4 extent, as explained in the written judgement, the educational background
5 of the accused.
6 However, the Trial Chamber found that the following were relevant
7 mitigating circumstances to which the appropriate weight indicated in the
8 written judgement was attached when determining the sentence. Some carry
9 significant mitigatory importance, some much less so. These were
10 contributing to the decision to provide shelter to Bosnian Muslims from
11 Celinac, treating all citizens equally in certain instances, voicing
12 concern about some paramilitaries, participating in the decision to arrest
13 members of the Mice group, the family status and age of the accused, his
14 few speeches against profiteering from the armed conflict, his respectful
15 conduct during the course of these proceedings, and his conduct with
16 witnesses testifying against him, in particular one in particular, and
17 finally, his remorse in some individualised instances.
18 Finally, in accordance with the Statute and the Rules, the Trial
19 Chamber took into consideration the general sentencing practice of the
20 courts of the former Yugoslavia, acknowledging that it was not bound by
21 this practice. The Trial Chamber noted that under the Criminal Code of
22 the Socialist Federal Republic of Yugoslavia, the range of penalties
23 existing in 1992 started with a fine, continued with confiscation of
24 property, imprisonment and capital punishment. The maximum term of
25 imprisonment was 15 years except for offences punishable with the death
Page 25509
1 penalty, committed under particularly aggravating circumstances or causing
2 especially grave consequences in which case the maximum term of
3 imprisonment was of 20 years.
4 The Trial Chamber, pursuant to Rule 87(C), decided to impose a
5 single sentence in this case as it reflects better the criminal conduct of
6 the accused which denotes a constant pattern of criminal behaviour
7 occurring within a closed temporal context.
8 And we finally come to the disposition.
9 Radoslav Brdjanin, please rise.
10 For the reasons I summarised above, this Trial Chamber, having
11 heard all the evidence presented by the Prosecution and the Defence, finds
12 you not guilty of count 1, genocide; count 2, complicity in genocide;
13 count 4, extermination as a crime against humanity; and count 10,
14 extensive destruction and appropriation of property not justified by
15 military necessity and carried out unlawfully and wantonly as a grave
16 breach of the 1949 Geneva Conventions.
17 Pursuant to Article 7(1) of the Statute, the Trial Chamber finds
18 you guilty of count 3, persecutions as a crime against humanity,
19 incorporating count 6, torture, count 8, deportation, and count 9,
20 forcible transfer as an inhumane act; count 5, wilful killing as a grave
21 breach of the 1949 Geneva Conventions; count 7, torture as a grave breach
22 of the 1949 Geneva Conventions; count 11, wanton destruction of cities,
23 towns, and villages or devastation not justified by military necessity as
24 a violation of the laws and customs of war; and finally, count 12,
25 destruction or wilful damage done to institutions dedicated to religion as
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1 a violation of the laws and customs of war.
2 We sentence you, Radoslav Brdjanin, to a single sentence of 32
3 years of imprisonment and state that you are entitled to credit for five
4 years, one month, and 26 days as of the date of this judgement, calculated
5 from the date of your deprivation of liberty, that is the 6th of July,
6 1999, together with such additional time as you may serve pending the
7 determination of any appeal.
8 Finally, pursuant to 103(C) of the Rules, you shall remain in the
9 custody of the Tribunal pending the finalisation of arrangements for your
10 transfer to the state where this sentence will be served.
11 The court stands adjourned.
12 --- Whereupon the hearing concluded at 4.10 p.m.
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